RESOURCE MATERIAL SERIES No.66

THE UNITED NATIONS CONVENTION AGAINST CORRUPTIONORIGINS AND NEGOTIATION PROCESS
Dimitri Vlassis*
I. BACKGROUND
In a world of relative turmoil produced by radical changes in the Post-Cold War era, there are newopportunities and incentives to engage in corrupt practices. The assumption that “free markets” and noninterventionism are the remedy against corruption is challenged by recent experience. It now appears thateach socio-political and economic system produces its own version of corruption and that no system iscompletely corruption-free.
The problem of corruption is systematic rather than individual. It occurs in monopolistic or oligopolistic
situations, in which one or a handful of companies control a given market. The state may wish to engage
private companies to perform specific tasks, provide services or carry out public works. To the extent that
only a very small number of companies are practically able to carry out the work, the ground is fertile forcorrupt practices, i.e. overcharging, low quality work, delays, etc.
In addition, very wide discretionary powers in the hands of individuals or organizations may generate
temptations and incentives for corruption. Whenever there are few or no mechanisms of “checks andbalances”, people have plenty of opportunities to take undue advantage of their power. Another contributing
factor is the lack of transparency, which reduces the ability to control those in positions of authority. This
lack of transparency may be caused by factors ranging from secrecy in banking to dictatorial regimes
disallowing the questioning of authority.
Most of the time, corruption entails a confusion of the private with the public sphere or an illicit exchange
between the two spheres. In essence, corruption-related activities involve public officials acting in the bestinterest of private concerns regardless of, or against, the public interest. Abuses of public office to secure
unjust advantage may include any planned, attempted, requested or successful transfer of a benefit as aresult of unjust exploitation of an official position.
While planning and developing anti-corruption strategies and policies, it is essential to begin fromdetermining the extent of the harmful effects of corrupt practices. In many countries, particularly developing
countries and countries with economies in transition, corruption hampers social, economic and politicalprogress. Public resources are allocated inefficiently and the population’s distrust of political institutions
rises. Consequently, productivity becomes lower, administrative efficiency is reduced and the legitimacy ofpolitical order is undermined. In addition, projects are left incomplete and economic development isimpaired, which, in turn, leads to political instability, as well as poor infrastructure, education, healthsystems and other social services.
On the other hand, the phenomenon of corruption has also detrimental effects in developed countries by
undermining ethical principles, rewarding those willing and able to pay bribes for their own benefit andperpetuating inequality. The result is that individuals who wish to conduct their affairs honestly aredemoralized and lose faith in the rule of law. Moreover, competition is distorted and the quality of products
and services tends to deteriorate. National budgets are severely depleted and rules and regulations designed
to enhance social responsibility of corporations and other businesses are undercut and undermined.

II. EARLY WORK OF THE UNITED NATIONS AGAINST CORRUPTIONThe United Nations Crime Prevention and Criminal Justice Programme began exploring whether the
ground was fertile for action against corruption at the international level at a time when it was deemedadventurous even to mention the word “corruption”.

*Chief, Crime Conventions Section, Division for Treaty Affairs; Secretary, Ad Hoc Committee for the Negotiation of aConvention against Corruption, United Nations Office on Drugs and Crime.

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True to its tradition that prevailed from its establishment and is at the root of many of its successes, theProgramme approached the issue from the technical rather than the political perspective.
In December 1989, working in close cooperation with the (then) Department of Technical Cooperation
for Development of the Secretariat, the Programme organized an interregional seminar, which was hosted by
the Government of The Netherlands in The Hague. Following a thorough review of the impact of corruption
on good governance, public administration and the judiciary, the seminar produced a set of comprehensive
recommendations. It is interesting to note that the seminar prefaced its recommendations on certain special
considerations, which were cast as overarching conditions for effective action against corruption, or in otherwords, as essential elements of an enabling framework and environment for such action to have meaning.
The participants in the seminar recognized the importance of democratic institutions, a free press, the ruleof law, the independence of the judiciary and the creation of a political, administrative and social-economic
environment in which the public and civil service can operate without improper interference. The
recommendations of the seminar covered considerable ground, ranging from the need to embrace economic
and development strategies, to the requirement of putting in place a broad range of preventive and law
enforcement measures, and including the establishment of independent specialized bodies to implement oroversee the implementation of policies and measures against corruption. In the area of international
cooperation, the seminar called for improved mutual legal assistance and extradition, as well as confiscationof illicit proceeds, and stressed the importance of technical cooperation in this sphere. The seminar also
proposed the preparation of an international code of conduct for public officials and a United Nations
programme to promote compliance with that code. It should be noted that the seminar provided theopportunity for the Crime Prevention and Criminal Justice Programme to present a first draft of a manual on
practical measures against corruption on which it had been working and receive valuable comments.
In August 1990, the Programme organized the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders. One of the resolutions that received the most support and passed
unanimously was resolution 7 on action against corruption, which was inspired by the recommendations of
the seminar and called for the preparation of a draft international code of conduct for public officials and thefinalization and publication of the manual on practical measures against corruption.
Action against corruption featured prominently among the priorities established for the United Nations
Crime Prevention and Criminal Justice Programme by the Versailles Ministerial Conference that revamped
the Programme in 1991. It was also among the issues that the Commission on Crime Prevention andCriminal Justice decided to pursue when it was established in 1992. Under its guidance, the Programme
developed the International Code of Conduct for Public Officials, which was adopted by the General
Assembly by its resolution 51/59 of 12 December 1996. The General Assembly recommended it to Member
States as a tool to guide their efforts against corruption. Further in its resolution 51/191 of 16 December
1996, the Assembly adopted the United Nations Declaration against Corruption and Bribery in International
Commercial Transactions, annexed to that resolution, and requested the Economic and Social Council and its
subsidiary bodies, in particular the Commission on Crime Prevention and Criminal Justice, to examine ways,
including through binding international legal instruments, to further the implementation of the Declaration,
to keep the issue under regular review and to promote the effective implementation of that resolution. Itshould be noted that the Declaration is generally regarded as the precursor of the OECD Convention against
the bribery of foreign public officials.

III. THE NEGOTIATION PROCESSThe question of a convention against corruption was raised for the first time in connection with thenegotiations for the United Nations Convention against Transnational Organized Crime. The Ad Hoc
Committee that carried out those negotiations debated whether corruption should be covered by that
Convention. The view that prevailed was that corruption was too complex and broad an issue to be covered
exhaustively by a convention dealing with transnational organized crime. However, it was also evident to all
negotiators that that Convention would not be complete without provisions on corruption, because
corruption was both a criminal activity in which organized criminal groups often engage and a method usedby those groups to carry out other criminal activities. The Ad Hoc Committee agreed on the inclusion oflimited provisions on corruption in the United Nations Convention against Transnational Organized Crimeon the understanding that a separate instrument would be envisaged to cover corruption in an appropriatemanner. The United Nations Convention against Transnational Organized Crime, which was adopted by the127

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General Assembly in resolution 55/25 of 15 November 2000 and entered into force on 29 September 2003,
includes provisions related to corruption. The Convention envisages criminalization of active and passive
bribery involving a public official (Article 8 para. 1) or a foreign public official or international civil servant(Article 8 para. 2), as well as of participation as an accomplice in corruption-related offences (Article 8 para.
3). In addition, States Parties are required to adopt measures designed to promote integrity and to prevent,detect and punish the corruption of public officials (Article 9). The article criminalizing corruption includes
also a basic definition of public officials, essentially deferring to national law.
Following the successful conclusion of the negotiations for the United Nations Convention against
Transnational Organized Crime and its three Protocols, and the establishment of the new Ad Hoc
Committee, the issue of fully realizing the commitment taken during those negotiations to pursue thedevelopment of an independent instrument against corruption came to centre stage. At the beginning, there
was some brief debate about whether the new instrument should be a separate convention, or the objective
could be as effectively achieved through the development of a protocol to the United Nations Convention
against Transnational Organized Crime. The argument about the multifaceted nature of the problem ofcorruption necessitating a separate and comprehensive approach proved to be convincing enough that thequestion was laid to rest at the early stages of the debate.
However, Member States wished to time the beginning of the new negotiation process in a way thatwould ensure sufficient preparation, both on the part of their substantive services and agencies, and on thepart of the Secretariat that would support those negotiations. Member States also wished to ensure that thenegotiation process would be based firmly on shared objectives and a clear understanding about the scope ofthe objective to be achieved, precisely in view of the broad nature of the phenomenon of corruption and,most importantly, because of the rather nebulous character of the terminology employed to describe thephenomenon. Corruption was a term used in different contexts to embrace different, sometimes widely
divergent concepts and had not acquired the certainty that is demanded invariably in a legal context, or more
importantly, in the context of making international law. At the same time, Members States wished to ensurethat the expertise and experience gained, as well as the spirit achieved during the negotiation process for
the United Nations Convention against Transnational Organized Crime would be fully preserved and built
upon. These attributes were considered of the utmost importance and as guarantees for the success of the
new endeavour that the international community was about to embark upon.
In view of all these considerations, debate at the Commission on Crime Prevention and Criminal Justicerevolved around devising a preparatory process that would satisfy all concerns and create an environmentthat would be conducive to pursuing the new negotiations on a sound basis.
In its resolution 55/61, the General Assembly established an Ad Hoc Committee for the Negotiation of aConvention against Corruption. That resolution also outlined a preparatory process designed to ensure thewidest possible involvement of Governments through intergovernmental policy-making bodies. The Centre
for International Crime Prevention (CICP) was asked to prepare an analysis of existing international legal
instruments for the Commission on Crime Prevention and Criminal Justice, whose central theme in 2001
was the issue of corruption. The resolution also called for the convening of an open-ended
intergovernmental group of experts, which was asked to draft terms of reference for the negotiation of the
new instrument, taking into account the analysis of existing legal instruments and recommendations
prepared by the Secretariat and the views and comments of the Commission. The Group was asked tosubmit its recommendations to the General Assembly, through the Commission and the Economic and Social
Council, for approval.
There was an interesting development that merits special mention. At the time that the General
Assembly was considering resolution 55/61, Nigeria, on behalf of the Group of 77 and China, proposed to theSecond Committee of the General Assembly a draft resolution on the illegal transfer of funds and therepatriation of such funds to their countries of origin. As originally proposed, the draft resolution was calling
for the negotiation of a separate instrument on this subject. Through negotiations at the General Assembly,
the two resolutions were brought in line and the Intergovernmental Expert Group mentioned above was
asked, by General Assembly resolution 55/188, to examine the issue of illegal transfer of funds andrepatriation of such funds when considering the draft terms of reference for the negotiation of the newconvention against corruption. This new mandate placed the issue of asset recovery squarely within theframework of the new convention.

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Pursuant to General Assembly resolution 55/188, the (then) Centre for International Crime Prevention of
the United Nations Office on Drugs and Crime begun studying the issue and seeking input from Member
States, other entities of the United Nations system and other international organizations, in order to comply
with the request of the Assembly to the Secretary-General to submit a report on this matter. Over the last
three years, the Centre submitted three reports on this issue to the General Assembly and carried out astudy to assist the Ad Hoc Committee charged with the negotiations of the new Convention against
Corruption.
In elaborating these reports and the study for the Ad Hoc Committee, we found that the issue was ascomplex as it was crucial. In fact, the complexities surrounding it could not be underestimated. These
complexities derived as much from the nature of the activities that produce the illicit wealth, as from thedifficulties associated with the authors of these activities and their position of power. Such complexities
were compounded by corollary factors, such as gaps in domestic legislation, perceived deficits in legitimacy
of processes initiated to establish facts and determine culpability and, last but not least, deficiencies ininternational cooperation.
One of the key conclusions in the reports of the Secretary-General was that notwithstanding difficulties
or complexities, the dimensions of the problem demanded joint and conclusive action by the international
community. For this action to be effective, the international community must embark on sustained efforts toforge consensus. Such consensus needs to be based on a common understanding of the constituent elementsof the issue, a common perception and appreciation of its impact on national efforts towards development
and on the international quest for globalization beneficial to all, and finally agreement on the international
aspects of the problem that require genuine and meaningful cooperation.
The sensitive and complex nature of asset recovery became evident during the tenth session of theCommission on Crime Prevention and Criminal Justice, in 2001, when it negotiated a draft resolution, which
later became Economic and Social Council resolution 2001/13. While maintaining the matter as one of the
key issues to be covered by the new Convention, the debate on the draft resolution produced an evolution of
the terminology employed to approach the question. The new resolution spoke of transfer of funds of illicit
origin, derived from acts of corruption, including the laundering of funds, and the return of such funds.
The Intergovernmental Expert Group met in Vienna from 21 to 30 July 2001 and recommended, bymeans of a draft resolution, terms of reference for the negotiation of the new convention regarding bothsubstance and procedure. The Commission approved the draft resolution at its resumed session in
September 2001 and, following approval also by the Economic and Social Council, the General Assembly
adopted it as resolution 56/260 on 31 January 2002.
In that resolution, the General Assembly decided that the Ad Hoc Committee established pursuant toresolution 55/61 should negotiate a broad and effective convention, which, subject to the final determinationof its title, should be referred to as the “United Nations Convention against Corruption”.
The General Assembly requested the Ad Hoc Committee, in developing the draft convention, to adopt acomprehensive and multidisciplinary approach and to consider, inter alia, the following indicative elements:
definitions; scope; protection of sovereignty; preventive measures; criminalization; sanctions and remedies;confiscation and seizure; jurisdiction; liability of legal persons; protection of witnesses and victims;
promoting and strengthening international cooperation; preventing and combating the transfer of funds ofillicit origin derived from acts of corruption, including the laundering of funds, and returning such funds;
technical assistance; collection, exchange and analysis of information; and mechanisms for monitoring
implementation.
The General Assembly also invited the Ad Hoc Committee to draw on the report of theIntergovernmental Open-Ended Expert Group, on the report of the Secretary-General on existing
international legal instruments, recommendations and other documents addressing corruption, as well as on
the relevant parts of the report of the Commission on Crime Prevention and Criminal Justice at its tenthsession, and in particular on paragraph 1 of Economic and Social Council resolution 2002/13 as resource
materials in the accomplishment of its tasks.

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The General Assembly requested the ad hoc committee to take into consideration existing international
legal instruments against corruption and, whenever relevant, the United Nations Convention against
Transnational Organized Crime.
The Assembly also decided that the Ad Hoc Committee should be convened in Vienna in 2002 and 2003,
as required, and should hold no fewer than three sessions of two weeks each per year and requested the Ad
Hoc committee to complete its work by the end of 2003 according to a schedule to be drawn up by its
bureau. Finally, the Assembly accepted with gratitude the offer of the Government of Argentina to host an
informal preparatory meeting of the Ad Hoc Committee established pursuant to resolution 55/61, prior to its
first session.
The Informal Preparatory Meeting took place in Buenos Aires from 4 to 7 December 2001. In preparation
for that meeting, CICP asked Governments to submit proposals they wished to make in relation with the
new convention. The purpose of the Informal Preparatory Meeting was to consolidate any proposals madeby Governments, in order to pave the way for the work of the Ad Hoc Committee. The meeting had before it
26 proposals, submitted by countries of all regions of the world. Some of these proposals contained full texts
for the draft convention, while others offered more general observations and comments regarding thecontent of the new instrument or the methodology of the negotiation process. The multitude and wealth ofthe proposals were evidence of the interest of countries from all regions and their willingness to be actively
engaged and involved in the negotiation process. These elements augured well for the comprehensivenessand quality of the final product of the negotiation process. They also offered a guarantee of the universal
nature of the new instrument, a key component of its effectiveness, acceptance and success. The Informal
Preparatory Meeting consolidated all textual proposals in a single document, which the Ad Hoc Committee
could use as the basis of its work.
The Ad Hoc Committee commanded the attention of Governments, international organizations and thecivil society throughout its work; and for good reason. Doubtless, its task was demanding: to deliver to theworld a broad, comprehensive, functional and effective international instrument to fight corruption. The
pressure was considerable: success would mean turning the page in international cooperation and theestablishment of new standards by which the international community will be measuring its performance incrucial sectors; failure would essentially condemn all relevant efforts for a considerable time.
The General Assembly gave the Ad Hoc Committee clear and broad terms of reference, and asked it tocomplete the negotiation process by the end of 2003. This deadline was doubly significant.
Firstly, it carried an important political message; the international community was intent upon showingthat it meant business. There was no room for drawn out negotiations, but the product was needed urgently.
Secondly, this deadline was to serve as yet another tangible proof that significant, groundbreaking newlegal instruments can be produced in the United Nations within a pre-determined and reasonable timeframe. The same goals had been achieved by the previous Ad Hoc Committee on the negotiation of theUnited Nations Convention against Transnational Organized Crime and its three Protocols, and there was no
reason why the positive experience could not be repeated
The principal strengths of the Ad Hoc Committee were: (a) the very good spirit prevailing among
delegations; (b) the experience those delegations had gained by negotiating the United Nations Convention
against Transnational Organized Crime; (c) a strong expanded bureau; and (d) a fully participatory process,manifested by high levels of attendance and a good mix of negotiators and practitioners making up
delegations.
The Ad Hoc Committee made every possible effort to comply with the mandate it received from theGeneral Assembly and develop a broad, effective and comprehensive convention. At the core of thenegotiating process was the desire of all delegations to find an appropriate balance in the new instrument, inorder to make sure that adequate and proportionate attention was devoted to prevention, criminalization,international cooperation and asset recovery.

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From the very beginning of its existence, the Ad Hoc Committee added one unwritten rule to its rules ofprocedure. All its members demonstrated that they would be guided by a spirit of cooperation,
understanding, flexibility and consideration for differing positions. That spirit was fundamental not only tothe achievement of consensus, but to the safeguarding of the quality of the instrument that it was entrustedwith developing. Indeed, the Ad Hoc Committee explored all avenues for reaching consensus, taking into
account the concerns of all States, but keeping a watchful eye at all times on certain key qualities of the newConvention. The Ad Hoc Committee wished to make sure that the new instrument would be truly universal,
functional, ratifiable and implementable.
Consensus in issues as complex as those covered by this Convention required certain key components.

First, good knowledge of the issues and an equally good understanding of the implications that provisionsof the draft Convention might have. The solutions that the Ad Hoc Committee would find for the various
provisions of the Convention could have implications for domestic regulatory regimes or for national
capacities to deal with particular aspects of the problem, or they could have implications for other provisionsof the new Convention and for the way it would operate as an instrument of international cooperation.
The detailed discussion that took place and the very balanced mixture of delegations, which wereenriched by practitioners and seasoned negotiators, were proof that that knowledge and understanding wereabundant in the Ad Hoc Committee.

Second, a good understanding of national positions and the concerns that drive them, coupled withsensitivity for these concerns and the desire to find ways to accommodate them. The new Convention
needed to heed all concerns if it aspired to be a universal instrument.
The extensive debate that the Ad Hoc Committee held, over three readings of the draft text, provided
every opportunity for all delegations to listen to each other and comprehend the reasons for each other’s
positions.

Third, and closely related to the second point above, a willingness to modify national positions andexplore every possibility of meeting each other in the middle of the road. It was of crucial importance to beinspired through and by the development of new international standards in order to bring about changes ormodifications at the national level, when those were necessary to improve international cooperation.
The Ad Hoc Committee began its work in January 2002. It held seven sessions and completed thenegotiations successfully on 1 October 2003. It is important to note that the Ad Hoc Committee was an
open-ended body and was consistently attended by a very high number of delegations (a total of over 130
delegations took part in the process).

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