Content

Gefion Schuler, Monitoring Procedures of the International Fight against Corruption in the Light of Public Law in:

Diana Schmidt-Pfister, Sebastian Wolf (Ed.)

International Anti-Corruption Regimes in Europe, page 105 - 122

Between Corruption, Integration, and Culture

1. Edition 2010, ISBN print: 978-3-8329-5846-6, ISBN online: 978-3-8452-2573-9, https://doi.org/10.5771/9783845225739-105

Series: Schriftenreihe des Arbeitskreises Europäische Integration e.V., vol. 70

Bibliographic information
105 Monitoring Procedures of the International Fight against Corruption in the Light of Public Law Gefion Schuler 1. Introduction Monitoring procedures are key instruments in the international fight against corruption. They are deployed by the Organisation for Economic Co-operation and Development (OECD), the Group of States against Corruption (GRECO), the Organization of American States (OAS), the African Union (AU) and the Anti-Corruption Network for Eastern Europe and Central Asia (ACN); the United Nations Office on Drugs and Crime (UNODC) is currently developing such a procedure. This paper focuses on the monitoring procedure of the OECD because it is the most elaborate of the different international institutions’ monitoring procedures to fight corruption. It has served and still serves other international institutions as a role model for the development of their monitoring procedures. In the course of monitoring procedures, the competent international organ composes state-specific reports that provide information on a particular state’s measures against corruption as researched via questionnaires and on-site visits. The international organ formulates state-specific recommendations with the aim of inducing national decision-makers to implement anticorruption measures based on their recommendations. In consequence of the OECD’s monitoring procedure, some of the measures taken by participating states were enacting legislation to improve the cooperation between prosecution and police authorities, expanding existing structures for cooperation and communication between national law enforcement agencies, introducing measures to improve the investigation and prosecution of acts of bribery, introducing training courses on the fight against corruption, launching compliance programmes and introducing ombudsmen (OECD Working Group on Bribery 2005: 5-36). In spite of the positive effects on the international fight against corruption, the monitoring procedures are questionable from a legitimacy point of view. The state-specific recommendations of the OECD’s monitoring procedure exceed the wording of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention; OECD 1997) and are thus not backed by the parliamentary ratified international treaty. Moreover, while monitoring procedures are characterised by a detailed legal framework, this framework only depicts particular aspects of monitoring procedures but not their specific mode of governance. In order to tackle these concerns, the objective of this contribution is to draft a public law framework for monitoring procedures and to conceptualise them dogmatically as a new international standard instrument. As such, legitimacy concerns 106 are discussed as legality issues (von Bogdandy/Dann/Goldmann 2008: 1380). The assessment of the legitimacy of each monitoring procedure must be based on legal standards. By conceptualising these procedures as an international standard instrument, their effectiveness is advanced due to the dual function of public law: i.e. to secure the legitimacy of public power, while enhancing its effectiveness (Schmidt- Aßmann 2006: 16-18). This dual function is perpetuated within the concept of standard instruments (Schmidt-Aßmann 1989: 535). The objective of drafting a public law framework for monitoring procedures is in keeping with current efforts to analyse the governance activities of international institutions that trigger legal and practical changes in the national sphere and that may have an impact on individual or collective freedom. The aim of these efforts is to conceptualise a legal foundation for these activities and to develop legal standards that meet current legitimacy expectations. To this end a public law perspective on international institutions’ governance activities has been proven valuable (von Bogdandy/Dann/Goldmann 2008: 1366- 1400). The objective of drafting a public law framework for the monitoring procedures employed in the international fight against corruption is pursued with the help of three theses. First, monitoring procedures are founded on a mode of governance also known as ‘governance by information’ (von Bogdandy/Goldmann 2008: 243). This mode of governance cannot be grasped by established legal standards. Second, the reports composed in the course of monitoring procedures can be conceptualised as acts of international public authority; monitoring procedures must therefore be conceptualised from a public law perspective. Standard instruments serve to conceptualise the public law perspective. Third, monitoring procedures can be conceptualised as a new international standard instrument named ‘national policy assessment’ (NPA). The definition and legal regime of NPA have hitherto been developed according to the OECD PISA study (von Bogdandy/Goldmann 2008: 241-298) and the OECD’s monitoring procedure to fight corruption (Schuler, forthcoming 2010). The sequence of this article and the affirmation of the theses mirrors the three steps of the development of a standard instrument (Schmidt-Aßmann 2006: 298-299). As a first step, the activity in question must be analysed comprehensively (2.). The governance perspective provides a valuable starting point for the analysis of activities of international institutions because it offers a comprehensive approach that brings to light informal institutional settings and activities, multi-layer aspects and the cooperation between the diverse international actors. The analysis by means of established legal principles and standards highlights the legal aspects of the activity and provides a legal view on the specific mode of governance. As a second and third step (4.), the defining elements of the standard instrument must be abstracted and the legal regime defined. The dogmatic foundations are presented after the empirical analysis of the monitoring procedures (3.). 107 2. Monitoring Procedures of the International Fight against Corruption The governance and the legal perspective are taken up in order to gain insights into monitoring procedures. The analysis is conducted using the example of the OECD’s monitoring procedure due to its elaborateness and prominence among monitoring procedures to fight corruption. 2.1 Governance by Information Monitoring procedures are based on governance by information, a mode of governance that is not founded on the adoption of legally binding instructions but that determines other actors by ‘shaping the cognitive framework of policy-making through the collection, processing and dissemination of information in the respective area’ (von Bogdandy/Goldmann 2008: 243) and by thereby defining or at least influencing that policy area. The aim of monitoring procedures is an improvement of the legal and practical fight against corruption of the assessed states based on the recommendations formulated in the reports (Pagani 2002: 4). The competent actors of the monitoring procedures pursue this aim by researching, evaluating and publishing information on the fight against corruption in participating states and by defining their measures in that policy area. 2.2 The Legal Framework of the Monitoring Procedures 2.2.1 Central Actors The responsible actor of the OECD’s monitoring procedure is the OECD Working Group on Bribery in International Business Transactions (OECD Working Group on Bribery), one of the six working groups of the Investment Committee which is assigned to the Directorate for Financial and Enterprise Affairs (DAF) in the OECD secretariat. The OECD Working Group on Bribery is composed of experts from the 30 OECD member states, eight states that have signed and ratified the OECD Anti- Bribery Convention without being member states of the OECD and regular observers from six international institutions that are active in the fight against corruption. Furthermore, a central role is played by the examination teams that carry out the on-site visits. They consist of one or two experts from the OECD secretariat and up to three experts from the participating states (OECD Working Group on Bribery 2001: Annex no. 6.1). 108 2.2.2 Competences A catalogue of competences is not included in the Convention on the Organisation of Economic Co-operation and Development (OECD Agreement); there is only a clause on the standard instruments of the OECD, the scope of which is defined by reference to the aims of the organisation (OECD 1960: Art. 5; Art. 1). The fight against corruption is not stipulated as an explicit aim of the OECD. It is nevertheless encompassed within the aim of the OECD ’to achieve the highest sustainable economic growth’ (OECD 1960: Art. 1 (a)), because corruption has an impeding and distorting effect on competition (Graf Lambsdorff 2007: 58), lowers the efficiency of production and has a destructive impact on a country’s economic system (Rose-Ackermann 2002: 1892). Moreover, the OECD’s monitoring procedure is based on various, detailed legal foundations. The central legal basis is contained in the Revised Recommendation of the Council on Combating Bribery in International Business Transactions (OECD Council 1997b: section VIII), which was complemented by the Decision of the Council concerning further Work on Combating Bribery in International Business Transactions (OECD Council 1997a). A general legal basis is included in Art. 12 OECD Anti-Bribery Convention. 2.2.3 Development and Implementation The states participating in the negotiations leading to the OECD Anti-Bribery Convention agreed to develop a procedure that ensures the effectiveness of the fight against corruption in each state and that aims at improving the legal and practical fight against corruption of the participating states (Bonucci 2007: 448-450; Conzelmann 2008). Art. 12 was included in the OECD Anti-Bribery Convention, stipulating a legal basis for such a mechanism. The OECD Working Group on Bribery conceptualised a monitoring procedure with two regular phases, a follow-up procedure and extraordinary measures, and it designed and published procedural guidelines that stipulate the distinct steps of the monitoring procedure in detail (OECD Working Group on Bribery 2006; OECD Working Group on Bribery 2001). In the first phase, the national legal situation is assessed. The aim of this phase is to induce the participating states to adapt their national law to the OECD Anti-Bribery Convention, the Revised Recommendation of the Council on Combating Bribery in International Business Transactions (OECD Council 1997b) and the Recommendation of the Council on the Tax Deductibility of Bribes to Foreign Public Officials (OECD Council 1996). In the second phase, the application of national anti-corruption laws and the institutional settings to fight corruption are assessed. This phase aims at inducing states to implement structural adjustments according to the recommendations of the OECD Working Group on Bribery. Following the phase-2 reports, the state’s progress is assessed in the follow-up procedure (OECD Working Group on Bribery 2006: IV E). The extraordinary measures are to be carried out in states that are continuously negatively assessed. The 109 most important of the extraordinary measures are the so-called bis-procedures that the OECD Working Group on Bribery can carry out in the first and in the second phase. The bis-procedures repeat the assessment of the preceding phase; the bisprocedure of the second phase includes another on-site visit by the examination team. Furthermore a state can be obliged to report on its anti-corruption measures at each session of the OECD Working Group on Bribery. This duty to report is distinct from the so-called tour de table exercise, where each state orally reports on the anticorruption measures it has recently taken. Finally, the OECD Working Group on Bribery may investigate by itself, e.g. by interviewing representatives of the particular state at the highest political level. Public announcements regarding the nonobservation of the recommendations are intended in this case (OECD Working Group on Bribery 2006: VIII C). The monitoring procedure is carried out in three steps: first, collection of data, second, evaluation of the data and composition of the reports, and third, adoption and publication of the reports. These steps apply to both phases, the follow-up procedure and the bis-procedures. Data is collected in the first and in the second phase of the monitoring procedure via standardised and state-specific questionnaires. In the second phase information is additionally collected during a one-week on-site visit in the assessed state (OECD Working Group on Bribery 2006: I B). The information is assessed in three readings of the OECD Working Group on Bribery (OECD Working Group on Bribery 2006: VI B; Annex no. 5 II). The final reports are adopted by a consensus of all states excluding the examined state (OECD Working Group on Bribery 2006: VI C). The reports are published on the internet and the adoption is announced by an OECD press release (OECD Working Group on Bribery 2006: VI C). 2.2.4 Accountability Accountability is referred to as the responsibility of an international institution to give reasoned account for the manner in which it exercises public authority (International Law Association 2004: 225-227; Grant/Keohane 2005: 29). The actors of the OECD’s monitoring procedure are not legally accountable. Politically, all OECD committees are bound by their duty to report to the next higher committee. The OECD Working Group on Bribery reports to the Investment Committee that in turn reports to the OECD Council, which can issue directives (OECD Council 1970: rule 23). The Working Group on Bribery is additionally obliged to report to the OECD Council on the progress of the monitoring procedure (OECD Working Group on Bribery 2001: no. 20). Other international institutions obtain insights into the negotiations, modes of operation and procedure of the OECD Working Group on Bribery through their observers. The knowledge gained permits them to politically call the Working Group on Bribery to account. If sensitive information is made public, the general public can also politically call the concerned OECD committee to ac- 110 count by exerting public pressure on the respective committee (Grant/Keohane 2005: 37). 2.2.5 Legal Effect Participation in the monitoring procedure is legally binding since the procedure rests on Art. 12 OECD Anti-Bribery Convention. However, the procedural guidelines that stipulate the course of action in detail are neither legally binding on the participating states, because only the OECD Council has the competence to adopt acts that bind the member states (OECD 1960: Art. 5, Art. 7 (1)), nor are they legally binding on the OECD Working Group on Bribery, because they are formulated as non-binding recommendations and an opposing will is not made explicit (Bast 2006: 306-308; Schermers/Blokker 2003: 756). While the procedure in detail is therefore not legally binding, the participating states are legally obliged to disclose information because refusal to disclose information would be tantamount to refusal to participate in the monitoring procedure as a whole and would conflict with the OECD Anti-Bribery Convention. The reports are not even legal instruments because they do not contain wording that expresses the intent of the OECD Working Group on Bribery to compose them as such. The recommendations for national decision-makers are formulated as normative expectations, but due to the lack of competence of the OECD Working Group on Bribery to adopt binding instruments they are not legally binding. 2.3 Conclusion of the Analysis of the Monitoring Procedures The above analysis depicts governance by information as a mode of governance of monitoring procedures. Using the example of the OECD’s monitoring procedure the analysis indicates that distinct legal aspects of monitoring procedures can be extracted via established legal parameters. However, the analysis points out that governance by information cannot be grasped by established legal parameters. The absence of legal standards raises legitimacy concerns, since the recommendations of the OECD Working Group on Bribery prompt a significant amount of change in the participating states without their parliamentary consent. The democratic rights of the citizens are thereby affected. The foregoing analysis thus substantiates the necessity of a legal conceptualisation of the monitoring procedures. 3. Dogmatic Foundations for the Legal Conceptualisation of Monitoring Procedures This section depicts the public law perspective and focuses on monitoring procedures. 111 The analysis reveals that the reports composed in the course of monitoring procedures can be conceptualised as acts of international public authority. To this end, standard instruments are valuable theoretical constructions. 3.1 The Public-Law Perspective The public law perspective is inspired by three approaches that seek to conceptualise global governance dogmatically (von Bogdandy/Dann/Goldmann 2008: 1390-1395). These are the constitutionalisation of international public law, approaches aimed at the abstraction of a global or international administrative law, and research on the law of international institutions. The value of the public law perspective for conceptualising acts of international institutions lies in the dual function of public law to limit public authority and to protect individual freedom while enabling public authority to be effectively exercised. These functions meet the needs of the international sphere. On the one hand, international institutions are important actors in the processing of international problems (Barnett/Finnemore 2004: 1). On the other hand, political freedom and democratic rights of citizens are affected by international institutions because the latter's competences have been expanded and the intransparency and informality of their actions have been accepted as necessary for their effectiveness (Klabbers 2005: 282). In order to ensure their legitimacy, the actions of international institutions must be dogmatically conceptualised from a public law perspective. 3.2 The Concept of International Public Authority Since public law unfolds its functions vis-à-vis public authority, a concept of international public authority must be defined. This must be a specifically international and a specifically legal concept of public authority (von Bogdandy/Goldmann 2008: 261- 264). It must be specifically international because power relations are much more direct at international level than at national level because there is no clear division of powers (Benvenisti 2005: 320-321). It must be specifically legal because the concept of national public authority is based on a sociological concept that equates public authority with the authority to issue legal orders (Weber 1925: 125). This concept is too narrow because international institutions not only trigger effects that are capable of affecting individual freedom through binding law but also by means of soft law and non-legal activities. Therefore, the authority aspect of international public authority encompasses legally binding activities of international institutions as well as non-binding, i.e. soft law and non-law law-based activities. Since those activities that do not affect individual freedom must be excluded from the concept of international public authority, it is essential that the activity provokes a minimum of impairment of individual freedom. Decisive for the existence of the public and internationality aspect of international public authority is that the activity is based on an international 112 legal basis which was adopted by legitimised holders of public authority with the aim of furthering the common good, i.e. usually a founding treaty of an international organisation. As an exception, those activities that do not rely on a public law basis but that nevertheless aim to further the common good also exhibit the public aspect of international public authority, notwithstanding their private character (von Bogdandy/Dann/Goldmann 2008: 1381-1385). 3.3 Monitoring Procedures as an Exercise of International Public Authority The OECD’s monitoring procedure exhibits the public and international aspect because it is based on norms concretising the OECD Agreement and it is attributable to the OECD. It features the authority aspect because it evokes legislative and practical modifications according to the recommendations formulated by the OECD Working Group on Bribery that exceed the wording of the parliamentary ratified OECD Anti- Bribery Convention. The OECD’s monitoring procedure determines the actions of national decision-makers and affects democratic rights of the citizens. The reports composed in the course of the monitoring procedure can thus be conceptualised as acts of international public authority. Since each exercise of public authority must be embedded in public law, monitoring procedures must be conceptualised from a public law perspective. 3.4 Standard Instruments to Conceptualise the Public Law Perspective Standard instruments provide for a flexible dogmatic matrix that not only captures legally binding activities but also law-based soft law and non-law activities (Goldmann 2008). Due to their systematising and recording functions, standard instruments perpetuate the central concern of public law, i.e. the protection of individual freedom while guaranteeing an effective problem-solving capacity (Schmidt- Aßmann 1989: 533-535). The admissibility of the development of new standard instruments in the international sphere is founded on the isolated consideration of an acting organ’s competences, on the one hand, and the standard instruments at its disposal to pursue public tasks, on the other hand (von Bogdandy/Bast/Arndt 2002: 81). 4. Monitoring Procedures in Light of the Standard Instrument ‘National Policy Assessment’ (NPA) In this section the defining elements and the elements of the legal regime of NPAs are shown. Subsequently a critique of NPAs is undertaken. Lastly, the issue of ‘information-collision’ is discussed. 113 4.1 The Defining Elements of National Policy Assessment The defining elements serve to identify the exercise of public authority to which the elements of the legal regime relate. They must be concrete enough to avoid being arbitrary. At the same time they must be abstract enough to include similar activities. The defining elements are abstracted from practice (Goldmann 2008: 1884-1890). The defining elements of NPAs are obtained from the analysis of monitoring procedures which was conducted in section (B) based on the example of the OECD’s monitoring procedure. Following each defining element, the monitoring procedures that display the element and therefore qualify as NPAs are examined. 4.1.1 Production of Information on National Policies The first defining element of NPAs is that information is produced through a comprehensive analysis of national policies and that information documents are composed (von Bogdandy/Goldmann 2008: 287). All monitoring procedures of the international fight against corruption produce information on national anti-corruption policies and draft information documents. 4.1.2 Assessment of the National Policies of another Public Actor The assessment must refer to the national policies of another public actor; a mere self-assessment does not constitute a NPA. The international institution is required to undertake an assessment of its own and adopt the information documents as its own. It is, however, not necessary for the international institution to research all of the information solely through its own experts. In the OECD’s and GRECO’s monitoring procedures the information is researched by the institutions’ experts and the information documents are attributable to the respective institution. In the OAS’s monitoring procedure the information is researched exclusively via questionnaires and then assessed by an OAS expert committee that composes information documents attributable to the OAS. In the AU’s monitoring procedure the information is collected by the participating state and submitted to the AU Advisory Board that undertakes an assessment and composes an information document that is attributable to the AU. 4.1.3 International Standards NPAs presuppose the existence of international standards that serve as a point of reference for the production, i.e. the collection and assessment of the information. The OAS’s and the AU’s monitoring procedures refer to an international treaty. 114 The monitoring procedure of the GRECO refers to all international instruments of the Council of Europe to fight corruption. The OECD’s monitoring procedure refers to an international treaty and to two recommendations of the OECD Council. 4.1.4 Claim to Objectiveness NPAs further presuppose a claim to the objectiveness of the information (von Bogdandy/Goldmann 2008: 287), e.g. by basing the information on empirical data. The information documents of the discussed monitoring procedures are all based on empirical data that is researched via questionnaires and on-site visits. 4.1.5 Existence of an Enforcement Mechanism NPA premises the existence of an enforcement mechanism (von Bogdandy/Goldmann 2008: 288). The enforcement mechanism ensures that the authority aspect of international public authority is fulfilled by requiring a certain effectiveness of the activity in question. A feature of the enforcement mechanism is that it is not triggered by legally binding commands, but by creating a situation for national decisionmakers in which they can only ignore the assessment of the international institution by accepting considerable political disadvantages. Regular repetition constitutes an enforcement mechanism because it exerts pressure on national decision-makers by giving them a timeframe in which they have to improve the performance of their countries and by disclosing non-observance of particular aspects to the general public. Extraordinary repetitions exert even greater pressure because they are only carried out in cases of continued negative assessment and it is easy to identify states in which an extraordinary repetition was carried out since corresponding information documents are posted on the same website as the regular information documents. The OECD’s and GRECO’s monitoring procedures provide for regular and extraordinary repetitions. The monitoring procedures of the OAS and the AU provide for regular repetitions. The formulation of the expectations addressed to national decision-makers constitutes another enforcement mechanism. If they are formulated directly through statespecific recommendations in information documents, they permit a comparison of the particular state’s measures before and after implementation of the monitoring procedure. If they are formulated indirectly in form of rankings, they suggest to the states at the bottom of the list that they follow the example of the states at the top. In the reports of the OECD’s, the GRECO’s and the OAS’s monitoring procedures, the expectations are formulated directly in form of state-specific recommendations that are included in the reports. 115 Finally, the publication of the information documents constitutes an enforcement mechanism. The publication exerts pressure on national decision-makers and it enables the media to take up the issue. The OECD and the OAS publish information documents on the respective organisation’s homepages. The information documents of the GRECO’s monitoring procedure are principally confidential and are only published with the explicit acceptance of the affected state. Voluntariness notwithstanding, this constitutes an enforcement mechanism since all information documents have so far been published. By contrast, the AU’s information documents are not published and since the annual repetitions do not generate enough pressure on national policy-makers, the AU’s monitoring procedure does not feature an enforcement mechanism and is therefore not a NPA. 4.1.6 Attributability to an International Institution Lastly, NPAs require that the activity is attributable to an international institution (von Bogdandy/Goldmann 2008: 288). This secures the public aspect of international public authority. The monitoring procedures of the OECD, the OAS, the GRECO and the AU are attributable to the respective institutions. In conclusion, the monitoring procedures of the OECD, the OAS and the GRECO fulfil the defining elements and are therefore NPAs. 4.2 The Legal Regime of National Policy Assessments The elements of the legal regime are those that are essential for the legitimacy and effectiveness of the standard instrument. Contrary to the defining elements, they are not abstracted from practice but obtained from theory (Goldmann 2008: 1900-1905). Their development involves multiple rounds of interchange between judiciary, jurisprudence and legislation (Schmidt-Aßmann 2006: 299). They must be improved through a comprehensive critique aimed at a legitimate and effective public authority (Goldmann 2008: 1900). If the elements of the legal regime are based on a legal foundation and can thus be understood as legal requirements, those activities of international institutions that fulfil the defining elements of NPAs and the elements of the legal regime are lawful. 4.2.1. Definition of the Legal Regime of National Policy Assessment 4.2.1.1 Mandate The requirement of a legal basis for all acts of public authority is one of the most fundamental mechanisms of public law (Grzeszick 2007: 36-37; von Bogdandy/ 116 Cassese/Huber forthcoming 2010). The existence of a mandate is therefore an essential element of the legal regime of a NPA (von Bogdandy/Goldmann 2008: 289). The mandate to implement a NPA can be included in the founding treaty of the international institution. However, in most cases, the founding treaty is not concrete enough to provide a basis for exercising international public authority. In these cases the NPA may be founded in subsequent norms. The legal basis of the OECD’s monitoring procedure is contained in a recommendation and a decision of the OECD Council and in the OECD Anti-Bribery Convention. 4.2.1.2 Right to Participation and Duty to Give Reason The right to participation must be accorded to the affected actors and international institutions have to state reasons for their expectations of national decision-makers. Participation rights and the duty to give reason are fundamental elements of the legitimacy of public authority; they are decisive in enabling affected actors to influence the procedure at an early stage, to inform themselves and make effective use of legal protection if necessary (International Law Association 2004: 230-231; Rossen- Stadtfeld 2008: 635). The assessed states are directly affected by the OECD’s monitoring procedure; their respective national civil societies are indirectly affected. The assessed states have the right to comment on the content of draft information documents in each of the three readings in the OECD Working Group on Bribery. Furthermore, the final information document is handed on to the affected state so that it is given the opportunity to consider the content and, if necessary, add comments. The state can demand that its comments be included in the final document (OECD Working Group on Bribery 2006: Annex 5 no. 8b, 13, 18; IV D 1). The civil society does not have participation rights during the procedure in the OECD Working Group on Bribery. However, representatives of civil society have the right to a panel during the on-site visits in order to state their opinion and to submit written comments (OECD Working Group on Bribery 2001: no. 28; OECD Working Group on Bribery 2006: V B). The duty to give reasons is fulfilled by the OECD Working Group on Bribery because the information documents outline the anti-corruption measures of each state in detail and the expectations addressed to national decision-makers are based on this information. 4.2.1.3 General Acceptance of International Standards The international standards that serve as a reference point for collection and evaluation must at least be accepted by the participating states. Their acceptance prevents an arbitrary assessment and is therefore essential for the legitimacy of NPAs. It is 117 essential for the effectiveness of NPAs because a common understanding of the standard of evaluation precludes uncertainties (Pagani 2002: 12). All states participating in the OECD’s monitoring procedure signed and ratified the OECD Anti-Bribery Convention and accepted the soft law instruments. 4.2.1.4 Adherence to Scientific Standards and Representative Expertise The information must be researched and assessed by representative expertise according to scientific standards, i.e. by experts representing the different cultures of the participating states (von Bogdandy/Goldmann 2008: 290; Pagani 2002: 13). The legitimacy and the effectiveness of NPAs are enhanced by guaranteeing that the information is researched and assessed accurately and objectively. Moreover, information that is presented enables national decision-makers to precisely locate national policy deficits and to develop and implement the necessary measures. It is essential that experts represent all participating states as well as the diverging cultural and political interests involved because expert knowledge depends to a certain degree on the expert’s culture of origin. The OECD Working Group on Bribery and the examination teams are composed of experts that represent the participating states. 4.2.1.5 Accessibility of the Assessment Finally, the assessments must be made publicly available (von Bogdandy/Goldmann 2008: 290). The universal and free accessibility of the assessments furthers the legitimacy and the effectiveness of NPAs by enabling the general public to examine the data, to voice criticism and to exert pressure on decision-makers. All information documents of the OECD’s monitoring procedure are published on the homepage of the OECD. 4.2.1.6 National Ownership The principle of national ownership characterises the legal regime of NPAs (von Bogdandy/Goldmann 2008: 291). National ownership indicates that the states are in control of parts of the international organisation’s activity (OECD Development Assistance Committee 2006: 147). In the case of monitoring procedures, this applies to the collection, processing and dissemination of information. National ownership is essential for the legitimacy and the effectiveness of NPAs as it ensures that national particularities are included at an early stage of the procedure, that the international committee bases its assessment and state-specific requirements on the particular national situation, and that the concerned state takes responsibility for the implementa- 118 tion of the NPA. Notwithstanding the relevance of national ownership in the legal regime of NPAs, it must be considered that international institutions are based on the principle of autonomy at the same time (von Bogdandy 2008: 1929-1931). An adequate emphasis on each of these two principles must be found in the conceptualisation of an NPA (Conzelmann 2008: 38-40). In the OECD’s monitoring procedure national ownership and institutional autonomy have been brought into accord by allowing for the best possible realisation of scientific standards and representative expertise. While the participating states have a certain degree of freedom concerning the extent of the information disclosed, they are legally bound to disclose information and the OECD Working Group on Bribery can take measures to obtain more information. Furthermore, while the states have the right to submit comments on the draft information documents and to demand that their comments are included in the final documents, the OECD Working Group on Bribery remains in charge of their content. Finally, while the affected states enjoy broad discretion concerning their observance of the information documents, the OECD Working Group on Bribery has the possibility of implementing extraordinary procedures in order to induce compliance with its recommendations. 4.2.2. The Legal Bindingness of the Legal Regime In the nation state the Rechtsstaat places demands on the organisation and the procedures of public authority holders (Jouanjan 2007: 143-146; Loughlin 2007: 259-262; Schmidt-Aßmann 1995: 1026-1027); at international level another approach is necessary. The legal bindingness of the elements of the NPA’s legal regime can be anchored in the internal constitutionalisation of international institutions. The internal constitutionalisation aims to develop the international institution’s organisation and procedures in light of the values of constitutionalism by interpreting the often rudimentary requirements of the founding treaty in the light of fundamental international norms but also in the light of national requirements towards the acts of international institutions (von Bogdandy 2008: 1925). In that case the legal regime is to be understood as a concretisation of the principles of the founding treaty as developed through institutional practice. The statute of the respective international institution therefore serves as a valuable anchor for the legal bindingness of the elements of the NPA’s legal regime. 4.3. Critique of National Policy Assessment Critique is a fundamental element of the dogmatic conceptualisation of a standard instrument (Goldmann 2008: 1900). 119 4.3.1 Effectiveness due to Publicness NPAs are effective due to the publication of the information documents. By making the documents available to the public via the internet it is possible for civil society, supported by the media both domestically and internationally, to exert a considerable amount of pressure on national decision-makers to implement the recommendations of the OECD Working Group on Bribery. 4.3.2 Effectiveness due to State-specific Expectations NPAs gain effectiveness due to the state-specific recommendations for national decision-makers and the repeated and published assessments of their implementation. State-specific recommendations ensure that the particular need for action is identified and presented to the state. The published assessments make the extent to which each state has implemented the particular recommendations easily assessable. 4.3.3 Effectiveness due to Experts NPAs gain effectiveness due to the participation of experts because they ensure correct and objective analyses and recommendations. They also design recommendations in a way that they request the most necessary and suitable measures from national decision-makers. 4.3.4. Strengthening of the Executive in the National Arrangement of Competences The implementation of NPAs might lack sensibility towards the national arrangement of competences. The recommendations of the OECD Working Group on Bribery are directed towards the national executive, which is in turn responsible for their implementation. The executive also exercises the right to participation and it regularly provides information. The legislative or judicative are seldom concerned with NPAs. Depending on the area of politics concerned, NPAs can also lead to a shift in the federal organisation of the state because they are directed at the federal level, irrespective of the vertical distribution of competences (von Bogdandy/Goldmann 2008: 294-295). 4.3.5 National Ownership and Effectiveness NPAs gain legitimacy and effectiveness due to national ownership, however, only provided that national ownership and institutional autonomy are brought into accord, 120 while adhering to scientific standards and representative expertise in the best possible way. Any discord between these elements has negative impacts on the credibility and effectiveness of NPAs. If the element of national ownership is too strong in the conception of a NPA, this can lead to an inadequate impact of the state on the collection and processing of information, which would negatively influence the composition of the information document and thus the impact of the NPA as a whole (Pagani 2002: 13). 4.4 Legal Impact of National Policy Assessment on other International Institutions Since the information documents themselves do not have a normative impact, a collision of norms can be ruled out. However, there is a possibility of an ‘informationcollision’, i.e. a situation in which one state is confronted with diverging information on the results of its policies (von Bogdandy/Goldmann 2008: 296). This problem is countervailed by comprehensive cooperation in the field of anti-corruption. The organs of the international institutions that carry out monitoring procedures to fight corruption communicate widely in order to harmonise their activities (OECD Working Group on Bribery 2001: II General Issue 6, III no. 27). The reason for cooperating and for preventing ‘information-collisions’ should be a legal one; the principle of cooperation in the law of international institutions provides a legal basis. 5. Conclusion NPAs are deployed by the OECD, the OAS and the GRECO. The AU, the UNODC and the ACN also developed monitoring procedures, but their procedures do not (yet) fulfil the defining elements of NPAs. Even though NPAs are at the initial stage of their development, they promise to provide valuable services towards improving national activities in the international fight against corruption. They call national governments to account and they compile specific requirements that aim at effectively combating corruption. The NPA is thus a suitable standard instrument of international institutions for effecting uniform, future-oriented and profound improvements in the fight against corruption. Bibliography Barnett, M./Finnemore, M. (2004) Rules for the World. International Organizations in Global Politics, Ithaca, N.Y. Bast, J. (2006) Grundbegriffe der Handlungsformen der EU, Heidelberg. Benvenisti, E. (2005) The Interplay between Actors as a Determination of the Evolution of Administrative Law in International Institutions, Law and Contemporary Problems 68, 319-340. 121 Bogdandy, A. von (2008) General Principles of International Public Authority: Sketching a Research Field, German Law Journal 9, 1909-1938. Bogdandy, A. von/Bast, J./Arndt, F. (2002) Handlungsformen im Unionsrecht – Empirische Analysen und dogmatische Strukturen in einem vermeintlichen Dschungel, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 62, 77-161. Bogdandy, A. von/Cassese, S./Huber, P. M. (ed.) (forthcoming 2010) Ius Publicum Europaeum vol. IV - Grundzüge des staatlichen Verwaltungsrechts, Heidelberg. Bogdandy, A. von/Dann, P./Goldmann, M. (2008) Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, German Law Journal 9, 1375-1400. Bogdandy, A. von/Goldmann, M. (2008) The Exercise of International Public Authority through National Policy Assessment – The OECD's PISA Policy as a Paradigm for a New International Standard Instrument, International Organizations Law Review 5, 241-298. Bonucci, N. (2007) Article 12. Monitoring and Follow-up, in Pieth, M./Low, A. L./Cullen, P. J. (eds.) The OECD Convention on Bribery. A Commentary on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 21 November 1997, Cambridge, 445-475. Conzelmann, T. (2008) Beyond the Carrot and the Stick, State Reporting Procedures in the World Trade Organization and the Organization for Economic Cooperation and Development, in Joachim, J./Reinalda, B./Verbeek, B. (eds.) International Organizations and Implementation – Enforcers, Managers, Authorities?, London/New York, 35-47. Goldmann, M. (2008) Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority, German Law Journal 9, 1865-1908. Graf Lambsdorff, J. (2007) The Institutional Economics of Corruption and Reform, Theory, Evidence and Policy, Cambridge. Grant, R. W./Keohane, R. O. (2005) Accountability and Abuses of Power in World Politics, American Political Science Review 99, 29-43. Grzeszick, B. (2007) Art. 20, in Maunz, T./Dürig, G. (ed.), Grundgesetz, Kommentar, vol. III - Art. 17-27, München, Art. 20, VI. International Law Association, Berlin Conference (2004) Accountability of International Organisations, International Organizations Law Review 1, 221-293. Jouanjan, O. (2007) Frankreich, in Bogdandy, A. von/Cruz Villalón, P./Huber, P. M. (eds.) Ius Publicum Europaeum, vol. I, Grundlagen und Grundzüge staatlichen Verfassungsrechts, Heidelberg, 87-150. Klabbers, J. (2005) Two Concepts of International Organizations, International Organizations Law Review 2, 277-293. Loughlin, M. (2007) Großbritannien, in Bogdandy, A. von/Cruz Villalón, P./Huber, P. M. (eds.) Ius Publicum Europaeum, vol. I, Grundlagen und Grundzüge staatlichen Verfassungsrechts, Heidelberg, 217-271. Pagani, F. (2002) Peer Review: A Tool for Co-operation and Change, OECD Directorate for Legal Affairs, SG/LEG(2002)1. Rose-Ackermann, S. (2002) “Grand“ Corruption and the Ethics of Global Business, Journal of Banking & Finance 26, 1889-1918. Rossen-Stadtfeld, H. (2008) Beteiligung, Partizipation und Öffentlichkeit, in Hoffmann-Riem, W./Schmidt-Aßmann, E./Voßkuhle A. (eds.), Grundlagen des Verwaltungsrechts, vol. II, Informationsordnung, Verwaltungsverfahren, Handlungsformen, München, 625-688. 122 Schermers, H. G./Blokker, N. M. (2003) International Institutional Law – Unity within Diversity, 4th ed., Leiden. Schmidt-Aßmann, E. (2006) Das allgemeine Verwaltungsrecht als Ordnungsidee – Grundlagen und Aufgaben der verwaltungsrechtlichen Systembildung, 2nd ed., Berlin/Heidelberg/New York. Schmidt-Aßmann, E. (1995) Der Rechtsstaat, in Isensee, J./Kirchhof, P. (eds.) Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. I, Historische Grundlagen, 2nd ed., Heidelberg, § 24. Schmidt-Aßmann, E. (1989) Die Lehre von den Rechtsformen des Verwaltungshandelns – Ihre Bedeutung im System des Verwaltungsrechts und für das verwaltungsrechtliche Denken der Gegenwart, Deutsches Verwaltungsblatt 11, 533-541. Schuler, G. (forthcoming 2010) “Politikbewertung“ als Handlungsform internationaler Institutionen – Das Beispiel der Korruptionsbekämpfung der OECD. Weber, M. (1925) Grundriss der Sozialökonomik, vol. I, 2nd ed., Tübingen. OECD-Documents OECD (1997) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 37 I.L.M. 1 (1998). OECD (1960) Convention on the Organisation of Economic Co-operation and Development, 888 U.N.T.S. 179, 14 December 1960. OECD Council (1997a) Decision of the Council concerning further Work on Combating Bribery in International Business Transactions, C(97)240/FINAL, 11 December 1997. OECD Council (1996) Recommendation of the Council on the Tax Deductibility of Bribes to Foreign Public Officials, C(96)27/FINAL, 17 April 1996. OECD Council (1997b) Revised Recommendation of the Council on Combating Bribery in International Business Transactions, C(97)123/FINAL, 23 May 1997. OECD Council (1970) Rules of Procedure of the Organisation, adopted on 30th September 1961 OECD/C(61)21 and amended since that date by the Resolutions of the Council of 24th July 1962 C(62)115(Final), 24th July 1965 C(65)87 and 29th September 1970 C(70)133(Final). OECD Development Assistance Committee (2006) Guidelines and Reference Series: Applying Strategic Environmental Assessment: Good Practice Guidance for Development Co-operation, http://www.oecd.org/dataoecd/4/21/37353858.pdf. OECD Working Group on Bribery in International Business Transactions (2005) Germany: Phase 2. Follow-Up Report on the Implementation of the Phase 2 Recommendations on the Application of the Convention and the 1997 Recommendation on Combating Bribery of Foreign Public Officials in International Business Transactions, http://www.oecd.org/dataoecd/8/44/35927070.pdf. OECD Working Group on Bribery in International Business Transactions (2001) Procedure for Self- and Mutual Evaluation of Implementation of the Convention and the Revised Recommendation – Phase 2, DAFFE/IME/BR(99)33/FINAL, 1 March 2001. OECD Working Group on Bribery in International Business Transactions (2006) Revised Guidelines for Phase 2 Reviews, DAF/INV/BR/WD(2005)1/REV3, 27 February 2006.

Chapter Preview

References

Zusammenfassung

In dieser aktuellen und interdisziplinären Analyse der internationalen Antikorruptionsregime werden mit Schwerpunkt Europa ausgewählte staatenübergreifende Bemühungen der letzten Jahre zur Eindämmung der Korruption einer kritischen Bestandsaufnahme unterzogen. Die Beiträge stammen aus der Politikwissenschaft, Rechtswissenschaft, Soziologie, Wirtschaftswissenschaft und von PraktikerInnen.

Der Band vereinigt sowohl qualitative als auch quantitative Analysen und berücksichtigt darüber hinaus kulturwissenschaftliche Fragestellungen im Rahmen seiner vier Teile: „The European Dimension“, „Political and Legal Instruments“, „Culture, Perceptions, and Experiences” sowie „Practitioners’ Perspectives”.

Mit Beiträgen von: Tanja A. Börzel, Donald Bowser, Ben Elers, Angelos Giannakopoulos, Åse B. Grødeland, Leslie Holmes, Georg Huber-Grabenwarter, Anja P. Jakobi, Anne Lugon-Moulin, Bryane Michael, Holger Moroff, Yasemin Pamuk, Diana Schmidt-Pfister, Gefion Schuler, Andreas Stahn, Dirk Tänzler, Michael H. Wiehen und Sebastian Wolf.