Content

Anja P. Jakobi, E pluribus unum? The Global Anti-Corruption Agenda and its Different International Regimes in:

Diana Schmidt-Pfister, Sebastian Wolf (Ed.)

International Anti-Corruption Regimes in Europe, page 85 - 105

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/10.5771/9783845225739-85

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

Bibliographic information
Part II Political and Legal Instruments 87 E pluribus unum? The Global Anti-Corruption Agenda and its Different International Regimes Anja P. Jakobi Corruption is today widely acknowledged on international agendas as an illegitimate activity that requires criminalisation and sanctioning. It is thus a recent example of a ‘global prohibition regime’ (Nadelmann 1990). Basically, corruption can concern politicians, bureaucracy, parties and many other political or economic actors. Different forms of corruption exist, ranging from kickbacks to embezzlement, bribes and others. While the bribery of foreign officials was tax-deductible in some Organisation for Economic Co-operation and Development (OECD) countries until the 1990s, corruption was increasingly seen as problematic and was placed high on international agendas. Several international organisations initiated anti-corruption efforts, which differ in the scope of their regulations, their focus and instruments or compliance rates. While addressing effective ways of global governance in the field of corruption, I compare five international anti-corruption activities, namely those of the United Nations (UN), the World Bank, the OECD, as well as the European Union (EU) and the Council of Europe. Together, these activities represent a large variety of global and regional regulations to which European countries are exposed, given the close embedding of many countries in international affairs. In comparing the different regimes, I particularly focus on three different aspects, namely the development and content of regulations, the instruments established to ensure compliance, and compliance itself. As we can see, international anti-corruption regimes require close monitoring of different political and economic sectors to be successfully implemented. However, the variety of existent approaches can also create the problem of duplicating efforts – threatening the development of one global and comprehensive anti-corruption regime. The chapter is structured as follows: I first present a brief introduction to regime analysis, with a particular focus on anti-corruption efforts. I then analyse the main activities against corruption in the UN context, the World Bank, the OECD and specifically in Europe (both the Council of Europe and the EU). These anti-corruption measures differ according to what they cover and criminalise, the instruments they apply and the countries concerned. I conclude with a comparison of the different regulations and instruments, while also assessing the impact and difficulties linked to the different organisations and their modus operandi linked to corruption. Methods applied for this comparative analysis are document analysis and descriptive statistics. 88 1. Global Governance and International Regimes To analyse the different forms of anti-corruption measures, I rely on categories invented in regime theory, a strand of research that is generally concerned with explanations for the creation and effectiveness of regimes (e.g. Breitmeier et al. 2006: 6- 9). I conceptualise regimes as being one part of global governance, whose aim is to solve international political problems without a global and central political authority. Research on regimes conceives, for example, political motives and institutional design as decisive in creating and maintaining effective regimes (Levy et al. 1995: 290- 308). Regime theories distinguish different stages in regime creation – agenda formation, operationalisation, implementation –, and causal factors are seen as differing across them (Young 1998; Mitchell 2002). For successful regime implementation, several conditions can be listed, namely a favourable contractual environment, flexible compliance management, capacity building for weaker regime parties as well as awareness-creation within state parties that are not yet supporters of the regime (Zürn 1997: 57, based on Haas et al. 1993). For the study of international anticorruption, I adhere to the idea of different phases, paying particular attention to implementation as a major factor for compliance and effectiveness. In terms of regime analysis, this article thus mostly covers the design and monitoring of the regimes and is enriched by a background analysis of their genesis and effects. The main focus of this chapter is placed on legal or ‘hard’ instruments, but anticorruption regimes are usually more comprehensive. For example, international organisations also use awareness raising campaigns or provide technical assistance to countries. An example would be the campaign of the United Nations Office on Drugs and Crime (UNODC) ’Your No Counts’ (UNODC 2009a). Moreover, civil society – in particular Transparency International – has contributed largely to shaping the anti-corruption agenda. Moreover, private business is also involved in anticorruption efforts and international police cooperation has focussed on it. All these activities are an important part of global regime building and moral persuasion, but they do not replace the need for formal rules. Only intergovernmental agreements can apply both hard and soft instruments for the global governance of corruption (compare Wolf 2007). In that sense, governments as well as international organisations remain crucial actors with regard to setting up and implementing policies, and they also remain the first addressees of non-governmental actors for pushing anticorruption efforts. 2. The United Nations and Corruption The central anti-corruption instrument of the UN is the Convention Against Corruption (UNCAC), which was decided in 2003. Its development is closely linked to the negotiations on the UN Convention Against Transnational Organised Crime which already contained a paragraph on corruption (UNCTOC 2000: Art 8, 9). The 1997 established UNODC administers both conventions and also runs a global programme 89 against corruption, including the promotion of judicial integrity, country projects and handbooks (UNODC 2003). The convention against corruption was negotiated and drafted in the years 2000 to 2003. Its purpose is to prevent and combat corrupt practices and illicit funds transfer, to criminalise and repress corrupt practices, to stimulate international cooperation and technical assistance, to return assets to the country of origin and to promote integrity in public governance (Argandona 2007: 485-486). Compared to the other legal instruments presented in this paper, the UN Convention applies a broad understanding of corruption, encompassing not only bribery, but also other forms like kickbacks or skimming (Webb 2005: 210). Moreover, it extends existing regulations by also criminalising the extortion of public officials (Argandona 2007: 490). The convention contains six substantial chapters, consisting of preventive measures, criminalisation and law enforcement, international cooperation, asset recovery, technical assistance and information exchange as well as mechanisms for implementation (UNCAC 2003). The convention has been supported by a quick signature and a global ratification process: After 97 signatures in December 2003, 140 states had signed the convention by the end of 2005. Subsequent ratifications reached an annual peak with 41 ratifications in 2006, and add up to 138 ratifications (see figure 1).1 The European commission signed and ratified the Convention, as did many EU countries and those of central and eastern Europe (39 countries): In total, 36 European countries have signed the convention and 32 have ratified it.2 Figure 1: Signatures and ratifications of the UNCAC Source: UNODC, own calculations. 1 Not all states that signed the Convention have ratified it yet, while not all states that ratified it also signed it. In total, 163 states either signed or ratified it. References to these and all other figures refer to data available in September 2009, if not indicated otherwise. 2 Non-signatories to the convention are Georgia, Montenegro and Slovenia. The Czech Republic, Germany, Ireland, Italy, Liechtenstein, Switzerland, and Ukraine have not yet ratified the Convention. 0 20 40 60 80 100 120 140 160 2003 2004 2005 2006 2007 2008 2009 Cumulated Signatures Cumulated Ratifications 90 Notwithstanding its quick ratification, the convention has its limits both with regard to substance and procedure: Not all corrupt practices need to be criminalised domestically (Argandona 2007: 490-491) and the convention covers the criminalisation of private-to-public corruption only. It does not contain any regulations on party financing, a widely debated issue in the negotiation process (Webb 2005). This is particularly crucial given the strong international tendency of outsourcing government services, making private-to-private corruption a likely event (Hall 1999). The major procedural shortcoming, however, is the implementation of the convention: Other international organisations, such as the OECD or the Council of Europe, already had experience with extensive monitoring mechanisms when the Convention was adopted, but it was not possible to reach a consensus on strong instruments (Argandona 2007: 490-491). During the negotiations, some states proposed a strong monitoring mechanism, including a periodical review of implementation or regional bodies of oversight. However, the final version only implements a conference of the state parties which is free to develop a review mechanism – if it considers such to be necessary (Webb 2005: 220-222). Arguments against a strong review process have been mixed: Developing countries feared being subjected to conditions that they cannot fulfil, while some developed countries were concerned that monitoring efforts of other international organisations were merely doubled (Heineman/Heimann 2006). The conference of the parties established some guidelines for the review process in 2006, stating for example that the instrument should be transparent and efficient, should not result in any ranking of the countries, and should enable the sharing of best-practices (UNODC 2009b). The conference delegated the development of the monitoring procedure to a working group which is still developing the formal review mechanism; current proposals include a peer assessment. Compared to other organisations in this paper, UN instruments for compliance to anti-corruption are thus yet the weakest, despite the fact that the convention is legally binding. 3. The World Bank and Corruption As a financial institution, the World Bank’s3 approach and instruments against corruption differs largely from the UN convention. The Bank has three main fields of operation – lending, policy advice, research – and activities against corruption concern all these areas, ranging from internal Bank measures to obligations of the recipient country, policy advice and guidance as well as publications on corruption. In Europe, the Bank is generally active in central and eastern European countries, which usually represent middle-income countries that have transformed from com- 3 The World Bank consists of two institutions, namely the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). The World Bank Group encompasses three additional institutions. In this paper, I mainly focus on IBRD and partly on the IDA, which are the institutions mostly concerned with anti-corruption activities. 91 munism to market economies (World Bank 2009a). The Bank has not always been a strong actor against corruption. Former World Bank director Peter Eigen unsuccessfully tried to convince the Bank to pursue an overt anti-corruption approach, before he left the Bank and founded Transparency International in 1993, a non-governmental organisation that continuously emphasised the need for anti-corruption measures (e.g. Wang/Rosenau 2001). The World Bank first officially promoted anti-corruption measures with an opening statement of president Wolfensohn in 1996, calling to ‘fight the cancer of corruption’ (World Bank 2000b: 1). Its initial activities still involved a discussion on whether and how the Bank actually has any mandate to pursue anti-corruption efforts, and emphasis was laid on tackling corruption as obstacle to development, while not implying political or moral statements (World Bank 1997: 23-5, 50). From the beginning, the World Bank identified four areas of activity linked to its anticorruption strategy: a) prevention of fraud and corruption within Bank-financed projects; b) supporting countries that request Bank advice in reducing corruption; c) including questions on corruption in country assessments, project designs and lending decisions; and d) supporting other international efforts to reduce corruption (World Bank 1997: 3; 2000b: 2). Prevention measures concern both external partners and internal practices (Wolfensohn 1998). In order to better control of monetary flows, the Bank in 1997 implemented monitoring systems used in other lending institutes and surveyed smaller procurement contracts by external auditors (World Bank 2000b: 3, 13-14). A manager for Business Ethics and Integrity was appointed in 1998 and became responsible for implementing standards of business ethics in the World Bank (World Bank 2000b: 18). Since 2001, the Bank has made public information on firms and individuals that were found to be involved in corrupt or fraudulent practices (see box 1). This mechanism is a public naming and shaming of the firms and it represents a novel instrument to raise anti-corruption awareness within the business sector. Box 1: Firms and individuals ineligible for World Bank projects Listing of Ineligible Firms and Individuals 124 firms or individuals are listed (of 25 countries of origin) 8.3 years is the medium period of temporary ineligibility 80 are permanently ineligible Reasons (multiple reasons possible) 44 Procurement Guidelines 1.15(a)(i): corrupt practice 91 Procurement Guidelines 1.15(a)(ii): fraudulent practice 4 Procurement Guidelines 1.14(a)(iii): collusive practice 29 Consultant Guidelines 1.25 (a)(i): corrupt practice 15 Consultant Guidelines 1.25 (a)(ii): fraudulent practice Source: World Bank (2009b), June (2009), own calculations. 92 In 2001, the Department for Integrity was established, which includes investigatory competencies for discovering corruption and monitoring internal and external activities in the search for fraud and corrupt practices. The process of establishing this department as well as its activities did not go smoothly (Volcker et al. 2007: 7- 8): Under president Wolfowitz, dissent over the work of the department and its relations to the operative departments led to major internal tensions within the Bank (Weismann 2006). This resulted in decreasing efficiency in fighting corruption, including tensions with borrowing countries (Volcker et al. 2007: 7-8). In 2007, an external panel reviewed the institutional design for dealing with corruption and suggested the implementation of a vice-director for institutional integrity, visibly making the fight against corruption an important and cross-sectoral issue. In June 2008, the first vice-president of internal integrity was appointed, and other reform proposals were implemented subsequently. Moreover, country offices are now supported by a consultative unit, so that they can pursue minor investigations autonomously and provide a more decentralised approach to fighting corruption. A second pillar of the Bank’s strategy against corruption is support of countries that request assistance. The Bank here applies analytical tools, in particular reviews of the public sector on institutions and governance, on public expenditure reviews, procurement processes and financial accountability within the country (World Bank 2000b: 21-27). Moreover, the Bank has established bilateral programmes with countries to implement public sector reforms and anti-bribery measures, including exchange with media and the public. The Bank also developed a governance and public sector strategy which includes new forms of lending to reform the public sector (World Bank 2000b: 28-36). Third, corruption was established as one issue in country assessments and analyses related to lending decisions. For bank staff, assessing corruption implied a shift away from focusing on economic performance only. Corruption was to be made an explicit topic in lending decisions, the project design and management and the lending instruments applied, whenever a country analysis showed that development might be affected by patterns of corruption (World Bank 1997: 50-53). External project partners are also analysed with regard to whether or not they apply corrupt practices. Moreover, additional staff and further education for staff was required internally at the Bank to change the practices of analysis and lending with a view to corruption (World Bank 1997: 53-57; 2000b: 40). In 1999, the IDA began to include governance as a criterion for lending (World Bank 2000b: 37).4 The Bank, finally, has cooperated with other international and regional organisations active in fighting corruption. These include other international development banks, international organisations presented in this paper, as well as the International Monetary Fund, the Organisation of American States, Interpol, non-governmental 4 Nonetheless, critics also point to the fact that staff has mixed motives with regard to anticorruption: Since career progress is usually made through loan-giving, a project manager also has an interest in not finding out about corrupt practices in projects, since disclosure could affect her or his progress in the institution (Weismann 2006). 93 organisations like Transparency International and business firms. The Bank has participated as an observer in meetings of the OECD working group on bribery and in the Multidisciplinary Group of Corruption the Council of Europe. It has also disseminated its anti-corruption perspective on various international meetings (World Bank 2000b: 43-48). Moreover, the international financial institutions established a common task force against corruption in 2006. The aim of this taskforce was the development of a harmonised strategy of the lending institutions with regard to corruption. Among other items, common definitions of prohibited practices were developed, intensified information exchange was decided and mutual support in enforcement was envisaged (International Financial Institutions Anti-Corruption Task Force 2006). In 2007, the World Bank initiated a ‘Governance and Anticorruption Strategy’, aimed to be a comprehensive measure for tackling governance, corruption, development and poverty reduction. This strategy operates on three levels – in the projects, in the country and on the global level – and therewith unifies different pillars of the anti-corruption strategy, including the development of indicators. However, this initiative not only concerns anti-corruption, but focuses on governance in general, thus unifying different strands of discussion in the Bank (World Bank 2007; 2006). In sum, the Bank has applied a variety of instruments and a comprehensive approach to fighting corruption: Internal compliance to anti-corruption measures as well as external contracts and projects are monitored. Country analyses have subsequently included a focus on anti-corruption, and by enlarging the focus to governance questions, a country’s public sector can be reformed comprehensively. The bank thus developed a comprehensive approach to fighting corruption in projects as well as in the countries as a whole. Additionally, the Bank frequently publishes on corruption issues, elaborating on conditions for corruption as well as on strategies against it (e.g. Gray et al. 2004; Anderson/Gray 2006; World Bank 2000a). It thus disseminates best practices and raises awareness for corruption and counterstrategies in countries and projects. 4. The OECD and Corruption The history of fighting corruption in the OECD context is strongly linked to the influence of the United States (US). In 1977, the US had first incepted the Foreign Corrupt Practices Act (FCPA) that criminalised the bribery of public officials abroad. For a long time, OECD members could only agree on non-binding guidelines for multinational enterprises in 1976 (Androulakis 2007: 191-192). Strong pressure from the US, supported by rising concerns in the media and by non-governmental actors in Europe, eventually led to the non-binding 1994 Recommendation on Bribery in International Business Transactions (Abbott/Snidal 2002: 164-165; OECD 1994). Targeted at deterring, preventing and combating bribery, the recommendation called for changes in member states’ law, tax legislation, accounting requirements, banking or public procurement (OECD 1997: 5). 94 A revision in 1997 expanded the recommendations scope and clout, then covering six main fields: the criminalisation of bribery of foreign public officials; the tax deductibility of bribes; accounting requirements, auditing and control practices; public procurement regulations; international legal and related cooperation (OECD Recommendation 1997). The recommendation also put the several initiatives carried out in the framework of the Committee of Fiscal Affairs and the Development Assistant Committee under a common roof (OECD 1997: 10). It further contained follow-up arrangements, such as the exchange of information by the OECD, examination of feasibility of expanding the coverage of the recommendation and regular self- and peer-reviews of the members (OECD Recommendation 1997: Article VIII). In December 1997, the OECD council agreed on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which is one of only six OECD conventions to day. The convention aims at criminalising the bribery of foreign public officials for natural and legal persons, it fixes possible sanctions comparable to bribing domestic officials and including deprivation of liberty, and it strives for cooperation in enforcement, legal assistance and extradition. The Convention was quickly ratified by OECD members and some other countries. Together with the recommendation it created ‘an international process, with follow up mechanisms and outreach capability, a dimension reaching far beyond the traditional one nation unilateralism’ (Pieth 2002: 130). So far, 38 countries have ratified the convention, and implemented corresponding legislations, and 26 of them are European countries (OECD 2009).5 Figure 2: Signatures and ratifications of the OECD Convention Source: OECD (2009), own calculations. From 1998 on, all OECD countries have changed their legislation to comply with the convention, and even the US, the country that initiated the debate on bribery 5 Some ratifying countries had implemented legislation first. The year of ratification refers to the year when the ratification instrument was deposited at the OECD secretariat. 0 10 20 30 40 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Number of Countries ratifying Number of Ratifying Countries w ith corresponding Legislation 95 based on its FCPA, amended its national laws to align itself with the international regulation (Pieth 2002: 130). Nonetheless, compliance to parts of the convention is not necessarily guaranteed. For example, in 2008 the OECD issued statements on Estonia, Luxembourg and Turkey due to partial non-compliance. Countries were called to change legislation or increase awareness concerning bribery abroad (OECD 2008b; 2008c; 2008d). All signatory countries need to be members of the Working Group against Bribery, which was established in 1994 with the first recommendation.6 The group consists of national representatives who meet four to five times a year. At such meetings, developments in the sector are presented (‘tour de table’) and reports of peer reviews are presented, discussed and adopted (OECD 2008a: 10, 18-19, 25). The review process is done by the secretariat and two signatory countries; overall it has different stages and proceeds over several years: The first phase is targeted at delivering a survey on the extent to which a country already meets the Convention’s criteria and in which areas policy changes should be initiated. A questionnaire is sent to the country, and additional information on legislation, regulations and country’s activities against bribery are requested. The country’s reply is evaluated by the secretariat and two reviewing countries, which are members of the working group. Afterwards, a first report is drafted, presented and discussed at the working group meeting. The second phase is concerned with reviewing the weaknesses identified in Phase 1, including questionnaires, research and a one-week study visit to the country by the peer reviewers and the OECD secretariat. During the visits, stakeholders of antibribery policies are consulted, ranging from police to prosecutors, government officials, business and civil society. After the visit, a second report is drafted, and later discussed and adopted in the working group, including recommendations to the country. One year after adoption of this report, the country is required to give an oral statement in the working group on the extent to which it has implemented these recommendations, followed by a written report a further year later, and a second oral report a further year after. The focus of the reports becomes narrower over time, since they are increasingly targeted at identified problems only (OECD 2008a: 18- 22). The usual process ends at this stage. However, in case countries do defer from the Convention, a second Phase 2 review, also including a visit or even formal statements that the country is non-compliant, can be scheduled – the so-called ‘Phase 2 bis review’ (OECD 2008a: 22-24). Evaluation reports are public, including recommendations in case the review revealed weaknesses. In total, the Convention has led to 150 investigations in the first ten years of its existence, and 60 individuals or companies have been convicted for committing bribery (OECD 2008a: 9). The working group has also developed typologies for fighting bribery, such as reports on the different stages in which corruption may occur or the role of specific actors in the bribery process. The group has also established contacts to anti-corruption 6 Membership is also obligatory for non-signatory countries which plan to sign the convention. They are subject to an initial screening by a questionnaire that requests information concerning legal regulations with regard to bribery (OECD 2004). 96 actors world-wide and across different regions, ranging from collaboration with the UN to regional bodies or development banks (OECD 2008a: 30-33). At the end of 2009, the working group decided to start with Phase 3 reviews in 2010. It discusses the continuation of existent and the implementation of new measures for strengthening the evaluation procedure, also in the context of finished Phase 2 reviews. Summarising OECD activities, we can state that the organisation has become a central forum to disseminate the idea that corruption is wrong, supported by a closely monitored convention. The OECD has established a strong peer review mechanism to ensure compliance, monitoring and the coordination of national policy developments. The mechanism also provides substantial guidance to measures aimed at fighting corruption. 6. Anti-Corruption in European International Organisations Anti-corruption efforts that specifically focus on the European countries have been established by two different international institutions, the Council of Europe as well as the European Union. I will deal with them subsequently in this section, beginning with the Council of Europe as the first mover in this field. The first activities of the Council of Europe began in 1994 with the Malta conference that recommended several measures against corruption, including an international convention. As one of the first steps, the Committee of Ministers adopted a Programme of Action against corruption in 1996, which became one of the organisation’s priorities. The fight against corruption is conceptualised broadly and accompanied by comprehensive measures, tackling several reasons for and forms of corruption, including different instruments and strict monitoring. In the following years, the organisation established the ‘20 guiding principles for the fight against corruption’, among issues dealing with prevention, media freedom, and codes of conduct for elected representatives. The organisation also established a model code of conduct for public officials in 2000, as well as some complementary initiatives, inter alia targeted at organised crime and corruption and partly in collaboration with the EU (De Vel/Csonka 2002: 361-367). In 2003, a recommendation was adopted that concerned corruption in the context of political parties and their financing (Council of Europe 2003c). Between 1994 and 1998, working groups developed two conventions, one related to criminal law adopted in 1998 and opened for signature in 1999 and another one to civil law which was adopted and opened for signature in 1999 (Council of Europe 1999b, 1999c). Both conventions are open to non-member states, and only participation in the monitoring process is strictly required (De Vel/Csonka 2002: 364-365). 97 Box 2: Coverage of the Council of Europe Criminal Law Convention Criminalisation of ▪ active bribery of domestic public officials ▪ passive bribery of domestic public officials ▪ bribery of members of domestic public assemblies ▪ bribery of foreign public officials ▪ bribery of members of foreign public assemblies ▪ active bribery in the private sector ▪ passive bribery in the private sector ▪ bribery of officials of international organisations ▪ bribery of members of international parliamentary assemblies ▪ bribery of judges and officials of international courts ▪ trading of influence ▪ money laundering ▪ account offences ▪ participatory acts Source: own account. The Criminal Law Convention is currently ratified by 41 countries (Council of Europe 2009b). It deals with substantive and procedural law matters linked to corruption. It mainly covers bribery, but applies to a large group of individuals who could commit active or passive bribery (Council of Europe 1999a: 2-15; see also Council of Europe 1999b; Webb 2005: 198-199; De Vel/Csonka 2002: 368-380). Besides public officials the convention also covers officials of international organisations or international courts, as well as the private sector (see box 2). The Convention also includes regulations on support for witnesses, on international cooperation or the facilitation of evidence gathering (Council of Europe 1999a). In the negotiations for the convention, several other activities linked to corruption were discussed – like insider trading, illicit enrichment buying and selling of votes – which were postponed to be renegotiated by the working group on the convention. Subsequent discussions showed that most of them could be solved by existing regulations or could be negotiated after having monitoring results of the conventions (Council of Europe 2003b: §§ 4-7). An additional protocol to the Convention later covered bribery of domestic and foreign arbitrators and jurors (Council of Europe 2003a). The Civil Law Convention was negotiated in parallel to the Criminal Law Convention. It entered into force in 2003 and has currently been ratified by 33 countries (Council of Europe 2009a). It only covers bribery and comparable crimes, but applies to private as well as public sector cases (Webb 2005: 199-200). It has two substantial chapters, one regarding measures to be taken at the national level and another on international cooperation and monitoring. In particular, it deals with ‘the definition of corruption, compensation for damage, liability, contributory negligence, limitation periods, the validity of contracts, the protection of employees, accounts and audits, the acquisition of evidence, interim measures, international cooperation and 98 monitoring’ (Council of Europe 1999c: § 25). The Convention is not self-executing, which means that it is not automatically transferred to national law, but is subject to translation to the different national backgrounds. National regulations can thus differ with regard to penalties or procedures or, in case the national system already contained comparable regulations, no policy change is necessary at all (Council of Europe 1999c: §§ 23, 24, 39). Both conventions share one common instrument for the monitoring of implementation, namely the Group of States against Corruption (GRECO). GRECO was established some months before the criminal law convention in 1998 and is open to members and non-members of the Council of Europe. Currently, 45 European countries and the United States of America – signatory to the criminal law convention – are members. Through mutual evaluation and peer pressure, GRECO monitors the implementation of the conventions as well as the pursuit of the guiding principles against corruption (Council of Europe 1999b: §§ 15-18). It ‘provides a flexible, dynamic and efficient mechanism to ensure compliance with undertakings in the field of corruption. It defines a master-type procedure which can be adapted to the different instruments under review’ (De Vel/Csonka 2002: 363). The work is divided into common evaluation rounds, in which all members are evaluated with a view to a specific aspect linked to corruption – leading to recommendations for improvement – and a compliance procedure in which the implementation of these recommendations is assessed (GRECO 2009b; Eser/Kubiciel 2005: 13-17). Until today, GRECO has finished two evaluation rounds, the third started in 2007 and is still ongoing (GRE- CO 2009a). On the whole, the procedure is comparable to the monitoring process of the OECD. Many members of the European Union are signatories to one of the Council of Europe’s conventions and GRECO. The European Union itself has not established comparable comprehensive legal instruments and has a rather restricted approach to which forms of corruption are actually covered, mostly concerning European institutions, public officials or its financial interests. Corruption gained disreputable prominence in the Union when the Santer Commission resigned in 1999 due to corrupt practices of Commissioner Edith Crésson. Misuse of European funds and subsidies is a common theme and in 2009 the EU commission cut and froze EU subsidies to Bulgaria and Romania due to non-effective anti-corruption policies and practices (Financial Times Deutschland 2009; Spiegel 2008). Already in the 1970s, the initial discussions on European anti-corruption policies took place, but remained without further consequences (Androulakis 2007: 282-283). Since the mid-1990s, however, the European Union has implemented a series of regulations targeted at fighting fraud and related corruption. These different measures were adopted in a piecemeal approach, each having been decided as soon as a consensus on a regulation could be found (Androulakis 2007: 284). Over time, the relationship between corruption and organised crime became more prominent, for example in the Tampere European Council, the Millennium Strategy on the Prevention and Control of Organised Crime or the directive on money laundering (European Commission 2003: 3-4, 10). Also the link between corruption and good governance 99 has become increasingly strong in European policies towards new member states and neighbours (see Börzel/Pamuk/Stahn, in this volume). In 1995, the Union adopted the Convention on the Protection of the European Communities’ Financial Interests, supplemented by protocols in 1996 and 1997, of which the former explicitly deals with corruption (Webb 2005: 201; Androulakis 2007: 285). Later in 1997, a convention against corruption of officials of the Community and member states was adopted, which covered mainly bribery and was only related to officials (Webb 2005: 201-202). This convention took a broader approach to criminalise corruption and did not restrict itself to putting the financial interests of the community centre stage (Androulakis 2007: 286). In 2003, a communication of the Commission on corruption summed up several European and international measures. The Commission called on member states that were not yet part of GRECO, the OECD convention, and other activities to join these anti-corruption efforts as soon as possible. Given the multiple other activities, the Commission considered ‘a separate EU anti-corruption evaluation and monitoring mechanism [as] inappropriate, because this would run against the Commission’s general conviction that unnecessary duplication efforts should be avoided’ (European Commission 2003: 9). This statement, however, stands or falls with the involvement of the members in these other forums, and in case of reluctant participation, the Commission announced its own evaluating mechanism. Article K of the treaty also mentions corruption as one of the central crimes that should be combated in the European area of freedom, security and justice (Androulakis 2007: 286). Since 1998, a joint action based on article K has tackled corruption in the private sector and placed an emphasis on prevention (Webb 2005: 201). In 2003, it was suspended by a new joint action, which broadened the approach to corruption by not referring to harms to the European community but against corruption in general (Androulakis 2007: 286). In sum, however, critical observers claim that – also in comparison to other organisations, ‘…the EU makes bold statements in nonbinding instruments, but drafts narrow and specific legal initiatives’ (Webb 2005: 201). Besides these regulatory initiatives, the Union has also put in place institutions concerned with fighting corruption. The most prominent is the European Anti-Fraud Office (OLAF) which was established in 1999 to investigate fraud and corruption related to financial interests of the European Union (Neuhann 2005: 86-135). OLAF had been preceded by the Unit for the Co-Ordination of Fraud Prevention, which was established in 1987 but whose coordination activities faced massive criticism, even if partly caused by very reluctant national support (Pujas 2003). Other bodies that deal with corruption are EUROPOL – the European police organisation – and EURO- JUST, a judicial cooperation network. Both organisations’ mandates include organised crime and its corruption activities (European Commission 2003: 10) In sum, the two European organisations differ in the extent to which they establish legal instruments against corruption. The Council of Europe has established wideranging legal instruments against corruption, covering different forms and different groups involved in corrupt practices and enforced by a strong monitoring mecha- 100 nism. In contrast, the EU has invented minor instruments without such monitoring measures, but this reluctance is partly substantiated by the desire to avoid the duplication of established procedures. 7. Comparison and Conclusion The chapter has presented different international anti-corruption efforts targeted at countries within and beyond Europe. As the most universal instrument, the UN set up its convention in 2003, which covers several corrupt practices, but so far without strong instruments to ensure compliance. The World Bank has set up anti-corruption guidelines linked to its project financing, to its internal administration and research as well as to support existing initiatives of other international organisations. So far, this has led to new criteria for lending, as well as to the exclusion of firms that do not fulfil anti-corruption guidelines. The World Bank not only fought corruption in the countries, but also put anti-corruption efforts centre stage in the organisation itself, which led to tensions between departments and among staff, shedding light on how difficult it can be to transfer anti-corruption efforts from theory to organisational practice. The OECD has been one of the first movers in the field of anti-corruption, establishing a strong instrument in 1997. Its regulation only covers business bribes paid in foreign countries – representing a rather narrow approach to corruption – but it has also put in place a strong review mechanism that monitors not only formal compliance but also enforcement practices. In Europe, the Council of Europe has set up the most comprehensive approach to criminalise different forms of corruption, in different countries and related to different groups. The conventions are also open to non-members of the organisation, and with GRECO, it has also put in place a strong review instrument. The European Union, in contrast, so far has pursued a narrower approach, which is also based on the fact that many of its member states are already part of one or more international anti-corruption efforts. As the chapter shows, the implementation of anti-corruption efforts is crucially linked to adequate monitoring efforts. Only strict monitoring can shed light on differences between law in the books and law in practice, and on whether target groups of anti-corruption efforts – in particular business – take these international measures seriously. For this purpose, international organisations have introduced strong review mechanisms as well as technical assistance, so that compliance is both enabled and surveyed. There is nonetheless an important caveat to be named: The importance of corruption on international agendas and the different activities have led to the establishment of several regimes. As this chapter shows, these regimes are not incompatible with each other, but rather complementary. However, in both the UN and EU context concerns have risen as to the extent to which existing efforts will be duplicated when introducing a further set of monitoring instruments. For many European countries, the high number of international agreements means that the more seriously these countries take the fight against corruption and the more they try to comply with these initiatives, the more they are subjected to diverse, but comparable review procedures. 101 European countries may be reviewed simultaneously by the UNCAC, the OECD convention and both conventions of the Council of Europe, while explaining its anticorruption efforts also in its interactions with the World Bank. One could argue that this diversity of procedures is not really necessary and can even hamper the effort to establish adequate monitoring procedure, fearing the resources needed to fulfil related expectations. A possible way out could be to recognise at least a part of the monitoring procedures that other organisations undertake in a given country, thus making sure that no country or organisations perceives strong review mechanisms as an obstacle only because another serious monitoring effort already exists. With a view to regime theory, we can thus say that the rise of corruption on the international agenda was a quick and comprehensive process, but it also led to a multitude of different international regimes. These regimes share a common goal, but are not yet unified in their scope and instruments, so that it still might be a little bit too early to speak of one regime. A closer linkage of different global efforts and their monitoring might be useful, and would also allow us to focus on the states which are not yet subjected to efficient anti-corruption control. Also, given the large number of international initiatives, it is now up to the countries to actually implement the different international norms and to survey their consequences in practice. Besides corruption indices already in place, in-depth country studies, case studies of enterprises and businesses as well as value surveys could be useful components of more detailed assessments in the future. Bibliography Abbott, K. W./Snidal, D. (2002) Values and Interests: International Legalization in the Fight Against Corruption, Journal of Legal Studies 31, 141-178. Anderson, J. H. /Gray, C. W. (2006) Anticorruption in Transition 3. Who is succeeding... and why?, Washington. Androulakis, I. N. (2007) Die Globalisierung der Korruptionsbekämpfung, Baden-Baden. Argandona, A. (2007) The United Nations Convention against Corruption and its Impact on International Companies, Journal of Business Ethics 74, 481-496. Breitmeier, H./Young, O. R./Zürn, M. (2006) Analyzing International Environmental Regimes. From Case Study to Database, Cambridge and London. Council of Europe (1999a) Criminal Law Convention on Corruption, http://conventions.coe.int/ Treaty/EN/Treaties/Html/173.htm. Council of Europe (1999b) Explanatory Report on the Criminal Law Convention on Corruption, http://conventions.coe.int/Treaty/en/Reports/Html/173.htm. Council of Europe (1999c) Explanatory Report to the Civil Law Convention Against Corruption, http://conventions.coe.int/Treaty/en/Reports/Html/174.htm. Council of Europe (2003a) Additional Protocol to the Criminal Law Convention on Corruption, http://conventions.coe.int/Treaty/en/Treaties/Html/191.htm. Council of Europe (2003b) Explanatory Report on the Additional Protocol to the Criminal Law Convention on Corruption, http://conventions.coe.int/Treaty/en/Reports/Html/191.htm. 102 Council of Europe (2003c) Recommendation On Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns, https://wcd.coe.int/ViewDoc.jsp?id=2183&Site= CM&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75. Council of Europe (2009a) Signatures and Ratification of the Civil Law Convention against Corruption, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=174&CM=8&DF=23/ 09/2009&CL=ENG. Council of Europe (2009b) Signatures and Ratifications of the Criminal Law Convention against Corruption, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=173&CM=8&DF= 23/09/2009&CL=ENG. De Vel, G./Csonka, P. (2002) The Council of Europe Activities against Corruption, in Fijnaut, C./Huberts, L. (eds.) Corruption, Integrity and Law Enforcement. The Hague/London/New York, 361-380. Eser, A./Kubiciel, M. (2005) Institutions against Corruption. A Comparative Study of the National Anti-Corruption Strategies reflected by GRECO's first evaluation round, Baden-Baden. European Commission (2003) Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee on a Comprehensive EU Policy Against Corruption, COM (2003) 317 final. Financial Times Deutschland (2009) Bukarest bremst Kampf gegen Korruption, http://www.ftd.de/ politik/europa/:Justiz-Bukarest-bremst-Kampf-gegen-Korruption/472764. html. Gray, C./Hellmann, J./Ryterman, R. (2004) Anticorruption in Transition 2. Corruption in Enterprise-State Interactions in Europe and Central Asia 1999-2002, Washington. GRECO (2009a) GRECO Evaluations, http://www.coe.int/t/dghl/monitoring/greco/evaluations/in dex_en.asp. GRECO (2009b) How does GRECO work?, http://www.coe.int/t/dghl/monitoring/greco/general/ 4.%20How%20does%20GRECO%20work_en.asp. Haas, P. M./Keohane, R. O./Levy, M. (1993) Institutions for Earth. Sources of Effective International Environmental Protection, Cambridge. Hall, D. (1999) Privatisation, multinationals and corruption, Development in Practice 9, 539-556. Heineman, B./Heimann, F. (2006) The long war against corruption, Foreign Affairs 85, 75-86. International Financial Institutions Anti-Corruption Task Force (2006) Uniform Framework for preventing and combating fraud and corruption, http://siteresources.worldbank.org/INTDOII/Resources/FinalIFITaskForceFramework&Gdlines.pdf. Levy, M. A./Young, O. R./Zürn, M. (1995) The Study of International Regimes, European Journal of International Relations 1, 267-330. Mitchell, R. B. (2002) International Environment, in Carlsnaes, W./Risse, T./Simmons, B. (eds.) Handbook of International Relations, London/Thousand Oaks/New Delhi, 500-516. Nadelmann, E. A. (1990) Global Prohibition Regimes: The Evolution of Norms in International Society, International Organization 44, 479-526. Neuhann, F. (2005) Im Schatten der Integration. OLAF und die Bekämpfung von Korruption in der Europäischen Union, Baden-Baden. OECD (1994) Recommendation of the Council on Bribery in International Business Transactions. C (94)75/Final. OECD (1997) OECD actions to fight corruption, Paris. OECD (2004) Questionnaire to Countries seeking Participation in the Working Group on Bribery in International Business Transactions and Accession to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (DAFFE/IME/BR/ WD(2004)9), Paris. 103 OECD (2008a) OECD Working Group on Bribery. Annual Report, Paris.. OECD (2008b) Estonia needs strong measures to address very low awareness of foreign bribery, says OECD, http://www.oecd.org/document/20/0,3343,en_2649_34487_40938708_1_1_1_1,00. html. OECD (2008c) OECD questions Turkey's implementation of the OECD Anti-Bribery Convention, http://www.oecd.org/document/61/0,3343,en_2649_34855_39859069_1_1_1_1,00.html. OECD (2008d) OECD urges Argentina to improve capacity to enforce the Anti-Bribery Convention, http://www.oecd.org/document/62/0,3343,en_2649_34487_40938494_1_1_1_1,00. html. OECD (2009) OECD Convention against Bribery of Foreign Officials in International Business Transactions. Ratification Status as of March 2009, http://www.oecd.org/dataoecd/59/13/40272 933.pdf. OECD Recommendation (1997) Revised Recommendation of the Council on Combating Bribery in International Business Transactions Paris, OECD. Pieth, M. (2002) International efforts to combat corruption, in Huber, B. (ed.) Combating Corruption in the European Union, Köln,129-135. Pujas, V. (2003) The European Anti-Fraud Office (OLAF): a European policy to fight against economic and financial fraud?, Journal of European Public Policy 10, 778-797. Spiegel (2008) EU-Kommission streicht Bulgarien Hilfen in Millionenhöhe, http://www.spiegel.de/ politik/ausland/0,1518,592707,00.html. UNCAC (2003) UN Convention against Corruption. UNCTOC (2000) UN Convention against Transnational Organized Crime. UNODC (2003) Global Programmes, Vienna. UNODC (2009a) Your No Counts, http://www.unodc.org/yournocounts/. UNODC (2009b) Conference of the State Parties to the Convention Against Corruption. Resolutions of First Meeting, http://www.unodc.org/unodc/en/treaties/CAC/CAC-COSP-session1-reso lutions.html. Volcker, P. A./Gaviria, G./Githongo, J./Heineman, B. W./Van Gerven, W./Verecker, J. (2007) Independent Panel Review of the World Bank Group Department of Institutional Integrity, Washington. Wang, H. Y./Rosenau, J. N. (2001) Transparency International and corruption as an issue of global governance, Global Governance 7, 25-49. Webb, P. (2005) The United Nations Convention Against Corruption - Global achievement or missed opportunity?, Journal of International Economic Law 8, 191-229. Weismann, S. R. (2006) Wolfowitz Corruption Drive Rattles World Bank. New York Times, 14. September 2006, http://www.nytimes.com/2006/09/14/business/14wolf.html?pagewanted=1. Wolf, S. (2007) Der Beitrag supranationaler und internationaler Organisationen zur Korruptionsbekämpfung in den Mitgliedstaaten, Speyerer Forschungsberichte 253, Speyer. Wolfensohn, J. D. (1998) World Bank Group Procedures for Handling Allegations of Fraud and Corruption, in Aguilar, M. A./Gill, J. B. S./Pino, L. (eds.) Preventing Fraud and Corruption in World Bank Projects. A Guide for Staff, Washington, 45-47. World Bank (1997) Helping Countries Combating Corruption: The Role of the World Bank, Washington. World Bank (2000a) Anti-Corruption in Transition. A Contribution to the Policy Debate, Washington. World Bank (2000b) Helping Countries Combat Corruption. Progress at the World Bank since 1997, Washington. 104 World Bank (2006) Strengthening Bank Group Engagement on Governance and Anticorruption, Washington. World Bank (2007) Implementation Plan for Strengthening World Bank Group Engagement on Governance and Anti-Corruption, Washington. World Bank (2009a) Countries in Europe and Central Asia, http://go.worldbank.org/I14NAZYG X0. World Bank (2009b) World Bank Listing of Ineligible Firms. Fraud and Corruption, www.worldbank.org/debarr. Young, O. R. (1998) Creating Regimes. Arctic Accords and International Governance, Ithaca/London. Zürn, M. (1997) “Positives Regieren“ jenseits des Nationalstaates. Zur Implementation internationaler Umweltregime, Zeitschrift für Internationale Beziehungen 4, 41-68. 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

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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.