The Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC)

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: 31 December 2024 | Viewed by 50712

Special Issue Editor

Department of Organizational Leadership, Policy, and Development, University of Minnesota, Minneapolis, MN 55455, USA
Interests: anticorruption; international public law; rule of law; international governance

Special Issue Information

Dear Colleagues,

Corruption and impunity continue to plague the best efforts of activists to fight poverty and violations of basic human rights. It is evident that international action is needed. However, the precise nature of the required response is unclear.

The Special Issue focuses on the strategy embodied in the Anticorruption Protocol of the United Nations Convention against Corruption (APUNCAC). APUNCAC seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption, then hand these cases to dedicated anticorruption courts insulated from domestic interference and manipulation.

We invite submissions from a diverse set of contributors to examine APUNCAC’s strategy and evaluate its potential for addressing the phenomenon of systemic corruption and impunity. Submissions may contribute broad analyses of APUNCAC’s potential impact in areas of the world where domestic law enforcement and domestic anticorruption agencies have been compromised. What would be the impact of establishing independent UN inspectors recruited, selected, and supported by the United Nations, provisions that would establish independent, untainted, dedicated anticorruption courts insulated from domestic interference and manipulation, and provisions where UN inspectors would hand cases to these dedicated anticorruption courts upon the conclusion of their anticorruption investigations?

We invite submissions that compare and contrast the APUNCAC strategy with alternative strategies to fight corruption and impunity, with a special emphasis on lessons learned from the implementation of the Rome Statute establishing an independent prosecutor and the International Criminal Court, the experiences of the Commission against Corruption and Impunity in Guatemala (CICIG), the experiences of Hong Kong’s Independent Commission against Corruption (ICAC), the experiences of Singapore’s Corrupt Practices Investigation Bureau (CPIB), and Georgia’s experiences in fighting corruption.

Submissions may choose to focus on a specific aspect of APUNCAC. Examples include the provisions to fight money laundering and the use of offshore havens to hide illicit funds, the provisions to establish independent, untainted dedicated anticorruption courts, the provisions that would allow private litigants to bring class action lawsuits on behalf of a group of citizens, or the provisions to ensure that the treaty is implemented as intended.

Of special interest are submissions from judges and prosecutors familiar with the challenges of prosecuting cases of corruption. What lessons may be drawn regarding the viability of the APUNCAC strategy?

Finally, much attention has focused on the possibility of establishing an International Anti-Corruption Court (IACC), modeled on the International Criminal Court. Is the APUNCAC strategy complementary to the proposal for an IACC? Would this combination be more effective and synergistic?

The Special Issue will contribute to scholarship in the fields of anticorruption, international public law, the rule of law, and international governance, with a focus on the potential of international law as a social institution that could be adapted to fight corruption and impunity.

For more information, including access to the text of APUNCAC and related publications, please visit the APUNCAC website: http://stopglobalcorruption.com

Prof. Dr. Stuart S. Yeh
Guest Editor

Manuscript Submission Information

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Keywords

  • public international law
  • rule of law
  • international governance
  • international justice
  • corruption
  • anticorruption
  • human rights
  • financial crime
  • offshore banking

Published Papers (10 papers)

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Research

133 pages, 3381 KiB  
Article
The Anticorruption Protocol to the United Nations Convention against Corruption Beneficial Owner Rule
Laws 2023, 12(6), 86; https://doi.org/10.3390/laws12060086 - 24 Oct 2023
Viewed by 2041
Abstract
To fight corruption, money laundering, and organized crime, a proposed APUNCAC Beneficial Owner Rule would require financial service personnel to obtain and submit certification by the true beneficial owner when covered funds are transacted in amounts exceeding USD 3000. The strategy would trap [...] Read more.
To fight corruption, money laundering, and organized crime, a proposed APUNCAC Beneficial Owner Rule would require financial service personnel to obtain and submit certification by the true beneficial owner when covered funds are transacted in amounts exceeding USD 3000. The strategy would trap front men into false statements, create a transaction-level record of assertions by front men that can be tested by a prosecutor, eliminate loopholes that allow criminals to escape prosecution in offshore havens, not require proof of a predicate crime or the illicit nature of funds, trigger a chain of witness cooperation, fight organized crime using a domino strategy, and be accomplished via a relatively simple change in domestic laws. Analysis suggests (1) the required technology exists; (2) transaction friction would be minimal; and (3) that the implementation of the Rule is feasible and practical, both operationally and from a legal standpoint, suggesting that the proposed Rule offers a promising strategy to fight organized crime. Full article
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25 pages, 333 KiB  
Article
Analysing Obstacles and Challenges in Fighting Corruption in Cases of Illegal Investments
Laws 2022, 11(4), 59; https://doi.org/10.3390/laws11040059 - 27 Jul 2022
Cited by 1 | Viewed by 3787
Abstract
Due to existing shortcomings in the system, the suitability and effectiveness of the international investment arbitration regime in addressing corrupt practices in international transactions and investment projects has been frequently questioned. The current legal and regulatory regime presumes that there is a level [...] Read more.
Due to existing shortcomings in the system, the suitability and effectiveness of the international investment arbitration regime in addressing corrupt practices in international transactions and investment projects has been frequently questioned. The current legal and regulatory regime presumes that there is a level playing field, i.e., that the parties to an arbitration have equal access to information regarding corrupt actions. However, in practice, bringing claims of corruption in international investment fora meets various obstacles such as evidentiary hurdles and the lack of a specific arbitrators’ mandate. Hence, the focus of this article is on addressing gaps in the international investment arbitration regime dealing with corruption cases. There is increasing concern that the international legal and regulatory regime is inadequate and contains gaps that permit multinational firms to engage in illegal acts involving corruption. Against this backdrop, the main issue that arises is how the international community should respond. This article reviews the gaps in the international investment arbitration regime and then identifies two broad strategies to address the issue of accountability. The first strategy would be to build on and strengthen the existing international investment arbitration regime, which would imply its re-engineering. A second strategy would be to establish a regime providing a new forum and an avenue for dedicated international criminal investigators to be paired with dedicated anticorruption courts that would handle criminal complaints. The Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) represents an example of the second strategy. The APUNCAC is a model convention that calls for the implementation of a system comprising dedicated international criminal investigators and dedicated anticorruption courts, in addition to a system where plaintiffs could pursue civil class actions and seek treble damages. The APUNCAC represents a more radical strategy for addressing corruption on the international level. In addition, the APUNCAC would also permit civil class actions seeking treble damages. Overall, the APUNCAC would offer claimants an opportunity to pursue their claims in a neutral forum. Full article
23 pages, 316 KiB  
Article
New OSCE Recommendations to Combat Corruption, Money Laundering, and the Financing of Terrorism
Laws 2022, 11(2), 23; https://doi.org/10.3390/laws11020023 - 11 Mar 2022
Cited by 2 | Viewed by 4014
Abstract
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage the laundering of illicit funds by attaching legal consequences to [...] Read more.
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage the laundering of illicit funds by attaching legal consequences to each failure to obtain and submit a required report of beneficial ownership, and each failure by a front man who poses as a beneficial owner to supply true information regarding the identity of the actual beneficial owner. This article is the fifth in a series of articles describing APUNCAC’s anti-money-laundering (AML) provisions and focus on beneficial owner transparency. The companion articles focus on issues regarding international jurisdiction and enforcement of APUNCAC regarding distant offshore personnel, illustrate the application of APUNCAC to specific money laundering channels, answer frequently asked questions (FAQ), and translate APUNCAC’s key provisions into proposed Financial Action Task Force (FATF) recommendations. This article explains how APUNCAC’s key provisions may be translated into Organization for Security and Co-operation in Europe (OSCE) recommendations, why the OSCE may be especially inclined to adopt the recommendations, and why support of this initiative might be the most promising path that could be adopted by the international community to combat corruption, money laundering, and the violations of human rights that are associated with these crimes. Full article
10 pages, 222 KiB  
Article
Stolen Wages, Corruption, and Selective Application of the Law: Is APUNCAC a Solution?
Laws 2022, 11(2), 18; https://doi.org/10.3390/laws11020018 - 03 Mar 2022
Viewed by 3218
Abstract
APUNCAC is a draft international convention designed to address systemic corruption, strengthening UNCAC’s provisions and adding mechanisms to make it more effective. ‘Corruption’ includes public officials abusing their powers. This article addresses an especially insidious form: when laws are created and applied to [...] Read more.
APUNCAC is a draft international convention designed to address systemic corruption, strengthening UNCAC’s provisions and adding mechanisms to make it more effective. ‘Corruption’ includes public officials abusing their powers. This article addresses an especially insidious form: when laws are created and applied to deny equal protection under the law. Ruling elites control the executive and parliament, to pass laws that selectively target and disadvantage a segment of the population. Our empirical data comes from a historical case, massive government-sanctioned wage theft from Western Australian Aboriginal workers between 1901 and 1972. We use these data to analyse how this kind of corruption works in practice, to evaluate APUNCAC’s measures and strategies, to see what specific measures might be used or modified, and where APUNCAC might need supplementing. We argue that Article 4(3) could have a major impact, especially supported by other Articles and processes, such as dedicated independent courts and strategic engagement with local courts. We evaluate two scenarios: The first scenario is prospective, assuming that APUNCAC is adopted. We evaluate the possible impact of APUNCAC in deterring future corruption involving selective application of the law. The second scenario is retrospective. We evaluate the possible support that APUNCAC might provide regarding court actions that seek redress for potential litigants, such as WA Aboriginal people who were injured in the past. Full article
20 pages, 427 KiB  
Article
New Financial Action Task Force Recommendations to Fight Corruption and Money Laundering
Laws 2022, 11(1), 8; https://doi.org/10.3390/laws11010008 - 17 Jan 2022
Cited by 4 | Viewed by 5194
Abstract
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage laundering of illicit funds by attaching legal consequences to each [...] Read more.
A model Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) would implement international requirements to report the beneficial ownership of funds involved in certain financial transactions. The purpose is to discourage laundering of illicit funds by attaching legal consequences to each failure to obtain and submit a required report of beneficial ownership, and each failure by a front man who poses as a beneficial owner to supply true information regarding the identity of the actual beneficial owner. This article is the fourth in a series of articles describing APUNCAC’s anti-money laundering (AML) provisions and focus on beneficial owner transparency. The companion articles focused on issues regarding international jurisdiction and enforcement of APUNCAC regarding distant offshore personnel and illustrated the application of APUNCAC to specific money laundering channels. This article translates APUNCAC’s key provisions into proposed Financial Action Task Force (FATF) recommendations, provides guidance regarding the necessary domestic conforming legislation, responds to frequently asked questions, and discusses the rationale for expansion of existing FATF recommendations. Full article
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27 pages, 892 KiB  
Article
The Challenges of Political Corruption in Australia, the Proposed Commonwealth Integrity Commission Bill (2020) and the Application of the APUNCAC
Laws 2022, 11(1), 7; https://doi.org/10.3390/laws11010007 - 13 Jan 2022
Cited by 6 | Viewed by 9653
Abstract
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) [...] Read more.
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) and addressing them against the proposed Commonwealth Integrity Commission (CIC) 2020 bill. It also discusses prevalent ‘grey’ areas of Australian politically-corrupt behavior where they interact with the private sector: the revolving door, political donations, and lobbying; and the state of Australia’s implementation of the OECD Anti-Bribery Convention. This article argues for their inclusion within the mandated scope of the proposed CIC. There is a need for strong legislation, both domestic and international, to fight corruption. This article then discusses the application of the provisions of the draft Anticorruption Protocol to the UN Convention Against Corruption (APUNCAC) that may apply with respect to these ‘grey’ issues, and how an International Anti-Corruption Court may provide another institutional model for Australia to follow. Finally, this article links these proposals to the 2021 UN General Assembly Special Session (UNGASS) on Corruption and the 9th Conference of States Parties on the UNCAC (COSP9). These events illustrate multilateral momentum and progress on anti-corruption. As a country that has historically supported the UN multilateral framework and its institutions, this article recommends a proactive approach for Australia so that the passing of a strong domestic anticorruption initiative will contribute to the adoption, and eventual ratification, of the APUNCAC. Full article
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17 pages, 344 KiB  
Article
Legal Mobilization and the Internationalization of Anticorruption Enforcement
Laws 2021, 10(4), 89; https://doi.org/10.3390/laws10040089 - 18 Nov 2021
Cited by 2 | Viewed by 4072
Abstract
This article contributes a critical study of efforts to internationalize the investigation and prosecution of corruption. The efforts to internationalize anticorruption enforcement are visible, for instance, in calls for an International Anticorruption Court (IACC) or an Anticorruption Protocol to the United Nations Convention [...] Read more.
This article contributes a critical study of efforts to internationalize the investigation and prosecution of corruption. The efforts to internationalize anticorruption enforcement are visible, for instance, in calls for an International Anticorruption Court (IACC) or an Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC). Inspired by a historical sociological perspective, this article investigates mobilizations around these initiatives, how mobilizers frame their engagement, and the ideological context in which they operate. In particular, the article zooms in on elites and how they push for states to internationalize the investigation and prosecution of corruption. This article situates the efforts of these elites in a larger historical context and compares the push to internationalize anticorruption enforcement to earlier legal mobilizations in the field of international criminal justice focused on atrocity crimes. Full article
13 pages, 302 KiB  
Article
Institutional Design, Prosecutorial Independence, and Accountability: Lessons from the International Commission against Impunity in Guatemala (CICIG)
Laws 2021, 10(3), 58; https://doi.org/10.3390/laws10030058 - 14 Jul 2021
Cited by 3 | Viewed by 4670
Abstract
In 2007 the International Commission against Impunity in Guatemala began working to support the work of the Public Prosecutor’s Office to investigate and prosecute cases of corruption. In this short article, I address three questions: What was the design of CICIG? What were [...] Read more.
In 2007 the International Commission against Impunity in Guatemala began working to support the work of the Public Prosecutor’s Office to investigate and prosecute cases of corruption. In this short article, I address three questions: What was the design of CICIG? What were its results? How did the institutional design contribute to the impact it had in Guatemala? To answer these questions, I first discuss the problem of impunity and provide an interdisciplinary review of the factors that impact when a state punishes crime. In the following section, I briefly explain the institutionalist framework that guides my analysis of the work of CICIG and explain the theoretical importance of institutional design in the functioning of prosecutorial organs. In the third section I describe the institutional design of CICIG, its impact, and its limitations. In this section I explain how key characteristics in its design made this international commission a creative solution against impunity in a context where prosecuting state agents for human rights violations or corruption was virtually impossible. I conclude this article highlighting some key lessons from CICIG on matters of institutional design. Full article
17 pages, 316 KiB  
Article
Anticorruption, Cultural Norms, and Implications for the APUNCAC
Laws 2021, 10(2), 23; https://doi.org/10.3390/laws10020023 - 08 Apr 2021
Cited by 5 | Viewed by 7169
Abstract
Corruption is a phenomenon that has received global attention from academics, policy makers and international donors. Corruption may be defined as the abuse of power for private gain. Activities include bribery, extortion, rent-seeking behaviour, cronyism, patronage, nepotism, embezzlement, graft and engagement with criminal [...] Read more.
Corruption is a phenomenon that has received global attention from academics, policy makers and international donors. Corruption may be defined as the abuse of power for private gain. Activities include bribery, extortion, rent-seeking behaviour, cronyism, patronage, nepotism, embezzlement, graft and engagement with criminal enterprises. However, patronage, nepotism and gift giving are frequently viewed in many Asian and African cultures as acceptable practices that promote efficiency and smooth relationships. This article examines these practices in contexts including Afghanistan, Papua New Guinea, Russia, China and South Asia, discusses various rationales for these practices, and seeks to understand how these practices can be reconciled with international efforts to combat corruption. This article focuses on the implications with regard to the Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) and the proposal to establish a body of United Nations (UN) inspectors to investigate charges of corruption and refer cases to dedicated domestic anticorruption courts. This article suggests that UN inspectors and international norms against corruption are not incompatible with traditional cultural practices. This article draws upon the experiences of Hong Kong and Singapore, where corruption was endemic, to demonstrate that local cultural norms can be rapidly changed when independent inspectors are established and receive support from institutions that are free from manipulation by domestic authorities. Full article
18 pages, 286 KiB  
Article
APUNCAC and the International Anti-Corruption Court (IACC)
Laws 2021, 10(1), 1; https://doi.org/10.3390/laws10010001 - 25 Dec 2020
Cited by 9 | Viewed by 4766
Abstract
The draft Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption and hand cases to dedicated domestic anticorruption courts. [...] Read more.
The draft Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption and hand cases to dedicated domestic anticorruption courts. APUNCAC is designed to be a free-standing proposal. However, it could be combined with Judge Mark Wolf’s proposal for an International Anti-Corruption Court (IACC). An advantage of combining IACC + APUNCAC is that the combination defuses the key arguments against the IACC. This article reviews evidence suggesting that leaders of nations that currently experience endemic corruption might find it politically expedient to adopt the proposed reforms. The article discusses the advantages of combining IACC + APUNCAC. The combination would establish an independent corps of elite investigators, endow them with strong powers to conduct independent investigations, and enable them to refer cases to dedicated anticorruption courts staffed by judges vetted by the United Nations Commission on Crime Prevention and Criminal Justice. APUNCAC establishes mechanisms to ensure accountability of judges serving dedicated anticorruption courts. By addressing the key arguments against the IACC, the proposal to combine IACC + APUNCAC may enable broad public support in nations that would require public support in order to secure ratification. Full article
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