First Annual Report to Congress on the Inter-American Convention Against Corruption
- Ratification and United States Efforts to Encourage Ratification and Implementation by Other Signatories
- Domestic Legislation Implementing the Convention and Actions to Advance Its Object and Purpose
- Progress at the Organization of American States on a Monitoring Process
- Future Negotiations
APPENDICES [Note: At present, none of the appendices are included on the site.]
- Senate Report: Section on Provisos
- Inter-American Convention Against Corruption
- OAS Chart on Status of Ratifications and Deposits
- OAS Compilation of Questionnaire Responses on Implementation of the Convention
- Individual States Party Responses-Website References
- OAS Permanent Council CP/RES.783, including monitoring recommendations
The Resolution of Advice and Consent to Ratification of the Inter-American Convention Against Corruption, adopted by the Senate of the United States on July 27, 2000, required that the President submit a report to Congress not later than April 1, 2001, and annually thereafter for five years, unless extended by an Act of Congress, on the topics listed at Appendix A.
The Inter-American Convention Against Corruption ("the Inter-American Convention" or "the Convention") identifies acts of corruption to which the Convention will apply and contains articles that create binding obligations under international law as well as hortatory principles to fight corruption. The Convention also provides for institutional development and enforcement of anticorruption measures, requirements for the criminalization of specified acts of corruption and articles on extradition, seizure of assets, mutual legal assistance and technical assistance where acts of corruption occur or have effect in one of the States Parties. In addition, subject to each Party's constitution and the fundamental principles of its legal system, the Convention requires Parties to criminalize bribery of foreign government officials and illicit enrichment.
The Convention pioneers emphasis upon the importance of preventive measures. While the criminalization and prosecution of acts of corruption are indispensable, they are insufficient to prevent corruption effectively in governmental institutions. Therefore, additional measures must be taken that operate specifically to prevent corruption before an offense actually occurs. Thus, the Convention contains a series of preventive measures that the Parties agree to consider establishing to prevent corruption. The goal of the Convention is to create a comprehensive system that will effectively deter and control corruption in institutions of government, by preventing, disclosing and punishing acts of corruption by public officials.
The Convention recognizes that the problem of corruption is a major obstacle to development in the Americas. The United States continues to work with its hemispheric partners to find common solutions to common challenges. Corruption slows and impedes democratic institutions, undermines the public trust, hurts economic development, and weakens the rule of law. Corruption also furthers and protects other transnational criminal activity, including drug trafficking, money laundering, organized crime, and smuggling.
The Inter-American Convention was the first formal international instrument against corruption in the world to be negotiated and adopted. An initiative of the first Summit of the Americas in 1994, it entered into force in 1997. The United States deposited its instrument of ratification with the Secretary General of the OAS in September 2000. The OAS is now working on an evaluation mechanism to assist governments that have ratified the Convention to implement those commitments. The mechanism is expected to begin functioning in 2001.
Since the entry into force of the Convention, the OAS Secretariat, in particular the Department of Legal Cooperation and Information, has undertaken a number of activities to promote the ratification and implementation of the Convention. The first year in which the United States has been Party to the Convention has seen considerable progress in the development of a monitoring mechanism, in adherence to the Convention, and in implementation of its obligations. The United States has been, and will continue to be, an active participant in this process. The Inter-American Convention is firmly established as an important regional element of the growing range of international initiatives against corruption. The negotiation and implementation of this regional agreement has provided valuable experience and will assist work on the development of an effective global instrument against corruption, in accordance with a resolution adopted by the United Nations General Assembly in December 2000.
The first Summit of the Americas was held in Miami in December 1994. It launched an ambitious series of initiatives by the governments of the Western Hemisphere to improve a broad range of issues relating to democracy, free trade, and sustainable economic development and growth. Many of these initiatives began a process of international consultation and cooperation on issues that had previously not been systemically considered in formal intergovernmental dialogue or had been regarded as principally the concern of individual countries. Few of the Miami initiatives were more significant than the decision to step up the fight against corruption.
In the Declaration of Principles from the 1994 Summit, the heads of the American states declared that:
"Effective democracy requires a comprehensive attack on corruption as a factor of social disintegration and distortion of the economic system that undermines the legitimacy of political institutions."
The Action Plan that accompanied the Declaration noted that corruption had become an issue of serious interest not only in the Western Hemisphere but globally. It noted that modernization of the state, including deregulation, privatization and simplification of government procedures, reduces opportunities for corruption. It also observed that all aspects of public administration in a democracy must be transparent and open to public scrutiny.
Governments declared their commitments to take measures against corruption, including: ensuring proper oversight of government functions; establishing conflict of interest standards for public employees and penalties for those violating them; advancing toward criminalizing the bribery of foreign public officials for business advantage; developing cooperation in judicial and banking areas to facilitate international investigation of corruption; and strengthening government regulations and procurement, tax collection, the administration of justice and the electoral and legislative processes. The Action Plan for combating corruption concluded with a commitment that governments would, within the OAS, develop "a hemispheric approach to acts of corruption in both the public and private sectors that would include extradition and prosecution of individuals so charged, through negotiation of a new hemispheric agreement."
At the next Summit of the Americas at Santiago, Chile in April 1998, the leaders of the hemisphere declared their determination to "lend new impetus to the struggle against corruption ... " In the Plan of Action that accompanied that Declaration, they committed their governments to a number of further measures to elaborate the anticorruption regime in the Hemisphere. They called in particular on all to ratify the Inter-American Convention Against Corruption. The leaders called for appropriate follow-up to the Convention, and in particular called for laws requiring that senior public officials and other appropriate officials disclose their financial circumstances. They agreed also to cooperate to promote rules to regulate contributions to election campaigns, and to prevent contributions derived from organized crime and drug trafficking. In November 1998 the Government of Chile sponsored a Symposium on Enhancing Probity in the Hemisphere, fulfilling one of the commitments at Santiago.
The third Summit of the Americas will take place in Quebec on April 20-22, 2001, and it is expected that the Heads of State will give significant support to implementation of the Convention and the evaluation mechanism referred to in Section V below.
On March 29, 1996, a Specialized Inter-American Conference met in Caracas. Venezuela, at the conclusion of which the Inter-American Convention was adopted, and twenty-one OAS member states signed it. The United States signed the Convention on June 2, 1996, at the twenty-seventh regular session of the OAS General Assembly in Panama City, Panama. On March 6, 1997, the Convention entered into force following the deposit of the second instrument of ratification. On April 1, 1998, President Clinton submitted the Convention to the Senate for its advice and consent to ratification, which was given by the Senate on July 27, 2000. The Convention was ratified by President Clinton on September 15, 2000, and the United States deposited its instrument of ratification with the OAS on September 29, 2000. As of April 1, 2001, twenty-six of thirty-four OAS member states had signed the Convention, and twenty-two had deposited their instruments of ratification. See Appendix C for OAS Chart on Status of Ratifications and Deposits.
The Inter-American Convention Against Corruption was the first multilateral instrument of its kind. It was intended, as mandated by the 1994 Summit, to become an effective tool to assist in the hemispheric effort to combat corruption. It has enhanced law enforcement efforts of the Parties in other areas, given the frequent link between corruption and other transnational crimes.
As a basic obligation of the Convention, Parties must make it a criminal offense for any public official to solicit or receive, and for any person to offer, promise or give, directly or indirectly, a bribe or other benefit, in exchange for any act or omission in the performance of the public official's duties. This obligation relates to government officials of the Parties, or to persons who perform public functions, that are defined in Article I of the Convention. Parties must also criminalize the fraudulent use or concealment of property derived from acts of bribery, or participation in the commission of these offenses, or conspiracy to commit them. Article VIII of the Convention requires that Parties adopt laws similar to the Foreign Corrupt Practices Act of the United States, making it a crime to bribe officials of foreign governments in connection with an economic or commercial transaction in exchange for an act or omission in performance of the official's public duties. Article IX requires Parties to criminalize "illicit enrichment," which is defined as "a significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions." The obligations to criminalize transnational bribery and illicit enrichment are subject to the Constitution and fundamental legal principles of each State. In ratifying the Convention, the United States established that it would not be obligated to establish a new criminal offense of illicit enrichment.
The Convention provides procedures for cooperation by Parties in mutual, legal assistance and extradition (Articles XIII, XIV) with respect to corruption offenses. It also provides procedures for cooperation to effect seizure and forfeiture of assets that are the proceeds of corruption, where acts of corruption occur or have effect in the territory of a Party (Article XV). The Convention also prohibits the use of bank secrecy as the basis for denial of international cooperation among Parties involving corruption offenses (Article XVI).
Article III of the Convention prescribes a series of preventive measures that the Parties agree to consider establishing. These include the following:
- systems of government hiring and procurement that assure openness, equity and efficiency of such systems;
- standards of conduct for public employees;
- financial disclosure requirements for public employees; laws that deny favorable tax treatment for any individual or corporation for payments that violate laws against corruption;
- whistleblower protections;
- oversight bodies with authority to develop new anti-corruption mechanisms; accounting systems and internal accounting controls; addressing the relationship between equitable compensation and probity in public services and
- mechanisms to encourage participation by civil society arid non-governmental organizations in efforts to prevent corruption.
This extensive attention to preventive measures is the single most notable distinction between the Inter-American Convention and most of the other international agreements on corruption that have followed it (including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions -- "OECD Anti-Bribery Convention" -- and the Council of Europe's Criminal Law Convention on Corruption). Although these preventive measures do not constitute legally binding obligations, efforts by the OAS to date to promote implementation of the Convention have given them significant attention. This is expected to continue. Specific attention to preventive measures which address issues of transparency, economic governance, public integrity and civil society is an important contribution of the Inter-American. Convention to the development of global initiatives against corruption.
The United States has long been concerned about the bribery of, and corruption among, government officials. In 1977 Congress enacted the Foreign Corrupt Practices Act ("FCPA"), which makes it a criminal offense for a United States citizen or firm to give, promise or offer bribes to officials of foreign governments in order to obtain or retain business. The FCPA establishes substantial penalties for persons and corporations offering, giving, promising to give, or authorizing the giving of anything of value to foreign government officials, political parties, party officials, and candidates for public office in order to obtain or retain business. Since 1988, consistent with the provisions of the Omnibus Trade and Competitiveness Act of that year, the United States has made continuing efforts to persuade other governments, particularly those of the most significant exporters in the global marketplace, to adopt and enforce similar legislation.
The Inter-American Convention was developed to address a wide range of measures to prevent or to punish bribery and other forms of corruption involving the public sector. Article VIII establishes a limited, specific requirement that Parties adopt laws to address transnational bribery, similar in content to the FCPA. This was the first formal international agreement to embody a requirement of the type sought by the United States relating to transnational business-related bribery of foreign public officials,
In 1998, the OECD adopted, and the United States became party to, the OECD Anti-Bribery Convention. The OECD Anti-Bribery Convention was a major milestone in U.S. anticorruption diplomacy over the past two decades. All of the other significant exporting countries joined with the U.S. in an agreement to make the bribery of foreign public officials in international business transactions a criminal offense.
The OECD Anti-Bribery Convention has now been signed by all 30 OECD members plus Argentina, Brazil, Chile, and Bulgaria. It entered into force on February 15, 1999, following ratification by the United States and eleven other countries. As of March 1, 2001, thirty-one countries had deposited their instruments of ratification of the Convention with the OECD Secretariat, and we expect the remaining countries to do so in the near future.
The OECD Anti-Bribery Convention is very specific in its purpose and coverage. Like Article VIII of the Inter-American Convention, the OECD Convention requires parties to enact statutes to making it a crime for individuals or firms to bribe officials of foreign governments for the purpose of obtaining or retaining business. The OECD Anti-Bribery Convention thus also largely tracks the provisions of the FCPA. It obliges Parties to establish sanctions for these criminal offenses that are effective, proportionate, dissuasive, and comparable to those applicable to domestic bribery, including making bribery a predicate offense to money laundering. This obligation includes sanctions against officials in any branch of a foreign government, whether elected or appointed. It includes government-controlled para-statal enterprises, except those operating on a purely commercial basis. The OECD Anti-Bribery Convention, like the FCPA, only covers the conduct of the person or enterprise offering or making the bribe. It does not purport to regulate the conduct of the recipient of a bribe. The OECD Anti-Bribery Convention also does not cover bribes paid to private persons for any purpose, or bribes paid to foreign public officials for a purpose other than obtaining or retaining business, or other improper advantage in the conduct of international business.
The OECD Anti-Bribery Convention also provides for Parties to afford each other mutual legal assistance and extradition in the implementation of its obligations. It also provides (Article 12) for cooperation by Parties in a program of "systematic follow-up to monitor and promote the full implementation of the Convention." This mandatory mutual evaluation mechanism is established under the auspices of the OECD Working Group on Bribery. It includes two phases: first, examination arid analysis of each party's laws implementing the OECD Convention; second, visits to each country to assess enforcement. The Department of State and the Department of Commerce both report annually to Congress on the status of implementation of the OECD Bribery Convention. For additional information, please consult the State report "Battling International Bribery" and the Commerce report "Addressing the Challenges of International Bribery and Fair Competition."
In addition, the United States continues to participate in or encourage bilateral, regional and multilateral initiatives to promote public integrity and control official corruption in practically all regions. On October 10, 2000, the United States signed the Council of Europe's Criminal Law Convention on Corruption. Like the Inter-American Convention, the Criminal Law Convention requires that Parties make it a criminal offense for any of its public officials to solicit or accept, and for any person to promise, offer or give, a bribe or other advantage in exchange for any act or omission in the performance of the public official's duties. The Criminal Law Convention, like the Inter-American Convention and the OECD Anti-Bribery Convention, also requires Parties to make it a crime to bribe officials of other governments, but does not limit the context to international business transactions. The Criminal Law Convention is broader than either of the other two Conventions in that it not only addresses public corruption, but certain acts of corruption involving only private persons. Like other international anticorruption instruments, the Criminal Law Convention includes provisions for mutual assistance in implementation of its obligations, including extradition and mutual legal assistance. The Criminal Law Convention provides that Parties become members of the Council of Europe's Group of Countries Against Corruption ("GRECO"), which monitors implementation of the Criminal Law Convention and other Council of Europe anticorruption commitments through mutual evaluation by its members. The United States joined the GRECO in September 2000.
In Europe, the United States also participates in the anticorruption programs being developed by the Organization for Security and Cooperation in Europe (OSCE), and the Anticorruption Initiative developed by the participants in the Stability Pact for Southeast Europe. Under the auspices of the Global Coalition for Africa, a number of African countries, with U.S. encouragement and support, have committed themselves to a declaration of anticorruption principles agreed to by eleven African countries in February 1999 on the margin of the Global Forum on Fighting Corruption in Washington (see below). Principle 24 of this declaration commits its participants to: "Establish government-to-government mechanisms to monitor implementation of these principles including a mutual reporting and evaluation process." Thus, mutual evaluation is becoming increasingly accepted as an important element of many developing anticorruption initiatives.
The Asia-Pacific Economic Cooperation (APEC) forum, in which the United States plays an active role, has begun to address anticorruption issues in the context of its work on investment promotion, economic governance, the international financial system, and public sector management. Discussion of the need to prevent and control corruption figured prominently in recent consultative meetings including the "Seoul Conference on Combating Corruption in the Asia-Pacific" region in December 2000. The World Bank has since 1997 implemented enhanced measures to prevent corruption in projects or activities to which it lends. It has begun to address measures against corruption in strategic and macroeconomic policy dialogue with governments, and has in some instances held up or withheld funds due to concerns over corruption. The World Bank Institute has developed considerable experience in conducting empirical surveys as the basis for defining national anticorruption efforts. The World Trade Organization has continuing activities relating to transparency in government procurement, which is also an important measure in preventing corruption.
The First Global Forum on Fighting Corruption: Safeguarding Integrity of Justice and Security Officials, held in Washington, D.C. in February 1999 was another U.S. Government anticorruption milestone. This global initiative has included a strong emphasis on defining and promoting implementation of comprehensive principles and practices to combat corruption in public service, especially among officials that uphold the rule of law. Twenty countries from the Americas participated at the Global Forum; Argentina, Bolivia, Colombia, the Dominican Republic and Ecuador all sent their Vice Presidents to head delegations there.
The Netherlands will be hosting the Second Global Forum in The Hague, on May 28-3l, 2001, which the United States will cosponsor. All members of the United Nations have been invited to participate in Global Forum II. In the Americas, Bolivia and Colombia have indicated that their Vice Presidents will attend. Such high-profile events help many countries' domestic political efforts to combat corruption. It is expected that the Second Global Forum will produce a Declaration with "building blocks" for a future UN Convention Against Corruption (see below). South Korea has agreed to host Global Forum III in 2003.
The United Nations Convention Against Transnational Organized Crime was completed, approved by the UN General Assembly, and opened for signature at a high-level meeting in Palermo, Italy in December 2000. During 1999-2000 negotiations on this Convention the United States led a successful effort to include an article obliging Parties to establish as criminal offenses acts of corruption involving domestic public officials. In late 2000, the UN General Assembly approved a resolution to begin the negotiations of a new global instrument against corruption. Preparatory work is underway at the United Nations.
The Inter-American Convention Against Corruption entered into force on March 6, 1997. As of April 1, 2001, twenty-six countries had signed the Convention, twenty-three countries had ratified the treaty and 22 had deposited their instruments of ratification with the OAS. The OAS Chart on Ratification and Deposits (Appendix C) sets forth the dates of the ratifications and the deposits of the instruments of ratification. While official notice has been received of Haiti's ratification, the OAS had not received a deposit of its document of ratification at the time this report was submitted.
The countries which have signed the Inter-American Convention are Argentina, Bahamas, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, United States, Uruguay, and Venezuela.
The three countries that have signed the Convention but as of the time this report was submitted had not yet ratified it are Brazil, Guatemala, and Suriname. Officials from the United States embassies in all three countries have made direct calls upon government officials to urge prompt ratification of the Convention. The legislatures in Brazil and Guatemala are currently considering the Convention arid both countries have recently enacted new anticorruption legislation. In Suriname the Convention is still under consideration in the Executive Branch. Brazil has participated actively in the meetings of the OAS Working Group on Probity and Public Ethics to develop the Convention evaluation mechanism described in Section V below.
The OAS and the Department of State are considering the initiation of a project to encourage the eight countries in the Caribbean which have not signed the Convention to do so and to ratify it.
The Organization of American States is compiling on a continuing basis comprehensive information about the domestic laws enacted by each Party to the Convention that implement the commitments under the Convention and the actions being taken by each Party to advance the object and purpose of the Convention. As of March 15, 2001, thirteen of the ratifying Parties had responded to a comprehensive questionnaire on measures to implement the Convention that was distributed on May 22, 2000. The United States was among the Parties that have provided a response. The OAS compilation of these responses is at Appendix D. The individual State Party responses, including references to, and excerpts from, specific anticorruption legislation, are available on the Internet at the websites provided at Appendix E. The OAS is following up on those countries that have not responded to the questionnaire and has sought updates from those that have.
Additional information on both legislation and other actions is expected to result from future country-by-country analyses by the Committee of Experts under the evaluation mechanism described in Section V below.
As indicated above, the Summit of the Americas in 1994 broached the subject of widespread hemispheric corruption at a political level for the first time, and raised it to an unprecedented level of public visibility and attention. The problems of corruption and how to deal with it are very complex. International recognition that corruption is a formidable challenge to the governments and societies of the Hemisphere, as well as in the rest of the world, is relatively recent. It is not surprising that the information currently available on what legislation has been enacted and actions taken in the various countries reflects different patterns from region to region and country to country. For example, the compilation at Appendix D shows that 82 percent of the reporting countries had legislation designed to prevent conflicts of interest by government officials, but only 55 percent reported a requirement that government personnel be instructed to ensure proper understanding of their responsibilities and ethical rules governing their activities. Only 18 percent reported having a national law to protect public servants and private citizens who, in good faith, report acts of corruption. Over half (55 percent) of the States Parties responding indicated that they have adopted a comprehensive program to fight corruption, in addition to those mechanisms discussed in the questionnaire. As indicated above, the complete response from each of the 13 countries is available on the Internet sites at Appendix E.
It can be said, however, that in no country has the topic been ignored. Even in those countries where corruption is deemed to be the rule and not the exception, there is evidence that governments and civil society are making efforts to deal with this threat. Information about these events abounds in the Internet and in the reports received under the various programs funded by agencies of the United States Government mentioned below.
In recent years, an unprecedented wave of public reaction to corruption has changed the political, economic and social landscapes in a number of countries, which have ratified the Convention, including Peru, Mexico, Ecuador and Argentina. This reaction has contributed significantly to the kinds of governmental activities, including new legislation and executive branch actions described in Appendices D and E.
In addition to the implementation efforts by national governments, a number of efforts in support of the Convention by international organizations, the private sector and civil society merit attention.
Substantial progress in implementing the Convention has been achieved through the OAS, which has brought greater attention to promoting cooperation and strengthening commitments and obligations from Parties. The OAS, through its Department of Legal Cooperation and Information, is continuing to develop projects to assist State Parties to implement the Convention. It has conducted workshops on a variety of topics under the Convention, including the development of model criminal and preventive legislation. It has established an Internet website (see Appendix E) which provides access to more than 9,000 files on anticorruption topics. It has collaborated with the World Bank, the Inter-American Development Bank and the U.S. Agency for International Development (USAID) in conferences, workshops and publications aimed at the implementation of the Convention.
At the 8th international Anti-Corruption Conference (IACC), which took place September 7-11, 1997, in Lima, Peru, over 1000 delegates from 93 countries convened to discuss global anticorruption strategies and to work on common approaches. The 8th IACC, which was titled "The State and Civil Society in the Fight Against Corruption," also emphasized the importance of coalition building between governmental, non-governmental and private sector organizations in working at the international, regional, national and local levels to increase government accountability and transparency, to curb corruption in private sector actions; and to involve civil society organizations more strongly into anticorruption initiatives.
The Finance Ministers of the Western Hemisphere, at their meeting in Mexico in February 2000, noted that "corruption has been recognized as a serious problem that adversely affects investment, public revenue, growth, and development in much of the Western Hemisphere" and that corruption is "a threat to investor and taxpayer confidence." This communique went on to call on Parties to the Inter-American Convention to develop a mutual evaluation mechanism to monitor and promote implementation of anticorruption measures under it.
There have been a number of regional or sub-regional conferences and meetings in the past two years relating to corruption. In April 2000 in San Jose, Costa Rica, senior officials of the Central American countries addressed corruption, drug trafficking and the importance of measures against them. Another meeting in San Jose a month later addressed in particular the role of the media in national efforts against corruption. All of these events included calls for all countries in the Hemisphere to become party to and implement the Convention.
Implementation of the Convention has been on the agenda of numerous conferences sponsored by civil society and the private sector throughout the Hemisphere. The Trust of the Americas and the Andean Development Corporation recently sponsored a conference in Cartagena, Colombia on the important role of the press in anticorruption efforts. In addition, a number of non-governmental organizations have utilized the Internet to distribute information about the Convention and to report on corruption and anti-corruption events nationally and throughout the Hemisphere. These include the Foundation for Public Ethics in Argentina (www.worldpolicies.com), the Latinamerican Center for Development Administration (www.clad.org.ve) in Venezuela and Probity (www.probidad.org.sv) in El Salvador.
While the Department of State's U.S. Mission to the OAS has been working extensively within the OAS in cooperative efforts to implement the Convention, other Department offices and other United States agencies continue to engage in activities that directly and indirectly support implementation. In addition to the law enforcement activities in such areas as drug interdiction, money laundering and trafficking in human beings, the United States has funded training of law enforcement officials throughout the Hemisphere. Other agencies, such as USAID and the Office of Government Ethics have assisted directly in the implementation of the Article III prevention measures, such as developing codes of ethics and methods of financial disclosure and enhancing civil society's role in the struggle against corruption. In addition, USAID has supported a number of programs to enhance transparency and accountability in judicial systems, to create anticorruption units in public ministries and to disseminate information about anticorruption events, legislation and best practices throughout the Hemisphere. One of its major dissemination activities is Projecto Respondabilidad Anticorrupcion en las Americas, which uses both hard copy and the Internet (www.Respondanet.com) to provide current information and data on anticorruption matters throughout the Hemisphere. The USAID Mission in Mexico is preparing an anticorruption program which responds directly to the new Mexican administration's interests and the government of the United States has assured the government of Mexico that other agencies are also prepared to consult and assist its anticorruption efforts.
The Inter-American Convention, unlike the later OECD Anti-Bribery Convention and Council of Europe Criminal Law Convention, does not include an obligatory mutual evaluation mechanism. The negotiations leading to the adoption of the Convention did not include any discussion of such an evaluation mechanism. However, comparisons between the Convention and other international anticorruption instruments, and other observations about the implementation of the Inter-American Convention, prompted considerable discussion about the need for such a mechanism.
The United States initially proposed in June 1999 that the OAS General Assembly agree to establish a mechanism for monitoring implementation of the Inter-American Convention. This proposal was greeted with some skepticism, but the General Assembly approved a resolution requesting the Permanent Council's Working Group on Probity and Public Ethics to examine the subject. This Working Group is also authorized to compile and study national legislation relevant to public ethics; discuss experiences in the control and oversight of existing administrative institutions; make a checklist of crimes related to public ethics; and make recommendations on judicial mechanisms to address such crimes. The Working Group met several times, and a number of its members also participated in a non-governmental international workshop organized to discuss this issue by Transparency International, the Inter-American Bar Association and the American University Washington College of Law in Washington, D.C. in November 1999. Subsequently the Working Group and the Permanent Council proposed, and the OAS General Assembly in June 2000 approved, Resolution AG/RES, 1723 which instructed the Permanent Council:
"to analyze existing regional and international follow-up mechanisms with a view ending, by the end of 2000, the most appropriate model view to recommending that State Parties could use, if they think fit to monitor implementation of the Convention. That recommendation will be transmitted to the State Parties to the Convention for them to choose the course of action they deem most appropriate."
The OAS Committee on Juridical and Political Affairs referred this mandate to the Working Group on Probity and Public Ethics, which convened on September 7, 2000 under the Chairmanship of Mauricio Alice, Alternate Permanent Representative from Argentina. The Working Group met on numerous occasions at the OAS Headquarters Participation on the Working Group was open to all OAS Member States. The principal contributors to the negotiations were Argentina, Canada, Jamaica, the United States and Mexico, with additional input from Uruguay, Peru, Brazil and El Salvador. By late 2000, the Working Group produced a recommendation that called for the creation of a body of experts, and presented a set of guidelines for an evaluation of the implementation of the Convention. The purposes of the mechanism are to promote implementation of the Convention, and "to facilitate technical cooperation activities, the exchange of information, experience and best practices, and the harmonization of the anticorruption legislation of the States Parties." Only countries that have ratified the Convention would participate in the evaluation process.
Regarding civil society participation in the review process, the Working Group recommended that while the mechanism would be intergovernmental in nature, the Committee of Experts may receive written comments from non-governmental bodies, "taking into account the Guidelines for the Participation of Civil Society Organizations in OAS activities, as well as the definition of civil society in AG/RES. 1661 (XXIX-0/99)." This will include the private sector and non-governmental organizations.
On January 18, 2001, the Permanent Council accepted the Working Group's recommendations and transmitted them to the States Parties to the Convention in Resolution CP/RES-783 (Appendix E). The Republic of Argentina has invited the States Parties to meet in Buenos Aires on May 2-4, 2001, for the first meeting of the Committee of Experts. The States Parties met on March 21-23, 2001 in Washington, D.C. to establish a preliminary framework for the Committee meeting in May.
The recommended mechanism assigns to the Committee a number of specific duties, including the selection of topics under the Convention to be reviewed and countries to be evaluated, and the issuance of a report which will be forwarded first to the States Parties and then made public. The President's next annual report to the Congress will address progress in beginning to implement this monitoring process, and in securing the active participation in it by all Parties to the Inter-American Convention.
At this time, there are no formal proposals or informal discussions taking place among the Parties to the Convention to expand its scope or assess areas where it might need amending. A number of the crimes that are frequently associated with corruption are already the subject of bilateral and regional treaties or agreements, such as narcotics trafficking. The United States is seeking to expand the scope of the OECD Anti-Bribery Convention to include, among other things, obligations relating to bribes given to political parties and candidates, bribery involving offshore centers, bribery involving foreign subsidiaries, and bribery as a predicate offense to money laundering. Since five major Parties to the Inter-American Convention are also Party or signatory to the OECD Convention (Argentina, Brazil, Canada, Chile, Mexico), the United States would intend to follow success of an effort to do this in the OECD with a similar effort toward the Inter-American Convention in the OAS.
The Inter-American Convention Against Corruption is still in the early stages of implementation. It is already clear that its adoption by the Parties has served a number of useful purposes. First, it has helped bring the problem of corruption to an unprecedented degree of discussion and scrutiny, at the international level and in the domestic media and political processes of all countries in the Hemisphere. In doing so, it has helped focus international and domestic discussion on the causes and impact of corruption. Second, it has caused governments throughout the Hemisphere to make commitments to take concrete actions, such as the enactment of new legislation that will be effective to prevent, or disclose and punish corruption. These commitments have helped transform the attitudes of voting publics in the Americas toward corruption. With the public speaking out, and even acting against corruption, leaders and governments are compelled to take action and accept responsibility. Third, the Inter-American Convention has served as an example to other regions in the world that corruption is a regional problem, not just a national one, and the effort to combat it can benefit from international cooperation. Fourth, with its focus on preventive measures it has set the further example that law enforcement and criminal prosecutions by themselves cannot solve the problem of corruption. Finally, with the development of an effective evaluation mechanism, the Convention will help establish a new level of transparency on the accountability of the States Parties in meeting their anticorruption commitments.
With the continued support of the United States, there is good reason to believe that the Inter-American Convention will soon be an example of effective implementation as well.