Table of Contents
The Senate of the United States adopted the Resolution of Advice and Consent to Ratification of the Inter-American Convention Against Corruption (hereinafter referred to as the “Convention” or “Inter-American Convention”) on July 27, 2000. The Resolution requires that the President submit a report to Congress not later than April 1, 2001 and annually thereafter for five years, setting forth the topics that are required to be addressed in the report. [Appendix A.]
President George W. Bush submitted the First Report to Congress in April 2001 and the Second Annual Report in April 2002. This Third Annual Report discusses efforts taken by the United States, the Organization of American States (OAS), the States Parties to the Convention, and civil society to strengthen the legal and societal infrastructures necessary to implement the Convention and fight corruption. Since the preparation of the Second Annual Report, a number of significant steps have been taken toward implementation of the Convention, particularly in the development and application of the evaluation mechanism.
In 2002, the Committee of Experts (“the Committee”) for the Follow-up Mechanism conducted the first four country assessments -- Argentina, Colombia, Paraguay and Nicaragua -- for the Follow-up Mechanism for the Implementation of the Convention. At its third meeting in February of this year, the Committee completed its report on Argentina -- published on the OAS website on March 7, 2003 -- and made considerable progress on the other three reports, but were unable to complete them at that meeting. Therefore, the Committee requested that the subgroups assigned to these three reports make the necessary changes to conform with the format of Argentina report. The Committee expects to issue the three final reports at its next meeting, scheduled for July 14 to 18, 2003. Those three States Parties have also authorized publication of the reports on the OAS web site, which is listed in Appendix F. The Committee's assessments are made on the basis of the particular circumstances of each State Party and contain specific recommendations for additional legislation or regulations where necessary. The recommendations also address the need for strengthening the administration, transparency, and other aspects of the implementation processes and for enhancing and measuring the effectiveness of these anticorruption laws and mechanisms. See Chapter V.
In the last reporting period, the number of States Parties to the Convention rose to twenty-eight when Belize, Brazil and Suriname ratified the Convention and deposited their instruments of ratification with the Organization of American States. (See Chapter III for additional information about the status of ratifications and efforts of the United States to encourage ratification and implementation by other signatories.) Additionally, five more States Parties adopted the Follow-up Mechanism -- Brazil, Guyana, Suriname, St. Vincent and the Grenadines, and Grenada -- bringing total membership in the evaluation mechanism to twenty-seven. Chapter V contains information about the participation of these five countries in the Committee of Experts and in the Mechanism activities. Belize has ratified the Convention, but has not yet joined the Mechanism.
All twenty-two of the original States Parties to the Mechanism responded to the Committee’s questionnaire on the portions of the Convention that are included in the first round of assessments, and a number of States Parties authorized the publication of their responses on the OAS website. These responses and their publication provided the Committee and the public with extensive information about the steps that the States Parties have taken and are taking to meet their commitments under the Convention. Chapter V contains more information about the questionnaire.
The United States Government is working with our hemispheric partners and international financial institutions to promote the implementation and enforcement of the Convention through numerous initiatives and programs. These include numerous programs offered through the U.S. Agency for International Development (AID), the U.S. Office of Government Ethics (OGE), the World Bank, the Inter-American Development Bank (IDB), the Ethics Resource Center, the Argentine Commission for Follow-up of Compliance of the Inter-American Convention against Corruption, and the efforts of the Latin American and Caribbean arm of Transparency International (TILAC).
The Convention is firmly established as one of the most important regional efforts among the growing number of international initiatives against corruption. Particularly noteworthy is the States Parties’ commitment to implementation and peer review. The negotiation and implementation of this
regional agreement has provided valuable experience for developing other multilateral anticorruption agreements. In particular, the process assists the ongoing work to develop an effective global convention against corruption by the United Nations.
The Summit of the Americas in 1994 broached the subject of widespread hemispheric corruption at a political level for the first time, raising significantly the level of public visibility and attention to this serious issue. On March 29, 1996, the Convention was adopted and signed by twenty-one OAS member governments at a Specialized Inter-American Conference in Caracas, Venezuela. [The Convention is attached as Appendix B]
The Convention identifies acts of corruption to which the instrument will apply. It also contains articles that create binding obligations under international law and establish hortatory principles to fight corruption. The Convention provides for institutional development and enforcement of anticorruption measures, requires criminalization of specified acts of corruption, and contains articles on extradition, seizure of assets, mutual legal assistance, and technical assistance where acts of corruption occur in or affect another State Party.
As a basic obligation of the Convention, States 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 States Parties or to persons who perform public functions as defined in Article I of the Convention. States Parties must also criminalize the fraudulent use or concealment of property derived from acts of bribery, participation in the commission of these offenses, and conspiracy to commit them. Article VIII of the Convention requires that States Parties adopt laws that are similar to the Foreign Corrupt Practices Act of the United States, making it a crime to bribe officials of foreign governments in exchange for an act or omission in performance of the official's public duties in connection with an economic or commercial transaction.
The Convention provides procedures for cooperation by Parties in mutual legal assistance and extradition, as described in Articles XIII and XIV, with respect to corruption offenses. Article XV 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 State Party. Article XVI also prohibits the use of bank secrecy as the basis for denial of international cooperation among States Parties involving corruption offenses.
Finally, Article III of the Convention emphasizes the importance of preventive measures, and calls upon Parties to consider implementing such measures. These include the following:
The United States continues to provide international leadership on combating the bribery of and corruption among government officials throughout the world. As early as 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 Convention represents the first attempt to criminalize international bribery through commitments embodied in a formal multilateral and legally binding agreement. It was also path breaking in its effort to punish forms of public corruption that go beyond bribery and focus on the importance of preventive measures in the fight against corruption.
Article VIII of the Convention, as noted above, establishes a specific requirement that Parties adopt laws to address transnational bribery, similar in content to the FCPA and the OECD (Organization for Economic Cooperation and Development) Convention on “Combating Bribery of Foreign Public Officials in International Business Transactions” that followed it. However, the Convention goes further by recognizing that public corruption extends beyond the act of bribery in business transactions. It calls for criminalizing:
Arguably the most promising contribution of the Convention to the international fight against corruption involves its novel attempt to promote preventive measures necessary to address corruption. The Convention recognizes that while the criminalization and prosecution of acts of corruption are indispensable, they are insufficient to deter corruption effectively in governmental institutions. Therefore, additional measures must be taken that operate specifically to prevent corruption before an offense actually occurs. Thus, Article III contains a series of preventive measures that Parties agreed to consider establishing to prevent corruption. Coupled with the criminalization measures, the goal of the Convention, unique at the time it was being prepared, was to create a comprehensive system that would effectively deter and control corruption in institutions of government by preventing, disclosing, and punishing acts of corruption by public officials.
The United States continues to participate in and encourage bilateral, regional and multilateral initiatives to promote public integrity and control official corruption in practically all regions of the world. All of these efforts have benefited considerably from the Convention’s groundbreaking attention to corruption. Whereas many governments were loath to discuss corruption at the time the Convention was being developed, governments now meet regularly in various multilateral fora to denounce corruption and share their experiences in implementing preventive measures. The most visible of these intergovernmental fora is the Global Forum Against Corruption, which will be convening for the third time in Seoul, Korea in May 2003. We hope that leaders of the Western Hemisphere will continue the tradition by hosting a future Global Forum in the region.
Several regional intergovernmental anticorruption agreements have followed the Convention’s path. Almost all include preventive measures and most recognize the need to address forms of corruption beyond bribery. These agreements include the OECD Convention on “Combating Bribery of Foreign Public Officials in International Business Transactions,” the Council of Europe Group of State’s Against Corruption (GRECO) Criminal Law and Civil Law Conventions Against Corruption, the Stability Pact Anticorruption Initiative (SPAI) for Southeast Europe, the Global Coalition for Africa Principles Against Corruption, the draft Africa Union (AU) Convention on Preventing and Combating Corruption the Southern African Development Community Protocol Against Corruption, and the ADB/OECD Anticorruption Action Plan and Initiative for Asia-Pacific region. Under the auspices of the United Nations, over 120 nations, including the United States, have been negotiating since January 2002 a new United Nations Convention Against Corruption. Like the Inter-American Convention, the future United Nations instrument will likely entail criminalization of a range of corrupt activities and adoption of a wide range of preventive measures by governments.
The United States has taken on the challenge of combating corruption and related ills that weigh down development and impede global security. President George W. Bush launched in March 2002 the new Millennium Challenge Account (MCA), stating that governments and NGOs around the world “must encourage developing countries to make the right choices for their own people.” The MCA will tie billions of dollars in extra U.S. foreign development assistance over the next three years to, among other factors, the recipient’s commitments to good governance and anticorruption efforts. Since “good government is an essential condition of development…[the MCA] will reward nations that root out corruption, respect human rights, and adhere to the rule of law.” The Convention recognizes that the problem of corruption is a major obstacle to development in the Americas. As such, it has energized the work of the United States and its hemispheric partners to find common solutions to common challenges in this area.
"Too many nations in the region continue to confront economic woes and persistent poverty caused by scandalous corruption that threatens to weaken the very democratic foundation on which they are built. Governments have an essential and inescapable responsibility to impose the rule of law, ensure equal opportunity by maximizing transparency, and promote legal regimes that reduce social divisions and arbitrary enforcement. This proven formula will help people from all walks of life build better lives for themselves and their communities. Implementation of the Convention will be an important step toward reducing corruption in the hemisphere."
Ambassador Roger F. Noriega
U.S. Permanent Representative to
the Organization of American States,
February 28, 2003
In the 2002 reporting period, Belize, Brazil and Suriname ratified the Convention. The OAS and the Department of State have encouraged ratification by five eastern Caribbean countries -- Barbados, Barbuda and Antigua, Dominica, St. Kitts and Nevis, and St. Lucia -- that have not yet signed and ratified the Convention. The dates of the ratifications and the deposits of the instruments of ratification are set forth in Appendix C.
The State Department has begun a series of interactive video and audio conferences with Latin American audiences that focus on the role of universities in the struggle against corruption. Participating U.S. embassies bring together representatives of government, non-governmental organizations and public and private universities to discuss possible university anticorruption programs and activities with a panel of experts in Washington, via television and telephone conference calls. One anticipated outcome of this series is a feasibility study on the creation of a network of Latin American anticorruption centers.
In a separate process, with the Action Plan from the Third Summit of the Americas serving as an impetus for their actions, eight government institutions with ethics-related responsibilities from throughout the Americas have signed a memorandum of understanding to create and join the Network of Government Institutions of Public Ethics in the Americas (Network). The Network has a distinct mandate, separate from those of other multilateral organizations, but its activities support other multilateral processes such as the work of the Committee of Experts of the Follow-up Mechanism for the Implementation of the Inter-American Convention against Corruption. The purpose of the Network is to provide a forum for the sharing of ideas, experiences, and best practices in the field of ethics and anticorruption. The Network will focus primarily on using electronic means to share information and for other mutual cooperation efforts. Consideration of plans for expanding the Network will begin once the current participants feel the Network's infrastructure functions smoothly and usefully and is ready for expansion.
In 2002, support for the implementation of the Convention continued to be provided by the governmental assistance agencies, international financial organizations and other international entities. USAID has made the Convention a thematic centerpiece for addressing corruption. USAID supports:
USAID disseminates best practices in the field through a variety of venues including the website Respondanet (an NGO virtual network), courses in the field, pilot projects, and the Donor Consultative Group, which serves as a clearinghouse for anticorruption events, ideas, and news. The group is made up of some fifteen governmental and international financial institutions such as the World Bank and the Inter-American Bank.
The General Secretariat of the Organization of American States with U.S. support has undertaken various projects that produced significant results in promoting the ratification and implementation of the Inter-American Convention against Corruption. It has conducted workshops in a number of Caribbean countries –- such as Barbados, the Dominican Republic, and the entire Eastern Caribbean region -- regarding the adjustment of national criminal legislation to the Convention.
The OECD collaborated at the first meeting of the Committee of Experts with the OAS to organize a one-day workshop on the experience of four international follow-up mechanisms: the OAS, the OECD Working Group on Bribery, the GRECO, the Inter-American Drug Abuse Control Commission’s (CICAD) Mutual Evaluation Mechanism (MEM) and the Financial Action Task Force (FATF). Countries and members of the secretariats involved in these mechanisms were invited to exchange experiences in the monitoring process that have contributed in a crucial manner to their successful implementation. State Party delegates were able to benefit from the lessons learned in terms of practical management by these actors to define the rules and procedures of the newly adopted follow-up mechanism.
The OECD and the Mexican government organized, together with several other partners (including USAID and the World Bank), a conference in Mexico City September 19 and 20, 2002. The primary purpose of this event was to support the implementation of the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and of the Revised Recommendation on Combating Bribery in International Business Transactions. The conference provided information on OECD anti-bribery instruments, encouraged companies to adopt compliance programs and mechanisms, and supported complementary reform trends on public procurement systems and accounting standards in a corruption prevention perspective.
Another continued source of important technical assistance to the States Parties has been the Office of Governmental Ethics of the Commonwealth of Puerto Rico. The compatibilities of language, cultural inheritance, and similar legislation -- such as the laws against illicit enrichment -- have made the Puerto Rican experience particularly useful. In 2002, Executive Director Hiram Morales Lugo delivered a number of speeches and participated in conferences in Peru. Included in his series of presentations to public officials and non-governmental organizations was an orientation session for Peruvian judges on the Code of Ethics for members of the Judiciary in Puerto Rico. He also was one of ten international experts that took leading roles in a seminar in the Dominican Republic entitled “Application of the Inter-American Convention against Corruption.” The compilation of documents produced at the seminar was distributed at the third meeting of the Committee of Experts. Director Morales Lugo is a member of the United States delegation to the Committee.
To assist in the preparation of this report, U.S. embassies reported on major steps taken by their host States Parties during the past year. For instance, in 2002 the Government of Brazil not only ratified the Convention and adopted the Follow-up Mechanism, but it also: adopted a stricter Code of Conduct for the Chamber of Deputies; created a congressional Ethics Committee; and created an Internal Affairs Secretariat with power to investigate and charge public sector employees with corruption, which newly-elected President Lula agreed to implement.
In addition to the highly publicized case of corruption charges against its former president, Nicaragua in 2002 took a number of steps to implement the Convention. Its newly created Office of Public Ethics conducted a series of informational programs about the Convention, within the government and with civil society organizations. It applied its longtime money laundering statute for the first time and a new money laundering law is pending that will make it an autonomous crime, not just linked to drug smuggling. With help from the United States, Nicaragua is putting into effect a new Criminal Procedures Code that will make the judicial process much more transparent, opening trials to public scrutiny as judges are compelled to justify their decisions and make them public.
Progress has also been made in other nations in 2002. For example, the National Congress of Honduras in December created a new Tribunal -- Superior de Cuentas -- a three-member panel selected by the Congress to oversee all corruption investigations and trials. In October, the Supreme Court dismissed the entire three-judge Court of Appeals after one of its members publicly accused another judge of accepting a bribe for his ruling in a case. The Government of Guatemala announced the establishment of an ambitious National Anticorruption Plan that it drafted in coordination with the World Bank. In February, a civil society organization encompassing representatives of most organized sectors of Guatemalan society -- the Foro Guatemala -- held a major conference on the effects of corruption.
The Dominican Republic passed into law a comprehensive anti-money laundering statute to extend the offense to include money laundered from the commission of any crime and on January 14, 2003 President Mejia signed into law the regulations implementing that statute. The Department for the Prevention of Corruption conducted fourteen Ethics Code Workshops throughout the government as part of its program to implement the Convention.
In November 2002, the Procuraduría General of the Dominican Republic, through its Department of Administrative Corruption Prevention, invited the Puerto Rican Office of Governmental Ethics to participate in the International Seminar “Application of the Inter-American Convention against Corruption.” This event was designed to build commitment from different Dominican sectors to help implement the Convention; to disseminate information concerning the Convention’s implementation at all levels of the government and to the public; and to share best practices in the fight against corruption in the continent.
Among the many other anticorruption developments in Latin America, two merit special attention as possible models to assure implementation of the Convention. First is the Commission for Follow-up on Compliance in Argentina with the Inter-American Convention against Corruption. This entity was initiated by the Bar Association of Buenos Aires and consists of a wide variety of non-governmental organizations, including Poder Ciudadano, the local chapter of Transparency International, as well as anticorruption units of the Argentine government. Its primary general objective is to take the steps necessary to encourage, disseminate, and verify the levels of compliance by the Government of Argentina with its obligations under the Convention. It has distributed questionnaires to the various branches and agencies of the government, disseminated copies of Convention documents extensively to civil society, and directed specific recommendations to the Committee. In view of the limited scope of the Committee’s assessments, a commission like Argentina’s that examines progress on the entire convention can be very useful. [Report of Buenos Aires at Appendix D]
The second development that merits special attention is the creation of internet web sites by the Government of Mexico to make public a number of activities, in accordance with the provisions of the Convention. These include Tramitanet (www.tramitanet.gob.mx) that permits electronic processing of transactions within the bureaucracy via the internet, minimizing the need for personal contacts with the Government for information about contracts, bids, budgets and expenditure; Normateca (www.normateca.gob.mx) that simplifies the communication of Government regulations and standards in a wide number of agencies and topics; and Declaranet (www.declaranet.gob.mx) that is used for the filing online of the Financial Disclosure reports of public servants. Also 2002, the Government of Mexico took a number of other anticorruption steps including: creation of the Federal Institute for Access to Public Information; investigations of several cases involving high level officials; and enactment of the Federal Laws of Freedom of Information and Administrative Responsibilities of Public Servants.
The second meeting of the Committee of Experts for the Follow-Up Mechanism of the Inter-American Convention against Corruption took place in Washington, D.C. from May 20 to 24, 2002. All twenty-two States Parties sent the same experts who had participated in the first meeting except Bolivia and Nicaragua.
Working on the drafts prepared by the OAS Secretariat, the Committee produced a questionnaire, methodology, and country report outline for the first round of assessments. All three of these documents are in the Appendices.
The Committee selected the order pursuant to which all the States Parties would be reviewed in the first round. According to the work plan developed by the committee, this will take until the end of calendar year 2004, approximately two years from the Committee’s first meeting. This order consisted first of the eight countries that volunteered (Argentina, Paraguay, Colombia, Nicaragua, Uruguay, Panama, Ecuador and Chile) in the order that they volunteered, followed by the other fourteen in the order that they ratified the Convention. It was decided that the first four volunteer countries would be reviewed in time for the Committee to consider and issue the first country reports at its third meeting, scheduled for January 2003. All States Parties were expected to complete and submit the questionnaire within ninety days, that is, before September 1, 2002. There was no discussion about whether the completed questionnaire would be made public. It was the informal consensus that each State Party would have to decide whether to disclose the document.
In accordance with the Rule that had been adopted at the first meeting, the Committee drew lots to determine which two States Parties would perform the initial assessment of each States Party. The Rules require that at least one assessing State Party share the same legal system (code or common law) of the assessed State Party. [See Appendix F for the website to the list of subgroups.]
Dr. Carlos Balsa, the lead expert from Uruguay, was elected Chair at the Committee of Expert’s first meeting and still serves in that position. The Committee unanimously elected Jesus Faustino Collado from the Dominican Republic to be the Vice Chair for the first year of the Committee’s activities.
On May 31, 2002 the Secretariat placed on its website the four documents that had been approved by the Committee: the Rules and Procedures, the questionnaire, the methodology and the country report format. It also formally distributed the questionnaire to the States Parties. All States Parties met the September 1, 2002 deadline or came close to it, except that El Salvador submitted its response late in September. The Secretariat immediately began its assessment of the responses submitted by the first four States Parties to be reviewed and sent its preliminary draft report to the subgroups assigned to those States Parties. On December 20, 2002, the Secretariat sent the responses from those four States Parties to all Committee members.
The Secretariat also began the process of integrating the five new States Parties that had joined the mechanism since the second meeting of the Committee. The other three were Grenada, Guyana, and St. Vincent and the Grenadines, which had previously ratified. As of April 1, 2003 the Secretariat had placed on the OAS website the list of thirteen countries that had authorized the publication of their responses to the questionnaire. [See Appendix F for the website.]
The third meeting of the Committee of Experts took place at the OAS Headquarters on February 10 to 14, 2003. The primary goal of the meeting was to convert draft evaluations into the first final reports on implementation by four States Parties of the six Convention provisions that had been chosen for the first round. While considerable progress was made in refining the form and substance of the kind of evaluation report the Committee wanted, only the report on Argentina was completed. The United States expert team members from the Department of State, the Office of Government Ethics, the Department of Justice, and the Commonwealth of Puerto Rico Office of Governmental Ethics played a key role in the redrafting process. The OAS Secretariat was directed by the Committee of Experts to transform the drafts for Colombia, Paraguay and Nicaragua into the style and format of the Argentina report for approval at the next meeting of the Committee, which was scheduled for July 14 to 18.
One of the major issues resolved was how to frame recommendations in the areas where the only obligation of the States Party is “to consider the applicability” of the specific system or mechanism mentioned in the Convention. Another major problem that was reflected throughout the four draft reports was the lack of statistics on actions taken under the anticorruption laws and mechanisms in place in the States Parties under review. It was decided that in lieu of the same recommendation for each provision, the Committee would make a generic recommendation in each final country report on the need for internal evaluation and progress assessment programs, including the collection of statistics.
Of the five new States Parties that joined the Committee since its second meeting, Brazil, Suriname, and St. Vincent and the Grenadines attended this meeting, but Grenada and Guyana did not. In accordance with its Rules, the Committee chose by lot the subgroups that would be responsible for the assessments of Brazil, Suriname, and St. Vincent and the Grenadines.
As stated in the First and Second Annual Reports, there are still no formal proposals or even informal discussions taking place among the States Parties to expand its scope or to assess areas where it might need amending. However, the Committee of Experts has the authority to propose to the Conference of States Parties any recommendations it considers pertinent regarding the Convention and the Report of Buenos Aires.
The Committee and the evaluation process have taken important steps towards completing and publishing the first assessment reports. The States Parties -- the subjects of these reports -- now need to take prompt action to acknowledge receipt of the recommendations and take steps to consider and implement the recommendations. This might mean assigning a particular office or individual the responsibility for overseeing these steps and establishing deadlines for implementation, as well as for disseminating the report and the recommendations. A State Party that rejects a Committee recommendation should explain why it does so.
The evaluation process calls for dissemination of the report to the public and to the appropriate civil society organizations, with proposals on how the State Party intends to involve civil society in the implementation of the recommendations. The first four States Parties subject to evaluation have already agreed to make their evaluation reports public. Civil society organizations that have made implementation of the Convention a concern will now have an opportunity to engage these States Parties on this issue.
The United States Government, through its embassies and agencies, will assure the States Parties of its interest in assisting them in implementing the recommendations that the States Party chooses to implement. The Secretariat, in fulfilling its assigned responsibilities under the Rules of the Committee, should take the necessary steps to assure that the international financial organizations and other sources of funding and technical assistance are made aware of the final reports. The Secretariat should also assist the States Parties in obtaining the necessary coordinated support to implement the recommendations accepted by the States Parties.
The United States has been intimately involved in the struggle to reduce corruption in this hemisphere from the inception of the Summit of the Americas in 1994, through the negotiation of the Convention, and to the creation and funding of the Follow-up Mechanism and the Committee of Experts. We support the current momentum to hold a conference of the States Parties in the near future to review the Committee’s activities and to establish a funding process to assure the Committee’s activities are adequately funded to be successful. We will continue to support vigorously the efforts to implement the Convention and the recommendations of the Committee.
SENATE REPORT: SECTION ON PROVISOS
Provisos.-- The advice and consent of the Senate is subject to the following provisos:
Adopted at the third plenary session, held on March 29, 1996
THE MEMBER STATES OF THE ORGANIZATION OF AMERICAN STATES, CONVINCED that corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples;
CONSIDERING that representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every form of corruption in the performance of public functions, as well as acts of corruption specifically related to such performance;
PERSUADED that fighting corruption strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society's moral fiber;
RECOGNIZING that corruption is often a tool used by organized crime for the accomplishment of its purposes;
CONVINCED of the importance of making people in the countries of the region aware of this problem and its gravity, and of the need to strengthen participation by civil society in preventing and fighting corruption;
RECOGNIZING that, in some cases, corruption has international dimensions, which requires coordinated action by States to fight it effectively;
CONVINCED of the need for prompt adoption of an international instrument to promote and facilitate international cooperation in fighting corruption and, especially, in taking appropriate action against persons who commit acts of corruption in the performance of public functions, or acts specifically related to such performance, as well as appropriate measures with respect to the proceeds of such acts;
DEEPLY CONCERNED by the steadily increasing links between corruption and the proceeds generated by illicit narcotics trafficking which undermine and threaten legitimate commercial and financial activities, and society, at all levels;
BEARING IN MIND the responsibility of States to hold corrupt persons accountable in order to combat corruption and to cooperate with one another for their efforts in this area to be effective; and
DETERMINED to make every effort to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance,
HAVE AGREED to adopt the following:
For the purposes of this Convention:
"Public function" means any temporary or permanent, paid or honorary activity, performed by a natural person in the name of the State or in the service of the State or its institutions, at any level of its hierarchy.
"Public official", "government official", or "public servant" means any official or employee of the State or its agencies, including those who have been selected, appointed, or elected to perform activities or functions in the name of the State or in the service of the State, at any level of its hierarchy.
"Property" means assets of any kind, whether movable or immovable, tangible or intangible, and any document or legal instrument demonstrating, purporting to demonstrate, or relating to ownership or other rights pertaining to such assets.
The purposes of this Convention are:
For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures within their own institutional systems to create, maintain and strengthen:
This Convention is applicable provided that the alleged act of corruption has been committed or has effects in a State Party.
The States Parties that have not yet done so shall adopt the necessary legislative or other measures to establish as criminal offenses under their domestic law the acts of corruption described in Article VI(1) and to facilitate cooperation among themselves pursuant to this Convention.
Subject to its Constitution and the fundamental principles of its legal system, each State Party shall prohibit and punish the offering or granting, directly or indirectly, by its nationals, persons having their habitual residence in its territory, and businesses domiciled there, to a government official of another State, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official's public functions.
Among those States Parties that have established transnational bribery as an offense, such offense shall be considered an act of corruption for the purposes of this Convention.
Any State Party that has not established transnational bribery as an offense shall, insofar as its laws permit, provide assistance and cooperation with respect to this offense as provided in this Convention.
Subject to its Constitution and the fundamental principles of its legal system, each State Party that has not yet done so shall take the necessary measures to establish under its laws as an offense 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.
Among those States Parties that have established illicit enrichment as an offense, such offense shall be considered an act of corruption for the purposes of this Convention.
Any State Party that has not established illicit enrichment as an offense shall, insofar as its laws permit, provide assistance and cooperation with respect to this offense as provided in this Convention.
When a State Party adopts the legislation referred to in paragraph 1 of articles VIII and IX, it shall notify the Secretary General of the Organization of American States, who shall in turn notify the other States Parties. For the purposes of this Convention, the crimes of transnational bribery and illicit enrichment shall be considered acts of corruption for that State Party thirty days following the date of such notification.
For application of this Convention, it shall not be necessary that the acts of corruption harm State property.
For the purposes of articles XIII, XIV, XV and XVI of this Convention, the fact that the property obtained or derived from an act of corruption was intended for political purposes, or that it is alleged that an act of corruption was committed for political motives or purposes, shall not suffice in and of itself to qualify the act as a political offense or as a common offense related to a political offense.
Subject to the constitutional principles and the domestic laws of each State and existing treaties between the States Parties, the fact that the alleged act of corruption was committed before this Convention entered into force shall not preclude procedural cooperation in criminal matters between the States Parties. This provision shall in no case affect the principle of non-retroactivity in criminal law, nor shall application of this provision interrupt existing statutes of limitations relating to crimes committed prior to the date of the entry into force of this Convention.
No provision of this Convention shall be construed as preventing the States Parties from engaging in mutual cooperation within the framework of other international agreements, bilateral or multilateral, currently in force or concluded in the future, or pursuant to any other applicable arrangement or practice.
This Convention is open for signature by the Member States of the Organization of American States.
This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.
This Convention shall remain open for accession by any other State. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.
The States Parties may, at the time of adoption, signature, ratification, or accession, make reservations to this Convention, provided that each reservation concerns one or more specific provisions and is not incompatible with the object and purpose of the Convention.
This Convention shall enter into force on the thirtieth day following the date of deposit of the second instrument of ratification. For each State ratifying or acceding to the Convention after the deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
This Convention shall remain in force indefinitely, but any of the States Parties may denounce it. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. One year from the date of deposit of the instrument of denunciation, the Convention shall cease to be in force for the denouncing State, but shall remain in force for the other States Parties.
Any State Party may submit for the consideration of other States Parties meeting at a General Assembly of the Organization of American States draft additional protocols to this Convention to contribute to the attainment of the purposes set forth in Article II thereof. Each additional protocol shall establish the terms for its entry into force and shall apply only to those States that become Parties to it.
The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States, which shall forward an authenticated copy of its text to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the United Nations Charter. The General Secretariat of the Organization of American States shall notify its Member States and the States that have acceded to the Convention of signatures, of the deposit of instruments of ratification, accession, or denunciation, and of reservations, if any.
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
|SIGNATORY COUNTRIES||SIGNATURE REF||RA/AC/AD REF||DEPOSIT INST|
|Bahamas (Commonwealth)||06/02/98||03/09/00||03/14/00 RA|
|Barbados||04/06/01||/ /||/ /|
|Costa Rica||03/29/96||05/09/97||06/03/97 RA|
|Dominican Republic||03/29/96||06/02/99||06/08/99 RA|
|El Salvador||03/29/96||10/26/98||03/18/99 RA|
|Grenada||/ /||11/15/01||01/16/02 RA|
|Haiti||03/29/96||/ /||/ /|
|St. Vincent & Grenadines||/ /||05/28/01||06/05/01 AD|
|Trinidad and Tobago||04/15/98||04/15/98||04/15/98 RA|
|United States||06/02/96||09/15/00||09/29/00 RA|
The purpose of the Inter-American Convention against Corruption is to promote and strengthen cooperation among the States Parties and to develop the mechanisms needed to prevent, detect, punish, and eradicate corruption.
Considerable progress has already been made in implementing the provisions of the Inter-American Convention against Corruption at the national level, and significant developments have also taken place at subregional and international levels, especially through the Inter-American Program for Cooperation in the Fight against Corruption.
A mechanism to follow-up on and review how such developments are being implemented and to facilitate cooperation among States Parties and among all member states of the OAS will assist in attaining the objectives of the Convention. This mechanism must take account of the need for gradual progress in attaining those objectives and must support programs for implementation of the Convention pursued by the States Parties.
This mechanism is established in fulfillment of the Plan of Action signed at the Third Summit of the Americas, in Quebec City, Canada, in whose chapter on corruption the Heads of State and Government undertook to support the establishment, as soon as possible, taking into consideration the recommendation of the OAS, of a follow-up mechanism for the implementation of the Inter-American Convention against Corruption by the States Parties to this instrument.
The purposes of the mechanism shall be:
2. Basic principles
Development of the mechanism for follow-up of the commitments of the States Parties to the Convention shall be guided by the purposes and principles established in the Charter of the Organization of American States. Therefore, the powers accorded to it and the procedures it follows shall take account of the principles of sovereignty, nonintervention, and the juridical equality of the states, as well as the need to respect the Constitution and the fundamental principles of the legal system of each State Party.
The mechanism for follow-up of implementation of the Convention shall be intergovernmental in nature and shall have the following characteristics:
4. Members of the follow-up mechanism
Only States Parties to the Convention shall participate in the follow-up mechanism.
5. Structure and responsibilities
The follow-up mechanism shall be comprised of two bodies: the Conference of the States Parties and the committee of experts.
All States Parties shall be represented in the Conference. It shall have general authority to implement and responsibility for implementation of the mechanism and shall meet at least once each year.
The committee shall be comprised of the experts appointed by each of the States Parties. It shall be responsible for technical analysis of the implementation of the Convention by the States Parties, among other tasks related to this main function. The Committee may request assistance and guidance from the Conference, which shall meet to consider such requests.
Secretariat services for the mechanism shall be provided by the General Secretariat of the Organization of American States.
The headquarters for the follow-up mechanism shall be at the headquarters of the Organization of American States.
The committee of experts shall select, from among the provisions of the Convention, those whose application by the States Parties may be reviewed, seeking to maintain general balance among the various types of provision contained in the Convention, and shall determine the length of time it will devote to this task, which shall be known as a "round." The committee shall devise a method for the review of each provision, designed to ensure that sufficient reliable information will be obtained. The Committee shall publish the information referred to in this paragraph.
At each round, the Committee shall prepare a questionnaire on the provisions selected, based on OAS document CP/GT/PEC-68/00 rev. 3, "Questionnaire on Ratification and Implementation of the Inter-American Convention against Corruption," and shall forward it to those States Parties to be reviewed. The States Parties shall undertake to reply to the questionnaire by the deadline established by the committee. The replies to the questionnaire shall be distributed to all committee members.
The Committee shall use an impartial method for setting the dates for review of the information on each State Party, such as their presentation on a voluntary basis, chronological order of ratification of the Convention, or lot. The Committee shall give adequate advance notice of the dates for the review of each State Party during each round.
To expedite its work, the committee shall establish a subgroup in each case, comprised of experts from two States Parties, which shall review, with support from the Secretariat, the information on each State Party.
On the basis of that review, each subgroup shall prepare, with support from the Secretariat, a confidential preliminary report, which shall be made available to the State Party concerned for its observations.
Each subgroup shall prepare a revised version of the preliminary report, taking into account the observations presented by the State Party concerned, and present it to a plenary meeting of the Committee for its consideration.
The plenary meeting of the Committee shall prepare the conclusions and, if deemed appropriate, make the recommendations it considers pertinent.
After completing, at each round, its review of the reports for all States Parties, the Committee shall issue a final report for each State Party, containing the observations of the State Party reviewed, which shall be forwarded first to the Conference and then published.
Mindful of the purposes of the follow-up mechanism and in the framework of the Inter-American Program for Cooperation in the Fight against Corruption, the Committee shall strive to cooperate with all OAS member states, taking account of the activities already under way within the Organization, and shall report to the Conference thereon.
The Committee shall undertake systematic consideration of the issues involved in cooperation and assistance among States Parties in order to identify the areas where technical cooperation is needed and the most appropriate methods for collection of useful data to review such cooperation and assistance. This work shall take account of the provisions of Articles XIII through XVI and Article XVIII of the Convention.
States that are not parties to the Inter-American Convention against Corruption may be invited to observe the plenary meetings of the committee of experts if they so request.
8. Civil society participation
In order to obtain better input for its review, the Committee shall include in the provisions governing its operation an appropriate role for civil society organizations, taking into account the "Guidelines for the Participation of Civil Society Organizations in OAS Activities" [CP/RES. 759 (1217/99)] and the definition of civil society contained in AG/RES. 1661 (XXIX-O/99), in keeping with the domestic legislation of the State Party under review. The Committee may request information from civil society organizations, for which purpose it shall develop the method it considers most appropriate.
The activities of the follow-up mechanism shall be funded by contributions from States Parties to the Convention, from states that are not parties to the Convention, and from international financial organizations, and by any other contribution that may be received in accordance with the General Standards to Govern the Operations of the General Secretariat, including a specific fund that may be established. Such contributions may include offers by State Parties to organize and host meetings of the bodies of the mechanism. The Conference of States Parties may establish criteria for determining the amounts of regular contributions.
10. Periodic review of the mechanism
The Conference shall periodically review the operation of the mechanism, taking account of observations made by the committee of experts, and may introduce such changes as it deems appropriate.
11. Transitory provision
To facilitate the work of the first meeting of the committee, the Conference considers that topics that the committee might analyze at its first round are, inter alia:
In the event that the committee of experts encounters difficulties in conducting a review of all topics indicated, it shall report such difficulties to the Conference so that that body may take such decisions, as it deems appropriate at its next Conference.
The Conference also suggests that, during its first year of operation, the committee of experts hold at least two meetings.Appendix E
ANTICORRUPTION ACTION PLAN FOR THE WESTERN HEMISPHEREObjective: Reduce the incidence of corruption –- endemic in many Western Hemisphere countries –- that creates vulnerabilities and threats to U.S. national interests by fueling transnational crime and terrorism, undermining institutionalization of economic development and democracy, destabilizing political institutions and systems, and robbing individuals and businesses of both billions of dollars and their security.
Implementation: WHA has instructed regional ambassadors through personal cables, the Chiefs of Mission conference in December 2002, and regional economic officers at their December 2002 conference, to aggressively implement this plan. WHA, with INL and USAID, will coordinate USG anticorruption and good governance technical assistance and training efforts in the region. WHA will also seek buy-in and increased cooperation with the IFIs, appropriate international organizations, and other donor nations on anticorruption activities. WHA will continue to hold regular working group meetings to expand efforts and measure progress.
Actions: The U.S. Government will undertake to:
Level 1: Unite Governments Under Common Commitments (Multilateral Efforts)
Engage the governments of Canada and Chile in the anticorruption effort as donor nations. Encourage regionalization of anticorruption efforts.
Participate actively in and fund the OAS Inter-American Convention Against Corruption (IACAC) Follow-Up Mechanism, and encourage all state parties to make at least a “leadership commitment” contribution to the Follow-Up Mechanism and participate actively in peer monitoring and review.
Urge active regional support for and participation in the negotiations of a UN Convention Against Corruption.
Consult with international financial institutions, international organizations, multinational corporations, and non-governmental organizations that also are combating corruption, to determine whether economies of scale are achievable through mutual efforts.
Encourage countries that are signatories of the OECD Anti-Bribery Convention to exert regional leadership in the fight against bribery and corruption.
Urge active regional participation in the Third Global Forum (GFIII) in Seoul, Korea and encourage regional dialogue and awareness of IACAC at GFIII. Press for a Western Hemisphere host for the Fourth Global Forum.
Support the 11th International Anti-Corruption Conference in Seoul, Korea.
Press the OAS to incorporate anticorruption activities as a criterion for the proposed annual democracy award.
Raise the profile of anticorruption issues in defense fora such as the Defense Ministerial of the Americas.
Level 2: Help Governments Meet or Exceed Those Commitments (Bilateral Efforts)
Prepare a “layman’s guide” to the IACAC, describing what commitments member states have undertaken, for the use of Ambassadors in bilateral engagement and benchmarking of progress.
Negotiate language in the Free Trade Area of the Americas (FTAA) and Central America Free Trade Agreement (CAFTA) that commits member states to fight corruption through such instruments as the IACAC.
Develop public information campaigns on the link between transparency and the benefits of free trade.
Coordinate with other countries that have their own anticorruption laws to share information in implementation.
Increase training of investigative journalists and promote open and free media.
Provide guidance to posts on responding to frequently encountered situations in the corruption arena.
Identify legal and financial mechanisms available in the United States to assist countries in addressing corruption, including guidance and options for technical assistance to countries that establish anticorruption task forces.
Utilize resources in the U.S. judicial system, including the ABA and the Judicial Conference, to combat judicial corruption.
Coordinate with Presidential Anticorruption initiative and PCC Development goals; target assistance to rectify deficiencies in anticorruption programs identified by the Follow-Up Mechanism.
Encourage and support anticorruption activities by hemisphere militaries through the U.S. Southern Command and Western Hemisphere Institute for Security Cooperation.
Level 3: Mobilize Popular Will and Private Sector Action (Public Diplomacy)
Elevate honest discussion with host governments on corruption and increase public pressure for clean government through civil society mechanisms.
Make anticorruption a primary focus of senior-level speeches in the U.S. and in the hemisphere.
Publicize anticorruption efforts in the United States by various levels of government, including prevention, detection, investigation, and prosecution of public and private citizens.
Include anticorruption as a theme in high-level visits to the region, and follow up visits with op-eds and other appropriate press engagement.
Emphasize the role of good governance in access to the Millennium Challenge Account and in compliance with the FTAA and CAFTA.
Work in partnership with the private sector, NGOs, and governments to draft and implement codes of ethical conduct in all sectors.
As appropriate, provide high-level, public support to journalists and others threatened with legal action or extralegal violence for exposing corruption.
Provide megatalkers to posts to assist in establishing a consistent, constant message on corruption.
Gather and disseminate information for businesses about “best practices” that counter corruption.
Gather and disseminate information for inspectorates general about “best practices” that counter corruption.
Level 4: Lead by Example (Mutual Efforts)
Explore available legal mechanisms for civil and criminal forfeiture of assets located in the U.S. belonging to foreign corrupt individuals.
Brief foreign officials about the availability of U.S. mechanisms to attach assets following a domestic conviction.
Pursue a Presidential Proclamation under section 212(f) of the Immigration and Nationality Act to make it easier to deny visas to persons who engage in acts of corruption, including corruption intended to influence official actions.
Compile anticorruption success stories into cables to be shared with host governments.
Encourage integrity pacts among U.S. and local companies and link strategically corporate governance and anticorruption through public-private partnerships. Encourage regional American Chambers of Commerce to take a more aggressive public posture on this issue.
Prosecute foreign officials engaging in corruption who fall within U.S. jurisdiction.
Identify and pursue officials who participate in corrupt activities that impair U.S. border security, such as supporting terrorists and alien smuggling.
Points of Contact
--Policy Planning and Coordination Director: Linda Jewell;
--Economic Policy and Summit Coordination Director: Russ Frisbee;
--Economic Bureau Senior Advisor for Business Outreach: Nancy Smith-Nissley;
--U.S. Mission to the OAS Political Counselor: Carol Fuller;
--Agency for International Development Deputy Assistant Administrator for Latin America: Karen Harbert; and
--Office of Government Ethics Intergovernmental Programs Analyst: Eric Raile.
Status of Signers/Ratifications:
Report of Buenos Aires:
Rules of Procedure and Other Provisions:
Country Report Format:
Replies to the Questionnaire:
Respondanet, a project funded by USAID:
Probidad, a daily summary of newspaper reports on corruption in Latin America:
Inter-American Bar Association: