QUESTIONS FOR THE RECORD SUBMITTED TO
SAM WITTEN AND BRUCE SWARTZ BY
SENATOR JOSEPH R. BIDEN, JR. (2)
SENATE FOREIGN RELATIONS COMMITTEE
JUNE 21, 2006
Were there any statements made by the U.S. delegation in connection with signature of the Convention or at the session of the U.N. General Assembly when the Convention was adopted? If so, please provide them.
Below are internet links to the full text of statements made:
(1) by Ambassador John Negroponte, U.S. Permanent Representative to the United Nations, to the UN General Assembly in New York on October 31, 2003 (the date the UN General Assembly adopted the Convention), and
(2) by Attorney General John Ashcroft to the High Level Signing Conference in Merida, Mexico on December 9, 2003 (the date the U.S. signed the Convention).
What is the authoritative nature of the travaux préparatoires that was submitted to the Senate for its information in connection with submission of the Convention?
The Interpretive Notes for the official records (travaux préparatoires) serve to preserve certain points relating to articles of the instruments that are subsidiary to the text but nonetheless of potential interpretive importance. In accordance with customary international law, as reflected in Article 32 of the Vienna Convention on the Law of Treaties, preparatory work such as that memorialized in the Interpretive Notes may serve as a supplementary means of interpretation, if an interpretation of the treaty done in good faith and in accordance with the ordinary meaning given to the terms of the treaty results in ambiguity or is manifestly absurd. Thus, the Interpretive Notes, while not binding as a matter of treaty law, could be important as a guide to the meaning of terms in the Convention and Protocols.
In the course of the negotiations, and in preparing to submit the Convention to the Senate, did the Executive Branch review the OECD Anti-Bribery Convention and the Inter-American Convention Against Corruption to ensure that the obligations of those conventions did not conflict with the obligations of the UN Convention?
The interagency team tasked with negotiating the UN Convention carefully considered the provisions of the OECD and Inter-American Conventions when developing and negotiating UN Convention provisions. They sought to ensure that U.S. compliance with the UN Convention provisions would not adversely affect or conflict with our implementation of OECD and Inter-American Convention provisions. At the same time, the negotiating team searched for areas where we could, consistent with current U.S. law and practice, strengthen standards found in the OECD and Inter-American Conventions. As a result, the final provisions of the UN Convention contain provisions that are almost identical to those found in the OECD and Inter-American Conventions (i.e. – articles on criminalizing bribery of domestic and foreign public officials) and others that are not found in either convention (i.e. – asset recovery chapter).
In the United States, what laws or programs fulfill the obligation of Article 13?
The U.S. has a variety of laws and practices in place that promote the active participation of individuals and groups outside the public sector in the domestic fight against corruption. For example, our Inspectors General and various law enforcement agencies provide hotlines that allow the public to report potential mismanagement or corrupt government activities. Our Freedom of Information Act allows public access to government information. Our Administrative Procedures Act provides for open and transparent government decision-making and the input of the public into government rulemaking. Various organizations, including the Offices of Inspectors General and the General Accountability Office, produce publicly-available reports on government activities and efforts to stem mismanagement and corruption within government. The public-availability of government budgets and related financial information allow the public to monitor and help shape government fiscal priorities and spending. Furthermore, various government agencies and offices involved in the prevention of corruption and promotion of integrity within government, such as the U.S. Office of Government Ethics, maintain outreach to non-governmental and private sector individuals and organizations via internet websites and formal advisory groups.
What is likely to be on the agenda for the first Conference of States Parties? How is that agenda being formulated? What role is the United States playing in shaping the agenda?
The agenda for the first Conference of States Parties will likely include several topics for plenary debate that will help parties establish a future process for promoting and reviewing implementation of the Convention and facilitating related donor technical assistance. We expect that the Conference will seek to determine how best to gather information on how countries are implementing the convention and how to best facilitate and integrate donor technical assistance. The Conference is also mandated by UN General Assembly Resolution 58/4 of October 31, 2003 (the resolution which formally adopted the Convention) to consider how the Convention standards might be utilized to fight corruption within international organizations. The Conference agenda may also include side-events that showcase international and regional anticorruption efforts and allow dialogue with nongovernmental observers.
A draft agenda for the first Conference of States Parties is currently being developed by the UN Office of Drugs and Crime (UNODC) in Vienna, with the input of various Convention parties and signatories. Any such draft agenda must be approved by the Conference at its opening session in December.
The U.S. is active in trying to shape the agenda and ensure that the work of the Conference ultimately leads to wide implementation of the Convention provisions and more effective international efforts to fight corruption. We have attended multiple informal meetings in the past two years – in Vienna and elsewhere -- with various interested governments to help shape an agenda that will further our goals mentioned above. We will continue to work closely with UNODC and relevant governments on this issue.