The Inter-American Convention against Corruption : status at three years since its inception

Abstract

The Inter-American Convention Against Corruption of the OAS (the "OAS Convention") was the first international legal instrument to address the problem of public corruption on a multilateral basis. Since its adoption, three other international instruments have come into existence, but the OAS Convention remains the broadest instrument in its scope and types of measures contemplated.

This article outlines the provisions of the OAS Convention, including the obligations incurred by Member States to criminalize various acts of corruption, and to take preventive measures. It also briefly reviews the multilateral obligations undertaken by States Parties.

The paper then examines the status of ratification of the Convention and its implementation in Member States. To date, although most of the OAS Member States have signed the Convention, only half have become parties. Five obstacles to ratification are discussed in particular: the domestic requirements for ratification in certain countries; the absence of a deadline for ratification; the priority given to the OECD Antibribery Convention by some countries; the potential conflict of certain of the Convention's provisions with national constitutional requirements (although we show that this is in fact not a conflict, at least for the United States); and finally, the absence of a formal, ongoing, comprehensive institutional support mechanism for implementation and enforcement of the Convention.

Regarding implementation, the paper identifies the implementation challenges that have arisen to date, challenges made more acute by the Convention's broad scope. Although important steps have been taken in a number of countries, the overall picture is one of only partial implementation. It is difficult to obtain comprehensive and complete information about implementation, and implementation efforts do not appear to be as harmonized as may be optimal. Again, the lack of deadlines and the absence of any provision in the Convention for ongoing institutional support for implementation are important contributors to the current situation.

The paper notes three recent developments of a positive nature: the preparation by the Inter-American Juridical Committee of the OAS of model legislation on transnational bribery and illicit enrichment; the institution of cooperation between the OAS and the Inter-American Development Bank to support implementation of the Convention's criminalization requirements in twelve countries; and the recent OAS General Assembly resolution, reactivating the Working Group on Probity and Public Ethics of the Committee on Juridical and Political Affairs, and calling for follow-up to the Inter-American Anti-Corruption Program, particularly measures to encourage ratification and implementation of the Convention, taking into account the necessary institutional support.

These developments set the stage for careful consideration of the institutional support mechanisms that may be necessary to promote full implementation and enforcement of the Convention. If the OAS Convention is to achieve its potential, development of such mechanisms is critical. The presence of such mechanisms in other, less ambitious, international anticorruption instruments adopted since the OAS Convention underscores the need for and benefit that could be gained from having such a mechanism available to States Parties to the Convention.