REPORT OF THE WORKING GROUP ON PROBITY AND PUBLIC ETHICS IN RELATION TO THE PROGRAM FOR INTER-AMERICAN COOPERATION IN THE FIGHT AGAINST CORRUPTION

I. BACKGROUND

1. On January 22, 1996, the Chair of the Working Group on Probity and Public Ethics submitted to that Group for consideration the document entitled "Fundamentals of a Possible Program for Inter-American Cooperation in the Fight against Corruption" (CP/GT/PEC-39/96). In that document, he stated that "the Organization is currently focusing its efforts on drafting the Inter-American Convention against Corruption, and it should continue in this vein." He subsequently presented his views on the procedure that should be followed within the Organization once the Convention was adopted and the areas in which the OAS should work.

2. On March 29, 1996, the Inter-American Convention against Corruption was adopted in Caracas, Venezuela. The Convention is the keystone of cooperative inter-American efforts to prevent, detect, punish, and eradicate corruption. The purposes set out in that legal instrument provide the overall framework for activities to be undertaken by the member states in this area with the support of the General Secretariat.

3. At its meeting of May 9, 1996, the Working Group took up the document "A Plan of Action against Corruption" (CP/GT/PEC-60/96), prepared by the Office of the Secretary General. This document contains several points of interest regarding the actions that the Organization should take.

4. The General Assembly of the Organization adopted resolution AG/RES. 1397 (XXVI-O/96) at its twenty-sixth regular session. The third operative paragraph reads:

To instruct the Permanent Council, through the Working Group on Probity and Public Ethics and taking into consideration the pertinent provisions of the Inter-American Convention against Corruption, the respective national legal systems, the documents presented by the Chair of the Working Group and by the Secretary General, and any other contributions it deems relevant, to draw up a draft program for cooperation in the fight against corruption and submit it to the General Assembly at its next regular session.

5. During its twenty-sixth regular session, the General Assembly of the Organization also adopted resolution AG/RES. 1398 (XXVI-O/96), which expressed satisfaction at the adoption of the Inter-American Convention against Corruption, and decided:

3. To urge any member states that have not yet done so to sign the Inter-American Convention against Corruption as soon as possible.

4. To call upon the member states that signed the Inter-American Convention against Corruption to ratify it so that it may enter into force.

6. The General Assembly of the Organization also adopted resolution AG/RES. 1395 (XXVI-O/96), operative paragraph 4 of which decides:

To instruct the Inter-American Juridical Committee, as a follow-up to its contribution to the adoption of the Inter-American Convention against Corruption, to develop model laws regarding illicit enrichment and transnational bribery, which member states may draw upon.

7. The Inter-American Juridical Committee, at its regular session in February-March 1997, approved a resolution entitled "Elements for Preparing Model Legislation relating to Illicit Enrichment and Transnational Bribery" (CJI/RES-I-1/97), and intends to give further consideration to the topic at its sessions in August 1997.

8. The Working Group on Probity and Public Ethics met on November 25, 1996, and considered the document presented by the Chair, entitled "Proposed Program for Inter-American Cooperation in the Fight against Corruption," which had been circulated to the missions for any observations they might see fit to make. The observations and commentaries submitted on that occasion were incorporated into a new version of this document, which was considered at a meeting of the Working Group on February 24, 1997. In light of the comments made at that time, the document was again considered by the Working Group at meetings held on April 8 and May 1 and 6, 1997. The version that is now submitted incorporates the observations presented at that last meeting.

9. The Inter-American Convention against Corruption entered into force on March 8, 1997, thirty days after deposit of the second instrument of ratification, pursuant to the provisions of Article XXV of that instrument.

 

II. RESOURCES

1. The Working Group considered it desirable that sufficient resources be allocated, within the regular OAS budget, for proper implementation of the program. This means that the annual program-budget will have to include resources for activities planned under this program.

2. Additionally, thought could be given to the possibility of coordinating efforts with other multilateral organizations, such as the Inter-American Development Bank, the World Bank, the Organization for Economic Cooperation and Development, or the Council of Europe, so as to channel resources for activities under a cooperation program such as this. Efforts to secure additional resources could also target public institutions in the member states or third countries, or private institutions, that have an interest in supporting such activities, as decided by the competent OAS bodies.

 

III. PROGRAM APPROACH

 

The Program for Inter-American Cooperation in the Fight against Corruption is designed with a view to the purposes stated in the Inter-American Convention against Corruption, which sets out the general legal framework for activities that the member states, with the support of the General Secretariat, decided to conduct to fight the scourge of corruption.

2. Activities under the proposed program are in line with Article II of the Inter-American Convention against Corruption, which states the purposes of that international instrument as follows:

1. To promote and strengthen the development by each of the States Parties of the mechanisms needed to prevent, detect, punish and eradicate corruption; and

2. To promote, facilitate and regulate cooperation among the States Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance.

3. Achieving the purposes set forth in the Convention and implementing this Program involves activities undertaken by both the Organization of American States and each individual member state. Within the Organization, the coordination of activities to implement the Program will be in the hands of the Secretariat for Legal Affairs, under the supervision of the Permanent Council.

4. In order to put into effect the provisions of the Inter-American Convention against Corruption, it is essential to design and apply a strategy for encouraging the signature and ratification of this legal instrument among the member states of the Organization or, if appropriate, accession by third countries. For that reason, one of the priorities under this program should be to prepare and implement such a strategy.

5. As regards national activities, the Organization of American States should stand ready to provide advisory assistance to the appropriate public agency, when so requested by an interested state, and to support exchanges of information and experience among such agencies by way of seminars and other activities, as available resources allow. Another type of international cooperation activity will also be executed, according to the requests submitted by the member states to the Organization. All these activities are closely linked and mutually supportive.

6. The advisory assistance and information exchange tasks carried out by the Organization will be approached in a special way as regards the national activities provided for in the Inter-American Convention against Corruption, in keeping with the provisions of that legal instrument.

 

IV. SUBJECT AREAS

A. Legal questions

1. The legal aspects of this program relate both to the internal law of the member states and to the international instruments establishing means of international cooperation to fight corruption, including cooperation among states on judicial matters.

2. The commitments assumed by the states under the Inter-American Convention against Corruption relate to preventive measures (Article III), to adoption of the necessary legislative or other measures to establish as criminal offenses under their domestic law the acts of corruption described in Article IV and to facilitate cooperation among the states parties (Article VII), to the provisions on transnational bribery (Article VIII) and illicit enrichment (Article IX), and to consideration of establishing as offenses under their laws the acts to which Article XI on progressive development refers.

3. Activities under this program will need to be directed at supporting actions taken by member states to implement their commitments. The corresponding legislative actions pertain to various branches of domestic law: criminal law and criminal procedure, administrative law, tax law, and civil law.

4. In order to support the states in fighting corruption, the Organization of American States proposes to carry out the following activities:

a. The Permanent Council, through the Working Group on Probity and Public Ethics, should adopt a strategy to secure prompt ratification of the Inter-American Convention against Corruption.

b. Continue to compile national laws on matters related to fighting corruption and identifying corrupt acts. The General Secretariat, through the Department of International Law of the Secretariat for Legal Affairs, has begun this work, which will be a continuing task, since laws are updated constantly.

c. Conduct comparative studies of anticorruption laws, identifying similarities, differences, and any loopholes. This will advance the harmonization of existing anticorruption laws.

d. Examine the legal definitions of illicit enrichment and transnational bribery on the basis of the work of the Inter-American Juridical Committee, including its proposals on model laws in this area.

e. Identify other avenues toward the drafting of model laws that include the most advanced anticorruption approaches. Such model laws could cover both general and specific aspects of this activity.

f. Begin work on draft codes of conduct, provided for under Article III.1 of the Inter-American Convention against Corruption, as member states so request. This activity will need to take account of recent work in the United Nations.

g. Study the problem of the laundering of assets or proceeds derived from corruption. The cooperation program under consideration should provide for activities allowing the states parties to criminalize the laundering of assets derived from corruption, if they have not already done so, in fulfillment of the commitment assumed under Article VI.d of the Inter-American Convention against Corruption. In this task, special attention should be paid to the activities carried out and the progress made by the Inter-American Drug Abuse Control Commission and the Working Group in this area, so as to prevent duplication of effort.

h. Organize the information produced by these activities, promoting the use of electronic media, so as to make the Organization a source of legal information and, in general, a publicizing and training tool for anticorruption efforts. This work should also include a description of the institutions referred to in the following section, and make use of their experience with training materials and other tools.

 

B. Institutional matters

The institutional aspects of the program relate to identifying the institutions responsible for anticorruption efforts and providing support for them in those efforts. The following activities, directed towards both state and civil society institutions, are proposed:

a. Identify public institutions in each state that are engaged in anticorruption efforts. Special attention should be paid to the constitutional structure that sustains and unifies the group of institutions in each case, and the role of each, including the judiciary, parliaments, comptrollers, inspectors, prosecutors, institutions of the executive branch, police forces, and specialized anticorruption bodies in those countries that have established them.

b. Promote the sharing of experience with a view to providing services for improving existing anticorruption institutions and systems. Thought has been given to the possibility of establishing a support system for government institutions charged with fighting this scourge, with the participation of the Organization of American States.

c. Determine what those institutions need to carry out their functions more effectively. The Organization, at the request of the member states, should provide advisory services relating to existing experience at the institutional level, as well as assistance in training staff at those institutions, within the limits of available resources.

d. Provide advisory services to help member states develop educational programs in the area of ethics and other matters related to the conduct of public officials and agents of the private sector.

e. Publicize OAS anticorruption activities by producing reports and making use of electronic and other available media.

 

C. Coordination with international organizations

The Organization will implement, if appropriate, a consultative system for sharing experience and information with the United Nations, the Council of Europe, the Organization for Economic Cooperation and Development, the World Bank, the International Monetary Fund, and the Inter-American Development Bank, among others, so as to enhance the understanding of each organization as it fights corruption, avoid duplication of efforts, and assess the prospects for joint projects.

 

D. Relations with civil society institutions

The Inter-American Convention against Corruption commits the states parties to considering measures, within their own systems of institutions, to create, maintain, and strengthen mechanisms for enlisting civil society and nongovernmental organizations in efforts to prevent corruption, under Article III.11. In this area, the following activities are envisioned:

a. Arrange for the sharing of experience on the role of the press in fighting corruption.

b. Conduct media publicity campaigns to secure the signature and ratification of, or accession to, as appropriate, the Inter-American Convention against Corruption.

c. Draft proposals for programs that could complement efforts undertaken by the states under the formal education system to publicize and promote the ethical values that underlie the fight against corruption.

d. Identify professional organizations whose activities could be linked to anticorruption efforts, so as to enlist the support of bar associations and associations of accountants and auditors, among others.

e. Establish means of enlisting, maintaining, and strengthening the participation of civil society and nongovernmental organizations in anticorruption efforts.