Resolution / Decision

Topic

Res. 4/1

Mechanism for review of implementation of UNCAC

Ana Revuelta (consultant) and Gillian Dell - Transparency International-Secretariat

Proposed by the Argentinean Vice-Chair of the Conference and Chair of the IRG, the resolution on the Mechanism focused on funding, strengthening the review process and technical assistance. It was first introduced during the conference.

The funding of the review mechanism is an issue that continues to divide countries. At CoSP3 in Doha, it was decided that for 2010-2011 the funds would come from the UN regular budget but many donor countries are in favour of voluntary contributions (which give them more leverage). CoSP3 also decided that for the biennium 2012-13, the budget would be examined later by the Implementation Review Group.

Ahead of CoSP4, concerns were raised by the United States about how the budget for the biennium 2012-2013 was prepared and whether the whole budget should go through the regular budget process. This led the United States to submit a draft resolution calling for the inclusion, in all IRG meetings, of a point in the agenda to analyze the financial situation of the mechanism and also called for UNODC to provide the IRG with "clear and easily digestible figures and information related to the finances of the Review Mechanism and its operations." This proposal was folded into the Argentinean resolution on the review mechanism, apparently increasing UNODC's reporting obligations to the IRG on budgetary matters.

As for the need to strengthen the review process, the resolution's strongest language is in its preamble chastising some governments for failure to comply with their obligations. The operative paragraphs cover various housekeeping matters, including a request to UNODC to prepare an executive summary template and a call for greater government efforts to meet the review schedules.

On technical assistance, there were reportedly some significant differences of opinion in the informal discussions about centralisation versus decentralisation. A German proposal that was reportedly innovative (submitted by another government since Germany is still not a party) was brushed aside and only reflected in one sentence in the resolution.

Res. 4/2

Intergovernmental expert meetings to enhance international cooperation

Ana Revuelta (consultant) and Gillian Dell - Transparency International-Secretariat

While modest, this resolution is potentially important. A key role of UNCAC is to help overcome the barriers to international cooperation that block effective sanctioning of globalised corruption. The resolution calls for meetings aiming, inter alia, "to build confidence and encourage cooperation between requesting and requested States by bringing together the relevant competent authorities, anti-corruption bodies and practitioners involved in mutual legal assistance and extradition". It calls for one meeting before the next CoSP and one at the CoSP - though the latter is probably not the most conducive to effectiveness. If conducted in a constructive way, the meetings could enhance international efforts to bring corrupt actors to justice. The downside risk to be managed is that they may also expose political fault lines.

That this proposal came from Egypt is not surprising in the current context. Egypt originally proposed to establish an Intergovernmental Working Group to strengthen international cooperation but this was dropped due to cost concerns raised by some countries.

Res. 4/3

Prevention of corruption (The Marrakech Declaration)

Melissa Lawson - Tearfund

This resolution submitted by the host country Morocco contains a collection of general endorsements, encouragements and calls to States parties to take various preventive measures. It also contains the very concrete requirement for a multiyear work plan to 2015 for the Working Group on Prevention.

The UNCAC Coalition was disappointed that the initial draft of the Marrakech declaration on the prevention of corruption failed to mention the role of civil society, especially since the declaration was broad in scope and strong on other aspects. The Coalition had been active before the conference in calling for a renewed commitment to Article 13, which recognises the essential role of civil society in tackling corruption effectively. At the Conference, the UNCAC Coalition Article 13 working group advocated for amendments to be made and suggested language, some of which was then adapted and tabled by the Norwegian delegation.

The final resolution urges states to promote the participation of individuals and groups outside the public sector, such as civil society, NGOs and community-based organisations, in the prevention of and the fight against corruption. It urges states to raise public awareness of corruption and laws and regulations against it, including the Convention itself.

Whilst there is still much more to be done to increase civil society space in anti-corruption processes and mechanisms, the amendments to the Declaration demonstrates the importance of our collective advocacy in calling for change in this area.

Res. 4/4

Asset recovery

Maud Perdriel - Sherpa, and George Boden - Global Witness

In a move welcomed by anti-corruption campaigners, governments meeting at the 4th CoSP acknowledged systemic failures in the controls that should stop banks taking dictators' money. Resolution 4/4, initiated by Egypt and adopted by consensus focused heavily on the Arab Spring and, like Resolution 3/3 at CoSP3 agreed that more action was needed to help claw back stolen funds.

A novum compared to the CoSP3 resolution is that this time the text calls on governments to force banks to know which of their customers are politically exposed persons ("prominent public functions") and to make sure that they are not handling looted state funds. Existing laws require this already, but they are not being enforced. The Conference recognised that "robust regulatory action" was needed.

Countries where overthrown corrupt dictators have hidden their loot in bank accounts, real estate and luxury goods are urged by the resolution to be quicker at responding to requests for assistance from victim countries and to be more proactive in providing information.

Whilst encouraging, the resolution does not address the problem of incumbent corrupt leaders who are unlikely to initiate the call for the return of assets. In these situations, states should follow the example of the US Department of Justice which, on 25 October 2011, filed civil forfeiture complaints to seek to recover from Teodorin Obiang, a Government Minister in Equatorial Guinea, and son of the president, approximately US$70.8 million of property which it alleged was the proceeds of corruption.

Res. 4/5 and Res. 4/6

Participation of observers in the IRG Non-governmental organisations and the review mechanism.

Ana Revuelta (consultant) and Gillian Dell - Transparency International-Secretariat

What started out as one draft resolution on IRG observers ended up as two, thanks to the vociferous opposition of a few governments to having civil society observers in the IRG. Resolution 4/5 is a simple one allowing governments that have not ratified (only 35 now remaining) and inter-governmental organisations to be observers in the IRG, while Resolution 4/6 calls for "briefing sessions" for NGOs alongside the IRG and postpones a decision on observer status.

The background to this is that Rule 17 of the CoSP rules of procedure allows civil society organisations (CSOs) to attend CoSP plenary sessions as observers and another rule -Rule 2- says that these rules of procedure also apply mutatis mutandis to CoSP subsidiary bodies. The IRG is a CoSP subsidiary body -- thus Rule 17 applies to it. This was confirmed by the UN Office of Legal Affairs in August 2010. However, in practice CSOs have never been admitted to IRG sessions. This is due to objections raised by the Russian Federation, supported by a few other countries, including China, but opposed by other countries. Even though nothing confidential is discussed in these meetings, Russia and China say that CSOs just don't belong there, it's only for governments.

Ahead of the CoSP, the Russians attempted to settle the matter with a draft proposal to hold "briefing" sessions for CSOs instead of according them observer status. A "non-paper" setting this out was circulated informally during the September 2011 IRG meeting but was rejected by European governments.

In Marrakech, a group of Latin American countries -Chile, Colombia, Peru and Mexico- tried to find a compromise. Their proposal was to allow CSOs to participate in a segment of IRG meetings instead of the whole session. The Russian response was to table a resolution calling for civil society "briefings" i.e. no participation in the meetings. This impasse resulted in the formation of a very small "informal informal" negotiating group including China, Russia, Finland and the Netherlands. The UNCAC Coalition communicated to CSO-friendly governments that we would prefer no outcome to just "briefings".

The end result was a resolution providing for briefings and postponing the decision on observer status. This aims to "build confidence about the role of NGOs in the review process". No specific country situation may be mentioned in the briefings. How useful this might be as an entry point remains to be seen.

We heard that Norway, Switzerland and the United States were the last holdouts opposing the briefing, but also that other CSO-friendly governments wanted to avoid the status quo (no participation at all) becoming permanent. Better a briefing than nothing at all. Others wanted to avoid a major showdown that might cause their adversaries to curtail their involvement in UNCAC discussions. As a matter of fact, many governments we consider CSO-friendly did not raise their voices to insist on CSO participation in the IRG.

Dec. 4/1 and Dec. 4/2

Venue for CoSP 6 and 7

CoSP 3 already decided to hold CoSP 5 in Panama in 2013. CoSP 4 decided to hold CoSP 6 in Russia and CoSP 7 at UNODC headquarters in Austria. The possible venues for CoSP 6 and CoSP 7 were not discussed among governments ahead of Marrakech and the Russian offer to host CoSP 6 came as a surprise to other delegations. The EU proposal to hold CoSP 7 at the seat of the CoSP secretariat in Vienna, Austria reflected a longstanding EU position that CoSP venues should alternate between Vienna and other locations. An important reason for that is reportedly that in Vienna the facilities are known and there are fewer logistical challenges, so that the conference can focus on substance.