The major international instruments addressing corruption include the United Nations Convention against Corruption (UNCAC) and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention). These treaties establish a framework for combating corruption globally by setting standards and obligations for state parties.
However, despite having such elaborate legal framework, both of these mentioned instruments suffer from one common problem- none of these made corruption an offence. Both of these Conventions left it to the discretion of the state parties to criminalize corruption in their national laws. The UNCAC, despite being the only legally binding universal anti-corruption instrument, suffers from a multitude of flaws as it primarily depends on the national laws of the states for criminalization of corruption. When a state fails to enact legislation criminalizing corruption, other states are often unable to compel it to do so without risking a violation of the principle of non-interference in domestic affairs. This creates a situation where states retain the discretion to criminalize corruption or abstain from doing so, leaving such critical measures subject entirely to national priorities. For example, the UNCAC did not criminalize acts such as bribery of national public officials, foreign public officials and officials of public international organizations, embezzlement, misappropriation or other diversion of property by a public official, and laundering of proceeds of crime, rather made it an obligation for the state parties to ‘adopt such legislative and other measures as may be necessary to establish it as a criminal offence’. For acts such as trading in influence, abuse of functions, illicit enrichment, and bribery in the private sector, state parties do not even have the obligation of mandatory criminalization, as they are merely required to ‘consider adopting such legislative and other measures as may be necessary to establish it as a criminal offence’.
The UNCAC also contains jurisdictional ambiguities that could potentially be exploited to evade obligations. According to Article 42(1), State parties must be able to assert jurisdiction over the offenses under UNCAC when these are committed: (a) in its territory, (b) on board a ship flying its flag, (c) on board an aircraft registered under its laws. Therefore, it is evident that the mandatory provisions of the UNCAC do not require states to assert jurisdiction over acts of corruption committed abroad by companies registered under their laws. Consequently, states retain discretion and may opt not to assert jurisdiction over such domestic companies based on their national priorities or convenience. Further, the obligation to assert jurisdiction when the offense is committed by one of the nationals or a habitual resident in the territory under Article 42(2)(b) is optional. As such, states are not bound to exercise jurisdiction under this provision, leaving its implementation to their discretion.
With regards to the obligation to ensure that offenses covered by the UNCAC are subject to adequate sanctions, [Article 30(1)] and the obligation to remove, suspend, reassign [Article 30(6)] or disqualify [Article 30(7)] a public official accused of an offense under the UNCAC, the primacy of national law in this respect is affirmed by Article 30, paragraph 9. According to Article 30(9), the description of the offenses and the applicable legal defenses controlling the lawfulness of conduct is reserved to the domestic law of a state party, and such offenses shall be prosecuted and punished per that law. Additionally, the obligation to remove, suspend, reassign, or disqualify a public official accused of an offense under the UNCAC is non-mandatory and can be done only to the extent consistent with the fundamental principles of its legal system. Therefore, States have the freedom to act according to the fundamental principles of its legal system.
The Civil Society Report on the Implementation of Chapter II (Prevention) and Chapter V (Asset recovery) of the UNCAC in Mexico revealed that, despite having one of the most comprehensive anti-corruption regimes in the region, there is a major problem with implementation in practice, some issues still need to be legislated, and high levels of impunity persist. This highlights how national legal systems often fail to either criminalize corruption or ensure the effective implementation of anti-corruption laws. Such gaps show the need for an international framework that criminalizes corruption and holds offenders accountable across jurisdictions.
The UNCAC does not create any responsibility for corporations. Under Article 26 it merely states the obligation of the parties shall to adopt necessary measures, consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention. Thus, when a legal entity incorporated under the laws of a state party engages in corrupt activities in another jurisdiction, the UNCAC does not impose direct responsibility for such acts neither on the corporation nor on the state of incorporation. Furthermore, the state of incorporation may choose not to assert jurisdiction over the corrupt activities of such corporations. Corruption committed by corporations, often termed ‘grand corruption’ due to its scale and societal impact, necessitates strong international regulation. However, the provisions of UNCAC fail to effectively address large-scale corporate corruption, resulting in a weak international framework.
The Semlex case highlights how domestic legal systems often lack the capacity or willingness to prosecute corporate corruption effectively. Belgian passport company Semlex was involved in corruption and money laundering related to overpriced biometric passports sold in Africa. If proven, what Semlex did would qualify as foreign bribery. Investigations revealed payments to government officials, but due to slow enforcement and limited resources in Belgium, many cases were unresolved. In fact, Belgium is one of the 20 countries accounting for 39.8% of the global export with ‘little or no enforcement’ of bribery of foreign public officials. According to Transparency International, nearly half of global exports originate from countries that do not sanction bribery. This covers half of the G20 countries and eight of the top 15 global exporters. Even worse, fewer governments are actively enforcing it since Transparency International’s 2018 poll. It also found that shell corporations used to hide payments make it harder for authorities to trace the origin and destination of the money.
The Odebrecht case was one of the largest transnational bribery schemes in Latin America, where the Brazilian construction company Odebrecht orchestrated a massive bribery scheme across multiple countries in Latin America. Transparencia por Colombia and other local actors sued Odebrecht for violating the collective rights of citizens to good governance and efficient use of public resources. The National Administrative Tribunal of Cundinamarca fined the firm US $1.8 billion. However, Odebrecht appealed and the highest administrative body in the country, the Council of State, overturned the billion-dollar fine, ruling in favour of the company. The precedent set by this verdict allowed other collective action corruption cases to be overturned on appeal. Later, in 2023, Transparencia por Colombia filed a writ of protection with the Supreme Constitutional Court, claiming that the earlier ruling had denied their freedom to collective action. This case illustrates the reluctance of states and national courts to hold corporations accountable for corruption, underscoring the inherent danger of relying solely on domestic legal systems for penalizing corruption.
The requirement of ‘Double Criminality’ may also create problems regarding extradition under the UNCAC given the fact that it does not itself create any offence rather relies on the national laws of the parties. The UNCAC provides that state parties are obliged to apply extradition to the offenses established by UNCAC where the person subject to the extradition request is in the territory of the state party [Article 44(1)]. The provisions in UNCAC itself are not offenses but simply legal obligations between state parties to establish these offenses in their domestic law; extradition can only be an obligation if the offences in question have been criminalized by the requested state. Therefore, a state party shall not be obliged to extradite persons accused of corruption if the same offence is not criminalized under the law of the requested state. In addition, the principle of double criminality prevents extradition with respect to semi-mandatory offenses. The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention) faces a similar limitation: it does not establish bribery as an international crime in its own right. Instead, this convention also relies on national legal systems to criminalize such acts.
Therefore it is evident that the international conventions addressing corruption are substantially hindered by their reliance on national legal systems for the criminalization of corruption, resulting in inconsistent enforcement and limited effectiveness. These frameworks fail to establish corruption or bribery as standalone international crimes, leaving significant gaps in addressing corporate and transnational corruption. The UNCAC could adopt a model similar to the Rome Statute by establishing corruption as a defined international crime. This approach would facilitate the prosecution of corruption under international law, thus diminishing dependence on national legal systems and improving accountability across jurisdictions.
About the Author :
Oishe Rahman is an Apprentice Lawyer and LL.M. student at the University of Dhaka. Her research interests include human rights law, public international law, and comparative law. Oishe Rahman is an Apprentice Lawyer and LL.M. student at the University of Dhaka. Her research interests include human rights law, public international law, and comparative law.