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This article originally appeared on America.AlJazeera.com on Nov. 25, 2013.
By Juliet Sorensen
“I am not a crook,” Richard Nixon famously declared to the nation 40 years ago on Nov. 17, in the midst of congressional hearings that exposed corruption in the highest level of the U.S. executive branch. Optimistic and forward-looking, Americans are not particularly good students of history. To boot, more than 53 percent of those alive today were born after 1970 and thus have no firsthand memory of Watergate. But the letter of U.S. law was permanently altered by Watergate. In fact, both national and international corruption laws have been shaped by the bugging attempt at that infamous Washington hotel.
Today representatives of 167 countries that have signed the United Nations Convention Against Corruption (UNCAC) — the first comprehensive international measure to criminalize international corporate bribery — are meeting in Panama City for the fifth conference of convention signatories to take the temperature of its effectiveness. In order for the UNCAC to be a meaningful instrument against international corruption, however, the delegates must show their commitment and resolve by enacting robust resolutions in line with its provisions.
Corruption impacts every essential function of government. If the World Bank extends a loan to pave and widen a rural road but the funds instead line the pockets of the borrower, the road remains unpaved, and essential access to schools and hospitals are impeded. If a municipal building inspector accepts a bribe in exchange for issuing a building permit irrespective of that building’s adherence to the building code, public safety is at risk. If a chief executive impedes a criminal investigation because it implicates a friend or family member, justice is obstructed and the rule of law thwarted.
The U.S. law that prohibits bribery of foreign officials or political parties was passed in 1977, just three years after Nixon’s resignation and after hearings revealed U.S. corporations were bribing public officials. It was enacted after the Watergate special prosecutor and the U.S. Securities and Exchange Commission identified the existence of secret funds, maintained off the books by publicly traded corporations and used both for illegal domestic political contributions and for payments to foreign officials and political parties. The Foreign Corrupt Practices Act (FCPA) has been vigorously enforced by both the Department of Justice and the SEC; in the last 13 years, the U.S. has sanctioned 103 individuals and 84 companies for violations of international bribery laws. The 10 largest FCPA settlements total $3.2 billion, which went into the U.S. Treasury.
The international picture, on the other hand, is a far different one. A mere 15 years ago, bribes paid to foreign officials were not only legal but considered tax-deductible business expenses in many European countries. However, the international community has responded by enacting a number of binding laws that criminalize both domestic and international bribery.
Aimed at curbing bribery, extortion and embezzlement, the UNCAC, adopted in 2003, requires signatory countries not only to criminalize acts of corruption but also to ensure that those convicted of corruption forfeit the fruits of their corrupt activities. The UNCAC calls on countries to assist one another in evidence gathering and the training of judges, lawyers and investigators to prevent, detect and prosecute corruption. Representatives from nongovernmental organizations, including a delegation I am leading from Northwestern’s Center for International Human Rights, are in Panama City to observe the signatory nations’ level of commitment to initiatives on the conference agenda — for example, increasing the role of global banks in the fight against corruption, preventing corruption in international sporting events such as the Olympics and the World Cup and committing countries to locating and returning stolen assets.
It is one thing for governments to enact laws; it is another for governments to enforce them, especially when those laws target conduct by government officials. The UNCAC’s demands are regrettably weak in this regard, consisting of a “nonintrusive” desk review of a “comprehensive self-assessment checklist” by each signatory nation. A further review on site by outside assessors is conducted only if the signatory nation consents. For example, Afghanistan ratified the UNCAC over five years ago but tied for last place with Somalia and North Korea on Transparency International’s 2012 Corruption Perception Index, which measures corruption via surveys and expert assessments. Half of Afghan citizens paid a bribe while requesting a public service, according to a recent report by the United Nations Office on Drugs and Crime. Bribes paid to public officials in 2012 totaled $3.9 billion, money that is desperately needed in Afghanistan to improve infrastructure, education and health. Cases initiated by the Afghan agency charged with investigating corruption have been repeatedly dismissed or suppressed by the government of Hamid Karzai.
But corruption affects not only the poorest countries. Wal-Mart’s Mexican subsidiary, according to reporting by The New York Times, paid a series of bribes to Mexican zoning officials in order to secure permission to build Wal-Marts in cultural-heritage and environmentally protected areas, including one that was home to renowned Aztec pyramids. In Russia, attorney Sergei Magnitsky was imprisoned in 2008 after alleging corruption and tax fraud by government officials. Denied medical care for gallstones and pancreatitis, he died in prison in 2009. Nonetheless, both Mexico and Russia have signed the UNCAC, as well as the anti-bribery convention of the Organization of Economic Cooperation and Development that forbids companies based in (wealthier) OECD member countries to bribe foreign public officials. Like the UNCAC, the OECD convention, adopted in 1997, does not penalize countries that fail to comply with its requirements but rather provides only for monitoring compliance.
It took the downfall of a president to put the United States on the path to fighting corruption. At home and abroad, the commitment to good government begins at the top. Remedies for violations of most international laws, including the corruption conventions, are extremely limited. Therefore, enforcement of the laws must come from the nations that commit to do so. Nations must show their intolerance of bribery, extortion and embezzlement by enforcing the laws enacted in Watergate’s wake. In so doing, they will commit to memory a sorry chapter of America’s story and hold public officials accountable.
- Juliet Sorensen is a clinical assistant professor of law at Northwestern University.
