Transnational Corruption

by

Ana Peyró Llopis

• LAST REVIEWED: 02 November 2017
• LAST MODIFIED: 27 March 2014
• DOI: 10.1093/obo/9780199796953-0091

Introduction

Although corruption is an old phenomenon, international efforts to combat corruption are quite recent. The first thing that needs to be clarified is that the fight against corruption is a subject that, up until a few decades ago, was the exclusive preserve of sovereign states and confined mainly to a few provisions of domestic criminal and administrative law. But the phenomenon of corruption became very quickly a transnational issue, which means that, like transnational organized crime or transnational terrorism, the reality of this offence was across borders. Thus, first efforts to combat transnational corruption were through international cooperation between domestic orders. It took some time to have real anti-corruption efforts based on international law and, in particular, international conventions against corruption. The first specialized convention is from 1996, when the Inter-American Convention Against Corruption was adopted, and many of the existing treaties are still regional. However, in 2003, a global convention was adopted as well, the United Nations Convention Against Corruption (UNCAC). Some international law instruments to counter transnational organized crime had been adopted earlier, which included some provisions dealing with corruption. In particular, the United Nations Convention against Transnational Organized Crime (UNTOC), which contains provisions on corruption (articles 8 and 9), was adopted in 2000. All these treaties are mainly aimed at criminalization, prevention, and international cooperation. They frequently include review mechanisms, in order to monitor the implementation of conventional obligations. In addition to the doctrinal writings commenting all these new international tools, there is also an increasing amount of research on the relationship between the fight against corruption and other legal areas. The fight against corruption through international criminal law, the impact of corruption (and anti-corruption) on human rights protection, and the strengthening of the rule of law through anti-corruption initiatives are some of these comprehensive research areas. Finally, there have been other international initiatives to fight corruption, from international organizations to private initiatives, which international lawyers have also largely commented on. The aim of the citations selected here is to demonstrate how transnational corruption has become not only an international issue but also a real concern for international law. With the emergence of such an international legal framework, corruption currently receives an increasing amount of attention from international legal scholars.

Definitional Legal Questions

As far as corruption is concerned, the first discussion is related to terminology. Corruption is generally defined as the use of public office for private gain. But while there is a broad use of the term “corruption” in the public sphere, in particular by the media, its legal definition is narrower and has to be approached globally in terms of related offenses. However, an approach to transnational corruption and international legal anti-corruption tools needs to refer to international definitions of corruption. International criminal law textbooks or encyclopedias can be useful for a first approach to this issue. Corruption is generally thought of as the use of public office for private gain. But there are more specific offenses, like embezzlement, self-dealing, trading in influence, extortion, and bribery, which have international definitions as well. In order to understand these different concepts, in addition to the international conventions, an excellent reference source is Cassese 2009, which acts as an encyclopedia. In addition, Bantekas 2010 and the more specific Bantekas and Keramidas 2006 help to provide a general overview of the fight against corruption from an international criminal law perspective. The analysis in Bantekas 2006 of corruption as a crime against humanity is another interesting approach to definition.

• Bantekas, Ilias. “Corruption as an International Crime and Crime against Humanity: An Outline of Supplementary Criminal Justice Policies.” Journal of International Criminal Justice 4.3 (2006): 466–484.

  DOI: 10.1093/jicj/mql025

  Bantekas’s article suggests that, in certain cases, corruption may take the form of a crime against humanity. Such a legal qualification would have important jurisdictional consequences, as it would empower not only domestic courts, in particular through universal jurisdiction, but also the International Criminal Court to consider such cases. Moreover, this could allow victims of corruption to recover the funds illegally appropriated.

• Bantekas, Ilias. International Criminal Law. 4th ed. Oxford: Hart, 2010.

  This textbook has a section on transnational crimes as well as on extradition and mutual legal assistance. It is useful for understanding the main notions related to transnational corruption. In particular, its approach is accurate regarding the fight against corruption, as it points out the central role of national institutions, and in particular of domestic courts, in the fight against international and transnational criminal activity.

• Bantekas, Ilias, and Giannis Keramidas. International and European Financial Criminal Law. London: LexisNexis Butterworths, 2006.

  This is a comprehensive book on legal issues related to international financial crime. In addition to the global legal framework, it focuses on European legislation.

• Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009.

  This is a complete encyclopedia of international criminal law, which covers not only economic crimes but also other concepts that are useful to better understand how the fight against corruption is an international criminal law issue. In particular, concepts related to jurisdiction and international cooperation are very useful to understand the international legal framework applicable to the fight against corruption.