Corruption is a complex social, political and economic phenomenon that affects all countries. Corruption undermines democratic institutions, slows economic development and contributes to governmental instability. Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law and creating bureaucratic quagmires whose only reason for existing is the soliciting of bribes. Economic development is stunted because foreign direct investment is discouraged and small businesses within the country often find it impossible to overcome the "start-up costs" required because of corruption.
In its resolution 55/61 of December 4, 2000, the UN General Assembly
recognized that an effective international legal instrument against
corruption, independent of the United Nations Convention against
Transnational Organized Crime (resolution 55/25, annex I), was desirable
and decided to establish an
committee for the negotiation of such an instrument in Vienna at the
headquarters of the United Nations Office on Drugs and Crime.
The Convention was adopted by the General Assembly by resolution
58/4 of October 31, 2003. In accordance with article 68 (1) of
resolution 58/4, the United Nations Convention against Corruption
entered into force on December 14, 2005. For each new State or regional
economic integration organization becoming a party to the Convention,
the Convention enters into force on the thirtieth day after the date of
deposit by such State or organization of the relevant instrument.
This convention, which came into force in 2005, has 140 countries on
its list. India, ratified the convention on May 13, 2011.
India had signed the convention in 2005 but the UPA government,
particularly the department of personnel and training (DoPT), had
steadfastly refused to ratify it. Over the years, MEA (which is the
nodal ministry for international treaties), had been pushing the
government to ratify the convention. The official reason was that India
has not yet brought its domestic laws in line with the international
Acceding to the convention will make it easier for India to
repatriate the billions of dollars in ill-gotten wealth that have been
stashed overseas. Under the convention, asset recovery is a fundamental
principle, Article 51 provides for the return of assets to countries of
origin as a fundamental principle of this convention.
The convention requires signatories to put in place certain
preventive measures—like enhanced transparency in funding election
campaigns and political parties—which certainly in India is at the root
of a lot of government corruption.
The convention criminalises not only basic corruption such as
bribery and the embezzlement of public funds but also trading in
influence and the concealment and laundering of the proceeds of
corruption. According to UN literature, "offences committed in support
of corruption, including money-laundering and obstructing justice, are
also dealt with. Convention offences also deal with the problematic
areas of private sector corruption."
The United Nations Convention against Corruption (UNCAC) is the only
legally binding universal anti-corruption instrument. The Convention's
far-reaching approach and the mandatory character of many of its
provisions make it a unique tool for developing a comprehensive response
to a global problem.
The UNCAC covers five main areas: prevention, criminalization and
law enforcement measures, international cooperation, asset recovery, and
technical assistance and information exchange.
The UNCAC also covers many different forms of corruption, such as
trading in influence, abuse of power, and various acts of corruption in
the private sector. A further significant development was the inclusion
of a specific chapter of the Convention dealing with the recovery of
assets, a major concern for countries that pursue the assets of former
leaders and other officials accused or found to have engaged in
corruption. The rapidly growing number of States that have
become parties to the Convention is further proof of its universal
nature and reach.
Corruption can be prosecuted after the fact, but first and foremost,
it requires prevention. An entire chapter of the Convention is
dedicated to prevention, with measures directed at both the public and
private sectors. These include model preventive policies, such as the
establishment of anti-corruption bodies and enhanced transparency in the
financing of election campaigns and political parties. States must
endeavour to ensure that their public services are subject to safeguards
that promote efficiency, transparency and recruitment based on merit.
Once recruited, public servants should be subject to codes of conduct,
requirements for financial and other disclosures, and appropriate
disciplinary measures. Transparency and accountability in matters of
public finance must also be promoted, and specific requirements are
established for the prevention of corruption, in the particularly
critical areas of the public sector, such as the judiciary and public
Preventing public corruption also requires an effort from all
members of society at large. For these reasons, the Convention calls on
countries to promote actively the involvement of non-governmental and
community-based organizations, as well as other elements of civil
society, and to raise public awareness of corruption and what can be
done about it. Article 5 of the Convention enjoins each State Party to
establish and promote effective practices aimed at the prevention of
The Convention requires countries to establish criminal and other
offences to cover a wide range of acts of corruption, if these are not
already crimes under domestic law. In some cases, States are legally
obliged to establish offences; in other cases, in order to take into
account differences in domestic law, they are required to consider doing
so. The Convention goes beyond previous instruments of this kind,
criminalizing not only basic forms of corruption such as bribery and the
embezzlement of public funds, but also trading in influence and the
concealment and laundering of the proceeds of corruption. Offences
committed in support of corruption, including money-laundering and
obstructing justice, are also dealt with. Convention offences also deal
with the problematic areas of private-sector corruption.
Countries agreed to cooperate with one another in every aspect of
the fight against corruption, including prevention, investigation, and
the prosecution of offenders. Countries are bound by the Convention to
render specific forms of mutual legal assistance in gathering and
transferring evidence for use in court, to extradite offenders.
Countries are also required to undertake measures that will support the
tracing, freezing, seizure and confiscation of the proceeds of
In a major breakthrough, countries agreed on asset-recovery, which
is stated explicitly as a fundamental principle of the Convention. This
is a particularly important issue for many developing countries where
high-level corruption has plundered the national wealth, and where
resources are badly needed for reconstruction and the rehabilitation of
societies under new governments. Reaching agreement on this chapter has
involved intensive negotiations, as the needs of countries seeking the
illicit assets had to be reconciled with the legal and procedural
safeguards of the countries whose assistance is sought.
Article 51 provides for the return of assets to countries of origin
as a fundamental principle of this Convention. Article 43 obliges State
parties to extend the widest possible cooperation to each other in the
investigation and prosecution of offences defined in the Convention.
With regard to asset recovery in particular, the article provides inter
alia that "In matters of international cooperation, whenever dual
criminality is considered a requirement, it shall be deemed fulfilled
irrespective of whether the laws of the requested State Party place the
offence within the same category of offence or denominate the offence by
the same terminology as the requesting State Party, if the conduct
underlying the offence for which assistance is sought is a criminal
offence under the laws of both States Parties".
Criminalization and law enforcement
As per the convention, each State Party shall adopt such legislative
and other measures as may be necessary to establish as a criminal
offence, when committed intentionally, the promise, offering or giving
to a foreign public official or an official of a public international
organization, directly or indirectly, of an undue advantage, for the
official himself or herself or another person or entity, in order that
the official act or refrain from acting in the exercise of his or her
official duties, in order to obtain or retain business or other undue
advantage in relation to the conduct of international business.
Bribery in the private sector:
Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal offences, when
committed intentionally in the course of economic, financial or
commercial activities: (a) The promise, offering or giving, directly or
indirectly, of an undue advantage to any person who directs or works, in
any capacity, for a private sector entity, for the person himself or
herself or for another person, in order that he or she, in breach of his
or her duties, act or refrain from acting; (b) The solicitation or
acceptance, directly or indirectly, of an undue advantage by any person
who directs or works, in any capacity, for a private sector entity, for
the person himself or herself or for another person, in order that he or
she, in breach of his or her duties, act or refrain from acting.
Protection of witnesses, experts and victims:
Convention also provides for appropriate measures in accordance with a
State’s domestic legal system and within its means to provide effective
protection from potential retaliation or intimidation for witnesses and
experts who give testimony concerning offences established in accordance
with this Convention and, as appropriate, for their relatives and other
persons close to them.
Each State Party also has to take appropriate measures to provide
protection against any unjustified treatment for any person who reports
in good faith and on reasonable grounds to the competent authorities any
facts concerning offences established in accordance with this