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The United Nations Convention Against Corruption - A Commentary edited by Rose, Cecily; Kubiciel, Michael; Landwehr, Oliver

Ch.I General Provisions, Art.4: Protection of Sovereignty

Christian Pippan

From: The United Nations Convention Against Corruption: A Commentary

Edited By: Cecily Rose, Michael Kubiciel, Oliver Landwehr

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 13 November 2019

Subject(s):
Corruption — Sovereignty — Jurisdiction of states, territoriality principle

(p. 42) Article 4:  Protection of Sovereignty

  1. 1.  States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

  2. 2.  Nothing in this Convention shall entitle a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

A.  Introduction

When states consider entering into new obligations enshrined in an international agreement, concerns about the extent to which their protected domaine réservé will be restricted as a result of their engagement usually figure high on the respective states’ agendas. In view of its global reach, its comprehensive approach to the issue of corruption and its potentially far-reaching provisions on law enforcement and international cooperation, UNCAC is no exception in this regard. Article 4, the inclusion of which was proposed during the negotiation of the Convention by Austria, the Netherlands, Colombia, Mexico, and Turkey, directly addresses these concerns by reaffirming the well-established international law principles of sovereign equality, territorial integrity, and non-intervention in the domestic affairs of states.1 Notwithstanding additional legal safeguards designed to protect national prerogatives in other parts of the Convention, Article 4 is meant to serve as the ‘primary vehicle’ for the protection of sovereignty in the context of UNCAC’s implementation by states parties.2

The text of Article 4 is a copy of Article 4 of the United Nations Convention Against Transnational Organized Crime,3 a provision which itself was derived from paragraphs 2 and 3 of Article 2 of the 1988 United Nations Convention Against Illicit Traffic in (p. 43) Narcotic Drugs and Psychotropic Substances.4 Similar to the latter two conventions, the main reason for equipping UNCAC with a general (‘across-the-board’) sovereignty clause was to facilitate its acceptance by as many states as possible, including states that so far have not acceded to any other international treaty dealing with the matter of corruption.5 Universal participation in UNCAC was seemingly thought to be more probable by its drafters if—in addition to the numerous semi- and non-mandatory as well as qualified provisions appearing throughout the Convention—a separate article of general application would reiterate that the obligations assumed by states parties have to be carried out in full compliance with the cardinal principle of sovereign equality and the concomitant principles of territorial integrity and non-intervention in domestic affairs.6

B.  The (Mostly) Symbolic Character of Article 4

Constituting one of only four introductory provisions of the Convention, Article 4 may well have an added calming effect on states parties concerned about UNCAC’s potential to unduly intrude into matters traditionally regarded by states as ‘domestic’ or ‘internal’. Yet, from a strictly legal perspective, doubts about the need for a general provision on the protection of sovereignty in the context of the present Convention remain for several reasons. For one, Article 4 refers to fundamental tenets of the international legal order, all of which are also prominently articulated in the Charter of the United Nations.7 As is well known, in the event of a conflict, obligations under the Charter take precedence over any other treaty obligation entered into by UN member states.8 Given that the supremacy rule of the UN Charter evidently also applies to obligations assumed by states under UNCAC, Article 4 appears to represent little more than a reminder for states parties of international legal precepts that they would be required to respect even in the absence of their (renewed) affirmation in the text of the Convention itself.9

More importantly, however, due to the liberal use of semi- and non-mandatory articles, as well as qualified provisions, the Convention is for the most part not likely to pose any threat to the sovereignty of states parties in the first place. As explained in more detail in other parts of this Commentary, semi-mandatory provisions (‘shall consider’) oblige parties to genuinely consider adopting a certain measure, whereas non-mandatory provisions (‘may adopt’, ‘may consider’) leave even the mere contemplation of their implementation entirely to the parties’ discretion. Ultimately, both semi-mandatory and non-mandatory provisions enable states parties to simply refrain from executing them. As one would expect, the drafters of the Convention resorted to these types of optional (p. 44) provisions primarily in areas that, during the negotiations, turned out to be ‘problematic’ in terms of national sensibilities and particularities.10

In addition, several of UNCAC’s articles employ qualifying language. A more benign manifestation of such language requires states parties to adopt (or to consider adopting) legislative or other measures ‘in accordance with’ or ‘consistent with’ the fundamental principles of domestic law, or their domestic legal and administrative systems more generally. In fact, almost all of the provisions on prevention in chapter II and many of the provisions on law enforcement in chapter III of the Convention contain such language.11 To be sure, these types of qualifiers must be distinguished from genuine safeguard clauses, which appear in two variations. A first variant limits the obligations of states parties in case of conflicting domestic rules by stipulating that they shall adopt relevant measures ‘to the extent permitted by’, ‘subject to’, or ‘without prejudice to’ their constitution and/or basic principles of their domestic legal system.12 A second variant provides that states parties shall adopt certain measures only ‘as may be necessary’, or ‘as appropriate’, thereby offering them yet another route to escape the implementation of a large number of the Convention’s provisions.13 At times, both types of clauses can be found in one and the same article.14

Lastly, sovereignty concerns have also informed the arrangements put in place for the monitoring of states parties’ compliance with the Convention’s provisions. Specifically referring to Article 4, the Terms of Reference of UNCAC’s Review Mechanism of November 2009 (established by the Conference of the States Parties on the basis of Article 66 of the Convention) recall that the mechanism ‘shall not serve as an instrument for interfering in the domestic affairs of States Parties but shall respect the principles of equality and sovereignty [ … ]’.15 Yet, in view of the distinct softness of the mechanism, the parties’ concerns in this respect again appear rather imagined than real. This is confirmed, for instance, by the fact that the periodic ‘self-assessment check-list’ (which needs to be prepared by each state party) and the subsequent ‘desk review’ (which is carried out by two other states parties) may be complemented by onsite country visits only if the party under review agrees to it.16 Likewise, the country report composed by the reviewing states remains confidential, unless the reviewed state exercises its ‘sovereign right’ to publish it.17 Quite (p. 45) unsurprisingly, then, the Convention also lacks any meaningful enforcement mechanism against states parties in case of non-compliance with its (mandatory) provisions.18

C.  Content and Scope

1.  Protection of Sovereign Equality and its Corollaries (Paragraph 1)

As already mentioned in the preceding section, Article 4 reiterates long-standing, cardinal principles of international law, which represent some of the basic legal pillars upon which the United Nations itself is based. Indeed, an interpretive note to Article 4 explicitly states that the principle of non-intervention ‘is to be understood in the light of Article 2 of the Charter of the United Nations’.19 While it seems clear that the principles of sovereign equality and territorial integrity must also be understood primarily in light of Article 2 of the Charter, the singling out of the principle of non-intervention in this context is of particular relevance. According to Article 2(7) of the Charter, the plea of unlawful intervention is open to states only in respect of ‘matters which are essentially within the domestic jurisdiction of any State’.20 In keeping with the Permanent Court of International Justice (PCIJ) judgment in the Nationality Decrees in Tunis and Morocco case,21 it is generally agreed that the term ‘essentially’ in the Charter’s non-intervention clause reflects an evolutionary conception of this principle. Whether a given matter is or is not within a state’s domaine réservé depends on the development of international law. Whenever a subject area is regulated by treaty-based or customary rules of international law, it will thus cease to belong exclusively to the domestic jurisdiction of states that are bound by those rules.22

The interpretative note’s terse clarification regarding the correct reading of the principle of non-intervention underscores the fact that Article 4 does not provide an overriding escape clause for states from their commitments under the Convention. Having accepted to be bound by the obligations imposed by UNCAC in areas that otherwise might be viewed as residing within its domestic jurisdiction, a party is precluded, in the absence of a specific safeguard clause, from invoking the notion of domaine réservé—or state sovereignty more generally—to justify its non-implementation of the Convention’s mandatory provisions.23

Of course, states must nevertheless be mindful of the sovereign rights of other states when carrying out their obligations under the Convention. While this is not the place to delve into the substance of those rights in any detail, it should be recalled that ‘sovereign equality’ is, in itself, a rather vague concept, ‘the content of which is determined by a number of more concrete rules of international law binding upon States at a given time’.24 (p. 46) According to the UN General Assembly’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, the principle requires states to respect the judicial equality, legal personality, territorial integrity, political independence, and constitutional autonomy of other states.25 Moreover, as noted earlier, freedom from undue external interference is a direct corollary of sovereign equality. States are thus strictly required to refrain from the use of any measures aimed at coercing another state so as to obtain from it the subordination of the exercise of its sovereign rights. Likewise, no state has the right to intervene in the internal or external affairs of any other state.26 Exceptions to these principles are only acceptable to the extent that they are provided for by international law; that is, by general or specific rules of international law to which the states concerned are bound.

UNCAC was carefully drafted with a view to avoiding any friction resulting from a state party’s (purported) failure to respect the national prerogatives of another party. This is particularly visible in those parts of the Convention that deal with matters of jurisdiction, international cooperation, and asset recovery.27 While the whole instrument is clearly aimed at improving collaboration between parties so as to enhance the effectiveness of the global fight against corruption, relevant activities and operations (such as the extradition of persons for offences covered by the Convention, mutual legal assistance, joint investigations, or cross-border asset recovery) can only be put into practice on the basis of formal requests and approvals and/or bilateral or multilateral arrangements and agreements. As a result, such activities will be consensual and hence in compliance with the basic principles referred to in Article 4. Moreover, even where parties are required to take certain measures or to initiate certain procedures in order to facilitate effective law enforcement through international cooperation, domestic law caveats are usually built into the respective provisions. By way of example, Article 55 on international cooperation for purposes of confiscation provides (in paragraph 4) that all decisions or actions taken by a party in response to a request from another party related to a return of assets through confiscation shall be ‘in accordance with and subject to the provisions of its domestic law and procedural rules’, or any bilateral or multilateral agreement to which it (the requested party) may be bound in relation to the requesting party.28

2.  Exclusive Exercise of Territorial Jurisdiction and Performance of Functions Reserved for Domestic Authorities (Paragraph 2)

Paragraph 2 complements the preceding paragraph by specifically highlighting a crucial aspect of state sovereignty. In a nutshell, no state is entitled to exercise jurisdiction and to carry out law enforcement action in the territory of another state in the absence of a permissive rule to the contrary derived from customary international law or international agreements binding upon the states concerned.29 That said, it is also widely acknowledged that a state is generally not prohibited from exercising jurisdiction within its own (p. 47) territory in respect of cases that relate to acts that have taken place outside its borders. International law continues to afford states a large degree of discretion in this regard, which is only limited in certain cases by prohibitive rules, for instance those pertaining to the immunity of state officials from foreign criminal jurisdiction.30

The issue of jurisdiction over offences covered by UNCAC is addressed in Article 42 of the Convention. The provision requires states parties to apply, first and foremost, the classical territorial principle but also provides them with the option to establish jurisdiction on the basis of the principle of (active and/or passive) nationality and, in respect of offences committed directly against a state party, the principle of protection.31 To the extent that the latter principles take on an extra-territorial dimension (e.g. in case of an offence committed outside the territory of a state party by or against one of its nationals), the Convention obviously restricts their application to ‘prescriptive jurisdiction’; that is, the authority of states to legislate and, as the case may be, to prosecute.32 As indicated earlier, this has to be distinguished from the exercise of enforcement jurisdiction on the territory of another state, which remains prohibited under international law except when undertaken with the affected state’s specific consent in a given case, or on the basis of a bilateral or multilateral treaty. Article 42(2) affirms this understanding by providing that states parties may establish jurisdiction on the basis of the nationality principle and the protective principle only ‘subject to article 4 of this Convention’.33

As a consequence, UNCAC foresees various forms of cooperation between states parties, including mutual legal assistance in investigations, prosecutions, and judicial proceedings related to offences covered by the Convention. However, legal assistance may be refused for a number of reasons, including, for example, if the requested party considers that the execution of the relevant request ‘is likely to prejudice its sovereignty, security, ordre public or other essential interests’.34 Article 49 applies a similar logic to joint investigations undertaken by states parties (on the basis of an international treaty or by agreement on a case-by-case basis) in relation to matters that are the subject of corruption-related investigations, prosecutions or judicial proceedings in one or more state(s) by requiring all states involved to ensure ‘that the sovereignty of the Party in whose territory such investigation is to take place is fully respected’.35

Repeated references to the ‘sovereignty’ of states parties in the substantive parts of UNCAC—in addition to numerous optional provisions, domestic law caveats, and (other) safeguard clauses—can arguably be taken as further confirmation that, while (p. 48) Article 4 undeniably serves as a guidepost for the interpretation and application of the entire document, it eventually is symbolic rather than functional in nature. Indeed, it may be telling that, with the sole exception of the Arab Anti-Corruption Convention,36 none of the major regional anti-corruption instruments contains a comparable (general) provision on the protection of national sovereignty.

Christian Pippan

Footnotes:

1  UNODC, Travaux Préparatoires on the Negotiations for the Elaboration of the United Nations Convention against Corruption (UN 2010) 61 (hereafter UNODC, Travaux Préparatoires).

2  UNODC, Legislative Guide for the Implementation of the United Nations Convention against Corruption (2nd rev edn UNODC 2012) 12 (hereafter UNODC, Legislative Guide).

3  United Nations Convention Against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) (2001) 40 ILM 335 (hereafter UNCTOC), art 4.

4  United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into force 11 November 1990) (1989) 28 ILM 493 (hereafter ‘1988 Vienna Convention’), art 2(2), (3).

5  China, which ratified the Convention on 13 January 2006 while not being a party to any other international anti-corruption instrument, serves as a case in point here.

6  A similar rationale has accompanied the inclusion of art 2(2), (3) into the 1988 Vienna Convention; see ‘Commentary on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’, UN Doc E/CN.7/590 (UN 1998) 40 (hereafter Commentary on the Vienna Convention).

7  UN Charter, art 2(1), (4), and (7).

8  UN Charter, art 103.

9  Cecily Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems (OUP 2015) 107 (hereafter Rose, International Anti-Corruption Norms).

10  Seemingly in line with this logic, almost all of UNCAC’s more progressive criminalisation provisions are of a semi-mandatory or non-mandatory nature; see Rose, International Anti-Corruption Norms (n 9) 108.

11  Opinions regarding the mandatory versus permissive character of these ‘qualifying clauses’ are divided; see Ophelie Brunelle-Quraishi, ‘Assessing the Relevancy and Efficacy of the United Nations Convention Against Corruption: A Comparative Analysis’ (2011) 2 Notre Dame Journal of International & Comparative Law 101, 108.

12  See, for example, UNCAC, arts 20; 23(1)(b); 26; 31(8); 46(4); 50(1); 55(4); 56. In effect, such clauses enable states parties to lawfully deviate from the basic international principle enunciated in art 27 of the VCLT, according to which ‘[a] party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty’; Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) (1969) 8 ILM 679, art 27.

13  Notably, most of the provisions in chapter III of the Convention contain this particular escape clause.

14  See, for example, UNCAC, art 20 on illicit enrichment: ‘Subject to its constitution and the fundamental principles of its legal system, each state party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence [ … ]’ (emphasis added).

15  UNODC, Mechanism for the Review of Implementation of the United Nations Convention against Corruption – Basic Documents, Terms of Reference of the Mechanism for the Review of Implementation of the United Nations Convention against Corruption (UNODC 2011) sec II, para 5.

16  Ibid., sec IV, para 29.

17  Ibid., sec IV, paras 37–38.

18  Disputes regarding the interpretation and application of the Convention, which cannot be settled through negotiations, may be submitted to arbitration if the states parties involved in the dispute so agree. Failing such an agreement, any of those parties may refer the dispute to the ICJ—provided that none of the states concerned has previously declared its non-acceptance of this option in accordance with UNCAC, art 66(3).

19  UNODC, Travaux Préparatoires (n 1) 63.

20  Art 2(7) may be viewed as lex specialis to the general principle of non-intervention, the universal applicability of which can be derived from arts 2(1) and (4) of the UN Charter and from customary international law; see Georg Nolte, ‘Article 2(7)’ in Bruno Simma et al (eds), The Charter of the United Nations (3 rd edn, OUP 2012) 280, 284 (hereafter Nolte ‘Article 2(7)’).

21  Nationality Decrees Issued in Tunis and Morocco (French Zone), (1923) PCIJ Series B no 4, 24.

23  For a parallel argument see Commentary on the Vienna Convention (n 6) 46.

24  Bardo Fassbender, ‘Article 2(1)’ in Simma (n 20) 133, 150.

25  UNGA Res 2625 (XXV) (24 October 1970).

26  Ibid.

27  UNCAC, art 42; chapter IV (arts 43–50); and chapter V (arts 51–59).

28  UNCAC, art 55(4).

29  The Case of the S.S. ‘Lotus’ (Fr. v. Turk.), (1927) PCIJ Series A no 10, 18–19.

30  Ibid., 19. See also UNCAC, art 42(6), which confirms that the Convention does not exclude the exercise of any criminal jurisdiction established by a state party in accordance with its domestic law, while at the same time reminding parties that this is ‘without prejudice to norms of general international law’.

31  UNCAC, arts 42(1), (2). On the various principles guiding the assumption by states of jurisdictional competence see, for instance, Jan Klabbers, International Law, 2nd edn (CUP 2017) 99–107.

32  This understanding has also informed the respective provisions of the Vienna Convention and those of UNTOC; see Commentary on the Vienna Convention (n 6) 47; David McClean, Transnational Organized Crime. A Commentary on the UN Convention and its Protocols (OUP 2007) 58, 168.

33  UNCAC, art 42(2).

34  UNCAC, art 46(21)(b). According to art 55(3), the same applies mutatis mutandis in case of a request by a state party for confiscation of proceeds of crime and property situated in the territory of another party.

35  UNCAC, art 49. The wording of the provision parallels in its entirety art 19 of the Transnational Crime Convention; see UNCTOC, art 19.

36  League of Arab States, Arab Anti-Corruption Convention (adopted 21 December 2010) art 3; retrievable at https://star.worldbank.org/star/sites/star/files/Arab-Convention-Against-Corruption.pdf.