A/HRC/35/33 C. Transnational bribery and corruption 71. Transnational bribery and corruption is another area where cross-border cooperation has been used to successfully investigate and prosecute businesses. States parties to the United Nations Convention against Corruption have universally recognized the harm that transnational bribery causes to the public, and the Office of the United Nations High Commissioner for Human Rights (OHCHR) and Human Rights Council have noted the link between corruption and human rights, as the payment of bribes or embezzlement of public funds are often linked to underlying human rights abuses. 58 The investigation and prosecution of those crimes typically requires the need to detect and track the illegal flows of money across State lines; thus, States need to cooperate to determine where a bribe has been paid and where the illicit proceeds subsequently have moved. 72. The existence of key legal frameworks provides an enabling environment for crossborder cooperation with respect to corruption. In furtherance of treaty commitments, States have created national offences focused on transnational bribery. In addition, relevant treaties oblige States to provide for the criminal or administrative liability of legal persons; hence, there is an explicit recognition that businesses will be the subject of enforcement actions. 73. The United Nations Convention against Corruption, for instance, requires States to establish liability for legal persons and to provide penalties for foreign bribery within their national legislation.59 The convention also explicitly recognizes the need for mutual legal assistance and cooperation between law enforcement. 60 Article 48 requires States to cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by the Convention, and article 49 obliges States to consider forming joint investigative bodies for cross-border cases. 74. The Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions is another instrument that requires States to criminalize the bribing of foreign public officials, establish liability for legal persons and cooperate with one another to enforce its provisions.61 It was the first anti-corruption treaty to focus on the supply side of bribery in that it requires home States of corporations to hold business entities accountable for bribes paid overseas. It has also been instrumental in making States refine their national laws to ensure companies can be held liable.62 75. Both the OECD Convention and United Nations Convention against Corruption contemplate peer learning, as their respective review mechanisms allow States to review each other’s implementation of the conventions. 63 OECD has established the Working Group on Bribery, which meets regularly to discuss progress that member States have made with the implementation of its Convention. The Working Group allows States to share experiences and good practices in enforcing foreign bribery laws and provides a robust peer 58 59 60 61 62 63 16 See, for example, OHCHR, “The Human Rights Case Against Corruption” (Geneva, 2013), available from www.ohchr.org/Documents/Issues/Development/GoodGovernance/Corruption/ HRCaseAgainstCorruption.pdf; and Human Rights Council resolution 23/9. See United Nations Convention against Corruption, arts. 16 and 26. Ibid., arts. 5 (4), 14 (5), 37 (5), 42-51 and 53-62. See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, arts. 1-3 and 9-11. Available from www.oecd.org/daf/anti-bribery/ ConvCombatBribery_ENG.pdf. See OECD, The Liability of Legal Persons for Foreign Bribery: A Stocktaking Report (2016), p. 14. Available from http://www.oecd.org/daf/anti-bribery/Liability-Legal-Persons-Foreign-BriberyStocktaking.pdf. See UNODC, “Mechanism for the Review of Implementation of the United Nations Convention against Corruption”, available from www.unodc.org/unodc/en/treaties/CAC/IRG.html; and OECD Working Group on Bribery in International Business Transactions, available from www.oecd.org/corruption/anti-bribery/anti-briberyconvention/oecdworkinggrouponbribery ininternationalbusinesstransactions.htm.