The International Law-Making Process: An Innovative UK Practice and Its Use in Transposing International Norms into Domestic Law

Abstract

History When parties to an international convention undertake to make certain types of behaviour a criminal offence within their own countries, this will, almost irrespective of constitutional variations, require to be implemented by national legislation. Such is the case with Article 1 of the 1997 OECD Convention on Combating Bribery of Foreign Public OfŽ cials in International Business Transactions (the “OECD Convention”). Parties are required to “take such measures as may be necessary to establish that it is a criminal offence (...) for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public ofŽ cial (...) in order to obtain or retain business or other improper advantage in the conduct of international business”. The article goes on to provide an autonomous deŽ nition of what, for the purposes of the Convention, constitutes a “foreign public ofŽ cial”, though there is no express obligation to adopt the deŽ nition as such. The parties to the OECD Convention, including member states of the OECD as well as other signatories, undertake to submit to a process of monitoring, in the form of peer review of their compliance. Peer review mechanisms, to date used mostly in the consensus-based OECD context, can provide a valuable tool for encouraging and assisting in the implementation of international obligations in national law. In the case of the OECD Convention, this review comprises two phases: in the Ž rst, each country’s implementing legislation is examined to ensure that its criminal provisions fulŽ l the speciŽ c requirements as to the elements of the offence; the second phase examines the implementation in practice of the legislation. When the United Kingdom underwent Phase 1 of the monitoring process, the OECD Working Group on Bribery noted certain deŽ ciencies in the state of the UK law as it then existed, and recommended reforms. After the enactment of the Anti-Terrorism, Crime and Security Act 2001, Part 12 of which dealt speciŽ cally with foreign bribery, a further “Phase 1 bis” review was conducted. This second review found that, when taken together, the UK bribery laws now in force covered the required elements of the offence. However, the Working Group was still concerned about the fragmented and inconsistent nature of the UK law. It is, still, a less than coherent mix of common law and statutes, some of them antiquated, which are too confusing to lend themselves to easy enforcement. The UK Law