On The Un Convention Against Transnational Organized Crime And Convention Against Corruption In China: Domestic Efforts And International Cooperation

• Author: Shang Haowen, Huang Gui
• Pages: 85-125

2020] TRANSNATIONAL ORGANIZED CRIME AND CORRUPTION 85

ON THE UN CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME AND CONVENTION AGAINST

CORRUPTION IN CHINA:

DOMESTIC EFFORTS AND INTERNATIONAL COOPERATION

Shang Haowen

Huang Gui

Abstract

The aim of this article is to explore the challenges and approaches

of acceptance and implementation of the UN Convention against

Transnational Organized Crime (UNTOC) and the UN Convention

against Corruption (UNCAC) in China and to examine the practice

of international anticorruption cooperation. The challenges of

acceptance of the UNTOC and the UNCAC mainly comprise

political, national interest and anticorruption strategy

considerations. Meanwhile, the challenges for the acceptance and

implementation of these two international conventions involve not

only good governance and the rule of law considerations but also

the need to integrate them domestically into the national legal

system. Criminal Law is an important part of the laws used in

anticorruption efforts: As society has developed, the scope of

corruption crime has correspondingly expanded. In r ecent years,

because of these two important international conventions, China’s

international cooperation has resulted in some practicable

achievements, especially in terms of individual asset recovery.

I. INTRODUCTION

In a high-risk international society, serious transnational crimes, such as

money laundering, terrorism, corruption, human trafficking, migrant

smuggling and illicit firearms manufacturing and trafficking have infiltrated

our daily life and even overwhelmed the “national-states” authorities.1 The

international society thus needs to exert “stepped up efforts to cooperate on

addressing these crimes.” 2 The United Nations Convention against

Transnational Organized Crime (the “UNTOC”)3 was implemented as a

1 See Andrae Marak, Commentary: New Approaches to Transnational Crime and the Law, 6

HOMELAND SECURITY REV. 171, 171 (2012).

2 Jeremy Kuester, Transnational Influences on Financial Crime, 4 NAT’L SECURITY & ARMED

CONFLICT L. REV. 71, 73 (2013).

3 G.A. Res. 55/25, annex I, United Nations Convention Against Transnational Organized Crime (Nov.

15, 2000); G.A. Res. 55/25, annex II, Protocol to Prevent, Suppress and Punish Trafficking in Persons,

86 TSINGHUA CHINA LAW REVIEW [Vol. 13:83

mechanism enabling international cooperation on combating these crimes by

establishing international standards and directions for bilateral and

multilateral cooperation. Therefore, in its Forward, the UNTOC states that

“the international community demonstrated the political will to answer a

global challenge with a global response. […] If the rule of law is undermined

not only in one country but in many, then those who defend it cannot limit

themselves to purely national means.”4 Global cooperation and strategy need

to be taken to cope with the crime that extends beyond the borders of a

sovereign country. From a global perspective, the UNTOC has actually

played a significant role in combating transnational crimes and thus it has

been characterized by some scholars as “the most important substantive and

procedural tool in the history of organized crime control.”5

Inevitably, the abovementioned serious transnational crimes have

infiltrated and seriously impacted China, which has relied on this international

cooperation to cope with them. Actually, China has been a member

supporting the UNTOC since the treaty’s initial signing date and has taken on

the international responsibility of combating these serious transnational

crimes.6 Emblematic of serious transnational crimes, “corruption exists in

almost all societies and no society is free from it”.7 It is described by the

former Secretary-General Kofi A. Annan as an “evil phenomenon”,8 because

“[corruption] allows organized crime, terrorism and other threats to human

security to flourish” and “[c]orruption hurts the poor disproportionately by

Especially Women and Children, supplementing the United Nations Convention Against Transnational

Organized Crime (Nov. 15, 2000); G.A. Res. 55/25, annex III, Protocol Against the Smuggling of Migrants

by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized

Crime (Nov. 15, 2000); G.A. Res. 55/255, Protocol Against the Illicit Manufacturing of and Trafficking in

Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention

Against Transnational Organized Crime (June 8, 2001).

4 UNITED NATIONS OFFICE ON DRUGS AND CRIME, UNITED NATIONS CONVENTION AGAINST

TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO iii (2004), https://www.unodc.org/doc

uments/middleeastandnorthafrica/organised-crime/UNITED_NATIONS_CONVENTION_AGAINST_TR

ANSNATIONAL_ORGANIZED_CRIME_AND_THE_PROTOCOLS_THERETO.pdf.

5 Edward Wise, RICO and its Analogues: A Comparative Perspective, 27 SYRACUSE J. INT’L L. &

COM. 303, 304 (2000).

6 China signed the UNTOC in December, 2000, and then on August 27, 2003, it was ratified by the 4th

Session of the 10th National People’s Congress of China, which argued that Article 35(2) stipulating that

disputes should be submitted to arbitration or to the International Court of Justice if they cannot be settled

through negotiation within a reasonable time should be reserved. The Palermo Convention came into force

on October 23, 2003 in the mainland of China and Macao, but for Hong Kong, it was delayed until October

27, 2006. Lianheguo Daji Kuaguo Youzuzhi Fanzui Gongyue (联合国打击跨国有组织犯罪公约) [United

Nations Convention Against Transnational Organized Crime], ZHONGHUA RENMIN GONGHEGUO

WAIJIAOBU (中华人民 共和 国外交部) [P.R.C. MINISTRY OF FOREIGN AFFAIRS] (Apr. 8, 2008),

https://www.fmprc.gov.cn/web/gjhdq_676201/gjhdqzz_681964/lhg_681966/zywj_681978/t422567.shtml.

7 Naveed Ahmed, A Paradigm Shift in Global Anti-Corruption Strategies, 10 J. ISLAMIC ST. PRAC.

INT’L L. 43 (2014).

8 UNITED NATIONS OFFICE ON DRUGS AND CRIME, UNITED NATIONS CONVENTION AGAINST

CORRUPTION iii (2004), https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-

50026_E.pdf.

2020] TRANSNATIONAL ORGANIZED CRIME AND CORRUPTION 87

diverting funds intended for development, undermining a Government’s

ability to provide basic services, [and] feeding inequality and injustice.”9

Correspondingly, actions against corruption have already taken place

globally.10 Moreover, corruption in China is a serious crime, and the

government has taken corresponding actions to fight against corruption since

the People’s Republic of China was established in 1949.11

In different eras, China’s government has emphasized policies of

“seriously cracking down on corruption”, but the policies tended to be in fact

ones characterized as having “much cry and little wool”; the corruption was

like a cancer, as more fighting against it led to more corruption, and the

previous anticorruption measure designed to “treat the symptoms (in Chinese

治标, Zhi Biao) was just a temporary solution.”12 The corruption situation

was not effectively and sustainably changed until the 18th National Session of

the Communist Party of China (the “CPC”).13 On the one hand, after 2012,

China has demonstrated a strong and powerful state-will on fighting

corruption and developing an effective anticorruption system; on the other

hand, the international conventions against corruption and the corresponding

cooperation system were not effectively applied in practice, even though

China had signed and ratified the UNTOC and the United Nations Convention

against Corruption (the “UNCAC”) more than 10 years ago.14 Since 2014,

China took an effective and significant step toward international cooperation

against corruption.15 A meeting was called by the CPC Central Commission

9 Id.

10 See UNITED NATIONS OFFICE ON DRUGS AND CRIME, GLOBAL ACTION AGAINST CORRUPTION (THE

MERIDA PAPERS) (2004), https://www.unodc.org/documents/corruption/publications_merida_e.pdf.

11 See generally Jon S.T. Quah, Hunting the Corruption “Tigers” and “Flies” in China: An Evaluation

of Xi Jinping’s Anti-Corruption Campaign (November 2012 to March 2015), MD. SER. CONTEMP. ASIAN

STUD., no.1, 2015; Jon S.T. Quah, Minimizing Corruption in China: Is This An Impossible Dream?, MD.

SER. CONTEMP. ASIAN STUD., no.4, 2013; Zhou Sheng (周盛), Woguo Gaige Kaifang Yilai Zhidu Fanfu de

Lishi Bianqian: Jiyu Zhongjiwei Gongzuo Baogao ji Xiangguan Zhidu de Wenben Fenxi (我国改革开放以

来制度反腐的历史变迁：基于中纪委工作报告及相关制度的文本分析) [The Historical Changes of the

Anti-corruption System in China Since the Reform and Opening up — A Text Analysis Based on the Work

Report of the Central Commission for Discipline Inspection and Related Systems], 3 GUANCHA YU SIKAO

(观察与思考) [OBSERVATION AND PONDERATION] 58 (2019); Zhao Nan (赵楠), Zhongguo Gongchandang

Fanfubai Douzheng de Lishi Kaocha (中国共产党反腐败斗争的历史考察) [Historical Review on the Anti-

Corruption Campaign of the Communist Party of China], 5 LILUN YANJIU (理论研究) [THEORETICAL

RESEARCH] 26 (2016).

12 See He Jiahong (何家弘), Zhongguo Fanfu Zhibiaolun (中国反腐治标论) [On the Stopgap Tactics of

Anti — Corruption in China], 10 FAXUE ZAZHI (法学杂志) [LAW SCIENCE MAGAZINE] 11, 11 (2005).

13 According to a news report, the number of corrupt provincial and ministerial officials arrested within

two years after the 18th National Congress of CPC had almost equaled 70% of that of the last 10 years (from

2003 to 2011). Wang Shu (王姝), Shibada hou Budao 2 Nian Fanfu Chengji Da Guoqu Shinian 70% (十八

大后不到2年反腐成绩达过去10年70%) [The Achievements of Anti-Corruption with 2 years after the 18th

National Congress of CPC Has Already Equaled 70% of the Number of the Last 10 Years], SOHU CAIJING

(搜狐财经) [SOHU FINANCE] (Oct. 21, 2014, 7:02 AM), http://business.sohu.com/20141021/n405313114.

shtml.

14 China signed the UNCAC in December, 2003.

15 See Dayang Wang (大洋网), Susu Weiguan Fanfubai Dashuju Zhongguo Changdao Yinling Fanfu

Guoji Hezuo (速速围观反腐败大数据 中国倡导引领反腐国际合作) [Looking at the Data of Anti-