Ensayo Legal Sobre Corrupcion

CORRUPTION AND INTERNATIONAL LAW:
The Gondowana Case



Introduction:
This paper will be organized in the following manner. First, the paper will address the issue of whether international law gives a basis of for the Franconia ruling to deny income tax deductions on corruption costs. This determination is essentially the key to any judicial decision on the Gondowana case. The subsequentissues focus more on lex ferenda. and concrete proposals for regulation and control of corruption in the future. They focus whether international law should prohibit corruption and what are the legal, institutional and political changes necessary to help control and diminish corruption globally.

Issue 1: Does international law provide a basis for tax ruling by the Finance Ministry of the FederalRepublic of Franconia denying income tax deductions for bribes and corruption related expenses.

Negative Argument: There IS NOT a basis in international law:
(It should be noted that tax ruling was made before the Franconia domestic tax legislation was implemented[1]. The ruling is therefore completely dependant on the existence of general public international law. Franconia of course has thesovereignty to legislate any prohibition on the use of bribery by its nationals and corporations but this point is not relevant because such legislation had not been introduced at the time of the ruling.)
❖ International law can be established either through the signing of a binding treaty, or through the formation of customary law.[2]
❖ There is no conventional law basis. Franconia has notsigned any legally binding international treaties which prohibit the use of corruption.
➢ OECD Council Recommendation on Bribery in International Business Transactions is not legally binding.[3]
➢ There is no evidence that Franconia signed the Inter-American Convention Against Corruption. Moreover, this Convention, which would be binding on those ratifying states, has not yet come intoforce.
❖ There is no customary international law which prohibits corruption.
➢ There is no generalized state practice. Most states have not implemented legislation prohibiting their nationals from utilizing corruption in their businesses in other states[4]. In fact many “specially affected states”, important in the process of determining the existence of customary law (in this case majoreconomic powers), such as Germany and Japan allow bribes to be deemed business expenses.[5]
➢ There is no evidence that those countries that have prohibited corruption are acting on opinio juris. Even those states, such as the United States, which have policies of prohibiting corruption, have articulated such policies as hortatory voluntary codes of conduct, not declarations of perceivedinternational norms.[6]
➢ Without generalized state practice prohibiting corruption or the opinio juris that such prohibitions are mandated by international norms, no customary law can be said to exist.
Positive Argument: There IS a basis in international law:
❖ Franconia is under a conventional international law obligation to prohibit corruption.
➢ Franconia is a signatory of the 1969 ViennaConvention on the Law of Treaties (let’s at least assume this, since the all Western European states are parties to this convention, and Franconia is a Western European state.)
➢ The Vienna Convention, Articles 49 and 50, makes fraud and corruption of a representative of a state grounds for invalidation of a treaty.
➢ It therefore can follow that the Vienna Convention implicitly holdsfraud and corruption illegal.
➢ By being a party to the Convention, Franconia has accepted the Convention’s norm against fraud and corruption.
❖ There exists a customary international norm against corruption.
➢ There is emerging state practice to prohibit global corruption. For example, the United States has taken measures, such as its Foreign Corrupt Practices Act, and Europe is...