States perceived to be highly corrupt are at the same time those with a poor human rights record. International institutions have therefore assumed a negative feedback loop between both social harms. They deplore that corruption undermines the enjoyment of human rights and, concomitantly, employ human rights as a normative framework to denounce and combat corruption. But the human rights-based approach has been criticized as vague and over-reaching. Addressing this controversy, this article seeks to examine the legal quality of the assumed ‘link’ between corruption and human rights more closely. It specifically asks the dual question whether and under what conditions corrupt acts or omissions can technically be qualified as an actual violation of international human rights (doctrinal analysis of the positive law) and whether corruption should be conceptualized as a human rights violation (normative assessment). The answer is that such a reconceptualization is legally sound as a matter of positive analysis, although very difficult doctrinal problems arise. The normative assessment is ambivalent, but the practical benefits of the conceptualization seem to outweigh the risks of reinforcing the anti-Western scepticism towards the fight against corruption and of overblowing human rights. The framing of corruption not only as a human rights issue but even as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments and can usefully complement the predominant criminal law-based approach.
Issue Section:
1 Statement of the Problem
Corruption is high on the human rights and development docket. The UN General Assembly’s Agenda 2030 for sustainable development of 2015 asks all states to ‘substantially reduce corruption and bribery in all their forms’ and to return all stolen assets by 2030.1 In their official contributions to this Agenda, the Human Rights Treaty Bodies have ‘identified mismanagement of resources and corruption as obstacles to the allocation of resources to promote equal rights’.2 In fact, countries with high rates of corruption are the ones with a poor human rights record.3 For instance, the states ranked lowest on Transparency International’s Corruption Perceptions Index of 2017 are Syria, South Sudan and Somalia, all of which have massive human rights problems.4
Against this background, both practice and scholarship have pursued a ‘human rights-based’ approach to corruption.5 The key documents of the United Nations (UN) ground this approach on the assertion that corruption has a ‘negative impact’ on the enjoyment of human rights,6 that corruption ‘undermines’ human rights,7 that it has a ‘grave and devastating effect’ on the enjoyment of human rights,8 that ‘[c]orruption in government, institutions and society at large is a significant obstacle to the enjoyment’ of human rights9 and that violations of human rights covenant rights are ‘facilitated where insufficient safeguards exist to address corruption of public officials or private-to-private corruption’.10 Concomitantly, it is asserted that the human rights lens ‘provides a valuable normative framework’ to address corruption.11 This assertion by the UN human rights institutions has been questioned, and the human rights-based approach has been criticized for its ‘lack of conceptual clarity’.12
Addressing this controversy, this article seeks to examine the legal quality of the assumed ‘link’ between corruption and human rights, the exact legal consequences of a human rights-based approach, its added value and its drawbacks. Importantly, we need to distinguish the vague idea of a ‘link’ between corruption and human rights from the sharper legal claim that under certain conditions a corrupt act (or the toleration of corruption) itself may constitute an actual violation of human rights.13 I will investigate this latter claim through a positive and a normative analysis.14 The doctrinal question of positive law is: Can corrupt conduct be properly conceptualized as a violation of international human rights (part 2)? The normative question is: Should corrupt acts be conceptualized as human rights violations? My answer is that such a reconceptualization is legally sound as a matter of positive analysis, although very difficult doctrinal problems arise. The normative assessment is ambivalent, but, with all caution, I would say that practical benefits of the conceptualization outweigh the risk of reinforcing the anti-Western scepticism towards the fight against corruption (part 3). Part 4 examines the remedies against corruption-based human rights violations in the form of monitoring and enforcement. Part 5 concludes that the re-conceptualization of corruption not only as a human right issue but also as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments but that expectations should not be overdrawn.
The proposal to infuse corruption with human rights aspects responds to the moderate success of the existing international anti-corruption instruments – at least 10 international and regional treaties with various additional protocols as well as soft law.15 Their emergence in the 1990s, in turn, was a reaction to the globalization of corruption itself, to the insight that instances of grand corruption, in particular, had inevitably acquired transboundary elements. The USA championed a treaty to criminalize foreign bribery and succeeded in persuading a large number of states within the Organisation for Economic Co-operation and Development (OECD) to adopt an Anti-Bribery Convention in 1997.16 The primary goal at the time was to eliminate the unfair competitive advantages of companies paying bribes in the new markets, especially of Eastern Europe. In 2003, the UN Convention against Corruption (UNCAC) was adopted, and, in September 2018, it counted 186 state parties.17
A leading authority on corruption mentions the following goals of international anti-corruption policy: first, to improve the functioning of the global markets; second, to promote economic growth; third, to reduce poverty and, fourth, to safeguard the legitimacy of the state.18 Anti-corruption has largely been merged with the good governance agenda19 and the development discourse. And because good governance, as well as development, is in turn nowadays often analysed through a human rights lens, this type of analysis suggests itself for anti-corruption too.
2 Can Corruption Be Conceptualized as a Human Rights Violation?
A Defining Corruption
Corruption is not a technical term; it is typically not considered a criminal offence in criminal codes around the world, and it also does not have a legal definition in international treaties. The most common definition is the one by the non-governmental organization (NGO) Transparency International, according to which corruption is the abuse of entrusted power for private gain. Such abuse may happen on the level of day-to-day administration and public service (petty corruption) or on the high level of political office (grand corruption). These terms do not mark a legal distinction but merely describe variations of the same theme. Often, a particular scheme of corruption permeates the various levels of public administration and thus links both forms of corruption. Because of the growing power of large corporations and non-state actors such as the Fédération Internationale de Football Association (FIFA), the abuse of obligations arising from private law, in a private law-based principal–agent relationship, is also increasingly qualified as corruption. The relevant criminal offences are active and passive bribery, criminal breach of trust, graft, illicit enrichment, and so on. In the private sector, offences are called ‘private-to-private bribery’ or ‘commercial bribery’ and may include anti-competitive practices and regulatory offences.
B Whose Human Rights?
Traditionally, bribery – the prototypical form of corruption – has been considered a ‘victimless crime’.20 According to legal doctrine, the injured party is first of all the public. Can the bribe giver be considered a victim too? This does not seem to be the case where the victim takes the initiative to bribe and/or then blackmails the receiver. However, the briber may be victimized in many constellations of corruption. If the graduate of a public school has to pay the secretary a bribe to receive her diploma, or if she has to pay for additional private lessons from a teacher who indicates that she will not pass the examination otherwise, then she is a victim – not a perpetrator – at least in terms of human rights. Her consent to the illegal quid pro quo is the result of a desperate situation; the consent of the student (or of her parents) is not ‘free’ but, rather, is coerced.
In public procurement, the unsuccessful competitors are the potential victims if they are not awarded the contract due to extraneous criteria, at least if they have a concrete expectancy to the contract and not merely abstract prospects. Clients and end users are often also adversely affected by corruption in public procurement if they have to pay higher prices or if they receive a product that is not worth the money because funds have been diverted during the production process. From the perspective of social human rights whose proper fulfilment comprises the element of ‘affordability’ (such as the affordability of essential medicine as a component of the human right to health), the fact that bribery in procurement processes may make medicine more expensive could be seen as a human rights violation.21 Related questions are how corruption may affect the property and investor rights of the successful bidders. The assessment will differ depending on whether the bidder has won the tender through corruption or whether his investment has been tampered with later by corrupt acts of the host state. These questions will be discussed in section 3.C below.
In the political process, voters are adversely affected by candidates’ financial dependence on major donors if the candidates are politically indebted to the donors after the election and if voters are unaware of those vested interests. Overall, the examples show that human rights of various types of persons in manifold social settings might be concerned by corruption. The key question then is whether persons who are affected directly or indirectly are sufficiently individualized to be qualified as ‘victims’, and that question must be examined in each scenario and cannot be answered in the abstract.
C Which Human Rights?
The next question is which human rights are involved. This question is important because the idea here is not to propagate any (new) human right to a corruption-free society.22 Such a right is neither acknowledged by legal practice nor is there a need for it. Rather, corruption affects the recognized international human rights as they have been codified by the UN human rights covenants. In practice, social rights are most affected, especially by petty corruption. For example, corruption in the health sector affects the right of everyone to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights [ICESCR]); in the education sector, the right to education (Article 13 of the ICESCR) is at issue.23
Liberal human rights may also be undermined by corruption; if a prisoner has to give the guard something in return for a blanket or better food, then the prisoner’s basic right to humane conditions of detention (Article 10 of the International Covenant on Civil and Political Rights [ICCPR]) is affected.24 If, as most observers tend to think, the current surge in human trafficking is made possible and facilitated primarily by corruption that induces police and border guards to look the other way, then this affects the human right to protection from slavery and servitude (Article 8 of the ICCPR).25 Obviously, corruption in the administration of justice endangers the basic rights to judicial protection, including the right to a fair trial without undue delay (Article 14 of the ICCPR).26 Or the human right of association and the (labour) right to organize (Article 22 of the ICCPR and relevant International Labour Organization [ILO] conventions) may be affected by bribes offered by industry to the officials of a ministry of labour in order to facilitate the resignation of a union leader, as a labour complaint in Indonesia alleged.27 In other cases of grand corruption and foreign bribery, however, the implications for human rights – such as the effect of nepotism on the right to equal access to public offices (Article 25(c) of the ICCPR) – are less clear.
D Violations?
The next question is whether it makes sense to speak of human rights violations. Only a few reports and governmental statements do so.28 In the predominant practice of the UN, only weaker vocabulary is used to make the connection, both in the strategic documents – such as the new reports of the Human Rights Council – and in the country-, issue-, or individual case-specific monitoring practice of the Treaty Bodies and the UN Charter-based Human Rights Council.29
Typical for the prevailing approach is a 2010 judgment by the Economic Community of West African States (ECOWAS) Court of Justice in a proceeding instituted by a NGO on corruption in the education sector of Nigeria. The Court stated that corruption in the education sector has a ‘negative impact’ on the human right to quality education, as guaranteed by Article 17 of the African Charter of Human and People’s Rights but does not per se constitute a violation of that right.30 The Court viewed corruption, first of all, as a matter of domestic criminal and civil law, but not of international human rights law, and with which the domestic courts should deal. Corruption does not (or not in the first place) fall within the jurisdiction of the regional human rights court of ECOWAS, the Court said.31
In contrast, those domestic courts that have significantly shaped the legal contours of social human rights – namely, the Indian and South African constitutional courts – tend to assert, rather than explain properly, that and how corruption violates human rights. For instance, the Constitutional Court of South Africa held that ‘[c]orruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms’.32 In a 2012 judgment, the Supreme Court of India held that ‘[c]orruption ... undermines human rights, indirectly violating them’ and that ‘systematic corruption is a human rights’ violation in itself’.33 From a legal standpoint, it is crucial whether a situation is qualified as merely ‘undermining’ human rights – for example, in a general monitoring report – or whether it constitutes a true rights violation that could be declared unlawful in individualized enforcement proceedings (see section 4 below).
E Which State Obligations?
In order to determine whether there is a violation of human rights through corrupt state action, we have to examine the three kinds of obligations – namely, the obligations to respect, protect, and fulfil human rights. The obligation to respect is essentially a negative obligation to refrain from infringements. The obligation to protect primarily refers to protection from dangers emanating from third parties. The obligation to fulfil requires positive action by the state. The UN Committee on Economic, Social and Cultural Rights divides the latter obligation into the three subcategories of facilitate, provide, and promote.34
Next, we have to clarify exactly to which actor the obligations are attached. We must distinguish two points of contact in this regard: first, the specific corrupt conduct of an individual official that is attributed to the state due to the official’s status and, second, the general anti-corruption policy of the state as a whole as an international legal person. A corrupt act by an individual official may, depending on the context and the human right in question, potentially violate each of the mentioned dimensions of obligation. If, in the context of the implementation of a land-use plan, an official forcibly evacuates people who do not pay a bribe, then this may violate the right to housing (Article 11 of the ICESCR) in the negative dimension of the obligation to respect. If, for instance, the employee of a registration office refuses to hand over a passport without an additional bribe, then the right to leave the country (Article 12(2) of the ICCPR) may be violated in the positive dimension of the state obligation to facilitate.
1 Obligations of the State to Protect
In the following discussion, I will focus on the macro-level – on the state as a whole (not on individual officials). How must the lack of effective anti-corruption measures be qualified? The deficient implementation, application, and enforcement of effective anti-corruption measures essentially constitute an omission by the state. Because human rights give rise to the above-mentioned obligations to become active, omissions may violate human rights.35 Concomitantly, effective anti-corruption measures may be considered a way to comply with one of the three facets of the positive obligation to fulfil (facilitate, provide, promote).
More relevant than the obligations to fulfil, however, are the facets of the obligation to protect human rights. In principle, these protective obligations are addressed to all three branches of government. They obligate the legislative power to enact effective laws, the executive power to undertake effective administrative measures, and the judicial power to engage in effective legal prosecution. The case law of the international bodies is not entirely clear in answering the question of whether obligations to protect – especially, the obligations to amend laws for closing legal gaps or to prosecute – are mirrored by individual rights of the victims.36 The obligation to protect was developed in regard to dangers emanating from third parties, such as economic operators. The obligation to protect is thus suitable to provide additional human rights support for the criminalization of foreign bribery demanded by the OECD’s Anti-Bribery Convention.37 State obligations to protect in regard to the activities of transnational corporations, grounded in human rights, are set out in the soft law of the 2011 UN Guiding Principles of Business and Human Rights.38
The obligation to protect under human rights law not only requires the state to protect individuals from the acts of other private persons but also reduces structural human rights risks in which the state’s own officials are involved. For instance, in the case of police violence contrary to human rights, the European Court of Human Rights (ECtHR) demands that the state investigate and prosecute after such incidents.39 Rampant corruption constitutes a permanent structural danger to numerous human rights of persons subject to the power of officials. Therefore, in cases involving the complete inaction of the state or evidently deficient anti-corruption measures, the state is responsible under international law for its failure to discharge its human rights obligations to prevent and protect.40
The acknowledgement of the human rights obligations would significantly strengthen the specific preventive obligations under anti-corruption law. Chapter 2 of the UNCAC requires the states parties to adopt a series of preventive measures, ranging from the establishment of an anti-corruption body and the reorganization of public service to the enactment of codes of conduct for public officials, the reorganization of public procurement and the prevention of money laundering. From the perspective of general international law, these are obligations to prevent. Because the formulation of the UNCAC obligations is rather soft, it is hardly possible to hold a state party internationally responsible if it fails to fulfil its obligations or does so only poorly. But if we interpret the UNCAC obligations in conformity with human rights law (Article 31(3)(c) of the Vienna Convention on the Law of Treaties),41 it becomes apparent that the measures mentioned here must in fact be taken in an effective way in order to fulfil the obligations to protect and to fulfil (including to prevent) grounded in human rights law.42
2 Procedural and Result-Independent Obligations
Cutting across the three dimensions of human rights obligations, procedural obligations arise from all the types of human rights. In the case law of the ECtHR, these constitute the ‘procedural limb’ of the rights under the ECHR. Within the scope of social human rights, they are referred to as ‘process requirements’.43 Here, one of their functions is to serve as an indicator for the fulfilment of the progressive obligation to implement, which is very difficult to measure. Procedural elements are also central to combating corruption. The human rights process requirements that are most relevant here most likely include planning obligations44 and monitoring obligations.45 Transparency obligations are especially important. Not coincidentally, the best-known anti-corruption NGO in the world is called Transparency International. Transparency is also a fundamental principle of the UNCAC.46 Accordingly, the procedural obligations under the UNCAC, especially the disclosure and publication requirements, which can be an effective way to curtail corruption, are equally grounded in human rights.47 Viewed in this light, failure to satisfy these obligations simultaneously constitutes a violation of the relevant human rights. A follow-up question is whether a corrupt state violates its obligations of protection and its procedural obligations only when and if individual acts of corruption are (or continue to be) in fact committed. In the context of the international obligations to prevent, it depends in principle on the specific primary obligation whether ‘prevent’ means that a state must in fact avert the undesirable result or whether the state is merely obligated to employ all reasonable and appropriate means in the sense of a due diligence obligation that is independent of the result.48
The anti-corruption obligations under human rights law mentioned above are best understood as result-independent due diligence obligations. This both corresponds to general human rights law49 and establishes a parallelism to criminal law. Bribery and other offences that we summarize under the umbrella of corruption are, generally speaking, ‘endangerment offences’. This means that they criminalize conduct that endangers legally protected interests even if that conduct does not produce a specific harmful consequence. This is appropriate to the legal good that was traditionally the only one protected by the criminalization of corruption – namely, the integrity of the public service, because it is usually impossible to determine whether a tangible harm has in fact occurred. If the bribing of a public official does not entail that the briber is granted a doctor’s appointment faster than without the bribe, or if a briber does not receive a building permit exceeding the official’s normal discretion, then the bribes would, in a non-technical sense, be ‘unsuccessful’. Nevertheless, the trust in the public service has been undermined, and, for this reason, the unlawful agreement should be punished as bribery. In the courts, this rationale is referred to as follows: ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done.’50 The situation here is different than for the obligation to prevent genocide, for example. In that case, the International Court of Justice (ICJ) held that ‘a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed’.51 This difference in assessment is justified because genocide is a result offence in terms of criminal law, as opposed to an endangerment offence.
Conversely, the obligation (also under human rights law) to combat corruption, as follows, for instance, from the UNCAC, does not require states to stop corruption entirely. The satisfaction of such a ‘negative’ obligation of result (and the measurement of such a result) would be impossible, given that the realization of a low level of systematic corruption is not a one-time success. It is, in contrast, easy to determine that a genocide, for instance, has not been committed. Consequently, this means that a state already violates its preventive and other procedural obligations under both anti-corruption law and human rights law if it fails to act, even if the level of corruption is low despite the laxity of the state. Conversely, a state is released from international responsibility if it takes reasonable protective measures, even if the state is not entirely ‘clean’.
F Corruption as a Violation of the Fundamental Obligations Set Out in Article 2(1) of the ICESCR
Under certain circumstances, corruption (both petty and grand) must notably be considered a violation of the ICESCR. As mentioned above, corruption – for example, in the police force and the judiciary − also affects human rights enshrined in the ICCPR. But this section concentrates on the ICESCR because the legal determination of a violation of this covenant is particularly challenging. Article 2(1) of the ICESCR, which sets out the fundamental obligations of the states parties, contains four components that are subject to monitoring by the treaty body, the Committee on Economic, Social and Cultural Rights (CESCR). Each component is a starting point for specific state obligations, including in the field of anti-corruption. Each of these obligations may become difficult or impossible to fulfil in the circumstances of grand or petty corruption.
The first element – the core obligation – is ‘to take steps’. These steps, according to the CESCR, must be ‘deliberate, concrete and targeted’.52 It is easy to see that the steps to be taken must include the elimination of obstacles to the realization of economic, social and cultural rights. Because corruption constitutes such an obstacle, states are in principle required by the ICESCR to take anti-corruption measures.53 The Inter-American Commission on Human Rights, for instance, in its guidelines for national reporting, considers ratification of the Inter-American Convention against Corruption and the existence, powers and budget of a domestic anti-corruption authority to be structural indicators for national progress reports.54
The second component of the implementation obligation set out in Article 2 of the ICESCR is that the state party must take these steps ‘with a view to achieving progressively the full realization of the rights recognized in the present Covenant’. This component obligates parties to grant a certain priority in the allocation of resources to the realization of human rights.55 The misappropriation of public funds at the highest level violates this obligation because in such cases the financing of the standard of living of high-level public officials is given priority over the realization of social human rights.56
The third element is to exhaust all possibilities the state has at its disposal (‘to the maximum of its available resources’). Primarily, the state party itself defines which resources are available and what the maximum is. However, according to the Limburg Principles, the CESCR may consider the ‘equitable and effective use of ... the available resources’ when determining whether the state party has taken appropriate measures.57 The component likewise gives rise to a prohibition against the diversion of resources that were originally dedicated to social purposes.58 Indeed, embezzlement and insufficient measures against embezzlement divert funds from social budgets and, thus, breaches this state obligation.59 Corruption further reduces the ability of governments to generate maximum resources, including through international cooperation, by making countries less attractive to donors and investment.60 In their concluding observations on individual states, the various human rights treaty bodies regularly refer to the feedback loop between combatting corruption and devoting sufficient resources to the protection of human rights.61
In fact, grand corruption deprives the state of resources in an ‘inequitable’ way. This is evident when funds are directly misappropriated from the government budget. This also occurs in the case of excessive infrastructure projects or ‘white elephants’ and the exaggerated purchase of military equipment. When developing buildings, roads, airports, and so on of an inferior quality, the funds intended for construction materials can easily be diverted by high-level employees of the government purchasers. Petty corruption likewise indirectly deprives the state of resources by discouraging tax compliance.62 The affected persons do not see why they should have to pay the government twice – once through taxes and once directly to corrupt public officials. Even an extremely inflated budget appropriation for the government’s public relations work may already be inequitable if the members of parliament approving the budget know that the budget item is being used to divert funds, typically by way of accepting inflated invoices from consulting companies paid by government agencies, whereupon the consultants transfer the money back to the private accounts of the ministry officials (kickbacks). It must be decided from case to case when the obligation to use all available resources as set out in Article 2(1) of the ICESCR has been violated.
The fourth component of the fundamental obligation set out in the ICESCR is to employ ‘all appropriate means’, to which I will come back in section 2.J below. Whenever the state party fails to comply with any of these obligations,63 it is in non-compliance with the covenant. In the final analysis, the CESCR could, lege artis and as a way of continuing its own practice and that of the state parties, use the existing monitoring procedures to make the authoritative determination that a state that pursues an evidently deficient anti-corruption policy in the face of rampant corruption is violating its fundamental obligation arising from the ICESCR.
G Corruption as Discrimination under Article 2(2) of the ICESCR and Article 2(1) of the ICCPR
Some types of corruption may amount to discrimination.64 Discrimination in the proper sense is distinct from unequal treatment in the sense of Article 26 of the ICCPR. The latter provision basically only prohibits arbitrariness, and its effects are stymied by numerous reservations of state parties. Overall, the autonomous equal treatment guarantee of Article 26 does not seem to offer a legal weapon against corruption. The prohibitions against discrimination (for example, under Article 2(2) of the ICESCR and Article 2(1) of the ICCPR) and under various European rules stipulate ‘that those individuals who are in similar situations should receive similar treatment and not be treated less favourably simply because of a particular “protected” characteristic that they possess (“direct” discrimination). Second, in some situations treatment based on a seemingly neutral rule can also amount to discrimination, if it disadvantages a person or a group of persons as a result of their particular characteristic (“indirect” discrimination)’.65 In the context of corruption, indirect discrimination is particularly relevant, and such discrimination is prohibited by the universal human rights instruments.66 Finally, discrimination may also arise from an omission,67 which is sometimes referred to as ‘passive discrimination’. This type of discrimination likewise seems to be especially relevant in the context of corruption.
Importantly, the UN covenants’ ancillary prohibitions against discrimination apply only in connection with the exercise or enjoyment of a right under the covenants (Article 2(1) of the ICESCR and Article 2(1) of the ICCPR). For this reason, corruption affecting social rights and corruption with regard to rights of competitors in public procurement can never be captured under the ancillary non-discrimination clause of the ICCPR because these rights are not guaranteed by the ICCPR itself, so that the covenant’s ancillary anti-discrimination guarantee (Article 2(2)) is not applicable in these contexts.68
Discrimination under Article 2(2) of the ICESCR and Article 2(1) of the ICCPR comes into play only if it involves unequal treatment on the basis of a particular ‘protected’ characteristic. Both human rights covenants prohibit discrimination on the basis of ‘other status’. The inability or unwillingness to pay a bribe might be considered an ‘other status’. Although poverty has traditionally not been considered to be as suspect a classification as race or gender, the CESCR has in General Comment no. 20 on non-discrimination held that individuals and groups must not be ‘arbitrarily treated on account of belonging to a certain economic or social group’.69 Thus, the committee has recognized the inability of a person to pay as a criterion especially worthy of protection, even if the scrutiny warranted in this context should be less demanding than in cases of racial or gender discrimination.
Distinctions based on the unwillingness or inability to pay, or negative impacts on poor people, do not automatically constitute a direct or indirect discrimination, but only if the state policy lacks a legitimate objective and/or is disproportionate to reach that objective.
For example, in campaigns for democratic elections, the economic affluence of political candidates might play an undue role if a state’s legislation does not regulate campaigning properly. In Tanzania, an electoral law allowed for ‘takrima’ or the giving of certain refreshments and gifts to voters by candidates for political office. The Tanzanian High Court found that the legal provisions allowing ‘takrima’ were ‘discriminatory as between high-income earner candidate and low income earner candidate’.70 The High Court concluded that the law violated the rights to equal treatment and non-discrimination regarding political participation (Articles 7 and 21 of the Universal Declaration of Human Rights) as incorporated in the Tanzanian Constitution.71
The solicitation or acceptance of petty bribes may be discriminatory as well. A would-be bribe taker in the public service is likely to assess the victim’s ability and willingness to pay the bribe and will adjust his request and the sum requested accordingly. The distinction he operates here – the target’s willingness and ability to pay – is in itself unlawful and arbitrary. Moreover, the officer’s assessment is often determined by the targeted person’s property status or his or her membership in social groups. Persons belonging to some groups may be judged by the bribe requester as being better able to meet a (larger) request for a bribe. Persons are thus treated differently without a reasonable justification. Thus, if an individual is unable or unwilling to pay a bribe – for example, in order to pass a police checkpoint or to receive a passport – and is thus unable to continue a journey or exit the country, and if the state does not take any measures to combat the corrupt conduct of individual officers, it is both the bribe taker’s action and the state’s passivity that has a disproportionate negative impact on individuals without means. It is then not only the affected persons’ civil liberties that are curtailed. For lack of a legal basis and a legitimate purpose of the request for payment, these persons are also being discriminated against in conjunction with their right to move freely or to exit the country. I submit that this legal assessment does capture the social meaning of corruption, as expressed by then UN Secretary-General Kofi Annan in the foreword to the UNCAC – namely, that corruption ‘hurts the poor disproportionately’ and promotes ‘inequality’.72
H Causation
A key problem for determining a human rights violation through corrupt conduct is causation.73 This is true both for omissions by the state as a whole as well as for the corrupt acts of individual public officials that occur concomitantly. So far, international and regional human rights courts or bodies seized with specific corruption cases did not deal with the question of causation in a systematic way. For example, the ECOWAS Community Court only asked for a ‘clear linkage between the acts of corruption and a denial of the right’ (in that case, the right to education) without describing this ‘linkage’ any further.74
1 International Legal Principles on Causation
In the context of state corruption, the determination of legal causation must be based on the principles of the law of state responsibility.75 Unless special rules exist, these principles apply to state responsibility arising from violations of human rights.76 However, there are no fully settled rules of causation under international law.77 The International Law Commission’s (ILC) Articles on State Responsibility are silent in regard to the causal link between the conduct and the legal breach (‘cause in fact’).78 But the provision in Article 31 of the ILC Articles on State Responsibility governs the causal link between the legal breach and the damage (the ‘scope of responsibility’).79 In the area of human rights, the damage lies in the violation of the right itself and is thus mainly immaterial. Any additional material damage (such as loss of income, costs for medical treatment, and so on) is rather the exception.
State practice exists in regard to the causal link between the legal breach and the damage (scope of responsibility) in the area of human rights violations and for war damages.80 It is recognized that causation (in the sense of a conditio sine qua non or ‘necessity’ or in terms of a ‘“but-for” test’) must be supplemented by an evaluative element that ‘in legal contemplation’ cuts off chains of causation that are excessively long.81 There must be ‘proximity’ between the legal breach and the damage.82 Only for damage/losses that are ‘not too remote’83 is reparation owed.84 ‘Proximity’ is determined on the basis of the objective criterion of ‘natural and normal consequence’85 and of the subjective criterion of ‘foreseeability’.86
Applied to our effort to determine the causal link between a corrupt state action and the legal breach (cause in fact), these terms convey the idea that corrupt acts (or omissions) cause human rights violations in the legal sense only if the violations – such as of the right to food, housing or education – are foreseeable and not too far removed from the corrupt public officials (or the otherwise passive apparatus of the state). In some cases, these requirements are likely to be met. For instance, an arrangement for a court official to receive a small sum of money to summon a witness is causally related to the violation of the right to a fair trial. Similarly, bribes paid to the employee of an environmental supervisory authority, intended to induce the employee to ‘overlook’ the creation of an illegal toxic waste dump, must − according to these principles − be qualified as a cause of the subsequent adverse health effects of the local residents. In such cases, the approval of the toxic waste dump and the damage to health were foreseeable for the public official and were in the usual course of things. The corrupt toleration of the toxic waste dump is thus in the eyes of the law a cause of the violation of the human rights of the local residents in terms of respect for their private life and physical integrity.87
Conversely, a legal causal link should not be affirmed where any subsequent human rights violation is not in the usual course of things and is not foreseeable. As an example, assume that election bribery leads to riots after the announcement of the election results – protests that in turn are struck down by excessive force by the police. The violation of the freedom of assembly and bodily integrity of the demonstrators has then – in legal terms – not been caused by the electoral corruption.88
2 Special Problems of Causation
In addition to the situation where the ‘distance’ between the cause and the human rights violation is too great – which is frequent in the context of grand corruption – other special problems of causation arise. A common situation occurs when the human rights violation has several causes, only one of which is corruption, while both causes in combination have brought about the human rights violation (‘cumulative causation’). As an example, assume that school children are killed by the falling debris of a collapsing school during an earthquake. After the incident, it is determined that the school was built with deficient materials because construction materials had been diverted by municipal officials for their own use and the building inspector had been bribed. Although the corruption was only a necessary, but not a sufficient, condition (not sufficient because it still needed the earthquake) for the school breaking down and killing the children, corruption was still a conditio sine qua non and, therefore, a cause for the human rights violation in the sense of the law.
A different and widespread scenario is called ‘concurrent’, ‘dual’, ‘competing’ or ‘alternative’ causality. This is the situation that both factors, taken for themselves, would have sufficed to bring about the effect. For instance, violations of social human rights frequently stem from an allocation of resources without the proper prioritization of social human rights. If corruption comes on top, both factors concur. Or, in our example, the construction material used due to the corruption could have been so faulty that the school would have broken down without an earthquake. And, concurrently, the earthquake could have been so bad that it would have torn down the school even if built with perfect material and care. In such a scenario, both facts were no ‘necessary condition’ – no conditio sine qua non – because the bad result would have come about anyway. However, this would lead to the absurd assessment that there is no cause at all. Therefore, causality in the legal sense should nevertheless be affirmed, and this is indeed what international legal practice does.89 Transferred to our problem, ‘competing’/‘concurring’ other causes (besides corruption) do not mean that the bribery may not be considered to be the legal cause of a human rights violation.
One variant, when looking at the situation over a period of time, is referred to as ‘overtaking’, ‘pre-emptive’ or ‘overriding’ causation. As an example, assume that a judge is bribed by a party to a civil trial in order to prolong the proceedings. But because the courts have insufficient human and financial resources, the trial would have been delayed substantially even without this corrupt act, and this delay in itself would have violated the right of a party to a hearing within a reasonable time. Typically, it can no longer be determined after the fact whether the factors were (i) cumulative (both needed), (ii) concurrent (‘dual’, ‘competing’ or ‘alternative’ – that is, each sufficient on its own) or (iii) ‘overriding’. The most frequent situation seems to be that the dysfunctionality of a given governmental sector has multiple causes, only one that is corruption, and that it is impossible to determine for sure that corruption was a necessary factor in the strict sense. Using our example, it typically remains unresolvable whether the school would have collapsed in the earthquake even if it had been constructed properly (without corruption). The important point is that, in such a case, corruption might still be qualified as a legal cause. This is what general legal principles, such as the European Tort Law Principles, foresee.90 The further question then becomes whether the causal link is close enough to attribute the deaths to the corrupt building supervisor. This must be examined in detail and may be denied in some cases.
An affair that was decided on the basis of a probably ‘overriding’ causation, which was against the background of factual indeterminacy, dealt with child labour in Portugal in the 1990s. A NGO filing a complaint with the European Committee for Social Rights (ECSR) had asserted, inter alia, that the Labour Inspectorate was corrupt. However, the committee opined that the inspectorate was (anyway) not working efficiently enough to monitor and remedy the situation (its malfunctioning was thus a conditio sine qua non), whether induced by corruption or not. On this basis, the ECSR found that the situation in Portugal on child labour was indeed not in conformity with Article 7(1) of the European Social Charter (which states that the minimum age of employment is 15 years) because several thousand children under the age of 15 actually performed work, but it did not base this finding on corruption.91 This example shows how, in practice, decision-making bodies tend to leave open the question of how important, and how ‘causal’, corruption is for a human rights violation if they have sufficient other reasons for finding a violation. However, it is important to insist on the established principles on causality so as not to miss those constellations where other factors (besides corruption) are absent or cannot be proven.
3 Causation in the Case of Omission
The relevant human rights violations linked to corruption often consist in the non-performance of obligations of protection and of procedural obligations. This gives rise to the question of causation in the case of omission. Normally, legal causation in the case of omission is affirmed if the legally required positive action would, with near certainty, have eliminated the (undesirable) result. This is a softened ‘but-for’ test. When it comes to omitting mere obligations of conduct, however, this ‘but-for’ test does not make any sense and cannot be applied because these obligations do not require the state to reach a particular result (see section 2.E.2 above).
In the Bosnian Genocide case, the ICJ found that an obligation to prevent genocide exists even if the state cannot be certain whether the preventive measures will be successful or not.92 This means that the state cannot avoid responsibility simply by showing that genocide (or, in our case, corruption) would have taken place despite all of its efforts to prevent it. Thus, although proper preventive action would not have eliminated the problem, the omission to act properly still counts as a legal cause. If causation were denied here, the state would be able to avoid responsibility too easily. Even if the failure to act thus did not cause the undesirable result in a scientific sense (because the result would have occurred anyway), causality is nevertheless affirmed in a legal sense.93 According to this analysis – which is common in the law of torts and in criminal law – a state can be held legally responsible for a high level of corruption in the realm of its administration even if victims cannot prove that a particular corruption scandal would not have occurred had the state pursued particular policies (for example, the establishment of an anti-corruption authority with extensive powers and generous financial resources). A further question is whether a mere statistical correlation of corruption indicators and human rights non-compliance indicators might be sufficient to affirm a violation of these human rights ‘by’ the omission of anti-corruption efforts of the state – analogously referring to the statistical evidence that is commonly used to show indirect discrimination. Such statistical evidence would seem difficult as long as the measurement of corruption in most states is based only on perceptions and not on legal facts such as prosecutions.
I Attribution
The next problem is how to attribute corrupt conduct to the state. According to Article 4 of the ILC Articles on State Responsibility, the conduct of any state organ is attributable to the state itself. This is unproblematic in regard to the omissions primarily discussed above, which violate obligations of prevention and protection under human rights law. Such omissions are committed by the legislative, executive and judicial organs of the state that fail to fulfil the obligations addressed directly to them.
1 Ultra Vires Action
The analysis is different in the case of particular individual acts of public officials, especially in the area of petty corruption. Can these be attributed to the state as a whole, so that they trigger state responsibility for the resulting human rights violations? Corrupt public officials obviously exceed their formal authority. Under the norms of state responsibility, however, ultra vires acts are in principle also attributed to the state. The precondition is that an organ of the state or a person empowered to exercise governmental authority acts ‘in that capacity’ (Article 7 of the ILC Articles on State Responsibility). Such conduct in an official capacity must be distinguished from private conduct.94 The landmark cases in international law that examine this distinction do in fact concern corrupt acts of public officials. According to this case law, it matters whether the official acted ‘under cover’ of public office and also made use of the special (coercive) powers of the office (such as the power to search or arrest individuals).95 According to the ILC commentary, the crucial question is whether the corrupt persons ‘were purportedly carrying out their official functions’ and ‘were acting with apparent authority’.96 Applying these principles to our question, we see that, as a rule, the corrupt official acts under cover of, and with apparent, public authority. The official uses his or her position to perform or omit a measure that the official would be unable to do as a private person, such as granting an authorization or licence, refraining from public prosecution, or imposing a fine.
Some further specific questions arise. ‘Freely consummated corruption’ might arguably deserve to be considered as falling outside both the real and apparent authority of the public official, so that he could not be considered to have acted ‘in that [governmental] capacity’.97 Another question is whether, in the case of bribery, the qualifying feature of the crime – namely, the existence of an unlawful agreement (quid pro quo) between the briber and public official (cash against some form of government action or inaction) would have to be taken into account for the determination of attribution of the action or inaction of the public official to the state. One might ask whether the knowledge of the briber about the unlawfulness of the public official’s behaviour, or his participation in it, should preclude any attribution of that behaviour to the state. But such non-attribution is fair only if the official was basically passive and lured into the corruption by the ‘bad’ briber – a situation that is impossible to reconstruct and that might also be unrealistic.98 In any case, attribution to the state cannot be ruled out in the relationship between the state and other actors who seek to invoke state responsibility and who had not participated in the corruption themselves.99 To conclude, the fact that an official’s behaviour is performed as a quid pro quo in bribery normally does not rule out the attribution of that behaviour to the state.100 All the more, other types of corrupt conduct by public officials can and should be attributed to the state in accordance with the principles of state responsibility.
2 The Rationale of Outlawing Corruption
But, from a normative perspective, should attribution not be further limited in light of the rationale of outlawing corruption? Does the proscription against corrupt official acts (or the legal obligation to improve anti-corruption measures) correspond at all to the object and purpose of human rights? Only then would it be legally appropriate to classify corrupt state conduct not only as a governance deficit and, under certain circumstances, as a criminal offence under domestic law, but simultaneously and additionally as a human rights violation.
At first glance, the criminal law on corruption and human rights law serve different objectives. The objective of the criminalization of bribery in German criminal law, for instance, is to ‘protect the functioning of the public administration and public trust in the objectiveness and independence of administrative conduct’.101 The goal is therefore ‘to protect the institution of public service and thus a fundamentally important public good’.102 In this light, can corruption be considered an attack against human rights – the individual legally protected good par excellence? My answer is yes because, of course, the interests of the individual are what underlie the state and the public service protected by the criminalization of bribery. The criminal law on corruption is about ‘protecting trust in the interest of the individual citizen’.103 Protection of ‘the public’ and protection of the human rights of all persons in a given state are therefore not opposites or different categories. Although obviously the individual interests of citizens and the common good may clash (which is why human rights require a balancing against the public interest), the modern liberal state is, by and large, justified only in that, and to the extent that, it protects human rights.
The remaining difference is that corruption is a conduct offence, while human rights violations can be found only if a concrete injury actually occurs.104 But this important structural difference does not prevent attribution a priori; it only means that not every corrupt act also constitutes a human rights violation. If, for example, gifts presented by a pharmaceutical company to a minister of health do not ultimately succeed in modifying the ministry’s patterns of purchase and of the distribution of vaccines in urban slums, this may very well be considered bribery, but the rights of the slum residents to physical integrity or health care have not been violated because the bribery did not have an impact on their standard of care. In the final analysis, the proscription against corruption fits the protective purpose of human rights; on the basis of these considerations, the attributive relationship between corrupt acts or omissions and human rights violations does not have to be denied.
J Margin of Appreciation
Even if we regard a particular corrupt act or the general failure to implement anti-corruption measures as a cause of interference with particular human rights and attribute it to a state, this does not in any way mean that everything affecting human rights also constitutes a violation thereof. Civil/political rights can be lawfully restricted. But the concept of lawful restriction fits ill to social human rights. Can a lack of progression or an under-fulfilment of the obligation to implement those rights progressively be meaningfully called a ‘restriction’ of rights? In order to answer this question, we need to look at one component of the fundamental treaty obligation set out in Article 2(1) of the ICESCR (see section 2.F above) – namely, the use of ‘all appropriate means’. The obligation to use all appropriate means is further specified by the Optional Protocol to the ICESCR in terms of ‘reasonableness’ (Article 8(4) of the Optional Protocol).105
On the one hand, these qualifications constitute a built-in limitation on state obligations. They must be fulfilled only in a ‘reasonable’ way. Social rights do not impose any ‘absolute or unqualified’ obligations upon states, according to the Constitutional Court of South Africa in the landmark Grootboom case.106 In the formulation of the Federal Constitutional Court of Germany in regard to social participation rights, social rights are, a priori, only ‘subject to what is possible’.107 On the other hand, the terms ‘appropriate’ and ‘reasonable’ also represent an opening for defining the bottom-line of positive state action (which, in German constitutional rights doctrine, is called ‘Untermaßverbot’). State measures are not allowed to fall short of a minimum level in order to be considered ‘appropriate’ or ‘reasonable’. One can therefore argue that, in certain situations, in the case of empirically demonstrated corruption in a state, the prohibition of insufficient action requires the state not only to ratify the international anti-corruption instruments but also to launch a national anti-corruption campaign and to formulate a preventive policy.108 The concepts of ‘appropriateness’ and ‘reasonableness’ thus play a dual role; they serve not only as the cap but also as the floor.109 States must take ‘appropriate’ measures – not more but not less either.
The questions now are at what point a state fails to meet that minimum level and which institution is empowered to make an authoritative determination thereof. Once again, the primary responsibility for assessing which means are appropriate and reasonable for realizing social rights lies with the state parties of the ICESCR itself. A state must, as a first approach, decide what anti-corruption strategy it wants to formulate, what legislative measures it wants to take, what authorities it wants to establish and what powers and financial resources it wants to grant that authority. In its settled case law, the CESCR emphasizes that the states parties have a substantial ‘margin of appreciation’ in this regard.110 The Optional Protocol expressly provides that a state party ‘may adopt a range of possible measures for the implementation of the rights set forth in the Covenant’ (Article 8(4) of the Optional Protocol). In the final instance, however, the CESCR reserves for itself the right to review the ‘appropriateness’ of the means, and, thus, of the financial resources, in an authoritative way – albeit without the power to enforce this determination.111
In summary, both particular corrupt acts by individual public officials as well as a completely insufficient or entirely lacking anti-corruption policy of a state on the whole may, in certain constellations, be conceptualized as a violation of concrete human rights – for example, a particular client’s human right to the enjoyment of the highest attainable standard of health or a particular business competitor’s right to equal treatment. The greatest doctrinal obstacle in this regard is not causation or attribution but, especially in the field of social rights, the ‘margin of appreciation’ or ‘reasonableness’.
3 Should Corruption Be Conceptualized as a Human Rights Violation?
A different question is whether the change in perspective – away from combatting corruption primarily with the means of criminal law towards a complementary human rights-based approach – has an added value in practical and policy terms.
A The Opportunity to Strengthen Anti-Corruption
Proponents of imbuing the anti-corruption instruments with a human rights content believe that this will upgrade these instruments in political and moral terms and thus ensure improved implementation of anti-corruption measures.112 The classical argument is ‘empowerment’. The human rights approach can highlight the rights of persons affected by corruption, such as the rights to safe drinking water and free primary education, and show these persons how, for instance, the misappropriation of public funds in those areas interferes with their enjoyment of the goods to which they are entitled. In that way, affected persons would be empowered to denounce corruption to which they otherwise would be helplessly exposed.113 The UN Human Rights Council sees a two-fold advantage. First, the focus is shifted away from the typical object of criminal law – namely, the individual perpetrators – towards the systemic duties of the state. Second, the status of victims is improved.114 This expectation of the Human Rights Council needs to be qualified in the sense that the human rights perspective does not preclude the employment of criminal law instruments by the state. The crucial point is that the entity responsible for human rights is the state as a whole, which cannot escape by getting rid of individual culprits.
A weakness of the purely criminal law approach to anti-corruption is becoming apparent especially in repressive states, where the broad and indeterminate criminal offences can easily be abused to eliminate or at least discredit political opponents.115 The human rights perspective moves attention away from repression towards prevention116 and is thus less favourable to the possibility of abusive initiations of criminal proceedings. Finally, the shift from criminal law to human rights changes the intensity and burden of demonstration and proof. While a public servant accused of bribery or criminal breach of trust enjoys the presumption of innocence, the human rights approach requires states to exonerate themselves before the treaty bodies when accused of deficient anti-corruption measures. The case law in the area of social human rights requires a state to demonstrate that while it is willing to allot sufficient means to an authority that is in charge of securing social rights, it is unable to do so due to a lack of resources.117 This general rule must be applied to anti-corruption measures. Hence, when ‘credible allegations of corruption are linked with human rights violations, the state would be under a duty to demonstrate that it has taken all appropriate measures to ensure the realization of the right in question. … The absence of any steps taken or blatantly inadequate measures to investigate or tackle alleged acts of corruption would constitute a prima facie case of a human rights violation.’118
The follow-up question would be whether statistical evidence or the mere observation of the luxurious lifestyle of high-ranking politicians would be sufficient to corroborate a reproach of a misappropriation of public funds. Article 20 of the UNCAC calls upon states parties to ‘consider’ establishing ‘illicit enrichment’ as a criminal offence. Under such a criminal law provision, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income could be punished. However, this implicit presumption of guilt is problematic in terms of the rule of law. The mentioned structural weaknesses of the criminal law approach are accompanied by the fact that the number of criminal convictions for domestic and foreign bribery is notoriously low worldwide. Only seven of the currently 44 states parties to the OECD’s Anti-Bribery Convention are truly ‘active’ in their implementation.119 Both the systemic problems and the historic experience thus warn against expecting too much from a ‘more robust’ criminal law approach.120 Rather, the human rights arguments and instruments might come in as a useful complement to criminal law.
Overall, the novel, but increasingly practised, human rights-based approach to corruption exemplifies a general recent trend – namely, the infusion of various sub-fields of international law with human rights considerations, which is sometimes called the ‘righting’ of a regime. A human rights-based approach has been pursued, inter alia, in the law of development, in environmental law, in the law of natural disasters, in international labour law and in refugee law. This approach encompasses, first, a principle of interpretation; the specific rules of the regime must be interpreted in the light of human rights. Second, procedural consequences are to allow for, or even require, the information and participation of affected groups and to mandate planning and impact assessment. Both mentioned legal consequences (the harmonizing interpretation and a proceduralization) also play for anti-corruption and ultimately refine the international anti-corruption regime.121 Finally, the human rights perspective could also inform the application of domestic law, which must be interpreted in the light of international human rights in many states. Overall, the infusion of international human rights law into efforts to combat corruption seems apt to complement or bolster the criminalization of corruption and, to that extent, has benign effects.
B The Risk of Weakening Anti-Corruption
The strength of a human rights-based approach to anti-corruption instruments is simultaneously its weakness. This is because of the ambivalent attitude of the global South towards human rights. The critique against human rights overlaps with fundamental objections to the international anti-corruption agenda.122 The overlap results from scepticism towards two distinctively modern and European institutions – namely, the rule-of-law-based ‘liberal’ state and rights.
1 A Western Model of Statehood and of Rights?
According to the critique, the global fight against corruption in which corruption is being denounced as a ‘cancer’ (to use the former World Bank president’s term) is tied to an illegitimate imposition of a particular model of the state.123 This model is not only Western but also fairly recent. Until well into the 19th century, patronage and the purchase of public offices were largely considered legal and legitimate components of governance everywhere in the world, including in Europe.124 The evaluation of these forms of exercising and influencing political power and administration as being illegitimate could only emerge with the development of the modern state in Europe – a state in which an impartial bureaucracy is called upon to apply the law evenly and in which all public officials are required to act in the public interest, not in the interest of their family or ethnic group. Put differently, anti-corruption is based on the picture of a state that performs public duties through public officials who are hired on the basis of merit and who act according to legal rules that formally apply to all.
In a patrimonial state in which the political and administrative positions are primarily intended to generate income (‘rent seeking’), the idea of corruption has no place because bribes are rents. In this sense, the contemporary concept of corruption is inextricably linked to the modern state governed by the rule of law. This explains why anti-corruption is difficult in regions of the world where this understanding of the state is not firmly established or is experienced as alien. The critique is that the ideal of a meritocratic state on the basis of the rule of law disqualifies communities based on family and clan relationships which are sustained by exchanging gifts and providing group members with official posts. The values of reciprocity and loyalty underlying these communities are not acknowledged but, rather, are replaced with Western meritocratic thinking and formal equal treatment.
In addition, critics uncover the economic implications of the model by asserting that the liberal state governed by the rule of law is mainly used as a regulatory framework for a free market. This would mean that anti-corruption is ultimately wedded to a neo-liberal agenda that wants to push back an interventionist, heavily bureaucratized model of the state. The critique thus accuses the ‘rule of law’ of serving primarily the economic interests of property owners and of capital, besides being in cultural terms hegemonic. The point is that the allegation of legal and cultural imperialism, and of the dictate of Western capital that I have summarized, is further nourished by the human rights approach to anti-corruption strategies. From the perspective of the critics, both sets of international instruments are merely two variants of imperialism.
Indeed, the human rights-based approach to corruption does contain a subtle Western bias that suggests caution. We have seen that the determination of a concrete violation of human rights through corruption is easier in the domain of petty corruption. Now Western democracies suffer less from petty corruption than from grand corruption. Grand corruption notably includes what is provocatively termed ‘legal corruption’: non-transparent election financing and the resulting vested interests of politics and a toleration of the smooth transition of public officials to lucrative jobs in the private sector, in which the insider knowledge gained in office can be put to use in the new company (the ‘revolving door’ phenomenon).125 The connection between corrupt conduct and human rights violations of specific and individualized victims is much harder to make. It means that, because the human rights lens works best for petty corruption, it casts a spotlight on the global South. For example, the measurement of corruption in Kenya by organizations such as Transparency International seems to have less credibility because it is regarded as not counting systemic grand corruption among elites but, rather, as focusing on petty bribes by the population in everyday lives.126 To conclude, the accumulation of two strands of ideas perceived as ‘Western’ might lead to resistance rather than to compliance.
2 Universalizability
The dual critique of anti-corruption and of human rights needs to be put in perspective. Let us look at an example. Is it true, as the critique implies, that, from the perspective of a motorist, it comes out to the same thing whether the sum of money he or she has to pay at a road block in order to pursue his or her course represents a bribe to a traffic police officer, as in many African states, or a motorway toll, as in France? Is it true that therefore both modes of governance – the stereotypically ‘Western’ one and the stereotypically ‘African’ one – should be accepted, rather than denouncing the latter one as ‘corruption’? In both cases, the motorist’s freedom of movement is limited by him being forced to pay. A bribe might even be benevolently compared to a tip for an employee in a social context where clients know that the tip will beef up the employee’s low salary. This view would express the market-based logic in which the price for the service results from the meeting of offer and demand.
This example illustrates how the notion of corruption is tied to the conception of a state. An official motorway toll is a public law-based institution designed to serve the public interest – namely, the maintenance of the motorway network. It follows a fee schedule defined in a political or administrative procedure and is therefore transparent and foreseeable. It applies equally to everyone (with reasonable differences based on the type of vehicle, the number of persons or other relevant criteria). These features of legality are missing in the case of a bribe or a tip. All depends on whether one accepts the legality and the legitimacy of the institutions and procedures in which the toll (or any other fee) is defined, collected and spent – in short, whether one accepts the idea of a modern rule-of-law-based state. I submit that the human rights-based approach to corruption – based on the claim that corruption interferes with the rights of each individual citizen – contributes to, rather than undermines, the global acceptance of the model of a non-patrimonial and non-criminal state under the rule of law because it renders this model more concrete and brings it closer to human needs.
Furthermore, the allegation that both anti-corruption and human rights are hegemonic or US-dominated strategies and/or strategies driven by global capital are often a pretext of elites whose power and sinecures are threatened both by anti-corruption and by the demand for respect of human rights. Notably, the invocation of traditional practices – for example, the exchange of gifts and offering hospitality in African societies – can and is being abused by the wealthy and powerful for cloaking corruption, especially when the bribes far exceed all proportion. For example, a Tanzanian law allowed political candidates to offer presents to their voters and called these by their traditional name ‘takrima’, presumably to solicit legitimacy and acceptance. The Tanzanian High Court found that the provisions violated the human rights of the candidates127 and of the voters: ‘[T]heir right to vote for a proper candidate of their choice cannot be freely exercised because they will lose that freedom because of being influenced by “takrima”. Their right to vote will be subjected to “takrima”’.128 The High Court did ‘not see any lawful object which was intended to be achieved by the “takrima” provisions apart from legalizing corruption in election campaigns’.129 Another example is the traditional Kenyan system of ‘harambees’, which require individuals to contribute to the financing of community projects. However, according to a Kenyan report to the Ministry of Justice, ‘the spirit of Harambee has undergone a metamorphosis which has resulted in gross abuses. It has been linked to the emergence of oppressive and extortionist practices and entrenchment of corruption and abuse of office.’130 Against the background of such forms of corruption that, in fact, pervert traditional customs, it is understandable that individuals affected in different regions of the world and cultures have demonstrated on Tahrir Square or the Maidan, in Caracas or in Mexico City, not only for freedom and fair prices of bread but also against the corruption of the elites.
C The Special Case of the Right to Property
Corruption affecting the right to private property warrants a separate assessment. When state officials enrich themselves by stripping big business, their measures constitute various crimes that we might gather under the umbrella of corruption. From a rights perspective, their actions, if imputable to the state, may amount to violations of the right to property (de facto expropriations or other types of infringements). The right to property is protected, for example, under Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR), under bilateral or regional investment protection treaties and under Article 13 of the Energy Charter Treaty (ECT).131 Two known investor–state arbitral proceedings prominently deal with corruption. In World Duty Free, a payment of 2 million US dollars in cash as a personal donation to President Daniel Moi was made by a foreign investor in exchange for the allowance to establish and operate duty free shops in Kenyan airports.132 World Duty Free later claimed that it had been unlawfully expropriated in Kenya. The arbitral tribunal qualified the donation as a bribe, contrary ‘to transnationalized public policy’. Therefore, the contract could not be upheld,133 and World Duty Free’s claim was rejected.
In contrast, the claim by the firm Yukos against Russia was upheld. The 2014 Yukos arbitral award,134 rendered by a tribunal constituted under the ECT, has been praised as demonstrating the potential of ‘investment arbitration to bring corruption to light and act as an outside check on corrupt states’.135 In Yukos, an arbitral tribunal held Russia responsible for breaching its obligation under Article 13 of the ECT by taking a measure ‘equivalent to nationalization or expropriation’.136 This de facto expropriation had been effected by the Russian Federation through the deliberate bankrupting and liquidation of Yukos for political and financial reasons in order to appropriate its valuable assets.137 The arbitral tribunal described in detail the corrupt actions taken by the government against Yukos, including ‘harassment, intimidation, and arrests’.138 The legal consequence of the Russian breach of the ECT is the international responsibility of the Russian Federation, which includes the obligation to make reparations for the injury in form of monetary compensation (the principles of Articles 31 and 36 of the ILC Articles on State Responsibility and specified in Article 13 of the ECT). In application of these principles, the tribunal ordered the Russian Federation to pay 50 billion US dollars of damages to Yukos.
In such cases of grand corruption, the human rights approach does not seem to have an added value, due to the specific features of this constellation. First, in inter- or transnational proceedings, most holders of this right – foreign investors – are moral, as opposed to natural, persons, and, thus, they are not human beings with human interests and needs. Linked to this, private property is sometimes qualified as not being an ‘essential’ or ‘fundamental’ human right.139 Finally, unlike the international protection of the typical human rights affected by corruption (notably, social rights), the transnational protection of the right to property, at least in the prominent two corruption cases so far decided by arbitral tribunals, have directly or indirectly benefited very few extremely wealthy individuals behind the investment, such as Michael Khodorkovsky (the founder of Yukos). Second, in investment arbitration, financial compensation is a primary remedy (as opposed to restitution in kind). Therefore, the establishment of a state obligation to pay compensation amounting to billions of US dollars or Euros will ultimately harm the broad population of the condemned state whose budget will be affected. In contrast, a purely criminal law approach would focus on the personal responsibility of the corrupt officials and would therefore not end up burdening the taxpayer to the same extent. Therefore, infringements of the right to private property through corruption are a specific constellation for which the human rights approach fits less than with regard to social and political human rights.
4 Remedies
Complementing the traditional criminal law-based anti-corruption efforts with human rights-based strategies bears risks, has its costs and also opens up opportunities for new international remedies. The link between corruption and human rights as currently acknowledged in practice allows for corruption to be made a topic in the general monitoring schemes (Universal Periodic Review and treaty-based state reporting). Importantly, the acknowledgement of the link effectively shields the human rights institutions from the reproach of acting ultra vires.140 It is submitted that current practices could and should be reinforced in the direction of mutual mainstreaming.141 Human rights mainstreaming of anti-corruption efforts would mean that the realization of human rights would be one of the anti-corruption goals from the outset. In legal practice, this would imply an interpretation of all criminal offences relating to corruption in a way that takes into account the human rights of victims.
On a complementary basis, the international human rights procedures could and should pay attention to corruption in the following way.142 In the work of the Human Rights Treaty Bodies, the guidelines for all country reports and for all country-specific concluding observations of the committees should include corruption as a checkpoint that must be addressed. The recent practice of the Treaty Bodies,143 first of all the CESCR,144 to elaborate on the need for anti-corruption in more detail is welcome and should be expanded. Along the same line, the mandates of the human rights special rapporteurs and of independent experts should include the topic of corruption. Again, the emerging practice in this regard should be strengthened.145 The extension of this mandate would entail fairly low costs in terms of personal and financial resources.
Not only human rights NGOs but also specialized anti-corruption NGOs should be allowed to participate in the Universal Periodic Review as well as in treaty-specific monitoring. Specialized NGOs could bring in the information and expertise on corruption, which is so far lacking in the human rights institutions. One might also conceive of a new general comment on corruption and human rights that would apply to all treaties. Finally, an anti-corruption mandate could be included in the international standards that would model the competences of national human rights institutions.146 The possibility of finding actual human violations as examined in this article would allow for more specific, individualized legal strategies than the ones just mentioned. In order to substantiate an individual complaint or communication to the human rights committees, to regional human rights courts and in arbitral procedures, the victim needs to make the argument that corrupt behaviour has in fact violated specific human rights in concrete cases. We have seen that this more exacting establishment of a violation faces numerous doctrinal problems. In the end, the existing human rights courts and committees can, and in fact already do, build corruption into their processes, and they may acknowledge corruption as an aggravating factor of human rights violations, without needing to conceptualize corruption as a human rights violation tout court.
However, the reflection seems valuable for elucidating the structure of social rights, the set of rights most affected by corruption. So far, the question at what point a social human right is actually violated in an individual case in the sense of constituting a breach of international law triggering state responsibility has not been fully resolved. For example, it is so far unclear which facts can be meaningfully qualified as a ‘restriction of’, or as an ‘interference with’, a social right, as we do with regard to civil and political rights. Due to the paucity of international individual complaints mechanisms in the area of social rights, monitoring bodies examining state reports and performing general assessments have not been forced to make explicit statements about these matters. This has changed with the entry into force of the Optional Protocol to the ICESCR, which allows for individual communications. The CESCR will be confronted with the problems of a threshold of encroachment, of causality and of attribution. The study of these elements in the field of corruption has highlighted how exceedingly difficult it is to apply them in the area of social human rights.
Overall, the benefit of the human rights perspective is diminished in that the international mechanisms are themselves weak when it comes to implementing human rights. Of course, the domestic institutions are the primary enforcers of international human rights.147 If a domestic court were to condemn organs of the state for a violation of human rights through corruption, this would be a strong sanction. In many states, however, this is not to be expected due to corruption in the justice system.148 This means that the human rights lens does not necessarily empower individual victims of corruption in the practical sense of opening up new pathways of access to justice for them. However, within regional human rights systems, individual complaints could be based on allegations of corruption, and related findings could lead to judicial pronouncements on systemic remedies, to the award of higher sums of just satisfaction and to tighter compliance monitoring. In contrast, on the universal level, the empowering effect of the human rights-based approach is, first of all, symbolic.
5 Conclusion
In terms of communication theory, a human rights ‘framing’ of anti-corruption is associated with a new prerogative of interpretation. Importantly, the prerogative shifts in institutional terms as well, away from the World Bank and towards the UN Human Rights Council. Potentially, this new discursive power entails a new power to act. In legal theory terms, the connection between anti-corruption law and human rights protection is an example for the systemic integration of two sub-areas of international law. Or the human rights approach to anti-corruption instruments can be seen as the constitutionalization of the latter. By elevating corruption to a constitutional matter, the new framing makes anti-corruption an all-the-more legitimate concern of the international community. Some international lawyers might complain that this smacks of ‘human rightism’149 or of a ‘hubris’ of international human rights.150 Indeed, there is a risk of overusing the human rights language. Therefore, the human rights-based approach to corruption should not be employed as a panacea.
The language of law generally (and of rights, more particularly) is a limited one, as the critique of the human rights-based approach to corruption points out.151 Notably, a legal analysis cannot answer the questions of ‘why’ and ‘how’ corruption stubbornly persists. But this is not its purpose. A legal approach (unlike, for example, development economics) does not seek to identify political, economic or psychological causes and patterns of corruption or of any other social harm. Rather, the function of a legal, and, especially, of a rights-based, inquiry is three-fold: a rights-based scrutiny seeks to establish a distinction between lawful and unlawful behaviour, allows justice claims to be articulated and may render possible the use of the legal apparatus to rectify and eliminate situations of illegality. Of course, the law and the institution of rights are only one mode of governance besides others, with maybe modest effects. As with all modes of governance, the costs of employing them have to be properly assessed, notably in comparison to the alternatives. With regard to corruption, the purely criminal law approach has so far not worked all too well, and this suggests trying out complementary strategies.
Speaking practically, the global anti-corruption effort does not need new rules but, rather, better implementation. The human rights approach can contribute to closing the implementation gap. The full recognition that corruption undermines the enjoyment of human rights allows the universal, non-adversarial human rights monitoring bodies to legitimately address corruption in detail without overstepping their mandate. But whether corruption can in itself constitute a human rights violation that can be invoked in an individual complaint procedure is a different question. The demonstration of an actual violation is difficult in terms of both legal argument and proof – but it is not impossible, as this article has sought to show. By contributing to a change of the frame of reference and by opening up new options for monitoring and litigation, the human rights perspective can usefully complement the criminal law approach to corruption and thereby contribute to the fulfilment of the development goals of Agenda 2030
I agree with the link to human rights, however the measurement of corruption is a very standard western biased faux view of corruption.
Transparency International is not a good method of measuring corruption, since the vast majority of corruption is legalized or ignored.
Corruption is best measured by outcomes, because Transparency International does not measure what they can't see, and does not measure the vast legal corruption in justice systems, incarceration systems, law and order, foreign policy and war.
Vast corruption is easily unearthed from human rights outcomes. However are all ignored is western corruption indexes.
e.g. Grand corruption in legal systems causing mass human rights violations in US, where the result is the worlds largest incarceration systems and involuntary servitude program, in the US, 2.2 million prisoners, virtually all without jury trials, along with 100s of thousands in the ICE detention camps, working for corporations without pay (called modern day slavery by the UN). This is far larger than North Korea, or across all of Russia under Stalin.
e.g. Grand corruption in government in US wars causing mass genocides and human rights violations, where the statistical estimate is 1 million dead in iraq 'war' (not the 'US tally' of 'confirmed deaths'), and millions more wounded, millions more displaced. The 'war' was based on proven faked propaganda for no reason. The result was that all Iraqi oil is now traded by the NY Fed, and the entire Iraqi government funds and budget is held at the NY Fed, which dictates how it is spent (such as on US weapons). When the government can get funds (such as when they do what the US wants. The first vote in the democratic Iraq parliament voted to expel all US military...to which the US said 'no, we have your money'. Estimate is 30 million dead from US led invasions since WW2.
e.g. Grand corruption in government in the US bypassing all international norms on human rights, where war crimes on tape in Iraq and Afghanistan, killing civilians, mass extra-judicial killings all over the world using drones, using the standard practice of 'drop weapons' to just place weapons next to civilians for 'evidence' they were 'terrorists'. The response of the US was to sanction the ICC members and their famlies, and pass a law to invade the netherlands if the ICC even investigates already proven war crimes.
These are just a few of the grand corruption that is all legalized and ignored, and mass human rights attrocities on unprecendented scales that are all ignored by western measures of corruption and by Transparency International. Corruption is best measured from human rights outcomes. Picking and choosing of trivial corruption and leaving grand corruption is the norm.