Corruption as a Violation of International Human Rights

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 rights⁹and that violations of human rights covenant rights are ‘facilitated where insufficient safeguards exist to address corruption of public officials or private-to-private corruption’.¹⁰Concomitantly, 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.¹³I 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 1997.¹⁶The 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.²²Such 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.²⁸In 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’.⁴³Here, 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.⁴⁵Transparency 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.⁴⁶Accordingly, 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.⁶²The 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.