Corruption is at the forefront of human rights and development history. The UN General Assembly’s 2030 Agenda for Sustainable Development for 2015 calls on all states to “substantially reduce corruption and bribery in all their forms” and return all stolen assets by 2030.
In their official submissions to this Agenda, the human rights treaty bodies have identified mismanagement of resources and corruption as barriers to the allocation of resources to promote equal rights. ” In fact, countries with high levels of corruption are countries with a poor human rights record. For example, states were ranked lowest in Transparency International’s Corruption rating. The 2017 Perceptions Index includes Syria, South Sudan, and Somalia, each with serious human rights concerns.
Against this background, both practice and scholars adhere to a human rights-based approach to corruption. Key United Nations (UN) documents base this approach on the assertion that corruption has a “negative impact” on human rights, that corruption “undermines” human rights, that it has a “serious and destructive impact” on the enjoyment of human rights, that corruption in government, institutions and society at large is a significant obstacle to the exercise of “human rights and violations of human rights enshrined in the Covenant are eased where there are insufficient safeguards to combat corruption of public officials or corruption between private and private individuals”. However, it is argued that the human rights lens “provides a valuable regulatory framework” for the fight against corruption. ” This assertion of UN human rights institutions has been questioned, and the human rights-based approach has been criticized for its “lack of conceptual clarity.”
Addressing this controversy, this article attempts to examine the legal quality of the alleged “link” between corruption and human rights, the precise legal implications of a human rights-based approach, its added value and its shortcomings. It is important to note that we must distinguish the vague notion of the “link” between corruption and human rights from the harsher legal claim that, under certain conditions, an act of corruption (or tolerance for corruption) may itself constitute a de facto violation of human rights. investigates this latter claim with positive and normative analysis.
The doctrinal question of positive law is this: “Is it possible to correctly represent corrupt behavior as a violation of international human rights?“
The normative question is: “Should corrupt practices be viewed as a violation of human rights?“
My answer is that this rethinking is legally justified in terms of positive analysis, although very complex doctrinal problems arise. The normative assessment is ambiguous, but, with all caution, I would argue that the practical benefits of conceptualizing outweigh the risk of increasing anti-Western skepticism about the fight against corruption. Part 4 explores remedies for human rights violations motivated by corruption through monitoring and enforcement. Part 5 concludes that rethinking corruption not only as a human rights issue, but also as a potential human rights violation can help close gaps in the implementation of international anti-corruption instruments, but expectations should not be overestimated.
The proposal to introduce human rights aspects to corruption is a response to the moderate success of existing international anti-corruption instruments – at least 10 international and regional treaties with various additional protocols, as well as soft law. Their appearance in the 1990s, in turn, was a reaction to the globalization of corruption itself, to the realization that, in particular, cases of large-scale corruption inevitably acquired cross-border elements. The United States advocated an agreement to criminalize bribery abroad and managed to persuade a large number of states in the Organization for Economic Cooperation and Development (OECD) to adopt the 1997 Convention on the Fight against Bribery. The main goal at that time was to eliminate unfair competitive advantages of companies paying bribes in new markets, especially in Eastern Europe. In 2003, the UN Convention against Corruption (UNCAC) was adopted, and in September 2018, 186 states became parties to it.
A leading authority on corruption cites the following goals for international anti-corruption policy:
- first, improving the functioning of global markets;
- secondly, to promote economic growth;
- third, poverty reduction;
- fourth, protecting the legitimacy of the state.
The fight against corruption has been largely integrated with the good governance agenda and development debate. And since good governance, as well as development, in turn, is now often analyzed through a human rights lens, this type of analysis suggests itself for the fight against corruption.