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  This module is a resource for lecturers  

 

Approaches to assessing the corruption-human rights nexus

 

Correlation versus causation

Although corrupt acts can have short- and long-term detrimental effects on human rights, it would be inaccurate to conclude that all acts of corruption always cause identifiable human rights violations (Davis, 2019; ICHRP, 2009, p. 24). In fact, the work of development economists does not necessarily demonstrate that corruption causes human rights violations, but instead generally shows that corruption is negatively correlated with government expenditure on education and health care (Mauro 1998). Moreover, even if a negative correlation between corruption and human rights generally exists, such a correlation does not necessarily exist in every society (Peirone, 2019) and may depend on factors such as the economic environment, the independence of the judiciary, and the country’s regime type and history (see Module 3 of the E4J University Module Series on Anti-Corruption). For example, referring to a case of embezzlement of oil revenues, Rose (2016, pp. 415–416) questions the causal link between specific acts of corruption and the violation of a State’s human rights obligation:

If a government has failed, in the first place, to allocate oil revenues towards social programmes, then the embezzlement of these funds arguably constitutes only one of a number of factors that may contribute to the State's failure to progressively realize social, economic, and cultural rights. Budgetary decision-making may be a far more significant factor. Even where oil revenues remain in the public coffers, safe from would-be embezzlers, they still may not go towards social programmes, as has been the case in so many natural resource-rich States. In other words, embezzlement may not be the factor, but for which oil revenues would go towards progressively realizing the rights to health care or education.

Davis (2019, p. 1291) advances a similar critique:

Assume that the national health care system is so underfunded that the State has clearly failed to satisfy its obligation to fulfil the right to health. This does not necessarily mean that corruption is the cause of the human rights violation. For instance, it is possible that, if the funds had not been diverted, they would have been allocated to the military or to higher education. In this case, it cannot be said that the corruption has caused the failure to realize the right. In general, corrupt diversion of funds has indeterminate effects on enjoyment of human rights. The only exceptions are when the funds have already been allocated, or almost certainly would have been allocated, to compliance with human rights obligations.

Therefore, the causal relationship between corruption and human rights must be carefully assessed on a case-by-case basis and in a context-specific manner. Such assessments could be the basis for a legal claim or political action, and they can also help us gain a more concrete understanding of the ways in which corruption enables or causes the violation of human rights. Some of these approaches are discussed in the following paragraphs.

 

The causal link approach of the International Council on Human Rights Policies

In 2009, the ICHRP published a paper proposing an operational framework that establishes when corrupt acts violate or lead to a violation of human rights. The purpose of the publication was “to provide a technique for analyzing corruption in human rights terms” and to serve as “an analytical tool that should assist in determining when and how violations of human rights and acts of corruption can be connected” (ICHRP, 2009, pp. 24 and 30). The proposed framework focuses on the causal chain of events leading from the corrupt act to the human rights violation. It distinguishes between (a) direct violations, (b) indirect violations, and (c) remote violations.

Direct violations take place when the corrupt act can be directly linked to the human rights violation, including when corruption is “deliberately used as a means to violate a right”. For example, when judges, prosecutors and lawyers are bribed, the right to a fair trial is directly violated. A direct violation may also occur when a human rights violation was foreseeable, but the State did not act with due diligence to prevent it.

Indirect violations occur when corruption is a significant factor that contributes to a chain of events that eventually leads to a violation of human rights. The bribery of public officials to allow the illegal importation of toxic waste, which is then deposited near a residential area, is one example of an indirect human rights violation. In this example, the right to health and the right to a clean environment of the people living near the waste was not the target of corruption, but corruption allowed these human rights violations to occur. Another example of indirect violation, related to the right to food, is provided by Bacio-Terracino (2008, p. 20):  

Particular acts of corruption are known to have taken place where a food producer obtains a food production license by bribing the relevant food safety agency. This can result in unsafe food supply for a considerable amount of people. Hence, when bribery at the level of food regulation opens the door for tainted food to be placed in the market for general consumption, the food safety and dietary needs recognized in the right to food are not respected. In this case, corruption may be blamed for indirectly violating the right to food.

Remote violations take place when corrupt acts are one of several factors that lead to a human rights violation. For instance, corruption in the electoral process can cause doubts about the accuracy and fairness of election results and can lead to protests that are violently repressed by the State. Therefore, corruption can spark a sequence of events that leads to violent repression of protests by police forces – an eventual, remote human rights violation (Figueiredo, 2017).

Boersma (2012, p. 196) has criticized the operational framework of the ICHRP and argued that the terminology – i.e. direct, indirect and remote – is legally imprecise and leads to conceptual confusions and uncertainty in legal terms. She claims that some indirect violations are in fact direct violations, and gives the following example:

It was argued [by the ICHRP] that there is an indirect violation of the right to health when bribery of a public official leads to the dumping of toxic waste in a residential area. Yet, under the right to health, there is a State obligation ‘to protect’ individuals against infringements by third parties. Hence, by allowing the waste to be dumped, the State breaches its obligation to protect, which constitutes a direct violation of the right to health …

While the ICHRP’s framework focuses on the character of the relationship between an act of corruption and the human rights impact (i.e., direct, indirect, remote), Boersma’s analysis highlights the fact that in legal terms, a violation of human rights either has or has not taken place. In other words, international human rights law does not conceive of “direct” or “indirect” human rights violations. Boersma developed an alternative framework for analysing the linkages between corruption and human rights, which is discussed further below.

 

Three levels of human rights obligations: Respect, protect and fulfil

One way to assess the impact of corruption on human rights is to consider the impact at the three different levels of a State’s obligations regarding human rights, namely the obligations to (i) respect, (ii) protect, and (iii) fulfil human rights. While these three levels are not explicitly mentioned in the human rights treaties, they are widely used by the human rights treaty bodies when assessing States’ compliance with human rights obligations (see, e.g., CESCR General Comment No. 12, para. 15; CESCR General Comment No. 13, para. 46; CESCR General Comment No. 14, para. 33; CESCR General Comment No. 24, paras. 10–24). The obligation to respect is essentially an obligation of the State to refrain from interfering with the enjoyment of human rights. It is accordingly considered a “negative” obligation. In contrast, the obligation to fulfil is considered a “positive” obligation, as it requires the State to proactively facilitate and provide human rights by adopting appropriate legal, institutional, budgetary and other measures that ensure the full realization of human rights. The third “level” entails the obligation to protect, which refers primarily to the protection of individuals from acts of other individuals or entities that interfere with the enjoyment of human rights. This requires the State to take appropriate measures to prevent, investigate, punish and redress abuses by third parties.

The obligation to protect is particularly relevant for this discussion of the corruption–human rights nexus, as it requires the State not only to protect individuals from the abusive acts of other private persons or entities, but also to reduce structural human rights risks in which State officials are involved. As explained by Peters (2019, p. 1260), this can be illustrated through the example of police violence that appears to violate human rights. In such cases, the European Court of Human Rights (ECtHR) requires States to investigate and prosecute such incidents. Systemic corruption, however, could constitute a structural impediment to such investigations and prosecutions. Therefore, in cases involving the complete inaction of the State or evidently deficient anti-corruption measures, the State might be deemed to have failed to prevent abuses and could therefore be held responsible under international law for violating its obligation to protect human rights. In other words, anti-corruption measures can enable States’ compliance with their obligation to protect human rights. In addition, the obligation to protect requires States to protect their citizens from abuses by all kinds of private entities, including transnational corporations. Of relevance here are the above-mentioned UN Guiding Principles on Business and Human Rights, which set out the obligations of States to protect individuals from harmful business activities and to provide effective remedies for business-related human rights abuses (see discussion above).

A case that concerns the State’s obligation to protect human rights from harm by businesses is the Oganiland case (Social and Economic Rights Action Center & Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, 2001).In this case, the African Commission on Human and Peoples’ Rights found that Nigeria violated several provisions of the African Charter on Human and Peoples’ Rights by allowing oil companies to operate in Ogoniland in a manner that contaminated the environment and had devastating effects on the health and well-being of the Ogonis. CESCR General Comment No. 24 (2017) discusses in detail the State’s obligation to protect human rights in the context of corporate abuses (para. 18), as well as more generally (para. 20).

The positive obligation to protect does not impose a duty on States to produce certain outcomes, but rather requires them to implement all necessary measures to produce a desired outcome (see, e.g., X and Y v. Netherlands, ECtHR, 1985; Velàsquez Rodrígeuz Case, Inter-American Court of Human Rights, 1988). This is, in other words, an obligation of conduct rather than an obligation of result. With respect to corruption, a State would meet its human rights obligations if it takes all reasonable measures to fight corrupt practices that have a negative impact on human rights, even if corruption was not fully eradicated (see, e.g., Budayeva and Others v. Russia, ECtHR, 2008; Öneryıldız v. Turkey, ECtHR, 2004).

In principle, protective obligations are imposed on all three branches of government. They obligate the legislative branch to enact effective laws; the executive branch to undertake effective administrative measures; and the judicial branch to engage in effective legal prosecution. If any of these actions are impeded by corruption, then the resulting inaction can amount to a violation of the right to due process and the right to a remedy. Arguably, it can also be construed as a violation of the primary right (i.e., the particular human right) that was supposed to be protected by the legal, judicial or administrative process (although the human rights case law is not clear on this issue – see Peters, 2016, pp. 267–269).

Below are several examples of how corruption can affect a State’s compliance with human rights obligations at each of the three levels:

(1) Obligation to respect (the right of peaceful assembly): A political party informed the local authority that it wished to organize a peaceful assembly in a public square to criticize a draft bill that would allow the sale of a state-owned telephone company to a private company. Because the private company feared that parliament would not pass the draft bill if public criticism grew, it bribed the police to prevent the protest. On the relevant day, police forces closed the square where the demonstration was supposed to take place and asked the protesters to leave. In this example, the State violated its obligation to respect (i.e. refrain from interfering with) the right to a peaceful assembly, and this was caused by corruption.

(2) Obligation to fulfil (the right to education): The Ministry of Education provided public funds to a local municipality for the express purpose of building a new school. However, local officials embezzled these funds and, as a result, the school was not built. In this example, corruption caused the breach of the State’s obligation to fulfil the right to education.

(3) Obligation to protect (right to health). An investigative journalist revealed that a private chemical company ignored environmental regulations and diverted toxic waste into the nearby river, contaminating the biggest clean water supply in the region. She also showed that the Ministry of Health was aware of the hazard and yet refrained from taking action because of bribes received from the chemical company. In this example, corruption caused the breach of the State’s obligation to protect the right to health (i.e. to protect individuals from harm to their health as a consequence of abuses by private persons or entities). A further violation of this obligation would have occurred if remedies were not made possible. For example, if a person who had fallen ill because of the contaminated water filed a complaint and the prosecutor refrained from initiating an investigation because of a bribe received from the chemical company, this would have constituted an additional violation.

 

The four “As”: Availability, accessibility, acceptability and adaptability

Another analytical framework that can be used to concretely demonstrate the impact of corruption on human rights is the “four As”, a standard developed by the Committee on Economic, Social and Cultural Rights. The four As stand for availability, accessibility, acceptability and adaptability, and they are meant to help clarify the extent of a State’s obligations to guarantee access to social services and goods. According to CESCR General Comment No. 13 on the Right to Education, availability refers to the obligation of the State to make a social service or good available in a sufficient quantity within its jurisdiction. Accessibility refers to the obligation to make goods or services physically and economically accessible to every individual within its jurisdiction, without discrimination. Acceptability entails that the service or good must be of good quality, and respect minimum standards. Adaptability means that the State must adapt to the needs of its communities and respond to the complex and diverse social and cultural settings of all groups in the society (De Schutter, 2018). Analysing how corruption interferes with any one of these dimensions helps to shed light on the corruption–human rights link and the ways in which corruption leads to the violation of human rights.

 

Human Rights Council classifications

In 2013, the United Nations Human Rights Council asked its Advisory Committee for a report about human rights violations caused by corruption and recommendations on how the Council and other United Nations bodies should address the problem. Two years later, the Advisory Committee submitted its final report on the negative impact of corruption on the enjoyment of human rightsto the Council. The report briefly categorizes the possible violations of human rights as having “individual”, “collective” and “general” negative impacts, according to the “different obligations imposed on states” (Wouters, Ryngaert and Cloots, 2013, p. 35):

  • The individual negative impact relates to corruption that directly or indirectly affects the rights of individuals. An example is when a teacher asks a student for sexual favours in exchange for better grades (see discussion above on sexual corruption).
  • The collective negative impact refers to corruption that affects specific groups such as minority groups. An example is when public officials demand bribes for delivering public services, and they set an amount that certain vulnerable or marginalized groups cannot afford, with the consequence that these groups are therefore excluded from accessing the service.
  • The general negative impact refers to the effect of corruption on society at large, both at the national and international levels. Examples are the reduction of financial and economic resources caused by corrupt practices such as embezzlement, and the destabilization of democratic institutions and the rule of law caused, for example, by systemic corruption or corruption at the highest levels of government (i.e. the head of the government or the head of State).

The categorization of human rights violations as having individual, collective and general negative impacts highlights how detrimental and extensive the impact of corruption on human rights can be. The report of the Human Rights Council Advisory Committee provides useful recommendations that can guide the Council and other human rights bodies on addressing corruption. It calls, in particular, for a greater integration of human rights perspectives and anti-corruption strategies.

The Human Rights Council Advisory Committee seems to have endorsed the above-mentioned distinction between “direct” and “indirect” violations that was developed earlier by the International Council of Human Rights Policy (ICHRP). However, the Advisory Committee does not focus on identifying the causal link between corruption and human rights violations. Rather, it enhances our understanding of the different connections between corruption and human rights by classifying them based on the type and extent of the harm suffered by the victims.

 

Boersma’s five dimensions

While Boersma does not offer a systematic method to describe and analyse the links between corrupt acts and human rights violations, she sheds light on the different ways in which corruption relates to human rights. Boersma thus contributes to the recognition and conceptualization of a broader spectrum of connections between corruption and human rights, which goes beyond examining corruption as a cause of human rights violations. In particular, Boersma (2012, p. 199) identifies the following five dimensions of the corruption–human rights nexus:

  • The first and broadest dimension is the “shared environment of corruption and human rights violations”, which means that both corruption and the violation of human rights are consequences of the same deficient behaviour in the practice and politics of States. A strong correlation may exist between high levels of corruption and poor human rights protections, and both phenomena can have the same root cause (e.g. armed conflict, weak democratic institutions, etc.).
  • The second dimension concerns the “human rights necessary to fight corruption” and emphasizes that certain human rights are crucial for the fight against corruption, such as the right to freedom of expression, the right of information, the right to assembly and the right to freedom of association (see also UNHRC, 2019).
  • The third dimension concerns the “human rights of persons accused of corruption” and involves the observation that anti-corruption measures may violate the human rights of those accused of corruption – even though international law requires that anti-corruption measures be consistent with human rights. This point is further discussed below.
  • The fourth dimension refers to “anti-corruption reforms negatively impacting upon the human rights of vulnerable groups”. This dimension relates to the fact that anti-corruption reforms usually prioritize economic development and the rights of foreign investors, leaving the rights of vulnerable and marginalized groups unaddressed.
  • The fifth and last dimension concerns “corruption as a violation of human rights” and entails that corruption is itself a human rights violation, whether its effect on human rights is direct, indirect or remote (see also Gebeye, 2012; Rose, 2016, p. 457; Rothstein and Varraich, 2017; Spalding, 2019). This point is further discussed below.
 

Possible tension between anti-corruption and human rights

Anti-corruption measures may themselves violate the human rights of those accused of corruption. In certain circumstances, anti-corruption prosecutions may, for instance, threaten the fair trial rights of the accused, such as the right to the presumption of innocence and the right not to self-incriminate. The crime of illicit enrichment is a prominent example of a corruption offence that many States view as raising such human rights concerns. UNCAC article 20 requires States to consider adopting the crime of illicit enrichment, which is defined as “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”. Because UNCAC article 20 only requires States parties to consider adopting the crime of illicit enrichment, States parties are not obliged to do so, and in fact many UNCAC States parties have opted not to criminalize this act of corruption. The prosecution of illicit enrichment does not necessarily violate the right to a fair trial, but certain procedural safeguards must be in place to ensure that fair trial rights are respected. For example, the prosecution can be required to make a prima facie showing (e.g. demonstrate a significant discrepancy between the government official’s legal income and actual assets) before the burden of proof may be shifted to the defendant, who must then explain the lawful origins of the assets (see 2012 report on illicit enrichment by the UNODC/World Bank Stolen Asset Recovery (StAR) Initiative). In addition, to these concerns about fair trail rights, the recovery by States of such unexplained assets interferes with the right to property, which is set out, for example, in a Protocol to the European Convention on Human Rights (Protocol No. 1, article 1). Where the right to property is infringed, the seizure of such assets must be justified by the State, which has to demonstrate that the anti-corruption measure is lawful, serves a legitimate, public interest, and is proportionate (Ivory 2014, 2019).

The United Nations Office on Drugs and Crime (UNODC), as the guardian of UNCAC, is working with States to promote the global fight against corruption, while also bearing in mind their human rights obligations. In addition, several UNCAC articles directly promote human rights, such as those relating to the protection of witnesses and the strengthening of the judiciary, as well as those on asset recovery that have a reparatory nature (UNCAC arts. 11, 32, 51-59). More information on the UNODC approach to protecting and promoting human rights is available in the UNODC Human Rights Position Paper (2012). At the same time, the reality is that anti-corruption campaigns can in some cases be used as a means of repression. For a related discussion, see Module 3 of the E4J University Modules Series on Anti-Corruption, and this report, published by the International Council on Human Rights Policy and Transparency International.

 
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