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  This module is a resource for lecturers  

 

Human rights-based approach

 

The different linkages between corruption and human rights, and especially the realization that corruption undermines the enjoyment of human rights, have led scholars and practitioners to advocate a human rights-based approach to corruption. This approach seeks to emphasize the centrality of individuals as “rights-holders” and the role of States as “duty-bearers” (Peters, 2018; UNHRC, 2019). The human rights-based approach complements the criminal justice approach to corruption. Anti-corruption norms are commonly enforced through criminal justice frameworks, i.e. by criminalizing certain conduct in domestic legislation and by prosecuting and punishing perpetrators. This criminal justice approach is reflected in UNCAC and other treaties, as well as in domestic laws around the world (see relevant discussions in Module 4, Module 5, Module 6, Module 12 and Module 13 of the E4J University Module Series on Anti-Corruption). The human rights-based approach and the criminal justice approach complement each other because they emphasize different harms and responsibilities. The criminal justice approach assumes that the State (and the public it represents) has been harmed by acts of corruption committed by individuals, such as a government official who has accepted a bribe or embezzled public funds. The human rights-based approach focuses attention on how the State has breached its obligations towards the public by failing to protect it from corruption, and on the need for the provision of remedies by the State. The following paragraphs discuss the advantages and criticisms of the human rights-based approach to corruption.

 

Advantages of the human rights-based approach

Scholars and practitioners have advanced several arguments in favour of adopting a human rights-based approach to corruption. Some of these are summarized below (for a further discussion, see Hemsley, 2015; Merkle, 2018; Peters, 2018): 

Victim-focused

A human rights-based approach to corruption can add a perspective that moves the victim to the centre of the fight against corruption. It does so by emphasizing the negative impacts that corruption has on an individual, on groups of individuals typically affected by corruption (which are very often vulnerable or marginalized groups), and on society overall (UNHRC, 2015). According to Rothstein and Varraich (2017, p. 60), addressing corruption through a human rights discourse allows for a focus on the victims and the human cost that is at stake. Such a holistic approach focuses not only on the economic and criminal consequences of corruption, but also on the victims, especially those belonging to vulnerable or marginalized groups, and may help to empower the individuals affected by corruption and to transform them into actors in the fight against this problem. A human rights-based approach to corruption can further draw attention to the cumulative damages of corruption, oppression and inequality (Peters, 2018).

Increasing transparency and participation

Transparency and participation allow for scrutiny and monitoring of governmental decision-making processes, thereby increasing the probability that corruption may be detected and that human rights may be addressed, promoted and protected. Transparency refers to the public availability of information about decision-making processes that can easily be verified. Transparency is associated with the right of the public to know about governmental processes and actions. Transparency plays a role in facilitating the participation of stakeholders, such as civil society, in government decision-making processes. Transparency and participation are principles of anti-corruption law that are set out in UNCAC (UNCAC arts. 5, 13).

Strengthening accountability

With higher levels of participation and transparency, citizens are able to more effectively monitor power-holders and public policies and to hold them accountable and reduce corruption. UNCAC requires States to establish various mechanisms that enhance accountability, such as (i) participatory policy in budget formulation and analysis; (ii) public expenditure tracking which implies that citizens track how the government uses funds; and (iii) participatory performance monitoring and evaluation (UNCAC arts. 9, 10). The availability of such information about budget formation and public expenditure can provide the basis for recourse to the accountability mechanisms that exist within the human rights field. The individual complaints procedures associated with the human rights treaty bodies, for example, provide a potential mechanism through which individual victims of corruption may seek redress. For a discussion on accountability in the context of anti-corruption, see Module 3 of the E4J University Module Series on Anti-Corruption.

Remedies to victims

If done carefully, bringing claims and cases related to corruption before international and regional human rights adjudicators and monitoring mechanisms could help to address corruption by providing remedies for the victims. For a related discussion focusing on restorative justice and victim reparation approaches to anti-corruption efforts in the private sector, see this blog post by Andrew Spalding. It should be noted that UNODC itself does not adjudicate or provide reparations to victims. Instead, it works with States on strengthening their anti-corruption legal and institutional frameworks and capacities, and assists them in implementing the United Nations Convention against Corruption.

More actors fighting corruption

Recognizing corruption as a human rights violation could complement existing anti-corruption efforts by enabling human rights courts and commissions, as well as constitutional courts, to hear cases concerning the rights of individuals that have been violated by corrupt acts (although this also entails risks, as discussed below). Beyond the international and regional human rights courts and commissions, there are additional relevant actors in the human rights field, such as special rapporteurs, national agencies and non-governmental organizations. As Davis (2019) explains, these different actors have fact-finding powers and capacities that can help to gather information about corruption. However, Davis (2019, pp. 1294–1295) also cautions that such fact-finding, to be helpful, must be complementary to and coordinated with the investigative efforts of anti-corruption actors:

The human rights regime has considerable capacity for fact-finding, keeping in mind that it encompasses not only international commissions and tribunals but also special rapporteurs, national agencies and non-governmental organizations. Some of these engage in regular monitoring of particular public entities or topics, while others operate on an ad hoc basis. These actors have varying capacity, expertise and claims to legitimacy, but, collectively, they can bring impressive resources to bear. There is a caveat here; more fact-finding is not necessarily better. If human rights fact-finders tend to collect the same information as anti-corruption organizations, and tend to disseminate it through the same channels, then human rights analysis will add little value to the process. Even in this scenario, however, the human rights actors might be playing a useful role in checking information gathered from other sources.

 

The right to freedom from corruption

The main argument associated with the human rights-based approach to corruption is that recognizing corruption as a human rights violation would entail better enforcement and remedies (Peters, 2018). Individual victims of corruption can, for example, make use of the complaints procedures associated with the human rights treaty bodies to pursue some form of accountability. Some scholars, such as Spalding and Murray (2015), have taken this to an extreme, arguing that the freedom from corruption should be recognized as a “fundamental and inalienable human right”. In other words, some scholars have argued that the right to a corruption-free society is, or should be, a free-standing human right. Spalding (2019, p. 3) emphasizes that reframing the freedom from corruption as a human right implies that (i) corruption is neither cultural nor dependent on human nature; (ii) that the State might violate that right but cannot take it away; and that (iii) the vigorous enforcement of anti-corruption measures is not only possible, but essential. A similar position is shared by Gebeye (2012, p. 18), who argues that “human beings have a basic human right to live in a corruption-free society”. At present, the concept of a right to freedom from corruption remains aspirational.

 

Criticism of the human rights-based approach

The human rights-based approach to corruption has been subject to criticism for several reasons. One major criticism is that human rights bodies lack the expertise to assist States in dealing with the complex phenomenon of corruption and may therefore prescribe recommendations that do not properly address the various aspects and causes of corruption. The risk here, as stressed by Rose (2016, p. 419), is that “with different treaty bodies, UN agencies, and international organizations all prescribing various anti-corruption measures, these repeated and overlapping messages could begin to ring hollow, or lose their meaning”. Rose (2016, p. 417) has also criticized the human rights bodies, particularly the Committee on Economic, Social and Cultural Rights, for lacking conceptual clarity about how exactly corrupt conduct violates human rights and thereby risking increased scepticism towards the role of human rights in the fight against corruption (see also Peters, 2018, p. 1251). Put simply, describing too many corruption issues as human rights issues can result in both human rights and anti-corruption norms being taken less seriously. In the same vein, Rose-Sender and Goodwin (2010, pp. 1–3) have argued that attempts to link the human rights and corruption discourses have been “either so straightforward as to be prosaic or else incoherent when taken as suggesting a more profound connection”. They further claim that these attempts are arguably part of a wider trend within development and, more broadly, international law to integrate once-separate areas of international concern with human rights.

The tendency to link human rights with other areas of international law is sometimes called “human rightism”, which can strengthen human rights by mainstreaming it into other areas of international law, but can also result in scepticism towards human rights and a lack of professional treatment of human rights issues (for an interesting critique of human rightism, see Pronto, 2007). It is important to note that, as the Module clarifies, not all acts of corruption violate human rights, and causal relationships between corruption and human rights violations are not always easy to establish. The classic example for this, as discussed above, is that embezzled public funds would not necessarily have been allocated to fulfil human rights (Davis, 2019, pp. 1290–1291; Rose, 2016, pp. 415–416). Therefore, not all acts of corruption would violate human rights. However, where an individual can demonstrate a nexus between his or her deprivation of a protected right and a specific act of corruption, it is possible to argue that corruption has violated the human rights of an individual. In this case, the human rights-based approach to corruption provides a complementary mechanism to address this phenomenon along with the conventional criminal anti-corruption approach.

 
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