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  This module is a resource for lecturers  

 

Impact of corruption on specific human rights

 

As the SDG 16 website indicates, corruption related crimes cost developing countries about $1.26 trillion annually. This waste and diversion of public funds leaves governments with fewer resources to fulfil their human rights obligations, to deliver services and to improve the standard of living of their citizens. The following discusses some of the ways in which corruption enables the violation of specific human rights. While the discussion revolves around the violation of individual (first and second generation) rights addressed by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), in some cases such violations also impede the attainment of collective rights (third-generation). For example, when corruption violates economic and social rights, such as the right to an adequate standard of living (ICESCR art. 11), this could also hamper the attainment of the collective right to development. Another example is when corruption leads to pollution (see the Module’s discussion on the right to health), and thus violates the collective right to a clean environment. The discussion below provides several examples of ways in which corruption relates to the violation of specific human rights. The first examples relate to civil and political rights, while the subsequent ones relate to economic, social and cultural rights.

The impact of corruption is often considered to be especially pronounced regarding economic, social and cultural rights, although this is not, in fact, always the case. Economic, social and cultural rights are typically perceived as requiring a greater investment of public resources compared to civil and political rights, which are typically perceived as merely requiring States to refrain from interfering with individual freedoms. However, the realization of all categories of human rights may, in fact, require the allocation of substantial public resources. In recognition of the fact that States with resource constraints may need more time to realize economic, social and cultural rights, the ICESCR allows for a “progressive realization” of economic, social and cultural rights. This means that while States are required to take immediate measures to realize these rights, they may do so to the extent possible in light of available resources. As explained in the relevant OHCHR fact sheet:

[A] lack of resources cannot justify inaction or indefinite postponement of measures to implement these rights. States must demonstrate that they are making every effort to improve the enjoyment of economic, social and cultural rights, even when resources are scarce. For example, irrespective of the resources available to it, a State should, as a matter of priority, seek to ensure that everyone has access to, at the very least, minimum levels of rights, and target programmes to protect the poor, the marginalized and the disadvantaged.

At the same time, the realization of civil and political rights can also require considerable resources. For example, large amounts of funds are needed to maintain the judicial, law enforcement and prison systems and to ensure free and fair elections. The realization of civil and political rights can, therefore, also suffer greatly as a result of the misuse or misallocation of public funds. In addition, as the following discussion illustrates, there are other ways in which civil and political rights can be adversely affected by corruption.

 

Rights to equality and non-discrimination (civil and political rights)

The right to equality is referred to in all major human rights treaties (see e.g. ICCPR art. 2(1)). Every individual has the right to be treated equally and without discrimination by the State. The Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, defines the term discrimination as:

Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms (Human Rights Committee General Comment No. 18, para. 7).

According to this definition, corrupt acts are discriminatory in certain situations because they i) intrinsically distinguish, exclude, restrict or prefer; and ii) have the purpose or effect of nullifying or impairing the equal recognition, enjoyment or exercise of human rights (ICHRP, 2009, p. 32).

The right to be treated equally is violated, for example, when someone is requested to pay a bribe to obtain a public service. In this situation, those who were not asked for a bribe received better treatment, and the right to equality of the person who was asked to pay a bribe has been violated. The harm from such a violation is particularly grave when the targeted person comes from a vulnerable or marginalized group, such as social minorities, indigenous groups, irregular migrants, sexual minorities, etc. These individuals suffer disproportionately from this type of human rights violation because their position in society makes them easy targets for corruption, and they are often unable to afford the cost of the bribe (Boersma, 2012; Figueiredo, 2017; ICHRP, 2009).

The discriminatory outcomes of corrupt practices also commonly violate other human rights, such as the right to education, health and adequate housing. The rights to equality and non-discrimination are also violated when non-monetary acts of abuse of power have taken place, such as when sex or the human body is used as the "currency” of the corrupt act. Such cases of sexual corruption (sometimes associated with sextortion) are further discussed in Module 8 of the E4J University Module Series on Anti-Corruption. Another relevant topic addressed in Module 8 is the nexus between corruption and gender-based discrimination, the various ways in which gender may influence the occurrence of corruption, and how corruption can have gendered impacts by affecting men and women differently. Module 8 also addresses the role that gender mainstreaming and diversity, more generally, can play in mitigating corruption.

 

Rights to a fair trial and an effective remedy (civil and political rights)

The right to a fair trial is a fundamental human right which is essential for safeguarding the rule of law (ICCPR arts. 14-15). It incorporates the principle of equality, which underpins the administration of justice. The right to a fair trial encompasses an extensive series of procedural rights, including an independent and impartial tribunal, equality of arms, access to a court, and the presumption of innocence. The right to a fair trial is closely related to the right to an effective remedy, because no remedy is effective without equality before the law and fair judicial procedures (ICCPR art. 3).

Corruption in the judicial sector damages the right to a fair trial, as corruption erodes the independence, impartiality, and integrity of the judiciary. The lack of independence of judges, prosecutors and lawyers directly harms the right to a fair trial. It limits the effective and efficient administration of justice as well as the credibility of the entire justice system (see related discussion and references in Module 14 of the E4J University Module Series on Crime Prevention and Criminal Justice). When corruption interferes with the appointment of judges and in court proceedings, for example, it violates the impartiality of the judiciary and the fair trial rights of defendants (ICHRP, 2009, pp. 37–38). Individuals are also deprived of equal access to justice when public officials demand bribes as a condition for accessing the judicial system or to speed up a court service (Boersma, 2012, p. 208).

The impact of corruption in the judiciary can extend beyond individual cases, by undermining other rights, fostering impunity among corrupt actors, and diminishing trust in the justice system (which in turn can lead to more corruption, see Figueiredo, 2017). One of the core functions of the justice system is to promote and protect the human rights of all individuals in society. If human rights have been violated, the justice system can play a critical role in identifying those violations and protecting individuals’ human rights. However, this can only be accomplished when the justice system functions properly and is transparent, accountable and free of corruption. In societies that have high levels of corruption, a justice system that upholds the right to a fair trial may be critical for safeguarding the host of human rights that are adversely affected by corruption in society. Resources on corruption and integrity in the judiciary are available on the website of the UNODC Global Judicial Integrity Network.

 

Rights of political participation (civil and political rights)

Political participation has been described as the “hallmark of democracy” (UNHRC, 2015, para. 4). Rights to political participation include the right to participate in public affairs and exercise political power, and formulate policy at all levels of the State; the right to vote and be elected; and the right to equal access to public service positions (see e.g. ICCPR art. 25). States have the obligation to adopt positive measures to ensure the full, effective and equal enjoyment of these rights. States must also protect the related freedoms of expression, information, assembly, and association. Corrupt practices can have a detrimental effect on all aspects of political participation. For example, vote-buying is a violation of the right to vote, because it restricts the free choice of citizens and affects the electoral process by undermining its legitimacy (Pearson, 2013, p. 55). Another example, related to the right to be elected, is when electoral commissioners prevent someone from registering as a candidate for office, because of a bribe they received, or because they are trading in influence, i.e. abusing their influence to ensure that another person is elected with the expectation of receiving an undue advantage from that person. A third example relates to the right to equal access to public service positions. This right can be violated whenever positions in the public service are obtained through corrupt means, such as bribing the person in charge of hiring or through nepotism (Bacio-Terracino, 2008, p. 18). The right to have equal access to public service positions implies that admission to public jobs should respect equality and general principles of merit.

 

Rights to an adequate standard of living, food, housing and health (economic, social and cultural rights)

Article 11 of the ICESCR provides for the right to an adequate standard of living, which includes the rights to “adequate food, clothing and housing, and to the continuous improvement of living conditions”. Article 12 provides for the right to “the highest attainable standard of physical and mental health”. In addition, article 27 of the CRC includes the rights to food, housing and health.

There is ample evidence about the impact of corruption on the right to food. The 2001 report of the Special Rapporteur on the Right to Food identifies seven essential obstacles that limit or prevent the realization of the right to food, among them the problem of corruption. The Rome Declaration on World Food Security also recognized that corruption contributes significantly to food insecurity. Corruption can violate the right to food by diverting funds from social spending (ICHRP, 2009). The embezzlement of funds that are intended for food aid, for example, is a violation of the State’s obligation to provide food for those who do not have access via their own means. The right to food security is also threatened when food products of inadequate quality are on the market because of corrupt practices, such as where a government official ignores a requirement to obtain a licence to produce a food product or to carry out inspection procedures, in exchange for the receipt of a bribe (ICHRP, 2009, p. 44).

Corruption can also violate several aspects of the right to health (see the 2012 Report to the General Assembly), such as the “management of financial resources”, the “distribution of medical supplies”, and the “relationship of health workers with patients” (ICHRP, 2009, p. 53). As with other economic, social and cultural rights, the embezzlement of funds intended for the health sector violates the right to health of the entire society (Boersma, 2012, p. 264). Corruption associated with public contracts can violate the right to health by threatening the quality of the construction of health facilities or the supply of health goods (ICHRP, 2009, p. 53). The right to health and its accessibility is violated when someone has to pay bribes to have access to health-care services, such as medicines, medical treatment, and anaesthesia. Corrupt practices can cause widespread violations of the right to health, such as when the pharmaceutical industry sells unsafe medicines. Corruption may also impact the right to health when public officials allow companies to pollute the environment (Boersma, 2012, pp. 261–262). The violation of the right to health is related to the violation of environmental rights, because violations of environmental rights – which cause unhealthy, harmful environments – can stand in the way of the right to health.

The right to housingcan be affected by corruption when, for example, public officials demand bribes as a condition for supporting a public housing programme. More generally, the right to housingand other rights related to living standards cannot be realized in places where corruption causes poverty. Thus, the poverty brought about by corruption is especially detrimental to the enjoyment of human rights. For a discussion on corruption and poverty see this 3-minute video.

 

Right to education (economic, social and cultural rights)

The right to education is an essential “human right in itself and an indispensable means of realizing other human rights”. Education is crucial for a person’s self-fulfilment and the development of society as a whole (Coomans, 2010, p. 281), since it is a vehicle for empowering the disadvantaged and improving social and economic standards. The right to education is contained in several human rights treaties and incorporates the right to receive an education (social dimension) and the right to choose educational institutions that reflect the individual's personal beliefs (freedom dimension) (ICESCR art. 13). Individuals should have access to education that is non-discriminatory, free, and compulsory in the case of primary education (Coomans, 2010, pp. 284–288). Additionally, education must have a holistic approach that promotes human rights values and the preservation of multicultural diversity (see, e.g., the 2014 Report of the Special Rapporteur on the Right to Education). According to the CESCR General Comment No. 13, States are under an obligation to provide education that is (i) available and has functioning educational institutions in sufficient numbers; (ii) physically and economically accessible to everyone; (iii) of good quality and culturally acceptable; and (iv) adaptable to cultural and social contexts.

Corrupt practices can, in particular, undermine access to education and the quality of educational services, limit the social and economic development of society as a whole, and especially of vulnerable and marginalized groups (ICHRP, 2009, p. 57). Corrupt practices can, for example, endanger the right to equal and free access to primary and secondary education when the payment of a bribe is required as a condition of admission or to receive books that are supposed to be free of charge (Boersma, 2012). In addition, sexual corruption is widespread in the educational sector in some countries – for example, when teachers ask for sexual favours in exchange for better grades (see related discussions in Module 8 and Module 9 of the E4J University Module Series on Anti-Corruption). Because of its long-term consequences on all societal levels, corruption in the educational sector is particularly serious (Figueiredo, 2017). For a more detailed discussion on corruption in education, see Module 9 of the E4J University Module Series on Anti-Corruption.

 
Next: Approaches to assessing the corruption-human rights nexus
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