This module is a resource for lecturers
Overview of the corruption-human rights nexus
The field of human rights began to emerge after World War II, whereas the field of anti-corruption developed following the end of the Cold War. In the 1990s, the international community recognized the need to address and limit corruption, which they viewed as a global impediment to economic development. Moreover, it became clear that corruption undermines the full realization and enjoyment of all three generations of human rights (see, e.g., Barkhouse, Hoyland, and Limon, 2018; Hemsley, 2015; Wolf, 2018). For example, as discussed in further detail below, corruption offences such as bribery and embezzlement can limit access to health care, education, clean water and political participation (Boersma, 2012; Figueiredo, 2017; Rothstein and Varraich, 2017).
Today, there is little disagreement that corruption has a detrimental impact on the protection and enjoyment of human rights, and on the equal access of all citizens to human rights-related goods and services (for a further discussion, see the OHCHR website). Corruption not only leads to violations of specific human rights, but also represents a structural obstacle to the implementation and enjoyment of all human rights (UNHRC, 2015; Wouters, Ryngaert, and Cloots, 2013, p. 35). In some cases, corruption leads to the failure of government institutions, making it more difficult for countries to develop and implement human rights frameworks properly. Corruption also makes it very difficult for States to protect important rights that may not yet be guaranteed under international law, but which are guaranteed in many national constitutions and laws, such as the right to a clean environment. Thus, if a factory regularly pollutes the air in a certain region, but authorities take no action against it because they have been bribed not to act, then environmental rights (and possibly the right to health) are violated as a result of corruption. Corruption could also have a detrimental effect on peace and security (see Module 11 of the E4J University Module Series on Anti-Corruption), thereby fostering conditions in which the risk of human rights violations is heightened.
Corruption hampers the human rights of all individuals in a society, but members of vulnerable groups and groups exposed to marginalization and discrimination may suffer first and may suffer disproportionately from corruption. Groups of individuals who may collectively experience the negative impacts of corruption include women, children, the elderly, indigenous people, irregular migrants and other non-nationals, people with disabilities, prisoners, sexual minorities and people living in poverty. These groups are often more reliant on public goods and services, such as education and health care, and have limited means to look for alternative private services (UNHRC, 2015). They typically have fewer opportunities to participate in the design and implementation of public policies and programmes, and they lack the resources needed to defend themselves against such violations, to demand their rights, and to seek reparations. Corruption can have the effect of compounding the existing difficulties that are already experienced by members of such groups in accessing public goods and services as well as access to justice. Corruption, in other words, may further aggravate the existing human rights violations that are experienced by members of these groups. For a related discussion by the World Bank on how corruption affects vulnerable and impoverished communities, see here.
Another group at heightened risk of corruption-related human rights violations consists of individuals involved in efforts to investigate, report, and prosecute corruption (UNHRC, 2019). Every State has an obligation to protect the human rights of people belonging to these groups within its territory and subject to its jurisdiction, and to guard them against human rights violations associated with corruption (UNHRC, 2015, p. 8).
United Nations statements on the corruption–human rights nexus
In light of its detrimental effects on society and human rights, it is clear that corruption cannot be analysed as a “harmless” economic crime or as a transaction affecting only those individuals directly involved (Barkhouse, Hoyland, and Limon, 2018). This notion is reflected in different UN documents and instruments, including the United Nations Convention against Corruption (UNCAC), the only legally binding universal anti-corruption instrument. In the foreword to this Convention, former UN Secretary-General Kofi Annan underscored the adverse impact of corruption on society and human rights:
Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.
United Nations bodies have also emphasized the adverse effects of corruption on human rights. For example, the United Nations Human Rights Council (2015, 2016, 2019) issued a series of reports on the “negative impact of corruption on the enjoyment of human rights” which call on States to recognize and address this problem. The United Nations General Assembly (2015, preamble) has referred to the effects of corruption on human rights as “grave and devastating”. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment made a similar statement (A/HRC/40/59, para. 7). For an analysis of some of these statements see Peters, 2018, pp. 1252–1253.
A United Nations document that provides interesting examples of the corruption–human rights nexus is General Comment No. 24 issued in 2017 by the Committee on Economic, Social and Cultural Rights (CESCR), the body that monitors the implementation of the ICESCR. While the focus of this General Comment is States’ human rights obligations in the context of business activities, it also includes more general statements about the impact of corruption on human rights. For example, in paragraph 20, CESCR General Comment No. 24 states that:
Corruption constitutes one of the major obstacles to the effective promotion and protection of human rights, particularly as regards the activities of businesses. It also undermines a State’s ability to mobilize resources for the delivery of services essential for the realization of economic, social and cultural rights. It leads to discriminatory access to public services in favour of those able to influence authorities, including by offering bribes or resorting to political pressure. Therefore, whistle-blowers should be protected, and specialized mechanisms against corruption should be established, their independence should be guaranteed and they should be sufficiently well resourced.
The role of the private sector in the corruption–human rights nexus
As noted in the above-mentioned CESCR General Comment No. 24 (2017), the private sector, in particular businesses, are key actors in corruption offences that have negative effects on human rights. As defined in UNCAC (arts 15-22), acts of corruption necessarily involve the private sector, as they involve dealings between the private and public sectors (and in some instances transactions solely within the private sector). The General Comment, in paragraph 18, notes that the obligation of States to protect citizens from business activity can have a negative impact on human rights:
States would violate their duty to protect Covenant rights, for instance, by failing to prevent or to counter conduct by businesses that leads to such rights being abused, or that has the foreseeable effect of leading to such rights being abused, for instance through lowering the criteria for approving new medicines, by failing to incorporate a requirement linked to reasonable accommodation of persons with disabilities in public contracts, by granting exploration and exploitation permits for natural resources without giving due consideration to the potential adverse impacts of such activities on the individual and on communities’ enjoyment of Covenant rights, by exempting certain projects or certain geographical areas from the application of laws that protect Covenant rights, or by failing to regulate the real estate market and the financial actors operating on [sic] that market so as to ensure access to affordable and adequate housing for all. Such violations are facilitated where insufficient safeguards exist to address corruption of public officials or private-to-private corruption, or where, as a result of corruption of judges, human rights abuses are left unremedied.
When corruption emerged as an issue in the context of the United Nations in the early to mid-1970s, developing countries favoured an especially broad conception of corruption that encompassed the improper influence of corporations on public institutions (Ngugi 2010, pp. 246-247; Gathii 2009). Many developing countries supported, in particular, the idea of adopting a Code of Conduct for Transnational Corporations, which was the subject of negotiations at the United Nations in the 1970s. The Code was proposed in the context of discussions about a New International Economic Order and was driven by developing countries’ strong interest in mitigating the deleterious effects of international business activities (Gathii, 2009). However, owing to political and economic developments, negotiations concerning the Code of Conduct failed and the United Nations shifted from adopting a top-down code for international businesses to a more collaborative approach, inviting businesses to collaborate with the United Nations and each other, and promoting the common good. These efforts eventually gave rise to the establishment of the United Nations Global Compact, a voluntary and collaborative initiative between businesses and the United Nations that promotes responsible business practices that adhere to a number of principles concerning human rights and anti-corruption (Principles 1, 2, 10). Businesses that participate in the Global Compact commit to ‘supporting and respecting the protection of internationally proclaimed human rights’, and to ensuring that ‘they are not complicit in human rights abuses’ (Principles 1, 2). In addition, businesses commit to working ‘against corruption in all its forms, including bribery and extortion’ (Principle 10). In addition to this, UNGC has also established an Action Platform for Peace, Justice and Strong Institutions aiming to develop and promote global business standards in understanding and reporting on business engagement in the implementation of SDG 16.
Another international effort to subject corporations to human rights standards is the 2011 United Nations Guiding Principles on Business and Human Rights, which set out the human rights-related responsibilities of transnational corporations. While this is a “soft law” instrument that does not create binding obligations for States or corporations, it demonstrates an international shift towards developing norms that are geared towards bringing business activities into line with international human rights standards. While these principles focus on the role of the private sector in upholding human rights, they also set out the obligations of States to protect individuals from harmful business activities and to provide effective remedies for business-related human rights abuses. Each principle includes a short commentary. Some of the commentaries make a clear reference to corruption and its nexus with human rights (especially fair trial rights). For example, the commentary on Principle 25, which concerns “access to remedy”, explains that “[p]rocedures for the provision of remedy [sic] should be impartial, protected from corruption and free from political or other attempts to influence the outcome”. The commentary on Principle 26, which concerns “State-based judicial mechanisms”, stresses that “States should ensure that … the provision of justice is not prevented by corruption of the judicial process, that courts are independent of economic or political pressures from other State agents and from business actors”. Thus, Principles 25 and 26 acknowledge that corruption and the right to a fair trial are inextricably linked. Respect for the right to a fair trial requires the prevention of corruption.
United Nations Agenda 2030 for Sustainable Development
Another relevant framework for examining the corruption-human rights nexus is the United Nations Agenda 2030 for Sustainable Development and its 17 Sustainable Development Goals (SDGs). While the Agenda is not explicitly based on human rights, its Goals are aligned with human rights. The SDGs focus on social, economic, political, cultural and environmental development through good governance, the rule of law, access to justice, personal security, and the fight against inequality. The realization of human rights, including the rights to health, an adequate standard of living, education, non-discrimination, gender equality, and development, are explicit objectives of the SDGs, derived from the Universal Declaration of Human Rights and the international human rights treaties. The human rights treaty bodies, in their official contribution to the Agenda 2030, have “identified mismanagement of resources and corruption as obstacles to the allocation of resources to promote equal rights”. Indeed, the idea that corruption impedes sustainable development is explicitly recognized in Goal 16 of the SDGs, which asks all States to “substantially reduce corruption and bribery in all their forms” and to “strengthen the recovery and return” of government assets stolen through corruption by 2030. The website of Goal 16 elaborates on the disastrous impact of corruption on development and the human condition:
Corruption, bribery, theft and tax evasion cost some US $1.26 trillion for developing countries per year; this amount of money could be used to lift those who are living on less than $1.25 a day above $1.25 for at least six years.