Prompted by the European Parliament’s recent recommendation on corruption and human rights, here is a piece on why a ‘human rights-based approach’ to corruption is a mirage.
The relationship between corruption and human rights abuse is a topic that I find at once intriguing and frustrating. On the one hand, there is something appealing about refashioning human rights law into a tool against corruption. Key global treaties were adopted as early as the 1960s; there is a plethora of UN human rights bodies; regional human rights courts are in operation in Europe, Latin America and Africa; and so forth. Would it not be exciting if, like a genie in a lamp, it only took one magic formula — proving the links between corruption and human rights abuse — for all those forces to be summoned in the cause of countering corruption?
Well, not really. It’s actually far from clear what their contribution would be. Let’s take as an example corruption-related litigation in human rights courts. It never quite took off. In 2011, a Spanish NGO submitted a complaint against Equatorial Guinea in the African Commission on Human and Peoples’ Rights alleging that systematic corruption meant Equatorial Guinea had breached the right of the people to freely dispose of their wealth and natural resources. The complaint was deemed inadmissible. Filing criminal complaints against members of the Equatoguinean ruling family for money laundering proved to be a more fruitful avenue, ultimately leading to the conviction of the country’s vice-president in France.
Both the facts of this case and the alleged violation are rather unusual. A more likely scenario in human rights litigation would involve a right that cannot be effectively realised due to widespread corruption. For example, if Alice faces criminal trial in a country where all judges convict unless offered a bribe, her right to a fair trial would be compromised. But, beyond finding a violation on the facts of Alice’s case, what could a human rights court realistically contribute to fighting corruption?
One response is that, if corruption is endemic in a certain country, one should simply assume it will affect the exercise of human rights. In Kapri, the UK Supreme Court remitted an extradition case to the lower-instance court to consider whether corruption in Albania was quite so bad that a person handed over to Albanian authorities could a priori not receive a fair trial. Unsurprisingly, the lower court’s answer was in the negative. It would take a very brave court — domestic or international — to decide that some states are so corrupt they are presumptively incapable of upholding human rights!
At this point, the discussion of corruption and human rights turns into one about branding (as in marketing, not medieval punishment). Is it helpful to present corruption as a human rights issue, or is it not? Are there benefits to using the language of human rights to articulate the harms of corruption? Is there a risk of overreach that undermines the credibility of human rights law? Your guess is as good as mine, but once we spend too much time pondering these questions, we might find ourselves squarely in the territory of counting angels on pinheads.
I should mention that, in recent years, we have seen the emergence of corruption and human rights sanctions, which tend to be spoken of in the same breath. But the common denominator there is targeted sanctions, the now-favoured tool of choice for addressing a whole range of misconduct, corruption and human rights abuse being two major categories thereof — in some countries, alongside other misdeeds such as cybercrime or nuclear proliferation.
With all of this in mind, I wanted now to turn very briefly to a recommendation published by the European Parliament on 17 February 2022. Despite the words ‘corruption and human rights’ in its title, it is in fact an exquisitely varied, and highly welcome, menu of legislative and policy options that the EU can consider to up its game in countering corruption. If you can think of it, the document has it — from a common EU-wide approach to asset recovery, through to the introduction of a corruption-specific sanctions regime, and to standards on post-public office employment of senior officials. Admittedly, it is light on detail as regards implementation, and not all of its proposals are of equal value, but the document does not at all purport to be an anti-corruption strategy. As a matter of fact, it is one of its recommendations that one be created — cheers to that.
It does, however, make the homage to its title in the following statement:
[The EU should] acknowledge the linkage between corruption and human rights and that corruption is an enormous obstacle to the enjoyment of all human rights; adopt, therefore, a human rights based approach in the fight against corruption, with victims of corruption placed at its core, and place the fight against corruption at the front and centre of all EU efforts and policies promoting human rights, democracy and the rule of law around the world.
As I said, there is nothing wrong with either the factual premise (corruption is indeed an enormous obstacle to the enjoyment of all human rights) or the conclusion (it would be nothing short of wonderful for the EU to place the fight against corruption front and centre to its foreign policy). But as for that thing in the middle, ‘a human rights-based approach to corruption’, I’m still not sure it really exists, or that we should spend lots of time looking for one.
Economic Crime Law 