This panel was convened at 9:00 a.m., Friday, March 26, by its moderator, Makau Mutua of University at Buffalo Law School, who introduced the panelists: Joel Barkan of the University of Iowa; Julio Bacio-Terracino of the Graduate Institute of International and Development Studies; Joel Ngugi of the University of Washington School of Law; and L. Amede Obiora of the University of Arizona, Rogers College of Law. *
* Joel Barkan did not submit remarks for the Proceedings.
LINKING CORRUPTION AND HUMAN RIGHTS
The links between corruption and human rights are varied and can be best examined under two main questions: (1) what are the connections between human rights and corruption? and (2) why is it relevant to link human rights and corruption?
THE CONNECTIONS BETWEEN HUMAN RIGHTS AND CORRUPTION
Human rights and corruption have usually been linked to illustrate the negative effects of corruption on society and individuals. However, other dimensions of their relationship may also be evidenced. Human rights can serve as tools to prevent and fight corruption, and certain anti-corruption practices have been referred to as a threat to human rights.
The Impact of Corruption on Human Rights
Evidence has shown that all human rights can be restricted by corrupt practices, be they economic, social, cultural, civil, or political rights. However, the impact of corruption on human rights will vary in each case. Often corruption will lead to human rights violations but will not itself violate a human right. Corruption in these cases is a factor fueling human rights violations, but it can only be distantly linked to the infringement upon human rights.
However, corruption is directly connected to a violation of human rights when the corrupt act is deliberately used as a means to violate the right. For example, a bribe offered to a judge per se affects the independence and impartiality of that judge, and hence the fight to a fair trial is violated. In other cases, corruption directly violates a human right by preventing individuals from having access to the right. Conditioning of access to human rights on corrupt payments produces the violation. For example, when an individual must bribe a doctor in order to obtain medical treatment, or bribe a teacher in order to be allowed to attend a class, his right of access to health and education has been infringed by corruption.
In other situations, corruption will be considered to violate human rights in an indirect way. When a corrupt practice constitutes an essential contributing factor in a chain of events that eventually leads to a violation of a right, corruption can still be blamed for violating human rights. In this case the right is violated by an act that derives from a corrupt act. But the act of corruption constitutes a necessary condition for the violation. For example, if a corrupt minister allows the illicit dumping of toxic waste in a place close to a residential area, the rights to life and health of the citizens in the area are violated. Yet the rights are violated by the act of allowing the illicit dumping of toxic wastes and not by the bribe received by the corrupt minister. Nevertheless, the act of corruption was a necessary condition for the violation. This example is far from being theoretical, as the use of bribery to influence public officials' decisions to allow the illegal importation of toxic waste from other countries is a common practice around the world.
Moreover, it should be noted that not all acts of corruption constitute a violation of rights. Many cases of corruption, particularly cases of the so called private-to-private corruption, have no impact on human rights. The assumption that corruption always violates human rights is quite often made, yet it tends to erode the seriousness of the term.
Human Rights as Anti-Corruption Tools (1)
It is generally held that weak human rights protection may create opportunities for corruption. Therefore, policies that promote human rights may prevent corruption. In this connection, certain human rights principles are particularly relevant tools to prevent and combat corruption. The right to freedom of expression, assembly, and association are some of these rights which will restrict the secrecy of corruption, help identify its causes and consequences, and create policies to combat it. Where governments permit information to flow freely, it should become easier to identify and denounce specific cases of corruption.
The right to information is also central to the effective prevention of corruption and thus has been included in the UN Convention Against Corruption (Articles l0 and 13). An access to information law should guarantee the right of all citizens to request and obtain public information, without being required to justify that request. Such information could concern public finances, public procurement, or the employment of public officials, such as their conditions of hiring, and so on.
In addition, as explained below, human rights may also have an impact on anti-corruption through the provision of traditional human rights accountability mechanisms that, under certain conditions, may be used in the fight against corruption. Most importantly, human rights mechanisms for the protection of human rights defenders may also be used to protect anti-corruption advocates who are often subject to harassment and intimidation. Anti-corruption advocates do not necessarily think of themselves as human rights defenders. However, they all work toward making institutions more accountable, ending impunity, and improving the quality of government.
Are Certain Anti-Corruption Practices a Real Threat to Human Rights?
At times, anti-corruption practitioners have argued that human rights principles constitute obstacles for anti-corruption law enforcement. In contrast, the human rights movement has claimed that certain anti-corruption practices threaten human rights principles in the name of the fight against corruption. In truth, these "tensions" between human rights and anticorruption policies represent the constant potential clash between law enforcement and human rights. With regard to corruption, the so-called tensions only relate to very limited processes of investigation and prosecution of corrupt offenses. At the root of the discussion, there is a law enforcement argument. With the escalation of corruption, in many legal systems stronger and more intrusive law enforcement procedures have been considered necessary for the effective administration of criminal justice. It is usually held that corrupt practices occur in secret, normally involving many accomplices but no direct victims or evidence. The consequence is that corruption is extremely difficult to prove and prosecute. Hence, stronger and more intrusive law enforcement techniques are to be applied. Such techniques are said to infringe on human rights in the following situations:
(1) Illicit enrichment violating the presumption of innocence, burden of proof, and the guarantee against self-incrimination;
(2) Special investigative techniques infringing on the rights to privacy and fair trial; and
(3) Asset recovery violating property rights and the presumption of innocence.
These three cases mostly illustrate extreme possibilities where an anti-corruption practice may be potentially applied in a way that violates human rights. Yet when examining the practice in the majority of states, it is evident that there are ways to reconcile prosecution of the offense of illicit enrichment and the principle of presumption of innocence. It is also possible to use special investigative techniques that are mindful of the right to privacy, and to apply asset recovery and confiscation procedures that respect property rights. It is thus evident that the tensions between anti-corruption and human rights have been unfortunately exaggerated. While the aforementioned anti-corruption practices could potentially infringe upon human rights, in most cases anti-corruption practices are carried out in conformity with the law and respect for human rights.
WHY IT IS RELEVANT TO LINK HUMAN RIGHTS AND CORRUPTION
Human rights standards, as established in major international treaties and domestic legislation, impose obligations on states. Focusing on specific human rights will help to identify who is entitled to make claims when acts of corruption occur, as well as who has a duty to take action against corruption and protect those harmed by it. A clear understanding of the practical connections between acts of corruption and human rights may empower those who have legitimate claims to demand their rights in relation to corruption, and may assist states and other public authorities to respect, protect, and fulfill their human rights responsibilities at every level.
If corruption is shown to...