It is widely recognized that corruption and human rights violations are linked. Corruption, after all, facilitates the violation of human rights–not only civil and political rights, but social and economic rights as well. (This blog has previously discussed those linkages here and here.) Some scholars and activists have gone further, arguing that freedom from official corruption is itself a human right. A useful recent example is a Brookings Paper by attorney Matthew Murray and Professor (and occasional GAB guest contributor) Andrew Spalding, but they are not alone. Advocates of this position claim that reframing corruption as a human rights violation is needed to instill a greater sense of obligation among national governments and to promote more robust enforcement.
I am skeptical. I do not deny the deep connection between human rights and anticorruption, particularly in developing countries, where access to basic human rights such as food, shelter, water, and education, is often hampered by rampant corruption. But I do not think that trying to establish “freedom from official corruption” as a human right per se (as opposed to recognizing the ways in which corruption contributes to human rights violations and other egregious social harms) is a productive use of time and energy.
Let me first summarize what I take to be the core arguments in favor of establishing freedom from corruption as a human right, and then explain why I respectfully disagree.
Although there are many different possible justifications for recognizing freedom from corruption as a stand-alone, universal human right, I will focus on the three reasons emphasized by Murray and Spalding in their recent paper. After first claiming that the time is ripe for such recognition, given the emerging international consensus about the harm of corruption and the importance of combating it (as demonstrated by, among other things, international treaties and bodies like the UN Convention Against Corruption (UNCAC), the OECD Anti-Bribery Convention on Bribery, GRECO, etc.), Murray and Spalding make three principal arguments as to why recognizing freedom from corruption as a universal human right would be a good idea:
- First, Murray and Spalding argue that framing the corruption issue in terms of human rights would help counter some of the most commonly deployed arguments against taking aggressive action to combat corruption: the claim that corruption is inherent in human nature, that it is a “necessary evil” or inevitable phase in the course of development, that it is a Western ideal unsuitable in other contexts, etc. Framing freedom from corruption as a human right would, the authors contend, emphasize that corruption is an absolute moral wrong, which in turn would force states to take responsibility for corruption rather than blame it on these other factors.
- Second, Murray and Spalding assert that freedom from corruption is so deeply connected to the protection and fulfillment of other human rights that it is impossible to enforce those other rights without enforcing freedom from corruption as a stand-alone human right.
- Third, Murray and Spalding emphasize that the costs of corruption can be as severe as more traditional human rights violations. They point to the Arab Spring–which was spurred by a Tunisian street vendor’s self-immolation after being extorted by the police–to illustrate how corruption threatens individual security, and on a mass scale can threaten national security. Thus, they reason, freedom from corruption deserves to be labeled as a human right, just as much as other accepted human rights.
I am unconvinced. First, as a preliminary matter, the fact that we have a number of international conventions on the importance of combating corruption does not establish that freedom from corruption is or should be a human right. (After all, we have international treaties and bodies for many things–trade, for example–but that doesn’t mean we should label the freedom to trade as a human right.) Additionally, the fact that we have these agreements–especially UNCAC–would seem already to serve as a refutation of some of the old arguments about anticorruption being something that only rich Western countries should care about. The question is whether moving beyond those broad statements of international consensus to frame corruption specifically as a human rights violation would be a good idea, and would strengthen the anticorruption norm and states’ incentive to take their anticorruption obligations seriously. I don’t think it would, for a few key reasons:
- First, Murray, Spalding, and other advocates of the corruption-as-human-rights-violation position tend to portray the international consensus regarding human rights as much more robust than it actually is. Nations remain in disagreement about what constitutes a human right, and in how human rights obligations should be enforced. Even today, critics attack the human rights regime as a form of Western cultural imperialism, or suggest that respect for human rights is only realistic for countries at a certain stage of economic development. To the extent that similar arguments are still invoked to resist the anticorruption agenda, it’s not clear how asserting that freedom from corruption is a human right will in any way disarm the critics.
- Second, Murray and Spalding believe that labeling corruption as a human rights violation would elevate the seriousness with which corruption is viewed and obligate states to provide redress under international law (with some scholars calling for individual responsibility and universal jurisdiction). But in fact existing human rights have a huge enforcement issue in practice. Indeed, one of the chief critiques of the human rights regime is that more often than not, rights are not enforceable in courts, and when they are, it is only after the expenditure of substantial time, money, and other resources. The “soft enforcement” approach of naming and shaming is also criticized as ineffective and inefficient.
- Third, and building off the preceding point, in order for “freedom from official corruption” to be a viable, enforceable human rights obligation, international law would likely need to define with greater precision the contours of that right. Murray and Spalding, in making the case that freedom from corruption ought to be considered a human right, equate widespread official corruption on a grand scale with tyranny. This is accurate in some cases, but would be hyperbole in others. All societies contain some official corruption. So, what exactly is the content of the human right to be free from official corruption? How far does it extend? Murray and Spalding say that the question of how this right is defined and implemented is “for another day.” Of course, they should not be obligated or expected to work out all the details in a short paper, but the real issue here is that, for many existing human rights, the inability to specify their content and to draw the necessary lines has undermined their normative force and their enforceability.
In sum, the key flaw in the argument for making freedom from corruption an international human right is the tendency to romanticize international human rights as a category. Murray, Spalding, and other advocates for this approach seem to assume that once some problem is designated as a violation of international human rights, that designation (1) eliminates (or at least substantially reduces) normative conflict over whether the alleged problem is a universal bad, and (2) substantially strengthens enforcement (both “hard” and “soft”) of states’ obligations to do something about the problem. But experience with the actual human rights we’ve already recognized casts doubt on both of those beliefs.
Moreover, the attempt to recast corruption as a human rights issue may even be counterproductive. Calling freedom from corruption a human right makes us feel like we’re elevating the issue of corruption and doing something positive about it, without actually accomplishing anything–and that in and of itself can be dangerous. As Matthew has argued in a similar context (critiquing proposals to make corruption an international crime subject to the jurisdiction of a new international court), trying to get freedom from corruption recognized as a universal human right takes time, resources, and attention away from more effective anticorruption strategies and campaigns, which have had at least some level of success in many places around the world. Anticorruption is a long, hard fight as it is. Let’s not make it worse with unnecessary distractions.
Thank you for an insightful post. I agree that the right to a corruption-free society is a concept riddled with difficulties, and we are yet to see how the rhetoric can translate into enforceable rights and obligations. Although not exactly the subject of your post, I wanted to point out a noteworthy, if isolated, example of how the linkage between corruption and human rights abuse (discussed, inter alia, in the GAB posts you have referred to) can have legal implications.
In 2013, the UK Supreme Court ruled that the prevalence of corruption in a particular state (Albania, in that instance) could, in principle, prevent the extradition of a suspect to that country because extraditing them to a country where their fair trial rights will be flagrantly breached is contrary to the UK’s obligations under the European Convention on Human Rights (Kapri v Lord Advocate, http://www.bailii.org/uk/cases/UKSC/2013/48.html, paras 28-34). On remand, the Scottish High Court of Justiciary ( HCJAC 33) examined the allegations of systemic corruption in Albania in great detail and concluded that corruption did not appear to reach “a systematic or systemic level such that there are substantial grounds for believing that any person being extradited to Albania would risk suffering a flagrant denial of his right to a fair trial.”
I’m not sure that many courts will ever be prepared to hold that any foreign state is too corrupt for anyone to be extradited to it. But I’m wondering whether the litigation with that sort of arguments raised (either in domestic courts or in regional human rights courts) may be a promising means of attracting attention to the problems of corruption in certain states. The Kapri case also prompts one to be open to the possibility that “recast[ing] corruption as a human rights issue” can be (a bit) more than a rhetorical assertion.
I am wondering why 9 December is celebrated as UN Anti-Corruption Day and 10 December as Human Rights Day. Is this sheer coincidental or something to do with issues like corruption and human rights coming closer? Some one even informed me anti-corruption precedes human rights.