Abstract
Human rights activists and anti-corruption campaigners have grown increasingly comfortable on one another’s turf, and the lines that divide their work have become quite porous. Human rights activists are learning to grapple with the human rights impacts of corruption, and anti-corruption campaigners frequently deploy a human rights analysis to bolster their case for reform. This chapter describes how the blurring of the line between human rights and anti-corruption work has enhanced the work of activists on both sides. In borrowing from one another’s work, both sets of campaigners have found powerful new ways to describe the real human impact of the abuses they fight against. In some cases, they have also found new ways to make use of powerful accountability mechanisms like anti-corruption and money-laundering laws. And there have been less direct benefits that are every bit as important. For instance, work on corruption has helped push relatively conservative human rights organizations to become more comfortable with work that deals squarely with the progressive realization of economic, social, and cultural rights.
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- 1.
Far more detailed elaboration of the complex relationship between corruption and human rights has been undertaken elsewhere. See, e.g., International Council on Human Rights Policy, Corruptionand Human Rights: Making the Connection (Versoix: International Council on Human Rights Policy, 2009).
- 2.
The International Covenant on Economic, Social, and Cultural Rights, one of the documents making up the “International Bill of Human Rights” (along with the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights), spells out most of the ESC rights recognized under international law. Beyond those listed above, other guarantees spelled out in the Covenant include rights related to working conditions and the right to work, the formation of trade unions, social security, freedom from hunger, and the right “to take part in cultural life.” International Covenant on Economic, Social, and Cultural Rights (CESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976.
- 3.
UN Committee on Economic, Social, and Cultural Rights, “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social, and Cultural Rights,” General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument.
- 4.
UN Committee on Economic, Social, and Cultural Rights, “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social, and Cultural Rights,” General Comment No. 13, The Right to Education, UN Doc. E/C.12/1999/10 (1999), http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.1999.10.En?OpenDocument. The “core minimum obligation” framework is essentially an attempt to strike a balance between respect for the link between ESC rights obligations and available resources and the need to ensure that these rights cannot be stripped of all meaningful content on grounds of state poverty.
- 5.
CESCR, art. 2.
- 6.
UN Committee on Economic, Social, and Cultural Rights, General Comment 3, The Nature of States Parties Obligations (Art. 2, para 1 of the covenant), UN Doc. E/1991/23 (1990), para 9. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument.
- 7.
As of 2012, Equatorial Guinea has a population of roughly 700,000 and a GDP of just under $20 billion.
- 8.
United Nations Development Programme (UNDP), “International Human Development Indicators, Country Profile: Equatorial Guinea,” http://hdrstats.undp.org/en/countries/profiles/GNQ.html (accessed December 17, 2012).
- 9.
Human Rights Watch, Well Oiled: Oil and Human Rights in Equatorial Guinea (New York: Human Rights Watch, July 2009). Global Witness has also done extensive work on corruption in Equatorial Guinea that analyzes the government’s failure to progressively realize ESC rights. See Global Witness, Country Page: Equatorial Guinea, http://www.globalwitness.org/campaigns/corruption/oil–gas-and-mining/equatorial-guinea (accessed December 17, 2012).
- 10.
There is extensive literature on the “resource curse” phenomenon. For a good overview of the human rights and governance implications of this problem (with ample references to other sources), see Oxfam International, Lifting the Resource Curse: How Poor People Can and Should Benefit From the Revenues of Extractive Industries (Oxfam International, 2009), http://www.oxfam.org/en/policy/lifting-resource-curse.
- 11.
For a good contemporary analysis of Nigerian politics (and its criminalization), see John Campbell, Nigeria: Dancing on the Brink (New York: Rowman and Littlefield, 2010).
- 12.
See Human Rights Watch, Criminal Politics: Violence, Godfathers and Corruption in Nigeria. (New York: Human Rights Watch, 2007).
- 13.
See, e.g., Lydia Polgreen, “A High Price for India’s Information Law,” The New York Times, January 22, 2011.
- 14.
TrustLaw, “Interview with Salil Shetty of Amnesty International on Corruption and Human Rights,” November 11, 2010, http://www.youtube.com/watch?v=NfHfs6CGlyU ( accessed December 17, 2012).
- 15.
For more discussion on specific scenarios where acts of corruption can meaningfully be linked to human rights abuse, see International Council on Human Rights Policy, Corruption and Human Rights, 31–63.
- 16.
The Economist, “Clean Water is a Right—But it Also Needs to Have a Price,” November 11, 2006.
- 17.
UN Committee on Economic, Social, and Cultural Rights, General Comment No. 3, paras 2 and 9.
- 18.
Ibid., para 10.
- 19.
Some, like Open Society Institute President (and former head of Human Rights Watch) Aryeh Neier, have rejected the concept of ESC rights as a matter of principle. Neier has described ESC rights as essentially an attempt to secure “a fairer distribution of the world’s resources” which for a variety of reasons is best pursued “through the political process.” See, e.g., Aryeh Neier “Social and Economic Rights: A Critique,”Human Rights Brief 13, no. 2. (2006). Such views were widespread during the Cold War, when Soviet Bloc governments rhetorically denigrated the importance of civil and political rights relative to that of the ESC rights they claimed to guarantee, while Western governments did the opposite.
- 20.
See Kenneth Roth, “Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26, no. 1 (February 2004): 68.
- 21.
The Committee on Economic, Social, and Cultural Rights notes that such measures “would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” Committee on Economic, Social, and Cultural Rights, General Comment 3, para9.
- 22.
Edward Anderson and Marta Foresti, “Assessing Compliance: The Challenge for Economic and Social Rights,” Journal of Human Rights Practice 1, no. 3 (November 2009): 471.
- 23.
Kenneth Roth, “Defending Economic, Social, and Cultural Rights,” 63–73.
- 24.
The Economist, “The Politics of Human Rights: Does it Help to Think of Poverty or Inadequate Health Care as Violations of Basic Rights?,” August 16, 2001.
- 25.
Much of the work HRW has done on ESC rights issues can be found at http://www.hrw.org/topic/esc-rights. The work around Amnesty International’s Demand Dignity campaign can be found at http://www.amnesty.org/en/demand-dignity.
- 26.
International Council on Human Rights Policy, Corruption and Human Rights, 46.
- 27.
Human Rights Watch has published numerous reports that address the progressive realization of ESC rights. However, most of these focus primarily on other rights issues—either on civil and political rights, on other dimensions of ESC rights compliance such as discrimination, harmful retrogressive measures that roll back enjoyment of ESC rights, or on state failure to meet minimum “core” requirements of ESC rights like offering palliative care. Only a relative handful of HRW reports are primarily and centrally focused on progressive realization arguments.
- 28.
Human Rights Watch, Chop Fine: The Human Rights Impact of Corruption and Mismanagement in Rivers State, Nigeria (New York: Human Rights Watch, 2007).
- 29.
Human Rights Watch, Transparency and Accountability in Angola (New York: Human Rights Watch, 2010).
- 30.
Human Rights Watch, Well Oiled.
- 31.
Human Rights Watch, “Wild Money”: The Human Rights Consequences of Illegal Logging and Corruption in Indonesia’s Forestry Sector (New York: Human Rights Watch, 2009).
- 32.
See Human Rights Watch, Harsh War, Harsh Peace: Abuses by al-Shabaab, the Transitional Federal Government and AMISOM in Somalia (New York: Human Rights Watch, 2010).
- 33.
Human Rights Watch, “Everyone’s in on the Game”: Corruption and Human Rights Abuse by the Nigeria Police Force (New York: Human Rights Watch, 2010).
- 34.
Human Rights Watch, Corruption on Trial? The Record of Nigeria’s Economic and Financial Crimes Commission (New York: Human Rights Watch, 2011).
- 35.
It is also worth mentioning that some of the most prominent protest organizers, such as Anna Hazare, came saddled with allegations that they supported not just an anti-corruption agenda but also a right-wing Hindu nationalist one. At least a few prominent commentators also argued that some of the anti-corruption movement’s demands were fundamentally anti-democratic. See Arundhati Roy, “I’d Rather not be Anna,” The Hindu (August 21, 2011), http://www.thehindu.com/opinion/lead/article2379704.ece?homepage=true (accessed December 17, 2012).
- 36.
International Council on Human Rights Policy, Corruption and Human Rights, 5.
- 37.
The International Criminal Court (ICC) is the international legal system’s nuclear option, a forum of last resort whose scope is in any case sharply limited to cases of war crimes, crimes against humanity, and genocide. Ad hoc tribunals like the International Tribunals for Rwanda and Yugoslavia have been similarly limited in scope as well as geographically. Mechanisms like the European Court of Human Rights, the Inter-American Commission on Human Rights, and even the International Court of Justice can and do direct states to address non-compliance with their own human rights obligations—but cannot always enforce meaningful compliance and cannot hold individual human rights abusers to account directly.
- 38.
For more details on various universal jurisdiction statutes and the obstacles to their useful implementation, see Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art (New York: Human Rights Watch, 2006).
- 39.
The Belgian law—which had been used to pursue Rwandan génocidaires as well as former Chadian dictator Hissène Habré—was amended in response to heavy-handed pressure by the Bush Administration. The US government opposed the law on the theory that it could be used against US government officials accused of war crimes, torture, or other serious international crimes. Baltasar Garzon, a Spanish judge who was the driving force behind judicial efforts to pursue international human rights violations in Spanish courts, was convicted in February 2012 of wiretapping—a case that many condemned as politically motivated.
- 40.
In 2013, the US Supreme Court is due to issue a ruling in the Kiobel case: An ATCA case involving allegations of human rights abuse by oil major Shell in the Niger Delta. Many commentators expect that the Supreme Court may use the case to put an end ATCA’s use against corporate defendants.
- 41.
This was actually down from a record $1.8 billion in fines in 2010. See Debevoise and Plimpton LLP, “The FCPA in 2011: The Year of the Trial Shapes Enforcement,” FCPA Update 3, no. 6 (January 2012), http://www.debevoise.com/files/Publication/20960d4e-4743-40b8-bd29-27e9ed1a16c3/Presentation/PublicationAttachment/287fbc56-a440-4e41-97f1-3d76e6128a19/FCPAUpdateJanuary2012_OnlinePDF.pdf (accessed December 17, 2012). See also Mark Srere, “The Ever-Increasing Enforcement of the FCPA,” Westlaw Expert Commentary Series: FCPA Update, January 2011, http://www.bryancave.com/files/Uploads/Documents/WLJ_FCPA2011_Commentary_Srere_OnlinePDF.pdf (accessed December 17, 2012).
- 42.
Andrew Weissmann and Alixandra Smith, Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act (Washington: US Chamber Institute for Legal Reform, 2010). http://www.instituteforlegalreform.com/sites/default/files/restoringbalance_fcpa_OnlinePDF.pdf.
- 43.
Critics of the US government have argued that the dearth of FCPA-related case law creates uncertainty that effectively forces companies to settle suits even when they do not believe they have broken the law. See, e.g., Nathan Vardi, “The Bribery Racket: How the Crackdown on Payoffs Hurts Business and Enriches Washington, DC insiders,” Forbes online, May 28, 2010. http://www.forbes.com/fdc/welcome_mjx.shtml (accessed December 17, 2012).
- 44.
And as The Economist noted, because of its OECD membership, “Even the United States…has had to undergo scrutiny at the hands of its peers and listen meekly to ideas for better enforcement. That contrasts sharply with the rejectionist American approach to many other forms of international legal scrutiny.” The Economist, “The Tents of the Righteous: At 50 the Rich-Country Club for Number-Crunchers and Sleaze Fighters is Thriving,” September 17, 2011.
- 45.
The OECD convention requires member countries to criminalize bribery of foreign officials.
- 46.
The UK’s Bribery Act is in some respects stronger even than the FCPA, but as of the time of writing, there was little precedent available to judge its practical application.
- 47.
Transparency International, Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention (Transparency International, 2011), http://issuu.com/transparencyinternational/docs/oecd_report_2011?mode=window&backgroundColor=%23222222 (accessed December 17, 2012).
- 48.
See Human Rights Watch, “UK Conviction a Blow Against Corruption: Nigerian Politician Stole Millions, Laundered Fortune Overseas,” April 17, 2012, http://www.hrw.org/news/2012/04/17/nigeria-uk-conviction-blow-against-corruption.
- 49.
Ibori was widely accused of fomenting political violence and electoral fraud in his home state as well as egregious acts of corruption including an alleged attempt to bribe top Nigerian anti-corruption officials to drop the case against him with $15 million in cash. Ibid.
- 50.
Equatorial Guinea’s government also came under sustained and withering criticism over efforts to fund a UNESCO prize for research in the life sciences. Human rights groups joined anti-corruption advocates in a high-profile campaign against the prize, on the grounds that the provenance of the funds was almost certainly illicit. See Human Rights Watch, “Equatorial Guinea: UNESCO’s Shameful Award,” July 16, 2012, http://www.hrw.org/news/2012/07/16/equatorial-guinea-unesco-s-shameful-award.
- 51.
Nigeria, for example, is a member of EITI. But enhanced transparency around the scale of revenues the country receives from its oil industry has not translated into any kind of meaningful transparency about how government at the federal, state, and local levels actually disposes of those revenues.
- 52.
For an overview of that work, see International Corporate Accountability Roundtable, “Defending the FCPA,” http://accountabilityroundtable.org/campaigns/defending-the-fcpa. ICAR also campaigns on issues related to the private security industry, conflict minerals, corporate accountability and promoting increased use of human rights due diligence by companies.
- 53.
“Corruption is a Human Rights Issue,” remarks by Peter Eigen, Chairman, Transparency International, 2004 Business and Human Rights Seminar, December 4, 2004.
- 54.
Interview with Irene Khan, former Secretary General of Amnesty International, Transparency International Newsletter, December 2008, http://www.transparency.org/publications/newsletter/2008/december_2008/interview (accessed November 1, 2012).
- 55.
UN Commission on Human Rights, “Corruption and its Impact on the Full Enjoyment of Human Rights, in Particular Economic, Social, and Cultural Rights,” Preliminary Report of the Special Rapporteur, Christy Mbonu, UN Doc. E/CN.4/Sub.2/2004/23, July 7, 2004, sec. IV.A, http://www.unhcr.org/refworld/pdfid/4152c27e4_OnlinePDF.pdf.
- 56.
C. Raj Kumar, “The Human Right to Corruption-Free Service: Some Constitutional and International Perspectives,” Frontline 19, no. 19 (September 14–27, 2002), http://www.flonnet.com/fl1919/19190780.htm.
- 57.
Ibid.
- 58.
Ilias Bantekas, “Corruption as an International Crime and Crime against Humanity: An Outline of Supplementary Criminal Justice Policies,” Journal of International Criminal Justice 4, no. 3 (July 2006): 466-484. The same article argued that international mining firms could be held liable for crimes as humanity as well where their contract with a “corrupted government…rendered access to food and medicine for the civilian population for the next ten years almost impossible.”
- 59.
In some circumstances, it might be possible to cast the theft of humanitarian assistance as a human rights abuse (not a crime against humanity), but even there the argument would probably depend on facts not assumed in the hypothetical, like a deliberate government policy to encourage such theft.
- 60.
Rome Statute of the International Criminal Court, art. 7(1).
- 61.
Bantekas, “Corruption as an International Crime.”
- 62.
For instance, then Kenyan Minister of Justice and Constitutional Affairs Kiraitu Murungi once said that grand corruption is a “crime against humanity,” but appeared to be using the term as a non-specific placeholder for “terrible crime.” Speech by Kiraitu Murungi at the Opening of the 11th International Anti-Corruption Conference, May 25, 2003. http://iacconference.org/en/speakers/details/kiraitu_murungi.
- 63.
Peter Eigen, “Chasing Corruption Around the World—How Civil Society Organizations Strengthen Global Governance,” Stanford University, October 4, 2004, p. 6, http://iis-db.stanford.edu/evnts/3922/Eigen10'04_OnlinePDF.pdf.
- 64.
Of course, one could make the same argument about the relevance of any analysis of Somalia’s problems that focuses entirely on human rights issues.
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Albin-Lackey, C. (2014). Corruption, Human Rights, and Activism: Useful Connections and Their Limits. In: Sharp, D. (eds) Justice and Economic Violence in Transition. Springer Series in Transitional Justice, vol 5. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8172-0_6
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