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Corruption and human rights

Corruption and human rights

Corruption is an enormous obstacle to the realization of all human rights – civil, political, economic, social and cultural, as well as the right to development. Corruption violates the core human rights principles of transparency, accountability, non-discrimination and meaningful participation in every aspect of the life of the community. Conversely, these principles, when upheld and implemented are the most effective means to fight corruption’ (Navi Pillay, former UN High Commissioner for Human Rights).

The links between corruption, anti-corruption efforts and human rights are multi-dimensional. The negative impact of corruption on human rights is widely appreciated (see Corruption, human rights, and judicial independence (UNODC 2017); Corruption: A human rights impact assessment (Barkhouse, Kroll and Limon 2018); The human rights case against corruption (UNHR 2013)). However, the potential of human rights law and human rights approaches in efforts to counter corruption is less often examined.

Human rights are rights inherent to all human beings regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Specific rights are enshrined in international treaties such as:

  1. International Convention on Civil and Political Rights (ICCPR).
  2. International Convention on Economic, Social and Cultural Rights (ICESCR).
  3. Convention on the Rights of the Child (CRC).
  4. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
  5. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
  6. Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Human rights standards are also expressed in regional instruments including the African Charter on Human and People’s Rights, the American Convention on Human Rights, and the European Convention on Human Rights.

How does corruption affect human rights?

Corruption affects human rights both directly and indirectly. For example, corruption in the criminal justice system can violate the right to a fair trial in a specific context, but also contributes to an environment in which other human rights abuses can occur with impunity: mass arrests and detention, and inhuman or degrading treatment or even torture of suspects. Bribes requested to cross a border despite valid travel documents denies the migrant’s freedom of movement, and can lead to further violations if the refusal or inability to pay the bribe leads to intimidation, harassment and even the loss of life. Here are some more examples of corruption’s impact on human rights, such as the:

  • Right to life is threatened when security guards are bribed to permit a terrorist attack or when procurement corruption results in faulty infrastructure.
  • Right to protection from slavery is violated when police, border guards or inspectors receive favours or money to overlook evidence of human trafficking.
  • Right to health is violated when there is tampering or diversion of medicine, requests for bribes in exchange for health services, procurement fraud in drugs and medical equipment, or embezzlement of health system resources.
  • Right to property is denied when policies relating to property registration, ownership, or restitution are applied in a discriminatory or arbitrary way due to patronage or bribery.
  • Right to education is violated if funds for schools and supplies are embezzled, or if access depends on a bribe.
  • Right to work is affected by recruitment or promotion processes that are biased due to nepotism, cronyism, sextortion, or bribes.
  • Right to participate in one’s own government is compromised when money is exchanged in return for votes, or elections are predetermined by patronage.
  • Right to an adequate standard of living is denied when bribes are paid, influence is traded, and offices are misused in ways that reduce access to medical care, education, water, food, and housing. The disparate impact of corrupt practices upon the poor, including women and girls, also violates the right to non-discrimination enshrined in human rights law.

The relationship between human rights and anti-corruption

Good governance and human rights are mutually reinforcing objectives, based on core principles of participation, accountability, and transparency. Realisation of human rights, including the right to information, freedom of expression and opinion, freedom of assembly and association, and independence of judiciary – creates an enabling environment for efforts to prevent and remedy corrupt practices.

A focus on human rights, meanwhile, increases Inclusiveness of anti-corruption efforts and encourages a more systematic response to corruption.

Applying a human rights lens highlights aspects of equality and non-discrimination, directing attention to those individuals and groups who are most vulnerable and marginalised. The human rights based approach (HRBA) reinforces Agenda 2030’s aim to leave ‘no one behind’ in efforts to achieve sustainable development.

While anti-corruption instruments focus on suppression of corruption through criminalisation and place emphasis on the perpetrators, human rights law takes a victim-centred approach. It also imposes an obligation to prevent corruption, as well as to provide redress to the injured party or parties. Because the point of reference is the rights holder, which can be a person, group or other legal entity, human rights makes the impact of corruption on individuals and society more visible.

Ensuring the anti-corruption efforts ‘do no harm’

Tensions between human rights and anti-corruption arise when the process of detecting, investigating and prosecuting corruption infringes on the right to a fair trial, the presumption of innocence, the right to property and the right to privacy (see Integrating human rights in the anti-corruption genda). Applying human rights principles helps ensure that anti-corruption measures ‘do no harm’ to the accused individuals or to democratic principles of society more broadly. It also highlights the need to secure adequate protection to persons who report corrupt practices (whistleblowers).

Mainstreaming a rights-based approach in anti-corruption programming

From a development programming perspective, the HRBA can help align anti-corruption efforts with states’ obligations to ensure the availability, accessibility, acceptability and quality of resources allocated to secure human rights. Furthermore, the methodological tools applied in programmes implementing a HRBA – including disaggregation of indicators by gender and other categories – and the distinction between structural (commitment), process (efforts) and outcome (results) indicators, can usefully structure anti-corruption monitoring efforts as well.

Enhancing accountability for corrupt practices through human rights law

While certain corrupt practices are prohibited by criminal and administrative law, human rights law provides a complementary legal framework for addressing corruption and for increasing international attention on its effects on human rights.

At the international level, human rights norms are elaborated by treaty-monitoring bodies (for example the Human Rights Committee and the Committee on Economic, Social and Cultural Rights). These organisations analyse and make recommendations concerning specific issues, review state compliance with treaty obligations, and in some cases to receive individual petitions alleging violations of rights by a state. Special rapporteurs also explore the human rights dimensions of a specific topic (i.e. poverty, trafficking, judicial independence). A special rapporteur on human rights and corruption was appointed from 2003–2006.

The Human Rights Council Advisory Committee has broadly analysed the negative impact of corruption on human rights and the potential of integrating anti-corruption in human rights work. The Council is also exploring how the non-repatriation of illicit funds to the countries of origin affects human rights. Other treaty bodies have addressed corruption within their specialised mandates. The Committee on the Rights of the Child, for example, has made a connection between corruption in state procurement and the obligation to use resources efficiently for the benefit of children’s rights (see General Comment no. 19).

Lastly at the international level, the Universal Periodic Review (UPR) provides an opportunity to analyse corruption’s human rights impact in specific country contexts. The UPR process involves the review of states’ human rights records by members of the UN Human Rights Council (UPR Working Group) based on:

  1. National reports prepared by the state under review.
  2. Information contained in the reports of independent human rights experts.
  3. Information from other stakeholders including civil society groups.

Peer review mechanisms like the UPR can open dialogue between states and civil society about problems and potential solutions.

Regionally, courts and tribunals also consider claims arising under the relevant human rights treaties. In the SERAP case, for example, the Court of Justice of the Economic Community of West Africa found that evidence of grand corruption in the Nigerian Ministry of Education could constitute a violation of the right to education if efforts were not made to prosecute corrupt officials and recover stolen funds.

The nature of human rights obligations

One critique of the ways in which human rights bodies typically engage with corruption is that their references lack specificity. To make the case for state responsibility, it is critical to link corrupt practices concretely to the types of obligations states assume when they ratify a human rights treaty. These can be divided into three categories: obligations to respect rights, as well as to protectand fulfil them. Though the respect-protect-fulfil framework also applies to non-state actors – including corporations – for the sake of simplicity we focus here on the state.

Corruption can cause a violation of any of these dimensions of human rights violations. For example, the duty to respect rights means that state officials cannot engage in corrupt practices that directly impact rights. The duty to protect obliges states to prevent, investigate and punish corrupt acts by officials or third parties. The duty to fulfil rights prohibits the diversion of resources, including through corruption, that were originally dedicated to social purposes. Importantly, it also implies an obligation to use the maximum available resources to fulfil rights (see Committee on Economic, Social and Cultural Rights General Comment No. 3 on The Nature of States Parties’ Obligations).

The Committee on the Elimination of All Forms of Discrimination against Women in its review of Switzerland, considered financial secrecy laws and policies in relation to its obligation not to negatively impact the capacity of other states to ‘mobilise maximum available resources for the fulfilment of women’s rights.’ National human rights institutions, like the South Africa Human Rights Commission, have used budget analysis of public funds to evaluate whether the maximum of available resources are being used to fulfil rights.

Strengthening human rights and anti-corruption efforts

Much work remains in order to maximise the potential of human rights approaches to reduce the harmful effects of corruption. New strategies and conceptual frameworks need to be developed to address the issue of corruption before UN treaty bodies as well as regional and national courts. These could be advanced through theoretical work by scholars and the UN itself, as well as by strategic litigation involving civil society. In the area of asset recovery, human rights principles may inform the identification of victims and allocation of assets among them. However, practical dilemmas remain.

In general, greater collaboration between anti-corruption and human rights specialists would improve the integration of human rights into anti-corruption efforts, and ensure that human rights work targets the range of corrupt practices. Mutual mainstreaming would benefit both fields as well as the lives of those affected by corruption and human rights violations.

For a useful overview of UN activities related to this topic, see the Office of the High Commissioner for Human Rights’ resource page on corruption and ruman rights

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