Corruption, human rights and the human rights-based approach

‘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 link between corruption and human rights

The links between corruption, anti-corruption efforts and human rights are multi-dimensional and the negative impact of corruption on human rights is widely acknowledged.

Some resources on the link between corruption and human rights include:

1. Corruption, human rights, and judicial independence (UNODC 2017)
2. Corruption: A human rights impact assessment (Barkhouse, Kroll and Limon 2018)
3. The human rights case against corruption (UNHR 2013)
4. Corruption and human rights in third countries(European Parliament resolution of 13 September 2017)
5. The negative impact of corruption on the enjoyment of human rights (Resolution 23/UN Human Rights Council 2013)

International treaties

Human rights are 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:

• Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
• Covenant on Civil and Political Rights (ICCPR)
• Covenant on Economic, Social and Cultural Rights (ICESCR)
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT)
• Convention on the Rights of the Child (CRC)
• Convention on the Protection of the Rights of All Migrant Workers & Members of Their Families (ICMW)
• Convention for the Protection of All Persons from Enforced Disappearance (CPED)
• Convention on the Rights of Persons with Disabilities (CRPD)
• Convention Relating to the Status of Refugees (CRS)

Human rights standards are also elaborated in regional instruments including:

• African Charter on Human and People’s Rights
• American Convention on Human Rights
• European Convention on Human Rights
• Arab Charter on Human Rights
• EU Charter of Fundamental Rights

A range of the UN 2030 Agenda for Sustainable Development (SDGs) concern corruption, with Goal 16 on achieving ‘Peaceful, Just and Inclusive societies’ specifically calling on states to ‘substantially reduce corruption and bribery in all their forms.’

A human rights-based approach

The Office of The United Nations High Commissioner for Human Rights has defined the human rights-based approach (HRBA) concept as:

‘A human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress.’

The core principles of HRBA to programming are:

• Express identification of human rights law norms, duty-bearers and rights-holders.
• Ensure programme methods and objectives prioritise empowerment of rights-holders.
• Ensure ‘active, free and meaningful’ participation in all project cycle management stages.
• Prioritise gender non-discrimination/equality and vulnerability, so that no-one is left behind.
• Ensure transparency and accountability (The ‘Rule of Law’).

The nature of human rights obligations

Key to linking corruption and human rights are the specific obligations states assume when they ratify a human rights treaty: obligations to respect, to protect and fulfil:

1. Respect
   The duty to respect rights means that state officials must not engage in corrupt practices that directly impact rights.
2. Protect
   The duty to protect obliges states to prevent, investigate, and punish corrupt acts by officials or third parties.
3. Fulfil
   The duty to fulfil rights obliges states to have concrete plans, policies, laws, and institutions in place to address corruption and to properly resource these efforts.

In the context of socio-economic rights, the negative economic consequences of corruption undermine States’ obligations to ‘take steps’ towards delivering socio-economic rights to the ‘maximum of available resources’ as required by international human rights law.(See Committee on Economic, Social and Cultural Rights General Comment No. 3 on the Nature of States Parties’ Obligations).

How does corruption affect human rights?

Corruption affects human rights both directly and indirectly. For example, corruption in the justice system compromises judicial independence and violates the right to a fair trial. More generally, justice system corruption contributes to an environment in which other human rights abuses can occur with impunity, such as mass arrests and detention, torture, and inhuman or degrading treatment. This can lead to informal – sometimes violent – dispute resolution.

Redress for failure to deliver socio-economic rights is also impeded by justice system corruption. The wide reach of justice system corruption has seen the emergence of a global initiative aimed at strengthening judicial integrity and preventing corruption in the justice sector, theGlobal Judicial Integrity Network. The impact of corruption on other human rights includes:

• Right to life…
  …when procurement corruption results in faulty infrastructure, or human rights defenders highlighting corruption are targeted and killed.
  
• Right to protection from slavery…
  …when police, border guards, or inspectors receive favours or money to overlook evidence of human trafficking.
  
• Right to food…
  …whencorruption in land ownership or in distribution of humanitarian aid denies access to basic necessities, such as food and water.
  
• Right to health…
  …when medicines are diverted or tampered with, bribes are requested in exchange for health services, procurement for drugs and medical equipment is fraudulent, or staff embezzle health system resources, denying people the right to the highest attainable standard of health.
  
• Right to property…
  …when property registration, ownership, or restitution processes are discriminatory or arbitrary due to patronage or bribery.
  
• Right to education…
  …when funds for schools and supplies are embezzled, or access or assessment are subject to bribes all aspects of the right to education (availability, accessibility, acceptability and quality) are impeded.
  
• Right to work…
  …by recruitment or promotion processes that are biased due to nepotism, cronyism, sextortion, or bribes.
  
• Right to participate in public affairs…
  …when money is exchanged in return for votes, or registration to stand for election is subject to patronage or nepotism.
  
• Right to free movement/asylum…
  …where bribes are demanded in return for travel documents or border crossing, or where trafficking of migrants is facilitated by corrupt public officials.
  
• Right to an adequate standard of living…
  …when bribes are paid, influence is traded, and offices are misused in ways that reduce access to medical care, education, water, food, and housing.
  
• Right to equality…
  …when those who do not want to, or cannot afford to, pay bribes, etc., are denied equal access to rights.

More generally, corruption impacts on human rights inthatit impedes economic growth and effective revenue management, which diminishes the state’s capacity to finance programmes and institutions necessary to meet its international human rights law obligations.

Enhancing accountability for corrupt practices through human rights law

International human rights law standards and mechanisms can contribute to anti-corruption efforts. Human rights norms are elaborated by treaty-monitoring bodies. For example, the Human Rights Committee and the Committee on Economic, Social and Cultural Rights analyse and make recommendations on states’ compliance with treaty obligations. In some cases they receive individual petitions alleging violations of rights by a state. In addition, various UN Special Procedures – special rapporteurs, working groups, etc. – monitor, report, and make recommendations on the human rights situation on themes and contexts relevant to corruption, such as poverty, judicial independence, etc.

In addition to a designated, former Special Rapporteur on human rights and corruption appointed in 2003, corruption has been addressed by eg the UN Working Group on Human Rights and Transnational Corporations and other business enterprises in a 2020 Report. It has also been addressed in some country visit reports – eg Ukraine 2019 Visit Report – of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights.

The Human Rights Council Advisory Committee has 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.

The Universal Periodic Review (UPR) provides an opportunity to analyse corruption’s human rights impact in specific country contexts and open dialogue between states and civil society about problems and potential solutions. The process involves the review of states’ human rights records by members of the UN Human Rights Council (UPR Working Group) based on:

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

See, for example, how UPR is a relevant strategy for tackling health sector corruption.

Regionally, courts and tribunals also consider claims arising under the relevant human rights treaties. In a Socio-Economic Rights and Accountability Project (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 relationship between human rights and anti-corruption

While corruption negatively impacts on a range of human rights, measures preventing and responding to corruption (in particular the focus on suppression of corruption through criminalisation) can also be problematic in human right terms. The process of detecting, investigating and prosecuting corruption must comply with 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 agenda). This means that anti-corruption efforts, such as measures against illicit enrichment, which is criminalised by some states, and recovery of stolen asset meet the human rights law test of being lawful, serve a legitimate, public interest, and be proportionate. Human rights standards also encompass the need for adequate protection to whistleblowers – persons who report corrupt practices.

Strengthening human rights and anti-corruption efforts

Much work remains in order to maximise the potential of human rights mechanisms to prevent and address corruption. In general, greater collaboration between anti-corruption and human rights specialists can improve the integration of human rights into anti-corruption efforts, and to ensure that corruption is systematically addressed in human rights treaty and other processes.

In development programming, the human rights based approach can help align anti-corruption efforts with states’ human rights law obligations. Furthermore, the methodological tools of human rights based project cycle management – including human rights disaggregation of indicators– and the distinction between structural (commitment), process (efforts) and outcome (results), can also inform anti-corruption programming and monitoring the human rights impact of corruption.

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 human rights. However, much remains to be done to advance the application of human rights law standards and specifically the framework of HRBA in countering corruption.