Editor’s note: In the EJIL: Debate! section of the latest issue of EJIL (Vol. 29 (2018) No. 4), Anne Peters presents her provocative and disrupting idea of corruption as a violation of international human rights. Kevin Davis and Franco Peirone respond to this challenging thesis and Anne Peters rejoins in this post.
1. Doctrine and Policy
The two comments on my article “Corruption as a Violation of International Human Rights” challenge various elements of both the doctrinal analysis and the normative assessment. I had developed and defended two propositions: First, corrupt acts or omissions can under certain conditions technically be qualified as violating international human rights (notably social rights), although the difficulty to establish causality remains the most important doctrinal obstacle. Second, I argued normatively that the principal added value of a reconceptualization of corruption as a human rights violation is to offer complementary forums for redress, notably the international human rights mechanisms.
The two commentators raise very valuable points for which I am thankful. In this rejoinder, I focus only on two arguments which appear in both comments. Their first critical observation relates to the doctrinal analysis and to the problem of causation. Franco Peirone finds that “[t]he idea of identifying citizens as victims of corruption in a one-to-one relationship with the state is particularly problematic”, and he asks: “How is it possible to maintain that an individual has suffered a human rights violation because of state corruption?“ Along the same line, Kevin E. Davis points out that if a:
“national health care system is so underfunded that the state has clearly failed to satisfy its obligation to fulfil the right to health [, t]his does not necessarily mean that corruption is the cause of the human rights violation. For instance, it is possible that, if the funds had not been diverted, they would have been allocated to the military or to higher education. In this case, it cannot be said that the corruption has caused the failure to realize the right.”
The second critique relates to my policy assessment. Both commentators point out that the human rights sanctions and state responsibility for human rights violations will ultimately burden members of the general population of the corrupt state (as opposed to the criminal individual, e.g. bribe-taker or receiver of kick-backs). Read the rest of this entry…