The Risk and Opportunity of the Humanisation of International Anti-Corruption Law: A Rejoinder to Kevin E. Davis and Franco Peirone

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).

2. Systemic problems and individual justice

These two critiques are fundamental, and – importantly – they are linked. The struggle to establish causality between corrupt behaviour and the violation of a human right is the doctrinal expression of the normative objection against breaking down a systemic legal problem into a human rights question which by definition concerns individuals. The factual and temporal distance between institutions facilitating corruption on the one hand, and their, as Davis puts it “indeterminate effects on the enjoyment of human rights” of individual victims is exactly the reason why “forcing” the problem of corruption into the human rights mould seems artificial and far-fetched, as the comments insinuate.

However, the question whether and how systemic governance deficits can be articulated in the language of rights is not only relevant for corruption. The situation of corruption is only one modality of impinging notably on ESC-rights. It raises the larger and basically unresolved question of how to exactly determine at which point a concrete ESC-right of a concrete person is violated. This problem is often described as a lack of justiciability. But it is not only a procedural matter but relates to the material structure of the ESC-rights. The conceptual juridical work towards defining violations which trigger state responsibility and potentially reparation (as opposed to vague statements of noncompliance) is only in its infancy. Because social rights violations very often result from systemic governance deficiencies, based on political budgetary decisions, affect large groups of people, and pose threshold questions, the problem of causation is ubiquitous here – not only with regard to corruption.

The commentators’ uneasiness about burdening the tax-payer with reparation for human rights violations is another manifestation of a perceived necessity to keep apart the production of justice for individuals on the one hand, and systemic decisions about laws and politics on the other hand. Franco Peirone employs the metaphor of the forest and the trees. Focussing on the individual trees might prevent us from seeing the wood in its entirety, and it might also obstruct attempts to put out a forest fire. This image conveys the idea that systemic cures on the macro-level are needed to resolve a structural problem such as corruption − as opposed to the micro-management of human rights violations. However, there is also the inverse risk of forgetting about the trees if one is too eager to see a forest. This is to say that the shift of attention from structural problems to individual consequences has an ideational value because it reduces the risk of harming people in the zeal of great transformations.

3. Corruption and the rule of law

As Franco Peirone rightly points out, the primary good protected by anti-corruption is the rule of law. Corruption means that administrative or political decisions by government authorities are bought rather than made on the basis of lawfulness in procedures formally envisaged for that purpose. Corruption follows the unofficial ‘laws’ of the market, thereby circumventing the rule of law. Corruption is thus the antithesis to the rule of law.

The rule of law − in turn − is a necessary condition for the respect of human rights. Along this line, the Human Rights Council recognised that:

“the detrimental impact of widespread corruption on human rights through both the weakening of institutions and the erosion of public trust in government, and through the impairment of the ability of Governments to fulfil all their human rights obligations“ (UN Doc. A/HRC/RES/35/25, preamble, 11^th indent, emphasis added).

Likewise, the Special Rapporteur on the independence of judges and lawyers stated that “corruption and organized crime are undermining the rule of law and the capacity of States to promote systems of governance accountable to and compliant with human rights standards.” (UN Doc. A/72/140 of 25 July 2017, para. 21).

In contrast to such pronouncements it has recently been asserted that there is no link between the rule of law and the eradication of corrupt practices (Lys Kulamadayil, ‘When International Law Distracts: Reconsidering Anti-Corruption Law’, EIL reflections vol. 7 issue 3 of 7 May 2018). It was also asserted that “international anti-corruption law sets up a strawman (non-liberalism)” which it fights, and that the promotion of liberal public law principles has become solidified and limits imaginative scope for exploring alternative strategies. Unfortunately, the said author did not even hint at any alternative. In my opinion, schemes of rule-based decision-making seek to benefit weaker actors and protect humans from arbitrariness. The ultimate telos of the rule of law (in a ‘thick’ and Fullerian sense) thus converges with the protection of human rights.

4. The turn to rights and its pitfalls

The underlying issue is one of the big questions of contemporary international law. The proposal to combat corruption with the tool of international human rights law is one manifestation of the overall turn to rights in global governance. This turn has been touted and lauded by some commentators (Theodor Meron, Antônio Augusto Cançado Trindade) as a “humanisation” of international law. It has been condemned by others as an undue “righting” (Karen Knop; Ayeal Gross) of international law, as a “droit de l’hommisme.” (Alain Pellet). This condemnation coincides with a wave of scepticism against the utility and normative worth of rights as a legal institution for combating injustice in a world of global capitalism and cultural pluralism. I will leave aside the neo-Marxist, critical legal studies, post-colonialist, and cultural relativist currents forming that wave of critique. What matters in the context of corruption and human rights is the institutionalist critique. That critique observes that the “engine room” of a polity are the institutions (government, administration, courts) without which a polity cannot function and in which proclaimed human rights cannot effectively be protected (Roberto Gargarella, Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution (Oxford: Oxford University Press 2013)). The critique seems all the more pertinent for global governance whose institutions are so weak that the internationally proclaimed human rights might remain illusionary. However, the critique risks to overstate the contrast between ‘institutions’ and ‘rights’. Governance institutions can not neatly be separated from the social context which is in turn formed inter alia by rights. Put differently, rights themselves can co-constitute institutions and may thus contribute to strengthen the international governance ‘machinery’ (to use Gargarella’s image).

Nevertheless, caution against rightsification is warranted. It is to some extent an excess caused by the lack of general international courts with a broad jurisdiction to which individuals would have access and could reclaim all kinds of breaches of international law. The only individually accessible international courts are the regional human rights courts. Because their jurisdiction is limited to the scrutiny of human rights violations, plaintiffs must frame even systemic legal problems as a human rights violation if they want to seize those courts. This strategic framing has been picked up by the monitoring bodies which have, for example, recognised the alleged “right to the truth” and a “right to punishment”. But these “rights” often do not properly capture the underlying systemic governance problems.

The advantage of the human rights lens is to hold the states responsible. And because the states rest on a tax basis, any financial sanction against states will ultimately fall back on tax payers, as Davis and Peirone cricitcally point out. However, there simply is no other way – if we want to sanction human rights violations at all (unrelated to the issue of corruption). This is the scheme in the international protection of foreign investment and regional human rights courts. In these two areas of international law, the imposition of high sums of reparation has triggered a backlash against the regimes. For example, Ecuador denounced the ICSID Convention in 2010, against the background of pending investor-state-arbitration involving claims for damages amounting to more than 10 billion US Dollar. Or, Russia adopted a law which allows the Russian Constitutional Court to review and prevent the implementation of judgements by the ECtHR in the aftermath of the Yukos judgment on just satisfaction of 2014 that had ordered Russia to pay around € 1.9 billion to the shareholders of the Yukos company at the time of its liquidation.

Because such withdrawal from international regimes is always a possibility, it seems wiser that international monitoring bodies avoid such huge financial sanctions. Indeed, the gist of the human rights approach is not to collect huge sums of reparation but to state legally and formally the responsibility of the state, to recognize the victims, and maybe offer some symbolic reparation to that end.

In acknowledgment of the dangers of exaggerated rightism, I insist on the added value of a focus on rights in combatting corruption. This also means to refute the current overblown critique of rights. As long as that critique does not present any meaningful alternative to (human) rights as instruments of social struggle and as vehicles of emancipation it amounts to no more than a ‘debilitating quietism’ (Paul O’Connell, On the Human Rights Question, Human Rights Quarterly 40 (2018), 962-988). What Patricia Williams wrote 20 years ago for people of colour in the United States remains true for large populations world-wide: ‘”Rights” feels so new in the mouths of most black people. It is still so deliciously empowering to say.’ (Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, Harvard Civil Rights-Civil Liberties Law Review 22 (1987), 401–433, 431). Rights transform victims into citizens. And these citizens are needed to build states and global governance institutions that work.