II: Traditional methods reconsidered

Transnational law is dynamic and recursive, interacting with and reexamining itself in a process of constant change. This part of the book engages in that process. Each of the five chapters examines a given process, discusses its weaknesses, and suggests changes to the global anti-corruption regime.

The first chapter in this part, by Thomas Kruessmann, observes that despite frequent reference to the role that they could play, civil actions account for very little of the global anti-corruption regime.[1] Kruessmann argues that the paucity of civil law actions stems from a lack of imagination on the part of those who contribute to the creation of the regime. The traditional means of imposing liability - through breach of contract or infliction of a tort - are too uncertain and expensive when used to litigate issues of corruption. Kruessmann suggests looking elsewhere, and offers collective redress, as in consumer liability actions, and personal accountability, as imposed on corporate executives by supervisory boards, as examples of reimagined and more effective civil actions.

The second chapter in this part examines the effectiveness of voluntary standards and guidelines. These privately developed tools are often called ‘soft law’ and constitute an important component of transnational regimes. Vera Cherepanova begins by describing the emergence of myriad standards, and then usefully creates a four-part typology' of existing standards. Cherepanova examines the effectiveness of standards in controlling corruption and concludes that in the absence of accountability they have little effect. Cherepanova does not, however, argue that standards should be discarded; instead, she suggests that scholars and practitioners continue to study them so as to improve their effectiveness.

The third chapter in this part also examines standards and guidelines. Eduard Ivanov reports on an empirical study he conducted, comparing the ‘ocean’ of standards and guidelines within the global anti-corruption regime to the relatively straightforward guidelines promulgated to curtail international money laundering and the financing of terrorists. Ivanov suggests that the

Transnationalization of anti-corruption 21 multiplicity of resources, models, and guidance may work to the detriment of the goals of the anti-corruption regime, by leaving individual organizations confused and uncertain. He suggests standardization and codification of standards and guidelines.

Jimena Reyes, in the fourth chapter in this part, suggests a reconceptualization of the international anti-corruption instruments in Latin America.[2] Reyes notes that corruption has severely undermined the democratic revolutions throughout Latin America. She finds notions of grand corruption and theories of state capture to be too limited, in that they do not reflect the means through which corruption has undermined these states, and suggests new definitions. She also expresses frustration at the lack of connectivity between human rights regimes and anticorruption regimes. Reyes suggests that explicitly linking corruption to human rights would allow victims of corruption and of state capture to hold states and corrupt actors accountable in ways that are not available within the current global anti-corruption regime.

The final chapter in this part applies a similar analysis to international criminal law. Vishal Sharma notes the many harms inflicted on society by large-scale corruption. In light of these harms, Sharma criticizes the failure of international criminal law to consider large-scale corruption as an international crime. He also notes that corruption undermines the prosecution of other crimes. Sharma suggests that corruption be considered an international crime prosecutable under the Statute of Rome, and proposes changes to the Statute of Rome to inoculate it against corruption. Sharma’s chapter, along with the chapter contributed by Reyes, suggests a relatively unexplored process in the creation of transnational law. Sharma and Reyes suggest dynamic interaction not just within the context of a single transnational regime, but also between regimes. Their proposals demonstrate that this kind of interaction could enhance each of the interacting regimes.

  • [1] Thomas Kruessmann, ‘The Failure of Transnational Anti-Corruption Law: Civil Law Strategies Reconsidered’, ch 8. 2 Vera Cherepanova, ‘The Proliferation of International Anti-Corruption Initiatives, Standards, and Guidelines: Classification, Benefits and Shortcomings, Future Prospects’, ch 9. 3 See Christine M Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 ICLQ 850, 852. 4 See ibid 850-851 (criticizing the failure of scholars to realize the many forms taken by standards). 5 Eduard Ivanov, Tn the Ocean of Anti-Corruption Compliance Standards and Guidelines: Time for Codification?’, ch 10.
  • [2] Jimena Reyes, ‘State Capture Through Corruption: How Can Human Rights Help?’, ch 11. 2 Although only tangential to Reyes’s arguments, the debate over whether corruption itself is a human rights violation or only contributes to and enables human rights violations may be of interest to some readers. Anne Peters provides a thorough introduction to this debate in ‘Corruption and Human Rights’ (2015) Basel Institute on Governance Working Paper No 20. The United Nations Office of the High Commissioner on Human Rights, on the other hand, provides an example of sidestepping the debate, opining that ‘corruption itself is best seen as a structural obstacle to the enjoyment of human rights’ but at the same time ‘promoting] a human rights-based approach to anti-corruption.’ Office of the United Nations High Commissioner for Human, ‘Corruption and Human Rights’ accessed 1 June 2020. 3 Vishal Sharma, ‘Impact of Corruption on the Implementation of International Law: An International Criminal Law Perspective’, ch 12.
< Prev   CONTENTS   Source   Next >