The fight against corruption and the international system for protecting human rights: a slow awakening

While a broad consensus exists today within international governance bodies of the need to fight corruption, this does not translate into powerful, effective international instruments for monitoring cases of corruption, and even less for sanctioning states that fail to vigorously fight corruption. Until 2015, international and regional systems for safeguarding human rights played a purely rhetorical role when it came to countering the negative impact of corruption on human rights.

Weak consensus and fragmented international law in the fight against corruption

As a number of academics have shown, the need to fight corruption in the 20th century was not always self-evident. It is, therefore, worth noting that at the

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Susan Rose-Ackerman, Corruption and Government: Causes, Consequences, and Reform (CUP 2016); Robin Theobald, ‘So What Really is the Problem about Corruption’ (1999) 20 Third World Quarterly 491; James Gathii, ‘Defining the Relationship between Human Rights and Corruption’ (2009) 31 University of Pennsylvania Journal of International Law 125.

State capture through corruption 265 moment when the two principal treaties on protecting human rights were being negotiated and ratified—the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)—the international community perceived the phenomenon of corruption as inevitable and even, in the view of some, useful. Thus, in 1968 Samuel Huntington in Political Order in Changing Societies wrote:

In terms of economic growth, the only thing worse than a society with a rigid, overcentralized, dishonest bureaucracy is one with a rigid, overcentralized, honest bureaucracy. A society which is relatively uncorrupt - a traditional society for instance where traditional norms are still powerful - may find a certain amount of corruption a welcome lubricant easing the path to modernization.

It is only from the 1990s that one can talk of the birth of an anti-corruption consensus. Rose-Ackerman^[1] attributed the emergence of this consensus to two events: the end of the Cold War, which reduced the incentives for more powerful countries to tolerate corruption in their allies, and the transition from a centrally planned economy to market economies, which opened up new opportunities for both licit and illicit profits. Other factors included the accelerated globalization and the 1977 US Foreign Corrupt Practices Act (FCPA), which criminalized overseas bribery and pressured governments to reduce unfair dealing and firms to re-examine their overseas practices. The founding of Transparency International (TI) and the publication of its corruption perception index, which caused alarm and anger among poorly rated countries is also considered a relevant factor. Finally, the intellectual underpinnings of development policy began to recognize the key role of public institutions. Development economists started to look to the field of political science and sociology’ and incorporated work on the functioning of institutions into their conceptual frameworks. In doing so, development economists described corruption as a particularly obvious pathology. Thus, this consensus arose also from the evolving agenda promoted by the Bretton Woods institutions, which from 1992 onwards placed good governance at the center of development policies. Corruption was considered an indicator of poor governance and thus an obstacle to the proper functioning of the economy.

The beginnings of this consensus in the 1990s led to the negotiation and subsequent ratification of various international anti-corruption texts,^[2] including two ratified by most Latin American countries: the Inter-American Convention Against Corruption (IACAC), which came into force on March 6, 1997 and was ratified by 33 States, and the United Nations Convention against Corruption (UNCAC), which came into force in 2005 and has been ratified by almost every country in the world.

The negotiations for these two conventions clearly prioritized a broad consensus on the strength of the obligations of states. In summary, the conventions focus mostly on the obligation or possibility for a ratifying state to include a certain number of offenses as acts of corruption in its criminal code. They set out how cooperation between states operates (particularly through extradition and mutual legal assistance), and they provide options for preventative action and mandator}' rules on asset recover}'. The mechanisms for verifying that the obligations contained in the conventions are respected are weak and the sanctions for lack of respect non-existent.

In addition to international conventions, the past 15 years have seen the emergence of numerous voluntary initiatives, including those issued by international financial institutions, company initiatives—for example, relating to extractive businesses (‘publish what you pay’)—and also individual sanction mechanisms introduced by countries like the United States. All of this has led to an anti-corruption global governance that is still embryonic and highly fragmented.

• [1] Rose-Ackerman (n 1) 6. 2 Gathii also recalls the importance of the non-aligned will in the 1970s to curb multinational corporation bribery within the UN, in a context of discussions on a ‘New International Economic Order’ that was then rejected in particular by the US, but led to the FCPA. James Gathii (n 1) 138-41. 3 Transparency International was founded in 1993 and the first perception index was launched in 1995: see Transparency International, ‘Overview* accessed 1 June 2020. 4 Rose-Ackerman (n 1).
• [2] European Union, ‘Convention Drawn Up on the Basis of Article K.3 of the Treat}' on European Union, on the Protection of the European Communities’ (1995) Financial Interests 49; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (adopted 17 December 1997, entered into force 15 February 1999) 37 ILM 1 (OECD Convention); Council of Europe Criminal Law Convention on Corruption, ETS No. 173, 27 January 1999; Council of Europe Civil Law Convention on Corruption, ETS No. 174, 4 November 1999; Additional Protocol to the Criminal Law Convention on Corruption, ETS No. 191,15 May 2003; Southern African Development Communit}', Protocol against Corruption, opened for signature 14 August 2001; African Union Convention on Preventing and Combating Corruption (adopted 11 July 2003) (2004) 43 ILM 5. 2 Inter-American Convention against Corruption (entered into force 6 March 1997) 35 ILM 724. 3 United Nations Convention against Corruption (opened for signature 9 December 2003, entered into force 14 December 2005) 2349 UNTS 4L 4 Martine Boersma, Corruption: A Violation of Human Rights and a Crime under International Law? (Intersentia 2012) 64; Peter Schroth, ‘The United Nations Convention Against Doing Anything Serious About Corruption’ (2005) 12 Journal of Legal Studies in Business 1. Schroth considers that the provisions of the UN Convention on asset recovery are close enough to what they should be but the remainder of the articles does not provide international standards, many of the mandatory clauses will have little impact either; consensus was achieved to make them mandatory in the UN convention because they only reiterate obligations already existing in other international agreements. 5 Roberto de Michele, ‘The Follow-Up Mechanism of the Inter-American Convention against Corruption: A Preliminary Assessment: Is the Glass Half Empty'’ (2004) 10 Southwestern Journal of Law & Trade in the Americas 295.