30 September 2015
Colleagues and friends,
First of all, I wanted to congratulate our hosts for this timely initiative on a very topical issue. I also would like to welcome our moderator, Ambassador Lindenmann, our distinguished panellists and our keynote speaker Professor Peters.
Throughout my professional career, with UNDP, UNODC and OHCHR I have witnessed the debilitating impact of corruption on development, rule of law, and human rights. I also saw how difficult it is to redress corruption, particularly where it is endemic and permeates up to the top.
We all know what corruption is, yet we all know that there is no internationally agreed definition of the term. It is used in diverse contexts and its meaning is to some extent culturally and historically determined. As a former student of philosophy, I clearly remember the case of Socrates, who was charged and sentenced to death for, among other counts, corrupting the youth. While this clearly highlights the moral connotation of corruption, it is surely not the way we think of corruption today. In a legal context broad definitions need to be substantiated, as is the case with the acts of corruption Member States are requested to criminalize under the United Nations Convention against Corruption, such as bribery or embezzlement.
Much has been said and written about corruption, its causes and consequences, and on ways to suppress and prevent it. It has been studied from many perspectives, by economists, political scientists, lawyers, sociologists and anthropologists. I am pleased to note that literature increasingly looks at the multiple connections between corruption and human rights.
The nexus between corruption and human rights has also been on the UN’s agenda for quite some time:
- Already in 1992, the Commission on Human Rights adopted a resolution expressing concern over the fraudulent enrichment of top State officials prejudicial to the public interests. Thereafter the Sub-Commission undertook a number of studies on this topic.
- More recently, the Advisory Committee on the negative impact of corruption on the enjoyment of human rights released its final study.
- There were also studies undertaken by special procedure mandate holders and treaty bodies.
- And at your June session next year, we will present a compilation of best practices that link anti-corruption measures with the realization and protection of human rights, which we are currently preparing.
While all these efforts contribute to a better understanding of the relationship between corruption and human rights, we are still far away from having clarified all intricacies of this relationship. This side-event’s attempt to identify the essential ingredients of a human rights approach to combatting corruption is therefore more than welcome.
The following relationships have been identified in the relevant literature:
- One suggestion is that there is, or should be, a human right to freedom from corruption, or a human right to a corruption-free society or at least to a corruption-free public service.
- A more nuanced approach highlights the negative impact of corruption on the enjoyment of human rights, including as a violation of human rights through particular acts or patterns of corruption. This can be established either through cases decided by human rights tribunals, findings by other human rights mechanisms, or more generally by comparing empirical data.
- The reverse has also been argued. Protecting human rights, such as freedom of expression, including access to information and media freedom, human rights education and access to justice, is instrumental to address corruption.
- Another link is that anti-corruption measures must not violate the human rights of the alleged perpetrators, who enjoy full due process and fair trial rights.
- On the other hand, it is also essential to uphold human rights that protect the anti-corruption activists, including their right to life and physical integrity.
- It has also been argued that the human rights-based approach to development cooperation and other human rights-based methodological tools effectively prevent corruption.
- Finally human rights mechanisms can be utilized to combat corruption.
Corruption is often considered a crime without victims. I disagree. In many cases, I would argue, there is a perpetrator-victim relationship. A victim can be the person who has no other option than to consent to take part in the act of corruption. It can be the honest tenderer, who loses out. It can be an identifiable group of persons, typically the most vulnerable and marginalised sectors of society who have limited possibilities to defend themselves or simply the public at large.
There is remarkably little case law which explicitly links human rights violations with corruption. This can in part be attributed to legal and evidentiary hurdles that need to be overcome. Some questions to be addressed are: Is the corrupt act attributable to the State? Is there a sufficient causal link between the act and the alleged breach of human rights obligations? Who bears the burden of proof and what is the relevant standard of proof? Have domestic remedies been exhausted?
Let us be clear though, while the human rights and anti-corruption legal frameworks and mechanisms are complementary and can be mutually reinforcing, human rights are no panacea against corruption.
I look forward to your discussions today, which, I trust, will address these important questions in more detail.