Corruption and Human Rights
This panel was convened at 9:00 a.m., Friday, March 26, by its moderator, Makau Mutua of University at Buffalo Law School, who introduced the panelists: Joel Barkan of the University of Iowa; Julio Bacio-Terracino of the Graduate Institute of International and Development Studies; Joel Ngugi of the University of Washington School of Law; and L. Amede Obiora of the University of Arizona, Rogers College of Law. *
* Joel Barkan did not submit remarks for the Proceedings.
LINKING CORRUPTION AND HUMAN RIGHTS
The links between corruption and human rights are varied and can be best examined under two main questions: (1) what are the connections between human rights and corruption? and (2) why is it relevant to link human rights and corruption?
THE CONNECTIONS BETWEEN HUMAN RIGHTS AND CORRUPTION
Human rights and corruption have usually been linked to illustrate the negative effects of corruption on society and individuals. However, other dimensions of their relationship may also be evidenced. Human rights can serve as tools to prevent and fight corruption, and certain anti-corruption practices have been referred to as a threat to human rights.
The Impact of Corruption on Human Rights
Evidence has shown that all human rights can be restricted by corrupt practices, be they economic, social, cultural, civil, or political rights. However, the impact of corruption on human rights will vary in each case. Often corruption will lead to human rights violations but will not itself violate a human right. Corruption in these cases is a factor fueling human rights violations, but it can only be distantly linked to the infringement upon human rights.
However, corruption is directly connected to a violation of human rights when the corrupt act is deliberately used as a means to violate the right. For example, a bribe offered to a judge per se affects the independence and impartiality of that judge, and hence the fight to a fair trial is violated. In other cases, corruption directly violates a human right by preventing individuals from having access to the right. Conditioning of access to human rights on corrupt payments produces the violation. For example, when an individual must bribe a doctor in order to obtain medical treatment, or bribe a teacher in order to be allowed to attend a class, his right of access to health and education has been infringed by corruption.
In other situations, corruption will be considered to violate human rights in an indirect way. When a corrupt practice constitutes an essential contributing factor in a chain of events that eventually leads to a violation of a right, corruption can still be blamed for violating human rights. In this case the right is violated by an act that derives from a corrupt act. But the act of corruption constitutes a necessary condition for the violation. For example, if a corrupt minister allows the illicit dumping of toxic waste in a place close to a residential area, the rights to life and health of the citizens in the area are violated. Yet the rights are violated by the act of allowing the illicit dumping of toxic wastes and not by the bribe received by the corrupt minister. Nevertheless, the act of corruption was a necessary condition for the violation. This example is far from being theoretical, as the use of bribery to influence public officials' decisions to allow the illegal importation of toxic waste from other countries is a common practice around the world.
Moreover, it should be noted that not all acts of corruption constitute a violation of rights. Many cases of corruption, particularly cases of the so called private-to-private corruption, have no impact on human rights. The assumption that corruption always violates human rights is quite often made, yet it tends to erode the seriousness of the term.
Human Rights as Anti-Corruption Tools (1)
It is generally held that weak human rights protection may create opportunities for corruption. …