Corruption and access to justice in international law, Part 1

Coronavirus may be sweeping the globe, but over the past three decades the contagion of corruption has done much to harm public trust in democracy throughout the world. As western states channel money towards struggling sections of their populations and economies, literal and metaphoric contagions look set to collide. In both Europe and the Americas, the race to buy up equipment and supplies has seen governments award contracts without due oversight or accountability.¹ In December 2020 the European Union sought to ensure that money flowing to member states as part of its pandemic recovery package would not allow Poland and Hungary to reward “improper behaviour by public procurement agencies, prosecutors and the courts.”² National leaders are being exposed for their attempts to personally profit from pandemic relief funds.³ Meanwhile wealthy elites are offering large donations in return for receiving vaccinations ahead of public dispensation.⁴

Corruption, defined as the abuse of power for private gain, has historically been likened to contagion for its association with moral pollution, degradation, and the spoilage of public institutions. It is no surprise that in his foreword to the text of the United Nations Convention Against Corruption (2004), then Secretary-General Kofi Anan compared the spread of corruption to a plague ravishing the world.⁵ Although one hundred and eighty seven states have signed the UNCAC, for the past two decades criminal acts of bribery, money laundering, and misappropriation have not receded but rather metastasized, crossing borders with alarming speed and scope. The focus of international scrutiny on acts of grand corruption, committed by public officials or domestic governments, has shifted towards systemic trans-national abuses, described in the work of investigative journalists and NGOs as the global rise of kleptocracy characterized by illicit flows of money through the global financial system on a massive scale. If corruption is understood to be a systemic issue, legal and judicial corruption continues to present major obstacles to the rule of law in both poor and wealthy parts of the world. Even international institutions engaged in the enforcement of global norms are no strangers to the problem of corrupt practices. The ICC, for example, recently clarified its rules governing participation in arbitration proceedings as part of an attempt to address the so-called revolving door of judges working on international investment cases.⁶

How should we define corruption? This is a central challenge for those seeking to widen legal action against corrupt institutions and individuals. Today the term “corruption” is capacious; it is used to describe so much dysfunction in so many different aspects of human society. Yet it has no straightforward legal definition. Instead, corrupt practices such as bribery, traffic in influence, embezzlement, and fraud, are the more recognizable crimes. In this way, we see how different legal standards, not just across different societies or parts of the world, but through time, have altered the understanding of what constitutes corruption.

Definitional issues notwithstanding, returning to basic principles and concepts helps underscore the existential threat that corruption poses to values of justice and the rule of law. Access to justice and corruption are an inversion of each other. Corruption is the phenomenon of securing impunity or special advantage to circumvent the rules that govern individual and collective conduct. It presupposes impunity, discretion, and arbitrariness in the nature of law. The rule of law is predicated on the regularity and uniformity of an independent judiciary, uncorrupted by fear or favour. Fairness and equality underwrite the rule of law, ensuring that regardless of their position in society, individuals have a right to legal intelligibility, protection, and representation. However, in practice, as is all too evident throughout both the developed and developing world, the principle of equality before the law is undermined by wide disparities of wealth and education. Corruption at its most basic and arguably ubiquitous level allows those who are in positions of power to charge for public services, in the “transactional conversion of public power” in private gain.⁷

In both a substantive and procedural sense, the capacity of individuals to access legal services and advocate for their rights and interests is fundamental to free constitutions and functioning judiciaries. The term, “access to justice”, is usually understood domestically to describe efforts to provide legal aid and education to those groups least likely to be able to afford legal advice or counsel or to understand their rights. Legal aid is not a recent innovation but has a longer history. In the United Kingdom, free legal assistance was given to the poor as early as the fifteenth century, often in more equitable and effective forms than it is today.⁸ Later in the nineteenth century, as social reformers sought to secure all citizens protection from poverty and disease through state provision, legal scholars wrote of the need to ensure that the legal infrastructure of the state kept pace with the provision of socio-economic rights. The contrast between the infrastructural conditions supporting the growth of corruption and those affording access to justice provide a very direct illustration of the contemporary malaise, one which is premised on economic inequality. To what extent does international law provide an infrastructure of justice for individuals and communities harmed by corruption across multiple sectors of society?

In public international law, the protection of human rights and the pursuit of justice are only possible where there exist procedures and judicial remedies. Despite the development of human rights law since the end of the Second World War, no international legal architecture exists to make justice accessible to individuals seeking redress on the basis of customary international law. States are the constitutive basis of legal personality, enforcing laws within their jurisdictions, often limiting as a result the scope of international litigation in practice. Even if individuals can increasingly claim a right to international legal redress, this usually takes place within the domestic legal system where the violation of rights has occurred. The ICC acts on the basis of an overlapping, not singular, jurisdiction. In this sense, some have called for corruption to be considered a crime against humanity and within the remit of the existing ICC, who could act as a judge of last resort for the responsibility of national governments engaging in the kind of corruption which exacerbates, if not directly causes, disasters of famine and disease.⁹

Corruption is increasingly regarded as a direct abuse of human rights. The corruption of government finances and sources of funding denies states and individuals access to essential resources which could be put towards remedying poverty, providing education, and building infrastructure; violation of human rights occurs through preventing access to rights.¹⁰ Corruption of the judiciary is a logical abuse of human rights, in its undermining the basic capacity of individuals to access justice through the courts. Regardless of status, citizens should be able to understand their rights and the obligations imposed on them by the laws, as well as gain access to legal services at the state level. Such rights of access to justice are iterated in legal instruments from the United Nations Universal Declaration on Human Rights (1948), the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union, the Inter-American Convention on Human Rights and the African Convention on Human Rights. The existence of UN Special Procedures on the Independence of Judges and Lawyers (1994) has provided a basis for individual complaints and legislation aimed at addressing threats to judicial independence. International lawyers have for decades made reference to the need to provide access to justice as the cornerstone of enforcing human rights as “infrastructures which uphold the rule of law and democracy”.¹¹

Addressing corruption at the international level has been the focus of concerted effort since the 1990s with the Inter-American Convention Against Corruption (1996) and the OECD Anti-Bribery Convention (1997). There followed a steady march of laws aimed at establishing criminal liability for bribery offenses committed by public officials and private companies. The rise of such treaties helped to challenge the notion that corruption in government circles belonged to a stage of political development and was simply part of the cost of wealthy countries doing business with poor nations. Instead, corruption scandals in western governments exposed the hypocrisy of measuring developing countries legal and political modernity against their success in eliminating corruption. Judicial corruption remains a major cause of injustice throughout the world. Again, defying the notion that corrupt practices are the province of poorer countries, the federal judiciary of the United States has been shown to be riddled with corrupt judges acting without regard to legal standards for their own personal and professional conduct, often handing out sentences with no respect for norms of evidence or sentencing standards.¹²

However it has also been the case that when corruption has been characterized as a human rights abuse perpetrated by corrupt regimes in poor countries, the appeal to international norms has created, as Anne Peters has written, “a negative feedback loop”, giving ample scope to accusations of hypocrisy. Western states “deplore that corruption undermines the enjoyment of human rights and, concomitantly, employ human rights as a normative framework to denounce and combat corruption”.¹³ The double standards of western governments combined with the legacy of colonial history have given governments the ability to cast asset recovery programs as neo-imperial attacks on poor countries’ sovereignty.¹⁴

To what extent does the UNCAC provide a viable legal basis for access to justice? As one high-profile legal commentator has observed, the UNCAC’s monitoring mechanism for states’ compliance in criminalizing corruption has tended to focus on the enactment of laws as a mark of success or progress at the expense of their enforcement. This is the observation of Mark Wolf, a leading advocate for an International Anti-Corruption Court, modeled on the role played today by the International Criminal Court. Despite acknowledging its limitations, Judge Wolf sees the UNCAC as providing a solid legal basis for establishing such an institution. Given the scale of the problem, Judge Wolf sees the present moment as reminiscent of the early years of this century, when the long held ambition of internal lawyers to prosecute war crimes and human rights abuses led to the founding of the ICC. He makes the important point that an international court acting as a last resort for the prosecution of corruption could only act where a state proves “unwilling or unable to make good-faith efforts to investigate, prosecute, and punish its leaders and their accomplices for corruption”.¹⁵

Such a scenario is all the more likely and necessary in situations where governments and leaders have captured the media, the courts, and the electoral system, all but ensuring impunity. Again, however, the context of the corruption problem points towards multiple forms of capture, which relate and overlap. The United States Congress provides a case study in the problem of institutional corruption, that phenomenon described by Lawrence Lessig as the “systemic and strategic influence which is legal” but “that undermines the institutions effectiveness” or purpose.¹⁶ Lobbying and campaign finance laws are the best examples of the capturing of governing institutions by special interests. However institutional corruption is not the exclusive province of politics. Sectors of the legal profession are equally inured to the risk of capture, a problem recently explored by the European Union in its investigating lawyers’ role in facilitating tax evasion and money laundering. Although the illegality of some may not be particularly revelatory, it is worth noting the role that surveys have played in the past in reporting on the widespread nature of the problem.¹⁷

Finally, with the focus on the systemic causes of corruption providing much of the basis for current legal and political analysis, it is easy to ignore the victims of corruption. The UNCAC makes explicit the connection between access to justice and the prosecution of corruption “to ensure that entities and persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation”. However, it is fair to say that one of the challenges involved in combating corruption is the danger posed to individuals who divulge illegal practices. Whistleblowers face the danger of retribution, from low level threats to reputations to the threat of injury or even death.¹⁸ At the same time, the apathy with which many throughout the world increasingly approach the problem of corruption, as an endemic and inoperable disease, underscores the necessity for the individuals and institutions of civil society to continue to expose and highlight corruption as a threat to international norms and governance.