Corruption and Human Rights: Possible Relations PDF

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Corruption and Human Rights: Possible Relations Luz Angela Cardona, Horacio Ortiz, Daniel Vázquez Human Rights Quarterly, Volume 40, Number 2, May 2018, pp. 317-341 (Article) Published by Johns Hopkins University Press DOI: https://doi.org/10.1353/hrq.2018.0017 For additional information about this ...

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Corruption and Human Rights: Possible Relations Luz Angela Cardona, Horacio Ortiz, Daniel Vázquez Human Rights Quarterly, Volume 40, Number 2, May 2018, pp. 317-341 (Article)

Published by Johns Hopkins University Press DOI: https://doi.org/10.1353/hrq.2018.0017

For additional information about this article https://muse.jhu.edu/article/694699

Access provided by University of South Dakota (16 Aug 2018 02:12 GMT)

HUMAN RIGHTS QUARTERLY

Corruption and Human Rights: Possible Relations Luz Angela Cardona, Horacio Ortiz & Daniel Vázquez ABSTRACT Various causal mechanisms exist that make it possible to assert that more corruption equals more violations of human rights. This article explores those mechanisms and offers empirical evidence of this relation by applying statistics to indicators of corruption and personal integrity, as well as of political, economic, and social rights. The main impact occurs when people enjoy these rights at a medium to high level. The connection between corruption and human rights is not constant and has inflection points. At certain times the fight against corruption yields more results, and this is the juncture at which Mexico currently finds itself.

Luz Angela Cardona is a Master in Population and Development of FLACSO Mexico, currently is a doctoral student in Social Sciences of the same university, is a psychologist at the Pontificia Universidad Javeriana in Bogotá, Colombia. Her research focuses on human rights, public policies, social mobilization, society-state interactions, legal change, and corruption. [email protected]. Horacio Ortiz is a Ph.D. student in El Colegio de México’s Center of Sociological Studies. He graduated from the National Autonomous University of Mexico (B.A.) and the Latin American Faculty of Social Sciences (M.A.). His research focuses on criminal victimization, fear of crime, and corruption through quantitative methods. [email protected]. Daniel Vázquez is a Ph.D. in social science with a degree in political science from FLACSOMexico, and has studies in law, political science, and political sociology. He is a professor at Flacso-Mexico and at Institute of Legal Ressearch in de National University. He is also a member of CONACYT’s National Researchers System. His research topics include the legal theory of International Human Rights Law; studies on democracy, human rights, and the market; and the relationship between corruption, impunity, and human rights. [email protected]. Human Rights Quarterly 40 (2018) 317–341 © 2018 by Johns Hopkins University Press

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I. INTRODUCTION Studies on the effects of corruption on economic performance became more numerous in the early 1990s due to the increasing interest that various financial organizations exhibited. At a macro level, research on the economy of corruption can be found in three works: Governance, Corruption and Economic Performance (2002), International Handbook on the Economics of Corruption (2006), and Corrupción, Cohesión Social y Desarrollo: El caso de Iberoamérica (2011) (Corruption, Social Cohesion and Development: The Latin American Case).1 This area of study has focused on the causes and consequences of corruption, primarily through statistical analysis. The present article focuses on the consequences of corruption, and most of the data and connections are found in the economic sphere: According to Paolo Mauro, improvements in the standard deviation indices for corruption create an increase in the annual per capita GDP growth rate of between 1.3 percent and 0.69 percent. For Leite Weidmann, a decrease in corruption from the level of Chile to the level of the United States would imply an increased annual growth of 1.4 percent in the former country; if Bangladesh had a level of corruption similar to that of Singapore, its annual growth rate would have been 1.8 percent higher. Taking a similar approach, Bagio and RamírezRondan consider that reducing corruption in Latin America to the average level of developed countries would imply an annual increase of 0.5 percent in per capita GDP, rising to 0.7 percent in the case of Africa. Nevertheless, some adverse results have also become apparent. For example, Brunetti et al. did not find any significant relation between corruption and growth, and the results of Lambsdorff indicate that the relation is not produced between these two variables, but between growth and the variation and the levels of corruption.2

In terms of economic performance, corruption affects economic growth, government debt, equality, and the struggle against poverty. A common conclusion is that increased corruption equals weaker economic growth. This connection assumes there is an efficient economy and therefore corruption raises the cost of certain economic operations and creates a substitution effect, insofar as it reassigns agents who are seeking to prevent corruption.3 Corruption, however, creates distortions in transactions or business settings: “Corruption, among other impacts, distorts prices and market conditions, re-

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GOVERNANCE, CORRUPTION, & ECONOMIC PERFORMANCE (George T. Abed & Sanjeev Gupta eds., 2002); INTERNATIONAL HANDBOOK ON THE ECONOMICS OF CORRUPTION (Susan Rose-Ackerman ed., 2006); CORRUPCIÓN, COHESIÓN SOCIAL Y DESARROLLO: EL CASO DE IBEROAMÉRICA (José Antonio Alonso & Carlos Mulas-Granados eds., 2011). José Alonso & Carlos Garcimartín, Causas y Consecuencias de la Corrupción: una Revisión de la Literatura, in CORRUPCIÓN, COHESIÓN SOCIAL Y DESARROLLO, supra note 1, at 43, 65. Id at 61.

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duces trust in the authorities, affects the sustainable development of countries and firms, discourages investment, increases uncertainty when undertaking commercial transactions, and drives up companies’ operating costs.”4 The encouragement of tax fraud has a negative impact on a country’s debt. In the 25 percent of countries with the lowest rates of corruption, public debt runs at an average of 3.1 percent GDP; this figure rises to 6.7 percent in the 25 percent of countries with the highest levels of corruption.5 Consequently, corruption impacts equality and the fight against poverty because it penalizes equality of opportunity, reduces social mobility, weakens institutions, and diminishes the state’s role as redistributor.6 However, these studies do not fully establish a causal relation: Does corruption have this type of impact on economic performance, or does a weak economy cause corruption?7 Some authors consider that the secondbest explanation is that corruption can be economically beneficial by speeding up bureaucratic procedures in countries with badly regulated markets.8 Although there is a large body of research that discusses the economic consequences of corruption, there is little discussion of the consequences of corruption on human rights. What is the impact of corruption on human rights? The present study discusses this question thoroughly. Answering it required the creation of a cross-national database for the 1996–2015 period that included the variables of corruption and human rights, as well as control variables such as impunity, political regime, gross domestic product (GDP), and population figures. Finally, various statistical techniques allowed the examination of the different links between corruption and human rights. This article is divided into seven sections. The second section theorizes on the relations between corruption and human rights. Sections three, four, and five explain the definition and measurement of corruption, human rights, and control variables like impunity, type of political regime, gross domestic product (GDP), and population. Section six presents the results of the various statistical tests. The article finishes with a series of brief conclusions about human rights, corruption, impunity, and democracy: the (possible?) equation for Mexico. 4. 5. 6.

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ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD) REGLAS CLARAS, NEGOCIOS TRANSPARENTES: CONVENCIÓN DE LA OCDE PARA COMBATIR EL COHECHO DE SERVIDORES PÚBLICOS EXTRANJEROS EN TRANSACCIONES COMERCIALES INTERNACIONALES 5 (2002). Alonso & Garcimartín, supra note 2, at 66. The increase in a typical deviation of corruption (2.52 points out of 10) increases the Gini index by 4.4 points, a similar effect to reducing average schooling by two years. The same increase of corruption reduces the increase of the income of the poor annually by 4.7 percent. Id. at 67. Susan Rose-Ackerman, Economía Política de las Raíces de la Corrupción: Investigación y Políticas Públicas, in CORRUPCIÓN Y TRANSPARENCIA: DEBATIENDO LAS FRONTERAS ENTRE ESTADO, MERCADO Y SOCIEDAD 23, 24 (Irma Eréndira Sandoval ed., 2009); James Thuo Gathii, Defining the Relationship Between Human Rights and Corruption, 31 U. PENN. J. INT’L L. 125, 134–37 (2009). Alonso & Garcimartín, supra note 2, at 61.

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II. HOW DOES CORRUPTION AFFECT HUMAN RIGHTS? For several reasons, it is expected that corruption has an impact on the exercising of human rights.9 This section illustrates four stances in which corruption impacts human rights. The first stance occurs when individuals with authority request bribes as a condition for people to access their rights.10 Examples include: • officials in public prosecution offices asking victims of crime and/or people arrested for bribes; • officials in court houses requesting bribes from parties involved in any legal proceedings (criminal, civil, administrative, or industrial); • nurses, doctors, and hospital administrators asking bribes from patients who become victims of human rights violations; and • school directors and teachers asking for money to let students attend school, to correct students’ homework and other assignments, or to provide them extra classes about essential parts of the curriculum intentionally omitted in regular classes.11

In these cases, there is a relation of corruption between the service providers and the people who become victims of a human rights violation.

Figure 1. Direct Relation Between Corruption and Human Rights (compiled by authors)

A second relation between corruption and human rights is the payment of bribes for state prohibited actions that openly violate human rights.12 Examples include:

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10. 11. 12.

This article chooses to make the classification by examining the mechanisms and forms taken by corruption because it is better to subsequently consider which type of anti-corruption action or strategy can be used in each mechanism. Nevertheless, this is not the only way of considering the relations between corruption and human rights violations. For example, see Julio Bacio Terracino, Corruption as a Violation of Human Rights (January 2008) (unpublished Ph.D. dissertation, Graduate Institute of International and Developmental Studies), available at http://papers.ssrn.com/sol3/papers.cfm?abstract=1107918 [hereinafter Bacio] that produces a breakdown that refers to human rights that have been violated—rather than corruption mechanisms—as a classification criteria. INTERNATIONAL COUNCIL OF HUMAN RIGHTS POLICY (ICHRP), CORRUPTION AND HUMAN RIGHTS: MAKING THE CONNECTION (2009); Anand N. Asthana, Human Rights and Corruption: Evidence From a Natural Experiment, 11 J. HUM. RTS. 526 (2012). Bacio, supra note 9, at 28. ICHRP, supra note 10; Bacio, supra note 9, at 10–11.

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• contravening industrial safety measures that can lead to accidents, such as explosions in mines;13 • obtaining impact assessments by paying bribes in order to carry out megaprojects such as dams, mines, wind farms, and tourism developments; • maintaining people-trafficking networks for sexual or labor exploitation; and • buying votes and bribing public officials in charge of organizing elections to commit electoral fraud; thus, infringing on the political rights of citizens as well as of the other affected candidates.

A third, less obvious relation between corruption and human rights violations occurs when acts of corruption result in the reduction of public resources. If the budget is precarious, this leads to fewer goods and poor government services, a situation that openly runs counter to the obligations for the protection, guarantee, and promotion of all rights. The reduction of public goods and services also runs counter to state obligations for progressiveness, non-regression, and the maximum use of available resources.14 Corruption can diminish public funds through the misuse of funds, for example, for private appropriation of public resources; the request of bribes to purchase goods or provide public services; and the creation of surcharges and other kinds of additional costs that affect the quality of the process for acquiring goods and services.15 The state capture or structural corruption constitutes the fourth relation between corruption and human rights violations in which public policies’ design processes are distorted generating a privatization of public resources.16 In the second, third, and fourth relations between corruption and human rights violations, the interaction no longer takes place between the public official and the victim of the human rights violation, as the first relation demonstrates. Instead, the corruption occurs between the public officials closest to the administrative or executive decision-making apparatus and individuals who seek to make a profit or gain an advantage from a corrupt act. Therefore, victims do not form part of the corrupt relationship, but suffer as a result.

13. 14. 15.

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Bacio, supra note 9 at 15. Asthana, supra note 10; ICHRP, supra note 10; Bacio, supra note 9, at 32; Gathii, supra note 7, at 125–202. This link between corruption and human rights violations is examined by the Comisión Interamericana de Derechos Humanos (CIDH) in its report on human rights in Paraguay. COMISIÓN INTERAMERICANA DE DERECHOS HUMANOS (CIDH), TERCER INFORME SOBRE LA SITUACIÓN DE LOS DERECHOS HUMANOS EN PARAGUAY (2001), available at http://www.cidh.org/countryrep/ paraguay01sp/indice.htm. ICHRP, supra note 10.

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Figure 2. Indirect Relation Between Corruption and Human Rights (compiled by authors)

Rather than any single relation between corruption and human rights violations, there are several varied connections that further imply differing levels of analytical complexity given their own logic and processes. For example, the relation between corruption and human rights violations through political corruption distorts public policy design processes and will always be highly complex and structural. On the other hand, there are three types of actions that should be prohibited: these can be isolated; endemic, but focused; or endemic and systematic acts.17 As certain kinds of corruption can be catastrophic for a community’s human rights (in the case of megaprojects, for example) or for a country as a whole (in the case of state cooption and deviations in public policy design), the findings of the 11th International Anti-Corruption Conference held in Seoul declared that large-scale corruption should be considered a crime against humanity falling into the same category as torture, genocide, and other crimes against humanity. In its other findings, it “condemned corruption as immoral, unjust and repugnant to the ideals of humanity enshrined in the Universal Declaration of Human Rights, and confirmed the conviction that all human beings have a basic human right to live in a corruption-free society.”18 The task ahead in analyzing human rights violations resulting from corruption is the empirical analysis of processes and the magnitudes of these violations that, up until today, appear as hypotheses in studies.

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An example of the latter is observed in TRIBUNAL PERMANENTE DE LOS PUEBLOS & JUSTICIA PARA LOS PUEBLOS, PRE-AUDIENCIA SOBRE “PRESAS, DERECHOS DE LOS PUEBLOS E IMPUNIDAD” (2012), where it is seen that the human rights violations taking place in communities during dam construction follows the same patterns regardless of whether the dam is being built in northern, central, or southern Mexico. UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP), THE IMPACT OF CORRUPTION ON THE HUMAN RIGHTS BASED APPROACH TO DEVELOPMENT 9 (2004).

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III. HOW TO OBSERVE AND MEASURE CORRUPTION? It is difficult to adequately observe and measure corruption. A familiar debate for expert analysts of corruption revolves around the pros and cons of objective versus perceptive corruption measures.19 An undeniable fact is that corruption—like any other crime—occurs under a veil of secrecy. Therefore, constructing objective data on corruption, in other words, information that provides us with hard facts about corrupt acts, is a complicated task. One must also decide what kind of corruption one is going to study. Will it be every act of corruption? Corruption that causes state co-option? Large or small-scale corruption? Structural corruption or isolated practices? This situation is exacerbated when the aim is to create a standardized database that includes several countries over a long-time span enabling comparisons between countries, as well as within the same countries at different points in time. Despite the difficulties, this type of database is necessary. There are three prevalent indices that gauge the perception of corruption: The Corruption Perceptions Index (CPI) by Transparency International (TI), the corruption component of the World Bank’s Worldwide Governance Indicators (WB-WGI), and the corruption component of the Rule of Law Index (ROL) of the World Justice Project (WJP). This article uses the first two. The best-known and most widely used corruption measure is the CPI, drawn up by TI, developed by Johann Graff Lambsdorff, and subsequently altered in 2012 in an important amendment by Andrew Gelman and Piero Stanig. The composite CPI combines surveys and evaluations of corruption with data gathered by different established institutions that pose different questions based on samples of various interview subjects. This data is later normalized and subjected to statistical adjustments.20 This technique is known as the “scrutiny of scrutinies.” This index continued from 1996 to 2011.21 In that period, the CPI received particular criticism for lacking an intersubjective agreement among the interview subjects, both in connection to the phenomenon about which these 19.

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José Alonso & Carlos Garcimartín, La Corrupción: Definición y Criterios de Medición, in CORRUPCIÓN, COHESIÓN SOCIAL Y DESARROLLO, supra note 1, at 21; Carlos Mulas-Granados, Los indicadores de Corrupción en Iberoamérica, in CORRUPCIÓN, COHESIÓN SOCIAL Y DESARROLLO supra note 1, at 105; Claudio Weber Abramo, Naturalezas Muertas: Percepciones de Corrupción Versus Otros Indicadores, in LA CORRUPCIÓN EN AMÉRICA: UN CONTINENTE, MUCHOS FRENTES 173, 173 (Antonio Azuela ed., 2006). Weber, supra note 19, at 173; Transparency International, Corruption Perceptions Index, (2015), available at http://www.transparency.org/cpi2015#downloads. This website provides further information that is downloadable and with the titles Short Methodology Note, Technical Methodology Note, Frequently Asked Questions, & Full Source Description. Id. TI has reported this information annually since 1996. The sample of countries steadily increased from the days of the early reports, and by 2005 the list had grown to include more than 200 countries.

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interviewees are being asked their opinion and in terms of how those perceptions are quantified....