Transnational Corruption, Violations of Human Rights and States’ Extraterritorial Responsibility: A Case for International Action Strategies

In: African Journal of Legal Studies

Although transnational corruption in Failing States is evidence of bad governance, its reconstruction as a gross violation of human rights – especially economic and social rights – is fairly recent. The present study argues that violation of economic and social rights through transnational corruption is linked to State failure, which in turn has transnational spill-over repercussions that threaten the common interests of international peace and security. The international community has extraterritorial human rights obligations to devise appropriate responses to current destruction of the economic foundations of Failing States and stop the economic crimes perpetrated by corrupt regimes against their own people. This paper argues that domestic anti-corruption institutions are inadequate to contain this problem and this inadequacy necessarily requires coordinated international or regional action. Such international action may include managerial strategies to reengineer and manage political culture change in Failing States, and legal strategies to confront the impunity of Failing States, individual perpetrators and their associates.

Abstract

Although transnational corruption in Failing States is evidence of bad governance, its reconstruction as a gross violation of human rights – especially economic and social rights – is fairly recent. The present study argues that violation of economic and social rights through transnational corruption is linked to State failure, which in turn has transnational spill-over repercussions that threaten the common interests of international peace and security. The international community has extraterritorial human rights obligations to devise appropriate responses to current destruction of the economic foundations of Failing States and stop the economic crimes perpetrated by corrupt regimes against their own people. This paper argues that domestic anti-corruption institutions are inadequate to contain this problem and this inadequacy necessarily requires coordinated international or regional action. Such international action may include managerial strategies to reengineer and manage political culture change in Failing States, and legal strategies to confront the impunity of Failing States, individual perpetrators and their associates.

1 Introduction

Transnational corruption, involving the embezzling of public wealth by political elites in developing countries and spiriting it away to the supposed safety of foreign countries, is a catastrophe in many States. Although States have adopted legally-binding global and regional anti-corruption conventions, the institutional architecture for international action in this area is still in its infancy. For example, the United Nations Convention Against Corruption unga Res 58/4 of 31st October 2003 does not establish any full-time monitoring and implementation system, apart from a non-binding occasional Conference of State Parties (Article 63). The African Convention on Preventing and Combating Corruption adopted by the 2nd Ordinary Session of the Assembly of the African Union on 11th July 2003 establishes an Advisory Board with limited advisory and promotional roles. Such implementation mechanisms are arguably ad hoc and weak. Very little has really changed in the practical context. This study re-examines this problem as it relates to violations of economic and social rights and the legal responsibility of three types of State Actors.

Firstly, in the victim State (hereafter referred to as the Failing State), the criminal act of embezzlement constitutes a gross violation of economic and social rights. Secondly, the State in whose territory the stolen funds are invested and hidden (hereafter the Safe Haven State), bears its share of responsibility for complicity in the chain of failures in governance. Finally, and most relevant to this study, we have the rest of the international community (hereafter the Third States), which looks away in silence and indifference. This paper contributes to discourse in this area by applying interpretations of the extraterritorial legal obligations of Third States and reconstructing alternative pathways for approaching Third States’ extraterritorial obligations in global governance. This paper argues that the responsibilities and interests of Third States as they relate to transnational corruption are so important as to justify their collective duty to: first establish trans-governmental agencies to coordinate anti-corruption programmes, and then institute proceedings in various international forums in order to secure the compliance of Failing States and Safe Haven States with the norms of international law.

The paper is arranged in three parts. The first part examines the legal responsibility of Failing States and Safe Haven States in perpetuating high-level corruption. Here, the paper describes the scope of liability for violations of economic and social rights, occasioned by transnational corruption. The second part discusses the transnational interests and legal responsibility of Third States in relation to high-level corruption and bad governance in Failing States. Here, the aim is to show why Third States should prioritise their extraterritorial responsibility to protect the economic and social rights of persons in Failing States before the disaster wrought by prolonged transnational corruption engulfs the international community. Finally, the third part explores options for approaches to States’ extraterritorial obligations in relation to the problem of transnational corruption and suggests multilateral (legal) and managerial (trans-governmental) strategies. It is the central claim of this study that States are the principal actors in global governance, and that, as parties to international conventions on human rights and anti-corruption, Third States have the legal mandate and institutional capacity to control the challenges posed by the impunity of Failing States and Safe Havens.

2 Transnational Corruption and Violations of Economic and Social Rights

This section examines violations of economic and social rights in the context of transnational corruption. Corruption is a generic term used to describe a range of crimes characterised by the misuse and abuse of public office for private gain.1 In this study, the concept of transnational corruption is restricted to the narrow category of the embezzlement of public funds and assets by political elites, and the transfer of such stolen public wealth to the relative safety of foreign States. Public wealth comes into the hands of such leaders by virtue of their position as public officers entrusted with managing the affairs of the State. In illegally diverting public wealth for their private use, the State officials commit not only criminal acts, but also violate the rights of citizens, as explained later in this section. The motive for transferring the stolen wealth to foreign countries is hiding it beyond the view of domestic tax authorities, local whistle-blowers, investigators and the leadership of any future reformist government. This section examines the human rights implications of the sequence of failure of governance and breach of responsibility by the Failing State, the Safe Haven State and the Third State. If means can be found to ensure these actors fully address their neo-domestic and extraterritorial obligations, the cycle of deprivation and economic haemorrhage can be broken.

2.1 The Failing State and Violations of Economic and Social Rights

2.1.1 Identifying Rights Violations

While transnational corruption is an economic crime, it is also a gross violation of economic and social rights. When victims of such economic crime actually succumb to hunger and disease because of the embezzlement of public funds that could have been applied to provide government-supported systems for healthcare and emergency food relief, the official line is that the people died of natural causes.2 In many poorly-governed countries around the world, thousands of people are dying of corruption every day.3 The realisation of economic and social rights is achieved by the combination of two related aspects. First, the realisation of economic and social rights is achieved through the use and enjoyment of the right-holders’ own private resources, and complementing these with public resources, including those accessible through arrangements for international resources.4 For example, where public resources are used to build paved motorway networks, rural land owners and tenants can invest in agriculture since the transport infrastructure enables them to deliver farm produce to local and international markets. The synergistic application of public and private resources in this example creates multiplier effects such as job creation, a market for farm projects inputs and related services, public revenues and so on, with the rights to work and to an adequate standard of living also fitting into the picture. The second aspect is that, in order to maintain the conditions necessary for the enjoyment of economic and social rights, those persons entrusted with the functions of overall management of the national economy must determine and implement macroeconomic policies which promote the enjoyment of these rights,5 and deliver continuous improvement of living conditions in compliance with the obligations assigned to all States under international law.6 A State policy of stealing public resources is both manifestly criminal and a subversion of the basic human rights fulfilment undertakings of States under the Charter of the United Nations.

Although the un Committee on Economic, Social and Cultural Rights is yet to adopt a General Comment on this topic, a study of its approaches so far suggests that transnational corruption constitutes a violation of the rights recognised in the International Covenant on Economic, Social and Cultural Rights (hereafter, the Covenant) as a generic category for various acts of commission. While the Committee has not expressly used the terms corruption or embezzlement, it has determined that a State violates the Covenant rights by: ‘engaging in any practice or activity that denies or limits equal access to adequate social security’;7misallocation of public funds which results in the non-enjoyment of the right to work by individuals or groups, particularly the disadvantaged and marginalized’;8misallocation of public resources which results in the non-enjoyment of the right to water by individuals or groups, particularly the vulnerable or marginalized’;9 and, ‘misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized’.10

More specifically, we can identify two types of obligations with regard to transnational corruption: the obligation to respect, and the obligation to fulfil. In the first case, the obligation to respect requires the State to refrain from depriving people of their resources and rights. By embezzling public funds, the State officers engage the State in the contravention of the duty to refrain from depriving the people of their rights. It is a corrosive economic attack on the public resources that accrue to the people, and results in crippling the capacity of the State to address its obligations to fulfil. In the context of obligations to fulfil, the State is required to design and implement national and international policies that advance the enjoyment of economic and social rights for right-holders. These include the duty to facilitate the realisation of these rights through private resources, and provide systems for accessing services and supplies under various rights for those whose private resources are inadequate. As already indicated, where the State agents have already embezzled the public resources and spirited the funds or proceeds to foreign States, the State’s capacity to fulfil rights is seriously impaired. Even where, for the sake of argument, the political elites claim that, despite embezzlement, the financial investment made in the key sectors is adequate, it remains clear that the public wealth lost through corruption could have been applied towards programmes for improving the standard of living.

The embezzlement of public resources is a fundamental violation of the commitment by each State Party ‘to take steps, individually and through international assistance and co-operation, to achieve the full realisation of rights recognised in the Covenant, to the maximum of its available resources, and by all appropriate means’ because the very same means by which the Covenant would be implemented are illegally diverted to rulers’ private use.11 Sepulveda and Bacio-Terracino have demonstrated that the embezzlement of public resources has debilitating effects on the realisation, not only of economic and social rights, but all rights.12 For example, the massive theft of public funds undermines the resource capabilities of national courts to hire adequate staff and provide facilities for effective judicial protection of legally-recognised rights.13 Systematic transnational corruption by the political elites, a phenomenon which Kotele-Kale calls ‘indigenous spoliation’, is an on-going quiet crisis in Africa, Asia, Latin America and Eastern Europe and is one of the causes of the destruction of the foundations of societies in these developing countries.14 In his 32 year-rule of The Congo, the late military dictator Field Marshall Mobutu Sese Seko embezzled over $5 billion (usd), deposited in foreign banks, while Indonesia’s Suharto, The Philippines’ Ferdinand Macros and Nigeria’s Sani Abacha grabbed $35 billion (usd), $10 billion (usd) and $5 billion (usd), respectively.15

In an insightful study, the World Bank has compiled estimates of the total wealth embezzled from the developing world and the related opportunity cost of transnational corruption. The report indicates that, for every $100 million (usd) of stolen assets recovered, any of the following programme targets would be achieved: (a) provision of between 3.3 and 10 million insecticide treated bed-nets or (b) supply of first-line treatment for over 600 000 hiv-aids patients for one year or, (c) supply of 50–100 million act anti-malarial treatments or, (d) full course of immunisation for 4 million children or, (e) providing portable water connections for 250 000 households or, (f) completing 240 kilometres of two-way paved road.16

We can see from the above that acts of transnational corruption constitute violations of economic and social rights, and also impair the capacity of legal systems to protect all rights recognised in domestic law. As the interpretations by the un Committee on Economic, Social and Cultural Rights and other experts illustrate, embezzlement of public resources is at the root of denials of economic and social rights. The Failing State, in this context, is in breach of its obligations under the un Charter and the Economic Covenant. At the most basic level, the critical violation consists of grabbing public resources and converting these for private gain and failing to establish systems for securing access by the economically vulnerable sections of society to the basic decencies of life. Because the perpetrators of the acts of transnational corruption are in office, and wield the instruments of state power, the mechanisms for accountability, good governance and rule of law are often suppressed. Such a State cannot, on its own, stop the pattern of systematic violation of economic and social rights and its people are held hostage, which is the reason it is considered a Failing State. It requires external assistance. However, to fully understand the conspiracy against right-holders, it is also necessary to examine the legal implications of the behaviour of the Safe Haven State.

2.1.2 Legitimacy of the Government of a Failing State

An important question that should be addressed is that of the consequences of the gross violations of economic and social rights by the top officers of the State on the legitimacy of the government lead by corrupt officers. It is often the case that, at the time democratically-elected leaders and even military rulers assumed high political office, they were hailed as saviours because their predecessors had grossly mismanaged State affairs. However, when the State officers betray public trust, they become a criminal government and lose the moral standing necessary to continue in office. By committing economic crimes and sabotage against the people they lead, the political elites send out the message that they are no longer serving the public interest, but their own personal aggrandisement. Violations of rights may invite disapproval by the international community, and the State may be suspended from political organisation, which might result in the loss of legitimacy of the government in the perception of the international community. For example, following the execution of Ken Saro-Wiwa by the Abacha, a committee of the un General Assembly denounced the Abacha regime,17 and Nigeria was suspended from the Commonwealth.18 Gross violation of human rights provides grounds for the non-recognition of the regime by the international community. If this situation continues, it provides a basis for Third States’ responsibility to intervene to protect the people who are held hostage by the criminal regimes.19 Such perspectives are well established in cases of gross violations of civil and political rights, and should be adapted as response mechanisms to gross violations of economic and social rights.

2.2 The Responsibility and Liability of Safe Haven States

Although it is possible to maintain the case against corrupt regimes without necessarily including the transnational dimension, three considerations make it imperative to examine this external aspect. Firstly, government executives embezzling inordinately large sums of public funds need a safe place to hide the money. Transnational destinations are preferred because they are considered relatively out of reach of any future reformist government, local whistle blowers and/or national investigation agencies. Secondly, illegally obtained public wealth is channelled to certain States whose governments are considered democratic and likely to respect the rule of law and depositors’ rights to private property. Transnational corruption is a well-organised project and the actors involved in this activity retain the services of qualified professionals to ensure that each step is executed with precision.20 The choice of destination is determined upon assessment of key factors like governance structures, reputation and the capacity of systems to guarantee safe custody of the embezzled funds. For example, a Safe Haven may be chosen because of its stable democratic political and legal systems, ‘depositor-friendly’ monetary and fiscal policies, and disciplined financial services sector with reputed experience and efficiency in asset management.21 To the Safe Haven government, inflows of foreign wealth are important because they enable its financial services industry to make profit,22 create new jobs and contribute to economic growth.23 However, by putting its territory and financial services industry at the disposal of transnational corruption, and creating corporate governance systems conducive to economic crime, the Safe Haven State is lending support to the violations of economic and social rights of the deprived persons in the Failing State. Moreover, the Safe Haven State is in breach of its extraterritorial obligations to protect the economic and social rights of the victims in the Failing State. This section argues three premises for engaging the legal responsibility of the Safe Haven State, founded on: obligations under global human rights covenants; the provisions of international anti-corruption conventions; and general principles of international law.

2.2.1 Breach of Extraterritorial Obligations to Protect

The un Charter, the International Covenant on Economic, Social and Cultural Rights (1966) and the Convention on the Rights of the Child (1989) each contain provisions that assign States Parties a measure of extraterritorial responsibility to protect and support the universal realisation of human rights to the extent that they have the capacity and competence to do so.24 In the context of the extraterritorial responsibility to protect, the Safe Haven State has a duty to restrain third parties from depriving right-holders in the Failing States. This obligation properly applies in the context of preventing transnational corruption, tracing stolen money and assisting the victims to recover such resources because the Safe Haven State is in a special relationship with the main actors; it has jurisdiction over actors and assets (i.e., both foreign public officials coming to transact business and the domestic financial services industry that handles stolen assets within its territory).25 The extraterritorial obligation to protect in this special relationship is required of the Safe Haven as part of the wider responsibility to maintain ‘a social and international order that is conducive for the realisation of universal human rights’.26, 27 Responsibility arises because corrupt political elites are destroying the economic foundations of the Failing State by grabbing its public resources and the Safe Haven State is in a unique de facto position to prevent the economic sabotage of the Failing State. Since the Safe Haven State has the machinery of its domestic law to restrain economic sabotage committed against the victims in the Failing State, the de facto jurisdiction and competence to act give rise to the legal obligation to protect, and failure to do so constitutes culpable non-cooperation and a breach of international law.28

2.2.2 Breach of Obligations under International Anti-Corruption Law

The international community has adopted a series of legal standards on combating corruption through adopting regional and global conventions against corruption.29 For example, the un Convention Against Corruption (2004) contains specific obligations of States Parties to cooperate with the international community in the efforts to prevent transnational corruption. These include standards for national governance that require States Parties to implement policies for preventing corruption,30 measures to prevent money-laundering31 including overcoming bank-secrecy as well as facilitating transnational asset-tracing and recovery.32 These new international treaty-measures are aimed at countering transnational corruption and dismantling the financial safe havens that have for many years fostered it.

2.2.3 Breach of Basic Duties of State Jurisdiction

Customary international law recognises the duty of States to ensure effective government and administration within their respective territorial jurisdictions. For example, the duty of States to ensure proper administration was recognised by States in the Berlin Final Act of 25 February 1885 to include the responsibility of colonial powers to maintain effective authority and governance in their respective occupied overseas territories in Africa.33 It is therefore a duty of all States to ensure good domestic management and housekeeping, such that their territory is properly governed and is not used as a safe haven for looted foreign funds and other resources or any other forms of transnational crime. A useful analogy can be drawn to the concept of State responsibility in international law. In the Corfu Channel Case, the icj held that where State authorities knew of the existence of mines laid in their territorial waters, the State was responsible for the harmful consequences resulting from the mines, such as the loss of lives and destruction of foreign vessels.34 In the Corfu Channel case, the mines were laid by third parties, with the knowledge and/or acquiescence of Albania because the Albanian authorities maintained continued surveillance of their territorial waters. Secondly, although the Albanian State authorities knew of the existence of mines in the country’s territorial waters, they failed to act within their powers and competence to prevent the disaster by, for example, failing to issue danger alerts to the British warships at least two hours before the latter sailed onto the mines. As the Court observed, these were grave omissions for which the State was liable.

It seems from a reconstruction of the principles developed in this case that a State bears international responsibility for illegal or wrongful acts committed on its territory where the State’s authorities had knowledge of such acts, even if they were committed by third parties.35 In this context, State liability in international law can be established if the following five elements exist: (1) wrongful or illegal acts are committed on a State’s territory; (2) State officials have knowledge of such wrongful or illegal acts; (3) the State is in a position to restrain and/or stop these acts, but fails to do so (4) the State is in a position to inform interested third parties of the wrongful acts on its territory and enable them to avert and/or prevent the harmful consequences of such wrongful acts, but fails to do so; (5) third parties suffer harm, loss or damage. In such circumstances, a State incurs responsibility under international law extending to the liability to pay compensation for the damage caused by its gross omissions. Applying these factors to our field of study, we find that wrongful and illegal acts have been and continue to be committed in the territory of the Safe Haven State, since illegally acquired wealth is transferred for safe keeping into its territory by foreign public officials. This is part of a web of corrupt transactions that began in the source countries but is completed in the Safe Haven State.

Secondly, Safe Haven States have knowledge of these illegal transactions because they have institutions for gathering financial intelligence, including regulatory authorities which register, license and supervise financial services providers within the State. Thirdly, Third States are in a position to restrain and/or stop these illegal activities because each State enjoys and asserts sovereign jurisdiction over persons and property within its territory. Fourthly, Safe Haven States can use their domestic law and institute recovery procedures, such as freezing and restoring hidden stolen assets within their territory. Fifthly, the pattern of omissions by the Safe Haven State is partly to blame for the gross rights violations among the victim communities in the source countries.

3 Restating the Interests and Extraterritorial Responsibility of Third States

Investigations into the scope of the responsibility of Third States in connection with grand corruption in Failing States often encounter persistent questions as to why Third States should be concerned about the bad governance and other internal affairs of another State. Yet, in an increasingly globalised and interdependent world, it is not surprising to find that bad governance and failed statehood present worrying implications for other States in that region, as well as the wider international community. The aim of this section is to highlight the interests and concerns of all Third States regarding bad governance and grand corruption in Failing States.

3.1 Burdens of Constitutional Breakdown and Civil War

A State whose political leadership betrays public trust and practises entrenched systemic grand corruption is technically in constitutional crisis. Since the political elite are serving their own private gain at the expense of the people, such a State lacks a legitimate government and is held hostage by corrupt leaders. As the pattern of widespread violations of economic and social rights through exclusion from access to the basic necessities of a meaningful life continues, it creates deep grievances that are underlying causes of conflict and collective violence.36 States with a history of grand corruption have experienced constitutional breakdown and civil war.37 For example, in Congo, Field Marshall Mobutu Sese Seko’s thirty-two year corrupt dictatorship was brought to an end by waves of civil war.38 Constitutional breakdown, conflict and civil war trigger mass displacement of civilians and precipitate humanitarian crises in the affected region. A Third State in the neighbourhood must contend with the burden providing humanitarian assistance to displaced persons in refugee camps on its territory, and deploy additional border security staff to prevent the influx of illegal immigrants, drugs and firearms.

3.2 Costs and Risks of Collapsed States

When a Failing State finally collapses, it becomes a burden on the international community to try to re-establish law and order. This can be very costly. In a study of the stages of State failure, Rotberg argues that the road to State collapse involves, at some point, grand corruption by the political elites and subversion of the public interest. He demonstrates that, in these initial stages, external assistance and interventions can be made to prevent a Failing State from sliding into total collapse, which would avert the need for and cost of international peacekeeping and relief missions for such States.39 These costs and burdens of missions to rebuild Failed States fall to the international community, comprising of Third States, in general. For example, in 2002, the us indicated that it would assist in the international efforts towards reconstruction, peace and economic development in Somalia.40

However, most of these burdens and costs of rebuilding the State could have been avoided if the international community had acted earlier to prevent Major General Mohammed Siad Barre from driving Somalia to total collapse. Similarly, the uk intends to increase aid to the Democratic Republic of Congo in the years 2011–2015.41 At the very least, the oecd donor countries could have taken action in the 1970s to institute measures to stop Field Marshall Joseph Mobutu Sese Seko from entrenching high-level corruption and bringing a mineral resource-rich country to its knees. Additionally, collapsed States pose many security risks for the international community as their territories provide sanctuary for terrorist groups to recruit and train forces, and plan and carry out attacks with no risk of intervention by law enforcement. Following Somalia’s collapse in 1991, Ethiopia, Kenya, Uganda and Tanzania have suffered numerous attacks by Somalia-based terrorist groups.42

3.3 Concerns of Transnational Health Threats

The embezzlement of funds allocated for public health programmes such as immunisation, vector control and treatment of serious illnesses presents grave concerns to Third States. Outbreaks of infectious viral diseases such as severe acute respiratory syndrome (sars) have sent waves of panic across all countries with attention turning to enhancing the capacities of the epicentre States to contain epidemics.43 Fidler argues that, since such disease outbreaks pose transnational and global health threats, appropriate response mechanisms should be approached as shared responsibilities of all States rather than the Westphalian model of national, State-centric responsibility.44

Another example is the concerns of States in the eastern Africa region regarding reports of embezzlement of funds for malaria control programmes and theft of anti-malarial drugs from government healthcare centres in Uganda.45 It implies that many Ugandans seeking care in government health facilities are not accessing treatment for malaria. However, this is not just a domestic problem because mosquitoes can migrate to locations over forty-eight kilometres away.46 Therefore, anti-malaria programmes in the neighbouring States will be frustrated unless the corruption afflicting Uganda’s healthcare sector is addressed. There is reason to worry because new swarms of disease-carrying mosquitoes will defy any border controls and continue to be a menace in the region unless measures are taken to restore integrity in the national response systems. It also implies that all Third States would have to formulate travel advisories on the public health concerns, and prepare to provide healthcare for residents returning from recent visits to that country.

3.4 Contagious Retrogressive Benchmarking

Entrenched corrupt practices in one State do not only contaminate the society in that State; such behaviour can become contagious. These practices conspire to assert retrogressive beliefs which can creep into the mind-set of societies in neighbouring States, with the result that people give up the fight for good governance and begin tolerating and accepting corrupt practices as a way of life in that region. Empirical studies demonstrate that once corruption has taken root in one State, it becomes the defining benchmark, not only for that State’s political culture, but also for other States in the region.47 This suggests that Third States should be wary of the transnational contamination caused by a political culture of grand corruption taking root in neighbouring Failing States and devise ways to address it.

3.5 Solidarity and Altruistic Concern about Preventable Human Suffering

Images of extreme deprivation, preventable suffering and death, and other scars of gross violations of economic and social rights can be distressing, especially when these events are happening in the neighbourhood. Scores of victims die every month while attempting to cross the Mediterranean Sea into Europe,48 trying to escape harsh economic and social conditions in an otherwise very rich African continent. Out of solidarity with the suffering and altruistic concern, it becomes a legitimate interest of persons in Third States to seek to ameliorate the needless suffering of human beings in other States. A solidarity perspective, asks the question: if I were in their situation, and those things were happening to me, how would I expect others to respond to my affliction?

3.6 Extraterritorial Responsibility of Third States

As part of the institutional design for the realisation of universal human rights, international human rights law assigns to all States Parties to the un Charter a measure of both domestic and extraterritorial responsibility.49 Where the Failing State has failed to respect, protect or fulfil its own people’s economic and social rights, but has morphed into a predator against its own population, it activates the duty of Third States to exercise their extraterritorial responsibility to break the vicious conspiracy against victims in the Failing State. The Third States become a sort of agent of necessity, and are in a diagonal relationship with the deprived right-holders in the Failing State. Victims can look to the international community to explore how the diagonal obligations of all Third States can be applied to develop responses to gross violations of economic and social rights in the Failing State. For example, Third States’ extraterritorial obligations to protect apply where the domestic State is failing and unable or unwilling to restrain violations of rights. In this context, the Third States have extraterritorial obligations to institute various strategies, both individually and through international cooperation, to restrain the perpetrators in Failing States and their collaborators in Safe Haven States from carrying on a scheme of depriving victims in the Failing States.

There is clearly an imperative for Third States to take action to address this situation. The present study is centred on the legal obligations of Third States, because international human rights conventions are addressed to States. As the leading actors on the global scene and parties to international human rights conventions, States have the capacity and mandate to establish arrangements and systems for universal realisation of rights. The scheme of diagonal obligations of Third States and how they can be addressed through an intergovernmental agency is illustrated in Figure 1.

4 Managerial and Legal Strategies for Third States
4.1 An Alternative to the Paralysis of Domestic Anti-Corruption Agencies

Among the fundamental problems at the root of systemic corruption in Failing States are the ineffectiveness of national institutions for controlling corruption and the absence of political will to cultivate a culture of integrity, good governance and transparency in the national legal systems. Chief Officers of national anti-corruption agencies have been dismissed after commencing investigations of sensitive cases in which the top political leadership had interest (such as in Peru and Malawi)50 or forced to leave office in unclear circumstances (such as in Nigeria51 and Kenya).52 In South Africa’s National Prosecutions’ anti-corruption investigations police unit, the Directorate of Special Operations (the Scorpions) was disbanded in June 2008 following a resolution of the ruling African National Congress national conference in December 2007 on claims that its investigations were selective and politically-motivated.53 Besides direct political interference, restricted legal mandate and inadequate funding, anti-corruption agencies in developing countries are also adversely affected by the inefficiencies and emasculation of complementary institutions such as the legislature, judiciary, media and civil society and their subjection to executive control.54

figure 1
figure 1The extraterritorial human rights responsibilities of Third States.

Citation: African Journal of Legal Studies 8, 1-2 (2015) ; 10.1163/17087384-12342060

Another worrying concern is that, in some countries, corruption-related reporting, whistle-blowing and investigations are hampered by a lack of witness protection systems, entrenched ethnic loyalties, political polarisation and other biases that compromise the impartiality of national anti-corruption agencies.55 In this kind of political and social environment, national anti-corruption agencies, despite any appearances of formal independence such as entrenchment in the constitution, are very vulnerable and doomed to fail. Those that are too timorous to act risk dismissal for poor performance, while those that try to seriously pursue their mandate often become targets of official pressure and disbandment whenever they investigate ‘hot files’ of corrupt practices of current political elites.

This description paints a bleak picture of the crisis in government and quality of governance in developing countries as, arguably, paralysed anti-corruption agencies try to contend against high-level corruption. It would be rather naive to expect ‘morally challenged’ political elites to implement a policy or legal provisions for establishing a robust national anti-corruption agency that would stand guard against their tendencies towards high-level corruption. Although most studies on national anti-corruption machinery correctly identify systemic failures and their inherent paralysis, they do not offer new options apart from trying to strengthen the capacity and independence of national agencies. Yet, as this status quo persists, economies in the developing world continue to be haemorrhaged by high-level corruption. Clearly there is urgent need for a drastic change of strategy in this area.

Four principles should be considered when developing an alternative strategy. Firstly, since there are highly charged political interests in the area of integrity, ethics and good governance, the anti-corruption and good-governance quality assurance functions should be rescued from the inevitable capture of the State and entrusted to an internationally supported Regional Authority for Anticorruption, Integrity and Good Governance (raaigg hereafter). If States are really committed to creating a truly independent anti-corruption body as prescribed in the international anti-corruption conventions, they should ratify agreements for shared sovereignty over this aspect of government in partnership with participating States in the region and the international community (read: friendly Third States).56 By removing this docket from the desks of local political chiefs, the mission of anti-corruption would be freed from the polarisation, interference and paralysis of domestic political forces, thus enhancing its prospects for independence, autonomy and success.

Secondly, the technical and professional staff at the proposed agency should be selected from the most highly internationally distinguished experts in the various disciplines required for each portfolio. Whereas Partner States may vote on the lists of nominees, the experts should serve in their individual capacity and need not be nationals of the Partner States. The engagement of a large pool of expertise strengthens the functional competencies of agency, and is one key factor that motivates States to cooperate in inter-governmental anti-corruption organisations.57

Thirdly, the raaigg should be allocated adequate financial resources to enable it to discharge its mandate. Such resources should consist of pooled contributions of participating States, donor funding and an agreed percentage of funds obtained from the Authority’s stolen asset tracking and recovery programme. It should be noted that friendly Third States have been willing to provide development assistance towards improving rule of law and capacity-building and would be willing to support a regional mechanism for implementing a region-wide programme for integrity, good governance and anti-corruption.58

Fourthly, the design of the raaigg should be structured from the outset to provide a holistic platform for preventative, promotional and enforcement mandates, including managing transformation of mind-sets, attitudes and beliefs, concerning people’s rights and obligations in relation to the protection of human rights, including the right to a corruption-free government and respect for constitutional principles and values. This approach is a managerial strategy, based on the premise that corrupt practices are part of a pattern of morally reprehensible conduct which can be addressed and corrected through targeted programmes for re-imagining and re-engineering behavioural change. It is supported by theories of behavioural change, which suggest that individuals and societies can unlearn bad beliefs and relearn norm-consistent mind-sets through promotional strategies including human rights education, ethics and anti-corruption. The branding and evolution of this agency should clearly emphasise and reinforce these attributes.

The raaigg would embody the shared sovereignty of Partner States in this aspect of governance and would have two functional departments: the technical department and the judicial department. The technical department may comprise programmes for civic education, constitutional values, media, leadership training and accreditation.

One of the key functions of this department would be to support capacity building for good governance by providing technical training for aspiring political leaders, and creating processes for accreditation of candidates seeking both elective and appointive public offices. Electorates in the region would choose between candidates trained and accredited by the raaigg and those who do not have such credentials. Such techniques enhance chances of nurturing a generation of leadership that can midwife the delivery of high quality governance, shepherding societies away from corruption.

A judicial department (comprising of the trial and appellate chambers) would provide the forum for trial and punishment of individuals charged with high level corruption. The functions of this department would include investigation, prosecution, witness protection, asset tracking and recovery, whistle blower facilitation.

4.2 Enforcing the Managerial Strategy

In order to promote participation in the raaigg regime (which may be cascaded to other regions of the globe), revised regulations of the imf and World Bank and other international financial institutions should introduce a condition that future partnerships and cooperation agreement agreements in the spheres of economic cooperation (such as international loans, trade and investment) shall not be approved until the target State submits a report of compliance with minimum standards of integrity, anti-corruption and good governance. Compliance with procedures of the raigg as a partner State would be a minimum requirement under such regulations.

Whereas the un Convention against Corruption (2002) incorporates the norms and principles of integrity, good governance and anti-corruption in a legally-binding treaty text, neither the treaty nor subsequent practices of States have managed to establish international enforcement mechanisms. Arrangements based on regional agreements such the proposed raaigg would contribute to filling the gap in the current international anti-corruption regimes. The aspects of the managerial and legal strategies are illustrated in Figure 2.

The foregoing scheme advocates the creation of a multi-actor global movement for promoting human rights education, civic education and re-mobilisation of the global community in a programme for re-engineering behavioural change and social transformation towards norm-consistent conduct. It is based on the realisation that enforcement of anti-corruption law will be effective only if accompanied by programmes for transforming some of the deeply held beliefs and practices. More significantly, the global anti-corruption movement will provide a social context for ‘mining’ information on corrupt practices that is crucial for sustaining actions for law enforcement. The next section describes some of the legal tools and strategies that are available to Third States to confront transnational grand corruption. In addition to the foregoing managerial devices, Third States have opportunities to attempt bilateral diplomatic action to try to persuade the leadership of a Failing State to rethink their deleterious criminal activities. While this option is always available to States, it can be reinforced by other mechanisms that involve independent interpretation and application of relevant international human rights norms as well as emerging principles of international anti-corruption law.

4.3 Legal Strategies

As illustrated in Figure 2, the international community can launch a four-fold legal strategy in respo nse to the challenges of systemic transnational corruption and violations of economic and social rights in the Failing States. Firstly, States Parties to the Rome Statute may initiate criminal prosecutions of individual political elites in Failing States and Safe Haven States in the International Criminal Court (icc) for perpetrating gross economic crimes against humanity. Secondly, a series of inter-State and group complaints can be lodged in international human rights bodies, protesting against and contesting the corrupt practices and policies of Target States. Thirdly, a group of Third States can commence litigation in the International Court of Justice (icj) seeking a judicial determination of the consequences of violations of international law by Failing States and Safe Haven States. Finally, States may institute processes for clarifying the content of international legal norms on quality of governance, corruption and human rights. These issues are discussed further below.

figure 2
figure 2Managerial and legal options for Third States.

Citation: African Journal of Legal Studies 8, 1-2 (2015) ; 10.1163/17087384-12342060

4.3.1 Individual Criminal Responsibility under International Criminal Law

In many jurisdictions, the diversion of public funds for private use by State officials is both a criminal offence and an economic crime. However, this is an understatement and a broader conceptualisation of this problem is required. In some of the notorious cases, the scale of high-level embezzlement of public funds by State officials, magnitude of damage wrought to the economic foundations of the State and the number of victims of the resulting violations of economic and social rights are such that high-level corruption may be reconstructed as a gross economic crime against humanity. These are manifestations of ‘undeclared’ policies of bad governance and systemic attacks on the economic foundations of the State, which, when prolonged, push the Failing State towards total collapse.

In view of this, prosecutions for gross economic crimes against humanity may be brought against individuals for gross economic crimes against humanity in the International Criminal Court. Whereas the Statute of the International Criminal Court does not expressly indicate economic crimes as one of the offences over which the Court has jurisdiction, it defines crimes against humanity in such a way that leaves the door open for including economic crimes against humanity. Article 7(1)(k) defines a crime against humanity as including ‘other inhumane acts. . . . intentionally causing great suffering, or serious injury to body or to mental or physical health’ when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack. Article 7(2)(a) defines an attack directed against a civilian population as a ‘course of conduct involving the multiple commission of the said acts . . . pursuant to or in furtherance of a State or organizational policy to commit such an attack.’

Two concepts stand out: ‘inhuman acts causing great suffering’ and ‘widespread or systematic attack against a civilian population.’ In proving inhuman acts causing great suffering, a connection can be drawn between the looting of public funds and the erosion of the State’s capacity to fulfil economic and social rights. For example, embezzlement of public resources undermines the capacity of the State to assist economically-marginalised sections of society to cope with famine and other emergencies. In this context, hunger-related deaths are traced to the economic crimes of the State officers which destroyed the capacity of the State to provide programmes for enabling severely deprived individuals to cope with the short-term food supply shortages.59 It should be clarified that there is no requirement that such an attack should take the form of armed conflict; the provisions of Article 7(2)(a) indicate the practical necessity of the Court to respond to large-scale atrocities committed by governments and political leadership against their own populations in peacetime.60 Regarding attacks, The Prosecutor v. Jean-Paul Akayesu (Trial Judgment) affirmed the principle that attacks may include unlawful acts or omissions, and need not necessarily be violent.61 It is sufficient to prove that the acts causing great suffering were committed as part of a preconceived plan or policy, and need not be an official policy of the State.62 By grabbing public funds, the corrupt political elites commit a systematic attack on the livelihood of the majority of economically vulnerable populations. It is sufficient to prove that the individuals targeted by the prosecution knew or ought to have known that their diversion of public resources would result in widespread suffering and death of many victims of the crime.

Moreover, the web of international criminal liability for gross economic crimes against humanity should not stop at the political elites in the Failing States. Instead, prosecutions in the icc should also extend to indicting the chief operating officers of the financial service providers in the Safe Haven States as well as political leaders of the Safe Haven States, seeking appropriate punishment for their respective roles in facilitating, permitting and failing to restrain or stop the commission of these schemes of economic crime in their territory. These propositions are based on the imperative to apply the provisions of international criminal law to respond to contemporary grievous economic crimes and impunity that shock the conscience of mankind, and are supported by persuasive jurisprudence of the ictr. Additionally, there is a growing tide of academic opinion affirming the principle that acts of high-level corruption constitute economic crimes against humanity, for which the icc has jurisdiction.63 However, whereas Ocheje suggests an amendment of the icc Statute to include ‘economic crimes against humanity’, our approach here argues that the icc already has jurisdiction and can, in appropriate cases, admit and hear prosecutions for economic crimes against humanity.

4.3.2 Clarifying the Normative Content of Obligations Governance, Corruption and Human Rights

One of the ways to improve the awareness of obligations of State Actors regarding quality of governance, corruption and human rights is to apply processes for elaborating the legal norms adopted in international conventions on these subjects. Two options can be used simultaneously. Firstly, the un Human Rights Committee (hrc) and the un Committee on Economic, Social and Cultural Rights (icescr) could issue a joint General Comment clarifying the legal obligations of States, officers of the State and right-holders in relation the quality of governance, anti-corruption and the realisation of internationally recognised human rights.

A second option would be to create a thematic mandate for a un Special Rapporteur on Corruption and Human Rights, which would include the drafting of a declaration on ‘the Right to Corruption-Free Government.’ Thus, a ‘General Comment on Corruption and Human Rights’ and a ‘un Declaration on the Right to a Corruption-free Government’ would be applied to explain the best practices in this area, and provide guidelines on the minimum standards of integrity in modern governance. By clarifying and explaining the minimum standards of integrity, anti-corruption and quality of governance required of State Actors, an interpretative General Comment and a declaration could contribute to educating State actors and exerting normative pressure on States, so that some of them might alter their behaviour because of their desire to be counted among and held in high esteem by the right-thinking global community.64

4.3.3 un Human Rights Complaints Mechanisms

Two kinds of proceedings can be brought to complain about, protest and challenge practices of States to the human rights bodies established by the un Charter (charter-based mechanisms) and un human rights treaties (treaty-based mechanisms). Articles 1(3), 55 and 56 confirm the un’s mandate to protect and promote universal human rights and, following the un Economic and Social Council’s adoption Resolution 1503 (xlviii) of 27 May 1970, the un Commission on Human Rights has the competence to receive and act on communications and complaints regarding gross and systemic violations of human rights by both members and non-members of the organisation. The 1503 procedure has been retained, but further revised by the un Human Rights Council resolution 5/1 of 18 June 2007. Complaints to the Human Rights Council may be considered and resolved in a three-stage process that involves review of admissibility by a sub-committee of the Human Rights Advisory (Independent Experts) Committee, and a Working Group on Situations that examines admissible communications and makes findings and recommendations in its report to the Council. In the Third stage, the report of the Working Group is discussed by a plenary session of the Human Rights Council which determines appropriate action. In the case of treaty-based mechanisms, several human rights conventions and subsequent protocols adopted by States Parties provide for communications procedures whereby individuals, groups and other States Parties may lodge communications alleging that a certain State Party is contravening the rights set forth in the treaty.

4.3.4 International Litigation in the International Court of Justice

There has been progressive norm-legalisation activity in the area of anti-corruption at regional and global levels as witnessed by the adoption of various regional and global conventions against corruption. However, these treaties are capable of competing interpretations depending on which side of the debate one takes. One of the strategies for achieving a coherent jurisprudence in this area is for Third States to bring an inter-State complaint to the International Court of Justice against Failing States and Safe Haven States, seeking a definitive adjudication of the legal consequences of the conduct of these two categories of State Actors. If these State Actors are found to have breached international law, the icj can also determine what further action the international community (i.e., Third States) should take. With evidence gathered from the managerial mechanisms described in the preceding section, it is possible to commence proceedings against at least two States implicated in transnational corruption activities. Another strategy is to request that the icj determine the legal consequences of the activities and behaviour of Failing States and Safe Haven States through an Advisory Opinion. This course of action is permitted by the Statute of the icj.65 Such requests can be made by a resolution of the un General Assembly, or the Security Council or other organ or agency of the un.66 The Advisory Opinion of the icj can provide clear direction on the question of the legal liability of State Actors in transnational grand corruption, and the court’s interpretation of the numerous international conventions and treaties will provide an authoritative direction by a judicial body that is at the centre of international law.67

As Rotberg suggests, if the international community had confronted Somalia’s Siad Barre, The Democratic Republic of Congo’s Mobutu, Uganda’s Idi Amin or Nigeria’s Sani Abacha, it might have helped to prevent further destruction of their States.68 The quality of engagement with Failing States is enhanced by applying the foregoing legal apparatus to convince Failing States and Safe Haven States that individuals perpetrating high-level corruption are committing gross violations of economic rights and contravening international criminal law. It should be clear that massive economic haemorrhage orchestrated by State elites in a Failing State constitutes a gross economic crime against humanity, which threatens international peace and security. The availability of international legal processes and the adverse publicity they generate promises to deliver targeted pressure on Failing State actors. When applied strategically, these measures have the potential to exert pressure on corrupt regimes to make concessions towards norm-consistent conduct or precipitate further isolation and enforcement action by the international community.

5 Conclusion

The infamous partnership between corrupt political elites in Failing States and financial services providers in Safe Haven States constitutes a formidable axis of impunity. It is a conspiracy that perpetuates economic crimes against victims in the Failing State and threatens international peace and security. Several studies have correctly identified the paralysis and ineffectiveness of national mechanisms for controlling corruption, and the responsibility of Safe Haven States to cooperate in asset tracking and recovery. However, a theoretical and doctrinal investigation of the extraterritorial interests and obligations of Third States (which constitute virtually the entire international community) has only just begun.

This paper demonstrates that the criminal activities of high-level corruption in Failing States can only be effectively controlled through international cooperation in implementing managerial and legal strategies. However, in persuading and recruiting States to undertake transnational and extraterritorial action, it is important to clarify the national interests of Third States, the scope of States’ legal responsibility and the range of available options for confronting high-level corruption. Those States genuinely committed to reforming the quality of governance should institute programmes to create trans-governmental authorities for ethics, governance and anti-corruption through administrative and legislative measures in partnership with like-minded governments. Meanwhile, processes and procedures for confronting corrupt regimes in international courts and other forums should also be launched by Third States, as well as other competent inter-governmental and non-governmental bodies. As this paper illustrates, there are, clearly, many managerial and legal tools available to States and the international community to advance good governance. What is required now is for Third States to rapidly deploy these strategies and respond to cases of high-level corruption in Failing States. Such steps would promote the mainstreaming of States’ international and extraterritorial human rights responsibility and contribute to stopping the gross violations of economic and social rights that result from high-level corruption which domestic institutions have been unable or unwilling to control.

1 J. Albanese, Transnational crime and the 21st Century: Criminal enterprise, corruption and opportunity (Oxford: Oxford University Press, 2011), at p. 126.

2 Some of the massive embezzlement of resources occurs in the context of mismanagement of funds actually allocated for social sectors and related public procurement projects. Therefore there is a direct link between the embezzlement and the deprivation of victims. Moreover, high level corruption depletes the pool of resources that would have been available for allocation to social welfare sectors such as health, water, education, food security, etc.

3 S. Holmberg and B. Rothstein, ‘Dying of Corruption’, 6 Health Economics, Policy and Law (2011) 529–547, at 530.

4 R. Robertson, ‘Measuring State Compliance with the Obligation to Devote the Maximum Available Resources to Realizing Economic, Social, and Cultural Rights’, 16 Human Rights Quarterly (1994) 693–714, at 699.

5 M. Dowell-Jones, Contexualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit (London, Martinus Nijhoff, 2004), at p. 189.

6 Charter of the United Nations 1945, Article 55; and International Covenant on Economic, Social and Cultural Rights adopted by ungar 2200A (xxi) of 16th December 1966, Article 11(1).

7 uncescr, (un Committee on Economic, Social and Cultural Rights), General Comment No. 19: The Right to Social Security 4th February 2008; E/C.12/gc/19, para. 44 (my emphasis).

8 uncescr, (un Committee on Economic, Social and Cultural Rights) General Comment No. 18: Right to Work 6th February 2006; E/C.12/gc/18 para. 36 (my emphasis).

9 uncescr, (un Committee on Economic, Social and Cultural Rights) (2003) General Comment No. 15: Right to Water 20th January 2003; E/C.12/2002/11, para. 44(c) (my emphasis).

10 uncescr (un Committee on Economic, Social and Cultural Rights), General Comment No. 14: Right to Health 11th August 2000 E/C.12/2000/4, para. 52(c) (my emphasis).

11 Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (1966).

12 M. Sepulveda and J. Bacio-Terracino, in M. Boersma and H. Nelen (eds), Corruption and Human Rights: Interdisciplinary Perspectives (Antwerp: Intersentia, 2010), pp. 25–50, at p. 47.

13 Ibid., at 48.

14 N. Kotele-Kale, International Law of Responsibility for Economic Crimes (Ashgate: Burlington, 2006), at 12.

15 Transparency International, Global Corruption Report 2004 Special Focus: Political Corruption (London: Pluto Press, 2004); Charlotte Denny, ‘Suharto, Marcos and Mobutu head corruption table with $50billion scams’ The Guardian, London, 26 March 2004.

16 World Bank, Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities and Action Plan (Washington, dc: World Bank, 2007), at p. 12.

17 un General Assembly Condemns Nigerian Executions of activists, Boston Globe (Boston, ma, 15 December 1995).

18 ‘Nigeria Suspended’ The New Straits Times (Auckland, 12 November 1995).

19 M. Kahler, ‘Legitimacy, humanitarian intervention, and international institutions’, 10 Politics, Philosophy and Economics (2011) 20–45, at 30.

20 R. Mandel, Dark Logic: Transnational Criminal Tactics and Global Security (Stanford, ca: Stanford University Press, 2011), at p. 41.

21 See W. Blackmore, Swiss Banking in an International Context (London: Macmillan 1989).

22 R. Pratt, ‘Economic crime: the financial system as a victim’, 12 Journal of Financial Crime (2004) 66–68, at 67.

23 D. Chaikin, ‘Policy and Fiscal Effects of Swiss Bank Secrecy’, 15 Revenue Law Journal (2005) 90–111, at 92.

24 un Charter 1945, Articles 55 and 56; International Covenant on Economic, Social and Cultural Rights 1966, Article 2(1), un Convention on the Rights of the Child 1945, Article 4.

25 M. Hakimi, ‘State bystander responsibility’, 21 European Journal of International Law (2010) 341–385, at 360.

26 Universal Declaration of Human Rights 1948, Article 28.

27 It may be said that the Safe Haven State stands to gain from the possibility of job creation and economic growth financed by inflows of illegal cash. Yet, such a policy would imply that Safe Haven States may sponsor acts of economic sabotage of other countries and become part of the conspiracy to loot resources of Failing States. However, such an argument is unconvincing because, in an age of universal human rights, no self-respecting nation can plan to sustain its economy on the proceeds of transnational economic crime and deprivation of rights holders in other nations.

28 M. Shaw, International Law (Cambridge: Cambridge University Press, 2004), at p. 701.

29 R. Leventhal, ‘International Legal Standards on Corruption’, 102 Proceedings of the Annual Meeting of the American Society of International Law (2008) 203–204, at 204.

30 un Convention Against Corruption 2004, Article 5.

31 Ibid., Article 14.

32 Ibid., Articles 51–58.

33 General Act of the Berlin Conference on West Africa, 26 February 1885. Available online at http://africanhistory.about.com/od/eracolonialism/l/bl-BerlinAct1885.htm (last accessed 28 November 2012).

34 icj Reports, 1949, The Corfu Channel Case (Merits), at p. 23.

35 M. Shaw, International Law (Cambridge: Cambridge University Press, 2004), at p. 701.

36 See O. Thoms and J. Ron, ‘Do human rights violations cause internal conflict?’, 29 Human Rights Quarterly (2007) 674–705, at 693.

37 See R. Rotberg, ‘Failed states in a world of terror’, 81 International Affairs (2002) 127–140.

38 F. Reyntjens, ‘The second Congo War: more than a remake’, 98 African Affairs (1999) 241–250, at 250.

39 R. Rotberg, ‘Failed states in a world of terror’, 81 International Affairs (2002) 127–140, at 135.

40 T. Dagne, ‘Africa and the War on Terrorism: the case of Somalia’, 13 Mediterranean Quarterly (2002) 62–73, at 72.

41 Department for International Development (DfID), uk, Democratic Republic of Congo: Operational Plan 2011–2015, available online at http://www.dfid.gov.uk/Documents/publications1/op/drc-2011.pdf.

42 See D. Shinn, ‘Terrorism in East Africa and the Horn: an overview’, 23 Journal of Conflict Studies (2003) 79–91.

43 See ‘Outbreak of virus in sars family has who on alert: Coronavirus confirmed in Saudi Arabia’, Canadan Press (23 September 2012), available online at http://www.cbc.ca/news/health/story/2012/09/23/who-coronavirus-sars-family-outbreak.html.

44 See D. Fidler, sars, Governance, and the Globalization of Disease (New York, ny: Palgrave Macmillan, 2004).

45 New Vision, Kampala ‘Malaria Control Experts Held’, 10 March 2010, available online at http://www.newvision.co.ug/D/8/12/712525.

46 J. Smith, ‘Concerning mosquito migrations’, 18 Science, New Series (1903) 761–764, at 763.

47 R. Goel and M. Nelson, ‘Are corrupt acts contagious? Evidence from the United States’, 29 Journal of Policy Modelling (2007) 839–850, at 845; S. Becker, P. Egger and T. Seidel, ‘Common political culture: Evidence on regional corruption contagion’, 25 European Journal of Political Economy (2009) 300–310, at 309.

48 ‘54 illegal immigrants die at the Mediterranean sea while trying to reach Italy’, Humanitarian Voice (11 July 2012), available online at http://humanityvoice.net/news_details.php?id=8264.

49 M. Wabwile, ‘Universal Human Rights and States’ International Responsibility,’ in M. Gibney and A. Mihir (eds), sage Handbook of Human Rights (London: sage, forthcoming), Chapter 57.

50 ‘Anti-Corruption Csar Alex Nampota fired’, Malawi Today (2 August 2012), available online at http://www.malawitoday.com/news/126065-anti-corruption-czar-alex-nampota-fired.

51 Human Rights Watch, Nigeria: Firing of Anti-Corruption Czar Won’t Fix Agency (23 November 2011), available online at http://www.hrw.org/news/2011/11/23/nigeria-firing-anti-corruption-czar-won-t-fix-agency (last accessed 23 December 2012); Human Rights Watch, Nigeria: Firing of Anti-Corruption Chief Would Boost Abusive Politicians, available online at http://www.hrw.org/news/2008/01/01/nigeria-firing-anti-corruption-chief-would-boost-abusive-politicians.

52 ‘Kenya’s anti-corruption tsar quits’ The Guardian (8 February 2005), available online at http://www.guardian.co.uk/world/2005/feb/08/kenya.andrewmeldrum (last accessed: 23 December 2012).

53 Oxford Analytica Daily Brief Service, South Africa: Scorpions’ fate reflects anc tensions (16 April 2008), available online at http://search.proquest.com/docview/192451912.

54 S. Coldham, ‘Legal responses to state corruption in Commonwealth Africa’, 39 Journal of African Law (1995) 115–126, at 125.

55 W. De Maria, ‘Whistleblower protection: is Africa ready?’, 25 Public Administration and Development (2005) 217–226, at 224; O. de Sardan, ‘A moral economy of corruption in Africa’, 37 Journal of Modern African Studies (1999) 25–52, at 30.

56 S. Krasner, ‘Sharing sovereignty: New institutions for Collapsed and Failing States’, 29 International Security (2004) 85–120, at 108.

57 N. Gest and A. Grigorescu, ‘Interactions among intergovernmental organizations in the anticorruption realm’, 5 Review of International Organizations (2010) 53–72, at 68.

58 S. Krasner, ‘Sharing sovereignty: New institutions for Collapsed and Failing States’, 29 International Security (2004) 85–120, at 94.

59 Apart from corruption-induced deprivation of access to emergency food relief, similar claims can be brought for deliberate denials of other social rights such the right to healthcare, water, etc.

60 D. Robinson, “Defining ‘Crimes against Humanity’ at the Rome Conference”, 93 American Journal of International Law (1999) 43–57, at 46.

61 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ictr-96-4-T, International Criminal Tribunal for Rwanda (ictr), 2 September 1998, available online at http://www.unhcr.org/refworld/docid/40278fbb4.html (last accessed 4 June 2012), at paras 580–581.

62 Ibid., para. 580.

63 See P. Ocheje, ‘Refocusing international law on the quest for accountability in Africa: the case against the ‘other’ impunity’, 15 Leiden Journal of International Law (2002) 749–779; I. Bantekas, ‘Corruption as an International Crime and Crime against Humanity: An Outline of Supplementary Criminal Justice Policies’ (2006), 4 Journal of International Criminal Justice (2006) 466–484; M. Wabwile, ‘Economic crime, asset tracing and states’ extraterritorial obligations’ in M. Gibney and W. Vandenhole (eds.), Litigating Transnational Human Rights Obligations (Oxford: Routledge, 2013), Chapter 17.

64 A. Geisinger and M. Stein, ‘A Theory of Expressive International Law’, 60 Vanderbilt Law Review (2007) 77–131, at 84.

65 Statute of the International Court of Justice (1945), Article 65.

66 Charter of the United Nations (1945), Article 96.

67 See, for example, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports (2004).

68 R. Rotberg, ‘Failed States in a World of Terror’, 81 International Affairs (2002) 127–140, at 135.

  • 1

    J. AlbaneseTransnational crime and the 21st Century: Criminal enterprise, corruption and opportunity (Oxford: Oxford University Press2011), at p. 126.

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    Charter of the United Nations 1945Article 55; and International Covenant on Economic, Social and Cultural Rights adopted by ungar 2200A (xxi) of 16th December 1966, Article 11(1).

  • 14

    N. Kotele-KaleInternational Law of Responsibility for Economic Crimes (Ashgate: Burlington2006), at 12.

  • 15

    Transparency InternationalGlobal Corruption Report 2004 Special Focus: Political Corruption (London: Pluto Press2004); Charlotte Denny, ‘Suharto, Marcos and Mobutu head corruption table with $50billion scams’ The Guardian, London, 26 March 2004.

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    Universal Declaration of Human Rights 1948Article 28.

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    M. ShawInternational Law (Cambridge: Cambridge University Press2004), at p. 701.

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    M. ShawInternational Law (Cambridge: Cambridge University Press2004), at p. 701.

  • 66

    Charter of the United Nations (1945), Article 96.

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  • 1

    J. AlbaneseTransnational crime and the 21st Century: Criminal enterprise, corruption and opportunity (Oxford: Oxford University Press2011), at p. 126.

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    • Export Citation
  • 6

    Charter of the United Nations 1945Article 55; and International Covenant on Economic, Social and Cultural Rights adopted by ungar 2200A (xxi) of 16th December 1966, Article 11(1).

  • 14

    N. Kotele-KaleInternational Law of Responsibility for Economic Crimes (Ashgate: Burlington2006), at 12.

  • 15

    Transparency InternationalGlobal Corruption Report 2004 Special Focus: Political Corruption (London: Pluto Press2004); Charlotte Denny, ‘Suharto, Marcos and Mobutu head corruption table with $50billion scams’ The Guardian, London, 26 March 2004.

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  • 26

    Universal Declaration of Human Rights 1948Article 28.

  • 28

    M. ShawInternational Law (Cambridge: Cambridge University Press2004), at p. 701.

  • 35

    M. ShawInternational Law (Cambridge: Cambridge University Press2004), at p. 701.

  • 66

    Charter of the United Nations (1945), Article 96.

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