Corruption is known to undermine democracy, erode the rule of law and hinder human development, inter alia, through the violation of human rights. Yet, recognition of these links has not manged to permeate the international anti-corruption toolkit. Efforts to curb corruption have culminated with the enactment of a few international treaties, amongst which the United Nations Convention against Corruption (UNCAC) stands out as the only norm with true global reach. Despite its significant membership, UNCAC has often been described as ‘toothless’ for its faulty implementation worldwide. The model it embraces, primarily based on criminal liability, has not been successful in combatting corruption precisely where it is most aggressive and ingrained. This paper sets out to explore whether a shift in global legal policy from a model anchored in criminal law to another based on international human rights law would be desirable for the anti-corruption agenda of highly corrupt countries. Employing a legal external normative approach and a qualitative review of selected reports, our analysis suggests that an anti-corruption framework based on criminal law is ill-suited for the reality of countries where the rule of law is weak or inexistent. It also indicates that international human rights law provides an adequate theoretical basis for the establishment of a direct link between individuals who are most affected by the consequences of corruption and the international legal order. It further sheds light on how a rights-based approach could potentially address the gaps left by the criminal law model. Finally, it engages in an argumentative effort to conceive an individual claims mechanism rooted on the recognition of an emerging (human) right to freedom from corruption in customary international law. Our main contribution to the literature lies in providing a structured argument for how criminal law could never be adequate to satisfactorily address corruption in highly corrupt countries in the first place, and in exploring the feasibility and desirability of a framework underpinned by international human rights law.
Immunities or jurisdictional privileges provide persons or groups of persons some degree of protection against civil or criminal rules that do not apply to all citizens. However, immunities can also be used by public officials as a shield from liability for criminal offences, including corruption. For this reason, international bodies have been pushing, over the past two decades, for a set of legal standards to ensure that immunity does not translate into impunity. The international standards and best practice can be summarised in the following four recommendations promoted globally:
1) Reducing the range of officials provided immunity;
2) Reducing the scope of criminal offences for which immunity can be invoked;
3) Introducing clear guidelines and procedures for lifting immunities;
4) The specification of a time limit for the duration of legal protection.
This study tests empirically whether these legal standards are associated with better control of corruption in practice. The results show weak to no evidence that the set of international standards recommended to countries around the world are associated with better control of corruption. The only evidence of this association, albeit only significant at the 90% level of confidence, is that immunity provisions for MPs which are aligned with international standards are associated with lower levels of bribery. Furthermore, case studies from Greece and Belgium have shown that impunity can be countered without legal changes and that a practice of impunity can be observed even in countries that have robust legal frameworks.
This paper asks if there is evidence that the most common legislation recommended and used in the current anticorruption toolkit is effective in reducing corruption and if specific contexts can be identified which enable or disable effective legislation for control of corruption. The paper draws on documented public accountability and anticorruption tools from the PAM, the public accountability mechanisms database of the World Bank, and documents additional ones, including an index of anticorruption regulatory density, comprising anticorruption agencies, existence of an Ombudsman, restrictions to party finance legislation and others. While only fiscal transparency and financial disclosures are found to be significant, the interaction of some tools with context elements, such as freedom of the press of independence of the judiciary enhances their impact. The paper argues finally that the effectiveness of some anticorruption tools is strictly dependent on context, especially the existence of the rule of law, while others remain fully insignificant.
In this brief report, Alina Mungiu-Pippidi answers key questions on the recent events in Romania regarding the passing of Ordinance 13/2017. This report covers questions on the ordinance itself, the protests which were triggered by it and the fight against corruption in Romania. The report was updated on 13 February 2017.
While the last 20 years saw the invention of corruption rankings, allowing comparison between countries and the shaming of corrupt governments, such measurements are largely based on the perceptions of experts, lacking both specificity and transparency. New research, based on a comprehensive theory of governance defined as the set of formal and informal institutions determining who gets what in a given context, allow for more specific and objective, albeit indirect, measurements of control of corruption. Such measurements focus on the institutional framework which empowers public integrity and eliminates many current anti-corruption tools, while validating others. Most importantly, it provides a broader specific context which can empower reforms based on evidence and a clear measure to determine status and progress of corruption control.
Once of interest mainly to specialists, the problem of explaining how institutions change is now a primary concern not only of economists, but of the international donor community as well. Many have come to believe that political institutions are decisive in shaping economic institutions and, with them, the course of innovation and investment that leads to a developed society. This is the shift from patrimonialism to ethical universalism, a transformation that most of today’s advanced democracies accomplished through a long historical evolution. But there has been very little research on whether and how this kind of change can be engineered and speeded up by human design. The EU-funded ANTICORRP project that I have been leading aims to help fill this gap. The big challenge is to explain the shift of the governance paradigm from particularism to universalism in the few societies that have managed to accomplish it in the postwar era. Do these success stories offer any lessons about how other societies can make that journey?
This paper looks into the main debates in International Relations on norm compliance. It looks at the three causal factors that help us explain the origins of norms in relation to anti-corruption introduced by McCoy and Heckel (2001): (1) post-Cold War era; (2) social process, i.e. interaction among actors and diffusion of information; and (3) internal process where ‘cognitive and motivational processes of individuals’ may contribute to the generation of norms. Using the model developed by Finnemore and Sikkink (1998) on the life cycle of a norm, it shows how international anti-corruption norms took root by tracing the development of various regional and international legal instruments. Finally, the UNCAC is analysed in more detail, as it has been recognised as a reference framework for the fight against corruption, due to which many countries formally adopted ethical universalism as a norm. The paper argues that international actors must put in place such a monitoring mechanism; otherwise implementation of UNCAC could become an end in itself. However, it is not possible to have significant progress without domestic demand for new rules of the game and public participation in a sustainable mechanism which would prevent the eternal reproduction of privilege.
This report sets the background and the methodology design for the WP10 of the ANTICORRP project. WP10 seeks to explore whether and the extent to which, EU states comply with international anti-corruption norms, as well as their domestic implementation and enforcement. It has four main research objectives: a) to measure state compliance and implementation of international anti-corruption norms in Europe; b) to explore whether international law has an independent causal influence over the anti-corruption laws, policies and practices adopted by EU states; c) to identify patterns of variation of state compliance and implementation, whether cross-national, or across sectors and issue areas; and d) to explore the factors that account for significant variation across sectors or states.This report provides the empirical and analytical groundwork for pursuing the above research objectives and for defining the appropriate methodology to do so. It is divided into five main parts. In the first part, the authors briefly present the origins of how the fight against corruption became an issue of interest for the international community and for European and international organisations from the 1970s onwards, but especially since the 1990s. They then define corruption and its various aspects and forms, they discuss the difficulties in arriving at a commonly agreed definition and review some of the criticisms levelled against the legal approach to fighting corruption, as well as in regard to the domestic influence and effectiveness of international and EU law in this area more broadly. In the last part of this background section, the authors give an overview of the state of corruption in the EU28 on the basis of various indices and assessments compiled by international organisations and non-governmental organisations (NGOs).The second part of this report provides an overview of European and international legal norms and instruments against corruption, which are directly relevant for EU member states. The authors review both soft and hard law, describing their origins and how they emerged, the peer-review and monitoring mechanisms that they put in place, and how they work. The third part of the report is conceptual: it defines and analyses the concepts of compliance with, as well as implementation and effectiveness of international law. Most importantly, it conceptualises their relevance and applicability in regard to anti-corruption norms and conventions, and defines a way of measuring state compliance and implementation in this area. The fourth part of this report delineates four sectors or issue areas, which have been targeted by international and European norms against corruption: international economic transactions, conflict of interest, free speech and whistle-blowers’ protection and political party funding. The final part of the report defines the appropriate research methodology of the group of studies to be conducted within WP10, and identifies the sources of primary and secondary information and documentation to draw from in pursuing the aforementioned objectives.
Georgia had a terrible reputation for corruption, both in Soviet times and under the presidency of Eduard Shevardnadze (1992-2003). After the ‘Rose Revolution’ that led to Shevardnadze’s early resignation, many proclaimed that the government of new President Mikheil Saakashvili was a success story because of its apparent rapid progress in fighting corruption and promoting neo-liberal market reforms. His critics, however, saw only a façade of reform and a heavy hand in other areas, even before the war with Russia in 2008. Saakashvili’s second term (2008-13) was much more controversial – his supporters saw continued reform under difficult circumstances, his opponents only the consolidation of power.Under Saakashvili Georgia does indeed deserve credit for its innovative reforms that were highly successful in reducing ‘low-level’ corruption. At the top, however, many UNM officials saw themselves as exempt: ‘high-level’ corruption continued and even expanded as the economy grew. Georgian Dream has not restored the ancien régime, but has allowed some patronage and clientelism to creep back into the system. The new Georgia has gained a reputation for ‘selective prosecution’; but some of this is dealing with causes célèbres from the Saakashvili era, while some is clearly persecution of the UNM.
When compared to its African peers, Botswana is globally acknowledged for its relatively good democratic governance, prudent economic management and sustained multi-party system of government. Botswana’s postcolonial leaders have been given credit for their visionary leadership which has successfully blended modern and traditional institutions to create a participatory and economically viable democracy from an originally poverty-stricken country that was still being governed under traditional ideas of leadership when it achieved independence in 1966. Botswana has used the rule of law to transform a semi-autocratic traditional governance system of chiefs and associated centralised decision-making structures into relatively representative and transparent institutions of central and local government. The current system of governance is largely anchored in principles of both competition and merit as modes of operation, but although corruption was not a critical challenge during the country’s earlier post-independence years, in the two decades from about 1990 it has become a serious and growing feature of Botswana´s society. This case study analyses the evolution of corruption as a major challenge to the sustaining of Botswana’s democratic and development. The main aim of this country report is to establish by use of meaningful indicators the state of corruption in Botswana and to depict societal responses in their attempts to control it.
The Worldwide Governance Indicators show that Bulgaria has made significant progress in the area of “control of corruption” since 1996. This finding contrasts with the general opinion of the Bulgarian population who perceive Bulgarian institutions as corrupt, and contradicts the decision of the European Commission to continue monitoring Bulgaria’s progress in fighting corruption and organised crime. Hence, there is a need for careful consideration and analysis to understand how much progress Bulgaria has really made in the fight against corruption. Can Bulgaria be considered an anti-corruption success story?
In this paper, the authors seek to answer the above questions by providing a background analysis on Bulgaria’s governance regime. According to research, Bulgaria has made some progress in its transition from patrimonialism to open access order but the main features of its governance regime remain these of competitive particularism. In legal terms Bulgaria displays some open access order features but they do not translate into practical implementation.
Following the country’s EU accession in 2007 progress has been uneven, and has mostly been driven by civil society demands for change, which culminated in mass street protests in 2013. Progress in the political corruption domain has been limited. Power distribution in Bulgaria has opened up to competition but is still concentrated in few political party leaders and powerful business conglomerates, interlinked in a complex web of dependencies with former secret service and communist party elites, which still have privileged access to state resources. Convictions, in particular of high-ranking politicians and administrators are non-existent or rare, a sign that the rule of law and accountability have not yet taken hold in the country.
Qatar is judged by international anti-corruption indexes to be among the highest performing countries in the Middle East and North Africa. The Qatari government has streamlined its regulations regarding business practices and engaged in reforms from above that have liberalized the Qatari economy and increased its strength and viability. However, Qatar is a neo-patrimonial absolute monarchy in which the state is not immune from private interests, and where the ruling family can bypass the rule of law. The complete control by the monarch of state institutions and policies leaves no space for bottom-up calls for reform, or for independent assessment of the performance of the state and the actions of the ruling family by civil society and the media. The permeation of informal networks (mainly in the form of tribal relations) within state institutions and civil society, the lack of interest in and avenues for political participation among Qatari citizens, and the clientelistic relationship between citizens and the state support the continuation of this status quo. Author Lina Khatib analyzes the structures and mechanisms of Qatar’s governance regime that reveal the contradictions inherent within the categories covered by anti-corruption indexes. In doing so, she suggests a number of shortcomings in the methodologies and scope of those indexes as they specifically apply to Qatar, and poses a number of questions regarding the kind of information that is difficult to find but which is crucial to address in order to form a clearer picture of corruption and anti-corruption practices in Qatar. The author concludes that the absence of this information in the first place casts a shadow of doubt over the performance of Qatar in anti-corruption indexes. Additionally, the indexes’ focus on measuring the scope of state functions while overlooking measuring the strength of state institutions is a key reason behind the discrepancy between Qatar’s anti-corruption ranking and the mechanisms and structure of its governance regime. Instead, Khatib proposes specific indicators related to the governance regime that allow for a more comprehensive look at corruption and anti-corruption practices in Qatar.