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Opinion

Looking Forward 2015: Upping the ante on addressing corruption as a human rights violation - A view from Asia

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Rapid economic development has delivered growth and reduced poverty in a number of Asian states.   It has however also placed pressures upon marginalised, disenfranchised and disadvantaged groups whose human rights have been often traded off in the interests of short-term investment and financial gains.  This manifests in systemic business-related human rights abuses, such as land-grabbing, gender discrimination, abusive working conditions, environmental degradation and associated violations of the rights to health, water, food, housing and livelihoods.  Two-thirds of the world’s indigenous peoples live in Asia-Pacific and these communities often bear the brunt of growth-related human rights violations.  The impact on human rights from an influx of investment in countries in transition in region requires particular attention.  Conflict and institutional capacity problems are amongst the factors limiting the human rights benefits that could derive from economic development in the region

Perhaps the most insidious, deep-rooted and persistent of factors however, is corruption.  According to Transparency International’s (TI’s) Corruption Perceptions Index of 2013, only nine of the twenty-eight countries surveyed in Asia-Pacific scored above 50 points where ‘0’ equates with ‘highly corrupt’ and ‘100’, with ‘very clean’.  Further, TI’s Bribe Payers Index 2011 identifies companies domiciled in at least two Asian states as having a high propensity to bribe when doing business abroad.  In a recent dialogue organized by the Asia-Europe Meeting (‘ASEM’) on business and human rights, working groups addressing the issue of access to remedies for business-related human rights abuses identified corruption as a key contributory factor to the abuse and a primary cross-cutting barrier to accessing suitable mechanisms for achieving effective remedy for victims. 

Corruption is often mentioned by communities, civil society actors, companies and government officials in the course of describing the context in which the human rights abuses take place.  Yet the analysis and treatment of corruption from a human rights perspective requires further momentum.  A 2009 study by the International Council on Human Rights Policy (ICHRP) usefully outlines what it means to link corruption and human rights.  It notes that looking at corruption from a human rights perspective requires emphasising the harm caused to individuals and communities by corrupt behaviour and activities.  Further, that corruption can be linked directly to a human rights abuse when a corrupt act is deliberately used to cause the abuse; or linked indirectly where it is an essential contributory factor to the human rights abuses or, creates the conditions that enable the abuse to take place and corruption disproportionately impacts upon marginalized and disenfranchised groups. 

This kind of analysis has been pursued further in more recent literature, for example in a collection of essays addressing the links between corruption and human rights in the Indian context.  Olaniyan’s 2014 book on corruption and human rights law in Africa makes the case for treating corruption as a human rights violation rather than only as a criminal activity arguing, inter alia, that doing so provides a better, more appropriate focus upon the suffering of victims and their right to remedy.  Similarly, Kinley criticises current approaches to corruption-human rights nexus on the basis that these have not progressed beyond baseline analyses of the negative impacts of corruption upon human rights rather than corruption as a violation of human rights.  He explores the idea of a right to freedom of corruption, looking at where to locate it and what value it might offer.

The UN Guiding Principles on Business and Human Rights refer to corruption and bribery.  GPs 25 and 26 with regard to the provision of remedy call for grievance mechanism to be protected from corruption and for justice not to be impeded by it.  GP3 calls on states to implement and enforce human rights protective legislation including anti-bribery laws.  Arguably however, these do not sufficiently tackle the problem by failing to actually define the act of corruption itself as a human rights abuse.  Not doing so raises questions as to how adequately they guide corporations on addressing corruption as part of their human rights due diligence and provision of access to remedy.

Tackling corruption as a human rights abuse is a particular challenge in parts of Asia.  In many states, the business and human rights agenda is largely addressed primarily through a lens of corporate social responsibility (‘CSR’) by both companies and governments.  A thematic study by the ASEAN Intergovernmental Commission on Human Rights (AICHR) states that understandings of CSR as voluntaristic, top-down and philanthropic make it difficult to embed human rights-compatible policies and practices into core business operations. 

Further, a prevalent means by which many states address the social impact of business operations is through ‘CSR-type’ legislation.  These laws typically impose obligations on companies to contribute financially towards States’ development policies with CSR being seen by governments as an opportunity, according to the authors of the AICHR study overview report, “fill funding gaps in key government programmes in education, livelihood development and health services, amongst others.” The Companies Act 2013 of India for example mandates companies to spend 2% of the previous three years’ average net profit on CSR projects and activities in order to establish a culture of sustainable development governance and board level.  Other examples include the Philippines Corporate Social Responsibility Act of 2011 and in Indonesia, various legislative provisions makes it mandatory for limited liability companies (domestic and foreign), that manage, utilise or impact natural resources, or are involved in mining, or are State-owned enterprises to make contributions to community development and empowerment and to disclose these in their annual reports

As regulatory instruments, CSR-type legislation has been criticised for relegating State responsibilities for development to the private sector.  Emphasising corporate contributions may, as one commentator argues also divert attention from the adverse impacts of business operations and the State’s duties to protect against them.  Whilst CSR-type legislation may secure the concept of corporations having such responsibilities within the political and economic paradigm, there is a risk, I would argue, of these laws encouraging corrupt tendencies.

Corruption, especially in business activities, is deeply entrenched in many parts of Asia.  Its ugly head rears in some of the most egregious abuses that occur whether with regard to land-grabs, supply-chain labour abuses or in connection with threats to the safety and physical integrity of human rights defenders.  In this context, it is important that this idea of treating corruption as a human rights violation per se is nurtured so that effective responses to business and human rights problems can be engaged.  

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Sumi Dhanarajan is a trustee of the Business and Human Rights Resource Centre.  She is currently a research associate at the Centre for Asian Legal Studies and a full-time doctoral candidate at the National University of Singapore.  She recently co-authored a background paper on Business and Human Rights for the annual ASEM Informal Seminar on human rights together with Claire Methven O’Brien, parts of which form the basis of this blog.  

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More from our Looking Forward 2015 series:

Business and civil society need to find common ground, William Anderson, Vice President, Social & Environmental Affairs, Asia Pacific, adidas Group

The “Pillar II” Policy Shift in China and Business Practices in the UNGPs, Dr. Liang Xiaohui, China National Textile and Apparel Council & Peking University