Is there a right to be free of corruption? Some courts think so. These courts, especially in Latin America, are starting to recognise a distinct right to live free of corruption. While the idea is controversial, it offers new legal avenues for anti-corruption actors and potential pathways for reform that go beyond traditional criminal law.

There is wide agreement that corruption, especially grand corruption, violates several existing human rights. Nonetheless, decisions of national and regional courts, for the most part, have viewed the connection between corruption and human rights such that corruption provides the context for rights violations or leads to violations of several rights. Less often, courts have considered how rights violations facilitate corruption (eg violations against whistleblowers). But the operational parts of judgments – the part defendants must fulfil – have not been based on the corrupt acts themselves or on anti-corruption norms.e21c56e08dab However, an interesting countertrend in some domestic courts is that some corrupt practices violate a distinguishable right to be free of corruption. The declaration of such a right is not necessarily a goal for the litigants but has served as an ingenious way of advancing other goals like access for victims or civil society organisations or facilitating the use of UNCAC as a question of domestic law. While the right to be free of corruption constitutes an innovative way of advancing the human rights and corruption agenda in some contexts, it also has some serious limitations and will not necessarily work well in others.

This U4 Issue explores how national courts, in both civil- and common-law systems, have dealt with freedom from corruption as a human right. It explores why they have sought such a right and what background conditions have made it possible. In cases where they have found such a right, how have they justified it and why? Where they have not done so, what is the rationale or alternative approach? What does this suggest for arguments in favour of or against establishing such a right and for government, donor and litigation strategies?

The U4 Issue begins with a brief examination of different ways that academics and activists have framed the relationship between corruption and human rights. In particular, it summarises whether positing a stand-alone ‘right to be free of corruption’ is a good idea. This U4 Issue concludes that the evidentiary and constitutional advantages and focus on victims of corruption outweigh the risks of imprecision and potential overload of human rights systems. It then turns to six case studies from common and civil law systems. After analysing the origins, purposes, outcomes and doctrinal contributions of cases from Argentina, El Salvador, Costa Rica, Mexico, South Africa and Sri Lanka through legal research and interviews, it draws some general conclusions. It notes that declaring a right to be free of corruption serves instrumental purposes in securing victim access to court, establishing collective harm, applying international law domestically or expanding the definition of ‘environment’ or ‘public trust’. It also raises important questions about the limitations of this approach.

Courts’ interpretations of the interface between human rights and anti-corruption obligations can provide useful lessons for governments trying to fulfil both obligations, for donors interested in effective, sustainable and human rights-infused development and rule of law, and for civil society groups engaged in and seeking creative strategies to advance human rights and anti-corruption efforts. This U4 Issue therefore concludes with some recommendations for governments, donors and civil society groups.

Methodological approach

The U4 Issue uses legal case research, analysis and context, treaty text, and history of both human rights and anti-corruption treaties, as well as secondary sources on national laws, to conduct six case studies – four from Latin America, one from Africa and one from Asia. The cases were selected because they mentioned both ‘corruption’ or ‘UNCAC’ and ‘human rights’, in searches of national law case databases including the South African Legal Information Institute (saflii.org), vLex El Salvador (vlex.com), and the Mexican Semanario Judicial de la Federación (sjf2.scjn.gob.mx). Many websites consulted, of civil society organisations involved in anti-corruption or human rights litigation, have links to the cited jurisprudence, including Transparency International Sri Lanka; Poder Ciudadano in Argentina; and TOJIL, Mexicanos Contra La Corrupción y la Impunidad, and Derechos Humanos y Litigio Estratégico Mexicano in Mexico. After consulting secondary academic and policy literature in English and Spanish on the links between corruption and human rights, consultations were held in person and online during the last half of 2024 and beginning of 2025 with experts in litigation on the relevant cases in Argentina, El Salvador, Mexico and Sri Lanka.

The U4 Issue focuses on cases from several Latin American countries because national courts there have long played a pioneering role in expanding views of human rights obligations; there has been considerable discussion and litigation around human rights accountability and a broad view of the role of international law in the domestic legal order. These are civil law countries, where victims often can (and do) play an active role in criminal proceedings. Human rights, including their interpretation by regional human rights bodies, are in many Latin American states, treated as part of constitutional law, so the decision to make corruption a rights violation has broad reach and depth. In the past, trends originating in the region have spread elsewhere.a75c27b02083 The U4 Issue includes two cases from outside the region because they come from (predominantly) common-law countries that demonstrate ways to raise these arguments under a variety of legal systems, other possible doctrinal approaches, and where systemic corruption, especially state capture, has played a major role in the countries’ recent evolution.acbf6e1248a4

Approaches to the relationship of corruption to human rights

Declaring a right to be free of corruption is one possible approach to link human rights and anti-corruption, but until now it has not been dominant. The prevalent view sees corruption as context: a means or an enabling factor for violations of a wide range of human rights. A second approach focuses on imbuing anti-corruption law with a human rights-based approach, and a third approach contends that corruption, in and of itself, is a violation of human rights.

Corruption as context, cause or consequence

The existing human rights legal framework includes a state obligation not only to respect human rights, that is, to refrain from committing violations through its own agents, whether the acts were authorised or not, but also to ensure or protect and fulfil rights.34307b7cf3a8 This implies that the state must take positive action to establish regulatory and other means to ensure that not only state officials but also private actors (like companies) uphold rights.d99923ddab73 The actionable violation under human rights law is a long-standing right like the right to life, freedom of expression, education, health or housing.

Moreover, if the state cannot prevent a violation, it must nonetheless use due diligence to investigate and, if warranted, prosecute and remedy it. While a perfect result is not required, the state must take the obligation seriously, not as a formality, and make reasonable efforts.0484699ee785 The obligation dovetails with the state’s responsibility to provide an adequate remedy, enshrined in all basic human rights treaties. This due diligence doctrine arose, in part, from cases of enforced disappearance, where (as in corruption cases) it was difficult to find enough evidence of crimes.630e813b9d6a Thus, even if complainants cannot initially prove the underlying offence, the state must look into it. This is especially true where there is a pattern and practice of similar violations and applies to the state’s obligation to investigate, prosecute and remedy violations of private actors or quasi-private groups like paramilitaries or organised crime as well as state officials.a663ee93d685

Procedural norms – a human rights-based approach

A second way of linking corruption and human rights employs a human rights-based approach (HRBA) to focus on the similarities between human rights and anti-corruption law, including state obligations regarding prevention and accountability and procedural similarities like participation, transparency and protection of whistleblowers.04f06b3547ab In recent years, human rights law has paid increasing attention to economic, social and cultural (ESC) rights,85fdc9c6933b which easily connect to other economic and development concerns, like corruption, highlighting the links between human rights and corruption. An HRBA is well known in development practice. It focuses on procedural norms like participation and empowerment of those affected; transparency; and accountability, anti-discrimination and protection of vulnerable groups.65ea48348d24 It presents a methodology and governing values but does not create a separate right.

Stand-alone right – pros and cons

Under a third approach, some human rights scholars have argued that corruption is itself a violation of human rights and should be recognised as such. There are benefits, but also costs, to such an approach. Proponents argue that the right to be free of corruption is a composite of existing rights, like other now-established rights including the right to water, housing or a healthy environment, even if it isn’t explicitly mentioned in a treaty.abeda44155a6 Where human rights are implemented domestically as part of constitutional law, connecting anti-corruption to those rights opens new avenues for both prevention and enforcement. It allows the focus to be on the course of corruption as well as the consequential harms, without requiring proof of a causal connection between a specific corrupt act and a specific harm. Such proof is often impossible to obtain where those involved can manipulate legal systems in their favour, hide actions and resources behind layers of shells and intermediaries, and threaten or buy off whistleblowers or investigators. For these reasons, and despite the objections listed below, this U4 Issue finds this third approach useful.

Some scholars find such a right in Article 1 of the human rights Covenants, which hold that people may not be deprived of their means of subsistence.bd43a125bed1 Murray and Spalding argue that designating corruption as a violation of human rights has several advantages, including dispelling arguments that corruption is culturally specific (because human rights are, by definition, universal), elevating the perceived importance of enforcing rights and promoting a preventative approach in an era of globalisation, where combatting corruption is a precondition to fulfilling goals like good governance and rights observance. They trace the proposed right to liberal political theory (especially John Locke), cross-cultural universals about good governance and social utility.80b3fbd99ba7 Relatedly, Anne Peters concludes that

This approach also changes the discourse around the harms created by corruption to focus on harms to actors beyond the state, challenge the notion that corruption is a victimless crime and amplify victims’ voices.

Not all scholars agree with this approach. Cecily Rose, for instance, argues that human rights law is a poor fit with anti-corruption efforts. For such an approach, she finds that there is no textual support in human rights treaties or existing practice, a human rights approach is too state focused for harms that span the public and private sectors, and it ignores the economic complexities of the relationship between corruption and human welfare.263b9f64dfdd

Additionally, it’s not clear what the contours of such a right would be. After all, no society is completely free of corruption, which leaves open whether there is a minimum threshold or a way to distinguish episodic or petty corruption from systemic kleptocracy or large-scale looting. Moreover, only some corrupt behaviour is criminal: Would civil harm or ethical abuses be covered? A limitation to a right to be free of grand corruption or systematicity might prove useful.

Vigilance is required in creating new rights without the capacity to adequately monitor their implementation. Philip Alston long ago warned against expanding the number of rights, based on both doctrinal and practical considerations.d478af7c7199 Many so-called third generation collective rights have not been taken up by courts, legislatures or social movements – although the right to a healthy environment provides a counterexample. Adequate implementation of a right to be free of corruption may require resources (for new rapporteurs or monitoring) that an increasingly stressed human rights system does not have.

Over the last decade or so, courts have taken up the idea of a ‘right to be free of corruption’ or its converse, a government duty to combat corruption. The cases complement and add to both academic arguments. This U4 Issue turns to a discussion of those cases, followed by a comparative analysis.

Civil law cases: Argentina, El Salvador, Costa Rica and Mexico

The right to be free of corruption is not only the focus for academic debates. Some national courts have declared that there is such a right. Two examples are described below, from Argentina and El Salvador, which emerged from the need to find a legal way for the courts to apply international law to corruption-related issues – a hook they find in human rights law. A different approach comes from Costa Rica, where courts used environmental law, in particular the constitutional right to a healthy environment, to find that such a right includes freedom from corruption. Mexican cases have focused on a right to transparency, honour, and accountability with respect to public resources, generally in the context of allowing citizens or citizen groups to intervene in cases.

Argentina: Framing corruption as a rights violation to enable court access

In 2018, an anonymous whistleblower represented by the NGO Citizen Power (Poder Ciudadano) denounced fraud in a services contract between the Ministry of Social Development and the La Plata Regional Faculty of the National Technological University to monitor an employment programme. The embezzlement consisted of over 250 ‘ghost’ hires of personnel who never appeared and whose identities were apparently stolen to cash cheques. The university dean was, according to local press, close to the minister of Social Development in the former government and got a no-bid contract.adaa7d9bc5bd

Argentine law does not generally allow civil society groups to intervene on behalf of victims. However, Argentina’s criminal procedure code, in Article 82 bis, allows duly registered civil society groups to represent victims in cases of crimes against humanity or grave human rights violations if their organisational purpose is directly linked to the alleged injured rights. They may represent victims whether or not they are complainants in the case. The provision was created for cases arising out of the 1970s–80s period of dictatorship and state terrorism because many individual victims were afraid to openly denounce powerful military officers.

Poder Ciudadano successfully applied to participate as a party in the criminal proceeding, arguing that their bylaws included pursuing justice in corruption cases, international treaties (including the UNCAC) encouraged their participation and corruption constituted a grave human rights violation.64ba2ebf43dd Due to the human rights–related provisions of the criminal procedure code and the lack of other provisions allowing for organisations to participate in criminal cases, it was important for Poder Ciudadano to frame their participation as responding to human rights violations to participate in the case.

The defendants objected to the participation of Poder Ciudadano in the proceedings, arguing the corruption offences were not covered by Article 82 bis and the inclusion of a third party would create delays. Judge Kreplak of the Third Criminal and Correctional Court in La Plata disagreed. The judge found that the human rights orientation established in Argentina’s 1994 constitution required a broad view of whether a court could hear the case. Therefore,

Allowing access to qualified organisations representing collective interests was especially important when dealing with crimes against public administration.

The defendants appealed, and in November 2018, the Second Chamber of the La Plata appeals court affirmed the previous decision.9dd5bc99a79f The court focused on statutory interpretation of the language of Article 82 bis, noting that it is framed in the alternative: Either crimes against humanity or grave human rights violations must be at issue. While crimes against humanity were irrelevant,

To come within the statute, the court characterised the corrupt behaviour as a ‘grave human rights violation’, although it also referred to the links between corruption and other established human rights. Therefore, the court concluded that grave human rights violations were at issue, and the organisation could intervene.43bb798797a8

El Salvador: UNCAC as a human rights treaty

El Salvador passed a non-conviction based (civil) forfeiture law (extinción de dominio) in 2013.f0dee45ce5d0 After those potentially affected raised complaints, the Salvadoran legislature amended the law to shorten statutes of limitation and disallow the forfeiture of assets of equivalent value when the illegally obtained assets were unavailable.c83e8b5ed047 The attorney general and several private parties challenged the amended law. The 2018 decision of El Salvador’s Constitutional Chamber4413dba221f0 to uphold almost the entire law dealt with a wide array of due process, legal certainty and other constitutional challenges.

The court had to decide if it could use international treaties – specifically, the UNCAC, UN Convention Against Transnational Organized Crime (UNTOC) and narcotics treaties – to help decide if the forfeiture law was constitutional. The Salvadoran constitution gives primacy to international treaties over contrary domestic laws, but a 2004 decision of the same court had earlier held that it was only international human rights law, and not all international law, that was relevant for the interpretation of constitutional rights given the overlapping subject matter.898620179ed2 Therefore, the court could use the requirements of international law to decide the case only if the UNCAC and other anti-corruption treaties constituted ‘human rights treaties’, not other kinds of treaties, under Salvadoran law.

The court found that ‘drugs, organised crime and corruption are objectionable conduct that produce direct and indirect violations of fundamental rights’.573f4256a16b This is fairly non-controversial. It then listed, for each treaty, what the rights entailed. The anti-narcotics Convention was aimed at protecting the right to health. The UNTOC was relevant because organised crime affected rights including the right to life, security and physical integrity; property (through extortion); free movement; education; and a wide range of other rights. Finally, the UNCAC overlapped with the constitution regarding equality: ‘Corruption implies an unjustified and unreasonable differentiated treatment and intends to favour certain persons or groups, guarantee their impunity and generate privileges’.0da73da35223 Corruption, moreover, implied the rights to access to information, free expression, democracy and the proper use of state resources.84baaa7a416e

The court then held that

Therefore, because the UNCAC was considered a human rights treaty given the effects of corruption on human rights, it could be used to set the parameters of El Salvador’s domestic obligations, including for asset forfeiture and recovery. That determination led to the further observation that, in addition to its effects, corruption was itself a human rights violation. In the end, the court invalidated several of the modifications to the original law as contravening the treaties and upheld the rest, leaving a strong forfeiture statute in place.

Costa Rica: Social harm and the right to a healthy environment

Costa Rica has been a leader in defining social harm. Social harm to collective and diffuse interests affects everyone, and the state attorney’s office (known as the procurator or Procuraduría General de la República [PGR]) represents the collective interest in redressing social harm. Starting with the 2004 Caja-Fischel case, the courts have found that corruption-related offences create social harm by weakening the economy and public confidence in institutions, undermining those institutions and unjustly redistributing wealth and power, thus leading to a culture of corruption.311d3b868b33 The social harm is worse when the offender is the president or a high-level official than when they are a low-level bureaucrat.395e63ebbb42 That social harm, a subsequent court found, violates the ‘right to live in a corruption-free environment’.6c0065c24b56

Other courts have grounded that right, and the resulting social harm created by its violation, in the constitutional right to a healthy and ecologically balanced environment established in Article 50 of the Costa Rican constitution. Article 50 is broader than only environmental protection: The first part of the article commands the state to procure the maximum well-being for all the country’s inhabitants, organising and stimulating production and the most appropriate distribution of wealth. The supreme court (and subsequently other courts) has interpreted the ‘healthy environment’ language to be far broader than nature conservation, extending it to any sphere of human development.d38112dc1076 The courts have then used this broad view to find that Article 50 recognises a right to live in an environment free of corruption.d7028c353509 They find that the right protects collective and diffuse interests, and creates a right to reparation for economic and moral harms, including those due to corruption.

Nearly 150 countries have some version of a right to a healthy environment in their constitutions, and a good number of those include social factors within the definition. The Costa Rican approach might prove useful to these countries in establishing the breadth of harm created by corruption.

Mexico: A mixed bag enabling victim court access

Two Mexican states recognise the human right to live free of corruption in their state constitutions: Baja California078c1071d7ca and Tabasco.18b78cc6f224 The federal constitution does not explicitly contain this right, nonetheless, the courts have referred to such a right in the context of several converging trends in the law. Trends include recent changes in anti-corruption law that bolstered existing constitutional, criminaland administrative law prohibiting public corruption and illicit enrichment;3e795f25e919 Mexico’s ratification of the UNCAC and the Inter-American Convention Against Corruption (IACAC); the 2013 General Victims’ Law which gave new rights to victims in criminal trials and new guarantees of reparation;984989b25edc and the 2011 constitutional reforms on human rights and subsequent supreme court decisions that stress the progressive, expansive and forward-looking nature of Mexico’s human rights obligations and the existence of collective and social, not just individual, rights.ab2351dbf119 As a result of these changes, the Mexican supreme court found that victims can challenge a prosecutor’s failure to indict through amparo (a procedure to protect constitutional rights against government action) due to their right to reparations if there is a guilty verdict.e161a4195c90 And at least one lower court, on 31 May 2019, agreed on the broad scope of who constitutes a victim.0c80892f7331

Against this backdrop, in the cases described below, courts have referred to the right to be free of corruption generally in disputes over the ability of individuals and civil society groups to represent the collective or social interest in investigating and redressing financial wrongdoing. One case involves bribes awarded in highway construction and concession contracts.f71b4599cbff Senator Emilio Alvarez and Ana Riojas, a member of the federal assembly, denounced the bribes to the prosecutor’s office. When nothing happened, they requested copies of the case files as victims or offended persons (víctimas u ofendidos) and therefore parties with the ability to bring the case. The prosecutor refused, and they then brought a writ of amparo against the authorities based on a violation of their constitutional rights, including access to justice and the collective right to live in a corruption-free environment. They cited the evolution of domestic and international law (including UNCAC) to facilitate greater access for victims in criminal proceedings. They pointed in particular to Article 20 of the constitution, which sets out the rights of victims, Article 108 of the Criminal Procedure Code and Article 4 of the General Victims’ Law of 2013, which reads:

Collective victims, including groups, social organisations and communities, are also covered. Here, the relevant rights violation was the right to be free from corruption.

The prosecutors’ office argued that to seek case participation, the complainants had to show that their rights, or their individual or collective interests, had been affected. The generic interest of society was not enough; there had to be specific individual or group interests at stake.9bd75b6de240 Simply having denounced the illegal conduct to prosecuting authorities was not enough to convert the complainants into victims. The law required them to show that they had personally suffered physical harm, financial loss or negative impact on a fundamental right as a result of the defendants’ alleged crimes – not just that the entire society was affected.944ecc9f2873 The complaining legislators filed a request for constitutional relief, but the trial court denied it on the grounds that if they were not victims and therefore had no right to reparations, then they also had no standing to bring a constitutional challenge.

An appeals panel disagreed.20ab52c1785e They acknowledged that the Mexican constitution needed to be interpreted progressively when it came to human rights. They found that the definition of victim changed in Mexican law, and the post-2000 constitutional scheme contemplates a progressive definition of victim providing a status equal to offenders for participating in criminal proceedings. The court found that a broad reading of the rights of victims was necessary given expansive inter-American jurisprudence and the growing importance of collective or supra-individual claims. In particular, the law now recognised that collective victims could intervene to protect collective legal interests. Once the court recognised collective claims, it was a small step to name defence from corruption as such a claim that any affected member of society could raise. The legislators, the court found, had not only filed a complaint; they had a specific interest in the use of public monies. The court imposed two limits: The complainant must be part of the affected community, and the complainant must actively file a complaint about the alleged wrongdoing.19e7e2af2f9d

Other cases involving the standing of civic organisations have supported this view. In a 2016 administrative law case, the district court said:

the Constitution recognizes the fundamental rights to transparency, honour, and accountability with respect to public resources, … which translates to a fundamental right of individuals to live in an environment free of corruption in which all public officials carry out their jobs with enough honesty, transparency and openness to be able to have confidence in their work and their decisions.d477dec6a718

The same court later found that Mexico’s National Anti-Corruption System had been created as a procedural and institutional guarantee to allow society to live in a corruption-free environment.7e1db3961905

Subsequently, while denying an association representing victims from intervening in a criminal case involving corruption, a Mexico City criminal appeals court found that doing so did not constitute a violation of the human right to live in a corruption-free environment, implying that under other circumstances there is such a right.e7bfa8b9cb91 The court did not, however, explain what those circumstances might be or expand on the content of the right.

Some cases have gone the other way, albeit focusing on the standing of victims rather than the content of the right to be free of corruption. In a case widely known as the ‘master fraud’ (estafa maestra), brought by a Mexican anti-corruption NGO, TOJIL, the courts denied the organisation party status in the criminal proceedings. The arguments were similar: The complainants argued there was a negative impact on a fundamental right as required by the General Victims’ Law, in this case, the right to be free from corruption, and that made them victims with the ability to intervene. The trial judge found that this was not a collective right, there was no physical harm and the economic losses were the state’s, not the complainants’. An appeals court confirmed.4938e78bbe1f In general, Mexico’s supreme court has found that complainants need not be recognised as victims in criminal cases but has also ruled that citizens could participate in administrative proceedings against public officials – in both cases without focusing on a right to be free of corruption.356df5e18b7d

A split appeals court panel denied victim status to TOJIL in another case involving an apparent sweetheart deal between prosecutors and former Veracruz governor Javier Duarte, who was sentenced to nine years in prison after a plea agreement for stealing at least US$21 million.809264786e5a With respect to the human right to be free of corruption, the majority held that neither the constitution nor international treaties explicitly contained such a right, and therefore it did not exist. The dissenting judge focused on the rights of victims and the need to broadly interpret rights.

Cases from (predominantly) common-law systems

Common-law legal systems generally allow less victim participation in criminal proceedings and vary widely in how they incorporate international law into domestic legal analysis. Nonetheless, aggrieved individuals and public interest groups have found ways to counter corruption, leading to decisions that, while less explicitly endorsing a right to be free from corruption, use human rights and constitutional doctrines to imply such a right.

South Africa: Government duty to combat corruption in human rights law

The language of human rights, extensively incorporated into the South African 1994 constitution, holds that the state must not only respect, but positively ensure and protect rights.84169adc566a This allowed the Constitutional Court of South Africa to decide that countering corruption was an obligation of the state due to corruption’s negative consequences on a wide range of rights. While not explicitly recognising the countervailing right to be free of corruption, a state obligation could be seen as the flip side of the equation.

The issue arose from a challenge to Parliament’s decision to disband the country’s priority crimes and anti-corruption investigations unit and move its functions from the National Prosecuting Authority to the police, which would tie the functions more closely to the executive branch.d37d3e50114b The complainant, an individual businessperson ostensibly representing the public interest, sued. He argued that anti-corruption treaties, as incorporated into South African law, required an anti-corruption unit with greater independence from the executive and the human rights obligations of the state similarly required more structural independence.a69175ba8edb

The court split. A minority would have upheld the government’s decision, finding there were enough safeguards in the reconfiguration of the anti-corruption investigations unit to give it sufficient independence, while the majority pointed to several failings making it insufficiently independent. Both sides dealt with international law issues. For the majority, the requirements of UNCAC were directly applicable through the constitutional provision that when interpreting the Bill of Rights a court ‘must consider international law’.4f4b23cd6d98 The minority found that South Africa’s constitution does not require the incorporation of UNCAC and other relevant treaties directly, but merely to use them as a guide. There was no reason the national anti-corruption unit should mirror international suggestions on the structure of such units; the issue came down to adequate, but not optimal, independence.678503910b00

Both sides used Article 7(2) of the constitution. For the majority:

The state’s obligation to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights thus inevitably, in the modern state, creates a duty to create efficient anti-corruption mechanisms. Our Constitution appropriates the obligation for itself, and draws it deeply into its heart, by requiring the state to fulfil it in the domestic sphere …. 12432a02def6 We therefore find that to fulfil its duty to ensure that the rights in the Bill of Rights are protected and fulfilled, the state must create an anti-corruption entity with the necessary independence, and that this obligation is constitutionally enforceable. More specifically, the amicus contended, and we agree, that failure on the part of the state to create a sufficiently independent anti-corruption entity infringes a number of rights. These include the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights, including the rights to education, housing, and health care.93403642c1d7

With respect to the right to be free of corruption, the majority finds that there is a state duty arising specifically from human rights law to create efficient and independent anti-corruption mechanisms. Independence is required both by the UNCAC, which under domestic constitutional law must be considered, and human rights law itself. By finding that there is a state duty-bearer who must act to respect, protect and promote rights, the court implies that there is a corresponding rights-holder. It does not indicate who is the rights-holder; presumably, it would be the individual complainant and organisations acting as amicus curiae as well as society as a whole. While the court cites specific civil, political, economic and social rights as underlying the state’s obligation, it does not rely on these rights but on a more general state duty arising from human rights law. It provides another way for international human rights law to approach anti-corruption obligations, albeit one that depends on strong and explicit constitutional provisions tying international and domestic law together.

Sri Lanka: Equal protection and public trust doctrine

Another case comes from Sri Lanka, a common-law country with a tradition of public interest litigation based on the public trust doctrine and the constitutional guarantee of equal protection under the law. The public trust doctrine was used in a corruption case in 2008, when a public interest organisation challenged the apparently corrupt sale of land that had been taken for public purposes but used for a private golf course.d648b5a24975 Government agencies and officials, starting with the president and minister of Finance, approved the taking and subsequent developments. The golf course owners argued that petitioners had no standing to sue, but the supreme court found that

petitioner[s] in such public interest litigation has a constitutional right, given by Article 17, read with Articles 12 and 126, to bring forward their claims. Petitioners to such litigation cannot be disqualified on the basis that their rights happen to be ones that extend to the collective citizenry of Sri Lanka. The very notion that the organs of government are expected to act in accordance with the best interests of the People of Sri Lanka, necessitates a determination that any one of the People of Sri Lanka may seek redress in instances where a violation is believed to have occurred.25c5ffbafedc

The court then found that the transactions involved could not be justified under the law and therefore violated the public trust doctrine, which holds that the assets of the country (including land)

must be used in a manner for economic growth and always for the benefit of the entirety of the citizenry of the country and we repeat, not for the benefit of granting gracious favours to a privileged few, their family and/or friends.4b7352d22999

Using resources for private gain, in turn, violated Article 12 which calls for equality under the law. Consequently, the transactions were unwound, the land returned where possible and civil compensation ordered.

The public trust doctrine then formed a basis for a decision in June 2022 to hold the country’s then-leadership responsible for the economic crisis that gripped Sri Lanka in the previous decade. The supreme court ruled that the Rajapaksa brothers (former president and ministers) and other high-level officials had knowingly created an economic disaster through tax reductions, unsustainable debt and other policies, which resulted in widespread hardship, and they were liable for the violations of the public trust doctrine, Article 12, and freedom of expression and right to information.f6e72b880d53 While these decisions did not mention a right to be free of corruption, the public trust doctrine created a duty of government officials to avoid and act against corrupt acts without the high burden of proof needed in criminal cases.

Commonalities, distinctions and objections

The first common characteristic of these cases is that they aren’t focused on specific laws on anti-corruption, whether criminal, civil or administrative. Rather, they use constitutional law, laws on standing or jurisdiction, or laws on challenging government action generally. The second is the creativity of lawyers and judges in finding ‘hooks’ for discussion of corruption and human rights, each rooted in the relationship between international and domestic law. In the Argentine, Salvadoran, Mexican and South African cases, laws and decisions about the preferential role of international human rights law in defining and interpreting domestic law were paramount, reflecting those countries’ histories of dealing with grave rights violations and numerous victims. In the Costa Rican and Sri Lankan cases, doctrines more generally associated with environmental law were harnessed, reflecting the extensive and broad jurisprudence on the human right to environment and the public trust doctrine, respectively. Third, citizens or civil society groups launched a majority of the cases, seeking access to case files or, more generally, a monitoring role in anti-corruption investigations to prevent sweetheart deals or deliberate case stalling. Thus, many of the cases concern victim access to the courts in anti-corruption investigations.

These cases demonstrate real-life examples from what has generally been seen as a purely academic discussion. The cases generally do not focus on the meaning or implications of a right to be free of corruption; the declaration of the right is instrumental to some other purpose. Sometimes, the advantage is about the evidence needed: It allows the case to move forward without proof of a causal link to a specific act of corruption by positing a more general entitlement. Sometimes it is constitutional: Declaring a right to be free of corruption allows the corpus of international human rights and global anti-corruption law to be incorporated into discussions of anti-corruption. It ties the right to other values (including transparency, honourability, ethics, creating a healthy social environment and other human rights), allowing future decisions to fill in any definition gaps. And it allows for a welcome focus on victims of corruption.

Nonetheless, some words of caution are in order. As discussed above, none of these decisions specified the contours of the right. That leaves it to courts, through accretion, trial and error, and borrowing from each other, to use an incremental, case-driven approach to more fully define the right. The right to be free of corruption may become a summary of the state obligations imposed by human rights law regarding corruption and its consequences. As the right is further developed through cases, it may eventually find a way into international declarations or guidelines, recommendations of global or regional bodies, or national legislation.

Conclusions and recommendations for bilateral donors, national governments and civil society

The cases in this U4 Issue show a trend towards bringing anti-corruption obligations to a central role in public law, including constitutional law and the law of remedies. The trend is worth watching, as is supporting well-chosen and well-constructed strategic litigation.

For governments seeking to advance an anti-corruption agenda, framing freedom from corruption as a legal right raises the possibility of enshrining that right in the constitution or in law, as well as using broader legal reforms to facilitate public law enforcement of anti-corruption standards. This might include explicit access to legal redress for victims of corruption or established anti-corruption organisations, as seen in Argentina. Or it could involve defining the ability of a government body (like the Costa Rican procurator) or of the citizenry to seek redress for social harm or violations of the public trust. In many places, the laws are adequate, but existing law is not well implemented. Encouraging officials to enforce existing laws or create further guidance might help.

Especially at a time when development aid is declining and its legitimacy is under attack, donors can find, in these examples, innovative and inclusive approaches to anti-corruption work. The cases show that criminal law is not the only, or even the most fruitful, way to use the courts to advance an anti-corruption agenda. They also suggest ways that foreign aid and private grant-making might encourage reforms not specifically tied to anti-corruption, like making it easier for courts to hear group or collective claims (eg anti-corruption as well as protection of the environment or consumers) or sufficiently broad definitions of who is a victim. Donors could tie work on legal empowerment to groups’ abilities to represent individual or collective victims and ensure structures and work streams decrease silos between human rights and anti-corruption efforts. Such reforms can be combined with others to design new strategies with civil society and local actors.

Following the lead of civil society groups described in the U4 Issue, there are various avenues in national public and constitutional law to explore. These might include training for judges or lawyers, creating legislation or regulation for access of public interest groups to the courts in corruption cases, working with communities to develop examples of harm from corruption at all levels, developing strategic litigation and lobbying efforts to recognise victims, and working in regional and global human rights and anti-corruption forums where national courts are unresponsive.

An approach connecting anti-corruption and human rights law to advance fundamental rights, potentially including a right to be free of corruption, will strengthen both fields for the benefit of victims of corruption.