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The entitlement delusion

Within the corpus of international human rights law there presently exists no explicit recognition of a right to freedom from corruption. How can we make corruption more than a mere crime?

Madoff painting Portrait of Bernard Madoff. Flickr/Thierry Ehrmann. All rights reserved.We all lie and cheat. We tell white lies to our children and loved ones and we fib to our friends.  We manufacture tall tales about past or present exploits and we are economical with the truth at work. Above all, however, we fool ourselves. This usually manifests itself in ways that are essentially private and trivial: how funny, or fit, or intelligent, or generous, or hardworking we believe we are, or are not.

But some of us also practice self-delusion of a very different order. That is in respect of actions that are profoundly public and serious; where the consequences are not only criminal, but also involve breaches of public trust.

A clear expression of such behaviour occurs when individuals fool themselves into believing that their corrupt conduct is justifiable, or even not really corrupt at all. Through a kind of willful blindness, they reconstruct their ‘crimes’ are victimless.

It is this attitude of entitlement that permits the tenor of self-righteousness heard in Bernie Madoff’s interviews from his prison cell, when declaring that he was always able to rationalize defrauding thousands of investors to the tune of 50 billion dollars, and adding chillingly, “it’s not like I ever considered myself a bad person.”

Criminal sanction, it seems, is not enough to convince such miscreants that their conduct is more than merely illegal. Their actions are morally reprehensible in their contempt not just of the community at large, but of each of us as individuals, affronting our fundamental human rights to be treated fairly, equitably and with dignity. Yet within the corpus of international human rights law there presently exists no explicit recognition of a right to freedom from corruption.

This despite the staggering figures for corruption globally. The anti-corruption pressure group Global Financial Integrity estimates that between 2000 and 2009 the poorest countries in the world lost some 8.44 trillion US dollars to illicit financial flows. This is ten times what they received in aid from richer countries during the same period as calculated by the OECD. So while we may well lament the persistently low levels of international aid, the real problem for developing economies is how to staunch financial hemorrhaging caused by corruption. 

Rich states are also a big part of the problem. Traversing the fine line between sophisticated tax avoidance (which is lawful) and bald tax evasion (which is not) is often viewed more as fair game than socially repugnant. What was revealing about Credit Suisse’s recent guilty plea to Department of Justice charges of helping US citizens to evade taxes was not so much the size of the settlement (albeit an eye-watering 2.6 billion dollars), but the twin facts of the systemic nature of the schemes and their decades in existence – all concealed behind the invisibility cloak of Swiss privacy laws.

Multinational corporations do not even have to stoop this low, as they can benefit from ‘legal corruption’ (as Danny Kaufmann of the Brookings Institute calls it) whereby tax is legally avoided, but unethically evaded. Transfer pricing (shifting corporate profits to low-tax jurisdictions and costs to high ones) has developed into such a legalised art form, notes accountancy Professor Prem Sikka of Essex University, that the tax departments of our largest and most globally integrated companies are now profit - not cost - centres.

The tension between public interests and private power is a fact of political life. Whether openly paraded or hidden in plain sight, the results are equally unpalatable when the private prostitutes the public. But given its pervasiveness and abhorrent consequences, it is indeed curious that the body of law most associated with moral censure has not added its voice to the chorus against corruption.  The time has come to proclaim a human right to freedom from corruption to underpin criminalisation of the deed, if only to stack the virtuous odds against those who would otherwise see ways to rationalise their venality. This much we owe ourselves. 

The author has made a submission to the UN Human Rights Council Advisory Committee’s current Study on Corruption and Human Rights, advocating the establishment of a new right to freedom from corruption.

About the author

David Kinley is Professor of Human Rights Law at Sydney Law School, University of Sydney and a member of Doughty Street Chambers in London. He is author of Necessary Evil: How to Fix Finance by Saving Human Rights (Oxford University Press, New York, 2018).


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