Corruption and Global Justice 0198875649, 9780198875642

Citation preview

Corruption and Global Justice

Corruption and Global Justice GILLIAN BROCK

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Gillian Brock 2023 The moral rights of the author have been asserted All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2022950498 ISBN 978–0–19–887564–2 DOI: 10.1093/oso/9780198875642.001.0001 Printed and bound in the UK by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Contents Preface

1. Corruption, Responsibilities, and Global Justice: An Introduction

vii

1

2. Corruption and Global Injustice

30

3. Justice, State Responsibilities, and Human Rights

51

4. Reducing Corruption: The Many Dimensions

65

5. Contemporary Corruption-curbing Tools

86

6. Abusive Tax Avoidance and Tax Professionals’ Responsibilities

108

7. Sharing Responsibilities for Action

135

8. Addressing Common Challenges and Future Directions

164

Appendix: Is a Comprehensive Account of Corruption Available? Some Difficulties

179

Bibliography Index

197 211

Preface Citizens across the world regularly rank corruption as one of the most pressing problems facing their country.¹ While corruption is pervasive in some places, given its multiple forms, corruption reaches every corner of the globe. Those interested in philosophical issues related to global justice have been concerned with a broad range of topics including climate change, terrorism, humanitarian intervention, global democracy, global poverty, and nationalism. Curiously, corruption has not yet been the focus of any books by philosophers working on global justice topics.² This is surprising for several reasons. Corruption is a pervasive problem across the globe and is regularly ranked as among the greatest global challenges. Furthermore, considering the role that corruption plays in exacerbating deprivation and fueling social tension, peaceful and just societies are unlikely to come about without tackling corruption. Addressing corruption should be a high priority for those concerned with global poverty eradication, peace, security, and justice. This book aims to address such matters and remedy the neglect. I take a constructive approach that I hope will be helpful to those across the world dealing with corruption at a theoretical and policy level, along with citizens and civil society groups hoping to make reforms in practice. I offer a normatively justified account of how to allocate responsibilities for addressing corruption across the many agents who can and should play a role. In order to know who should take responsibility and how they should do so, we need to understand the multiple forms corruption can take, the corruption risks associated with various activities, and the interventions that tackle corruption effectively, all topics I cover. I believe this book addresses a significant global problem in a comprehensive way.

¹ For the most up to date analysis, check the Ipsos website which seems to do a monthly survey titled “What worries the world” at: https://www.ipsos.com/en/what-worries-world-july-2022. The February 2022 data suggests that corruption was once again a top concern, before the invasion of Ukraine and inflation became even more prominent. For slightly older data see also WIN/Gallup International, Corruption Tops the List as the World’s Most Important Problem According to WIN/Gallup International’s Annual Survey (Bulgaria: Gallup International Center for Public and Political Studies, 2014) available here: https://www.gallup-international.bg/en/32507/corruption-tops-thelist-as-the-worlds-most-important-problem-according-to-win-gallup-internationals-annual-poll/; Eliza Katzarova, The National Origin of the International Anti-Corruption Business. (Montreal: International Studies Association Annual Convention, 2011). ² As the investigation proceeds I discuss those global justice theorists who have made contributions in putting corruption on the normative map. But, as will also be clear, none have treated the topic in the ways I do, putting the phenomenon itself front and center and connecting it with global justice debates in a focused way.

viii



I hope it will provide some momentum for progressive reforms as we collaborate to tackle this global scourge. For institutional support, I am very grateful to the Edmond J. Safra Center for Ethics at Harvard University that awarded me several fellowships in the period 2013 to 2018. This association was tremendously stimulating, introducing me to a wealth of disciplinary and multi-disciplinary research on combating corruption effectively, and connecting me with a network of scholars and practitioners at the cutting edge of the field. I am also grateful for funding from several universities to attend workshops and conferences or to present papers, including the University of Auckland, Harvard University, the Humboldt Foundation, the University of Oslo, and the University of Pavia. I have discussed corruption or parts of this book with many esteemed colleagues at conferences, workshops, seminars, and in congenial cafes. For very helpful discussions on corruption or comments on this work I thank Arthur Applbaum, Michele Bocchiola, Emanuela Ceva, Alex Cobham, Michael Blake, Stephen Davies, Peter Dietsch, William English, Nir Eyal, Maria Paola Ferretti, Greg Fields, Nicole Hassoun, Alison Jaggar, Nik Kirby, Mark Knights, Lawrence Lessig, David Magnus, Carla Miller, David Miller, Richard Miller, Darrel Moellendorf, Margaret Moore, Mathias Risse, Thomas Rixen, Miriam Ronzoni, Bo Rothstein, Hamish Russell, Sergio Sismondo, Mathew Stephenson, Dennis Thompson, Leif Wenar, Jonathan Wolff, Lea Ypi, and three anonymous reviewers for Oxford University Press. I am grateful for the excellent research assistance provided by Kiraan Chetty and Hamish Russell. I thank Peter Momtchiloff for being so supportive of this project when I first floated the idea of it several years ago. Once again, Stephen Davies, Nancy Fisher, and Anne Stubbings deserve special thanks for helpful conversations and supportive cheer in Covid times.

1 Corruption, Responsibilities, and Global Justice An Introduction

1.1 Introduction On the evening before Mohammed Bouazizi lit a fire that would burn across the Arab world, the young fruit vendor told his mother that the oranges, dates and apples he had to sell were the best he had ever seen. “With this fruit,” he said, “I can buy some gifts for you. Tomorrow will be a good day.” For years, Bouazizi told his mother stories of corruption at the fruit market, where vendors gathered under a cluster of ficus trees on the main street of this scruffy town, not far from Tunisia’s Mediterranean beaches. Arrogant police officers treated the market as their personal picnic grounds, taking bagfuls of fruit without so much as a nod toward payment – fining them, confiscating their scales, even ordering them to carry their stolen fruit to the cops’ cars.¹ The day Bouazizi had hoped for went rather differently. Police officials visited his stall and demanded bribes. He had no funds that day, so an official slapped and spat at him, before confiscating his weighing scales and dislodging his produce cart. Bouazizi tried to reclaim his property at the municipal building but was beaten once more. So he set out to the governor’s office where he was denied access to plead his case. Surrounded by corruption and unresponsiveness to his plight, feeling that the future held no hope of change, on December 17, 2010, Mohammed Bouazizi, poured gasoline over his body and set himself on fire. His act inspired many civilians to protest across North Africa and the Middle East, leading to a movement, the Arab Spring, in which millions of citizens under autocratic rule began challenging governmental abuse of power and unresponsiveness to citizens’ needs.

¹ Marc Fisher, “In Tunisia, Act of One Fruit Vendor Sparks a Wave of Revolution through Arab World,” Washington Post, March 26, 2011.

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0001

2

   

While long-suppressed victims of corruption can eventually take action if sufficiently outraged, demands for bribes rarely result in such a dramatic chain of events. More frequently, they elicit reluctant compliance. The daily lives of the poor in developing countries are rife with facilitation payment expectations, presenting real costs to some of the world’s most vulnerable. Corruption can interfere massively with people’s abilities to meet their basic needs, such as for healthcare or education. Many of the poor across the world report having to pay bribes in order to secure provision of a public service to which they are entitled. A study of several African countries revealed that 44 percent of parents had paid bribes to teachers to place their children in schools and that without such payment, access would have been denied.² Similar results are common in many countries.³ A global study found that 1.6 billion people annually are forced to pay bribes to get public services. Health care is the worst affected sector. One-tenth of all Global Corruption Barometer respondents across the world report having had to pay a bribe within the last year to a healthcare worker.⁴ Sadly, this is not a new phenomenon. Corruption has existed since historical records have been kept. While the forms of corruption and its scale might vary, it appears to exist in all societies at all stages of development. Given the pervasive nature of corruption and its many forms, it is little surprise that corruption features as one of the most pressing concerns across the globe.⁵ Prior to the Covid-19 pandemic, corruption was the most frequently discussed topic globally

² Arbache, Jorge Saba, Habyarimana, James, and Molini, Vasco. Silent and Lethal: How Quiet Corruption Undermines Africa’s Development Effort (English). Africa Development Indicators (Washington DC: World Bank Group, 2010). Available at: http://documents.worldbank.org/curated/ en/316051468009960660/Silent-and-lethal-how-quiet-corruption-undermines-Africas-development-efforts. ³ Transparency International, “Global Corruption Barometer: Overview,” Transparency International, 2017. Available at: https://www.transparency.org/en/gcb/global/global-corruptionbarometer-2017; Transparency International, Global Corruption Barometer: Asia 2020 (Berlin: Transparency International, 2020); Transparency International, Global Corruption Barometer: Middle East and North Africa 2019 (Berlin: Transparency International, 2019); Transparency International, Global Corruption Barometer: Africa 2019 (Berlin: Transparency International, 2019); Transparency International, Global Corruption Barometer: Latin America and the Caribbean 2019 (Berlin: Transparency International, 2019); Transparency International, Global Corruption Report: Education (New York: Routledge, 2013). All the Global Corruption Barometer Reports can be found at: https://www.transparency.org/en/gcb. ⁴ Richard Rose and Aranzuzu Montero, Reducing Bribery for Public Services Delivered to Citizens (Bergen: U4 Brief, 2015), 2. Available here: https://www.cmi.no/publications/5663-reducing-briberyfor-public-services-delivered-to#pdf. ⁵ United Nations, “Opening Special Session on Corruption, General Assembly Adopts Political Declaration with Roadmaps to Help Countries Tackle Bribery, Money-Laundering, Abuse of Power,” United Nations, June 2, 2021. Available here: https://www.un.org/press/en/2021/ga12329.doc.htm. For the most up-to-date results check the IPSOS website which runs monthly surveys titled “What Worries the World,” available at: https://www.ipsos.com/en/what-worries-world-july-2022. The February 2022 data suggest that corruption was once again a top concern, before the invasion of Ukraine and inflation became even more prominent. Corruption still features in the list of top problems, despite these developments. For older data see also Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015), xiii; and WIN/Gallup International, Corruption Tops the List as the World’s Most Important Problem According to WIN/Gallup International’s Annual Survey

, ,   

3

and often identified as the world’s top problem.⁶ It is so widespread that those seeking public office often campaign on an anti-corruption platform, claiming that they would herald a new dawn. However, citizens are often disappointed to find they do not seem to escape the scourge of corruption and that the newly elected fare no better than their predecessors, perhaps even exacerbating the problems. What, if anything, successfully addresses corruption? And assuming we can identify some effective solutions, what ought to be done to address corruption here and now? How should we assign responsibilities in connection with addressing corruption? In this work I explore the issue of what ought to be done about this grave problem, who ought to do it, and the justification for fair responsibility assignments. I offer specific suggestions about particular parties’ responsibilities and the normative basis for these views. My focus in this book is on the normative issues. However, to do this work well we need to understand the phenomenon of corruption and the kinds of strategies that are successful in reducing the risks of its occurrence. Studying corruption comprehensively is a multi-disciplinary endeavor. We need to understand some of the complex facilitators of corruption to have any hope of reducing it. In this chapter we begin our understanding by first getting a sense of the many forms corruption can take (in Sections 1.2, 1.3, and 1.4). Section 1.5 begins to explore some of the drivers of corruption while Section 1.6 provides maps of how we will navigate this complex terrain. I offer two kinds of maps, a “big picture” version and a more granular overview of each chapter that summarizes some key themes from each. Section 1.7 clarifies why normative theorists should find my project valuable, highlighting several original aspects to my book. Section 1.8 clarifies my position on the complex conceptual issues about corruption, some of which must be relegated to future research, given the enormous normative project that is my focus here. Section 1.9 concludes and once again draws attention to our main concern in this book, namely, the kinds of corruption that thwart efforts to reduce global injustices. Linking to the next chapter, I introduce the case of corruption in the water sector, a case that we explore in Chapter 2.

1.2 Forms of Corruption: An Introduction A broad assortment of activities can rightly be described as corrupt, including nepotism, inappropriate favoritism for associates, fraud, extortion, kickbacks, (Bulgaria: Gallup International Center for Public and Political Studies, 2014) available here: https:// www.gallup-international.bg/en/32507/corruption-tops-the-list-as-the-worlds-most-important-problemaccording-to-win-gallup-internationals-annual-poll/. ⁶ For more sources see the previous footnote. The IPSOS website has a rich database of monthly surveys titled “What Worries the World,” available at: https://www.ipsos.com/en/what-worries-worldjuly-2022.

4

   

election rigging, vote buying, bribery, state capture, cronyism, and influence peddling. Some of the prominent forms of corruption that are most troubling are those in which agents use public office or professional roles, typically for some personal or political gain, in ways contrary to the purpose of that office or role, thereby abusing their entrusted power.⁷ These kinds of inappropriate uses of public office or professional roles will be my primary concern in this book. Because agents can be engaged in a range of inappropriate activities in these roles, we will be concerned with a diverse set of activities. While having to make facilitation payments in the form of bribery or tea money may be a common and highly visible form of corruption that infects poor people’s everyday lives, other equally pernicious types are rampant even when they are less visible. State capture, for instance, involves networks or groups gaining control of the state’s decision-making capacities, thereby ensuring policies are favorable to their interests. This can engender regulations or resource flows that consistently prioritize their interests, often at the expense of the interests of others with whom the state should be concerned. A distinction is also frequently drawn between petty and grand corruption. Ordinary citizens often encounter petty corruption in their everyday lives, such as when faced with police demanding bribes or an administrator expecting a facilitation payment before allowing access to healthcare. Grand corruption often occurs at a higher level, for instance when a minister authorizes a project in return for bribes or other favors. Having begun this chapter by noting the prevalence of bribery and corruption in some of the world’s poorest regions, it is important to acknowledge that corruption is found in the most affluent nations as well, of course. Indeed, some ⁷ This is my brief statement of the kind of corruption that is among the most troubling and it draws on critical reflections from the literature. I discuss some of the conceptual issues in the Appendix. Important early accounts include those of Joseph Nye, “Corruption and Political Development: A CostBenefit Analysis,” American Political Science Review 61 (1967): 417–27; Robert Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1988); Mark Philp, “Defining Political Corruption,” Political Studies 45 (1997): 436–62) doi:10.1111/1467-9248.00090; Jeremy Pope, National Integrity Systems: The TI Source Book (Berlin: Transparency International, 1997); Susan Rose-Ackerman, Corruption and Government: Causes, Consequences and Reform (Cambridge: Cambridge University Press, 1999); Dennis Thompson, Ethics in Congress: From Individual to Institutional Corruption (Washington DC: Brookings Institute, 1995); Mark Warren, “What Does Corruption Mean in a Democracy,” American Journal of Political Science, 48(2): 328–43. doi:10.2307/ 1519886; Lawrence Lessig, “Institutional Corruptions,” Edward J. Safra Working Papers 1 (2013): 1–20, doi:10.2139/ssrn.2233582; Seumas Miller, Institutional Corruption: A Study in Applied Philosophy (New York: Cambridge University Press, 2017) doi:10.1017/9781139025249; Bo Rothstein and Aiysha Varraich, Making Sense of Corruption (Cambridge: Cambridge University Press, 2017) doi:10.1017/9781316681596; Emanuela Ceva and Maria Paola Ferretti, “Political Corruption, Individual Behavior and the Quality of Institutions,” Politics, Philosophy and Economics 17 (2018): 216–31 doi:10.1177/1470594X17732067; and Emanuela Ceva and Maria Paola Ferretti, Political Corruption: The Internal Enemy of Public Institutions (New York: Oxford University Press, 2021). I have also found ideas from International Non-Governmental Organizations such as Transparency International particularly clear and useful as well. For excellent further reading see for instance, Emanuela Ceva and Maria Paola Ferretti, “Political Corruption,” Philosophy Compass 7 (2017): 1–10. doi:10.1111/phc3.12461; Seumas Miller, “Corruption,” Stanford Encyclopedia of Philosophy, Ed Zalta (ed.), September 21, 2018. Available at: https://plato.stanford.edu/entries/corruption.

, ,   

5

of the most worrying forms are to be found in the world’s richest nations. To illustrate, and to get a sense of corruption’s scale, reach, and complexity, in the next two sections I discuss sample forms of institutional corruption common in western developed countries. In these sections we cover two concerning areas that have ripple effects throughout the globe. These are: (i) An improperly close inter-dependence between business and government, especially the US Congress’s improper dependence on campaign contributions; (ii) The pharmaceutical industry’s improperly influential role in healthcare practice, policy, medical research, and in the production of knowledge.

1.3 An Improperly Close Inter-dependence between Business and Government There are at least three relationships between business and government that facilitate business-friendly regulation and legislation. These include the provision of funding for campaigns to elect candidates, an intense lobbying industry that targets those with decision-making and rule-writing power, and the so-called revolving door between government and private sector employment. These relationships facilitate businesses having better access to public decision-makers, so that these decision-makers bend in the direction of promoting their interests.

1.3.1 Campaign Contributions How effective are campaign contributions at securing business-friendly policies? The short answer is that they can be very effective. American Crystal Sugar contributed $1.8 million (US) during 2013 and 2014, while it received $280 million in sugar subsidies over that period.⁸ Altria, formerly called Philip Morris, is one of the largest contributors to election campaigns. There has been a long history of struggling to regulate the sale of tobacco products. During the period 2007 to 2012, Goldman Sachs contributed $16.5 million to fund political campaigns, spent $12.4 million on lobbying and was awarded total federal contracts and support worth $229.4 million. Lockheed Martin gave $8.6 million in political contributions, spent $84.1 million on lobbying, and received $332 million

⁸ Malcolm Salter, “Crony Capitalism, American Style: What Are We Talking About Here?” Edmond J Safra Working Paper 50 (2014): 1–47. Available here: https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2513352.

6

   

in federal contracts and support.⁹ Are such facts merely coincidence or a sign of something more disturbing? Many industries have benefited greatly from government favoritism following generous campaign contributions and lobbying. But do such patterns necessarily indicate crony capitalism is in play, rather than a fair exchange or legitimate bargaining?¹⁰ Particular cases may suggest one interpretation rather than another. Whatever we think of the merits of individual policy decisions favoring particular donors, there are three other noteworthy aspects of the system of campaign contributions that corrupts the way the institutions of government work. 1). Time distortion: There is the need to engage in continuous fundraising that distracts members of Congress from what you might think are some of their core purposes, such as deliberating about policies and legislation or tending to constituents. Studies show that members of Congress spend 30–70 percent of their time on fundraising.¹¹ 2). Agenda distortion: Campaign contributors get preferential access to members of Congress and are thus disproportionately able to influence beliefs and agendas. This often results in a gap between how representatives actually spend their time and what the people think are important issues. A distortion creeps in. As Larry Bartels’ research shows “senators appear to be vastly more responsive to the views of affluent constituents than to constituents of modest means”.¹² 3). There is a huge loss of trust in the political system.¹³ Fewer citizens therefore engage in practices of democracy enabling further opportunities for funders to have disproportionate influence in determining political outcomes. Alternatively, disillusioned and angry citizens don’t just get mad, they sometimes register that disapproval in ways that punish anyone identified with the status quo in favor of change, however ill-defined.¹⁴ When large campaign contributions are standardly required to be elected to office, we should not be surprised to discover that government policies bend in the ⁹ For more on such data see Laurence Cockcroft and Anne-Christine Wegener, Unmasked: Corruption in the West (London: I.B. Tauris, 2017). ¹⁰ Salter, “Crony Capitalism, American Style: What Are We Talking About Here?” 5. ¹¹ Brent Ferguson, “Congressional Disclosure of Time Spent Fundraising,” Cornell Journal of Law and Public Policy 23(1) (2013).. Available at: https://scholarship.law.cornell.edu/cjlpp/vol23/iss1/1. ¹² Larry Bartels, “Economic Inequality and Political Representation,” in Lawrence Jacobs and Desmond King (eds.), The Unsustainable American State (Oxford: Oxford University Press, 2009), 187. Available here: DOI:10.1093/acprof:oso/9780195392135.003.0007. ¹³ Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop it (Boston: Hachette, 2011); Lawrence Lessig, America, Compromised (Chicago: University of Chicago Press, 2018). ¹⁴ See, for instance, Finn Heinrich, “Corruption and Inequality: How Populists Mislead People,” Transparency International, January 24, 2017.

, ,   

7

direction of their major funders.¹⁵ Those who are elected are pressured by generous funders to reciprocate favors, at least in being well disposed to promote their funders’ interests. The psychological processes in play run deep in our human dispositions to reciprocate.¹⁶

1.3.2 Corruption Based on Lobbying The very purpose of lobbying is to influence government toward the lobbyist’s position. Business groups employ the most lobbyists and vastly outspend other interest groups. Lobbying to stop business-unfriendly policies from progressing is just as common as lobbying to promote business-friendly decisions. Big Pharma spent $116 million on lobbying “to keep Congress from authorizing Medicare to bargain down prescription drug prices” and “saved $90 billion in future profits, representing a return on investment of 77500 percent.”¹⁷ The scale and deep pockets that can support lobbying activity means that the public interest can be seriously subverted.

1.3.3 Corruption Based on the Revolving Door The steady traffic from government service to private sector employment has corrupted the political process in several ways. A large number of people go through the revolving door, including those congressional employees who have vast legislation and regulative experience. The salary increase moving from government to other sectors can be quite significant, especially for staff and legislative assistants.¹⁸ The pharmaceutical, bioscience, and financial industries are frequent recruiters. There are two ways in which these transitions compromise the democratic process. First, the prospect of future lucrative employment in the private sector can influence the decisions of those currently in government service jobs

¹⁵ For more on regulatory capture see George Stigler, “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2 (1971): 12. ¹⁶ Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop it (Boston: Hachette, 2011). ¹⁷ Salter, “Crony Capitalism, American Style: What Are We Talking About Here?” 27. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2513352. Citing research done by Aimee Duffy, “Should Companies Do More to Disclose their Lobbying Efforts?” The Motley Fool, April 5, 2014. Available at: https://www.fool.com/investing/general/2014/04/05/should-companies-do-more-to-disclosetheir-lobbyin.aspx. ¹⁸ In the USA, the Honest Leadership and Open Government Act is supposed to constrain this pattern, as it imposes restrictions of 1–2 years on senators and House staff being able to engage in lobbying straight after leaving office. How well it actually works in practice to constrain anyone is another matter and, of course, it only applies to those in the USA so the troubling phenomenon continues across the world.

8

   

who see no need to antagonize future employers.¹⁹ Second, insiders have specific knowledge of how government works that can considerably assist companies or industry associations in promoting policies favorable to their interests at the expense of the public. Public awareness of the problem fuels further distrust and anger in the political system.

1.4 Corrupting Healthcare and Medical and Health Knowledge In this section I discuss some of the ways in which pharmaceutical companies have corrupted the practice of healthcare in the US. Patients commonly assume that health care personnel use the best medical knowledge to treat conditions and illnesses. But the reality falls troublingly short of this assumption. I begin with the capture of Key Opinion Leaders, a practice that is widespread in the health sector. They are an integral part of pharmaceutical companies’ commercially driven efforts to shape the medical knowledge that physicians use in making their clinical decisions. We are then well positioned to understand how drug companies corrupt our knowledge about the products they sell.

1.4.1 The Capture of Key Healthcare Professionals In Sergio Sismondo’s revealing exposé of pharmaceutical industry tactics, he documents the insidious ways in which the industry has infiltrated healthcare at every level.²⁰ Key Opinion Leaders (KOLs henceforth) in the healthcare profession are carefully managed as key agents in disseminating product-friendly information at continuing medical professional development seminars, and shaping what counts as medical knowledge. KOLs are critical personnel in marketing and sales strategies.²¹ KOLs can be very effective at generating sales. A Merck study revealed that KOL-led meetings with physicians almost doubled their return on investment than when meetings were led by sales representatives.²² So it is worth the ¹⁹ There is also a not insignificant flow from the private sector to government in the so-called reverse revolving door. For instance, industry veterans from the healthcare sector wrote much of the final wording of the Affordable Care Act. The movement of influential industry veterans into government positions strengthens personal, financial, and ideological ties. It can also lead to regulatory capture, privileged access, and a perception that public decision making is overly influenced by the private sphere. Consider how, for instance, over the last forty years ten Treasury secretaries came from the business community; the flow from Goldman Sachs in particular is noteworthy. It should be no surprise when the Wall Street worldview overly influences public policy. For more, see Salter, “Crony Capitalism, American Style”. ²⁰ Sergio Sismondo, “ ‘You’re Not Just a Paid Monkey Reading Slides:’ How Key Opinion Leaders Explain and Justify Their Work,” Edmond J. Safra Working Paper 26 (2013): 1–29. ²¹ Sismondo, “You’re Not Just a Paid Monkey Reading Slides”. ²² Sismondo, “You’re Not Just a Paid Monkey Reading Slides”.

, ,   

9

industry’s time to train physicians, convert them into product champions, and pay them to give promotional lectures. Physicians are paid well for giving promotional talks for pharmaceutical companies.²³ Physicians report further motivational reasons for taking on this work, including increased status or respect, the opportunities to network with other physicians, the potential for referrals, being at the forefront of their fields, and learning about new products. Companies typically screen KOLs’ talks. Some even provide the scripts and slides to be used that present their products in the best light. While KOLs might be aware of conflicts of interest, they talk as if they can be entirely trusted to manage these themselves. However, we are not good judges of what affects us in decisionmaking when conflicts of interest are in play. As one example, Genevieve PhamKanter reviewed the voting patterns and financial interests of about 1400 Food and Drug Administration (FDA) advisory committee members who participated in decisions for the Center for Drug and Evaluation Research from 1997 to 2011; she monitored over 15 739 votes and found a clear patterns of bias.²⁴ The scale of the problem may not be widely recognized. In 2007, “94 percent of physicians in the United States had such relationships. More than 80 percent of doctors had accepted gifts, and 28 percent had received payments for consulting or research. Sixty percent of those physicians were in medical education and 40 percent were involved in writing practice guidelines.”²⁵ By sponsoring events and travel, pharmaceutical companies can create a sense of goodwill towards physicians. Physicians often have their travel to luxury resorts sponsored by drug companies, ostensibly for continuing education on new drugs. While most physicians believe that such arrangements do not influence them, data suggest otherwise. One study showed that prescriptions for particular drugs plugged by the drug companies sponsoring a meeting nearly tripled soon after that meeting.²⁶ Other studies have shown that physicians who accept drug company gifts request that their drugs be added to hospital formularies more frequently than average.²⁷

²³ For instance, more than 2500 physicians in the U.S. were paid at least $500 000 each year for giving promotional talks, during the period 2014–2019. Charles Ornstein, Tracy Weber and Ryan Grochowski Jones, “We Found Over 700 Doctors Who Were Paid More than a Million Dollars by Drug and Medical Device Companies,” ProPublica, October 17, 2019. Available here: https://www. propublica.org/article/we-found-over-700-doctors-who-were-paid-more-than-a-million-dollars-bydrug-and-medical-device-companies. ²⁴ Genevieve Pham-Kanter, “Revisiting Financial Conflicts of Interest in FDA Advisory Committees,” The Milbank Quarterly 92 (2014): 446–70. She also notes that “FDA Center for Drug Evaluation and Research advisory committee members who have financial ties solely to the firm sponsoring the drug under review are more likely to vote in ways favorable to the sponsor,” at 446. Furthermore, in about half of all FDA meetings in 2013, at least one participant had some financial interest at stake, such as consulting, advising, or an ownership interest. ²⁵ Pham-Kanter, “Revisiting Financial Conflicts of Interest in FDA Advisory Committees,” 2. ²⁶ Aaron E. Carroll, “Doctors’ Magical Thinking About Conflicts of Interest” The New York Times, Sept 8, 2014. ²⁷ Carroll, “Doctors’ Magical Thinking About Conflicts of Interest”.

10

   

Patients also think gifts are less appropriate and more influential than doctors do. Public sentiment about the improprieties fueled bipartisan support for the Physician Payments Sunshine Act that began to apply in 2013. It requires that most payments to physicians from industry be reported in a public database, including meals, travel expenses, speaker fees, and research grants, along with any ownership stakes in companies. The idea is that by making these types of relationships public, bias can be managed. The Act has resulted in some changes in behavior, with doctors limiting acceptance of invitations and gifts from drug companies, but the practice continues nevertheless. Physicians opposed to the Sunshine Act argue that physicians should self-regulate. But research on conflicts of interest reveals contrary evidence about how reliable this would be. One study of radiation oncologists found that only 5 percent of them thought that they might be affected by gifts. However, a third thought that other radiation oncologists would be affected. Similar studies have been done on other healthcare professionals, such as medical residents. While more than 60 percent said that gifts would not influence their decisions, only 16 percent believed that other residents would be uninfluenced.²⁸ Such “ ‘magical thinking’ that somehow we, ourselves, are immune to what we are sure will influence others is why conflict of interest regulations exist in the first place. We simply cannot be accurate judges of what’s affecting us.”²⁹ Acknowledging the reality of conflicts of interest and how they influence us is an important part of trying to deal with them.

1.4.2 Corruption in Our Knowledge of Drug Efficacy Drug companies corrupt healthcare in several other important ways. Donald Light, Joel Lexchin, and Jonathan Darro document at least three important problems.³⁰ First, is a lack of integrity in the drug trials they conduct.

1.4.2.1 Corruption of the Drug Trials Drug companies are responsible for testing their own products and this has led them to design trials that will put their brands in the most favorable light.³¹ Design flaws include not testing appropriately for harms but rather ensuring the collection of data that suggest greatest benefits. Drug companies also decide who should be accepted on to a drug trial, which means they have large incentives to include ²⁸ Carroll “Doctors’ Magical Thinking About Conflicts of Interest”. ²⁹ Carroll “Doctors’ Magical Thinking About Conflicts of Interest”. ³⁰ Donald Light, Joel Lexchin, and Jonathan Darro, “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs,” Journal of Law, Medicine and Ethics, 41 (2013): 590–600. ³¹ See also Marc Rodwin, Conflicts of Interest and the Future of Medicine: The United States, France and Japan (Oxford: Oxford University Press, 2011).

, ,   

11

only those most likely to benefit and to exclude patients likely to have adverse reactions. The result is data that suggest the drugs are much more effective and safer than less biased tests would show. Harmful side effects are an especially important consideration when testing new drugs. Up to 2.7 million hospitalized Americans each year have experienced a serious adverse reaction.³² Adverse drug reactions cause approximately 128 000 deaths in hospitalized patients, “matching stroke as the 4th leading cause of death.”³³ Yet many trials do not even seek to gather data about these negative side effects. All in all, through corruption of the drug trial process, pharmaceutical companies are misrepresenting efficacy evidence of new drugs.

1.4.2.2 Corruption of the Journal Publication Process The second notable form of pharmaceutical company corruption I discuss here is in the journal publication process, with the result that the medical literature becomes distorted in favor of pharmaceutical companies’ products. Companies seem to treat drug trials along with journal publication as part of the marketing process. They design trials to produce results that support the marketing profile for a drug and then hire “publication planning” teams of editors, statisticians, and writers to craft journal articles favorable to the sponsor’s drug. Articles that present the conclusions of commercially funded clinical trials are at least 2.5 times more likely to favor the sponsor’s drug than are the conclusions in articles discussing non-commercially funded clinical trials. Yet, journal approval is deemed to certify what constitutes medical knowledge. Published papers legitimate the pharmaceutical products emerging from the R&D pipeline and provide the key marketing materials. . . . Furthermore, companies are much less likely to publish negative results, and they have threatened researchers who break the code of secrecy and confidentiality about those results. Positive results are sometimes published twice – or even more often – under different guises. This further biases meta-analyses – a method of statistically combining the results of multiple studies – and clinical guidelines used for prescribing.³⁴

To improve integrity in the production of knowledge about drugs, Light et al. advocate for a model in which research companies play no role in testing drugs. The FDA would be transformed into a taxpayer-funded body clearly there to serve ³² Light, Lexchin, and Darro, “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs”. ³³ Light, Lexchin, and Darro, “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs,” 593. ³⁴ Light, Lexchin, and Darro, “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs,” 595.

12

   

the public interest.³⁵ An independent institute could test drugs in trials that are better designed and manage conflicts of interests better. To conclude Section 1.4, pharmaceutical company-related corruption occurs at three notable levels. First, the pharmaceutical industry has engaged in large-scale lobbying and political contributions, influencing Congress to pass legislation that promotes their interests, often at the expense of public interests. The FDA has been compromised in the process and has limited ability to oversee drug safety, given that pharmaceutical companies have corrupted medical research. Second, by commercializing the role of physicians in marketing drugs, this has undermined physicians’ ability to provide independent, trustworthy advice to patients. Third, drug companies’ role in biasing drug trial information further distorts our medical knowledge about treating illnesses, undermining the quality of advice patients receive and their actual health outcomes.³⁶

1.5 What Drives Corruption? So far we have seen that corruption can occur in some of the poorest and the richest regions of the world. Given its reach we might wonder, what are the drivers of corruption? There are many considerations that facilitate corruption and explanations for why corruption occurs. It is hard to separate out the factors that drive rather than facilitate corruption, so for the purposes of this introductory discussion I do not draw a tight distinction between primary drivers and facilitating ones. While almost any human motivator can drive corruption, there are also some common elements that are worth some discussion.³⁷ One commonly observed pattern, operating especially in developing countries, is the need for survival within a particular context in which wages are low and bribes are an expected part of everyday life. The pay structures might be set at a low level on the assumption that salaries can be supplemented with facilitation ³⁵ Light, Lexchin, and Darro, “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs,” 590-600; see also John Ionnidis, “How to Make More Published Research True,” PLOS Medicine 11 (2014): 1–6. ³⁶ Marc Rodwin, “Institutional Corruption and Pharmaceutical Policy” Journal of Law, Medicine and Ethics 41 (2013): 544–52. ³⁷ My treatment in this section aims to be concise and summarize a great deal of material. For further discussion that also provides accessible overviews see Lawrence Cockcroft, Global Corruption: Money, Power and Ethics in the Modern World (London: I.B. Tauris, 2012); Laurence Cockcroft and Anne-Christine Wegener, Unmasked: Corruption in the West (London: I.B. Tauris, 2017); Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015); Robert Rotberg, The Corruption Cure: How Citizens and Leaders can Combat Graft (Princeton: Princeton University Press, 2017). Rotberg and Holmes’ books contain further reading references for those who want to dig deeper. For a real treasure trove of references on all aspects of corruption see Mathew Stephenson’s regularly updated bibliography on corruption. Type key words (for instance, in this case, “causes”) into the searchable database and the reader will find much material. The bibliography can be found here: https://scholar.harvard.edu/mstephenson.

, ,   

13

payments, and this often occurs with the wages of police, healthcare workers, or local government employees. Those who need services provided feel forced to comply with bribery requests while those who levy them may feel forced by circumstances to do so. Once the precedent has been set that bribes are an expected part of transactions, the practice may gain momentum. When people see how easy it is to extract money from others when in positions of power, they may be spurred on to extend corrupt practices, so a further factor can be greed. Like all the other factors discussed in this section, greed can function effectively as a driver only in an unregulated context, so it is greed conjoined with contexts lacking adequate regulation or oversight that can be a driver. Weak institutions and lack of appropriate oversight can certainly facilitate corruption. In some cases it is not just a lack of oversight, but rather deliberate orchestration from members higher up in an organization that drives corruption. Each person lower in the hierarchy may be expected to bring in a certain amount of revenue everyday by those higher in the group. Such schemes can frequently be initiated by Port Authorities, a Chief of Police, or others in leadership positions.³⁸ The existence and prevalence of shadow economies plays an important role as well. The informal or shadow economy, which can constitute 40 percent of GDP in developing countries, provides an enormous zone in which corruption can flourish. Many transactions occur “off the books,” so there is little scope for regulation or oversight to play a constraining role. As I discuss in Chapter 6, secrecy jurisdictions, offshore centers and tax havens are other related huge facilitators. These spaces provide a vast unregulated area in which transactions go undetected, vast sums can easily be laundered, and other corrupt activities can flourish. I have already discussed one of the largest single drivers of corruption and that is political funding. Those who fund campaigns for particular candidates or parties to gain public office expect some return on their investment. Those who owe their office to the assistance of others’ financial contributions will be favorably disposed to those parties when making decisions in office that affect those funders. We see these obvious connections all over the world and, as highlighted in Section 1.3, these can take dramatic forms in developed countries, where the amounts needed to gain office are staggering and the largess available once in office can be enormous. There are plenty of psycho-social explanations for why people engage in corruption, such as pressure from peers, co-workers, or family. Particular workplaces can present acute social stress situations, as plays out notoriously when police are coercively persuaded to participate in a unit’s corrupt activities. Another common driver is fear of being ostracized when in a high corruption setting.

³⁸ Lawrence Cockcroft, Global Corruption (London: I.B. Tauris, 2012).

14

   

An additional important psychological phenomenon that often drives unresolved conflicts of interest is the phenomenon known as motivated blindness. We have a tendency not to notice things we would prefer not to see. We have lots of blind spots.³⁹ Troublingly, when people have a vested interest in seeing a problem a certain way, objectivity can be compromised especially when there is a conflict of interest. Everyone is affected by this phenomenon including professionals such as physicians, CEOs, accountants, consultants, and politicians, and as we saw in the previous section, healthcare professionals.⁴⁰ For another example, consider how conflict of interest exists in the US credit-rating system. The largest credit-rating agencies, such as Standard and Poor’s, Moody’s, and Fitch, are paid by the companies they rate. So they have an incentive to please the companies they assess and this biases their assessments towards ratings that favor those companies. The results can be disastrous, as happened in the case of the Global Financial Crisis. Corruption can flourish in all sorts of improperly regulated circumstances where there is little chance of detection or punishment, especially when perpetrators are strongly motivated. In authoritarian systems elites often set bad examples, for instance stealing the country’s wealth and storing it in offshore banks. Taking their cue from the top, other citizens and officials feel less compunction about breaking rules when opportunities arise. As well, states’ strategic objectives often entail considerable tolerance of corruption, such as when retaining access to cheap oil is a priority. International systems of laws, rules, and privileges can also massively facilitate corruption. Global justice theorists have been offering insights into how this works for at least two decades.⁴¹ As one example, the International Borrowing Privilege has allowed those who govern a state to borrow in the country’s name, with the state thereby becoming obligated to repay the loan. This privilege has incentivized groups to seize power by force, so they can take advantage of the ability to borrow billions on behalf of their country. All too often those leaders have siphoned the borrowed funds into their personal bank accounts, typically in other countries and beyond the reach of local law enforcement. Citizens have seen very little benefit from this borrowing. On the contrary, they have often been saddled with the obligation to repay these loans, which has considerably hampered local economies and pro-poor policy. More generally, world trade, in

³⁹ Max Bazerman and Anne Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About it (Princeton: Princeton UP, 2011). ⁴⁰ Interestingly, judgment does not always precede action, but is often strongly influenced to take the shape of rationalizing what we want to do. Behavioral ethics researchers argue that often we only engage in moral reasoning when we are attempting to justify the decisions we have already made. See Bazerman and Tenbrunsel, Blind Spots. ⁴¹ For excellent treatment see, for instance, Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (New York: Oxford University Press, 2016); Peter Singer, One World: The Ethics of Globalization (New Haven: Yale University Press, 2004); and Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2008).

, ,   

15

practice, recognizes the position of “might makes right.”⁴² As an example consider that whoever holds power in resource rich countries has the legal right to freely dispose of resources. So, international trade permits oil purchases made with corrupt regimes to find their way into economic systems throughout the globe and these transactions are legally upheld internationally. Once again, these trading arrangements often set up incentives for corrupt agents to seize power so they can benefit from these international rules.⁴³ Cultural or social norms are another often-mentioned driver of corruption. For instance, it is often reported that there are strong cultural norms about gifts as important to building, maintaining, or signaling special relationships. Gift giving can often operate in ways that would seem to promote corrupt behavior when gifts are not easily distinguishable from bribes. In addition, important cultural assumptions sometimes seem to govern expectations about appropriate behavior for those in power. The person in a position of power may be expected to show special treatment for members of their family, tribe, or ethnic group. Similar practices involving loyalty or reciprocity expectations can be found in many parts of the world, including Africa, Indonesia (the Upeti system), China (“guanxi”) and Russia, which uses the concept of “blat” for a similar phenomenon. As we see throughout the book, there are ways to deal with the complex issues that promote corruption, including tackling these challenging cultural issues just introduced. Perhaps at this point it is useful to provide some useful maps of how I proceed.

1.6 Book Overview In this section I offer the reader two maps at different resolutions concerning how I plan to navigate the complex terrain ahead. So first, I present the high-altitude view and in the next section a detailed, chapter-by-chapter guide.

⁴² Lawyers call this the rule of effectiveness. See, for instance, Wenar, Blood Oil, 74. ⁴³ For the last two decades, global justice theorists have argued that international rules perpetuate corruption, so this is fairly well-worn territory. One common strategy is to argue that international privileges, such as the International Resource or Borrowing Privileges, should only be available to those governments that are democratically elected. Also there should be more oversight to ensure that funds borrowed are demonstrated to be of benefit to people. A common argument is that more accountability and oversight mechanisms should be in place. For excellent treatment see, for instance, Singer, One World and Pogge, World Poverty and Human Rights. Leif Wenar offers several further innovative arguments and ideas on these topics in Blood Oil. In other works I critically discuss these arguments. See, for instance, Gillian Brock, “Towards Less Dirty Trade, More Human Rights Protection, and More Public Accountability over Resources,” Philosophy and Public Issues, 7 (2) (2017): 17–38. See also, Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009), chapter 5. This book is much more comprehensive in discussing multiple forms and drivers of corruption (not just international structures, laws and institutions) and how we should address a full range of corrupt activities.

16

   

1.6.1 The Overall Project In this section I give readers an over-arching sense of how the argument is developed. This project aims to blend normative and real-world tools to yield a normatively justified account of how to assign responsibilities for addressing corruption. We should not underestimate how important a deep understanding of how to address corruption effectively actually is to the overall project. What we ought to do concerning addressing corruption must track evidence about the kinds of interventions that are likely to be effective. Such understanding is also crucial to assigning responsibilities to particular agents fairly. Clarifying what is effective at addressing corruption is an important precursor to arguments for claims about who should do what for whom. So, in short, getting clear on what needs to be done is important for a discussion about who should do it. Throughout the book I introduce different case studies to illustrate the multiplicity of corruption risks we face and how they manifest to thwart global justice efforts. As we come to appreciate, corruption takes many forms and many tools are needed to address it. These examples illustrate the complexities involved and the details of what needs to change in particular sectors to tackle particular corruption problems while also illustrating some dominant commonalities. All these kinds of details are necessary for the main normative project of arguing for contentful claims about particular agents’ responsibilities. Early chapters make the case for why we should care about corruption and introduce my normative framework. In Chapter 2 I show how corruption undermines global justice efforts and therefore should be firmly in view in global justice studies. To make these points I use the case study of corruption in the water sector. A specific case study allows us to appreciate specific costs of corruption and how to address corruption effectively, by exploring details of what needs to change and how to make change happen. We can then understand the importance of active civil society at the local level in the struggle against corruption. We can also see how international efforts at assistance can be particularly effective when they support local agents and organizations. In Chapter 3 I continue these themes, by discussing the role states must play in contributing to resilient communities that are human rights sustaining. We come to appreciate that combating corruption and realizing human rights are closely connected and mutually reinforcing. States have important contribution requirements that derive from the necessary conditions for their own claims to exercise power legitimately. These requirements give rise to important obligations to support credible mechanisms for implementing justice here and now, including through projects aimed at fulfilling human rights. As I argue in Chapters 4 and 5, there are such credible mechanisms for tackling corruption effectively. In Chapter 4 I canvas some of the impressive insights on how to address corruption. Chapter 5 analyzes how well these insights have been brought to

, ,   

17

bear on real world initiatives, treaties, policies and other measures, so we can assess the effectiveness of these corruption-reducing mechanisms. I argue that the mechanisms have an impressive track record of success so far. If they gain further support from key actors, they would be able to accelerate progress. The conjunction of claims from earlier and later chapters yields the central argument for the important obligation we have to join in and join up, ideas to be explored in more detail in Chapters 5, 6, and 7. In Chapter 5 I cover some current arrangements that aim to curb corruption, such as laws, international agreements, and other initiatives that are experiencing impressive success. As we see in Chapter 6, particular areas are good focal points for action as they target key issues or are likely to have good spillover effects, such as in the case of targeting secrecy jurisdictions. Illicit flows are a massive driver of corruption around the world. They facilitate organized crime, tax evasion, and other corruption-relevant activities. So, focusing on agents and areas that enable these forms of corruption is particularly worthwhile. Chapter 7 broadens the analysis and draws together many salient considerations from previous chapters to offer a unified approach to responsibility assignments. Here I also offer an original framework for navigating our forward-looking action responsibilities, as we build relevant collaborations to form corruption-resisting communities. Chapter 8 deals with key anticipated objections to the account and recommendations offered, along with outlining some future directions for the field.

1.6.2 Chapter-by-Chapter Overview Having provided a high-altitude map of the project, I turn now to a chapter-bychapter overview. As I show in Chapter 2, corruption plays an enormous role in sustaining global injustice and hinders efforts aimed at remedying global deprivation. One of the greatest obstacles to wellbeing in developing countries is a lack of clean water, resulting in many avoidable deaths every day.⁴⁴ Water and sanitation services are also vital for sustainable pro-poor development. Around 32 percent of the world’s population lacks access to safe drinking water and basic sanitation.⁴⁵ Although billions of dollars are spent on developing water resources

⁴⁴ Transparency International, Global Corruption Report: Corruption in the Water Sector (Cambridge: Cambridge University Press, 2008). Available here: https://www.transparency.org/en/ publications/global-corruption-report-2008-corruption-in-the-water-sector; Transparency International, Building Integrity to Ensure Effective Water Governance (Berlin: Transparency International, 2008) Available here: https://www.transparency.org/en/publications/policy-position-03-2008-building-integrityto-ensure-effective-water-govern. ⁴⁵ Transparency International, “World Water Day: Corruption in the Water Sector’s Costly Impact,” Transparency International, 21 March, 2016. Available here: https://www.transparency.org/ en/news/world-water-day-corruption-in-the-water-sectors-costly-impact.

18

   

and services, a large amount of this investment is lost to corruption every year.⁴⁶ After tracing how corruption in the water sector exacerbates global deprivation, I outline some key parts of my global justice framework. This allows us to appreciate how to target corruption-facilitating features. As I argue, effective states and civic participation play an especially important part in our quest to reduce global injustices of several kinds, including corruption. I show why the efforts of local actors are particularly important and sketch how international agents can strengthen local efforts. As we come to understand with the case of corruption in the water sector, specific details can be extremely useful in analyzing how to assign responsibilities fairly. This is the focus of later chapters, especially Chapter 7. So, Chapter 2 begins to assemble the normative tools we need for the larger project. Chapter 3 continues this work. Chapter 2 emphasizes the important role domestic actors must play in addressing corruption, and Chapter 3 focuses on the complementary roles for international agents, especially in supporting these domestic actors. Chapter 3 begins by taking readers on a purposeful journey that challenges two core sets of assumptions that underlie our state system. In searching for a compelling justification for states’ rights to self-determination and common assumptions about compatriot favoritism, we see that the justification must include requirements to contribute to resilient communities that are human rights sustaining. Obligations to contribute to global arrangements that are human rights sustaining must feature in any credible justification for why state’s selfdetermination has standing. I also argue that our human rights practice is an attractive normative vehicle for realizing justice goals here and now. I consider and rebut some anticipated objections to this view. Another important theme from Chapter 3 is that combating corruption and realizing human rights are intimately connected and mutually reinforcing. This chapter also provides defense for the claim that we have obligations to support aspects of our human rights practice that are credible mechanisms for implementing justice. To assess whether our human rights practice delivers on the promise in the case of corruption we examine core features of that practice with regards to corruption. Chapter 5 focuses on that issue and, as an important part of that assessment, Chapter 4 canvases research on addressing corruption effectively. In Chapter 4 we gain an appreciation of the many mechanisms that are needed to counter corruption. Because there are multiple forms of corruption, controlling it requires several kinds of interventions and many agents will be involved in such interventions. As we come to appreciate, where the levels of corruption in a particular society are low, a vast array of mechanisms and agents are involved in ⁴⁶ Transparency International, “World Water Day: Corruption in the Water Sector’s Costly Impact,” Transparency International, 21 March, 2016. Available here: https://www.transparency.org/ en/news/world-water-day-corruption-in-the-water-sectors-costly-impact.

, ,   

19

controlling it.⁴⁷ Chapter 4 includes coverage of at least ten important areas that require attention in our quest to address corruption. These include the importance of effective accountability mechanisms, appropriate transparency embedded in supportive contexts, and good institutional design. Promoting ethically robust processes, procedures, expectations, and institutions are also significant. Ensuring appropriate training is in place for employees, so they can uphold corruptioncurbing standards and professional conduct, is similarly central, as is the need for robust procedures that can govern conflicts of interest. Independent oversight and monitoring will be crucial to sustained success of all interventions. When corruption involves a collective action problem, special attention is needed to reform social norms. Forming social action coalitions can be especially helpful in addressing several varieties of corruption. More generally, reducing corruption requires strong coalitions of stakeholders, including sector professionals, civil society organizations, and communities. The research survey also allows us to appreciate the many agents that have a role to play and therefore the range of actors that will potentially be in view as we move to the project of exploring agents’ responsibilities. In Chapter 5, I examine some of the legal and human rights tools that have been developed to take account of the empirical knowledge canvassed in Chapter 4. Pre-eminent among those tools is the United Nations Convention on AntiCorruption (UNCAC), the most comprehensive agreement that guides international and domestic anti-corruption efforts. I also discuss the mechanisms included for holding state parties to account for their performance with respect to the requirements of UNCAC. UNCAC covers a full range of activities including prevention, international cooperation to return stolen assets, criminalization of certain offences, and combating corruption in routine government operations. UNCAC is an impressive accomplishment for several reasons. Despite all the diversity we find among peoples of the world, the convention has been able to secure agreement on universally recognized acts of corruption and ways to address corruption all within one comprehensive framework. Not only does it foster continuous learning and international exchange on effective corruption-curbing practices, but the implementation review mechanism provides good opportunities for accountability and assistance, in efforts to strengthen legal and regulatory regimes’ abilities to fight corruption. States have important obligations in relation to UNCAC. If states fulfill their obligations we make significant progress in creating the framework for facilitating resilient, low-corruption societies. I also evaluate how effective UNCAC has been so far in delivering on its promise and discuss some compelling reasons to be optimistic, based on notable progress so far. ⁴⁷ See, for instance, Michael Johnston and Sahr Kpundeh, “Building a Clean Machine: AntiCorruption Coalitions and Sustainable Reform,” World Bank Institute Research Working Paper 3466 (2004): 2.

20

   

Another large real-world policy area that has been making significant corruption-curbing progress is that of Multi-stakeholder Initiatives. We cover the original prominent initiative—one that developed to take account of high levels of corruption in the lucrative extractive industries—which paved the way for others to follow. Corruption in the extraction of high-value natural resources often fuels conflict and social tension, making the goal of securing peaceful and inclusive societies quite unachievable. So focusing on corruption in this sector seems especially worthwhile. We also cover corruption in the construction sector and an important Multi-stakeholder Initiative that has developed to address it. Construction is an area often plagued by high levels of corruption, which can result in defective and dangerous projects that undermine a nation’s beneficial social and economic development. To understand where the corruption risks lie, we explore various stages in the life cycle of construction projects, including preparing a proposal for a construction project, tendering, implementation, and operational phases. Once we understand the kinds of risks involved at each stage, we can appreciate why the Multi-stakeholder Initiative that operates in this sector, namely the Construction Sector Transparency Initiative, has been effective. So, by the end of Chapter 5 we should appreciate that there are some well-developed collaborative frameworks for curbing corruption. In many cases a core obligation is to join in and join up to form stronger coalitions in order to amplify gains. In addition, the rich texture provided by the case studies gives us a good appreciation of the many agents who could play a role in corruption-reducing efforts. They also help us identify specific agents who will have particular kinds of responsibilities, given specific kinds of corruption risks. This will be useful as we begin the normative project of assigning responsibilities to reduce corruption. In Chapters 2 and 3 I argue for important normative positions, such as that everyone has duties to support institutional schemes already in existence that either are delivering effectively on core components of justice or are credible prospects for doing so here and now. This follows from our duties to support the maintenance or bringing into being of institutions that can secure justice, in virtue of the requirement that we should seek fair terms of cooperation with others. As I argue, unwillingness to play a role in supporting what justice requires would be unfair. This gives us important reasons to care about how well our existing administrative structures do in securing justice and how they can be improved if there are important deficits. Chapters 4 and 5 show that there are some impressive real-world frameworks that we should support. There are also useful mechanisms available for improving on those frameworks, should areas for enhancement be identified, as is often appropriate for processes involving continuous learning. While the constellation of current arrangements is successfully reducing corruption in some sectors, in other areas it would seem that there is still a long way to go. In Chapter 6, we examine one area in which there is significant room for

, ,   

21

progress. Increasingly, corruption has become an international matter. Given current global financial arrangements, the proceeds of corruption can easily be transferred out of the countries in which corruption occurs. Various professionals play an integral role in facilitating these transfers. Illicit flows are a massive driver of corruption around the world, helping those who make use of offshore options to evade the rule of law in the jurisdiction where they reside. Focusing on activities and agents that enable illicit flows is particularly worthwhile, as we can then appreciate the key agents whose activities currently contribute greatly to corruption and where reforms are urgently needed. A detailed case study reveals that accountants, lawyers, bankers, and other financial professionals will have important responsibilities to assist with reforms, given the ways in which they have contributed to, benefit from, and have capacity to fix, corruption. Considering their professional responsibilities adds weight to the argument. This case study serves as a good illustration of key principles that can be applied to fair assignments of responsibilities in this and other cases. There are further important reasons to focus on tackling corruption in this area. The scale of corruption is huge. Stemming and recouping losses here would also release resources that can assist in addressing global justice goals, such as fulfilling human rights and addressing global poverty effectively. While we focus on the role of tax professionals as key enablers, similar arguments apply to other service providers, such as realtors and those who trade in high value assets, as we explore. In Chapter 7 I synthesize and build on previous points to address the normative questions of who ought to be responsible for taking actions to combat corruption. I discuss some of the factors relevant to sharing responsibility for tackling corruption fairly. While everyone might have some role to play, our responsibilities to take action differ greatly, with some having much more important roles to play. Responsibilities track a variety of factors including specific corruption risks that we are directly able to address, capacity to assist, contributions to the corruption, benefits derived from corruption, role-related responsibilities, and assistance already provided. In the chapter I give some textured analysis of how agents have different roles to play in tackling responsibilities to reduce corruption. Starting with the responsibilities for states, we move on to discuss the responsibilities that professionals and professional organizations have, especially those professions that have among their members some of the worrying enablers of corruption or whose members are able to address specific corruption risks, given the role they play in specific processes. We then discuss responsibilities that many actors have in virtue of the ways Multi-stakeholder Initiatives are structured. Drawing together material from earlier chapters I argue that agents from civil society, business, professions, and government should all play their assigned part in supporting anti-corruption measures so that they can work effectively. We also have obligations to enlarge capacities to address corruption. Our different capacities, roles, and situations can also be grounds for obligations to assist in creating

22

   

capacity in different ways as well. As I argue, the different ways of creating capacity also amplify responsibilities. I offer a framework that can assist with particular agents’ responsibility assignments in certain cases. The framework blends insights from throughout the book. It is a complex model of responsibility that is action-oriented and forwardlooking, and we can use it in determining responsibility for a wide range of actors, including local officials, CEOs of multinational corporations, lawyers, accountants, bankers, engineers, citizens, and many more diverse agents. There is often much that a person should consider doing, and this can give rise to a sense of obligation overload. We can resolve this problem by keeping in view our core goal. We should aim to create resilient communities and mechanisms that support human rights. Forming broad coalitions and joining up with others often makes our task more manageable, while at the same time amplifying our efforts. Joining up with others making complementary efforts increases our power to create corruption-curbing capacity. Our obligations involve joining in, joining up, and contributing to the joint venture. Chapter 8 addresses some key objections to my approach and policy recommendations. One set that stands out as important concerns the thought that, in arguing for my position and recommendations, I have ignored relevant cultural differences. Considering the wide diversity of ways in which humans have organized themselves, is it inappropriate to assume all cultures should support targeting the corruption I identify as worrisome and should adopt the corruption-curbing measures for which I advocate? For instance, many cultures seem to include norms about the appropriateness of showing special favor towards members of specific groups, such as those with whom one shares tribal, religious, or ethnic associations. A person who occupies a position of power should extend the benefits of power to enrich the fortunes of those in their networks of relationships, or so it is maintained. In addressing such lines of objection I make several arguments. We can certainly challenge how widely accepted some of those purported cultural norms are and whether ordinary citizens from those cultures really do endorse such norms as appropriate ones for the public sphere. Furthermore, in places where such norms do seem widespread, people often comply with them because they believe they are too difficult to change, given how deeply embedded they seem to be and perceptions about the limited efficacy of individual actions. In such cases we have collective action problems and we have a number of resources that can be, and have been, brought to bear in challenging those cultural norms and reforming them. I remind the reader about some of these resources, show how they have contributed to progress around the world, and identify some of their core features that can be applied to other contexts. In early chapters, particularly Chapter 2, I introduce the kind of corruption that will concern me in this book, illustrated by many examples throughout the work.

, ,   

23

I leave to the Appendix further discussion of conceptual issues for those who are interested in such matters. Corruption entails a deficiency, and when we are talking about corruption involving humans rather than inanimate objects, like computers, the deficiency is typically a moral one.⁴⁸ There is no single deficiency common to all kinds of corruption, as the kinds of corruption are so diverse, so it is difficult to find one account that applies to all cases. Some of this difficulty is explored in the Appendix. As my primary concerns in this book are normative rather than conceptual, I believe discussing these issues earlier in the book would interrupt the flow of building my argument, which is why I have relegated discussion of these topic to an appendix. As I argue, a sufficiently clear account of the corruption that should concern us is available and is more than adequate for the purposes of my normative project, so some conceptual boundary fuzziness should not distract us from the important work the normative project sets out to accomplish. As I also argue, it is clear what sorts of corrupt behaviors are worrisome. Important international frameworks also assist us in identifying exactly which behaviors to target. So, in practice, there is sufficient clarity on which practices are accurately labeled as corrupt and, more importantly, where we should focus our energies in aiming to reduce corruption that thwarts global justice efforts.

1.7 Why Should Normative Theorists Be Interested in This Project? Building on my previous body of work and approach to global justice, with this book I aim to contribute to discussions about reducing global injustice at several levels. One important focus is to offer empirically informed, normative policy recommendations concerning how we can reduce corruption in our actual world. Corruption has been a neglected issue by global justice and normative theorists and so there has not been as much of the kind of empirically informed normative policy discussion as there should be. Second, theorists who are concerned to bring about justice have not focused much on how to remove immense, fundamental barriers to realizing justice. Widespread corruption is one important barrier of this kind. Corruption is not just an injustice (as it is in the vast majority of actual cases), but it also acts as a barrier to achieving justice. Justice theorists who hope their work has practical traction have spent a great deal of energy on what justice might look like, focusing on how benefits and burdens should be distributed in society, how institutions ⁴⁸ However, if for example an organization is corrupt then attempting to corrupt it may be morally praiseworthy. This non-standard case is treated in the Appendix.

24

   

should be structured, what rights people should have, and so forth. They have not been much concerned with what might be called omnipresent or fundamental barriers to the achievement of justice, such as corruption, in either their policy, applied, or theoretical studies of justice. This book aims to expand the normative terrain of justice in these (and other) important ways. Third, I address the complex issues surrounding taking responsibility for reducing the injustices of corruption. I offer constructive suggestions about how we can assist and how to allocate responsibilities fairly among the many agents who can and should play a role in reducing corruption risks. Fourth, I offer a novel framework for helping us evaluate and assign responsibilities for change. I develop a model of action responsibility that integrates a variety of concerns that are relevant when distributing responsibilities. The kind of responsibility I am primarily concerned with in this work is the responsibility to take action. The idea of action responsibility captures central points of what is at stake: who should act and what they should do. What should be done is obviously a key issue in determining the content of an obligation. Clarifying where the corruption risks lie is very often essential to understanding what needs to be done to reduce relevant corruption dangers. Armed with this understanding, we can often better appreciate who is in a position to act with regard to particular vulnerabilities.⁴⁹ There is a place for what is often called the liability model of responsibility, which is backward-facing and is focused on causation of significant harms.⁵⁰ Those who perpetrate grave harms, such as stealing state assets and thereby denying a country the means to address poverty, should rightly be held to account through the criminal justice system, legal frameworks, or regulatory schemes. There is certainly discussion of holding people to account for their corruption crimes in this book, and the obligations many other parties have to assist in such cases (such as when stolen state assets must be returned). However, the main kind of responsibility I will focus on here involves the much harder issue of who should take action now to transform arrangements to be more corruption-resilient in future. This account of responsibility is forward-looking and is more difficult to grapple with in many ways because of the complexity and range of activities that can and should be taken to prevent future corruption. I discuss the action responsibilities for various agents including state actors, multinational corporations, citizens, professional bodies, and members of professions. By considering central dimensions relevant to effective corruption-curbing measures, we can come to appreciate who should do what. As one example, I argue that many

⁴⁹ For more on how my approach differs from that of others’ see the footnotes in Chapter 7. ⁵⁰ For a succinct introduction to the liability model and how it differs from the forward-looking approach to responsibility that we focus on here, see Iris Marion Young, Responsibility for Justice (Oxford: Oxford University Press, 2011).

, ,   

25

agents have various capacities relevant to controlling corruption risks, and these ground responsibilities to play our part in the existing initiatives aimed at creating capacity. We help create and enlarge capacity by participating in the many credible mechanisms that are helping to reduce corruption. I also offer a novel framework that provides guidance when responsibilities are less clear. The framework offers eight central questions for evaluating our action responsibilities. It also aims to reduce conflicts we may confront as we grapple with a sense of obligation overload. Our overarching goal should be to create resilient communities and mechanisms that are human rights supporting. Joining our efforts with those of others and forming broad coalitions often helps us reduce tensions in deciding what to do here and now, as we navigate the contours of our obligations to contribute to the corruption-curbing enterprise. There are many other reasons normative theorists should find my project valuable, and here I very briefly mention only another three. I emphasize a local agent-empowering approach to issues of human rights under-fulfillment that is essential to tackling a range of global injustices, in addition to several other layers of relevant considerations. I also discuss some of the special responsibilities particular agents have in reducing global injustice. In addition, I show how participating in various practices and initiatives not only is important for realizing global justice but also is partly constitutive of it. By appreciating how this works in practice and by illustrating with cases, we gain insights that can considerably improve our theorizing about global justice matters. To motivate normative theorists to persevere through some of the sections that deal with empirical research especially on curbing corruption, I emphasize that to make the kind of contributions outlined we must be sufficiently well informed by key research from relevant disciplines. The empirical information presented is important to building the argument. So, the manuscript appropriately discusses and systematizes content drawn from a wide range of existing literatures. My target audience, largely those interested in justice from a philosophical point of view, will not be familiar with much of this literature. Material from early chapters in the book (especially Chapter 4) is necessary to lay the ground for the normative analyses to come. Bringing that literature to the attention of normative theorists should help better inform theorizing about global justice. To further motivate my approach, it might be useful to draw parallels between the early years of trying to bring those concerned with climate science and policy into conversation with normative theorists in efforts to broaden their awareness of core concerns. Normative theorists needed some accessible introductory immersion in relevant literatures familiar to climate scientists and policymakers, so that they could make more empirically informed, substantive recommendations that were sufficiently attuned to effective and feasible policy options. As well, climate scientists and policy makers often wanted and needed accessible treatment of the normative issues involved in formulating policy. Doing the multi-disciplinary

26

   

review required to develop policy on complex issues with normative dimensions often has to confront the issues I have been outlining about making complex material from a range of disciplines sufficiently accessible to multiple audiences. I make clear that this book is just a start on the many problems in this important field and I encourage others to join me in completing the work, indicating where the field would benefit from further research. By the end of the book, I hope to have said enough to motivate interest in this neglected area and to stimulate others to work in this rich terrain. I do not claim to have attended to all the issues here. But I do claim to have made a good start by offering to normative theorists sufficient tools to see that: 1. They ought to care about the corruption issues discussed in the book. 2. This is a rich area for fruitful further work. 3. This book provides many of the resources for taking this important project further and offers guidance on where to look for more. With these goals in mind, it is important to offer readers a broad understanding of corruption phenomena, its drivers, the forms it takes, its harmful consequences, its connection with human rights, the variety of anticorruption measures available, the fact that combating corruption requires multiple tools, and so on. Much of the material presented in early chapters will be new and helpful to readers with normative interests. We need the kind of comprehensive treatment I offer in this book if we are to make defensible, empirically informed normative policy recommendations. As well, we need such knowledge to understand the responsibilities we have to take corruption-curbing action.

1.8 The Central Kind of Corruption in View in This Project: A Clarification While those interested in normative issues are my primary audience I am hoping that many in adjacent areas will find value in the book as well, as we work toward a multi-disciplinary understanding of the complex issues involved with taking responsibility to reduce corruption. So, the book is written in a reasonably accessible way, with much of the scholarly engagement with other authors relegated to footnotes. For those interested in matters such as other theorists’ positions in the corruption and philosophical literatures and how my position might differ from theirs, I encourage them to explore such discussions in the notes. Given my aims and target audiences, I have placed my focused conceptual chapter on defining corruption in an appendix for several reasons. First, there is a trade-off between accessibility and drilling down into focused philosophical conceptual work. In this book I have firmly opted for accessibility, aiming for a wide audience that will be supplied with the resources

, ,   

27

they need to continue work in this neglected area. So, I am reluctant to go too deeply into conceptual analyses that might throw the reader off-track. Getting the right balance between clarifying core concepts and advancing the main argument in an accessible way is obviously worthwhile, and this book is my attempt to do so. In addition, as an author, one needs to make assumptions about what the reader already knows, cares about, wants to know, and so forth. Inevitably, choices must be made about what one can presuppose or put to the side in focusing on the central journey the author imagines the reader wishes to take. Having taken quite a few philosophy and politics students through this field, the resulting manuscript is my judgment of what they need to know to get to where I think they want to, and should, end up, relegating what they might reasonably judge to be a side-trip to a place that won’t impede the core mission. Having said all of that, I make a few comments about the concept of corruption I use in this work and the kinds of approaches I find helpful, as will be discussed throughout the book (but especially in the Appendix and Chapter 8). The central kinds of corruption that are most troubling and that concern me in this work are those in which agents use public office or professional roles, typically for some personal or political gain, in ways contrary to the purpose of that office or role, thereby abusing their entrusted power. This focus will cover a large assortment of activities, including inappropriate favoritism for associates, state capture, bribery, various kinds of conflicts of interests, attempts to expand influence improperly, fraud, influence peddling, and collusion in procurement processes. Because agents can be engaged in a range of inappropriate activities in their public or professional roles, the range of activities with which we are concerned is wide. Cases are introduced throughout the book that make clear that there is corruption in play and why these kinds of widespread phenomena should be of concern. The United Nations Convention Against Corruption (UNCAC) is one very important international tool that I think can greatly assist us when it comes to taking corruption-curbing actions, as I discuss in more detail in chapters to come (such as Chapters 5 and 8). Given that almost every state in the world has agreed to be bound by UNCAC’s terms, and to be held accountable for their performance in relation to it, there is considerable potential power here that I explore. Importantly, UNCAC does not dwell on trying to define the overarching category of corruption as a term. Rather, its approach is to give accounts of a plurality of corrupt activities, especially when they ought to be criminalized, such as bribing public officials, misappropriation of property by a public official, money laundering, obstruction of justice, and embezzlement. It also recommends that states consider criminalizing a range of other activities and offers perfectly workable accounts of how to identify the problematic activities. The approach UNCAC adopts is an excellent one, considering both that the convention is supposed to govern all states across the world and that securing agreement can be challenging in such international contexts.

28

   

In this chapter and others to come, I offer many examples of corruption that should be of concern to global justice theorists. I think we can get agreement that the core cases discussed in this book all fit the over-arching account of corruption that is my focus and can serve the function of offering us some real and important problems to get to work on. In all cases, agents are clearly using their public office or professional roles for some personal or political gain, in ways contrary to the purpose of that office or role, thereby abusing their entrusted power. It is enough to make a start on my normative project that we have some very clear cases that are troubling and they can serve as examples of what we should target when we aim to transition to more corruption-resilient arrangements. There is much conceptual work that remains for philosophers. In the Appendix, I show how it is difficult to find an account of corruption that covers all cases. Even when we narrow our focus to a particular domain, such as political corruption, drawing tight boundaries around corruption and neighboring dysfunctions is often fairly challenging. In future work, researchers might like to focus on trying to grapple with such boundary problems. We could also explore the many different types of corruption in more detail, focusing on activities such as bribery, conflicts of interest, market-based corruption, influence peddling, cronyism, and so forth. While developing more theories of corruption and its many associated concepts is worthwhile, the normative import of corruption has been neglected in major philosophical debates about justice. Clearly, one cannot do all the important work that needs doing in one book and I have chosen to work on the part of the field that, in my view, would make the biggest contribution to those currently suffering the adverse effects of corruption injustices. I believe the conceptual tools, cases, and analysis offered all make abundantly clear why, in my core examples, there are corruption injustices in play that should be of concern to normative theorists. That will serve sufficiently well for the project in view.

1.9 Conclusions This chapter has canvased some of the many different forms corruption can take, providing some specific examples so that we can gain an appreciation for the rich variety that occurs in both affluent and poor nations. We saw, as one example, how corruption results in huge costs to the political system. The improper dependence on financial contributions diverts the US Congress from its proper purpose to strongly favoring the interests of the wealthy and well-connected. We should not be surprised to learn that in such contexts governments are quick to offer bailouts, subsidies, exemptions, reduced tax rates, and other favors to those who generously fund their campaigns, often at the expense of ordinary citizens.⁵¹

⁵¹ Salter, “Crony Capitalism, American Style: What Are We Talking About Here?”.

, ,   

29

I also offered an introduction to the kind of corruption of interest here and some of the diverse factors that facilitate it. In addition I offered two maps that help orient the reader to the terrain ahead. I highlighted why normative theorists should find my project of interest. And I clarified the relationship between the conceptual and normative work that needs to be undertaken in this vast and under-theorized area. While I have traced some of the variety of forms corruption can take, my focus in chapters to come is on the kinds of corruption that thwart efforts to reduce global injustices. In the next chapter I begin to show why this should be especially troubling to those in global justice studies. Consider, for instance, how the Sustainable Development Goals have an ambitious agenda. They aim to eliminate poverty and achieve a world that is environmentally secure for future generations, along with being more prosperous, equal, just, peaceful, inclusive, and better governed. To achieve even modest improvements in education, health, sanitation, water quality, sustainable energy, let alone more ambitious goals of mitigating climate change risk or achieving sustainable cities and ecosystems, large infrastructural projects are needed. The sums required for this investment are enormous, but just as worrying are the estimates of how much will be lost to corruption. Approximately one third of the US$22 trillion needed to cover the most basic needs over the next 10 years could be lost to corruption, with a further third lost to mismanagement and inefficiency, according to UN estimates.⁵² Quality infrastructure is needed to improve lives, to transform economies, increase employment, and provide the safe housing, environments, and human settlements needed for all to flourish. Furthermore, considering the role that corruption plays in fueling conflict and social tension, peaceful and just societies are unlikely to come about without tackling corruption. For these sorts of reasons, the fight against corruption should be a high priority to those concerned with global poverty eradication, peace, security, and justice.

⁵² Patrick Keuleers, “Fighting corruption in infrastructure – a must for achieving the 2030 Agenda,” UNDP Anti-Corruption For Development, December 24, 2015. Available here: http://anti-corruption. org/2015/.

2 Corruption and Global Injustice 2.1 Introduction Corruption is one of the most prominent topics of global concern among ordinary citizens today. Recent polls from the pre-Covid era found that corruption was rated as the most troubling problem, ahead of poverty, unemployment, and climate change.¹ One of my aims in this chapter is to show that corruption is a huge problem that global justice theorists have not focused on sufficiently well, given its persistence, scale, and widespread devastating effects. In fact, corruption is intricately involved in multiple global injustices and significantly hampers efforts to address these. Highlighting such connections should help global justice theorists appreciate that they should be more concerned with efforts to eliminate corruption than they currently are. In addition, my analysis in diagnosing some of the core injustices also sheds light on new ways to assist with global deprivation. While there are many forms of corruption, the kinds of corruption that are of most concern to me in this project are those in which people use public office or professional roles in ways that are contrary to the purposes of that office or role, abusing their entrusted power, typically for some personal or political gain. I explore some of the worrying forms corruption takes for many of the world’s most vulnerable people. To understand the implications of core themes and analysis, a detailed illustration is helpful. In this chapter I discuss the case of corruption in the water sector. Corruption in this sector has many faces including grand fraud, embezzlement in infrastructure development, policy capture in the allocation of water resources, bribery, and malpractice in water service delivery. I discuss a sample of such behaviors. Forty percent of the world’s population currently lives in areas described as under water stress and this is forecast to rise to

¹ United Nations, “Opening Special Session on Corruption, General Assembly Adopts Political Declaration with Roadmaps to Help Countries Tackle Bribery, Money-Laundering, Abuse of Power,” United Nations, June 2, 2021. Available here: https://www.un.org/press/en/2021/ga12329.doc.htm. For the most up to date results check the IPSOS website which runs monthly surveys titled “What Worries the World,” available at: https://www.ipsos.com/en/what-worries-world-july-2022. For older data see also Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015), xiii; and WIN/Gallup International, Corruption Tops the List as the World’s Most Important Problem According to WIN/Gallup International’s Annual Survey (Bulgaria: Gallup International Center for Public and Political Studies, 2014) available here: https://www.gallup-international.bg/en/32507/cor ruption-tops-the-list-as-the-worlds-most-important-problem-according-to-win-gallup-internationalsannual-poll/.

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0002

   

31

more than 65 percent within ten years.² Such pressure is likely to increase already fierce competition for water and lead to significant problems related to water quality. Corruption threatens countries’ abilities to enjoy a fair and sustainable water future. We can only achieve the water-related Sustainable Development Goals and realize human rights related to water and sanitation if integrity in these sectors is substantially improved and corruption addressed.³ Using the case study of corruption in the water sector I illustrate how corruption thwarts global justice. Drawing on this case study allows me to trace several important factors that deserve analysis such as the costs corruption inflicts on the global poor. It also offers insights on how to address corruption effectively and how change happens. I introduce this case study in Section 2.2 and it runs as a useful backdrop to illustrating key points throughout the chapter. After analyzing how corruption in the water sector exacerbates global deprivation, in the third section I outline some central features from my global justice framework so we can appreciate how corruption undermines efforts to address global poverty, still one of the greatest sources of human suffering today. Here we see why effective states and civic participation are especially important and why supporting local agents has a crucial role to play. While I give a brief synopsis of core elements from my account of global justice, it is important to note that my key points about corruption and justice fit with many theories of justice, a point that will become even more obvious in Chapter 3. Providing some detail to at least one account of global justice is helpful to understand how destructive corruption is, as I discuss in Section 2.4. That section shows how corruption undermines attempts to reduce global injustices. In Section 2.5 I draw on insights from empirical studies, practitioners, and advocacy groups, to highlight some of the main areas needing reform in our quest to reduce corruption. Among the many common findings we learn that reducing corruption requires strong coalitions of stakeholders, including sector professionals, civil society organizations, and communities. I show how these insights apply to constructive change in the featured case study on corruption in the water sector. As we come to appreciate, there is some important empirical detail that is useful in our quest to understand how fair responsibility assignments can be made, a task that becomes a focus of attention in later chapters. In this chapter I begin to develop the normative tools we need for the larger project. Chapter 3 continues this work. While Chapter 2 emphasizes the role of domestic actors in addressing corruption, Chapter 3 focuses on the

² Water Integrity Network, Engaging with Partners for Change: Adapted Strategy 2020–2022 (Berlin: Water Integrity Network, 2019). Available here: https://www.waterintegritynetwork.net/annualreports/. ³ For some further discussion of these topics see Peter McIntyre, Water Integrity and the Human Rights to Safe Drinking Water and Sanitation (Berlin: Water Integrity Network, 2016). Available here: https://www.waterintegritynetwork.net/2016/08/22/human-rights-to-water-sanitation-integrity.

32

   

complementary role that international agents should play in supporting these domestic actors. The example of water-related corruption introduced in this chapter helps illustrate several points to be developed in chapters to come. In later chapters I also examine corruption in additional sectors such as construction, extractive industries, and finance. As we learn more about corruption risks in different sectors and ways to address these, we accumulate analysis that will be integral to the responsibility sharing project.

2.2 Corruption and Global Deprivation: The Case of Clean Water As we saw in the previous chapter, some of the worst forms of corruption concern inappropriate influence. This influence gains a foothold through multiple mechanisms such as funding political campaigns or lobbying, often resulting in regulation failures that produce weak institutions. Political donors have frequently thereby threatened public interests, helping the well-connected to advance their agenda and shirk their responsibilities. While these forms of corruption are to be found in all regions of the world and they are troubling wherever they occur, they are especially troubling when they defeat our efforts to address global poverty. One of the largest scale global injustices we currently face is that of poverty.⁴ Approximately 1 billion people currently live in extreme poverty (as measured by living below the $1.90 (US) per day poverty line).⁵ Many of these poor people live in developing countries (or countries that are classified as low-income) and those countries especially need effective states that can actively manage beneficial development and pro-poor economic activities that reduce poverty.⁶ Corruption significantly undermines states’ abilities to be effective, as we see over the next two sections.

⁴ Andy Sumner, “Where Will the World’s Poor Live? Global Poverty Projections for 2020 and 2030,” Institute of Development Studies In Focus Policy Briefing 26 (2012): 1–5. Available at: http:// www.ids.ac.uk/files/dmfile/InFocus26-Final2.pdf. While some progress was taking place pre-Covid, the situation has worsened again as the pandemic continues to disrupt lives and livelihoods. For the current situation see the UN website for regular updates at: https://www.un.org/en/global-issues/endingpoverty. ⁵ The UN “Ending Global Poverty” website as at November 10, 2021. For the current situation see the UN website at: https://www.un.org/en/global-issues/ending-poverty. ⁶ I elaborate briefly on these connections below. These are vast topics and the interested reader might consult Duncan Green, From Poverty to Power: How Active Citizens and Effective States Can Change the World (Oxford: Oxfam International, 2008); Duncan Green, From Poverty to Power: How Active Citizens and Effective States Can Change the World, 2nd edition (Rugby, UK: Practical Action Publishing, 2012) and Gillian Brock, “Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developing World and Why,” in Diana Meyers (ed.), Poverty, Agency, and Human Rights (Oxford: Oxford University Press, 2015), 119–45.

   

33

Corruption plays a huge role in sustaining global injustice and is an important obstacle to remedying global deprivation. To understand why, let’s consider a particular form of deprivation and trace the ways in which corruption thwarts our efforts. Lack of clean water is one of the greatest obstacles to wellbeing in developing countries.⁷ At least 663 million people lack access to adequate drinking water and 2.4 billion do not have access to adequate sanitation, which contributes to between 1.6 and 3 million deaths annually, many of whom are children under five years old.⁸ Contaminated water, inadequate water infrastructure, and poor sanitation facilities are leading factors in the transmission of diseases rampant in the Global South. These include malaria, dengue fever, cholera, Hepatitis A, typhoid, diarrhea, and parasitic diseases such as schistosomiasis, resulting in millions of preventable deaths and significant disabilities every year. There are also close linkages between access to safe water and several aspects of human wellbeing, including improved economic, social, security, and educational outcomes.⁹ Water and sanitation services are vital for sustainable development. Yet, around 32 percent of the world’s population lacks access to safe drinking water and basic sanitation. To develop water resources and services, between US$770 billion and $1760 billion per year is needed.¹⁰ Although billions of dollars are spent on these projects, on conservative estimates, at least 10 percent of this investment is lost to corruption every year. This shortfall has a devastating effect on the world’s most vulnerable.¹¹ In addition to the impacts on human wellbeing just canvassed, water related corruption hinders attempts to address several other global injustices, such as by undermining food security. Irrigated land produces about 40 percent of the world’s food, but “irrigation systems can be captured by the rich and powerful

⁷ Data from many important sources confirm this claim. See, for instance, the World Health Organisation’s key facts page, e.g., “Drinking Water”. Available here: https://www.who.int/news-room/ fact-sheets/detail/drinking-water. ⁸ WHO and UNICEF Reports. Cited at blog post “World Water Day: Corruption in the Water Sector’s Costly Impact,” Transparency International, March 21, 2016. Available here: https://www. transparency.org/en/news/world-water-day-corruption-in-the-water-sectors-costly-impact. ⁹ Transparency International, Global Corruption Report: Corruption in the Water Sector (Cambridge: Cambridge University Press, 2008a). Available here: https://www.transparency.org/en/ publications/global-corruption-report-2008-corruption-in-the-water-sector; Transparency International, Building Integrity to Ensure Effective Water Governance (Berlin: Transparency International, 2008b) Available here: https://www.transparency.org/en/publications/policy-position-03-2008-buildingintegrity-to-ensure-effective-water-govern. For more current data see, for instance, The United Nations, UN World Water Development Report 2019: Leaving No One Behind (Paris: UNESCO, 2019). Available at: https://en.unesco.org/themes/water-security/wwap/wwdr/2019#download. ¹⁰ Transparency International, “World Water Day: Corruption in the Water Sector’s Costly Impact,” March 21, 2016. Available here: https://www.transparency.org/en/news/world-water-daycorruption-in-the-water-sectors-costly-impact. For more information download the full Water Integrity Global Outlook Report for 2016 available at that URL. ¹¹ Water Integrity Network, Water Integrity Global Outlook Report for 2016 available at https:// www.transparency.org/en/news/world-water-day-corruption-in-the-water-sectors-costly-impact.

34

   

while spillages, leakage and bad water treatment can lead to water shortages or contaminate irrigation water”.¹² These developments can cause crop failure, threaten food security in communities reliant on subsistence agriculture, or lead to steep rises in local food prices.¹³ Corruption also impedes efforts to promote gender equality. Corruption in the water sector has a particularly significant impact on women and girls by exacerbating the consequences of existing service failures and reinforcing gender inequality. Women and girls are typically expected to fetch water, sometimes very far distances from their homes, which exposes them to considerable risk of sexual assault. There are also opportunity costs to all these gendered expectations: time spent collecting water is time women and girls could be spending on other things, such as income generation, study, or leisure. In addition, women and girls are expected to do much of the work around cleaning, cooking, laundry, and caring for the sick, so are more heavily exposed to risks associated with unclean water. Furthermore, women are often not included in decision making so their needs are frequently neglected. This can partially explain why so many girls lack adequate toilets in schools which can result in increased absenteeism.¹⁴ The United Nations has undertaken significant efforts to remedy the situation of unsafe water and sanitation. In 2010 the UN General Assembly recognized access to water and sanitation as human rights. The UN’s 2030 Agenda includes access to water and sanitation as a sustainable development goal (SDG 6), as well as requiring that there be accountable and inclusive institutions at all levels (SDG16). And yet pervasive and systemic corruption continues to drain resources from the water sector. There are many reasons why corruption frustrates efforts to provide safe water. Let’s review some of them next. For some time there has been widespread recognition that the problem of supplying clean water is not a technical problem; we have the expertise to supply good pumps, equipment, filtration facilities, dams, and the like.¹⁵ The major

¹² Mathew Jenkins, “The Impact of Corruption on Access to Safe Water and Sanitation for People Living in Poverty,” Transparency International, July 4, 2017, 10, available at: https://knowledgehub. transparency.org/helpdesk/the-impact-of-corruption-on-access-to-safe-water-and-sanitation-for-peopleliving-in-poverty. ¹³ Jenkins, “The Impact of Corruption on Access to Safe Water and Sanitation for People Living in Poverty”; Katy Mgiro and Magdalena Mis, “Kenyan Women Pay the Price for Slum Water ‘Mafias,’ ” Reuters, November 26, 2014; Water Integrity Network, Water Integrity Global Outlook (Berlin: Water Integrity Network, 2016). Available at: https://www.waterintegritynetwork.net/wigo/. ¹⁴ Nikki van der Gaag, Because I am a Girl: The State of the World’s Girls 2020— Digital and Urban Frontiers: Girls in a Changing Landscape (Woking: Plan International, 2010). Available here: https://plan-international.org/publications/state-worlds-girls-2010-digital-and-urban-frontiers. ¹⁵ John A. Allen, “Integrated Water Resources Management is More a Political Than a Technical Challenge,” Developments in Water Science 50 (2003): 9–23; Patrick Stalgren, Corruption in the Water Sector: Causes, Consequences and Potential Reform. Swedish Water House Policy Brief Nr. 4. (Stockholm: SIWI, 2006); Transparency International, Global Corruption Report: Corruption in the Water Sector (Cambridge: Cambridge University Press, 2008); Transparency International, Building

   

35

problems are related rather to dysfunction in the structures or processes of institutions that manage water supply. There are many ways in which dysfunction in the management of water resources compromises people’s abilities to meet their basic needs and much scope for graft, corruption, and systems of patronage to play a destructive role.¹⁶ Corruption infects all parts of the water delivery process from the awarding of contracts for dams, pipelines, or wells, to the maintenance of water delivery equipment and other ongoing processes for ensuring people receive reasonably priced, clean water. Each part of the water management and delivery process has a number of vulnerabilities.¹⁷ Consider first the domain of policymaking and decisions about the location of water sources. Decisions on where to place key water sources (dams, wells, irrigation pipes, and so forth) can be captured by wealthy elites with political connections, so that these decisions end up favoring their interests at the expense of the poor.¹⁸ Undue influence can also undermine effective enforcement of environmental regulations, as the well-connected can pay off inspectors to turn a blind eye or submit fraudulent paperwork, for instance when they contaminate local water supplies by dumping illegally. These problems of inappropriate influence can affect other regulations and who gets access to water. Policy can also fail the most marginalized in society by not understanding the lived reality of their position.¹⁹ In low-income, water-scarce countries, informal service providers and water cartels can be both a driver and consequence of corruption. The problems are especially acute in informal or illegal settlements such as slums where citizens are often neglected by the state. It is frequently a requirement to show secure title to land in order for a water connection to be established. However, in such areas most poor households will be unable to provide the relevant paperwork. The poor are then deprived of the cheapest source of water and this leaves them having to rely on insecure options like informal providers who sell water of questionable quality off the back of their trucks. These suppliers frequently operate outside the law and charge exorbitant prices, far in excess of the public utility rates. There are even many examples of

Integrity to Ensure Effective Water Governance (Berlin: Transparency International, 2008), UNDP, Fighting Corruption in the Water Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available here: https://www.undp.org/publications/fighting-corruption-water-sector. ¹⁶ Transparency International, Global Corruption Report: Corruption in the Water Sector; Transparency International, Building Integrity to Ensure Effective Water Governance. ¹⁷ Stalgren, Corruption in the Water Sector: Causes, Consequences and Potential Reform; UNDP, Fighting Corruption in the Water Sector: Methods, Tools and Good Practices; Water Integrity Network, Water Integrity Global Outlook. ¹⁸ Kenneth Odiwuor, “In Africa, Corruption Dirties the Water,” The New Humanitarian, March 14, 2013. ¹⁹ Mgiro and Mis, “Kenyan Women Pay the Price for Slum Water ‘Mafias’ ”; Water Integrity Network, Water Integrity Global Outlook.

36

   

officials colluding with “water mafias” and cartels to force the poor to rely on high cost, low-quality informal providers.²⁰ Procurement processes can also be fertile ground for massive corruption.²¹ Parties who have much to gain from securing contracts can engage in bid rigging and collusion. Those who are involved in purchasing decisions can demand kickbacks or bribes in order for their bids to be viewed favorably. After the tendering process is completed, costly infrastructure projects (such as dams) can be vulnerable to corruption as construction companies seek to influence decision makers to change contract terms or specifications, often by using substandard material and equipment in efforts to maximize profitability. Corruption can also be rampant beyond the construction phase.²² There are significant opportunities for illicit gains in maintenance and operations, as inspectors and providers can supply inferior goods and services by bribing the right person or engaging in collusion. Corruption can also infect the process of assigning and implementing water rights, such as when allocating turns at using community maintained irrigation facilities, permitting informal ground water extraction, or granting licenses to water providers. Budgeting processes are another area ripe for corruption, as government officials find opportunities to embezzle funds and foreign aid intended to be used for water resources management. There can also be numerous opportunities for kickbacks in nepotistic appointments to lucrative positions in water management. At the service delivery and client interface, water utility officials may request bribes to deliver water services and goods, to evade water fee payments, permit illegal connections, or to speed up the routine delivery of services and goods. Local elites can also capture water provision services and decision-making processes. Inspectors can be bribed to provide false documentation on water quality, toxicity of wastewater or substandard equipment. In defense of the many who engage in corruption in poorer countries and drawing on points made in the first chapter, we should appreciate that corruption may be a kind of coping strategy when state or legal provision of services is nonexistent or inadequate. And this is one of the main problems that should be resolved: ensuring that core services are provided and, more generally, that institutions can deliver reliably and effectively on what people need for decent lives. So, in analyzing why people lack safe water we arrive at the importance of factors that can be accurately described as considerations concerning quality of institutions, a theme which I develop in the next section. ²⁰ UNESCO-IHP, Urban Water Conflicts, Urban Water Series (Paris: UNESCO-IHP, 2012); Laurence Cockcroft and Anne-Christine Wegener, Unmasked: Corruption in the West (London: I.B. Tauris, 2017). ²¹ UNDP, Fighting Corruption in the Water Sector: Methods, Tools and Good Practices; Transparency International, Global Corruption Report: Corruption in the Water Sector; Transparency International, Building Integrity to Ensure Effective Water Governance. ²² UNDP, Fighting Corruption in the Water Sector: Methods, Tools and Good Practices; Water Integrity Network, Water Integrity Global Outlook.

   

37

2.3 What Should We Want in an Account of Global Justice? Some Key Themes Over roughly the last two decades I have been developing a framework for thinking about global justice that informs my analysis.²³ Here I have space to select only some parts of that framework that are relevant to the task of addressing corruption.

2.3.1 Institutions that Aim at Justice I start with the importance of institutions to justice. The institutions that govern our lives—whether at state or international levels—have an important role to play in structuring our prospects and so it is important that we ensure these aim to approximate just ones.²⁴ Minimally, we ought to arrange our institutions to ensure everyone is well positioned to enjoy the prospects for a decent life. There are four such central components on my account. First, we should be enabled to meet our basic needs. Second, we ought to have adequate protection for our basic liberties. Third, fair terms of cooperation should govern our collective endeavors. Fourth, we must have background conditions (especially social and political arrangements) that support these core ingredients for a decent life.²⁵ I have offered several kinds of arguments for this position. Here is one very concise summary of some central points.²⁶ Taking account of a wide variety of human living arrangements, we might start with the individual human person and consider what she needs to live a life of dignity, fleshing out opportunities, protections, and resources that are essential for such a life. While this approach gets us some core ingredients, we soon recognize that how that person stands in

²³ See, for instance, Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009); Gillian Brock, “Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developing World and Why,” in Diana Meyers (ed.), Poverty Coercion, and Human Rights (Oxford: Oxford University Press, 2014), 119–45; Gillian Brock and Michael Blake, Debating Brain Drain: May Governments Restrict Emigration? (Oxford: Oxford University Press, 2015); Gillian Brock, Justice for People on the Move: Migration in Challenging Times (Cambridge: Cambridge University Press, 2020). ²⁴ This important point is well established in prominent works such as John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). As Allen Buchanan defines the term, “an institution is a kind of organization, usually persisting over some considerable period of time, that contains roles, functions, procedures, and processes, as well as structures of authority” (Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004, 2)). I use the term “institution” slightly more broadly to include also significant practices which set up authoritative norms for interaction between individuals and groups, even if no one formal organization oversees the practices’ operations, including enforcement of the rules (which might take diffuse forms). ²⁵ Gillian Brock, Global Justice. ²⁶ We can argue that these define the minimum that we can reasonably expect of one another, and we can go on to elaborate these ideas of reasonable expectation by harnessing the power of normative thought experiments, as I do in Brock, Global Justice, ch. 3, for instance.

38

   

relation to others is also a key part of enjoying a life of dignity. Being subject to domination, exploitation, or oppression, can significantly undermine the ability to enjoy a dignified human life, as does having to endure highly coercive terms of cooperation. If relationships with others are characterized by certain kinds of radical inequalities, this may interfere with the ideal of a life worthy of human dignity. So we reach the view that how we stand in relation to others is an important part of human well-being. Relational factors are an important part of global justice. These will include the importance of attending to fair terms of cooperation. Just institutions should also reflect and give expression to an ideal of equal respect and relevantly equal treatment. Just institutions do not arbitrarily and indefensibly favor the interests of some and ignore the interests of others: our needs and interests matter and deserve equal consideration, ceteris paribus.²⁷ So far I have argued for the importance of just institutions that ensure we are well positioned to enjoy prospects for a decent life. Governments have special responsibilities in discharging these duties. States therefore have an important role to play in achieving justice. But so do citizens. In fact, they have an especially important role to play as we attempt to address poverty. As we see next, in attempting to address the problem of poverty we must address many other connected forms of injustice. It is worth exploring why that is.

2.3.2 Addressing Poverty: The Importance of Empowering Local Agents in Our Quest to Promote Effective and Accountable Institutions Sustained and genuine eradication of poverty requires a range of approaches which have as their focus not just assisting poor people directly but instead target changing the structures and processes that perpetuate poverty and marginalization.²⁸ So, we need to understand some of these structures, processes, and other factors that keep people poor and marginalized, and shortly we make a start on such understanding. Much research confirms that processes that exacerbate intra-societal inequality can undermine the situation of the poor and marginalized, as this enables richer and more powerful citizens to modify the societal rules to further entrench their

²⁷ Clearly, there is much more that can be said in elaborating on the ideas entailed by these moral ideals and relevantly for this chapter, this desideratum will rule out unjustified favoritism that characterizes nepotism, cronyism, and the like. ²⁸ Roger Riddell, “Navigating between Extremes: Academics Helping to Eradicate Global Poverty,” Ethics and International Affairs 26 (2012): 217–43. This very helpful article summarizes insights from academics who have been working on these issues in the field of development for several decades. It summarizes what works and what doesn’t, synthesizing much pertinent research in the process. One such insight is that we should prioritize supporting transparent and effective poverty eradication agencies working at the local, national, and international levels, for the reasons I explore in this chapter.

   

39

position.²⁹ There is growing awareness that effective poverty reduction relies on attention to dynamics within societies such as those that sustain or increase inequalities. There has also been a consequent shift in emphasis toward interventions aimed at empowering the poor along with measures that address the key political, institutional, and structural factors that hamper poverty eradication.³⁰ Addressing problems associated with weak governance, institutions, or the rule of law, along with weak local democratic processes, often increases the probability of faster poverty eradication.³¹ In many countries, especially middle-income countries where most of the world’s poor citizens reside, assistance that targets the strengthening of civil society and democratic processes, is an especially appropriate focus for aid.³² There is no single formula for promoting beneficial development and many approaches have been tried with success. Nevertheless there are some discernible common patterns that can be usefully collected for those looking for guidance. The combination of active citizens and effective states may be one of the most reliable and powerful ways to pursue beneficial and multi-faceted forms of development.³³ So I elaborate on these two ideas and their interaction next, starting with effective states. There are many reasons why states that are effective are indispensable to beneficial development. States, after all, are necessary to underwrite or ensure the availability of key goods including healthcare, education, water, sanitation, infrastructure, security, the rule of law, and at least a minimum level of social and economic stability. Such social investment is a necessary precursor in building a dynamic economy capable of sustainable pro-poor development. All these goods are also important for securing decent lives. Furthermore, states are in a unique position to regulate and develop the economy in beneficial ways. Social movements and the private sector cannot fully replace all the functions and necessary activities of a state. ²⁹ Institute of Development Studies, IDS in Focus Policy Briefing. Issue 26 (Brighton: Institute of Development Studies, 2012); Dolf Te Lintelo, Inequality and Social Justice Roundtable Consultation (Brighton: Institute of Development Studies, 2011). Available at www.ids.ac.uk/files/dmfile/ InequalityRoundtablereportFINAL.pdf. ³⁰ Duncan Green, From Poverty to Power: How Active Citizens and Effective States Can Change the World (Oxford: Oxfam International, 2008), 221. ³¹ Paul Collier, Conflict, Political Accountability and Aid (London: Routledge, 2014); Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999); Riddell, “Navigating between Extremes: Academics Helping to Eradicate Global Poverty,” 226. ³² Riddell, “Navigating between Extremes: Academics Helping to Eradicate Global Poverty,” 235. What is centrally required is assistance with channels that give greater voice to the marginalized, in efforts to address the power disparities within society, disparities which further advantage those who are powerful or more affluent (Riddell, “Navigating between Extremes: Academics Helping to Eradicate Global Poverty”). ³³ Duncan Green, From Poverty to Power: How Active Citizens and Effective States Can Change the World (Oxford: Oxfam International, 2008); Duncan Green, From Poverty to Power: How Active Citizens and Effective States Can Change the World, 2nd edition (Rugby, UK: Practical Action Publishing, 2012).

40

   

In addition, the state’s effective provision of public goods and services is essential to securing its legitimacy. There are important links between effective states and legitimacy. Effective states need to be, and to be perceived to be, legitimate, as their perceived legitimacy can increase their effectiveness. The reverse also applies: perceived illegitimacy undermines effectiveness. There is something akin to a social contract between the state and its citizens, and each side has a part to play in maintaining the social contract. By providing core goods and securing basic rights, the state’s legitimacy is enhanced and citizens can have reasonable confidence in their state’s ability to be effective. When states are unable to discharge their responsibilities to underwrite core goods and rights, trust in the state is not well-placed. This social contract has many implications for the rights and responsibilities of citizens. For instance, the state’s responsibilities to provide for public welfare makes the right to tax its citizens to sustain this capacity reasonable. And the state’s delivering on these responsibilities makes it reasonable for citizens to comply with tax obligations. Three important tests of a state’s effectiveness and legitimacy are a state’s ability to manage an impartial system of justice, a state’s ability to raise taxes fairly, and a state’s ability to spend revenue wisely (for instance on public goods and services).³⁴ Elsewhere I have explored some of the implications of these key tests.³⁵ For our purposes with this project, I note only that civic participation can be an important part of ensuring that states are held to account in delivering in these three areas, especially on this third test—that the state is spending revenue on key public goods and services in a wise and effective manner. Active citizenship can be an important part of creating and sustaining states that deliver on core goods and services effectively, and that also respect basic normative principles. Citizens striving for social justice in their countries are essential to holding key agents—such as the state—to account when they fall short of what might be reasonably expected of them in their roles.³⁶ Active and engaged citizenship can be very effective when it is channeled into organized, coordinated action. Collective action and self-organization have an important role to play in helping marginalized and vulnerable groups to gain standing in society. People who live in poverty need to have a voice in decisions that affect them and they can often accomplish much in this regard through their own self-

³⁴ Green, From Poverty to Power, 97. ³⁵ For instance, Gillian Brock, “Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developing World and Why,” 119–45. ³⁶ What do I mean by “active citizenship”? Here I follow Duncan Green’s account according to which it is “that combination of rights and obligations that link individuals to the state, including paying taxes, obeying laws, and exercising the full range of political, civil, and social rights. Active citizens use these rights to improve the quality of political or civic life, through involvement in the formal economy or formal politics, or through the sort of collective action that historically has allowed poor and excluded groups to make their voices heard” (Green, From Poverty to Power, 12).

   

41

organization. Efforts to reduce poverty and vulnerability can often be very effective when they strengthen or support the self-organization of poor people.

2.3.3 Summary of Some Key Points Before closing this section, I draw attention to six key points often overlooked in philosophers’ discussions about addressing global poverty. 1. In contrast to the work of many philosophers who work on global justice, I emphasize a more poor-empowering approach.³⁷ Global poverty is not chiefly a matter of need under-fulfillment, which could be remedied by the transfer of resources, but rather has an important structural component, involving relations of power and powerlessness. Chronic poverty can be sustained by social power relations. So one of our focal points for thinking about reducing global injustice must include redressing the power imbalances local agents encounter. Local agent empowerment is a key mechanism through which better outcomes are to be secured. Moreover if we understand what supporting moral agency and enabling people to meet their needs entails, local agency empowerment is an important global justice goal. So, ignoring the social relations of power and powerlessness leads to important oversights. In addition, neglecting the moral and political agency of the poor ignores important change agents and the role they can and should play in securing and sustaining global justice. 2. Successfully addressing poverty requires attention to domestically driven processes such as those that widen intra-societal inequalities in wealth and power or sustain vulnerability and marginalization. 3. Efforts to reduce poverty and vulnerability can often be very successful when they bolster or support the self-organization of poor people. This can strengthen the force that actions initiated by vulnerable or marginalized communities have. 4. Empowered, active citizens help create strong institutions by demanding them, being willing to participate in them, and holding governments to account for their failures. 5. Effective states with robust institutions are an important component in promoting beneficial, pro-poor, inclusive, and sustainable development. 6. Taking account of all these points, we should realize that ramping up support for local empowerment can be very efficacious in promoting

³⁷ For notable exceptions see, Monique Deveaux, Poverty, Solidarity and Poor-Led Social Movements (Oxford: Oxford University Press, 2021); and Brooke Ackerly, Just Responsibility: A Human Rights Theory of Global Justice (Oxford University Press, 2018).

42

    beneficial, pro-poor, inclusive development, the kind necessary to transform the lives of marginalized and vulnerable people.

2.4 How Does Corruption Undermine Global Justice Goals? In the second section we saw how corruption in the water sector undermines some of our efforts to tackle global deprivation. Drawing on my normative framework we can appreciate further ways in which corruption defeats attempts to reduce injustice. As we reflect on what just arrangements for human beings involve, we should pay special attention to our human needs, protecting basic liberties, fair terms of cooperation, and relevant social and political support necessary to sustain justice in diverse communities. Corruption undermines all these efforts. Let us start with the notion of whether there are fair terms of cooperation and its connection with peace and security. Corruption undermines fair terms of cooperation and is destabilizing in and of itself. As former U.S. Secretary of State John Kerry has noted: Corruption is not just a disgrace and a crime. It is also dangerous. There is nothing more demoralizing, more destructive, more disempowering to a citizen than the belief that the system is rigged against them, the belief that the system is designed to fail them, and that people in positions of power . . . are crooks— crooks who are embezzling the future of their own people.³⁸

The sense of unfairness generated by such demoralizing thoughts can drive massive, destabilizing change, for better or worse, depending on how the energy is channeled. In so many countries around the world understanding these sentiments is crucial for appreciating what is necessary to tackle corruption effectively.³⁹ Corruption can undermine the notion that there is a fair and orderly process to the distribution of goods and services in a society, or that there are fair procedures more generally. Corruption corrodes rule following and social order.⁴⁰ In so far as people come to view institutions as corrupt, this can have far-reaching

³⁸ John Kerry, “Remarks on Community Building and Countering Violent Extremism,” Sokoto Nigeria, August 23, 2016. ³⁹ Sarah Cheyes, Thieves of State: Why Corruption Threatens Global Security (New York; London: Norton, 2016); Susan Rose-Ackerman, Corruption and Government (Cambridge: Cambridge University Press, 1999); Frank Vogl, Waging War on Corruption: Inside the Movement Fighting the Abuse of Power (New York: Rowman and Littlefield, 2016). ⁴⁰ Eric Uslaner, Corruption, Inequality and the Rule of Law (Cambridge: Cambridge University Press, 2008); Nicholas Shaxson, Poisoned Wells: The Dirty Politics of African Oil (New York: Palgrave Macmillan, 2007).

   

43

consequences for people’s willingness to trust that they do and will operate fairly. This crucial loss of trust permeates other domains and has the potential to undermine societal functioning in highly damaging ways, including in destabilizing the state.⁴¹ If the society lacks fair rules and procedures in its basic structure or operation, then it makes sense for people to take what they can get out of every situation, aim to overthrow the ruling regime, or both. Corruption by those occupying public roles undermines the idea that such positions exist to serve public interests, not private ones. Corruption undermines people’s sense of fair and shared obligations. Corruption weakens the rule of law and public institutions. It damages fair competitive business environments in ways that can impede investment and beneficial development. It can create an environment in which despair, hopelessness, and anger are fueled. Given how corruption can incite all manner of destructive social tensions and inappropriate political arrangements, the fourth justice goal is also easily threatened. For instance, when citizens are well aware that corrupt leaders are stealing large amounts of tax-payer funds, depriving communities of core provision for basic needs and security, this can damage efforts to sustain peaceful and inclusive societies. So, corruption also impairs social and political arrangements that provide support for realizing core ingredients of global justice.⁴² Corruption also directly affects whether people are able to meet their needs. I have highlighted this point with respect to their needs for clean water and sanitation. Similar phenomena are prevalent with other attempts to meet needs. For instance, corruption can divert valuable resources away from healthcare. Unauthorized demands for payments to access healthcare entitlements that should be free to all, absenteeism by healthcare providers, supplies of ineffective counterfeit medicines, and theft of drugs and medical supplies, are but a few common examples where the meeting of health needs is sabotaged.⁴³ High levels of corruption can induce conflict and social tensions thus endangering our needs for security. Corruption can erode the rule of law thus allowing many illicit activities to flourish, including organized crime, drug trafficking, and people

⁴¹ Cheyes, Thieves of State; Rose-Ackerman, Corruption and Government. ⁴² For more on all the connections discussed in this paragraph, see for instance, Robert Rotberg, The Corruption Cure: How Citizens and Leaders Can Combat Graft (Princeton: Princeton University Press, 2017); Michela Wrong, It’s Our Turn to Eat: The Story of a Kenyan Whistle-blower (London: HarperCollins, 2009); Laurence Cockcroft, Global Corruption: Money, Power and Ethics in the Modern World (London; New York: I.B. Tauris, 2012); Robert Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1991); Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015); Vogl, Waging War on Corruption; Bo Rothstein, Quality of Government: Social Trust and Inequality in International Perspective (Chicago: University of Chicago Press, 2011). ⁴³ United Nations Development Programme, Fighting Corruption in the Health Sector: Methods, Tools and Good Practices. Report from the United Nations Development Programme (New York: United Nations Development Programme, 2011). Available online through the UNDP website at https://www.undp.org/publications/fighting-corruption-health-sector.

44

   

smuggling, which can all further threaten security.⁴⁴ This can damage the ability to sustain robust and accountable institutions capable of delivering on our basic needs and liberties. Corruption is strongly linked to severe restrictions on political and civil freedoms and rights.⁴⁵ There is also an important connection between corruption and high levels of state repression, affecting security, civil and political freedoms, along with press freedoms.⁴⁶ In a climate of repression, people’s abilities to tackle their own marginalization and fight for peaceful and inclusive societies can be seriously set back. Corruption also compromises global stability, peace, and security. For instance, corrupt officials have allowed arms and materials used to produce nuclear weapons to cross borders in violation of laws, treaties, and regulations; and questionable banking arrangements facilitate funds crossing borders, hence ensuring that organized criminals and terrorist organizations can continue their practices which can significantly threaten liberty protections.⁴⁷ Corruption can also be a huge cause of exit and migration, and it also lies at the heart of some of the world’s significant contemporary security challenges.⁴⁸ Righteous indignation at corruption can also be channeled toward all sorts of targets, both positive and negative. Indignant populations often take violent steps to seek justice. Citizens with no recourse in the face of rampant corruption can feel the pull of extremist movements.⁴⁹ There is also an important feedback loop between corruption, civil unrest, and state repression, which spark further cycles of civil unrest and repression.⁵⁰ Reflecting on the connections discussed in this section, it is clear that corruption frustrates efforts to meet human needs, protect basic liberties, secure fair terms of cooperation, and the social and political conditions necessary to sustain justice in diverse communities. Corruption undermines our abilities to secure global justice.⁵¹

⁴⁴ Holmes, Corruption; Sheldon Zhang and Samuel Pineda, “Corruption as a Causal Factor in Human Trafficking,” in Dina Siegel and Hans Nelen (eds.), Organized Crime: Culture, Markets and Policies (New York: Springer, 2008); Andrew Feinstein, The Shadow World: Inside The Global Arms Trade (London: Penguin 2012). ⁴⁵ Hazel McFerson, “Governance and Hyper-Corruption in Resource-rich African Countries,” Third World Quarterly 30, no. 8 (2009): 1529–47; Freedom House, Freedom in the World 2006: The Annual Survey of Political Rights and Civil Liberties (New York: Rowman and Littlefield, 2016). ⁴⁶ Freedom House, Freedom in the World 2006: The Annual Survey of Political Rights and Civil Liberties (New York: Rowman and Littlefield, 2016); Bo Rothstein and Aiysha Varraich, Making Sense of Corruption (Cambridge: Cambridge University Press, 2017); and Rotberg, The Corruption Cure. ⁴⁷ Rotberg, The Corruption Cure; Holmes, Corruption. ⁴⁸ Rotberg, The Corruption Cure, 41. ⁴⁹ Cheyes, Thieves of State. ⁵⁰ Cheyes, Thieves of State. ⁵¹ I have highlighted some of the harms corruption facilitates, focusing on those attached to thwarting beneficial development, basic needs, liberties, fair terms of cooperation, political legitimacy, effective states, and inclusive, peaceful communities. There are other notable harms that deserve mention. In low-income countries, corruption can impede economic development and growth. As this section has focused on costs it is probably worth remarking that some believe corruption brings certain kinds of benefits. For instance, some argue that facilitation payments can actually increase economic growth in certain circumstances. Robert Klitgaard, an economist writing in the late 1980s argued that there is an “optimal amount” of corruption that can be good if it promotes economic goals

   

45

2.5 Combatting Corruption: Important Lessons from Empirical Studies and Practice 2.5.1 A Brief Introduction to Some Core Reforms The empirical research on how to tackle corruption effectively contains many important insights, as I discuss in more detail in Chapters 4 and 5. Some of the most well-established components include the importance of generating political will, reforming national and international law and institutions, creating a vigilant and courageous civil society and media, encouraging diligent leaders with integrity, and building coalitions with the many agents who have an interest in reducing corruption. A multi-pronged approach is essential: we need to take action on many fronts to make and sustain gains. There is a huge body of literature on combatting corruption successfully. Here I have space to introduce only a few important measures that are also significant for securing justice. In general, there is a need for improved legislation, regulation, and governance (within companies, organizations, and across nations), along with robust monitoring.⁵² Improved measures aimed at corruption prevention and prosecution would be beneficial.⁵³ There is growing acceptance in many communities that we need credible mechanisms to reduce corruption, and already a number of changes have together made some difference over the last 20 years. Some of these include legal changes that criminalize transnational corrupt activities, stronger and clearer corporate codes and procurement rules, along with better compliance and oversight. Many other initiatives, both small and large, have had important effects as well. One example is integrity pacts in which all transaction parties voluntarily consent to uphold particular standards of that would otherwise be impeded by corruption. While Klitgaard does not condone corruption, he argues that the costs of countering corruption should not exceed the economic damage that results from that corruption. In the cases that concern me, the costs are so high and pervasive, and resulting benefits relatively slim and unevenly distributed, I don’t believe these points that apply to specific kinds of cases provide much of a counter-argument to my general focus and overall position. They certainly do not derail the normative project. For more on some of the positive and negative effects of corruption see for instance, Kimberly Elliott, Corruption and the Global Economy (Washington, DC: Institute for International Economics, 1997); Robert Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1991) and Barry Hindess, “International Anti-Corruption as a Programme of Normalization,” in Luís de Sousa, Barry Hindess, and Peter Larmour (eds.), Government, NGOs and Anti-Corruption (London: Routledge, 2009). ⁵² Jeremy Pope “National Integrity Systems: The Key to Building Sustainable, Just and Honest Government,” in A.J. Brown, Carmel Connors, and Brian Head (eds.), Promoting Integrity: Evaluating and Improving Public Institutions (London: Routledge, 2008); Robert Rotberg, The Corruption Cure: How Citizens and Leaders Can Combat Graft (Princeton: Princeton University Press, 2017); Michael Johnson, Syndromes of Corruption: Wealth Power and Democracy (Cambridge: Cambridge University Press, 2014); Bo Rothstein, The Quality of Government: Corruption, Social Trust and Inequality in International Perspective (Chicago: The University of Chicago Press, 2011); Fritz Heimann and Mark Pieth, Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford: Oxford University Press, 2018); Vogel, Waging War on Corruption; Cockcroft and Wegener, Unmasked. ⁵³ Cockcroft and Wegener, Unmasked; Rotberg, The Corruption Cure.

46

   

appropriate conduct in a particular domain, such as in bidding and procurement processes. Failures to abide by the agreed standards attract significant penalties such as debarment or the right to engage in desirable business opportunities. The most successful of these initiatives involve participation from many stakeholders that have multiple opportunities to scrutinize activities thereby promoting transparency and accountability, as we discuss further in Chapter 5. In this chapter I want to focus on the role local agents participating in anticorruption initiatives can play in reducing global injustices. Local actors can play a tremendously important role in change processes that yield improved outcomes more conducive to justice. They can be considerably assisted in these efforts by global civil society groups, such as Transparency International. From the Arab Spring to mass mobilizations following the publication of the Panama Papers, people are taking action to protest abuse of power by corrupt leaders and regimes as never before.⁵⁴

2.5.2 Application to the Water Sector With these general remarks about addressing corruption, I focus next on the water sector to see how these kinds of insights might be implemented to solve the problems with which I began the chapter. In many parts of the world citizens are taking action to address corruption in the water sector and have been assisted in their efforts by various non-governmental organizations, coalitions, and networks, sometimes home-grown and other times trans-national. One particularly noteworthy international example in this sector is the Water Integrity Network (WIN).⁵⁵ WIN is an international non-governmental organization that ⁵⁴ As Frank Vogl argues in Waging War on Corruption, a powerful combination of forces is steadily amassing, helping national anticorruption movements grow in strength every day. First, a large number of civil society organizations, full of committed members, are focusing on tackling corruption. Second, national and international anticorruption conventions, laws, and goals supported by all manner of global leaders are being closely monitored and performance is publicly reported. Third, new information and media technologies are also assisting in connecting peoples across traditional divides, such as state borders, leaving few places to hide. Fourth, there is increased academic research and support from philanthropic foundations in building the organizational capacity of civil society. Some of the world’s most powerful leaders have also indicated their willingness to join the war on corruption, signing on to many agreements, including on tax evasion, money laundering, and abuses of foreign aid. Vogl notes: “It is not governments that are leading the anticorruption charge, rather it is a grand ad hoc coalition of civil society activists, journalists, philanthropists, and scholars. And in the years to come it will continue to be the case that these forces will set the agenda, press governments with mounting vigor and impact for reforms, and monitor the measures announced to see that they are effectively implemented” (Vogl, Waging War on Corruption, 53). Transparency International (TI) —which Vogl co-founded—has been an important coalition builder at both the national and international level, initiating many opportunities for civil society, governments, and businesses to explore constructive ways to curb corruption. TI has developed standards of conduct for governmental and business institutions and has played an important role in raising public awareness of corruption. We discuss the impressive achievements of INGOs, NGOs, and other international organizations further in chapters to come. ⁵⁵ For more information, see https://www.waterintegritynetwork.net/.

   

47

champions integrity in the water and sanitation sectors in efforts to improve human rights performance. WIN’s vision is a world with equitable access to water and a clean environment, one which is not threatened by corruption. Fulfilling human rights to water and sanitation can be particularly challenging for marginalized communities, especially in low-income countries. So, understandably, much of their effort is directed to such environments. In general, WIN’s mission is to promote greater integrity and equity in processes governing the water sector. WIN has developed an approach that relies on four key pillars widely echoed throughout the literature on effective measures to address corruption. These four involve improving processes to yield greater levels of appropriate (i) transparency, (ii) accountability, (iii) participation, and (iv) regulation and enforcement systems.⁵⁶ Here I highlight just a few key features from this framework. I start with the importance of participation. To improve equitable access, it is important to promote the meaningful participation of marginalized groups, so that they are involved in all aspects of decision-making, such as selection of sites for developing water infrastructure and management of schemes. Next, we should underscore the importance of improving transparency in information flows at all stages of water delivery processes. This is crucial to understand specific ways in which corruption affects the poor and how to formulate appropriate, targeted, and effective responses. And it is significant for meaningful participation. In addition, it is important to publish utility budgets and contracts; hold public meetings involving citizens, regulators, and water sector officials; and generally promote fair and transparent competition for water contracts. There is also a high need to improve financial and procurement rules and their enforcement, along with increased oversight and supervision, especially when disbursements and central decisions are being made. Tendering companies can be expected to sign up to a no bribery policy and, as is the case in several parts of the world, risk debarment if found to be in violation. Many countries have had considerable success with integrity pacts in which all participants in the water sector agree to comply with codes of conduct or risk significant penalty. Connected with improving transparency (and all the other core pillars), it is also important to strengthen laws and processes concerning the right to information. Accountability processes could also be made much more resilient, generally improving monitoring and oversight, which is necessary for proper compliance and enforcement of corruption-curbing regulations. Again there are multiple noteworthy innovations that have yielded success, such as citizen report cards and providing hotlines for exposing those who demand bribes or engage in other

⁵⁶ Water Integrity Network, Water Integrity Global Outcomes, 34.

48

   

forms of corruption. There is also clearly a need to improve human resource management practices by promoting merit-based appointments and promotions, and raising ethical standards through codes of conduct, ethics training, and adequate compensation. In these sorts of ways, the Water Integrity Network aims to improve practices for water delivery by building “integrity walls” from the various building blocks identified (such as improved transparency, accountability, and participation). WIN offers many additional constructive recommendations including in the areas of promoting fair competition in procurement, strengthening monitoring and oversight from above and below, and promoting more participation in water governance by people from the poorest and most marginalized groups in the society. Improvement strategies are discussed in more detail in chapters to come. For the main purposes of this chapter, we have enough knowledge about how to succeed in the water sector to understand how constructive reform processes often unfold, a topic discussed further in the next section. I believe justice theorists should pay more attention to how we realize justice in practice. Focusing on such implementation issues provides important insights into significant barriers and opportunities relevant to our justice theories. Once we focus on how change happens we can begin to appreciate where some of the obstacles are and what can be done to remove them.

2.5.3 How Change Happens: One Common Account With the points introduced in Sections 2.5.1 and 2.5.2 we can now sketch one prevalent pathway for change.⁵⁷ Using the example of change processes often encountered in the water sector I illustrate the important role that both domestic and international agents can and should play. Change agents derive from a diverse range of sources. They often share deep interests in creating momentum for improved political will to strengthen institutional integrity. A frequent driver of change is a critical mass of citizens demanding improved accountability. Citizens are often frustrated with the level of service or the degradation of water resources and come to realize that corruption is at least partly to blame. Dissatisfaction at the scale of corruption can be a strong motivator. Citizens are increasingly critical of the corrupt situation (and often those who perpetuate it as well) and begin demanding improved access to clean water and adequate sanitation. The effectiveness of their efforts is often considerably enhanced if they gain influential support, such as from various international networks and organizations. Such groups can often support countries in ⁵⁷ Water Integrity Network, “Engaging with Partners for Change: Adapted Strategy 2020–2022”. November 2019 at www.waterintegritynetwork.net.

   

49

strengthening their water integrity by assisting with core resources, including financial resources and knowledge of good corruption-curbing practices. They can help to establish policies, guidelines, and principles on good water governance. International partners can also provide tools and platforms for knowledge sharing. By assisting with standard setting for individual and institutional behavior and monitoring compliance, they can also motivate engagement. Depending on the context, various types of stakeholders can become change agents. Sometimes change is largely driven by citizens or civil society representatives. At other times political leaders, public sector actors, or private sector agents can make important first moves toward reforms. Change agents can make various demands including for improved institutional, regulatory, and legal frameworks. Civil society organizations and development partners can play an important role in supporting change agents, by sharing their resources, water integrity tools, and knowledge. This can help improve institutional capacities that enable important accountability mechanisms, such as in institutionalized public reporting. Increased awareness of improved accountability mechanisms and engagement can also motivate more stakeholders to participate and comply. Stakeholders can then effectively safeguard integrity in implementing important reforms and help institutionalize good practices. Once participation reaches a critical mass, the whole sector can become more resistant to corruption. The Water Integrity Network (WIN) helps to mobilize and support change agents. It works with partners to improve decision-making to facilitate active multi-stakeholder coalitions and build capacities for sustaining water integrity. The support it provides not only is context-specific but also includes a range of activities such as lobbying at a political level, coalition building, providing tools, and helping to develop capacity. WIN’s focus is to support and motivate international water and sanitation sector organizations to become change agents, by showing leadership and contributing constructively to the process of reducing corruption. Part of WIN’s strategy is to offer and further develop good practices and approaches that can assist with this goal. It aims to build the capacity of incountry partners to address corruption issues. WIN also focuses on advocacy toward influential partners, to encourage them to adopt water integrity initiatives.⁵⁸ The focus of WIN is to stimulate action by supporting and encouraging water sector organizations and civil society groups to become change agents and to contribute to beneficial reform processes.⁵⁹ As we see in chapters to come, there are multiple parties that have a role to play in making change happen. The activities of multiple stakeholders can often yield ⁵⁸ The United Nations Global Compact calls on companies to align operations and strategies with ten universally accepted principles concerning human rights, such as anti-corruption. INGOs such as WIN can and do use their influence to show how these apply in the water sector. ⁵⁹ To see more fine-grained analysis of cases and impact see some of the many impact reports on the website at: https://www.waterintegritynetwork.net/.

50

   

success in creating and sustaining a low-corruption environment. The example considered in this section illustrates how domestic and international parties can combine to amplify effects. In later chapters we explore other complementary and mutually beneficial pathways for constructive reforms.

2.6 Conclusions In this chapter we have seen some of the tremendous harms that corruption inflicts and how it thwarts efforts at reducing global injustice. The nature and scale of the damage is such that it can be highly destructive and destabilizing. As John Kerry remarked, nothing is more demoralizing and disempowering than the belief that the system is rigged against you. The belief is even more corrosive when coupled with the realization that members of government are the ones blocking citizens’ fair opportunities for good lives. Because of the persistent, profound, and pervasive damage corruption inflicts on structuring people’s opportunities for good lives, philosophers concerned with justice should pay more attention to issues of corruption. This is especially so as corruption is so intricately involved in multiple justice problems and significantly hampers efforts to address injustice, as I illustrated with the cases of providing clean water and safe sanitation. In this chapter I have also begun assembling some of the key normative tools necessary for my central argument. I outlined some of the core features of my account of global justice that will play an important role in this project. I have also begun discussing how to make constructive change happen. In particular, I have emphasized the importance of active civil society at the local level in the fight against corruption. International efforts at assistance can be particularly effective when they support these initiatives aimed at improving the self-organization and collective power of local agents and organizations. In the next chapter I argue that many agents have important responsibilities to assist in such ways by drawing attention to states’ obligations to contribute to these endeavors. As we also come to appreciate in the next chapter, combating corruption and realizing human rights are intimately connected and mutually reinforcing.

3 Justice, State Responsibilities, and Human Rights 3.1 Introduction The previous chapter focused on the role of domestic actors in securing justice. I also highlighted how agents from the international community play an important role in supporting change and featured the role of partners from International Non-Governmental Organizations, especially the Water Integrity Network. In this chapter I discuss the role states should play in contributing to resilient communities that are human rights sustaining. This chapter also provides important defense for the view that there are important obligations to support aspects of our human rights practice that are credible mechanisms for implementing justice here and now. Chapters 4 and 5 continue the work by reviewing and assessing our current arrangements for tackling corruption. So this chapter provides an important piece of the normative puzzle that we build on in later chapters. Those who already appreciate the importance of supporting human rights arrangements may wish to skip this chapter and move directly to Chapter 4 in which I present important insights on addressing corruption. Chapter 5 focuses on how well our human rights practice implements these insights so we can evaluate whether it can be harnessed to reduce corruption. In the next section, Section 3.2, I show how implementing justice requirements— such as protecting liberties and meeting needs—leads us to concerns about effective planning in particular communities. States have obligations to deliver on goals such as meeting members’ needs. But they also have multiple other obligations such as to contribute to international arrangements that are conducive to meeting needs in other locations. They have obligations to contribute to global arrangements that are human rights sustaining, and this is part of the justification for why their self-determination has standing. In Section 3.3 I introduce some core ideas about our human rights practice. Once we understand core characteristics of the practice we can appreciate why it offers an attractive normative vehicle for realizing justice goals here and now. Section 3.4 covers some key concerns about whether our human rights practice can play a normatively justified and effective real-world channel for tackling injustice. Here I consider some anticipated objections concerning the human rights practice’s normative credentials and rebut them.

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0003

52

   

So this chapter provides an important defense for the view that we have obligations to support at least those aspects of our human rights practice that are credible mechanisms for implementing justice here and now. In order to assess whether our human rights practice actually delivers on the promise in the case of corruption we need to examine core features of that practice with regard to corruption. Chapter 5 does this. As a prelude to that assessment, Chapter 4 canvasses considerable research on effectively addressing corruption, so we are well positioned for Chapter 5’s task.

3.2 Justice for Compatriots and Justice for All As I discussed in the previous chapter, on my account, justice requires attention to four particularly important aspects: protection for basic liberties, enabling people to meet needs, fair terms of cooperation, along with social and political arrangements that support these core elements. Consider first the dimension of enabling people to meet their needs. Our moral agency needs include needs for enough physical and psychological health, security, understanding, autonomy, and decent social relations.¹ These must be sufficiently well met for us to be able to function as moral agents. Meeting our moral agency needs gives rise to additional requirements. Three are particularly important, namely our economic needs, needs for community, and political self-determination.² Importantly, like all needs claims, the strength these should have must be weighed against multiple other justicerelevant claims.³ So, some needs might well be outweighed by others’ stronger claims. Much will hang on the competing demands that should be considered in particular cases. And so we need to look at other features of my account of justice to see how this all plays out. So, I turn to another cluster of important concerns focused on the practical business of implementing our justice goals. One very significant characteristic of human lives is that human beings form located life plans.⁴ Secure residence and effective administration are both necessary for us to be able to realize our located life plans.⁵ Borders of administrative units can be defensibly regulated to facilitate effective planning and delivery in both implementing located life plans and bringing about justice in particular communities. For instance, securing key justice ¹ I argue for these views in previous works such as Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009), especially Chapter 3. ² For these arguments see Gillian Brock, Justice for People on the Move: Migration in Challenging Times (Cambridge: Cambridge University Press, 2020), ch. 2; and Brock, Global Justice: A Cosmopolitan Account, especially ch. 3. ³ For some details about how the various claims can be weighed see, for instance, Brock, Justice for People on the Move, chs. 2 and 9. ⁴ More defense of these views can be found in Brock, Justice for People on the Move, ch. 2. ⁵ Brock, Justice for People on the Move, ch. 2.

,  ,   

53

goals requires considerable reflection and planning in setting up institutions, policies, and practices that can deliver on what is required. Administrative arrangements are important in planning to meet needs, protecting basic liberties, coordinating actions productively, and generally regulating activities in ways designed to promote harmonious living. This is all part of the practical business of securing what is required to realize our justice goals. On my view, borders can be regulated— and indeed ought to be—so that we can implement our justice aspirations effectively in particular communities.⁶ But what about justice for those excluded by such borders? Surely their needs, liberties, interests, and so forth, are also normative constraints on what states may do? Indeed they are. So let us turn to examine how other-regarding constraints constitute powerful normative tools for defining states’ obligations. The international architecture of our world is a system of states in which representatives of states claim strong rights to self-determination. How can we defend this international arrangement of a world carved up into states, our state system? And how can we justify the common assumptions embedded in that system of states that members of a state have a right to decide what is best for them and that every state has the right to adopt policy that concerns itself almost exclusively with the wellbeing of its members over others, a position often referred to as “compatriot favoritism”?⁷ If every state has the right to self-determination, its members would seem to be free to determine their economic, social, and political affairs, and to manage them in ways that rightfully privilege their wellbeing. How can states’ claims to self-determination within the state system be defensible? In previous work I have analyzed such claims and attempted to reconstruct a defense.⁸ Here I outline an accessible treatment of some key points. First of all, justification needs to be made in terms that everyone, including those excluded from the state, can appreciate as compelling. We will need to adopt a perspective that is mutually acceptable to both insiders and outsiders.⁹ An accessible entry point into this perspective is to ask: If people did not know whether they would be insiders or outsiders of particular communities, what kind of justification for the state system might they find compelling? If it were the case that all persons have a government committed to protecting and promoting their human rights, ensuring the persons on their territory can enjoy freedom and opportunities characteristic of justice, the view might be plausible. In the ⁶ For further defense see Brock, Justice for People on the Move, chs. 2 and 9. ⁷ For more on this position see, for instance, Gillian Brock, “Liberal Nationalism versus Cosmopolitanism: Locating the Disputes,” Public Affairs Quarterly 16 (2002): 307–27. For good discussion of the issues suggesting the position is incoherent see Lea Ypi, “Cosmopolitanism Without If and Without But,” in Gillian Brock (ed.), Cosmopolitanism versus Non-Cosmopolitanism: Critiques, Defenses, Reconceptualizations (Oxford: Oxford University Press, 2013), 75–91. ⁸ See, for instance, Brock, Justice for People on the Move, ch. 3. ⁹ Following John Rawls, I have explored a way to answer this question in several places. See, for instance, Brock, Global Justice: A Cosmopolitan Account, especially ch. 3.

54

   

absence of such a state of affairs (along with adequate provisions for failures), those substantially disadvantaged by such international arrangements have no reason to find justification for either the state system or compatriot favoritism robust. Importantly, privileging the interests of fellow members when others fail to have their basic human rights secured would remain undefended. So one clear implication of the argument so far is that we must cooperate in a host of crossborder activities, policies, and institutions that have as their aim securing arrangements that can deliver on human rights and other aspects of justice. A justification along these lines will require that we fulfill many international responsibilities, as a requirement of enjoying self-determination and the defensible right to privilege our compatriots’ interests in planning to meet justice goals. I have translated these ideas about our international responsibilities into human rights discourse in several works.¹⁰ The language of human rights is fundamental to the public morality of world politics and a key framework through which international policy has been developed to guide action. It can play an enormously important role in reducing corruption as well. So, it is the language I adopt in progressing the general project of how to reduce injustice in our actual world. It also works particularly well for the goal of reducing corruption injustices. Here I summarize some significant points about our human rights practice as a prelude to later chapters, which will make connections between corruption reduction and human rights tools.

3.3 Human Rights Practice: Central Features I begin this synopsis by situating my account of our human rights practice in some context. Like Charles Beitz, I argue that there is an important emerging political practice around human rights.¹¹ Understanding how that practice operates in our contemporary world is key to understanding whether it can provide credible normative constraints on our international order of states and be a positive force in our quest to reduce global injustices. Our contemporary international human rights practice originates from the settlement of World War II and the adoption of key documents such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights (and these three documents are conventionally referred to as the International Bill of Rights). I summarize central features of that practice so we can best appreciate core strengths (and later also address some well-known critiques).¹²

¹⁰ See for instance, Brock, “Needs and Global Justice,” Philosophy 57 (2005): 51–72; and Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press), especially ch. 3. ¹¹ Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009). ¹² For further defense of these views, see Brock, Justice for People on the Move, ch. 3.

,  ,   

55

(1) It is worth underscoring the power of human rights to bring about progressive change. Human rights discourse not only has been, but will continue to be, a discourse that proves highly effective in mobilizing domestic and international publics. Human rights discourse can be a very helpful mechanism by which we can reduce injustice in our contemporary world. (2) Progress on human rights is often most impressive in places where there are both strong regional human rights institutions and robust social movements. Domestic and international human rights advocacy is an important complement and catalyst to international agreements, institutions, and other formal mechanisms that, over time, can protect human rights gains.¹³ (3) There are several ways in which human rights ideas get implemented into progressive policy in our contemporary world. These different ways include through various accountability mechanisms and strategies of inducement, assistance, domestic engagement, compulsion, and external adaptation.¹⁴ Here I draw attention to a few points necessary for this project and elaborate on those concerning accountability (in point 4) and domestic engagement (in point 5). (4) There are some fairly good regular channels available for calling states to account. The UN includes systems of extensive reporting and auditing processes. Various UN human rights agencies require regular reporting. The treaty bodies review and audit reports that states are required to provide evidencing their compliance. Importantly, nongovernmental organizations have a significant role to play as independent sources of information that can be used to judge compliance. The treaty monitoring systems require states to publicly account for their conduct.¹⁵ These formal, treaty monitoring systems play an important role in being accountable to external audiences showing the international community how particular states are performing in relation to international standards. It is also worth noting that the UN periodic review system provides good opportunities for constructive engagement concerning improving human rights performance and the process also affords excellent opportunities for appropriate offers of assistance (capacity-building, technical, financial, and so forth). Several other human rights agreements, mechanisms, and real-world instruments constitute important opportunities for us to progress justice goals, notably in the case of the United Nations agreement on corruption which we cover in Chapter 5. (5) The pathway of domestic engagement is arguably one of the most under-rated mechanisms for progressing the human rights agenda, and the one I have begun to draw attention to in the previous chapter. When local actors understand that there

¹³ See, for instance, Sally Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006), 228–9. ¹⁴ Further discussion of all these points can be found in Brock, Justice for People on the Move, ch. 3. ¹⁵ Beitz, The Idea of Human Rights, 34-5.

56

   

is an unfulfilled human right within their state, this can frequently mobilize domestic actors to challenge and remedy the situation. Mobilizing domestic political agents can be strengthened through transnational coalitions, a point I introduced in the last chapter and will elaborate on in chapters to come. (6) Human rights offer rules and standards, but they do so much more than that. Human rights also function as standards of aspiration, offering ideals that can guide desirable political change. Along with the institutional and quasiinstitutional apparatus, there are also informal processes for propagating and implementing human rights. I discuss some institutional and juridical aspects of our human rights practice below, but for now I draw attention to the fact that informal processes are also part of the practice. (7) The primary bearers of responsibilities to respect and protect human rights are states, while the international community underwrites these responsibilities. So, government failure to discharge its first-level responsibilities can constitute the grounds for “appropriately placed and capable ‘second-level’ agents outside the state” to take action in several ways.¹⁶ There are other agents who also have human rights related responsibilities, and states are often obligated to oversee these secondary agents’ activities. (8) State failures to accord with human rights standards are grounds for international concern. That international concern can be variously expressed depending on the nature of the human rights at issue and the scale of the failure, points to be elaborated on below. (9) The human rights systems’ current capacities for adjudication and enforcement are uneven. However, several forms of action have developed both within and outside the UN system and together these can often be highly effective at securing compliance. The roles of domestic agents and social movements are very important. Some of their human rights promoting activities are primarily persuasive and involve the support, coordination, and mobilization of domestic political agents. Others rely on transnational coalitions of nongovernmental agents that are effective at public advocacy or communication. (10) As noted, human rights can function as standards of aspiration. So they can be powerful bases of political criticism. They also function as elements of a shared moral language and offer ideals that guide efforts at political change by individuals and nongovernmental organizations. So human rights can be significant vehicles for redefining goals and political change. Any analysis of human rights that ignores the roles they play as a common reference point in deliberation about political action and social criticism, omits important functions human

¹⁶ Beitz, The Idea of Human Rights, 109. Agents have different responsibilities depending on their relationships. And appropriate remedies require different capacities. In addition, the different interests human rights protect can also give reasons to take action that may differ in urgency and strength. For further discussion see Brock, Justice for People on the Move, Chapters 3, 5, 6, and 7.

,  ,   

57

rights have in contemporary political discourse. Considering all these points and reflecting on the many important ways in which human rights function in our contemporary world, our human rights practice is not primarily a form of global law, even if the original framers had hoped for such a model (an issue I expand on in the next section). Rather, as Sally Merry observes, reflecting on studies of human rights activism especially in Asia, “[i]nstead of viewing human rights as a form of global law that imposes rules, it is better imagined as a cultural practice, as a means of producing new cultural understandings and actions”.¹⁷ So, in summary, it is important to note that the human rights practice has many disparate elements that all play valuable roles and engage diverse agents. Some parts of our human rights practice are law-like; some parts resemble soft law, while others are closer to hard law. Other parts are aspirational and provide goals. Still other parts play the role of well-supported vehicles for challenging cultural understandings. While we might start by examining the history of the practice, what it was intended to achieve, and looking at some of its formal and institutional mechanisms, we should not end there but rather seek to understand how it has developed. Reviewing the history, the Bill of Rights, and other core documents gives us some insights. Attending to some of the more aspirational parts that serve as goals gives us others. The institutional and formal features shed valuable light on some pathways for change, but so does looking at the inspirational activities of human rights advocates and NGOS. The constellation of forces associated with the human rights practice, including the activities of NGOs, social movements, journalists, and other agents and agencies all have an invaluable role to play in bringing to fruition some of the goals and ideals of the UDHR. The human rights practice in its contemporary manifestation includes activities from a diverse array of agents. The practice clearly has many important parts. The institutional rules, while important, are sometimes less important than more informal processes and activities that can be important catalysts for changing hearts, minds, and cultural understandings. The combined power of actions by institutional agents, social movements, dedicated NGOS (and so forth) all contribute to processes that have been and can continue to be significant forces for constructive change.

3.4 Is the Human Rights Practice Really the Best We Can Hope for in Our Current Situation? In this section I consider whether we should be aiming to promote some other real world vehicle for realizing justice. Is the human rights practice too weak to provide

¹⁷ Merry, Human Rights and Gender Violence, 228–9.

58

   

the necessary normative compass? Should we prefer stronger arrangements? Is aiming at introducing a system of binding global law a better strategy than the position I endorse? In order to appreciate my answers to these issues we might start with the fact that the original Human Rights Commission had hoped to implement something close to a model of binding global law. Let us understand some of how they thought this would work and what remains of that hope in our human rights practice, before we can entertain whether something more stringent is desirable or feasible. The original Human Rights Commission aimed to promote a declaration of human rights, draft a binding international convention, and work out mechanisms for how the convention might be implemented. They envisaged that enforcement would occur at two levels. States would be the primary agents responsible for ensuring human rights adherence in their territory and human rights requirements would be incorporated into domestic law or policy. A second level would deal with government failures; such failures would become a matter for international concern. A working group discussed several ways to implement international concern including through mechanisms of mandatory reporting, “petition and inquiry by special commissions or a special human rights court,”¹⁸ and where violations had been found “public censure and ‘extreme action involving reprisals and the use of sanctions.’”¹⁹ The working group settled on a scheme that combined several elements including periodic reporting, monitoring, and adjudication, though the recommendations were not straightforwardly implemented. The practice in operation today currently includes several recommended features, such as reporting and monitoring elements, and there are some provisions for complaints. While the framers had in mind a juridical paradigm with human rights ideally becoming part of domestic law enforceable in domestic courts or woven into state policy, this ideal was only partially realized. They hoped that international monitoring for compliance by auditing state’s self-reports would gradually have a normative effect over time. Some of the framers had hoped an international judicial capacity, such as a human rights court, would be instituted, to deal with disagreements between monitors and states, and assign any penalties that might be needed. However, this did not occur and monitoring agencies’ powers were limited to consultation, reporting, and public censure. While those were the agreed arrangements some 70 years ago, it was hoped that in due course more robust forms of accountability might be put in place to incentivize better domestic compliance. In fact our current global practice is quite complex. In some parts a juridical paradigm is in force, for instance in the regional human rights systems which

¹⁸ Beitz, The Idea of Human Rights, 24.

¹⁹ Beitz, The Idea of Human Rights, 24.

,  ,   

59

include human rights courts with legal coercive capacity to insist on compliance with rulings.²⁰ The European human rights court is a good example. And, importantly, various types of agents participate in human rights practice. UN human rights agencies are tasked with monitoring and reporting, while international organizations and nongovernmental agents (including social movement organizations and business firms) have a range of other ways of promoting the human rights agenda. Considering the vast number of agents involved in aspects of the human rights practice devoted to accountability, inducement, assistance, domestic contestation, engagement, compulsion, and external adaptation, we see a variety of ways in which our practice can assist with implementation and enforcement. In this book I take seriously the issue of pathways to reducing injustice in our imperfect world. An important question in this work is how we would make progress toward justice in our actual world. The normative framework I support is a credible one in providing feasible pathways to realization, while offering important safeguards against domination and other real-world problems. Recall that the original human rights commission had hoped for a global law paradigm, but this was not implemented. The fact that it was not is, I think, quite revealing. It has not proven to be as credible a pathway to secure human rights gains as what is on offer in the human rights practice. Reflecting on some of the human rights gains over the last 70 years, it is clear just how far we have come using this toolbox, even if there is more work to do to live up to the full promise of our human rights aspirations.²¹

3.5 Duties to Contribute to Resilient Communities that Are Human Rights Sustaining I have been arguing that human rights discourse is a powerful motivator of real world change, even if there is more work still to do. In addition, our human rights practice includes some important mechanisms aimed at securing compliance and accountability for performance. The practice can offer us some good channels for realizing our lofty justice goals here and now. These important points have significant implications for our responsibilities.

²⁰ Beitz, The Idea of Human Rights, 32. ²¹ For discussion of some of this progress see, for instance, Anne Marie Clark and Kathryn Sikkink, “Informative Effects and Human Rights Data: Is the Good News about Increased Human Rights Information Bad News for Human Rights Measures?,” Human Rights Quarterly 35 (2013): 539–68; Serife Ilgu Ozler “The Universal Declaration of Human Rights at Seventy: Progress and Challenges,” Ethics and International Affairs, December 7, 2018; Kathryn Sikkink, Evidence for Hope: Making Human Rights Work in the 21st Century (Princeton: Princeton University Press, 2017), 227–8; and Brock, Justice for People on the Move, 224–6.

60

   

We have duties to support institutional schemes already in existence that either are delivering effectively on core components of justice or are credible prospects for doing this here and now.²² This requirement derives from the importance of cooperation on fair terms. The human rights practice offers us important readymade channels for implementing justice and reducing injustice in our contemporary world. So we all have good reasons to support the practice and contribute to arrangements that are human rights sustaining.²³ States have especially important duties to contribute to arrangements that are human rights sustaining. We can reach this conclusion from several places. To connect with one from earlier in this chapter, recall that we must fulfill many international responsibilities as a requirement of the defensible right to selfdetermination and the right to privilege compatriots’ interests. As I argued in Section 3.2, states must cooperate in a host of cross-border activities, policies, and institutions that have as their aim securing good arrangements that can deliver on human rights and other aspects of justice. In other works I have argued that states have many important contribution requirements.²⁴ For our purposes in this book, I draw attention to three of these, which are important to corruption-combatting aspects of our human rights practice and can play some role in discussing state’s corruption-related responsibilities. These three are also especially important in underlying states’ rights to self-determination, both its necessary conditions and its limits. They are: A commitment to maintain an ethos conducive to respect for the practice of human rights, such as that everyone deserves to be treated with dignity and respect as an individual human being (Ethos Requirement). A commitment to practices of accountability (Accountability Requirement). A general commitment to show appropriate international concern, as required by the practice, to undertake action when one is the agent capable and appropriately placed to have sufficient reason to act (Commitment to Action Under Relevant Circumstances).²⁵

²² The implications of this position are drawn out throughout the book. See, especially Chapter 7, footnote 29, for responses to common concerns. ²³ The approach is often one of starting with some real world guidance on how to reduce injustice here and now. While much of our human rights practice is useful in this regard, other parts that do not adequately reflect core commitments can and should be challenged. Central commitments can serve as an adequate normative touchstone in developing arrangements in the right direction. For an example of how to challenge our human rights practice using core elements of it see Brock, Justice for People on the Move, ch. 9. ²⁴ See, Gillian Brock, Justice for People on the Move, ch. 3. ²⁵ There are other important contribution requirements such as this one: A general commitment not to promote arrangements in which respect and protection for people’s human rights is significantly worsened, ceteris paribus. So, in the absence of compelling countervailing

,  ,   

61

These contribution requirements are all woven from central animating ideas quite fundamental to the human rights enterprise and its core documents. So such principles are all central state obligations; they shape some responsibilities to contribute to resilient communities that are human rights sustaining. The commitment to practices of accountability is especially important in contributing to communities that are capable of fulfilling human rights, a theme to be developed in later chapters. In the previous chapter we have seen how corruption undermines the enjoyment of human rights by looking at the case of corruption in the water sector. Adopting a human rights approach can contribute to discussion of our corruption-related responsibilities and assist with policy implementation shortfalls.²⁶ There are direct connections between corruption and failures to fulfill human rights. When paying bribes is required to access basic entitlements that are the subject of human rights, we have corruption-related obstacles to fulfilling human rights. In some parts of the world, demanding bribes is common in the judicial, bureaucratic, healthcare, and other basic services sectors. Such bribery demands interfere with many human rights obligations. Consider, how for instance, articles 1–11 of the Universal Declaration of Human Rights involve human rights to protect due legal process and equality before the law. In addition, Article 21 involves the right to participate in government and equal access to the public services provided. Article 25 strengthens rights to provisions for “sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. Article 25 states that “everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services” at least to the extent that a particular state can provide. Article 26 protects basic education rights. Bribe solicitations in accessing these highlighted basic entitlements deprive people of their rights. States have obligations to protect their citizens from having their rights deprived, so have significant obligations to take action on bribery when it occurs in these spaces fundamental to fulfilling basic human rights.²⁷ Furthermore, Article 28 states that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can reasons, states should reject policies in which protection for people’s human rights deteriorates markedly, especially when such protections are reasonably secure (Constraint Against Worsening). For more on contribution requirements see Brock, Justice for People on the Move, especially chs. 3, 4, 5, 7, and 9. ²⁶ For other excellent works that make similar points see, for instance, Anne Peters, “Corruption and Human Rights,” Basel Institute of Governance, Working Paper Series 20 (2015): 1–34; Raoul Wallenberg Institute of Human Rights and Humanitarian Law, The Nexus Between Anti-Corruption and Human Rights (Lund: Raoul Wallenberg Institute, 2018). Available here: https://rwi.lu.se/publications/nexusanti-corruption-human-rights/. ²⁷ For many more detailed examples see, for instance, International Council on Human Rights, Corruption and Human Rights: Making the Connection (ATAR Roto Press: Vernier Switzerland, 2009), also available from their website.

62

   

be fully realized”. Article 29 specifies that there are duties to the community; fulfilling human rights will require important duties for agents whose cooperation is needed if rights are to be adequately respected, protected, and fulfilled. How we share responsibilities among the many agents who are obligated to fulfill human rights is a theme to be explored extensively in the second half of this book. And understanding some of the human rights tools available is an important prelude to such work. For instance, the United Nations convention that prominently addresses corruption, The United Nations Convention Against Corruption (UNCAC), can assist in securing human rights and addressing corruption. Fulfilling human rights obligations can require a cluster of associated activities such as those that will assist with avoiding deprivation, protection from deprivation, along with assisting the deprived. UNCAC takes important steps on all these fronts, by emphasizing duties to prevent corruption, along with detecting it, and seeking redress when it occurs. These ideas are extensively discussed in Chapter 5. In fact, corruption has huge implications for human rights. This is already widely appreciated in the academic literature and in international policy documents.²⁸ Many international agreements recognize corruption’s significant human rights costs. The Sustainable Development Goals (SDG) is an example of an international agreement that aims to promote human rights fulfillment and sustainable development by incorporating corruption concerns. SDG 16 aims to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.²⁹ SDG Goal 16.5 mentions corruption and bribery and enjoins parties to “substantially reduce corruption and bribery in all their forms”.³⁰ Goal 16.4 encourages parties to aim to significantly “reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime”.³¹ Other SDG goals also have a bearing on obligations to eliminate corruption such as Goal 16.3 that calls on parties to promote “the rule of law at the national and international levels and ensure equal access to justice for all”.³² Goal 16.6 calls on parties to develop “effective, accountable and transparent institutions at all levels”.³³

²⁸ For some notable sources see, for instance, Bo Rothstein and Aiysha Varraich, Making Sense of Corruption (Cambridge: Cambridge University Press, 2017); Morten Koch Andersen, “Why Corruption Matters in Human Rights,” Journal of Human Rights Practice, 10 (2018): 179–90; Morten Koch Andersen, “The Nexus of Corruption and Human Rights,” Journal of Diplomacy and International Relations, 21 (2) (2020): 128–39; International Council on Human Rights, Corruption and Human Rights: Making the Connection (ATAR Roto Press: Vernier Switzerland, 2009), also available from their website. ²⁹ For details about all these Sustainable Development Goals see https://www.un.org/ sustainabledevelopment/peace-justice/. ³⁰ United Nations, Transforming our World: The 2030 Agenda for Sustainable Development (New York: United Nations, 2015), 25. Available at: https://sdgs.un.org/2030agenda. ³¹ United Nations, Transforming our World, 25. ³² United Nations, Transforming our World, 25. ³³ United Nations, Transforming our World, 25.

,  ,   

63

Other international institutions, agreements, treaties, and policies can have an important role to play in efforts to promote human rights and combat corruption. Many United Nations human rights treaties and organizations draw attention to how the problem of corruption blocks securing rights. Here are a few examples: (i). E/C.12/BDI/CO/1 Committee on Economic, Social and Cultural Rights 2015, which remarks that “corruption continues to be widespread . . . at all levels and is an obstacle to the enjoyment of economic, social and cultural rights”.³⁴ (ii). CERD/C/BGR/CO/19 (Committee on the Elimination of Racial Discrimination, 2009) which notes that the efforts required “to enhance the independence of the judiciary and eliminate corruption,” are all needed to secure fundamental rights and freedoms.³⁵ (iii). CRC/C/LSO/CO/2 (Committee on the Rights of the Child, 2018) notes that parties should “take immediate measures to combat corruption and strengthen institutional capacities to effectively detect, investigate and prosecute corruption” necessary to securing children’s rights.³⁶

3.6 Conclusions In searching for a compelling argument for common assumptions that underlie our state system, I take readers on a reflective journey that challenges many sets of assumptions that go along with that worldview. There is no plausible justification for rights to self-determination and compatriot favoritism unless we also accept a range of human rights related requirements. These include requirements that involve contributing to resilient communities that are human rights sustaining. Addressing corruption must be part of that project. There are a number of human rights mechanisms at the international level that can assist anti-corruption efforts. We have duties to support institutional schemes already in existence that either are delivering effectively on core components of justice or are credible prospects for doing this here and now. These responsibilities derive from the requirements of cooperation on fair terms. The human rights practice offers us some important existing channels for attempting to realize justice in our contemporary world, so we have good reasons to support it. How

³⁴ Economic and Social Council, Concluding Observations on the Initial Report of Burundi (New York: United Nations, 2015), article 2, paragraph 1, page 2. Available at: https://tbinternet.ohchr.org/_ layouts/15/treatybodyexternal/Download.aspx?symbolno=E/C.12/BDI/CO/1&Lang=En/. ³⁵ Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination (New York: United Nations, 2009), 1. Available at: https://undocs.org/CERD/C/BGR/CO/19. ³⁶ Committee on the Rights of the Child, Concluding Observations on the Second Periodic Report on Lesotho (New York: United Nations, 2018), 2. Available at: https://undocs.org/CRC/C/LSO/CO/2.

64

   

well these general arguments apply in the case of corruption will be the focus for Chapter 5. And in preparation for that job, we review some of the important research on tackling corruption effectively. Once we have reviewed the material to come in Chapters 4 and 5 we are in a good position to give some texture to the strong responsibilities states have to play their part in combating corruption.

4 Reducing Corruption The Many Dimensions

4.1 Introduction What we ought to do concerning addressing corruption must track efficacy evidence. Clarifying what is effective at addressing corruption will be crucial to any contentful claims about our responsibilities. Getting clear on what needs to be done can then pave the way for a more informed discussion about who should do it. Our corruption-combating obligations rely on credible arrangements for successfully addressing this scourge. It is therefore important to know whether there are such arrangements and if so, what they are. Chapter 4 covers some of the considerable literature on constructively tackling corruption. Chapter 5 canvasses some of the policy, initiatives, and legal frameworks that incorporate some of these empirical insights. The conclusion I reach at the end of Chapter 5 is that there are many arrangements that can and do address corruption well and these ground strong obligations. Because so much hangs on whether the arrangements are credible, Chapters 4 and 5 are, of necessity, ones that must go into some empirical and policy detail. Gaining such deep understanding is important to the project of assigning responsibilities to particular parties, as we explore in later chapters. Before we begin to investigate what we know about combating corruption well, we should ask: what is a reasonable goal to aspire to with respect to corruption elimination? Is eradicating corruption even feasible? Three experts on corruption research offer important insights. Jeremy Pope says, “we all know that there has not been a system yet devised that cannot be outwitted by the corrupt, but the compelling need in many countries is to move from a situation where corruption is systemic to one in which it is simply episodic”.¹ According to Leslie Holmes, “corruption is what social scientists call a ‘wicked’ problem, meaning that it is so complex that it can only ever be partly solved; it can be controlled, but never

¹ Jeremy Pope, “National Integrity Systems: The Key to Building Sustainable, Just and Honest Government,” in A.J. Brown, Carmel Connors, and Brian Head (eds.), Promoting Integrity: Evaluating and Improving Public Institutions (London: Routledge, 2008), 14.

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0004

66

   

completely eradicated”.² And Michael Johnston and Sahr Kapundeh note that the aim should be to foster a “low corruption equilibrium” since eradication is impossible.³ As they discuss, where corruption appears to be under control, much of society is involved in its control, noting that a variety of political, economic, and social processes and institutions play central roles.⁴ As we see over the next two chapters, these astute observations are common themes in the literature. Multiple mechanisms are needed to control corruption in our quest to secure a low corruption environment. Fortunately, there is much research on such mechanisms as we explore in this chapter. No single measure alone can be completely effective, but combining them offers considerable resistance in tackling corruption. We have already learnt that corruption takes many forms. Corruption is a multidimensional problem that must be addressed at a number of levels. I discuss several of these levels in this chapter. Several common themes concerning contributions to solutions emerge, such as the importance of the following factors: (1) (2) (3) (4) (5)

(6) (7) (8) (9) (10)

Accountability mechanisms Appropriate transparency Institutional design which incorporates the right incentives Good governance with strong institutions that include ethically robust processes, procedures, and expectations Clear guidelines about acceptable standards for the individuals who function within institutions and extensive awareness of professional workplace conduct and standards Appropriate ethical and professional training Procedures that deal with conflicts of interest well Independent oversight and monitoring When corruption involves a collective action problem, special attention is needed to reform social norms and how to make change happen Coalitions and collaborations.

While this chapter offers wide-ranging treatment of a sample of core relevant issues, the analysis does not attempt to provide exhaustive coverage of all possible topics that have a bearing on addressing corruption (which anyhow would require multiple book-length treatments). Rather, the chapter features some of the most salient issues commonly discussed in the literature on combating corruption. The comprehensive treatment I offer in this chapter serves the main purposes well. It ² Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015), 89. ³ Michael Johnson and Sahr Kapundeh, “Building a Clean Machine: Anti-Corruption Coalitions and Sustainable Reform,” The World Bank Institute Working Paper Series 3466 (Washington, DC: The World Bank Institute, 2002). Available at: https://openknowledge.worldbank.org/handle/10986/14722. ⁴ Johnson and Kapundeh, “Building a Clean Machine,” 2.

 :   

67

supplies the necessary textured material we need for informed discussion about how to assign responsibilities fairly. This discussion will be essential for normative theorists who are new to debates about corruption, especially if they are to tackle complex matters such as corruption-curbing responsibilities.⁵ Improved accountability is an over-arching theme in much of this analysis. Another is that entrusted power should be exercised more legitimately and evenhandedly. Institutions need to aim at delivering on what justice requires and be accountable for how they are pursuing that objective. To make sense of the importance of all of these factors, (1)–(10), and to best promote understanding about how they fit together, I begin with the importance of good governance and strong institutions.

4.2 Robust Institutions, Effective Bureaucracies, and Good Governance Responsive, effective, accountable, and transparent institutions are important for human flourishing in states.⁶ There is so much evidence in support of this view it

⁵ Those corruption scholars very familiar with debates about combating corruption effectively may wish to skip this chapter. ⁶ See, for instance, Michael Johnson, Syndromes of Corruption: Wealth Power and Democracy (Cambridge: Cambridge University Press, 2014); Dani Rodrik, Arvind Subramanian, and Francesco Trebbi, “Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development,” Journal of Economic Growth 9 (2004): 131–65; Dani Rodrik, “What Do We Learn From Country Narratives?,” in Dani Rodrik (ed.), In Search of Prosperity: Analytic Narratives on Economic Growth (Princeton, NJ: Princeton University Press, 2003), 1–19; Daron Acemoglu, Simon Johnson, and James Robinson, “The Colonial Origins of Comparative Development: An Empirical Investigation,” American Economic Review 91 (2001), 1369–401; Douglas North, Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990). There is a huge literature on institutions, how they might matter for development along with skepticism about our state of knowledge about which ones are indeed necessary for economic development and in what forms. For some of that discussion see Ha-Joon Chang (ed.), Institutional Change and Economic Development (New York: United Nations University Press, 2007); Gretchen Helmke and Steven Levitsky, “Informal Institutions and Comparative Politics: A Research Agenda,” Perspectives on Politics 2 (2004): 725–40; Dani Rodrik, “Second-Best Institutions,” American Economic Review: Papers and Proceedings 98 (2002): 100–4; Peter Evans, “Extending the ‘Institutional’ Turn: Property, Politics, and Development Trajectories,” in Ha-Joon Chang (ed.), Institutional Change and Economic Development (New York: United Nations University Press, 2007), 35–52. As Ha-Joon Chang observes “real life success stories of institution building are typically a mixture of country-specific innovation and chance developments as well as deliberate learning from the more advanced countries”. See Ha-Joon Chang, “Institutional Change and Economic Development: An Introduction,” in Chang, Institutional Change and Economic Development, 1–14, at 3. See also Ha-Joon Chang, “Understanding the Relationship between Institutions and Economic Development – Some Key Theoretical Issues,” in Chang, Institutional Change and Economic Development, 17–33. We are still very much in the process of understanding institutional change. However, in making this concession we should be careful not to understate what we know as well. “Emphasizing the diversity of institutions across time and place, however, should not be interpreted as saying that there are no common principles in the ‘technology of institution building’ that can be applied across countries” in Chang, “Institutional Change and Economic Development,” 11. In fact, several works attempt to offer such guidance, such as many cited in this book.

68

   

is sometimes taken as a vacuous truism these days.⁷ Furthermore, it is an important aspect of credible normative views, as I discussed in Chapter 2. Governing institutions play a key role in structuring our life prospects. It is important that such institutions aim to approximate just ones. In addition, institutions should embody commitment to our moral equality. This is the idea that all human beings have equal moral value; their central needs and interests deserve equal consideration. So, for instance, institutions that favor the interests of the better off at the expense of the worse off are often held to be paradigm cases of injustice. Agents of the state ought to treat people in ways that reflect commitment to fairness and our moral equality.⁸ Relatedly, there is considerable literature on why and how good bureaucracies matter for creating more desirable levels of state efficacy and reducing corruption.⁹ In contrast to systems of administration that are based on patronage, nepotism, clientelism, and the like, good bureaucratic systems have entry requirements for eligibility to administrative positions, adequate training to discharge job tasks professionally, have merit-based systems of promotion, and pay reasonable salaries.¹⁰ In addition, they operate with a quality we might identify as something in the vicinity of impartiality, impersonality, or even-handedness, and they have audit and oversight processes to monitor performance and outcomes, all ideas to be further discussed in this chapter. Furthermore, those subject to the authority know that they are entitled to certain forms of treatment and there are procedures in place for registering failures and adequately addressing grievances, if those legitimate expectations are not met. This leads to predictability about what rightfully to expect when interacting with authority. Power needs to be exercised more legitimately, so importantly must be characterized by this quality that might be variously described as impartiality, impersonality, or even-handedness. Exercising power even-handedly and legitimately ⁷ Indeed, the idea is also not very new and has been advocated at least since Aristotle cf. the Politics. For some historical context see Bruce Buchan and Lisa Hill, An Intellectual History of Political Corruption (London: Palgrave Macmillan, 2014). ⁸ Failure to do so can have highly detrimental consequences, including stirring up ethnic tensions and extremism. See, for instance, Sarah Cheyes, Thieves of State: Why Corruption Threatens Global Security (New York; London: Norton, 2016), and Bo Rothstein, The Quality of Government: Corruption, Social Trust and Inequality in International Perspective (Chicago: The University of Chicago Press, 2011). ⁹ For a good sample see for instance, Bo Rothstein’s many works, such as Rothstein, The Quality of Government. ¹⁰ See, for instance, James Raunch and Peter Evans, “Bureaucratic Structure and Bureaucratic Performance in Less Developed Countries,” Journal of Public Economics 75 (2020): 49–71; JanHinrik Meyer-Sahling, Christian Schuster, and Kim Sass Mikkelsen, Civil Service Management in Developing Countries: What Works? (2018). Available at: https://nottingham-repository.worktribe. com/index.php/preview/1649245/Meyer%20Sahling%20Schuster%20Mikkelsen%20-%20What% 20Works%20in%20Civil%20Service%20Management.pdf; Karl O’Connor, Public Administration in Contested Societies (London: Palgrave Macmillan, 2014); Julius Kiiza, “Development Nationalism and Economic Performance in Africa: The Case of Three ‘Successful’ African Economies,” in Ha-Joon Chang (ed.), Institutional Change and Economic Development, 281–300.

 :   

69

matters a great deal. The work of Bo Rothstein has been particularly important in establishing these insights. We turn to discuss a few points from his work that are especially important. Rothstein argues that knowing what can reasonably be expected in your interactions with government officials is important. Predictable and fair use of government power is desirable. Rothstein’s central argument is that electoral democracy is overrated when it comes to creating political legitimacy. Instead political legitimacy can be created, maintained and destroyed, not so much by the input side of the political system as by the output side. In brief, political legitimacy depends more on the quality of government and less on the quality of elections or political representation. Formulated another way, if you have Quality of Government, you will get political legitimacy.¹¹

While I think he has slightly overstated the case, I agree with the spirit of what he is suggesting. In contrast to the focus on how power is acquired we need more discussion of how power is exercised when we consider the legitimacy of particular governments. Ideally, we need a level of legitimacy on both the acquisition and the exercise of power, for a government to count as robustly legitimate. But his point about how power is exercised being relevant to the legitimacy of governments is perhaps neglected in the literature, so deserves emphasis. As he describes it, “impartiality” is the basic norm for generating legitimacy in the exercise of power.¹² What he has in mind with this concept of impartiality can also be described as a kind of impersonality, even-handedness or, probably most accurately, that actions lack inappropriate partiality. The idea is that individual affiliations, such as whether a person is a member of a particular clan, tribe, religion, ethnicity and so on, should play no distorting role in determining the state’s interactions with them. So, if whether or not a person receives benefits to which she is entitled depends, for a particular administrator, on whether she is a member of a specific ethnicity, race or religion, that would be a violation of the kind of impersonality with which bureaucracies should operate. By not implementing the law equally, this administrator exercises power illegitimately.¹³

¹¹ Rothstein, The Quality of Government, 80. ¹² Rothstein, The Quality of Government, 96. ¹³ Quality of Governance is measured by focusing on a state’s impartiality, which Rothstein believes to be a proxy for state quality. Rothstein argues that impartiality is the core measure of the quality of government. Perhaps as one rough measurement proxy this might be reasonable, however as a conceptual issue, one might wonder whether this is an oversimplification. While impartiality is important, it is probably just one factor among several, even if a key one. Good procedures, capacity, and impartiality are not just ends in themselves—they are important to good delivery of actual outcomes. We want good governments to actually do things like provide resilient roading, safe water, public security, and provide healthcare services. We need to look at actual goods and services supplied to make assessments about whether there is sufficiently good government. Resourcing, capacity, and delivery of goods and services are still all significant. However, a charitable interpretation of his position might include this point. So, power should be exercised in ways that show concern for

70

   

Different norms can be appropriate to various spheres of justice. It is important that people employed to exercise government powers appreciate that there are clear boundaries between their government work and other societal spheres. These place severe restrictions on the types of behavior and decisions that are acceptable. In particular, specific norms govern appropriate behavior in the public sphere. Professionalization of the bureaucracy requires training in those norms. So, while it may be appropriate to favor family members in some contexts, it is not appropriate in others. Holders of public office should have codes of conduct governing their behavior in the public sphere and be properly trained in those expectations (as we continue discussing in Section 4.6). As well, they should be held to account for how they discharge the duties of office. Next, I discuss the enormously important topic of accountability and its multiple forms.¹⁴

4.3 Robust Mechanisms of Accountability Leading theorists in accountability, Robert Keohane and Ruth Grant, define the term as follows: “accountability implies that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of those standards, and to impose sanctions if they determine that these responsibilities have not been met”.¹⁵ Mark Bovens, Deirdre Curtin, and Paul ‘t Hart view accountability “as a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences”.¹⁶ On their helpful account, the building blocks of accountability consist in seven important components: 1. A relationship between an actor and a forum 2. In which the actor is obliged 3. To explain and justify

the needs of citizens, such as by providing core public goods essential for a decent life (and doing what is necessary to provide secure access to these, for instance by planning for citizens’ well-being) and this exercise of power must be suitably lacking in partiality. ¹⁴ Do we need a theory of a well-designed institution to appreciate the role that good institutions play in preventing corruption? It is unclear to me that we do. Across his body of work, John Rawls makes many good arguments about institutions being important to promoting justice without specifically devoting much attention to a theory of what constitutes a well-designed institution. See also Section 4.5 of this chapter for more features of a well-designed institution. ¹⁵ Ruth Grant and Robert Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99 (2005): 29–43. ¹⁶ Mark Bovens, Deirdre Curtin, and Paul ‘t Hart, “Studying the Real World of EU Accountability: Framework and Design,” in Mark Bovens, Deirdre Curtin, and Paul ‘t Hart (eds.), The Real World of EU Accountability: What Deficit? (Oxford University Press, 2010), 31–62, at 35.

 :    4. 5. 6. 7.

71

His or her conduct The forum can pose questions Pass judgment; and The actor may face consequences.¹⁷

While there is much agreement about the importance of these seven aspects, one element has frequently been challenged, namely whether the possibility of sanctions is necessary for accountability. Perhaps the threat of judgment by the forum is sufficient for accountability? Alternatively, perhaps stages involving reporting, justifying, and debating, would be enough for an accountability relation? As Richard Mulgan, Kaare Strom, and others argue, the possibility of sanctions of some kind does seem important as the possibility of sanctions, rather than their actual imposition, marks a difference between simply providing information and being properly held to account in a more robust way.¹⁸ Contemporary systems of governance typically include multiple mechanisms of accountability, within and across states.¹⁹ Electoral accountability, office accountability, performance reporting, independent regulation, watchdog journalism, and auditing are some of the prominent accountability mechanisms.²⁰ Together a collection of such mechanisms can constitute a comprehensive regime of accountability. A set of complementary mechanisms can be very effective. Elections, though clearly important, are one very imperfect mechanism for enforcing accountability, given the time that typically elapses between elections. To supplement electoral accountability, accountability should take place in multiple forums and take different forms.²¹ In fact no single avenue of accountability is always ¹⁷ Bovens, Curtin, and ‘t Hart, “Studying the Real World of EU Accountability,” 35. ¹⁸ Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Basingstoke: Palgrave Macmillan, 2003); and Kaare Strom, “Parliamentary Democracy and Delegation,” in Kaare Strom, Torbjörn Bergman, and Wolfgang Müller (eds.), Delegation and Accountability in Parliamentary Democracies (Oxford: Oxford University Press, 2003), 55–106. ¹⁹ Richard Mulgan, “Accountability Deficits,” in Mark Bovens, Robert E. Goodin, and Thomas Schillemans (eds.), The Oxford Handbook of Public Accountability, 545–59. Also, Grant and Keohane identify several kinds of accountability including ones described as hierarchical, supervisory, fiscal, legal, market, peer, and public reputational. See Grant and Keohane, “Accountability and Abuses of Power in World Politics”. ²⁰ For more on these types of mechanisms see Bovens, Goodin, and Schillemas, “Public Accountability,” in Bovens, Goodin, and Schillemans (eds.), The Oxford Handbook of Public Accountability, 1–20. For another useful model see the work of Dennis Thompson, who distinguishes three types of administrative responsibility: hierarchical, participatory, and professional. In its hierarchical form, accountability flows up the chain of command to an elected official. In the case of participatory or popular forms, it flows in the opposite direction, civil service is accountable to the public directly, without elected official’s mediation. Thompson argues that the third model, professional accountability, is the most appropriate for bureaucracy. In such cases civil servants are accountable for upholding an independent set of professional norms. Dennis Thompson, Political Ethics and Public Office (Cambridge, MA: Harvard University Press, 1987). ²¹ Jeremy Pope, “National Integrity Systems”. Jeremy Pope has offered an important model that is influential in the literature on corruption and accountability. He views accountability as like a Greek temple in certain important ways. There are three balls on the top: sustainable development, rule of law, and quality of life. He sees the roof as national integrity and there are several pillars holding it up,

72

   

entirely effective in combating corruption. But the combined force of multiple accountability avenues can offer considerable scope for identifying, exposing, and preventing corruption. In many societies watchdog journalism is thought to play an especially important role in the accountability process. In liberal democracies the news media is widely regarded as playing a significant independent role in protecting the public interest and core freedoms, and generally providing a good counter measure to the power of government.²² Watchdog journalism can also both help keep the powerful to account and help publicize information that may not be widely in view. The news media can help reinforce accountability, through catalyzing or reporting official hearings in diverse contexts such as courts and regulatory agencies. News coverage can raise awareness about government and corporate misconduct and thereby deter those contemplating similar action. Such reports can also assist in information flow, mobilizing support for appropriate electoral, managerial, or legal sanctions against those who violate standards, and all in all, assist in providing incentives for better performance and accountability in adhering to appropriate standards.²³ One has to wonder whether this rather idealized conception of the role the media ought to play bears much relation to how it functions in typical contemporary democracies. Like other accountability mechanisms, it can often play an important role but has limitations.²⁴ Coverage by itself seems insufficient to guarantee accountability, especially when the media outlet itself caters to a particular audience united by a particular ideological viewpoint. And as we discuss at some length shortly, transparency is insufficient to produce accountability. Despite these significant problems, there is also considerable evidence to show that the press can have a good effect on quality of governance, especially control of namely the legislature, executive, judiciary, auditor-generals, ombudsmen, watchdog agencies, the public service, media, civil society, the private sector, and international actors. In Pope’s view, developing countries and countries in transition should move away from top-down systems in which autocratic ruling elites give orders which are followed by those down the line. Instead, they should move to a system of “horizontal accountability” in which power is dispersed and where each is separately accountable; those who govern are accountable to other watchdog agencies. Each of the pillars holding up the roof may have varying strengths and if one weakens increased load must be carried by others or the whole edifice collapses. The composition and strength of the pillars may well vary in different societies. But there can be trade-offs to accommodate this. For instance, in Singapore, there is a comparative lack of press freedom, but this is, to some extent, compensated for by a strong anti-corruption bureau. When a national integrity system is robust invariably there is strong accountability in several sectors such as the executive, legislature, judiciary, Auditor-Generals, Ombudsmen, other “watchdog” agencies (e.g. in the police), civil society (including the professions and the private sector), media, and international agencies. ²² Pippa Norris, “Watchdog Journalism,” in Bovens, Goodin, and Schillemans (eds.), The Oxford Handbook of Public Accountability, 525–41. ²³ Norris, “Watchdog Journalism,” 535–41, especially 527, gives a good summary of the key rationale. ²⁴ For a good discussion of strengths and weaknesses of such models see Rodney Tiffen, Scandals, Media and Corruption in Contemporary Australia (Sydney: University of New South Wales Press, 1999).

 :   

73

corruption, in the right circumstances. So independent media can contribute towards an accountability-promoting environment, such as when coverage of abuse of power generates widespread concern among the public. Legal accountability is another key accountability tool.²⁵ We need appropriate legal frameworks if this tool is to realize its proper potential. Ensuring the law recognizes various forms of corruption as crimes is one part of ensuring the requisite framework is in place. I discuss these sorts of issues in greater detail in the next chapter, so here I offer some remarks only about implementation. Punishing prominent people who are guilty of corruption crimes can act as a significant deterrent to others and shows that a community is serious in its quest to hold people answerable for their corrupt behavior. For the most serious corruption crimes, appropriate legal accountability is important, which involves administering stiff legal penalties and high rates of successful prosecutions. When there is an appropriate legal framework in place, legal accountability should be pursued. However, using the legal system can be problematic when that system is highly politicized, the judiciary or law enforcement are corrupt, penalties for corruption are inappropriate, or the rule of law is weak. In such cases other forms of accountability and corruption-reducing mechanisms can be pursued.²⁶ Office accountability is another important routine tool that can be effective at combating corruption.²⁷ Those holding public office, such as politicians, civil servants, and administrators, have important duties associated with their roles. Such officeholders should be held to account for the ways in which they discharge their institutional duties. Additional accountability mechanisms can include various naming and shaming strategies. Publicly blacklisting or debarring companies found to have engaged in corruption can, under the right circumstances, change behavior in constructive ways. Depriving employees of desirable benefits may also have good results, such as withholding the right to retirement pensions from those found guilty of corruption while holding public office. Citizens can also be encouraged to report corruption through anonymous hotlines or other avenues. The success of such channels often relies on adequate protection for whistleblowers. There are many kinds of actions citizens and other stakeholders can take to enforce accountability, as we discuss in chapters to come, so in this section we have merely introduced the topic of accountability rather than explored its full potential. ²⁵ John Hatchard, Combatting Corruption: Legal Approaches to Supporting Good Governance and Integrity in Africa (Cheltenham, UK: Edward Elgar, 2014); Pope, “National Integrity Systems”. ²⁶ For further discussion of the promise and pitfalls of legal accountability see, for instance, Mark Pieth, “Strengths and Limitations of Criminal Law,” in Fritz Heimann and Mark Pieth, Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford: Oxford University Press, 2018), 199–212. ²⁷ For outstanding discussion of this form of accountability see Emanuela Ceva and Maria Paola Ferretti, Political Corruption: The Internal Enemy of Public Institutions (New York: Oxford University Press, 2021).

74

   

4.4 Transparency and Disclosure Requirements: Opportunities and Limitations Disclosure and transparency are widely trumpeted as an important solution to many problems related to corruption. But transparency by itself has significant limitations; disclosure can sometimes prove to be useless or even counterproductive, as I discuss shortly. Disclosure sometimes works when issues are simple to understand. For instance, once ATM fees were disclosed, people withdrew more cash per visit to avoid the high fixed fees that attached to each transaction.²⁸ However, when matters are complex, disclosure may have little or even counter-productive results. For an example of having only light or no influence, consider how disclosure in an investment prospectus can remove companies from responsibility when investments turn bad. Most consumers will simply ignore pages and pages of disclosed information: for most of us, life seems too short to read all the fine print.²⁹ Disclosure can therefore end up insulating companies from responsibilities. For an example of how disclosure can also be counterproductive in some cases, consider the psychological process of moral compensation. Doing good can license misbehavior under certain conditions. As moral behavior is dynamic, engaging in ethical behavior can appear to give the agent a license to engage in unethical actions as well.³⁰ As we see in these last two examples, disclosure requirements may be quite ineffective. On the other hand, there is a phenomenon known as the “telltale heart effect”.³¹ All sorts of factors influence whether consumers’ behavior is likely to be guided by information about harmful results. While disclosure may not change consumer behavior much (or at all), in some cases it may have large ramifications for producers. Producers may well overestimate the consequences of revealing negative information on consumer behavior. Disclosure may therefore have beneficial outcomes, even when consumers do not pay attention to what is being reported.³² So, whether or not disclosure, or the prospect of having to disclose, can have beneficial results for reducing corruption is complicated. In exploring some of that ²⁸ Omri Ben-Shahar and Carl Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton: Princeton University Press, 2016). ²⁹ As Jesse Eisinger notes, consider “the ‘terms of service’ agreements for the likes of iTunes. Like everybody else, I click the ‘I agree’ box, feeling a flash of resentment. I’m certain that in Paragraph 184 is a clause signing away my firstborn to a life of indentured servitude to Timothy D Cook as his chief caviar spoon keeper”. Jessica Eisinger, “In an Era of Disclosure, an Excess of Sunshine but a Paucity of Rules,” The New York Times, February 11, 2015, 1. ³⁰ Max Bazerman and Anne Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (Princeton: Princeton University Press, 2011). ³¹ George Loewenstein, Cass Sunstein, and Russell Golman, “Disclosure: Psychology Changes Everything,” Annual Review of Economics 6 (2014): 391–419, at 10. ³² Loewenstein, Sunstein, and Golman, “Disclosure,” 10.

 :   

75

complexity we may wonder who uses the information that is being disclosed. The actual users can include a vast array of options and need not necessarily involve individual decision-makers. Organizations, independent media, civil society organizations, advocacy groups, opposition and reform politicians, along with international organizations, such as lenders of funds to governments and credit rating agencies, might all be utilizing this information. One specific audience or another might matter sufficiently to curb corruption in particular organizations or domains.³³ Provision of information can yield accountability when there is a certain level of participation by key groups. But transparency can also undermine accountability. Too much transparency under the wrong conditions can be deleterious for accountability when, for instance, it leads citizens to form views about how corrupt and untrustworthy politicians really are, resulting in citizens’ withdrawal from participation in political matters or loss of public trust. Transparency has both important potential positive and negative consequences. So, the appeal to transparency is no panacea and we need to think carefully about when transparency might assist accountability and just how it might effectively do so in particular cases.³⁴ Clearly, there is something to the idea that transparency has an important role to play, but we need to appreciate the nuance just canvased. The grounding thought is that if some matter cannot survive the scrutiny of public attention that is often a good indication that there is something problematic about it that needs further analysis. If making things transparent makes them seem dubious then that is an important indicator of possible impropriety, which calls for additional reflection. Despite limitations with transparency, such measures can still play an important role in conjunction with other mechanisms such as independent monitoring and oversight. However, some of the keys to success are the need for the right intervention points so that transparency can yield accountability.³⁵ Having the right agents inserted into processes appropriately requires careful thought. We build on these ideas in discussing the ways civic engagement and participation from central stakeholders can translate into the kinds of initiatives that are corruption curbing when we discuss the Multistakeholder Initiatives.³⁶

³³ Often, certain preconditions are also necessary before transparency can have positive effects, for instance certain types of regime must be in place. For more on the variables that must be in play, see for instance, Archon Fung, Mary Graham, and David Weil (eds.), Full Disclosure: The Perils and Promise of Transparency (New York: Cambridge University Press, 2007); Archon Fung and Erik Olin Wright, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (London: Verso, 2003). ³⁴ Fung, Graham, and Weil, Full Disclosure. ³⁵ Fung, Graham, and Weil, Full Disclosure; Fung and Wright, Deepening Democracy. ³⁶ Others who discuss disclosure failures include Marc Rodwin, Conflicts of Interest and the Future of Medicine: The United States, France, and Japan (Oxford: Oxford University Press, 2015).

76

   

4.5 Good Institutional Design Well-designed institutions have several common features. For instance, they align personal incentives with desirable corruption-reducing goals. Good institutional design also includes clear standards and procedures, and ensures employees are properly trained, resourced, and empowered to discharge their core duties well.³⁷ Good institutional design might, in addition, pay attention to changing default settings nudging people to make good choices.³⁸ While having well-designed institutions is important, reforming them can be difficult. Powerful stakeholders who gain much from the status quo often see no reason to change and are insufficiently motivated to do so. Restructuring institutions in corruption-reducing ways can be challenging, but inspirational ethical leaders are often able to initiate the process. Ethical consciousness-raising and training can also have considerable power under the right circumstances. Spending time reflecting on practices, processes, and how decisions are made, is important. There is a role for detailed discussion about cases, norms of appropriate conduct, what constitutes professional behavior, and so forth, in every kind of workplace. Good institutional design includes space for such dialogue, training, and reflection. It also includes clear standards on several matters including conflicts of interest, to be covered in Section 4.8.³⁹ When faced with resistance to change, various strategies are available. Policy can be phased in over a period of time. Having a timetable that delays implementation allows for people to adjust to new norms and to “listen to the part of themselves that should support a given policy rather than to the side of them that does not want to incur the costs”.⁴⁰ Another important strategy involves putting in place devices (such as pledges) that seal parties to a desired course of action. Publicly committing to an action makes it harder to divert from it. Attention to good institutional design often requires sweeping legal changes. Consider how protecting US democracy from multiple forms of corruption requires campaign finance reforms, to fix the distortion and lack of responsiveness issues canvased in Chapter 1. Problems associated with the revolving door require legislative change that prohibits certain employment in the private sector after government jobs, at least for a period of time. Similarly, allowing pharmaceutical

³⁷ Robert Rotberg, The Corruption Cure: How Citizens and Leaders Can Combat Graft (Princeton: Princeton University Press, 2017). ³⁸ Loewenstein, Sunstein, and Golman, “Disclosure”. ³⁹ For more on these topics see Fritz Heimann, “Private Sector Response to Corruption,” in Heimann and Pieth, Confronting Corruption, 221–34; Marc Rodwin, Conflicts of Interest and the Future of Medicine; Jennifer Miller and William English, “Corruption” in Henk A.M.J. ten Have, and Bert Gordijn (eds.), Handbook of Global Bioethics (Dordrecht: Springer, 2013), 599–618; Lawrence Lessig, “Institutional Corruptions,” Edmond J. Safra Working Papers 1 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2013). ⁴⁰ Bazerman and Tenbrunsel, Blind Spots, 170.

 :   

77

companies to test their own drugs using their own procedures and allowing them to publish only studies favorable to their brands might require legal prohibition, given the scope for self-serving bias that this can otherwise bake in. If we hope to control improprieties associated with knowledge about pharmaceutical products and services, we need to design institutions that include appropriate mechanisms for their independent evaluation.⁴¹ Sometimes legal prohibitions are appropriate or necessary for such good institutional design.

4.6 Appropriate Ethical and Professional Standards, Procedures, and Training Institutions do not generate or sustain themselves. They are designed, influenced, implemented, reformed, and corrupted through individuals.⁴² So while institutions with robust procedures are important, individuals navigating those procedures are equally important.⁴³ Institutions matter, but so do the individuals that populate these. We need to engage individuals through good institutional design and robust ethical education.⁴⁴ Human agency animates the framework that institutions provide and so these two components work in tandem. Another equally important part of the story is that proper procedures need to be effectively implemented, monitored, and enforced if they are to work properly.⁴⁵ Again, the integrity of the actors will be crucial to success. Especially important in all of this is the behavior of those in leadership positions.⁴⁶ When leaders set bad examples citizens can feel that acting corruptly is justified. When elites in authoritarian systems divert public funds to offshore personal bank accounts, citizens might argue that breaking laws can be a just response. Citizens feel justified in taking advantage of opportunities for personal gain when leaders are doing so. Common components of ethics training programs include education about expected conduct and standards in particular workplaces, along with examples of behaviors that do not comply.⁴⁷ This kind of training is particularly important for public servants where agents of the state have important justice responsibilities. Public servants should be expected to adhere to robust standards, which might

⁴¹ For more ideas about institutional design in this complex area see, for instance, John Ionnidis, “How to Make More Published Research True,” PLOS Medicine 11 (2014): 1–6. ⁴² Research Programme Consortium for Improving Institutions for Pro-poor Growth, Beyond Institutions: Institutions and Organizations in the Politics and Economics of Poverty Reduction—a Thematic Synthesis of Research Evidence (Manchester: Research Programme Consortium on Improving Institutions for Pro-Poor Growth, 2010). Available at: https://assets.publishing.service. gov.uk/media/57a08b00e5274a31e00008e8/8933_Beyond-Institutions-final.pdf/. ⁴³ Rotberg, The Corruption Cure. ⁴⁴ Pope, “National Integrity Systems”. ⁴⁵ Rotberg, The Corruption Cure. ⁴⁶ Rotberg, The Corruption Cure. ⁴⁷ Pope, “National Integrity Systems”; Miller and English, “Corruption”.

78

   

include asset declarations and rigorous procedures to prevent conflicts of interest. There should also be training on procedures for reporting instances of corruption or maladministration, and guidance concerning whistleblowing protections available to those who report inappropriate behavior. As well, there should be training on the kinds of sanctions or penalties that come into play when standards are violated. We continue to discuss this theme of improving ethical behavior in all the sections to come.

4.7 Controlling Conflicts of Interest We are not good judges of what affects us in decision-making when conflicts of interest are in play. We have many blind spots.⁴⁸ Troublingly, when people have a vested interest in seeing a problem a certain way, objectivity can be compromised, a phenomenon known as motivated blindness. A good example of this tendency not to notice things we would prefer not to see is accountants from Arthur Anderson failing to notice aspects of Enron’s activities in the early 2000s. Arthur Anderson earned 25 million in auditing fees from Enron in 2001 and 27 million in consulting fees.⁴⁹ There was a clear interest in retaining such lucrative clients. Furthermore, some of the auditors on the case hoped to be hired by Enron. The bias in favor of those paying the bills retarded auditors’ abilities to distance themselves from clients. As another example consider how conflict of interest exists in the U.S. credit-rating system. The largest credit-rating agencies are all paid by the companies they rate. This arrangement biases their assessments towards ratings that favor the interests of those companies, with disastrous consequences in the case of the Global Financial Crisis. Everyone is affected by this phenomenon, including professional service providers. Biases and conflicts run deep and suggest the need for oversight is high.⁵⁰ Professionals cannot be trusted to regulate themselves as well as they might think, as we saw with the healthcare data presented in Chapter 1. So, professionals might need to excuse themselves from certain kinds of decisions when their interests are too closely involved and compromise judgment. Conflict of interest guidance rules might need to be quite sophisticated to capture many of our blind spots. In some cases we must be removed from the decision-making process altogether. In other cases significant oversight and regulation around our decisions might suffice.⁵¹ Conflicts of interest underscore the need for appropriate ethical and professional training. Codes of ethics often give clear guidance about common conflict of interest problems such as what to do about acceptance of gifts or declaring outside interests. Codes often contain requirements for due diligence and care in ⁴⁸ Bazerman and Tenbrunsel, Blind Spots. ⁴⁹ Bazerman and Tenbrunsel, Blind Spots, 82. ⁵⁰ Rodwin, Conflicts of Interest and the Future of Medicine. ⁵¹ Rotberg, The Corruption Cure.

 :   

79

conflicted interactions, along with some monitoring and disciplinary procedures, should violations come to light. Conflicts of interest also underscore the need for other elements already discussed, such as good institutional design, appropriate transparency, and accountability. Adequate oversight processes are clearly also important, so the discussion continues in the next section.

4.8 Independent Monitoring and Oversight No matter how well-designed institutions and accountability mechanisms are, there is an important role for independent monitoring and oversight.⁵² For one example and as we have just been discussing, we have well-known problems of managing blind spots and high-level conflicts of interest. Independent monitoring builds on transparency and amplifies its promise by assigning oversight powers to third parties. In theory, government regulators, private organizations, or sufficiently independent compliance departments within firms, can all engage in effective independent monitoring under various circumstances. The details of what is being monitored matter as sometimes highly technical knowledge can be required in order to judge compliance. In such cases oversight might need to take place in partnership with those whose performance is being judged. This can create corrupting dependencies and regulatory capture in which monitors’ independence can be undermined by the lobbying efforts of those subject to monitoring. Oversight efforts can also be subverted by powerful industries resisting adequate scrutiny. We will see some particularly clear examples of these issues in Chapter 6. Independent monitoring and oversight are particularly important when we have collective action problems, such as those I go on to discuss in the next two sections.

4.9 Curbing Corruption as a Collective Action problem Some societies are pervaded by corruption; you are exposed to it in every facet of life such as health, education, or recruitment. It becomes something like standard operating procedure, an accepted part of the way we do things around here. With daily life so thoroughly infused with corruption this can amount to a situation in which we have a deeply held system of beliefs about what can be expected of other agents with whom one will interact.⁵³ Successfully tackling corruption in such

⁵² Miller and English, “Corruption”; Rotberg, The Corruption Cure. ⁵³ For more on corruption as a collective action problem see for instance, Alina Mungiu-Pipiidi “Becoming Denmark: Historical Designs of Corruption Control,” Social Research 80 (2013): 1259–86;

80

   

environments calls for a different strategy that is similar to solving collective action problems. In highly corrupt societies even if you want to make institutional changes more conducive to integrity, why would those who stand to benefit from corrupt practices be motivated to make relevant changes? As Bo Rothstein writes: In a thoroughly corrupt setting, even people who think corruption is morally wrong are likely to go along because they see no point in doing otherwise, since “all” other agents take part in the corrupt game. In encouraging change, recognizing this fact has important implications. Changing norms about what is good or bad are of little relevance since most people already know about them. The important thing will be to change agents’ beliefs about what “all” the other agents are likely to do when it comes to corrupt practices.⁵⁴

In such cases we have to change social norms; we have to change beliefs about what others are doing and this calls for an additional strategy to those already discussed. How do we change people’s beliefs about what all the other agents are doing? It is important that changes, or attempts to make changes, are visible and that there is strength in numbers. Some mechanisms involve making punishment for corruption highly conspicuous, such as wide coverage of high-profile arrests. A prominent and active social movement is another example. Creating social action coalitions can be important and I elaborate on some successful examples in the next section.⁵⁵ As a prelude to that fuller discussion there are some well-known ways to begin the process by mobilizing those who bear the costs of corruption. Recruiting support from those who suffer significant burdens and asking for their group support can be effective. In cases where police and inspectors regularly demand bribes, small business owners and stallholders at local markets could agree that they will not make any such payments and rather will report such demands both to the coalition and authorities. The backing of the coalition is important. It can provide the support necessary to make progress by, for instance, offering legal services, access to journalists, and other resources necessary to make threats of exposure (and actual exposure) damaging to the perpetrators. Building on these local efforts, the force of such processes can be increased by recruiting business owners, farmers, and stallholders at other markets to resist police shakedowns,

Donatella Della Porta and Alberto Vannucci, Corrupt Exchanges: Actors, Resources, and Mechanisms of Political Corruption (New York: De Gruyter, 1999); Mark Pieth, “Collective Action,” in Heimann and Pieth, Confronting Corruption, 235–40; Rothstein, The Quality of Government, 98–119. ⁵⁴ Rothstein, The Quality of Government, 118–19. Other theorists who argue for similar analyses include Mungiu-Pipiidi “Becoming Denmark”; Della Porta and Vannucci, Corrupt Exchanges. ⁵⁵ Johnson and Kapundeh, “Building a Clean Machine”. According to Michael Johnston, social action coalitions are the best strategy for creating a visible and legitimate reform movement quickly.

 :   

81

stick together and expose those who ask for bribes. This kind of collective action can be an effective pathway for change.⁵⁶

4.10 Collaborations and Social Action Coalitions As foreshadowed, there is a need to change people’s perception of their own efficacy and get them to believe that they can make a difference.⁵⁷ Sharing stories can help in this process, as can providing organizational support. I illustrate with two cases of effective social action campaigns. Both illustrate well how we can assist in the belief-changing process and demonstrate the power of what can be accomplished through organization.

4.10.1 The Fifth Pillar Campaign Requesting bribes from those seeking basic services to which they are entitled is rampant in India. Failure to pay bribes can result in failures to provide basic public services which are supposed to be provided free of charge. Many poor families are regularly coerced into paying bribes to officials for access to such basic entitlements. One example of this would be supplying a title for land owned, so that the landowner can use that document as collateral when applying for a loan. Another common example is that widows are unable to get food through the Public Distribution System because those administering it demand bribes before they will issue the ration card that grants access. Before we get to the campaigns and why they were well designed, it is important to understand how public officials often thought of their decisions to engage in corruption in that context. It was widely believed that the purpose of obtaining public office is to provide money, favors, opportunities, and so forth, to one’s associates. Those who chose not to use their influence in such positions to extract such benefits risked disrespect or criticism.⁵⁸ Even when individuals would prefer not to go along with the corrupt norms, they felt forced to go along publicly or risk being ostracized. Societies get stuck in a tricky situation: corruption is the norm,

⁵⁶ Other ways to help support action include reducing the costs for first moves and protecting first movers from reprisals (Johnson and Kapundeh, “Building a Clean Machine”). Organizations and social action campaigns can perform these functions as we continue discussing. ⁵⁷ For excellent discussion on how to change social norms when corruption is the norm, see for instance, World Bank, “When Corruption Is the Norm,” World Development Report (2015): 60–1; Johnson and Kapundeh, “Building a Clean Machine”; Mungiu-Pipiidi “Becoming Denmark”; Panth, “Changing Norms is Key to Fighting Everyday Corruption,” CommGAP Discussion Papers, Communication for Governance and Accountability Program (Washington DC: World Bank, 2011). ⁵⁸ World Bank, “When Corruption Is the Norm,” 60.

82

   

even though most of the population would prefer not to have such a norm, a classic collective action problem. In such cases, one powerful change pathway is to interrupt officials’ automatic thinking to reassess their views about public service. Creating novel situations can be such a circuit breaker especially when resistance is prominently made public. The Indian nongovernmental organization, Fifth Pillar, created a zero-rupee note with the inscription “I promise to neither accept nor give a bribe” and it was designed for people to hand out when asked for bribes. It looked like a regular 50-rupee note but has the inscription: “Eliminate Corruption at All Levels” and instead of the usual “I promise to pay the bearer” inscription, the bill reads “I promise to neither accept nor give a bribe”. The NGO has distributed more than one million bills so far. Volunteers handed them out near places where officials frequently solicited bribes and maintained a visible presence. The note helps citizens demonstrate that they are not going to pay more for free services to which they are entitled. The note also signals that the person has the support of the NGO and others. This campaign had dramatic consequences. One official was supposedly so stunned by being handed one of these notes that he returned all the bribes he had been soliciting for electricity provision to the entire village. Another part of the campaign focused on educating the next generation. They targeted schools and adolescents, teaching students about the toxic nature of bribery and corruption. They asked students to pledge that they will not engage in such activities and to spread the word to their parents.⁵⁹

4.10.2 The “I Paid a Bribe” Campaign In a second important case study from India, Janaagraha, a nonprofit organization, built an online platform, ipaidabribe.com, to encourage victims to report on bribery incidents. Users were encouraged to report on both instances of being coerced into paying bribes or instances when honest officers on duty did not ask for bribes. The idea was to empower citizens to share stories to build greater awareness of everyday corruption in efforts to improve law and procedures that could effectively deter bribery. This initiative taps into the power of exposure. People behave differently when they are being observed, or even when they think they might be noticed, to how they might behave without the threat of exposure. Transforming opaque corrupt acts into public behavior was, in many cases, sufficient to exert the necessary social pressure on officials to perform their roles as intended. This initiative has made it easier for citizens to stigmatize bribery and shame those public servants who ⁵⁹ For more on such cases see for instance Panth, “Changing Norms Is Key to Fighting Everyday Corruption”.

 :   

83

solicit bribes. The initiative also helped systematize information, facilitating better enforcement in serious cases of patterned corruption, and created momentum for further compliance and enforcement. The support of an organization was crucial for individual’s willingness to report on bribery. Citizens become more confident in dealing with officials and refusing to engage in bribery when they have the support of many people with power to take remedial action. Knowing the organization would assist them if they got into trouble with authorities provided confidence and also reduced the potential costs of taking action. Organizational support was important in setting up the frameworks and providing the online technology, which constituted the shell necessary to empower citizens and build solidarity to fight corruption. The information provided at the online tool also strengthened pressure on governments to take corrective measures against petty corruption.

4.10.3 General Lessons: Looking Back and Forward The two cases illustrate some common themes from successful social action coalitions and campaigns. The coalitions can provide important resources, social support, legal expertise, educational resources, technological innovations, and in many other ways help to promote and support momentum for integrity reforms. Civic movements against corruption are able to build momentum through carefully planned strategies. Gaining support requires forging coalitions from different members of society, networking with civil society organizations, community groups, and media channels, to get people with different interests to join the initiative. Galvanizing mass support and strengthening anticorruption drives requires coalitions among diverse groups in a society. Campaigns to initiate civic anti-corruption actions have aimed to prevent corruption through public education, disseminating information, raising awareness, changing attitudes, and cultural expectations. They have assisted in monitoring and investigation through research and reporting, pressuring public institutions to be more transparent. And they have helped improve enforcement of anti-corruption laws and regulations, by including citizen and media advocacy, promoting integrity pacts, reforming rules and regulations. Through carefully crafted interventions they have been able to generate widespread public intolerance of corruption which has successfully brought about significant changes, even if there is much work still to do in getting to a low-corruption setting. As social campaigns plan future activities, there are noteworthy resources available that might make it easier to organize and implement new campaigns. For instance, the internet, social media, and mobile phones facilitate the organization of dispersed interest groups. It is also important to understand better why people are motivated to join social action initiatives. Motivations that can be

84

   

particularly important in sustaining broad coalitions of people with different interests include having a shared sense of purpose or solidarity.⁶⁰ There is also interesting research about how people can be intrinsically motivated to cooperate especially to punish norm violators. As Elinor Ostrom has shown, a social norm can work as well at generating cooperative behavior as an externally imposed set of rules that relies on monitoring and sanctioning. Anti-corruption practitioners have also had some good results in campaigns that promote the social norm of clean government.⁶¹

4.11 Conclusions There are many forms of corruption and reasons why it is sometimes difficult to treat. No single mechanism will successfully control it. Just as there are multiple forms of corruption, controlling it will take several forms and a variety of agents. There are also different ways to control it—almost no mechanism is required or sufficient. However, as this survey suggests, there are a number of ways to make progress. Here I canvased the role that ten kinds of interventions can play in controlling corruption. These include the importance of effective mechanisms for accountability, appropriate transparency embedded in supportive contexts, good institutional design, and high quality institutions that promote ethically robust processes and expectations. I also stressed the significance of individuals acquiring a keen awareness of professional workplace conduct, which requires appropriate ethical and professional training, along with procedures governing conflicts of interest. Independent oversight and monitoring are crucial to making and sustaining corruption-curbing gains. When corruption involves a collective action problem, special attention is needed to reform social norms, along with how to initiate and sustain change. Collaborations and coalitions can be especially important in solving several varieties of corruption. Social action coalitions can be very successful when they create intervention points that challenge worrisome social norms. They can also harness the power of resistance, publicity, and the resources of social organizations. In the next chapter we build on these insights by exploring some of the actions currently being taken to combat corruption that draw on such empirical knowledge. As we build on the power of collective action in chapters to come, it may be important to note that we can both analyze certain kinds of corruption as collective action problems and use the language of collective action to seek solutions to those problems in practice. In fact many are using such language as ⁶⁰ Johnston and Kapundeh, “Building a Clean Machine”. ⁶¹ Elinor Ostrom, “Collective Action and the Evolution of Social Norms,” Journal of Economic Perspectives 14 (2000): 137–58.

 :   

85

they seek to implement constructive initiatives to resolve corruption problems. The term “collective action” has been coopted by practitioners to describe an approach to implementing effective solutions.⁶² They have developed what they call Collective Action Initiatives, Policies, and Practices, topics that we revisit as the argument deepens, beginning with the next chapter.

⁶² For an enormous amount of practical material on Collective Action Initiatives see the Collective Action website maintained by the Basel Institute on Governance at www.collective-action.com.

5 Contemporary Corruption-curbing Tools 5.1 Introduction Everyone has duties to support institutional schemes already in existence that either are delivering effectively on core components of justice or are credible prospects for doing this here and now. This is one important implication of our duties to support the maintenance or bringing into being of institutions that can secure justice. This gives us important reasons to care about how well our existing administrative structures do in securing their just goals and how they can be improved if there are important deficits. In the previous chapter we canvassed important insights concerning how to tackle corruption effectively. In this chapter we look at some of the legal frameworks, policy initiatives, and human rights tools that incorporate this knowledge. I discuss some illustrative examples of how anticorruption measures are organized at supranational levels. I focus on some examples that will be of considerable assistance as we seek to locate responsibility in chapters to come.¹ We begin with the most comprehensive agreement that guides international and domestic anti-corruption efforts, the United Nations Convention Against Corruption (UNCAC). In the next section I summarize central elements of UNCAC, emphasizing its comprehensive nature in dealing with core areas such as prevention, international cooperation in returning stolen assets, criminalization of certain offences, and combating corruption in routine government operations. UNCAC is an impressive accomplishment in our world of diverse cultures. It is a comprehensive agreement that specifies universally agreed acts of corruption and ways to address corruption within one framework. It fosters international exchange on matters such as effective corruption-curbing practices. The ¹ My treatment of anticorruption measures is of necessity quite selective. Readers who want further resources on corruption-curbing instruments might begin by consulting the very comprehensive, Compendium of International Legal Instruments on Corruption (New York: United Nations, 2005) which covers all the major international and regional treaties and relevant instruments, including those that contain both binding obligations and non-binding, “soft law” instruments. They might also examine the United Nations Handbook on Practical Anti-Corruption Measures for Prosecutors and Investigators; the United Nations Manual on Anti-Corruption Policies, and the United Nations AntiCorruption Toolkit. All these documents are available on the web page of the United Nations Office on Drugs and Crime, available at: https://www.unodc.org/unodc/en/corruption/.

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0005

 - 

87

implementation review mechanism provides important opportunities for accountability, mutual learning, and assistance. Altogether, the convention and implementation mechanisms promote knowledge of measures that all countries can take to strengthen their legal and regulatory regimes’ abilities to fight corruption and hold each other to account for progress on these goals. In Section 5.3 I emphasize some core state requirements. States have very important duties in relation to UNCAC and these will require a host of further actions be taken. If states fulfill their obligations we make significant progress in creating the scaffolding to facilitate resilient low-corruption societies. In Section 5.4 I address the question of how effective UNCAC has been so far in getting parties to meet their obligations. I examine some key signs of success. Central commitments are being implemented and notable progress is building momentum for further improvements. In Sections 5.5 and 5.6, I explore Multi-stakeholder Initiatives (MSIs). Section 5.5 deals with the original prominent MSI that paved the way for others to follow. The initial MSI involved transparency in extractive industries. Considering the role that corruption plays around extraction of high value natural resources and how this fuels conflict and social tension, peaceful and inclusive societies are unlikely to come about without tackling corruption in the extractive sector. So, engaging in collective actions such as the Extractive Industries Transparency Initiative is essential if we are hoping to achieve a low-corruption society. Section 5.6 deals with the construction sector and an important Multistakeholder Initiative that is doing good work there. Construction is frequently ranked as one of the areas of economic activity most rife with corruption. Corruption in this sector leads to unsuitable, defective, or dangerous projects that vastly undermine efforts to promote pro-poor, social, and economic development. Corruption in public-sector construction projects also undermines the rule of law and strong and accountable institutions, all of which are essential for sustained beneficial development. In Section 5.6 I explore some of the corruption risks involved at various stages in the life cycle of construction projects, from preparing a proposal for a project, through tendering, implementation, and operational phases. We also discuss the robust Multi-stakeholder Initiative that operates in this sector, namely the Construction Sector Transparency Initiative (CoST).² In this chapter, by looking at agreements, initiatives, legal regimes, and policies already in existence, we realize that there is already some well developed scaffolding for success in place. Exploring some of the Multi-stakeholder Strategic Initiatives currently working well to curb corruption, we gain appreciation that ² Recently, CoST has changed its website and official long name, even though they retain the CoST acronym. The new full name is the Infrastructure Transparency Initiative and the new website is available here: http://www.infrastructuretransparency.org/home. Since the initiative is still widely known by the original name, I continue to use it, given that the recent change has not yet had wide uptake and the new term will likely be unfamiliar to readers.

88

   

there are excellent examples of effective collaborative approaches to addressing important collective action problems. We realize that much of the hard work has already been done, and what we invariably have to do is join in and join up, to form stronger coalitions that can amplify gains. By examining specific initiatives in the extractive industries and construction, we understand how MSIs are structured and the many agents involved who could play a role in corruptionreducing efforts. These cases will give us some rich texture that I draw on in later chapters in discussing the nature of our corruption-curbing responsibilities. They also help us identify specific agents who will have particular kinds of responsibilities, as we do in later chapters, especially Chapter 7.

5.2 Core Parts of UNCAC: An Overview UNCAC is an international treaty adopted by the UN General Assembly in October 2003. As of May 9, 2019, 186 states have signed up to it. The Convention is unique for several reasons. It has worldwide coverage and enjoys comprehensive scope. It recognizes the importance of both preventive and punitive measures. It addresses the cross-border nature of corruption with strong provisions on international cooperation and returning the proceeds of corruption. The convention began operating in December 2005. There is a Conference of the State Parties that reviews implementation and facilitates activities that promote the Convention. The Convention calls on parties to undertake a number of actions in the areas of prevention, criminalization, international cooperation, and asset recovery. Preventive actions include measures for both the public and private sectors. The Convention requires states to improve transparency in funding election campaigns and political parties. States are also obligated to ensure certain offences are crimes according to domestic law. The Convention compels states to cooperate with others in preventing corruption, along with investigating and bringing offenders to justice. States have also agreed to assist with asset recovery. The Convention calls for the participation of civil society and non-governmental organizations in accountability processes. It emphasizes the importance of citizens’ access to information. It is worth drawing attention to some of the items explicitly mentioned as motivating UNCAC. The preamble notes that “corruption is an insidious plague that has a wide range of corrosive effects on societies”.³ These include undermining democracy and the rule of law, leading to human rights violations, erosion of quality of life, and threats to human security. It notes how corruption ³ UN Office on Drugs and Crime, United Nations Convention against Corruption (New York: United Nations, 2003), iii.

 - 

89

disproportionately affects the poor by diverting funds intended for development, undermining developing countries’ abilities to provide basic services, and generally promoting inequality and injustice. It also highlights how corruption is a “major obstacle to poverty alleviation and development”.⁴ The Annex notes a few additional motivators that bear emphasis, such as, that states are concerned about the way corruption undermines the stability and security of societies, undermining democratic institutions and values, and jeopardizing sustainable development and the rule of law.⁵ It expresses concern for the links between corruption and other forms of crime, such as organized crime. It underscores concerns that corruption is a transnational phenomenon that affects all societies and economies, which means that international cooperation is essential to its prevention and control. It emphasizes that prevention and eradication of corruption are responsibilities “of all States and that they must cooperate with one another, with the support and involvement of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, if their efforts in this area are to be effective”.⁶ Turning now to some of the core content of UNCAC, it is important to appreciate that some provisions are mandatory while in other cases states are asked only to consider adopting a provision. In discussing the eight chapters that make up UNCAC, I first draw attention to some of the requirements before outlining non-mandatory items. The first UNCAC chapter deals with general provisions and outlines three main goals for the Convention. It aims to strengthen measures that will prevent and combat corruption efficiently and effectively. It also aims to facilitate and support international cooperation, including technical assistance in the prevention of and fight against corruption. And it aims to promote integrity, accountability, and proper management of public affairs and property. The second UNCAC chapter deals with preventive measures. It includes discussion of transparent and competitive public procurement systems, along with transparency and accountability in the management of public finances. It underscores the importance of merit-based civil service with comprehensive frameworks for avoiding or addressing conflicts of interest. It includes coverage of the importance of transparency in public administration through measures such as ensuring that the public has effective access to information. It emphasizes the importance of auditing and accounting standards for the private sector, along with independence of the judiciary and prosecutors. It fortifies the place for active involvement of civil society, non-governmental organizations, and communitybased organizations in efforts to prevent and combat corruption. ⁴ UN Office on Drugs and Crime, United Nations Convention against Corruption, iii. ⁵ UN Office on Drugs and Crime, United Nations Convention against Corruption, 5–7. ⁶ UN Office on Drugs and Crime, United Nations Convention against Corruption, 6.

90

   

The second UNCAC chapter includes specific requirements mandating state parties to engage in particular activities. Mandatory items include requirements to establish an independent anti-corruption body or bodies. States are also required to establish appropriate public procurement and public finance management systems that are transparent, and based on objective criteria. They are also required to enhance transparency in public administration such as through procedures facilitating public access to information. Another requirement is to promote integrity among the judiciary and prosecution services. State parties are required to enhance integrity in the private sector by promoting transparency, implementing employment restrictions on public officials after leaving office, adopting accounting and auditing standards, and establishing penalties at civil, administrative, and criminal levels for violations. Recognizing their importance in partnering to prevent and combat corruption, they are furthermore required to promote active participation of civil society and through non-governmental organizations. States are also required to establish regulatory and supervisory regimes to detect and deter money laundering. State parties are called on to undertake activities that are not mandatory such as ensure there are objective criteria in recruitment, retention and promotion policies, and enhance transparency in the funding of electoral campaigns. Furthermore, they are expected to ensure codes of conduct apply to the performance of public functions and promote asset declaration systems for public officials concerning their private interests. The third UNCAC chapter deals with criminalization and law enforcement. States are required to establish specific activities as crimes, such as bribing national or foreign public officials and international organization officials. Criminalizing embezzlement, misappropriation of property by a public official, money laundering, and obstruction of justice, are all mandatory. The fourth UNCAC chapter concerns international cooperation. State parties are required to cooperate and assist others in cross-border criminal matters that are corruption offences according to the Convention, which includes activities like collecting relevant evidence for use in court proceedings. The fifth UNCAC chapter deals with asset recovery. Returning proceeds of corruption to countries of origin is a central principle. Parties are obligated to assist each other in such activities offering each other wide cooperation and assistance in these endeavors. Chapter 6 of UNCAC covers technical assistance and information exchange. In this part of the convention support that assists countries in complying with the UNCAC provisions should be made available, such as by offering training and sharing information. Training might encompass investigative methods or developing strategic anti-corruption policies. Chapter 7 of UNCAC outlines the mechanisms for implementation. Article 63 establishes the Conference of the States Parties (COSP). This body holds biennial

 - 

91

sessions. It aims to improve capacity and cooperation among states in achieving the Convention’s objectives. The mandate of the COSP includes facilitating exchange of information among states on corruption patterns and successful practices to prevent and combat corruption. It also aims to strengthen cooperation with relevant international and regional organizations, mechanisms, and nongovernmental organizations. Periodically it also reviews how well states are implementing the convention. The Implementation Review Group currently meets a couple of times a year. The meetings present opportunities for countries to report on implementation, share information on best practices, and establish dialogues on pertinent current and emerging issues. The Working Group on Prevention and the Working Group on Asset Recovery both meet annually. They are responsible for advising and assisting the Conference in regards to preventive measures and asset recovery issues respectively. The Expert Meeting on International Cooperation generally assists and encourages the development of knowledge relevant to international cooperation, facilitating the exchange of experiences among states and assisting with identifying capacity-building needs of states. Chapter 8 of UNCAC deals with final provisions, reminding states to take necessary legislative and administrative measures to ensure the implementation of the Convention’s obligations. The Implementation Review Mechanism consists of a multi-stage peer review process involving the review of each state by two peers, one from the same region and one from another. There have been two five-year cycles so far. The first cycle started in 2010 and focused on Chapters 3 and 4 of UNCAC on criminalization, law enforcement, and international cooperation. The second cycle started in 2015 and concentrated on Chapters 2 and 5 of UNCAC, corruption prevention measures and asset recovery. At the end of the process, only an executive summary needs to be published and this is released on the website for the United Nations Office on Drugs and Crime (UNODC). UNCAC provides an important political tool for dialogue between countries and between governments and their citizens. It also sets out a legal basis for cooperation, including on matters such as mutual legal assistance in the recovery and return of stolen assets. UNCAC represents a tremendous achievement in several respects. It describes universally agreed acts of corruption and universally agreed ways to address corruption within one framework. It provides an important opportunity to unite and transcend previous piecemeal efforts. UNCAC also fosters international exchange on matters such as good practices and lessons learned, and can provide an important channel for coordinating international assistance.⁷ The implementation ⁷ There are other aspects of the UNCAC framework that provide important structure for progress. For instance, the UNCAC Coalition is a global network of more than 350 civil society organizations in over 100 countries which are committed to UNCAC implementation. The international coalition provides an important monitoring function. Through the power of collective action it can also provide another avenue for accountability, especially when domestic options are limited.

92

   

review mechanism provides important opportunities to sustain and generate reform motivation resulting in significant constructive follow-up actions. UNCAC country reports can assist in identifying good practices and helpful guidance that can be widely applied and adapted for other contexts. The Convention outlines comprehensive standards and measures that all countries can apply that would strengthen their legal and regulatory regimes’ abilities to fight corruption.⁸

5.3 UNCAC: Some Examples of Core Obligations for State Parties As I have been discussing, state parties have undertaken a number of commitments under the UN Convention against Corruption (UNCAC). These include commitments to promote and strengthen measures designed to prevent and combat corruption. In this section I select some key sample commitments to use in a summary of important specific obligations. In chapters to come I draw on such rich detail in discussing how to share responsibilities for addressing corruption in our globalized world. This analysis is especially useful in making contentful suggestions about allocating our responsibilities among multiple agents, as I discuss in Chapter 7.

5.3.1 On Prevention States are reminded that effective public access to information is essential for corruption prevention and calls on them to adopt and implement comprehensive access to information legislation. The chapter on prevention also calls for national-level public registers of companies and trusts to be maintained with updated current information, especially concerning who are the beneficial owners. There are calls on governments to publish beneficial ownership information of all bidders for public procurement contracts and to enforce customer due diligence obligations for banks and other service providers, including lawyers and trust or company formation providers. It further calls on state parties to collect and publish asset declarations from people with prominent public functions (often referred to as “Politically Exposed Persons”). Next I provide the wording for some specific examples of responsibilities that show the details of what is required as this will help to inform later discussion on specific responsibilities.

⁸ For further excellent summary of core points from UNCAC see Hannes Hechler, Mathias Huter, and Rugger Scaturro, UNCAC in a Nutshell 2019: A Quick Guide to the United Nations Convention against Corruption for Donor Agency and Embassy Staff (Bergen: Chr. Michelsen Institute, 2019). Available at: https://www.u4.no/publications/uncac-in-a-nutshell-2019.

 - 

93

Article 7 deals with preventive responsibilities in the Public Sector. It states: Each state party shall, where appropriate and in accordance with the fundamental principles of its legal system, endeavor to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials: (a) That are based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude; (b) That include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions; (c) That promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State Party; (d) That promote education and training programs to enable them to meet the requirements for the correct, honorable and proper performance of public functions and that provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the risks of performance of their functions.⁹ From Article 7 it is also worth drawing attention to state obligations to “enhance transparency in funding elections” and “strengthen systems that promote transparency and prevent conflicts of interest”. Article 8 deals with mandatory codes of conduct for public officials. Each state is obligated to promote integrity, honesty, and responsibility among its public officials. “In particular, each State Party shall endeavor to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honorable and proper performance of public functions”.¹⁰ Each state is also required to establish systems that “facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions”.¹¹ Public officials are also obligated to make declarations to appropriate authorities regarding “outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials”.¹² Similarly, Article 9 offers specific guidelines for matters such as public procurement and management of public finances. In this article states are required to take necessary measures “to establish appropriate systems of procurement, based ⁹ ¹⁰ ¹¹ ¹²

UN Office on Drugs and Crime, United Nations Convention against Corruption, 10–11. UN Office on Drugs and Crime, United Nations Convention against Corruption, 11. UN Office on Drugs and Crime, United Nations Convention against Corruption, 11. UN Office on Drugs and Crime, United Nations Convention against Corruption, 12.

   

94

on transparency, competition and objective criteria in decision-making, that are effective, inter alia, in preventing corruption”.¹³ They must also take steps to ensure personnel responsible for procurement do their jobs with integrity such as by ensuring they are properly screened, trained, and appropriately declare relevant interests.¹⁴ States are furthermore required to introduce measures that “promote transparency and accountability in the management of public finances” such as through measures including “timely reporting on revenue and expenditure,” “accounting and auditing standards and related oversight,” “effective and efficient systems of risk management and internal control” and when compliance fails, appropriate corrective actions.¹⁵ Note that state parties have obligations to take steps to prevent corruption involving the private sector and to provide “effective, proportionate and dissuasive civil, administrative or criminal penalties” for compliance failures.¹⁶ To achieve these goals they may promote the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honorable and proper performance of the activities of business and all relevant professions and the prevention of conflicts of interest, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses within the State.¹⁷

In addition, they are required to promote transparency among private entities, including, by promoting measures concerning the identity of legal and natural persons involved in establishing and managing corporate entities.¹⁸ They are also required to assist in preventing conflicts of interest by restricting “as appropriate and for a reasonable period of time” the employment and professional activities “of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure”.¹⁹ Article 13 involves requirements to promote societal participation. In this article state parties are required to “promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence,

¹³ ¹⁴ ¹⁵ ¹⁶ ¹⁷ ¹⁸ ¹⁹

UN Office on Drugs and Crime, United Nations Convention against Corruption, 12. UN Office on Drugs and Crime, United Nations Convention against Corruption, 12. UN Office on Drugs and Crime, United Nations Convention against Corruption, 12–13. UN Office on Drugs and Crime, United Nations Convention against Corruption, Article 12.1, 14. UN Office on Drugs and Crime, United Nations Convention against Corruption, Article 12.2 (b), 14. UN Office on Drugs and Crime, United Nations Convention against Corruption, Article 12c, 14. UN Office on Drugs and Crime, United Nations Convention against Corruption, Article 12.2 (e), 14.

 - 

95

causes and gravity of and threat posed by corruption”.²⁰ Article 14 involves measures to prevent money-laundering and includes requirements to implement regulatory systems to detect money-laundering, to facilitate beneficial owner and customer identification, and to report suspicious transactions.

5.3.2 On Criminalization and Enforcement As it is so important to prevent corruption from happening in the first place, in the last section I highlighted some of the elaborate detail that UNCAC contains which covers significant obligations to prevent. UNCAC’s discussion of states’ obligations to criminalize corruption and enforce laws is much longer than that of how to prevent corruption, and forms the bulk of UNCAC’s articles (at least 48 of its 71 articles deal with these topics from Chapters III to VIII). There are specific calls on states to take effective action against serious crimes such as grand corruption and to encourage extraterritorial jurisdiction in pursuing successful related prosecutions. Article 17 covers the need to establish as criminal offences activities including embezzlement, misappropriation or other diversion of property by a public official. Similarly, there are articles that require states to criminalize money laundering (Article 23) and obstruction of justice (Article 25). The fourth chapter of UNCAC concerns requirements to cooperate and assist others in cross-border criminal matters such as collecting relevant evidence for use in court proceedings. The fifth chapter of UNCAC deals with requirements to assist with asset recovery. States are required to implement comprehensive laws providing for the confiscation of assets obtained through offences as established by the convention. They are further required to provide information on cross-border proceeds of corruption including data on the volume of assets seized, confiscated and returned in each year.²¹ UNCAC recognizes the importance of whistleblower protection in both the public and private sectors. It is worth considering some text from at least one significant article, to show that UNCAC offers sufficiently clear accounts of the problematic behavior we should be targeting to prevent and criminalize. Here I briefly do so for Article 15 which covers bribery of national public officials. It states:

²⁰ UN Office on Drugs and Crime, United Nations Convention against Corruption, 15. ²¹ It is noteworthy that states are only required to consider criminalizing a range of other corrupt activities such as trading in influence (Article 18) and abuse of functions (Article 19), that is the “performance or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity” in UN Office on Drugs and Crime, United Nations Convention against Corruption, 18–19. While these phenomena are clearly matters UNCAC encourages us to address, the remaining questions are about whether they should become criminal matters rather than matters with a different legal standing.

96

    Each state party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties; (b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, . . . .²²

We return to matters of identifying the forms of corruption that should be the focus of normative attention in all the chapters to come.

5.4 How Effective Has UNCAC Been So Far? The Implementation Review Mechanism processes have had a positive impact on progressing the Convention’s implementation.²³ One part of its success is attributable to states’ willingness to share experiences and learn from each other. Since 2010, 198 executive summaries have been finalized and 237 country visits or joint meetings undertaken. During this process over 1000 good practices have been identified, along with 7000 challenges and 4000 technical assistance needs. Through work associated with UNCAC “nearly every country in the world now has laws in place making corruption a crime”.²⁴ The Implementation Review Mechanism has a state reviewed by two other member states, one from the region and another drawn randomly from anywhere. This system has facilitated fruitful global exchange of ideas and knowledgesharing opportunities. The goal is to assist states with their national anticorruption efforts. The process is inclusive, uses objective criteria, and aims to be non-intrusive and non-adversarial. Ninety-seven percent of state parties have participated in one or more country visits or joint meetings, as of 2019. More than 67 percent of states noted that the peer review process had had an overall positive impact and 90 percent of states have changed their legislation following reviews. The two review cycles have had different foci. The first focused on the chapters of UNCAC dealing with criminalization, law enforcement, and international cooperation. The second focused on preventive measures and asset recovery.

²² UN Office on Drugs and Crime, United Nations Convention against Corruption, 17. ²³ For one interesting regular source of information about achievements to date see the UN Information Service, which produces updates like “Real Change Generated by the Implementation Review Mechanism for the Anti-corruption Convention”. United Nations Information Service, December 19, 2019, available at: https://unis.unvienna.org/unis/en/pressrels/2019/uniscp1089.html. ²⁴ UN Information Service, “Real Change Generated by the Implementation Review Mechanism for the Anti-corruption Convention,” 1.

 - 

97

UNODC has been successfully building capacity to address corruption in several spheres. For instance, in 2018 it trained 1600 people in how to prevent, detect, investigate, prosecute, and adjudicate corruption cases, while also supporting with the development of 50 laws and policies, and assisting 140 states in many areas including legislative drafting, financial crime prosecution, establishing anticorruption agencies, along with developing ethics training and asset declaration systems.²⁵ UNODC has also developed practical guides for business aimed at strengthening private sector integrity and compliance. Regional advisors assist in developing national anti-corruption strategies. And the Education for Justice initiative supports schools and other institutions teaching about the rule of law, integrity, and ethics. Following country reviews, many states have adopted measures to strengthen their anti-corruption protocols, including by creating independent anticorruption authorities or engaging in productive dialogue with civil society and the private sector. States have noted that their experience of being reviewed or participating in the review of other states has assisted them in gaining insights about good practice. The review mechanism has also resulted in regional platforms being set up which aim to address technical assistance needs through building on solutions to common challenges among neighboring states. Altogether the review mechanism has had positive effects on anti-corruption efforts by, for instance, helping to create relevant renewed momentum for change and furthered states’ implementation of the convention. Implementing policy well requires the ability to adapt as we discover new insights. We need processes that allow for continuous improvement as we learn more. By using such processes UNCAC assists with protecting and fulfilling human rights obligations in ways that have made noteworthy progress in our imperfect world. And UNCAC contains the mechanisms for building on that success and deepening it.²⁶ ²⁵ UN Information Service, “Real Change Generated by the Implementation Review Mechanism for the Anti-corruption Convention,” 1. ²⁶ I have been highlighting the constructive power of UNCAC in presenting an important channel for making corruption-reducing progress over time. I am not saying that we have made anything close to the required progress using this structure so far. We have a long way to go before we can be satisfied we are entering an era of low corruption. Perhaps it is also worth commenting on two further issues about my presentation of UNCAC so far. First, there is a general problem with authoritarian states, especially very powerful ones, complying with their UNCAC obligations. But this is a general problem in international relations. Powerful states can often thumb their noses at commitments to a rule-based international order without repercussions. Having said that, notice that there are instances when the necessary political will can often be found to place pressure on offending states to comply, especially when enough states judge their geopolitical security interests are at stake. Perhaps Western states reached that point when Russia invaded Ukraine early in 2022. While UNCAC has always had extensive requirements to seize or freeze assets that are the proceeds of corruption, the invasion galvanized momentum around enforcing such provisions. So the international community began enforcing these rules against Putin’s associates who had gained their wealth corruptly through various schemes linked to the Putin regime. Progress on UNCAC is slow and not linear, but sometimes political events of the day can create opportunities to make implementation headway.

98

   

5.5 Multi-stakeholder Initiatives: The Case of Transparency in Extractive Industries Multi-stakeholder Initiatives (MSIs) are another important area in which there has been noteworthy policy progress. This group of interventions is proving very effective especially with some of the most intractable, collective action problem varieties of corruption I canvased in the last chapter. I discuss the nature of MSI interventions next, focusing on the original prominent initiative. We also assess the progress it has made to date. One of the first significant multi-stakeholder initiatives was the Extractive Industries Transparency Initiative (EITI). It aimed to address an enormous problem of lost revenue that arises from natural resource sales that are not adequately transparent or accountable. Approximately 3.5 billion people live in countries rich in resources, yet all too often many poor citizens see little benefit from the extraction of their resources.²⁷ On the contrary, these resources often undermine effective states and the empowerment of citizens, turning resources into a curse, which hampers progress toward inclusive, well-functioning communities. In many cases, the revenue that poor, developing countries should obtain from resource sales would be more than enough to finance reforms necessary to address poverty, if the revenue were actually received and appropriately disbursed. Non-transparent resource sales where prices and amounts sold are not disclosed, provide ample opportunities for private gain and corruption.²⁸ In addition, corrupt resource sales are also strongly linked to severe restrictions on political and civil rights, as governments (and individuals within governments) who stand to gain from corrupt deals take extreme measures to retain their position.²⁹ Some of the states where conflict and civil disharmony have been most long-standing are places rich in natural resources. As the EITI appreciates, citizens could be considerably assisted in keeping their governments accountable for resource sales through international measures, such

Second, in this section I have been praising the international structure that UNCAC provides and its potential for major gains. Other authors take a different approach, believing that we should challenge at least aspects of this kind of international rule-based order and replace it with some alternative structure to make the right kind of justice gains. My approach is to see how far we can get by working within our current existing frameworks and human rights practices. My judgment is that it is sufficiently fit for purpose and, more importantly, as an existing international agreement, it has a massive advantage to alternatives which still need to climb that mountain. While I am not blind to some of its weaker points, there is enough that is helpful about it that we should work within that framework, rather than rejecting it, advocating for incremental improvements where these might be needed. For other authors who take a different route, see for instance, Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (New York: Oxford University Press, 2016) and Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2008). ²⁷ See the EITI website at http://eiti.org. ²⁸ Hazel McFerson, “Governance and Hyper-Corruption in Resource-rich African Countries,” Third World Quarterly 30, no. 8 (2009): 1529–47. ²⁹ McFerson, “Governance and Hyper-Corruption in Resource-rich African Countries”.

 - 

99

as the EITI that promotes transparency of revenue flows at the local level.³⁰ The EITI requires companies to disclose their tax and royalty payments for resources. Governments are required to disclose what they receive in payments. The tax and royalty payments and receipts are then independently verified and made public in a process overseen by several key stakeholders including representatives from governments, companies, and civil society, to ensure the records are accurate and no revenue is missing. This initiative allows for consensus-building development, helps create trust, stability, good governance, and confidence in judicious revenue collection and disbursement. The initiative provides mechanisms for relevant information gathering, such that citizens and the private sector in those countries can help improve governance conducive to promoting effective and legitimate states.³¹ Has the EITI been effective? There are challenges with measuring and documenting the impact of any single policy, including initiatives such as the EITI.³² As we see noted in the literature, different EITI stakeholders might rank measurement and impact in different ways.³³ Some prioritize improved trust and less conflict; others value improvements in economic growth, enacting stronger domestic laws, extending democratic norms, or improved government accountability. There is also a general problem with gauging specific policy outcomes as there are usually a number of forces in play. Establishing causality is notoriously difficult. Consider the case of Nigeria, for instance. Are Nigerians less poor because of EITI? Probably, but calculating this is tricky: the result is part of a set of actions and you cannot link impact exclusively to the EITI. In the face of this problem it is often useful to document impact through case studies and other kinds of qualitative data. So, turning to such data what do we learn? The Government of Nigeria credits the recovery of USD 2.4 billion of unpaid revenue to the helpful information contained in EITI reports.³⁴ Also, based on EITI reports, the Nigerian government has identified a further USD 9 billion that can be recovered.³⁵ Previous Nigerian EITI Reports highlighted recommendations that have now been implemented, such as splitting up the national oil company, reviewing oil contracts, and eliminating opaque barter agreements in the sector.

³⁰ See the EITI website at http://eiti.org. ³¹ See the EITI website at http://eiti.org. ³² For positive assessments see for instance, Sanjeev Khagram, Paolo de Renzio, and Archon Fung (eds.), Open Budgets: The Political Economy of Transparency, Participation and Accountability (Washington, D.C.: Brookings Institution Press, 2013), especially ch. 1, “Overview and Synthesis: The Political Economy of Fiscal Transparency, Participation, and Accountability around the World,” 1–50; Laurence Cockcroft, Global Corruption (London: I.B. Tauris, 2012), especially ch. 12. ³³ EITI, “Is the EITI Making a Difference?” EITI, May 24, 2016. Available at: https://eiti.org/blog/iseiti-making-difference. ³⁴ EITI, “Is the EITI Making a Difference?” EITI, May 24, 2016. Available at: https://eiti.org/blog/iseiti-making-difference. ³⁵ EITI, “Is the EITI Making a Difference?”.

100

   

Case studies from Kazakhstan and Ghana show similarly textured progress has been made through EITI.³⁶ Sometimes we can support many policy initiatives. At other times choices must be made when resources, especially time, are scarce and in those cases, decisionmaking guidelines may be useful. We should favor support for those initiatives that are in place when they are (i) already addressing the target problem effectively, (2) enjoying widespread support, and (iii) tackling fundamental issues in ways that cohere with their initiatives’ objectives and are likely to accelerate progress, hence contributing to enlarging capacity to address target problems.³⁷ I believe the EITI meets these criteria well. Briefly, the EITI has shown not only that it has the theoretical potential to transform societies to bring about effective states and empowered citizens but also that it can do so well in practice. Since this initiative helps create trust, stability, confidence in judicious revenue collection and disbursement, and effective and legitimate states, it is plausible to say that the initiative has significant potential to transform the institutions of the society in beneficial ways, and this promise has played out well, as case studies confirm. It also coheres well with other initiatives the cumulative effects of which would support measures conducive to low-corruption environments. As I draw this section to a close, perhaps it is worth mentioning that some of the state obligations discussed in Sections 5.2 and 5.3 entail that states have significant UNCAC related obligations to encourage or even mandate participation in initiatives such as EITI, in virtue of their requirements to encourage civil society participation and to promote appropriate budgeting and financial procedures, that are appropriately audited and independently monitored. Lending support to this view are the obligations discussed in Articles 8, 9, 12, 13, 15, and 19, among others, which outline domestic responsibilities for governments. In addition, internationally, states can assist citizens in resource-rich countries by mobilizing to make participation in the EITI mandatory when operating in important ³⁶ For more sources that discuss the EITI’s effectiveness and positive contributions see, for instance, Khagram, Renzio, and Fung, Open Budgets, 1–50; Cockcroft, Global Corruption, especially ch. 12; International Council on Mining and Metals (ICMM), “Strong governance is key to improving the socio-economic wellbeing of mining dependent countries, according to new ICMM report,” International Council on Mining and Metals, July 14, 2021. Available at: http://www.icmm.com/engb/news/2021/strong-governance-is-key. Also ICMM, Social Progress in Mining-Dependent Countries: Analysing the Role of Resource Governance in Delivering the UN Sustainability Goals (SDGs) (London: ICMM, 2021); and Christoffer Claussen, Pablo Valverde, and Christopher Wilson, “Does Civil Society Matter for Natural Resource Governance? A Comparative Analysis of Multi-stakeholder Participation and EITI Validation Outcomes,” Resource Policy 72 (2021): 1–14. There is the problem of how to get anti-corruption measures robustly adopted in authoritarian states, a problem I should note that no corruption theorist has fully solved to my mind. In defense of the EITI, I believe that there are many international pressure points that can be applied to solve this issue, as I begin to discuss toward the end of this section and in Chapter 7. For a skeptical account of the evidence see Kerem Oge, “Transparent Autocracies: The Extractive Industries Transparency Initiative and Civil Society in Authoritarian States,” The Extractive Industries and Society, 4 (2017): 816–24. ³⁷ I have discussed such issues in Gillian Brock, “Fulfilling Obligations to the Poor: How Should We Decide among Plausible Options?,” Analysis 74 (2014): 90–9.

 - 

101

organizations under their jurisdiction. For instance, they could make membership of EITI mandatory for participation in desirable opportunities such as contracting agreements with government. These are all plausible implications of our UNCAC duties of prevention. In these sorts of ways, by joining up and building broad coalitions among many stakeholders, we amplify the power of our corruptioncurbing mechanisms.

5.6 Transparency and Accountability in Infrastructural Projects While the EITI was the first prominent MSI initiative, its success gave rise to multiple others. Here I discuss another that governs activities in construction, a sector frequently plagued by rampant corruption with devastating results. This sector is essential for addressing poverty and sustainable development. Consider, for instance, the Sustainable Development Goals. They aim to eliminate poverty and achieve a world that is environmentally secure for future generations, along with being more prosperous, equal, just, peaceful, inclusive, and better governed. Large investments in infrastructure are needed to achieve such a world. Indeed, to achieve even modest improvements in education, health, sanitation, water quality, and sustainable energy, let alone more ambitious goals of mitigating climate change risk or achieving sustainable cities and ecosystems, large infrastructural projects are needed. The sums required for this investment are enormous, but just as worrying are the estimates of how much will be lost to corruption. Approximately one-third of the US$22 trillion needed to cover the most basic needs over the next 10 years could be lost to corruption, with a further third lost to mismanagement and inefficiency.³⁸ Quality infrastructure is needed to improve lives, to transform economies, increase employment, provide the safe housing, environments, and human settlements needed for all to flourish in a peaceful and inclusive world.

5.6.1 Preparing and Implementing Infrastructural Projects Public infrastructure can absorb an enormous percentage of government revenue in low-income countries. While it is often assumed that lack of funding is a major obstacle to further investment in infrastructure, corruption and poor choice of project can be even greater problems, resulting in waste, poor results, and a high ³⁸ Patrick Keuleers, “Fighting Corruption in Infrastructure – a Must for Achieving the 2030 Agenda,” UNDP Anti-Corruption For Development, December 24, 2015. Available here: http://anticorruption.org/2015. Also UNDP website news available here: http://anti-corruption.org/2015/. Similar estimates are widely reported by other important NGOs working in the area, such as TI and CoST.

102

   

level of dissatisfaction on completion. There are a number of important steps that are involved in preparing and implementing a large infrastructural project. Corruption risks can arise in several ways. Corruption that occurs early on can pave the way for further corruption later.³⁹ Some particularly important challenges are inappropriate project choice, the use of inferior materials, purchases made at inflated prices, large cost and time overruns, and a preference for new construction over maintenance of existing infrastructure. Some of the most harmful corruption can occur in two places: when inappropriate projects are chosen and when, in the implementation phase, substandard construction occurs, drastically undermining the project’s life and return on investment. In addition, as planning and delivering on construction projects involves high levels of expertise, good management and strong capacity, each stage of the process has significant corruption risks. There are five major stages of construction projects that all need attention: project appraisal; project selection, design, and budgeting; tendering and selection; implementing the chosen project; and evaluation and audit. There are different corruption risks at various stages in the delivery of a construction project. Here I briefly summarize some of these. At the project appraisal stage there is much scope for partisan political factors or private interests to influence decisions. Projects may be promoted in exchange for campaign donations or funding to parties. There is also an inherent bias toward new, large projects and away from maintenance. At the project appraisal stage, the main actors involved include government ministers, senior civil servants, procurement officers, and private consultants (e.g. planners, designers, engineers, and surveyors). At the project selection, design, and budgeting stages, some common corruption risks include expensive designs that increase consultants’ fees and contractors’ profits without sufficient benefit, designs aimed at favoring specific contractors, designs that allow for later off-script costly adjustments, inflating cost estimates to provide a cushion for the funds to be diverted later, and political influence to get projects included that are not adequately appraised. Here the central actors include ³⁹ This section draws extensively on some excellent policy work from several theorists and notably, Jill Wells. See, for instance, Jill Wells, Corruption in the Construction of Public Infrastructure: Critical Issues in Project Preparation (Bergen: Chr. Michelsen Institute, 2015). Available at: https:// www.u4.no/publications/corruption-in-the-construction-of-public-infrastructure-critical-issues-in-projectpreparation-1; Bent Flyvbjerg, “Policy and Planning for Large Infrastructure Projects: Problems, Causes, Cures” Environment and Planning B: Planning and Design 34: 578–97; Susan Rose-Ackerman and Tina Soreide (eds.), International Handbook on the Economics of Corruption (Cheltenham, UK: Edward Elgar Publishing, 2011); John Hawkins, Camilla Herd, and Jill Wells, Modifying Infrastructure Procurement to Enhance Social Development (London: Engineers Against Poverty, 2006). Neill Stansbury, “Exposing the Foundations of Corruption in Construction” in Transparency International (ed.), Global Corruption Report 2005: Corruption in Construction and Post-Conflict Reconstruction (Berlin: Transparency International, 2005), 36–50; Jill Wells, “Political Economy and the Construction Sector in Angola”. Draft paper (Washington D.C.: World Bank, 2011); Joseph Wales and Leni Wild, The Political Economy of Roads: An Overview and Analysis of Existing Literature (London: Overseas Development Institute, 2012). Available at: https://odi.org/documents/3887/8173.pdf.

 - 

103

government ministers, senior civil servants, procurement officers, and once again private consultants, such as planners, designers, engineers, and surveyors. In the tendering for works phase, there is often much scope for bribery to obtain contracts (with the aim of recovering costs at later stages), collusion among bidders to allocate contracts or raise prices, interference to favor specific firms or individuals, signing contracts for projects that are not included in the budget. Here the main actors include procurement officers, private consultants (such as supervising engineers), and contractors. In the implementation phase contractors and supervising engineers can collude on the use of inferior materials resulting in low quality work. Collusion can also result in inflated prices, project adjustments to find further avenues for profits and cost minimization, perhaps to cover additional expenses related to bribes. The main actors involved in this phase include procurement officers, private consultants, contractors, and subcontractors. In phases such as operation, maintenance, evaluation, and audit, a common type of corruption involves supervising engineers signing off on low quality work that does not meet the required specifications. Main actors include once again procurement officers, private consultants (such as supervising engineers), contractors, and subcontractors. Probably worthy of emphasis is that there is much scope for grand corruption or state capture in preparing projects and selecting which ones should be implemented. Places where there are significant corruption risks include selecting projects that are inconsistent with a country’s particular development needs, inadequate consideration of a range of alternative projects, and general lack of screening and independent assessment. Even when infrastructural needs are acute there are invariably multiple ways in which the needs could be met, including maintaining or upgrading existing infrastructure—frequently the more costeffective option—rather than opting for new construction. There should be full consideration of alternative options to meet infrastructure objectives with accurate assessments of costs and benefits of project options. These assessments should be independently reviewed by various bodies including ministries of finance, planning, and other relevant experts, but also people who are not currently part of government and are sufficiently independent. How can such independent parties be found? Drawing on the framework provided by international actors can assist with this issue, as I discuss next.

5.6.2 An Infrastructural Transparency Multi-stakeholder Initiative The Construction Sector Transparency Initiative (CoST) is a particularly important initiative that aims to detect and eliminate corruption from construction

104

   

projects. It is another excellent representative of the class of initiatives called Multi-stakeholder Initiatives (MSI) that I introduced above. Several features of these initiatives make them particularly effective, including the collaborative approaches that have multiple points of accountability. CoST involves members of government working with industry and local communities with the common goal of trying to “get better value from public infrastructure investment by increasing transparency and accountability”.⁴⁰ CoST is a Multi-stakeholder Initiative currently operating in four continents. It officially launched in 2012. CoST is leading international efforts to strengthen transparency and accountability in public infrastructure. CoST promotes transparency by requiring data about public infrastructure investment to be disclosed. Informed and empowered citizens are thus enabled to hold decision-makers to account. CoST aims to reform and strengthen institutions vulnerable to corruption that pose significant risks to the public from poor infrastructure. It facilitates better outcomes for multiple stakeholders, demonstrating how public money is spent and identifying potential ways to improve infrastructure expenditures. In facilitating fairer competition and reducing corruption risks associated with business, CoST creates gains for the private sector. Companies bidding for contracts can gain confidence that a fair, open, and competitive environment governs the process. CoST creates improved outcomes for communities by ensuring appropriate infrastructure is developed in costeffective ways, enabling communities to gain access to work and markets through improvements in roading, clean drinking water, education in well-built schools, and healthcare facilities. CoST has already secured an impressive track record of saving money, delivering legal and institutional reforms, and building the capacity of stakeholders. This initiative is therefore well placed to promote future efforts in delivering on public infrastructure in ways that are accountable, transparent, and cost-effective. CoST embraces three core features: disclosure, assurance, and multistakeholder participation. Each deserves some further comment. First, CoST requires disclosure on forty data points in public infrastructure projects. The data are disclosed at key stages throughout a project cycle, as set out in the CoST Infrastructure Data Standard. A second key feature is assurance. CoST helps to promote accountability by requiring an independent review of the disclosed data. Through this assurance process, CoST validates technical data and identifies issues of concern. It also converts the technical data into plain language to help stakeholders understand the main issues and so they might hold decision-

⁴⁰ From the information on the website at www.constructiontransparency.org. Recently, CoST has changed its website and official long name, even though they retain the CoST acronym. The new full name is the Infrastructure Transparency Initiative and the new website is available here: http://www.infrastructuretransparency.org/home.

 - 

105

makers accountable. A third core feature is the multi-stakeholder nature of the working group. CoST is directed by a Multi-stakeholder Group in each country and this group is comprised of different representatives from government, the private sector, and civil society. CoST helps these three key stakeholders pursue their shared objectives in improving the value, efficiency, and effectiveness of public infrastructure investment.⁴¹ CoST has already shown impressive evidence of delivering appropriate institutional reforms, building stakeholder capacity in efficient uses of public resources. CoST achieves its impact by strengthening social accountability. It builds capacity to disclose information, so that stakeholders have more information in the public domain with which to hold government to account. Working together stakeholders have achieved delivery on better value infrastructure. CoST has several impressive achievements to date. It has secured the support of at least three of the top eight international construction firms. So, it already has buy in from many powerful, key players. There are considerable economic advantages to joining in, such as reputational benefits and reduction of corruption risks. And there are significant penalties if corruption is found (such as fines, debarment, crossdebarrment, and lack of access to capital and credit). CoST has a good record of preventing funds from being wasted in many countries including Ethiopia, Guatemala, Honduras, Malawi, and Vietnam. Many detailed case studies show considerable impact so far.⁴² I discuss two such examples, drawn from Ethiopia and Malawi. The CoST Ethiopian Assurance Team successfully highlighted that the original plans for a road in Eastern Ethiopia exaggerated the scale of excavation required for the proposed project. A workshop involving all stakeholders, including the media and civil society organizations, was held in which plans for a revised road project were discussed. This new plan was subsequently adopted by the Government of Ethiopia, saving US$3.5 million and the construction was completed six month early. Once the road was built it doubled local farmers’ income. And the original unreliable designers were debarred from Government contracts for two years.⁴³ The Malawi national program experienced similar success. Highlighting issues of concern their local CoST group was instrumental in getting two road contracts to be retendered, preventing signficant wastage of public resources.⁴⁴ The group

⁴¹ CoST works by providing guidance on how to increase transparency and accountability in public infrastructure projects. Membership of CoST is open to all countries. Locally led national programs may adapt the core features to reflect local institutional or sectoral factors. ⁴² For the rich detail cases can provide see the CoST website, especially the section, “Impact,” http:// www.infrastructuretransparency.org/home. ⁴³ For more data and cases see the CoST website, especially the section, “Impact,” http://www. infrastructuretransparency.org/home. ⁴⁴ CoST, “Building civil society and media capacity in Malawi,” material distributed by CoST at the IACC conference, Panama, 2016. More details about Malawi and other cases can be found in various places on the CoST website at “Impact”. See: http://www.infrastructuretransparency.org/home.

106

   

has been able to sustain high levels of citizen engagement concerning transparency and accountability in infrastructural matters. One way it has done so is by holding public radio debates that provide citizens opportunities to pose questions to key figures from government, industry, and civil society. Through these efforts they have also gained high-level government support. In closing this discussion it is worth mentioning that CoST works closely with other global transparency initiatives, such as the Open Government Partnership and the Open Contracting Partnership. Mitigating specific risks works best when more than one anti-corruption intervention is in play. It is also important to work across sectors. Corruption in one sector cannot be entirely eliminated without the involvement of other critical sectors. Preventive measures and regular monitoring are two interventions that work together well. It is desirable to employ numerous diagnostic tools to check on how effectively anti-corruption strategies are working. Partnering with other experienced organizations for assistance with implementing anti-corruption strategies can enlarge efforts. Corruption-combating action can be amplified by building coalitions. In addition, involving diverse stakeholders helps build legitimacy for change, which can be especially important when change processes present challenges. MSIs have a valuable role to play in effective monitoring and coalition building.

5.7 Conclusions Considering the measures reviewed in this chapter, there are some impressive arrangements already in existence that, if well supported, would make significant gains in reducing corruption and supporting a low-corruption environment. We have duties to support the establishment and maintenance of institutions that can secure justice. Having reviewed specific policies, agreements, and initiatives, we have good reasons to support the collection of arrangements that are already aiming to underwrite and secure low-corruption environments. We have obligations to join in and join up. We also have obligations to hold parties to account for the agreements they have made, especially when these are essential to fulfilling human rights obligations. The international legal agreements signed (such as the United Nations Convention Against Corruption) commit us to undertaking various core actions. Section 5.3 covered some of UNCAC’s implications for specific state responsibilities, while Section 5.4 reflected on some progress to date. Sections 5.5 and 5.6 introduced important Multi-stakeholder Initiatives that encapsulate many core features of success: they are well-designed, have multiple agents playing pivotal roles at holding each other to account, encourage civil society participation, encourage appropriate transparency and oversight, and help build broad social coalitions that can ground momentum for further progress. I discussed cases of

 - 

107

how to curb corruption in the extractive industries and construction sectors, specifying many of the corruption risks and highlighting which agents are central to reducing those risks. These analyses will be useful in later discussions concerning responsibilities for addressing corruption. So, in this chapter I have covered some of the impressive frameworks that build on empirical insights to create credible mechanisms for addressing corruption. And I discussed efficacy evidence so far and how progress could be accelerated in future. While the constellation of arrangements in place in some sectors is proving successful in reducing corruption, in other areas it would seem that there is still a long way to go. In the next chapter we continue work on analyzing the agents who are intricately involved in exacerbating corruption risks. We examine how some agents can be described as enablers and hence are complicit in continuing corrupt practices. We examine when that happens, why that happens, and what ought to be done to block their complicity.

6 Abusive Tax Avoidance and Tax Professionals’ Responsibilities 6.1 Introduction Corruption is an important international problem.¹ If the corruption is not itself transnational, the proceeds of corruption are increasingly finding their ways out of the countries in which corruption occurs. Illicit flows are also a massive driver of corruption around the world, funding a range of harmful activities including organized crime, drug and people trafficking, terrorism, and illegal weapons sales.² Tax professionals play an integral role in facilitating this movement. So there are good reasons to examine tax professionals’ crucial role in sustaining corruption. In particular, examining some of the activities involved in abusive tax avoidance is worthwhile for at least three reasons. First, failure to collect enough tax revenue thwarts governments’ abilities to discharge basic obligations. Inadequate tax collection yields insufficient funds for core projects such as fulfilling human rights, promoting well-being, or instituting necessary corruption-curbing preventative measures. When there is widespread failure to pay taxes central government functions are compromised. Rampant tax abuse threatens the ability of states to be legitimate, effective, and accountable in delivering on human rights and minimum justice goals, such as enabling citizens to meet basic needs. Second, the scale of abusive tax avoidance across the world is huge. Ramping up efforts to reduce corruption in this area helps us collect revenues owed which can ¹ This chapter draws on much earlier versions of some material initially explored in several places, but all greatly modified and developed in the intervening years. I began experimenting with the normative framework in working papers such as Gillian Brock, “Institutional Integrity, Corruption, and Taxation,” Edmond J. Safra Centre for Ethics Working Paper Series 39 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2014), 1–54; and Gillian Brock and Hamish Russell, “Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals,” Edmond J. Safra Center for Ethics Working Paper Series 56 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2015), 1–54. Those experiments led me to believe that presenting key empirical information concisely is essential to making the central argument compelling. Earlier versions of some empirical detail were discussed in the co-authored article, Hamish Russell and Gillian Brock, “Abusive Tax Avoidance and Responsibilities of Tax Professionals,” Journal of Human Development and Capabilities 17 (2016): 278–94. Hamish Russell’s exceptional research assistance and outstanding collaboration have been extremely valuable in exploring work discussed in this chapter and in helping advance the case for important claims. ² For an accessible introduction see, for instance, Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015).

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0006

  

109

also supply additional resourcing for a variety of anti-corruption initiatives and the fulfillment of human rights. Third, in examining abusive tax avoidance we meet some of the key enablers of corruption around the world, including accountants, lawyers, bankers, and other service providers. We begin to understand their important role in facilitating global corruption. A detailed case study reveals that these professionals’ responsibilities to assist with reforms must be greater than others’ given the central ways in which they have contributed to, benefit from, and have capacity to fix, corruption. Surveying some of their professional responsibilities adds weight to the argument. This case also serves as a good illustration of some significant principles that can be applied to fair assignments of responsibilities in other domains, a theme developed in the next chapter. The next section introduces the reader to central issues concerning abusive tax avoidance. Section 6.3 surveys factors that contribute to high levels of abusive tax avoidance. Section 6.4 covers how to assign responsibilities in remedying abusive tax avoidance, and what grounds there are for assigning such responsibilities fairly. A variety of normative approaches could be employed in addressing these issues. Here I focus on an under-explored strategy that promises to make an important contribution to understanding our normative responsibilities. Roughly speaking, the strategy notes that in certain cases we have especially strong obligations to remedy defects that we have caused, benefited from, and have capacity to fix. Sections 6.5, 6.6, and 6.7 present much detail to establish the causal, benefit, and capacity connections respectively. Looking at the specific contributions of three major groups of tax professionals—accountants, lawyers, and financial experts—gives us the detail we need to appreciate the role of these enablers in causing, benefiting from, and having capacity to remedy the situation. Section 6.8 explores professional and collective responsibilities for tax professionals. In Section 6.9 I extend the argument to show how it applies to other enablers such as professional service providers. While we focus on the role of tax professionals in this chapter, I suggest that similar arguments apply to other key enablers such as realtors and those who trade in high value assets. I outline some of the areas that need attention if corruption-curbing obligations are to be adequately discharged.

6.2 Abusive Tax Avoidance: Some Preliminaries Rampant tax abuse threatens the ability of states to be effective, legitimate, and accountable. So, it is no surprise that this category of tax escape is already of high interest to states.³ “Tax avoidance,” broadly defined, includes any activity, ³ Edmund Burke, an eighteenth-century philosopher, once remarked that “revenue is the chief preoccupation of the state. Nay more it is the state”. Frederick Dietz, English Government Finance 1485–1558 (London: Frank Cass, 1964), 213.

110

   

arrangement or transaction that reduces the total amount of explicit taxes paid by an individual or organization.⁴ This definition captures a wide spectrum of taxreducing activities, from the clearly illegal to the obviously unobjectionable. On one end of the scale are forms of fraud, such as deliberately concealing taxable assets or falsifying a tax return. On the other end of the scale are clearly unobjectionable decisions to take advantage of tax savings, such as purchasing products from duty free stores or investing in municipal bonds that have lower tax rates. The terms “tax evasion” and “tax planning” are often used, respectively, to indicate each of these extremes: tax evasion is clearly illegal, while tax planning is permissible. A tax avoidance arrangement is abusive when it reduces explicit taxes in a manner not intended by law.⁵ Abusive tax avoidance includes “tax evasion” activities that directly violate the letter of the law, such as deliberately not declaring taxable assets on a tax return; but abusive avoidance also includes tax-reducing activities that are contrary to the law’s spirit or intent—the kind that involve unanticipated creativity in avoiding the letter of the law. Abusive tax avoidance is thus a broader category than tax evasion. By focusing on abusive tax avoidance in this chapter, I am following the approach of tax enforcement authorities in the United States, United Kingdom, Canada, and several other countries.⁶ A company that uses complex profit-shifting techniques to reduce its apparent tax obligations might fall shy of tax evasion, but could nonetheless be engaged in abusive tax avoidance. Abusive tax avoiders often rely on creative accounting techniques to make their activities appear legal, and in practice it can be very difficult to determine whether a complex strategy is in fact abusive. For this reason, potentially abusive tax avoidance strategies, which push the boundaries of the law’s intent without obviously crossing those boundaries, are also within the scope of this chapter. Furthermore, I am particularly concerned with highly sophisticated and technical abusive (or potentially abusive) tax avoidance schemes, which are sometimes called “tax shelters”. To utilize a tax shelter is to engage in tax sheltering.⁷

⁴ Michelle Hanlon and Shane Heitzman adopt a similar definition in “A Review of Tax Research,” Journal of Accounting and Economics 50 (2010): 127–78, at 137. ⁵ This definition of abusive tax avoidance is employed by the United States Internal Revenue Service; see, e.g., US Government Accountability Office (GAO), Abusive Tax Avoidance Transactions (Washington, D.C.: GAO, 2011), 3. Similar terminology has been adopted by tax authorities in the United Kingdom, Canada, and several other countries. ⁶ See, for example, US GAO, Abusive Tax Avoidance Transactions, 1; HM Revenue and Customs, “HMRC’s GAAR Guidance,” (London: HMRC, 2013). Available at: http://www.hmrc.gov.uk/avoidance/ gaar-part-abc.pdf. A similar approach is adopted by Hanlon and Heitzman, “A Review of Tax Research,” 137. ⁷ See, GOA, Abusive Tax Avoidance Transactions, 1; H.M. Revenue and Customs, “HMRC’s GAAR Guidance”. Available at: http://www.hmrc.gov.uk/avoidance/gaar-part-abc.pdf. Note that I do not restrict the definition to explicit tax-reductions within a given tax year, as many abusive tax avoidance arrangements spread tax benefits across multiple tax years in an attempt to escape detection by authorities. A focus on abusive tax avoidance, rather than the narrower category of tax evasion, reflects the choice of a purposive reading of tax law over a literalist reading. Roughly speaking, a literalist interpretation of tax law regards a tax avoidance strategy (arrangement, transaction, etc.) as legally

  

111

enforceable and punishable just in case it is contrary to the letter of a particular provision in the relevant tax code. In contrast, a purposive interpretation extends the legitimate scope of enforcement to tax avoidance strategies that are contrary to the spirit of the law, or the intent of lawmakers in writing the law. In light of globalization and technological developments, governments have very good, pragmatic reasons for favoring the purposive approach. Tax shelters have become immensely complex and creative, involving esoteric financial instruments and multiple layers of trusts, corporations, and special purpose entities. In many cases, transactions are conducted within and between offshore secrecy jurisdictions and staggered across several years. The number of professionals employed at developing and implementing novel tax avoidance strategies vastly outweighs the number of government workers tasked with uncovering those strategies and adapting the tax code to exclude them. In the U.K., for instance, the Big Four accountancy firms employ around 250 transfer pricing specialists, whereas Her Majesty’s Revenue and Customs (HMRC) has only 65 transfer pricing specialists. An upshot of the technical sophistication and extensive resources of the tax avoidance industry is that it has become practically infeasible, on a literalist interpretation of the law, for tax authorities to stem the enormous loss of revenue brought about by highly contrived tax avoidance arrangements. It is now effectively impossible to design a tax code in such a way as to close off all potential loopholes, meaning that by taking a literalist approach tax authorities can at best hope to quickly identify and adapt the tax code to exclude each new tax avoidance innovation. This leaves open a window for millions or billions of dollars to “legally” avoid taxation before the necessary legal changes are made. A purposive approach allows tax authorities to regain some of the upper hand, since it empowers courts to prosecute tax avoidance strategies that contradict the law’s spirit, without having to first adapt the tax code for each new strategy. Practically speaking, this is a great advantage to tax authorities. In moving to a purposive reading of tax law, some countries have adopted a general anti-avoidance rule (GAAR). The Canadian Supreme Court applies the following three-part test to determine whether a particular transaction violates Canada’s GAAR: Was there a tax benefit? Was the transaction arranged for any bona fide purpose other than to avoid tax? Was the tax benefit obtained consistent with the object, spirit, or purpose of the provisions relied upon? If, and only if, the respective answers to these questions are “yes,” “no,” and “no,” the Supreme Court of Canada deems the transaction to be abusive tax avoidance and hence subject to law enforcement. It is easy to see how this test can provide useful guidance in particular cases. If part of the reason for transferring assets into an offshore tax haven is so that one can genuinely do business in that tax haven, that could justify treating the transfer as non-abusive. Alternatively, if an individual decides to invest in municipal bonds rather than other assets, solely because of the lower tax rate on municipal bonds, that would also be a non-abusive transaction since encouraging individuals to invest in municipal bonds was precisely the intent of lawmakers in introducing lower tax rates on that asset. However, when a transaction (or arrangement, activity, etc.) has no bona fide purpose other than to gain a tax benefit, and when that tax benefit is obtained in a way that is inconsistent with the spirit of the provisions relied upon, then Canada’s GAAR will rightly classify the transaction as abusive. General anti-avoidance standards do not eliminate all grey areas and ambiguities. In difficult cases it will not always be clear whether the proclaimed purpose of a transaction was in fact a bona fide purpose, and experts may reasonably disagree about the spirit or intent of a particular provision. Such grey areas do not, however, mean that the distinction between abusive and non-abusive tax avoidance is intrinsically flawed or overly subjective. Many other legal distinctions, such as “murder” and “manslaughter,” can be difficult to apply in practice, but this is not adequate grounds for abandoning those distinctions. On the contrary, such ambiguities provide a strong incentive to improve the quality of information available to courts so that the relevant distinctions may be more reliably applied. Similarly with tax avoidance: difficulties in deciding between abusive and non-abusive cases should not lead us to abandon the distinction but encourage us to equip the relevant courts with better information. Further discussion about some of these issues can be found in, for instance, UK House of Commons Committee of Public Accounts, Tax Avoidance: The Role of Large Accountancy Firms (London: The Stationery Office Limited, 2013). Available at: https://publications.parliament.uk/pa/cm201213/ cmselect/cmpubacc/870/870.pdf; and Brian Arnold, “A Comparison of Statutory General AntiAvoidance Laws and Judicial General Anti-Avoidance Doctrines as a Means of Controlling Tax Avoidance: Which is Better? (What Would John Tiley Think?),” in John Avery Jones, Peter Harris, and David Oliver (eds.), Comparative Perspectives on Revenue Law: Essays in Honour of John Tiley (Cambridge: Cambridge University Press, 2008).

112

   

Abusive tax avoidance practices cause significant and troubling levels of deprivation in both developed and developing countries. Estimates of the degree and impact of abusive tax avoidance vary but conservative estimates are that developing countries lose at least $160 billion each year from tax evasion and avoidance⁸—so roughly 60 billion more than the annual international aid given from all developed countries to the developing world.⁹ The IRS estimates the “tax gap”—the difference between the total tax amount that should have been voluntarily paid and the amount that was actually paid—as $385 billion.¹⁰ These figures are likely to significantly underestimate the amount of US tax that is lost from taxpayers exploiting technical loopholes in the tax code in ways that lawmakers never intended. Tax avoidance on this scale has serious consequences and real victims for both developed and developing countries. Governments tax their populations in order to finance public projects such as infrastructure, healthcare and education, provide support to vulnerable groups in the form of transfer payments, and perform a range of other functions in the public interest. When large corporations and wealthy individuals engage in extensive tax sheltering, they deprive governments of revenue that is needed to fund these public projects and transfer payments. Often this means certain services must be cut back; other times it forces governments to increase taxes on labor or goods and services in order to meet their fiscal obligations, resulting in tax systems that are generally more regressive.¹¹ Both of these outcomes tend to have the greatest negative effect on the most disadvantaged members of society, who typically have the least ability to arrange their financial affairs so as to reduce their effective tax burdens. Abusive tax avoidance thus reduces both the effectiveness and equity of fiscal institutions: governments are rendered incapable of adequately financing important components of public

⁸ Christian Aid, Death and Taxes: The True Cost of Tax Dodging (London: Christian Aid, 2008), 2. Available at: https://www.taxjustice.net/wp-content/uploads/2013/04/Christian_Aid_0805_Death_and_ Taxes_-_TJN_summary.pdf. For similar estimates see Alex Cobham, “Tax Evasion, Tax Avoidance, and Development Finance,” Queen Elizabeth House Working Papers 129 (Oxford: Queen Elizabeth House, 2005). Available at: https://www.taxjustice.net/cms/upload/pdf/qehwps129-revised.pdf; Dev Kar and Sarah Freitas, Illicit Financial Flows from Developing Countries: 2001–2010 (Washington, D.C.: Global Financial Integrity, 2012). Available at: https://gfintegrity.org/report/illicit-financial-flows-fromdeveloping-countries-2001-2010 ⁹ Christian Aid, Death and Taxes, 2. Tax avoidance is also a serious problem for developed countries. The US Inland Revenue Service estimates that about 1 million tax returns involved abusive tax avoidance in 2004. GAO, Abusive Tax Avoidance Transactions, 9. ¹⁰ Inland Revenue Service (IRS), “IRS Releases New Tax Gap Estimates; Compliance Rates Remain Statistically Unchanged From Previous Study,” IRS, January 6, 2012. Available at: https://www.irs.gov/ newsroom/irs-releases-new-tax-gap-estimates-compliance-rates-remain-statistically-unchanged-fromprevious-study. For the latest figures see: https://www.irs.gov/newsroom/the-tax-gap. See also the latest reports from the Global Alliance for Tax Justice, available from their website here: https://www. globaltaxjustice.org/. ¹¹ John Christensen and Sony Kapoor, “Tax Avoidance, Tax Competition and Globalisation: Making Tax Justice a Focus for Global Activism,” Accountancy Business and the Public Interest 3 (2004): 1–16.

  

113

spending, and a greater proportion of the tax burden is put on poorer individuals. These consequences are most severe in the developing world, where well-meaning governments cannot always meet the basic needs of their residents. For instance, according to one estimate, the lives of an additional 350,000 children under the age of five would be saved each year, without any change in the proportion of government revenues spent on healthcare, if developing countries were able to recoup the $160 billion lost to tax avoidance annually.¹² In the next section I outline the main reasons for the persistence of abusive tax avoidance practices in developed and developing countries, so we can better understand the normative issues to come. Discussing what needs to be fixed is an important prelude to answering questions about who needs to fix it.

6.3 Factors Contributing to Abusive Tax Avoidance There are at least six sets of factors that majorly contribute to the high levels of abusive tax avoidance in the world today. The factors are not presented in any order of priority and there are various interconnections between them. The first five factors affect both developing and developed states, while the final set of factors exacerbate the problem of abusive tax avoidance in developing nations particularly.¹³

¹² Christian Aid, Death and Taxes, 2. ¹³ The influence of tax professionals over fiscal arrangements need not be improper or corrupt. On the contrary, tax professionals have a legitimate and efficient function as intermediaries or “knowledge brokers” between taxpayers and government tax institutions. Tax codes are complex, and taxpayers often lack the expertise required to determine the true extent of their tax obligations and to avoid unnecessary costs in filing tax returns. It is completely legitimate for corporations, individuals, and other taxpayers to solicit advice from professionals on tax-related issues. It is equally unproblematic for professional firms to market their expert knowledge of taxation procedures, documentation, and legislation, insofar as this is to acquire clients who want assistance in determining their genuine tax obligations, filing related paperwork, and identifying tax benefits that clients legitimately qualify for. Many taxpayers find it worthwhile to pay an external advisor to assist with their tax matters, and there is nothing wrong with qualified professionals meeting this demand. Furthermore, there is an important role for tax professionals in helping ensure that tax authorities do not try to extort more from taxpayers than is legally owing (on a purposive reading of the law); in other words, tax professionals can provide a valuable check-and-balance function that helps safeguard the equity of a tax system. Tax professionals also provide several valuable services to tax authorities. Since elected officials are rarely tax experts and governments have limited resources for hiring permanent tax advisors, the technical knowledge of private-sector professionals can greatly assist in the writing of new tax law. Staff at professional firms are routinely asked to participate in advisory committees on taxation legislation, and these arrangements can enhance the quality of the legislation produced. Private-sector tax professionals not only are well qualified to advise on tax legislation but also can provide reliable insights into how changes to the law will actually affect taxpayers—insights which can help ensure changes have the desired effects and do not unintentionally punish certain groups. Furthermore, tax professionals can provide a useful line of communication between tax authorities and taxpayers. When there is a change in tax legislation, private-sector tax professionals can often communicate this change to affected taxpayers more efficiently than authorities could on their own, particularly when the legislative changes are complex and affect businesses rather than households. Professional firms, for

114

   

6.3.1 The Existence of a Natural Market for Tax Avoidance In the first instance, it is important to realize that there is a natural economic market for tax avoidance, including abusive avoidance. This market is governed by the laws of supply and demand, just like any other. On the demand-side of the tax avoidance market, there is a population of well-financed and well-connected corporations and high net worth individuals. Large corporations view tax as merely another cost to minimize. The supply-side of the tax avoidance market consists mainly of tax professionals whose accountancy, legal, financial, or other technical skills enable them to provide tax benefits that others without such training cannot. As in other markets, the suppliers of these tax services are under pressure to provide greater tax savings than those offered by their competitors, with the result that many tax professionals are willing to promote tax strategies of questionable legality. These tax professionals charge high fees for their services, so it is unsurprising that their clients are almost exclusively wealthy individuals and multinational corporations.

6.3.2 Transfer Mispricing and Other Strategies that Capitalize on Globalization and Technological Advancements In recent decades, globalization and technological advancements have vastly increased the potential for tax abuse. It is now possible to transfer funds instantaneously between tax jurisdictions, and increasingly complex financial instruments have been developed. A wide range of tax avoidance strategies has been developed to capitalize on these new levels of interconnectedness and technological capability. The most significant of these strategies (in terms of dollars of revenue lost) is transfer mispricing. A transfer price is the price at which a company in one jurisdiction sells a good to a related company in a different jurisdiction. To avoid abuse, transfer prices ought to be set according to the “arms length principle,” according to which intra-company sales should occur at the price one would expect the same good to be traded between unrelated companies. Transfer mispricing occurs when a multinational company does not follow the their part, are generally willing to disseminate such information for free as it helps the firms market themselves as tax experts. In these ways, tax professionals can provide valuable functions in society, by helping tax institutions achieve their core purpose, which is to raise revenue effectively and equitably. Professionals can play a positive and functional role in fiscal arrangements by assisting in the development of effective tax legislation, helping communicate information about tax legislation to taxpayers, and enabling taxpayers to take advantage of tax benefits that they are entitled to. Unfortunately, the reality falls troublingly short of these ideals. Rather than restricting their tax services to helping clients complete tax returns and secure tax benefits within the spirit of the law, a worrying number of tax professionals have expanded their operations into facilitating abusive varieties of tax avoidance, as I document below.

  

115

arms length principle, but instead takes unfair advantage of differences in national tax laws to construct artificially low or high transfer prices for goods and services. This practice can reduce a company’s apparent tax obligations through the mechanism of unfair price manipulation. The scale of transfer mispricing is phenomenal: the Financial Transparency Coalition estimates that, the practice has accounted for about 80 percent of illicit financial flows out of developing countries, or around US $4.688 trillion of the estimated US$5.86 trillion in total illicit financial flows.¹⁴

6.3.3 The Offshore Impact Tax havens or “offshore” jurisdictions offer minimal or no tax rates within their territories. More importantly, tax havens generally have strict banking secrecy laws that prohibit the disclosure of information about non-residents who make use of their tax benefits. These secrecy laws are intentionally designed to facilitate the circumvention of legislation or regulation in other jurisdictions. Their effect is to severely reduce the level of transparency in global taxation arrangements, to the point where even the US Inland Revenue Service, the most well-resourced tax institution in the world, cannot access all the information it needs to tax all its residents effectively. Enormous amounts of private wealth are stored in tax havens.¹⁵ In addition, approximately 50 percent of all international trade appears to pass through tax havens, despite the fact that very little substantive economic activity occurs in these zones.¹⁶ Unsurprisingly, offshore jurisdictions are implicated in a wide variety of abusive tax avoidance schemes. Transfer mispricing, for example, typically involves setting transfer prices such that the majority of a company’s income is registered in tax havens, while a low profit or even a loss is registered in the jurisdictions where economic activity actually takes place.

6.3.4 Lack of Accountability for Wealthy Tax Avoiders Alongside the lack of transparency in global fiscal arrangements is a lack of accountability, particularly concerning the amounts of tax paid by multinational ¹⁴ Kar and Freitas, Illicit Financial Flows from Developing Countries, vii. Older estimates include staggering amounts as well. See for instance, Cobham “Tax Evasion, Tax Avoidance and Development Finance”; Jenny Kimmis and Ruth Mayne, Tax Havens: Releasing the Hidden Billions for Poverty Eradication (Oxford: Oxfam International, 2000), 3. Available at: https://policy-practice.oxfam.org/ resources/tax-havens-releasing-the-hidden-billions-for-poverty-eradication-114611. ¹⁵ The Tax Justice Network estimates that the use of tax havens results in a global revenue loss of US $255 million per year. Tax Justice Network (TJN), “The Price of Offshore,” Tax Justice Network Briefing Paper (London: TJN, 2005). ¹⁶ TJN, Inaugural Newsletter (London: TJN, 2003).

116

   

corporations and wealthy individuals. Many high net worth taxpayers contribute far less than a fair share of tax, given their enormous means, yet it is rare for anyone to be held to account for this. This lack of accountability persists, in part, because tax institutions cannot always afford the high cost of a protracted legal battle. Wealthy taxpayers are able to hire the very best solicitors to argue on their behalf and can continue to finance a costly legal team for many years. Consequently, tax institutions sometimes find that their budgets do not allow for a legal challenge against a wealthy taxpayer, even when there is good evidence that the tax strategies of that taxpayer are abusive.

6.3.5 The Complexity of Tax Law Current tax legislation is incredibly complex. To take one example, the US tax system now includes more than 10,000 pages of code and regulation.¹⁷ The complexity of tax law is an issue because the more clauses and sub-clauses there are within a tax code, the more extensive is the legal knowledge needed to determine whether a given tax strategy is legal. This exacerbates the accountability issues discussed above, since a complex tax code means a skilled tax lawyer can potentially find a technicality on which to defend a seemingly abusive tax position. Complexity also creates an incentive for tax service providers to discover previously unexploited loopholes in the tax code and sell this knowledge to clients. Globalization makes tax law even more complicated: different jurisdictions have different tax regulations, transfer pricing rules, and so on, making it exceptionally difficult to determine whether a corporate structure that spans multiple tax jurisdictions complies with the law in each jurisdiction. While there are many in favor of radically simplifying national tax systems, at present the trend is toward even greater complexity: as private sector tax specialists devise ingenious new ways of avoiding tax, governments respond by adding further clauses to the existing legislation.

6.3.6 Additional Factors in developing countries Because of the five factors discussed above, abusive tax avoidance is a significant problem for developed and developing countries alike. Additional factors heighten the extent of the problem for the developing world. First, developing states often have very weak institutions, and tax institutions are no exception to this rule. Weak tax institutions can fail to collect large proportions of owed tax revenue. ¹⁷ Jeffrey Simser, “Tax Evasion and Avoidance Typologies,” Journal of Money Laundering Control 11 (2008): 123–34, at 124.

  

117

Developing countries simply lack the resources and administration necessary to combat transfer mispricing and other sophisticated tax avoidance techniques. Second, developing countries tend to have large informal sectors, which can seriously restrict their ability to tax all citizens fairly. When workers are not formally employed, it is difficult to track their wages, let alone collect any taxation from that income. Third, low tax morale can hamper developing countries’ abilities to collect taxes equitably and efficiently. When citizens do not feel that they are getting value for their taxes, they will be less willing to contribute the taxes that are owed.¹⁸ So, for instance, when core goods fail to be provided, when there is a perception that taxes collected will be wasted, embezzled, or otherwise not spent on their legitimate purposes, citizens will be less likely to want to contribute their legally required taxes. In particularly dire cases this can lead to negative feedback loops: low tax morale means there are insufficient funds for executing core state functions, effectively further undermining tax morale.

6.4 Assigning Remedial Responsibilities How should we assign responsibilities fairly for remedying abusive tax avoidance? While a variety of normative approaches could be used to address these issues, here I focus on an under-explored strategy that promises to make an important contribution to the general issue of understanding normative responsibilities. Roughly speaking, the strategy notes that we have especially strong obligations to remedy corruption-facilitating institutional defects that we have caused, benefited from, and have capacity to fix. In this chapter I am concerned with special responsibilities of particular agents. For an agent (or group of agents) to have special responsibilities of this kind, it is necessary that this agent be connected in some important way to the defect or deprivation in question. When we think about the sorts of relations that produce special duties, three distinct types of connection are salient though not necessarily decisive. First, if someone causes or significantly contributes to an instance of wrongdoing or injustice, that person can often be expected to do more than others in correcting the injustice. A large part of the law is concerned with assigning remedial responsibilities on this causal basis. Second, an individual who benefits from a situation or process that causes deprivation for others can have special responsibilities to alleviate the deprivation. Third, if a person possesses resources or ¹⁸ Bruno Frey, “The Role of Deterrence and Tax Morale in Taxation in the European Union,” Jelle Zijlstra Lecture (Wassenaar: Netherlands Institute for Advanced Study in the Humanities and Social Sciences, 2002); Herbert Edling and David Nguyen-Thahn, “Taxes and Culture—Tax Reforms for Sustainable Development,” Fiscal Studies 5 (2006): 1–33; Marcelo Bergman, “Who Pays for Social Policy? A Study on Taxes and Trust,” Journal of Social Policy 31 (2002): 289–305; Richard Bird, “Tax Challenges Facing Developing Countries,” Institute for International Business Working Paper Series 9 (Vienna: Institute for International Business, 2008).

118

   

abilities that enable her to address a problem effectively and at low cost, that person can have special responsibilities to assist. For instance, the strongest rock climber might be expected to rescue the trapped mountaineer when this also involves low cost to her. We can state each of these connections more precisely as follows. Given a set of agents, A, and a particular defect or source of deprivation, D, under certain circumstances any one of the following connections may be enough to generate special responsibilities for A to help in remedying D. Causal contribution: A causes or significantly contributes to D. Benefit: A benefits from the situation or process that leads to D. Capacity: A is capable of remedying D effectively and at relatively low cost to A.¹⁹ Are causal contribution, benefit, and capacity individually sufficient conditions for the existence of special duties? In many cases, the presence of just one of the relevant connections can indeed be enough to generate such responsibilities, but certainly not always.²⁰ My strategy is to show that when all three of the connective criteria converge, there are very strong and not easily defeasible grounds for establishing remedial responsibilities. That is, when a particular set of agents, A, relates to defects or sources of deprivation, D, by way of the conjunction of causal contribution, benefit, and capacity to assist, then A has special and significant obligations to remedy relevant defects associated with D, obligations which are not easily defeasible. In the next section I show how this convergence strategy can be applied to abusive tax avoidance.²¹ ¹⁹ Note that all three principles admit of degrees: one can contribute, benefit, or be capable of assisting to varying extents. Differences between the degrees to which agents satisfy these connective criteria provide an approximate basis for comparing the strengths of agents’ responsibilities. ²⁰ However, each of the principles may face some difficult counterexamples. As just one example, consider this problem for benefit: If medical knowledge was improved by the heinous experiments conducted on Jews in Nazi prison camps, does this mean that the beneficiaries of that medical knowledge have special responsibilities to make amends for the Holocaust? A different issue is that causal contribution, benefit, and capacity can pull in different directions for the same case. If, for instance, someone contributes significantly to a case of deprivation but has almost no capacity to alleviate it, causal contribution may not be enough to establish a special responsibility in this case. ²¹ A number of different stakeholders are implicated in the deprivation caused by tax avoidance, including governments, corporations, high net worth individuals, and tax professionals. Abusive tax avoidance is associated with an interconnected array of political, legal, economic, and technological factors. When global justice issues are complex in this way, views on who ought to be responsible for remedying the issue can reasonably differ. The convergence strategy described provides a tractable way to proceed in the normative inquiry. If it turns out that a particular group of agents contributes to, benefits from, and has the capacity to reduce the deprivation caused by abusive tax avoidance, then we can say with confidence that this group of agents does in fact have a significant and specific duty to assist in solutions to the problem, duties which are not easily defeasible. Other agents and groups of agents may also have responsibilities, using the convergence test. Typically many agents will have a role to play in solving complex problems. The nature of their duties might well differ in substantial ways given various factors, notably capacity to assist. So, showing that tax professionals have strong remedial responsibilities with respect to abusive tax avoidance does not preclude others being allocated responsibilities too.

  

119

6.5 Causal Contribution: How Tax Professionals Facilitate Abusive Tax Avoidance The overwhelming majority of abusive tax avoidance arrangements would simply not be possible without the deliberate assistance of a wide variety of tax professionals. Professionals, including accountants, lawyers, financial experts, estate managers, and offshore specialists have an indispensable role in enabling high net worth individuals and large corporations to reduce their tax payments in ways that directly violate or otherwise subvert the requirements of tax law. Consider the tax avoidance activities of Sam and Charles Wyly, a case that illustrates well the role of professionals in designing and managing tax shelters. In 2005 the Wyly brothers became the subject of a US Senate investigation for allegedly evading tax on hundreds of millions of dollars that was earned and traded in the US.²² The Wylys had set up an intricate network of 58 trusts and shell corporations in offshore tax havens such as the Cayman Islands and the Isle of Man. The Wylys moved approximately $190 million into these entities by way of a “stock option-annuity swap”: Wyly-owned stock options, an asset that is taxable only once exercised, were “sold” to Wyly-related offshore corporations in exchange for annuity promises that would not register as taxable income until many years later.²³ The stock options were exercised offshore (and hence untaxed) and used as base funds for generating hundreds of millions through a variety of complex securities transactions in US markets. These trades were conducted by accounts opened by Wyly-related offshore entities in major US securities firms, but no US tax was paid on any of the trading gains because these profits allegedly belonged to independent offshore trusts.²⁴ Over $500 million in profits from these trades was subsequently invested in Wyly-related business ventures, real estate, artwork, and jewelry.²⁵ An armada of tax professionals aided the Wyly brothers in all aspects of their tax sheltering schemes. The use of a stock option-annuity swap to shift assets offshore while maintaining the appearance of a legal business transaction required expert knowledge of the intricacies of US tax law; a number of US and offshore law firms were willing to provide the Wylys with that expertise.²⁶ US-based legal counsel also corresponded with offshore service providers on the Wylys’ behalf and provided routine advice on how to operate the offshore entities without appearing to break US law.²⁷ Offshore financial institutions assisted the Wylys ²² US Senate Permanent Subcommittee on Investigations, Tax Haven Abuses: The Enablers, the Tools, and Secrecy (Washington, D.C.: US Government Printing Office, 2006), 113. Available at: https:// www.hsgac.senate.gov/subcommittees/investigations/library/files/report-tax-haven-abuses-the-enablersthe-tools-and-secrecy/. ²³ Permanent Subcommittee on Investigations, Tax Haven Abuses, 163–8. ²⁴ Permanent Subcommittee on Investigations, Tax Haven Abuses, 201–10. ²⁵ Permanent Subcommittee on Investigations, Tax Haven Abuses, 249–50, 283, 307. ²⁶ Permanent Subcommittee on Investigations, Tax Haven Abuses, 388–94. ²⁷ Permanent Subcommittee on Investigations, Tax Haven Abuses, 123–5.

120

   

by opening accounts and transferring funds across international lines, and offshore law firms provided legal advice to the Wylys and other facilitators of the network.²⁸ Furthermore, major US financial institutions, including Lehman Brothers and Bank of America, held domestic accounts for the Wylys’ offshore trusts that were used to trade securities in US markets, invest in US assets, and send multi-million-dollar wire transfers. These financial institutions knew that the Wylys were associated with the offshore trusts that owned these domestic accounts, but turned a blind eye, never requiring the trusts to reveal their beneficial owners or document the nature of the Wyly connection.²⁹ Professionals also helped the Wylys to appear technically independent from their offshore network for taxation purposes. The Wylys did not establish or manage any of their offshore entities directly; instead they enlisted specialist offshore service providers to establish the offshore trusts and corporations, serve as their trustees and directors, and handle all related paperwork.³⁰ The Wylys and their representatives were careful to make only “recommendations” to the registered trustees and directors regarding the operations of their offshore entities. In reality, these “recommendations” served as detailed instructions that were invariably carried out, but by phrasing their correspondences as mere suggestions the Wylys could claim to be technically unrelated to the offshore network.³¹ On paper and throughout the Senate investigations, the Wylys have maintained a position of total independence, for taxation purposes, from the offshore entities that acted in their interests. As the Wyly case illustrates, effective tax avoidance strategies tend to require the cooperation of a range of professionals with different areas of expertise. Looking at the specific contributions of three major groups of tax professionals: accountants, lawyers, and financial experts—gives us the detail we need to appreciate the role of these enablers more fully. I particularly draw attention to the involvement of large, multi-national professional firms, as these companies have enormous financial and human capital at their disposal and hence the potential to facilitate tax avoidance on a huge scale. These same capacities could also be usefully harnessed in relevant reforms, as later discussed.

6.5.1 Accountants There are currently four dominant multi-national accountancy firms: Deloitte, PricewaterhouseCoopers (PwC), Ernst & Young (E & Y), and KPMG. Collectively, these firms are known as the “Big Four”. Tax services are a significant component

²⁸ ²⁹ ³⁰ ³¹

Permanent Subcommittee on Investigations, Tax Haven Abuses, 128–30. Permanent Subcommittee on Investigations, Tax Haven Abuses, 316. Permanent Subcommittee on Investigations, Tax Haven Abuses, 127. Permanent Subcommittee on Investigations, Tax Haven Abuses, 135–6.

  

121

of the Big Four’s operations; in 2012, the Big Four’s combined annual revenues from tax services was approximately US$25 billion, or roughly one fifth of their total global revenues.³² Of this $25 billion, the majority comes from tax advice, and much of that advice is aimed at helping wealthy individuals and corporations minimize the tax they pay.³³ It is useful to divide the Big Four’s causal contributions to abusive tax avoidance into two time periods: the late 1990s and early 2000s, and the years since then. The former period witnessed a boom in mass-marketed, generic tax shelters, of which large accountancy firms were among the most aggressive designers and promoters. The Big Four targeted large corporations and wealthy individuals, approaching these taxpayers with tax shelter proposals rather than waiting for their services to be solicited.³⁴ KPMG was probably the most aggressive promoter of these mass-marketed tax products.³⁵ KPMG set ambitious targets for the development of avoidance strategies (the goal in 2001 was to come up with 150 new tax product proposals) and staff teams were ranked according to the number of proposals they had made.³⁶ New infrastructure was introduced to support the increased focus on tax avoidance services, including a “Tax Innovation Centre” tasked with developing novel tax shelters. Staff were trained in making cold calls to potential clients.³⁷ In addition, KPMG was actively involved in the implementation of its tax shelters, coordinating offshore entities and transactions, enlisting participation from financial institutions, and preparing tax returns and transactional documents for clients.³⁸ To prevent information on its tax products from reaching tax authorities, KPMG gave all its client presentations on chalkboards or erasable whiteboards and required anyone who attended an information session to sign a nondisclosure agreement.³⁹ But despite these clandestine precautions, in 2003 KPMG became the subject of a US Senate Subcommittee investigation for allegedly marketing abusive tax shelters. In questioning, KPMG admitted to having as many as 500 active, non-disclosed tax products.⁴⁰ The Subcommittee concluded that KPMG helped wealthy clients claim tax losses of at least $7.2 billion through

³² House of Commons Committee of Public Accounts, Tax Avoidance, 7–8. ³³ House of Commons Committee of Public Accounts, Tax Avoidance, 7–8. ³⁴ Prem Sikka and Mark P. Hampton, “The Role of Accountancy Firms in Tax Avoidance: Some Evidence and Issues,” Accounting Forum 29 (2005): 325–43, at 333. ³⁵ For a detailed account of KPMG’s tax shelter activities, see US Senate Permanent Subcommittee of Investigations, US Tax Shelter Industry: The Role of Accountants, Lawyers and Financial Professionals (Washington D.C.: US Government Printing Office, 2003). Available at: https://www. govinfo.gov/content/pkg/CPRT-108SPRT90655/pdf/CPRT-108SPRT90655.pdf. A summary can also be found in Sikka and Hampton, “The Role of Accountancy Firms in Tax Avoidance,” 332–5. ³⁶ Permanent Subcommittee of Investigations, US Tax Shelter Industry, 173. ³⁷ Sikka and Hampton, “The Role of Accountancy Firms in Tax Avoidance,” 333. ³⁸ Permanent Subcommittee of Investigations, US Tax Shelter Industry, 148. ³⁹ Sikka and Hampton, “The Role of Accountancy Firms in Tax Avoidance,” 333–4. ⁴⁰ Permanent Subcommittee of Investigations, US Tax Shelter Industry, 169.

122

   

“potentially abusive and illegal tax shelters that US taxpayers might otherwise have been unable, unlikely, or unwilling to employ”.⁴¹ The other Big Four firms were also heavily engaged in the development and marketing of generic tax avoidance strategies throughout the so-called “boom years” of tax avoidance. Between 1997 and 1999 PwC sold or was in the process of selling almost 200 tax products that the IRD later identified as abusive tax shelters.⁴² E & Y developed aggressive strategies to market generic tax products; in 2000 an internal email to E & Y tax professionals set a nationwide goal of generating $1 billion of tax losses through the sale of just one tax product, called a “Contingent Deferred Swap” (CDS).⁴³ Between 1999 and 2001, E & Y sold CDS to a total of 132 taxpayers, even though several professional staff had expressed concerns about the legality of the product.⁴⁴ The Big Four now admit to developing, marketing, and implementing highly aggressive tax strategies during the late 1990s and early 2000s. They insist, however, that times have changed. KPMG, for instance, claims to have introduced stricter internal due diligence policies, including a requirement that tax advice be supportable in law.⁴⁵ However, even if these changes claimed are indeed genuine, the Big Four should still be accountable for the large-scale tax avoidance that they facilitated in the boom period of mass-marketed tax shelters. Each of these enormous, professional firms directly and aggressively helped wealthy individuals and corporations generate billions in tax savings over these years, which on its own is enough to generate specific remedial responsibilities. Furthermore, some of the tax avoidance strategies that the Big Four designed and implemented in the boom period are still in use today: US industrial manufacturer Caterpillar continues to use a strategy devised by PwC in 1999, enabling Caterpillar to log the majority of its profits in Switzerland where the company pays an effective tax rate of only 4 percent.⁴⁶ There is also reason to doubt whether the Big Four have in fact exited the tax sheltering industry. Although the firms claim that all of their tax advice is supportable in law, the Big Four are at least sometimes willing to promote tax ⁴¹ Permanent Subcommittee of Investigations, US Tax Shelter Industry, 147–8. KPMG eventually accepted a deferred prosecution agreement, admitting criminal wrongdoing and agreeing to pay $456 million to the U.S. Government; see Department of Justice, “KPMG to Pay $456 Million for Criminal Violations,” Department of Justice, August 9, 2005. Available at: https://www.justice.gov/archive/opa/ pr/2005/August/05_ag_433.html. ⁴² US Senate Permanent Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry (Washington, DC: US Government Publishing Office, 2005), 93. Available at: https://www.govinfo.gov/content/pkg/CRPT-109srpt54/html/CRPT-109srpt54.htm. ⁴³ Permanent Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 83. ⁴⁴ Permanent Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 87. ⁴⁵ House of Commons Committee of Public Accounts, Tax Avoidance, 8–9. ⁴⁶ Danielle Douglas, “Caterpillar Skirted $2.4 Billion in Taxes, Senate Report Says,” The Washington Post. March 31, 2014.

  

123

reduction strategies that have as little as a one-in-two chance of surviving a challenge by tax authorities.⁴⁷ Such standards would be clearly unacceptable in an investment setting: one could hardly defend a dubious business venture by insisting it was “only 50 percent likely to be deemed illegal”. For firms supposedly trying to discourage abusive tax avoidance, the Big Four’s standards for the legal supportability of their tax advice are exceptionally low. Relatedly, the Big Four firms do not in any way reprimand or sanction tax staff responsible for designing or recommending a strategy that is later overturned by revenue authorities.⁴⁸ The Big Four may have nominally committed to respecting the letter and spirit of the law, but they do not seem to provide their tax professionals with strong incentives to adhere to those principles in practice.

6.5.2 Lawyers There are three main ways in which lawyers facilitate abusive tax avoidance: (1) assisting in the design and implementation of abusive shelters; (2) providing legal opinions in support of abusive transactions; and (3) representing tax shelter clients. In many cases, a single law firm—and even the same individual—assists a particular tax avoider in two or three of these capacities. The particular tax shelters discussed so far illustrate the very high level of legal expertise involved in the tax avoidance industry. Among the legal knowledge required is a sophisticated understanding of tax law as it applies to a wide variety of assets and financial instruments, and specialist knowledge regarding the management of offshore entities and transactions with those entities. Some particular cases are worth mentioning. Maples & Calder, one of the largest law firms in the Cayman Islands, helped to draft paper work and provided legal advice to other actors involved in the Wyly network.⁴⁹ In 2013 Donna Guerin, a former Jenkins & Gilchrist lawyer, was found guilty of running a ten year scheme that created $7 billion in fraudulent tax deductions and cost the US Treasury $92 million in actual losses. Judge William Pauley concluded that Guerin “was not a mindless automaton,” but rather played a central and conscious role in managing her tax shelters.⁵⁰ Legal professionals were also directly involved in designing, implementing and selling tax avoidance products

⁴⁷ House of Commons Committee of Public Accounts, Tax Avoidance, 9. ⁴⁸ House of Commons Committee of Public Accounts, Tax Avoidance, 9. ⁴⁹ Permanent Subcommittee on Investigations, Tax Haven Abuses, 130. ⁵⁰ Guerin was sentenced to eight years in prison and ordered to pay $190 million. See Patricia Hurtado, “Ex-Jenkins & Gilchrist Lawyer Gets 8 Years in Tax Case,” Bloomberg, March 2, 2013. Available at: https://news.bloomberglaw.com/white-collar-and-criminal-law/former-jenkins-gilchristattorney-sentenced-to-eight-year-prison-term.

124

   

for the Big Four accountancy firms in the 1990s. During this period, the Big Four began offering high salaries to attract the best tax lawyers, including experienced partners from corporate firms.⁵¹ Law firms routinely write opinions on the legality of tax avoidance strategies. For the clients and promoters of abusive tax shelters, a positive legal opinion can serve as a form of insurance, deterring tax authorities from challenging the legality of the shelter or, if a challenge does occur, shielding the client or promoter from tax avoidance penalties. In many cases of abusive avoidance, the soundness or legitimacy of these legal opinions is highly dubious. To serve its intended function, a legal opinion needs to argue only that the transaction in question has a greater than 50 percent chance of being upheld if challenged by tax authorities.⁵² In many cases, lawyers have written opinions based on a limited and distorting set of facts; up until the early 2000s it was standard practice for opinions on tax shelters to be based solely on information provided to the lawyer by the party seeking an opinion.⁵³ Worse, in several documented cases law firms have supplied positive opinions for shelters that the firm was itself involved in designing or implementing. For example, Brown & Wood provided approximately 600 opinions in support of tax shelters promoted by KPMG, despite collaborating closely with KPMG in the design and implementation of the very same shelters. (Indeed, Brown & Wood apparently based its “independent” opinions on templates provided by KPMG.)⁵⁴ Some law firms specialize in defending clients and promoters of tax shelters against the IRS and other tax authorities. For example, the US firm Sutherland Asbill & Brennan represented multiple individuals who purchased KPMG tax products and attempted to negotiate “global settlement agreements” for whole groups of these clients.⁵⁵ This well-financed legal support creates a significant obstacle for authorities seeking to police abusive tax avoidance. Tax enforcement institutions must make decisions on how to spend limited resources, and the anticipated cost of a protracted legal battle can often be a reason for not taking legal action against an apparently abusive shelter. This is especially true given that, even if tax authorities successfully challenge an abusive tax avoidance scheme, the amount of money recouped in fines and penalties may still fall well short of the tax revenue that was lost.

⁵¹ Tanina Rostain, “Sheltering Lawyers: The Organized Tax Bar and the Tax Shelter Industry,” Yale Journal on Regulation 23 (2006): 77–120, at 91. ⁵² Rostain, “Sheltering Lawyers,” 93. ⁵³ For an example, see Subcommittee on Investigations, Tax Haven Abuses, 389. ⁵⁴ Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 102–5. ⁵⁵ Permanent Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 107–11.

  

125

6.5.3 Financial Advisors Financial advisors (including bankers, stock brokers, investment consultants, and so on) contribute to abusive tax avoidance arrangements by offering sophisticated financial advice about what options are available, providing multi-million dollar loans for tax avoidance purposes, facilitating wire transfers to offshore entities, and in some cases designing and implementing novel tax shelters. If major banks and securities firms were not willing to provide these services, a large number of tax shelters would be impossible to execute. Many of the banks involved in tax avoidance are located in secrecy jurisdictions, such as the Cayman Islands and Switzerland, where banking laws strictly prohibit the disclosure of client information. These banks open undeclared accounts for US taxpayers as well as for offshore shell entities that are set up for the purpose of tax avoidance.⁵⁶ Naturally, the existence of these secrecy laws is a major reason why tax avoiders choose to open accounts in Swiss and other offshore banks, as it makes it much more difficult for authorities to determine their true tax situation. However, not all the financial institutions involved in facilitating abusive tax avoidance are based in secrecy jurisdictions. In 2008, six Wall Street banks— Citigroup, Lehman Brothers, Morgan Stanley, Merrill Lynch, UBS, and Deutsche Bank—became the subject of a US Senate Subcommittee investigation for allegedly helping non-US persons avoid US dividend tax.⁵⁷ These banks cooperated with hedge funds in devising tax avoidance schemes that manipulated the different US tax rules for various asset types. Morgan Stanley data indicates that the bank enabled clients to escape over $300 million in US dividend taxes between 2000 and 2007; Lehman Brothers apparently helped clients dodge $115 million in taxes in 2004 alone.⁵⁸ In 2014, similar charges have been made against Barclays and Deutsche Bank; one hedge fund, Renaissance Technology Corp., allegedly dodged $6.8 billion in US taxes using schemes devised by Barclays and Deutsche Bank.⁵⁹ Where banks have not actively assisted in implementing tax shelters, they have often turned a blind eye. Bank of America and Lehman Brothers opened accounts and facilitated multi-million dollar transfers for the Wyly brothers’ offshore ⁵⁶ US Senate Permanent Subcommittee on Investigations, Offshore Tax Evasion: The Effort to Collect Unpaid Taxes on Billions in Hidden Offshore Accounts (Washington, D.C.: Government Printing Office, 2014), 6. Available at: https://www.hsgac.senate.gov/subcommittees/investigations/hearings/ offshore-tax-evasion-the-effort-to-collect-unpaid-taxes-on-billions-in-hidden-offshore-accounts/. ⁵⁷ US Senate Permanent Subcommittee on Investigations, Dividend Tax Abuse: How Offshore Entities Dodge Taxes on US Stock Dividends (Washington, D.C.: Government Printing Office, 2008). Available at: https://www.govinfo.gov/content/pkg/CHRG-110shrg45575/html/CHRG-110shrg45575. htm. ⁵⁸ Permanent Subcommittee on Investigations, Dividend Tax Abuse, 8. ⁵⁹ John McKinnon and Ryan Tracy, “Senate Report: Tax Move Helped Hedge Funds Save Billions,” The Wall Street Journal, July 21, 2014.

126

   

entities. These banks had good reason to suspect that the offshore entities were Wyly-controlled and that they were being used to shelter taxable assets offshore. Indeed, internal correspondence suggests that these banks definitely knew about the Wyly connection. Nevertheless, the banks did not request more information about the nature of the transactions they were facilitating, nor did they voice their suspicions to tax authorities.⁶⁰

6.6 Benefit: What Tax Professionals Gain from Abusive Tax Avoidance As noted in Section 6.2, the market for tax avoidance is like any other in that it consists of consumers and suppliers. Tax professionals are the supply-side of the market, and they are able to profit generously from the services they provide to wealthy clients. The Big Four have earned hundreds of millions of dollars in fees for designing, implementing, and advising on abusive tax avoidance arrangements. A list of just some of the relevant transactions is enough to illustrate this beneficiary connection. KPMG is estimated to have netted $180 million in fees from just four of its generic tax products, as well as between $6 million and $10 million for devising and implementing WorldCom’s tax avoidance strategy.⁶¹ E & Y received about $250,000 from a typical transaction through its CDS shelter, netting a total of $27.8 million from its 132 CDS sales.⁶² PwC was paid more than $55 million for designing Caterpillar’s Swiss-based shelter.⁶³ Lawyers can likewise earn substantial fees for their assistance in tax shelter arrangements. During the “boom years” of the 1990s and early 2000s, fees for opinion letters were sometimes as high as hundreds of thousands of dollars per shelter, and even over one million.⁶⁴ Opinion letters are not difficult nor time consuming to write, so these fees are incommensurate with the amount of work required by the lawyer; instead they reflect the perceived insurance-value of these legal opinions to tax shelter users and promoters. Law firms have also obtained sizable fees for designing and implementing shelters; Brown & Wood earned more than $23 million from collaborating with KPMG, and Donna Guerin allegedly earned $11.5 million in the year 2000 while running her large-scale tax avoidance scheme.⁶⁵ Law firms that represent tax shelter clients in IRS challenges, or in the

⁶⁰ Permanent Subcommittee of Investigations, Tax Haven Abuses, 316. ⁶¹ Sikka and Hampton, “The Role of Accountancy Firms in Tax Avoidance,” 333. ⁶² Permanent Subcommittee on Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 84. ⁶³ Douglas, “Caterpillar Skirted $2.4 Billion in Taxes”. ⁶⁴ Rostain, “Sheltering Lawyers,” 94. ⁶⁵ Hurtado, “Ex-Jenkins & Gilchrist Lawyer Gets 8 Years in Tax Case”.

  

127

client’s dealings with other institutions, can likewise be generously compensated for their services. Due to the secrecy involved in many financial institutions, it is difficult to estimate the extent to which financial institutions benefit from abusive tax avoidance. However, the figures available are telling. Deutsche Bank obtained a total of $79 million in bank fees from two KPMG tax shelters, while HVB earned $5.45 million in three months for providing loans for a single KPMG tax product.⁶⁶ UBS earned around $200 million from helping US taxpayers create false identities to conceal assets offshore.⁶⁷ Aside from fees for services, professionals gain a number of other benefits by promoting and facilitating abusive tax avoidance. The value of return clients and referrals must not be overlooked: a client who solicits tax services from Deloitte and is impressed with the tax savings they secure will be much more likely to solicit Deloitte’s services in the future or recommend Deloitte to others. Note that these referral and return clients need not be solely interested in tax services; gaining a reputation for delivering tax savings could have flow on effects increasing interest in accounting services, legal advice, business consultancy, or other services offered by the company in question.

6.7 Capacity: What Tax Professionals Could Do about Abusive Tax Avoidance Tax professionals have significant capacities to help deter abusive tax avoidance and remedy the deprivation caused by its persistence. Indeed, there are important respects in which private sector tax professionals are better positioned than governments to help reduce the extent of tax avoidance. To begin with, it is important to appreciate the vast financial and other resources available to the largest professional firms. The Big Four accountancy firms, for instance, are some of the world’s largest companies and operate in almost every state. Together the Big Four dominate the accountancy industry, are large players in the financial, consultancy, legal, and tax professions, and employ many of the most knowledgeable and talented individuals in these areas. Many of the financial institutions and law firms that have been implicated in tax avoidance are likewise exceptionally well financed and connected. This is important for two reasons: it means that professional companies are likely to be able to afford the costs of action against abusive tax avoidance, and it suggests that the actual costs of such action will be relatively low for these firms, given their international reach. ⁶⁶ Permanent Subcommittee of Investigations, The Role of Professional Firms in the US Tax Shelter Industry, 112. ⁶⁷ Prem Sikka, “Smoke and Mirrors: Corporate Social Responsibility and Tax Avoidance,” Accounting Forum 34 (2010): 153–68, at 160–1.

128

   

One of the most significant ways in which professional firms demonstrate capacity to assist is in the development of better tax legislation. Since elected officials are rarely tax experts and governments have limited resources for hiring permanent tax advisors, the technical knowledge of private-sector professionals can greatly assist in the writing of new tax law. Staff at professional firms are routinely asked to participate in advisory committees on taxation legislation, and these arrangements can enhance the quality of the legislation produced.⁶⁸ Privatesector tax professionals not only are well qualified to advise on tax legislation but also can provide reliable insights into how changes to the law will actually effect taxpayers—insights which can help ensure changes have the desired effects and do not unintentionally punish certain groups. Many professional firms have lax internal policies relating to the regulation of tax advice, the improvement of which could greatly reduce the extent of abusive avoidance. Despite their rhetoric about respecting tax law, the Big Four firms are willing to endorse tax reduction strategies with only a one-in-two likelihood of surviving a challenge by tax officials.⁶⁹ Moreover, there are currently no repercussions for Big Four employees who promote strategies that are later declared abusive. If the Big Four are indeed serious about reducing their complicity in abusive tax avoidance, they ought to introduce stricter “riskiness thresholds” (closer to an 80 or 90 percent likelihood of surviving a challenge would be appropriate) and internal sanctions such as commission cuts for individual tax professionals who advise a strategy that is ultimately deemed abusive. One fortunate implication of the domination of the accountancy industry by just a few large firms is that policy changes of this kind are relatively easy to coordinate. There is also a notable role for professional associations in remedying abusive tax avoidance. The 2005 American Jobs Creation Act (AJCA) introduced a number of tax compliance reforms, including stricter due diligence requirements, increased penalties for abusive tax avoiders, and sanctions for lawyers who write legal opinions that are designed to provide penalty protection for tax shelter users and promoters, were originally campaigned for by the Tax Sections of the American Bar Association (ABA) and New York State Bar Association (NYSBA).⁷⁰ These professional organizations constructively advised the US Treasury on how to minimize the administrative and compliance costs of these reforms. In supporting the AJCA tax reforms, the ABA and NYSBA most likely acted on a concern that the growth of the abusive tax shelter market was eroding the professional credibility of US tax lawyers.⁷¹ The case demonstrates the potential for professional associations to influence government tax authorities, as well as the capacity of these associations to align the interests of tax ⁶⁸ House of Commons Committee of Public Accounts, Tax Avoidance, 9. ⁶⁹ House of Commons Committee of Public Accounts, Tax Avoidance, 9. ⁷⁰ See Rostain, “Sheltering Lawyers,” 97–104. ⁷¹ Rostain, “Sheltering Lawyers,” 97–104.

  

129

professionals with those of tax enforcers. Unfortunately the leading representative of accountants in the US, the American Institute of Certified Public Accountants (AICPA), fought the introduction of the AJCA reforms.⁷² Finally, but certainly not least importantly, tax professionals have significant influence over the decisions of the clients that they serve. Many individuals and corporations will not take a tax position that is not advised by their lawyers, accountants, or other relevant professionals. While there may be nothing to prevent determined taxpayers from shopping around for a team of professionals willing to administer a highly abusive tax shelter, it is within the power of credible tax professionals to decide that the acquisition of additional clients is not worth compromising their professional integrity.

6.8 Professional Integrity, Collective Action, and the Outline of Some Responsibilities In previous sections I have shown how tax professionals (accountants, lawyers, and financial advisors) are connected to abusive tax avoidance in three important ways involving causality, benefits received, and capacities to assist. This particular conjunction of factors generates strong responsibilities for these professionals to help address abusive tax avoidance, obligations which are not easily defeasible. In this section I draw attention to additional considerations that add weight to the central conclusion. Note that tax professionals are already bound by a number of professional codes that emphasize responsibilities to the public and professional integrity.⁷³ Consider as one example the American Institute of Certified Public Accountants’ Code of Professional Conduct.⁷⁴ The AICPA’s code specifically notes that professionals have duties to serve the public interest. Indeed, the mark of a professional is said to be the acceptance of responsibility to the public. The public interest is defined in this code as “the collective well-being of the community of people and institutions the profession serves”. Item 0.300.030.03 in the AICPA code is an important statement of what these obligations to the public entail. It says: “In discharging their professional responsibilities, members may encounter conflicting pressures from among [various] groups. In resolving those conflicts, members should act with integrity, guided by the precept that when members fulfill their responsibility to the public, clients’ and employers’ ⁷² Rostain, “Sheltering Lawyers,” 99 and 103. ⁷³ Not undermining the integrity of fiscal institutions is part of these professional responsibilities, as I argue in Brock, “Institutional Integrity, Corruption, and Taxation”. ⁷⁴ American Institute of Certified Public Accountants, “Code of Professional Conduct,” Section 0.300.030.02, Available at: http://pub.aicpa.org/codeofconduct/resourceseamlesslogin.aspx? prod=ethics&tdoc=et-cod&tptr=et-cod0.300&vct=1.

130

   

interests are best served”.⁷⁵ When accountants devise and promote tax avoidance schemes that illegitimately deny communities much-needed revenue to sustain core functions, they fail to weigh up conflicting pressures in a way that pays sufficient attention to the public interest. In many jurisdictions around the world professions are governed by similar codes of conduct. Should a particular jurisdiction not yet have such a professional code, the arguments I have offered ground the case for two important points. First, there ought to be such codes and relevant law changes. Second, tax professionals have duties to help bring these into being. Tax professionals have strong duties to promote appropriate collective actions that would assist in bringing about improved tax practices that do not facilitate corruption.⁷⁶ Effective solutions require important changes to norms, practice, and legislation, and tax practitioners have important obligations to assist in bringing about such changes. The basic argument applies to all three sets of tax professionals discussed in this chapter and it can be summarized as follows: 1. We have defective tax practices that allow large-scale tax abuse, resulting in states being unable to collect all the revenue they are owed. This revenue shortfall threatens state’s abilities to deliver on human rights and minimum justice goals, such as protecting liberties and enabling citizens to meet basic needs. 2. We all have obligations to support arrangements that can credibly deliver on core components of justice. (This is one implication of the requirement that we should seek fair terms of co-operation with others, as discussed in Chapter 2.) Importantly, the content of those obligations can vary dramatically with expertise and other capacities to address injustice. 3. Tax professionals have particular skills that give them relevant knowledge about corruption risks and how to address them. This special expertise can make them a candidate for having additional special responsibilities. 4. When it is the case that tax professionals have benefited from, been complicit in, and have capacity to bring about constructive changes, they have special obligations to show moral leadership in initiating and supporting actions necessary for reforms, obligations which are not easily defeasible. 5. So, some of the biggest players (such as the Big Four) have especially strong obligations to be active in reforms, including by mobilizing for important changes, leading by setting good examples, and (where appropriate) helping draft the kinds of documents, codes, legislation (and so forth) that could ⁷⁵ American Institute of Certified Public Accountants, “Code of Professional Conduct,” Section 0.300.030.03. Available at: https://pub.aicpa.org/codeofconduct/ethics.aspx?targetdoc=etcod&targetptr=et-cod0.300&vct=1. ⁷⁶ By “collective actions” I mean actions individually undertaken to achieve some collectively desired end. If we each act to achieve a particular goal we can jointly realize it.

  

131

help set improved industry standards and practice that will resolve abusive tax avoidance problems. 6. More generally, when tax professionals have benefited from, been complicit in, and have capacity to bring about constructive changes, it is not unfair to expect them to participate in collective action to support necessary changes to practices, norms, or legislation governing their professions. So, they can reasonably be expected to join with others in mobilizing for more appropriate standards, norms, and legislation to govern the tax industry. And they can be expected to support such efforts and cooperate to bring them about. This notably means they should refrain from lobbying against such reforms or trying to subvert them in other ways. As I have been discussing, tax professionals have the sophisticated knowledge needed to identify reforms that are likely to prove robust and resilient to further creative thinking about loopholes. So they have an obligation to take an active and leading role in these reform efforts, at least when premise 4 applies to them.

6.9 Extending the Analysis to Other Enablers Professional service providers have not only assisted domestic clients in shifting taxable assets into secrecy jurisdictions, thus helping their clients evade the rule of law. There is a large international market for their services as well. Teams of professional service providers facilitate corruption opportunities for agents of high net worth from many states, finding eager clients in states that are authoritarian, weak, or fragile, sometimes actively seeking out such clients.⁷⁷ Professional service providers have enabled people to shift their fortunes of dubious provenance to secrecy jurisdictions, thereby helping shield offenders from the rule of law. They have not only assisted with concealing illicit funds but also helped launder them so they are inserted into the economies of Western democracies.⁷⁸ They also assist

⁷⁷ Ben Judah and Nate Sibley, The Enablers: How Western Professionals Import Corruption and Strengthen Authoritarianism (Washington, D.C.: Hudson Institute, 2018). Available at: https:// www.hudson.org/research/14520-the-enablers-how-western-professionals-import-corruption-andstrengthen-authoritarianism; Jorum Duri, “Professional Enablers of Economic Crime during Crises,” U4 Anti-Corruption Resource Centre, May 25, 2020. Available at: https://www.u4.no/publications/profes sional-enablers-of-economic-crime-during-crises; Alexander Cooley and John Heathershaw, Dictators without Borders: Power and Money in Central Asia (New Haven: Yale University Press, 2017); Emile van der Does de Willebois et al., The Puppet Masters: How the Corrupt Use Legal Structures to Hide Stolen Assets and What to Do About it (Washington D.C.: The International Bank for Reconstruction and Development/The World Bank, 2011). Available at: http://hdl.handle.net/10986/2363. ⁷⁸ Judah and Sibley, “The Enablers”; Duri, “Professional enablers of economic crime during crises”; Cooley and Heathershaw, Dictators without Borders; and van der Does de Willebois et al., The Puppet Masters.

132

   

parties in accessing networks of influence and public relations experts in democratic societies who can help perpetrators refresh their reputations and enhance their social circles. Western professionals have thereby transformed segments of professional service industries into importers of transnational corruption.⁷⁹ The offshore secretive environment assists agents to escape legal reach. The shadow financial system can include complex webs of anonymously owned companies and accounts located in secrecy jurisdictions. Such features allow agents to circumvent the regulatory and taxation systems of conventional jurisdictions. Many of these illicit transactions simply could not happen without the assistance of parties in Western democracies. The pattern involves a few steps. Professional intermediaries help to conceal beneficial ownership, often by creating complex arrangements in secrecy jurisdictions. Then a range of professional service providers assist with the integration of those funds into the legitimate economy, such as through real estate purchases, investments, or other expensive asset sales. Lawyers assist in navigating and exploiting the complex landscape, setting up anonymous shell companies, trusts, and the like. Lawyers are often the central agents in engaging additional relevant parties such as incorporation agents, professionals in finance, realtors, lobbyists, and public relations professionals. Lawyers also give advice on business and investment opportunities. Many reforms are needed to change this situation. Service providers should be required to perform due diligence on prospective foreign clients. Anti-money laundering laws that apply in some sectors should apply to all legal services, including requirements to file suspicious activity reports. Incorporation services providers should be required to disclose beneficial ownership of the shell companies they create. Anonymous shell companies are usually situated within a complex network of other shell companies that are located across multiple jurisdictions. Sometimes they hide in plain sight. In fact, the United States is one of the leading offenders, mass-producing more anonymous shell companies than 41 financial secrecy jurisdictions.⁸⁰ Also of concern is the fact that you can create an anonymous shell company in the US by supplying less information than that required for a library card.⁸¹ Requiring companies and trusts to disclose beneficial ownership information is essential for reforms. Those who offer incorporation services should be legally required to perform due diligence on prospective clients. There should be significant penalties for failures to disclose relevant beneficial ownership information or failures to carry out due diligence. Given the role of financial services in assisting money laundering in moving illicit funds into the financial system, concealing their origin, and assisting with integration, often using the successfully laundered ⁷⁹ Judah and Sibley “The Enablers”. ⁸⁰ Van der Does de Willebois et al., The Puppet Masters. ⁸¹ Liz Confalone, “Forming an Anonymous Company Can be Easier than Getting a Library Card,” New York Times, April 7, 2016.

  

133

funds for purchases and investments, their activities warrant more scrutiny. For instance, there should be more oversight on whether suspicious financial activity is being adequately reported and whether customer due diligence requirements are being met. Similarly, in the case of professionals in real estate services, there should be more vigilant oversight to ensure obligations to disclose beneficial owner information and perform customer due diligence checks are being met. Real estate agents and other dealers in high value assets often play a pivotal role in inserting funds into the legitimate economy. Of the approximately $8 billion spent annually on New York real estate more than $5 billion involved shell companies, according to a recent estimate.⁸² Anti-money laundering systems that can detect and block such transactions are needed. Even when there is a code of conduct in a real estate jurisdiction there continues to be widespread failure of ethical standards and selfregulation within the professions. Reflecting on some of the UNCAC mandatory obligations I discussed in the last chapter, such as those concerning money laundering, criminalizing embezzlement, misappropriation of property, and obstruction of justice, it is clear that states are failing in some of their central obligations if they permit such activities to continue. We continue this discussion in the next chapter.

6.10 Conclusion Illicit flows are a massive driver of corruption around the world, helping those who make use of offshore options to evade the rule of law in the jurisdiction where they reside. Focusing on activities and agents that enable illicit flows is particularly worthwhile, as we can thereby appreciate the key enablers whose activities contribute greatly to corruption. The proceeds of corruption are increasingly finding their ways out of the countries in which corruption occurs. Professionals, especially tax professionals, play an integral role in facilitating this movement and in this chapter I examined their crucial role in sustaining corruption. By exploring the main reasons for the persistence of abusive tax avoidance practices, we were able to understand some of the rich detail necessary for the normative analysis. Suitably equipped we could then appreciate tax professionals’ causal contributions, significant benefits, and capacities relevant to remedying the situation. Applying a convergence approach, I argued that tax professionals— especially large, multinational professional firms—have significant remedial duties in connection with abusive tax avoidance. While I focused on showing how accountants, lawyers, bankers, and other financial professionals have ⁸² Louise Story and Stephanie Saul, “Towers of Secrecy: Stream of Foreign Wealth Flows to Elite New York Real Estate,” New York Times, February 7, 2015.

134

   

important responsibilities to assist with reforms, in the final section I suggested that these arguments apply to many other enablers including realtors and those who deal in high value assets. In this chapter I have also introduced some important principles that can be applied to fair assignments of responsibilities in other cases. When there is a particular conjunction of factors connecting a set of agents to certain defects, then that agent set has special important obligations to remedy those defects. The conjunction of factors I drew attention to in this chapter are causal contribution, benefit, and capacity to assist with the defects in question. We continue discussing the project of fair responsibility assignments in the next chapter, uncovering several more principles that are significant as well.

7 Sharing Responsibilities for Action 7.1 Introduction How should we share responsibilities fairly for addressing corruption in our world today? In this chapter I offer an account of how to do so. I build on several strands of argument to show how we can take action in our quest to reduce corruption through pathways available to us here and now. Thanks to the efforts of committed trailblazers from across the world, important contemporary tools exist that we can harness to reduce corruption. Where these do not yet exist I offer a framework for identifying who should take constructive action and how they might amplify their efforts. This chapter makes three significant contributions. Applying the normative arguments to our contemporary situation yields many particular responsibilities for specific agents. One core project for the chapter is to demonstrate how. A second is to enlarge our normative arsenal, sharpening some arguments while developing others, to show that their combined strength makes for a compelling position that is highly salient in our quest to reduce injustices in our imperfect world. A third is to provide a usable framework that blends salient considerations to help guide us in sharing responsibilities for addressing corruption, one that is pertinent to complex cases. First we need to look back briefly, before we can assemble all the pieces in progressing the argument. In the next section, Section 7.2, I remind readers of central points concerning sharing responsibilities established from previous chapters. Section 7.3 focuses on significant responsibilities for states, the agents allocated primary responsibilities for justice within our current state system. I recap some central parts of the United Nations Convention against Corruption (UNCAC), our most comprehensive real world framework in use today, that guides the actions of many people across the world and improvements in domestic and international law. Reflecting on a sample of key UNCAC requirements, it is clear that states have considerable responsibilities to support a variety of measures that strengthen capacities to address corruption, and responsibilities to implement many constructive policies recommended in previous chapters. I offer examples, such as by tracing states’ extensive responsibilities to strengthen corruption-curbing measures in the public and private spheres, along with encouraging appropriate participation efforts from members

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0007

136

   

of civil society. I emphasize state responsibilities to ensure there is robust oversight of many activities that would otherwise facilitate corruption. Drawing on central UNCAC requirements assists us in beginning to understand how responsibility gets shared among many agents. Various agents have important responsibilities and the state has an important role to play in ensuring that those agents are adequately discharging their duties. In Section 7.4 I show how state responsibilities give rise to significant responsibilities for particular actors, illustrating by showing how responsibilities for addressing tax escape are shared among a number of parties. Section 7.5 discusses our responsibilities to create and enlarge capacity to address corruption. Actors from civil society, business, and government all have important roles to play in making anti-corruption measures work effectively. Our different capacities, roles, and situations mean we can assist in generating capacity in different ways as well. These different ways of creating capacity can both ground and amplify responsibilities. We can extend capacity to address our target problem through, for instance, innovative institutional design, as Multi-stakeholder Initiatives aim to do. I argue that we have duties to enhance capacities to address corruption by joining in certain well-functioning collective efforts others have already established. We have obligations to participate in existing efforts that are credibly addressing corruption here and now. Section 7.6 further explores how roles and specialized skills can enhance our responsibilities to create capacity. Section 7.7 pulls together several considerations, synthesizing them into one usable framework that offers advice on how to share responsibility for tackling corruption fairly. While many have a role to play, some have much greater roles. Greater shares track a variety of factors including capacity to assist, contributions to the corruption, benefits derived from corruption, role-related responsibilities, and assistance already provided. Working through eight central questions can significantly guide us in responsibility sharing decisions. I also discuss the issue of how to navigate a sense of obligation overload when we confront a range of possible change actions that we could perform. We can often reduce tensions among multiple responsibilities by keeping our eye on an important goal. We should be aiming to create resilient communities and mechanisms that are human rights supporting. Joining up with others and forming broad coalitions often reduces tensions we might otherwise encounter. As well, joining up often helps us discharge an important responsibility, namely to create corruption-curbing capacity. By joining in, joining up, or contributing to the joint venture, we can discharge our responsibilities well. Before I begin the work of this chapter I remind the reader about the kind of responsibility that is principally in view. There is a vast literature on

   

137

the various ways in which we might understand responsibility.¹ The kind of responsibility I am primarily concerned with in this work is the responsibility to take action. Prominent authors, including Iris Young, Bob Goodin, and David Miller, have been influential in the development of my thinking, however, my use of the term “action responsibility” is not intended to be theirs, as should become clear, especially in Section 7.7.² The idea of action responsibility is meant to capture central points of what is at stake: who should act and what they should do. My concern with responsibility in this chapter is with both aspects of action responsibility. Other treatments often take the question of what should be done as fixed. Theorists then deliberate about how to apportion responsibilities fairly in connection with some specific actions. My account has two variables in play. What should be done is obviously a key issue in determining the content of an obligation. Clarifying where the corruption risks lie and drawing on some of the empirical information canvased in previous chapters often helps guide us to the content of what needs to be done to reduce relevant corruption risks. Once that content is clearer we can better appreciate who is in a position to act with regard to particular risks. We have done important work on the content issue throughout the book and we are now in a position to draw components together.³ ¹ For excellent entry points into matters of responsibility see Matthew Talbert, “Moral Responsibility,” Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, October 16, 2019. Available at: https://plato.stanford.edu/entries/moral-responsibility; and particularly Marion Smiley, “Collective Responsibility,” Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, March 27, 2017. Available at: https://plato.stanford.edu/entries/collective-responsibility. Another useful literature that has influenced ideas I develop here concerns the international law notion of common but differentiated responsibilities. For more on that international law approach see, for instance, Christopher Stone, “Common But Differentiated Responsibilities in International Law,” American Journal of International Law 98 (2004): 276–301; Andre Nollkaemper and Dov Jacobs, “Shared Responsibility in International Law: A Conceptual Framework,” Michigan Journal of International Law 34 (2013): 359–438. ² I agree with those who wish to emphasize task-based approaches to assigning action responsibility, rather than the often dominant backward-looking, blame-oriented accounts. Robert Goodin distinguishes between two kinds of responsibility. One is forward-looking and task-oriented. The other is a backwardlooking and blame-allocating. We can appreciate that there are two separable questions: Who caused the problem? Who can best remedy it now? Answers may converge, but they need not. Assigning task responsibility may often have little to do with who caused the problem in the first place. See for instance, Robert Goodin and David Schmidtz, Social Welfare and Individual Responsibility (Cambridge: Cambridge University Press, 1998) and Robert Goodin, Protecting the Vulnerable: A Reanalysis of Social Responsibilities (Chicago: Chicago University Press, 1985). Anna Stilz also offers helpful discussions of task responsibility noting that it “involves assigning duties to people to repair a particular situation, even when they did not cause the outcome and cannot be blamed for it” in “Collective Responsibility and the State,” The Journal of Political Philosophy 19 (2010): 190–208, at 6. For Stilz, task-responsibility to help repair harm is independent of moral responsibility. Membership of states generally brings a range of benefits not otherwise available. Citizens must be prepared to share in any costs associated with membership as well, so can defensibly be expected to share in liability for state’s unjust actions. The same goes for professional organizations and corporations. In footnotes from Section 7.7 (especially footnotes 30 and 31), I discuss the work of David Miller and Iris Marion Young, and how my approach differs from theirs. ³ For more on how my approach differs from that of others’ see the footnotes in Section 7.7, such as footnotes 30 and 31.

138

   

It is important to differentiate between a forward-looking model of responsibility and what is often called “the liability model,” which is backward-facing and is focused on causation of significant harms. The liability model certainly has an important role to play when specific gravely harmful acts have occurred. Such harm perpetrators should be held to account through the criminal justice system, legal frameworks, or regulatory schemes. So, for instance, kleptocrats who steal state assets should face fitting punishments for their acts and several agents are obligated to assist in returning such stolen goods. UNCAC has an appropriately large focus on criminal acts and is particularly useful for holding perpetrators to account for their harmful acts. Useful as the liability model is, there is another kind of responsibility, the more forward-looking kind of responsibility, which is my main focus here. It cannot be easily codified and made as precise as criminal law. But it is just as important, if not more so, to reforming the ethos, social conventions, beliefs, and other social conditions that support corruption-resistant communities. My exploration of action responsibility in this chapter is focused on this kind of project of reform to prevent future injustice.

7.2 Recapping Some Central Points Important to Sharing Responsibilities 7.2.1 Strengthening Local Capacity and Empowerment Global poverty has an important structural component involving relations of power and powerlessness, which can perpetuate vulnerability and marginalization, as I discussed in Chapter 2. Neglecting the moral and political agency of the poor ignores the role they do, can, and should play in securing and sustaining justice. Active citizens help create strong and effective institutions by demanding them, being willing to participate in them, and holding governments to account for their failures. Supporting such local action can play a key role in catalyzing transformative change, as we saw by tracing the role of the Water Integrity Network in assisting local partners to improve their water services.

7.2.2 Governments’ Responsibilities to Strive for Institutions that Aim at Justice Institutions—whether at state or international levels—have an important role to play in structuring our life chances and so it is important that we ensure these aim to approximate just ones. Minimally, we ought to structure our institutions to ensure everyone is well positioned to enjoy the prospects for a decent life, and this gives rise to four areas meriting special attention on my account. First, we should

   

139

be enabled to meet basic needs. Second, we ought to have adequate protection for basic liberties. Third, fair terms of cooperation should govern collective endeavors. And fourth, we must have background conditions (especially social and political arrangements) that support these core ingredients for a decent life. These four justice scaffolds can easily be converted into core ingredients of our human rights practice, which is useful as we move from theory to implementation. Just institutions should also reflect and give expression to an ideal of equal respect and relevantly equal treatment. For instance, just institutions do not arbitrarily and unjustifiably favor the interests of one’s associates and ignore the interests of others: our needs and interests matter and deserve equal consideration, ceteris paribus. Governments have special responsibilities in discharging these duties and ensuring we have equal access to institutions that can enable us to secure the essentials for a decent life.

7.2.3 Domestic and International Agents Mobilizing around Human Rights Can Make Significant Progress Human rights have been, and will continue to be, front and center of a discourse that proves highly effective in mobilizing real world domestic and international publics. Human rights discourse can be a very helpful mechanism by which we can reduce injustice in our contemporary world. In addition, progress on human rights is often most impressive in places where there are both strong regional human rights institutions and robust social movements. Domestic and international human rights advocacy is an important complement and catalyst to international agreements and institutions and other more formal mechanisms that, over time, can protect human rights gains. Several human rights-oriented agreements, mechanisms, and real-world instruments constitute important opportunities for us to progress justice goals. For instance, the UN periodic review system provides good openings for constructive engagement concerning improving human rights performance and appropriate assistance. While the institutional and formal features shed valuable light on some pathways for change, so does looking at the inspirational activities of human rights advocates, NGOS, and those involved in innovative Multi-stakeholder Initiatives. The constellation of forces associated with the human rights practice, including activities of NGOs and social movements, all have an invaluable role to play in bringing to fruition some of the goals and ideals of the Universal Declaration of Human Rights, and they are all part of the human rights practice in its contemporary manifestation. The practice clearly has many disparate elements. The institutional rules, while important, are sometimes less important than informal processes and activities that can be important pathways for changing hearts, minds, and cultural understandings. The combined power of institutional agents,

140

   

social movements, dedicated NGOS (and so forth) all contribute to processes that can become forces for progress.

7.2.4 Duties to Support Measures that Are Credibly Delivering on Justice Goals The primary bearers of responsibilities to respect and protect human rights are states. There are many other agents who also have human rights related responsibilities, and states are often obligated to oversee these secondary agents’ activities within the state.⁴ In addition, everyone has duties to support institutional schemes already in existence that either are delivering effectively on core components of justice or are credible prospects for doing this here and now. This is one implication of the requirement that we should seek fair terms of cooperation with others. Unwillingness to play a role in supporting what justice requires would be unfair. As we focus on issues of implementing justice in our actual world, we can make huge gains by connecting with some of the highly developed mechanisms in use in our contemporary world that also play a powerful role in holding states to account for their performance on human rights issues. This apparatus offers us some ready-made, influential, and well-supported channels for making improvements in our imperfect world. So, we all have obligations to contribute to such arrangements.

7.2.5 States’ Obligations Grounded in Legitimacy States have important positive obligations to contribute to cooperative projects needed to create or sustain a justified state system. These obligations derive from the conditions that undergird their own state’s legitimacy, as I discussed in Chapter 3. Legitimate states should play a role in contributing to a legitimate state system, as a condition of their own legitimacy. What does this entail? There are several kinds of important contributions that legitimate states must make. These include contributing to sustainable development as one rough proxy for ways in which we can assist in building the kinds of societies likely to sustain a robust human right practice. Another class of contributions might be described as

⁴ Government failure to discharge its first-level responsibilities can also constitute the grounds for appropriately placed and capable “second-level” agents outside the state to take action in several ways. The obligation to assist when human rights failures require action can vary according to particular relationships. The different interests human rights protect can also give different reasons to take action that may differ in urgency and strength. Some of this complexity is discussed further in Gillian Brock, Justice for People on The Move: Migration in Challenging Times (Cambridge: Cambridge University Press, 2020).

   

141

commitments to some of the core features and animating ideas of human rights practice today such as: (i) A commitment to maintain an ethos conducive to respect for the practice of human rights, such as that everyone deserves to be treated with dignity and respect as a human being (Ethos Requirement). (ii) A commitment to practices of accountability (Accountability Requirement). (iii) A general commitment to show appropriate international concern, as required by the practice, to undertake action when one is the agent capable and appropriately placed to have sufficient reason to act (Commitment to Action Under Relevant Circumstances). Combining these three important contribution requirements, we can see how important it is to hold states to account for the human rights treaties they sign, especially when they fail to comply with their human rights requirements. Increasingly the international community is holding states to account for performance on human rights standards, including on how they are tackling corruption. And some of the implementation mechanisms canvassed in Chapter 5 provide excellent opportunities for such much-needed accountability. We return to this important issue in more detail in sections below such as Section 7.3.1. As we come to see, global anti-corruption efforts do not necessarily need new rules but rather better implementation of the elaborate system of rules already in place, thanks to innovative leaders and conscientious citizens around the globe who have already done considerable work.

7.2.6 Corruption Undermines the Enjoyment of Human Rights There are direct connections between corruption and failures to fulfill human rights. For instance, when paying bribes is required to access basic entitlements that are the subject of human rights, we have corruption-related obstacles to fulfilling human rights. In some parts of the world, demanding bribes is common in the judicial, bureaucratic, educational, healthcare, and other basic services sectors. Such bribery demands interfere with many human rights obligations. Implementing human rights treaties such as UNCAC can assist in both securing human rights and addressing corruption.

7.2.7 Different Responsibility Shares While we share responsibilities for addressing corruption, we are not equally responsible. There are important differences in what we are able to do and therefore

142

   

in how we can assist. In addition, there are different sources of responsibility including agreements signed, the functions of a state, the functions of various institutions in society, and certain role responsibilities. States have an especially important role to play in ensuring just institutions and overseeing activities that are vulnerable to corruption. In some cases nothing short of legal prohibition will solve a particular problem and state agents are the only parties able to do what is needed. In other cases adequate oversight and devolution of responsibility might be sufficient to eradicate corruption. In this chapter I build on points already made and continue to explore some of the factors relevant to sharing responsibility for tackling corruption fairly. So far I have argued that a variety of factors can be relevant to responsibility assignments, such as capacity to assist, contributions to the corruption, benefits derived from corruption, and role-related responsibilities. There are a number of important sets of agents that have key roles to play. As I argue in sections to come, actors from civil society, business, professions, and government all have important roles to play in making anti-corruption measures work effectively. In addition, our different capacities, roles, and situations mean we can assist in creating capacity in different ways as well. These different ways of creating capacity can also ground and amplify responsibilities.

7.3 Duties for Primary Agents of Justice I begin this section by recognizing that most states have already agreed to take important actions on corruption. When talking about states’ responsibilities, we do not start from a blank slate. There are a number of important documents that already specify states’ obligations and it is worthwhile to recap some key points that we build on in this chapter.

7.3.1 UNCAC: Recapping Some Central Points UNCAC is a very important international framework for several reasons. It describes universally agreed acts of corruption and ways to address corruption within one framework, transcending previous piecemeal efforts. UNCAC also sets out a legal basis for cooperation. UNCAC fosters international exchange and shared learning on good practices. The implementation review mechanism provides important opportunities to hold state parties to account for their implementation of UNCAC. Such accountability processes can assist in sustaining reform motivation. States are required to establish certain activities as crimes and to enforce such laws. The activities that must be recognized as crimes include bribing public

   

143

officials, misappropriation of property by a public official, money-laundering, embezzlement, and obstruction of justice. States are required to cooperate and assist others in cross-border criminal matters such as in collecting relevant evidence for use in court proceedings. States are required to return proceeds of corruption to countries of origin and to offer each other wide cooperation and assistance in such efforts. States must also take necessary legislative and administrative measures to ensure the implementation of the Convention’s obligations. UNCAC deals both with the liability model of responsibility and the more forward-looking kind as well. When harmful acts have occurred that rise to the level of crimes, we must hold perpetrators to account. So, for instance, when particular government agents steal state assets, UNCAC recommends several measures be taken to hold those involved to account. The accountability process requires the assistance of many actors and UNCAC enjoins them to cooperate fully in returning those assets and punishing wrongdoers. But UNCAC also has plenty of relevance to forward-looking responsibilities for diverse agents. It recommends several useful measures be taken to prevent future corruption and transform the background conditions, structures, institutions, and social contexts that facilitate corruption. Let’s review, starting with state responsibilities. States are required to establish transparent public procurement and public finance management systems. States are also required to ensure transparency in public administration, to promote integrity among the judiciary and prosecution services, and to enhance integrity and transparency in the private sector. Various mechanisms should be deployed to achieve these goals such as through implementing employment restrictions on public officials after leaving office, adopting accounting and auditing standards, and establishing penalties for violations at civil, administrative, and criminal levels. States are also required to promote the active participation of civil society and non-governmental organizations. They are also obliged to establish regulatory and supervisory regimes to detect and deter money laundering. UNCAC is an important political tool for dialogue among countries and between governments and their citizens. UNCAC fosters shared learning on good practices. The review mechanism provides important opportunities to hold states to account for their implementation of UNCAC. Accountability processes help sustain reform motivation. Country reports can assist in identifying helpful guidance that can be widely shared and, where necessary, adapted to specific contexts. The review process can also provide a central channel for coordinating international assistance. All in all, the Convention outlines comprehensive measures that all signatories have obligations to implement that can strengthen their legal and regulatory regimes’ abilities to fight corruption. Almost all states have agreed to undertake the responsibilities outlined in UNCAC. This is a potentially powerful tool for making anti-corruption gains, as I continue to discuss.

144

   

To give some texture to concrete examples of responsibilities it is worthwhile to discuss a few specific UNCAC articles in more detail, starting with Article 7 that deals with preventive responsibilities in the Public Sector: Each state party shall, where appropriate and in accordance with the fundamental principles of its legal system, endeavor to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials: (a) That are based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude; (b) That include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions; (c) That promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State Party; (d) That promote education and training programmes to enable them to meet the requirements for the correct, honourable and proper performance of public functions and that provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the risks of performance of their functions.⁵ As we see, articles outline specific responsibilities that oblige states to take action in various areas with well-documented corruption reducing effects. This kind of detail is important to allocating responsibilities to particular agents concerning exactly what they ought to do. We see a similar level of detail in items from other articles. Article 8, which covers codes of conduct for public officials, requires states to promote integrity, honesty, and responsibility among its public officials, through establishing and applying “codes or standards of conduct for the correct, honorable and proper performance of public functions”.⁶ States are also required to “establish measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions”.⁷ Notable also is the requirement that public officials make declarations to appropriate authorities regarding their

⁵ UNCAC Articles 7, 10 and 11. See UN Office on Drugs and Crime, United Nations Convention against Corruption (New York: United Nations, 2003), 10–14. Available at: https://www.unodc.org/ unodc/en/treaties/CAC/. ⁶ Office on Drugs and Crime, United Nations Convention against Corruption, 11. ⁷ Office on Drugs and Crime, United Nations Convention against Corruption, 11.

   

145

outside activities, investments, assets, and substantial gifts or benefits that might undermine their abilities to discharge public duties through conflicts of interest. Similarly specific guidelines are offered for matters such as public procurement and management of public finances in Article 9. In this article states are required to take necessary measures “to establish appropriate systems of procurement, based on transparency, competition and objective criteria in decision-making, that are effective, inter alia, in preventing corruption”.⁸ They are also required to take steps to “regulate matters regarding personnel responsible for procurement, such as declaration of interest in particular public procurements, screening procedures and training requirements”.⁹ Article 10 requires states to promote transparency and accountability in public finance management by introducing measures such as “timely reporting on revenue and expenditure,” introducing accounting and auditing standards and overseeing compliance, and ensuring there are appropriate, corrective actions taken in the case of non-compliance.¹⁰ Article 12 deals with state obligations to take steps to prevent private sector corruption and “provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures”.¹¹ States should promote “the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honorable and proper performance of the activities of business and all relevant professions and the prevention of conflicts of interest, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses within the State”.¹² States are also required to promote transparency concerning the identities of parties involved in the establishment and management of corporate entities. They are further required to prevent conflicts of interest that would arise from the so-called revolving door by restricting former public officials from engaging in certain professional and employment activities for a reasonable period.¹³ Article 13 outlines requirements to promote societal participation. State parties are required to “promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and threat posed by corruption”.¹⁴ Article 14 concerns measures to prevent ⁸ Office on Drugs and Crime, United Nations Convention against Corruption, 12. ⁹ Office on Drugs and Crime, United Nations Convention against Corruption, 12. ¹⁰ Office on Drugs and Crime, United Nations Convention against Corruption, 12. ¹¹ Office on Drugs and Crime, United Nations Convention against Corruption, 14. ¹² UNCAC Article 12 (b). See Office on Drugs and Crime, United Nations Convention against Corruption, 14. ¹³ UNCAC Article 12 (2)(e). See Office on Drugs and Crime, United Nations Convention against Corruption, 14. ¹⁴ Office on Drugs and Crime, United Nations Convention against Corruption, 15.

146

   

money-laundering and includes the requirement to implement regulatory systems “to detect all forms of money-laundering, which regime shall emphasize requirements for customer and, where appropriate, beneficial owner identification, record-keeping and the reporting of suspicious transactions”.¹⁵ States need to implement “measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders”.¹⁶ Reflecting on this sample of requirements, it is clear that states have considerable responsibilities to implement many of the constructive policies for which I have argued in previous chapters. They also have extensive responsibilities to support the important class of measures I discussed as Multi-stakeholder Initiatives, such as CoST, the EITI, the Water Integrity Network, and others that strengthen active participation from civil society, the private and public spheres. It is also clear that states have significant responsibilities to oversee regulation of professionals whose activities have enabled corruption to flourish. I trace some of these important connections in the next section as one example of how UNCAC’s requirements can assist with the responsibility-sharing project that is the focus of this chapter. In sections to follow we consider how various other agents have important responsibilities and how the state has an important role to play in ensuring that those agents are adequately discharging their duties.

7.4 Duty Sharing: Some Relevant Factors We have a moral responsibility to honor and keep our agreements signed in good faith. These would include UNCAC and various other human rights documents that protect the basics of human life. States have agreed to perform an important set of actions in connection with combating corruption and with respect to fulfilling human rights. One requirement of justice is that we ought to keep our agreements. Moreover, the agreements at issue affect people’s fundamental entitlements as human beings. So there are strong normative reasons to respect such agreements. As a matter of fairly basic justice we ought to follow through on the commitments we have already undertaken. Much as we fail in our moral responsibilities when we fail to keep our promises, states have clear responsibilities to take a number of important actions in connection with UNCAC’s core articles. The previous section drew attention to a sample of such state responsibilities. In addition, we all have duties to assist in creating and sustaining just institutions. However, what we may reasonably be expected to contribute can differ vastly depending on a number of factors including capacity, patterns of benefit, and contributions to the problems, as we saw in Chapter 6. Capacities to address a ¹⁵ Office on Drugs and Crime, United Nations Convention against Corruption, 16. ¹⁶ Office on Drugs and Crime, United Nations Convention against Corruption, 16.

   

147

problem are especially important as we consider the responsibility to help create the mechanisms necessary to reduce corruption. Pre-eminent among capable agents are states. In addition, states are the primary agents tasked with securing justice in our world today. States have important responsibilities to ensure that those agents needed to secure justice undertake and discharge their responsibilities by performing particular actions. States have the responsibility and the authority to mandate such necessary actions. So states have responsibilities to ensure measures that would reduce corruption are in place, that they are adequately supported, and functioning as designed. States must also appropriately regulate, prohibit, and punish certain activities. States have important capacities that other agents do not have, such as to reform legal codes, enforce the law, and punish violators with incarceration. Legitimate states also have important role responsibilities to underwrite institutions that aim to provide what citizens need for decent lives and to ensure those institutions are appropriately designed, resourced, regulated, and regularly monitored to ensure they are delivering on their core mission to ensure citizens’ needs are being appropriately satisfied in ways that deliver equitable access and respectful treatment. States have special roles to play in ensuring robust oversight and regulatory mechanisms are in place. In short, the state is the main agent able to secure much of what is needed for appropriate institutions and it is charged with responsibilities to do so. Citizens have general duties to support states’ efforts in virtue of their responsibilities to help sustain just institutions. In addition, bodies that oversee or regulate professions may have special responsibilities in virtue of their core purposes and in virtue of a cluster of relevant factors that converge, such as those concerning capacities, benefits, and causal contributions. Professional organizations may have some special responsibilities to guide, oversee, or penalize their members with regard to corrupt activities. For similar reasons, other employment-related organizations also have responsibilities to ensure integrity in work procedures, institutions, and practices. Governments have responsibilities to ensure any regulative authority delegated to organizations is acting in the appropriate corruptioncurbing ways. I offer an example to illustrate how this all plays out in sharing responsibilities. Consider responsibilities for addressing the tax escape issues canvased in the previous chapter. Having just recapped several pertinent state responsibilities to ensure a number of measures are in place, it should be clear that states have significant duties connected with preventing, detecting, and punishing the abusive tax avoiding activities of professionals. States have responsibilities to ensure there is regulation and legislation appropriate to the task. They also have responsibilities to monitor the professional activities of lawyers, accountants, and so forth, to ensure they comply, whether that is through delegation to professional bodies and self-regulation or through more direct interventions. Recall that one specific obligation highlighted in UNCAC is to ensure appropriate codes of conduct are

148

   

in place and functioning as intended to constrain members’ corruption-enabling behavior. In the last chapter I argued that tax professionals have obligations to support changes needed to codes of conduct and professional norms that facilitate abusive tax practices. I argued that tax professionals can reasonably be expected to engage in collective action aimed at modifying professional norms and practices when they enable tax abuse. As I argued, these professionals can be expected to join with others in supporting appropriate profession-wide norms, expectations, and compliance. I also argued that when tax professionals have benefited from corrupt practices, been complicit in, and have capacity to bring about changes, they have strong obligations to assist with improvements. So, the Big Four accounting firms have especially strong obligations to be involved in reforms, leading by setting good examples, and, where their expertise is necessary and appropriate, helping draft codes or legislation necessary to set new industry standards. In virtue of their large numbers of members and therefore their collective capacities, professional associations are similarly obligated to take a leading role in bringing about the kinds of changes necessary to promote fiscal integrity. Effective solutions to tax-related corruption require important changes to practice and legislation and, as we see with this example, a number of parties have crucial responsibilities. Government has a role to play in overseeing processes and ensuring necessary changes are made, as do professional bodies. Large organizations, such as the four dominant accounting firms, have strong responsibilities to participate in constructive reforms.¹⁷ And members of professions must play their part in cooperating and lending support to the endeavors, ensuring they contribute important expertise and experience. As I argued in Chapter 6, the convergence of three key factors is often sufficient to assign important responsibilities to particular agents. These three factors were described as causal contributions, capacities to assist, and benefits accrued. Whether or not convergence of the three factors is sufficient to assign greater shares to agents is often importantly determined by contextual factors. So, we need to explore the rich detail provided by context to see whether the convergence case holds in particular circumstances. There are other factors that can also be salient. In sections to come I discuss some of these additional considerations and synthesize the overall position in Section 7.7. Before we get there we need to review additional relevant issues, such as responsibilities to create capacity (discussed in Section 7.5) and how our special role in a process can amplify our obligations (discussed in Section 7.6). ¹⁷ In this case the corporation (e.g. KPMG) has this responsibility, but it gets delegated to particular individuals in leadership (and other) positions, through role responsibilities. The particular agents holding those roles can and do change over time. But through delegation of tasks, these responsibilities get distributed within organizations, even though KPMG is the agent for whom the responsibility endures through time.

   

149

7.5 Responsibilities to Create Capacity Capacity can be an important factor in assigning responsibilities. Less discussed by philosophers is the issue of how to enlarge capacity and indeed, responsibilities to do so. We can create greater capacity to address our target problem through, for instance, innovative design, as Multi-stakeholder Initiatives (MSIs) aim to do. MSIs are excellent examples of how we can reasonably enlarge capacity. While MSIs have come about through a variety of motives, it is hard to ignore the role self-interest and common interests have actually played. In the first part of this section I trace some of those common interests by reviewing the origins of a few prominent MSI examples that set the scene for others to follow. Appreciating the self-interest and common interests in play is a helpful first step in the process of arguing that key agents have responsibilities to participate in these important mechanisms for controlling corruption. It is always easier to get people to fulfill their obligations when doing so aligns with their interests. In the second part of this section I summarize some of the core obligations various agents have to participate in such schemes. As I argue, once an initiative is up and running, we have duties to participate. We have obligations to help create capacity.

7.5.1 Traditional Collective Action Problems, Current Terminology, and Sample Initiatives In the current corruption literature, collective action initiatives are complex forms of co-regulation in which public and private sanctions together form strong incentives to behave according to corruption-combatting guidelines.¹⁸

¹⁸ For an excellent overview of how Collection Actions are conceived in this literature, see Mark Pieth, “Collective Action and Corruption,” Basel Institute on Governance Working Paper 13 (Basel, Switzerland: Basel Institute on Governance, 2012). Available at: https://baselgovernance.org/sites/ default/files/2019-06/190613_WP_13.pdf. Also available in Mark Pieth (ed.) Collective Action –innovative strategies to prevent corruption, published by DIKE, AF, October 2012, www.dike.ch. I cover the salient points about these actions in this chapter. In the philosophical literature the debates and issues concerning collective actions have been rather different. Questions in the collective action literature include these: Can we hold group members morally responsible for harm that other group members have caused or failed to prevent? If so, when may we do this and in connection with what sorts of groups? Nations and corporations, along with professional organizations (to use just some relevant examples) have well-ordered decision-making procedures in place, so they are able to carry out actions in a self-conscious, deliberative, and purposive way. They can choose to undertake courses of action and so they can be held responsible for these actions or failures to act. Another commonly discussed issue concerns whether members of a group can be held responsible for harms perpetrated by the collective even when they took steps to stop the harm. Here we should differentiate between two distinct kinds of issues (1) whether we want to hold people morally responsible in such cases and (2) whether it is fair to expect them to contribute to remedial action (say, through some of their tax contributions). It can still be reasonable to expect moral resistors to participate in cost sharing even if they are not morally responsible. Prominently, they still may have benefited from the harm caused, so sharing the costs can be appropriate. Voluntariness of group memberships and ways to distance oneself

150

   

Multi-stakeholder Initiatives (MSIs) are one prominent kind of collective action. The number of collective action initiatives has risen sharply in recent years. The rise is understandable when we appreciate that such initiatives provide excellent solutions to collective action problems: they help us neutralize free-rider issues traditionally associated with collective action.¹⁹ In this section I first explain what the traditional collective action problem is, then how collective action initiatives aim to address the problems. I also document why they have become popular in recent years and canvas some of the forms they take. A low-corruption environment is a public good from which the society as a whole benefits. But one characteristic of public goods is that you cannot exclude anyone from their benefits. Actions taken to combat corruption typically involve some costs to individuals, for instance foregoing benefits that would derive from corruption like enhanced access to desirable opportunities. So a rational actor might be tempted to free-ride on the anti-corruption activities of others without participating themselves, even when they would prefer a low-corruption environment. But if everyone reasons in this way, no one will take corruption-limiting action and the result in practice will be a high-corruption environment. And so we get to classic collective action problems.²⁰ To solve these you need credible mechanisms to ensure that scope for free-riding is eliminated. The cluster of initiatives described in the literature as “Collective Actions” provide such mechanisms.²¹ In recent years these kinds of initiatives have proliferated. Many government and business actors that operate in historically high-corruption contexts have engaged in voluntary and collective action to combat bribery and other forms of corruption.²²

from the harm can sometimes diminish responsibility as well. There are many further themes discussed under the topic of collective responsibility and a vast accompanying literature. Classic pieces include Peter French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984); Larry May, Sharing Responsibility (Chicago: University of Chicago Press, 1992); Gregory Mellena, Collective Responsibility (Amsterdam: Rodopi Press, 1997); and more generally, Smiley, “Collective Responsibility”. For important works that deal with collective or interrelated action as it applies to issues of corruption, see also Seumas Miller, Institutional Corruption: A Study in Applied Philosophy (New York: Cambridge University Press, 2017); and Emanuela Ceva and Maria Paola Ferretti. Political Corruption: The Internal Enemy of Public Institutions (New York: Oxford University Press, 2021). ¹⁹ Elizabeth David-Barrett, “Business Unusual: Collective Action against Bribery in International Business,” Crime, Law, and Social Change 17 (2017): 151–70; Russell Hardin, “The Free Rider Problem,” in Ed Zalta (ed.), The Stanford Encyclopedia of Philosophy, October 13, 2020. Available at: https://plato.stanford.edu/entries/free-rider. ²⁰ Mancur Olson, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965); See also Hardin, “The Free Rider Problem”. ²¹ See, for instance, Pieth, “Collective Action and Corruption,” 5. See also the Collective Action website which provides many resources on these mechanisms at www.collective-action.com. ²² The idea of collective action can appear mystifying to some. For those, perhaps the explanations offered in this footnote will be of some help. A collective action is a series of actions undertaken by individual actors aimed at achieving a collectively desired end. If individuals all play their required parts and perform their expected actions, they will jointly realize their common goal, in this case to achieve an environment that is resilient against corruption. Collective actions require cooperative actions that are undertaken to achieve collectively desired ends.

   

151

Collective Action interventions have become popular in recent years. These interventions embrace a number of initiatives including Multi-stakeholder Initiatives, public private partnerships, or industry standards that are enforced by multiple parties. Collective Actions may take various forms and make use of several instruments such as anti-corruption declarations, Integrity Pacts, or certification schemes. Common to this class of interventions is that governments and companies make commitments to support anti-corruption policies, even though their involvement limits their abilities to profit from corruption, and even though their commitments might expose them to increased scrutiny and criticism. The key to their success is participation from multiple parties in enforcing credible normative standards that are mutually scrutinized, credible procedures to penalize behavior that falls short of what is expected, and significant costs for violators, to incentivize compliance. Collective action involves a collaborative process among stakeholders aimed at increasing the impact and credibility of action, by bringing agents into an alliance to combat corruption. It levels the playing field between competitors and can substitute for, or strengthen, weak local laws and anti-corruption practices.²³ Collective action helps solve major problems, especially in international business. Businesses face a common challenge in places where corruption is endemic such as being regularly confronted with expectations to engage in corruption. If they comply with corruption demands they risk facing legal action either in their home country or in the country in which they operate. But if they are concerned about the ethics of participating in corruption and refuse to comply, they could lose out on valuable business opportunities. Faced with this dilemma, businesses often spearhead initiatives that seek to bind participants credibly to norms of integrity, and so these collective action initiatives began to flourish. Not only do these initiatives solve a traditional collective action problem, but there are often additional benefits to belonging to such a “virtue club”.²⁴ Members are judged to be more reliable partners and so may be given preferential treatment for other opportunities, such as public procurement processes. So there is in fact also a strong business case for participating in collective attempts to combat corruption. In Chapter 5 we canvassed the mechanics of Multi-stakeholder Initiatives, prominent examples of Collective Action interventions. I illustrated by discussing

²³ There is an excellent collection of resources on these issues at the United Nations, UNODC website, including their teaching resources, under “Collective action and public-private partnerships against corruption,” available here: https://www.unodc.org/e4j/en/anti-corruption/module-5/keyissues/collective-action-and-public-private-partnerships-against-corruption.html. Perhaps it is worth noting that collective action initiatives often make use of several tools such as anticorruption declarations, principle-based initiatives such as integrity pacts and certifying business coalitions, as I discuss shortly. More tools and good paradigms for public-private partnerships can be found at the UNODC website. ²⁴ Christopher Kingston, “Social structure and cultures of corruption,” Journal of Economic Behaviour and Organisation 67 (2008): 90–102; and David-Barrett, “Business unusual”.

152

   

the details of how the Extractive Industries Transparency Initiative (EITI) and the Infrastructure Transparency Initiative (CoST) work, showing how they have a track record of effectively reducing corruption risks in their sectors. Another example is the Maritime Anti-Corruption Network. About 90 percent of world trade is transported by sea and makes use of ports. Given the fact that ships must meet certain local regulations and therefore satisfy port authorities before they may load or unload cargo, there is much scope for corruption in port interactions. Having inspectors come on board and check compliance with customs rules seems inevitable, which creates opportunities to extract bribes. Faced with this issue, several shipping companies discussed collective action possibilities in 2011 to combat this common challenge. The result was the Maritime Anti-Corruption Network, which encourages companies to commit to an Integrity Pact, to refuse corruption demands when faced with them, and to work on several other aspects of their common difficulties, such as addressing root causes of corruption. The network has successfully implemented projects using a port-by-port approach. From Nigeria to Argentina and Indonesia, they have built coalitions with government bodies, international organizations, and local stakeholders to reform structures that encourage bribery.²⁵ Understanding why people would join collective action initiatives is not all that puzzling, given the problems they help solve and the important benefits they create, as we have been discussing. But do they really work to combat corruption? Credible mutual scrutiny and penalties for exposure have proven highly effective in constraining participants, at least in democratic environments. Consider for instance pledges to abide by certain standards or integrity pacts, a common element of collective action schemes. These often ask participants to make public commitments not to pay bribes and to enforce various zero-tolerance policies on bribery. There are clear standards set out as to what is required and what to do in ²⁵ There are many noteworthy additional examples. Open Government Partnership (OGP), in which governments make commitments to open up their activities to public scrutiny, is one. A B20 Task Force on Transparency and Anti-corruption seeks to improve transparency relating to government procurement, provides anti-corruption training for small and medium-sized enterprises and public officials, and encourages the utilization of collective action strategies in particular sectors. Other important collective action efforts include those of the B-Team, which is a prominent collective of business leaders who are anti-corruption champions and help with implementing core international anti-corruption commitments. Pledges to abide by standards or integrity pacts are widely used. For instance, there is widespread commitment to abide by principles for responsible business such as Transparency International’s Business Principles for Countering Bribery. The World Economic Forum’s Partnering Against Corruption Initiative (PACI) is a forum that brings together business leaders, international organizations, and governments to address corruption risks and transparency in ways that promote collective actions as well. See, for instance, Avinash Dixit, “How Business Community Institutions Can Help Fight Corruption,” The World Bank Economic Review 29 (2015): S25–S47; Mark Pieth, Collective Action: Innovative Strategies to Prevent Corruption (St Gallen, Switzerland: Dike Publishers, 2012); The B-Team, Ending Anonymous Companies: Tackling Corruption and Promoting Stability Through Beneficial Ownership Transparency: The Business Case (New York; London: The B-Team, 2015). Available at: https://issuu.com/the-bteam/docs/bteam_busi ness_case_report_final.we.

   

153

the case of violations. Violations expose participants to reputational risk with costly repercussions, thereby strongly incentivizing compliance. In addition, as is commonly required by such initiatives, various actors report incidents in which employees are confronted with bribery demands. This exposes those who demand bribes and offers a community benefit in identifying bribe solicitors who can then be targeted for appropriate corrective actions. In these ways collective action schemes can also increase the possibilities for monitoring and enforcement, because so many agents are tasked with reporting requirements. Why would various parties be motivated to participate in MSIs? Each major stakeholder has strong interests that align with participating with integrity. Membership in MSIs helps governments secure a range of benefits including debt relief, access to credit, and foreign investment. So governments have strong interests in participation. Multinational corporations have important domestic and international publics who can take costly punitive action that can strongly affect profitability should corrupt activities be exposed. And domestic civil society actors have interests in ensuring proper receipt of revenue that can be spent on improving the lives of citizens. Participants report a range of benefits from joining collective actions.²⁶ Participants report value in being able to discuss sensitive issues around corruption and bribery with peers who face similar problems and they can learn from in working out good responses to common challenges. Participants learn how to embed anti-bribery policies in the face of resistance or apathy from co-workers or colleagues. Sometimes company employees from one jurisdiction can share lessons or training with those operating in another jurisdiction. Like other social movements, the social benefits of belonging to a group of like-minded individuals can also help keep individuals motivated. Collective action schemes connect international and national actors in a complex web of relationships of mutual benefit and mutual monitoring, spreading regulation across governments, companies, and local and international civil society organizations. While domestic actors play a primary role in the MSIs, access to the international sphere dominated by different norms is a useful leverage point for initiating and sustaining the process of corruption-curbing norm diffusion.²⁷ Monitoring systems that make use of multiple stakeholders from different jurisdictions also help overcome the problem of corrupt, weak, or powerless monitors in particular sectors or locations. In Multi-stakeholder Initiatives all parties ²⁶ Elizabeth David-Barrett, Basak Yakis-Douglas, Amanda Moss Cowan, and Yen Nguyen, “A Bitter Pill? Institutional Corruption and the Challenge of Antibribery Compliance in the Pharmaceutical Sector,” Journal of Management Inquiry 26 (2017): 326–47. ²⁷ David-Barrett, “Business Unusual”; Pieth, “Collective Action and Corruption”; World Bank Institute, Fighting Corruption through Collective Action, A Guide for Business (Washington, D.C.: The International Bank for Reconstruction and Development/The World Bank, 2008). Available at: https://www.globalcompact.de/wAssets/docs/Korruptionspraevention/Publikationen/fighting_corrup tion_through_collective_action.pdf.

154

   

have clear interests in monitoring one another, to ensure the system has credibility, which also helps them sustain their integrity and secure the collective action initiative’s goals. What about the cases of authoritarian regimes where there is, in effect, not much credible mutual scrutiny? In authoritarian regimes civil society cannot always robustly hold governments or multinational companies to account, given the enormous background power differentials, the scope for intimidation, and the lack of avenues for citizens to express concerns about the corruption of powerful leaders.²⁸ Here the links to the international context might be especially important. Governments often wish to access international resources and opportunities, such as borrowing capacities or attracting foreign direct investment. So they need at least to appear committed to programs that would improve proper oversight, often as a condition on which the loan or investment will proceed. International agents can assist civil society by strengthening their hand in various ways, such as providing technical assistance to uncover important data that can expose corruption. As well, international NGOS have important links to publics in democratic countries that can offer some measure of accountability in such circumstances. There are some authoritarian regimes that really do not currently seem to have any interest in access to international opportunities and don’t appear to care about improving internal oversight. There are limits to what external parties can do in such instances. Fortunately, there are very few states in this category, compared with the vast majority that are very much interested in access to international opportunities and their international reputation for accountability on which this relies.

7.5.2 From Self-interest and Common Interest to Obligations As we have seen, collective action initiatives are complex hybrid forms of regulation in which public and private sanctions together form strong incentives to behave according to corruption-combatting guidelines. We have obligations to participate in collective actions such as MSIs when they create robust mechanisms for tackling corruption. These obligations derive from our responsibilities to support measures that promote just institutions. Recall that everyone has duties to support existing institutional schemes that either are delivering effectively on core components of justice or are credible prospects for doing this here and now.²⁹

²⁸ For a compelling argument on this point see Kerem Oge, “Transparent Autocracies: The Extractive Industries Transparency Initiative and Civil Society in Authoritarian States,” The Extractive Industries and Society, 4 (2017): 816–24. In these countries civil society NGOs are also finding it difficult to exercise monitoring and whistleblowing capacities because of technical, financial, and bureaucratic constraints. ²⁹ Does this statement of the obligation rest on a challenging prior assessment that everyone needs to make, namely, whether an available scheme is actually effectively delivering on justice, at least

   

155

This responsibility derives from the requirement to seek fair terms of cooperation with others. Unwillingness to play a role in supporting schemes that sustain just societies would be unfair. And as we have been discussing, there are many highly developed mechanisms in use in our contemporary world that aim to promote justice. So, if a collective action initiative is currently in play and covers our activities, we have obligations to play our expected part to make sure it works as it should. These mechanisms help us realize justice in our imperfect world and so we are obligated to contribute to their success.

7.6 Specialized Skills, Roles, Responsibilities, and Capacity Our expertise and capacities are relevant as we consider different responsibilities to be agents of change in various roles. Some people have particular skills and so can contribute to creating capacity in specific, sometimes unique, ways. In virtue of this know-how and the important role they sometimes inadvertently play as facilitators of corruption, they have special responsibilities. For instance, we sometimes have to rely on the expertise of professionals to avoid significant harms. In light of these potentially harm-causing activities, professionals have special responsibilities when they act in those roles in regard to addressing corruption. We have already traced responsibilities for tax professionals in this chapter. As a further illustration, I return to a case I considered in some detail in Chapter 5 concerning corruption in the construction sector. I remind the reader how particular agents have much decision-making power in key phases. At these points particular agents whose judgments are vital to the relevant stage have great capacity to block corruption that would otherwise be in play. Let’s review. As we saw in Chapter 5, various stages in the delivery of a construction project come with different corruption risks. I documented specific risks at the project appraisal stage, along with phases covering project selection, budgeting, tendering for works, implementation, maintenance, and audit. Here I briefly recap key corruption risks and agents who have capacities to mitigate or avert them. At the project appraisal stage we saw that there is much scope for partisan politics and private interests to influence decisions. I noted that one particularly common form of corruption was a form of quid pro quo in which projects are selected in sufficiently well? I don’t think so and for the following reasons. Judging a scheme’s effectiveness is not only a matter of looking at outcomes and making judgments about improvements relative to some baseline. Existing schemes may express solidarity and create the right ethos that we are serious about tackling a corruption problem here and now. They declare that we are taking a stand and making a start. The expressive function is important in creating capacity and generating political and social will, necessary to carry a scheme forward that can, in due course, make incremental improvements. Credible schemes can exist even when we are yet to make the corruption-resisting progress we think desirable. In building alliances, coalitions, and networks, we have at least created some capacity for doing the important work. That is reason enough to join in usually, especially in the absence of any alternatives.

156

   

exchange for funding to parties or donations. At this phase, central actors include government ministers, senior civil servants, procurement officers, and private consultants such as planners, designers, engineers, and surveyors. In the project selection, design, and budgeting stage, common corruption risks include expensive designs that increase consultants’ fees and contractors’ profits with insufficient benefit, designs that allow for later funds-diverting adjustments, or those designs aimed at favoring specific contractors. Political actors often attempt to influence project selection from which they derive advantages. Key actors at this stage include government ministers, senior civil servants, procurement officers, and private consultants, such as planners, designers, engineers, and surveyors. At the phase dealing with tendering for works, common corruption risks include bribery to obtain contracts, collusion among bidders to allocate contracts or raise prices, or interference favoring specific firms or individuals. The main actors at this stage include procurement officers, private consultants such as supervising engineers, and contractors. In the implementation phase common corruption risks include collusion between contractors and supervising engineers to use inferior materials resulting in low quality work, inflated prices, or project adjustments to extract further profits or minimize cost, often to recover bribery expenses. Actors frequently involved in collusion at this phase include procurement officers, private consultants, and contractors or subcontractors. In later phases such as operation, maintenance, evaluation and audit, common corruption risks involve supervising engineers signing off on below-standard work that fails to meet the specifications. Insufficient funds eroded by corruption often result in low quality maintenance and inadequate user outcomes. Once again, central actors include procurement officers, private consultants such as supervising engineers, contractors, and subcontractors. As this recap makes clear, there are a number of important professionals involved at different stages and how they choose to act can play a pivotal role in whether or not corruption risks are heightened or reduced. Some of those professionals include engineers, quantity surveyors, designers, architects, contractors, managers, government ministers, senior civil servants, procurement officers, private consultants, and subcontractors. Many such agents would be governed by the requirements of various professional bodies, organizations, or workplaces. Professionals involved in these processes are obligated to use their special expertise in appropriate ways. And typically they are required to comply with codes of appropriate conduct that place heavy weight on acting in the public interest. Failure to exercise professional judgment appropriately can and should attract relevant penalties. For each stage I have identified the relevant agents that have the capacities to make the corruption-combatting changes, given the nature of particular

   

157

corruption risks and their special expertise. If these agents are already part of a MSI the case is even clearer. Having signed integrity pacts or pledges to conform to relevant standards and behavioral expectations, they have agreed to conduct themselves in corruption-combatting ways. Many would also be required to comply with norms of proper conduct governing their employment, industry, profession, or those mandated by participation in an MSI, such as CoST. In addition, there are further obligations on the part of such actors to ensure that relevant collective action initiatives cover their sector, if one is not already in place. This responsibility derives from several others already canvassed. For instance, we have responsibilities to seek cooperation with others on fair terms. The collective action initiatives discussed are all attempts to ensure fair terms of cooperation in ensuring we play our part in various social schemes that can deliver on central justice goals and strengthen human rights sustaining communities. While we all have duties to assist in creating and supporting just institutions and human rights sustaining communities, what we may reasonably be expected to contribute can differ vastly depending on a number of factors. As we have been discussing, capacities and contributions to the problems are entirely relevant to what we might fairly be expected to contribute. Capacities to fix relevant problems are especially important as we consider the responsibility to help create the capacities necessary to reduce corruption. Sometimes it is clear which agents are charged with responsibilities to help create capacity, as I have been suggesting with the analysis of agents involved in corruption reduction in the construction sector. The professional skills we have or the role we can play in a collective action initiative shows how our contributions are vital to making a corruption-combatting scheme work as it should. In the case of construction, the engineers, quantity surveyors, designers, architects, contractors, managers, government ministers, senior civil servants, procurement officers, and private consultants have the expertise needed to know what is at stake at each stage in the construction process. Creating capacity relies on these professionals using their skills in the appropriate ways to perform their roles with integrity. Creating capacity also relies on partnerships with many others who also have relevant knowledge. Part of building capacity would be forming coalitions, partnerships, or other helpful networks with those who can help broaden the reach of anti-corruption efforts. It follows that this would include creating collective action initiatives, such as CoST, if there are none that already govern our activities. Recall that CoST provides the mechanisms needed to provide proper oversight, advice, mutual scrutiny, and assurance necessary to make the scheme credibly corruption curbing. The responsibilities to create capacity entail the need for us to support such schemes, as we partner with others in attempting to forge coalitions that support integrity. We continue to discuss these themes in the next section.

158

   

7.7 Navigating Responsibility Assignments Sometimes it is clear that we are the agents who are charged with responsibilities to help create capacity or to take other corruption-relevant actions. The professional skills we have or the role we can play in a collective action initiative shows how our contributions are vital to making a corruption-combatting scheme work as it should. But identifying the agent or agents who should bear important responsibilities is not always so obvious, for instance when our roles, special skills, or commitments do not clearly identify us as an important change agent. How should we navigate responsibility assignments in such cases? Clearly, it would be helpful to have some additional orientation tools for such cases. Here I introduce such a framework for analysis. It draws inspiration from pioneering theorists in this domain, but is quite distinct from the accounts offered by these trailblazers. There are two theorists whose work has been especially important to my own theorizing, namely that of Iris Marion Young, who developed her parameters of reasoning approach³⁰ and David Miller who has done excellent work on the idea of remedial responsibility.³¹ My own account differs

³⁰ Iris Marion Young (in, for instance, Responsibility for Justice (Oxford: Oxford University Press, 2011)) offers a social connection model for allocating responsibilities for structural injustice. In contrast to the idea of responsibility as involving finding fault and individual liability, Young develops a forward-looking model that she argues is more appropriate. She draws on the idea that participation in institutions sometimes produces injustice. Young encourages us to think about how we can best take responsibility for reducing structural injustice by reflecting on four parameters—different positions of power, privilege, interest, and collective ability. Her idea of collective ability playing an important role seems particularly important. In some cases we already have collective organization capacities and resources that are well established. Sometimes it just makes good practical sense to draw on the wellestablished collective organization capacities and resources already in existence. She encourages us to harness organizational resources where doing so would prove effective. While I think Young has made an excellent start on how to think through issues of assigning remedial responsibility, I believe that my list-based approach improves on her schema in several ways. To state an important way in which my account differs from Young’s, I add at least four additional considerations to the list of salient factors. As will be clarified in what follows, a second area of difference is that I have tried to resolve common problems that agents confront in thinking about the obligation overload problem, as highlighted in my discussion of questions 7 and 8. For a third, further set of differences with Young’s account, I believe some of her parameters of reasoning map on more neatly to the categories I have described as capacity, contribution, and benefit. I find these to be more useful ways of exploring salient considerations than power or privilege. A fourth area of difference is that I think victim’s interests matter, but I don’t think it most useful to show why using the category of “interest,” as she does. Victims of injustice should be supported to take relevant actions (such as share their experiences of injustice) because we should adopt a more local agent empowering approach, and offering such support is part of that. (In addition, I think their positioning is relevant to questions I go on to discuss such as 4, 5, 7, and 8, and is relevant to my account about how change happens, as discussed in Chapter 2.) ³¹ David Miller offers a tremendously influential connection theory of responsibility that also aims to shed light on our remedial responsibilities. (See, for instance, David Miller, National Responsibility and Global Justice (New York: Oxford University Press, 2007).) There are six ways in which we can be connected to someone, P, who needs help. These connections give rise to six ways in which remedial responsibility can be identified. We might be morally responsible for P’s condition; we might be outcome or causally responsible for P’s condition; we might have benefited from it; we might have capacity to assist P; or we might be connected to P through ties of community. As should be obvious from my list-based approach, I recognize a much broader range of factors that are relevant to assigning

   

159

markedly from both of these, as will soon become clear. I would describe my view as a “list of questions approach” which covers a much broader set of considerations than the approaches of either Young or Miller. I present a set of questions to consider which help diagnose responsibilities. The questions serve as useful reasoning prompts in deciding what to do here and now. The list collects and synthesizes a comprehensive range of considerations that often surround real world cases and are relevant to our working out what actions to take. (Those interested in some of the details of how my approach differs from Young’s and Miller’s should see the extended footnotes associated with each scholar above.) Before I get to that list, it is worth emphasizing that we have obligations to participate in initiatives and mechanisms once they are up and running, for the reasons I have been offering in previous sections. The list approach is helpful when there are no clear obligations associated with roles or other understandings of how to play one’s part in corruption-combatting schemes. The list of questions helps us navigate complex real world cases of what I should do in the absence of obvious available pathways that we are obligated to follow. This can be especially useful when deliberating about whether one ought to initiate actions where a corruption combatting scheme or measure is not yet in place. Sometimes the questions help guide us to the realization that we are the agents best positioned to take steps in trying to form the kinds of broad coalitions, or begin the dialogue necessary to establishing collective or other actions. And sometimes the list helps us identify who to nudge in the quest to begin the dialogue or form the necessary broad coalition. In considering who should do what here and now, these questions are salient: 1. What capacities do particular agents have to contribute to addressing the target problem? 2. How have they contributed to any corrupt activities? How might actions contribute to future corrupt activities? 3. What benefits have been received from the practices, activities or institutional involvement in the past that have allowed the target problem(s) to exist and continue? 4. What role-related responsibilities, if any, are relevant to assisting with reforms? 5. What standing or positioning do various agents have within relevant institutions, organizations, or practices to make contributions towards affecting change?

responsibility for action here and now, including looking at who should show leadership in creating enlarged capacity to assist in future. I also attempt to resolve the issue of obligation overload in my account.

160

   

6. What have various parties done so far in contributing towards solutions? 7. Would action importantly conflict with other responsibilities? 8. If so, how can we reduce the tension in ways that respect everyone’s human rights?³² I have already discussed the issues raised by the first five questions in this chapter and the previous one. In short, it is clear that enablers may be more obligated to initiate action or bear more costs than non-enablers, in virtue of the first three salient considerations identified in those questions. And roles or standing in a particular organization will be relevant to the kind of responsibilities one has or leadership one should show in ensuring important reforms take place. The sixth question aims to take account of past assistance efforts. If one has already done much, this may reduce responsibilities to do more. The seventh and eighth questions acknowledge that we always have many responsibilities. But the nature and strengths of these responsibilities vary, depending on how others might suffer from our actions and failures to take actions. We can often do much to reduce any tensions among responsibilities by keeping our eye on a central goal: aiming to create resilient communities and mechanisms that are human rights supporting. Joining up with others and forming broad coalitions often reduces tensions we might otherwise encounter.³³ Clearly, no single person is capable of addressing all corruption, but joining up with others increases our power to create corruption-curbing capacity. And that is the basic obligation we all have: to join in, join up, or in other ways contribute to the joint venture.³⁴

³² For instance, in many professional codes, public interest is often mentioned as a key limiting condition on actions. The notion of public interest can play a handy role in assisting with navigating any conflicts professionals might experience in the course of carrying out their professional duties in ways that facilitate corruption. ³³ Governments can also use the eight questions to assign greater burdens to certain agents, if particular costs must be born in credibly aiming to reduce corruption. ³⁴ I have shown how different responsibilities track various factors, such as historical and current contributions to corruption, patterns of benefits from that corruption, and capacities to make changes now. A commonly voiced objection is that because of the role agents from the Global North have played either in relevant historical corruption or in creating the conditions for corruption to take hold in the Global South, agents from the Global North deserve much of the blame for current corruption and may also have the lion’s share of responsibilities to remedy the situation here and now. Frank Vogl argues that major Western governments are at the very least partly responsible for the scale of global corruption today, especially in developing countries. Through “military and economic aid that is often poorly audited, by peddling a soft line on money laundering, and on the repatriation of stolen assets, they have collaborated in what amounts to corruption conspiracies. The gravest consequence of such Western governmental complicity relates to international security”. Frank Vogl, Waging War on Corruption: Inside the Movement Fighting the Abuse of Power (New York: Rowman and Littlefield, 2016), 101. His verdict is: “Much of the corruption on this planet stems from the willingness of the governments of rich nations to provide exceptional support to corrupt overseas leaders in exchange for arms deals; rights to oil, gas, and mining resources; and strategic relationships” (Vogl, Waging War on Corruption, 23). While I appreciate the points he is making, and there are many credible historical and

   

161

In this work I have highlighted the power of forming coalitions and collaborations with relevant partners in creating important capacity to sustain societies capable of fulfilling human rights and resisting corruption. Some examples included the power of social action coalitions (such as the Fifth Pillar campaign) and generating integrity networks (such as the Water Integrity Network does). To remind the reader, the Fifth Pillar campaign tackles the difficult problem of changing entrenched social norms in efforts to create new ones resistant to corruption, through the mechanism of confronting would-be corrupt actors with norm-challenging counterfeit rupee bank notes. Similarly, the “I paid a bribe campaign and website” empowers citizens to share awareness of everyday corruption to improve law and procedures that can effectively deter bribes. The campaign provides useful information that can assist law enforcement and create momentum for further compliance. The support of an organization is important to individual’s being willing to report on bribery, as it offers anonymity and protection, thereby reducing the costs of taking action for individuals. Organizational support creates capacity and generates solidarity among participants. Combining the power of technical, legal, and financial support, with opportunities for constructive public resistance has been important to the success of social action coalitions and other corruption-fighting collaborations. Similarly, Multi-stakeholder Initiatives (such as the EITI and CoST) aim to create the right kinds of collaborations that skillfully combine good institutional design, organizational support, and multiple points of accountability to create important space for further corruption-curbing gains over time. While different agents have different kinds of action responsibilities, only by joining with others in collective action can we ultimately be successful. contemporary connections involved here, I am more inclined toward the view advocated by Lawrence Cockcroft and others, who maintain that the causes of current day corruption are complex, multifaceted, and include both domestic and international factors (see, for instance, Lawrence Cockcroft, Global Corruption: Money, Power and Ethics in the Modern World (London: I.B. Tauris, 2012). Untangling the various relevant factors in particular cases requires careful analysis. While many Western agents are clearly implicated in corruption around the world, to make meaningful claims about who should do what now, we need to engage in detailed contextual case analysis, as I did in Chapter 6. The details matter. In other places (e.g., Gillian Brock, “Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developing World and Why,” in Diana Meyers (ed.), Poverty, Agency, and Human Rights (Oxford: Oxford University Press, 2015), 119–45.), I do engage in this kind of further detailed analysis, sometimes making a case that agents from the Global North can be expected to do more or to bear more costs in addressing corruption now. But we do need to be careful about over-reaching. Like Iris Marion Young, I take the position that we all have an important part to play in tackling injustice. Adopting a more forward-looking approach, it is important to stress that we all have a role in creating and sustaining human rights supporting communities. The list of questions approach is a good tool for this approach. In addition, here I focus on action (rather than remedial) responsibility that, like Young, I believe offers a more constructive approach to engaging with agents about their responsibilities here and now. This is not to ignore historical and causal connections, but rather, like Goodin’s approach, we can appreciate how they are sometimes not entirely relevant to how we assign task responsibility. Historical and causal connections are one relevant factor, but they do not and should not, crowd out others.

162

   

7.8 Conclusions In this chapter I built on central points important to sharing responsibilities established in previous chapters to offer arguments for how we should share corruption-combating responsibilities. UNCAC is an important tool that we can harness in our quest to reduce corruption in our actual world. This is fortunate, but perhaps it is also worth stressing that even if there were not agreements such as UNCAC we would be obligated to forge and comply with something much like them, given a cluster of responsibilities, such as those oriented towards seeking fair terms of cooperation with others, obligations to support institutions that aim at justice, responsibilities to contribute to human rights sustaining communities, and duties to help create capacities that assist in discharging our obligations. One key lesson we learn from understanding the resources available to us in international policy, law, and practice, is that what would really boost efforts here and now is better implementation of existing tools rather than having to find completely new ones. Networks of dedicated change makers have already done much of the hard work for us in establishing reasonably robust global anti-corruption mechanisms with much potential. Our central obligations are to participate in mechanisms, support initiatives, and create additional capacity that can amplify efforts. In Section 7.3 I reminded readers that one key contribution states must make is to uphold their agreements concerning preventing, identifying, criminalizing, and punishing corruption. When specific agents have engaged in corrupt acts, especially criminal ones, the state should rightly apply legally appropriate punishments. If people are not complying with their agreements, we have an obligation to hold them to account for their failures. The UNCAC review process is an excellent vehicle for such accountability processes to yield constructive outcomes through relevant international assistance, if needs are identified. Participating in the mechanisms currently available is an important pathway for implementing justice. States are assigned primary responsibilities to achieve justice in our world. But a number of secondary agents are obligated to play their part. States can regulate, legislate, punish, and enforce certain mandatory actions in relation to those secondary agents. Some of the important responsibilities for secondary agents I discussed in this chapter included those for multinational corporations, professional organizations, and members of professions who have key capacities relevant to controlling corruption. We have responsibilities to play our part in initiatives aimed at creating capacity. We help create capacity by participating in the many significant mechanisms that are helping to reduce corruption. Where no clear initiatives or mechanisms are available in particular cases, I offered guidance in the form of a list of eight central questions for navigating our action responsibilities. Our overarching goal should be to create resilient communities and

   

163

mechanisms that are human rights supporting. Joining up with others and forming broad coalitions often helps us reduce tensions in deciding what to do here and now. And joining up with others increases our power to create corruptioncurbing capacity. Appreciating these points defines the contours of our obligations to join in, join up, and contribute to the joint venture.³⁵

³⁵ Perhaps it is also worth noting that in other works I have argued that we may sometimes defensibly hold contemporary citizens of democracies remedially responsible for harmful actions performed on their behalf, including actions that have implications for non-citizens (e.g., Brock, “Global Poverty, Decent Work, and Remedial Responsibilities”). And it can be fair to impose significant costs on them for doing so. Once again, tracing all the important connections needed to make such arguments matters. Developed world citizens often receive significant benefits that come at the expense of entitlements of others. For instance, a large part of some particular benefits (such as having amassed substantial wealth) exist because others have not received taxation revenue that is owed to them, or fair prices for their resources or labor, or compensation has not been paid for losses that must be born. In short, sometimes benefits result from injustice that derives from the victim’s property, labor, or other entitlements. I have also argued that the dense network of arrangements characteristic of globalization have benefited typical citizens of affluent states. In addition, citizens in such affluent states often have greater capacity to assist. They are also better positioned than others to affect changes in virtue of disposable resources, leisure time, or other resources necessary to make effective changes and to bear some costs. Furthermore, high-income countries are often causally implicated in the practices that readily facilitate deprivation. For instance, consider how the egregious policies of abusive tax avoidance, originate from, and are sustained by, actors from affluent states. Professional accountants, tax consultants, auditors, and others involved in designing and implementing such schemes are required to behave according to standards sanctioned and enforced by professional bodies. These bodies are supposed to be regulated by governments. Governments in high-income states have been deficient in allowing such practices to exist, and permanent residents of those high-income states can be allocated a share of remedial responsibility based on the harmful actions or negligent omissions of oversight that have come about through their governments’ failure to regulate appropriately. Having said all of that, remedial responsibility can be one part of action responsibility, but it can also be an entirely separate concept too. In this work I am focusing on a comprehensive future-oriented approach to a range of important questions. It aims to incorporate elements of remedial responsibility where they are relevant, but more generally expands the set of pertinent considerations that should be in view as we face the future together. As we adopt this stance and focus on our target problem, it is important to realize that there are multiple issues in play in addressing corruption. There is a role for everyone to play as we partner to create human rights sustaining communities. Recall that the goal of sustaining resilient human rights supporting communities requires the cooperation of many agents in societies. Even if there is a remedial aspect, it is only one part of securing this core goal, given the many kinds of corruption we need to confront, as I have been discussing throughout this book. For an excellent case study that shows how we need widespread participation especially from local agents in addressing a full range of corrupt activities see, for instance, Rushda Majeed, “Promoting Accountability, Monitoring Services: Textbook Procurement and Delivery, Philippines, 2002–2005,” Innovations for Successful Societies, Princeton University (Princeton, NJ: Princeton University Press, 2013). Available at: https://successfulsocieties.princeton.edu/sites/successfulsocieties/files/Policy_Note_ID151.pdf.

8 Addressing Common Challenges and Future Directions 8.1 Introduction to Two Central Challenges A skeptic might worry that the quest to tackle corruption is just another form of imperialism, a pretext used by agents from Western countries to dictate to those in other places how they ought to run their affairs. Considering the wide diversity of ways in which humans organize their lives, is it inappropriate to assume all cultures should support targeting the corruption I identify as worrisome and should adopt the corruption-curbing measures for which I advocate? To motivate the worries, consider an example. In some cultures partiality toward members of specific groups—such as those with whom one shares tribal or ethnic associations—is expected. A person who occupies a position of authority should extend the benefits of power to favor the interests and fortunes of those in one’s networks of relationships. On this line of objection, identifying corruption in a culturally unbiased way is challenging and fails to accommodate these norms, which may be perfectly proper ways of interacting in some groups. If that’s right, it is unclear that we can gain sufficient agreement on what to target in our quest to eliminate so-called corruption. Furthermore, an objector concerned to accommodate cultural diversity might suspect that the corruption-curbing measures recommended throughout this book are insufficiently attuned to vast cultural differences across the globe. As one example, consider that in some places gifts might be thought entirely appropriate tokens of appreciation and even required to sustain harmonious social relationships. Professional workplaces may have guidelines that help employees distinguish between an acceptable token of appreciation and an inappropriate bribe. States might promote such guidelines or codes of conduct in the public and private spheres. However, an objector might complain, these tools are inappropriately culturally infused. Under the guise of concern with corruption, such codes really only promote a Eurocentric, Western, liberal agenda, one that those with different heritages have no reason to endorse. Dressed up as a concern with corruption, these tools are just another way for the West to tell other countries how to behave, and such imperialist projects must be resisted. So, is my perspective on corruption culturally insensitive, either in its assumptions about what corruption is or in how to address it? In this chapter I aim to

Corruption and Global Justice. Gillian Brock, Oxford University Press. © Gillian Brock 2023. DOI: 10.1093/oso/9780198875642.003.0008

    

165

rebut these two important worries. Given that concerns of this kind are likely to be widespread, each deserves consideration and a full response. In the next section I address the first concern, that of identifying corruption in a culture-transcendent way, by offering several arguments. One line of argument challenges how widely accepted some of those purported cultural norms are and whether ordinary citizens from those cultures really do endorse such norms as appropriate ones for the public sphere. When those who hold public office or professional roles deny citizens their entitlements such that their basic human rights are compromised, such behaviors are widely condemned. In addition, in places where corrupt norms do seem to be widespread, people often go along with them because they believe the norms are deeply embedded and too difficult to change, given their perceptions about the efficacy of actions available to them. When that is the case, we have collective action problems. There are a number of strategies that can be, and have been, brought to bear in challenging and reforming cultural norms. I remind the reader about some of the ways to disarm collective action problems, how they have contributed to progress around the world, and their core components, as we seek to apply central insights from diverse cultures. I also remind readers about other important welltested strategies for constructive cultural change. In Section 8.3 I tackle the second objection concerning the tools on offer being inappropriately culturally infused. I present several arguments in response. Importantly, the international consensus view on combatting corruption as articulated in the landmark United Nations Convention Against Corruption (UNCAC) treaty, is one almost all countries have agreed to implement and they represent the full diversity of the world’s people. I also note that the corruptioncurbing guidelines that UNCAC presents are well-grounded in a large body of cross-cultural research. All people have good reasons to address the worrying forms of corruption they target, such as cooperating in returning stolen assets and detecting money-laundering. Furthermore, there are many tools available that have originated from non-Western parts of the world and these converge on similar kinds of recommendations to those of UNCAC and associated treaties. Here I spotlight the Ibrahim Index of African Governance which aims to collect information that citizens can use to hold their governments to account. These transparency and accountability efforts empower local actors to expect appropriate responsiveness from their governments particularly in the quest to reduce deprivation in their societies. Section 8.4 concludes the chapter, while Section 8.5 concludes the book. In Section 8.5 I discuss how the approach I have been developing should provide a useful model for global justice theorists, by highlighting some of the advantages it has over different approaches. I also indicate some of the areas that would benefit from additional attention and outline some new directions that corruption theorists ought to pursue.

166

   

8.2 Are There “Culture-Neutral” Ways of Identifying Corruption? Let us return to dissect the worries just introduced. On the first line of objection the claim is that some practices that may appear corrupt to outsiders are actually perfectly proper ways of interacting in some cultures. It would be inappropriate to challenge cultural practices in such cases, let alone aim to introduce reforms that would eliminate such behaviors. To flesh out the concerns, consider a specific example of apparent corruption in one society being apparently appropriate in another. In some cultures those in positions of power may be expected to treat members of their social networks, ethnic group, family, friends, or business associates in a way that favors their interests rather than adopting an even-handed approach where all can expect that their entitlements will get fair and equal consideration. Such practices seem to be common in many parts of the world. The Chinese phenomenon called “guanxi” involves obligations to exchange favors among participants in a particular social or business network. Strong relationships among the parties might require such special treatment. The Russian concept of blat involves a similar idea of favoritism and reciprocity among beneficiaries. The Indonesian upeti system bears striking resemblance to these patterns. In all these practices there is an attempt to secure privileges for insiders, and these practices seem to be widely supported within those cultures. There are a number of ways to challenge these observations about culturally appropriate norms. First, similar social norms and patterns of assumptions about loyalty, partiality, and reciprocity can be found in the history of most societies, including Western ones. We should also note that the practices can change and our attitudes about the propriety of practices may change over time, as evidenced by changing regulations, laws, or norms that take place in all societies. So the fact that norms about proper behavior have altered show that cultural norms are not fixed points in the analysis. Societal conventions can and have been challenged by members of those societies leading to notable reforms that can even happen quite quickly, as we see with examples such as the elimination of foot-binding in China within a couple of generations.¹ Second, cultural differences can be exaggerated. As political scientist Alina Mungiu-Pippidi emphasizes, there is no known culture that values dishonesty and unfairness.² Furthermore, there is not as much evidence that corrupt acts are viewed much more permissively in some societies than in others, as some people

¹ Kwame Anthony Appiah, “The Art of Social Change,” The New York Times Magazine, October 22, 2010; William Talbot, Human Rights and Human Well-being (Oxford: Oxford University Press, 2010). ² Alina Mungiu-Pippidi, “The Quest for Good Governance: Learning from Virtuous Circles,” Journal of Democracy 27 (2016): 95–109.

    

167

might think. Consider for instance the data from Afrobarometer’s 2006 survey in 18 African countries, which solicited views on several scenarios.³ These included decisions in which an official “decides to locate a development project in an area where his friends and supporters live”; “gives a job to someone from his family who does not have adequate qualifications”; or “demands a favor or an additional payment for some service that is part of his job”.⁴ A very high majority of the 25 086 respondents viewed all three actions as involving wrongdoing that deserved punishment.⁵ So studies of this kind suggest we can and should challenge how widely accepted apparently different norms really are among citizens of those countries. Such studies show that ordinary citizens often believe that when those occupying public and professional roles act in ways that deny people their entitlements and due consideration, they are not viewed favorably. So practices in which bribes are solicited in order to give citizens access to what they are owed are widely condemned. Similarly, practices of favoring the interests of associates when their case would otherwise have little merit are not well regarded. So, if no society really values dishonesty, unfairness, cronyism, and the like, we need to address the question: Why does corruption persist so widely even when people know it is wrong and would prefer it be eliminated? The reason why people participate in corrupt practices even when they know they are corrupt and condemn them is that the situation is something of a collective action problem, especially in high corruption settings where there seems to be no other way to go about one’s business.⁶ In such cases it does not seem sensible to be the only one who refrains from corruption in a thoroughly corrupt setting where, for instance, accepting or paying bribes is widely accepted business as usual. In such cases people feel trapped and forced into complying with the norms that operate in their environment. If the only way to get your child access to education or healthcare is to pay bribes and failure to do so will lead to them being shut off from things they need, it makes sense to conform. It would also be sensible when it is necessary to secure your rights, such as getting a license to operate one’s shop or to get an electricity connection. If everyone around you is behaving amorally, it makes sense not to be the lone sucker. In several places throughout the book I consider some of the tools available to disarm these collective action style corruption problems. As we have seen, there are many forms of corruption and so controlling it will take multiple measures and agents. In Chapter 4 I highlighted 10 especially important factors in ³ Afrobarometer, Afrobarometer: Round III 2005–2006 (Cape Town, South Africa: Institute for Democracy in South Africa, 2006). Available at: https://afrobarometer.org/data/merged-data. ⁴ Afrobarometer, Afrobarometer: Round III 2005–2006. ⁵ Someone might object that a high majority is not the same as 100 percent. In response we might note that all countries have a range of responses to questions like this. Even within the Nordic countries (and others thought to be relatively free of corruption) it is likely to be in the 80 to 90 percent region. ⁶ See, for instance, Bo Rothstein and Aiysha Varraich, Making Sense of Corruption (Cambridge: Cambridge University Press, 2017).

168

   

controlling corruption, including the importance of effective mechanisms for accountability, appropriate transparency embedded in supportive contexts, welldesigned institutions that promote ethically robust processes and expectations, individuals with integrity and a keen awareness of professional workplace conduct and standards, procedures for governing conflicts of interest, independent monitoring, and oversight. I also drew attention to the strategies available in the case of collective action problems. In such cases special attention is needed to reform social norms and processes that facilitate change. Forming social action coalitions can be especially important in solving several varieties of corruption. Creating intervention points that force challenges to worrisome social norms can be productive. Well-designed social action campaigns can combine the power of publicity and resistance effectively and give people the confidence to know they will be supported when they participate. These mechanisms are all important in cases where it appears that cultures support corrupt norms, so it is beneficial to recap some of the core issues again. When we have entrenched corruption of this kind, understanding public officials’ decision-making can be important to addressing it. In many thoroughly corrupt contexts it seems to be widely believed that the purpose of obtaining public office is to provide favors, opportunities, or resources to associates or fellow members of relevant social groups. Those who decide not to use their position of influence to extract funds for associates risk disrespect, criticism, marginalization, and even punishment. So, even when individuals would prefer not to go along with the corrupt norms they may feel pressures to do so or risk being ostracized. Societies can get stuck in a situation where corruption is the norm, even though most of the population would prefer not to have such a norm. When you have such thoroughly corrupt settings, everyone is likely to go along with the corrupt norm, because there is no point in doing otherwise; everyone is part of the corrupt game. In such cases what is needed is to change agents’ beliefs about what everyone else is likely to do. In Chapter 4 we discussed some ways to change people’s beliefs about what all the other agents are doing. Notable mechanisms for doing so involved highly visible and active social movements. I offered some examples of successful social action coalitions that demonstrate the power of what can be accomplished in getting people to change important behaviors and beliefs. Not only is it possible to change attitudes and cultural expectations, but several of the cases introduced show how this can be done. Recall the Fifth Pillar Campaign, which was designed to interrupt officials’ automatic thinking about demanding bribes being a fact of life. Their zero-rupee note with the inscription “I promise to neither accept nor give a bribe” which was designed for people to hand out when asked for bribes, served as such an important disruptor. Distributing the provocative notes near places where officials frequently solicited bribes and maintaining a visible presence there, proved effective in multiple ways. The note helps citizens register resistance to paying bribes for services to which

    

169

they are entitled. It also signals that the person has the support of an organization. Another effective part of their campaign focused on educating younger generations to understand the toxic nature of bribery and corruption. Asking students to pledge not to engage in such activities and to spread the message to their parents, was another effective way to support cultural change through time. Similarly, the “I paid a bribe” campaign has been another constructive initiative catalyzing cultural change. By reporting on bribery incidents, citizens built awareness of everyday corruption and offered important information useful for reforms. Reviewing many cases that have proven successful at a local level, we can appreciate several common elements. Coalitions can provide important social support, legal expertise, educational resources, technological innovations, strategic planning advice, and in many other ways, help to promote and support momentum for integrity reforms. Strengthening anticorruption efforts requires coalitions among diverse groups in a society. Through carefully crafted interventions coalitions have been able to generate widespread public intolerance of corruption resulting in important reforms, even if there is further work to do. There are reasons to be hopeful that future activities will, over time, be able to build on such successes. Social media and internet connectivity make campaign planning and execution easier to coordinate. In addition, anti-corruption activists are making gains through carefully crafted experiments, such as those aimed at promoting pride around making ethical choices. For instance an effective billboard in Colombia features the following text: “As a food vendor, I earn my living in an honest way to make my children proud. And you? What are You going to do for a culture of lawfulness?” Those who are making significant contributions to fighting corruption are being recognized as public heroes. And younger generations are demonstrating their strong desires to create a future they can be proud of. Across the world there is a high level of motivation among youth to protect the necessary ingredients for a life worth living. Climate action strikes organized by school-age children have become a common event in many parts of the world. Less visible, but equally important is the action they are taking to stand up for norms of integrity in a range of other domains, as the work of INGOs such as Transparency International frequently showcases.⁷ In bringing this line of response about changing cultural norms to a close, it is worth emphasizing two additional points, already discussed in previous chapters. We should not underestimate the importance of coalitions—consisting of both domestic and international partners—in galvanizing change. Also, human rights can be an important resource in changing cultural understandings about appropriate behavior.

⁷ In fact Transparency International not only showcases inspirational stories about young leaders mobilizing for change but also provides toolkits for youth activitists mobilizing for change, see for instance: https://www.transparency.org/en/news/empowering-youth-anti-corruption-kit-for-youngactivists.

170

   

I offer one final kind of response to this skeptical concern about identifying corruption in the face of cultural diversity. The thrust of this response is that, in fact, we can agree on what constitutes problematic corruption worthy of international and domestic attention. Not only can we do so, but we have done so, in the important agreement I have been discussing, namely the United Nations Convention Against Corruption. While UNCAC does not dwell on defining the overarching concept of corruption, it does offer a list of specific acts of corruption that reflect a consensus view of what to include in criminal codes. Importantly, all parties implementing UNCAC agree to recognize a list of activities as criminal matters. As at June 2019 that included 186 of the 193 existing countries, or almost all the states that exist. The list of activities that parties have agreed must be recognized as crimes include: Bribery in both the public and private sectors (covered by articles 15 and 16) Embezzlement, misappropriation, or other diversion of property by a public or private official (covered by article 17). Money-laundering (article 23) Obstruction of justice related to at least these listed offences (article 25). In addition, states are also required to consider criminalizing the following activities: Trading in influence (article 18) Abuse of functions (article 19) Illicit enrichment (article 20) Concealment (article 24) Note that it is not disputed whether these last four kinds of activities are corrupt; rather a question remains as to whether participation in them should be recognized as a criminal offence, or one of lesser severity, and that decision about criminality is one for states to consider. Reading through the carefully crafted articles, it is not difficult to understand the essence of the problematic behavior in each case and UNCAC articles contain much detail in identifying the concerning conduct. Consider bribery. UNCAC article 15 defines bribery as “[t]he promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties”.⁸ UNCAC article 21 extends the definition to ⁸ UN Office on Drugs and Crime, United Nations Convention against Corruption (UNCAC) (New York: United Nations, 2003), 17. Available at: https://www.unodc.org/unodc/en/treaties/CAC/.

    

171

private sector actors. Similarly, consider the offence of abuse of functions. This offence is dealt with in UNCAC article 19 and specifically highlights that it could apply to many situations. These include patronage, for instance when state resources are used to reward individuals for their electoral support. It also includes nepotism, in which relatives get preferential treatment, and cronyism, in which associates such as friends are awarded jobs or other undue advantages. It includes those behaviors that undermine the rule of law by, for instance, undermining democratically representative decision-making or fair and competitive processes necessary to government operations. Again, much detail accompanies each article to assist in identifying the behaviors that should be reformed. In practice, the problem has been resolved in ways that are sufficient to address this first skeptical objection. There are clear guidelines on the kinds of corruption that should be targeted for reforms. The motivations for focusing on such types of corruption are clearly set out and often refer to the fundamental damage that results should such corruption be allowed to run rampant (as we covered in Chapters 1, 2, and 4). We have excellent reasons for trying to avoid such harm and instead adopting measures that would promote just, human rights-sustaining societies. Being able to enjoy peaceful, inclusive societies in which those who hold public office respect all members, recognize the value of fair processes and opportunities, and acknowledge everyone’s rights to certain basic treatment, are states of affairs that all societies have good reasons to value.⁹

8.3 Are the Corruption-Curbing Tools on Offer Culturally Inappropriate? Throughout the book I have been advocating for various tools that can assist in addressing corruption. Significant factors in controlling corruption include effective accountability mechanisms, appropriate transparency embedded in supportive contexts, well-designed institutions that promote ethically robust processes and expectations, well-trained individuals with a good appreciation for professional workplace conduct and standards, procedures for governing conflicts of

⁹ Several prominent international agencies or organizations do offer more general definitions. The World Bank defines corruption as “the use of public office for private gain” (Jeff Huther, AntiCorruption Policies and Program: A Framework for Evaluation (Washington, D.C.: World Bank, 1997). Available at: http://hdl.handle.net/10986/19753). Some organizations attempt to cover corruption more explicitly in both public and private spheres such as Transparency International. The account they use is that corruption is the abuse of entrusted power for private gain (see their website at www.transparency.org). This definition improves on many others in that it covers a wide range of forms of corruption that exist in the private sphere or in the blurry zone of the public sphere and focusing on the abuse of power gets to the crux of what is at stake. I consider further definitional issues in the Appendix.

172

   

interest, regular monitoring, and independent oversight. Are these sorts of tools culturally inappropriate?¹⁰ I don’t believe so and I present several reasons for this view. First of all, consider our important current practice. I have been emphasizing that the main international framework that governs global corruption-combating efforts is that of UNCAC. This detailed set of guidelines makes substantial use of the most effective tools available, such as those just listed. In addition, the corruption-curbing guidelines that UNCAC presents are well-grounded in a large body of crosscultural research. Many of the suggested interventions are ones that have arisen from or proven to be effective in a variety of cultural contexts. The resources on offer through the UNCAC framework were arrived at through consultation with all the world’s peoples and have been supported by almost all states that exist.¹¹ In addition to the tools that I have been championing, it is important to realize that there are many others that have their origins in diverse parts of the world, and converge on recommendations similar to the ones we have been discussing. As one example let us consider the “Ibrahim Index of African Governance” which has several noteworthy features.¹² The main goal is to collect some key data so that civil society in African countries can hold their own governments to account, especially on basic issues that exacerbate deprivation.¹³ The comprehensive data collection exercise aims to help citizens gauge their government’s progress (or lack thereof) in central areas that are important for securing a decent life. Fifty-seven criteria are grouped into four over-arching categories: (1) Safety and the Rule of Law, (2) Participation and Human Rights, (3) Sustainable Economic Opportunity, and (4) Human Development. Though I do not have space to discuss all 57 of these categories, I present a sample of indicators from each of the four groups next. Here are the central categories:

¹⁰ Clearly, not all anti-corruption interventions are the same. No doubt there have been and are many corruption-curbing instruments that are culturally insensitive or imperialistic. And some mechanisms have been implemented in ways that are culturally inappropriate, even when the instruments themselves are unproblematic. I do not believe the central tools I have argued for in this book are necessarily guilty of the charge of cultural inappropriateness, for the reasons offered in this section. As we take action in relation to the responsibilities both individuals and institutions should display, we should respectfully listen to local agents about local conditions. This can offer important insights about misinterpretation which can influence corruption-combating measures’ success (or otherwise). But these important communication and accommodation issues do not affect the main substance of what is needed to combat corruption, even if some sensitivity is needed around implementation. ¹¹ Having emphasized why the main elements contained in UNCAC are ones all human beings have good reasons to support, there is still some space for local contexts to have some role. There is scope for local and regional input as to what might constitute best practice in particular contexts, as the structure of the implementation review process makes clear. But on the main requirements that all parties must adhere to, the international framework gives clear guidelines on how to prevent, detect, and eliminate corruption in ways that are cross-culturally robust. ¹² For more on this project see their website at: https://mo.ibrahim.foundation/iiag/. ¹³ It is designed to reflect the nature of African governance, though I believe the criteria also have broad applicability to other regions of the world, and could usefully serve as a universal standard.

    

173

(i) Poverty and health: seven indicators measure factors such as child mortality, levels of immunization, and incidence of HIV and tuberculosis. Other indicators measure how supportive the welfare system is, how pro-poor policies are, and levels of social exclusion. (ii) Education: five indicators measure the general quality of education, for instance through looking at the ratio of pupils to teachers in primary schools, the proportion of pupils completing primary school, progressing to secondary school, and entering higher education. (iii) Personal safety: includes levels of violent crime and social unrest, human trafficking, and domestic political persecution. (iv) Rights: includes eight indicators which measure respect for human rights in general, civil liberties, political and collective rights, freedom of expression and association, freedom of the press, and how well international human rights conventions are implemented. (v) Gender: includes five indicators measuring gender equality, the ratio of girls to boys in primary and secondary education, the girls’ rate of primary school completion, the proportion of women who are economically active, and the proportion of parliamentary seats that women hold. (vi) Infrastructure: includes five indicators measuring aspects such as the reliability of the electricity supply, the number of computers, and the number of mobile telephones. (vii) Economic management: includes nine indicators such as those aimed at evaluating quality of public administration and budget management. (viii) Rule of law: includes evaluation of the strength of measures such as the judicial process and independence of the judiciary, time taken to settle contractual disputes, and the orderly transfer of power following changes in government. (ix) Accountability and corruption: includes six indicators measuring transparency and the accountability of public officials; corruption among government and public officials; accountability, transparency and corruption in rural areas; and the prosecution of abuse of office. (x) Participation: there are five indicators used to measure political participation including ones that evaluate the strength of democracy, the level of electoral self-determination, how free and fair elections are. (xi) National security: includes seven indicators which measure domestic armed conflict; numbers of internally displaced persons and refugees from the country; death (whether military or civilian) that results from war; and deaths due to targeted attacks on civilians. There are many worthwhile features of the Ibrahim index. The tool is actually being used and has widespread acceptance by citizens of African countries, which

174

   

also comprise some of the most diverse and “burdened” peoples¹⁴ in the world. The index itself has been produced in association with African academics and research organizations. It includes feedback processes for continued improvement. Even if the index is not yet perfect, it certainly has in its favor comprehensiveness, significant input from some of the poorest developing countries, and much local uptake. While discussion might continue about further refinements to our metrics for assessing whether individuals have relevant opportunities for good lives, it is clear that keeping track of information of this kind is beneficial in the quest to improve accountable governance. These kinds of initiatives that govern different regions suggest once again that concerns with corruption as we have been focusing on it really are widespread. The tools that have been endorsed for tackling this global scourge converge on a similar set of core issues. Prominently, ensuring governmental power is exercised in transparent, accountable, even-handed, and human rights respecting ways, is a common concern across the world. There is global support for the ways in which that objective is understood and how we address it when government power is exercised in ways that fall short of the normatively desirable standards.

8.4 Chapter Conclusions I have addressed two important objections here. One concerned identifying corruption in a culturally unbiased way. The other suspected that the recommended tools are insufficiently attuned to cultural variations or mask an agenda that should be resisted. In response we might note, first, how corruption is widely abhorred and resisted. Corruption is a major concern for those who suffer deprivation in our current world. It is also an important obstacle to resolving many global justice issues. We can identify which forms of corruption should be targeted in ways that command wide support. We can similarly find cross-cultural evidence for a central set of tools that are demonstrably useful in combating corruption. By considering the Ibrahim Index’s convergence on core corruption-curbing mechanisms, we can further respond to the concern that the quest to tackle corruption is another form of imperialism or a pretext used by Western countries to dictate to those in other countries how they ought to run their affairs. The agreement from virtually all states to implement UNCAC is further evidence that there is strong global support for addressing this global scourge in the ways championed in this book.

¹⁴ This is John Rawls’s terminology. See his Law of Peoples (Cambridge, MA: Harvard University Press, 1999). In this context the phrase refers to a society that faces so many unfavorable conditions that achieving robust self-governance capable of delivering good lives for its people constitutes a significant challenge.

    

175

In responding to this set of challenges, it is also important to consider norms in their historical context to give much-needed perspective on reform possibilities. Highlighting the changing nature of views about appropriate norms can be helpful. For instance, for the vast majority of history it seems that power was standardly used to favor the interests of family, friends, associates, or privileged group members. Adopting a historical perspective we see that social norms are capable of change and indeed have done so in the past. We can be constructive agents of change by heeding the lessons from the many activists, scholars, researchers, coalitions, social action campaigns and collective action initiatives that have accomplished desirable reforms in culturally diverse environments. So in summary response to the skeptical concerns, I believe we can identify the worrisome corruption that domestic and international agents have good reasons to target. In addition, the ways to address that corruption are sufficiently robust and culturally attuned, so all people have good reason to support them. The central obligations to join in, join up, and contribute to the joint venture through the mechanisms I have been highlighting are ones that apply across the world.

8.5 Future Directions To conclude this book, in this section I offer some remarks about future work that would usefully advance the project as I have been developing it so far. My view is that corruption is an important and neglected issue in political and social philosophy, ethics, and applied ethics that warrants more attention. Global justice theorists should be especially interested in this topic because of its bearing on a number of issues usually of concern to them, such as responsibilities to alleviate deprivation across the world. While this book sketches some solutions to problems of corruption in particular domains, further work on solutions in other areas would be welcome. While I believe this book constitutes a useful start on a bigger project, the book also serves as an invitation to others to join me in completing the work. In the Appendix, I document several outstanding problems that remain with conceptual issues related to forms of corruption and differentiating corruption from neighboring injustices and dysfunctions. In this section I indicate some of the normative areas that would benefit from additional attention and outline some new directions that justice theorists ought to pursue. Let me start by noting that while those interested in philosophical concerns related to global justice have been concerned with a broad range of topics, curiously, corruption in its many different guises has not been taken as a topic for sustained analysis. It is worth stressing that this is surprising for several reasons. Corruption is a pervasive scourge across the globe that is often ranked as a severe problem by those worst off. Furthermore, considering the role that corruption plays in exacerbating deprivation and fueling social tension, peaceful

176

   

and just societies are unlikely to come about without tackling corruption. So addressing corruption should be a high priority for those concerned with global poverty eradication, peace, security, and justice. In this book I have made a start and in this section I highlight some projects that could be undertaken in future that would complement or advance the work begun here. I have been exploring the issue of who ought to do what in connection with combatting corruption and the justification for fair responsibility assignments. As I argued, to do this work well we need to understand the kinds of corruption risks in play and the strategies that are successful in reducing the risks of its occurrence. I introduced different case studies to illustrate the multiplicity of corruption risks we face and how they manifest to thwart global justice efforts. These examples illustrate the complexities involved and the details of what needs to change in particular sectors to tackle particular corruption problems while also illustrating some dominant commonalities. This kind of exploration is necessary for the main normative project of arguing for contentful claims about particular agents’ responsibilities. While I have made a start in several areas, the field would benefit from further analysis in other sectors where corruption flourishes and remains inadequately addressed. I see much scope for valuable work exploring a variety of domains not discussed in this work. For instance, though I traced the ways in which corruption exacerbates deprivation in the water sector, similarly detailed analysis in sectors such as health, education, the judiciary, environmental protection, climate change, and power supplies would be valuable. Reports from the United Nations Development Programme’s Anti-Corruption Resources Centre, suggest there are important connections that should be explored, including the ways corruption thwarts our attempts to deal with global deprivation, justice, and human rights fulfillment.¹⁵ Unlike many approaches in the global justice literature, I have tried to emphasize not only general responsibilities to address global justice concerns but also the many kinds of special responsibilities we have as well, given our particular characteristics, the corruption risks we have capacity to address in various roles, and our specialized knowledge about how to do so effectively. There are many agents that have special responsibilities to become agents of change. The field of global justice would benefit from drilling down into such areas and exploring them. For instance, there is scope for detailed analysis and policy recommendations that should govern sectors in which professional enablers continue to ¹⁵ For reports of this kind see, for instance, United Nations Development Programme (UNDP), A Transparent and Accountable Judiciary to Deliver Justice for All (Thailand: UNDP, 2016). Available at: https://www.u4.no/publications/a-transparent-and-accountable-judiciary-to-deliver-justice-for-all. pdf; UNDP, Fighting Corruption in the Health Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available at: https://www.undp.org/publications/fighting-corruption-health-sector; and UNDP, Fighting Corruption in the Education Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available at: https://anti-corruption.org/fighting-corruption-in-theeducation-sector-methods-tools-and-good-practices-2/.

    

177

facilitate corruption. And much more work could be done on the special responsibilities professionals have in their various roles to combat corruption. Looking at the professional responsibilities that judges, educators, healthcare professionals, engineers, journalists, social workers, information technologists, data specialists, system designers, computer scientists and many others have, uncovers many places in which corruption risks abound that could be addressed well by relevant professionals with special expertise. Such analysis also promises to highlight the need for further system-wide approaches to engage in corruption-curbing actions, such as new multi-stakeholder initiatives or revisions to professional codes of conduct. In addition, several sectors have multi-stakeholder initiatives in the piloting stage (such as in fisheries), while others are already fairly established (such as in open contracting, government, or fiscal transparency).¹⁶ Reflecting on how these initiatives are working is sure to shed light on additional responsibility assignments in a variety of sectors. As I have been stressing, what we can accomplish together is relevant. More case analysis offers us further insights into how we can contribute to the collective project. We can better appreciate that the exact nature of our duties to secure global justice may be highly differentiated depending on roles we occupy, skills we have, positionings, capacities, and so on. Textured analyses can also give us a clearer sense of the nature of what we can accomplish together, not only what is possible but also what is actually happening, what has been established, and where support for an initiative has gravitated. Such details can give more shape to our duties and what it is reasonable to expect of people under certain real world conditions. We have to engage with many of the existing pathways available to us in our quest to reduce global corruption and injustice in practice. Ensuring policy recommendations are well informed by the empirical research is clearly important as well. I engage with some of the vast empirical literature concerning addressing corruption in ways perhaps a little unusual for works in philosophy. We have to understand some central empirical issues if we are to advocate for credible justified policy that takes account of the complexities involved. We have to know what sustains integrity and appropriate mechanisms for accountability in our actual world, if we are to have any hope of maintaining progress over time. As the empirical literature develops and as our policy and practitioner knowledge expands, there is much scope for researchers to continue to bring new insights to bear on the normative work. As relevant findings emerge,

¹⁶ For more on the Fisheries Transparency Initiatives see, for instance, https://www.fiti.global/. Other notable initiatives include: the Open Government Partnership, the Global Initiative for Fiscal Transparency (GIFT), and the Open Contracting Partnership (OCP). For more, see their various websites respectively at: https://ogp.org.nz/; https://www.fiscaltransparency.net/; and https://www.opencontracting.org/.

178

   

future research might focus on integrating fresh empirical, policy, and practitioner insights into the analyses begun here. The work I do in this book is an example of the kind of engaged political philosophy that I think should be encouraged in the field. We should take our point of departure from existing problems in the world. We should aim to supply analysis that will assist us in addressing such problems. We should, furthermore, discuss how to make improvements using pathways actually available to us today. These supply some of the relevant goods with which to think and the materials that should inform our responsibilities here and now. Not only do such approaches give us clearer pathways to change but they also help us engage more richly with solutions available to us in our contemporary world. In addition, such engagement can also help us improve our theorizing. As one example of this, consider how participating in the many initiatives and interventions I have been discussing not only helps us realize the goals of global justice but is also partly constitutive of some of them. Participating in these endeavors helps us secure some of the goals of global justice, such as enabling people to meet their needs, better protecting their freedoms, and ensuring fairer terms of cooperation. Such participation also instantiates some of what we are hoping to achieve with our global justice efforts. As an example, when citizens participate in Multistakeholder Initiatives aimed at securing basic infrastructure like clean water, they help promote societal inclusion, responsive governments, engaged and strengthened agency (both for individuals and collectively), and fair terms of cooperation. As fellow participants they also generally improve the prospects for creating human rights sustaining communities. So, citizens need to be co-participants in helping to create the inclusive societies that will not only best protect core justice elements but also instantiate them. The account I have been developing promotes opportunities for people to live in inclusive, responsive, accountable, fair societies, that are equipped to sustain the social and political conditions necessary to underwrite justice, at the local and global levels. I have been presenting pathways for people to participate and partner to create better societies. In building more inclusive societies in which people feel they will get the fair treatment and opportunities they rightfully deserve, we are also helping to create strategies for justified hope. We should all have compelling reasons to believe that tomorrow will be a good day and that it will not end with self-immolation.

APPENDIX

Is a Comprehensive Account of Corruption Available? Some Difficulties A.1 Introduction Corruption suggests that, at some level, things are not functioning properly. Consider the idea of corruption to a computer’s hard drive. Often one is only aware that there is a problem that needs diagnosis when the computer is not working as it should. Corruption implicitly invokes an understanding of how things should be when they are working well or with integrity. There is a normative ideal against which the current situation is compared. Corruption involves impairment of integrity. Depending on the form of the corruption the integrity impairment could be with individuals, systems, practices, activities, institutions, and so on. Corruption entails a deficiency, and when we are talking about corruption involving humans rather than inanimate objects like computers, the deficiency is typically a moral one, though not always.¹ There is no single deficiency common to all kinds of corruption, as the kinds of corruption are so diverse. While there are some features that many varieties of corruption frequently display, it is difficult to find one account that applies to all cases. Some of this difficulty will be explored in this chapter. On one widely cited definition of corruption, “corruption is the abuse of power by a public official for private gain”.² While this is one paradigmatic example of corruption there are many others. Corruption need not involve public officials or private gain. As Seumas Miller observes, “when a bettor bribes a boxer to ‘throw’ a fight this is corruption for private gain, but it need not involve any public office holder; the roles of boxer and bettor are usually not public offices”.³ Corruption is also often taken to be almost synonymous with bribery. While bribery may be considered one of the central forms of corruption, there are a number of other types in the corruption family, as we have been discussing in this book. Here are six:

¹ If, for instance, an organization is corrupt then attempting to corrupt it to make it less corrupt may be morally praiseworthy in certain cases. This kind of “noble cause” non-standard corruption is treated later in this chapter. ² Joseph Nye, “Corruption and Political Development: A Cost-Benefit Analysis,” American Political Science Review 61 (1967): 417–27. ³ Seumas Miller, “Corruption,” in Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, September 21, 2018. Available at: http://plato.stanford.edu/entries/corruption/

180



1). Fraud for personal gain. When politicians fraudulently claim re-imbursal for private expenses from public funds, this form of fraud can constitute corruption. 2). Nepotism. When less deserving parties are shown inappropriate favoritism over more deserving ones in awarding opportunities, simply because of their personal connections to the decision-makers, this can be a further form of corruption. 3). Conflicts of interest can also be cases of corruption. If a member of the Federal Drug Administration board that decides which medications should be legally available has a financial interest in the product under review, this can corrupt—or can give the impression of corrupting—the proper process for drug approvals. 4). Corrupting the electoral process through stuffing ballot boxes with fake completed voting papers. 5). Corrupting a judicial process. When a police officer fabricates evidence to convict someone who may or may not be guilty, she thereby corrupts the proper judicial process. 6). Forms of cheating in sports that undermine fair competition can also involve corrupt activities. Match fixing in cricket might constitute one clear example. An official’s under-inflating footballs to give one team a scoring advantage, thus undermining the rules of fair competition and corrupting the game, might be another. Many forms of cheating in sports may also be forms of corruption, when fair competition, which the game presupposes, is undermined. With the presentation of these six different non-bribery examples, we can appreciate that corruption can take different forms other than bribery, and these diverse forms of corruption will present challenges to arriving at one account that captures all instances. My view is that it is difficult to come up with one account of corruption that covers the full spectrum of cases. Corruption can include so many different phenomena and it can take diverse forms in different sectors. In the next few sections I show the difficulties of arriving at an account that covers all occurrences even in one domain, namely, all instances of political corruption. While corruption involves impairment of integrity, there are many ways of doing so. I illustrate some of the difficulties by examining diverse forms of political corruption. I then offer a more inclusive account than those commonly offered in the literature, one that captures a fuller range of phenomena classified as political corruption. However, the position faces challenges with drawing boundaries between corruption and other neighboring species of dysfunction and injustice. I show how to proceed in light of these problems. In the next section, Section A.2, I introduce a standard way of defining political corruption, highlighting core features. In Section A.3, I collect a range



181

of phenomena that are frequently described as forms of political corruption to help inform our theorizing. I cover forms of corruption that occur in the process of acquiring public office, along with forms that occur in the execution of public duties, and those related to life after holding office. I also discuss individual and institutional forms of corruption in the political sphere. In Section A.4, I offer an inclusive account showing how political corruption can involve contaminated results, processes, or people. It is useful to separate these out as their core elements differ importantly. In Section A.5, I note that it is sometimes particularly difficult to explain why the flaws identified are ones of political corruption rather than some other dysfunctions that might be neighboring concepts, since forms of corruption can certainly bleed into other types of dysfunction or species of injustice. I note that this is an area ripe for further analysis, but also offer some cautionary remarks about the quest for precision where none might be available, especially in the face of certain kinds of dire costs that can occur where large numbers of ordinary citizens reasonably believe there to be worrisome corruption— or corruption-like activities—on the part of political actors. I also discuss why this imprecision does not derail the normative project that is my chief focus in the book. While people might use the term in different ways, it is also clear that the perception of corruption certainly resonates with ordinary folks and can constitute an effective mobilizer for action. Section A.6 addresses a final objection to the position I take here, one which attempts to provide a simple account that can cut through many of the problems highlighted. I indicate skepticism about its prospects but am open minded to the possibility that someone might undertake the immense project of showing how it can work. In Sections A.5 and A.6, I indicate how those concerned with global justice should navigate the conceptual problems raised in this chapter and why they do not affect the normative mission of this book.

A.2 Political Corruption: An Introduction to the Standard Account Like other forms of corruption, political corruption is nothing new. Historically, it was typical for members of the ruling class to use positions of power to advance their own interests at the expense of others. As well, those seeking such positions have often engaged in a range of corrupt activities in their quest for power, as I cover in Section A.2. Contemporary accounts of political corruption often make holding public office a central focus of political corruption.⁴ In contrast, I believe political ⁴ For one good example see Emanuela Ceva and Maria Paola Ferretti, Political Corruption: The Internal Enemy of Public Institutions (New York: Oxford University Press, 2021). As should be clear from the analysis I present here, my account recognizes a much broader range of behaviors as rightly described as political corruption. For additional accounts see for instance, Mark Philp, “Access,

182



corruption can be accurately described as occurring at times prior to the holding of political office, such as in the process of seeking public office. It can also occur after someone has left public office. Revolving door style political corruption is a familiar form of the latter kind. Types of electoral misconduct are examples of the former. To get a sense of the kinds of views with which I am contrasting my position, consider Mark Philp’s important account. “Core cases of corruption involve four key components: - an official (A), who, acting for personal gain, - violates the norms of public office, and - harms the interests of the public (B) - to benefit a third party (C) who rewards A for access to goods or services which C would not otherwise obtain. These are jointly sufficient conditions for cases of corruption, although cases which lack one of these features are often also recognized as corrupt. The two necessary conditions are the existence of (1) a public official (A) who acts for gain in ways which cut across his/her formal responsibilities (2)”.⁵ As we come to appreciate, political corruption can also occur when there is no third party, (C), involved, and no benefit to third parties (as we see with forms of improper process corruption). Furthermore, officials (A) might also be engaged in political corruption even when there is no personal gain involved. The broader account I endorse also enlarges the set of agents who can be accurately described as engaging in political corruption. So, it seems, my account breaks with dominant views a fair bit. In order to build a case for my more inclusive account, I start by collecting various kinds of examples of what could accurately be described as political corruption in the next section.

A.3 Mapping the Many Kinds of Political Corruption Several different kinds of phenomena are identified as forms of political corruption. Here is a sample of 12 types to help inform the analysis. Accountability and Authority: Corruption and the Democratic Process,” Crime, Law and Social Change 36 (2001): 357–37. See also Mark Philp, “The Definition of Political Corruption,” in Paul Heyward (ed.), The Routledge Handbook of Political Corruption (London: Routledge, 2015), 17–29; Mark Philp, “Defining Political Corruption,” Political Studies 45 (1997): 436–62; Emanuela Ceva and Maria Poala Feretti, “Liberal Democratic Institutions and the Damages of Political Corruption,” Les ateliers de l’ethique/The Ethics Forum 9 (2014): 126–45. For earlier accounts see: Arnold J. Heidenheimer, Political Corruption: Readings in Comparative Analysis (New York: Holt, Reinhart and Winston, 1970); Arnold J. Heidenheimer and Michael Johnston (eds.), Political Corruption, 3rd edition (London: Routledge, 2002). ⁵ Philp, “Access, Accountability and Authority,” 358–59. See also Philp, “The Definition of Political Corruption”; Philp, “Defining Political Corruption”.



183

A.3.1 Twelve Examples of Forms of Political Corruption Corruption can occur in the process through which power is acquired. Here are two examples. (i) Election fraud: This category would include filling ballot boxes with fraudulent voting papers or deliberately miscounting votes by those with partisan interests. (ii) Contaminating the process by which political leaders are elected: Candidates and campaigns might be guilty of corrupting the political process when they “pollute” it in various ways, for instance by spreading mistruths or distortions about opposing candidates or positions. Consider how Donald Trump has been described as corrupting the democratic process when, during the 2016 election campaign he made false, offensive, and racist claims to grab media attention and gain votes from some communities with racist proclivities.⁶ Even when the claims were resoundingly shown to be patently not the case, he continued to assert them as if they were factual. By this strategy, Trump was accused of corrupting the election process. And in bringing about a so-called “post-truth” environment, norms of public democratic discourse and public knowledge have been corrupted.⁷ In its most well-known forms, corruption occurs in the exercise of power, especially in the execution of public duties. Nine examples follow. (iii) Theft of state assets (iv) Improper use of state revenue: Examples include systems of government procurement that allow scope for sub-standard goods and services to be purchased at inflated prices. Fraud for personal gain would constitute another example, for instance, when politicians fraudulently claim reimbursal for private expenses from public monies. A high-profile case of this occurred in the British parliamentary scandal of 2006 in which parliamentarians requested reimbursal for expenses unrelated to parliamentary business, such as using public funds for cleaning a moat on private property, personally owned by a member of government. Another prominent case of improper use of state revenue is that of past President Jacob Zuma of South Africa using public funds, allegedly for security upgrades to his personal house that he intended to occupy

⁶ For some of his anti-Muslim claims and other racist rhetoric see Gillian Brock, Justice for People on the Move: Migration in Challenging Times (Cambridge: Cambridge University Press, 2020), ch. 4. ⁷ Violations of campaign finance laws might also fall under this general category labeled (ii).

184



(v)

(vi)

(vii)

(viii)

(ix)

(x)

once he no longer held office, but which included construction of a swimming pool and cattle grazing enclosure. Inappropriate favoritism or partiality, such as nepotism: For instance, when less deserving parties are shown inappropriate favoritism over more deserving ones in the awarding of opportunities, simply because of their personal connections to the decision-makers. Systems of patronage and providing special favors to those who donate lavishly to election campaigns are further examples. Corrupting aspects include the ability of wealthy citizens to gain preferential access to public officials in government because of their wealth. Governments have been inclined to bend toward promoting major funders’ interests at the expense of the interests of the people. State capture (either with intentional cooperation from public officials or unwittingly): This can take the form of capture of regulators or key public officials by those representing corporate interests. It might also involve policy capture, such as when corporations fund think-tanks or policy institutes, the “research” of which shapes policymaking.⁸ Entrenching advantage: We sometimes label as corrupt a system of rules that focuses on entrenching and strengthening the position of those who enjoy considerable advantages, in contrast to systems which should show fairness for all, especially the most vulnerable. Perhaps like many forms of corruption, the idea here is that this is corruption of a certain ideal, such as in this case an ideal of what democratic government should be about. Whitewashing or cover-ups when public officials misstep or engage in wrongdoing. Inquiries conducted by biased parties who re-describe the wrongdoing in ways that minimize the damage for government officials are examples of this form of corruption. Relatedly, there can be corruption of processes aimed at accountability: An example would be when people on so-called independent commissions or review panels are not inclined toward impartiality, but rather have strong partisan interests and use their participation to promote specific agendas. Relatedly, there can be inappropriately close relationships where there should be some distance, such as between those who hold power and those who are tasked with holding the powerful to account. An example would be when political officeholders own the major media outlets. There can also be too close a relationship between influential media personnel and government, resulting in distorted views about what is in

⁸ David Whyte (ed.), How Corrupt Is Britain? (London: Pluto, 2015), ch. 10, 140.



185

the public interest. A further example might be members of government, such as the Minister of Policing, turning a blind eye to police impropriety for the sake of furthering a political agenda, such as when police illegally search a property, tap phones, or in other ways illegally gain information or property important to government projects. (xi) Several cases of conflict of interest can also rightfully be perceived as a form of political corruption. An example would be when public officials who have undeclared conflicts of interest act in ways that seem to benefit that interest. The police minister of New Zealand meeting with Chinese businesses that would promote her husband’s commercial interests on an official government police business trip to China, might constitute one example. Corruption can be importantly related to activities while being an office holder or afterwards. I believe the next form discussed is a clear instance of this latter, post-office type. (xii) Revolving doors between government and business. The steady traffic from government service to private sector employment can corrupt the political process in several ways. The prospect of future lucrative employment in the private sector can influence the decisions of those currently in government service jobs who wish to please future employers. Also, those who have served in government have specific knowledge of how government works that can considerably assist companies or industry associations in promoting policies favorable to their interests at the expense of public interests. Using that inside knowledge for private benefit is a corrupting activity if it unfolds in certain ways, such as when that inside knowledge is used to subvert public interests. As this case shows, political corruption can still be an accurate description of activities, even when the former office holder does not hold office at the time of misconduct.⁹

⁹ The 12 types listed in this section are by no means a complete list of forms of political corruption. Other kinds might involve offering undue advantage to particular constituents in the hopes of those constituents reciprocating with further benefits for office holders in due course. This form might be a particularly common way to solicit campaign contributions. No doubt the list of forms of quid pro quo is long, but lobbyists’ actions are particularly noteworthy, as they standardly facilitate generous contributions from those hoping to get favorable treatment, should politicians be elected. Other forms of political corruption include extortion, influence peddling, interference with proper legal processes, forms of collusion between the political, executive, and legal branches of power, and plain old bribery. Government procurement can be another area rife with political corruption. Consider as one example here the improper award of contracts to corporations such as Blackwater and Haliburton in the aftermath of the Iraq war. Some question the influence of members of these corporations in the decision to invade Iraq in the first place.

186



A.3.2 Individual and Institutional Corruption in the Political Sphere It is surprisingly difficult to give a clear account of a clean distinction between individual and institutional corruption. In this section, I discuss some of the challenges. Dennis Thompson gives an account of institutional corruption that has become one of the classics. According to Thompson, in the case of individual corruption public officials receive a personal benefit for promoting private interests. There is “political gain or benefit by a public official under conditions that in general tend to promote private interests”.¹⁰ According to Thompson, we can distinguish institutional corruption from individual corruption in the political sphere: by examining the three key elements of the relationship between officials and citizens: the benefit to a public official, the service to a private citizen, and the improper connection between the benefit and the service. Corruption is institutional insofar as the benefit an official receives is political rather than personal, the service the official provides is systematic rather than episodic, and the connection between the benefit and the service manifests a tendency that disregards the democratic process. To generalize the concept: institutional corruption occurs when an institution or its agent receives a benefit that is directly useful to performing an institutional function, and systematically provides a service to the benefactor under conditions that tend to undermine legitimate procedures of the institution.¹¹

On this account of institutional corruption, officials give overriding weight to considerations that are irrelevant to promoting the purposes of an institution. Furthermore, there is a systemic aspect to institutional corruption that makes it difficult to see. When services are provided as a regular practice or within a continuing relationship it becomes harder to identify corruption. On Dennis Thompson’s account, institutional corruption in the U.S. Congress is difficult to spot because it is deeply embedded in the roles and processes that are a proper part of Congress. Identifying institutional corruption can be challenging because it relates so closely to behaviors that are a proper part of political life, in fact may even be duties of office. It is therefore harder to identify when someone is behaving improperly. So, consider how legislators should try to help their constituents solve problems. And to be elected, they typically do need to solicit ¹⁰ Dennis F. Thompson, “Two Concepts of Corruption,” Edmond J. Safra Working Papers 16 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2013), 6. Available at: http://ssrn.com/abstract= 2304419. See also Dennis Thompson, Ethics in Congress: From Individual to Institutional Corruption (Washington DC: Brookings Institute, 1995). ¹¹ Thompson, “Two Concepts of Corruption,” 9.



187

contributions from funders. As Thompson notes: “To do their job, legislators must seek the support of private interests, provide service for constituents on whom they depend for campaign contributions, and defend their record to voters who care more about what they have done for the district or state than what they have done for Congress or the country”.¹² Furthermore, the benefits received in institutional corruption are useful in performing tasks related to institutional purposes, so they do not typically trigger suspicion. However, these benefits also tend to undermine the primary purposes of the institution or undermine legitimate institutional procedures.¹³ Lawrence Lessig has developed an account of institutional corruption, later more accurately described as “improper dependence corruption,” which has been highly influential.¹⁴ On this kind of institutional corruption, the institution itself deviates from its proper purpose or purposes. In classic formulations of the idea, the institution might be entirely staffed by good people playing by the institutional rules, and yet because the institution is no longer aiming at its proper purposes, and the institutional rules fail to correct for the deviations, actions undertaken within it are morally tainted. This variety of institutional corruption involves improper dependence corruption. As an example, consider, Congress’s improper dependence on campaign contributions with disastrous results for American democracy. While there are clearly pressures on those elected by generous funders to reciprocate by being favorably disposed to promote their interests, there are three other noteworthy corrupting aspects of the system of campaign contributions, as I mentioned in Chapter 1. First, members of Congress engage in continuous fundraising that distracts them from some of their core purposes, such as deliberating about policies and legislation, or tending to constituents.¹⁵ Second, campaign contributors get preferential access to members of Congress and are thus able to influence beliefs and agendas.¹⁶ Third, there is a huge loss of trust in the political system. Citizens disengage in practices of democracy enabling further opportunities for funders to disproportionately influence political outcomes.¹⁷ ¹² Thompson, “Two Concepts of Corruption,” 18. ¹³ Thompson, “Two Concepts of Corruption,” 18. ¹⁴ Lawrence Lessig, “ ‘Institutional Corruption’ Defined,” Journal of Law and Medical Ethics 41 (2013): 2–4; Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop it (Boston: Hachette, 2011); Lawrence Lessig, “Institutional Corruptions,” Edmond J. Safra Working Papers 1 (Cambridge, MA: Edmound J. Safra Centre for Ethics, 2013). Available at: http://ssrn.com/ abstract=2233582. ¹⁵ Brent Ferguson, “Congressional Disclosure of Time Spent Fundraising,” SSRN Electronic Journal (2013): 1–61. ¹⁶ Larry Bartels, “Economic Inequality and Political Representation,” in Lawrence Jacobs and Desmond King (eds.), The Unsustainable American State (Oxford: Oxford University Press, 2009), 167–96. Available here: DOI:10.1093/acprof:oso/9780195392135.003.0007. ¹⁷ See, for instance, Finn Heinrich, “Corruption and Inequality: How Populists Mislead People,” Transparency International, January 24, 2017. Available at: https://www.transparency.org/en/ news/corruption-and-inequality-how-populists-mislead-people.

188



In addition to Dennis Thompson and Lawrence Lessig’s two classic accounts of institutional corruption, we can also encounter institutional corruption in a variety of other ways. To quote a widely used metaphor, sometimes we have “bad apples” and sometimes we have “bad barrels”. On this metaphor the bad apples correspond to individual corruption and the bad barrels represent institutional corruption. In contrast to this neat division, sometimes enough bad apples can infect the barrels, so that individual forms of corruption can become institutional. There are interactional effects. There are also issues about tipping points, when you have enough bad apples that can contaminate the barrels (or at least perception of the barrels, which can sometimes amount to something similar in undermining trust in credible systems of governance). There are several types of corruption that might be of interest here. Consider a paradigm case of individual corruption in an institutional setting such as an individual misusing public office for private gain. So imagine a president uses his position to increase his personal fortunes and those of his family, friends, and associates. He uses a public position to channel public money into personal and family bank accounts. He also inappropriately advances the interests of associates, by awarding them contracts and appointing them to advantageous positions. These contracts and positions would not be awarded to the particular people were it not for their personal connections to the president because competitors would be considered more meritorious. Such cases are sometimes described as forms of institutional corruption. Should we include these in the category of institutional corruption or not? There is a case for including them because there is an institutional failure if the institution does not include sufficiently robust mechanisms to block such behaviors. There are several other types of corruption in institutional settings and we might distinguish them given the direction of corruption. In one kind, the role occupants’ corrupt actions tarnish the institution. The direction of corruption is from the institution’s participants to the institution itself. Consider how particular British parliamentarians’ actions related to the expense scandal of 2006 brought the entire British Parliament into disrepute. Similarly, a single corrupt police officer’s actions, or a small group of corrupt officers’ activities, might disgrace the entire police force.¹⁸ Robust institutions should have procedures in place to block individual corruption and, to the extent that they do not, this is an institutional failure in that the omission of important oversight or accountability mechanisms facilitates avoidable corruption. So it seems to me not inaccurate to include such cases as forms of institutional corruption as well. In another form of institutional corruption, the institution despoils the moral character or the reputation of the institutional role occupants, even when it ¹⁸ Even if a particular participant is morally scrupulous, the reputation of the institution may tarnish him, perhaps in the way others regard him or in his capacity to execute duties efficiently or properly.



189

functions as it normally does in practice. The direction of corruption is from the institution to participants in the institution. The idea is that good people may have to do compromising things because of the demands of getting things done successfully in that institution. Examples might include participating in certain legislatures and having to engage in unsavory, deal-making compromises necessary to passing legislation, which might be thought to sully the character of the participants. So we see how in the political sphere there can be several forms of institutional corruption and that the relationships between individual and institutional corruption are perhaps more complicated than Thompson’s or Lessig’s accounts suggest. Future research might focus on untangling some of this complexity.

A.4 Toward a More Inclusive Account of Political Corruption In general, I am skeptical that one account of corruption will be able to cover its myriad instances. I am also skeptical that even if we narrow our sights just to political corruption, one succinct and usefully informative account that covers all the cases of that phenomenon is straightforwardly available. We have already considered Mark Philp’s account in the first section and I have argued that there are examples of political corruption that his account cannot capture, for instance in virtue of his stipulation that a necessary condition for political corruption is that it must involve someone holding public office. They need not do so as cases such as election fraud, electoral process contamination, and revolving doors (cases (i), (ii), and (xii) from Section A.2) show. In this section I make the case that David Beetham’s more inclusive account also fails. However, the failures are instructive and they indicate how we might work toward a more inclusive account. Consider David Beetham’s account of political corruption which is “the distortion and subversion of the public realm in the service of private interests”.¹⁹ Let us construe “private interests” fairly broadly, so that we include interests such as gaining or maintaining political power and promoting party interests. There are still cases that would seem not to be covered by Beetham’s definition and I discuss this next by illustrating with four core issues.

A.4.1 Is Personal Gain or Private Interest Always Necessary for Corruption? There can be cases of corruption in which the agents are not acting in ways that plausibly should be described as acting for personal gain or in their private

¹⁹ David Beetham, “Moving Beyond a Narrow Definition of Corruption,” 41.

190



interest. To understand one type of case, consider how perceptions of certain kinds of impropriety can, in relevant instances, amount to relevant impropriety. Whether or not someone acts to pursue personal gain in the political sphere, she might put at risk perceptions of the integrity of processes. So consider someone who holds a public position who has a conflict of interest, and this conflict of interest is declared, so known to be the case. Even if the public official does not act on the interest that is counter to public interests but continues to participate in the process, she might have corrupted the process, by causing others to believe these processes are not sufficiently robust. So, there can be corruption even when people are not acting on personal interest. The integrity of the process can be corrupted by perceptions of impropriety whether or not there has been any personal interest furthered. Here is another case. The fact that government business is conducted in secret might cause suspicions about corruption and perceptions that proper processes have been undermined, even if what happens in secret is perfectly fitting. An example might be if local business leaders and members of government draft policy without appropriate democratic oversight and opportunities for consultation. This can lead to a perception of corruption even if the result is perfectly in the public interest. So we see that even if something is in the public interest, the way in which this takes place can be corrupt or corrupting. There can be corruption of procedures or institutions because there are insufficient rules in place to block legitimate perceptions of corruption, inadequate mechanisms for dealing with conflicts of interests, or other avoidable defects that contribute to legitimate perceptions that proper processes have not been followed.

A.4.2 Is a Relevant Intention Necessary for a Case of Corruption? As the cases of process corruption just discussed show, corrupt intentions are not necessary for a case of corruption. Corruption can result when appropriate processes are not followed irrespective of agents’ intentions. We can have cases of corruption when certain effects transpire. Political corruption can also involve undermining central political ideals, such as that we are all political equals, even when no agents have relevant intentions that this be the case.²⁰

²⁰ So when final-term politicians (i.e. those with no eligibility for re-election) privilege the interests of their funders above the interests of the vast majority of their constituents including their own, they can be guilty of undermining our relational or political equality. The ideal that we should stand in relations of equality with one another has been corrupted.



191

A.4.3 Failures to Act in the Public Interest and Subversion of the Public Realm Drawing on the idea of institutional corruption introduced earlier, some forms of corruption can be characterized along these lines: the distortion and subversion of the public realm—whether intentional or not—in ways that are contrary to the purpose or function of a public realm. An illustration of this form is financial secrecy jurisdictions which have minimal or no tax obligations, but more importantly offer secrecy about financial information and shield those who operate in them from laws in their residency jurisdiction.²¹ Financial secrecy promotes an environment that is contrary to the purposes of government. Whether or not there is personal gain, secrecy jurisdictions subvert the public realm by promoting the ability of some to escape the rule of law, particularly in financial matters. As John Christensen observes “Secrecy enables concealment of a wide variety of corrupt practices, including fraud, embezzlement, non-disclosure of conflicts of interest, illicit political funding, insider dealing, market rigging, bribery, tax evasion and tax avoidance. Legalized secrecy creates a criminogenic environment which encourages and enables corrupt practices by blocking investigation, prosecution and recovery of stolen assets”.²² Some governments actively encouraged secrecy jurisdictions. For many years Britain encouraged its overseas territories and crown dependencies to become secrecy jurisdictions.²³ Under such conditions, the British government has failed in its public duties. Even if members of government are not taking advantage of the mechanisms created to avoid tax, their failures to regulate, discourage or otherwise block tax avoidance avenues and regimes of secrecy can mean they have failed to act in the public interest. These sorts of failures to act in the public interest, when the office requires this, are not just negligence. Rather, because of the destructive and subversive effects for the public realm, they are a form of corruption. Inability or unwillingness of government agents charged with relevant responsibilities to intervene to stop certain kinds of practices that harm citizens, or to enforce compliance with relevant regulation that is aimed to protect citizens, subvert the public realm in

²¹ Enormous amounts of private wealth are stored in what are variously called “offshore” or “secrecy” jurisdictions. These secrecy jurisdictions have minimal or no tax obligations, but more importantly offer secrecy about financial information and shield those who operate in them from laws in their residency jurisdiction. It is hard to see why this kind of bank secrecy is legitimate, especially when one considers the effects this has on attempts to enforce the law in all countries. Secrecy jurisdictions are places that create regulation specifically and primarily for the benefit of non-residents. This regulation is intentionally designed to facilitate the circumvention of legislation or regulation in another jurisdiction. To ensure that those who use the secrecy jurisdiction are protected, elaborate, legally backed structures can arise to shield non-residents from identification. ²² John Christensen, “On Her Majesty’s Secrecy Service,” in Whyte (ed.), How Corrupt is Britain? 147–57, at 147. ²³ Christensen, “On Her Majesty’s Secrecy Service,” 149.

192



ways that betray officeholders’ entrusted power. Whether or not government agents personally benefit from the failure, there is relevant corruption. Notice also that in such cases political ideals are also being undermined such as that the rule of law applies to all citizens including wealthy ones. Those who evade tax attempt to escape the rule of law. It should not matter whether these citizens are wealthy or not; the rule of law should apply to all equally.

A.4.4 Noble Cause Corruption The case of so-called “noble cause corruption” in which there is no relevant private interest in play provides a further challenge for Beetham’s account. Here is an example. A government minister puts pressure on an immigration official to allow asylum to more refugees and when simple pressure does not work, he offers a bribe which is accepted. In this case, the minister simply believes that is the right thing to do in a dreadful humanitarian crisis. The corruption stems from a noble cause rather than personal gain. The act is still corrupt—bribery is a core case of corruption, after all—but it may be noble or even warranted in a horrendous situation, some might plausibly argue. Some corruption might be justified, even if it involves an apparent moral deficiency.

A.4.5 Toward an Account of Political Corruption: A Summary To conclude this section, I offer a summary of my more inclusive account of political corruption that aims to do justice to the many kinds of phenomena canvassed in Section A.3 and builds on the instructive failures discussed in this section. There are at least three key ways in which corruption can occur in the political sphere. Political corruption can centrally involve distorted or contaminated results, processes, or people. An adequate account of political corruption must incorporate all three aspects. (1) Results: Political corruption can involve the distortion and subversion of the public realm in ways that are contrary to the purpose or function of a public realm. (i) this can be because agents act on private interests (but they need not) (ii) this can also be because actions undermine central political ideals such as: - that we are all political equals or the rule of law applies to each one of us - or that public service should require special attention to protection of public interests - or that public discourse should include standards of truth and fair play, perhaps especially when choosing political leaders.



193

(2) Processes: Political corruption can involve undermining the public realm because of improper procedures, such as ones that fail to deal adequately with conflicts of interest or inappropriate processes that create legitimate perceptions of impropriety.²⁴ (3) People: Political corruption can involve people who lack sufficient integrity or whose actions bring political systems into disrepute, thus undermining the credibility of political systems or undermining the trust people place in the political processes for delivering fair results.²⁵

A.5 Neighboring Concepts and Some Challenges In this section, I raise two points that I believe are salient to future work on an account of political corruption. First, the costs of corruption, including political corruption, can be huge. In so far as people come to view political institutions as corrupt, this can have far-reaching consequences for people’s willingness to trust that they do and will operate fairly. This crucial loss of social capital permeates other domains, besides the political, and has the potential to undermine societal functioning in highly damaging ways including in destabilizing the state, as canvased in earlier chapters. In a multiplicity of ways, corruption can undermine trust and social capital. Consider just one way in which this can happen. As Leslie Holmes observes: Corruption tends to create a greater sense of “them” and “us” in society, both vertically and horizontally. The gap between elites and the public is often wider than necessary because corrupt officials are perceived to be creaming off a country’s wealth at the expense of ordinary citizens (i.e. a vertical divide). At the same time, corruption can increase divisions between citizens themselves (horizontal divide), as those unwilling or unable to pay bribes to obtain what they need become resentful of those who can and do.²⁶

Furthermore, once corruption triggers distrust of the state and its officers, it can result in a pervasive return to reliance on family and kinship networks. Greater

²⁴ This can lead to undermining trust in political systems as credible ways to manage political matters, thus corrupting the entire political system. ²⁵ This kind of problem is arguably one of the most visible and destructive forms of corruption. The character of the person in power tarnishes the political sphere in a wholesale way, no matter how robust its procedures aimed at blocking corruption are. ²⁶ Leslie Holmes, Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015), 19. See also Susan Rose-Ackerman, Corruption and Government: Causes, Consequences and Reform (Cambridge: Cambridge University Press, 1999).

194



reliance on and identification with kith and kin can lead to divisive ethnic tensions, reducing social capital even further. So, when political corruption flourishes there can be great societal costs, leading to weak or dysfunctional states, or even state failure. We need to be mindful of these real world costs even if difficulty with locating the precise boundaries in the concept of political corruption remains. This point will be relevant to navigating some of the challenges I go on to document. The second key point I wish to raise in this section is that there are, of course, many forms of dysfunction or injustice that are not rightly labeled as corruption, let alone political corruption. I cannot here offer a clear criterion for differentiating political corruption from neighboring dysfunctions. This is an area ripe for further analysis, which could be the subject of future research. But I offer two points of caution as we work to separate political corruption from other forms of injustice. Institutional dysfunctions, including political institutional dysfunctions, come in a variety of forms, and not all dysfunctions are corruption. There is a difference, for instance, between weak institutions and corrupt ones. Institutions may be inefficient or incompetently managed. That does not necessarily make them corrupt. Seumas Miller differentiates between corrosion and corruption, to separate weak institutions from properly corrupt ones.²⁷ I think this is a useful distinction, but in some cases it is insufficient to do all the work needed. Consider institutions that should have robust procedures in place to block dysfunctional activities. In so far as they fail to include the necessary mechanisms, they might be thought of as either weak or corrupt, depending on the source of the omission or the nature of the dysfunction. In some cases unaddressed significant systemic weakness and incompetence can become a species of corruption. Another salient issue that must be considered in future work on the boundaries between political corruption and other forms of injustice is that often citizens do not always make fine-grained distinctions between sources of a problem. Rather, if it walks like a duck and quacks, they may not much care whether we call it prolonged, systemic, avoidable weakness or corruption. The profoundly bad effects can be triggered either way. While there is clearly a difference between conceptual analysis and other kinds of activities, there might also be certain contexts in which we have reason to favor other purposes over conceptual analysis. So if our goal is to understand the phenomenon of political corruption with the aim of remedying destructive forms that trigger the most undesirable consequences, we might have reason to include a wider set of behaviors and be fairly liberal about considering some neighboring afflictions as within scope. We should also then appreciate that other species of dysfunction, not just political

²⁷ Miller, “Corruption”. Available at: http://plato.stanford.edu/entries/corruption/.



195

corruption narrowly construed, should be part of our concern as we aim to offer a robust account of what political integrity and good governance requires. We might then be concerned to offer recommendations about how to address a worrying family of phenomena along with action responsibilities in relation to these. So, though we might have important interests in getting our concepts right, given my core project in this book, there are also good reasons to take neighboring dysfunctions seriously, along with legitimate public perceptions of what is considered political corruption. These broader issues are relevant to understanding how the phenomenon of political corruption manifests itself in our world and therefore are relevant to how we ought to combat the problematic behaviors that lead to the same destructive consequences as are triggered with cases of political corruption narrowly construed.

A.6 Generalizing the Analysis A critic might retort that I have exaggerated some of the difficulties involved in arriving at a simple unified account. She might suggest the following sort of candidate be further considered. Corruption involves the improper use of authority, roles, or procedures in ways that tend to subvert the purposes of that authority, role, or procedure. While I think these kinds of simplified accounts can be useful proxies in certain domains, I think they leave out quite a bit of detail that is useful in understanding the concept and how it functions in particular domains (for instance all the detail covered in the three-part account of political corruption I offered in Section A.4).²⁸ Note that even if we are inclined to find this useful in a particular area such as the area of political corruption that I have been discussing, it does not generalize well to other domains. Consider corruption in sport. Clearly, collecting all the varieties of forms of corruption in sport would be the sort of project that would need more detailed treatment, such as that undertaken in Section A.3. Corruption in sport might have in common seeking to cheat in various ways that undermine fair competition, but it is not clear that all forms of cheating would be classified as corruption. At any rate, consider the proxy account just offered: corruption involves the improper use of authority, roles, or procedures in ways that tend to subvert the purposes of that authority, role, or procedure. How well does this apply to the case of corruption in sport? Not all examples seem to be captured by this kind of account. Consider a fan trying to get a player to throw a cricket match. The fan does not have a position of authority here, nor is it clear that there is an

²⁸ Furthermore, the worrisome subversive effects will only transpire if sufficient people come to know about the corruption and care about the corruption.

196



important role or procedure in play. Perhaps the definition can be made to work using the role of the player, who does occupy a certain role. But, it seems, further thought would be required to spell all of this out and explore whether or not this does in fact capture all the cases of corruption in sport, let alone all the other domains in which the concept is used. In the end, I leave these matters as an open question, worth further consideration elsewhere. Because I believe my main contribution in this book is the large normative project, especially in offering guidance on fairly apportioning action responsibility for tackling corruption, I leave to future work some of these additional conceptual issues. As I have argued throughout the book, there is enough clarity about the forms of corruption that should be of concern to domestic and international agents. I have supplied many examples of worrying corruption common in many parts of the world. We do not need further conceptual clarity to continue our work in taking action to combat this global scourge.

Bibliography Acemoglu, Daron, Simon Johnson, and James Robinson, “The Colonial Origins of Comparative Development: An Empirical Investigation,” American Economic Review 91 (2001), 1369–1401. Ackerly, Brooke. Just Responsibility: A Human Rights Theory of Global Justice (Oxford University Press, 2018). Afrobarometer. Afrobarometer: Round III 2005–2006 (Cape Town, South Africa: Institute for Democracy in South Africa, 2006). Available at: https://afrobarometer.org/data/ merged-data. Allen, John A. “Integrated Water Resources Management is More a Political Than a Technical Challenge,” Developments in Water Science 50 (2003): 9–23. American Institute of Certified Public Accountants. “Code of Professional Conduct”. Available at: http://pub.aicpa.org/codeofconduct/resourceseamlesslogin.aspx?prod=ethics& tdoc=et-cod&tptr=et-cod0.300&vct=1. Andersen, Morten Koch. “Why Corruption Matters in Human Rights,” Journal of Human Rights Practice, 10, (2018): 179–90. Andersen, Morten Koch. “The Nexus of Corruption and Human Rights,” Journal of Diplomacy and International Relations, 21 (2) (2020): 128–39. Appiah, Kwame Anthony. “The Art of Social Change,” The New York Times Magazine, October 22, 2010. Arbache, Jorge Saba, Habyarimana, James, and Molini, Vasco. Silent and Lethal: How Quiet Corruption Undermines Africa’s Development Effort (English). Africa Development Indicators (Washington DC: World Bank Group, 2010). Available at: http:// documents.worldbank.org/curated/en/316051468009960660/Silent-and-lethal-howquiet-corruption-undermines-Africas-development-efforts. Arnold, Brian. “A Comparison of Statutory General Anti-Avoidance Laws and Judicial General Anti-Avoidance Doctrines as a Means of Controlling Tax Avoidance: Which is Better? (What Would John Tiley Think?),” in John Avery Jones, Peter Harris and David Oliver (eds.), Comparative Perspectives on Revenue Law: Essays in Honour of John Tiley (Cambridge: Cambridge University Press, 2008). Bartels, Larry. “Economic Inequality and Political Representation,” in Lawrence Jacobs and Desmond King (eds.) The Unsustainable American State (Oxford: Oxford University Press, 2009), 187. Available here: DOI:10.1093/acprof:oso/9780195392135.003.0007. Bazerman, Max and Anne Tenbrunsel. Blind Spots: Why We Fail to Do What’s Right and What to Do About It (Princeton: Princeton University Press, 2011). Beitz, Charles. The Idea of Human Rights (Oxford: Oxford University Press, 2009). Ben-Shahar, Omir and Carl Schneider. More than You Wanted to Know: The Failure of Mandated Disclosure (Princeton: Princeton University Press, 2016). Bergman, Marcelo. “Who Pays for Social Policy? A Study on Taxes and Trust,” Journal of Social Policy 31 (2002): 289–305. Bird, Richard. “Tax Challenges Facing Developing Countries,” Institute for International Business Working Paper Series 9 (Vienna: Institute for International Business, 2008).

198



Bovens, Mark Deirdre Curtin, and Paul ‘t Hart. “Studying the Real World of EU Accountability: Framework and Design,” in Mark Bovens, Deirdre Curtin, and Paul ‘t Hart (eds.) The Real World of EU Accountability: What Deficit? (Oxford University Press, 2010), 31–62. Brock, Gillian. “Liberal Nationalism versus Cosmopolitanism: Locating the Disputes,” Public Affairs Quarterly 16 (2002): 307–27. Brock, Gillian. “Needs and Global Justice,” Philosophy 57 (2005): 51–72. Brock, Gillian. Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009). Brock, Gillian. “Fulfilling Obligations to the Poor: How Should We Decide among Options?,” Analysis 74 (2014): 90–9. Brock, Gillian. “Institutional Integrity, Corruption, and Taxation,” Edmond J. Safra Centre for Ethics Working Paper Series 39 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2014), 1–54. Brock, Gillian. “Global Poverty, Decent Work, and Remedial Responsibilities: What the Developed World Owes to the Developing World and Why,” in Diana Meyers (ed.), Poverty, Agency, and Human Rights (Oxford: Oxford University Press, 2015), 119–45. Brock, Gillian. “Towards less dirty trade, more human rights protection, and more public accountability over resources,” Philosophy and Public Issues, 7 (2) (2017): 17–38. Brock, Gillian. Justice for People on The Move: Migration in Challenging Times (Cambridge: Cambridge University Press, 2020). Brock, Gillian and Michael Blake. Debating Brain Drain: May Governments Restrict Emigration? (Oxford: Oxford University Press, 2015). Brock, Gillian and Hamish Russell. “Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals,” Edmond J. Safra Center for Ethics Working Paper Series 56 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2015), 1–54. The B-Team. Ending Anonymous Companies: Tackling Corruption and Promoting Stability Through Beneficial Ownership Transparency: The Business Case (New York; London: The B-Team, 2015). Available at: https://issuu.com/the-bteam/docs/bteam_business_case_ report_final.we. Buchan, Bruce and Lisa Hill. An Intellectual History of Political Corruption (London: Palgrave Macmillan, 2014). Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004). Carroll, Aaron E. “Doctors’ Magical Thinking about Conflicts of Interest,” The New York Times, Sept. 8, 2014. Ceva, Emanuela and Maria Poala Feretti. “Liberal Democratic Institutions and the Damages of Political Corruption,” Les ateliers de l’ethique/The Ethics Forum 9 (2014): 126–45. Ceva, Emanuela and Maria Paola Ferretti. “Political Corruption,” Philosophy Compass 7 (2017): 1–10. doi:10.1111/phc3.12461. Ceva, Emanuela and Maria Paola Ferretti. “Political Corruption, Individual Behavior and the Quality of Institutions,” Politics, Philosophy & Economics 17 (2018): 216–31 doi:10.1177/1470594X17732067. Ceva, Emanuela and Maria Paola Ferretti. Political Corruption: The Internal Enemy of Public Institutions (New York: Oxford University Press, 2021). Chang, Ha-Joon, ed. “Institutional Change and Economic Development: An Introduction” in Ha-Joon Chang, Institutional Change and Economic Development (New York: United Nations University Press, 2007).



199

Chang, Ha-Joon. “Understanding the Relationship Between institutions and economic development – some key theoretical issues,” in Ha-Joon Chang, Institutional Change and Economic Development (New York: United Nations University Press, 2007), 17–33. Chang, Ha-Joon. Institutional Change and Economic Development (New York: United Nations University Press, 2007). Cheyes, Sarah. Thieves of State: Why Corruption Threatens Global Security (New York; London: Norton, 2016). Christensen, John. “On Her Majesty’s Secrecy Service,” in David Whyte (ed.), How Corrupt is Britain? (London: Pluto Press, 2015), 147–57. Christensen, John and Sony Kapoor. “Tax Avoidance, Tax Competition and Globalisation: Making Tax Justice a Focus for Global Activism,” Accountancy Business and the Public Interest 3 (2004): 1–16. Christian Aid. Death and Taxes: The True Cost of Tax Dodging (London: Christian Aid, 2008). Available at: https://www.taxjustice.net/wp-content/uploads/2013/04/Christian_ Aid_0805_Death_and_Taxes_-_TJN_summary.pdf. Clark, Anne Marie and Kathryn Sikkink. “Informative Effects and Human Rights Data: Is the Good News about Increased Human Rights Information Bad News for Human Rights Measures?” Human Rights Quarterly 35 (2013): 539–68. Claussen, Christoffer Pablo Valverde, and Christopher Wilson. “Does Civil Society Matter for Natural Resource Governance? A Comparative Analysis of Multi-stakeholder Participation and EITI Validation Outcomes,” Resource Policy 72 (2021): 1–14. Cobham, Alex. “Tax Evasion, Tax Avoidance, and Development Finance,” Queen Elizabeth House Working Papers 129 (Oxford: Queen Elizabeth House, 2005). Available at: https:// www.taxjustice.net/cms/upload/pdf/qehwps129-revised.pdf. Cockcroft, Laurence. Global Corruption: Money, Power and Ethics in the Modern World (London; New York: I.B. Tauris, 2012). Cockcroft, Laurence and Anne-Christine Wegener. Unmasked: Corruption in the West (London: I.B. Tauris, 2017). Collier, Paul. Conflict, Political Accountability and Aid (London: Routledge, 2014). Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination (New York: United Nations, 2009). Available at: https://undocs.org/CERD/C/BGR/CO/19. Committee on the Rights of the Child, Concluding Observations on the Second Periodic Report on Lesotho (New York: United Nations, 2018). Available at: https://undocs.org/ CRC/C/LSO/CO/2. Confalone, Liz. “Forming an Anonymous Company Can Be Easier than Getting a Library Card,” New York Times, April 7, 2016. Cooley, Alexander and John Heathershaw. Dictators without Borders: Power and Money in Central Asia (New Haven: Yale University Press, 2017). CoST, “Building Civil Society and Media Capacity in Malawi,” material distributed by CoST at the IACC conference, Panama, 2016. David-Barrett, Elizabeth. “Business Unusual: Collective Action against Bribery in International Business,” Crime, Law, and Social Change 17 (2017): 151–70. David-Barrett, Elizabeth, Basak Yakis-Douglas, Amanda Moss Cowan, and Yen Nguyen. “A Bitter Pill? Institutional Corruption and The Challenge of Antibribery Compliance in the Pharmaceutical Sector,” Journal of Management Inquiry 26 (2017): 326–47. Della Porta, Donetella and Alberto Vannucci. Corrupt Exchanges: Actors, Resources, and Mechanisms of Political Corruption (New York: De Gruyter, 1999).

200



Deveaux, Monique. Poverty, Solidarity and Poor-Led Social Movements (Oxford: Oxford University Press, 2021). Dietz, Frederick. English Government Finance 1485–1558 (London: Frank Cass, 1964). Dixit, Avinash. “How Business Community Institutions Can Help Fight Corruption,” The World Bank Economic Review 29 (2015): S25–S47. Douglas, Danielle. “Caterpillar Skirted $2.4 Billion in Taxes, Senate Report Says,” The Washington Post. March 31, 2014. Duffy, Aimee. “Should Companies Do More to Disclose Their Lobbying Efforts?” The Motley Fool, April 5, 2014. Available at: https://www.fool.com/investing/general/2014/ 04/05/should-companies-do-more-to-disclose-their-lobbyin.aspx. Duri, Jorum. “Professional Enablers of Economic Crime during Crises,” U4 AntiCorruption Resource Centre, May 25, 2020. Available at: https://www.u4.no/publications/ professional-enablers-of-economic-crime-during-crises. Economic and Social Council, Concluding Observations on the Initial Report of Burundi (New York: United Nations, 2015). Available at: https://tbinternet.ohchr.org/_layouts/ 15/treatybodyexternal/Download.aspx?symbolno=E/C.12/BDI/CO/1&Lang=En/. Edling, Herbert and David Nguyen-Thahn. “Taxes and Culture–Tax Reforms for Sustainable Development,” Fiscal Studies 5 (2006): 1–33. Eisinger, Jessica. “In an Era of Disclosure, an Excess of Sunshine but a Paucity of Rules,” The New York Times, February 11, 2015. EITI, “Is the EITI Making a Difference?” EITI, May 24, 2016. Available at: https://eiti.org/ blog/is-eiti-making-difference. Elliott, Kimberly Corruption and the Global Economy (Washington, DC: Institute for International Economics, 1997). Evans, Peter. “Extending the ‘Institutional’ Turn: Property, Politics, and Development Trajectories,” in Ha-Joon Chang (ed.), Institutional Change and Economic Development (New York: United Nations University Press, 2007), 35–52. Feinstein, Andrew. The Shadow World: Inside the Global Arms Trade (London: Penguin 2012). Ferguson, Brent. “Congressional Disclosure of Time Spent Fundraising,” Cornell Journal of Law and Public Policy 23(1) (2013). Available at: https://scholarship.law.cornell.edu/ cjlpp/vol23/iss1/1. Fisher, Marc. “In Tunisia, Act of One Fruit Vendor Sparks a Wave of Revolution through Arab World,” Washington Post, March 26, 2011. Flyvbjerg, Bent. “Policy and Planning for Large Infrastructure Projects: Problems, Causes, Cures” Environment and Planning B: Planning and Design 34 (2007): 578–97. Freedom House, Freedom in the World 2006: The Annual Survey of Political Rights and Civil Liberties (New York: Rowman and Littlefield, 2016). French, Peter. Collective and Corporate Responsibility (New York: Columbia University Press, 1984). Frey, Bruno. “The Role of Deterrence and Tax Morale in Taxation in the European Union,” Jelle Zijlstra Lecture (Wassenaar: Netherlands Institute for Advanced Study in the Humanities and Social Sciences, 2002). Fung, Archon, Mary Graham, and David Weil, eds. Full Disclosure: The Perils and Promise of Transparency (New York: Cambridge University Press, 2007). Fung, Archon and Erik Olin Wright. Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (London: Verso, 2003). Goodin, Robert. Protecting the Vulnerable: A Reanalysis of Social Responsibilities (Chicago: Chicago University Press, 1985).



201

Goodin, Robert and David Schmidtz. Social Welfare and Individual Responsibility (Cambridge: Cambridge University Press, 1998). Grant, Ruth and Robert Keohane. “Accountability and Abuses of Power in World Politics,” American Political Science Review 99 (2005): 29–43. Green, Duncan. From Poverty to Power: How Active Citizens and Effective States Can Change the World (Oxford: Oxfam International, 2008). Green, Duncan. From Poverty to Power: How Active Citizens and Effective States Can Change the World, 2nd edition (Rugby, UK: Practical Action Publishing, 2012). Hanlon, Michelle and Shane Heitzman. “A Review of Tax Research,” Journal of Accounting and Economics 50 (2010): 127–78, at 137. Hardin, Russell. “The Free Rider Problem,” in Ed Zalta (ed.), The Stanford Encyclopedia of Philosophy, October 13, 2020. Available at: https://plato.stanford.edu/entries/free-rider. Hatchard, John. Combatting Corruption: Legal Approaches to Supporting Good Governance and Integrity in Africa (Cheltenham, UK: Edward Elgar, 2014). Hawkins, John Camilla Herd and Jill Wells. Modifying Infrastructure Procurement to Enhance Social Development (London: Engineers Against Poverty, 2006). Hechler, Hannes Mathias Huter and Rugger Scaturro. UNCAC in a Nutshell 2019: A Quick Guide to the United Nations Convention against Corruption for Donor Agency and Embassy Staff (Bergen: Chr. Michelsen Institute, 2019). Available at: https://www.u4. no/publications/uncac-in-a-nutshell-2019. Heidenheimer, Arnold J. Political Corruption: Readings in Comparative Analysis (New York: Holt, Reinhart and Winston, 1970). Heidenheimer, Arnold J. and Michael Johnston, eds. Political Corruption, 3rd edition. (London: Routledge, 2002). Heimann, Fritz and Mark Pieth. Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford: Oxford University Press, 2018). Heinrich, Finn. “Corruption and Inequality: How Populists Mislead People,” Transparency International, January 24, 2017. Available at: https://www.transparency.org/en/news/ corruption-and-inequality-how-populists-mislead-people. Helmke, Gretchen and Steven Levitsky. “Informal Institutions and Comparative Politics: A Research Agenda,” Perspectives on Politics 2 (2004): 725–40. Her Majesty’s Revenue and Customs, “HMRC’s GAAR Guidance,” (London: HMRC, 2013). Available at: http://www.hmrc.gov.uk/avoidance/gaar-part-abc.pdf. Hindess, Barry. “International Anti-Corruption as a Programme of Normalization,” in Luís de Sousa, Barry Hindess, and Peter Larmour (eds.), Government, NGOs and AntiCorruption (London: Routledge, 2009). Holmes, Leslie. Corruption: A Very Short Introduction (Oxford: Oxford University Press, 2015). Hurtado, Patricia. “Ex-Jenkins & Gilchrist Lawyer Gets 8 Years in Tax Case,” Bloomberg, March 2, 2013. Available at: https://news.bloomberglaw.com/white-collar-and-criminallaw/former-jenkins-gilchrist-attorney-sentenced-to-eight-year-prison-term. Huther, Jeff. Anti-Corruption Policies and Program: A Framework for Evaluation (Washington, D.C.: World Bank, 1997). Available at: http://hdl.handle.net/10986/ 19753). Ilgu Ozler, Serife. “The Universal Declaration of Human Rights at Seventy: Progress and Challenges,” Ethics and International Affairs, December 7, 2018. Inland Revenue Service, “IRS Releases New Tax Gap Estimates; Compliance Rates Remain Statistically Unchanged from Previous Study,” IRS, January 6, 2012. Available

202



at: https://www.irs.gov/newsroom/irs-releases-new-tax-gap-estimates-compliance-ratesremain-statistically-unchanged-from-previous-study. Institute of Development Studies, IDS in Focus Policy Briefing. Issue 26 (Brighton: Institue of Development Studies, 2012). International Council on Human Rights, Corruption and Human Rights: Making the Connection (ATAR Roto Press: Vernier Switzerland, 2009). International Council on Mining and Metals, Social Progress in Mining-Dependent Countries: Analysing the Role of Resource Governance in Delivering the UN Sustainability Goals (SDGs) (London: ICMM, 2021). International Council on Mining and Metals (ICMM), “Strong Governance Is Key to Improving the Socio-economic Wellbeing of Mining Dependent Countries, According to New ICMM report,” International Council on Mining and Metals, July 14, 2021. Available at: http://www.icmm.com/en-gb/news/2021/strong-governance-is-key. Ionnidis, John. “How to Make More Published Research True,” PLOS Medicine 11 (2014): 1–6. Jenkins, Matthew. “The Impact of Corruption on Access to Safe Water and Sanitation for People Living in Poverty,” Transparency International, July 4, 2017, 10. Available at: https://knowledgehub.transparency.org/helpdesk/the-impact-of-corruption-on-accessto-safe-water-and-sanitation-for-people-living-in-poverty. Johnson, Micheal. Syndromes of Corruption: Wealth Power and Democracy (Cambridge: Cambridge University Press, 2014). Johnson, Micheal and Sahr Kpundeh. “Building a Clean Machine: Anti-Corruption Coalitions and Sustainable Reform,” The World Bank Institute Working Paper Series 3466 (Washington, DC: The World Bank Institute, 2002). Available at: https:// openknowledge.worldbank.org/handle/10986/14722. Judah, Ben and Nate Sibley. The Enablers: How Western Professionals Import Corruption and Strengthen Authoritarianism (Washington, D.C.: Hudson Institute, 2018). Available at: https://www.hudson.org/research/14520-the-enablers-how-western-professionals-importcorruption-and-strengthen-authoritarianism. Kar, Dev and Sarah Freitas. Illicit Financial Flows from Developing Countries: 2001–2010 (Washington, D.C.: Global Financial Integrity, 2012). Available at: https://gfintegrity. org/wp-content/uploads/2014/05/illicit-financial-flows-from-developing-countries2001–2010-HighRes.pdf. Katzarova, Eliza. “The National Origin of the International Anti-Corruption Business”. Unpublished paper presented at International Studies Association Annual Convention, 2011. Kerry, John. “Remarks on Community Building and Countering Violent Extremism,” Sokoto Nigeria, August 23, 2016. Keuleers, Patrick. “Fighting Corruption in Infrastructure—a Must for Achieving the 2030 Agenda,” UNDP Anti-Corruption For Development, December 24, 2015. Available here: http://anti-corruption.org/2015. Khagram, Sanjeev, Paolo de Renzio, and Archon Fung, eds. Open Budgets: The Political Economy of Transparency, Participation and Accountability (Washington, D.C.: Brookings Institution Press, 2013). Kiiza, Julius. “Development Nationalism and Economic Performance in Africa: The Case of Three ‘Successful’ African Economies,” in Ha-Joon Chang (ed.), Institutional Change and Economic Development (New York: United Nations University Press, 2007), 281–300.



203

Kimmis, Jenny and Ruth Mayne, Tax Havens: Releasing the Hidden Billions for Poverty Eradication (Oxford: Oxfam International, 2000). Available at: https://policy-practice. oxfam.org/resources/tax-havens-releasing-the-hidden-billions-for-poverty-eradication114611. Kingston, Christopher. “Social Structure and Cultures of Corruption,” Journal of Eonomic Behaviour and Organisation 67 (2008): 90–102. Klitgaard, Robert. Controlling Corruption (Berkeley: University of California Press, 1991). Lessig, Lawrence. Republic Lost: How Money Corrupts Congress—and a Plan to Stop it (Boston: Hachette, 2011). Lessig, Lawrence. “ ‘Institutional Corruption’ Defined,” Journal of Law and Medical Ethics 41 (2013a): 2–4. Lessig, Lawrence. “Institutional Corruptions,” Edmond J. Safra Working Papers 1 (Cambridge, MA: Edmound J. Safra Centre for Ethics, 2013b). Available at: http://ssrn. com/abstract=2233582. Lessig, Lawrence. America, Compromised (Chicago: University of Chicago Press, 2018). Light, Donald, Joel Lexchin, and Jonathan Darro. “Institutional Corruption of Pharmaceuticals and the Myth of Safe and Effective Drugs,” Journal of Law, Medicine and Ethics, 41 (2013): 590–600. Loewenstein, George, Cass Sunstein and Russell Golman. “Disclosure: Psychology Changes Everything,” Annual Review of Economics 6 (2014): 391–419. Majeed, Rushda. “Promoting Accountability, Monitoring Services: Textbook Procurement and Delivery, Philippines, 2002–2005,” Innovations for Successful Societies, Princeton University (Princeton, NJ: Princeton University Press, 2013). Available at: https://suc cessfulsocieties.princeton.edu/sites/successfulsocieties/files/Policy_Note_ID151.pdf. May, Larry. Sharing Responsibility (Chicago: University of Chicago Press, 1992). McFerson, Hazel. “Governance and Hyper-Corruption in Resource-rich African Countries,” Third World Quarterly 30, no. 8 (2009): 1529–47. McIntyre, Peter. Water Integrity and the Human Rights to Safe Drinking Water and Sanitation (Berlin: Water Integrity Network, 2016). Available here: https://www. waterintegritynetwork.net/2016/08/22/human-rights-to-water-sanitation-integrity. McKinnon, John and Ryan Tracy. “Senate Report: Tax Move Helped Hedge Funds Save Billions,” The Wall Street Journal, July 21, 2014. Mellena, Gregory. Collective Responsibility (Amsterdam: Rodopi Press, 1997). Merry, Sally. Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006), 228–9. Meyer-Sahling, Jan-Hinrik, Christian Schuster, and Kim Sass Mikkelsen. Civil Service Management in Developing Countries: What Works? (2018). Available at: https:// nottingham-repository.worktribe.com/index.php/preview/1649245/Meyer%20Sahling %20Schuster%20Mikkelsen%20-%20What%20Works%20in%20Civil%20Service% 20Management.pdf. Mgiro, Katy and Magdalena Mis. “Kenyan Women Pay the Price for Slum Water ‘Mafias’,” Reuters, November 26, 2014. Miller, David. National Responsibility and Global Justice (New York: Oxford University Press, 2007). Miller, Jennifer and William English. “Corruption” in Henk A.M.J. ten Have and Bert Gordijn (eds.), Handbook of Global Bioethics (Dordrecht: Springer, 2013), 599–618. Miller, Richard. Globalizing Justice: The Ethics of Poverty and Power (Oxford: Oxford University Press, 2010).

204



Miller, Seumas. Institutional Corruption: A Study in Applied Philosophy (New York: Cambridge University Press, 2017) doi:10.1017/9781139025249. Miller, Seumas. “Corruption,” in Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, September 21, 2018. Available at: http://plato.stanford.edu/entries/corruption/. Mulgan, Richard. Holding Power to Account: Accountability in Modern Democracies (Basingstoke: Palgrave Macmillan, 2003). Mulgan, Richard. “Accountability Deficits” in Mark Bovens, Robert E. Goodin, and Thomas Schillemans (eds.) The Oxford Handbook of Public Accountability (Oxford: Oxford University Press, 2014), 545–59. Mungiu-Pipiidi, Alina. “Becoming Denmark: Historical Designs of Corruption Control,” Social Research 80 (2013): 1259–86. Mungiu-Pippidi, Alina. “The Quest for Good Governance: Learning from Virtuous Circles,” Journal of Democracy 27 (2016): 95–109. Nollkaemper, Andre and Dov Jacobs, “Shared Responsibility in International Law: A Conceptual Framework,” Michigan Journal of International Law 34 (2013): 359–438. Norris, Pippa. “Watchdog Journalism” in Mark Bovens, Deirdre Curtin, and Paul ‘t Hart (eds.), The Real World of EU Accountability: What Deficit? (Oxford University Press, 2010), 525–541. North, Douglas. Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990). Nye, Joseph. “Corruption and Political Development: A Cost-Benefit Analysis,” American Political Science Review 61 (1967): 417–27. O’Connor, Karl. Public Administration in Contested Societies (London: Palgrave Macmillan, 2014). Odiwuor, Kenneth. “In Africa, Corruption Dirties the Water,” The New Humanitarian, March 14, 2013. Oge, Kerem. “Transparent Autocracies: The Extractive Industries Transparency Initiative and Civil Society in Authoritarian States,” The Extractive Industries and Society, 4 (2017): 816–24. Olson, Mancur. The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965). Ornstein, Charles, Tracy Weber, and Ryan Grochowski Jones. “We Found Over 700 Doctors who Were Paid More than a Million Dollars by Drug and Medical Device Companies,” ProPublica, October 17, 2019. Available here: https://www.propublica.org/ article/we-found-over-700-doctors-who-were-paid-more-than-a-million-dollars-by-drugand-medical-device-companies. Ostrom, Elinor. “Collective Action and the Evolution of Social Norms,” Journal of Economic Perspectives 14 (2000): 137–58. Panth, Sabina. “Changing Norms Is Key to Fighting Everyday Corruption,” CommGAP Discussion Papers, Communication for Governance and Accountability Program (Washington DC: World Bank, 2011). Peters, Anne. “Corruption and Human Rights,” Basel Institute of Governance, Working Paper Series 20 (2015): 1–34. Pham-Kanter, Genevieve. “Revisiting Financial Conflicts of Interest in FDA Advisory Committees,” The Milbank Quarterly 92 (2014): 446–70. Philp, Mark. “Defining Political Corruption,” Political Studies 45 (1997): 436–62. doi:10.1111/1467–9248.00090. Philp, Mark. “Access, Accountability and Authority: Corruption and the Democratic Process,” Crime, Law and Social Change 36 (2001): 357–37.



205

Philp, Mark. “The Definition of Political Corruption” in Paul Heyward (ed.), The Routledge Handbook of Political Corruption (London: Routledge, 2015), 17–29. Pieth, Mark. Collective Action: Innovative Strategies to Prevent Corruption (St Gallen, Switzerland: Dike Publishers, 2012). Pieth, Mark. “Collective Action and Corruption,” Basel Institute on Governance Working Paper 13 (Basel, Switzerland: Basel Institute on Governance, 2012). Available at: https:// baselgovernance.org/sites/default/files/2018-12/biog_working_paper_13.pdf. Pieth, Mark. “Collective Action,” in Fritz Heimann and Mark Pieth, Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford: Oxford University Press, 2018), 235–40. Pieth, Mark. “Strengths and Limitations of Criminal Law,” in Fritz Heimann and Mark Pieth, Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford: Oxford University Press, 2018), 199–212. Pogge, Thomas. World Poverty and Human Rights (Cambridge: Polity Press, 2008). Pope, Jeremy. National Integrity Systems: The TI Source Book (Berlin: Transparency International, 1997). Pope, Jeremy. “National Integrity Systems: The Key to Building Sustainable, Just and Honest Government,” in A.J. Brown, Carmel Connors, and Brian Head (eds.), Promoting Integrity: Evaluating and Improving Public Institutions (London: Routledge, 2008). Raoul Wallenberg Institute of Human Rights and Humanitarian Law, The Nexus Between Anti-Corruption and Human Rights (Lund: Raoul Wallenberg Institute, 2018). Available here: https://rwi.lu.se/publications/nexus-anti-corruption-human-rights/. Raunch, James and Peter Evans, “Bureaucratic Structure and Bureaucratic Performance in Less Developed Countries,” Journal of Public Economics 75 (2020): 49–71. Rawls, John. A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). Rawls, John. Law of Peoples (Cambridge, MA: Harvard University Press, 1999). Research Programme Consortium for Improving Institutions for Pro-poor Growth, Beyond Institutions: Institutions and Organizations in the Politics and Economics of Poverty Reduction—a Thematic Synthesis of Research Evidence (Manchester: Research Programme Consortium on Improving Institutions for Pro-Poor Growth, 2010). Available at: https://assets.publishing.service.gov.uk/media/57a08b00e5274a31e00008e8/ 8933_Beyond-Institutions-final.pdf/. Riddell, Roger. “Navigating between Extremes: Academics Helping to Eradicate Global Poverty,” Ethics and International Affairs 26 (2012): 217–243. Rodrik, Dani. “Second-Best Institutions,” American Economic Review: Papers and Proceedings 98 (2002): 100–4. Rodrik, Dani. “What Do We Learn From Country Narratives?” in Dani Rodrik (ed.), In Search of Prosperity: Analytic Narratives on Economic Growth Princeton, NJ: Princeton University Press, 2003), 1–19. Rodrik, Dani Arvind Subramanian, and Francesco Trebbi. “Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development,” Journal of Economic Growth 9 (2004): 131–65. Rodwin, Marc. Conflicts of Interest and the Future of Medicine: The United States, France and Japan (Oxford: Oxford University Press, 2011). Rodwin, Marc. “Institutional Corruption and Pharmaceutical Policy” Journal of Law, Medicine and Ethics 41 (2013): 544–52. Rose, Richard and Aranzuzu Montero. Reducing Bribery for Public Services Delivered to Citizens (Bergen: U4 Brief, 2015). Available at: https://www.cmi.no/publications/ 5663-reducing-bribery-for-public-services-delivered-to#pdf.

206



Rose-Ackerman, Susan. Corruption and Government: Causes, Consequences and Reform, (Cambridge: Cambridge University Press, 1999). Rose-Ackerman, Susan and Tina Soreide, eds. International Handbook on the Economics of Corruption (Cheltenham, UK: Edward Elgar Publishing, 2011). Rostain, Tanina. “Sheltering Lawyers: The Organized Tax Bar and the Tax Shelter Industry,” Yale Journal on Regulation 23 (2006): 77–120. Rotberg, Robert. The Corruption Cure: How Citizens and Leaders can Combat Graft (Princeton: Princeton University Press, 2017). Rothstein, Bo. Quality of Government: Social Trust and Inequality in International Perspective (Chicago: University of Chicago Press, 2011). Rothstein, Bo and Aiysha Varraich. Making Sense of Corruption (Cambridge: Cambridge University Press, 2017) doi:10.1017/9781316681596 Russell, Hamish and Gillian Brock. “Abusive Tax Avoidance and Responsibilities of Tax Professionals,” Journal of Human Development and Capabilities 17 (2016): 278–94. Salter, Malcolm. “Crony Capitalism, American Style: What Are We Talking about Here?” Edmond J Safra Working Paper 50 (2014): 1–47. Available here: https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2513352. Sen, Amartya. Development as Freedom (Oxford: Oxford University Press, 1999). Shaxson, Nicholas. Poisoned Wells: The Dirty Politics of African Oil (New York: Palgrave Macmillan, 2007). Sikka, Prem and Mark P. Hampton. “The Role of Accountancy Firms in Tax Avoidance: Some Evidence and Issues,” Accounting Forum 29 (2005): 325–43, at 333. Sikka, Prem. “Smoke and Mirrors: Corporate Social Responsibility and Tax Avoidance,” Accounting Forum 34 (2010): 153–68, at 160–161. Sikkink, Kathryn. Evidence for Hope: Making Human Rights Work in the 21st Century (Princeton: Princeton University Press, 2017). Simser, Jeffrey. “Tax Evasion and Avoidance Typologies,” Journal of Money Laundering Control 11 (2008): 123–34. Singer, Peter. One World: The Ethics of Globalization (New Haven: Yale University Press, 2004). Sismondo, Sergio. “‘You’re Not Just a Paid Monkey Reading Slides:’ How Key Opinion Leaders Explain and Justify Their Work,” Edmond J Safra Working Paper 26 (2013): 1–29. Smiley, Marion. “Collective Responsibility,” Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, March 27, 2017. Available at: https://plato.stanford.edu/entries/collectiveresponsibility. Stalgren, Patrick. Corruption in the Water Sector: Causes, Consequences and Potential Reform. Swedish Water House Policy Brief Nr. 4. (Stockholm: SIWI, 2006). Stansbury, Neill. “Exposing the Foundations of Corruption in Construction” in Transparency International (ed.) Global Corruption Report 2005: Corruption in Construction and Post-Conflict Reconstruction (Berlin: Transparency International, 2005), 36–50. Stigler, George. “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2 (1971): 3–21. Stilz, Anna. “Collective Responsibility and the State,” The Journal of Political Philosophy 19 (2010): 190–208. Stone, Christopher. “Common but Differentiated Responsibilities in International Law,” American Journal of International Law 98 (2004): 276–301. Story, Louise and Stephanie Saul. “Towers of Secrecy: Stream of Foreign Wealth Flows to Elite New York Real Estate,” New York Times, February 7, 2015.



207

Strom, Kaare. “Parliamentary Democracy and Delegation,” in Kaare Strom, Torbjörn Bergman, and Wolfgang Müller (eds.) Delegation and Accountability in Parliamentary Democracies (Oxford: Oxford University Press, 2003), 55–106. Sumner, Andy. “Where Will the World’s Poor Live? Global Poverty Projections for 2020 and 2030,” Institute of Development Studies in Focus Policy Briefing 26 (2012): 1–5. Available at: http://www.ids.ac.uk/files/dmfile/InFocus26-Final2.pdf. Talbert, Matthew. “Moral Responsibility,” Ed Zalta (ed.), Stanford Encyclopedia of Philosophy, October 16, 2019. Available at: https://plato.stanford.edu/entries/moralresponsibility. Talbot, William. Human Rights and Human Well-being (Oxford: Oxford University Press, 2010). Tax Justice Network. Inaugural Newsletter (London: Tax Justice Network, 2003). Tax Justice Network. “The Price of Offshore,” Tax Justice Network Briefing Paper (London: Tax Justice Network, 2005). Te Lintelo, Dolf. Inequality and Social Justice Roundtable Consultation (Brighton: Institute of Development Studies, 2011). Available at www.ids.ac.uk/files/dmfile/ InequalityRoundtablereportFINAL.pdf. Thompson, Dennis. Political Ethics and Public Office (Cambridge, MA: Harvard University Press, 1987). Thompson, Dennis. Ethics in Congress: From Individual to Institutional Corruption (Washington DC: Brookings Institute, 1995). Thompson, Dennis. “Two Concepts of Corruption,” Edmond J. Safra Working Papers 16 (Cambridge, MA: Edmond J. Safra Centre for Ethics, 2013). Available at: http://ssrn. com/abstract=2304419. Tiffen, Rodney. Scandals, Media and Corruption in Contemporary Australia (Sydney: University of New South Wales Press, 1999). Transparency International. Building Integrity to Ensure Effective Water Governance (Berlin: Transparency International, 2008) Available here: https://www.transparency. org/en/publications/policy-position-03-2008-building-integrity-to-ensure-effectivewater-govern. Transparency International. Global Corruption Report: Corruption in the Water Sector (Cambridge: Cambridge University Press, 2008). Available here: https://www.transpar ency.org/en/publications/global-corruption-report-2008-corruption-in-the-water-sector. Transparency International. Global Corruption Report: Education (New York: Routledge, 2013). Transparency International. “World Water Day: Corruption in the Water Sector’s Costly Impact,” Transparency International, 21 March, 2016. Available here: https://www. transparency.org/en/news/world-water-day-corruption-in-the-water-sectors-costly-impact. Transparency International. “Global Corruption Barometer: Overview,” Transparency International, 2017. Available at: https://www.transparency.org/en/gcb/global/globalcorruption-barometer-2017. Transparency International. Global Corruption Barometer: Africa 2019, (Berlin: Transparency International, 2019). Transparency International. Global Corruption Barometer: Latin America and the Caribbean 2019, (Berlin: Transparency International, 2019). Transparency International. Global Corruption Barometer: Middle East and North Africa 2019 (Berlin: Transparency International, 2019). Transparency International. Global Corruption Barometer: Asia 2020 (Berlin: Transparency International, 2020).

208



UK House of Commons Committee of Public Accounts. Tax Avoidance: The Role of Large Accountancy Firms (London: The Stationery Office Limited, 2013). Available at: https:// publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/870/870.pdf. UNESCO-IHP. Urban Water Conflicts, Urban Water Series (Paris: UNESCO-IHP, 2012). United Nations. Transforming our World: The 2030 Agenda for Sustainable Development (New York: United Nations, 2015). Available at: https://sdgs.un.org/2030agenda. United Nations. “Collective Action and Public–Private Partnerships against Corruption,” December, 2019. Available here: https://www.unodc.org/e4j/en/anti-corruption/module5/key-issues/collective-action-and-public-private-partnerships-against-corruption.html. United Nations. UN World Water Development Report 2019: Leaving No One Behind (Paris: UNESCO, 2019). Available at: https://en.unesco.org/themes/water-security/wwap/ wwdr/2019#download. United Nations. “Opening Special Session on Corruption, General Assembly Adopts Political Declaration with Roadmaps to Help Countries Tackle Bribery, MoneyLaundering, Abuse of Power,” United Nations, June 2, 2021. Available here: https:// www.un.org/press/en/2021/ga12329.doc.htm. United Nations. Transforming our World: The 2030 Agenda for Sustainable Development (New York: United Nations, 2015). Available at: https://sdgs.un.org/2030agenda. United Nations. “Collective Action and Public–Private Partnerships against Corruption,” December, 2019. Available here: https://www.unodc.org/e4j/en/anti-corruption/mod ule-5/key-issues/collective-action-and-public-private-partnerships-against-corruption. html. United Nations. UN World Water Development Report 2019: Leaving No One Behind (Paris: UNESCO, 2019). Available at: https://en.unesco.org/themes/water-security/wwap/ wwdr/2019#download. United Nations. “Opening Special Session on Corruption, General Assembly Adopts Political Declaration with Roadmaps to Help Countries Tackle Bribery, MoneyLaundering, Abuse of Power,” United Nations, June 2, 2021. Available here: https:// www.un.org/press/en/2021/ga12329.doc.htm. United Nations Development Programme. Fighting Corruption in the Education Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available at: https://anticorruption.org/fighting-corruption-in-the-education-sector-methods-tools-and-goodpractices-2/. United Nations Development Programme. Fighting Corruption in the Health Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available at: https://www.undp.org/ publications/fighting-corruption-health-sector.United Nations Development Programme. Fighting Corruption in the Water Sector: Methods, Tools and Good Practices (New York: UNDP, 2011). Available here: https://www.undp.org/publications/fighting-corruptionwater-sector.United Nations Development Programme. A Transparent and Accountable Judiciary to Deliver Justice for All (Thailand: UNDP, 2016). Available at: https://www.u4. no/publications/a-transparent-and-accountable-judiciary-to-deliver-justice-for-all.pdf. United Nations Information Service. “Real Change Generated by the Implementation Review Mechanism for the Anti-corruption Convention”. United Nations Information Service, December 19, 2019, available at: https://unis.unvienna.org/unis/en/pressrels/ 2019/uniscp1089.html. United Nations Office on Drugs and Crime. United Nations Convention against Corruption (New York: United Nations, 2003). Available at: https://www.unodc.org/unodc/en/ treaties/CAC/.



209

US Department of Justice. “KPMG to Pay $456 Million for Criminal Violations,” Department of Justice, August 9, 2005. Available at: https://www.justice.gov/archive/ opa/pr/2005/August/05_ag_433.html. US Government Accountability Office. Abusive Tax Avoidance Transactions (Washington, D.C.: GAO, 2011). US Senate Permanent Subcommittee of Investigations. US Tax Shelter Industry: The Role of Accountants, Lawyers and Financial Professionals (Washington D.C.: US Government Printing Office, 2003). Available at: https://www.govinfo.gov/content/pkg/CPRT108SPRT90655/pdf/CPRT-108SPRT90655.pdf. US Senate Permanent Subcommittee on Investigations. The Role of Professional Firms in the US Tax Shelter Industry (Washington, DC: US Government Publishing Office, 2005), 93. Available at: https://www.govinfo.gov/content/pkg/CRPT-109srpt54/html/CRPT-109srpt54. htm. US Senate Permanent Subcommittee on Investigations. Tax Haven Abuses: The Enablers, the Tools, and Secrecy (Washington, D.C.: US Government Printing Office, 2006), 113. Available at: https://www.hsgac.senate.gov/subcommittees/investigations/library/files/ report-tax-haven-abuses-the-enablers-the-tools-and-secrecy/. US Senate Permanent Subcommittee on Investigations. Dividend Tax Abuse: How Offshore Entities Dodge Taxes on US Stock Dividends (Washington, D.C.: Government Printing Office, 2008). Available at: https://www.govinfo.gov/content/pkg/CHRG-110shrg45575/ html/CHRG-110shrg45575.htm. US Senate Permanent Subcommittee on Investigations. Offshore Tax Evasion: The Effort to Collect Unpaid Taxes on Billions in Hidden Offshore Accounts (Washington, D.C.: Government Printing Office, 2014). Available at: https://www.hsgac.senate.gov/sub committees/investigations/hearings/offshore-tax-evasion-the-effort-to-collect-unpaidtaxes-on-billions-in-hidden-offshore-accounts/. Uslaner, Eric. Corruption, Inequality and the Rule of Law (Cambridge: Cambridge University Press, 2008). van der Does de Willebois, Emilie et al. The Puppet Masters: How the Corrupt Use Legal Structures to Hide Stolen Assets and What to Do About it (Washington D.C.: The International Bank for Reconstruction and Development/The World Bank, 2011). Available at: http://hdl.handle.net/10986/2363. van der Gaag, Nikki. Because I am a Girl: The State of the World’s Girls 2020—Digital and Urban Frontiers: Girls in a Changing Landscape. (Woking: Plan International, 2010). Available here: https://plan-international.org/publications/state-worlds-girls-2010-dig ital-and-urban-frontiers. Vogl, Frank. Waging War on Corruption: Inside the Movement Fighting the Abuse of Power (New York: Rowman and Littlefield, 2016). Wales, Joseph and Leni Wild. The Political Economy of Roads: An Overview and Analysis of Existing Literature (London: Overseas Development Institute, 2012). Available at: https://odi.org/documents/3887/8173.pdf. Warren, Mark. “What Does Corruption Mean in a Democracy,” American Journal of Political Science (2004), 48(2): 328–43. doi:10.2307/1519886. Water Integrity Network. Water Integrity Global Outlook (Berlin: Water Integrity Network, 2016). Available at: https://www.waterintegritynetwork.net/wigo/. Water Integrity Network. Engaging with partners for change: Adapted strategy 2020–2022 (Berlin: Water Integrity Network, 2019). Available here: https://www.waterintegritynetwork. net/annual-reports/.

210



Wells, Jill. “Political Economy and the Construction Sector in Angola”. Draft paper (Washington D.C.: World Bank, 2011). Wells, Jill. Corruption in the construction of public infrastructure: Critical issues in project preparation (Bergen: Chr. Michelsen Institute, 2015). Available at: https://www.u4.no/ publications/corruption-in-the-construction-of-public-infrastructure-critical-issues-inproject-preparation-1. Wenar, Leif. Blood Oil: Tyrants, Violence, and the Rules that Run the World (New York: Oxford University Press, 2016). Whyte, David. How Corrupt is Britain? (London: Pluto, 2015). WIN/Gallup International. Corruption Tops the List as the World’s Most Important Problem According to WIN/Gallup International’s Annual Survey (Bulgaria: Gallup International Center for Public and Political Studies, 2014) available here: https://www.gallupinternational.bg/en/32507/corruption-tops-the-list-as-the-worlds-most-important-problemaccording-to-win-gallup-internationals-annual-poll/. World Bank Institute. Fighting Corruption Through Collective Action, A Guide for Business (Washington, D.C.: The International Bank for Reconstruction and Development/ The World Bank, 2008). Available at: https://www.globalcompact.de/wAssets/docs/ Korruptionspraevention/Publikationen/fighting_corruption_through_collective_action.pdf. World Bank. “When corruption is the norm,” World Development Report (2015): 60–1. Available at: https://www.worldbank.org/content/dam/Worldbank/Publications/WDR/ WDR%202015/Spotlight-1.pdf. World Health Organisation. “Drinking Water,” World Health Organisation, June 14, 2019. Available here: https://www.who.int/news-room/fact-sheets/detail/drinking-water. Wrong, Michela. It’s Our Turn to Eat: The Story of a Kenyan Whistle-blower (London: Harper-Collins, 2009). Young, Iris Marion. Responsibility for Justice (Oxford: Oxford University Press, 2011). Ypi, Lea. “Cosmopolitanism Without If and Without But” in Gillian Brock (ed.), Cosmopolitanism versus Non-Cosmopolitanism: Critiques, Defenses, Reconceptualizations (Oxford: Oxford University Press, 2013), 75–91. Zhang, Sheldon and Samuel Pineda. “Corruption as a Causal Factor in Human Trafficking” in Dina Siegel and Hans Nelen (eds.), Organized Crime: Culture, Markets and Policies (New York: Springer, 2008).

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. accountability 47–9, 66–8, 70–3, 75, 101–6, 115–16, 143, 173 accountants 119–34 Ackerly, Brooke 41n.37 active citizenship 40–1, 75, 136–7 Afrobarometer 166–7 Altria (Phillip Morris) 5–6 American Crystal Sugar 5–6 American Institute of Certified Public Accountants 128–30 Andersen, Morten Koch 61n.27 Appiah, Kwame Anthony 166n.1 Arab Spring 1 Bank of America 119–20, 125–6 Barclay’s 125 Bartels, Larry 6 basic infrastructure 18, 30–1, 37, 42, 101–3, 173 basic liberties 37, 42, 53–4, 138–9 basic needs 34–5, 37, 42–3, 52, 112–13, 116–17, 138–9 Bazerman, Max 14n.39 Beetham, David 186–9 Blackwater 185n.9 Beitz, Charles 54, 56n.16 Bouazizi, Mohammed 1 Bovens, Mark 70, 71n.20 Buchanan, Allen 37n.26 bribery 4, 12–13, 15, 34–5, 47, 61–2, 80–3, 103, 151–3, 166–7, 179 Brock, Gillian 15n.42, 33n.7, 34, 37–8, 40, 53, 60, 160n.34 Brown & Wood 124, 126–7 bureaucracy 67–70 Burke, Edmond 109n.3 campaign contributions 5–7, 32, 76–7, 88, 93, 102, 187 Caterpillar 122, 126 Cayman Islands 119, 123–5 Ceva, Emanuela 73n.27, 91n.7, 149n.18, 181n.4 Chang, Ha-Joon 67n.6 Cheyes, Sarah 42n.39, 53n.8

change agents 48–9, 55–6, 80 Chinese guanxi system 15, 166 Christensen, John 191 Citigroup 126 civic participation 40, 48–9, 88, 100–1, 145–6, 178 Clark, Anne Marie 59n.21 Cockcroft, Lawrence 12n.36, 91n.7, 99n.33, 160n.34 codes of ethics 78–9 collective action 79–84, 98–106, 129–75 Collier, Paul 39n.31 Committee on Economic, Social and Cultural Rights 63 Committee on the Elimination of Racial Discrimination 63 Committee on the Rights of the Child 63 compatriot favoritism 52–4, 60 conflicts of interest 8–10, 14, 66, 78–9, 180, 185 construction corruption 101–6 Construction Sector Transparency Initiative (CoST) 13n.38, 101–6, 157 controlling corruption 65–85. see also counter-corruption interventions corruption and business 5–8, 94, 119–20, 145, 151, 153, 190 and capture of healthcare professionals 8–10 causes of 12–15, 65–85, 113–34 concept of 26–8, 179–96. see also conceptual difficulties conceptual difficulties 27–8, 164, 180, 186, 193–5 cost of 29, 33, 99–102, 105, 112–15, 123–4, 193 in the construction industry 20, 101–6, 146, 155–7 and culture 15, 164–75 definitions of 27, 179–96 and democracy 5–8, 38–9, 71–2, 88–9, 93, 183, 186–7 and drug trials 10–11 and education 2, 34, 168–9

212



corruption (cont.) and extractive industries 98–100 and the financial sector 78, 108, 112–15, 119–23 forms of 3–12, 183–5 as a global issue 2–3, 30, 108, 173 and global justice 16, 30–50, 175 and healthcare 2, 4, 10–12, 33, 43, 96n.22 and human rights 34, 43–4, 61–4, 141 international law on 88–97 and the legal sector 73 and loss of trust 6 and lobbying 7 and medical knowledge 10–12 in the mining industry 98–100 and normative theory 16–26 in the pharmaceutical industry 5, 7–12, 76–7 in the political sphere 181–96 and public policy 35–6, 76, 88–107 in the public sector 12–13, 36, 40, 87, 144 rationale behind 6–7, 12–15, 36, 79–80, 152–3, 166–7, 190–2 reduction capacity 108, 146–7, 149–55, 157 in the shipping industry 151–2 in sanitation 17–18, 32–6 in taxation 108–34 in the water sector 17–18, 30–6, 46–8 counter-corruption interventions 45–50, 135–63 anti-corruption campaigns 81–4 codes of ethics 78–9 collaborations 81–4 collective action 40–1, 66, 79–85, 149n.18 collective action problem 79–82, 149–54, 149n.18, 165, 167. see also Multistakeholder Initiatives counter-corruption institutions 39, 46–7, 67–70, 76, 90 criminalization 45–6, 67, 73, 87, 95–6, 142–3, 145–7, 150n.20 disclosure 74–5, 98–9, 104–5, 132–3 ethics training 47–8, 66, 77–9, 144–5 good institutional design 41, 66, 77–9 improved governance 45–6, 66–9 independent oversight 11–12, 47, 79, 104, 151–3, 156–7 institutional design 74–5 integrity pacts 45–7, 104, 151 international partnerships 37, 48–9, 89, 153–4 knowledge sharing 48–9, 90 monitoring 79 pathways for change 48–50 prevention 45–6, 88–9, 92–5, 145 public scrutiny 73, 75, 104, 151 sanctions 71, 73 social action coalitions 66, 79–84, 145–6, 169

social movements 80, 94–5, 145–6, 153, 167–8 training 42, 66, 77–8, 168–9 credit-rating systems 14, 78 cultural pluralism 15, 70 cultural differences 15, 166–7 cultural norms 15, 164–5, 167–9 cultural sensitivity 138–42, 171–4 problem of 15, 135, 166–75 Curtin, Deirdre 70 Darro, Jonathan 10–12 Deveaux, Monique 41n.37 Deloitte 120–1, 126–8 Deutsche Bank 125, 127 effective states 67–70 Eisinger, Jesse 74n.29 electoral fraud 183 Elliott, Kimberly 44n.51 engaged political philosophy 178 Enron 78 Ernst & Young (EY) 120–2, 126–8 Ethiopia 105 extortion 3–4, 35–6 embezzlement 36 Extractive Industries Transparency Initiative (EITI) 98–101 extremism 43–4 Ferretti, Maria Paola 73n.27, 91n.7, 149n.18, 181n.4 Fifth Pillar Campaign 81–2, 168–9 financial secrecy 121–2, 125, 127, 132, 191 Financial Transparency Coalition 114–15 Fitch Ratings 14 Food and Drug Administration (FDA) 9, 11–12, 96n.23 food security 34 fraud 3–4, 109–10, 123–4, 180 free-rider problem 149–50 French, Peter 149n.18 gender inequality 32–6, 173 Ghana 126–7 Global Financial Crisis 14, 102 global justice 15–26, 37–44, 52–7, 175–8 decent life standard 37 fair terms of cooperation 37–8, 60, 146, 154–5 and human rights 54, 173 and public institutions 37–8, 41–3, 135–6, 138–9 theory and framework 37–42, 52–4, 138–9, 176–8 see also corruption and global justice



213

globalization 114–16 global security 42–4 Goldman Sachs 5–6, 94n.19 Goodin, Bob 71n.20, 136–7, 137n.2 grand corruption 4, 103 Grant, Ruth 70, 71n.19 Green, Duncan 33n.7, 40n.36 guanxi system 15, 166 Guerin, Donna 123–4, 123n.50, 126–7

International Council on Human Rights 61n.27 International Council on Mining and Metals 99n.33 International Covenant on Civil and Political Rights 54 International Covenant on Economic, Social and Cultural Rights 54 international development 38–9, 41–2, 88–9 international state system 53

Haliburton 185n.9 Hanlon, Michelle 110n.4 t’ Hart, Paul 70 Heitzmann, Shane 110n.4 Hindess, Barry 44n.51 Holmes, Leslie 12n.36, 65–6, 193 The Honest Leadership and Open Government Act 94n.18 human rights 17–23, 30–6, 54–7 and accountability 55 as a cultural practice 56–7 as an instrument for change 54–7, 139–40 as international law 56–8, 63 and public institutions 55–6, 139 as public law 54, 58 and responsibilities 54, 60–1, 140 and self-determination 60, 165 and state responsibility 40, 140–1 see global justice and human rights human rights practice 54–9 Human Rights Commission 58–9 HVB 127

Janaagraha 82–3, 168–9 Jenkins & Gilchrist 123–4 Johnston, Michael 65–6, 80n.55 journalism freedom of the press 44 limitations of 72–3 watchdog journalism 72 justice see global justice, injustice

Ibrahim Index of African Governance 172–4 illicit financial flows 14–15, 43, 108, 114–15, 131–2 impartiality 40, 68–9 imperialism 135–6 India 81–2, 168–9 bribery 81–2 Public Distribution System 81 see also Fifth Pillar, Janaagahra individual vs institutional corruption 186–9 Indonesian upeti system 15, 166 inequality 38–9, 75 see also gender inequality infrastructure corruption 101–6 Infrastructure Transparency Initiative see Construction Sector Transparency Initiative Injustice 1–3, 15–26, 30–2, 37–44, 135–63, 175–96 international borrowing privilege 14–15 international cooperation 48–9, 142–3

Kapundeh, Sahr 65–6, 80n.55 Kazakhstan 99–100 Keohane, Robert 70, 71n.19 Kerry, John 42, 50 Klitgaard, Robert 44n.51, 91n.7 KPMG 120–2, 124, 126–8 lawyers 119–34 legitimacy conditions 59–63 Leham Brothers 119–20, 125 Lessig, Lawrence 91n.7, 187–8 Lexchin, Joel 10–12 Light, Donald 10, 41 lobbying 5–7, 32, 132, 145 revolving door 5, 7–8, 94n.19, 181–2, 185 Lockheed Martin 5–6 Majeed, Rushda 163n.35 May, Larry 149n.18 management entrenchment 184 Malawi 106 Maples & Calder 123–4 Maritime Anti-Corruption Network 151–2 match fixing 180, 195–6 Mellena, Gregory 149n.18 Merrill Lynch 125 Merry, Shelly 55n.13, 56–7 migration 44, 52–3 Miller, David 136–7, 158n.31 Miller, Richard 158n.31 Miller, Seumas 91n.7, 149n.18, 179, 194 mining corruption 98–101 Mo Ibrahim 171–4 money laundering 145–6

214



Moody’s 14 moral equality 67–70, 138–9 Morgan Stanley 125 motivated blindness 14, 78 Mulgan, Richard 71 Multi-stakeholder Initiatives 45–6, 49, 98–106, 139–40, 146, 149, 153–5, 177 see also Construction Sector Transparency Initiative, Extractive Industries Transparency Initiative, Maritime Anti-Corruption Network, Open Contracting Partnership, Water Integrity Network Mungiu-Pippidi, Alina 80n.54, 166–7 national borders 52–3 nepotism 3–4, 36, 68, 166–7, 180, 184 New Zealand 185 non-government organizations 139–40 see multi-stakeholder initiatives Nigeria 99–100 Nye, Joseph 91n.7 obstruction of justice 95, 180 Oge, Kerem 154n.28 Open Contracting Partnership 106 Open Government Partnership 106, 151n.23 oppression 154 Ostrom, Elinor 83–4 Ozler, Serife Ilgu 59n.21 Peith, Mark 73n.26 personal gain 189 Peters, Anne 61n.26 petty corruption 4, 82–3 Pham-Kanter, Genevieve 9, 96n.23 Philp, Mark 91n.7, 149n.18, 181–2, 189 Physician Payments Sunshine Act 10 Pogge, Thomas 14–15nn.40–42, 97n.25 political authority see state legitimacy political corruption 5–8, 13, 180, 182–9, 185n.9, 192 defining 180–2 and injustice 179–96 political donors 5–7, 13 vs political dysfunction 194 political interference 3–4, 180, 183 poor-empowering justice 38–42. see also global justice Pope, Jeremy 65–6, 71n.21, 91n.7 poverty 38–41, 88–9, 98, 173 global poverty 32–6, 38–42, 138 as a global injustice 32 see also global justice

power structures 37–9, 41, 138, 154, 181 PriceWaterhouseCoopers (PwC) 117, 122, 125–6, 128 procurement 90, 93–4, 102–3, 145, 183–4 see also water procurement professional corruption 30–1, 119–34 see responsibility, professional see tax professionals professional integrity 129–34 pro-poor policy 32, 39, 41–2 public corruption 30–1, 189 public finance management 89–90, 93–4, 112–13, 145, 173 public institutions see global justice and public institutions see counter-corruption institutions public private initiatives 151 public trust 6, 40, 42–3, 73, 75, 187 Raoul Wallenberg Institute of Human Rights and Humanitarian Law 61n.26 Rawls, John 37n.24, 70n.14, 173–4 Riddell, Roger 38n.28, 39n.32 real estate 132–3 recovery of state assets 90–1, 95 regulatory capture 79 Renaissance Technology Corp 125 responsibility, for addressing corruption 15–26, 135–63 action responsibility 136–7 assigning of 129–34 collaboration 135–63 collective responsibility. see collective action creating capacity 149–63 professional responsibility 77–8, 108–9, 115–34, 147–8, 155–63, 175–8 remedial responsibility 117–34 shared responsibilities 138–42 specialist responsibility 155–7, 177 state responsibilities 39, 56, 60–1, 88–9, 93, 138–40, 142–7 theory of 136–8, 158–60 Rodwin, Marc 75n.36 Rotberg, Robert 12n.36, 43n.42 Rothstein, Bo 53n.9, 61n.27, 68–9, 80, 91n.7, 94n.13, 167n.5 Rose-Ackerman, Susan 91n.7 rule of law 42–3, 88–9, 173 Russell, Hamish 108n.1 Russian blat system 15, 166 safe water 32–6, 46–8 Salter, Malcolm 92n.8, 95n.20 Schillemas, Thomas 71n.20 Schmidtz, David 87n.2

 self-determination, justification for 52–4 shadow economy 13 self-determination 52–4, 60 justification for 53 Sen, Amrtya 39n.31 Sikkink, Kathryn 59n.21 Singer, Peter 14–15nn.40–42 Sismondo, Sergio 8–9 Smiley, Marion 137n.1, 149n.18 social action coalitions 81–4 social cohesion 42–3, 193 social contract 40 social welfare 40 Standard and Poor’s 14 state capture 3–4, 14–15, 96, 184 state legitimacy 40, 69, 108, 140–1, 143 conditions of 69 state responsibilities 52–4, 59–63. see also responsibility state system legitimacy 59–63. see also state legitimacy Stigler, George 94n.15 Stilz, Anna 137n.2 Stone, Christopher 137n.1 Strom, Kaare 71 Sustainable Development Goals 30–6, 62, 101–6 Sutherland Asbill & Brennan 124 Switzerland 122, 125–6 Talbert, Matthew 137n.1 targeting corruption. see counter-corruption interventions tax abusive avoidance of 108–17, 110n.7 evasion 109–10 havens 13, 110, 115 institutions 112–13, 115–17 legislation 109, 113n.13, 116, 123–4, 128, 130 professionals 108–34, 147–8 accountants 78, 89, 120–3, 126–8, 130 financial advisors 114, 116, 125–6 lawyers 109, 114–16, 119–20, 123–7, 132 responsibilities for 117–34 revenue 40, 98–100, 110, 112–13 sheltering 110, 122–3 Tax Justice Network 115n.14 telltale heart effect 74 Tenbrunsel, Anne 14n.39 tendering 36, 47, 103–4 theft of state assets 183 Thompson, Dennis 71n.20, 91n.7, 186–8 transfer pricing 114–15

215

Transparency International 41, 91n.7 transparency 47, 66, 68–9, 74–5, 98, 101–6 corporate 145 government 66, 90 Trump, Donald 183 Tunisian Revolution 1 UBS 125, 127 United Kingdom Parliamentary Expenses Scandal 183–4, 188 United Nations 34, 55, 139 United Nations Convention Against Corruption 19, 27, 61–2, 88–97, 100–1, 142–8, 170–2 United Nations Development Programme’s Anti-Corruption Resource Centre 176 United Nations Global Compact 49n.58 United Nations Office on Drugs and Crime 97 Universal Declaration of Human Rights 54, 61–2, 139–40 US Congress 5–8, 12, 186–7 US Inland Revenue Service 110n.4, 115 US Treasury 123–4, 128–9 Varraich, Aiysha 61n.27, 91n.7, 167n.5 veil of ignorance 53–4 virtue clubs 151 see also multi-stakeholder initiatives Vogl, Frank 46n.54, 160n.34 Warren, Mark 91n.7 water infrastructure 30–1, 33, 47 procurement 34–6, 47 supply chain issues 34–5, 47 water poverty 32 water rights 30–1, 34 water stress 30–1 Water Integrity Network 46–9, 136–7 Wegener, Anne-Christine 12n.36, 91n.7 Wells, Jill 12n.36 Wenar, Leif 14–15nn.40–42, 97n.25 whistleblowing 77–8, 95 whitewashing 184 WorldCom 126 World Economic Forum Partnering Against Corruption Initiative 151n. 23 Wyly, Charles 119–20, 123–6 Wyly, Sam 119–20, 123–6 Young, Iris Marion 24n.49, 136–7, 158–9, 158n.30 Ypi, Lea 53n.7 Zuma, Jacob 183–4