Norm entrepreneurship and legal frameworks against corruption: human rights perspectives in international law

ABSTRACT

The study of corruption as a violation of human rights has been growing since the adoption of the United Nations Convention Against Corruption in 2003, as exemplified by the adoption of the United Nations General Assembly political declaration regarding commitment to effectively prevent and combat corruption in 2021. Corruption has devastating impacts on human rights, but it has not yet been legally established as a violation of human rights. The current scholarship on corruption as a violation of human rights is heavily dominated by legal research; therefore, the state-of-the-art of this article is the combination of international relations and legal theory. This article analyses the work of the norm entrepreneur in transforming corruption as a violation of human rights from an emerging norm into a legal norm. The concept of international norm dynamics is utilized to assess the stage of norm development. Interactional legal theory is used as a guide to suggest that the norm entrepreneur focuses on the subsequent norm entrepreneurship based on the standard of legality. This article argues that the transformation of an emerging norm into a legal norm is possible; however, its feasibility depends on the continuous work of the norm entrepreneur to fulfil the standard of legality.

KEYWORDS:

• Corruption as a violation of human rights
• norm entrepreneur
• international norm dynamics
• interactional legal theory
• the standard of legality

I. Introduction

The effort to link corruption and human rights in the notion of corruption as a violation of human rights has been proposed by legal scholars.¹ Among the arguments, Peters asserted that reconceptualizing corruption as a violation of human rights is possible but there is a difficult doctrinal problem that arises.² This entails the identification of the link between the corrupt conduct of the government official, whether through commission or omission, and the injury of the victim that is caused by the corrupt conduct.³ Boersma contributed to answering the doctrinal problem by providing clarification on the connection between corruption and human rights in the form that corruption may in itself constitute a violation of human rights.⁴ She suggested that in the examination of a concrete case of corruption, the determination should be made on whether corruption violates the tripartite State obligations and various components of human rights standards set by the International Human Rights Institutions (IHRIs) to discover how corruption violates human rights.⁵ Juwita continued Boersma's research and found that there is an evolution in the normative outputs of the IHRIs that mention corruption, these normative inputs have been increasing in number and also richer in content.⁶ However, there are no normative outputs that explicitly addressing corruption as a violation of human rights.⁷

As a result of scholars' efforts, much debate has been generated among several international actors, namely, states, international and regional human rights institutions, and non-governmental organizations (NGOs). Boersma, Peters, and other scholars have influenced the adoption of normative outputs from international actors. For example, the Inter-American Commission on Human Rights (IACHR) has contributed to clarify the connection between corruption and human rights assessed by the Inter-American standards by drafting a document.⁸ The IACHR stated that if States fail to do everything in their power to eradicate corruption, they also fail to comply with their international obligations, and are therefore duty-bound to make reparation for the damage wrought.⁹ The rationale behind the establishment of this normative output is the understanding of the IACHR that international human rights law (IHRL) is a dynamic body of norms that evolves to confront the challenge of ensuring that all individuals can fully exercise their fundamental rights and freedoms.¹⁰ In the context of anti-corruption, the IACHR argues that combating corruption is a challenge that requires updating the interpretation of international instruments.¹¹ This process has evolved into the creation of an emerging norm of corruption as a violation of human rights. However, this emerging norm is facing various legal questions concerning its clarity and contextualization, inter alia, under what conditions corruption can constitute a violation of human rights, and how the judicial institutions, whether at the international, regional, and domestic levels, can clarify this in their respective judgments. The problem is also exacerbated by the difficulty to adjudicate conducts that violates economic, social, and cultural rights and the fact that corruption is not always criminalized even though the UNCAC has been enforced since 2003.

Due to the complexity of the challenges that the norm of corruption as a violation of human rights is facing, this research aims to study the progress of the transformation of the notion from an emerging norm into a legal norm through the lens of constructivism in international relations (IR) and law. The constructivist approach in IR will utilize the norm entrepreneurship concept, while the constructivist approach in legal theory will utilize interactional legal theory. The constructivist approach to IR theorizes that international norms are subject to continuous change.¹² Actors who actively propose the transformation of social norms are called norm entrepreneurs. Norm entrepreneurship looks at agents (individuals, states, or societal actors) acting as ‘norm entrepreneurs’, mobilizing support for particular standards of appropriateness and persuading states to adopt new norms.¹³ Finnemore and Sikkink established the framework to map the stages of evolution of norms from norm emergence, norm cascade, and norm internalization.¹⁴ To bridge the constructivism approach from IR to legal theory, Brunnée and Toope explain that emerging norms can evolve into legally binding norms when this norm satisfies the standard of legality, as explained in their interactional legal theory.¹⁵

This paper will analyse the efforts made by the norm entrepreneur to transform¹⁶ the emerging norm of corruption as a violation of human rights into a legally binding norm by firstly explaining the norm entrepreneurship concept and interactional legal theory as the framework of this paper. Secondly, the paper will assess the efforts of the norm entrepreneur to develop the proposed norms through the normative documents that they have produced. The norm entrepreneur that is selected for this study is the Special Rapporteur on Corruption and Its Impact to the Full Enjoyment of Human Rights, in Particular, Economic, Social, and Cultural Rights (the SR on Corruption). Finally, the paper will analyse the current normative outputs of the norm entrepreneurial works of the SR on Corruption by using interactional legal theory to predict the evolutionary stage of the proposed norm to become a legally binding norm. This will allow us to test whether the transformation has satisfied the standard of legality, and if it has not yet satisfied the standard of legality, what can be suggested to the norm entrepreneurs to achieve it. These suggestions will be beneficial for the norm entrepreneurs to further advance their strategies to achieve the transformation of an emerging approach to a legally binding norm. This legally binding norm will be the strongest form of recognition to incorporate the human rights framework into strategies designed to combat corruption.

From the de lege ferenda perspective, the transformation into a legally binding norm addressing corruption as a violation of human rights is deemed the subsequent nexus between anti-corruption and human rights. This will be realized when the legal questions that arise from the transformation of this norm can be answered. Even though the existence of a legally binding norm might not guarantee maximum protection and realization of human rights,¹⁷ such a norm offers stronger enforcement and serves as the basis for legal entitlement of human rights against corruption. The distinct feature of legally binding norms lies in the power of adjudication and enforcement where the victims of corruption can demand justice in the most concrete form, such as compensation. The norm entrepreneur should refer to the standard of legality to transform the norm into a legally binding norm. One example to illustrate that a step has already been taken to transform this norm is the adoption of a political declaration by the United Nations General Assembly (UN GA) that stated the pledge to prevent and combat corruption with regard to and respect for all human rights.¹⁸ This is an example of how the correlation between human rights and anti-corruption trajectories has been solidified. The proposed norm of corruption as a violation of human rights will be the connector between the two trajectories.

This research does not propose to establish the right to be free from corruption because even though several scholars have started the discourse about it, this discourse remains a difficult challenge. The content of the emerging norm based on this research focuses on the norm entrepreneur's efforts to identify which corrupt conduct could be classified as a violation of human rights based on international human rights law and interpretation of the IHRIs, judges, academics, and activists.

II. Understanding the dynamic and change in the life cycle of a norm: combining norm entrepreneurship and interactional legal theory

A. The life cycle of a norm under constructivism: what is a norm entrepreneur?

A norm is defined as a standard of appropriate behaviour of actors with a given identity.¹⁹ Finnemore further defined a norm as a rule-like prescription that is both perceptible to a community of actors and which makes behavioural claims upon those actors.²⁰ Hoffman also points to social norms' aspects of social structure that emerged from the actions and beliefs of actors in specific communities; norms shaped those actions and beliefs by constituting actors' identities and interests.²¹ In general, according to scholars and policy-makers, norms are defined as standards for state behaviour.²² Johnstone wrote that social constructivists have clarified norms as collective expectations for the proper behaviour of actors with a given identity.²³ Wiener defined the stakeholders as ‘individuals and groups who are subject to or affected by any kind of relationship of power that governs their action coordination, yet who simultaneously turn and call this practice of governance and seek to contest, negotiate, and change it’.²⁴

Under the constructivism umbrella, Finnemore and Sikkink proposed the concept of the life cycle of norms to show how agreement among a critical mass of actors on an emergent norm can create a tipping point after which agreement becomes widespread in many empirical cases.²⁵ There are three stages in the norm ‘life cycles’; the first is the ‘norm emergence’, the second stage is the ‘norm acceptance’ or ‘norm cascade’, and the third stage is the ‘norm internalisation’.²⁶ The norm entrepreneurs play a pivotal role in the norm emergence where they persuade a critical mass of states (norm leaders) to embrace new norms.²⁷ The second stage is when the norm leaders attempt to socialize with other states to become norm followers.²⁸ If the norm leaders are successful in socializing the norm to the norm followers, the norm will subsequently cascade through the rest of the states.²⁹ The third stage is norm internalization where the norm acquires a-taken-for-granted quality.³⁰

Norm entrepreneurs are defined as agents who have strong notions about appropriate or desirable behaviour in their community.³¹ Finnemore and Sikkink argued that norm entrepreneurs and the organizational platforms of norm entrepreneurs are two elements that are common in the successful creation of most new norms.³² Norm entrepreneurs construct cognitive frames as an essential component in their political strategies.³³ The norm entrepreneurs use the logic of appropriateness, which is characterized by the prior norms to promote the new norms.³⁴ Finnemore and Sikkink explained that the institutionalization of the norm is the threshold of transformation of an emergent norm to an accepted norm.³⁵ Institutionalization contributes to the clarification of the emergent norm concerning what the norm is and what constitutes a violation of it through public debates.³⁶ Moreover, institutionalization provides a possibility of transforming from norm emergence to norm cascade, and subsequently internalization of it.³⁷

Finnemore and Sikkink explained the intrinsic characteristics of norms by conducting a literature review of the previous scholars.³⁸ They divided the scholars into those who stress the formulation of the norm (its clarity and specificity) and those who stress the substance of the norm and the issues it addresses (its content).³⁹ Based on their literature review, norms that have universal values, which resonate with basic ideas of human dignity, and lead to moral progress are considered to be intrinsic qualities that are morally compelling to be promoted.⁴⁰

The legalization approach views the development of international rules, both hard and soft, as a matter of regime choice or institutional design based on interactions.⁴¹ This approach is complemented by a constructivist approach to international norms by including the idea of ‘tipping points’ and the notion of ‘norm entrepreneurs’.⁴² This group of actors and their contributions to the legalization of international norms makes it challenging to predict the future of a norm. As Henkin explained, general law depends on consensus, and new universal law, which can only come about through long, gradual, uncertain ‘accretion’ by practice and acquiescence, or through multilateral treaties that are difficult to negotiate and more difficult to get accepted.⁴³

The use of constructivism in this paper is an attempt to understand the development of norms in international law, as contextualized in the case of human rights and anti-corruption, which will enrich both fields' scholarship. The constructivist approach to the norm entrepreneurship concept can help to explain the transformation of corruption as a violation of human rights from an emerging norm into a legal norm. There has been limited research on the use of IR in answering questions that cannot be explained only by the use of legal theory. The combination of both will be beneficial to explain the reality, context, and possibility of the transformation.

B. Interactional legal theory: Lon Fuller's standard of legality

Kratochwil argued that law is always part of a political project that connects the present via the past to a future utopia.⁴⁴ Therefore, understanding the law as merely an instrument for regulating present interferences and inevitable conflicts among self-interested actors limits the law's potential to make meaningful contributions to individual and collective life.⁴⁵ In a similar tone, Landefeld highlighted that the doctrinal legal approach might fail to understand the variety of non-legal factors and dynamics that contribute to creating and shaping international law because of its conceptual and methodological limits.⁴⁶ This is in contrast to the constructivist approach, which has a conceptual understanding that international law is a broad social phenomenon that is deeply embedded in non-material factors and its creation comes from social processes.⁴⁷ The constructivist approach examines the construction of international law and notes that it does not begin with the law's adoption and implementation, but rather relies on an interpretation of reality that precedes its creation.⁴⁸

The inclusion of reality as part of the construction process makes the boundaries between ‘law and other forms of social normativity’ fluid.⁴⁹ To set a standard of assessment on boundaries between law and other forms of social normativity, Brunnée and Toope formulated the interactional legal theory that defines the standard of legality for a norm.⁵⁰ Legality is defined as a set of criteria that are derived from Lon Fuller's standard of legality.⁵¹ They defined the concept as ‘[w]hat distinguishes law from other types of social ordering is not form, but adherence to specific criteria of legality: generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, and congruence between rules and social action’.⁵²

Brunnée and Toope explained that shared understandings are among the requirements for social norms to emerge because they support the need for normativity and subsequently shape the behaviour of actors.⁵³ Through norm entrepreneurship or the work of epistemic communities, social norms generate and promote certain understandings.⁵⁴ When these requirements are fulfilled, the shared understandings emerge, evolve, or fade through processes of social interaction and social learning.⁵⁵ The established shared understandings become ‘background knowledge or norms that shape how actors perceive themselves and the world, how they form interests and set priorities, and how they make or evaluate arguments’.⁵⁶

The interactional legal theory distinguishes legal norms from other types of social norms as not a form of pedigree, but an adherence to Lon Fuller's eight specific criteria of legality, which apply to both individual rules and systems of rulemaking.⁵⁷

Legal norms must be general, prohibiting, requiring, or permitting certain conduct. They must also be promulgated, and therefore accessible to public, enabling actors to know what the law requires. Law should not be retroactive, but prospective, enabling citizens to take the law into account in their decision making. Actors must also be able to understand what is permitted, prohibited, or required by law-the law must be clear. Law should avoid contradiction, not requiring or permitting and prohibiting at the same time. Law must be realistic and not demand the impossible. Its demands on citizens must remain relatively constant. Finally there should be congruence between legal norms and the actions of officials operating under the law.⁵⁸

However, Brunnée and Toope caution that the criteria of legality are not ‘self-executing’; therefore, legality has to be understood in the widest sense as being the product of, and is maintained through, the hard work of the stakeholders in the international system.⁵⁹ They further explained that law is thus neither pure substance nor pure process.⁶⁰ This process is what Koskenniemi described as ‘by politicizing law and legalizing politics, an analysis of law's structure might point to alternative understandings of the relationship between law and its neighboring discourses’.⁶¹

Explaining Fuller's conception of law, Brunnée and Toope found two ideas that are implicit in Fuller's understanding of the law.⁶² The first is on understanding law as a creative activity where the law is formed through continuing struggles of social practice.⁶³ Law is continuously created and re-created by the stakeholders in each succeeding generation.⁶⁴ This understanding follows the second idea that ‘law cannot be understood as a fully realised system sprung full-born from the head of the sovereign, or bequeathed intact from the implicit terms of a social contract’.⁶⁵ Fuller emphasizes the purposive aspect of law by describing the law as ‘the enterprise of subjecting human conduct to the governance of rules’.⁶⁶ The meaning of ‘enterprise’ suggests the nature of law that is incomplete and aspirational (or even entrepreneurial) in quality.⁶⁷

Interactional legal theory has similarities with the Transnational Legal Process proposed by Koh. He defined this process as:

The theory and practice of how public and private actors-nation-states, international organizations, multinational enterprises, non-governmental organizations, and private individuals – interact in a variety of public and private, domestic and international forums to make, interpret, enforce, and ultimately, internalize rules of transnational law.⁶⁸

Koh further categorized the features of the Transnational Legal Process into four features: non-traditional, non-statist, dynamic, and normative.⁶⁹ These four features challenge the conception of traditional international law that is viewed through the positivist lens that international law-making is a top-bottom process in which states are the main stakeholders and static.⁷⁰ Transnational Legal Process is based on the interaction that allows transformation, mutation, and percolation of international and domestic law, from the public to the private sphere.⁷¹ In summary, it studies how international interaction among stakeholders shapes law and how law shapes future interactions between stakeholders.⁷²

The binary distinction between the law as it is (de lege lata) and the law as it should be (de lege ferenda) has been a subject of study for lawyers and political scientists for decades.⁷³ The interactional legal theory contributes to this study by understanding the law as an enterprise or a process of becoming. This understanding expands the positivistic views of law as a final product. The positivist approach is useful to ensure certainty in assessing the validity of the law because it brings clarity to the adjudication in disputes. However, the positivist approach has limitations in explaining how a norm can be transformed into a legal norm through interaction and consensus based on the self-interest of states and other stakeholders in the international system.⁷⁴ Taking into consideration the pros and cons of each method of studying the evolution of a norm into a legal norm, this paper will analyse the current emerging norm of corruption as a violation of human rights using the interactional legal theory. The next section will explain the norm entrepreneurs and their works to map the stage of the emerging norm and what action should be recommended to transform the emerging norm into a legal norm.

C. Specifying the content of corruption as a violation of human rights in the normative concept: De Lege Ferenda project

This paper specifies the content of corruption as a violation of human rights according to the current scholarship on this issue. There are ample scholarly works from various fields that have been paving the way for the transformation of this norm into a legally binding norm.⁷⁵ Scholars such as Peters and Boersma tried to specify a legal doctrinal approach by arguing that corruption amounts to a violation of human rights perpetrated by a public official. However, to support this argument, the link between the criminal act and the negative impact on the victims must be clearly established because holding corruptors accountable to the victims of corruption is the core content of the proposed norm.⁷⁶ From this scholarly discussion, it is possible to distil three elements necessary to determine whether corrupt conduct amounts to a violation of human rights. These elements are as follows: (a) the perpetrator is a public official, (b) the type of corruption committed is grand corruption,⁷⁷ and (c) this act results in a palpable negative impact on human rights. In summary, as an emerging norm, corruption amounts to a violation of human rights when it is in a form of grand corruption that has a palpable negative impact on human rights and is perpetrated by public officials. These three elements must be taken into consideration when conceptualizing corruption as a violation of human rights. This is a prescriptive norm that obliges the relevant international actors to hold corruptors who violates human rights accountable and include the victims of corruption in the justice system. This paper uses this content to further analyse the life cycle of this emerging norm by discussing the normative outputs of the norm entrepreneur in Section III. To bring the constructivist analysis of international relations into the context of international law, the compilation of normative outputs by the norm entrepreneur will be analysed through interactional legal theory in Section IV.

III. The SR on corruption and her normative outputs

The UN's stance against corruption has been gaining strength after the adoption of the United Nations Convention Against Corruption (UNCAC) in 2003.⁷⁸ This stance is further embodied in Sustainable Development Goal (SDG) number 16, which focuses on peace, justice, and strong institutions.⁷⁹ In 2018, the UN GA adopted Resolution 73/191 to convene a special session on challenges and measures to prevent and combat corruption and strengthen international cooperation.⁸⁰ In Resolution 73/191, States agreed that the Special Session shall adopt a concise and action-oriented political declaration, agreed upon in advance by consensus through intergovernmental negotiations under the auspices of the Conference of the States Parties to the UNCAC.⁸¹

In the UN GA Special Session from 2 to 4 June 2021, the UN GA adopted the political declaration ‘Our common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation’.⁸² This political declaration is a milestone for recognizing that corruption is a global problem under the UN's priority to be combated. The consideration of the political declaration affirmed that all forms of corruption harm access to basic services and the enjoyment of all human rights.⁸³

The political declaration recognizes the negative impact of corruption on all persons, including the victims of corruption.⁸⁴ This newest development is a sign that there is increased awareness of corruption and human rights. Section III.A will explain the norm of entrepreneurship in the trajectory of the SR on Corruption and her works in promoting awareness and conceptualization of corruption as a violation of human rights.

A. The work of UN charter based bodies on corruption and human rights as norm entrepreneurship: the special rapporteur on corruption and its impact to the full enjoyment of human rights, in particular, economic, social, and cultural rights

The Special Rapporteurs (SR) on human rights issues, as part of the UN Human Rights Council's special procedures, are chosen to promote and protect human rights; they are norm entrepreneurs with specific country or thematic mandates. These features confer on the special rapporteurs the status of ‘crown jewels’ of the UN human rights system.⁸⁵ The UN GA suggests that these special procedures shall continue to foster constructive dialogue with States and endeavour to formulate their recommendations in a concrete, comprehensive, and action-oriented way.⁸⁶ Hohmann gave the example of the work of the SR on Housing that connects the link between poverty, mass displacement, forced evictions, disenfranchisement from political power, hunger, thirst, and other marginalizations as the result of conscious political and economic choices taken within and by States, and international organizations.⁸⁷ In norm-making and standard setting, she further argued that the clearest measurement of the impact of the work of the SR on housing would be explicit references to the development of national and international laws, policies, and case law.⁸⁸

Subedi shared his story about being the SR for Human Rights in Cambodia from 2015 until 2019.⁸⁹ He explained that he wore many hats during his tenure as his role was multifaceted. This included being an international diplomat, a human rights activist, a human-rights law academic, and a government adviser simultaneously.⁹⁰ For him, being a special rapporteur, did not mean seeing himself as solely a human rights envoy, but also as a political envoy by expanding the scope of his work and dealing with the political issues that have a direct impact on his human rights work.⁹¹ Another example of the work of the special rapporteurs as norm entrepreneurs is explained by Carey who regards the SR for Safe Drinking Water and Sanitation as a norm entrepreneur, in a sense of being a norm monitor and clarifier, as well as an advocate for reparative action for victims.⁹² The variety of abilities that SRs possess as a norm entrepreneurs can be seen in how they define their mandates according to their initial occupations; for example, as a lawyer who tends to focus on developing and clarifying human rights norms relevant to their mandate.⁹³

In the context of the progression of corruption as a violation of human rights as an emerging norm, the SR on Corruption is therefore one of the relevant norm entrepreneurs. It is important to note, however, that the SR on Corruption is not a regular special rapporteur under the special procedure mechanisms. The SR on Corruption was an independent expert within the former Sub-Commission on the Promotion and Protection of Human Rights, a subsidiary body of the UN Commission on Human Rights, which was replaced by the UN Human Rights Council in 2006.⁹⁴ Despite not being a traditional special procedure, the work and activities of the SR on Corruption in terms of researching and clarifying the legal obligations of states under international human rights law are arguably comparable to that of regular special rapporteurs of the former UN Commission on Human Rights and now the UN Human Rights Council.

The SR on Corruption, Ms Christy Mbonu, started her mandate in 2003 and produced four reports until 2005.⁹⁵ As a norm entrepreneur, she contributed to raising awareness about corruption as a violation of human rights. In her working paper, she argued that the enjoyment of all regimes of rights is seriously undermined by the phenomenon of corruption.⁹⁶ She based her arguments on the International Bill of Human Rights noting that corruption should not only be seen as a moral issue but also as a matter that affects the very survival of the people and their enjoyment of basic human rights.⁹⁷ She wrote a section devoted to discussing the victims of corruption, which she broadly described as being the individuals in a society, as well as ‘the institutions that should engender orderliness in that society or the society itself’.⁹⁸ Unfortunately, in the working paper, her understanding of the concept of victims of corruption is abstract and she did not explain further who the victims are and how an individual or group can become a victim of a violation of human rights by corruption.

Mbonu conveyed the message that corruption is an urgent problem that has to be addressed because it is worsening and assuming alarming proportions.⁹⁹ She urged all other countries to tackle corruption by placing corruption as a priority in the affairs of the nation.¹⁰⁰ For follow-up purposes, she recommended that a full study of corruption be executed at the former Sub-Commission level, and that the study should examine in detail the general and specific manifestations of corruption.¹⁰¹ The study must also identify the vulnerable groups and develop guidelines on respect for human rights, international complaints, and sanction systems.¹⁰²

In her preliminary report, she argued that corruption seriously affected the enjoyment of all regimes of rights; however, she did not further explain how corruption seriously affected the enjoyment of all regimes of rights.¹⁰³ She wrote a specific section on the identification of victims of corruption that she defined as any individual in a given society; with focus on societies headed by a corrupt military dictatorship, any individual can be a victim of corruption, and also the entire community.¹⁰⁴

Mbonu proposed the idea that violations of human rights induced by corruption warrant a remedy to the victims for the damages caused.¹⁰⁵ The main problem is that she did not explain the concept of a violation of human rights by corruption in an in-depth manner, as she only stated that corruption, whether systemic, endemic, or petty, violates citizens' enjoyment of all rights contained in all the international instruments.¹⁰⁶ Mbonu took for granted that a violation of human rights by corruption has already been defined in the legal scholarship, while in reality, it remains an open debate due to the difficulty of conceptualizing and implementing the answer to the legal doctrinal question. While Mbonu recommended that this violation should be addressed and compensated for, her task as a norm entrepreneur can be mainly seen as proposing the concept of a violation of human rights by corruption based on her understanding of it.¹⁰⁷ If the concept is defined, the recommendation of the State's action and the topic of compensation for the victim can progress subsequently. The concrete proposal that she suggested is the organization of periodic high-level meetings to stimulate further discussion on corruption, which should focus on the human rights dimension of corruption.¹⁰⁸

In her subsequent Progress Report, she reported that corruption violates all regimes of rights, and that there is a need to strengthen anti-corruption measures by refocusing the international community on turning the tide against the perpetrators of corruption.¹⁰⁹ She also included the identification of victims of corruption as part of her findings in her progress report.¹¹⁰ She gave the example of corruption in the judiciary that eliminated the essential elements of the right to a fair trial, namely an independent, impartial, and untainted judiciary.¹¹¹ According to her, justice will not prevail when the judiciary is corrupt.¹¹²

She further quoted Peter Eigen, former Chairman of the Board of Directors of TI who said that corruption leads to a violation of human rights in three aspects; it perpetuates discrimination, prevents the full realization of economic, social, and cultural rights, and leads to the infringement of numerous civil and political rights.¹¹³ This is an example of how norm entrepreneurs benefit from one another's works. Mbonu theorized that corruption engenders the denial of rights, in particular economic, social, and cultural rights, where predominately victims of corruption are the poor.¹¹⁴

In the recommendations of her Progress Report, she continued to focus on the violations of all regimes of rights.¹¹⁵ However, she did not explain further how corruption can be conceptualized as a violation of human rights. This is a missed opportunity that should have been grasped by the future SR on the thematic mandate of corruption. She did further contribute to the debate by acknowledging that there is a negative impact of corruption in procurement on the enjoyment of human rights, in particular economic, social, and cultural rights where the States must strengthen existing legislation.¹¹⁶ Her Final Report is categorized as a restricted document. In contrast to her Preliminary Report, Working Paper, and Progress Report, it can be observed that the Final Report's important sections recognize that corruption undermines the enjoyment of all regimes of human rights and violates human rights as guaranteed in all international instruments, and provides a definition of victims of corruption.

Boersma observed that the output of the SR's mandate is scant because the argumentation supports two grand claims about the connection between corruption and human rights: 1. Corruption undermines the enjoyment of all regimes of human rights and 2. Corruption violates citizens' enjoyment of all human rights contained in all international instruments. However, the supporting arguments for these two claims are absent.¹¹⁷ The definition of victims of corruption should have been explored to be the fundamental argument for conceptualizing corruption as a violation of human rights but it is also absent. The argumentation based on the legal arguments cannot be found and it is regrettable because the purpose of the mandate is to explore further proper legal analysis on whether and how corruption violates human rights. As a norm entrepreneur, Mbonu had the opportunity to use her power to gather experts and propose meetings to discuss the legal analysis of corruption as a violation of human rights. These grand claims indeed need clarification and explanation to stand firm and progress further as an emerging norm. This is challenging because the mandate of the SR on Anti-Corruption formally ended in 2005 and there is no direct continuation for the appointment of SR with a similar mandate on anti-corruption and human rights. To some degree, Mbonu's work was continued by the Human Rights Council (HRC) Advisory Committee in 2013, which took over the tasks of the former Sub-Commission on the Promotion and Protection of Human Rights from 2006 onwards.¹¹⁸ The HRC Advisory Committee did take into account Mbonu's recommendations and progress further to study the negative impact of corruption on the enjoyment of human rights. The work of the Advisory Committee with regard to corruption as a violation of human rights, which ended with a final report adopted in 2015, will be discussed below in Section IV.B as a continuation of the norm entrepreneurship works of the SR on Corruption.

IV. The norm entrepreneur must focus on transforming the emerging norm into a legally binding norm

The life cycle of the norm on corruption as a violation of human rights has been progressing to a new milestone at the international level through the adoption of the political declaration on anti-corruption by the UN GA. The SR on Corruption has coined the recognition that corruption undermines the enjoyment of human rights and violates human rights as guaranteed by the IHRL. The norm entrepreneur's efforts have kept the life cycle of the norm in progressive development, which were both ongoing at the time this paper was written (2023). This section will argue the importance of the transformation of the norm into a legally binding norm. Section A will explain the distinct power of the legally binding norm and Section B will test the current stage of the norm against the standard of legality in interactional legal theory.

A. The distinct power of a legally binding norm

Under the constructivist framework, a norm has a dual ability to regulate behaviour and constitute ideas.¹¹⁹ Barkun regards law as preeminently normative because it represents the articulated ‘oughts’ of society and states patterns of obligatory behaviour.¹²⁰ Henkin explained that the international human rights movement has sought to establish an international human rights standard and to have States assume legally binding international obligations to live up to the established standard.¹²¹ Thus, a legally binding norm serves as the basis of accountability for government towards its citizens where the accountability is being enforced by the judiciary at the domestic, regional, and international levels.

A distinct feature of human rights law is in the idealistic ends that it aims to achieve; it does not serve any particular national interests.¹²² Even though deemed unachievable due to its idealistic ends, the impressive growth of international human rights law shows the power of ideas and rhetoric, the sensitivity of governments to public opinion, and the effectiveness of international organizations to exploit that sensitivity to transform ideas and rhetoric into law and policy. It is necessary to distinguish whether the status of a norm is a legal norm or a social norm. When the norm does not have adequate support to become a legal norm, as cited by Keck and Sikkink, Szasz explained that the creation of soft law is chosen as a compromise between those who wish a certain matter to be regulated definitively and those who see the merits of substantive issues but do not wish to be bound by rigid and obligatory rules because they fear that they cannot obtain any necessary domestic approval.¹²³ In a similar tone, Mannens argued that:

the norms and standards which have been formulated and accepted in international law need to be lived up to, as they are in essence of the formal legal protection of the individual human being. Implementation of these standards is essential, and should be viewed in the light of progressive evolution of these norms.¹²⁴

The progressive evolution of the norm means that the norms and standards are implemented in good faith and strive for its full realization.¹²⁵

When there is consensus that corruption violates human rights and is being consolidated in a legally binding norm, it becomes a connector between human rights and the anti-corruption legal frameworks. The norm entrepreneurs have currently taken for granted the existence of this connector as a social norm. However, in reality, this is not sufficient to protect human rights because social norms cannot be enforced in the court of law. The legalization of this connection will provide a way for the human rights framework to be incorporated into the anti-corruption mechanism, or vice versa. It is also important to include as many as possible norm entrepreneurs beyond the IHRIs and States, namely human rights defenders and grass roots organizations to join the movement. In Section III, the norm entrepreneurs have repeatedly mentioned the need to address the victims of corruption, therefore, the legalization will also complement the current dominated criminal law approach that neglects the human rights of the victims of corruption. The following section will explain what the criteria that have to be fulfilled are to transform the emerging norm into a legal norm.

B. Testing the reality with the standard of legality from interactional legal theory to determine where we are now

The norm of corruption as a violation of human rights is certainly not yet a legal norm. It constitutes an emerging norm that has been proposed by the norm entrepreneur, as exemplified in Section III. This paper argues that utilizing the interactional legal theory's standard of legality will help the norm entrepreneur to transform this emerging norm into a legally binding norm in the future. The norm entrepreneur must focus on the further formulation of the legal norm that should be general, promulgated by authority, non-retroactive, understandable, constant, realistic, internally coherent, applied by rules that are stable, clear, coherent, and administered by persons who can be held accountable and who are consistent.¹²⁶ The criteria that Fuller conceptualized will possess the internal morality of the norm because the law comes from the interaction between parties and there is a reciprocity between them to establish the rule of law.¹²⁷

Based on the norm entrepreneurship examples from the SR on Corruption, various tracks can be constructed to develop the emerging norm of corruption as a violation of human rights into a legal norm. In transforming the norm, the norm entrepreneur must construct its content by adhering to the standard of legality. The work of the SR on Corruption and the UN HRC Advisory Committee offers a promising platform to fulfil the generality of the norm due to the direct mandate and expertise to conduct in-depth research on anti-corruption and human rights. However, since both mandates addressing corruption and human rights ended in 2005 and in 2015, respectively, without adequately reaching their aims, establishing a new mandate with focus to complete the unfinished works on corruption and human rights is a promising idea. This mandate should focus on grand corruption to add clarity to the current norm, which subsequently can be generalized to all types of grand corruption.

Looking at the challenges to attain the standards of legality, the norm entrepreneur must reach a singular concept of which corruption amounts to a violation of human rights to ensure the success of the transformation of norm emergence to norm acceptance and internalization. In IHRL, the accountability of the State lies in the hands of the State officials: the behaviour of the State is represented by it, whether domestically or internationally. The proposed norm entails establishing that when a public official commits an act of corruption (defined specifically as which type of corruption fits the international human rights law standards), it can be concluded that this public official violates the human rights of specific victims within the programme in which they possess authority. In a greater sense, when a State does not take adequate anti-corruption measures to protect the human rights of the population, it constitutes a violation of its duty of care, and it can be argued that the State has violated human rights as well. An example of norm entrepreneurship through the use of regional court is the case of the Registered Trustees of the Socio-economic and Accountability Project (SERAP) v. Nigeria and Universal Basic Education Commission (UBEC).¹²⁸ In this case, SERAP brought the petition that corruption in the education sector violates the right to education, however, the Court decided that the evidence that was brought by SERAP is not conclusive.¹²⁹ The Court argued that violation can happen when there is a denial of the right to education, therefore, the Court ordered that Nigeria must take necessary steps to provide money to cover the shortfall.¹³⁰ Based on this case, the international, regional, and domestic court show their possibility to become norm entrepreneurs in providing content for the norm. Even though regional and domestic courts do not fulfil the standard of legality's of interactional legal theory, they do contribute to paving the way to the clarification of the norm.

The self-interest of states is a supporting factor in the endorsement of this norm, as exemplified in the international progress trajectory of corruption as a violation of human rights under the UN GA. Looking at the culmination of the State's interest in supporting the declaration, it is a momentum that should be continuously nurtured by the norm entrepreneur. Henkin claimed that governments may sometimes act in consistency with norms and obligations only when it is in their interest to do so.¹³¹ Therefore, mapping the interest of the states by assessing the current ratification status of the international legal framework on anti-corruption and human rights can portray the self-interest of states regarding anti-corruption and human rights. The ratification of the UNCAC is considered among the highest ones in the history of an international treaty with 187 States Parties in 2020.¹³² It is evident that there seems to be a shared background of states interested to cooperate in eradicating corruption domestically and globally. On a par with the IHRL regime, which has also obtained strong international support, these shared backgrounds are the initial capital to progress the norm further. The self-interest of states must be understood as the primary consideration to progress the norm because, without it, there will not be any progression since the states are the main actor in international law-making.¹³³

Since the states' interest in anti-corruption and human rights appears to be strong as explained in the number of states ratifying the UNCAC, the focus of the challenge faced by the norm entrepreneurs is the conceptualization of a legal analysis on corruption as a violation of human rights. This includes an explanation of whether and how corruption violates human rights and how victims can be identified. Based on the analysis in Section III, each norm entrepreneur has paved the way for the concept to emerge as a social norm in international relations. The works of the SR on Corruption were followed up by the HRC Advisory Committee in 2013.¹³⁴ The Final Report of the HRC Advisory Committee recommended the establishment of a mandate to establish an SR or a working group of experts to integrate a human rights perspective into anti-corruption strategies.¹³⁵ They suggested that the mandate holders should be able to receive information about the possibility of violations of human rights caused by acts of corruption.¹³⁶ The final normative output of this process is the Resolution 29/11 of the HRC on the Negative Impact of Corruption on the Enjoyment of Human Rights. The HRC acknowledged that:

The State should protect against any adverse human rights impact arising from acts of corruption involving non-State actors, including the private sector, through effective regulatory and investigative mechanisms, with a view to holding perpetrators to account, recovering assets of illicit origin derived from acts of corruption and providing redress to victims.¹³⁷

Resolution 29/11 is the product of progress from the previous norm entrepreneurs works.¹³⁸ However, it repeats the same mistake by not giving a proper legal analysis of whether and how corruption violates human rights. The logic of urging the State to protect its citizens against any adverse human rights impact from acts of corruption through law and policy is to hold the perpetrators to account. Their corrupt conducts have consequences, which range from recovering assets of illicit origins derived from acts of corruption to providing redress to victims by conceptualizing corruption as a violation of human rights. It must be a violation of human rights in a legal sense. As such, there must be a clear legal explanation on how to concretise this recommendation. Unfortunately, the HRC Resolution did not take the suggestion of the HRC Advisory Committee on the establishment of an individual or working group mandates on the negative impacts of corruption on the enjoyment of human rights.¹³⁹ Comparing the HRC Resolution and the UN GA political declaration, the former also reveals a similar missed opportunity because the political declaration also does not further explain how someone can be a victim of corruption and how it relates to their enjoyment of human rights. This problem follows the subsequent promises of the political declaration concerning the pledge that anti-corruption should be an enabler for the 2030 Agenda for Sustainable Development.¹⁴⁰ There is a bubbling argument that should be explained underneath the political declaration on how corruption violates human rights to concretely combat corruption to attain the SDGs.¹⁴¹

Looking at the examples in the field of investment law, Kessedjian argued that judges and arbitrators must articulate universally accepted human rights principles when they have the opportunity to fill the gap between hard law and reality.¹⁴² Chaisse added that international investment tribunals throughout the years have imported anti-corruption principles, namely the doctrine of ‘unclean hands’ into bilateral investment treaties.¹⁴³ Another example of translating principles into hard law is the efforts to include the responsibility of investors to contribute to sustainable development.¹⁴⁴ This can be done by incorporating norms on sustainable development and responsible business practices into Comprehensive Agreement on Investment.¹⁴⁵ Multilateral Development Banks' anti-corruption approach to influence the behaviour of the States also shows that the combination of hard and soft laws contribute to prevent corruption in the funded state projects.¹⁴⁶ UN Global Compact also provides support to the emerging norm by recognizing that anti-corruption should be among the companies core values.¹⁴⁷ The norm entrepreneurship in the field of Business and Human Rights shows promising possibility of materializing human rights into action and operation.

Pinpointing at the HRC Resolution and UN GA Political Declaration, it can be observed that the life cycle norm of corruption as a violation of human rights is slow. Since 2012, HRC has recognized that there is an increase in awareness of the international community that corruption constitutes one of the obstacles to the effective promotion and protection of human rights, as well as to the achievement of the Millennium Development Goals (MDGs) and other internationally agreed development goals.¹⁴⁸ Until 2021, the wordings of the documents were still similar, only the goals had been changed. This is a phenomenon that illustrates the slow transformation of the norm life cycle on corruption as a violation of human rights as an emerging norm on the international trajectory. Assessed from the norm entrepreneurship concept, the emerging norm is still in Phase I, the norm emergence, because various actors in international relations have not yet found common definitions, concepts, and thoughts on whether and how corruption violates human rights. However, the possibility for transformation to the second level of the norm life cycle is still possible, albeit gradual, because there is a recommendation to keep on conducting additional research on the impact of corruption involving vast quantities of assets on global peace and security, the enjoyment of human rights, the climate, and biodiversity.¹⁴⁹

V. Conclusion

Assessed from the life cycle of the norm of corruption as a violation of human rights, its current stage is one of an emerging norm. The SR on Corruption has progressed to bring the emerging norm into a wider platform, the UN GA, for greater contestation of the norm. Even though the political declaration of the UN GA does not specify that corruption violates human rights, it recognizes the link between corruption and its negative impacts on human rights. In conclusion, for the life cycle of the norm, the current stage of the norm is premature, as exemplified by the fragmented existence of normative outputs.

When reviewed from the application of interactional legal theory in the analysis of this paper, the interactional legal theory should be used as guidance for the subsequent norm entrepreneurship. Since the mandate of the SR on Corruption ended in 2005, the future norm entrepreneurs must focus on fulfilling the standard of legality based on their capacities. The lack of legal arguments on whether and how corruption violates human rights, and the identification of victims of corruption must be the focus of the norm entrepreneurs' works. The challenge today is the treatment of corruption that only focuses on the corrupt conduct without investigating further its concrete devastating human rights impacts. After these legal questions are answered and clarified, the norm entrepreneurs should produce normative outputs that adhere to the standard of legality based on the interactional legal theory. The standard of legality that this current norm must fulfil has to be transformed into a legal norm. The norm must be general, non-retroactive, clear, non-contradictory, realistic, and constant. After the content of the norm adheres to the standard, the norm must then be promulgated and implemented by the stakeholders, especially public officials.

The distinct power of the legal norm is its enforceability in court, in whichever realm this court is located. It provides a platform for accountability as well as for concrete protection and realization of human rights. The SR on Corruption has produced the normative documents according to her respective capacities, authorities, and powers, minding her limitations, which is a positive contribution. By following the standard of legality, the transformation of the current norm into a legally binding norm can be planned strategically. The life cycle of corruption as a violation of human rights as an emerging norm to be accepted and internalized in a form of the legally binding norm will be achieved by interaction and reciprocity of the norm entrepreneurs and the states. There is a long road ahead to attain it; however, to quote Brunnée and Toope, ‘the hard work of international law is never done’.¹⁵⁰

Acknowledgements

The author is deeply thankful to Professor Marcel Brus and Dr. Antenor Hallo de Wolf for their helpful and constructive comments on this article. The author sincerely thank the exceptional editorial team at Asia Pacific Law Review for their patience and support. Additionally, gratitude is extended to two anonymous reviewers for their insightful comments on the initial version of this article; their sharp feedback and constructive criticism significantly contributed to refining the piece.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This research is fully funded by the Indonesia Endowment Fund for Education/Lembaga Pengelola Dana Pendidikan (LPDP).

Notes

1 Selected scholarly publications are: Ndiva Kofele-Kale, ‘Presumed Guilty: Balancing Competing Rights and Interests in Combating Economic Crimes’ (2006) 40(4) The International Lawyer 909; Kolawole Olaniyan, Corruption and Human Rights Law in Africa, Studies in International Law (Hart Publishing, 2014) 64; Martine Boersma, Corruption: A Violation of Human Rights and A Crime Under International Law? (Intersentia, 2012) 7; Martine Boersma, ‘Corruption as A Violations of Economic, Social and Cultural Rights: Reflections on the Right to Education’ in Martine Boersma and Hans Nelen (eds), Corruption & Human Rights: An Interdisciplinary Perspectives (Intersentia, 2010) 51, 83; John Hatchard, ‘Adopting Human Rights Approach Towards Combating Corruption’ in Martine Boersma and Hans Nelen (eds), Corruption & Human Rights: Interdisciplinary Perspectives (Intersentia, 2010) 7, 22; Marten Koch Andersen, ‘Why Corruption Matters in Human Rights, Policy and Practice Note’ (2018) 10 Journal of Human Rights Practice 179; Zoe Pearson, ‘An International Human Rights Approach Corruption’ in Peter Larmour and Nick Wolanin (eds), Corruption and Anti-Corruption (Asia-Pacific Press, 2001) 30, 46; International Council for Human Rights Policy, Corruption and Human Rights: Making the Connection (International Council on Human Rights Policy, 2009) 6.

2 Anne Peters, ‘Corruption as A Violation of International Human Rights’ (2018) 29 European Journal of International Law 1251.

3 Ibid.

4 Martine Boersma, Corruption: A Violation of Human Rights and A Crime Under International Law (Intersentia, 2012) 365.

5 Ibid, 366.

6 Ratna Juwita, ‘Exploring Corruption as a Violation of Human Rights in the Practices of International Human Rights Institutions’ (2023) 15 Journal of Human Rights Practice 302.

7 Ibid.

8 Inter-American Commission on Human Rights, Corruption and Human Rights in the Americas: Inter-American Standards, OEA/Ser.L/V/II.Doc.236 (6 December 2019) 95–104. IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II/Doc. 57 (31 December 2019) 70–71, para 167.

9 Ibid, 103, para 274.

10 Ibid, 106, para 280.

11 Ibid.

12 Alexander Wendt, Social Theory of International Politics (Cambridge University Press, 1999) 1; Antje Wiener, Contestation and Constitution of Norms in Global International Relations (Cambridge University Press, 2018) 22; Matthew J Hoffmann, Norms and Social Constructivism in International Relations (2010) Oxford Research Encyclopedias, International Studies, International Studies Association and Oxford University Press <https://doi.org/10.1093/acrefore/9780190846626.013.60>.

13 Martha Finnemore and Katharyn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52(4) International Organization 897; Christine Ingebritsen, ‘Norm Entrepreneurs: Scandinavia's Role in World Politics’ (2002) 37(1) Cooperation and Conflict 11.

14 Ibid, 896.

15 Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, 2010) 55.

16 Transformation of an emerging norm into a legal norm constitutes as a progress in international law-making in this research. The notion of progress in international law discourse: Thomas Skouteris, The Notion of Progress in International Law Discourse (TMC Asser Press, 2010) 230.

17 See Brunnée and Toope explanation on the torture prohibition norm that does not always shed light on all affected stakeholders in Antje Wiener, Contestation and Constitution of Norms in Global International Relations (Cambridge University Press, 2018) 39.

18 UN GA, Resolution adopted by the GA on 2 June 2021, Our common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation, A/RES/S-32/1 (7 June 2021) 2–3.

19 Peter J Katzenstein, Cultural Norms and National Security: Police and Military in Postwar Japan (Cornell University, 1966) 18; Elvira Rosert, Effects of International Norms: A Typology (2024) 20(1) Journal of International Political Theory 22. Stanford Encyclopedia of Philosophy. <https://plato.stanford.edu/entries/social-norms/>.

20 Martha Finnemore, ‘International Organizations as Teachers of Norms: the United Nations Educational, Scientific and Cultural Organization and Science Policy’ (1993) 47(4) International Organization , 565.

21 Matthew J Hoffmann, ‘Norms and Social Constructivism in International Relations’ International Studies, International Studies Association and Oxford University Press (2017) <https://doi.org/10.1093/acrefore/9780190846626.013.60>; Eric A Posner, Law and Social Norms (Harvard University Press, 2000) 34.

22 Jeffrey S Lantis and Carmen Wunderlich, ‘Reevaluating Constructivist Norm Theory: A Three-Dimensional Norms Research Program’ (2022) 24(1) International Studies Review 1.

23 Ian Johnstone, ‘The Secretary-General as Norm Entrepreneur’ in Simon Chesterman (ed), Secretary or General? The UN Secretary-General in World Politics (Cambridge University Press, 2007) 123, 124.

24 Wiener (n 12) 10.

25 Martha Finnemore and Katharyn Sikkink, ‘International Norm Dynamic and Political Change’ (1998) 52(4) International Organization 887. See also Nicole Deitelhoff and Klaus Dieter Wolf, ‘Business and Human Rights: How Corporate Norm Violators Become Norm-Entrepreneurs’ in Thomas Risse, Stephen C Ropp and Katharyn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge University Press, 2013) 222, 231; Stephan Engelkamp and Katharina Glaab, ‘Writing Norms: Constructivist Norm Research and the Politics of Ambiguity’ (2015) 40(3–4) Alternatives: Global, Local, Political 201, 202.

26 Ibid.

27 Ibid.

28 Ibid.

29 Ibid.

30 Ibid.

31 Ibid.

32 Ibid.

33 Ibid. See also, Kendall Stiles and Wayne Sandholtz, Cycles of International Norm Change in International Norms and Cycles of Change (Oxford University Press, 2009) 329.

34 Ibid.

35 Ibid.

36 Ibid.

37 Ibid.

38 Ibid.

39 Ibid.

40 Ibid. See also Margaret E Keck and Katharyn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 2014) 14; Kendall Stiles and Wayne Sandholtz, Cycles of International Norm Change in International Norms and Cycles of Change (Oxford University Press, 2009) 336.

41 Wayne Sandholtz, ‘Explaining International Norm Change’ in Wayne Sandholtz and Kendall Stiles (eds), International Norms and Cycles of Change (Oxford University Press, 2009) 1, 4.

42 Ibid, 5.

43 Louis Henkin, How Nations Behave: Law and Foreign Policy, Second Edition (Columbia University Press, 1979) 23.

44 Friedrich Kratochwil, ‘Legal Theory and International Law in David Armstrong’ in Jutta Brunée, Michael Byers, Hohn H Jackson and David Kennedy (eds), Routledge Handbook of International Law (Routledge, 2008) <https://www.routledgehandbooks.com/doi/10.4324/9780203884621.ch3> 55, 56.

45 Ibid.

46 Sarina Landefeld, ‘The Evolution of Norms and Concepts in International Law: A Social Constructivist Approach’ in Rossana Deplano (ed), Pluralising International Legal Scholarship: The Promise and Perils of Non-Doctrinal Research Methods (Edward Elgar Publishing, 2019) 45, 50.

47 Ibid. See also the promise of the synthesis between rational choice theory and constructivism is the new mainstream for interdisciplinary human rights compliance theory. ‘Risse, Ropp, and Sikkink's rich synthesis of rational choice theory within constructivism indicates that the dueling of the two schools of compliance theory is no longer productive.’ Elizabeth Stubbins Bates, ‘Sophisticated Constructivism in Human Rights Compliance Theory’ (2015) 25 European Journal of International Law 1169.

48 Ibid.

49 Wiener (n 12) 56.

50 Ibid, 84.

51 Lon L Fuller, The Morality of Law, Revised Edition (Yale University Press, 1975) 39; Wiener, (n 12) 84.

52 Wiener, Ibid. See also, David Dyzenhaus, ‘Fuller's Novelty’ in Willem J Witteveen and Wibren van der Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam University Press, 1999) 78, 84.

53 Jutta Brunnée and Stephen J Toope, ‘Interactional International Law: An Introduction’ (2011) 3(2) International Theory 307.

54 Ibid. See also: Liliana Andonova and Manfred Elsig, ‘Informal International Lawmaking: A Conceptual View from International Relations’ in Joost Pauwelyn, Ramses A Wessel and Jan Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012) 63, 71; Ayelet Berman and Ramses A Wessel, ‘The International Legal Form and Status of Informal International Lawmaking Bodies: Consequences for Accountability’ in Joost Pauwelyn, Ramses A Wessel and Jan Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012), 35.

55 Ibid.

56 Ibid.

57 Ibid.

58 Ibid.

59 Jutta Brunnée and Stephen J Toope, ‘History, Mystery, and Mastery’ (2011) 3(2) International Theory 348.

60 Jutta Brunnée and Stephen J Toope, ‘Constructivism and International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds) Interdisciplinary Perspectives on International Law and International Relations (Cambridge University Press, 2012) 119.

61 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2006) 13.

62 Jutta Brunnée and Stephen J Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39(19) Columbia Journal of Transnational Law 19.

63 Ibid.

64 Ibid.

65 Ibid.

66 Jutta Brunnée and Stephen J Toope, ‘An Interactional Theory of International Legal Obligation’ in Jutta Brunnée and Stephen J Toope (eds), Legitimacy and Persuasion in International Law (Cambridge University Press, 2008) 20, 2.

67 Ibid. See also Jutta Brunnée and Stephen J Toope, ‘International Law and the Practice of Legality: Stability and Change’ (2018) 49(4) Victoria University of Wellington Law Review 429.

68 Harold Hangju Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181, 181.

69 Ibid.

70 Ibid.

71 Ibid.

72 Ibid.

73 Willem J Witteveen, ‘Rediscovering Fuller: An Introduction’ in Willem J Witteveen and Wibren van der Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam University Press, 1999) 21, 25.

74 Ibid, 29.

75 Supra note 1.

76 Anne Peters, ‘Corruption as A Violation of International Human Rights’ (2019) 29(4) European Journal of International Law 1251; Anne Peters, ‘Corruption and Human Rights’ Basel Institute of Governance, Working Paper Series Number 20 (September 2015) 12; Martine Boersma, Corruption: A Violation of Human Rights and A Crime Under International Law? (Intersentia, 2012) 7; Martine Boersma, ‘Corruption as A Violations of Economic, Social and Cultural Rights: Reflections on the Right to Education’ in Martine Boersma and Hans Nelen (eds), Corruption & Human Rights: An Interdisciplinary Perspectives (Intersentia, 2010) 51, 83; Anne Peters, ‘The Risk and Opportunity of the Humanisation of International Anti-Corruption Law: A Rejoinder to Kevin E. Davis and Franco Peirone’ (EJIL!: Talk, 18 February 2019) <https://www.ejiltalk.org/the-risk-and-opportunity-of-the-humanisation-of-international-anti-corruption-law-a-rejoinder-to-kevin-e-davis-and-franco-peirone/>.

77 Transparency International (TI) specified the type of corruption that amounts to a violation of human rights is grand corruption.

78 UNODC, UNCAC <https://www.unodc.org/unodc/en/treaties/CAC/>. By 2022, UNCAC is ratified by 187 countries, this fact makes UNCAC is among universally ratified treaty. Stolen Asset Recovery Initiative (STAR), UNCAC <https://star.worldbank.org/focus-area/uncac>.

79 UN, SDGs <https://sdgs.un.org/goals/goal16> accessed 18 March 2022.

80 UNODC <https://ungass2021.unodc.org/ungass2021/index.html>. See also: ‘the General Assembly adopted the resolution 74/276 entitled “Special session of the General Assembly against corruption” on 1 June 2020’.

81 UN GA, Resolution 73/191, Special session of the General Assembly against corruption (9 January 2019) A/RES/73/191, 2.

82 UNODC <https://ungass2021.unodc.org/ungass2021/index.html>.

83 UN GA, Resolution S-32/1, Our common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation (7 June 2021) A/RES/S-32/1, 3. See also similar recognition on the negative impacts of corruption towards the enjoyment of human rights in the previous resolutions, Resolutions and decisions adopted by the Conference of the States Parties to the United Nations Convention against Corruption, 39; HRC, The negative impact of corruption on the enjoyment of human Rights, A/HRC/RES/23/9 (20 June 2013) 2; HRC, Resolution 29/11, The negative impact of corruption on the enjoyment of human rights, A/HRC/RES/29/11 (22 July 2015) 1; HRC, Resolution 35/25, The negative impact of corruption on the enjoyment of human rights A/HRC/RES/35/25 (14 July 2017), 1–2; HRC, Resolution 41/9, The negative impact of corruption on the enjoyment of human rights A/HRC/RES/41/9 (18 July 2019) 3; UN GA, Resolution 71/208, Preventing and combating corrupt practices and the transfer of proceeds of corruption, facilitating asset recovery and returning such assets to legitimate owners, in particular to countries of origin, in accordance with the United Nations Convention against Corruption, A/RES/71/208 (13 February 2017) 6; CoP UNCAC, Report of the Conference of the States Parties to the United Nations Convention against Corruption on its seventh session, held in Vienna from 6 to 10 November 2017, CAC/COSP/2017/14 (23 November 2017) 9; CoP UNCAC, Report of the special session of the Conference of the States Parties to the United Nations Convention against Corruption, held in 7 May 2021, CAC/COSP/S/2021/2 (7 May 2021) 3.

84 Ibid.

85 Inga T Winkler and Catarina de Alburquerque, ‘Doing It All and Doing It Well? A Mandate's Challenges in Terms of Cooperation, Fundraising and Maintaining Independence’ in Aoife Nolan, Rosa Freedman, and Thérèse Murphy (eds), The United Nations Special Procedures System (Brill, 2017) 188, 200.

86 UN GA, Review of the Work and Functioning of the Human Rights Council, A/HRC/RES/16/21 (12 April 2011) Para 25, 5.

87 Jessie Hohmann, ‘Principle, Politics and Practice: The Role of UN Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law’ in Aoife Nolan, Rosa Freedman and Thérèse Murphy (eds), The United Nations Special Procedures System (Brill, 2017), 271, 291.

88 Ibid, 295.

89 OHCHR, ‘UN Special Rapporteur Surya P. Subedi launches his final fact-finding mission to Cambodia, Final Mission to Cambodia’ (OHCHR, 13 January 2015) <https://www.ohchr.org/en/press-releases/2015/01/un-special-rapporteur-surya-p-subedi-launches-his-final-fact-finding-mission>.

90 Surya Subedi, ‘Life as a UN Special Rapporteur: The Experience of the UN Special Rapporteur for Human Rights in Cambodia’ in Aoife Nolan, Rosa Freedman and Thérèse Murphy (eds), The United Nations Special Procedures System (Brill, 2017) 297, 309.

91 Ibid.

92 Henry F Carey, ‘The Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation: An Assessment of Its First Dozen Years’ (2020) 16(2) Utrecht Law Review 33.

93 Ibid.

94 Her mandate is established in Report of the Sub-Commission on the Promotion and Protection of Human Rights on Its Fifty-Fourth Session (19 November 2002) E/CN.4/2003/2, 2002/106, 77. The concern about corruption and its impacts to economic, social, and cultural rights was also addressed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in their Final Report. Their Final Report proposed more elaborate standards could be proposed to States to combat corruption and greater consideration should be given to the harm suffered by the victims, be it States or individuals. Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social, and Cultural Rights), E/CN.4/Sub.2/1997/8, 27 June 1997, p 37.

95 Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular, Economic, Social and Cultural Rights, Progress Report Submitted by the Special Rapporteur, Christy Mbonu, E/CN.4/Sub.2/2005/18 (22 June 2005); The Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular, Economic, Social and Cultural Rights, Preliminary Report of the Special Rapporteur, Ms. Christy Mbonu, E/CN.4/Sub.2/2004/23 (7 July 2004) 5, para 7; Economic and Social Council (ECOSOC), The Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular Economic, Social and Cultural Rights, Working paper submitted by Ms. Christy Mbonu in Accordance with Sub-Commission Decision 2002/106, E/CN.4/Sub.2/2003/18 (14 May 2003) 3, para 3; (Only the draft report available) HRC, Report of Ms. Christy Mbonu, SR on Corruption and Its Impact on the Full Enjoyment of Human Rights, A/HRC/11/CRP.1 (18 May 2009).

96 Economic and Social Council (ECOSOC), The Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular Economic, Social and Cultural Rights, Working paper submitted by Ms. Christy Mbonu in Accordance with Sub-Commission Decision 2002/106, E/CN.4/Sub.2/2003/18 (14 May 2003) 3, para 3.

97 Ibid, 4, para 8.

98 Ibid, 7, para 13.

99 Ibid, 11, paras 23–24.

100 Ibid.

101 Ibid.

102 Ibid.

103 The Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular, Economic, Social and Cultural Rights, Preliminary Report of the Special Rapporteur, Ms. Christy Mbonu, E/CN.4/Sub.2/2004/23 (7 July 2004) 5, para 7.

104 Ibid, 7, para 17.

105 Ibid, 17, para 56.

106 Ibid, 18, para 57.

107 Supra 149.

108 Ibid, 20, para 60.

109 Special Rapporteur on Corruption and Its Impact on the Full Enjoyment of Human Rights, in Particular, Economic, Social and Cultural Rights, Progress Report Submitted by the Special Rapporteur, Christy Mbonu, E/CN.4/Sub.2/2005/18 (22 June 2005) 2.

110 Ibid, 4, para 4.

111 Ibid, 6, para 13.

112 Ibid.

113 Ibid, 17, para 52.

114 Ibid, 18, para 56.

115 Ibid, 19, para 59.

116 Ibid, 20, para 63.

117 Supra note 1, Boersma, 360.

118 HRC, Resolution 23/9, The Negative Impact of Corruption on the Enjoyment of Human Rights (20 June 2013) A/HRC/RES/23/9 1-3; see related documents on this topic: HRC, Resolution 26/115, The Negative Impact of Corruption on the Enjoyment of Human Rights (10 July 2014) A/HRC/DEC/26/115 1; HRC, Progress Report of the Human Rights Council on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights (14 May 2014) A/HRC/26/42 1-10; HRC, Final Report of the Human Rights Council Advisory Committee on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights (5 January 2015) A/HRC/28/73 1-16. There is also a working group from the HRC Advisory Committee that has the mandate on the impact of flow of funds of illicit origin and the non-repatriation thereof to the countries of origin on the enjoyment of human rights. The work is still ongoing and they are preparing a draft resolution for illicit funds. UN HRC, Illicit Funds (UN HRC, 2023) <https://www.ohchr.org/en/hr-bodies/hrc/advisory-committee/ilicitfunds>.

119 Matthew Davies, ‘ASEAN and Human Rights Norms: Constructivism, Rational Choice and the Action-Identity Gap’ (2013) 13 International Relations of the Asia-Pacific 207.

120 Michael Barkun, Law without Sanctions: Order in Primitive Societies and the World Community (Yale University Press, 1968) 89.

121 Louis Henkin, ‘Human Rights: Ideology and Aspiration, Reality and Prospect’ in Samantha Power and Graham Allison (eds), Realizing Human Rights: Moving from Inspiration to Impact (St. Martin Press, 2000) 3, 8.

122 Ibid.

123 Supra note 52, Keck and Sikkink, 216.

124 Wolf Mannens, ‘Shared Sovereignty? Minority Claims and the Effectiveness of State Authority’ in Gerard Kreijen et al (eds), State, Sovereignty, and International Governance (Oxford University Press, 2002) 145, 161.

125 Thomas Skouteris, The Notion of Progress in International Law Discourse (TMC Asser Press, 2010) 230.

126 Pauline Westerman, ‘Means and Ends’ in Willem J Witteveen and Wibren van der Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam University Press, 1999) 145, 147.

127 Supra n 16; Willem J Witteeveen, ‘Laws of Lawmaking’ in Willem J Witteveen and Wibren van der Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam University Press, 1999) 312, 322.

128 Community Court of Justice of the Economic Community of West African States (ECOWAS), SERAP v. Nigeria and UBEC (2010) ECW/CCJ/JUD/07/01.

129 Ibid, 6, para 27.

130 Ibid, 7, para 28.

131 Supra note 50, Louis Henkin, How Nations Behave, 23.

132 The World Bank and UNODC, ‘Stolen Asset recovery Initiative, About UNCAC’ (The World Bank and UNODC, 2022) <https://star.worldbank.org/focus-area/uncac>.

133 Supra note 50, Henkin, 40.

134 HRC, Resolution 23/9, The Negative Impact of Corruption on the Enjoyment of Human Rights (20 June 2013) A/HRC/RES/23/9 1-3; see related documents on this topic: HRC, Resolution 26/115, The Negative Impact of Corruption on the Enjoyment of Human Rights (10 July 2014) A/HRC/DEC/26/115 1; HRC, Progress Report of the Human Rights Council on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights (14 May 2014) A/HRC/26/42 1-10; HRC, Final Report of the Human Rights Council Advisory Committee on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights (5 January 2015) A/HRC/28/73 1-16.

135 HRC, Final Report of the Human Rights Council Advisory Committee on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights (5 January 2015) A/HRC/28/73 15 para 52.

136 Ibid. The Final Report notes that by establishing this mandate, the mandate holder(s) will be able to have an overview of human rights violations by corruption. The mandate holder(s) could be analysed concretely the impact of corruptionon gaps in protection could be identified, as well as the compensation for damages.

137 HRC, Resolution 35/25, The negative impact of corruption on the enjoyment of human rights (14 July 2017) A/HRC/RES/35/25, 1-2, para 3.

138 The Advisory Committee refers to the Resolution 2003/2 of 13 August 2003 that established the SR on Corruption as part of the progress on this topic. They also refer to her works as the SR on Corruption. Supra n 202, Final Report of the Human Rights Council Advisory Committee on the Issue of the Negative Impact of Corruption on the Enjoyment of Human Rights 6, paras 15-16. It is also mentioned in the documents that the Advisory Committee requested States, national human rights institutions, NGOsm and other stakeholders to give responses on any experiences of integrating a human rights perspective into the fight against corruption. Ibid, 12, para 35.

139 The HRC Resolution only encourages the mechanisms of the HRC to consider, within their existing mandates, the issue of the negative impact of corruption on enjoyment of human rights, supra note 207, para 8.

140 Ibid.

141 Ibid, 14.

142 Catherine Kessedjian, ‘Rebalancing Investor's Rights and Obligations’ (2021) 22 Journal of World Investment & Trade 645.

143 Julien Chaisse, ‘Tackling Corruption in Foreign Investment: Insights from Investment Arbitration Cases’ (2023) 16 Law and Development Review 253, 253.

144 Dominic Npoanlari Dagbanja, ‘The CAI and Sustainable Development’ (2022) 23 Journal of World Investment & Trade 572.

145 Ibid.

146 Norbert Seiler and Jelena Madir, ‘Fight Against Corruption: Sanctions Regimes of Multilateral Development Banks’ (2012) 15 Journal of International Economic Law 5.

147 Un Global Compact, The Ten Principles of the UN Global Compact, <https://unglobalcompact.org/what-is-gc/mission/principles>; UN Global Compact, A Guide for Anti-Corruption Risk Assessment, UN Global Compact (2013) 74; See also the Statement of the UNCAC Coalition to the Conference of the State Parties of the UNCAC as the example of norm entrepreneurship by a Non-Governmental organization in COSP UNCAC, Statement Submitted by UNCAC Coalition, A Non-Governmental organization Not in Consultative Status with the Economic and Social Council, CAC/COSP/2023/NGO/69, 10 December 2023. The UNCAC Coalition proposed that the CoSP advances a common understanding of the term grand corruption, this links to their subsequent proposal that the CoSP must use and establish legal frameworks to enable and facilitate the participation of victims of corruption and recognize the need for a human-rights-based approach to combating corruption. See p. 3.

148 HRC, Panel discussion on the negative impact of corruption on the enjoyment of human rights (9 October 2012) A/HRC/RES/21/13, 1.

149 Conference of Parties (CoP) UNCAC, Preventing and combating corruption involving vast quantities of assets: Note by the Secretariat (1 October 2019) CAC/COSP/2019/13, Para 3(b), 14. Based on the report from UNODC, OHCHR, and UNDP, corruption remains a global problem and a barrier to achieving Goal 16 of the SDGs. The report also addressed that corruption and poverty are interrelated because countries with lower levels of income have higher levels of bribery, see UNODC, OHCHR, UNDP, Global Progress Report on Sustainable Development Goal 16 Indicators: A Wake-Up Call for Action on Peace, Justice, and Inclusion, 2023, p 2 and 15.

150 Jutta Brunnée and Stephen Toope, ‘Interactional International Law: An Introduction’ (2011) 3(2) International Theory 307, 318.