Corruption in International Law

Sam Storr

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Corruption is portrayed as a deadly force in Kenya. Flickr Stream of futureatlascom, from hpronline.

Of all the forms of structural violence that beset the world, probably the most entrenched, widespread and harmful is corruption. It is a sickness, of politics or even of society, which prevents development without huge inequalities, strangles attempts at good governance, destroys confidence in aid programs, and disenfranchises entire populations. 

Of the two most widely-agreed types of corruption, it is petty corruption – the street- or low-level corruption involving interactions with public officials – that most directly impacts the poor. Petty corruption can envelop all levels of society, and is a crime in which all are complicit. Grand corruption, on the other hand, affects the incomes and governance of entire nations. 

Although a problem for all countries, it is in the developing world where corruption can be seen to do the most harm. In Nigeria, the scale of corruption surrounding the oil industry bedevils attempts to account for how much money is lost, or even how much oil has been taken from the soil. Despite the country’s huge incomes, rising poverty levels provoked huge protests last January, which may force the Nigerian government to take action. Uganda too announced a moratorium on oil deals last year after corruption allegations caused parliamentary infighting. India has seen a huge anti-corruption movement grow since 2011, and the Arab Spring can also be read as a widespread rejection of corrupt rule.

Rich mineral and petroleum deposits can quickly attract foreign investments if the country’s politicians are able to offer strong protections to industry. Yet these incomes can sustain a corrupt political elite that shows little interest in extending the same courtesies to their populations. It is argued that these nations have too little capital and expertise to exploit their riches without foreign investment, but this begs the question of what else might be lacking. The risks of conflict that many scholars of war associate with these types of state have led to natural resources being considered more a curse than a blessing.

And yet, major foreign investment deals continue to be pursued in countries rife with corruption issues. There are widespread fears that the about the finding of large oil deposits in east Africa and their impact on countries like Kenya. Even in Somalia, which barely has even a transitional government, the prime minister recently promised that there would be ‘room for everybody’ to gorge on the country’s oil resources, as long as they help to construct the country. This happy narrative of Western-led development and state-building defies the experience of Afghanistan, which is itself negotiating international investment in its resources. 

It is not that international commitment on the need to tackle corruption is lacking. Anti-corruption has been the 10^th principle of the UN Global Compact since 2004, and the UN Convention on Corruption now has 140 signatories. Anti-corruption conventions have also been passed by the Organisation of American States and the African Union, and the US has had the Foreign Corrupt Practices law since 1977. Yet it is clear that far more needs to be done in enforcement terms. 

Entrenched corruption is naturally resistant to national attempts at change. As a political issue, it can even become a tool to justify the suppression of dissenters. The mass demonstrations in India that began last year, as well as the examples of Nigeria and Uganda, demonstrate that corruption can eventually reach intolerable levels, even to the point of deterring investment. But national recognition comes at a great cost, and it is yet to be seen whether firm action will actually be taken.

Although, at its worst, corruption can hark back to pre-modern forms of order, it is often inherently transnational by nature. Those who obtain large riches at the expense of their compatriots often base much of their lives abroad, travelling, doing business, educating their children. The ability to expatriate their gains, or emigrate if necessary, is essential if they are to operate with impunity. Sanctions are therefore be an invaluable tool in removing the incentives of corruption.

One major existing obstacle is a lack of data. Many attempts to measure corruption rely on proxies, such as black market size or regulation levels, and the UNDP’s advice is that it be more of an ‘art form’, taking into account many indicators, surveys, and expert advice about the country. This is the approach taken by the widely-cited Corruption Perceptions Index produced by Transparency International, which is essentially a compilation of expert assessments. Although useful for investors, this type of investigation is insufficient to identify corrupt individuals.

Targeting the organisations that thrive on such situations is an alternative to coaxing resource-holders, sustained as they are by their high incomes, to be more accountable to their own populations. Industrial lobbyists, whom can function as a more institutionalised form of corruption, are naturally putting up a good fight. Part of the problem is the assumption that payments to governments are a normal part of competitive business, and that any interference is unfair. A major concern in this respect would be China, which is taking steps to accelerate its foreign direct investment while making a virtue of its ‘non interference’ approach.

However, recent developments suggest that developed nations are increasingly recognisant that the costs of allowing corruption may outweigh the advantages of letting it slide. The US passed Section 1504 of the Dodd-Frank act in 2010, requiring US-registered companies to register all their transactions with governments, and the European Commission followed with similar legislation in 2011. The Foreign Corrupt Practices Act, which has a wide mandate against all activities that can be linked to the US, is also said to have entered a ‘new era of enforcement’. 

Another approach is to put corruption on the human rights agenda. The International Council on Human rights makes the case that corruption can violate the rights to non-discrimination, fair judicial processes, political participation, information access, economic and cultural entitlements, food, housing, healthcare, education and water. Yet despite a growing recognition of the harms of corruption, the status quo remains resilient to both international legislation and national movements.

Climate Change: The Right to an Island Life

Sam Storr

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Coastal cities such as Bangkok put large populations at risk to climate change. theatlantic.com Paula Bronstein/Getty Images

Although the causes and dangers of climate change are becoming widely accepted, the lark of purpose and agreement at climate change summits has been disappointing. It is known that the problems of the future must be solved in the present, but this does not seem to provide the urgency for nations to overcome their historical differences.

The former Tebunginako village, Abaian Island kiribatiisgone Ciril Jazbec

Yet, for some nations, climate change and rising sea levels pose an immediate and severe existential threat. Rising sea levels are already threatening low-lying island nations like the Maldives, Kiribati, and Tuvalu. In their voices lies a desperation at the complacency of climate talks, which Mohamed Nasheed, ousted president of the Maldives, referred to as a ‘pact for suicide’.

Kiribati has already bought 6,000 acres of land in Fiji in case of a forced resettlement, and the Maldives have been considering purchases in Australia. In 2009, the world’s first climate change refugees were announced as the islanders of Carteret, Papua New Guinea. In 2011, islands in the South Pacific were left with a serious shortage of drinking water. 

Referred to as ‘sinking states’, they have become a focal point for debates on the future of climate change policy. The case of the sinking state is a potential harbinger of the threat posed to the large coastal cities and low-lying regions of the world. If mutual self-interest is insufficient, the urgent voice coming from the shoreline could provide an evocative, human reason for carbon-emitting countries to accept that their actions have consequences, and costs. Great legal and policy changes need to be made to mitigate the damage and prevent human rights from being violated.

Flooded volleyball pitch, Kiribati kiribatiisgone Ciril Jazbec

Tuvalu did attempt in 2002 to sue Australia and the US at the International Court of Justice (ICJ), for breaching their obligations under the UN Framework Convention on Climate Change, but this and other attempts were quickly abandoned in the face of the difficulties entailed.

Firstly, a mediating body such as the ICJ requires the consent of all nations in a dispute. Secondly, a state must prove not that it has been damaged, but that another has failed in its legal obligations. Whilst the main emitters of CO2 refuse to ratify legally binding agreements on emissions, prosecuting states have little to work with. Thirdly, there are no precedents for establishing a causal link between the specific emissions of one country, and the damage suffered by another. Above all, the huge cost of litigation does little to favour the marginalised.

The way home is flooded, and the village cannot afford flood protection kiribatiisgone Ciril Jazbec

Rather than sue for compensation on expected future damages, there is better legal precedent for claiming the costs of preventing damages. It is more plausible that reparations be made in the form of climate-related aid; plans are afoot for $100 billion to be available by 2020, though as of yet there have been no contributions.

This option keeps the amount paid firmly in the control of contributing countries, who will not be accepting direct liability or subjugation to a legal process.  It is even alleged that aid is simply a bribe to encourage acceptance of inadequate agreements. The lack of follow-through caused tensions at the Cancún climate summit of 2010, and some argued that the new funds from the US were only cut from other aid budgets.

The issue of compensation has therefore only provided another stumbling-block as major emitters seek to minimise their responsibilities. The scale of the funds discussed shows a recognition of the cost of failing to act, but does not appear to be encouraging action. Although the proposal for part of this aid to come from a tax on carbon emissions by private companies is more attractive, some nations will no doubt wish to protect their national industries.

There exists no legal category for persons considered to be displaced due to climate change, and it is usually stated that the refugee system, more a product of convenience than ideals, would not survive such a revolution. This leads some scholars to see regional agreements and national immigration policies, under the guidance of norms of human rights law, as the way forward. Prominently, New Zealand, but not Australia, has been convinced to allow 75 labour migrants each from Kiribati and Tuvalu each year.

In the case of a ‘sinking state’, the population would leave long before their land is uninhabitable, and the effect this would have on their statehood is disputed. Therefore the issue is not so much to create new forms of asylum, but to accommodate the population movements that are a natural means of coping with environmental change.

Coconut palms lose their heads to saltwater kiribatiisgone Ciril Jazbec

This requires a significant loosening of border restrictions at a time when developed countries are increasingly hostile to immigration. The same set of closed national interests that hamstring climate-change negotiations will hold back plans to accommodate the effects of this stasis, and prevent better-informed policies from lessening environmental impacts. Climate change may increase internal migration to low-lying coastal cities, creating greater poverty and vulnerability to climate-related disasters, and is also seen as a likely cause of future conflicts.

Climate migrants face an uphill battle in having their rights to resettle recognised. Refugee practice can play an important role by ensuring that the established human rights of a population are respected throughout a migration, though new protection mechanisms will have to be established. As worsening conditions and recurring disasters create large and very sudden population movements across borders, it may be that refugees cannot be safely returned without some coercion, violating the principle of non-refoulement. Without new categories of protected persons this right may be threatened. Yet the term ‘climate migration’ is criticised for simplifying a huge variety of types, sizes and durations of population movement. It will also be increasingly difficult to separate a climate migrant from an economic one.

Although attempts are being made to atone for climate change and anticipate future human rights challenges, so far this effort is mostly channelled towards minimal responsibility rather than averting the coming reality. In this context, it is indeed wise for island nations to be saving for land and negotiating visas.

The Falklands – UK caught on the wrong side of the past

Sam Storr

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Falklands under cloud from the west. Jeff Schmaltz, MODIS Rapid Response Team, NASA/GSFC.

The remote, only recently populated islands 300 miles east of the coast of Argentina invoke mixed feelings within the United Kingdom. Some take pride in the defence of the islands against an Argentine military junta in 1982, others deplore the violence which accompanied Margaret Thatcher’s concurrent realisation of popularity, and a few express shame at the continued existence of what appears to be a fortified British colony. Opinions are clearer in Argentina, where it is widely assumed that the islands should be Argentinean, even if not everyone supports a takeover. The intent to (re)gain possession of the Falklands (or Maldives) was even written into the constitution in 1994. With the Falklands being an embedded source of Argentine nationalism, it is of little surprise that the freeze in the dispute imposed since 1982 is looking unstable.

Amongst longstanding fishing and environmental disputes, the 30^th anniversary of the Falklands war and impending oil extraction have led to the re-emergence of tensions. The deployment of the HMS Dauntless, which the UK claims is routine, has led Argentina to protest a threat to national security at the UN. President Cristina Kirchner now regularly accuses the UK of colonialism, stealing resources and militarising the Atlantic whilst making some petty reprisals. The UK has been all too glad to respond in kind. David Cameron sticks to the position that sovereignty is ‘non-negotiable’ and totally dependent on the wishes of the overwhelmingly pro-British Falklanders, stirring further outrage by returning the accusation of colonialism. 

The legal background is lost in contested histories and technical interpretations of obsolete colonial laws. It is therefore uncertain whether the Falklands will come under the aegis of UN Resolution 1514, granting independence to former colonies. Although required by the UN to hold discussions, both sides have a very poor record of being willing to negotiate, with the UK being totally rigid on the key issue of sovereignty since 1982. There have been no signs of a return to the tentative concessions being negotiated in 1980, such as a lease-back process in the model of Hong Kong. 

Argentina is claiming the land as inherited from the Spanish empire. Their foreign office claims that the Spanish first made use of the waters surrounding the Falklands, later maintaining colonies and repelling expeditions from France and Britain. Argentina says that they maintained Puerto Soledad and kept a governor in the 1820s, until the US razed the port following a fishing dispute, and the newly-interested Great Britain took the opportunity to expel the Argentines in the ‘act of force’ of 1833.

Volveremos: We will return. AP.

Britain claims the first landing on the Falklands in 1690, and that they left for economic reasons in 1774, followed by the Spanish in 1811, neither relinquishing a claim. According to the UK foreign office, an American acting on behalf of the government of Buenos Aires made a token landing to claim possession in 1816, when the government was yet to be formally recognised, and failed to occupy or govern the islands. Argentine attempts to claim the islands in 1829 and 1830 were protested by Britain, and in 1833 a British warship finally expelled the small garrison.

Geographical realities suggest that if the Falklands must belong to someone, it should be the Argentines, who can lay claim to resources within their continental shelf. However, this leaves the question of the Falklanders themselves. The islanders reject the idea that they are a colony, and Britain defends their right to self determination as the first established population. The Argentine demand that they should be denied this right as a non-indigenous population seems morally repugnant, and there is a definite argument that an acceptance of historical reality would be the lesser of two evils.

Yet the Falklands do resemble a foreign settlement. Immigration policies have always been tough, and Argentines were totally barred during the period of greatest growth following 1982. As of 2006, only 29 residents were born in Argentina, compared to 1339 from the Falklands and 838 from the UK. The only Latin American country with a significant representation is Chile, sourcing 161 residents. The islanders may wish to preserve the little-England paradise they inhabit, but a rising population and the striking of oil are likely to sully the dream before too long. 

Although Britain can legally and perhaps morally fight the Argentine challenge, the current spat demonstrates that the Falklands cannot remain as they are indefinitely. However, the posturing on both sides suggests that neither is really interested in achieving an outcome. As commonly observed, both sides have used the Falklands to bolster domestic support in times of crisis, in accordance with diversionary theories of conflict. Although there are signs of a mild intellectual backlash in Argentina, it is unlikely that Cameron has as much to gain from an angry foreign policy in this conflict-weary nation. 

Given Argentine determination and their supporters in Latin America, the Falklands will increasingly appear an expensively fortified British settlement. Though the Falklands would likely contribute to their defence should oil be exploited, this would only spur the Argentines further. The UK should observe the mood in the Americas, and realise that the Falklands shall remain a symbol of Britain’s sordid colonial past so long as they are so stiffly defended. The insistence on maintaining a strong defence will only raise tensions in the region.

It is of course correct to defend the right to self determination, and the precedent of Gibraltar suggests that the UK lacks the authority to relinquish sovereignty against the wishes of the people of an overseas territory. Yet it is unfeasible for the islands to remain so isolated from the continent. It would be in the best interests of the UK and the Falklands if British politicians resisted the temptation to respond with fearful jingoism, and sought to undo the last three decades so that the islands can open up to their neighbours. Argentina is no longer a dictatorship in distress. A good start would be calling their bluff and allowing the demilitarisation of the Falklands, as Argentina is obligated to refrain from invading under international law.

The Land Rush

Sam Storr

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African palms being grown in Guatemala. Photo: Eitan Haddok

Crucial investments enabling Africa to feed both itself and the world, or a new wave of totalising globalisation that will bring about a dystopian age of hunger? The last decade has seen the phenomenon known as ‘land grabs’ reveal the most glaring inequalities in international property law.

Densely populated, industrialising countries such as China and North Korea require foreign lands to maintain food security as they grow, as do the oil-rich but water-poor Gulf States. As developed countries scramble to appear sustainable, the sacrifices are to be outsourced to those who polluate the least, but occupy the cheap land and fresh water needed to grow biofuels. Various institutions, such as Harvard University or even Scandinavian Churches, also make profitable investments in land through large hedge funds. Population rises and global warming could make freshwater the new petroleum; the International Institute for Environment and Development believes land grabs are better defined as ‘water grabs’.

Although land is not always sold, leases range from between a half- and a full- century. Contracts remain strictly confidential, which excludes both researchers and affected communities. Estimates suggest the land rented to be in the realm of 50 million hectares over the last few years. An uncontrolled market might be in the interests of some, but should be uncomfortable for those countries contributing aid in the name of development, human rights and good governance. Recent claims that land dispossessions were an important cause of conflicts in Sudan, Liberia, and Sierra Leone make this a key foreign policy issue.  

Development, infrastructure, food security; all are rightly seen as essential to unlocking Africa’s potential. To protect responsible investments, international law must ostracise those deals which illegally dispossess or disrupt the livelihoods of local populations. These are primarily the result of a systemic inequality; whilst international investment agreements provide strong legal guarantees that foreign investments will be protected, the fate of local populations is left entirely in the hands of national elites. 

Customary land tenure systems can be poorly integrated into the centralised states given sole precedence in international property law. The Rights and Resources Initiative claims that 428 million people in Sub-Saharan Africa use land in common that is in fact claimed by the state. A lack of documentation prevents land claims from being made, and allows the false assumption that land unaccounted for is unused. The poorest rural populations are being overwritten by dreams of modernisation and centralised state-building processes. Their best legal protections are the basic human rights to claim a livelihood. 

It cannot be assumed that a government gives adequate protection to its communities. Sudan in particular has been criticised for ignoring customary laws in order to support counter-insurgency strategies, and allow large-scale commercial development at the expense of smallholders.  One recent investment by the US firm Agrisol would evict over 160,000 long-established, but persecuted Burundian refugees from Tanzanian land. Agrisol, echoing the language of the Tanzanian government, claims to be developing land ruined by refugee camps, creating food security and spreading development in Tanzania.  The Oakland Institute (OI) contends that established businesses, farms and homes are being ended by the eviction. Repatriation should be voluntary; leasing the land whilst it is still occupied is an attempt to undermine the rights of those deemed undesirable to remain in the lives they have built for themselves.

The unilateral formation of international property law conveniently fails to question the rights of those given the keys to Africa. Until this can be rectified, comparisons with the colonial era of development are justified.

There are also arguments that predatory land investments violate more than property rights. At some point the land grab issue becomes a debate about the actual environmental and economic impact of heavy agriculture, monocrops and biofuels. Some claim that the efficiency and economic impact of sustainable communal farming is grossly underrated in comparison. In the case of Agrisol, it is doubted whether Tanzanian farmers will benefit from employment or instead be indentured to a large agricultural corporation, buying tools and GM seeds in a closed market. 

Neither can it be assumed that land rentals will bring greater revenues to affected populations. An OI report finds that major land deals typically include extremely generous financial incentives, such as tax exemptions and the right to expatriate all profits or produce. Land is rented out at a fraction of the price of developed countries or even, in the case of a 50-year lease on 100,000 hectares in Mali, for free. All non-renewable resources that are sold too cheaply are lost forever, and land can be damaged by intensive agriculture. Amartya Sen famously demonstrated that food availability has little relationship to the entitlements of the impoverished. The self-congratulatory promises of investors cannot justify the irony of land being lent for the use of the rich whilst its former inhabitants go hungry.

A great deal of research and legislation is required to give individual and customary property rights the same protections as foreign investments. This will necessarily be a transformative and contested process, as such systems can be highly complex, heterogeneous, and embedded in society rather than easily-legalised structures. For liberal legislators, this represents a chance to enshrine better property rights for women. Despite the dominant role of African women in food production, many are dependent on their marriage for their rights, and some traditional protections have even eroded with time. Putting the small farmer on the map is the first step towards acknowledging their economic contribution, needs and potentials, whilst encouraging corporate responsibility. The negotiating process should be more transparent so that governments and investors cannot avoid legal accountability, and are subject to enforceable guidelines that would allow local populations to dispute negotiations. 

Dispossession, the disruption of livelihoods and environmental damage can all be fought under the aegis of human rights standards, but not until the above work is done. Given the global pressures to exploit African resources, and the umbrella arguments of development and food security, it is important that states are convinced of their incentives and responsibilities to respect the rights of the marginalised. Ultimately, such reforms should be seen as enabling responsible investors to operate with less controversy.

The Threat of Cyber Security

Sam Storr

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The US Army is migrating all of its Windows-based computers to the Vista operating system to bolster Internet security by Dec. 31.Christian Marquardt US Army

Cyber-security is an issue that is being pushed to the forefront of international debate by both private industry and national defence departments, joining terrorism as the fifth priority risk identified by the UK’s National Security Strategy of October 2010. 

Several recent events suggest the response to cyber-security lags far behind current realities. Hacker collectives spent 2011 gleefully demonstrating the incompetence of those entrusted with our security and information. Distributed denial of service (DDoS) campaigns targeting Estonian and Georgian communications show that cyber-space is now on the battle-map. The Stuxnet worm, targeting the Iranian uranium enrichment programme, shows that states are already using the internet to engage in industrial sabotage. Meanwhile, legal scholars complain that there is little understanding of what terms such as cyber-warfare actually mean.

The Obama administration’s estimate that the global economy loses $1 trillion to cyber-crime annually is widely quoted, but the basis for this is unclear (the World Bank puts global GDP at just $63 trillion in 2010). Behind the hysteria of political statistics, the best measure of the danger is our vulnerability. As an economy dependent on financial transactions and intellectual property, increasingly integrating critical infrastructure and state services with the internet, the UK is especially at risk. With so many careers (and profits) being made on the back of hasty digitisation programmes, nobody wants to suffer the first major embarrassment. This explains why the new Cyber Security Operations Centre (CSOC) warns a successful cyber attack would cause a “catastrophic” failure of confidence in the government. Conversely, cyber-safety could become a valuable commodity, making the UK an attractive place to do business.

Threats to cyber-security can come rapidly and from anywhere, are difficult to trace and can be quickly covered up. Beyond physical constraints, they can theoretically be carried out by anyone, against anyone, and have complex, wide-ranging effects. States will need to prosecute against crimes perpetrated outside their borders. An effective deterrent would therefore require an extraordinary level of agreement on a framework to define unlawful cyber-actions, and the willingness to cooperate in responding to violation. UK foreign policy is to promote European efforts to create these definitions, draft national legislation, spread basic cyber capabilities, and encourage cooperation between centralised national taskforces. £650 million is to be spent on the national Cyber Security Strategy. 

Methods in critical military operations demonstrates the increasing importance of cyber-security in the modern world. Pete Souza Whitehouse on Flickr

The impulse of nations to impose themselves on the Internet can be in contrast with accepted internet freedoms, and this demonstrates some of the difficulties of international cooperation. Some states define security in ways that seek to limit the freedom of speech. Yet whilst William Hague calls for international agreement to stop dictators from preventing citizens using the internet to speak out and organise against them, he is undermined by calls for the makers of Blackberry phones to end their role in facilitating rioters to commit unlawful acts in the UK. 

Even if cooperation is possible, the academic counter-current warns that the opportunities offered by cyber-attacks and espionage will be too great for all states to respect their responsibilities, with Joseph Nye even making comparisons to the arms race of the Cold War. The difficulty of attributing responsibility for cyber-attacks may reduce the incentive to behave, or could even lead to states being wrongly accused. It is not difficult to imagine how the US might react if Iran appeared to be trying to steal atomic weapons technology, or if a hostile power appeared to have infiltrated critical defence systems. 

After the debate of what constitutes an unlawful act in cyberspace comes the matter of the right to respond to a violation; whether existing principles of international law can be adapted to the cyber-context, or whether they will be proven insufficient. The advantage of using established legal instruments to defend cyber-security is that they are less likely to be contested and can be deployed sooner. Avoiding the creation of a framework based on the nuances of cyber-space may ultimately lead to greater complications and a less flexible system.

Many nations, the UK included, are developing the ability to respond aggressively to an attack, to block it while it is happening and gain information of the intrusion; capabilities referred to by the euphemism “active defence”. Katharine Hinkle notes that this could refer to the principle of countermeasures, by which one state can take action to prevent another from committing internationally unlawful acts against it. It is also asked whether an attack on infrastructure that cost lives could constitute a use of force legitimating defensive action under Article 51 of the UN convention, or whether an attack on financial institutions could be considered similar to economic sanctions.

Even if international legal instruments could be bent towards every aspect of cyber-security, Hinkle suggests that some foundations of international law, such as the principle of proportionality, may not translate. A proportionate counter-attack in cyberspace is unlikely to result in a proportionate physical effect in the target country. It is also likely that, due to the potential of cyber-attacks to rapidly cause great damage, cyber-security will see increased claims of the right to pre-emptive attack.

A great deal of the precedent governing responses to cyber-threats will probably, as has been the pattern with quasi-legal interventions, be established by strong states against those who are unlikely to pose a strong military or legal challenge. Most uncertain is whether larger states will always conduct themselves according to international laws and prosecute crimes in their territory. Allegations are frequently made about Chinese Internet abuses, but they are difficult to substantiate and it is unlikely that action will be taken. The atmosphere of suspicion threatens to stifle the necessary moves to internationalise the response to cyber-security. It is yet to be seen who will be able to capitalise from this situation.