To bribe or not to bribe: human rights issues that should factor into decision making process

Abstract

Corruption is generally seen as a very negative and malevolent force in the world today; yet oftentimes, acts of corruption are heroically life-affirming and consistent with human rights. This article will examine this concept, suggesting that corruption should be a factor in business decision-making but must be balanced against other factors, particularly human rights considerations. The article looks at the “continuum” aspect of corruption, from that which is illegal as a result of domestic legislation, to that which may be illegal depending on circumstances, to that which is totally legal as it is either approved of directly by domestic legislation (such as licensing of lobbyists or political campaign contributions) or the act of corruption is exempt from the legislation (such as facilitation payments being legal under the FCPA). The “silo” effect often restricts discussion of these issues. Those in the “no corruption ever under any circumstances” silo refuse to engage with those in the silo of “human rights include freedom from corruption and therefore corruption has to be looked at within the context of human rights generally.” The issue of whether human rights are to be judged on the basis of short term or long-term basis is highlighted; while corruption may sustain dictatorial regime in the long run, human rights to development are short term rights. Canadian jurisprudence has engaged with this issue and seems to favour short term over long term regarding human rights. The article proposes that foreign investment decisions should therefore balance these often-conflicting principles, on the basis of whether the investment will likely result in highly improving human rights in the host state, moderately or negligibly and the probable effect of the act of corruption, and whether such act is legal or illegal.