The Transnationalization of Anti-Corruption Law (Preface)

The word corruption derives from Latin con (with) and rumpere (break) and emphasizes how a break of integrity is what matters the most. All forms of corruption, especially bribery, are related to this break of integrity. Since the beginning of time, the corruptive phenomenon has and continues to exist. In fact, corruption is an ongoing phenomenon that originated centuries ago, where officials in a given state used their positions to demand monetary or other benefits. Historically, no government has escaped from this phenomenon and until relatively recently, only little efforts have been employed at the international or regional levels to eliminate corruption. Recent studies assert that without drastic improvement in the provision of education and other societal values, the reduction of these practices will not be possible. However, the believe that the phenomena is intrinsic with the functioning of all political systems is a widespread misperception which slowed down anticorruption policies at a transnational level. In fact, this universal phenomenon persists until today, despite all the state level efforts to eradicate it and the technological developments that have occurred in the last century, where numerous high level corrupted employees and past corruption methods were busted by the police using extremely sophisticated technics. As a result, numerous stories and movies such as the “Wolf of Wall Street” and the “Inside Job” were based off these great accomplishments and highlight the depth to which corruption is deeply ingrained within the economic system. Additionally, the 2008 economic crisis highlighted the depth to which a state would go to bail out large banks and corporations despite their questionable activities resulting in the crisis. More recently, the Covid-19 pandemic has again highlighted this phenomenon as large corporations such as airline companies and even big basketball teams like the Los Angeles Lakers are being bailed out by the state on the expense of small business owners and citizens that constitute the main tax payers and which are in desperate need of money. While monetary forms such as bribery and embezzlement are prohibited almost everywhere today, other forms of corruption such as clientelism, cronysm, and favoritism are, in varying degrees, accepted by both governments and citizens. Ethics is shaped by culture; therefore, the acceptance of what could be perceived by others as a corruptive practice greatly vary across the globe. With the advent of globalization, interstate cooperation, trade and economic interdependence in the last century, corruption has developed greatly to suit the changes that occurred especially given the possibility of international cooperation over a network of highly corrupted groups. Such groups have emerged and created extremely sophisticated networks that go beyond the state’s and international organizations’ ability to track and address cross-borders corruption. These networks have utilized technological advancements to conduct all sorts of corrupted activities that fly under the radar and have benefitted from existing safe havens in several states that profit from such activities, mainly developing and least developing countries. Before the ‘new globalization’, corruption was perceived as a political internal issue rather than a global one. The increase of interlinkages amongst developed and developing nations as well as the rise of civil society as a key non-state actor coupled with the advancement of multilateralism resulted in a depoliticization of corruption. Good governance is now accepted to break corruption. However, anticorruption alone could not solve the devastating effects that this practice has on society. Corruption breaches the trust amongst citizens and governors, further distancing both from the participation to the res publica. The increase in both abstentionism and populist movements (whether left or right) are typical responses of a corrupted environment in representative democracies. By contrary, autocratic ones could leverage corruption to fortify implementation of national policies by officials, further reducing the already limited space of citizen participation. Evidently, transnationalization of anticorruption policies, regardless of government forms, fills this trust gap. On another note, anticorruption could also be seen as a depoliticized and neutral governance tool balancing the excess of globalization. In fact, if anticorruption manages to become an acknowledged transnational law and governance field, national states could benefit in turn. Punishment of corrupted politicians could be therefore recognized as a task of the international community that not only has the financial means and capacity to hunt down corruption network, but also the legitimacy in light of the mobility of capital. If a corrupted politician moves resources in tax haven, the national judiciary has limited capacity to counteract this behaviour. In addition, against this background, an approach to corruption encompassing not only bribery, but other forms of undue influences over local concerns could be beneficial to align globalization with social values. This is why, the establishment of global regulatory frameworks targeting cross-border corruption has been evolving in the last decades where numerous international agreements and non-binding instruments have been adopted to that end. These legal mechanisms were the result of events that occurred over decades, prompting states and the international community to push towards their adoption given the need for such instruments. The establishment of such mechanisms should be seen in the general framework of constant development and progress of international law and its fragmentation. In that sense, the increasing common challenges that have been recognized since the 1950s and 1960s, the emergence of new challenges, and the need for a global response have put pressure on international law to develop and progress to tackle all these matters. Therefore, the binding and nonbinding applicable rules to anticorruption are just one of the numerous international instruments established to address fields such as international trade, human rights, natural resources management, and so on. These rules are developed, because of the increasing technicalities in each of these fields and require specific knowledge and expertise as well as an interdisciplinary approach to each topic including anticorruption.