Global Corruption: International Law’s Counterrevolution
North Carolina Journal of International Law (Forthcoming)
45 Pages Posted: 3 May 2019
Date Written: 2019
Levels of global corruption are staggeringly high. Technological developments have made it extremely easy to hide money, transfer money, and in turn use this money to influence the political systems of sovereign states. Tax avoidance and evasion are rife; politicians in various countries are being paid and sustained by foreign governments without adequate disclosure, and there is little coherent reaction from democratic nations. At the same time, suppression of free speech and targeting of civil society groups is spreading from country to country. Yet this toxic reality is not being confronted in any effective manner by international legal scholars, who appear to believe that the post-World War II system of international law will carry on as before. This article points out that in fact global corruption is destroying the international rule of law from within, and if not stopped, may well render public international law a set of empty abstractions, without the power to restrain national governments or protect vulnerable people. It seems that while public international law is in dramatic decline, legal scholars have scarcely noticed.
The development of public international law in the post-World War II period has been built on certain shared assumptions. In particular, scholarly experts in international law have conceived of the global system as moving forward in progressive increments, with democratic processes and human rights ever more prevalent and ever stronger. International violence and repression have been seen as deviations from an inevitable forward motion, a naïve approach that has created a dangerous inability to recognize threats to the very foundations of international law. This article argues that it is this failure to control global corruption that has placed the norms and principles of international law in imminent danger. Instead of democratic virtues spreading from country to country, we have in recent years seen the toxic spread of financial corruption into national governments in many countries around the world. With the rise of official corruption has come an inevitable determination to undermine democratic structures, traditionally thought to be the way of the future, guaranteed and underwritten by the norms and values of international law.
While this article was in progress, the author read the 2018 book, The Road to Unfreedom by Yale historian Timothy Snyder, as indicated in the article’s first footnote. Snyder makes the powerful case that overly optimistic assumptions of international progress left the Western world dangerously vulnerable to the insidious spread of corruption from the former Soviet Union. In Snyder’s view, the two essential choices at play in modern times are between a world of oligarchic stagnation and a world of continued integration and democratic succession. Snyder’s book thus provided the perfect theoretical backdrop to this article-in-progress, and my argument that too naïve a reliance on the familiar assumptions at the heart of international law have left us vulnerable to their undoing.
While some scholars have written about the dangers posed by global dark money and political corruption, few seem to have perceived that these unregulated funds are in the process of devouring the postwar international legal system. In a very literal sense, the continued operation of a global financial system that allows for massive levels of tax evasion, kleptocratic government and transnational bribery will ultimately bring an end to the global rule of law most of us believed to have been firmly established in the 1940s.
This article builds on the author’s earlier work relating to the vast problem of tax avoidance by multinational corporations and the very wealthy, and the manner in which national governments have made efforts to facilitate these corrupt actions. Often invisible to the public, governments everywhere, including at the heart of Europe, have missed opportunities to pass laws that might restrain the free flow of dark money. As global corruption has grown, in scale and strength, it now appears to be acting as a kind of “counterrevolution” intent on turning back the tide of democratic progress, as defined in core international law instruments. It is vital that international lawyers understand that fundamental international laws and norms cannot co-exist with a type of corruption that grows more audacious every year. This article is a timely call to action by those able to grasp the gravity of the threat to what had long been seen as the impenetrable fortress of international law.
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