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The Corona effect

On complex causality in the international anti-corruption arena

27.05.2020

Can the flap of a bat’s wings in Hunan, China, send global markets into freefall and threaten democracy in the Americas? Today, most of us would answer in the affirmative – perhaps proof that Konrad Lorenz’s butterfly effect theory, which he first wrote about in 1972, is more relevant than ever. Catherine Mackinnon aside, few in the legal world have argued for complex causality in dynamic, unstable systems. Yet, the coronavirus pandemic might be a textbook example of causality, not only in the health context, but also in the legal one as it has proven that a government´s action or inaction can trigger a sequence of causal events with global consequences in areas not foreseeable. If there was a correlation between the virus´s origin and national or trans-national corruption, could COVID-19 create an argument for the development and strengthening of international and national anti-corruption systems all over the world?

Knowing how a pandemic starts, is key to stopping the next pandemic. From the Justinian plague to the Black Death to the smallpox that was brought into “the new world”, history has seen pandemics bring down empires and the social orders set by them. Quite often, however, there is a parallel story that puts the finger on the wound. The story of what led to the outbreak is resonant of societal weaknesses or malaises that set the stage for a pandemic to flourish and achieve its deadly effects. Those stories are often erased from history or at least forgotten. As Mathew Restall points out, once a myth is well grounded, it is taken as truth and we stop questioning: maybe Cortés was not the mighty conqueror we envision, maybe Montezuma did not surrender and, most likely, maybe the measles were not a defining factor in the fall of the Aztec empire. Yet this “triumphant victory” has been told so many times – most likely, to benefit the narratives dictated by new empires – that we have believed it. The story of the outbreak of COVID-19 might not be an exception.

Stories have been told to explain the origins of coronavirus and narratives have been created to explain the implications of the pandemic in the global community. While none of them is neutral, most of them agree on situating the origins of COVID-19 at the Huanan seafood market, located in Wuhan, China. Lacking a conclusive story, the existing ones coincide in the pointing out of three acts as part of this plot: First, the presence of the virus in some sort of wildlife (a bat, a snake or a pangolin); second, the human consumption of such wildlife, which had to be subsequent to an illegal purchase in the black market; third, some sort of state action that implicates the Chinese government in the delay of information about the virus or its spreading into the international community. Whether there was a bat or a pangolin starring in this tale, there appear to be two dots connecting coronavirus with possible acts of corruption. First, the transmission to humans due to the illegal purchase and consumption of wildlife species on the black-market. Second, the deliberate omission and/or suppression of essential information through state action, allegedly to obtain some benefit or avoid consequences.

According to the most broadly accepted definition, corruption is “the abuse of entrusted power for private gain”. This concept extends to embrace all people, private and public, that abuse entrusted power by action or inaction –at least willful inaction. Under this bracket, corruption embraces the two turning points in the outbreak of the virus under the prevailing stories.

First, there was the sale of wildlife. Selling wildlife itself turns out to be a crime, one that is sanctioned not only for its ecological consequences but also for its financial ones. The sale of wildlife products as luxury food items is usually part of highly profitable grand corruption schemes (estimated value of $23 billion each year) used to fund criminal and terrorist activity. Furthermore, for this illegal trade to take place in the open, those who had been entrusted with power had not exercised it, for example, the public officials who did not enforce the ban, or who turned a blind eye to the sale of this species very likely with a bribe in-between. Since the spread of Ebola, bans on wildlife consumption are not news to the international arena. After SARS (2002), wild meat was temporarily banned from markets all over the world, a decision that was backed by scientists from countries like China that alleged wildlife consumption would trigger the next pandemic. China banned the sale and consumption of civet cats after the World Health Organization experts confirmed the disease had been transmitted at restaurants that served civet dishes. Despite the ban, in Wuhan´s Huanan seafood market wildlife was illegally traded with apparent “normality”. The practice was not hidden from authorities; in fact, it was advertised through webpages such as YELP. Both elements – the normalization of open trade and public advertisement – point towards corruption as a very likely factor that led to these illegal sales taking place. This hypothesis is re-affirmed by the patterns of transmission that zoonotic diseases have shown in the past, which linked them to the illegal trafficking of wildlife.

Then, there are the alleged omissions of information by the Chinese government. In the U.S., claims have been raised that “Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers…[and] permitted millions of people to be exposed to the virus”. If these allegations are true, they depict actions which – should they have taken place within an enterprise – could be sanctioned under national anti-corruption statutes. In the international arena, claims have been raised to take China before international courts, either to the ICJ for violation of International Health Regulations or to the ICC claiming that the intentional spreading of the virus, understood as a biological weapon, could fall within the scope of article 7 of the Rome Statute . Despite the far stretch of these claims, a consensus can be reached that some degree of impunity underlies the outbreak of this pandemic – someone must have done something wrong.

Finally, the relationship between corruption and coronavirus might not be limited to the latter’s outbreak. As the experience of past humanitarian crises show, if aid and funding allocated to the combat of coronavirus and its economic and social effects are handled improperly, the collateral damage of corruption might be greater than the pandemic itself. For instance, during the Ebola outbreak, the Red Cross acknowledged that the response was hindered by the loss of $5 million dollars to fraud and corruption. For COVID-19, the World Bank has announced an increased $14 billion package of resources to assist companies and countries. But the success of any aid might be determined by the efficiency of national and international actions to address corruption.

In the last few decades, anti-corruption systems have bloomed in the global south, particularly in Latin America. Galvanized by international community, countries like Mexico and Colombia have implemented local anti-corruption systems. Yet, anti-corruption regulation is often perceived as merely economic regulation, thus regulated by the international arena only to the extent it is necessary to avoid unfair economic practices. What the coronavirus outbreak proves, is that the impact of an act of corruption should not be underestimated as its causal effects might reach far beyond the economic.

Much is left to be done in the international anti-corruption arena, but the origins and the after-effects of coronavirus will put the corruption discussion back on the table. Although the right to be free of official corruption is far from being officially acknowledged as a human right, the Inter-American commission and other international organs have recognized corruption’s effects on human rights. Either through an international anti-corruption court – such as the one that has been suggested by Colombia and Peru, despite the political and practical barriers such Court may encounter –, through international crimes that target grand corruption or other innovative responses. The case is set for an international response to grand trans-national corruption, one that the coronavirus has shown is much needed.

As it happens in history, the narrative of the coronavirus pandemic and the role played by its characters will be determined by the victors. Perhaps it is for that reason that chronicles tend to dilute essential pieces of the puzzle. In the case of COVID-19 that piece of the puzzle might be the role played by deep trans-national corruption networks in the outbreak of the disease. But maybe the strength of this bat’s wings might take this critical piece of puzzle into a narrative that results in the systemic transformation of anti-corruption law in the national and international arena and the cracking of the self-perpetuating trans-national corruption-impunity cycle.

 

María Elisa Vera Madrigal is legal director of TOJIL, estrategia contra la impunidad. She is also assistant professor at Escuela Libre de Derecho, in Mexico City.

 

Cite as: María Elisa Vera Madrigal, “The Corona effect: On complex causality in the international anti-corruption arena”, Völkerrechtsblog, 27 May 2020, doi: 10.17176/20200527-133420-0.

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