GAB is pleased to welcome back Robert Packer, from the University of Nanterre, who contributes the following guest post:
Article 57 of the United Nations Convention Against Corruption (UNCAC), which outlines provisions concerning the return of stolen assets, was the most contentious piece of the entire convention. A straightforward reading of Article 57 appears to require state parties to return assets “on the basis of a final judgement in the requesting State Party” (emphasis added). Often, however, a final judgement is not forthcoming. Article 57 addresses that contingency in its final paragraph, which provides for “agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property.” That gives rise to another extremely contentious question, discussed previously on this blog (see here, here, and here): Is it legally permissible for states that confiscate the assets to attach conditions on their return?
Claimant countries would claim that the answer is no. First of all, they argue, attaching conditions to the return of assets would violate principles of sovereignty and non-intervention provided for in Article 2 Paragraph 7 of the United Nations Charter. Whereas placing conditions on foreign aid is accepted as a legitimate intervention, withholding a state’s stolen property is not. Furthermore, the state that seized illicit assets in its territory (the “holding state”) has no legal right to this property, and may be at least partly responsible for its theft and concealment in the first place.
Holding states argue, however, that they should not be obliged to return stolen assets to a country where there is a high probability that these assets will once again be lost to corruption. On this view, the claimant state’s right to the property is outweighed by the international interest in the prevention of corruption, an interest affirmed through UNCAC. Attaching conditions to the return of stolen assets (in those cases where there has not been a final judgment in the claimant country, one that holds someone accountable for the theft) also goes towards fulfilling victims’ rights to the truth and guaranties of non-repetition. Therefore, the argument continues, it is sensible to assume that Article 57’s final paragraph implies that conditions on the return of assets (in the absence of a definitive final judgment in the claimant country’s courts) are permissible so long as those conditions further those anticorruption ends.
This latter way of understanding Article 57 is attractive: it does not give a carte blanche to holding states, and permits conditions only so long as those conditions contribute to the suppression and prevention of corruption, and to the reparation of victims. These conditions must be in furtherance of those legitimate ends of UNCAC, and must be proportional. This “proportionality” approach might help resolve what has long been a bone of contention between holding and claimant parties.