The return to the victim country of assets stolen by a corrupt official has been much commented upon on this blog (here, here, here, here, and here). The discussion centers around whether governments holding the stolen assets must return them when the government requesting the return continues to be dominated by thieves.
Not surprisingly, the asset recovery provisions of the UN Convention Against Corruption provide little guidance. It was written at a particular moment in history — just after Ferdinand Marcos of the Philippines, Sani Abacha of Nigeria, and Suharto of Indonesia had fallen. These kleptocrats, whose massive theft of their nation’s resources inspired the UNCAC asset recovery chapter, had been replaced by democratically inclined leaders committed to the rule of law and the welfare of their citizens. The question then occupying UNCAC’s drafters was how to return the money to such rulers as quickly and inexpensively as possible.
But in hindsight, the replacement of these kleptocrats by enlightened rulers seems more an accident of history than a harbinger of future events. It is all too rare for a kleptocrat to be replaced by a democratically chosen successor of the likes of the Philippines’ Cory Aquino or South Africa’s Nelson Mandela. Far more common is the replacement of one kleptocrat by another — or by a gang of kleptocrats. When this is the case, must nations holding the fallen kleptocrat’s assets return them to another thieving government? Knowing chances are slim the assets will ever benefit those the thieves rule?
Although UNCAC offers no answer to these questions, in a paper delivered at a conference organized by Geneva Center for Civil and Political Rights I argue that UNCAC is not the only treaty governing states’ obligation to return stolen assets. There are as well provisions in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that states must observe. And these point decidedly against returning stolen assets to a kleptocracy. Thye dictate instead that the assets be returned directly to citizens.