The asset recovery provisions of the United Nations Convention Against Corruption make it one of the most consequential international agreements of the past 50 years. Prior to UNCAC, the law of “finders keepers” applied when the proceeds of a crime committed in one state were discovered in a second. If the second state caught thieves with a sack of cash stolen from a bank in the first state, the first state could ask that the money be returned. But the second state had no obligation to return it.
UNCAC repeals “finders keepers” for corruption offenses. It makes the return of assets stolen from a state party through corruption “a fundamental principle of this Convention” and obliges state parties to “afford one another the widest measure of cooperation and assistance in this regard” (article 51). When the requesting state’s title to the assets is clear, its courts have issued a final order confiscating them, and that order has been given effect by the holding state’s courts, return is immediate (article 57(3)). In all other cases, return is made pursuant to “mutually acceptable arrangements on a case-by-case basis” (article 57(5)).
From their first meeting in December 2006, parties to the convention have focused on how well the asset recovery provisions are working in practice. At that meeting, they created an open-ended working group “to advise and assist” them “in the implementation of [the convention] mandate on the return of proceeds of corruption.” At every meeting up to and including the most recent one in 2017, the parties have directed the working group to continue investigating the efficacy of the asset recovery articles with an eye on how they can be improved. Yet at no time have the parties ordered the first and most important step in assessing their effectiveness.
They have yet to demand the creation of a comprehensive list of asset recovery cases concluded or in process since the convention came into force. Almost 15 years after the convention came into force, there is still no database the working group, state parties, or independent analysts can consult which lists each the country to which assets were returned, the countries from which they were returned, the amount, the UNCAC provision or provisions governing the return, the text of any article 57(5) agreement, the text of any final order or orders of confiscation, and other information that would help in evaluating how well the asset recovery chapter is working in practice and whether there are areas where it could be improved.
The closest to a complete list of cases is StAR’s “Asset Recovery Watch,” available on its web site. The data consist of international asset recovery cases initiated since 1980 that are completed or still underway. The data was initially assembled in 2011 from state parties’ responses to requests for information on any asset recovery in which they were involved. StAR supplemented the responses with information from various sources and has continued to update the database as time and resources permit. At present, the data contains information cases which together have resulted in more than $8.2 billion in stolen assets being frozen, confiscated, or repatriated.
But as StAR staff are the first to acknowledge, the data is not comprehensive and indeed on the first page of the Asset Recovery Watch web page, StAR asks users to submit information on additional cases or to fill in missing date on the cases listed. (Readers please take note and help.) For an expert meeting on asset recovery later this year, the U.N. Office on Drugs and Crime is also trying to gather information on asset return, and as a consumer of this information (I am preparing a background paper for the meeting), I can say the information to date is anything but complete.
StAR’s efforts to assemble a comprehensive data base on asset recovery cases suffers from the same problem as UNODC’s request for information for this year’s meeting. Both depend upon the willingness of state parties to voluntarily provide information on cases. Thus, as with UNODC’s request, the StAR data is only as complete as state parties’ responses permit. And to date, that permission has not been robust.
The parties to UNCAC should direct StAR and UNODC to assemble a complete list of asset repatriation cases. The more complete the information the international community has on asset repatriation, the better it can judge if any changes are required to increase recoveries. State parties should be urged in the strongest terms to be more forthcoming in response to requests for case data. StAR and UNODC should be provided funds to follow up when requests to state parties go unanswered and to subscribe to international databases that maintain records on asset recovery cases.
The successful operation of the asset recovery chapter is critical to UNCAC’s success and thus to the global fight against corruption. The creation of a comprehensive database on recovery cases is a long-overdue first step in assessing the chapter’s success.