As readers of this blog know, the asset recovery provisions of the United Nations Convention Against Corruption sit uneasily with states’ duties under the International Covenant on Civil and Political Rights and other human rights conventions (here and here). Most notable is the conflict between states’ obligations under UNCAC to return stolen assets in response to a confiscation order issued by a foreign court and their obligation under the ICCPR to refuse recognition to a judgment issued in violation of a defendant’s basic rights. What is a state to do if presented with an asset recovery order secured by torture?
The fair trial/judgement recognition conflict is not the only tension between states’ anticorruption and human rights responsibilities under international law. What if the state requesting return of stolen assets is guilty of rampant human rights abuses? Does UNCAC’s mandatory return provisions trump the requested state’s duties to further human rights and avoid being an accomplice to violations?
For the past year the United Nations Office of the High Commissioner for Human Rights has consulted with governments, academics, and human rights and corruption lawyers on how to reconcile the tensions between the two bodies of international law. The resolution may not please states with poor human rights records, but the rest of global community will surely applaud the careful, scholarly approach found in its draft Guidelines on a Human Rights Framework for Asset Recovery. The OHCHR now asks Member States, intergovernmental organizations, national, regional and global human rights groups, NGOs, academic experts, and practitioners for comments on its handiwork. Details on how and where to submit them are here. The deadline is October 30.
Do we need to worry about human rights and asset recovery when hardly any asset recovery cases happen? Are we expecting a surge in asset recovery that may make this topic more relevant? This is not to disrespect the importance of individual abuses of human rights that might theoretically increase if asset recovery changed, but with so few cases are there not other more useful things that anticorruption specialists could do? Like finding out why asset recovery doesn’t happen?