UNCAC Recovers Assets, but Who Restores Human Rights? -By Fransiscus Nanga Roka

More than 20 years ago the United Nations Convention against Corruption enshrined asset recovery as a “fundamental principle” But even today the international system still assesses justice by what amount of state funds are frozen, seized and transferred—not whether the peasants impoverished by corruption will ever receive restitution.

This is the most perilous blind spot of UNCAC.

Chapter V governs the tracing, freezing, confiscation and return of assets through law enforcement cooperation. Governments negotiate, prosecutors exchange evidence, courts make orders and financial intelligence units trace the transactions. Meanwhile the real victims, patients without drugs, children without schools, communities without water remain only legally peripheral.

So who, exactly, does asset recovery help?

The public wealth may be moved across borders by corrupt officials, big businesses with political connections, financial institutions or those who operate shell-companies for the purpose and professional deniable enablers. Yet the resulting deprivation lands on individuals and communities, especially in developing and institutionally fragile states. But at some point, when a disease of corruption systematically robs health, education, housing, water or social-protection budgets it is no longer just an ambush on the treasury. Its consequences trigger obligations under the International Covenant on Economic, Social and Cultural Rights and, if secrecy, discrimination repression or denial of remedy are implicated, the International Covenant on Civil and Political Rights.

Injury starts with the embezzlement of public wealth. This continues while assets are hidden abroad, mutual legal-assistance requests sit unfulfilled and requested states hide behind procedural formalism. If it sinks back into closed budget blackholes or is appropriated again by a new political elite, it can survive in spite of repatriation.

This means that UNCAC must be read in the light of international human-rights law. Article 31(3)(c) of the Vienna Convention on the Law of Treaties embodies a systemic-integration principle according to which, treaty obligations must be interpreted not in isolation from one another but rather against other applicable rules of international law. Asset recovery should therefore be about restitution, participation, equality, transparency and effective remedy—as opposed to sovereign ownership.

This rethinking must be done without reserving due process. Governments should not invoke human rights to the cay as a justification for arbitrary confiscation. Each affected person should continue to have access to an independent tribunal, notice of proceedings, the possibility to contest evidence and protection of the legitimate interests of third parties with proportionate safeguards for property rights. Human-rights-based recovery constrains state power at both ends: it prevents tax havens from bailing out their own inertia to retain stolen assets forever, and keeps requesting governments from arbitrarily confiscating or reallocating them.

Five reforms are urgent.

First, The Conference of the States Parties to UNCAC and the Office of the UN High Commissioner for Human Rights should adopt joint principles on rights-based asset recovery.

Second, iStates must conduct corruption impact and human-rights assessments that identify individual, collective, institutional and intergenerational victims before agreeing to return.

Third, we must engage affected communities prior to allocation decisions being made. Consulting after political elites have determined where the money goes amounts to democratic theater.

In fourth place, assets that are returned need to go into segregated accounts with all deductions clearly accessible to the public, contracts tied to beneficial owners also made known and sanctioned payments with or without final beneficiaries publicly available. Because the money trails that begin with confiscation yield measurable outcomes, independent financial and human-rights audits must be conducted.

Fifth, victims require effective mechanisms for filing complaints; whistleblowers need protection from retaliation beyond those measures currently in place and journalists and civil-society monitors need safe sourcing.

Whether stolen money has crossed some border is not the key question. The question is does its return restores healthcare, education, clean water, equality and human dignity.

Absent that transformation, UNCAC could effectively recover property whilst leaving injustice in its wake.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia