RES/28/5 The negative impact of the non-repatriation of funds of illicit origin to the countries of origin on the enjoyment of human rights, and the importance of improving international cooperation

GE.A/HRC/22/42 and Corr.1. 5-07471 (E)



Human Rights Council Twenty-eighth session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Resolution adopted by the Human Rights Council

28/5. The negative impact of the non-repatriation of funds of illicit

origin to the countries of origin on the enjoyment of human rights, and

the importance of improving international cooperation

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Reaffirming the Universal Declaration of Human Rights, the Declaration on the

Right to Development, the Vienna Declaration and Programme of Action and other relevant

human rights instruments,

Recalling General Assembly resolutions 60/251 of 15 March 2006, 62/219 of 22

December 2007 and 65/281 of 17 June 2011, and Human Rights Council resolutions 5/1

and 5/2 of 18 June 2007, 11/11 of 18 June 2009 and 16/21 of 25 March 2011,

Recalling also General Assembly resolutions 54/205 of 22 December 1999, 55/61 of

4 December 2000, 55/188 of 20 December 2000, 56/186 of 21 December 2001, 57/244 of

20 December 2002, 58/205 of 23 December 2003, 59/242 of 22 December 2004, 60/1 of 16

September 2005, 60/207 of 22 December 2005, 61/209 of 20 December 2006, 62/202 of 19

December 2007, 63/226 of 19 December 2008, 64/237 of 24 December 2009, 65/1 of 22

September 2010, 65/169 of 20 December 2010, 67/192 of 20 December 2012, 68/195 of 18

December 2013, 68/309 of 10 September 2014 and 69/199 of 18 December 2014,

Recalling further Human Rights Council resolutions 17/23 of 17 June 2011, 19/38

of 23 March 2012, 22/12 of 21 March 2013 and 25/9 of 27 March 2014,

Welcoming the entry into force on 14 December 2005 of the United Nations

Convention against Corruption,

Reiterating the commitment to ensure the effective enjoyment of all civil, political,

economic, social and cultural rights for everyone, including the right to development, and

the obligation of all States, regardless of their political, economic and cultural systems, to

promote and protect all human rights and fundamental freedoms,

United Nations A/HRC/RES/28/5

General Assembly

Reaffirming that all peoples may, for their own ends, freely dispose of their natural

wealth and resources without prejudice to any obligations arising out of international

economic cooperation, based upon the principle of mutual benefit, and international law,

and that in no case may a people be deprived of its own means of subsistence,

Recognizing that fighting corruption at all levels is a priority and that corruption is a

serious barrier to effective resource mobilization and allocation and diverts resources away

from activities that are vital for poverty eradication, the fight against hunger, and economic

and sustainable development,

Alarmed at cases in which the proceeds of corruption-related crimes that involve

vast quantities of assets may constitute a substantial proportion of the resources of States,

the deprivation of which threatens the political stability and sustainable development of

those States and has a negative impact on the application by States of the maximum

available resources to the full realization of all human rights for all,

Deeply concerned that the enjoyment of human rights, be they economic, social and

cultural, or civil and political, in particular the right to development, is seriously

undermined by corruption and the transfer of funds of illicit origin, which may endanger the

stability and security of societies, undermine the values of democracy and morality and

jeopardize social, economic and political development, especially when an inadequate

national and international response leads to impunity,

Recalling the United Nations Convention against Corruption, underlining its central

role in fostering international cooperation to facilitate the repatriation of the proceeds of

corruption-related crimes, and stressing the need for universal adherence to the Convention

and for its full implementation, as well as the full implementation of the resolutions and

decisions of the Conference of the States Parties to the Convention, particularly those

adopted at its fourth and fifth sessions,

Recalling also that the United Nations Convention against Corruption underlines

that States parties should not decline to render mutual legal assistance, pursuant to the

Convention, including on the ground of bank secrecy,

Taking note of the work carried out by different United Nations bodies, including

the United Nations Office on Drugs and Crime, and international and regional organizations

in preventing and combating all forms of corruption,

Bearing in mind that the prevention and eradication of corruption is a responsibility

of all States, and that States should cooperate with one another, in accordance with the

United Nations Convention against Corruption, with the support and involvement of other

stakeholders, as appropriate,

Encouraging all relevant United Nations mechanisms to continue their consideration

of the negative impact of illicit financial flows on the enjoyment of human rights, to further

explore policy responses to the phenomenon and to coordinate their efforts in this regard,

Recognizing that supportive domestic legal systems are essential in preventing and

combating corrupt practices and the transfer of assets of illicit origin and in returning such

assets, and recalling that the fight against all forms of corruption requires strong institutions

at all levels, including at the local level, able to take efficient preventive and law

enforcement measures consistent with the United Nations Convention against Corruption,

in particular chapters II and III thereof,

Appreciating the continued efforts of the Conference of the States Parties to the

United Nations Convention against Corruption, through its various intergovernmental

working groups, to oversee the review process of the implementation of the Convention, to

advise on the provision of technical assistance for building institutional and human capacity

in States parties for the prevention of corruption, and to enhance international cooperation,

including in the repatriation of funds of illicit origin,

Affirming the responsibilities of requesting and requested States in the repatriation of

funds of illicit origin, cognizant that countries of origin must seek repatriation as part of

their duty to ensure the application of the maximum available resources to the full

realization of all human rights for all, including the right to development, address human

rights violations and combat impunity, and that recipient countries, on the other hand, have

a duty to assist and facilitate repatriation, including through judicial assistance, as part of

their obligation of international cooperation and assistance under chapters IV and V of the

United Nations Convention against Corruption and in the field of human rights,

Recalling that the repatriation of funds of illicit origin requires the close and

transparent coordination and cooperation of requesting and requested States, including

between competent authorities, in particular the judicial authorities, within the shared

responsibility to facilitate efficient international cooperation for the prompt recovery of

assets of illicit origin,

Recalling also that article 2.1 of the International Covenant on Economic, Social and

Cultural Rights notes the need for each State party to take steps, individually and through

international assistance and cooperation, especially economic and technical, to the

maximum of its available resources with a view to achieving progressively the full

realization of the rights recognized in the Covenant by all appropriate means, and article 3.A/HRC/26/28 and Corr.1.

of the Declaration on the Right to Development, which notes that States have the duty to

cooperate with each other in ensuring development and eliminating obstacles to

development,

Affirming the commitment made at the 2005 World Summit and the 2010 high-level

plenary meeting of the General Assembly on the Millennium Development Goals to make

the fight against corruption a priority at all levels and to curb the illicit transfer of funds,

Concerned at the difficulties, in particular the practical difficulties, that both

requested and requesting States face in the repatriation of funds of illicit origin, taking into

account the particular importance of the recovery of stolen assets for sustainable

development and stability, and noting the difficulties of providing information establishing

a link between the proceeds of corruption in the requested State and the crime committed in

the requesting State, which in many cases may be difficult to prove, bearing in mind that

everyone charged with a criminal offence has the right to be presumed innocent until

proven guilty according to law,

Acknowledging the progress made towards the implementation of the United Nations

Convention against Corruption, while recognizing that States continue to face challenges in

recovering funds of illicit origin owing to, inter alia, differences in legal systems, the

complexity of multijurisdictional investigations and prosecutions, lack of familiarity with

the mutual legal assistance procedures of other States and difficulties in identifying the flow

of funds of illicit origin, noting the particular challenges in recovering them in cases

involving individuals who are or have been entrusted with prominent public functions and

their family members and close associates, and recognizing that legal difficulties are often

exacerbated by factual and institutional obstacles,

Noting with serious concern that, as highlighted in the interim report by the

Independent Expert on the effects of foreign debt and other related international financial

obligations of States on the full enjoyment of all human rights, particularly economic,

social and cultural rights,1 despite the scarcity of available public data, most illicit financial

outflows are from developing countries; that, according to the Independent Expert in his

interim study on illicit financial flows, human rights and the post-2015 development

agenda,A/HRC/28/60 and Corr.1. recent studies indicate that developing countries lost $991 billion in illicit financial

outflows in 2012, that those flows increased in real terms at a rate of 9.A/HRC/25/52. per cent per annum

over the period 2003–2012, and that the annual loss is substantially more than the estimated

yearly costs of achieving the Millennium Development Goals; and that, as indicated by the

Special Rapporteur on extreme poverty and human rights in her report on taxation policies,3

in 2011, developing countries lost $946.7 billion owing to illicit financial flows – a

substantial portion of which relating to tax abuse – which, according to the Organization for

Economic Cooperation and Development, was more than seven times the official

development assistance for that year and substantially more than the estimated costs of

achieving the Millennium Development Goals,

Noting with serious concern also that, as highlighted by the Independent Expert in

his final report,4 while official development assistance remains an important source of

finance for poverty alleviation and development, the substantial amounts lost to illicit

financial flows could help the efforts of developing countries to mobilize domestic

resources for poverty alleviation, development and realization of human rights, and to

reduce their dependence on external financing, which can lead to the erosion of ownership

of national development agendas,

Welcoming the proposal of the High-level Panel of Eminent Persons on the Post-

2015 Development Agenda and of the Open Working Group of the General Assembly on

Sustainable Development Goals to include in the future United Nations development

agenda the goal to reduce significantly by 2030 illicit financial and arms flows, to

strengthen the recovery and return of stolen assets and to combat all forms of organized

crime,

Noting the particular concern of developing countries and countries with economies

in transition regarding the need to return assets of illicit origin derived from corruption, in

particular to countries from which they originated, consistent with the principles of the

United Nations Convention against Corruption, in particular chapter V thereto, so as to

enable countries to design and fund development projects in accordance with their national

priorities in view of the importance that such assets can have to their sustainable

development,

Convinced that the illicit acquisition of personal wealth can be particularly damaging

to democratic institutions, national economies and the rule of law, and stressing that any

resource that the State is deprived of because of corruption has potentially the same

negative effect, regardless of whether it is exported or domestically retained,

1. Welcomes the interim study on illicit financial flows, human rights and the

post-2015 development agenda prepared by the Independent Expert on the effects of

foreign debt and other related international financial obligations of States on the full

enjoyment of all human rights, particularly economic, social and cultural rights; 2

2. Encourages States to ensure the adoption of a specific target on significantly

reducing illicit financial and arms flows, strengthening the recovery and return of stolen

assets and combating all forms of organized crime in the final post-2015 development

agenda;

3. Calls upon all States that have not yet acceded to the United Nations

Convention against Corruption to consider doing so as a matter of priority;

4. Calls upon States to consider enacting legislation to address offences by

business enterprises, including multinational corporations, which deprive Governments of

legitimate domestic sources of revenue for the implementation of their development

agendas;

5. Asserts the urgent need to repatriate illicit funds to the countries of origin

without conditionalities, in accordance with the United Nations Convention against

Corruption and the commitments made at the 2005 World Summit and the 2010 high-level

plenary meeting of the General Assembly on the Millennium Development Goals to make

the fight against corruption a priority at all levels and to curb the illicit transfer of funds,

and urges all States to step up their efforts to trace, freeze and recover those funds;

6. Acknowledges the importance of compliance with international human rights

law in relation to the repatriation of funds of illicit origin by, inter alia, promoting human

rights-based policy coherence in the deliberations and actions by States Members of the

Human Rights Council and in the intergovernmental process of implementing the United

Nations Convention against Corruption;

7. Invites the Conference of the States Parties to the United Nations Convention

against Corruption to consider ways of adopting a human rights-based approach in the

implementation of the Convention, including when dealing with the repatriation of funds of

illicit origin, and appreciates the continued efforts of the Open-ended Intergovernmental

Working Group on Asset Recovery of the Conference to assist States parties in fulfilling

their obligations under the Convention to prevent, detect and deter in a more effective

manner the international transfer of funds of illicit origin and to strengthen international

cooperation in asset recovery, bearing in mind that, regardless of the capacities, resources

and willingness of the requesting State’s institutions and authorities, there is a victim

society that is suffering the consequences of the transfer of those funds;

8. Welcomes the decision made at the fifth session of the Conference of the

States Parties to the United Nations Convention against Corruption to renew the mandate of

open-ended intergovernmental expert meetings on international cooperation to advise and

assist States with regard to extradition and mutual legal assistance, notes with appreciation

the Stolen Assets Recovery Initiative of the World Bank Group and the United Nations

Office on Drugs and Crime, and encourages coordination among existing initiatives;

9. Calls upon States to consider establishing an intergovernmental working

group on the negative impact of illicit financial flows on the enjoyment of human rights,

and to further explore policy responses to the phenomenon;

10. Realizes that, while illicit financial outflows from the least developed

countries may account for only a small portion of all outflows of funds of illicit origin

worldwide, they have a particularly negative impact on social development and the

realization of social, economic and cultural rights in these countries, given the size of their

economies, and expresses deep concern that such outflows, as estimated by the United

Nations Development Programme, exceed the total official development assistance

received by many of the least developed countries and, in some cases, surpass their debt

service payments;

11. Underscores that the repatriation of funds of illicit origin would provide

States that have undergone regime change with a further opportunity to improve the

realization of economic, social and cultural rights and to fulfil their obligation to meet the

legitimate aspirations of their peoples;

12. Acknowledges the important role that civil society can play in exposing

corruption and drawing attention to the negative impact of the non-repatriation of funds of

illicit origin on the rule of law and the realization of economic, social and cultural rights,

and reiterates in this context the obligation of States to protect reporting persons in

accordance with article 33 of the United Nations Convention against Corruption and the

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society

to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms;

13. Welcomes recent national initiatives to adopt anti-money-laundering

legislation as an important step in the fight against corruption and the willingness

demonstrated by some States to cooperate in facilitating the repatriation of funds of illicit

origin, and calls for more robust regulations in this regard, including through the

implementation of policies aimed at reducing the flow of funds of illicit origin, ensuring

their repatriation and the provision of technical assistance to developing countries;

14. Calls for further international cooperation through, inter alia, the United

Nations system, in support of national, subregional and regional efforts to prevent and

combat corrupt practices and the transfer of assets of illicit origin, in accordance with the

principles of the United Nations Convention against Corruption, and in this regard

encourages close cooperation at the national and international levels between anti-

corruption agencies, law enforcement agencies and financial intelligence units;

15. Calls upon all States requested to repatriate funds of illicit origin to uphold

fully their commitment to make the fight against corruption a priority at all levels and to

curb the illicit transfer of funds, and to acknowledge that, in fulfilling their obligations in

this regard under the United Nations Convention against Corruption, they also have a

responsibility towards societies affected by corruption to make every effort to achieve the

repatriation of funds of illicit origin to the countries of origin in order to diminish the

negative impact of non-repatriation, including on the enjoyment of human rights, in

particular economic, social and cultural rights in the countries of origin by, inter alia,

lowering the barriers imposed on requiring jurisdictions at the tracing stage and enhancing

cooperation in this regard between anti-corruption agencies, law enforcement agencies and

financial intelligence units, in particular taking into account the risks of dissipation of those

funds and, where appropriate, by delinking confiscation measures from a requirement of

conviction in the country of origin;

16. Calls upon all States requesting the repatriation of funds of illicit origin to

uphold fully their commitment to make the fight against corruption a priority at all levels

and to curb the illicit transfer of funds, and to apply the principles of accountability,

transparency and participation in the decision-making process regarding the allocation of

repatriated funds to the realization of economic, social and cultural rights in order to

improve prevention and detection procedures, correct identified weaknesses or

mismanagement, prevent impunity, provide effective remedies directed at creating

conditions for avoiding new human rights violations and improve the overall administration

of justice;

17. Reaffirms that it is the obligation of the State to investigate and prosecute

corruption, calls upon all States to strengthen criminal proceedings directed at freezing or

restraining funds of illicit origin, and encourages requesting States to ensure that adequate

national investigative procedures have been initiated and substantiated for the purpose of

presenting mutual legal assistance requests, and in this context encourages requested States

to provide information on legal frameworks and procedures to the requesting State and to

remove barriers to asset recovery, including by simplifying their legal procedures;

18. Underlines that there is also a corporate responsibility to comply with and

respect all applicable laws and human rights, and a need for greater access to effective

remedies by victims in order to realize effective prevention of, and remedy for, business-

related human rights harm, as set out in the Guiding Principles on Business and Human

Rights;A/HRC/17/31, annex.

19. Encourages all States to share best practices and practical experiences in the

freezing and recovery of funds of illicit origin;

20. Calls upon requesting and requested States with practical experience in asset

recovery to develop, as appropriate, in cooperation with interested States and providers of

technical assistance, non-binding practical guidelines, such as a step-by-step guide for

efficient asset recovery, with a view to enhancing effective approaches to asset recovery

based on the lessons learned from past cases, while being mindful to seek to add value by

building upon existing work in this area;

21. Stresses the need for transparency in financial institutions and effective due

diligence measures to be applied by financial intermediaries, calls upon States to seek

appropriate means in accordance with their international obligations to ensure the

cooperation and responsiveness of financial institutions to foreign requests to freeze and

recover funds of illicit origin and the provision of an efficient mutual legal assistance

regime to States requesting repatriation of those funds, and encourages the promotion of

human and institutional capacity-building in that regard;

22. Recalls the importance of the mechanism for the review of implementation of

the United Nations Convention against Corruption, and urges State parties to comply with

their obligations in the conduct of country reviews to enhance effective implementation of

the Convention as a preventive measure for the outflow of illicit financial flows;

23. Requests the Independent Expert on the effects of foreign debt and other

related international financial obligations of States on the full enjoyment of all human

rights, particularly economic, social and cultural rights, to continue to consider the impact

of illicit financial flows on the enjoyment of human rights as part of the mandate;

24. Also requests the Independent Expert to convene an experts meeting, with the

participation of States and other stakeholders, on the issue of the negative impact of the

non-repatriation of funds of illicit origin to the countries of origin on the enjoyment of

human rights, to include the outcome of that meeting in a study that he will present to the

Human Rights Council at its thirty-first session, and to participate in the third International

Conference on Financing for Development to highlight the links between illicit financial

flows, development financing and human rights;

25. Requests the United Nations High Commissioner for Human Rights to

provide all assistance and financial resources necessary to allow the Independent Expert to

carry out the mandate set out in the present resolution, and calls upon all relevant

stakeholders, including States and United Nations bodies and agencies, and other

international and regional entities to cooperate fully with the Independent Expert in this

regard;

26. Requests the Secretary-General to bring the present resolution to the attention

of all Member States and different forums dealing with the issue of the repatriation of funds

of illicit origin within the United Nations system for consideration and necessary action and

coordination as appropriate, particularly within the context of the Conference of the States

Parties to the United Nations Convention against Corruption;

27. Decides to continue its consideration of this matter under the same agenda

item.

55th meeting

26 March 2015

[Adopted by a recorded vote of 33 to 2, with 12 abstentions. The voting was as follows:

In favour:

Algeria, Argentina, Bangladesh, Bolivia (Plurinational State of), Botswana,

Brazil, China, Congo, Côte d’Ivoire, Cuba, El Salvador, Ethiopia, Gabon,

Ghana, India, Indonesia, Kazakhstan, Kenya, Maldives, Mexico, Morocco,

Namibia, Nigeria, Pakistan, Paraguay, Qatar, Russian Federation, Saudi

Arabia, Sierra Leone, South Africa, United Arab Emirates, Venezuela

(Bolivarian Republic of), Viet Nam

Against:

Japan, United States of America

Abstaining:

Albania, Estonia, France, Germany, Ireland, Latvia, Montenegro,

Netherlands, Portugal, Republic of Korea, the former Yugoslav Republic of

Macedonia, United Kingdom of Great Britain and Northern Ireland]