CAC/COSP/WG.2/2017/CRP.2

24 August 2017

Original: English

V.17-05991 (E)

*1705991*

Open-ended Intergovernmental

Working Group on Asset Recovery Vienna, 24-25 August 2017

Documents of the Human Rights Council 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, and the importance of improving international cooperation

United Nations AllRc ACrl9L.5

General Assembly Distr.: LimitedV V lOAugust2Ol7?

Original: English

Human Rights CouncilAdvisory CommitteeNineteenth session7-I I August 20I7Agenda item 2 f)Requests addressed to the Advisory Committee stemming from Human Rights Council resolutionsRequests currently under consideration b’ the CommitteeNegative impact of the non—repatriation of funds of illicit origin on enjoyment of human rights

Mr. Ibrahim Abdulazi Alsheddi, Mr. Mohamed Bennani, Ms. laurence Boisson (IcChazournes, Mr. Lazhari Bouzid, Mr. Mario Luis Coriolano, Mr. Ion Diaconu, Ms.KaHn Hanania de Varela, Mr. Mikhail Lebedev, Mr. Xinsheng Liii, Mr. KnoruObata, Ms. Mona Omar, Ms. Katharina Pabel, Ms. Anantonia Reyes Prado, Mr.Changrok Sob, Mr. Ahmer Bilal Soofi, Mr. Imeru Tamrat Vigezu, Mr. Jean Ziegler:draft action

19/... Negative impact of the non—repatriation of funds of illicit origin onthe enjoyment of human rights

1/ic Ifumaii Rig/its Council ldvisory (oniniiflee,

Recalling Human Rights Council resolution 34/li of 23 March 2017, in which theCouncil requested the Advisoiy Committee to conduct a study, in continuation of the studyrequested by the Council in its resolution 31/22, on the possibility of utilizing non-repatriated illicit funds, including through monetization and/or the establishment ofinvestment funds, while completing the necessary legal procedures, and in accordance withnational priorities, with view to supporting the achievement of the Goals of the 2030Agenda for Sustainable Development, contributing to the enhancement of the promotion ofhuman rights and in accordance with obligations under international human rights law, andto submit the requested study at the thirty—ninth session.

Designates the Advisory Committee members Mr. Coriolano, Mr. Lebedevand Ms. Omar as members of the drafting group;

2, Notes that the drafling group elected Mr. Coriolano as Chairperson and that itcould not identify a Rapporteur to take the lead in drafting the study;

3. /1/so notes that the drafting group and the full Advisory Committee heldmeetings to discuss the topic:

4. Furl/icr notes the highly technical character of the mandate, which wouldnecessitate consultancv services of an external expert,

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A/IIRC/A(’/19/L.5

5. I?ecommends that the Human Rights Council allocate resources for an

external expert to assist the drafting group in the preparation of the study,

6. .1/so ,eco,i,,iienckc that the Council extend the time schedule envisaged and

the Advisory Committee be requested to submit the study to the Council at its forty—second

session:

7. Recommends that the Human Rights Council consider adopting the following

decision:

“The 1-luman Rights Council,

Taking note of the recommendations of the Advisory Committee relating to its

mandate on the negative impact of the non—repatriation of funds of illicit origin on

enjoyment of human rights, pursuant to the 1—luman Rights Council resolution 34 I I of 23

March 201 7.

Decides to allocate resources 1& an external expert to assist in the

preparation ofthe study on the possibility of utilizing non—repatriated illicit funds, including

through monetization and/or the establishment of investment funds, while completing the

necessary legal procedures, and in accordance with national priorities, with view to

supporting the achievement of the Goals of the 2030 Agenda for Sustainable l)evelopment.

contributing to the enhancement of the promotion of human rights and in accordance with

obligations under international human rights law, and

2. !?equesls the Advisory Committee to submit the said study to the 1—luman

Rights Council at its forty-second session.”

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United Nations A:lRC;RES/34’ II

General Assembly Distr.: General10 April 2017

Original: English

human Rights CouncilThirty-fourth session27 February 24 March 2017Agenda item 3

Resolution adopted by the Human Rights Council on 23 March 2017

34/11. The negative impact of the non-repatriation of funds of illicitorigin to the countries of origin on the enjoyment of humanrights, and the importance of improving internationalcooperation

The human I?ghts Council,

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

Reai7iI7ning the Universal Declaration of Human Rights, the Declaration on theRight to Development, the Vienna Declaration and Programme of Action and other relevanthuman rights instruments.

Reiterating the commitment to ensure the effective enjoyment of all civil, political,economic, social and cultural rights for everyone, including the right to development, andthe obligation of all States, regardless of their political, economic and cultural systems, topromote. protect and respect all human rights and fundamental freedoms,

Recalling General Assembly resolutions 6025l of 15 March 2006, 62/219 of 22December 2007 and 65/281 of 17 June 201 1. and Human Rights Council resolutions 5/1and 52 of 18 June 2007, 11/Il of 18 June 2009 and 16/21 of25 March 2011,

!?ecalling a/So General Assembly resolutions 54/205 of 22 December 1999, 556 I of4 December 2000. 55’l 88 of 20 December 2000. 56/186 of 21 December 2001. 57/244 of20 December 2002.58205 of 23 December 2003.59 242 of 22 December 2004, 601 of 16September 2005. 60/207 of22 December 2005. 61209 of2O December 2006, 62/202 of 19December 2007, 63/226 of 19 December 2008, 64/237 of 24 December 2009, 65/I of 22September 2010, 65/169 of2O December 2010, 67/192 of2O December 2012, 68/195 of 18December 2013, 68/309 of 10 September 2014 and 69/199 of 18 December 2014,

/?ecalling,Oirther human Rights Council resolutions 17/23 of 17 June 2011. 19/38of23 March 2012. 22’l2 of2l March 2013. 25/9 of27 March 2014, 28/5 of26 March 2015and 31 22 of21 March 2016.

Recalling that human rights, as recognized in the Universal Declaration of HumanRights. the International Covenant on Civil and Political Rights and the International

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Covenant on Economic. Social and Cultural Rights, are universal, indivisible, interrelated

and interdependent.

Reaffirming the commitments of States parties to the United Nations Convention

against Corruption thereunder, recognizing that the Convention is aimed at promoting and

strengthening measures to prevent and combat corruption more efficiently and effectively,and that the return of assets is one of the objectives and a fundamental principle of the

Convention,

Reaffirming also 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 o\n means of

subsistence.

l?ecognizing that respect tr and adherence to the principles of transparenc)accountability and participation are critical factors in ensuring use of retLirned illicit hinds.

Recognizing also that fighting corruption at all levels is a priority and that flows offunds of illicit origin deprive countries of resources required to progressively realize human

rights, including economic, social and cultural rights, and in particular the right todevelopment, in such a way that threatens the stability and sustainable development of

States, undermines the values of democracy, the rule of law and morality and jeopardizes

social, economic and political development.

Recalling the United Nations Convention against Corruption. underlining its central

role in fostering international cooperation to combat corruption and to flicilitate the return

of the proceeds of corruption-related crimes, and stressing the need tbr universal adherence

to the Convention and for its full implementation. and the full implementation of the

resolutions and decisions of the Conference of the States Parties to the Convention.

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 secrec) . and in accordance with the domestic

law of the requested State.

Concerned that the relative amount of wealth from developing countries held abroad

is much greater than that from developed countries, and that a significant amount of thatwealth held offshore may involve illicit funds,

Welcoming the adoption by the General Assembly of the 2030 Agenda for

Sustainable Development.’ and the inclusion therein of targets 16.4, 16.5, 16.6 and 16.10.

which underline the commitment of States to significantly reduce by 2030 illicit financial

and arms flows, to strengthen the recovery and return of stolen assets and to combat allforms of organized crime, to substantially reduce corruption and bribery in all their forms

and to develop effective, accountable and transparent institutions at all levels, and to ensure

public access to information and to protect fundamental freedoms. a implementing these

targets will contribute to the enjoyment of all human rights. in particular economic. social

and cultural rights.

1Vclcoming also the adoption by the Third International Conference on Financing forDevelopment, held in Addis Ababa in July 2015, of the Addis Ahaba Action Agenda.2

General Assembly resolution 70/I.2 (jcneral Assembly resolution 69/3 13.

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which underlined, in particular, that measures to curb illicit financial t1os will be integralto achieving sustainable development.

II c/coining further the convening of an experts meeting on the issue of the negativeimpact of the non—repatriation of funds of illicit origin to the countries of origin on theenjoyment of human rights, pursuant to I luman Rights Council resolution 28’5,

A 0/log the work carried out by different United Nations bodies. including the UnitedNations Office on Drugs and Crime, and international and regional organizations inpreventing and combating all forms of corruption,

Beai”ing in mind that the prevention and eradication of corruption is a responsibilityof all States, and that States should cooperate with one another, in accordance with theUnited Nations Convention against Corruption, with the support and full involvement ofother stakcholders,

Beciring in mind also that, in accordance with the requirements of the UnitedNations Convention against Corruption, those who engage in corrupt acts. whether naturalor legal persons, should be held accountable and prosecuted by the competent authorities,and that all efforts should be made to conduct a financial investigation into assets illegallyacquired by them and to recover such assets through domestic confiscation proceedings,international cooperation for purpose of confiscation and appropriate recovery measures,

Lncouraging all relevant United Nations mechanisms to continue their considerationof the negative impact of illicit financial flows on the enjoyment of human rights, to furtherexplore polic\ responses to the phenomenon. and to coordinate their efforts in this regard.

Rccogni:ing that strong and efficient domestic legal systems are essential inpreventing and combating corrupt practices and the transfer of assets of illicit origin and inreturning such assets, and recalling that the fight against all forms of corruption requiresstrong institutions at all levels, including at the local level, able to take efficient preventiveand law enforcement measures consistent with the United Nations Convention againstCorruption. in particular chapters II and Ill thereof,

lpprccialing the continued efforts of the Conference of the States Parties to theUnited Nations Convention against Corruption, through its various intergovernmentalworking groups, to oversee the review process of the implementation of the Convention, toadvise on the provision of technical assistance for building institutional and human capacityin States parties for the prevention of corruption, and to enhance international cooperation,including in the return of the proceeds of crime,

Aoting wi/li appreciation the Lausanne process initiative on practical guidelines forefficient asset recovery, developed by 30 States parties in close collaboration with theInternational Centre for Asset Recovery and with the support of the Stolen Asset RecoveryInitiative of the World Bank and the United Nations Office on Drugs and Crime, which areaimed at providing effective and coordinated approaches to asset recovery for practitionersfrom requesting and requested States.

i/firming the responsibilities of requesting and requested States in the return of theproceeds of crime, cognizant that requesting States must seek return as part of their duty toensure the application of the maximum available resources to the full realization of allhuman rights for all, including the right to development, address human rights violationsand combat impunity, and that requested States, on the other hand, have a duty to assist andfocilitate the return of the proceeds of crime, including through judicial assistance, as partof their obligation of international cooperation and assistance under chapters IV and V ofthe United Nations Convention against Corruption and in the field of human rights,

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l?ecalling that the repatriation of funds of illicit origin requires the close andtransparent coordination and cooperation of requesting and requested States, includingbetween competent authorities, in particular the judicial authorities, within the sharedresponsibility to facilitate efficient international cooperation for the prompt recovery ofassets of illicit origin,

Concerned at the challenges and difficulties that both requested and requestingStates face in the return of the proceeds of crime, owing to, inter alia, differences in legalsystems, the complexity of multijurisdictional investigations and prosecutions. lack offamiliarity with the mutual legal assistance procedures of other States and difficulties inidentifying the flow of funds of illicit origin, noting the particular challenges in recoveringthem in cases involving individuals who are or have been entrusted with prominent publicfunctions and their family members and close associates. and recognizing that legaldifficulties are often exacerbated by factual and institutional obstacles, and noting also thedifficulties of providing information establishing a link between the proceeds of corruptionin the requested State and the crime committed in the requesting State, which in many casesmay be difficult to prove,

Asserting the urgent need to repatriate illicit funds to the countries of origin withoutconditionalities, in accordance with the United Nations Convention against Corruption andthe relevant resolutions of the Conference of the State Parties, as well as the commitmentsmade at the 2005 World Summit and the 2010 high-level plenary meeting of the GeneralAssembly on the Millennium Development Goals to make the fight against corruption apriority at all levels and to curb the illicit transfer of funds, and urging all States to step uptheir efforts to trace, freeze and recover those funds,

Noting the particular concern of developing countries and countries with economiesin transition regarding the need to return assets of illicit origin derived from corruption, inparticular to countries from which they originated, consistent with the principles of theUnited Nations Convention against Corruption, in particular chapter V thereto, so as toenable countries to design and fund development projects in accordance with their nationalpriorities in view of the importance that such assets can have to their sustainabledevelopment,

lakes note of the report of the Independent Expert on the effects of foreigndebt and other related international financial obligations of States on the full enjoyment ofall human rights, particularly economic, social and cultural rights, focusing on labour rightsin the context of economic reform and austerity measures,3 prepared pursuant to HumanRights council resolution 25/16;

2. Also takes note of the final study on illicit financial flows, human rights andthe 2030 Agenda for Sustainable Development prepared by the Independent Expert;4

3. H’Wconzes the report of the High-level Panel on Illicit Financial Flows fromAfrica, which highlighted the gravity of the problem of illicit financial flows in thecontinent, ranging from $50 billion to $60 billion a year;

4. Cal/s upon all States that have not yet acceded to the United NationsConvention against Corruption to consider doing so as a matter of priority;

5. Urges requesting and requested States to cooperate to recover the proceeds ofcorruption, in particular embezzled public funds, stolen assets and unaccounted-for assets,including those that are found in safe havens, and to demonstrate strong commitment to

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ensuring the return or disposal of such assets, including their return to the countries oforigin, to their prior legitimate owners or to the victims of the crime;

6. Calls upon all States to consider enacting legislation to address offences bybusiness enterprises, including multinational corporations, that deprive Governments oflegitimate domestic sources of revenue for the implementation of their developmentagendas, in compliance with their international obligations, including international humanrights law;

7. i/so ca//s upon all States to seek to reduce opportunities for tax avoidance, toconsider inserting anti-abuse clauses in all tax treaties and to enhance disclosure practicesand transparency in both source and destination countries, including by seeking to ensuretransparency in all financial transactions between Governments and companies to relevanttax authorities;

8. .4sserts the urgent need to return the proceeds of crime to the requestingcountries without conditionalities, in accordance with the United Nations Conventionagainst Corruption and with due process, to strive to eliminate safe havens that createincentives for transfer abroad of stolen assets and illicit financial flows, and to strengthenregulatory frameworks at all levels;

9. Encourages requested State parties to respond to requests for assistance andto consider adopting such measures as may be necessary to enable them to provide a widerscope of assistance, pursuant to article 46 of the United Nations Convention againstCorruption. in the absence of dual criminality;

10. (‘al/s upon all States to consider waiving or reducing to the barest minimumreasonable expenses deducted when recovering assets, particularly when the requestingState is a developing country, bearing in mind that the return of illicitly acquired assetscontributes to the achievement of the Sustainable Development Goals;

11 . 1?eitera/es the importance of full compliance with international human rightslaw in relation to the return of proceeds of crime, in particular due process rights in criminalor civil law matters against persons presumed to be responsible for corruption, tax evasionor other related criminal conduct and with respect to freezing and forfeiture;

12. Invites the Conference of the States Parties to the United Nations Conventionagainst Corruption to consider ways of adopting a human rights-based approach in theimplementation of the Convention, including when dealing with the return of the proceedsof crime, and appreciates the continued efforts of the Open-ended IntergovernmentalWorking Group on Asset Recovery of the Conference to assist States parties in fulfillingtheir obligations under the Convention to prevent, detect and deter in a more effectivemanner the international transfer of the proceeds of crime and to strengthen internationalcooperation in asset recovery;

13 , 1Votes with appreciation the Stolen Assets Recovery Initiative of the WorldBank Group and the United Nations Office on Drugs and Crime, and encouragescoordination among existing initiatives;

14. Notes the importance of the International Monetary Fund and the WorldBank publishing estimates of the volume and composition of illicit financial flows on anannual basis to monitor progress in implementing target 16.4 of the SustainableDevelopment Goals on illicit financial flows;

15. Calls upon States to continue to consider the establishment of anintergovernmental working group on the negative impact of illicit financial flows on theenjoyment of human rights, and to explore further policy responses to the phenomenon;

A/IIRC/RES/34/1 I

16. Realizes that, while illicit financial outflows from the least developedcountries may account for only a small portion of all outflows of funds of illicit originworldwide, they have a particularly negative impact on social development and therealization of social, economic and cultural rights in these countries, given the size of’ theireconomies;

17. Underscores that the repatriation of funds of’ illicit origin is key tbr Statesthat are undergoing a democratization and reform process and for improving the realizationof economic, social and cultural rights, including the right to development, and for fulfillingtheir obligation to meet the legitimate aspirations of their peoples;

18. Acknowledges the important role that civil society can play in exposingcorruption and drawing attention to the negative impact of the non—repatriation of funds ofillicit 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 inaccordance with article 33 of the United Nations Convention against Corruption and theDeclaration on the Right and Responsibility of’ Individuals, Groups and Organs of Societyto Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms;

19. Welcomes national initiatives to adopt anti—money—laundering legislation asan important step in the fight against corruption and the willingness demonstrated by someStates to cooperate in facilitating the return of the proceeds of crime, and calls for morerobust regulations in this regard, including through the implementation of policies aimed atreducing the flow of the proceeds of crime, ensuring their return and the provision oftechnical assistance to developing countries;

20. Encourages all States to share best practices in the freezing and recovery offunds of illicit origin;

21 . Calls Jr further international cooperation through, inter alia, the UnitedNations system, in support of national, subregional and regional efforts to prevent andcombat corrupt practices and the transfer of assets of illicit origin, in accordance with theprinciples of the United Nations Convention against Corruption, and in this regardencourages close cooperation at the national and international levels between anti-corruption agencies, law enforcement agencies and financial intelligence units;

22. Calls upon all States requested to repatriate funds of illicit origin to upholdfully their commitment to make the fight against corruption a priority at all levels and tocurb the illicit transfer of funds, in accordance with the United Nations Convention againstCorruption, and to make every effort to achieve the repatriation of funds of illicit origin tothe requesting States in order to diminish the negative impact of non-repatriation, includingon the enjoyment of human rights, in particular economic, social and cultural rights, in thecountries of origin by, inter alia, lowering the barriers imposed on requiring jurisdictions atthe tracing stage and enhancing cooperation in this regard between competent agencies, inparticular 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 oforigin;

23. Calls upon all States requesting the repatriation of funds of illicit origin touphold fully their commitment to make the fight against corruption a priority at all levelsand 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 ofrepatriated funds to the realization of economic, social and cultural rights in order toimprove prevention and detection procedures, correct identified weaknesses ormismanagement, prevent impunity, provide effective remedies directed at creatingconditions for avoiding new human rights violations and improve the overall administrationofjustice;

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24. Reaffirms that it is the obligation of the State to investigate and prosecutecorruption, calls upon all States to strengthen criminal proceedings directed at freezing orrestraining funds of illicit origin, and encourages requesting States to ensure that adequatenational investigative procedures have been initiated and substantiated for the purpose ofpresenting mutual legal assistance requests, and in this context encourages requested Statesto provide intörmation on legal frameworks and procedures to the requesting State and toremove barriers to asset recovery, including by simplifying their legal procedures;

25. Underlines that there is also a corporate responsibility to comply with andrespect all applicable laws and human rights, and a need for greater access to effectiveremedies 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 FlumanRights;

26. Calls upon requesting and requested States with practical experience in assetrecovery to develop, as appropriate, in cooperation with interested States and providers oftechnical assistance, non-binding practical guidelines, such as a step-by-step guide forefficient asset recovery, with a view to enhancing effective approaches to asset recoverybased on best practices, practical experience and the lessons learned from past cases, whilebeing mindful to seek to add value by building upon existing work in this area throughinnovative and efficient means;

27. Encourages States parties to consider, where appropriate, and in accordancewith national law, the opportunity of referring to the draft Lausanne guidelines for efficientrecovery of stolen assets in their practice, and any other relevant instruments,

28, Stresses the need for transparency in financial institutions and effective duediligence measures to he applied by financial intermediaries, calls upon States to seekappropriate means in accordance with their international obligations to ensure thecooperation and responsiveness of financial institutions to foreign requests to freeze andrecover funds of illicit origin and the provision of an efficient mutual legal assistanceregime to States requesting repatriation of those funds, and encourages the promotion ofhuman and institutional capacity-building in that regard;

29. Recalls the importance of the Implementation Review Mechanism of theUnited Nations Convention against Corruption, and urges States parties to comply withtheir obligations in the conduct of country reviews to enhance effective implementation ofthe Convention as a preventive measure for the outflow of illicit financial flows;

30. Welcomes the work undertaken by the Independent Expert on the effects offoreign debt and other related international financial obligations of States on the fullenjoyment of all human rights, particularly economic, social and cultural rights, andrequests him to continue to consider the impact of illicit financial flows on the enjoyment ofhuman rights as part of the mandate;

3 I. Requests the Human Rights Council Advisory Committee to conduct a study,in continuation of the study requested by the Human Rights Council in its resolution 31/22,on the possibility of utilizing non-repatriated illicit funds, including through monetizationand/or the establishment of investment ftnds, while completing the necessary legalprocedures, and in accordance with national priorities, with view to supporting theachievement of the Goals of the 2030 Agenda for Sustainable Development, contributing tothe enhancement of the promotion of human rights and in accordance with obligationsunder international human rights law, and to submit the requested study to the Council at itsthirty-ninth session;

32, ,4lso requests the Advisory Committee to seek, if necessary, further viewsand the input of Member States, relevant international and regional organizations, United

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Nations bodies, including the United Nations Office on Drugs and Crime, national humanrights institutions and non-governmental organizations in order to finalize the above-mentioned study:

33. Requests the United Nations High Commissioner for Human Rights toprovide all assistance and financial resources necessary to allow the Independent Expert tocarry out the mandate set out in the present resolntion. and calls upon all relevantsiakeholders. including States United Nations bodies and agencies, and otherinternational and regional entities to cooperate fully with the Independent Expert in thisregard;

34. Requests the Secretary—General to bring the present resolution to the attentionof all \Iember States and the forums dealing with the issue of the repatriation of Rinds ofillicit origin within the United Nations system for consideration and necessary action andcoordination as appropriate, particularly within the context of the Conference of the StatesParties to the United Nations Convention against Corruption;

35. Decides to continue its consideration of this matter under the same agendai ten.

561/i meeting23 lIme/i 21)!

[Adopted by a recorded vote of 30 to 1, with 16 abstentions. The voting was as follows:

In//ivour:l3angladesh. I3olivia (Plurinational State of), Botswana, Brazil, Burundi,China. Congo, Cole d’ Ivoire. Cuba. Ecuador, Egypt. El Salvador. Ethiopia.Ghana. India. Indonesia. Iraq. Kenya. Kyrgyzstan. Mongolia. Nigeria.Philippines. Qatar, Rvanda. Saudi Arabia. South Africa. Togo. Iunisia.United Arab Emirates. Venezuela (Bolivarian Republic of)

Against:United States of America

A hstaining:Albania. Belgium. Croatia. Georgia. Germany. I Iungarv. Japan. Latvia.Netherlands. Panama. Paraguay, Portugal. Republic of Korea. Slovenia.Switzerland. United Kingdom of Great Britain and Northern Ireland I

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United Nations—________________________________ A:l11C/RES31 22

General Assembly Distr.: General20 April 2016

4-Original: English

human Rights CouncilIhirty—first SeSSiOn

Agenda item 3

Resolution adopted by the Human Rights Council on 24March 2016

31/22. The negative impact of the non-repatriation of funds of illicitorigin to the countries of origin on the enjoyment of humanrights, and the importance of improving internationalcooperation

ilie lJuin,n l?ili,s ( ‘anne/I.

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

Rca/il!? lug the Universal Declaration of Human Rights. the Declaration on theRight to Development, the Vienna Declaration and Programme of Action and other relevanthuman rights instruments.

Recalling General Assembly resolutions 60/251 of 15 March 2006, 62/219 of 22December 2007 and 65/281 of 17 June 2011, and Human Rights Council resolutions 5/1and 5/2 of 18 June 2007, 11/11 of 18 June 2009 and 16/21 of25 March 2011,

Recalling also General Assembly resolutions 54/205 of22 December 1999, 55/61 of4 December 2000, 55/188 of2O December 2000. 56/186 of2l December 2001, 57/244 of20 December 2002, 58/205 of23 December 2003. 59/242 of22 December 2004, 60/1 of 16September 2005. 60/207 of 22 December 2005. 6 1/209 of 20 December 2006, 62/202 of 19December 2007. 63226 of 19 December 2008. 64/237 of 24 December 2009. 6511 of 22September 2010. 65:169 of2O December 2010. 67:192 of2O December 2012. 68:195 of 18December 2013, 68309 of 10 September 2014 and 69199 of 18 December 2014,

J?ecallingfiuther Human Rights Council resolutions 17/23 of 17 June 2011, 1938of23 March 2012, 22:12 of2l March 2013, 25/9 of27 March 2014 and 28/5 of26 March2015.

J?eaj7irming the commitments of States parties to the United Nations Conventionagainst Corruption thereunder, recognizing that the Convention is aimed at promoting andstrengthening measures to prevent and combat corruption more efficiently and effectively,and that the return of assets is one of the main objectives and a fundamental principle of thesaid Convention, and that States parties are obligated to accord one another the widestmeasure of cooperation and assistance in this regard,

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l?eiteraling the commitment to ensure the effective enjoyment of all civil, political,economic, social and cultural rights for everyone, including the right to development, andthe obligation of all States, regardless of their political, economic and cultural systems, topromote and protect all human rights and fundamental freedoms,

Real/liming that all peoples may. for their own ends, freely dispose of their naturalwealth and resources without prejudice to any obligations arising out of internationaleconomic 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 respect for and adherence to the principles of transparency.accountability and participation are critical flictors in ensuring prudent use of returned illicitfunds.

Recognizing a/So that fighting corruption at all levels is a priority and that flows offunds of illicit origin deprive Governments, in particular in developing countries, ofresources required to progressively realize human rights, including economic. social andcultural rights, and in particular the right to development, in such a way that threatens thestability and sustainable development of States, undermines the values of democracy, therule of law and morality and jeopardizes 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 centralrole in fostering international cooperation to combat corruption and to facilitate therepatriation of the proceeds of corruption-related crimes, and stressing the need foruniversal adherence to the Convention and for its full implementation, and the thllimplementation of the resolutions and decisions of the Conference of the States Par ies tothe Convention, particularly those adopted at its fourth and fifth sessions,

Recalling also that the United Nations Convention against Corruption underlinesthat States parties should not decline to render mutual legal assistance, pursuant to theConvention, including on the ground of bank secrecy, and in accordance with the domesticlaw of the requested State.

Noting with concern that financial systems characterized by high levels of financialsecrecy combined with low tax rates can play a role in attracting various kinds of illicitfunds in a way that can lead to depriving countries of resources required to realize humanrights, and to jeopardizing social, economic and political development.

Concerned that the relative amount of wealth from developing countries held abroadis much greater than that from developed countries, and that a significant amount of thatwealth held offshore may involve illicit funds.

Welcoming the adoption by the General Assembly of the 2030 Agenda forSustainable Development, and the inclusion therein of target 16.4, which underlines thecommitment of States to significantly reduce by 2030 illicit financial and arms flows, tostrengthen the recovery and return of stolen assets and to combat all forms of organizedcrime,

Welcoming also the adoption by the Third International Conference on Financing forDevelopment, held in Addis Ababa in .July 2015. of the Addis Ababa Action Agenda,2which underlined, in particular, that measures to curb illicit financial flows will be integralto achieving sustainable development,

General Assembly resolution 7(1 I.General Assembly esoluuon 69 31 3

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AJ/irmmg that making progress on the implementation of targets 16,4, 16.5 and 16.6of the 2030 Agenda for Sustainable Development will make an important contribution notonly to achieving various other goals included in the Agenda but also to the enjoyment ofhuman rights, in particular economic, social and cultural rights,

ttWcoming the convening of an experts meeting on the issue of the negative impactof the non-repatriation of funds of illicit origin to the countries of origin on the enjoymentof human rights, pursuant to Human Rights Council resolution 28/5,

Taking note of the work carried out by different United Nations bodies, includingthe United Nations Office on Drugs and Crime, and international and regional organizationsin preventing and combating all forms of corruption,

Bearing in mind that the prevention and eradication of corruption is a responsibilityof all States, and that States should cooperate with one another, in accordance with theUnited Nations Convention against Corruption, with the support and involvement of otherstakeholders,

1.ncoiiragng all relevant United Nations mechanisms to continue their considerationof the negative impact of illicit financial flows on the enjoyment of human rights, to furtherexplore policy responses to the phenomenon and to coordinate their efforts in this regard,

Recognizing that supportive domestic legal systems are essential in preventing andcombating corrupt practices and the transfer of assets of illicit origin and in returning suchassets, and recalling that the fight against all forms of corruption requires strong institutionsat all levels, including at the local level, able to take efficient preventive and lawenforcement measures consistent with the United Nations Convention against Corruption,in particular chapters II and lii thereof,

Appreciating the continued efforts of the Conference of the States Parties to theUnited Nations Convention against Corruption, through its various intergovernmentalworking groups, to oversee the review process of the implementation of the Convention, toadvise on the provision of technical assistance for building institutional and human capacityin States parties for the prevention of corruption, and to enhance international cooperation,including in the repatriation of funds of illicit origin,

Taking note with appreciation of the Lausanne process initiative on practicalguidelines for efficient asset recovery, developed by 30 States parties in close collaborationwith the International Centre for Asset Recovery and with the support of the Stolen AssetRecovery Initiative of the World Bank and the United Nations Office on Drugs and Crime,which are aimed at providing effective and coordinated approaches to asset recovery forpractitioners from requesting and requested States.

Affirmingthe responsibilities of requesting and requested States in the repatriation oflimds of illicit origin, cognizant that countries of origin must seek repatriation as part oftheir duty to ensure the application of the maximum available resources to the fullrealization of all human rights for all, including the right to development, address humanrights violations and combat impunity, and that recipient countries, on the other hand, havea duty to assist and facilitate repatriation, including through judicial assistance, as part oftheir obligation of international cooperation and assistance under chapters IV and V of theUnited Nations Convention against Corruption and in the field of human rights,

Recalling that the repatriation of funds of illicit origin requires the close andtransparent coordination and cooperation of requesting and requested States, includingbetween competent authorities, in particular the judicial authorities, within the sharedresponsibility to facilitate efficient international cooperation for the prompt recovery ofassets of illicit origin,

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Concerned at the difficulties, in particular the practical difficulties, that bothrequested and requesting States face in the repatriation of funds of illicit origin, taking intoaccount the particular importance of the recovery of stolen assets for sListainabledevelopment and stability, and noting the difficulties of providing information establishinga link between the proceeds of corruption in the requested State and the crime committed inthe requesting State. which in many cases may be difficult to prove, bearing in mind thateveryone charged with a criminal offence has the right to be presumed innocent until

proven guilty according to law.

Recognizing that States continue to face challenges in recovering funds of illicitorigin owing to. inter alia. differences in legal systems, the complexity ofmultijurisdictional investigations and prosecutions, lack of familiarity with the mutual legalassistance procedures of other States and difficulties in identifying the flow of funds ofillicit origin, noting the particular challenges in recovering them in cases involvingindividuals who are or have been entrusted with prominent public Ifinctions and theirfamily members and close associates. and recognizing that legal difficulties arc oftenexacerbated by flictual and institutional obstacles.

Asserting the urgent need to repatriate illicit funds to the countries of origin withoutconditionalities. in accordance with the United Nations Convention against Corruption andthe commitments made at the 2005 World Summit and the 2010 high—level plenary meetingof the General Assembly on the Millennium Development Goals to make the fight againstcorruption a priority at all levels and to curb the illicit transfer of funds, and urging allStates to step up their efforts to trace, freeze and recover those funds,

iVoting the particular concern of developing countries and countries with economiesin transition regarding the need to return assets of illicit origin derived from corruption, inparticular to countries from which they originated, consistent with the principles of theUnited Nations Convention against Corruption. in particular chapter V thereto, so as toenable countries to design and fund development projects in accordance with their nationalpriorities in view of the importance that such assets can have to their sustainabledevelopment.

Thkes note uit/i appreciation of the final study on illicit financial flows.human rights and the 2030 Agenda for Sustainable Development prepared by theIndependent Expert on the effects of foreign debt and other related international financialobligations of States on the full enjoyment of all human rights, particularly economic.social and cultural rights:

2. lIe/comes the report of the High—level Panel on Illicit Financial Flows fromAfrica, which highlighted the gravity of the problem of illicit financial flows in thecontinent, ranging from $50 billion to $60 billion a year;

3. (i//s upon all States that have not yet acceded to the United NationsConvention against Con’uption to consider doing so as a matter of priority;

4. Urges requesting and requested States to cooperate to recover the proceeds ofcorruption, in particular, embezzled public funds, stolen assets and unaccounted-fbi assets,including those that are found in safe havens, and to demonstrate strong commitment toensuring the return or disposal of such assets, including their return to the countries oforigin;

5. (‘ct//s upon all States to consider enacting legislation to address offences bybusiness enterprises, including multinational corporations, that deprive Governments of

A/11RC3E61.

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legitimate domestic sources of revenue for the implementation of their developmentagendas, in compliance with their international obligations, including international humanrights law:

6. rI/SO ca//s upon all States to seek to reduce opportunities tbr tax avoidance, toconsider inserting anti-abuse clauses in all tax treaties and to enhance disclosure practicesand transparency in both source and destination countries, including by seeking to ensuretransparency in all financial transactions between Governments and companies to relevanttax authorities;

7. .1sserts the urgent need to repatriate illicit funds to the countries of originwithout conditionalities, taking into account due process, to strive to eliminate safe havensthat create incentives for transfer abroad of stolen assets and illicit financial flows, and tostrengthen regulatory frameworks at all levels:

8. I/ncow’ages requested State parties to respond to requests for assistance andto adopt such measures as may be necessary to enable them to provide a wider scope ofassistance, pursuant to article 46 of the United Nations Convention against Corruption inthe absence of dual criminality;

9, Ca//s upon all States to consider waiving or reducing to the barest minimumreasonable expenses deducted when recovering assets, particularly when the requestingState is a developing country, bearing in mind that the return of illicitly acquired assetscontribute to the promotion of sustainable development:

10 .lcknuit’/e’dges the importance of full compliance with international humanrights law in relation to the repatriation of funds of illicit origin:

II Invites the Conference of the States Parties to the United Nations Conventionagainst Corruption to consider ways of adopting a human rights-based approach in theimplementation of the Convention, including when dealing with the repatriation of funds ofillicit origin, and appreciates the continued efforts of the Open-ended IntergovernmentalWorking Group on Asset Recovery of the Conference to assist States parties in fulfillingtheir obligations under the Convention to prex’ent, detect and deter in a more effectivemanner the international transfer of funds of illicit origin and to strengthen internationalcooperation in asset recovery;

12 Votes with appreciation the Stolen Assets Recovery Initiative of the WorldBank Group and the United Nations Office on Drugs and Crime, and encouragescoordination among existing initiatives;

13. Votes the importance of the International Monetary Fund and the WorldBank publishing estimates of the volume and composition of illicit financial flows on anannual basis to monitor progress in implementing target 16.4 of the SustainableDevelopment Goals on illicit financial flows:

14. Ca//s upon States to continue to consider the establishment of anintergovernmental working group on the negative impact of illicit financial flows on theenjoyment of human rights, and to explore further policy responses to the phenomenon;

15. Rea/izes that, while illicit financial outflows from the least developedcountries may account br only a small portion of all outflows of funds of illicit originworldwide, they have a particularly negative impact on social development and therealization of social, economic and cultural rights in these countries, given the size of theireconomies:

16. (‘nderscores that the repatriation of funds of illicit origin would provideStates that are undergoing a democratization process with a further opportunity to improve

A/IIRC/RES/3 1/22

the realization of economic, social and cultural rights and to fultil their obligation to meetthe legitimate aspirations of their peoples;

17. /lc/now/edges the important role that civil society can play in exposingcorruption and drawing attention to the negative impact of the non—repatriation of funds ofillicit 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 theDeclaration on the Right and Responsibility of Individuals. Groups and Organs of Society

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

18. 11 h/conies national initiatives to adopt anti—money—laundering legislation asan important step in the fight against corruption and the willingness demonstrated by someStates to cooperate in facilitating the repatriation of funds of illicit origin, and calls formore robust regulations in this regard, including through the implementation of policiesaimed at reducing the flow of funds of illicit origin, ensuring their repatriation and theprovision of technical assistance to developing countries;

19. Lncourages all States to share best practices in the freezing and recovery offunds of illicit origin;

20. Cu//s ,Qn further international cooperation through. inter alia. the UnitedNations system, in support of national, subregional and regional et’lbrts to pre cut andcombat corrupt practices and the transfer of assets of illicit origin, in accordance with theprinciples of the United Nations Convention against Corruption, and in this regardencourages close cooperation at the national and international levels between anti-corruption agencies, law enforcement agencies and financial intelligence units;

2 . Culls upon all States requested to repatriate funds of illicit origin to upholdfully their commitment to make the tight against corruption a Priority at all levels and tocurb the illicit transfer of funds, in accordance with the United Nations Convention againstCorruption. and to make every effort to achieve the repatriation of funds of illicit origin tothe countries of’ origin in oi’der to diminish the negative impact of non—repatriation.including on the enjoyment of human rights, in particular economic. social and culturalrights in the countries of origin by. inter alia, lowering the harriers imposed on requiring

jurisdictions at the tracing stage and enhancing cooperation in this regard betweencompetent agencies, in particular taking into account the risks of dissipation of those fundsand, where appropriate, by delinking confiscation measures fi’om a requirement ofconviction in the country of origin:

22. (u//s upon all States requesting the repatriation of timds of illicit origin touphold fully their commitment to make the fight against corruption a priority at all levelsand 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 ofrepatriated funds to the realization of economic, social and cultural rights in order toimprove prevention and detection procedures. correct identified weaknesses ormismanagement, prevent impunity, provide effective remedies directed at creatingconditions for avoiding new human rights violations and improve the overall administrationofj ustice;

23. Rca/firms that it is the obligation of the State to investigate and prosecutecorruption, calls upon all States to strengthen criminal proceedings directed at freezing orrestraining funds of illicit origin, and encourages requesting States to ensure that adequatenational investigative procedures have been initiated and substantiated for the purpose ofpresenting mutual legal assistance requests. and in this context encourages requested Statesto provide inlbrmation on legal frameworks and procedures to the requesting State and toremove harriers to asset recovery. including by simplifying their legal procedures:

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24, L1nder/ines that there is also a corporate responsibility to comply with andrespect all applicable laws and human rights, and a need for greater access to effectiveremedies 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 HumanRights;

25, Cal/s upon requesting and requested States with practical experience in assetrecovery to develop, as appropriate, in cooperation with interested States and providers oftechnical assistance, non-binding practical guidelines, such as a step-by-step guide forefficient asset recovery, with a view to enhancing effective approaches to asset recoverybased on best practices, practical experience and the lessons learned from past cases, whilebeing mindful to seek to add value by building upon existing work in this area;

26. Encourages States parties to consider, where appropriate, and in accordancewith national law, the opportunity of referring to the draft Lausanne guidelines for efficientrecovery of stolen assets in their practice;

27, .Stresses the need for transparency in financial institutions and effective duediligence measures to be applied by financial intermediaries, calls upon States to seekappropriate means in accordance with their international obligations to ensure thecooperation and responsiveness of financial institutions to foreign requests to freeze andrecover funds of illicit origin and the provision of an efficient mutual legal assistanceregime to States requesting repatriation of those funds, and encourages the promotion ofhuman and institutional capacity-building in that regard;

28. I?eca/Is the importance of the mechanism for the review of implementation ofthe United Nations Convention against Corruption, and urges States parties to comply withtheir obligations in the conduct of country reviews to enhance effective implementation ofthe Convention as a preventive measure for the outflow of illicit financial flows;

29. Invites the Independent Expert on the effects of foreign debt and other relatedinternational 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 illicitfinancial flows on the enjoyment of human rights as part ofihe mandate;

30. 1?equesis the Advisory Committee of the Human Rights Council to conduct acomprehensive research-based study on the impact of flow of funds of illicit origin and thenon-repatriation thereof to the countries of origin on the enjoyment of human rights,including economic, social and cultural rights, with a special emphasis on the right todevelopment, with a view to compiling relevant best practices and main challenges, and tomake recommendations on tackling those challenges based on the best practices inquestion, and to present a progress report on the requested study to the Human RightsCouncil at its thirty-sixth session for its consideration;

31. .4/so requests the Advisory Committee to seek, if necessary, further viewsand the input of Member States, relevant international and regional organizations, theUnited Nations High Commissioner for Human Rights and relevant special procedures,national human rights institutions and non-governmental organizations in order to finalizethe above-mentioned study, taking into account, inter alia, the final study on illicit financialflows, human rights and the 2030 Agenda for Sustainable Development of the IndependentExpert on the effects of foreign debt and other related international financial obligations ofStates on the full enjoyment of all human rights, particularly economic, social and culturalrights;

32. Requests the United Nations High Commissioner for Human Rights toprovide all assistance and financial resources necessary to allow the Independent Expert tocarry out the mandate set out in the present resolution, and calls upon all relevant

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stakeholders, including States and United Nations bodies and agencies, and otherinternational and regional entities to cooperate fully with the Independent Expert in thisregard;

33. Requests the Secretary-General to bring the present resolution to the attentionof all Member States and the forums dealing with the issue of the repatriation of funds ofillicit origin within the United Nations system for consideration and necessary action andcoordination as appropriate, particularly within the context of the Conference of the StatesParties to the United Nations Convention against Corruption;

34. Decides to continue its consideration of this matter under the same agendaitem

64th meeting24 March 2016

[Adopted by a recorded vote of 32 to 0, with 15 abstentions. The voting was as follows:

In favour:Algeria, Bangladesh, Bolivia (Plurinational State of), Botswana, Burundi,China, Congo, Chte d’Ivoire, Cuba, Ecuador, El Salvador, Ethiopia, Ghana,India, Indonesia, Kenya, Kyrgyzstan, Maldives, Mongolia, Morocco.Namibia, Nigeria, Paraguay, Philippines, Qatar, Russian Federation, SaudiArabia, South Africa, Togo, United Arab Emirates, Venezuela (BolivarianRepublic o, Viet Nani

A /staining:Albania, Belgium, France, Georgia, Germany, Latvia, Mexico, Netherlands,Panama, Portugal, Republic of Korea, Slovenia, Switzerland, the formerYugoslav Republic of Macedonia, United Kingdom of Great Britain andNorthern Ireland]

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