Original HRC document

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Document Type: Final Resolution

Date: 2019 Apr

Session: 40th Regular Session (2019 Feb)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Topic: International Cooperation, Repatriation of Funds

GE.19-05716(E)

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Human Rights Council Fortieth session

25 February–22 March 2019 Agenda item 3

Resolution adopted by the Human Rights Council on 21 March 2019

40/4. 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 International Covenant on Economic, Social and Cultural Rights,

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 the General Assembly resolutions on preventing and combating

corrupt practices and the transfer of proceeds of corruption, facilitating asset recovery and

returning such assets to legitimate owners, in particular to countries of origin, in accordance

with the United Nations Convention against Corruption, the most recent of which is

Assembly resolution 73/190 of 17 December 2019, and General assembly resolution 73/222

of 20 December 2018, on the promotion of international cooperation to combat illicit

financial flows and strengthen good practices on assets return to foster sustainable

development,

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

of 23 March 2012, 22/12 of 21 March 2013, 25/9 of 27 March 2014, 28/5 of 26 March 2015,

31/22 of 24 March 2016 and 34/11 of 23 March 2017,

Recalling that human rights, as recognized in the Universal Declaration of Human

Rights, the International Covenant on Civil and Political Rights and the International

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

and interdependent, and 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, protect and respect all human rights and fundamental

freedoms,

United Nations A/HRC/RES/40/4

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,

Concerned that flows of funds of illicit origin deprive countries of resources

required to progressively realize human rights, including economic, social and cultural

rights, and in particular the right to development, 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,

Noting the particular concern of developing countries and countries with economies

in transition regarding the urgent 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,

Concerned about the fact that funds of illicit origin, which are urgently needed for

development and the realization of all human rights, are stalled in banks of developed

countries, which continue to accrue gains from them,

Concerned also that developing countries lose billions of dollars every year through

illicit financial flows, and that, in Africa, it is estimated that, over the past 50 years, the

continent has lost $1 trillion in illicit financial flows, an amount equivalent to all the official

development assistance received in the same time frame,

Recognizing that fighting corruption at all levels is a priority, 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 full involvement of other stakeholders,

Reaffirming the commitment of States parties to the United Nations Convention

against Corruption thereunder, and that the return of assets is one of the main purposes and

a fundamental principle of the Convention, and underlining its central role in fostering

international cooperation to combat corruption and to facilitate the return of the proceeds of

corruption-related crimes, and stressing the need for 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, particularly the relevant decisions

adopted at its fourth, and fifth, sixth and seventh sessions,

Recognizing that strong and efficient 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,

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,

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

proceeds of crime, cognizant that requesting States must seek return 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 requested States, on the other hand, have a duty to assist and

facilitate the return of the proceeds of crime, 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,

Concerned at the challenges and difficulties that both requested and requesting

States face in the return of the proceeds of crime owing to, inter alia, lack of political will in

the requested States due to the benefits gained from the illicit financial flows, 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, and noting also 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, and applying conditionalities by requested States,

Reaffirming the 2030 Agenda for Sustainable Development, in particular targets

16.4, 16.5, 16.6 and 16.10 of the Sustainable Development Goals, which underline the

commitment of States to significantly reduce by 2030 illicit financial and arms flows, and

the Addis Ababa Action Agenda, adopted at the Third International Conference on

Financing for Development, held in Addis Ababa in July 2015, which underlined, in

particular, that measures to curb illicit financial flows will be integral to achieving

sustainable development,

Welcoming the work carried out by different United Nations bodies and mechanisms,

including the United Nations Conference on Trade and Development, the United Nations

Office on Drugs and Crime, and by international and regional organizations in preventing

and combating all forms of corruption, and encouraging them 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,

Noting with appreciation the Lausanne process initiative on practical guidelines for

efficient asset recovery, the Stolen Assets Recovery Initiative of the World Bank Group and

the United Nations Office on Drugs and Crime, and the outcome of the fourteenth session

of the United Nations Conference on Trade and Development, held in Nairobi in 2016, and

encouraging coordination among existing initiatives,

1. Welcomes the research-based study by the Advisory Committee on the

impact of flow of funds of illicit origin and the non-repatriation thereof to the countries of

origin on the enjoyment of human rights, including economic, social and cultural rights,

prepared pursuant to Human Rights Council resolutions 31/22 of 24 March 2016 and 34/11

of 23 March 2017;1

2. Also welcomes the work undertaken 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, and

requests him to continue to consider the impact of illicit financial flows on the enjoyment of

human rights as part of the mandate;

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. Underscores that the repatriation of funds of illicit origin is key for States

that are undergoing a reform process and for improving the realization of economic, social

and cultural rights, including the right to development, and for fulfilling their obligation to

meet the legitimate aspirations of their peoples;

5. Urges requesting and requested States to cooperate to recover the proceeds of

corruption, 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

ensuring the return or disposal of such assets, including their return to the countries of

origin;

1 A/HRC/39/61.

6. Urges requested States to ensure the prompt and unconditional repatriation of

funds of illicit origin to the countries of origin, and to actively participate in adopting a

renewed, decisive and proactive commitment to tackle the phenomenon of illicit financial

flows and their ensuing negative impact on human rights and the right to development, and

to take urgent action to push forward the procedures aimed at the recovery of stolen assets;

7. Encourages requested States parties to the United Nations Convention

against Corruption to respond to requests for assistance and to adopt such measures as may

be necessary to enable them to provide a wider scope of assistance, pursuant to article 46 of

the said Convention, in the absence of dual criminality;

8. Asserts the urgent need to return the proceeds of crime to the requesting

countries without conditionalities, in accordance with the United Nations Convention

against Corruption and with due process, to strive to eliminate safe havens that create

incentives for transfer abroad of stolen assets and illicit financial flows and to strengthen

regulatory frameworks at all levels;

9. Calls upon all States to consider enacting legislation to address offences by

business enterprises, including multinational corporations, that deprive Governments of

legitimate domestic sources of revenue for the implementation of their development

agendas, in compliance with their international obligations, including international human

rights law;

10. 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;

11. Calls upon all States to seek to reduce opportunities for tax avoidance, to

consider inserting anti-abuse clauses in all tax treaties and to enhance disclosure practices

and transparency in both source and destination countries, including by seeking to ensure

transparency in all financial transactions between Governments and companies to relevant

tax authorities;

12. Also calls upon all States to consider waiving or reducing to the barest

minimum reasonable expenses deducted when recovering assets, particularly when the

requesting State is a developing country, bearing in mind that the return of illicitly acquired

assets contributes to the achievement of the Sustainable Development Goals;

13. Reiterates the importance of full compliance with international human rights

law in relation to the return of proceeds of crime, in particular due process rights in criminal

or civil law matters against persons presumed to be responsible for corruption, tax evasion

or other related criminal conduct and with respect to freezing and forfeiture;

14. 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 return of the proceeds

of crime, 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 the proceeds of crime and to strengthen international

cooperation in asset recovery;

15. Calls upon States to continue to consider the establishment of an

intergovernmental working group on the negative impact of illicit financial flows on the

enjoyment of human rights, and to explore further policy responses to the phenomenon;

16. 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;

17. Welcomes 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 return of the proceeds of crime, and calls for more

robust regulations in this regard, including through the implementation of policies aimed at

reducing the flow of the proceeds of crime, and ensuring their return, and the provision of

technical assistance to developing countries;

18. Encourages all States to share best practices in the freezing and recovery of

funds of illicit origin;

19. 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;

20. 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, in accordance with the United Nations Convention against

Corruption, and to make every effort to achieve the repatriation of funds of illicit origin to

the requesting States 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 competent agencies, 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;

21. 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;

22. Reaffirms that it is the obligation of the State to investigate and then

prosecute corruption on the basis of evidence, and calls upon all States to strengthen

criminal and/or civil proceedings directed at freezing or restraining funds of illicit origin,

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 and responding to requests for mutual legal assistance;

23. 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 best practices, practical experience and the lessons learned from past cases, while

being mindful to seek to add value by building upon existing work in this area through

innovative and efficient means;

24. Encourages States parties to consider, where appropriate, and in accordance

with national law, the opportunity of referring to the draft Lausanne guidelines for efficient

recovery of stolen assets in their practice, and any other relevant instruments;

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

diligence measures to be applied by financial intermediaries, and 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;

26. Requests the Advisory Committee, in preparation of the study requested by

the Human Rights Council in its resolution 34/11 on the possibility of utilizing non-

repatriated illicit funds, including through monetization and/or the establishment of

investment funds, to seek the views of regional and international experts and organizations,

as well as United Nations bodies and non-governmental organizations, including by holding

a one-day meeting in Geneva in April or May 2019;

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

provide all assistance and financial resources necessary to allow the Advisory Committee 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 Advisory Committee in this

regard;

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

of all Member States and the 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 and the United Nations

Conference on Trade and Development;

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

item.

52nd meeting

21 March 2019

[Adopted by a recorded vote of 31 to 2, with 14 abstentions. The voting was as follows:

In favour:

Afghanistan, Angola, Argentina, Bahrain, Bangladesh, Brazil, Burkina Faso,

Cameroon, Chile, China, Cuba, Democratic Republic of the Congo, Egypt,

Eritrea, Fiji, India, Iraq, Nepal, Nigeria, Pakistan, Peru, Philippines, Qatar,

Rwanda, Saudi Arabia, Senegal, Somalia, South Africa, Togo, Tunisia,

Uruguay

Against:

Japan, Ukraine

Abstaining:

Australia, Austria, Bahamas, Bulgaria, Croatia, Czechia, Denmark, Hungary,

Iceland, Italy, Mexico, Slovakia, Spain, United Kingdom of Great Britain and

Northern Ireland]