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The International Legal Framework on Direct and Indirect Enforcement
2.1 UN CONVENTION AGAINST CORRUPTION 2.1.1 Overview of UNCAC asset recovery provisions Whereas various multilateral treaties such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Drug Trafficking Convention) and the UN Convention against Transnational Organized Crime (UNTOC) feature provisions on international cooperation related to asset recovery, the UN Convention against Corruption (UNCAC) vastly expands the arsenal of legal tools, options, and channels available to its States Parties. The return of proceeds from corruption to their countries of origin is considered a “fundamental principle.”1 (UNCAC devotes an entire chapter of its text to asset recovery.2) At the initial stages of the negotiating process, there was substantial agreement among delegations that “maintaining a separate chapter on the question of asset recovery had a considerable political significance, because the subject matter had been identified by the General Assembly as a key component of the Convention. That political significance could not be neglected in examining the architecture and contents of the draft convention” (United Nations 2010, 435). UNCAC’s chapter V sets the convention apart from all other international instruments in criminal matters. Its provisions, however, should not be examined in isolation. Instead, they should be read and interpreted in conjunction with key provisions found in other chapters. These provisions outline the prerequisites for effective asset recovery actions. In particular, note the following: • Article 2 (Definition of key terms, for example, property, proceeds of crime, freezing and seizing, confiscation) • Article 14 (Measures to prevent money laundering) • Article 31 (Establishment of domestic legal frameworks for freezing and confiscation of proceeds from corruption offenses) • Article 46 (Procedures, authorities, and requirements for mutual legal assistance, MLA) 5
