«Recovery of ‘Corrupt’ Assets in International Law»

ΕΛΛΗΝΙΚΗ ΔΗΜΟΚΡΑΤΙΑ

ΕΘΝΙΚΟ ΚΑΙ ΚΑΠΟΔΙΣΤΡΙΑΚΟ :

ΠΑΝΕΠΙΣΤΗΜΙΟ ΑΘΗΝΩΝ ΝΟΜΙΚΗ ΣΧΟΛΗ

ΤΟΜΕΑΣ ΔΙΕΘΝΩΝ ΣΠΟΥΔΩΝ

ΠΡΟΓΡΑΜΜΑ ΜΕΤΑΠΤΥΧΙΑΚΩΝ ΣΠΟΥΔΩΝ

‘ΔΙΕΘΝΕΙΣ ΝΟΜΙΚΕΣ ΣΠΟΥΔΕΣ’

ΠΑΝΕΠΙΣΤΗΜΙΑΚΟ ΕΤΟΣ: 2014-2015

ΔΙΠΛΩΜΑΤΙΚΗ ΕΡΓΑΣΙΑ της Ελένης Μεθυμάκη

Α.Μ. 792

«Recovery of ‘Corrupt’ Assets in International Law»

Επιβλέπoντες

Επίκουρη Καθ. Μαρία Γαβουνέλη (επιβλέπουσα) Δρ Γεώργιος Κυριακόπουλος

Δρ Αναστάσιος Γουργουρίνης

Αθήνα 2015

Ελένη Μεθυμάκη Α. Μ.: 792

« Recovery of ‘Corrupt’ Assets in International Law »

Copyright © [Ονοματεπώνυμο συγγραφέα], 2015

Με επιφύλαξη παντός δικαιώματος. All rights reserved.

Απαγορεύεται η αντιγραφή, αποθήκευση και διανομή της παρούσας εργασίας, εξ ολοκλήρου ή τμήματος αυτής, για εμπορικό σκοπό. Επιτρέπεται η ανατύπωση, αποθήκευση και διανομή για σκοπό μη κερδοσκοπικό, εκπαιδευτικής ή ερευνητικής φύσης, υπό την προϋπόθεση να αναφέρεται η πηγή προέλευσης και να διατηρείται το παρόν μήνυμα.

Οι απόψεις και θέσεις που περιέχονται σε αυτήν την εργασία εκφράζουν τον συγγραφέα και δεν πρέπει να ερμηνευθεί ότι αντιπροσωπεύουν τις επίσημες θέσεις του Εθνικού και Καποδιστριακού Πανεπιστημίου Αθηνών.

“. . . one day America will be held accountable, accountable to whether we were complicitous, whether we stood silent while the Philippine people went further into debt, while Mr. Marcos and his family feathered their American nest in preparation of their eventual departure’

(Congressman Roberto Torricelli of New Jersey, The Philippine Hearings)¹

1Investigation of Philippine Investments in the United States, Hearings before the Subcommittee on Asian and Pacific Affairs of the Committee on Foreign Affairs, House of Representatives, 99th Congress, 1st- 2nd Sessions, 1985-1986 (US Government Printing Office, Washington, 1987), available at http://babel.hathitrust.org/cgi/pt?id=pst.000013063290;view=1up;seq=3, at 264.

TABLE OF CONTENTS

Introduction 6

The International Regulatory Framework on Asset Recovery for Crimes of Corruption12 A. The Multilateral Conventions on the Regulation of Asset Recovery for Crimes of Corruption

13

1. Historical evolution of anti-corruption regime 16

2. United Nations Convention against Corruption (UNCAC) 21

i. The regulatory scope of UNCAC 23

ii. UNCAC’s Chapter V: Asset Recovery 26

a. Article 51: The ‘fundamental principle’ approach 29

b. Categorization of obligations under Chapter V 31

Measures preventing the transfer of assets 32

Measures for the direct recovery of assets and property 36

Mechanisms for the recovery of property through international cooperation 37 3. United Nations Convention against Transnational Organized Crime (UNTOC) 41

Article 8 of UNTOC: Criminalization of corruption 43

b. Provisions on Asset Recovery 44

4. Interim Conclusions 52

B. Mutual Legal Assistance in Criminal Matters 54

1. Mutual Legal Assistance: Letters Rogatory, Treaties and Requests 54

2. Asset recovery in practice 58

Nigeria: The Abacha assets 58

Philippines: The Marcos assets 62

Peru: The Montesinos assets 63

Indonesia: The Suharto assets 65

3. Interim Conclusions 67

C. The system of the International Criminal Court 70

Conceptualizing corruption as a crime against humanity under the Rome Statute 70

2. Asset Recovery under the Rome Statute 77

General Conclusions 80

INDEX OF AUTHORITIES 85

TREATIES 95

TABLE OF CASES 97

Introduction

$148 billion USD. This is the amount that African States loose every year to big financial centers in Western countries due to corrupt practices. This amount represents 25% of their Gross Domestic Product (GDP) and is ten times more than the developmental aid provided to these countries by developed States and donors.² As a result, the criminalization of corruption,³ and the ever evolving idea that corrupt assets should be returned to victim States or populations, has developed progressively, alongside the idea that an international community exists, who shares common values and interests, ‘intended to supersede the narrow interests of the participants in this inter-national community process’.⁴ Although the history of corruption as a transnational crime clearly denotes that its development has been the outcome of the ‘exportation’ of US national interests,⁵ it is pretty difficult to argue today that the consequences of corruption are of

2 Nuhu Ribadu, ‘Challenges and Opportunities of Asset Recovery in a Developing Economy’ in Mark Pieth (ed), Recovering Stolen Assets (Peter Lang AG 2008) 29-37, 29; U4 Anti- Corruption Resource Centre,’The Recovery of Stolen Assets: A Fundamental Principle of the UN Convention against Corruption’ (U4 Brief 2007: 2) available at

<http://www.u4.no/publications/the-recovery-of-stolen-assets-a-fundamental-principle-of-the-un-convention- against-corruption/> (accessed 29 november 2015) 1.

3 There is no comprehensive definition of which phenomena and practices constitute corruption; the forms corruption may take are quite diverse depending upon who are the actors, initiators and ‘profiteers’ and the way it is performed. See Rajesh Babu, ‘The United Nations Convention against Corruption: A Critical Overview’ (1 March 2006) available at < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891898> (accessed 29 November 2015) 4.

See also Radha Ivory, Corruption, Asset Recovery and the Protection of Protection of Property in Public International Law: The Human Rigths of Bad Guys (CUP 2014) 20-22. Neither the United Nations Convention against Corruption nor any other multilateral anti-corruption convention includes a comprehensive definition, but rather they criminalize certain forms of corruption, see analysis infra.

4 M Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition (International Criminal Law Series 1, Martinus Nijhoff Publishers 2013) (Introduction ICL) 139.

5 See Neil Boister, Transnational Criminal Law (OUP 2012) 17 where he claims that ‘the history of most transnational crimes suggests that their development has been driven by the desire to extend national interest across borders in the imposition of a state-centred crime control model’; Also Martine Boersma, Corruption: A Violation of Human Rights and a Crime under International Law? (Intersentia 2012) 61-62; Andrea D Bontrager Unzicker,

‘From Corruption to Cooperation: Globalization Brings A Multilateral Agreement Against Foreign Bribery’ (1999- 2000) 7 Ind J Global Legal Studies 655, 663.

interest only to some major players in the global economic markets. Corruption is not only a threat to social stability and progress, economic development, democracy and the rule of law, but also leads to the ‘siphoning out’ from the affected State to big financial centers in foreign States of ‘staggering amounts of public funds, illicitly converted to private property’ by ruling elites,.⁶ The illegal transfer of State funds outside the affected States has ‘cancerous effects’, because among other things it undermines foreign aid, reduces currency reserves and increases poverty levels,⁷ especially in developing countries. Mexico, for example, has suffered the transfer of around 120 million USD by the brother of former President Salina. This same amount of money would suffice to cover the annual health care expenses of more than 594.000 Mexican citizens.⁸ The consequences of this ‘indigenous spoliation’⁹ compel us to realize the urgent need for the repatriation of such illicitly transferred assets. However, victim States have to face many substantive and procedural obstacles in order to achieve the repatriation of stolen assets. This procedure is so expensive and time consuming that is at times de facto impossible for victim States, especially developing countries or countries in transition to pursue asset recovery.¹⁰ The first hurdle that most times States come across, when trying to trigger asset recovery proceedings, is money laundering activities, which significantly hinder the tracing of the stolen

6 Global study on the transfer of funds of illicit origin, especially funds derived from acts of corruption’ Ad Hoc Committee for the Negotiation of a Convention against Corruption (Fourth session, Vienna 13-24 January 2003) Agenda Item 3 UN Doc A/AC.261/12 (28 November 2002), para 7-8; Ribadu (n 2) 29; Daniel Thelesklaf/ Amar Salihodzic, ‘The Role of Financial Intelligent Units in Fighting Corruption and Asset Recovery’ in Gretta Fenner Zinkernagel/ Charles Monteith/ Pedro Gomes Pereira (eds), Emerging Trends in Asset Recovery (Peter Lang AG 2013) 207-218, 207.

7 ibid para 9; Global Witness, ’Undue Diligence: How Banks Do Business with Corrupt Regimes’ (March 2009) available at <https://www.globalwitness.org/en/campaigns/corruption-and-money-laundering/banks/undue- diligence/> (accessed 29 November 2015) 11; Bontrager (n 5) 658.

8 ibid para 12 and n 11 therein, World Bank, World Development Indicators 2001, 65.

9 For a thorough analysis of the phenomenon of indigenous spoliation, its consequences to the suffering State as well as the obstacles encountered in prosecuting the offenders, see Ndiva Kofele-Kale, ‘Patrimonicide: The International Economic Crime of Indigenous Spoliation’ (1995) 28 Vand J Trans L 45.

10 Ribadu (n 2) 32; Anne Lugon-Moulin, ‘Asset Recovery: Concrete Challenges for Development Assistance’ in Mark Pieth (ed), Recovering Stolen Assets (Peter Lang 2008) 297-307, 299; The term ‘asset recovery’ may be defined in two ways, a broad and a narrow one. The broad definiton of asset recovery conceptualizes asset recovery as a desirable state of affairs to be achieved, as a goal and purpose, eg under the UNCAC. Define narrowly, on the other hand, asset recovery means ‘the legal processes by which States use each other’s coercive powers to obtain or regain ownership of proceeds and objects of corruption or substitute assets’. See Ivory (n 3) 23, 27 and respective analysis.

assets.¹¹ Laundering activities can effectively disguise the illicit origin of the assets, and the only way to efficiently deal with this issue is the use of principles of due diligence, transparency in transactions and responsible application of ‘know-your-client’ requirements by banking and other financial institutions.¹² Another major impediment is the ‘opaque’ financial systems around the world.¹³ Mechanisms such as corresponding bank accounts in different countries, blind and asset protection trusts,¹⁴ offshore accounts and private banking give corrupt officials great flexibility and freedom to discover the best way to conceal their criminal activities and avoid the enforcement of putative orders of confiscation. Apart from the problems arising regarding the tracing and identification of stolen assets, the process of recovering the assets may itself prove rather complicated for a series of reasons.¹⁵ These range from lack in uniformity of laws and procedures, through which a State is to establish legal title for the confiscation and recovery of the illicit assets and due process and evidentiary deadlocks¹⁶ to lack of international cooperation and lack of technical assistance and resources to pursue the appropriate road of proceeding in foreign jurisdictions. Finally, even if States cooperate and achieve the confiscation or forfeiture of corruptly acquired assets, major issues relating to their return and repatriation arise.¹⁷ There are for instance numerous concerns regarding, whether the requesting victim State suffers from endemic forms of corruption, which will eventually lead again to the illicit diversion of the

11 Global Study on the transfer of funds of illicit origin (n 6) paras 14-19; Ribadu ibid.

12 ibid.

13 ibid paras 20-22; Bassiouni, Introduction ICL (n 4) 516-517.

14 According to Black’s Law Dictionary, a ‘blind trust’ is ‘a trust in which the settlor places investments under the control of an independent trustee, usu. to avoid a conflict of interest’, while an ‘asset-protection trust’ is ‘a trust designed specifically to insulate assets from the settlor’s creditors’. See Bryan A Graner (ed), Black’s Law Dictionary (9th edn, West 2009) 1648.

15 Global Study on the transfer of funds of illicit origin (n 6) paras 23-41.

16 See, for example, the case of Haiti, where there were major obstacles in proving the illicit origins of the assets accumulated by the former dictator Jean-Claude (Baby Doc) Duvalier and his family. Swiss authorities acted on their own initiative under the Swiss government’s emergency foreign policy powers and froze the assets of Baby Doc in Swiss banks, without however being able to maintain the interim measures for a long time, since it related to criminal proceedings for which evidence to establish the offence was not existent. Bertand Bertossa, ’What Makes Asset Recovery so Difficult in Practice? A Practicioner’s Perspective’ in Mark Pieth (ed), Recovering Stolen Assets (Peter Lang AG 2008) 19-27, 26 and n 12 therein. Note that Bertossa was the Attorney General of Switzerland at the time that Nigeria instituted proceedings for the recovery of the Abacha assets.

17 ibid paras 43-46.

assets. Sometimes it may also prove quite complicated to identify the legitimate owners or the real victims of the corrupt act.

Noticing all these barriers, one cannot help but wonder whether the best strategy for developing countries and countries in transition is to spend valuable resources in prosecuting former politicians, public officials and members of corrupt elites to hold them accountable for their crimes, instead of focusing on building a functioning new State. The answer to this question should be an unequivocal ‘Yes!’. Rose-Ackerman, in arguing that generally criminal prosecutions of former rulers may absorb resources that could be ‘put to better use elsewhere’, is inclined to make an exception for crimes of corruption.¹⁸ That is due to the ‘net financial gain’

that successful prosecution may bring to the victim State,¹⁹ which may majorly contribute to its reconstruction and further development. Therefore, a comprehensive and effective regime of asset recovery performs four functions necessary for the establishment and healthy operation of a social environment, which respects human rights and abides by the rule of law.²⁰ First, it functions as a deterrent to the commission of corrupt acts and incapacitates offenders depriving them from the financial gain of their actions and instrument of their crimes.²¹ Second, it restores justice in domestic and international levels by sanctioning the abuse of power and corrupt behavior of public officials and persons with authority. Third, it promotes the ‘administration of justice’²² repairing the damage suffered by victims and populations by means of assisting in their economic and social development. Fourth, it transforms these States into more transparent, fair and stable places for investments and subsequently for economic growth.

What would then be the indispensable characteristics of an efficient and comprehensive regime that would enable affected States to recover assets of illicit origin in the most time and cost-

18 Susan Rose-Ackerman, ‘Establishing the Rule of Law’ in Robert Rotberg, When States Fail: Causes and Consequences (Princeton UP 2004) 182-221, 185.

19 ibid.

20 UNODC, Legislative Guide for the Implementation of the United Nations Convention against Corruption (2nd revised edn, UN Publication 2012) para 667; The fight of corruption through asset recovery also promotes the establishment of a global model of good governance based on the rule of law, fostering thus international security.

See Mark V Vlasic/ Jenae N Noell, ‘Fighting Corruption to Improve Global Security: An Analysis of International Asset Recovery Systems’ (2010) 5 Yal J Int Aff 106, especially 108, 111.

21 Jan Wouters/ Cedric Ryngaert/ Anne Sofie Cloots, ‘The Fight Against Corruption in International Law’, Working Paper No 94 (Leuven Centre for Global Governance Studies July 2012) 58-59; Ribadu (n 2) 30.

22 ibid.

effective manner?²³ Naturally, prevention is better than cure. Thus, a comprehensive asset recovery regulatory framework essentially includes measures and mechanisms that enhance prevention of laundering the proceeds of corruption. The ‘know-your-client’ principles for major financial and banking institutions, the establishment of financial intelligence units (FIUs), the early warning and reporting obligations as well as the due diligence requirements from both the public and the private sector constitute measures of prevention. Apart from prevention, capacity building and technical assistance play a major role. Often asset recovery stumbles upon procedural and legal requirements posed by the States where the assets are located. The affected States on a number of occasions fail to satisfy these requirements and are therefore incapable of pursuing the return of the assets. The other side of the coin is spontaneous cooperation, in the sense that States receiving assets of suspicious origin or from high-risk persons should by their own initiative inform potentially affected States. Finally, there is urgent need for international cooperation and uniformity in substantive laws and legal procedures in order for asset recovery to be successful. Among these, criminalization of foreign corruption, provision of legal standing for foreign States before domestic courts and enforcement of foreign judgments and orders of confiscation are the most important.

It is the objective of the present thesis to analyze and assess the existing regulatory framework on asset recovery for funds derived from acts of corruption. To achieve this objective the present analysis will examine the regulatory framework on asset recovery in international law by dividing it in three parts. First, the international multilateral instruments that provide for asset recovery, primarily the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime, will be surveyed, followed by a brief interim conclusion regarding their strengths and shortcomings. In the second part, the attention will shift to the bilaterilized approach on asset recovery, realized through mutual legal assistance requests and mutual legal assistance treaties (MLATs). The second part will also assess the latters’ operation regarding the provision of assistance in enforcing and prosecuting crimes under the States’ respective domestic laws. Finally, the third part will turn to the functioning and operation of the International Criminal Court’s provisions on asset recovery for victims of international crimes, to investigate whether this system may be used to cure the deficiencies of the previously analyzed multilateral and bilateral framework. The conclusions of the present thesis will provide some thoughts and proposals on how the shortcomings of the existing system

23 For a detailed analysis of proposed measures and mechanisms to deal with the shortcomings of the asset recovery regulatory framework see Global Study on the transfer of funds of illicit origin (n 6) paras 47-68.

may be addressed, enquiring moreover whether the international community is in urgent need of a new system, premised on different rationales. Two caveats should be made. Due to time and space limitations the present thesis does not address the issue of corruption as a violation of human rights.²⁴ Therefore, it also does not examine how victims of human rights violations caused by corrupt practices may acquire compensation or satisfaction for the injuries suffered.

Second, the complex issue of the disposal of the assets following their repatriation will not be addressed. This is a rather complicated matter, which is addressed ad hoc in each different case,²⁵ while the multilateral framework established by UNCAC remains mostly silent on the matter. The research is mainly descriptive and has been conducted form an internal perspective.

It also includes in the last part some normative assessments based on positive morality in the form of proposals regarding the better function of the current legal system.

24 The idea that corruption constitutes a human rights violation has appeared in legal scholarship rather recently, while most multilateral conventions addressing corruption make no such provision. See Boersma (n 5) 2. The grounds upon which the different scholars argue that corruption should be considered a human rights violation differ. Some argue that a new right has emerged based on the right to development and permanent sovereignty over natural resources (see Ndiva Kofele-Kale, ‘The right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime under International Law’ (2000) 34 International Lawyer 149). Others prefer the approach that corruption violates existing human rights such as non-discrimination, prevention from enjoying social, economic and cultural rights and violation of several civil and political rights, eg the right to free elections (see Lawrence Cockroft, Corruption and Human Rights: A Crucial Link (TI Working Paper, Berlin 1998) available at <resources.transparency.bg/download.html?id=229> accessed 27 November 2015;

Nihal Jayawickrama, ‘Corruption: A Violation of Human Rights’ (2006) 12 East Eur Hum R Rev 117).

25 See for a detailed analysis Ignasio Jimu, ‘Managing Proceeds of Asset Recovery: The Case of Nigeria, Peru, the Philippines and Kazakhstan’, International Centre for Asset Recovery Working Paper Series No 6 (October 2009).

The International Regulatory Framework on Asset Recovery for Crimes of Corruption

The international regulatory framework on asset recovery for assets obtained through acts of corruption consists of two major sets of rules. The first one is the legal framework set out by multilateral treaties that oblige States Parties, to criminalize corruption and the misappropriation of funds through corrupt practices in their domestic legal orders. These treaties provide for the necessary mechanisms and measures for international cooperation, that best facilitate the prevention of corruption and the transfer of illegally obtained funds to other jurisdictions. In the field of international criminal law, these treaties are commonly known as suppression treaties.

The term for the purposes of the present thesis primarily refers to the 2003 United Nations Convention against Corruption ²⁶ (UNCAC) and the United Nations Convention against Transnational Organized Crime (UNTOC).²⁷ The second set of international rules has been formulated by the network of regional and bilateral treaties in the field of mutual legal assistance in criminal matters between States.²⁸ Regional and bilateral treaties approach the issue of asset recovery primarily from a bilateralised perspective of cooperation between victim States and States, in whose jurisdictions the corrupt assets are located.

The two multilateral treaties that regulate the process of asset recovery in relation to the crime of corruption are both classic examples of treaties that constitute part of the ‘indirect enforcement system’ in the field of international criminal law.²⁹ On the other hand, the network of regional and bilateral treaties of cooperation and assistance, as well as, the ad hoc mutual legal assistance requests, apart from facilitating the implementation and enforcement of multilateral suppression treaties, primarily aim at the enforcement of national criminal law provisions, criminalizing

26 United Nations Convention against Corruption, signed in New York, 31 October 2003 (entered into force 14 December 2005), 2349 UNTS 41.

27 United Nations Convention against Organized Crime, signed in New York, 15 November 2002 (entered into force 29 September 2003), 2225 UNTS 209.

28 See Claus Kreß, ‘International Criminal Law’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2015) paras 4-5.

29 For a detailed analysis on the scope and the modalities of the ‘indirect enforcement system’ of international criminal law, see Bassiouni, Introduction ICL (n 4) Chapter V.

corruption in the domestic legal order of States, and constitute part of the legal regime called inter-state or international cooperation in criminal matters.³⁰ The two sets of rules look very much alike, since the ‘indirect enforcement system’ of international criminal law also relies on the domestic legal orders of States Parties to the multilateral conventions to criminalize and prosecute the crime of corruption. Moreover, most of the time it utilizes the mechanisms of enforcement of the domestic criminal law order of the State. This notwithstanding, they remain two separate systems of rules, whose application depends on the characterization of the nature of the crime, as national or international.³¹ The two systems for the punishment of the crime of corruption and the regulation of asset recovery for assets derived from such acts will be described and addressed in turn in the two following chapters.

A. The Multilateral Conventions on the Regulation of Asset Recovery for Crimes of Corruption

Before proceeding to the examination of the international regulatory framework for the recovery of corrupt assets a preliminary matter deserves addressing, albeit even rather briefly.

International criminal law theorists and scholars are quite uncertain as to what exactly constitutes an international crime. Therefore, many of them try to distinguish between crimes under international law stricto sensu³² and international crimes lato sensu, or crimes under customary international law and conventional or treaty-based crimes,³³ transnational crimes³⁴ or—even—

‘core crimes’,³⁵ encompassing genocide, crimes against peace/ aggression, war crimes and

30 See also ibid.

31 See ibid 24.

32 See Kreß (n 28).

33 See for example the distinction between crimes under customary international law and conventional/treaty -based crimes in Gerhard Werle/Florian Jessberger, Principles of International Criminal Law (3rd edn, OUP 2014) 45 and n 256 therein. Werle and Jessberger base their distinction upon whether a crime is so serious as to ‘directly affect fundamental values of the international community and establish criminal responsibility directly under international law’ (footnotes omitted).

34 For a thorough analysis of the field of transnational criminal law see Boister (n 5).

35 One the concept of ‘core crimes’ see Werle/Jessberger (n 33) 32; Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (OUP 2004) 10, where he argues that these

‘core crimes’ derive directly from the ‘legacy of Nuremberg’. For Broomhall individual responsibility for the

crimes against humanity.³⁶ Their arguments regarding the aforementioned categorizations are principally dependent upon their diverse views on the criteria of international criminalization, combined with different ideas regarding the nature of the social interests, which are meant to be protected by criminalizing certain conduct.³⁷ Bassiouni in an impressive empirical study of 281 international criminal law conventions identifies 27 categories of international crimes,³⁸ which in turn can be placed into different hierarchical categories. However, as he admits any such hierarchical categorization depends very much upon the different of opinions among scholars, which then lead to the selection of diverse criteria in light of which such categorization is performed. At the same time the said categorization may prove confusing and of limited usefulness.³⁹ It is worth mentioning at this point that for Bassiouni corruption and bribery of foreign officials crimes that aim at protecting what he calls ‘economic interests’, are naturally not considered jus cogens and come last in the hierarchical order of international crimes.⁴⁰ If we follow the categorization of international crimes to crimes under international law and treaty-based crimes, then both UNCAC and UNTOC consitute two multilateral conventions that belong to the latter category. This body of law, usually referred to as ‘suppression conventions’, is designed to combat crimes with transnational elements.⁴¹ Suppression treaties do not establish

violation of these ‘core crimes’ arises directly from international law and there is no need for domestic legislation implementing the international norm to exist, ‘unlike most of the other crimes that might legitimately fall within a broader conception of international criminal law’ (emphasis added). See also for a detailed analysis William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 101ff.

36 On this conceptual debate see Bassiouni, Introduction ICL (n 4) 142ff; Boister (n 5) 18.

37 ibid 142. See also ibid 143, where Bassiouni recognizes that some crimes cause more harm to the international community than others and compares for example genocide with international traffic in obscene materials, and 231 where he explicitly states that ‘the crimes of aggression, war crimes, crimes against humanity, and genocide are the most serious of all international crimes in terms of their impact on humankind (…) They are, as discussed above, part of jus cogens’ (emphasis in the original).

38 M Cherif Bassiouni, International Criminal Law Conventions and their Penal Provisions (Transnational Publishers 1997).

39 Bassiouni, Introduction ICL (n 4) 149 and n 41 therein.

40 See ibid 236, where he then claims that ‘economic interests are perceived as the least important of the international interests that ICL seeks to protect (…)’. To what extent this is indeed the case with corruption today is a claim that could be most probably rebutted given the extensive consequences of corruption on every aspect of a State’s welfare, including economic and social development, rule of law and democratic institutions and its effects on the quality of life of the populations of States that suffer widespread corruption. See especially infra […]

41 Kreß (n 28) para 6; Broomhall (n 35) 12.

individual criminal responsibility themselves and therefore individual criminal responsibility does not directly derive from international law.⁴² On the contrary, they oblige States Parties to criminalize a certain conduct in their domestic legal orders and under their national criminal law provisions, and potentially, depending on the penal provisions of each treaty to establish—again in their domestic legal orders—an obligation to prosecute or extradite the perpetrators and the obligation of international cooperation and mutual legal assistance to other interested Parties.⁴³ Therefore, the failure of States to transpose these obligations in their domestic legal orders engages the State’s international responsibility or the violation of its obligations under the suppression convention.⁴⁴ The rationale underlying the adoption of a suppression convention is the fact that certain criminal behaviors cross borders and have a strong trans-boundary potential, in the sense that if States fail to cooperate in such a way the criminals would be able to use the

‘barriers of sovereignty’ to act freely and with impunity.⁴⁵ Corruption is a crime with strong transnational elements, both relating to the actors that may engage in corrupt practices and to the concealment and transfer of the corrupt funds from victim States to other jurisdictions.

Therefore, a dense multilateral regulatory framework with both substantive and procedural obligations⁴⁶ to combat corruption and make asset recovery feasible has proved invaluable and has been the outcome of years of efforts of the international community, as will be described below.

42 Werle/ Jessberger (n 33) 45-46; Broomhall (n 35) 9, 13; See Boister (n 5) 18, where he specifically juxtaposes the obligations stemming from suppression conventions to those relating to the commission of one of the ‘core crimes’

and for which the responsibility of individuals arises directly under customary international law. Boister uses in 19 Falk’s terminology in Richard A Falk, ‘International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order’ (1958-1959) 32 Temp LQ 295, to argue that ‘while international criminal law is in part a vertical or hierarchical order between formally unequal centers of legal authority, transnational criminal law is a horizontal or non-hierarchical order of formally equal centres of authority based on reciprocity, equality, and sovereign consent’.

43 Werle/ Jessberger (n 33) 46; Bassiouni, Introduction ICL (n 4) 82; Kreß (n 28) para 6.; Boister (n 5) 14.

44 Broomhall (n 35) 9, 13.

45 Boister (n 5) 8, 14.

46 See ibid 16, for Boister’s argument that suppression conventions include both substantive and procedural norms, such as rule that provide for the establishment of extraterritorial jurisdiction, the facilitation of information sharing, gathering of evidence and extradition procedures.

1. Historical evolution of anti-corruption regime

At this point we will cast a cursory glance on how the regulatory framework for the combat of corruption and asset recovery has evolved throughout the last 30 years, in an attempt to observe the developments that finally led to the comprehensive global legal framework on that matters envisaged in the UNCAC. This section will briefly examine the regional multilateral instruments adopted by States as a manifestation of international cooperation in combating the crime of corruption.

The first anti-corruption regional multilateral agreement was the Inter-American Convention Against Corruption adopted under the auspices of the Organization of American States in 1996.⁴⁷ The most distinctive characteristic of the convention is the fact that it has a rather broad subject matter, not only criminalizing active and passive bribery of foreign public officials but also urging States to combat domestic corruption, as well as, including in its scope participation and complicity.⁴⁸ Notwithstanding, its wide jurisdiction ratione materiae⁴⁹ the convention suffers from two main weaknesses. First, the convention itself has no provision for a monitoring mechanism, a fact that renders the obligations that it imposes on states parties practically toothless. The peer review procedure that has been adopted and constructed subsequent to the adoption of the convention, functions in a rather slow pace, while the follow- up Committee may only make recommendations and has no mandate to impose sanctions to non-cooperative States Parties.⁵⁰ Secondly, and more importantly, for the purposes of the present thesis, the convention has only one provision that could be considered as establishing some form of asset recovery, and even this provision is too soft and refers greatly to the States Parties’ domestic law. Therefore,

47 Inter-American Convention Against Corruption (OAS Convention), done at Caracas 29 March 1996 (entry into force 6 March 1997), 35 ILM (1996) 724, available at http://www.oas.org/juridico/english/treaties/b-58.html last accessed 13 November 2015.

48 OAS Convention Art VI, Art VIII, Art IX, Art XI; See also Maria Gavouneli, ‘The International System of Corruption Control’ in Ilias Bantekas & Giannis Keramidas & Cameron Iain (eds), International and European Financial Criminal Law (LexisNexis Butterworths 2006), 180 - 200, 181.

49 For an analysis of the Convention’s jurisdiction ratione materiae see Boersma (n 5) 65-66.

50 Philippa Webb, ‘The United Nations Convention against Corruption: Global Achievement or Missed Opportunity?’ 8(1) JIEL 191 (2005) 194-195; Boersma ibid 67-69.

under paragraph 1 of article XV titled ‘Measures Regarding Property’,⁵¹ States have to accord one another the ‘broadest possible measure of assistance’ in commencing procedures for the identification, tracing, freezing, seizure and forfeiture of property or proceeds deriving from the crimes under the convention; however, the assistance is to be provided in accordance with the State’s domestic laws and the bilateral or multilateral treaties that bind the said Party. The treaties that article XV refers to are apparently treaties on mutual legal assistance that oblige the State to accord a certain degree of assistance to its counter- Party in relation to the predicated offences in the treaty. For this reason, the article itself does not provide for a strict obligation of States to assist other States Parties in tracing the assets deriving from the acts of corruption under the convention. More importantly, article XV paragraph 2 does not in reality provide for asset recovery by the victim State from the State where the assets are traced or seized. What article XV primarily provides for is disposal of the seized or forfeited assets as regulated by the competent Party’s domestic laws. On the other hand it also accommodates the transfer of all or part of the seized or forfeited assets to another Party that has assisted in the investigation or the proceedings, only to the extent permitted by the Party’s domestic legislation, and depending on its discretion,.⁵² This is not, thus a procedure of asset recovery by the victim State of the assets derived from corrupt crimes but rather, in fact, a recovery of costs: a certain kind of reimbursement of the State, which has allocated resources and has assisted in seizing or forfeiting the said assets.

Second in line comes the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, concluded in 1997.⁵³ The convention was a significant

51 See Art XV(1) OAS Convention, thus: ‘1. In accordance with their applicable domestic laws and relevant treaties or other agreements that may be in force between or among them, the States Parties shall provide each other the broadest possible measure of assistance in the identification, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from or used in the commission of offenses established in accordance with this Convention’.

52 See text in OAS Convention, Art 12(2): ‘A State Party that enforces its own or another State Party's forfeiture judgment against property or proceeds described in paragraph 1 of this article shall dispose of the property or proceeds in accordance with its laws. To the extent permitted by a State Party's laws and upon such terms as it deems appropriate, it may transfer all or part of such property or proceeds to another State Party that assisted in the underlying investigation or proceedings’ (emphasis added).

53 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention), sign on 17 December 1997 (entry into force 15 February 1999), 2802 UNTS 1, available at http://www.oecd.org/corruption/oecdantibriberyconvention.htm last accessed 14 November 2015; For an argument on how globalization led to the conclusion of the OECD Anti-Bribery Convention see Bontrager (n 4).

step in the fight against corruption because the Organization itself comprises of members that represent 70% of world exports and 90% of the world’s foreign direct investment, simultaneously being home countries to 75% of the world’s multinational corporations.⁵⁴ However, the scope of the convention is rather limited since it refers only to active and passive bribery of foreign public officials, therefore not domestic forms of corruption, and only in the cases, when the act of bribery occurs during the conduct of international business transactions.⁵⁵ Thus, it is evident that the OAS Convention is much wider in scope than the OECD Anti-Bribery Convention. Moreover, the latter contains no provision for the return of assets deriving from the offences under the convention and makes provision only for the confiscation of the bribe or the proceeds of bribery or the imposition of monetary sanctions of equivalent value.⁵⁶ Hence, the disposal of the assets will necessarily be regulated by the domestic law of the competent State Party which more often than not provides that the State that confiscated the assets gets to keep them.

Two anti-corruption conventions have also been adopted by the Council of Europe (CoE) in 1999, within its wider initiative to promote democracy and the rule of law, as well as political and legal constitutional reform in Europe on the aftermath of the Cold War.⁵⁷ These conventions are the Criminal Law Convention on Corruption⁵⁸ and the Civil Law Convention on Corruption.⁵⁹ The Criminal Law Convention on Corruption has a rather limited material reach despite its broad provision in relation to jurisdiction ratione personae.⁶⁰ Namely, it only criminalizes active and passive bribery, leaving aside other acts of corruption such as

54 Webb (n 50) 195; Boersma (n 5) 75; Mark Pieth, ‘Introduction’ in Mark Pieth/ Lucinda A Low/ Peter J Cullen (eds), The OECD Convention on Bribery. A Commentary (CUP 2007), 3-41, 21; For a thorough analysis of the regulatory scope of the OECD Anti-Bribery Convention see Gavouneli (n 48) 187-189.

55 See text of OECD Anti-Bribery Convention Art 1(1).

56 OECD Anti-Bribery Convention Art 3(3); Webb (n 50) 197.

57 Webb (n 50) 198-199.

58 Criminal Law Convention on Corruption (CoE Criminal Law Convention), signed 27 January 1999 (entry into force 1 July 2002), ETS No 173, available at http://www.coe.int/en/web/conventions/full-list/- /conventions/treaty/173 last accessed 14 November 2015.

59 Civil Law Convention on Corruption (CoE Civil Law Convention), signed in 4 November 1999 (entry into force 1 November 2003), ETS No 174, available at http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/174 last accessed 14 November 2015.

60 CoE Criminal Law Convention Arts 2-11.

embezzlement, nepotism or inside trading.⁶¹ On the issue of asset recovery, the Criminal Law Convention on Corruption provides only for the confiscation of the proceeds of crimes under the convention or property of equivalent value.⁶² Thus, the convention does not provide for the return of the assets, while article 23 which sets out the measures to be taken by the States Parties is phrased in rather soft terms.⁶³

The Civil Law Convention, on the other hand, is the first international anti-corruption convention that establishes a regulatory framework enabling victims of acts of corruption to bring civil claims and obtain compensation for damages they have directly suffered from such acts.⁶⁴ However, the convention defines rather narrowly corruption as active or passive bribery (Article 2), while it also makes no provision for asset recovery in favor of the victim State.

Rather the treaty mechanism is meant to facilitate individuals, who have directly been the victims as a consequence of a corrupt act, in seeking compensation, even against the State that has not taken the appropriate measures to protect them against such acts of corruption.⁶⁵

In the context of the European Union, a Convention on the Fight Against Corruption involving Officials of the European Communities or Officials of Member States was adopted in 1997.⁶⁶ The convention has a rather limited grasp, both ratione personae and ratione materiae, since it only covers active and passive bribery of European Communities’ officials or officials of Member States.⁶⁷ Moreover, it makes no provision for either confiscation or return of assets, which constitute proceeds of the crimes under the convention.

On the other hand, the most recent anti-corruption convention, the African Union Convention on Preventing and Combating Corruption,⁶⁸ adopted in 2003, is comprehensive and all-inclusive in

61 CoE Criminal Law Convention Arts 2 - 3; Webb (n 50) 199.

62 CoE Criminal Law Convention Art 19(3).

63 Webb (n 50) 199.

64 ibid.

65 CoE Civil Law Convention Arts 3-5. See also Art 8, which provides that injured parties may seek for the annulment of contracts that have been concluded as a result of corruption.

66 Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union (EU Corruption Convention), adopted on 26 May 1997, 37 ILM (1998) 12, EC OJ 97/C/195 .

67 Webb (n 50) 201; Boersma (n 5) 72.

68 African Union Convention on Preventing and Combating Corruption (AU Convention), signed on 11 July 2003 (entry into force 5 August 2006), 2860 UNTS 1.

its remit.⁶⁹ It criminalizes active and passive bribery,⁷⁰ trade in influence,⁷¹ misappropriation of public funds and property,⁷² private corruption,⁷³ illicit enrichment⁷⁴ and participation to the commitment of the aforementioned corrupt acts.⁷⁵ Moreover, the convention provides for the confiscation and seizure of the proceeds of crimes of corruption, which are established under the convention. According to article 16 para 1 each State Party undertakes to adopt measures in its internal legislation in order to enable its competent authorities to trace stolen assets and take interim measures, namely freezing and seizure, against the proceeds of the crimes of corruption pending a final judgment and also to confiscate these proceeds, or property of equivalent value, deriving from such crimes.⁷⁶ Moreover, the measures have to be such so as to enable the repatriation of the assets to the victim State, if this is the case.⁷⁷ Contrary to the previous conventions, the phrasing of the obligations under the AU Convention is rather strict and in mandatory terms.⁷⁸ Moreover, there is no caveat in favor of the domestic laws of the competent Party to function as an ‘exit clause’ regarding the obligation to establish the asset recovery mechanism. However, it is believed that it is exactly the far reaching regulatory scope of the AU Convention that makes States quite reluctant to ratify it.⁷⁹

The description of the temporal development of the regulatory framework regarding the fight of corruption and the tracing, identification, freezing and confiscation of assets, as well as, the repatriation to the victim State, triggers a comment along the line of Boister’s argument.

According to Boister, the asset recovery regime has gone through two major phases. First, an

69 Webb (n 50) 203; Boersma (n 5) 90; Kolawole Olaniyan, ‘The African Union Convention on Preventing and Combating Corruption: A Critical Appraisal’ (2004) 4 Afr Hum RLJ 74, 85.

70 AU Convention Art 1(a)-(b).

71 AU Convention Art 1(f).

72 AU Convention 1(d).

73 AU Convention Art 1(e).

74 AU Convention Art 1(g).

75 AU Convention Art 1(i).

76 AU Convention Art 1(a)-(b).

77 AU Convention Art 16(1)(c)

78 Webb (n 50) 203.

79 ibid.

asset forfeiture phase, and, second an asset recovery phase.⁸⁰ It becomes evident by the aforementioned analysis, that this is exactly the way that the asset recovery framework developed in the regional instruments described. Hence, the three first regional treaties, the OAS Convention, the OECD Anti-Bribery Convention and the CoE Criminal Law Convention only provide for seizure and confiscation of the assets, while the CoE Civil Law Convention establishes an entirely different regime. On the other hand, the very last and more recent AU Convention is the only one that provides for the mandatory repatriation of the assets, setting up consequently a comprehensive, albeit regional, asset recovery regime. Having said that, let us now turn to the legal framework established by UNCAC, the first global binding legal instrument that comprehensively combats corruption and provides for recovery of corrupt assets.

2. United Nations Convention against Corruption (UNCAC)

The United Nations Convention against Corruption is the culmination of a 30-years discourse process within the United Nations and a series of other regional and international fora.⁸¹ Corruption first appeared in the agenda of the United Nations in the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,⁸² while the first instrument to criminalize corruption with international elements was the US Foreign Corrupt Practices Act (1977).⁸³ In these early days, corruption, a form of white-collar crime, was already considered a threat to socio-economic development and progress.⁸⁴ The problem was further and fuller outlined in the report of the Sixth Congress on the Prevention of Crime and Treatment of Offenders, where it was already evident that developing States were vulnerable to crimes affecting their economies, and that certain crimes such as bribery, corruption, embezzlement and misappropriation of public funds were crimes that law enforcement authorities had difficulties in

80 Boister (n 5) 235-236.

81 UNCAC Travaux Préparatoires xliii.

82 Travaux Préparatoires of the negotiation for the elaboration of the United Nations Convention against Corruption (UNCAC Travaux Préparatoires), UNODC (Sales No. E. 10.V.13, UN Publication 2010) xii; for the original report see Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Kyoto, 17-26 August 1970, Report prepared by the Secretariat, UN Doc A/CONF.43/5 (Sales No. E.71.IV.8, UN Publication 1971) iii.

83 15 U.S.C. §§ 78dd-1; Webb (n 50) 192.

84 UNCAC Travaux Préparatoires xii.

addressing because of the high political and/or economic status of their perpetrators and of the circumstances under which they were committed.⁸⁵ In the Eighth United Nations Congress it was recognized that the problem of corruption had become truly transnational, ‘plaguing’ all societies,⁸⁶ having immensely adverse effects on developing countries.⁸⁷ Therefore, the actions that were identified as necessary were the harmonization of national legislation and the promotion of international cooperation, including provisions for the confiscation of proceeds of corrupt practices and measures preventing their laundering.⁸⁸ Following these developments the United Nations Convention against Transnational Organized Crime was concluded,⁸⁹ against the backdrop of which the idea for an autonomous convention addressing the ever evolving issue of the crime of corruption arose. UNTOC includes two substantive provisions imposing upon States Parties the obligation to criminalize corruption as well as three provisions dealing with confiscation of proceeds of crime and international cooperation in confiscation and disposal of assets. However, States during the negotiation of the convention agreed that it could not cover in a comprehensive manner the complex matters relating to the crime of corruption. ⁹⁰ Consequently, the Ad Hoc Committee for the negotiation of UNTOC during its Seventh session decided that a separate international legal instrument to address corruption was necessary. High- level political support was also expressed in the Tenth United Nations Congress.⁹¹ The GA endorsed the idea in its resolution 55/61 and decided to begin the elaboration of the new international instrument, while in the Tenth session of the Commission on Crime Prevention and Criminal Justice, States widely recognized the need for the new document to address the issue of illegally transferred funds and the repatriation of the latter in their countries of origin.⁹² It is important to note at this point that, although other initiatives relating to illegally obtained funds, such as asset forfeiture or anti-money laundering regimes have been mostly supported by

85 UNCAC Travaux Préparatoires [xiv]; Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Caracas, 25 August- 5 September 1980: Report prepared by the Secretariat, UN Doc A/CONF.87/14/Rev.1 (Sales No. E.81.IV.4, UN Publications 1981) Ch IV(B), para 159.

86 UNCAC Travaux Préparatoires xvii;

87 ibid.

88 ibid.

89 See analysis infra section 3 of the present chapter.

90 UNCAC Travaux Préparatoires xxxi.

91 ibid xxxii.

92 ibid xxxvi.

developed countries, developing countries have been at the forefront of the political campaign to include a strong asset recovery regime in UNCAC, due to the enormous amounts of funds that they annually lose through corrupt practices of their political elites.⁹³ In shaping the asset recovery regime of UNCAC, ECOSOC's resolution 2001/13 played a significant role, urging the Intergovernmental open-ended group negotiating the draft terms for the new international instrument to consider within its mandate under GA resolution 55/61 several issues regarding the creation of a comprehensive regime for asset recovery in the new convention.⁹⁴ The two final resolutions of the GA for the launch of the negotiation proceedings were resolutions 56/186 and 56/260, in which specific consideration was given to the need for the new convention to address the issues of illegally transferred funds and their repatriation.⁹⁵ Finally, UNCAC was adopted by virtue of the GA resolution 58/4 of 31 October 2003; it was opened for signature in Merida, Mexico from 9 to 11 December 2003 and entered into force on 14 December 2005.

i. The regulatory scope of UNCAC

The adoption of UNCAC signified ‘a real difference to the quality of life of millions of people around the world’.⁹⁶ As one scholar has commented the adoption of UNCAC ‘transformed the anti-corruption war, in general’.⁹⁷ The Convention is the first global instrument establishing a comprehensive regime to fight corruption and to facilitate return of the illicit funds derived from corrupt acts to the States of origin.⁹⁸ The structure of the Convention is premised upon three

93 Boister (n 5) 236.

94 UNCAC Travaux Préparatoires xxxvi-xxxvii, xxxix.

95 ibid xli.

96 Kofi A Annan, ‘Foreword’, United Nations Convention Against Corruption, UNODC (United Nations Publication 2004) iv.

97 Rubadi (n 2) 31.

98 As the former Secretary-General (see ibid) characteristically stated: ‘[I]t makes a major breakthrough by requiring Member States to return assets obtained through corruption to the country from which they were stolen. These provisions — the first of their kind — introduce a new fundamental principle, as well as a framework for stronger cooperation between States to prevent and detect corruption and to return the proceeds. Corrupt officials will in future find fewer ways to hide their illicit gains. This is a particularly important issue for many developing countries where corrupt high officials have plundered the national wealth and where new Governments badly need resources to reconstruct and rehabilitate their societies’.

main pillars: prevention, criminalization and international cooperation between States Parties.⁹⁹ Chapter II of UNCAC is devoted to preventive measures that the Convention addresses to both public institutions and organs of States Parties and the private sector.¹⁰⁰ Measures ranging from the establishment of anti-corruption policies and anti-corruption bodies and authorities,¹⁰¹ the adoption of criteria for the hiring of civil servants and election to public office,¹⁰² the transparent conduct of public procurement,¹⁰³ the enhancement of the civil society’s involvement,¹⁰⁴ to the accounting and auditing of the private sector¹⁰⁵ and the prevention of money laundering through a comprehensive system of regulation upon banking institutions,¹⁰⁶ seek to establish a strong framework aiming at the elimination of corrupt practices and the promotion of transparency and the rule of law.

Furthermore, Chapter III, titled ‘Criminalisation and law enforcement’ defines the ratione materiae scope of the Convention in a rather mandatory tone. It has to be noted that the Convention provides no comprehensive definition of corruption. However, it has a rather wide scope criminalizing not only classic forms of corruption, such as active and passive bribery of national and foreign public officials,¹⁰⁷ but also embezzlement and misappropriation of public funds and property,¹⁰⁸ trading in influence,¹⁰⁹ abuse of power,¹¹⁰ illicit enrichment,¹¹¹ bribery and embezzlement in the private sector,¹¹² laundering of the proceeds of crime and concealment¹¹³

99 Gavouneli (n 48) 186; Webb (n 50) 205-206.

100 See UNCAC Chapter II.

101 UNCAC Arts 5 and 6.

102 UNCAC Art 7.

103 UNCAC Art 9.

104 UNCAC Art 13.

105 UNCAC Art 12.

106 UNCAC Art 14.

107 UNCAC Arts 15-16.

108 UNCAC Art 17.

109 UNCAC Art 18.

110 UNCAC Art 19.

111 UNCAC Art 20.

112 UNCAC Arts 21-22.

113 UNCAC Arts 23-24.

and obstruction of justice.¹¹⁴ It has to be noted that the offences under the Convention are divided in those that States must mandatorily criminalize and the ‘optional’ ones.¹¹⁵ Apart from the corrupt practices whose criminalization the convention mandates under Chapter III, it also provides for a number of law enforcement practices in Articles 26-42. Of major importance for the issue of asset recovery are the provisions of Articles 31, titled ‘[f]reezing, seizure and confiscation’, and 35, namely ‘[c]ompensation for damage’. It is quite telling for the progressive character of UNCAC that these provisions are located within the chapter for law enforcement rather than the chapter for asset recovery (Chapter V). More specifically, what Boisters calls the first phase of asset recovery, i.e. asset forfeiture,¹¹⁶ indeed exists in UNCAC. In addition to this, UNCAC is designed to provide something further: a comprehensive network of provisions that not only provide for the confiscation of the assets or compensation to the victims that have suffered damage by acts of corruption,¹¹⁷ but also for the repatriation of stolen assets to the States of origin, and it is the first multilateral Convention against corruption to do so.¹¹⁸

Finally, the third pillar of UNCAC, i.e. international cooperation, spelled out in the next three parts of the Convention, attempts to reinforce the idea that a crime with such extensive transnational effects cannot be tackled without strong bonds of international cooperation. ¹¹⁹ First, Chapter IV, ‘International Cooperation’ established provisions regarding extradition,¹²⁰ mutual legal assistance,¹²¹ transfer of criminal proceedings and sentenced persons,¹²² law

114 UNCAC Art 25.

115 Dimitri Vlassis, ‘Challenges in the Development of International Criminal Law: The Negotiations of the United Nations Convention Against Transnational Organized Crime and the United Nations Convention Against Corruption’ in M Cherif Bassiouni (ed), International Criminal Law (Vol I, 3rd edn, Martinus Nijhoff 2008) 907- 937, 933.

116 Boister (n 5) 235.

117 cf with OAS Convention Art XV; OECD Anti-Bribery Convention Art 3(3); CoE Criminal Law Convention Art 19(3); AU Convention Art 16(1); UNTOC Arts 12-14; CoE Civil Law Convention Arts 3-5, 8; See also analysis infra.

118 Boister (n 5) 236.

119 See also UNCAC Preambular para 4.

120 UNCAC Art 44.

121 UNCAC Art 46.

122 UNCAC Art 47 and 45 respectively.