A/HRC/19/42
conformity with the “maximum available resources” principle must govern allocation
decisions, no general one-fits-all rule can be suggested, since claims are dependent on the
particular situation of each country. However, the human rights-based approach provides
important guidance to take into account.
30.
In the first place, it requires that the decision-making process complies with both
principles of transparency and participation. Decisions over resources allocation cannot be
made behind closed doors, but publicly and openly, with due attention to civil society’s
demands. In some cases, lack of transparency and participation in the allocation decisions
can end up in the use of the recovered assets to ends different from those sought by human
rights principles.30 Moreover, publicity for and accessibility of budget information, which
should be compiled in easy-to-monitor categories, is essential in order to notice spending
priorities and make the right allocation decisions. 31 Lastly, the allocation decision-making
process would benefit from comparing actual budget allocations against human rights
indicators.32
31.
On the other hand, the allocation decision-making process should also be informed
by the human rights-based approach principle of providing effective remedies, including
the creation of conditions for avoiding new human rights violations in the future. Applied to
the context of repatriation agreements envisaged by article 57, paragraph 5, of the United
Nations Convention against Corruption, this principle could be used as a framework for
these usually difficult negotiations. The human rights-based approach requires that
repatriated funds be appropriately used in the creation of conditions for complying with
human rights obligations and for avoiding new corruption-based diversions. There are
national precedents that show a path for future reference in search of matching both the
needs of the society harmed by the consequences of corruption and the recipients’ concerns
about the final destination of the returned funds.
32.
Additionally, managing and oversight mechanisms can be as important as making
the correct decision for the final destination of the funds. These include establishing the
procedures and the authorities that will be accountable for guaranteeing that the allocation
decisions will be strictly followed. Well-designed tracking arrangements facilitate oversight
activities and continuous monitoring, particularly by civil society organizations.
33.
These management arrangements are enhanced when they are in line with the human
rights-based approach, since transparency, participation and accountability are three main
pillars of any scheme devised for pursuing proper and efficient administration, including
public recordings of receipts, public declarations of intended use of funds and public
budgeting, public reporting on actual expenditures and on the achieved results, proper
mechanisms of auditing, and official response and measures to correct identified
weaknesses or mismanagement. The need for transparency in budget spending is a lesson
that has been learned from situations in which the recovered assets transfered to an offbudget fund gave rise to a number of questionable transactions.
30
31
32
Ignasio Jimu, “Managing proceeds of asset recovery: The case of Nigeria, Peru, the Philippines and
Kazakhstan”, Basel Institute on Governance, Working Paper Series No. 06, 2009, pp. 11-12.
Examples from the cases of Nigeria, Peru, the Philippines and Kazakhstan in this section are also
based on this article.
Balakrishnan and others, “Maximum available resources & human rights: analytical report”, Center
for Women’s Global Leadership, Rutgers, 2011, p. 9.
HRI/MC/2008/3.
9
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents