A/HRC/43/66
35.
In the Addis Ababa Action Agenda of the Third International Conference on
Financing for Development, States pledged to redouble efforts to substantially reduce illicit
financial flows by 2030, with a view to eventually eliminating them, including by
combating tax evasion and corruption through strengthened national regulation and
increased international cooperation.
36.
The Declaration on the Right to Development, which the General Assembly adopted
by its resolution 41/128, outlines the principles that should guide policy decisions at the
national and international levels with respect to financing for development. Under article 1,
communities should have full sovereignty over their natural wealth and resources, and
under article 2, the benefits of development should be fairly distributed. Member States are
called upon to taking all measures necessary for the realization of the right to development
and to ensure equality of opportunity for all (art. 8). In addition, at the international level,
the Declaration places a duty on States to cooperate with each other, both to promote more
rapid development among developing countries and to remove obstacles to comprehensive
development (arts. 3 (3) and 4 (2)). There are strong existing international commitments
therefore linking the right to development, financing for development and combating illicit
funds. Article 57 of the United Nations Convention against Corruption refers to the
“legitimate owners” of assets and the “victims of the crime”. Under the Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power, “victims” include
persons who, individually or collectively, have suffered economic loss or substantial
impairment of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States.
37.
In his report to the Human Rights Council in July 2019, the Special Rapporteur on
the right to development recommended that States should shift from a donor-recipient
paradigm to a genuine partnership with developing countries, as envisaged in the
Declaration on the Right to Development and Sustainable Development Goal 17, and that
States should base their development financing on the priorities of recipient partners and
guarantee that beneficiary States have ownership of development projects carried out with
that financing (A/HRC/42/38, para. 73).
38.
Moreover, a human rights-based approach to asset recovery implies that
communities in the country where illicit funds originate may be recognized as rights
holders and thereby enabled as key actors in processes and decisions that affect them, rather
than being passive recipients. Framing the repatriation of funds as a human rights issue
therefore portrays the countries bearing the frozen assets as duty bearers towards the
countries of origin, with an obligation to help the rights holders to pursue their human
rights claims.
39.
Sustainable Development Goal 8, to promote sustained, inclusive and sustainable
economic growth, is directly linked to the enhancement of socioeconomic rights, especially
in developing countries. States, in the case of countries of destination as duty bearers, have
an obligation to provide effective remedies for human rights violations, including legal and
administrative procedures to facilitate the utilization of funds when recourse to justice takes
more time than it should.10 From this perspective, the utilization of non-repatriated funds is
a crucial component in supporting the realization of Goal 8.
40.
The Addis Ababa Action Agenda, the 2030 Agenda and Agenda 2063 of the African
Union further highlight the importance of tackling illicit financial flows. By some
estimates, illicit flows from Africa could be as much as $50 billion per year, which is
approximately double the official development assistance that Africa receives per year.
Using the proceeds of the investment of illicit funds would be part of the contribution of
countries of destination to development assistance. Stopping illicit financial flows from
Africa is a key policy priority for the continent – and for the world – a priority reflected in
the Special Declaration on Illicit Financial Flows adopted by the Heads of State and
Government of the African Union in 2015.
10
8
This is indirectly addressed in the document entitled “Who will be accountable? Human rights and the
post-2015 development agenda”, issued by OHCHR and the Centre for Economic and Social Rights
(Geneva and New York, 2013).
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