The agreement on asset recovery is considered a major breakthrough and many observers claim that it is one of the reasons why so many developing countries have signed UNCAC. Asset recovery is indeed a very important issue for many developing countries where high-level corruption has plundered the national wealth. Reaching an agreement on this Chapter involved intensive negotiations, as the legitimate interests of countries wishing to recover illicit assets had to be reconciled with the legal and procedural safeguards of the countries from which assistance will be sought. Generally, in the course of the negotiations, countries seeking to recover assets sought to establish presumptions that would make clear their ownership of the assets and give priority for return over other means of disposal. Countries from which the return was likely to be sought, on the other hand, had concerns about the language that might have compromised basic human rights and procedural protections associated with criminal liability and the freezing, seizure, forfeiture and return of such assets.
Chapter V of UNCAC establishes asset recovery as a "fundamental principle" of the Convention. The provisions on asset recovery lay a framework, in both civil and criminal law, for tracing, freezing, forfeiting and returning funds obtained through corrupt activities. The requesting state will in most cases receive the recovered funds as long as it can prove ownership. In some cases, the funds may be returned directly to individual victims.
If no other arrangement is in place, States Parties may use the Convention itself as a legal basis. Article 54(1)(a) of UNCAC provides that: "Each State Party (shall)... take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another state party" Indeed, Article 54(2)(a) of UNCAC also provides for the provisional freezing or seizing of property where there are sufficient grounds for taking such actions in advance of a formal request being received.
Recognizing that recovering assets once transferred and concealed is an exceedingly costly, complex and an all-too-often unsuccessful process, this Chapter also incorporates elements intended to prevent illicit transfers and generate records that can be used where illicit transfers eventually have to be traced, frozen, seized and confiscated (Article 52). The identification of experts who can assist developing countries in this process is also included as a form of technical assistance (Article 60(5)).
Chapter VI of UNCAC is dedicated to technical assistance, meaning support offered to developing and transition countries in the implementation of UNCAC. The provisions cover training, material and human resources, research, and information sharing. UNCAC also calls for cooperation through international and regional organizations (many of which already have established anti-corruption programmes), research efforts, and the contribution of financial resources both directly to developing countries and countries with economies in transition, and to the UNODC.
Chapter VII deals with international implementation through the CoSP and the UN Secretariat.
The final provisions are similar to those found in other UN treaties. Key provisions ensure that UNCAC requirements are to be interpreted as minimum standards, which States Parties are free to exceed with measures "more strict or severe" than those set out in specific provisions; and the two Articles governing signature, ratification and the coming into force of the Convention.
In accordance with Article 63(7) of UNCAC, "the Conference shall establish, if it deems necessary, any appropriate mechanism or body to assist in the effective implementation of the Convention". At its first session, the CoSP established an open-ended intergovernmental expert group to make recommendations to the Conference on the appropriate mechanism. A voluntary "Pilot Review Programme", which was limited in scope, was initiated to offer adequate opportunity to test possible methods to review the implementation of UNCAC, with the overall objective to evaluate efficiency and effectiveness of the tested mechanism(s) and to provide to the CoSP information on lessons learnt and experience acquired, thus enabling the CoSP to make informed decisions on the establishment of an appropriate mechanism for reviewing the implementation of UNCAC. The CoSP at its third session, held in Doha in November 2009, adopted Resolution 3/1 on the review of the implementation of the Convention, containing the terms of reference of an Implementation Review Mechanism (IRM). It established a review mechanism aimed at assisting countries to meet the objectives of UNCAC through a peer review process. The IRM is intended to further enhance the potential of the UNCAC, by providing the means for countries to assess their level of implementation through the use of a comprehensive self-assessment checklist, the identification of potential gaps and the development of action plans to strengthen the implementation of UNCAC domestically. UNODC serves as the secretariat to the review mechanism.
The Terms of Reference of the IRM specify that each review phase is composed of two review cycles of five years. The first review cycle covers chapters III (criminalization and law enforcement) and IV (international cooperation) of UNCAC. The second review cycle, which will start in 2015, covers chapters II (preventive measures) and V (asset recovery). All States parties must undergo the review within each cycle. The selection of the reviewing States parties is carried out by drawing of lots. Each State party is reviewed by two other States parties, with the active involvement of the State Party under review. At least one of the reviewing States is from the regional group of the State party under review.
An initial desk review is based on the responses of each State to the IT-based comprehensive self-assessment checklist. States parties under review are encouraged to conduct broad consultations including all relevant stakeholders when preparing their responses. Active dialogue between the country under review and the reviewers is a key component of the process. Country visits or joint meetings are held when agreed by the State party under review. A country review report is prepared and agreed to by the country under review and may be made public. The executive summary of this report is an official document of the United Nations.
As of 4 October 2012, 157 countries are involved in the Review Mechanism either as countries under review or as reviewing countries.
The UNCAC Coalition, established in 2006, is a network of some 310 civil society organizations (CSOs) in over 100 countries, committed to promoting the ratification, implementation and monitoring of UNCAC. It aims to mobilize broad civil society support for UNCAC and to facilitate strong civil society action at national, regional and international levels in support of UNCAC. The Coalition is open to all organizations and individuals committed to these goals. The breadth of UNCAC means that its framework is relevant for a wide range of CSOs, including groups working in the areas of human rights, labour rights, governance, economic development, environment and private sector accountability.
Ratification of UNCAC, while essential, is only the first step. Fully implementing its provisions presents significant challenges for the international community as well as individual States parties, particularly in relation to the innovative areas of UNCAC. For this reason, countries have often needed policy guidance and technical assistance to ensure the effective implementation of UNCAC. The results of the first years of IRM have shown that many developing countries have identified technical assistance needs. The provision of technical assistance, as foreseen in UNCAC, is crucial to ensure the full and effective incorporation of the provisions of UNCAC into domestic legal systems and, above all, into the reality of daily life.