[Senate Executive Report 109-4]
[From the U.S. Government Publishing Office]
109th Congress Exec. Rept.
SENATE
1st Session 109-4
======================================================================
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (TREATY DOC. 108-
16)
_______
August 31, 2005.--Ordered to be printed
Filed under authority of the order of the Senate of July 29
(legislative day, July 11), 2005
_______
Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 108-16]
The Committee on Foreign Relations, to which was referred
the U.N. Convention Against Transnational Organized Crime,
together with two supplementary protocols: (1) The Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, and (2) the Protocol Against Smuggling of
Migrants by Land, Sea and Air (Treaty Doc. 108-16) (hereinafter
``Convention,'' ``Trafficking Protocol,'' and ``Smuggling
Protocol''), signed at Palermo, Italy on December 13, 2000,
having considered the same, reports favorably thereon and
recommends that the Senate give its advice and consent to
ratification thereof with three reservations and one
declaration relating to the Convention, three reservations, one
understanding, and one declaration relating to the Trafficking
Protocol, and two reservations and one understanding relating
to the Smuggling Protocol, as set forth in this report and the
accompanying resolution of advice and consent to ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Summary of Key Provisions of the Convention and Protocols........2
IV. Implementing Legislation.........................................4
V. Committee Action.................................................4
VI. Committee Recommendations and Comments...........................4
VII. Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The Convention and accompanying Protocols are the first
multilateral treaties to address the phenomenon of
transnational organized crime. The instruments require the
parties to criminalize certain conduct and to cooperate on
extradition and mutual legal assistance in relation to these
crimes. The agreements would thus enhance the ability of the
United States to render and receive assistance on a global
basis in the common struggle to prevent, investigate, and
prosecute transnational organized crime. The Trafficking
Protocol aims to prevent and combat trafficking in persons,
particularly women and children, to protect and assist the
victims of such trafficking, and to promote cooperation among
parties in meeting these objectives. The Smuggling Protocol is
designed to prevent and combat the smuggling of migrants and to
promote cooperation among states parties to that end, while
protecting the rights of smuggled migrants.
II. Background
The Convention, Trafficking Protocol, and Smuggling
Protocol were adopted by the United Nations General Assembly on
November 15, 2000, and were signed by the United States on
December 13, 2000, at Palermo, Italy. The Convention, which
entered into force on September 29, 2003, now has 107 parties.
The Trafficking Protocol entered into force on December 25,
2003, and has 87 parties. The Smuggling Protocol entered into
force on January 28, 2004, and has 78 parties.
III. Summary of Key Provisions of the Convention and Protocols
A detailed article-by-article discussion of the Convention
and Protocols may be found in the Letter of Submittal from the
Secretary of State to the President, which is reprinted in full
in Treaty Document 108-16. A summary of the key provisions of
the Convention and Protocols is set forth below.
The Convention requires parties to criminalize
participation in an organized criminal group, money laundering,
bribery of domestic public officials, and obstruction of
justice in relation to offenses covered by the Convention, and
to take measures to combat money laundering and bribery of
public officials.
The Convention also provides a legal basis for
strengthening international cooperation to combat transnational
organized crime, including in the areas of extradition, mutual
legal assistance, and confiscation of the proceeds and
instrumentalities of crime. In the area of extradition, Article
16(3) of the Convention requires parties to deem offenses
covered by the Convention to be included among the extraditable
offenses in extradition treaties existing between the parties.
These offenses include the specific conduct that the Convention
requires parties to criminalize, as well as other crimes
punishable by a maximum sentence of at least four years that
are ``transnational'' and involve an ``organized criminal
group'' as those terms are defined in the Convention. For the
United States, the Convention will not provide an independent
legal basis for extradition, which will continue to be based on
U.S. domestic law and applicable bilateral treaties. It will,
however, effectively expand the scope of offenses covered under
certain existing bilateral extradition treaties (those that
specifically list the offenses for which extradition may be
granted).
Article 18 of the Convention obligates parties to afford
each other the widest measure of mutual legal assistance in
investigations, prosecutions, and judicial proceedings in
relation to the offenses covered by the Convention. Existing
international agreements on mutual legal assistance between
parties will not be affected by the Convention, as Article
18(7) provides that where such an agreement exists, the parties
will apply that agreement. Where there is no such agreement in
place between parties, however, the parties will make and
receive requests for mutual assistance in transnational
organized crime cases under the provisions of Article 18,
paragraphs 9 through 29. The procedures in these paragraphs are
similar to those contained in U.S. bilateral mutual legal
assistance treaties, but contain broader grounds for refusal of
such assistance.
The Committee notes that Articles 16 and 18 of the
Convention on extradition and mutual legal assistance, as well
as any provisions of the Trafficking and Smuggling Protocols
implemented through these articles, are intended to operate in
the same way as similar provisions contained in bilateral
extradition and mutual legal assistance treaties. As with such
provisions in bilateral treaties, these provisions are self-
executing. They will be implemented by the United States in
conjunction with applicable federal statutes. Additionally, the
Executive Branch has indicated that they are not intended to
create any private rights of action. The Committee notes that
the lack of a private right of action does not affect the
ability of persons whose extradition is sought to raise any
available defenses in the context of the extradition
proceeding.
The Trafficking Protocol provides, for the first time, a
definition of ``trafficking in persons'' in an international
treaty, and requires all parties to criminalize such conduct
and to take certain measures to prevent and combat it. The
Protocol also focuses on victim protection by requiring that
victims are offered the possibility of obtaining compensation,
and that parties facilitate and accept the return of their
nationals and permanent residents who are trafficking victims.
In addition, the Protocol calls on parties, in appropriate
cases, to make available to trafficking victims certain
protections and assistance, including protection of their
privacy and physical safety, as well as provisions for their
physical, psychological, and social recovery.
The Smuggling Protocol requires parties to criminalize: the
smuggling of migrants; document fraud when committed for the
purpose of enabling the smuggling of migrants; and, enabling a
person to reside illegally in a State by means of document
fraud or other illegal means; as well as participation as an
accomplice in, aiding and abetting in, and attempts to commit
such offenses. It also contains provisions designed to address
the smuggling of migrants by sea, by requiring parties to
cooperate to the fullest extent possible to prevent and
suppress migrant smuggling by sea in accordance with
international law and by establishing procedures for
interdicting at sea vessels that are engaged in such smuggling.
These procedures are based on long-standing international law
principles of flag-state jurisdiction on the high seas,
universal jurisdiction over ships without nationality, and the
rights of approach and visit. The Protocol contains several
provisions on cooperation and prevention, including a
requirement that parties, consistent with their domestic law,
exchange information for the purpose of achieving the
Protocol's objectives, such as known or suspected smuggling
routes. Similar to the Trafficking Protocol, the Smuggling
Protocol also obligates parties to facilitate and accept the
return of smuggled migrants who are their nationals or
permanent residents at the time of return.
Both the Trafficking Protocol and the Smuggling Protocol
require parties to those instruments to apply all of the
benefits and obligations of the Convention to the offenses
established in the protocols, including those related to
extradition, mutual legal assistance, and confiscation of the
proceeds and instrumentalities of crime.
IV. Implementing Legislation
No implementing legislation is required for the Convention,
Trafficking Protocol, or Smuggling Protocol. An existing body
of federal and state laws will suffice to implement the
obligations of the Convention and Protocols, although a few
narrow reservations are needed, as explained below in section
VI.
V. Committee Action
The Convention, and the Trafficking and Smuggling
Protocols, were transmitted to the Senate for advice and
consent to their ratification on February 23, 2004 (see Treaty
Doc. 108-16). The Committee on Foreign Relations held a public
hearing on these instruments on June 17, 2004 (S. Hrg. 108-
721), at which it heard testimony from representatives of the
Departments of State and Justice. On July 26, 2005, the
Committee considered the Convention and Protocols and ordered
them favorably reported by a voice vote, with the
recommendation that the Senate give its advice and consent to
ratification of the Convention and Protocols, subject to
reservations, understandings, and declarations contained in the
resolution of advice and consent to ratification.
VI. Committee Recommendations and Comments
The Committee on Foreign Relations believes that the
Convention, Trafficking Protocol and Smuggling Protocol are in
the interest of the United States and urges the Senate to act
promptly to give advice and consent to ratification, subject to
the reservations, understandings, and declarations contained in
the resolution of advice and consent.
The Committee has included a number of reservations,
understandings, and declarations in the resolution of advice
and consent. Section two of the resolution contains three
reservations and one declaration relative to the Convention.
The first reservation relates to the federal system in the
United States. Although U.S. federal law prohibits the conduct
proscribed by the Convention, federal criminal law generally
covers conduct involving interstate or foreign commerce or
another important federal interest, while offenses of a purely
local character generally fall within the jurisdiction of the
states. Not all U.S. states have criminalized all of the
conduct proscribed by the Convention (for example, a few states
have extremely limited conspiracy laws). The Executive Branch
therefore has recommended that the United States reserve
against these obligations in these narrow circumstances, and
the Committee agrees with this recommendation.
The second reservation relates to the scope of the
Convention. Article 15(1)(b) of the Convention requires each
party to establish jurisdiction in respect of the listed
offenses when committed in its territory or on board a vessel
flying its flag or an aircraft registered under its laws. U.S.
law does not expressly extend U.S. jurisdiction over these
particular crimes when committed on board U.S. vessels and
aircraft outside of U.S. territory, although in certain cases
U.S. jurisdiction may exist on other jurisdictional bases.
Because the United States cannot ensure its ability to exercise
jurisdiction in all such cases, the Committee concurs with an
Executive Branch recommendation that the United States enter a
reservation limiting the obligation of the United States
consistent with the reach of U.S. law.
The third reservation addresses dispute settlement. Article
35(2) of the Convention provides that disputes between parties
regarding the interpretation or application of the Convention
that are not settled through negotiation within a reasonable
period may be referred by a party to arbitration or to the
International Court of Justice if the parties are unable to
agree on the organization of the arbitration. At the
recommendation of the Executive Branch, the Committee has
included a reservation exercising the right of the United
States under article 35(3) of the Convention to opt out of this
dispute settlement mechanism.
The declaration relative to the Convention relates to U.S.
implementation of the Convention under existing U.S. law. The
Executive Branch has recommended that the United States include
an understanding to clarify that the United States intends to
comply with the Convention based on existing law. The Committee
has included such a statement in the resolution, formulated as
a declaration in accordance with recent Committee practice.
Section three contains three reservations, one
understanding, and one declaration relative to the Trafficking
Protocol. At the recommendation of the Executive Branch, the
Committee has included three reservations that mirror the
reservations to the Convention, relating to offenses committed
on board U.S. vessels and aircraft, the U.S. federal system,
and dispute settlement. As with the Convention, the Executive
Branch also recommended an understanding clarifying that the
U.S. intends to comply with the Protocol based on existing U.S.
law. Consistent with its approach to this issue in section two,
the Committee has included a declaration on this issue. The
understanding relative to the Trafficking Protocol, also
included at the recommendation of the Executive Branch,
contains the understanding of the United States regarding how
it will implement the obligation to establish the offenses
listed in the Trafficking Protocol as money laundering
predicate offenses under U.S. law.
Section four contains two reservations and one
understanding relative to the Smuggling Protocol. The first
reservation, included at the recommendation of the Executive
Branch, reserves in part against the obligation contained in
Article 6(2)(a) of the Protocol to criminalize attempted
possession of fraudulent travel or identity documents, as U.S.
law does not criminalize this conduct in all cases. The second
reservation is similar to those contained in sections two and
three of the resolution relative to the Convention and the
Trafficking Protocol, and exercises the right of the United
States under article 20(3) of the Smuggling Protocol to opt out
of the dispute settlement mechanism established in article
20(2) of the Protocol. The understanding relative to the
Smuggling Protocol mirrors that included in section three of
the resolution in relation to the Trafficking Protocol, and
contains the U.S. understanding of how it will implement the
obligation to establish the offenses listed in the Smuggling
Protocol as money laundering predicate offenses under U.S. law.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATIONS,
UNDERSTANDINGS, AND DECLARATIONS
The Senate advises and consents to the ratification of the
United Nations Convention Against Transnational Organized Crime
(hereinafter in this resolution referred to as the
``Convention'') and two supplementary protocols: the Protocol
to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (hereinafter in this resolution
referred to as the ``Trafficking Protocol'') and the Protocol
Against Smuggling of Migrants by Land, Sea and Air (hereinafter
in this resolution referred to as the ``Smuggling Protocol''),
adopted by the United Nations General Assembly on November 15,
2000 and signed by the United States on December 13, 2000 at
Palermo, Italy (T. Doc. 108-16), subject to the reservations,
understandings, and declarations of sections 2, 3 and 4.
SECTION 2. RESERVATIONS AND DECLARATION RELATIVE TO THE CONVENTION
(a) Reservations.--The advice and consent of the Senate
under section 1 is subject to the following reservations
relative to the Convention, which shall be included in the
United States instrument of ratification:
(1) The United States of America reserves the right
to assume obligations under the Convention in a manner
consistent with its fundamental principles of
federalism, pursuant to which both federal and state
criminal laws must be considered in relation to the
conduct addressed in the Convention. U.S. federal
criminal law, which regulates conduct based on its
effect on interstate or foreign commerce, or another
federal interest, serves as the principal legal regime
within the United States for combating organized crime,
and is broadly effective for this purpose. Federal
criminal law does not apply in the rare case where such
criminal conduct does not so involve interstate or
foreign commerce, or another federal interest. There
are a small number of conceivable situations involving
such rare offenses of a purely local character where
U.S. federal and state criminal law may not be entirely
adequate to satisfy an obligation under the Convention.
The United States of America therefore reserves to the
obligations set forth in the Convention to the extent
they address conduct which would fall within this
narrow category of highly localized activity. This
reservation does not affect in any respect the ability
of the United States to provide international
cooperation to other Parties as contemplated in the
Convention.
(2) The United States of America reserves the right
not to apply in part the obligation set forth in
Article 15, paragraph 1(b) with respect to the offenses
established in the Convention. The United States does
not provide for plenary jurisdiction over offenses that
are committed on board ships flying its flag or
aircraft registered under its laws. However, in a
number of circumstances, U.S. law provides for
jurisdiction over such offenses committed on board
U.S.-flagged ships or aircraft registered under U.S.
law. Accordingly, the United States will implement
paragraph 1(b) to the extent provided for under its
federal law.
(3) In accordance with Article 35, paragraph 3, the
United States of America declares that it does not
consider itself bound by the obligation set forth in
Article 35, paragraph 2.
(b) Declaration.--The advice and consent of the Senate
under section 1 is subject to the following declaration
relative to the Convention:
The United States of America declares that, in view
of its federalism reservation, current United States
law, including the laws of the States of the United
States, fulfills the obligations of the Convention for
the United States. Accordingly, the United States of
America does not intend to enact new legislation to
fulfill its obligations under the Convention.
SECTION 3. RESERVATIONS, UNDERSTANDING, AND DECLARATION RELATIVE TO THE
TRAFFICKING PROTOCOL
(a) Reservations.--The advice and consent of the Senate
under section 1 is subject to the following reservations
relative to the Trafficking Protocol, which shall be included
in the United States instrument of ratification:
(1) The United States of America reserves the right
not to apply in part the obligation set forth in
Article 15, paragraph 1(b), of the United Nations
Convention Against Transnational Organized Crime with
respect to the offenses established in the Trafficking
Protocol. The United States does not provide for
plenary jurisdiction over offenses that are committed
on board ships flying its flag or aircraft registered
under its laws. However, in a number of circumstances,
U.S. law provides for jurisdiction over such offenses
committed on board U.S.-flagged ships or aircraft
registered under U.S. law. Accordingly, the United
States will implement paragraph 1(b) of the Convention
to the extent provided for under its federal law.
(2) The United States of America reserves the right
to assume obligations under this Protocol in a manner
consistent with its fundamental principles of
federalism, pursuant to which both federal and state
criminal laws must be considered in relation to conduct
addressed in the Protocol. U.S. federal criminal law,
which regulates conduct based on its effect on
interstate or foreign commerce, or another federal
interest, such as the Thirteenth Amendment's
prohibition of ``slavery'' and ``involuntary
servitude,'' serves as the principal legal regime
within the United States for combating the conduct
addressed in this Protocol, and is broadly effective
for this purpose. Federal criminal law does not apply
in the rare case where such criminal conduct does not
so involve interstate or foreign commerce, or otherwise
implicate another federal interest, such as the
Thirteenth Amendment. There are a small number of
conceivable situations involving such rare offenses of
a purely local character where U.S. federal and state
criminal law may not be entirely adequate to satisfy an
obligation under the Protocol. The United States of
America therefore reserves to the obligations set forth
in the Protocol to the extent they address conduct
which would fall within this narrow category of highly
localized activity. This reservation does not affect in
any respect the ability of the United States to provide
international cooperation to other Parties as
contemplated in the Protocol.
(3) In accordance with Article 15, paragraph 3, the
United States of America declares that it does not
consider itself bound by the obligation set forth in
Article 15, paragraph 2.
(b) Understanding.--The advice and consent of the Senate
under section 1 is subject to the following understanding
relative to the Trafficking Protocol, which shall be included
in the United States instrument of ratification:
The United States of America understands the
obligation to establish the offenses in the Protocol as
money laundering predicate offenses, in light of
Article 6, paragraph 2(b) of the United Nations
Convention Against Transnational Organized Crime, as
requiring States Parties whose money laundering
legislation sets forth a list of specific predicate
offenses to include in such list a comprehensive range
of offenses associated with trafficking in persons.
(c) Declaration.--The advice and consent of the Senate
under section 1 is subject to the following declaration
relative to the Trafficking Protocol:
The United States of America declares that, in view
of its reservations, current United States law,
including the laws of the States of the United States,
fulfills the obligations of the Protocol for the United
States. Accordingly, the United States of America does
not intend to enact new legislation to fulfill its
obligations under the Protocol.
SECTION 4. RESERVATIONS AND UNDERSTANDING RELATIVE TO THE SMUGGLING
PROTOCOL
(a) Reservations.--The advice and consent of the Senate
under section 1 is subject to the following reservations
relative to the Smuggling Protocol, which shall be included in
the United States instrument of ratification:
(1) The United States of America criminalizes most
but not all forms of attempts to commit the offenses
established in accordance with Article 6, paragraph 1
of this Protocol. With respect to the obligation under
Article 6, Paragraph 2(a), the United States of America
reserves the right to criminalize attempts to commit
the conduct described in Article 6, paragraph 1(b), to
the extent that under its laws such conduct relates to
false or fraudulent passports and other specified
identity documents, constitutes fraud or the making of
a false statement, or constitutes attempted use of a
false or fraudulent visa.
(2) In accordance with Article 20, paragraph 3, the
United States of America declares that it does not
consider itself bound by the obligation set forth in
Article 20, paragraph 2.
(b) Understanding.--The advice and consent of the Senate
under section 1 is subject to the following understanding
relative to the Smuggling Protocol, which shall be included in
the United States instrument of ratification:
The United States of America understands the
obligation to establish the offenses in the Protocol as
money laundering predicate offenses, in light of
Article 6, paragraph 2(b) of the United Nations
Convention Against Transnational Organized Crime, as
requiring States Parties whose money laundering
legislation sets forth a list of specific predicate
offenses to include in such list a comprehensive range
of offenses associated with smuggling of migrants.