[Senate Treaty Document 108-16]
[From the U.S. Government Publishing Office]



108th Congress                                              Treaty Doc.
                                 SENATE                     
 2d Session                                                      108-16
_______________________________________________________________________

                                     

 
         U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (THE 
   ``CONVENTION''), AS WELL AS 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, WHICH WERE ADOPTED BY THE UNITED 
   NATIONS GENERAL ASSEMBLY ON NOVEMBER 15, 2000. THE CONVENTION AND 
  PROTOCOLS WERE SIGNED BY THE UNITED STATES ON DECEMBER 13, 2000, AT 
                             PALERMO, ITALY




    February 23, 2004.--The Convention was read the first time, and 
  together with the accompanying papers, referred to the Committee on 
 Foreign Relations and ordered to be printed for the use of the Senate
                         LETTER OF TRANSMITTAL

                              ----------                              

                                The White House, February 23, 2004.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the United Nations 
Convention Against Transnational Organized Crime (the 
``Convention''), as well as 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, which were 
adopted by the United Nations General Assembly on November 15, 
2000. The Convention and Protocols were signed by the United 
States on December 13, 2000, at Palermo, Italy.
    Accompanying the Convention and Protocols are 
interpretative notes for the official records (or ``travaux 
preparatoires'') that were prepared by the Secretariat of the 
Ad Hoc Committee that conducted the negotiations, based on 
discussions that took place throughout the process of 
negotiations. These notes are being submitted to the Senate for 
information purposes. I also transmit the report of the 
Department of State with respect to the Convention and 
Protocols.
    The Convention and Protocols are the first multilateral 
treaties to address the phenomenon of transnational organized 
crime. Their provisions are explained in the accompanying 
report of the Department of State. The report also sets forth 
proposed reservations and understandings that would be 
deposited by the United States with its instruments of 
ratification. With these reservations and understandings, the 
Convention and Protocols will not require implementing 
legislation for the United States.
    The Convention and Protocols will be effective tools to 
assist in the global effort to combat transnational organized 
crime in its many forms, such as trafficking and smuggling of 
persons. They provide for a broader range of cooperation, 
including extradition, mutual legal assistance, and measures 
regarding property, in relation to serious crimes committed by 
an organized group that has a transnational element.
    The Convention also imposes on the States Parties an 
obligation to criminalize, if they have not already done so, 
certain types of conduct characteristic of transnational 
organized crime. For the Convention, these are: participation 
in an organized criminal group (i.e., conspiracy), money 
laundering, bribery of domestic public officials, and 
obstruction of justice. The Protocols require parties to 
criminalize trafficking in persons and smuggling of migrants. 
These provisions will serve to create a global criminal law 
standard for these offenses, several of which (e.g., 
trafficking in persons) currently are not criminal in many 
countries. The Trafficking Protocol also includes important 
provisions regarding assistance to and protection of victims of 
trafficking.
    I recommend that the Senate give early and favorable 
consideration to the Convention and Protocols, and that it give 
its advice and consent to ratification, subject to the 
reservations and understandings described in the accompanying 
report of the Department of State.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                      Washington, January 22, 2004.
The President,
The White House.
    The President: I have the honor to submit to you, with a 
view to its transmittal to the Senate for advice and consent to 
ratification, the United Nations Convention Against 
Transnational Organized Crime (``the Convention''), as well as 
two supplementary protocols, the Protocol to Prevent, Suppress, 
and Punish Trafficking in Persons, Especially Women and 
Children (``Trafficking Protocol''), and the Protocol Against 
Smuggling of Migrants by Land, Sea and Air (``Migrant Smuggling 
Protocol''), which were adopted by the United Nations General 
Assembly on November 15, 2000, and signed by the United States 
on December 13, 2000 at Palermo. I recommend that the 
Convention and Protocols be transmitted to the Senate for its 
advice and consent to ratification.
    Accompanying the Convention and Protocols are 
interpretative notes for the official records of the 
negotiations (or ``travaux preparatoires''). They were prepared 
by the Secretariat of the Ad Hoc Committee that conducted the 
negotiations, based on discussions that took place throughout 
the process of negotiations. These notes would be submitted to 
the Senate for its information.
    As of December 29, 2003, 147 countries have signed the 
Convention; 117 countries the Trafficking Protocol; and 112 the 
Migrant Smuggling Protocol. The Convention, which has been 
ratified by 59 countries, entered into force among those 
countries on September 29, 2003. The Trafficking Protocol, 
which has been ratified by 45 countries, entered into force on 
December 25, 2003, and the Migrant Smuggling Protocol, which 
has been ratified by 40 countries, will enter into force on 
January 28, 2004.
    The Convention and these two Protocols are the first 
multilateral law enforcement instruments designed to combat the 
phenomenon of transnational organized crime. They establish a 
treaty-based regime of obligations to provide mutual assistance 
which is analogous to those contained in other law enforcement 
treaties to which the United States is a party. They thus would 
enhance the United States' ability to render and receive 
assistance on a global basis in the common struggle to prevent, 
investigate and prosecute transnational organized crime.
    The Convention and Protocols will not require implementing 
legislation for the United States. As further discussed below, 
subject to the proposed reservations and understandings, the 
existing body of federal and state law and regulations will be 
adequate to satisfy the requirements for legislation. The 
following is an article-by-article description of the forty-one 
articles of the Convention, followed by similar descriptions 
for each Protocol.


    united nations convention against transnational organized crime


    Article 1 (``Statement of Purpose'') states that the 
Convention is intended to promote cooperation to prevent and 
combat transnational organized crime more effectively. Article 
2 (``Use of terms'') defines ten key concepts utilized in the 
Convention. In particular, the defined terms ``organized 
criminal group'', ``serious crime'', and ``structured group'' 
are crucial to understanding the scope of the Convention.
    An ``organized criminal group'' means a ``structured 
group'' of three or more persons, existing for a period of time 
and acting in concert with the aim of committing one or more 
serious crimes or offenses established in accordance with the 
Convention, in order to obtain, directly or indirectly,a 
financial or other material benefit. The requirement that the group's 
purpose be financial or other material gain encompasses, for example, 
groups which trade in child pornography materials. A terrorist group 
would fall within the scope of this definition if it acts in part for a 
financial or other material benefit. A ``structured group'' is a group 
that is not randomly formed for the immediate commission of an offense; 
it need not have formally defined roles for its members, continuity of 
membership, or a developed structure. This definition is flexible 
enough to accommodate the ever-evolving forms that organized criminal 
groups take. ``Serious crime'' is any offense punishable by at least 
four years' imprisonment.
    Article 3 (``Scope of Application'') elaborates the ambit 
of the Convention. In general, the Convention applies to the 
prevention, investigation, and prosecution of the offenses 
established in accordance with Articles 5, 6, 8, and 23 
(participation in an organized criminal group, money 
laundering, corruption of domestic public officials, and 
obstruction of justice) and to serious crime (as defined 
above), so long as the offense is transnational in nature and 
involves an organized criminal group. Transnationality is a 
broad concept, meaning an offense which is committed in more 
than one State, committed only in one State but substantially 
prepared, planned, directed or controlled in another, committed 
in one State with the involvement of an organized criminal 
group that engages in criminal activities in multiple States, 
or committed in one State but substantially affecting another. 
As discussed further below, this general scope for the 
Convention varies with respect to several different types of 
obligations it contains.
    Article 4 (``Protection of Sovereignty'') sets forth two 
standard provisions in United Nations instruments stating that 
States Parties respect each other's sovereign equality and 
territorial integrity and providing that the Convention does 
not authorize a Party to undertake in another State's territory 
the exercise of jurisdiction and performance of functions 
reserved for the authorities of that State by its domestic law.
    With respect to the articles of the Convention which 
require the establishment of criminal offenses (5, 6, 8, and 
23), it should be noted preliminarily that these obligations 
apply at the national level, as is customary in international 
agreements. However, existing U.S. federal criminal law has 
limited scope, generally covering conduct involving interstate 
or foreign commerce or another important federal interest. 
Under our fundamental principles of federalism, offenses of a 
local character are generally within the domain of the states, 
but not all forms of conduct proscribed by the Convention are 
criminalized by all U.S. states (for example, a few states have 
extremely limited conspiracy laws). Thus, in the absence of a 
reservation, there would be a narrow category of such conduct 
that the United States would be obliged under the Convention to 
criminalize, although under our federal system such obligations 
would generally be met by state governments rather than the 
federal government. In order to avoid such obligations, I 
recommend that the following reservation be included in the 
U.S. instrument of ratification:

          The Government of the United States of America 
        reserves the right to assume obligations under this 
        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. Federalcriminal 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 
Government of 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.

Furthermore, in connection with this reservation, I recommend 
that the Senate include the following understanding in its 
resolution of advice and consent:

          The United States understands that, in view of its 
        federalism reservation, the Convention does not warrant 
        the enactment of any legislative or other measures; 
        instead, the United States will rely on existing 
        federal law and applicable state law to meet its 
        obligations under the Convention.

    Article 5 (``Criminalization of participation in an 
organized criminal group'') is the first of four articles that 
require States Parties to adopt criminal legislation regarding 
specified offenses. The definition of participation in an 
organized criminal group set out in this Article may be 
satisfied either by a conspiracy law of the type embodied in 
U.S. law or by a criminal association law of the kind utilized 
in many other countries of the world. For U.S. law, the key 
components of this Article are: agreeing with one or more 
persons to commit a serious crime for financial or other 
material benefit, and an act undertaken by one of the 
participants in furtherance of the agreement or involving an 
organized criminal group. It is also recommended that the 
United States take a partial reservation to this obligation, 
noted above, to enable its implementation consistent with the 
existing distribution of criminal jurisdiction under our 
federal system.
    In addition, the United States, as a State Party that 
requires in many instances an act in furtherance of the 
conspiracy as a prerequisite to criminal liability, is obliged 
under Article 5, paragraph 3, to notify the Secretary-General 
of the United Nations of this requirement. Accordingly, upon 
U.S. ratification of the Convention, the Department of State 
will, by diplomatic note, provide the depositary with the 
following notification:

          Pursuant to Article 5, paragraph 3, the Government of 
        the United States of America informs the Secretary-
        General of the United Nations that, in order to 
        establish criminal liability under United States law 
        with respect to the offense described in Article 5, 
        paragraph 1(a)(i), the commission of an overt act in 
        furtherance of the agreement is generally required.

    A second criminalization obligation follows in Article 6 
(``Criminalization of the laundering of proceeds of crime''). 
This provision mandates the adoption of criminal law 
provisions, in accordance with the fundamental principles of a 
Party's domestic law, punishing the conversion, transfer, 
concealment or disguise of property with knowledge that it is 
the proceeds of crime. Subject to the basic concepts of its 
legal system, a state also must criminalize the acquisition, 
possession, or use of property with knowledge that it is the 
proceeds of a crime, along with participation in, association 
with, conspiracy to commit, or attempts to aid, abet, 
facilitate or counsel the commission of covered offenses.
    The predicate offenses for money laundering must include, 
in the case of a country such as the United Stateswhose laws 
enumerate them by list, a comprehensive range of offenses associated 
with organized criminal groups. Among the range of offenses must be 
some relating to the laundering of the proceeds of foreign crimes. 
States Parties also must furnish the UN Secretary-General with copies 
of its laws giving effect to this Article and of any subsequent changes 
to such laws. Article 6 is of crucial importance to global anti-money-
laundering efforts because it for the first time imposes an 
international obligation on States Parties to expand the reach of their 
laundering laws to predicate offenses associated with organized 
criminal activities other than those related to narcotics trafficking 
that are addressed in the 1988 United Nations Convention Against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances. As noted 
above, it is recommended that the United States take a partial 
reservation to this obligation to enable its implementation consistent 
with the existing distribution of criminal jurisdiction under our 
federal system.
    Article 7 (``Measures to combat money-laundering'') 
mandates a series of anti-money-laundering measures in the 
realm of financial regulation rather than criminal law. As part 
of a comprehensive regime, States Parties must impose customer 
identification (``know your customer'') and suspicious 
transaction reporting requirements, and must ensure that 
specialized financial intelligence authorities exist to 
exchange information with foreign counterparts. Article 7 
further calls upon States Parties, in establishing their 
domestic regulatory regimes, to be guided by existing 
international standards, which the negotiating record makes 
clear would include the principles elaborated by the Financial 
Action Task Force and its regional counterparts.
    Article 8 (``Criminalization of corruption'') requires a 
State Party to have in place laws criminalizing the giving or 
receipt of bribes by its domestic public officials, along with 
participation as an accomplice in such offices, and to consider 
criminalizing such conduct when it involves a foreign public 
official or an international civil servant. The former 
provision is mandatory because corruption of domestic public 
officials was regarded as a core activity of organized criminal 
groups. The latter, however, was treated as a recommendation in 
deference to the separate United Nations Convention Against 
Corruption, which focuses on corruption generally rather than 
solely as it relates to organized crime. As noted above, it is 
recommended that the United States take a partial reservation 
to this obligation to enable its implementation consistent with 
the current distribution of criminal jurisdiction under our 
federal system.
    Measures against corruption other than criminalization are 
the subject of Article 9 (``Measures against corruption''). 
This provision obliges a State Party to adopt, to the extent 
appropriate and consistent with its legal system, legislative, 
administrative or other effective measures to promote integrity 
and to deter, detect, and punish corruption of domestic public 
officials. Among these are measures to enable domestic anti-
corruption authorities to act independently.
    Article 10 (``Liability of legal persons'') compels States 
Parties to fill what historically has been a loophole in the 
ability of many states to combat organized crime--their 
inability to hold not only natural persons but also legal ones 
liable for illegal conduct. This provision requires the 
creation of criminal, civil or administrative liability, and 
accompanying sanctions, for corporations that participate in 
serious crimes involving an organized criminal group or in the 
offenses covered by the Convention (i.e., serious crimes 
generally as well as the offenses criminalized). Such corporate 
liability is without prejudice to the criminal liability of the 
natural persons who committed the offenses.
    Article 11 (``Prosecution, adjudication and sanctions'') 
identifies a series of important considerations for States 
Parties in pursuing prosecutions relating to offenses within 
the scope of the Convention. They range from ensuring that 
criminal law sanctions are sufficiently serious to minimizing 
defendants' risk of flight. Article 11(6) makes clear, however, 
that nothing in the Convention shall affect the principle that 
the description of the offenses established in the Convention 
and of the applicable legal defenses or other legal principles 
controlling the lawfulness of conduct are reserved to the 
domestic law of a State Party.
    Confiscation, seizure, and disposal of proceeds of crime, 
along with related international cooperation, are the subject 
of Articles 12-14. Article 12 (``Confiscation and seizure'') 
requires a State Party to adopt measures, to the greatest 
extent possible within its legal system, to enable confiscation 
of proceeds of, property of equivalent value, or property used 
in or destined for use in, offenses covered by the Convention 
(i.e., serious crimes generally as well as the offense 
criminalized by the Convention). Each State Party's courts or 
other competent authorities shall be empowered to order that 
bank and other records be made available to enable confiscation 
proceedings to go forward, and bank secrecy may not be invoked 
in this context.
    Article 13 (``International cooperation for purposes of 
confiscation'') goes on to elaborate procedures for 
international cooperation in confiscation matters. A State 
Party which receives a request must take measures to identify, 
trace, and freeze or seize proceeds of crime for purposes of 
eventual confiscation. Such requests are to follow the general 
mutual assistance procedures specified in Article 18 of the 
Convention, with several additional specifications. Decisions 
on requests for cooperation in respect of confiscation must be 
made in accordance with the law of the Requested State, and any 
treaty or arrangement it has with the Requesting State. States 
Parties are required to furnish to the UN Secretary-General 
copies of their laws and regulations giving effect to such 
cooperation.
    Article 14 (``Disposal of confiscated proceeds of crime or 
property'') addresses international cooperation insofar as it 
relates to disposal of assets. It provides that States Parties 
must consider returning confiscated proceeds to a requesting 
State for use as compensation to crime victims or restoration 
to legitimate owners. Additionally, a State Party may consider 
concluding an agreement or arrangement whereby proceeds may be 
contributed to the United Nations to fund technical assistance 
activities under the Convention or shared with other States 
Parties that have assisted in their confiscation.
    Article 15 (``Jurisdiction'') lays out the jurisdictional 
principles governing the Convention's four criminalization 
provisions generally. A State Party must establish jurisdiction 
in respect of offenses established under the Convention when 
committed in its territory or on board a vessel flying its flag 
or an aircraft registered under its laws. The latter 
jurisdiction (i.e., on board a vessel or aircraft) is not 
expressly extended under current U.S. law to these four 
offenses--participation in an organized criminal group, money 
laundering, corruption of domestic public officials, and 
obstruction of justice--although certain cases can be pursued 
on other jurisdictional bases. For example, in some situations, 
U.S. federal jurisdiction may extend over such offenses 
occurring outside the United States, either through an express 
statutory grant of authority (e.g., Title 18, United States 
Code, Section 1512(g), or through application of principles of 
statutory interpretation. However, since under current U.S. law 
we cannot always ensure our ability to exercise jurisdiction 
over these offenses if they take place outside ourterritory on 
such vessels or aircraft, a reservation will be required for those 
cases in which such jurisdiction is not available. Accordingly, I 
recommend that the following reservation be included in the U.S. 
instrument of ratification:

          The Government of 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 shall implement 
        paragraph 1(b) to the extent provided for under its 
        federal law.

    A State Party is permitted, but not required, to establish 
jurisdiction over these four offenses when committed against 
one of its nationals, or by one of its nationals or residents. 
(Nationality and passive personality jurisdiction is limited 
under United States' laws, but common in European countries and 
other civil law jurisdictions.) Permissive jurisdiction is 
likewise envisioned over the offenses of participation in an 
organized criminal group or money laundering, as defined in the 
Convention, where they are committed outside a State's 
territory with a view to the commission of certain offenses 
within its territory.
    Article 15 further requires a State to establish its 
jurisdiction when it refuses to extradite an offender for 
offenses covered by the Convention solely because the person is 
one of its nationals. The United States extradites its 
nationals, so this provision will impose no new requirements on 
our legal system. It will, however, help ensure that countries 
that do not extradite their nationals take steps to ensure that 
organized crime participants face justice there even for crimes 
committed abroad.
    Article 16 (``Extradition'') elaborates a regime for 
extradition of persons for offenses criminalized under the 
Convention, and for serious crimes generally which involve an 
organized criminal group, so long as the offense is criminal 
under the laws of the requesting and the requested State Party. 
For the United States, the principal legal effect of this 
Article would be to deem the offenses covered by the Convention 
to be extraditable offenses under U.S. bilateral extradition 
treaties. The result would be to expand the scope of older 
treaties which list extraditable offenses and were concluded at 
a time when offenses such as money laundering did not yet 
exist.
    Thus, for the United States, the Convention does not 
provide a substitute international legal basis for extradition, 
which will continue to be governed by U.S. domestic law and 
applicable bilateral extradition treaties, including their 
grounds for refusal. As such a state the United States is 
obliged by Article 16(5) to so notify the UN Secretary-General. 
Accordingly, upon ratification of the Convention, the 
Department of State will, by diplomatic note, provide the 
depositary with the following notification:

          Pursuant to Article 16, paragraph 5, the United 
        States of America informs the Secretary-General of the 
        United Nations that it will not apply Article 16, 
        paragraph 4.

For numerous other States Parties that do not make extradition 
conditional on the existence of a separate extradition treaty, 
however, the Convention can, with regard to the offenses it 
covers, afford that international legal basis inter se.
    Article 16(10) requires a State Party that does not 
extradite its nationals, if requested by another State Party 
seeking extradition of such a national for offensescovered by 
the Convention, to submit the case for purposes of domestic prosecution 
and to conduct the proceedings in the same manner as it would for 
purely domestic offenses of similar gravity. (This provision is the 
substantive obligation to which the above-mentioned jurisdictional 
provision in Article 15 relates.) A State Party may satisfy this 
obligation instead by temporarily surrendering its national for trial 
in the state that sought extradition, on the condition that he be 
returned to serve the resulting sentence.
    Article 16 also contains non-mandatory provisions designed 
to facilitate extradition, including, for example, a mechanism 
for provisional arrest in urgent circumstances, as well as an 
exemption from the obligation to extradite in a case where the 
requested State Party has substantial grounds for believing 
that the request has been made for the purpose of prosecuting 
or punishing a person on account of sex, race, religion, 
nationality, ethnic origin or political opinions, or that 
compliance with the request would cause prejudice to that 
person's position for any of these reasons.
    Under Article 17 (``Transfer of sentenced persons''), 
States Parties may consider entering into bilateral or 
multilateral agreements or arrangements to enable the transfer 
to their territory of incarcerated persons who have been 
convicted abroad for offenses covered by the Convention, in 
order that they may complete their prison sentences in their 
countries of nationality.
    Pursuant to Article 18 (``Mutual legal assistance''), 
States Parties are obligated to afford each other the widest 
measure of mutual legal assistance in investigations, 
prosecutions and judicial proceedings in relation to offenses 
within the scope of the Convention, provided that the state 
seeking assistance demonstrates that it has reasonable grounds 
to suspect that the offense is transnational in nature and 
involves an organized criminal group. Pursuant to paragraph 6 
of Article 18, where other international agreements governing 
mutual legal assistance exist between States Parties, they 
shall be utilized, and the Convention does not affect their 
provisions. This is so for the United States in many instances, 
due to our extensive network of bilateral and regional mutual 
legal assistance treaties (MLATs). It is anticipated, however, 
that the United States will make and receive requests for 
mutual assistance under this Convention in a number of 
transnational organized crime cases involving states with which 
we lack an applicable bilateral or regional agreement.
    Consequently, Article 18 provides a framework for mutual 
legal assistance of comparable nature to U.S. MLATs. It 
identifies the range of purposes for which mutual assistance 
may be requested, the requirements for the content of requests 
for assistance, and states that, even absent a request, one 
State Party also may spontaneously transmit to another 
information relating to criminal matters that it believes could 
assist inquiries or proceedings there. Detained persons may be 
transferred for purposes of providing evidence in another State 
Party as well.
    One departure from United States MLATs, set forth in 
paragraph 9 of Article 18, is that States Parties may--although 
they are encouraged not to--decline to render mutual legal 
assistance on the ground of an absence of dual criminality. 
U.S. MLATs typically require dual criminality only for certain 
intrusive types of assistance, e.g., search and seizure 
requests by a foreign country. It is unclear to what extent 
States Parties to the Convention may insist upon dual 
criminality and whether this provision will constrain the 
utility of this Article to any significant degree.
    As previously noted, Article 18 establishes certain modern 
procedures for mutual assistance that apply in theabsence of 
another treaty between the Parties concerned. These include a 
requirement to designate central authorities to handle requests. The 
Department of Justice, Criminal Division, Office of International 
Affairs, would serve as the Central Authority for the United States. 
Each State Party is obliged by Article 16(5) to notify the UN 
Secretary-General of its designated Central Authority. Accordingly, 
upon ratification of the Convention, the Department of State will, by 
diplomatic note, provide the depositary with the following 
notification:

          Pursuant to Article 18, paragraph 13, the United 
        States of America informs the Secretary-General of the 
        United Nations that the Office of International 
        Affairs, United States Department of Justice, Criminal 
        Division, is designated as its central authority for 
        mutual legal assistance under the Convention.

Under Article 18, paragraph 14, a Party must specify the 
language in which mutual assistance requests to it shall be 
made. Accordingly, upon ratification of the Convention, the 
Department of State will, by diplomatic note, provide the 
depositary with the following notification:

          Pursuant to Article 18, paragraph 14, the United 
        States of America informs the Secretary-General of the 
        United Nations that requests for mutual legal 
        assistance under the Convention should be made in, or 
        accompanied by, a translation into the English 
        language.

    In addition, Article 18 encourages the use of 
videoconferencing as an alternative to taking of evidence in 
person. The Article also incorporates provisions found in a 
number of U.S. bilateral MLATs generally precluding a 
requesting State Party from using information or evidence in 
investigations, prosecutions or judicial proceedings other than 
those identified in the request, unless the requested State 
Party consents. In addition, a requested State Party may be 
obliged to keep confidential the fact and substance of a 
request, except to the extent necessary to execute it, or where 
the information or evidence provided is exculpatory to an 
accused person.
    Article 18 specifies four grounds for refusing mutual legal 
assistance: (a) If the request does not conform to the 
requirements of the Convention; (b) if the requested State 
Party considers that execution is likely to prejudice its 
sovereignty, security, ordre public or other essential 
interests; (c) if domestic law in the requested State Party 
would prohibit the action requested with regard to any similar 
offense under its own jurisdiction; or (d) if granting the 
request would be contrary to the legal system of the requested 
State Party relating to mutual legal assistance. These grounds 
for refusal are broader than those generally included in U.S. 
MLATs, and, in view of the large number of countries that may 
become Party to the Convention, will serve to ensure that our 
mutual assistance practice under the Convention corresponds 
with sovereign prerogatives.
    As is the case for extradition, Article 18, paragraph 22 
provides that assistance may not be refused on the sole ground 
that the offense involves a fiscal matter or on the ground of 
bank secrecy. Moreover, if a request could be refused, or 
postponed on the ground that it interferes with an ongoing 
domestic investigation, prosecution or judicial proceeding, the 
States Parties involved shall consult to consider whether it 
may be granted subject to terms and conditions. If the 
requesting State Party accepts assistance subject to 
conditions, it is bound to comply with them.
    Finally, Article 18 addresses several other aspects of 
mutual assistance that are relevant in the absence of another 
MLAT in force between the States Parties concerned. There is a 
procedure for providing safe conduct guarantees to a person who 
travels to a requesting State Party in order to give evidence. 
Ordinary costs of executing mutualassistance requests are, as a 
rule, to be borne by the requested State Party, but if substantial or 
extraordinary expenses are entailed the requesting and requested States 
Parties shall consult on their allocation. States Parties also may rely 
on the mutual assistance mechanism of the Convention to obtain from 
another State Party government records, documents or information on the 
same terms as they are available to the general public under domestic 
law; if not available to the general public, however, their access to a 
requesting State Party is discretionary.
    In order better to combat organized criminal activities 
which span borders, Article 19 (``Joint investigations'') 
encourages States Parties to reach agreements or arrangements, 
either general or case-specific, to conduct joint 
investigations.
    Article 20 (``Special investigative techniques'') in turn 
contemplates that, if permitted by the basic principles of its 
domestic legal system, law enforcement authorities be given the 
ability to use controlled delivery, electronic surveillance and 
undercover operations. Use of these techniques at the 
international level would be regulated by the states involved 
through general or case-specific agreements or arrangements.
    The possibility of transferring criminal proceedings 
between States Parties is envisioned in Article 21 (``Transfer 
of criminal proceedings''). This Article calls on States 
Parties to consider the possibility of transferring 
proceedings, recognizing that transfer can be considered to be 
efficient in cases where several jurisdictions are involved 
with different aspects of a pattern of transnational organized 
criminal conduct.
    Article 22 (``Establishment of criminal record'') urges 
States Parties to consider adopting measures enabling an 
offender's previous conviction in one State to be taken into 
consideration in another State Party's subsequent criminal 
proceeding relating to transnational organized crime offenses.
    The fourth and final criminalization obligation established 
by the Convention--obstruction of justice in criminal 
proceedings within the scope of the Convention--appears in 
Article 23 (``Criminalization of obstruction of justice''). As 
defined, the offense has two variants: first, the intentional 
use of force, threats or intimidation, or the promise, offering 
or giving of an undue advantage, in order to induce false 
testimony or to interfere in the giving of testimony or the 
production of evidence; and, second, the intentional use of 
force, threats or intimidation to interfere with the exercise 
of official duties by a justice or law enforcement official. As 
noted above, it is recommended that the United States take a 
partial reservation to this obligation to enable its 
implementation consistent with the current distribution of 
criminal jurisdiction under our federal system.
    A related concern that organized crime not undermine 
judicial processes is addressed in Article 24 (``Protection of 
witnesses''). This provision obliges a State Party to take 
appropriate measures within its means to protect witnesses and, 
as appropriate, their relatives and other persons close to 
them, from retaliation or intimidation when they testify in 
organized crime proceedings. Among the measures a State Party 
may, in its discretion, implement are witness protection 
programs and evidence-taking techniques that ensure the safety 
of witnesses, for example, video link from a remote location. 
Under this Article, States Parties also are encouraged to 
consider assisting one another in providing witness protection. 
This Article permits the exercise of discretion in particular 
cases, and therefore can be implemented by the United States 
under current statutes and regulations governing the protection 
of witnesses.
    Article 25 (``Assistance to and protection of victims'') 
elaborates a series of measures to aid those victimized by 
transnational organized crime. States Parties must take 
appropriate measures within their means to assist and protect 
them, particularly in cases of threat of retaliation or 
intimidation; provide them access to compensation and 
restitution; and, subject to domestic law and in a manner not 
prejudicial to the rights of the defense, enable their views to 
be considered during criminal proceedings.
    Pursuant to Article 26 (``Measures to enhance cooperation 
with law enforcement authorities''), a State Party must take 
appropriate measures to encourage participants in organized 
criminal groups to assist law enforcement investigations. In so 
doing, States Parties are to consider reducing criminal 
penalties or granting immunity from prosecution for those who 
cooperate substantially. This Article also envisages that 
States Parties consider arrangements with one another to apply 
these inducements to persons located in one State who can 
assist an investigation into organized criminal activity in 
another.
    The importance of police-to-police cooperation, as distinct 
from formal mutual legal assistance, is highlighted by Article 
27 (``Law enforcement cooperation''). States Parties must 
cooperate, consistent with their respective domestic legal and 
administrative systems, to enhance effective action among their 
law enforcement authorities, inter alia, by sharing information 
on persons, groups, and property involved in organized crime 
offenses. A counterpart provision is Article 28 (``Collection, 
exchange and analysis of information on the nature of organized 
crime''), which recommends that States Parties, together with 
their scientific and academic communities, undertake analytical 
studies of organized crime and share the resulting expertise.
    Training and technical assistance are dealt with in 
Articles 29 (``Training and technical assistance'') and 30 
(``Other measures: implementation of the Convention through 
economic development and technical assistance''). Article 29 
requires States Parties, to the extent necessary, to train 
domestic law enforcement personnel on transnational organized 
crime matters and to work with one another to devise training 
that promotes international cooperation. Article 30 focuses on 
the particular needs of developing countries for technical 
assistance in implementing the provisions of the Convention. 
States Parties are encouraged to make voluntary financial 
contributions for this purpose to a United Nations account 
established, as directed by the UNGA in its resolution 
approving the Convention, under the auspices of the Center for 
International Crime Prevention (CICP) of the UN Office for Drug 
Control and Crime Prevention.
    Article 31 (``Prevention'') recognizes that preventive 
measures are a component of the fight against transnational 
organized crime. It encourages States Parties to develop 
projects and best practices with this goal. Among the measures 
urged are cooperation with private industry and relevant 
professions, and measures to avoid organized crime subverting 
public procurement procedures. Paragraph 6 of this Article 
requires each Party to identify to the Secretary-General the 
governmental authority to which requests for assistance in 
developing preventive measures should be directed. The 
Department of Justice, Office of Justice Programs, National 
Institute of Justice, would serve as the point of contact for 
the United States on prevention matters arising under the 
Convention. Accordingly, upon ratification of the Convention, 
the Department of State will, by diplomatic note, provide the 
depositary with the following notification:

          Pursuant to Article 31, paragraph 6, the Government 
        of the United States of America informs the Secretary-
        General of the United Nations that requests 
forassistance on developing measures to prevent transnational organized 
crime should be directed to the United States Department of Justice, 
Office of Justice Programs, National Institute of Justice.

    Article 32 (``Conference of the Parties to the 
Convention'') establishes a structure for promoting and 
reviewing the implementation of the Convention. A Conference of 
Parties (COP) is to be convened within a year after the 
Convention's entry into force, initially for the purpose of 
adopting rules of procedure, rules governing payment of 
expenses, and rules governing the activities with which it is 
charged. The negotiating history of this Article reflects that 
sources of funding for the COP shall include voluntary 
contributions, which takes into account U.S. law provisions on 
funding framework treaty-based organizations.
    Among the most important tasks assigned to the COP are 
facilitating technical assistance and information exchange 
among States Parties and reviewing periodically the 
implementation of the Convention. The latter will entail 
scrutiny of information supplied by States Parties themselves 
on their programs and legislative and administrative measures. 
The COP also may develop other supplemental review mechanisms.
    To support the COP, Article 33 (``Secretariat'') states 
that the United Nations Secretary-General shall provide the 
necessary secretariat services. The United Nations General 
Assembly resolution adopting the Convention and Protocols in 
turn requested that the Vienna-based CICP be designated for 
this purpose.
    Article 34 (``Implementation of the Convention'') provides 
that the offenses to be criminalized in accordance with 
Articles 5, 6, 8, and 23 of the Convention must be established 
in the domestic law of each State Party without 
transnationality or the involvement of an organized criminal 
group being required elements of the offense (except with 
respect to the offense of participation in an organized 
criminal group). This provision ensures that States Parties 
adopt laws of general applicability to these serious crimes 
rather than excessively narrow ones that would omit coverage of 
an offense such as money laundering when it is done in a purely 
domestic context or without the involvement of an organized 
group. It also clarifies that the Convention does not preclude 
either the adoption of stricter measures to combat 
transnational organized crime or the application of fundamental 
legal principles in its implementation.
    Article 35 (``Settlement of Disputes'') establishes a 
mechanism for States Parties to settle disputes concerning the 
interpretation or application of the Convention. If a dispute 
cannot be settled within a reasonable time through negotiation, 
a State Party may refer it to arbitration, or to the 
International Court of Justice if the Parties are unable to 
agree on the organization of the arbitration. A State Party 
may, however, opt out of dispute settlement mechanisms other 
than negotiation by making a declaration to that effect. In 
keeping with recent practice, the United States should do so. 
Accordingly, I recommend that the following reservation be 
included in the U.S. instrument of ratification:

          In accordance with Article 35, paragraph 3, the 
        Government of the United States of America declares 
        that it does not consider itself bound by the 
        obligation set forth in Article 35, paragraph 2.

    Articles 36-41 contain the final clauses. Article 36 
(''Signature, ratification, acceptance, approval and 
accession'') provides that the Convention is open for signature 
by all states, and by regional economic integration 
organizations (REIOs) such as the European Union where at least 
one of its member states has signed. REIOs which become party 
to the Convention also arerequired to declare the extent of 
their competence with respect to matters covered by the Convention. The 
Convention is subject to ratification, acceptance, approval, or 
accession, with instruments thereof to be deposited with the Secretary-
General of the United Nations.
    The relationship between the Convention and its 
supplementary Protocols is elaborated in Article 37 (``Relation 
with protocols''). In order to become a Party to a 
supplementary Protocol, a State or REIO must also be a Party to 
the Convention. But a State Party to the Convention must 
separately become a Party to a Protocol in order to be bound by 
the Protocol. Protocols are to be interpreted together with the 
Convention itself.
    Pursuant to Article 38 (``Entry into force''), the 
Convention shall enter into force on the ninetieth day after 
the date of deposit of the fortieth instrument of ratification, 
acceptance, approval or accession. For a state ratifying or 
otherwise consenting to be bound thereafter, the Convention 
shall take legal effect thirty dates from that step.
    Amendment of the Convention is governed by Article 39 
(``Amendment''), which establishes procedures for proposal, 
consideration, and decision on amendments with the involvement 
of the Conference of the Parties. Adoption of proposed 
amendments requires consensus or, as a last resort, a two-
thirds majority of the States Parties present and voting at the 
COP. The voting rights of REIOs are addressed in a way that is 
standard in international instruments. Any adopted amendment is 
subject to ratification, acceptance or approval by States 
Parties, and binds only those States Parties that have 
expressed their consent to be so bound.
    Article 40 (``Denunciation'') states that any State Party 
may denounce the Convention by written notification to the 
Secretary-General of the United Nations. The Convention shall 
cease to be in force for the denouncing State one year after 
receipt of such notification. Denunciation of the Convention 
also entails denunciation of any protocols thereto.
    Article 41 (``Depositary and languages'') designates the 
Secretary-General of the United Nations as depositary for the 
Convention, and specifies that the original of the Convention 
is equally authentic in each of the six United Nations 
languages (Arabic, Chinese, English, French, Russian and 
Spanish).
    Finally, the terms of the Convention, with the suggested 
reservations and understandings, are consonant with U.S. law. 
To clarify that the provisions of the Convention, with the 
exceptions of Articles 16 and 18, are not self executing, I 
recommend that the Senate include the following declaration in 
its resolution of advice and consent:

          The United States declares that the provisions of the 
        Convention (with the exception of Articles 16 and 18) 
        are non-self-executing.

Article 16 and Article 18 of the Convention contain detailed 
provisions on extradition and legal assistance that would be 
considered self-executing in the context of normal bilateral 
extradition practice. It is therefore appropriate to except 
those provisions from the general understanding that the 
provisions of the Convention are non-self-executing.

   PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, 
    ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS 
            CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

    The Trafficking Protocol consists of a preamble and 20 
articles, which are divided into four chapters: I (``General 
provisions''), II (``Protection of victims of trafficking in 
persons''), III (``Prevention, cooperation and other 
measures'') and IV (``Final provisions''). To the extent 
practicable, the wording of key phrases and the structure of 
the Trafficking and Migrant Smuggling Protocols areconsistent 
with each other and are modeled on the structure and wording of the 
Convention. As noted above, subject to the reservations and 
understandings recommended herein, the Protocol would not require 
implementing legislation for the United States.

I. General provisions

    Article 1 (``Relation with the United Nations Convention 
against Transnational Organized Crime'') is structurally a key 
provision of the Trafficking Protocol. Rather than repeating in 
the Protocol every provision of the Convention that is also 
applicable to the Protocol, and rather than explicitly 
referencing every provision in the Convention that is also 
applicable to the Protocol, this Article provides that all 
provisions of the Convention shall apply, ``mutatis mutandis,'' 
to the Protocol unless otherwise provided. The negotiating 
record to the Protocol explains that the phrase in quotations 
means ``with such modifications as circumstances require'' or 
``with the necessary modifications,'' and that the provisions 
of the Convention would thus be interpreted so as to have the 
same essential meaning or effect in the Protocol as in the 
Convention. Article 1 further clarifies this concept by 
providing that the offences established in Article 5 of the 
Protocol (the criminalization article) shall be regarded as 
offences established in accordance with the Convention. Thus, 
wherever in the Convention it is stated that a particular 
provision applies to ``offences established in accordance with 
the Convention,'' that provision will also apply, for States 
Parties to this Protocol, to the trafficking in persons 
offences established in accordance with Article 5 of the 
Protocol.
    The obligations in the Convention that are to be applied to 
the offenses are all consistent with current U.S. law, with one 
exception. With respect to the obligation to establish criminal 
jurisdiction set forth in Article 15 of the Convention, a 
partial reservation will be required for Trafficking Protocol 
offenses committed outside the United States on board ships 
flying a U.S. flag or aircraft registered under U.S. law. I 
therefore recommend that the U.S. instrument of ratification 
include the following reservation:

          The Government of 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 shall implement paragraph 1(b) of the 
        Convention to the extent provided for under its federal 
        law.

    In addition, for clarity, an understanding is recommended 
with respect to the application of Article 6 of the Convention, 
regarding criminalization of the laundering of proceeds of 
crime, to the Protocol offenses. Article 6(2)(b) of the 
Convention entitles States Parties to set out, in legislation, 
a list of money laundering predicate offenses, provided that 
the list includes a comprehensive range of offenses associated 
with organized criminal groups. Although current U.S. law does 
not designate all conduct punishable under the Protocol as 
money laundering predicate offenses, it so designates a 
comprehensive range of offenses associated with trafficking. To 
make clear that the U.S. understands its existing comprehensive 
list of money laundering predicate offenses as sufficient to 
implement the Article's obligation with respect to the Protocol 
offenses, I recommend that the following understanding be 
included in the U.S. instrument of ratification:

          The Government of 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.

    Finally, it should be noted that the previously described 
notifications to be made by the United States with respect to 
Articles 16, 18, and 31 of the Convention also apply to the 
Protocol. No additional notification in this regard is 
necessary with respect to the Trafficking Protocol.
    Article 2 (``Statement of purpose'') describes the purposes 
of the Protocol, which are 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 States Parties to meet these objectives.
    Article 3 (``Use of terms'') defines ``trafficking in 
persons'' for the first time in a binding international 
instrument. This key definition may be divided into three 
components: conduct, means and purpose. The conduct covered by 
``trafficking in persons'' is the recruitment, transportation, 
transfer, harboring or receipt of persons by means of the 
threat or use of force or other forms of coercion, of 
abduction, of fraud, of deception, of the abuse of power or of 
a position of vulnerability or of the giving or receiving of 
payments or benefits to achieve the consent of a person having 
control over another person for the purpose of exploitation. 
Exploitation includes, at a minimum, exploitation of the 
prostitution of others or other forms of sexual exploitation, 
forced labor or services, slavery or practices similar to 
slavery, servitude or the removal of organs. Article 3 further 
provides that, once any of the means set forth above has been 
used, the consent of the victim to the intended exploitation is 
irrelevant. Finally, with respect to children, the Article 
makes it clear that any of the conduct set forth above, when 
committed for the purpose of exploitation constitutes 
``trafficking'' even if none of the means set forth above are 
used.
    It should be noted that the negotiating record sets forth 
six statements intended to assist in the interpretation of the 
definition of ``trafficking in persons.'' One of those 
statements makes clear that the Protocol is without prejudice 
to how States Parties address prostitution in their respective 
domestic laws.
    Article 4 (``Scope of application'') is modeled on the 
analogous article in the Convention. It is one of many 
provisions in the Protocol that have an analogous provision in 
the Convention. In all cases, the goal was to make the language 
in the Protocol consistent with the language in the Convention. 
Article 4 thus states that the Protocol applies, except as 
otherwise provided therein, to the prevention, investigation 
and prosecution of trafficking in persons, when the offence is 
transnational in nature and involves an organized criminal 
group (virtually identical language is used in the ``Scope'' 
article in the Convention), and to the protection of 
trafficking victims.
    Article 5 (``Criminalization'') is modeled on the analogous 
articles in the Convention. Article 5(1) requires States 
Parties to criminalize the conduct defined in Article 3 of the 
Protocol as ``trafficking in persons,'' when committed 
intentionally. Article 5(2) requires States Parties to 
criminalize, subject to basic concepts of their legal systems, 
attempts to commit the trafficking offenses described, and to 
criminalize participating as an accomplice and organizing or 
directing others to commitsuch conduct. As confirmed by Article 
11(6) of the Convention, there is no requirement that the offenses 
under U.S. law implementing this obligation be identical to the text of 
the Protocol. As described in more detail below, existing federal 
statutes in Title 18, United States Code, Chapters 77, 110 and 117, 
combined with state laws, and general accessorial liability principles 
of U.S. law, are sufficient to implement the requirements of Article 5, 
provided that a reservation is deposited with respect to trafficking 
for the purpose of removal of organs, and certain attempted trafficking 
offenses. With this reservation, no new implementing legislation will 
be required for the United States.
    With respect to the obligation to criminalize trafficking 
and attempted trafficking for the purpose of ``forced labour or 
services, slavery or practices similar to slavery, servitude,'' 
current U.S. federal slavery, peonage, involuntary servitude 
and forced labor laws found in Chapter 77 of Title 18, which 
apply nationwide, are sufficient to implement the requirement 
to criminalize trafficking for these purposes, independent of 
state law.
    It should also be noted, with respect to the obligation to 
criminalize trafficking for the purpose of ``practices similar 
to slavery,'' that in the course of negotiations on the 
Protocol representatives of the United States and other 
countries stated, without dissent, that we understand this term 
to mean practices set forth in the 1956 UN Supplementary 
Convention on the Abolition of Slavery, to which the United 
States is a party without reservation. These practices include 
forced marriage, serfdom, debt bondage, and the delivery of a 
child for the purpose of exploitation. These practices are 
generally criminalized under U.S. law by prohibitions against 
forced labor and slavery (including forced marriage, which, as 
defined in the 1956 Convention, involves elements of ownership 
and control prohibited under the Thirteenth Amendment). With 
respect to the delivery of a child for the purpose of 
exploitation, the forms of exploitation for which U.S. law 
provides criminal sanction are slavery, peonage, forced labor, 
involuntary servitude and, as further described below, sexual 
exploitation.
    With respect to the obligation to criminalize trafficking 
and attempted trafficking for the purpose of ``the exploitation 
of the prostitution of others,'' U.S. federal law prohibits 
instances where a person is transported in interstate or 
foreign commerce, or induced or coerced to do so, with the 
intent that the person engage in prostitution, 49 states 
prohibit all prostitution, and Nevada prohibits prostitution 
derived from force, debt bondage, fraud, and deceit. While the 
Protocol requires criminalization of a range of conduct 
antecedent to the actual engaging in prostitution, this 
requirement is met by state procurement or promotion of 
prostitution laws, or as in Nevada's case, the above-described 
trafficking law.
    The Protocol also requires criminalization of trafficking 
for the purpose of ``other forms of sexual exploitation.'' 
Federal law prohibits interstate travel or transportation of a 
person, and enticement or inducement for the purpose of 
committing any criminal sexual act. In addition, state laws 
proscribe a variety of forms of sexual abuse, as well as 
attempted commission of such offenses. These federal and state 
laws meet the obligation to criminalize trafficking in persons 
for the purpose of other forms of sexual exploitation.
    With respect to the obligation to criminalize attempted 
trafficking for the purpose of other forms of sexual 
exploitation, the federal laws described above are consistent 
with this requirement. However, with respect to state laws, 
some forms of conduct that are required to be criminalized as 
attempts would be too remote from completion to be punished 
under the attempted sexual abuse laws of a particular state. To 
address that narrow rangeof attempted trafficking for sexual 
exploitation offenses that do not rise to the level of attempted sex 
abuse offenses under federal or state laws, it will be necessary to 
reserve the right to apply the obligation set forth in Article 5, 
Paragraph 2(a), of the Protocol only to the extent that such conduct is 
punishable by the laws of the state concerned.
    In addition, the Protocol requires States Parties to 
prohibit trafficking and attempted trafficking in persons for 
the purpose of the removal of organs (which the negotiating 
record makes clear does not prohibit organ removal for 
legitimate medical reasons). The most closely analogous federal 
criminal statute, 42 U.S.C. 274e, penalizes only the sale of 
organs in interstate and foreign commerce. While that statute, 
along with federal fraud, kidnapping, aiding and abetting and 
conspiracy laws, likely covers most instances of such 
trafficking that could arise, the express obligation under the 
Protocol is nonetheless broader. Similarly, states generally do 
not have statutes specifically treating as crimes trafficking 
or attempted trafficking in persons for the purpose of the 
removal of organs, although in a manner similar to federal law, 
such conduct may be punishable as murder, assault, kidnapping, 
fraud or similar offenses, depending on the circumstances of 
the crime.
    Accordingly, to avoid undertaking obligations with respect 
to the two areas discussed above, I recommend that the 
following reservation be included in the U.S. instrument of 
ratification:

          The Government of 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 Government of 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.

    I also recommend that the Senate include the following 
understanding in its resolution of advice and consent:

          The United States understands that, in view of its 
        reservations, the Protocol does not warrant the 
        enactment of any legislative or other measures; 
        instead, the United States will rely on existing 
        federal law and applicable state law to meet its 
        obligations under the Protocol.

II. Protection of victims of trafficking, in persons

    Article 6 (``Assistance to and protection of victims of 
trafficking in persons'') recognizes that protection of victims 
is as important as prosecuting traffickers. It calls on States 
Parties to make available to victims oftrafficking in persons 
certain protections and assistance. Among the protections included are 
protection of the privacy and identity of the victim by making legal 
proceedings confidential and protection of the physical safety of 
victims. The types of assistance to be offered include assistance 
during legal proceedings against the trafficker, and assistance to 
provide for victims' physical, psychological and social recovery. This 
Article also calls on States Parties to take into account the age, 
gender and special needs of victims. In recognition of the fact that 
legal systems and available resources will affect how States Parties 
implement their obligations under this Article, the Article includes 
language providing appropriate discretion and flexibility. For example, 
States Parties are, required to ``consider'' taking certain of the 
measures called for, and are required to take certain other measures 
``in appropriate cases and to the extent possible under its domestic 
law.'' States Parties, however, are required to ensure the possibility 
for the victim to obtain compensation for damages suffered.
    Article 7 (``Status of victims of trafficking in persons in 
receiving States'') calls on States Parties to consider 
providing temporary or permanent residency to victims of 
trafficking in appropriate cases.
    Paragraph 1 of Article 8 (``Repatriation of victims of 
trafficking in persons'') states that Parties must facilitate 
and accept the return of their nationals and permanent 
residents who are trafficking victims. This is consistent with 
the customary international law principle that a country is 
obligated to accept the return of any of its nationals. Article 
8(2) provides that such return shall be with due regard for the 
safety of the victim and the status of legal proceedings 
against the trafficker, and shall preferably be voluntary. 
Paragraphs 3 and 4 provide measures to facilitate the return of 
trafficking victims. They require a State Party to verify 
whether a trafficking victim is its national or permanent 
resident, and to issue whatever travel or other documents are 
need to enable the person to return to its territory. Article 8 
(5) states that Article 8 is without prejudice to any right 
afforded trafficking victims by the domestic law of the 
receiving State Party. For example, nothing in Article 8 would 
interfere with a trafficking victim's right to apply for asylum 
in the United States. Finally, Article 8 (6) contains the 
important statement that the Article will not prejudice any 
other applicable agreement or arrangement, be it bilateral or 
multilateral, that governs the return of trafficking victims. 
This was included to ensure that the Protocol did not interfere 
with other agreements or arrangements that a State Party may 
have worked out with another State Party on this subject.

III. Prevention, cooperation and other measures

    Paragraph 1 of Article 9 (``Prevention of trafficking in 
persons'') obligates States Parties to take measures to prevent 
and combat trafficking in persons and to protect victims from 
revictimization. The remaining four paragraphs of the Article 
elaborate on that obligation. Article 9(2) calls on States 
Parties to take measures, including research and mass media 
campaigns, to prevent and combat trafficking. Article 9(3) 
states that the actions taken in accordance with this Article 
must include appropriate cooperation with non-governmental 
organizations. Article 9(4) requires States Parties to take or 
strengthen measures to alleviate the factors that make persons 
vulnerable to trafficking, such as poverty and lack of equal 
opportunity. Finally, Article 9(5) requires States Parties to 
adopt or strengthen measures to discourage the demand that 
fosters all forms of exploitation of persons, and consequently 
leads to trafficking.
    Article 10 (``Information exchange and training'') requires 
States Parties to exchange information, inaccordance with their 
domestic law, in order to enable them to determine (1) whether persons 
crossing international borders with suspicious or no travel documents 
are perpetrators or victims of trafficking; and (2) the means and 
methods used by trafficking gangs, including, for example, means of 
recruitment and transportation of victims, and trafficking routes. 
Article 10 further requires States Parties to provide training for 
relevant government officials in the prevention of trafficking in 
persons, and elaborates on what that training should include. Finally, 
Article 10 provides that a State Party receiving information under this 
Article shall comply with any restriction placed on its use by the 
State Party that transmitted the information. As this Article relates 
to police cooperation, it does not affect mutual legal assistance 
relations, which are instead governed by treaties for that purpose, and 
by provisions such as Article 18 of the Convention itself.
    Article 11 (``Border measures'') provides that States 
Parties shall strengthen border controls as necessary to 
prevent and detect trafficking in persons without prejudice to 
international commitments to the free movement of people. It 
then goes on to set forth particular measures that states must 
take in order to strengthen border controls. These include 
measures to prevent commercial carriers from being used in the 
commission of trafficking offenses; obliging commercial 
carriers to ascertain that passengers are in possession of 
required travel documents, providing for sanctions against 
carriers who do not comply with the requirement to check their 
passengers' travel documents, and denying or revoking visas to 
persons involved in the commission of trafficking crimes. All 
of these provisions include discretionary language (e.g., that 
States Parties ``shall consider'' adopting certain measures, or 
that they shall do so ``where appropriate,'' ``to the extent 
possible,'' or ``in accordance with [their] domestic law''), so 
as to provide flexibility to States Parties.
    Under Article 12 (``Security and control of documents''), 
States Parties are obliged to take measures, within available 
means, to ensure that their travel and identity documents are 
of such a quality that they cannot easily be misused and cannot 
readily be falsified, altered, replicated or issued, and to 
ensure the security and integrity of such documents so that 
they cannot be unlawfully created, issued or used.
    Article 13 (``Legitimacy and validity of documents'') is 
related to Article 12. It requires a State Party to verify 
within a reasonable time the legitimacy and validity of travel 
documents that appear to have been issued in its name and to 
have been used for trafficking in persons.

IV. Final provisions

    Article 14 (``Saving clause'') is extremely important in 
setting appropriate balance in the Protocol between law 
enforcement and protection of victims. It reaffirms that the 
Protocol does not affect rights, obligations, and 
responsibilities of States and individuals under international 
law, in particular international humanitarian law as well as 
the 1951 Convention and the 1967 Protocol relating to the 
Status of Refugees and the principle of non-refoulement as 
contained therein. (The negotiating record explicitly states 
that the Protocol does not deal one way or the other with the 
status of refugees.) Moreover, this Article provides that the 
Protocol must be applied in a way that does not discriminate 
against persons on the ground that they are victims of 
trafficking in persons and that the Protocol shall be 
interpreted and applied in a manner consistent with 
internationally recognized principles of non-discrimination 
(e.g., no distinction based on race, religion, nationality, 
membership in a particular social group or political opinion.)
    Article 15 (``Settlement of disputes'') and Article 
16(``Signature, ratification, acceptance, approval and accession''), 
are identical to the analogous provisions (Articles 35 and 36) of the 
Convention, except that the word ``Protocol'' is substituted for 
``Convention.'' As with the analogous article of the Convention, the 
United States intends to exercise its right to reserve with regard to 
the dispute resolution mechanism set forth in the Protocol. 
Accordingly, I recommend that the following reservation be included in 
the U.S. instrument of ratification:

          In accordance with Article 15, paragraph 3, the 
        Government of the United States of America declares 
        that it does not consider itself bound by the 
        obligation set forth in Article 15, paragraph 2.

    Article 17 (``Entry into force'') is identical to Article 
38 of the Convention, except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 17 provides 
that the Protocol shall not enter into force before the entry 
into force of the Convention.
    Article 18 (``Amendment'') is identical to Article 39 of 
the Convention, except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 18 provides 
that the States Parties to the Protocol meeting at the 
Conference of the Parties (rather than the entire Conference of 
the Parties) approve any amendment to the Protocol. This change 
was necessary so that decisions regarding amendment to the 
Trafficking Protocol would be made only by States Parties to 
the Protocol, and not by parties to the Convention who were not 
also parties to the Protocol.
    Article 19 (``Denunciation'') is identical to Article 40 of 
the Convention except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 19 does not 
contain the final paragraph of Article 40 (which states that a 
State Party that denounces the Convention must denounce any 
Protocols to which that State is a Party as well).
    Article 20 (``Depositary and languages'') is identical to 
Article 41 of the Convention except that the word ``Protocol'' 
is substituted for ``Convention.''
    Finally, the terms of the Protocol, with the suggested 
reservations and understandings, are consonant with U.S. law. 
To clarify that the provisions of the Protocol, with the 
exceptions of those implemented through Articles 16 and 18 of 
the Convention, are not self-executing, I recommend that the 
Senate include the following declaration in its resolution of 
advice and consent:

          The United States declares that the provisions of the 
        Protocol (with the exception of those implemented 
        through Articles 16 and 18 of the Convention) are non-
        self-executing.

Article 16 and Article 18 of the Convention (which are 
applicable to the Protocol by virtue of Article 1 thereof) 
contain detailed provisions on extradition and legal assistance 
that would be considered self-executing in the context of 
normal bilateral extradition practice. It is therefore 
appropriate to except those provisions from the general 
understanding that the provisions of the Convention are non-
self-executing.

   PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, 
   SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL 
                            ORGANIZED CRIME

    The Migrant Smuggling Protocol consists of a preamble and 
25 articles, which are divided into four chapters: I (``General 
provisions''), II (``Smuggling of migrants by sea''), III 
(``Prevention, cooperation and other measures'') and IV 
(``Final provisions''). To the extent practicable, the wording 
of key phrases and the structure of the Trafficking and Migrant 
Smuggling Protocols are consistent with each other and are 
modeled on the structure and wording of the Convention. While 
there was never any concern, in the context of the Trafficking 
Protocolnegotiations, that the Protocol might be used to punish 
the victims, there was great concern, especially on the part of 
``sending'' countries (i.e., states from which migrants are smuggled), 
that the ``receiving'' countries (i.e., states to which migrants are 
smuggled) might use the Migrant Smuggling Protocol to punish the 
smuggled migrants. It was necessary to address this concern, and 
develop a Protocol that balances law enforcement provisions with 
protection of the rights of smuggled migrants, in order to reach 
consensus. Thus, this Protocol contains a number of migrant-protection 
provisions. As noted above, subject to the reservations and 
understandings recommended herein, the Protocol would not require 
implementing legislation for the United States.

I. General provisions

    Article 1 (``Relation with the United Nations Convention 
against Transnational Organized Crime'') is structurally a key 
provision of the Migrant Smuggling Protocol. Rather than 
repeating in the Protocol every provision of the Convention 
that is also applicable to the Protocol, and rather than 
explicitly referencing every provision in the Convention that 
is also applicable to the Protocol, this Article provides that 
all provisions of the Convention shall apply, ``mutatis 
mutandis,'' to the Protocol unless otherwise provided. The 
negotiating record to the Protocol explains that the phrase in 
quotations means ``with such modifications as circumstances 
require'' or ``with the necessary modifications,'' and that the 
provisions of the Convention would thus be interpreted so as to 
have the same essential meaning or effect in the Protocol as in 
the Convention. Article 1 further clarifies this concept by 
providing that the offences established in Article 6 of the 
Protocol (the criminalization article) shall be regarded as 
offences established in accordance with the Convention. Thus, 
wherever in the Convention it is stated that a particular 
provision applies to ``offences established in accordance with 
the Convention,'' that provision will also apply for States 
Parties to this Protocol to the migrant smuggling offences 
established in accordance with Article 6 of the Protocol.
    The obligations set forth in the Convention that are to be 
applied to offenses established in the Migrant Smuggling 
Protocol are all consistent with current U.S. law. In contrast 
to the Convention and the Trafficking Protocol, no reservation 
will be required with respect to the establishment of 
jurisdiction over Protocol offenses committed on board ships 
flying a U.S. flag or aircraft registered under U.S. law. This 
difference between the Migrant Smuggling Protocol and the other 
instruments arises because, as discussed further within, the 
Migrant Smuggling Protocol requires the United States to 
criminalize only the smuggling of migrants into the United 
States, and travel and identity document offenses in 
conjunction therewith. U.S. law provides for jurisdiction over 
such conduct occurring outside the United States, which would 
include on board ships flying a U.S. flag or aircraft 
registered under U.S. law.
    Similarly, since U.S. federal law covers any migrant 
smuggling into United States territory, and travel and identity 
document offenses in conjunction therewith, a federalism 
reservation is not required.
    As with respect to the Trafficking Protocol, to make clear 
that the U.S. understands its existing comprehensive list of 
money laundering predicate offenses as sufficient to implement 
the Article's obligation with respect to the Protocol offenses, 
I recommend that the following understanding be included in the 
U.S. instrument of ratification:

          The Government of 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 
        NationsConvention 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.

    Finally, it should be noted that the previously described 
notifications to be made by the United States with respect to 
Articles 16, 18, and 31 of the Convention also apply to this 
Protocol. No additional notification in this regard is 
necessary with respect to the Migrant Smuggling Protocol.
    Article 2 (``Statement of purpose'') describes the purpose 
of the Protocol, which are 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.
    Article 3 (``Use of terms'') defines four terms used in the 
Protocol, including the key term ``smuggling of migrants.'' 
``Smuggling of migrants'' means ``the procurement, in order to 
obtain, directly or indirectly, a financial or other material 
benefit, of the illegal entry of a person into a State Party of 
which the person is not a national or a permanent resident.'' 
The language that requires the purpose of the smuggling to be 
financial or other material gain is taken from the definition 
of ``organized criminal group'' in the main Convention. The 
negotiating record explains that the inclusion of this language 
was meant to emphasize that the Protocol did not cover the 
activities of those providing support to smuggled migrants for 
humanitarian reasons or on the basis of close family ties. 
``Illegal entry'' means crossing borders without complying with 
the requirements for legal entry into the receiving State. 
``Fraudulent travel or identity document'' means a travel or 
identity document that has been falsely made or altered without 
proper authorization, that has been improperly issued or 
obtained, or that is being used by someone other than the 
rightful holder. ``Vessel'' means any type of water craft 
capable of being used-as a means of transportation on water, 
except for Government vehicles being used for governmental, 
non-commercial service. Thus, naval vessels being used for 
military purposes are not covered by the Protocol, but 
government vessels being used for services that might in other 
countries be provided by non-governmental, commercial entities 
are covered.
    Article 4 (``Scope of application'') is modeled on the 
analogous article in the Convention. It is one of many 
provisions in the Protocol that have an analogous provision in 
the Convention. In all cases, the goal was to make the language 
in the Protocol consistent with the language in the Convention. 
Article 4 thus states that the Protocol applies, except as 
otherwise provided therein, to the prevention, investigation 
and prosecution of the offenses established in the Protocol, 
``where the offenses are transnational in nature and involve an 
organized criminal group'' (virtually identical language is 
used in the ``Scope'' article in the Convention), and to the 
protection of the rights of persons who have been the object of 
such offenses.
    Article 5 (``Criminal liability of migrants'') states that 
migrants must not be subject to criminal prosecution under the 
Protocol merely because they are the objects of conduct set 
forth in Article 6 (criminalization). This Article was the key 
to getting the support of the ``sending'' countries for this 
Protocol. It makes perfectly clear that the Protocol does not 
call for the punishment of the migrant merely because he or she 
has been smuggled. However, as is made explicit later in the 
Protocol (Article 6(4)), nothing in Article 5 or anywhere else 
in the Protocol prevents a State Party from taking measures 
against a smuggled migrant under its domestic law. Also, 
Article 5 would not apply to a case where the smuggled migrant 
was also part of the organized criminal group that conducted 
the smuggling--insuch a case the criminalization obligation of 
the Protocol would apply to the migrant not because of the migrant's 
status as a smuggled migrant, but because of his or her participation 
in the smuggling operation as a smuggler.
    Article 6 (``Criminalization'') was modeled on the 
analogous articles in the Convention. It requires States 
Parties to criminalize three distinct types of conduct: (1) 
``smuggling of migrants,'' (2) document fraud when committed 
for the purpose of enabling the smuggling of migrants, and (3) 
enabling a person to reside illegally in a State by means of 
document fraud or any other illegal means. As confirmed by 
Article 11(6) of the Convention, there is no requirement that 
the criminal offenses by which the U.S. will implement this 
obligation be denominated in terms identical to those used in 
the Protocol, provided the requisite conduct is a criminal 
offense under U.S. law.
    With respect to the first category (smuggling of migrants), 
each State Party is obligated to criminalize the conduct 
described in the definition set forth in Article 3(a), i.e., 
``the procurement . . . of the illegal entry of a person into a 
State Party of which the person is not a national or permanent 
resident.'' This definition is consistent with the United 
States' interpretation that the Protocol requires the United 
States to criminalize the smuggling of migrants into its 
country, an obligation that can be implemented under current 
U.S. law.
    Within the second category (document fraud enabling the 
smuggling of migrants), the Protocol requires Parties to 
criminalize producing, procuring, providing, or possessing 
fraudulent travel or identity documents. Although U.S. criminal 
statutes relating to false or fraudulent passports, visas, 
other travel documents, and identity documents are not couched 
in these precise terms, the conduct that must be prohibited 
under the Protocol is covered, either through these statutes or 
through those prohibiting the inducement or encouragement of 
migrant smuggling. U.S. law relating to identity documents 
requires that the conduct covered be done with the intent to 
defraud the United States. Since, as noted above, the Protocol 
is understood by the United States to require it to criminalize 
smuggling into the United States, this intent requirement is 
consistent with our obligation under the Protocol.
    The third type of offense (enabling illegal residence) 
requires some explanation. Until the last round of 
negotiations, the text of the entire Protocol was developed on 
the assumption that the definition of ``smuggling of migrants'' 
in Article 3 would cover both illegal entry and illegal 
residence. In other words, criminal groups that knowingly, 
intentionally and for profit, provided false documents, 
transportation, housing, etc. to persons who were present in a 
country illegally in order to enable those persons to continue 
to reside in the country, would be guilty of ``smuggling of 
migrants,'' even if the group had nothing to do with the 
initial entry of the persons into the country, and even if the 
persons' initial entry was legal. The ``sending'' countries 
were concerned that this definition was too broad, and could 
cover the activities of family members or others who helped 
illegal migrants remain in a country for humanitarian reasons. 
The eventual compromise was to limit the definition of 
``smuggling of migrants'' to illegal entry, and to have a 
separate criminalization requirement for enabling illegal 
residence that was limited to false documents, and did not 
cover other support, such as transportation or housing, which 
might be given to illegal migrants to enable them to remain in 
a country. In any event, current U.S. law prohibiting the 
harboring of illegal aliens covers the obligation set forth in 
this category.
    As with the Trafficking Protocol, Article 6 obliges States 
Parties to criminalize attempts to commit the offenses 
described in paragraph 1, subject to the basicconcepts of their 
respective legal systems, as well as participation as an accomplice 
(subject to the basic concepts of their respective legal systems, with 
respect to procuring, providing, or possessing fraudulent travel or 
identity documents) or organizing or directing others to commit the 
offenses. Participating as an accomplice and ordering or directing 
migrant smuggling offenses are criminalized under general accessorial 
liability principles of U.S. law. U.S. law prohibits most, but not all, 
attempts to engage in the described conduct. For example, U.S. law does 
not always criminalize attempted possession of fraudulent travel or 
identity documents. Accordingly, I recommend that the following 
reservation be included in the U.S. instrument of ratification:

          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 Government of 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.

    Article 6 also calls on States Parties to adopt measures to 
establish as aggravating circumstances those circumstances that 
endanger, or are likely to endanger, the life or safety of the 
migrants, or entail inhuman or degrading treatment with respect 
to the offenses described above. U.S. Federal Sentencing 
Guidelines provide enhanced penalties when the offense of 
smuggling, harboring, encouraging or inducing illegal entry to 
or residence in the United States involves the intentional or 
reckless creation of a substantial risk of death or serious 
bodily injury. In the case of production of false or fraudulent 
documents, an enhanced penalty would of necessity only apply to 
situations in which the documents are provided to a migrant 
under such circumstances. Such conduct constitutes 
``encouraging'' or ``inducing'' alien smuggling under U.S. law, 
and is thereby subject to enhanced penalties under the 
Sentencing Guidelines. The Sentencing Guidelines further 
provide enhanced penalties for circumstances that entail 
inhuman or degrading treatment, such as subjecting migrants to 
inhumane conditions, or to circumstances in which they are 
likely to be forced into involuntary servitude.
    Finally, as a balance to Article 5's guarantee that 
migrants shall not be punished under the Protocol for the mere 
fact of having been smuggled, Article 6 clarifies that nothing 
in the Protocol prevents a State Party from taking measures 
against a smuggled migrant whose conduct constitutes an offense 
under its domestic law.

II. Smuggling of migrants by sea

    Article 7 (``Cooperation'') requires States Parties to 
cooperate to the fullest extent possible to prevent and 
suppress migrant smuggling by sea in accordance with the 
international law of the sea.
    Article 8 (``Measures against the smuggling of migrants by 
sea'') establishes procedures for interdicting suspect vessels 
at sea. This Article is based on long-standing international 
law principles of flag State jurisdiction on the high seas, 
universal jurisdiction over ships without nationality, and the 
right of approach and visit. Paragraph 1 provides that the flag 
State may take direct action against its own flag vessels, as 
well as stateless vessels, and may request the assistance of 
other States Parties to suppress migrant smuggling by sea. 
Paragraph 2 provides for the boarding and searching of foreign 
flag vessels, with flag State consent, based on reasonable 
grounds to suspect that the vessel is engaged in 
migrantsmuggling. The flag State must be promptly notified of any 
action taken against one of its vessels (paragraph 3). Paragraph 4 
provides that the flag State must respond expeditiously to a request 
for confirmation of registry and request for authorization to take 
appropriate measures with regard to one of its vessels. Paragraph 5 
allows the flag State to condition its authorization with respect to 
the boarding, searching and taking of measures against one of its flag 
vessels, as mutually agreed between the flag State and the requesting 
State. The requesting State may not take any additional actions without 
the express authorization of the flag State, except those necessary to 
relieve imminent danger to the boarding party or to other persons on 
board, or as otherwise authorized by bilateral or multilateral 
agreements.
    Paragraph 6 requires States Parties to designate an 
authority or authorities to receive reports and respond to 
requests for assistance, confirmation of registry or 
authorization to take appropriate measures. The Operations 
Center, Department of State, would serve as such authority for 
the United States. States Parties are obliged by Article 8(6) 
to notify the UN Secretary-General of their designated 
authority or authorities within one month of the designation. 
Accordingly, upon ratification of the Convention, the 
Department of State will, by diplomatic note, provide the 
depositary with the following notification:

          Pursuant to Article 8, paragraph 6 of the Protocol 
        against the Smuggling of Migrants by Land, Sea and Air, 
        supplementing the United Nations Convention against 
        Transnational Organized Crime, the United States of 
        America notifies the other States Parties through the 
        Secretary-General of the United Nations that the 
        Operations Center, U.S. Department of State, is 
        designated as its authority to receive and respond to 
        requests under the above-referenced paragraph of the 
        Protocol.

    Paragraph 7 provides for universal jurisdiction over 
stateless vessels, by allowing all States Parties to board and 
search stateless vessels.
    Article 9 (``Safeguard Clauses'') requires States Parties 
taking measures against a vessel engaged in migrant smuggling 
to ensure the safety and humanitarian handling of the persons 
on board and, within available means, that any actions taken 
with regard to the vessel are environmentally sound. States 
Parties shall also take due account of the need not to endanger 
the security of the vessel or its cargo, as well as the need 
not to prejudice the commercial or legal interests of the flag 
State or any other interested State. If it is subsequently 
proven that the suspect vessel was not engaged in the smuggling 
of migrants, the vessel shall be compensated for any loss or 
damage that it may have sustained, provided that the vessel has 
not committed any act justifying the measures taken. Similar 
provisions are in other international instruments related to 
the law of the sea. Existing claims procedures in place under 
current law would be used in the processing and adjudication of 
any such claims. Any measure taken, adopted or implemented 
under this chapter must also take due account of the need not 
to interfere with the rights and obligations and the exercise 
of jurisdiction of coastal States in accordance with the 
international law of the sea, as well as the authority of the 
flag State to exercise jurisdiction and control in 
administrative, technical and social matters involving the 
vessels. Any action taken against vessels pursuant to this 
chapter must be carried out only by warships or military 
aircraft, or other ships or aircraft clearly marked and 
identifiable as being on government service and authorized to 
that effect.

III. Prevention, cooperation and other measures

    Article 10 (``Information'') calls for States Parties, 
consistent with their domestic legal and administrativesystems, 
to exchange among themselves certain types of information for the 
purpose of achieving the Protocol's objectives. The information called 
for includes information on such matters as embarkation and destination 
points, as well as routes and means of transportation used by 
smugglers, and the identify and organization of smuggling groups. This 
information exchange is in addition to that called for in Articles 27 
(``Law enforcement cooperation'') and 28 (``Collection, exchange and 
analysis of information on the nature of organized crime'') of the 
Convention and is analogous to that contemplated in Article 10 of the 
Trafficking Protocol. Finally, Article 10 provides that States Parties 
that receive information shall comply with any restrictions on its use 
imposed by the State Party that transmitted the information.
    Article 11 (``Border measures'') provides that States 
Parties shall strengthen border controls as necessary to 
prevent and detect the smuggling of migrants, without prejudice 
to international commitments to the free movement of people. It 
then goes on to set forth particular measures that states 
should take in order to strengthen border controls. These 
include measures to prevent commercial carriers from being used 
in the commission of migrant smuggling offenses; obliging 
commercial carriers to ascertain that passengers are in 
possession of required travel documents, providing for 
sanctions against carriers who do not comply with the 
requirement to check their passengers' travel documents, and 
denying or revoking visas to persons involved in the commission 
of migrant smuggling crimes. All of these provisions include 
discretionary language (e.g., States Parties ``shall consider'' 
adopting certain measures, or that they shall do so ``where 
appropriate,'' ``to the extent possible,'' or ``in accordance 
with domestic law'') so as to provide flexibility to States 
Parties.
    Under Article 12 (``Security and control of documents''), 
States Parties are obliged to take measures, within available 
means, to ensure that their travel and identity documents are 
of such a quality that they cannot easily be misused (and 
cannot readily be falsified or unlawfully altered, replicated 
or issued), and to ensure the security and integrity of such 
documents so that they cannot be unlawfully created, issued or 
used.
    Article 13 (``Legitimacy and validity of documents'') is 
related to Article 12. It requires a State Party to verify 
within a reasonable time the legitimacy and validity of travel 
documents that appear to have been issued in its name and to 
have been used for smuggling of migrants.
    Article 14 (``Training and technical cooperation'') 
requires States Parties to provide or strengthen various types 
of law enforcement training for their relevant officials in 
order to prevent the conduct set forth in Article 6 and to 
provide humane treatment to the smuggled migrants. It further 
requires States Parties to cooperate with each other, and with 
international and nongovernmental organizations to make sure 
that such training is adequate. Finally, this Article provides 
that States Parties shall consider providing assistance to 
other States that are frequently countries of origin or transit 
for smuggled migrants.
    Article 15 (``Other prevention measures'') deals with 
nonlaw-enforcement prevention techniques. It requires States 
Parties to provide public awareness programs to ensure that the 
public is aware of the criminal nature of migrant smuggling and 
the risks it poses to the migrants. The last paragraph of this 
Article, which was very important to the ``sending'' countries, 
requires States Parties to promote or strengthen, as 
appropriate, development programs at the national, regional and 
international levels, to combat the root socio-economic causes 
of the smuggling of migrants.
    Article 16 (``Protection and assistance measures''), 
requires States Parties, consistent with their obligationsunder 
international law, to take appropriate measures to preserve and protect 
the rights of smuggled migrants, in particular the right to life, and 
the right not to be subjected to torture or other cruel, inhuman or 
degrading treatment. As discussed above under Article 6, neither this 
Article nor Article 5 preclude the United States from prosecuting a 
smuggled person if he or she has engaged in other criminal activity. 
Article 16 also obliges States Parties to take appropriate measures to 
protect smuggled migrants from violence, and to assist smuggled 
migrants whose lives or safety are endangered. It further requires 
States Parties to take into account the special needs of women and 
children in implementing this Article. Finally, it obliges States 
Parties, when a smuggled migrant has been detained, to comply with its 
obligations under the Vienna Convention on Consular Relations 
(``VCCR''), including those concerning consular notification and 
access. This last requirement creates no new obligations or 
interpretations; it merely states that States Parties must comply with 
their obligations under the VCCR, whatever those obligations may be.
    Article 17 (``Agreements and arrangements'') encourages 
States Parties to conclude bilateral or regional agreements or 
arrangements to implement the Protocol. This was an important 
Article to the United States, as we have bilateral migration 
agreements with a number of countries.
    Article 18 (``Return of smuggled migrants'') is one of the 
key articles in the Protocol. Paragraph 1 requires a State 
Party to facilitate and accept the return of smuggled migrants 
who are its nationals or permanent residents at the time of 
return. The Protocol is the first binding international 
instrument to codify this customary international law 
principle. Paragraph 2 calls on a State Party to consider 
accepting the return of smuggled migrants who were permanent 
residents at the time they entered the receiving State. Thus 
paragraph 1 deals with cases where a person is a national or 
has the right of permanent residence at the time of return. 
Paragraph 2 is supplementary to paragraph 1 and deals with the 
case of a person who had the right of permanent residence at 
the time of entry, but no longer has it at the time of return. 
The remainder of the Article deals with means of facilitating 
and implementing the return of smuggled migrants. Some 
countries refuse to acknowledge that a person is their national 
or permanent resident, or refuse to issue necessary travel 
documents to enable the smuggled migrant's return. This Article 
requires States Parties to do both. It also requires States 
Parties to carry out returns in an 7s orderly manner with due 
regard for the safety and dignity of the person. This Article 
does not affect any rights afforded to smuggled migrants by the 
law of the receiving State Party (e.g., the right to seek 
asylum); nor does it affect obligations entered into any other 
applicable agreement or arrangement governing the return of 
smuggled migrants.

IV. Final provisions

    Article 19 (``Saving clause'') is extremely important in 
setting appropriate balance in the Protocol between law 
enforcement and protection of victims. It reaffirms that the 
Protocol does not affect rights, obligations, and 
responsibilities of States and individuals under international 
law, in particular international humanitarian law as well as 
the 1951 Convention and the 1967 Protocol relating to the 
Status of Refugees and the principle of non-refoulement as 
contained therein. (The negotiating record explicitly states 
that the Protocol does not deal one way or the other with the 
status of refugees.) Moreover, this Article provides that the 
Protocol must be interpreted and applied in a way that does not 
discriminate against persons on the ground that they were 
smuggled and that the Protocol shall be applied in a manner 
consistent with internationally recognized principles ofnon-
discrimination (e.g., no discrimination on the basis of race, religion, 
nationality, membership in a particular social group or political 
opinion).
    Article 20 (``Settlement of disputes'') and Article 21 
(``Signature, ratification, acceptance, approval and 
accession''), are identical to the analogous provisions 
(Articles 35 and 36) of the Convention, except that the word 
``Protocol'' is substituted for ``Convention.'' As in the 
Convention and the Trafficking Protocol, and as contemplated in 
paragraph 3 of Article 20, I recommend that the following 
reservation with respect to paragraph 2 (which would otherwise 
require the United States to submit to binding arbitration of 
disputes) be included in the U.S. instrument of ratification:

          In accordance with Article 20, paragraph 3, the 
        Government of the United States of America declares 
        that it does not consider itself bound by the 
        obligation set forth in Article 20, paragraph 2.

    Article 22 (``Entry into force'') is identical to Article 
38 of the Convention, except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 22 provides 
that the Protocol shall not enter into force before the entry 
into force of the Convention.
    Article 23 (``Amendment'') is identical to Article 39 of 
the Convention, except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 23 provides 
that the States Parties to the Protocol meeting at the 
Conference of the Parties (rather than the entire Conference of 
the Parties) approve any amendment to the Protocol. This change 
was necessary so that decisions regarding amendment to the 
Migrant Smuggling Protocol would be made only by States Parties 
to the Protocol, and not by parties to the Convention who were 
not also parties to the Protocol.
    Article 24 (``Denunciation'') is identical to Article 40 of 
the Convention except that (1) the word ``Protocol'' is 
substituted for ``Convention''; and (2) Article 24 does not 
contain the final paragraph of Article 40 (which states that a 
State Party that denounces the Convention must denounce any 
Protocols that that State is a Party to as well).
    Article 25 (``Depositary and languages'') is identical to 
Article 41 of the Convention except that the word ``Protocol'' 
is substituted for ``Convention.''
    Finally, the terms of the Protocol, with the suggested 
reservations and understandings, are consonant with U.S. law. 
To clarify that the provisions of the Protocol, with the 
exceptions of those implemented through Articles 16 and 18 of 
the Convention, are not self-executing, I recommend that the 
Senate include the following declaration in its resolution of 
advice and consent:

          The United States declares that the provisions of the 
        Protocol (with the exception of those implemented 
        through Articles 16 and 18 of the Convention) are non-
        self-executing.

Article 16 and Article 18 of the Convention (which are 
applicable to the Protocol by virtue of Article 1 thereof) 
contain detailed provisions on extradition and legal assistance 
that would be considered self-executing in the context of 
normal bilateral extradition practice. It is therefore 
appropriate to except those provisions from the general 
understanding that the provisions of the Convention are non-
self-executing.

    It is my belief that the Convention and the Trafficking and 
Migrant Smuggling Protocols would be advantageous to the United 
States and, subject to the reservations and understandings 
proposed in this Report, would be consistent with existing U.S. 
legislation. The Department of Justice joins me in recommending 
that the Convention and the Protocols be transmitted to the 
Senate at an early date forits advice and consent to 
ratification, subject to the reservations and understanding described 
above.
    Respectfully submitted,
                                                   Colin L. Powell.


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