[Senate Treaty Document 109-6]
[From the U.S. Government Publishing Office]
109th Congress Treaty Doc.
SENATE
1st Session 109-6
_______________________________________________________________________
U.N. CONVENTION AGAINST CORRUPTION
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
UNITED NATIONS CONVENTION AGAINST CORRUPTION (THE ``CORRUPTION
CONVENTION''), WHICH WAS ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY
ON OCTOBER 31, 2003
October 27, 2005.--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, October 27, 2005.
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 Corruption (the ``Corruption Convention''),
which was adopted by the United Nations General Assembly on
October 31, 2003. I also transmit, for the information of the
Senate, the report of the Secretary of State with respect to
the Corruption Convention, with an enclosure.
The international fight against corruption is an important
foreign policy priority for the United States. Corruption
hinders sustainable development, erodes confidence in
democratic institutions, and facilitates transnational crime
and terrorism. The Convention will be an effective tool to
assist in the growing global effort to combat corruption.
The U.N. Corruption Convention is the first global
multilateral treaty to comprehensively address the problems
relating to corruption. It provides for a broad range of
cooperation, including extradition and mutual legal assistance,
and commits governments to take measures that will prevent
corruption from happening in the first place. The Corruption
Convention includes provisions to criminalize and prevent
corruption and provides procedures for governments to recover
assets that have been illicitly acquired by corrupt officials.
The provisions of the Corruption Convention are explained
in the accompanying report of the Department of State. The
report also sets forth proposed reservations that would be
deposited by the United States with its instrument of
ratification. With these reservations, the Convention will not
require implementing and consent to its ratification, subject
to the reservations, understandings, and declarations described
in the accompanying report of the Department of State.
I recommend that the Senate give early and favorable
consideration to the Corruption Convention and give its advice
and consent to its ratification, subject to the reservations,
understandings, and declarations described in the accompanying
report of the Department of State.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, September 23, 2005.
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 (``UN'') Convention Against
Corruption (the ``Corruption Convention'' or the
``Convention''), which was adopted by the UN General Assembly
on October 31, 2003. On December 9, 2003, the United States,
which actively participated in the negotiations hosted by the
UN Office on Drugs and Crime in Vienna, signed the Convention
at Merida, Mexico. I recommend that the Convention be
transmitted to the Senate for its advice and consent to
ratification.
Accompanying the Convention 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 August 30, 2005, 126 countries have signed the
Convention and 29 countries have become States Parties. The
Convention, once ratified by thirty countries, will enter into
force among those countries on the ninetieth day after the date
of deposit of the thirtieth instrument of ratification,
acceptance, approval or accession. For each country that
ratifies, accepts, approves, or accedes to the treaty after the
deposit of the thirtieth instrument, the Convention will enter
into force on the thirtieth day after the date of deposit of
that country's instrument of ratification.
The Corruption Convention is the first multilateral treaty
to comprehensively address, on a global basis, the problems
relating to corruption. It expands the obligations contained in
Articles 8 and 9 of the UN Convention Against Transnational
Organized Crime, which relate to corruption, and complements
existing regional anti-corruption instruments by expanding
provisions to criminalize and prevent corruption and by
providing procedures for governments to recover assets that
have been illicitly acquired by corrupt officials. It also
reflects and builds upon many of the provisions set forth in
the Organization for Economic Co-operation and Development's
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions. The Corruption Convention
establishes a treaty-based regime of obligations to provide
mutual legal assistance that is analogous to those contained in
other law enforcement treaties to which the United States is a
party. The Convention thus would enhance the ability of the
United States to render and receive assistance on a global
basis in the common struggle to prevent, investigate, and
prosecute certain acts of corruption and in efforts to recover
illicitly obtained assets.
A detailed, article-by-article analysis of the Convention
is attached to this report. Included in that analysis are two
reservations, an understanding, declarations that the Senate is
being asked to include in its resolution of advice and consent.
As further discussed in the analysis attached to this report,
if the United States makes the proposed reservations, the
existing body of federal and state law and regulations will be
adequate to satisfy the Convention's requirements for
legislation, and, thus, further legislation will not be
required for the United States to implement the Convention.
It is my belief that the Convention would be advantageous
to the United States and, subject to the proposed reservations,
would be consistent with existing U.S. legislation. The
Departments of Justice, Commerce, and Treasury join me in
recommending that the Convention be transmitted to the Senate
at an early date for its advice and consent to ratification,
subject to the reservations, understanding, and declarations
that are described fully in the attached analysis.
Respectfully submitted.
Condoleezza Rice.
Attachments:
1. Detailed analysis of the provisions of the Convention
2. Travaux preparatoires
DETAILED ANALYSIS OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION
AGAINST CORRUPTION
The following is a detailed analysis of the provisions of
the United Nations Convention Against Corruption, which
consists of seventy-one articles divided among eight chapters:
(1) ``General provisions''; (2) ``Preventive measures''; (3)
``Criminalization and law enforcement''; (4) ``International
co-operation''; (5) ``Asset recovery''; (6) ``Technical
assistance and information exchange''; (7) ``Mechanisms for
implementation''; and (8) ``Final provisions.'' In addition,
the following discussion contains, where relevant, a
description of two proposed reservations, a proposed
understanding, and two proposed declarations.
Chapter I--General Provisions (Articles 1-4)
Article 1 (``Statement of Purpose'') states that the
purposes of the Convention are to promote and strengthen
measures to prevent and combat corruption; facilitate
international cooperation and technical assistance in the
prevention of and fight against corruption; and promote
integrity, accountability, and the proper management of public
affairs and public property. Article 2 (``Use of terms'')
defines nine terms used in the Convention. In particular, the
defined terms ``public official'' and ``foreign public
official'' are crucial to understanding the scope of the
Convention, since both the preventive measures and
criminalization chapters of the Convention use these terms in
describing the type of government position toward which a State
Party must direct certain measures.
The Convention's definition of ``public official'' gives
significant deference to a State Party's domestic law and
practice in determining which group of persons must be covered
by certain preventive measures and criminalization provisions.
A ``public official'' is, for purposes of most of the
Convention, defined as any one of three categories of persons:
(1) a person holding a legislative, executive, administrative,
or judicial office of the State Party concerned; (2) any other
person who performs a public function or provides a public
service, as defined by and applied in the domestic law of the
State Party; and (3) any other person defined as a ``public
official'' in the domestic law of such State Party. However,
for purposes of ``some specific measures'' in the chapter on
prevention of the Convention, a State Party may define ``public
official'' as any person who performs a public function or
provides a public service, as that term is defined and applied
under the law of that State Party. In addition to these
references to a State Party's law, the interpretative notes
make clear that each State Party shall determine which persons
are members of the three categories set forth in the first part
of the definition. Furthermore, the travaux preparatoires
indicate that for countries with subnational units of a self-
governing nature, it is up to the State Party whether the term
``office'' is considered to apply to positions at the
subnational level. Accordingly, there is significant discretion
for federal states such as the United States in applying the
term ``public official.''
A ``foreign public official'' is defined as any person
holding a legislative, executive, administrative, or judicial
office of a foreign country, whether appointed or elected, and
any person exercising a public function for a foreign country.
This definition, which is important for the provision in the
Convention that requires each State Party to criminalize
bribery of foreign public officials, provides clear guidance to
each State Party as to which kind of foreign officials must be
covered by that criminal law.
Article 3 (``Scope of application'') elaborates the ambit
of the Convention. In general, the Convention applies to the
prevention, investigation, and prosecution of corrupt acts and
to the freezing, seizure, confiscation, and return of proceeds
of offenses established in accordance with the Convention.
One issue that arises throughout the Convention is the
question of how it can be implemented consistent with the
United States' federal system. With respect to the articles of
the Convention that require States Parties to establish
criminal offenses or related measures if they have not already
done so (in particular Articles 15, 16, 17, 23, 25, 27, 29, 31-
32, 35-37), it should be noted preliminarily that these
obligations apply at the national level. 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 in the form set forth by the Convention. (For example,
some states may not criminalize all of the forms of conduct set
forth under Article 25 (``Obstruction of justice'').) Thus, in
the absence of a reservation, there would be a narrow category
of such conduct that the United States would be obligated under
the Convention to criminalize, although under our federal
system such obligations would generally be met by state
governments rather than the federal government.
The obligations set forth in the Convention in the area of
preventive measures are generally more flexible than those
found in the chapter on criminalization. Nevertheless, it
should be noted that preventive measures addressing the conduct
of state and local officials are generally handled at the state
and local level. While the states generally regulate their own
affairs in a manner consistent with the obligations set forth
in the chapter on preventive measures in the Convention, in
some cases they may do so in a different manner. Therefore, in
the absence of a reservation, there may be some preventive
measures the United States would be required to implement under
the Convention that are not fully addressed at the state level,
for example potentially under Articles 6, 9, 12, and 13. In
order to avoid such obligations in the criminalization and
preventive measures areas, the following reservation is
recommended to be included in the Senate's resolution of advice
and consent:
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 an important
component of the legal regime within the United States
for combating corruption and is broadly effective for
this purpose. Federal criminal law does not apply where
such criminal conduct does not so involve interstate or
foreign commerce, or another federal interest. There
are conceivable situations involving 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. Similarly, in the U.S.
system, the states are responsible for preventive
measures governing their own officials. While the
states generally regulate their own affairs in a manner
consistent with the obligations set forth in the
chapter on preventive measures in the Convention, in
some cases they may do so in a different manner.
Accordingly, there may be situations where state and
federal law will not be entirely adequate to satisfy an
obligation in Chapters II and III of the Convention.
The Government of the United States of America
therefore reserves to the obligations set forth in the
Convention to the extent they (1) address conduct that
would fall within this narrow category of highly
localized activity or (2) involve preventive measures
not covered by federal law governing state and local
officials. This reservation does not affect in any
respect the ability of the United States to provide
international cooperation to other States Parties in
accordance with the provisions of the Convention.
Furthermore, in connection with this reservation, it is
recommended 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 4 (``Protection of sovereignty'') sets forth two
standard provisions in UN instruments, stating that States
Parties respect each other's sovereign equality and territorial
integrity and providing that the Convention does not authorize
a State Party to undertake in another State's territory the
exercise of jurisdiction and performance of functions reserved
for the authorities of that other State by its domestic law.
Chapter II--Preventive measures (Articles 5-14)
Chapter II contains a set of measures against corruption--
other than criminalization--that States Parties are to take to
minimize the opportunity for corrupt acts to occur in the first
place. Many of the articles in the chapter expressly provide
that such measures are to be undertaken in accordance with the
fundamental legal principles of each State Party's legal
system. Most measures are directed toward corruption in the
public sector, although the chapter also contains provisions to
prevent corruption in the private sector and to promote the
participation of civil society in the fight against corruption.
Many of the obligations set forth in these articles include
possible examples of ways in which a State Party might
implement those obligations, although the specifics of such
measures are left to the individual State Party.
As noted above it is recommended that the United States
take a reservation to the obligations of this chapter to enable
its implementation consistent with our federal system. With
this reservation, the United States can implement the
obligations of this chapter under existing law.
Each State Party is required under Article 5 (``Preventive
anti-corruption policies and practices'') to develop and
implement or maintain effective and coordinated anti-corruption
policies that promote goals such as transparency and
accountability. Each State Party also must endeavor to review
periodically its relevant legal instruments and administrative
measures to determine whether they remain adequate to combat
corruption, and is required, as appropriate, to collaborate
with other States Parties and with relevant international and
regional organizations to develop and promote measures to
prevent corruption.
Article 6 (``Preventive anti-corruption body or bodies'')
requires that each State Party establish or maintain one or
more independent, adequately staffed bodies to prevent
corruption. Such body might, among other objectives, be tasked
to implement the anti-corruption policies required by Article
5, or to increase and disseminate knowledge about the
prevention of corruption. Each State Party is to inform the UN
Secretary-General of the name and address of the authority that
may assist other States Parties in developing preventive
measures. For the United States, these authorities are the
Department of Justice, Office of Justice Programs, National
Institute of Justice and the Department of State, Bureau of
International Narcotics and Law Enforcement Affairs,
Anticorruption Unit, and the United States would so notify the
depositary.
States Parties must endeavor, under Article 7 (``Public
sector'') i where appropriate, to adopt, maintain, and
strengthen systems for the recruitment, hiring, retention,
promotion, and retirement of civil servants and, where
appropriate, other non-elected public officials. Such systems
should be based on transparent and objective principles, such
as merit, include adequate procedures for the selection and
training for positions considered particularly vulnerable to
corruption, promote adequate and equitable remuneration, and
promote education and training. Each State Party also shall
consider whether to prescribe criteria concerning the
candidature for and election to public office, and whether to
enhance transparency in the funding of candidatures for public
office and of political parties. The Convention does not
require that such steps be taken.
Article 8 (``Codes of conduct for public officials'')
obliges States Parties to promote honesty and responsibility
among its public officials.
Specifically, each State Party must endeavor to apply a
code or standard of conduct to its public officials and, where
appropriate, require public officials to declare to appropriate
authorities their outside activities, employment, and
investments. Each State Party must also consider establishing
systems to facilitate reporting by public officials of acts of
corruption and the taking of measures against public officials
who violate codes or standards of conduct.
Article 9 (``Public procurement and management of public
finances'') requires each State Party to establish transparent
and fair government procurement systems based on competition
and objective criteria for decision-making, and provides a
general description as to the types of issues such systems
shall address, such as the publication in advance of conditions
for participation in procurements. It also requires each State
Party to take appropriate measures to promote accountability
and transparency in the management of public finances, and
provides a general description as to the types of issues such
measures should address, such as timely reporting on revenue
and expenditures.
Under Article 10 (``Public reporting'') each State Party
shall take measures to enhance transparency in its public
administration. The article provides examples of such measures,
which could include procedures and reports that allow public
access to information.
Article 11 (``Measures relating to the judiciary and
prosecution services'') focuses on preventing corruption in the
judiciary. With due regard for judicial independence, each
State Party shall take measures to strengthen integrity and
prevent opportunities for corruption among judges.
Article 12 (``Private sector'') requires each State Party
to take measures to prevent corruption and enhance accounting
and auditing standards in the private sector, and it sets forth
a list of possible measures to achieve these ends. Notably,
States Parties are required to take measures to prohibit acts
such as the establishment of off-the-books accounts and the
recording of non-existent expenditures that are done for the
purpose of committing any of the offenses established in
accordance with the Convention. In addition, States Parties are
required to disallow the tax deductibility of bribes.
Because civil society plays an important role in drawing
attention to and fighting corruption, Article 13
(``Participation of society'') of the Convention requires each
State Party to take appropriate measures to promote the active
participation of individuals and groups outside the public
sector in the prevention of and fight against corruption. The
article provides general examples of how States Parties should
strengthen the participation of civil society, including
promoting the contribution of the public to decision-making and
ensuring the public has effective access to information. Each
State Party must ensure that the relevant anti-corruption
bodies referred to in Article 5 shall, where appropriate, be
available to receive reports of incidents that may be
considered to constitute offenses established in accordance
with the Convention.
Article 14 (``Measures to prevent 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, customer due diligence (``know your
customer''), and suspicious transaction reporting requirements,
and must consider the establishment of financial intelligence
units. This article closely follows the text of Article 7 of
the UN Convention Against Transnational Organized Crime,
although it contains some modifications. Principal updates in
Article 14 include: clear extension of anti-money-laundering
reporting obligations to alternative remittance systems; a
requirement to identify beneficial owners when appropriate; and
a requirement that countries consider establishing wire
originator information requirements. Like the Transnational
Organized Crime Convention, Article 14 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. The travaux preparatoires articulate
that references to ``relevant initiatives of regional,
interregional and multilateral organizations'' include
references to the recent revisions of the Financial Action Task
Force's Forty Recommendations and Eight Special
Recommendations.
Chapter III--Criminalization and law enforcement (Articles 15-42)
Chapter III contains three types of provisions: substantive
provisions under which a State Party must criminalize certain
acts; provisions under which a State Party must merely consider
criminalizing certain acts; and provisions related to
participation, attempt, and procedural issues such as
jurisdiction and statutes of limitations.
As noted above, it is recommended that the United States
take a reservation to the obligations of this chapter to enable
its implementation consistent with the current distribution of
criminal jurisdiction under our federal system. With this
reservation and given the fact that a number of provisions of
this chapter that might have given rise to gaps are non-
obligatory (e.g., portions of Articles 16, 27, 30-32, 37, and
39; as well as the entirety of Articles 18-22, 24, 33, and 41)
the United States can implement the obligations of this chapter
under existing federal and state law.
Article 15 (``Bribery of national public officials'') is
the first of five articles that require States Parties to adopt
criminal legislation regarding specified offenses. This article
requires a State Party to criminalize, when committed
intentionally, the promise, offering or giving of bribes to or
the solicitation or acceptance of bribes by its domestic public
officials.
Another criminalization obligation follows in Article 16,
which requires States Parties to criminalize, when committed
intentionally, the promise, offering or giving of bribes to
foreign public officials or officials of a public international
organization in order to obtain or retain business or other
undue advantage in relation to the conduct of international
business. It also requires States Parties to consider
criminalizing the solicitation or acceptance of bribes by
foreign public officials.
Embezzlement is the subject of Article 17 (``Embezzlement,
misappropriation or other diversion of property by a public
official''). This article requires each State Party to
criminalize, when committed intentionally, the embezzlement by
a public official of any property entrusted to him or her. by
virtue of his or her position.
In Article 18 (``Trading in influence''), States Parties
are to consider whether to criminalize the provision of an
undue advantage to or acceptance by a third party to induce
that person to use his or her real or supposed influence to
obtain, from a public authority of the State Party, an undue
advantage for the original instigator of the act.
Similarly, Article 19 (``Abuse of functions'') requires a
State Party to consider criminalizing a public official's abuse
of his or her function in order to obtain an undue advantage
for himself or herself or for another person.
Article 20 (``Illicit enrichment'') was included at the
insistence of a number of the developing nations. The article
requires States Parties to consider establishing the offense
known as ``illicit enrichment,'' which is defined as a
significant increase in the assets of a public official that
such official cannot reasonably explain in relation to his or
her lawful income. Such an offense could require a defendant to
bear the burden of establishing the legitimate source of the
income in question. This article is not obligatory.
Article 21 (``Bribery in the private sector'') is another
article under which a State Party must consider whether to
criminalize the behavior described therein. It addresses the
bribing of or the receipt of a bribe by any person, when
committed in the course of economic or business activity, in
order that the person act or refrain from acting in breach of
his or her duties.
Another discretionary criminalization provision is
contained in Article 22 (``Embezzlement of property in the
private sector''). Under this article, each State Party shall
consider criminalizing embezzlement by a person who works in
the private sector, in the course of economic or commercial
activities, of property entrusted to him or her by virtue of
his or her position.
Article 23 (``Laundering of proceeds of crime'') contains
the fourth affirmative criminalization obligation. This
provision mandates the adoption of criminal law provisions, in
accordance with the fundamental principles of a State Party's
domestic law, punishing the conversion, transfer, concealment,
or disguise of property with knowledge that it is the proceeds
of crime. In more discretionary language, the article requires
that, subject to the basic concepts of its legal system, a
State Party 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 a
comprehensive range of criminal offenses established in
accordance with the Convention. 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 its
laws. Article 23, which tracks in large part Article 6 of the
UN Convention Against Transnational Organized Crime, is of
critical importance to global anti-money-laundering efforts
because it imposes an international obligation on States
Parties to expand the reach of their laundering laws to
predicate offenses associated with corruption. References to
the use of circumstantial evidence that are present in Article
6 of the Transnational Organized Crime Convention, were not
repeated in Article 14, due to the inclusion of a broader
article on the use of such evidence in Article 28.
Article 24 (``Concealment'') states that each State Party
shall consider criminalizing, when committed intentionally
after the commission of any of the offenses established in
accordance with the Convention, the concealment or continued
retention of property by a person who knows that such property
is the result of such offenses.
The fifth and final criminalization obligation established
by the Convention--obstruction of justice in criminal
proceedings related to offenses established in accordance with
the Convention--appears in Article 25 (``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.
Article 26 (``Liability of legal persons'') compels States
Parties to fill what historically has been a loophole in the
ability of many States to combat corruption: 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 the offenses
established in accordance with the Convention. Such corporate
liability is without prejudice to the criminal liability of the
natural persons who committed the offenses.
Article 27 (``Participation and attempt'') provides that
participating in any capacity in an offense established in
accordance with the Convention shall be made criminal. States
Parties also may decide to criminalize the attempt to commit or
the preparation to commit such an offense.
Article 28 (``Knowledge, intent and purpose as elements of
an offense'') recognizes that knowledge, intent, or purpose,
when a requisite element of a crime, may be inferred from
objective factual circumstances.
Under Article 29 (``Statute of limitations''), each State
Party shall, where appropriate, establish a long statute of
limitations period in which to commence proceedings for an
offense established in accordance with this Convention, and
provide for a longer statute of limitations (or its suspension)
where the accused has evaded the administration of justice.
During the negotiations, the United States described its
statutes of limitations and indicated that it considered those
statutes of limitations to be sufficiently long as to meet any
obligations under this article. The U.S. statement met with no
objection from other States.
Article 30 (``Prosecution, adjudication and sanctions'')
identifies a series of important considerations for States
Parties in pursuing prosecutions relating to offenses
established in accordance with the Convention. They range from
ensuring that criminal law sanctions are sufficiently serious
to minimizing defendants' risk of flight. In addition, Article
30(2) requires each State Party to establish or maintain, in
accordance with its legal system and constitutional principles,
an appropriate balance between any immunities it affords to its
public officials and the ability to prosecute offenses
established in accordance with this Convention. Article 30(9)
makes clear, however, that nothing in the Convention shall
affect the principle that the description of the offenses
established in accordance with the Convention and of the
applicable legal defenses or other legal principles controlling
the lawfulness of conduct is reserved to the domestic law of a
State Party.
The freezing, seizing, and confiscation of proceeds of
crime are the subject of Article 31 (``Freezing, seizure and
confiscation''). The article 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 detained for use in,
offenses established in accordance with the Convention. Each
State Party's courts or other competent authorities shall be
empowered to order that bank and other records may be made
available to enable confiscation proceedings to go forward, and
bank secrecy may not be invoked in this context.
Article 32 (``Protection of witnesses, experts and
victims'') reflects a concern that those accused of corruption
not undermine judicial processes. This provision obligates
States Parties to take appropriate measures within their means
to protect witnesses, experts, and victims (to the extent that
they are witnesses) and, as appropriate, their relatives and
other persons close to them, from retaliation or intimidation
when they testify in criminal cases related to the offenses
established in accordance with the Convention. 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. The article also requires a State Party,
subject to its domestic law and in a manner not prejudicial to
the rights of the defense, to enable victims' views to be
considered during criminal proceedings. Many provisions of this
article permit the exercise of discretion in particular cases,
while others are either non-obligatory or are already
consistent with or subject to U.S. state and federal laws;
therefore, the article can be implemented by the United States
under current statutes and regulations.
A State Party must consider, under Article 33 (``Protection
of reporting persons''), incorporating into its domestic law
protection against unjustified treatment for persons reporting
in good faith and on reasonable grounds to the competent
authorities any facts concerning offenses established in
accordance with this Convention.
Article 34 (``Consequences of acts of corruption'')
requires that each State Party take measures, in accordance
with fundamental principles of its domestic law, to address the
consequences of corruption. The article contains no
specifically mandated implementation measures.
Article 35 (``Compensation for damage'') is intended to
establish the principle that States Parties should ensure that
they have mechanisms permitting persons or entities suffering
damage to initiate legal proceedings. It requires a State Party
to take such measures as may be necessary to ensure that
entities or persons who have suffered damage as a result of an
act of corruption may initiate legal proceedings against those
responsible for such damage in order to obtain compensation.
Some States, including the United States, were concerned that
this article could be read to require or encourage a State to
open its courts to civil suits unrelated or only tangentially
related to that State, and for acts only marginally related to
the act of corruption. In response to these concerns, the
travaux preparatoires clarify that Article 35 was intended to
address only legal proceedings against those who commit acts of
corruption, rather than those who may be associated with others
who commit acts of corruption. The article intentionally
provides the States Parties significant flexibility in its
implementation. The article does not restrict the right of a
State Party to decide the precise circumstances under which it
will make its courts available, nor does it require or endorse
a particular choice made by a State Party in determining how it
will meet its obligations under this article.
Article 35 would not have any direct effect on the
potential exposure of U.S. companies or others in private
litigation in the United States. The current laws and practices
of the United States are in compliance with Article 35, and the
United States does not construe Article 35 to require
broadening or enhancing current U.S. law and practice in any
way. U.S. jurisprudence permits persons who have suffered from
criminal acts such as bribery to seek damages from the
offenders under various theories. These remedies are sufficient
to comply with this article. It should be noted that nothing in
this article should be interpreted as requiring the United
States to create a private right of action under the Foreign
Corrupt Practices Act or as expanding the scope of the Alien
Tort Statute to permit foreigners to litigate corruption claims
in U.S. courts. The Convention does not itself suggest that
corruption is a stand-alone violation of international law (but
rather is something that States Parties should prohibit under
their domestic law. Accordingly, this Convention does not
signify that corruption is a norm that is specific, universal,
and obligatory for purposes of the Alien Tort Statute. To avoid
any potential confusion over these issues (it is recommended
below that the Senate include a declaration in its resolution
of advice and consent that makes clear that the provisions of
the Convention (with the exception of Articles 44 and 46) are
non-self-executing. None of the provisions of the Convention
creates a private right of action.
Article 36 (``Specialized authorities'') complements
Article 6 in requiring a State Party to ensure the existence of
at least one body that is specialized in combating corruption
through law enforcement. The travaux preparatoires acknowledge
that this body may be the same body that a State Party
establishes to comply with Article 6.
Pursuant to Article 37 (``Cooperation with law enforcement
authorities''), a State Party must take appropriate measures to
encourage participants in offenses established in accordance
with this Convention 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 will consider arrangements with one another to
apply these inducements to persons located in one State Party
who can assist an investigation into such offenses in another.
The importance of cooperation between different elements of
a State Party's domestic system is highlighted by Article 38
(``Cooperation between national authorities''). A State Party
must encourage cooperation between its public authorities and
the authorities in that State Party that investigate and
prosecute criminal offenses. Similarly, under Article 39
(``Cooperation between national authorities and the private
sector''), a State Party shall take the necessary measures to
encourage cooperation between national investigating and
prosecuting authorities and private sector entities on matters
relating to the commission of offenses established in
accordance with the Convention, and to consider encouraging its
nationals and others who habitually reside in its territory to
report to those authorities regarding the commission of such
offenses.
Article 40 (``Bank secrecy'') supplements Article 31's
treatment of bank secrecy in the freezing and confiscation
context by more broadly requiring each State Party to ensure
that its domestic law contains appropriate mechanisms to avoid,
in domestic criminal prosecutions, obstacles that may arise out
of bank secrecy laws.
Article 41 (``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 offenses established in accordance with
this Convention.
Article 42 (``Jurisdiction'') lays out the jurisdictional
principles governing the Convention's mandatory criminalization
provisions generally. A State Party must establish jurisdiction
in respect of offenses established in accordance with 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
offenses--bribery of national public officials, bribery of
foreign public officials and officials of public international
organizations, embezzlement, money laundering, obstruction of
justice, and participation--although certain cases can be
pursued on other jurisdictional bases. For example, in most
situations involving bribery of U.S. public officials,
misappropriation of government property, or obstruction of U.S.
investigations or proceedings, 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, Sections 1512(h), 1956(f),
1957(d)), or, most frequently, 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 our territory on such vessels or aircraft, a
reservation will be required for those cases in which such
jurisdiction is not available. Accordingly, it is recommended
that the following reservation be included in the Senate's
resolution of advice and consent:
The Government of the United States of America
reserves the right not to apply in part the obligation
set forth in Article 42, paragraph 1(b) with respect to
the offenses established in accordance with 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 many 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 the five offenses when committed against one
of its nationals, by one of its nationals or residents, or
against the State Party itself. (Nationality and passive
personality jurisdiction is limited under U.S. law, but is
common in European countries and other civil law
jurisdictions.) Permissive jurisdiction is further envisioned
over the offense of money laundering, as defined in the
Convention, where it is committed outside a State Party's
territory with a view to the commission of certain offenses
within its territory.
Article 42 requires a State Party 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 States
Parties that do not extradite their nationals take steps to
ensure that participants in offenses related to corruption face
justice there even for crimes committed abroad.
Chapter IV--International cooperation (Articles 43-50)
Article 43 (``International cooperation'') provides an
overview, forecasting the requirements in other articles of
this chapter that States Parties cooperate in criminal matters,
and articulating that States Parties shall consider whether to
cooperate, where appropriate, with each other in civil and
administrative matters relating to corruption. The article also
clarifies how the issue of dual criminality, which arises in
the context of extradition and mutual legal assistance, is to
be analyzed.
Article 44 (``Extradition'') elaborates a regime for
extradition of persons for offenses established in accordance
with this Convention, as long as the offense is criminal under
the laws of the requesting and the requested States Parties.
The article provides that States Parties may make extradition
conditional on a bilateral extradition treaty. Pursuant to this
provision, for the United States, the Convention will 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 44(6) to so notify the UN Secretary-General.
Accordingly, upon ratification of the Convention, the United
States would notify the depositary that pursuant to Article
44(6) it will not apply Article 44, paragraph 5.
For the United States, the principal legal effect of this
article would be to deem the offenses established in accordance
with the Convention (i.e., the mandatory offenses) to be
extraditable offenses under U.S. bilateral extradition
treaties. The result would be to expand the scope of older U.S.
bilateral extradition treaties that list extraditable offenses
and were concluded at a time when offenses such as money
laundering did not yet exist.
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 44(11) requires a State Party that does not
extradite its nationals, if requested by another State Party
seeking extradition of such a national for offenses established
in accordance with 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 42 relates.) A State Party may satisfy this obligation
instead by temporarily surrendering its national for trial in
the State Party that sought extradition, on the condition that
he or she be returned to serve the resulting sentence.
Article 44 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 45 (``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 established in accordance with
the Convention, in order that they may complete their prison
sentences in their countries of nationality.
Pursuant to Article 46 (``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
covered by this Convention. Pursuant to paragraph 6 of Article
46, 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 will
be true 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
corruption-related cases involving States Parties with which we
lack an applicable bilateral or regional agreement.
Consequently, Article 46, in particular paragraphs 9-29,
provides a framework for mutual legal assistance to States
Parties with which a State Party does not have a separate
mutual legal assistance treaty obligation that is of a nature
comparable to such U.S. bilateral and multilateral MLATs. This
article identifies the range of purposes for which mutual
assistance may be requested and 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 voluntarily for purposes of
providing evidence in another State Party as well.
Under paragraph 9 of Article 46, States Parties may
(although they are encouraged not to) decline to render mutual
legal assistance in certain cases on the ground of an absence
of dual criminality. Where a request involves coercive action,
matters of a de minimis nature, or matters for which the
cooperation sought is available under other provisions of the
Convention (such as law enforcement cooperation pursuant to
Article 48), States Parties may decline to render assistance in
the absence of dual criminality. However, where a request
involves non-coercive action, States Parties are to provide
mutual legal assistance unless inconsistent with the basic
concepts of its legal system. Thus, in addition to the
fundamental grounds for refusal set forth in other paragraphs,
the United States could decline a request for non-coercive
action where the offense is fundamentally at odds with U.S.
notions of due process, presumption of innocence, or other
basic tenets of U.S. jurisprudence.
As previously noted, Article 46 establishes certain modern
procedures for mutual legal assistance that apply in the
absence 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 46(13) to notify the UN Secretary-General of its
designated Central Authority. Accordingly, upon ratification of
the Convention, the United States would notify the depositary
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 46, paragraph 14, a State Party must specify
the language in which mutual assistance requests to it shall be
made. Accordingly, upon ratification of the Convention, the
United States would notify the depositary 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 46, paragraph 18, encourages the use
of video-conferencing 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 (see paragraph 19). In additional 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 (see paragraph 20).
Article 46, paragraph 21, 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.
Article 46, paragraphs 8 and 22 provide, respectively, that
assistance may not be refused on the ground of bank secrecy, or
on the sole ground that the offense involves a fiscal matter.
Moreover, if a request could be refused on any of the general
grounds for refusal set forth in paragraph 21 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 those conditions.
Finally, Article 46 addresses several other aspects of
mutual assistance that are relevant in the absence of another
MLAT in force between the States Parties concerned. It sets
forth a procedure for providing safe conduct guarantees to a
person who travels to a requesting State Party in order to give
evidence (see paragraph 27). Ordinary costs of executing mutual
assistance 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 (see paragraph 28).
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, a requesting State
Party's access to them lies in the discretion of the requested
State Party (see paragraph 29).
The possibility of transferring criminal proceedings
between States Parties is envisioned in Article 47 (``Transfer
of criminal proceedings''). This article calls on States
Parties to consider the possibility of transferring criminal
proceedings, recognizing that transfer can be considered to be
efficient in cases where several jurisdictions are involved
with different aspects of acts related to corruption.
The importance of police-to-police cooperation, as distinct
from formal mutual legal assistance, is highlighted by Article
48 (``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 offenses covered
by the Convention. The proviso that cooperation shall be
conducted consistent with the respective domestic and
administrative systems provides the flexibility required to
enable the exercise of discretion in making determinations on
the appropriateness of a request for cooperation on a case-by-
case basic.
In order better to combat organized criminal activities
that span borders, Article 49 (``Joint investigations'')
encourages States Parties to reach agreements or arrangements,
either general or case-specific, to conduct joint
investigations. Article 50 (``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 Parties involved through general or case-specific
agreements or arrangements.
Chapter V--Asset Recovery (Articles 51-59)
Article 51 states the general principle that States Parties
should cooperate in asset recovery cases.
Article 52 requires States Parties to take certain
preventive measures specifically focused on detection of
transactions or deposits involving corrupt public officials.
States Parties must require financial institutions to verify
the identity of customers, take reasonable steps to determine
the identity of beneficial owners of funds deposited into high-
value accounts, and to conduct enhanced scrutiny of accounts
held by individuals who are or have been in prominent public
positions. The travaux preparatoires make clear that these
requirements are to be implemented on a national basis with due
regard to particular risks of money laundering. For example,
some countries will apply the enhanced scrutiny standards to
foreign officials only, and other countries may wish to apply
these standards to domestic officials as well. The article
further requires adequate record keeping by financial
institutions and prohibits the establishment of banks with no
physical presence.
Paragraph 5 of this article requires States Parties to
consider taking such measures as may be necessary to establish
financial disclosure systems for public officials as well as
mechanisms for sharing information obtained through these
systems. Paragraph 6 requires States Parties to consider
establishing measures to require reporting by appropriate
public officials of foreign financial accounts.
Article 53 (``Measures for direct recovery of property'')
requires each State Party to have three basic methods for
allowing another country to make a direct claim, like any other
private litigant, on property located in its territory, where
that property is acquired through the commission of one of the
offenses that must be established by all States Parties in
accordance with Chapter III of the Convention. Such direct
recovery would take place without recourse to mutual legal
assistance procedures. First, States Parties must permit other
States Parties to initiate civil actions in their courts to
establish title or ownership of the property in question.
Second, States Parties must have a mechanism by which their
courts can order that another State Party be compensated or
paid damages, such as through court-ordered restitution
following a criminal conviction. Finally, States Parties are
required to have a mechanism in confiscation proceedings for
allowing the recognition of another State Party's claim as a
legitimate owner of the property.
Article 54 (``Mechanisms for recovery of property through
international cooperation in confiscation'') requires States
Parties to establish a legal framework to enable them to
provide assistance to other States Parties in the recovery of
assets acquired through the commission of one of the offenses
that must be criminalized by all States Parties in accordance
with Chapter III of the Convention. Specific mechanisms
required are (a) authority to give effect to foreign
confiscation judgments, and (b) domestic procedures to
confiscate property of foreign origin involved in offenses over
which it may have jurisdiction. States Parties are also
required to consider establishing mechanisms for confiscation
in the absence of a criminal conviction.
Paragraph 2 of Article 54 requires States Parties to have
certain mechanisms for freezing or seizing property, including
on the basis of a freezing or seizure order by another State
Party, or upon a request by another State Party that provides
sufficient grounds for taking such action. In addition, States
Parties are to consider establishing additional measures for
freezing or seizing property, for example, on the basis of a
foreign arrest or charge.
Article 55 (``International cooperation for purposes of
confiscation'') specifies how the mechanisms established
pursuant to Article 54 will be used in practice in asset
recovery cases involving the commission of one of the offenses
that must be criminalized. Paragraph 1 requires States Parties
receiving a request for assistance from another State Party to
use the mechanisms established pursuant to Articles 31 and 54
to seek either an order of confiscation or the execution of a
foreign judgment in connection with one of the mandatory
offenses under the Convention. Paragraph 2 requires that State
Parties utilize the freezing and seizure mechanisms established
in accordance with Articles 31 and 54 in response to a request
from another State Party.
Paragraph 3 specifies that the procedures to be used in
implementing this article are mutual legal assistance
procedures and that the provisions of Article 46 on mutual
legal assistance apply, including the exceptions to the
obligation to provide assistance. It also details the type of
information that must be provided by the requesting State Party
in its request for assistance. Paragraph 4 notes the continued
application of domestic law and other bilateral and
multilateral agreements. Paragraph 7 provides for important
additional safeguards by stating that assistance may be refused
if the requesting State Party does not provide sufficient and
timely evidence or if the value of the property in question is
of a de minimis value. Paragraph 8 requires that before
provisional measures are lifted, the requested State Party
should consult with the requesting State Party. Finally,
paragraph 9 says that nothing in the article should be
construed as prejudicing the rights of bona fide third parties.
Article 56 (``Special cooperation'') provides that States
Parties should endeavor to engage in spontaneous information
sharing with each other where such information sharing would
assist another party in an asset recovery case.
Article 57 (``Return and disposal of assets'') sets forth a
framework for the disposition of property confiscated by one
State Party at the request of another. Paragraph 1 makes clear
that disposition is to take place in accordance with domestic
law of the State Party executing the confiscation and the
provisions of the Convention, in particular Articles 31 and 55.
Paragraph 2 requires each State Party to have in place
mechanisms to permit, at the request of another State Party,
the return of confiscated property to rightful owners, taking
into account the rights of bona fide third parties.
Paragraph 3 describes how the mechanisms to be established
in accordance with paragraph 2 are to be used in specific kinds
of cases. This paragraph also makes clear that disposition of
property is handled using mutual legal assistance procedures
provided for in Articles 46 and 55. In other words, for
example, the exceptions to the obligation to provide mutual
legal assistance set forth in Article 46(21) apply to the
disposition of property as well.
Subject to these protections, paragraph 3(a) states that
where a State Party enforces a confiscation judgment of another
State Party involving public funds embezzled from the
requesting State Party, the requested State Party shall return
the property to the requesting State Party. The provision does
not specify whether international asset sharing, procedures to
compensate victims, or other mechanisms must be used to effect
such a return.
Paragraph 3(b) provides that, where the property involved
is the proceeds of an offense other than embezzlement of public
funds, the requested State Party shall return the property to
the requesting State Party where the requesting State Party
reasonably establishes its ownership of the property prior to
the offense or where the requested State Party, at its
discretion, recognizes damage to the requesting State Party as
a basis for return. Finally, paragraph 3(c) provides that in
all cases not covered by paragraphs 3(a) and 3(b), the
requested State Party will give priority consideration to
returning the property to the requesting State Party, returning
the property to prior legitimate owners, or compensating
victims of crime.
Paragraph 4 notes that the requested State Party may deduct
reasonable costs before disposition of the property. The
travaux preparatoires indicate these costs are intended to be
actual expenses rather than finders' fees or other unspecified
charges. Paragraph 5 provides for the possibility of case-by-
case bilateral agreements on disposition of property.
Article 58 requires States Parties to consider the
establishment of a financial intelligence unit (``FIU'') to
assist in cooperation in asset recovery cases. The travaux
preparatoires make clear that the same FIU established in
accordance with Article 14 may be used to comply with the
provisions of this article.
Article 59 states that States Parties shall consider
bilateral or multilateral agreements to further enhance
cooperation on asset recovery cases.
Chapter VI--Technical assistance and information exchange (Articles 60-
62)
Training and technical assistance are dealt with in Article
60, which requires States Parties, to the extent necessary, to
train domestic law enforcement personnel on matters relating to
the prevention and detection of corruption, including in the
area of the preparation of mutual legal assistance requests.
The article also contemplates that States Parties will consider
various potential methods to provide technical assistance to
each other in their plans and programs to combat corruption.
Article 61 (``Collection, exchange and analysis of
information on the nature of organized crime'') is a
counterpart provision to Article 48. This article calls upon
States Parties, together with their scientific and academic
communities, to consider undertaking analytical studies
relating to corruption and share the resulting expertise with
each other.
Article 62 (``Other measures: implementation of the
Convention through economic development and technical
assistance'') supplements Article 60 by requiring States
Parties to take measures to facilitate the implementation of
the Convention with a particular view toward cooperating
internationally and strengthening the capacity of developing
countries to prevent and combat corruption.
Chapter VII--Mechanisms for implementation (Articles 63-64)
Article 63 (``Conference of the States Parties to the
Convention'') establishes a structure for promoting and
reviewing the implementation of the Convention. A Conference of
the States Parties (``COSP'') is to be convened within a year
after the Conventions 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 COSP include voluntary
contributions, which takes into account U.S. legal provisions
on funding framework treaty-based organizations.
Among the most important tasks assigned to the COSP are
facilitating technical assistance, the provision of which is
discretionary under the Convention, and information exchange
among States Parties and reviewing periodically the
implementation of the Convention. The latter activity will
entail scrutiny of information supplied by States Parties
themselves on their programs and legislative and administrative
measures. The COSP also may develop other supplemental review
mechanisms.
To support the COSP, Article 64 (``Secretariat'') states
that the UN Secretary-General shall provide the necessary
secretariat services. The UN General Assembly resolution
adopting the Convention in turn requested that the Vienna-based
UN Office on Drugs and Crime be designated for this purpose.
Chapter VIII--Final provisions (Articles 65-71)
Article 65 (``Implementation of the Convention'') provides
that each State Party shall take the necessary measures,
including legislative and administrative measures, to ensure
proper implementation of its obligations under the Convention.
This provision also clarifies that the Convention does not
preclude the adoption of stricter measures to combat
corruption.
Article 66 (``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, it is recommended that the following declaration
be included in the Senate's resolution of advice and consent:
In accordance with Article 66, 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 66, paragraph 2.
Article 67 (``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 that become
party to the Convention also are required 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.
Pursuant to Article 68 (``Entry into force''), the
Convention shall enter into force on the ninetieth day after
the date of deposit of the thirtieth instrument of
ratification, acceptance, approval, or accession. For a State
ratifying or otherwise consenting to be bound thereafter, the
Convention shall take legal effect on the thirtieth day after
the deposit of that State's instrument.
Amendment of the Convention is governed by Article 69
(``Amendment''), which establishes procedures for proposal,
consideration, and decision on amendments with the involvement
of the COSP. 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 70 (``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.
Article 71 (``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 UN languages (Arabic,
Chinese, English, French, Russian, and Spanish).
Finally, the terms of the Convention, with the suggested
reservations, are consonant with U.S. law. To clarify that the
provisions of the Convention, with the exceptions of Articles
44 and 46, are not self-executing, it is recommended 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 44 and 46)
are non-self-executing. None of the provisions of the
Convention creates a private right of action.
Article 44 and Article 46 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.