[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.



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