[Senate Treaty Document 114-4]
[From the U.S. Government Publishing Office]






114th Congress      }                            {        Treaty Doc.
                                 SENATE
 1st Session        }                            {           114-4
______________________________________________________________________



 
   TREATY WITH JORDAN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                     THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
     GOVERNMENT OF THE HASHEMITE KINGDOM OF JORDAN ON MUTUAL LEGAL 
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON OCTOBER 1, 2013

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 December 8, 2015.--Treaty 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
          
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-118                         WASHINGTON : 2015           
          
          
          
          
          
          
          
          
          
          
          
          
                         LETTER OF TRANSMITTAL

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                                The White House, December 8, 2015. 
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 Treaty between 
the Government of the United States of America and the 
Government of the Hashemite Kingdom of Jordan on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on October 
1, 2013. I also transmit, for the information of the Senate, 
the report of the Department of State with respect to the 
Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties negotiated by the United States to more 
effectively counter criminal activities. The Treaty should 
enhance our ability to investigate and prosecute a wide variety 
of crimes.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Under the Treaty, the Parties agree to assist 
each other by, among other things: producing evidence (such as 
testimony, documents, or items) obtained voluntarily or, where 
necessary, by compulsion; arranging for persons, including 
persons in custody, to travel to another country to provide 
evidence; serving documents; executing searches and seizures; 
locating and identifying persons or items; and freezing and 
forfeiting assets or property that may be the proceeds or 
instrumentalities of crime.
    I recommend that the Senate give early and favorable 
consideration to the Treaty, and give its advice and consent to 
ratification.

                                                      Barack Obama.
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                                                      
                          LETTER OF SUBMITTAL

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                                       Department of State,
                                       Washington, August 31, 2015.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
between the Government of the United States of America and the 
Government of the Hashemite Kingdom of Jordan on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on October 
1, 2013. I recommend the Treaty be transmitted to the Senate 
for its advice and consent to ratification.
    The Treaty covers mutual legal assistance in criminal 
matters. In recent years, the United States has entered into 
similar bilateral treaties with a number of countries. The 
Treaty contains all of the essential provisions of such 
treaties sought by the United States. It will enhance our 
ability to investigate and prosecute a wide variety of 
offenses. The Treaty is self-executing and will not require 
further implementing legislation.
    An overview of the Treaty, including a detailed, article-
by-article analysis, is enclosed with this report. The 
Department of Justice joins the Department of State in favoring 
approval of this Treaty by the Senate at the earliest possible 
date.
    Respectfully submitted,
                                                     John F. Kerry.
    Enclosures: As stated.
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
               U.S.-Jordan Mutual Legal Assistance Treaty


                                Overview


    The Treaty between the Government of the United States of 
America and the Government of the Hashemite Kingdom of Jordan 
on Mutual Legal Assistance in Criminal Matters (the ``Treaty'') 
creates for the first time a treaty-based relationship of 
mutual legal assistance between the United States and Jordan. 
The Treaty covers mutual legal assistance in criminal matters 
and contains many provisions similar to those in other treaties 
of its kind and all of the essential provisions sought by the 
United States.
    The following is an article-by-article description of the 
provisions of the Treaty. Article 1 sets out the scope of 
assistance available under the Treaty. Article 1(1) creates an 
international obligation on each Party to provide mutual legal 
assistance to the other Party in connection with the 
investigation, prosecution, and prevention of offenses and in 
proceedings related to criminal matters. This ensures that the 
Parties can afford each other legal assistance in a broad range 
of criminal matters, from violent crimes to fraud, from tax 
matters to racketeering, from computer crime to environmental 
crime, and so on. Assistance may also be sought for proceedings 
related to criminal matters, such as civil forfeiture 
proceedings, and for investigations and proceedings by 
authorities involved in implementing governmental regulations 
relating to violations that may be referred for criminal 
prosecution under the laws of the Requesting Party. Thus, where 
the conditions of the Treaty are otherwise met, assistance 
would be available, for example, for proceedings of the 
Securities and Exchange Commission when those proceedings are 
incidental to, or connected with pending criminal 
investigations or prosecutions, or may be referred for criminal 
prosecution. Article 1(2) contains a non-exhaustive list of the 
major types of assistance to be provided under the Treaty, 
including producing evidence (such as testimony, documents, or 
items) obtained voluntarily or, where necessary, by compulsion; 
arranging for persons, including persons in custody, to travel 
to another country to provide evidence; serving documents; 
executing searches and seizures; locating and identifying 
persons or items; and identifying, tracing, freezing, seizing 
and forfeiting assets or property that may be the proceeds or 
instrumentalities of crime. Each of these types of assistance 
is described in detail in subsequent articles in the Treaty.
    The Treaty also authorizes provision of any other 
assistance not prohibited by the laws of the Party receiving 
the request (referred to in the Treaty, as in other such 
treaties, as the ``Requested Party,'' while the Party making 
the request is the ``Requesting Party''). As long as there is 
no specific legal restriction under the laws of the Requested 
Party barring the type of assistance requested, it may be 
provided pursuant to the Treaty.
    Consistent with most U.S. mutual legal assistance treaties 
(MLATs), Article 1(3) provides that, with the exception of 
where it is specifically required by the laws of the Requested 
Party, ``dual criminality'' is not a prerequisite for 
assistance under the Treaty. Thus, unless otherwise provided 
under the laws of the Requested Party, assistance shall be 
provided without regard to whether the conduct at issue would 
constitute an offense under the laws of the Requested Party. 
The Treaty does require ``dual criminality'' in certain 
circumstances. For example, under Article 14, a Requested Party 
is obligated to execute a search and seizure request if the 
request includes sufficient information justifying such action 
under its law and the offense at issue would also constitute an 
offense under its law.
    Article 1(4), a standard provision in U.S. MLATs, provides 
that the Treaty is intended solely for government-to-government 
mutual legal assistance. The Treaty is not intended to provide 
to persons other than the Parties a means of evidence 
gathering, nor is it intended to extend generally to civil 
matters. Private persons in the United States may continue to 
obtain evidence from Jordan by letters rogatory, an avenue of 
international assistance that the Treaty leaves undisturbed. 
Similarly, the paragraph provides that the Treaty is not 
intended to create any right in any private person to suppress 
or exclude evidence provided pursuant to the Treaty, or to 
impede the execution of a request.
    Article 2 requires that each Party designate a ``Central 
Authority'' to make and receive Treaty requests. The Central 
Authority of the United States would make all requests to 
Jordan on behalf of federal and state agencies and local law 
enforcement authorities in the United States. The Central 
Authority of Jordan would make all requests emanating from 
similar officials in Jordan. The Central Authorities are, 
pursuant to Article 2(3), to communicate directly with one 
another.
    For the United States, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For Jordan, the Central Authority is the Minister of 
Justice or a person designated by the Minister of Justice. In 
the United States, the authority to handle the duties of the 
Central Authority under MLATs has been delegated to the Office 
of International Affairs in the Criminal Division of the 
Department of Justice.
    The Central Authority of the Requesting Party exercises 
discretion, consistent with the provisions of the Treaty, as to 
the form of requests, as well as the number and priority of 
requests. The Central Authority of the Requested Party is 
responsible for receiving and evaluating each incoming request; 
transmitting it to the proper agency, court, or other authority 
for execution; and providing a timely response.
    Article 3 sets forth the circumstances under which the 
Requested Party's Central Authority may deny assistance under 
the Treaty. Refusal under this Article is discretionary with 
the Central Authority of the Requested Party. Several of the 
grounds for refusal are common to most U.S. MLATs. For example, 
a request may be denied if it relates to a military offense, if 
it does not conform to the requirements of the Treaty, or if 
its execution would prejudice the ``security, sovereign or 
other essential interests of the Requested Party.'' During the 
negotiations, the Parties agreed that the essential interest 
clause would allow a Party to deny a request for assistance in 
connection with a political offense. In keeping with the 
overall intent of the Treaty to facilitate assistance, the 
Parties also included in Article 3 a provision designed to 
limit the use of grounds for refusal. Under Article 3(2), a 
Central Authority, before refusing assistance under Article 
3(1), is to consult with its counterpart in the Requesting 
Party to consider whether assistance can be given subject to 
such conditions as the Central Authority of the Requested Party 
deems necessary. If the Requesting Party accepts assistance 
subject to these conditions, it is required to comply with 
them.
    Article 3(3) gives the Requested Party discretion to deny a 
request if the offense is punishable by less than one year of 
imprisonment under the law of the Requesting Party or the crime 
is financial in nature but does not involve a significant 
financial loss, and the Requested Party determines that the 
resources required to execute the request are not justified in 
light of the nature of the offense. This treaty is one of the 
first MLATs the United States has negotiated that includes such 
a de minimis clause. The inclusion of such clauses has become a 
priority for the United States in order to avoid the obligation 
to execute large numbers of MLAT requests relating to minor 
crimes, which can create significant burdens on the resources 
of the Department of Justice.
    In addition, if the Central Authority of the Requested 
Party refuses assistance, it is required under Article 3(4) to 
inform the Central Authority of the Requesting Party of the 
reasons for the refusal.
    Article 4 prescribes the form and contents of requests 
under the Treaty, specifying in detail the information required 
in each request. It also permits the Central Authority of the 
Requested Party to request additional information, if necessary 
to execute the request
    Article 5 concerns the execution of requests. Article 5(1) 
includes three important concepts: the obligation of the 
Central Authority of the Requested Party to execute requests 
promptly (or to refer them to the competent authorities who 
have jurisdiction to execute the requests); the requirement 
that competent authorities do ``everything in their power'' to 
execute requests; and the granting of authority to courts, or, 
as provided by the law of the Requested Party, the 
investigative authorities, in the territory of the Requested 
Party to issue subpoenas, search warrants, or other orders 
necessary to execute requests. Article 5(2) builds on this by 
requiring the Requested Party to make all necessary 
arrangements to represent the Requesting Party in any 
proceedings arising out of a request for assistance. It is 
understood that such proceedings may include proceedings before 
a judicial authority or administrative agency. Taken together, 
these provisions reflect an understanding that the Parties 
intend to provide each other with a wide measure of assistance 
from judicial and executive branches of government in the 
execution of mutual legal assistance requests. These provisions 
also specifically authorize United States courts to use all of 
their powers to issue whatever process is necessary to satisfy 
a request under the Treaty, whether the authority for such 
process comes from the Treaty itself or from existing statutes.
    Article 5(3) specifies that requests are to be executed in 
accordance with the laws of the Requested Party unless the 
Treaty provides otherwise. The requests themselves may specify 
a particular procedure to be followed, and such specified 
procedure is to be followed unless prohibited by the law of the 
Requested Party. Following the procedure specified can be 
important to ensure evidence collected in one State satisfies 
the requirements for admissibility at trial in the other. It is 
understood that if neither the Treaty nor the request specifies 
procedures to be followed, the Requested Party is to execute 
the request in accordance with its domestic criminal procedure 
laws. The intent of this provision, like similar provisions in 
other U.S.MLATs, is to allow the Requested Party to use its 
established procedures for obtaining evidence where procedures 
are not otherwise specified, so long as those procedures do not 
undermine the obligation in the Treaty to provide assistance.
    Article 5(4) allows the Central Authority of the Requested 
Party to postpone the execution of a request, or make execution 
subject to specified terms, if it determines that execution of 
the request would interfere with an ongoing criminal 
investigation, prosecution or proceeding in that state. If the 
Requesting Party accepts assistance subject to terms, it must 
comply with such terms.
    Confidentiality of requests is addressed in Article 5(5). 
The Requesting Party may ask that the request, its contents, 
and the outcome of the execution of the request be kept 
confidential. The Requested Party must use its best efforts to 
comply with such a request, but if assistance cannot be granted 
without breaching the confidentiality requirements, the 
decision whether to proceed is left to the Requesting Party.
    The remaining provisions in Article 5 address some of the 
types of communications between Central Authorities essential 
to a good working mutual legal assistance relationship. For 
example, Central Authorities must respond to requests for 
progress reports, and inform each other of the outcome of 
execution of requests, including any reasons for refusal of a 
request.
    Article 6 addresses the costs associated with providing 
assistance. As is standard in U.S. MLATs, Article 6 provides 
that the Requested Party must pay all costs relating to the 
execution of a request, including representation costs, except 
for the following items to be paid by the Requesting Party: 
fees of expert witnesses; costs of translation, interpretation 
and transcription; and allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11 (relating to 
travel for the purpose of providing assistance and transfer of 
persons in custody). The article also provides that, in the 
event that fulfilling a request would require extraordinary 
expenses, the Central Authorities will consult order to 
determine how those costs shall be borne.
    Article 7 addresses limitations on use of information and 
evidence provided under the Treaty. Under Article 7(1), the 
Central Authority of the Requested Party may request that 
information or evidence produced in response to a request under 
the Treaty not be used for any investigation, prosecution or 
proceeding other than that described in the request without the 
consent of the Central Authority of the Requested Party. In 
such cases, the Requesting Party must comply with the request 
for limitations on use.
    Under Article 7(2), the Central Authority of the Requested 
Party may also request that the information or evidence 
produced under the Treaty be kept confidential or be used 
subject to specified terms. If the Requesting Party accepts the 
requested terms, it must use its best efforts to comply with 
those terms. The default rule, however, is that such 
information or evidence is not confidential, and Article 7(4) 
also provides that once such information or evidence has been 
made public in the territory of Requesting Party in accordance 
with Article 7(1) and (2), it may be used for any purpose. 
Moreover, the Treaty explicitly permits the disclosure of 
information or evidence to the extent that there is an 
obligation to disclose it under the Constitution of the 
Requesting Party in a criminal proceeding. This contingency, 
found in Article 7(3), was included to ensure that the United 
States would be able to satisfy any obligations to disclose 
information under its Constitution, such as those set forth in 
Brady v. Maryland, 373 U.S. 83 (1963).
    As with other provisions of the Treaty, the confidentiality 
protections and use limitation provisions of Article 7 are for 
the benefit of the two governments that are Parties to the 
Treaty, and invocation and enforcement of these provisions is 
entirely a matter for the Parties.
    Article 8 is the first of a series of articles that spell 
out in detail the procedures to be employed in the case of 
specific types of requests for assistance outlined in Article 
1(2). Article 8 addresses production of evidence, whether it is 
a statement or testimony, documents, records, or particular 
items. A person from whom evidence is sought under the Treaty 
may appear voluntarily to provide such evidence, or, if 
necessary, the Treaty authorizes the Parties to compel 
production of evidence. This compulsion may be accomplished by 
subpoena or any other means available under the laws of the 
Requested Party (see Article 5(3)).
    Article 8(2) calls on the Requested Party, upon request, to 
inform the Requesting Party in advance of the date, time, and 
place of the taking of testimony or evidence. In addition, 
Article 8(2) requires the Requested Party to permit persons 
specified in the request to be present during execution of the 
request and to allow such persons either to question the person 
giving testimony or evidence, or to pose questions to the 
competent authority, which then asks them of the person giving 
testimony or evidence. As the Jordanian negotiators explained, 
under Jordanian law, representatives of the U.S. Government 
would likely not be permitted to question a witness directly 
but would have to use the second option provided for by this 
Article and present such questions to the Jordanian competent 
authority, which would then pose them to the witness.
    Article 8(3) provides that if a person from whom the 
request seeks testimony or evidence asserts a right to decline 
to provide such evidence by claiming an immunity, incapacity or 
privilege under the laws of the Requesting Party, the evidence 
shall nonetheless be taken and the claim made known to 
authorities of the Requesting State so that they may resolve 
it. The Treaty does not specifically address the resolution of 
claims of privilege under the Requested Party's law, but by 
implication those are to be resolved by that state's 
authorities. This formulation allows each Party to resolve 
claims of privilege made under its own laws.
    Article 8(4) contains the first of several provisions in 
the Treaty addressing the authentication of evidence produced 
pursuant to the Treaty. Similar provisions are found at 
Articles 9(3) and 14(2). Evidence produced under the Treaty may 
be authenticated by an attestation including, with respect to 
business records, official records, or evidence that has been 
seized pursuant to the Treaty, by use of one of the forms 
appended to the Treaty. The appended forms are an integral part 
of the Treaty. The Treaty provides that evidence produced and 
authenticated according to the procedure set forth in the 
Treaty shall be admissible in evidence in the tenitory, of the 
Requesting Party.
    Article 9 addresses provision of documents or other records 
in the possession of government agencies. The Parties are 
obligated to provide to each other copies of publicly available 
records in any form in the possession of governmental 
departments and entities upon request. The Treaty authorizes 
the Requested Party, in its discretion, to provide to the 
Requesting Party any records that are not publicly available to 
the same extent, and under the same conditions, as they would 
be available to the Requested Party's own law enforcement or 
judicial authorities.
    The Treaty will constitute a ``convention relating to the 
exchange of tax information'' for purposes of Title 26, United 
States Code, Section 6103(k)(4), and the United States would 
have the discretion to provide tax return information to Jordan 
under this article in appropriate cases.
    Article 10 provides a mechanism for the Requesting Party to 
ask for the voluntary attendance in its territory, or in the 
territory of a third state, of a person located in the 
territory of the Requested Party for the purpose of assistance 
under the Treaty, such as to serve as a witness or expert in 
proceedings or to assist in an investigation. The Requesting 
Party must indicate the extent to which the person's expenses 
will be paid. The Requested Party is required to inform the 
person of the request for the person's appearance and notify 
the Requesting Party of the person's response.
    When persons agree to travel to appear in the territory of 
the Requesting Party, Article 10(2) provides that the 
Requesting Party may grant such persons safe conduct, thus 
ensuring that the person appearing in the territory of the 
Requesting Party will not be subject to service of process or 
be detained or subjected to any restriction on personal liberty 
for acts or convictions that preceded the person's departure 
from the territory of the Requested Party. The grant of safe 
conduct pursuant to this provision applies only to past 
offenses and would not prevent the Requesting Party from 
prosecuting the person for perjury or any other crime committed 
while present, pursuant to Article 10, in the territory of the 
Requesting Party. Under Article 10(3), any safe conduct so 
provided would cease fifteen days after the Central Authority 
of the Requested Party is notified that the person's presence 
is no longer required, or when the person has left the 
territory of the Requesting Party and voluntarily returns. In 
its discretion, the Central Authority of the Requesting Party 
may, for good cause, extend the period of safe conduct for up 
to seven additional days.
    Article 11 provides a similar mechanism for persons in 
custody. A need sometimes arises for the testimony in one 
country of a person who is incarcerated in another country. For 
example, a witness incarcerated in one country--whether the 
Requesting or Requested Party--may have to give testimony in 
the presence of an incarcerated defendant in the other country. 
Attendance of the detained person is still voluntary, but is 
also subject to the agreement of the Central Authorities. In 
addition, the Treaty imposes certain conditions on such 
transfers: the person must be held in custody by the receiving 
Party, unless otherwise authorized by the sending Party; the 
receiving Party must return the person in custody to the 
territory of the sending Party as soon as circumstances permit 
or as otherwise agreed; the return of the person shall not 
require extradition proceedings; the period that the person is 
in custody in the territory of the receiving Party shall be 
credited against the person's sentence in the sending Party; 
and the safe conduct protections provided for by Article 10(2) 
and (3) apply to persons transferred pursuant to Article 11.
    Article 12 provides for determining the whereabouts or 
identity in the territory of the Requested Party of persons 
(such as witnesses, potential defendants, or experts) or items 
when such information is requested. The Treaty requires only 
that the Requested Party use its best efforts to ascertain the 
location or identity of the persons or items sought. The extent 
of such efforts will vary, of course, depending on the quality 
and extent of the information provided by the Requesting Party 
concerning the suspected or last known location.
    Article 13 relates to service of documents. It creates an 
obligation on the Parties to use their best efforts to serve 
documents relating to a request for assistance, such as 
summonses, complaints, subpoenas, or notices. Under Article 
13(2), when the document pertains to an appearance in the 
territory of the Requesting Party, the request for service of 
the document must be transmitted a reasonable time before the 
scheduled appearance. The Parties chose not to set a fixed 
period of time for this obligation, as circumstances may vary. 
Article 13(3) requires the Requested Party to return proof of 
service in the manner specified in the request. If service 
cannot be effectuated, the Requested Party must inform the 
Requesting Party promptly of the reasons for not effecting 
service.
    Article 14 obligates the Requested Party to execute a 
request for the search, seizure, and delivery of any item to 
the Requesting Party if the request includes the information 
justifying such action under the laws of the Requested Party 
and the offense at issue would also constitute an offense under 
the law of the Requested Party. For requests from Jordan to the 
United States, this means that a request would have to be 
supported by a showing of probable cause for the search. The 
Requested Party may require that the Requesting Party agree to 
terms deemed necessary to protect interests of third parties, 
such as victims and legitimate owners.
    Article 15 allows the Requested Party to require that the 
Requesting Party return any items provided to it in execution 
of a request under the Treaty.
    Assistance in forfeiture proceedings is the subject of 
Article 16. The types of actions that could be undertaken under 
this Article include actions to restrain, seize, and forfeit 
property. The Article applies both to conviction-based 
forfeiture proceedings and to non-conviction based forfeitures 
proceedings premised on criminal conduct regardless of whether 
the offender is prosecuted for that conduct. Article 16(2) 
provides a non-exhaustive list of the types of assistance that 
a Party is required to provide pursuant to this Article.
    Article 16(3) requires the Requested Party to consult with 
the Requesting Party before disposing of property frozen, 
restrained, seized, or forfeited pursuant to Article 16. 
Article 16(4) permits the Party in control of the property to 
transfer all or part of it to the other Party or, after 
consultation between the Parties, to any other State that 
assisted in forfeiture of property in a manner proportionate to 
the other Party's or other State's assistance. United States 
law permits the government to transfer a share of certain 
forfeited property to other countries that participate directly 
or indirectly in the seizure or forfeiture of the property 
when, among other requirements, such transfer is authorized by 
an international agreement. This Article provides such 
authorization for asset sharing with Jordan or another country. 
Article 16(4) also provides that, where appropriate and upon 
request, priority should be given to returning property to the 
Requesting Party so that victims of an offense may be 
compensated or the property may be returned to its legitimate 
owners. Article 16(5) requires the Parties to assist each 
other, to the extent permitted by their respective domestic 
laws, in proceedings relating to restitution to victims of 
crime. Article 16(6) gives the Parties discretion to deny 
assistance requested pursuant to Article 16 if the value of the 
property in question does not substantially exceed the 
resources that would be expended in providing the assistance.
    Article 17 states that this Treaty is not intended to be 
the sole mechanism for the Parties to provide assistance to 
each other and thus shall not prevent the Parties from 
providing assistance to each other through the provisions of 
other agreements, arrangements, or practices that may be 
applicable, or through the provisions of their national laws. 
Thus, for example, the Treaty would leave the provisions of 
U.S. and Jordanian law on letters rogatory completely 
undisturbed, and would not alter any practices or arrangements 
concerning investigative assistance or prohibit the Parties 
from developing other such practices or arrangements. Article 
17(2) makes clear that no request for assistance is necessary 
when a Party wishes spontaneously to share information or 
evidence with the other Party.
    The final clauses are contained in Article 18. The Treaty 
is subject to ratification by each Party according to 
procedures required by its Constitution. For the United States, 
this means ratification after the advice and consent of the 
Senate. The Treaty will enter into force upon the exchange of 
instruments of ratification. Article 18 also provides 
procedures for termination of the Treaty.

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