[Congressional Record Volume 151, Number 109 (Tuesday, September 6, 2005)]
[Senate]
[Pages S9644-S9645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             EXECUTIVE REPORT OF COMMITTEE--AUGUST 31, 2005

  The following executive report of committee was submitted:

       By Mr. LUGAR, from the Committee on Foreign Relations:

  Treaty Doc. 108-16  U.N. Convention Against Transnational Organized 
                     Crime (Exec. Rept. No. 109-4)

The Text of the Resolution of Ratification as Reported by the Committee 
   on Foreign Relations Resolved (two-thirds of the Senators present 
                          concurring therein),

     SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATIONS, 
                   UNDERSTANDINGS, AND DECLARATIONS

       The Senate advises and consents to the ratification of the 
     United Nations Convention Against Transnational Organized 
     Crime (hereinafter in this resolution referred to as the 
     ``Convention'') and two supplementary protocols: the Protocol 
     to Prevent, Suppress and Punish Trafficking in Persons, 
     Especially Women and Children (hereinafter in this resolution 
     referred to as the ``Trafficking Protocol'') and the Protocol 
     Against Smuggling of Migrants by Land, Sea and Air 
     (hereinafter in this resolution referred to as the 
     ``Smuggling Protocol''), adopted by the United Nations 
     General Assembly on November 15, 2000 and signed by the 
     United States on December 13, 2000 at Palermo, Italy (T. Doc. 
     108-16), subject to the reservations, understandings, and 
     declarations of sections 2, 3 and 4.

     SECTION 2. RESERVATIONS AND DECLARATION RELATIVE TO THE 
                   CONVENTION

       (a) Reservations.--The advice and consent of the Senate 
     under section 1 is subject to the following reservations 
     relative to the Convention, which shall be included in the 
     United States instrument of ratification:
       (1) The United States of America reserves the right to 
     assume obligations under the Convention in a manner 
     consistent with its fundamental principles of federalism, 
     pursuant to which both federal and state criminal laws must 
     be considered in relation to the conduct addressed in the 
     Convention. U.S. federal criminal law, which regulates 
     conduct based on its effect on interstate or foreign 
     commerce, or another federal interest, serves as the 
     principal legal regime within the United States for combating 
     organized crime, and is broadly effective for this purpose. 
     Federal criminal law does not apply in the rare case where 
     such criminal conduct does not so involve interstate or 
     foreign commerce, or another federal interest. There are a 
     small number of conceivable situations involving such rare 
     offenses of a purely local character where U.S. federal and 
     state criminal law may not be entirely adequate to satisfy an 
     obligation under the Convention. The United States of America 
     therefore reserves to the obligations set forth in the 
     Convention to the extent they address conduct which would 
     fall within this narrow category of highly localized 
     activity. This reservation does not affect in any respect the 
     ability of the United States to provide international 
     cooperation to other Parties as contemplated in the 
     Convention.
       (2) The United States of America reserves the right not to 
     apply in part the obligation set forth in Article 15, 
     paragraph 1(b) with respect to the offenses established in 
     the Convention. The United States does not provide for 
     plenary jurisdiction over offenses that are committed on 
     board ships flying its flag or aircraft registered under its 
     laws. However, in a number of circumstances, U.S. law 
     provides for jurisdiction over such offenses committed on 
     board U.S.-flagged ships or aircraft registered under U.S. 
     law. Accordingly, the United States will implement paragraph 
     1(b) to the extent provided for under its federal law.
       (3) In accordance with Article 35, paragraph 3, the United 
     States of America declares that it does not consider itself 
     bound by the obligation set forth in Article 35, paragraph 2.

[[Page S9645]]

       (b) Declaration.--The advice and consent of the Senate 
     under section 1 is subject to the following declaration 
     relative to the Convention:
       The United States of America declares that, in view of its 
     federalism reservation, current United States law, including 
     the laws of the States of the United States, fulfills the 
     obligations of the Convention for the United States. 
     Accordingly, the United States of America does not intend to 
     enact new legislation to fulfill its obligations under the 
     Convention.

     SECTION 3. RESERVATIONS, UNDERSTANDING, AND DECLARATION 
                   RELATIVE TO THE TRAFFICKING PROTOCOL

       (a) Reservations.--The advice and consent of the Senate 
     under section 1 is subject to the following reservations 
     relative to the Trafficking Protocol, which shall be included 
     in the United States instrument of ratification:
       (1) The United States of America reserves the right not to 
     apply in part the obligation set forth in Article 15, 
     paragraph 1(b), of the United Nations Convention Against 
     Transnational Organized Crime with respect to the offenses 
     established in the Trafficking Protocol. The United States 
     does not provide for plenary jurisdiction over offenses that 
     are committed on board ships flying its flag or aircraft 
     registered under its laws. However, in a number of 
     circumstances, U.S. law provides for jurisdiction over such 
     offenses committed on board U.S.-flagged ships or aircraft 
     registered under U.S. law. Accordingly, the United States 
     will implement paragraph 1(b) of the Convention to the extent 
     provided for under its federal law.
       (2) The United States of America reserves the right to 
     assume obligations under this Protocol in a manner consistent 
     with its fundamental principles of federalism, pursuant to 
     which both federal and state criminal laws must be considered 
     in relation to conduct addressed in the Protocol. U.S. 
     federal criminal law, which regulates conduct based on its 
     effect on interstate or foreign commerce, or another federal 
     interest, such as the Thirteenth Amendment's prohibition of 
     ``slavery'' and ``involuntary servitude,'' serves as the 
     principal legal regime within the United States for combating 
     the conduct addressed in this Protocol, and is broadly 
     effective for this purpose. Federal criminal law does not 
     apply in the rare case where such criminal conduct does not 
     so involve interstate or foreign commerce, or otherwise 
     implicate another federal interest, such as the Thirteenth 
     Amendment. There are a small number of conceivable situations 
     involving such rare offenses of a purely local character 
     where U.S. federal and state criminal law may not be entirely 
     adequate to satisfy an obligation under the Protocol. The 
     United States of America therefore reserves to the 
     obligations set forth in the Protocol to the extent they 
     address conduct which would fall within this narrow category 
     of highly localized activity. This reservation does not 
     affect in any respect the ability of the United States to 
     provide international cooperation to other Parties as 
     contemplated in the Protocol.
       (3) In accordance with Article 15, paragraph 3, the United 
     States of America declares that it does not consider itself 
     bound by the obligation set forth in Article 15, paragraph 2.
       (b) Understanding.--The advice and consent of the Senate 
     under section 1 is subject to the following understanding 
     relative to the Trafficking Protocol, which shall be included 
     in the United States instrument of ratification: The United 
     States of America understands the obligation to establish the 
     offenses in the Protocol as money laundering predicate 
     offenses, in light of Article 6, paragraph 2(b) of the United 
     Nations Convention Against Transnational Organized Crime, as 
     requiring States Parties whose money laundering legislation 
     sets forth a list of specific predicate offenses to include 
     in such list a comprehensive range of offenses associated 
     with trafficking in persons.
       (c) Declaration.--The advice and consent of the Senate 
     under section 1 is subject to the following declaration 
     relative to the Trafficking Protocol: The United States of 
     America declares that, in view of its reservations, current 
     United States law, including the laws of the States of the 
     United States, fulfills the obligations of the Protocol for 
     the United States. Accordingly, the United States of America 
     does not intend to enact new legislation to fulfill its 
     obligations under the Protocol.

     SECTION 4. RESERVATIONS AND UNDERSTANDING RELATIVE TO THE 
                   SMUGGLING PROTOCOL

       (a) Reservations.--The advice and consent of the Senate 
     under section 1 is subject to the following reservations 
     relative to the Smuggling Protocol, which shall be included 
     in the United States instrument of ratification:
       (1) The United States of America criminalizes most but not 
     all forms of attempts to commit the offenses established in 
     accordance with Article 6, paragraph 1 of this Protocol. With 
     respect to the obligation under Article 6, Paragraph 2(a), 
     the United States of America reserves the right to 
     criminalize attempts to commit the conduct described in 
     Article 6, paragraph 1(b), to the extent that under its laws 
     such conduct relates to false or fraudulent passports and 
     other specified identity documents, constitutes fraud or the 
     making of a false statement, or constitutes attempted use of 
     a false or fraudulent visa.
       (2) In accordance with Article 20, paragraph 3, the United 
     States of America declares that it does not consider itself 
     bound by the obligation set forth in Article 20, paragraph 2.
       (b) Understanding.--The advice and consent of the Senate 
     under section 1 is subject to the following understanding 
     relative to the Smuggling Protocol, which shall be included 
     in the United States instrument of ratification: The United 
     States of America understands the obligation to establish the 
     offenses in the Protocol as money laundering predicate 
     offenses, in light of Article 6, paragraph 2(b) of the United 
     Nations Convention Against Transnational Organized Crime, as 
     requiring States Parties whose money laundering legislation 
     sets forth a list of specific predicate offenses to include 
     in such list a comprehensive range of offenses associated 
     with smuggling of migrants.

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