[Congressional Record (Bound Edition), Volume 146 (2000), Part 12]
[Senate]
[Pages 16732-16733]
[From the U.S. Government Publishing Office, www.gpo.gov]



TREATY ON INTER-AMERICAN CONVENTION AGAINST CORRUPTION--TREATY DOCUMENT 
                               NO. 105-39

  Mr. SMITH of Oregon. Mr. President, I ask unanimous consent that the 
Senate proceed to consider the following treaty on today's Executive 
Calendar: No. 16. I further ask unanimous consent that the treaty be 
considered as having passed through its various parliamentary stages, 
up to and including the presentation of the resolution of ratification; 
that all committee provisos, reservations, understandings, and 
declarations be considered agreed to; that any statements be printed in 
the Congressional Record as if read; further, when the resolution of 
ratification is voted upon, the motion to reconsider be laid upon the 
table, and the President be notified of the Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH of Oregon. Mr. President, I ask for a division vote on the 
resolution of ratification.
  The PRESIDING OFFICER. A division has been requested.
  Senators in favor of the resolution of ratification will rise and 
stand until counted. (After a pause.) Those opposed will rise and stand 
until counted.
  On a division, two-thirds of the Senators present having voted in the 
affirmative, the resolution of ratification is agreed to.
  The resolution of ratification agreed to is as follows:

       Resolved (two-thirds of the Senators present concurring 
     therein),
       That the Senate advise and consent to the ratification of 
     the Inter-American Convention Against Corruption, adopted and 
     opened for signature at the Specialized Conference of the 
     Organization of American States (OAS) at Caracas, Venezuela, 
     on March 29, 1996, (Treaty Doc. 105-39); referred to in this 
     resolution of ratification as ``The Convention'', subject to 
     the understandings of subsection (a), the declaration of 
     subsection (b), and the provisos of subsection (c).
       (a) Understandings.--The advice and consent of the Senate 
     is subject to the following understandings, which shall be 
     included in the instrument of ratification of the Convention 
     and shall be binding on the President:
       (1) Application of article i.--The United States of America 
     understands that the phrase ``at any level of its hierarchy'' 
     in the first and second paragraphs of Article I of the 
     Convention refers, in the case of the United States, to all 
     levels of the hierarchy of the Federal Government of the 
     United States, and that the Convention does not impose 
     obligations with respect to the conduct of officials other 
     than Federal officials.
       (2) Article vii (``Domestic Law'').--
       (A) Article VII of the Convention sets forth an obligation 
     to adopt legislative measures to establish as criminal 
     offenses the acts of corruption described in Article VI(1). 
     There is an extensive network of laws already in place in the 
     United States that criminalize a wide range of corrupt acts. 
     Although United States laws may not in all cases be defined 
     in terms or elements identical to those used in the 
     Convention, it is the understanding of the United States, 
     with the caveat set forth in subparagraph (B), that the kinds 
     of official corruption which are intended under the 
     Convention to be criminalized would in fact be criminal 
     offenses under U.S. law. Accordingly, the United States does 
     not intend to enact new legislation to implement Article VII 
     of the Convention.
       (B) There is no general ``attempt'' statute in U.S. federal 
     criminal law. Nevertheless, federal statutes make 
     ``attempts'' criminal in connection with specific crimes. 
     This is of particular relevance with respect to Article 
     VI(1)(c) of the Convention, which by its literal terms would 
     embrace a single preparatory act done with the requisite 
     ``purpose'' of profiting illicitly at some future time, even 
     though the course of conduct is neither pursued, nor in any 
     sense consummated. The United States will not criminalize 
     such conduct per se, although significant acts of corruption 
     in this regard would be generally subject to prosecution in 
     the context of one or more other crimes.
       (3) Transnational bribery.--Current United States law 
     provides criminal sanctions for transnational bribery. 
     Therefore, it

[[Page 16733]]

     is the understanding of the United States of America that no 
     additional legislation is needed for the United States to 
     comply with the obligation imposed in Article VIII of the 
     Convention.
       (4) Illicit enrichment.--The United States of America 
     intends to assist and cooperate with other States Parties 
     pursuant to paragraph 3 of Article IX of the Convention to 
     the extent permitted by its domestic law. The United States 
     recognizes the importance of combating improper financial 
     gains by public officials, and has criminal statutes to deter 
     or punish such conduct. These statutes obligate senior-level 
     officials in the federal government to file truthful 
     financial disclosure statements, subject to criminal 
     penalties. They also permit prosecution of federal public 
     officials who evade taxes on wealth that is acquired 
     illicitly. The offense of illicit enrichment as set forth in 
     Article IX of the Convention, however, places the burden of 
     proof on the defendant, which is inconsistent with the United 
     States Constitution and fundamental principles of the United 
     States legal system. Therefore, the United States understands 
     that it is not obligated to establish a new criminal offense 
     of illicit enrichment under Article IX of the Convention.
       (5) Extradition.--The United States of America shall not 
     consider this Convention as the legal basis for extradition 
     to any country with which the United States has no bilateral 
     extradition treaty in force. In such cases where the United 
     States does not have a bilateral extradition treaty in force, 
     that bilateral extradition treaty shall serve as the legal 
     basis for extradition for offenses that are extraditable in 
     accordance with this Convention.
       (6) Prohibition assistance to the international criminal 
     court.--The United States of America shall exercise its 
     rights to limit the use of assistance it provides under the 
     Convention so that any assistance provided by the Government 
     of the United States shall not be transferred to or otherwise 
     used to assist the International Criminal Court agreed to in 
     Rome, Italy, on July 17, 1998, unless the treaty establishing 
     the Court has entered into force for the United States by and 
     with the advice and consent of the Senate, as required by 
     Article II, section 2 of the United States Constitution.
       (b) Declaration.--The advice and consent of the Senate is 
     subject to the following declaration:
       Treaty interpretation.--The Senate affirms the 
     applicability to all treaties of the constitutionally based 
     principles of treaty interpretation set forth in Condition 
     (1) of the resolution of ratification of the INF Treaty, 
     approved by the Senate on May 27, 1988, and Condition (8) of 
     the resolution of ratification of the Document Agreed Among 
     the State Parties to the Treaty on Conventional Armed Forces 
     in Europe, approved by the Senate on May 14, 1997.
       (c) Provisos.--The advice and consent of the Senate is 
     subject to the following provisos:
       (1) Enforcement and monitoring.--Not later than April 1, 
     2001, and annually thereafter for five years, unless extended 
     by an Act of Congress, the President shall submit to the 
     Committee on Foreign Relations of the Senate, and the Speaker 
     of the House of Representatives, a report that sets out:
       (A) Ratification.--A list of the countries that have 
     ratified the Convention, the dates of ratification and entry 
     into force for each country, and a detailed account of U.S. 
     efforts to encourage other nations that are signatories to 
     the Convention to ratify and implement it.
       (B) Domestic legislation implementing the convention and 
     actions to advance its object and purpose.--A description of 
     the domestic laws enacted by each Party to the Convention 
     that implement commitments under the Convention and actions 
     taken by each Party during the previous year, including 
     domestic law enforcement measures, to advance the object and 
     purpose of the Convention.
       (C) Progress at the organization of american states on a 
     monitoring process.--An assessment of progress in the 
     Organization of American States (OAS) toward creation of an 
     effective, transparent, and viable Convention compliance 
     monitoring process which includes input from the private 
     sector and non-governmental organizations.
       (D) Future negotiations.--A description of the anticipated 
     future work of the Parties to the Convention to expand its 
     scope and assess other areas where the Convention could be 
     amended to decrease corrupt activities.
       (2) Mutual legal assistance.--When the United States 
     receives a request for assistance under Article XIV of the 
     Convention from a country with which it has in force a 
     bilateral treaty for mutual legal assistance in criminal 
     matters, the bilateral treaty will provide the legal basis 
     for responding to that request. In any case of assistance 
     sought from the United States under Article XIV of the 
     Convention, the United States shall, consistent with U.S. 
     laws, relevant treaties and arrangements, deny assistance 
     where granting the assistance sought would prejudice its 
     essential public policy interest, including cases where the 
     Central Authority, after consultation with all appropriate 
     intelligence, anti-narcotic, and foreign policy agencies, has 
     specific information that a senior government official who 
     will have access to information to be provided under this 
     Convention is engaged in a felony, including the facilitation 
     of the production or distribution of illegal drugs.
       (3) Supremacy of the Constitution.--Nothing in the 
     Convention requires or authorizes legislation or other action 
     by the United States of America that is prohibited by the 
     Constitution of the United States as interpreted by the 
     United States.

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