[Senate Executive Report 109-4]
[From the U.S. Government Publishing Office]



109th Congress                                              Exec. Rept.
                                 SENATE
 1st Session                                                      109-4

======================================================================



 
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (TREATY DOC. 108-
                                  16)

                                _______
                                

                August 31, 2005.--Ordered to be printed

      Filed under authority of the order of the Senate of July 29
                    (legislative day, July 11), 2005

                                _______
                                

          Mr. Lugar, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 108-16]

    The Committee on Foreign Relations, to which was referred 
the U.N. Convention Against Transnational Organized Crime, 
together with two supplementary protocols: (1) The Protocol to 
Prevent, Suppress and Punish Trafficking in Persons, Especially 
Women and Children, and (2) the Protocol Against Smuggling of 
Migrants by Land, Sea and Air (Treaty Doc. 108-16) (hereinafter 
``Convention,'' ``Trafficking Protocol,'' and ``Smuggling 
Protocol''), signed at Palermo, Italy on December 13, 2000, 
having considered the same, reports favorably thereon and 
recommends that the Senate give its advice and consent to 
ratification thereof with three reservations and one 
declaration relating to the Convention, three reservations, one 
understanding, and one declaration relating to the Trafficking 
Protocol, and two reservations and one understanding relating 
to the Smuggling Protocol, as set forth in this report and the 
accompanying resolution of advice and consent to ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Summary of Key Provisions of the Convention and Protocols........2
 IV. Implementing Legislation.........................................4
  V. Committee Action.................................................4
 VI. Committee Recommendations and Comments...........................4
VII. Text of Resolution of Advice and Consent to Ratification.........6

                               I. Purpose

    The Convention and accompanying Protocols are the first 
multilateral treaties to address the phenomenon of 
transnational organized crime. The instruments require the 
parties to criminalize certain conduct and to cooperate on 
extradition and mutual legal assistance in relation to these 
crimes. The agreements would thus 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 transnational organized crime. The Trafficking 
Protocol aims to prevent and combat trafficking in persons, 
particularly women and children, to protect and assist the 
victims of such trafficking, and to promote cooperation among 
parties in meeting these objectives. The Smuggling Protocol is 
designed to prevent and combat the smuggling of migrants and to 
promote cooperation among states parties to that end, while 
protecting the rights of smuggled migrants.

                             II. Background

    The Convention, Trafficking Protocol, and Smuggling 
Protocol were adopted by the United Nations General Assembly on 
November 15, 2000, and were signed by the United States on 
December 13, 2000, at Palermo, Italy. The Convention, which 
entered into force on September 29, 2003, now has 107 parties. 
The Trafficking Protocol entered into force on December 25, 
2003, and has 87 parties. The Smuggling Protocol entered into 
force on January 28, 2004, and has 78 parties.

     III. Summary of Key Provisions of the Convention and Protocols

    A detailed article-by-article discussion of the Convention 
and Protocols may be found in the Letter of Submittal from the 
Secretary of State to the President, which is reprinted in full 
in Treaty Document 108-16. A summary of the key provisions of 
the Convention and Protocols is set forth below.
    The Convention requires parties to criminalize 
participation in an organized criminal group, money laundering, 
bribery of domestic public officials, and obstruction of 
justice in relation to offenses covered by the Convention, and 
to take measures to combat money laundering and bribery of 
public officials.
    The Convention also provides a legal basis for 
strengthening international cooperation to combat transnational 
organized crime, including in the areas of extradition, mutual 
legal assistance, and confiscation of the proceeds and 
instrumentalities of crime. In the area of extradition, Article 
16(3) of the Convention requires parties to deem offenses 
covered by the Convention to be included among the extraditable 
offenses in extradition treaties existing between the parties. 
These offenses include the specific conduct that the Convention 
requires parties to criminalize, as well as other crimes 
punishable by a maximum sentence of at least four years that 
are ``transnational'' and involve an ``organized criminal 
group'' as those terms are defined in the Convention. For the 
United States, the Convention will not provide an independent 
legal basis for extradition, which will continue to be based on 
U.S. domestic law and applicable bilateral treaties. It will, 
however, effectively expand the scope of offenses covered under 
certain existing bilateral extradition treaties (those that 
specifically list the offenses for which extradition may be 
granted).
    Article 18 of the Convention obligates parties to afford 
each other the widest measure of mutual legal assistance in 
investigations, prosecutions, and judicial proceedings in 
relation to the offenses covered by the Convention. Existing 
international agreements on mutual legal assistance between 
parties will not be affected by the Convention, as Article 
18(7) provides that where such an agreement exists, the parties 
will apply that agreement. Where there is no such agreement in 
place between parties, however, the parties will make and 
receive requests for mutual assistance in transnational 
organized crime cases under the provisions of Article 18, 
paragraphs 9 through 29. The procedures in these paragraphs are 
similar to those contained in U.S. bilateral mutual legal 
assistance treaties, but contain broader grounds for refusal of 
such assistance.
    The Committee notes that Articles 16 and 18 of the 
Convention on extradition and mutual legal assistance, as well 
as any provisions of the Trafficking and Smuggling Protocols 
implemented through these articles, are intended to operate in 
the same way as similar provisions contained in bilateral 
extradition and mutual legal assistance treaties. As with such 
provisions in bilateral treaties, these provisions are self-
executing. They will be implemented by the United States in 
conjunction with applicable federal statutes. Additionally, the 
Executive Branch has indicated that they are not intended to 
create any private rights of action. The Committee notes that 
the lack of a private right of action does not affect the 
ability of persons whose extradition is sought to raise any 
available defenses in the context of the extradition 
proceeding.
    The Trafficking Protocol provides, for the first time, a 
definition of ``trafficking in persons'' in an international 
treaty, and requires all parties to criminalize such conduct 
and to take certain measures to prevent and combat it. The 
Protocol also focuses on victim protection by requiring that 
victims are offered the possibility of obtaining compensation, 
and that parties facilitate and accept the return of their 
nationals and permanent residents who are trafficking victims. 
In addition, the Protocol calls on parties, in appropriate 
cases, to make available to trafficking victims certain 
protections and assistance, including protection of their 
privacy and physical safety, as well as provisions for their 
physical, psychological, and social recovery.
    The Smuggling Protocol requires parties to criminalize: the 
smuggling of migrants; document fraud when committed for the 
purpose of enabling the smuggling of migrants; and, enabling a 
person to reside illegally in a State by means of document 
fraud or other illegal means; as well as participation as an 
accomplice in, aiding and abetting in, and attempts to commit 
such offenses. It also contains provisions designed to address 
the smuggling of migrants by sea, by requiring parties to 
cooperate to the fullest extent possible to prevent and 
suppress migrant smuggling by sea in accordance with 
international law and by establishing procedures for 
interdicting at sea vessels that are engaged in such smuggling. 
These procedures are based on long-standing international law 
principles of flag-state jurisdiction on the high seas, 
universal jurisdiction over ships without nationality, and the 
rights of approach and visit. The Protocol contains several 
provisions on cooperation and prevention, including a 
requirement that parties, consistent with their domestic law, 
exchange information for the purpose of achieving the 
Protocol's objectives, such as known or suspected smuggling 
routes. Similar to the Trafficking Protocol, the Smuggling 
Protocol also obligates parties to facilitate and accept the 
return of smuggled migrants who are their nationals or 
permanent residents at the time of return.
    Both the Trafficking Protocol and the Smuggling Protocol 
require parties to those instruments to apply all of the 
benefits and obligations of the Convention to the offenses 
established in the protocols, including those related to 
extradition, mutual legal assistance, and confiscation of the 
proceeds and instrumentalities of crime.

                      IV. Implementing Legislation

    No implementing legislation is required for the Convention, 
Trafficking Protocol, or Smuggling Protocol. An existing body 
of federal and state laws will suffice to implement the 
obligations of the Convention and Protocols, although a few 
narrow reservations are needed, as explained below in section 
VI.

                          V. Committee Action

    The Convention, and the Trafficking and Smuggling 
Protocols, were transmitted to the Senate for advice and 
consent to their ratification on February 23, 2004 (see Treaty 
Doc. 108-16). The Committee on Foreign Relations held a public 
hearing on these instruments on June 17, 2004 (S. Hrg. 108-
721), at which it heard testimony from representatives of the 
Departments of State and Justice. On July 26, 2005, the 
Committee considered the Convention and Protocols and ordered 
them favorably reported by a voice vote, with the 
recommendation that the Senate give its advice and consent to 
ratification of the Convention and Protocols, subject to 
reservations, understandings, and declarations contained in the 
resolution of advice and consent to ratification.

               VI. Committee Recommendations and Comments

    The Committee on Foreign Relations believes that the 
Convention, Trafficking Protocol and Smuggling Protocol are in 
the interest of the United States and urges the Senate to act 
promptly to give advice and consent to ratification, subject to 
the reservations, understandings, and declarations contained in 
the resolution of advice and consent.
    The Committee has included a number of reservations, 
understandings, and declarations in the resolution of advice 
and consent. Section two of the resolution contains three 
reservations and one declaration relative to the Convention. 
The first reservation relates to the federal system in the 
United States. Although U.S. federal law prohibits the conduct 
proscribed by the Convention, federal criminal law generally 
covers conduct involving interstate or foreign commerce or 
another important federal interest, while offenses of a purely 
local character generally fall within the jurisdiction of the 
states. Not all U.S. states have criminalized all of the 
conduct proscribed by the Convention (for example, a few states 
have extremely limited conspiracy laws). The Executive Branch 
therefore has recommended that the United States reserve 
against these obligations in these narrow circumstances, and 
the Committee agrees with this recommendation.
    The second reservation relates to the scope of the 
Convention. Article 15(1)(b) of the Convention requires each 
party to establish jurisdiction in respect of the listed 
offenses when committed in its territory or on board a vessel 
flying its flag or an aircraft registered under its laws. U.S. 
law does not expressly extend U.S. jurisdiction over these 
particular crimes when committed on board U.S. vessels and 
aircraft outside of U.S. territory, although in certain cases 
U.S. jurisdiction may exist on other jurisdictional bases. 
Because the United States cannot ensure its ability to exercise 
jurisdiction in all such cases, the Committee concurs with an 
Executive Branch recommendation that the United States enter a 
reservation limiting the obligation of the United States 
consistent with the reach of U.S. law.
    The third reservation addresses dispute settlement. Article 
35(2) of the Convention provides that disputes between parties 
regarding the interpretation or application of the Convention 
that are not settled through negotiation within a reasonable 
period may be referred by a party to arbitration or to the 
International Court of Justice if the parties are unable to 
agree on the organization of the arbitration. At the 
recommendation of the Executive Branch, the Committee has 
included a reservation exercising the right of the United 
States under article 35(3) of the Convention to opt out of this 
dispute settlement mechanism.
    The declaration relative to the Convention relates to U.S. 
implementation of the Convention under existing U.S. law. The 
Executive Branch has recommended that the United States include 
an understanding to clarify that the United States intends to 
comply with the Convention based on existing law. The Committee 
has included such a statement in the resolution, formulated as 
a declaration in accordance with recent Committee practice.
    Section three contains three reservations, one 
understanding, and one declaration relative to the Trafficking 
Protocol. At the recommendation of the Executive Branch, the 
Committee has included three reservations that mirror the 
reservations to the Convention, relating to offenses committed 
on board U.S. vessels and aircraft, the U.S. federal system, 
and dispute settlement. As with the Convention, the Executive 
Branch also recommended an understanding clarifying that the 
U.S. intends to comply with the Protocol based on existing U.S. 
law. Consistent with its approach to this issue in section two, 
the Committee has included a declaration on this issue. The 
understanding relative to the Trafficking Protocol, also 
included at the recommendation of the Executive Branch, 
contains the understanding of the United States regarding how 
it will implement the obligation to establish the offenses 
listed in the Trafficking Protocol as money laundering 
predicate offenses under U.S. law.
    Section four contains two reservations and one 
understanding relative to the Smuggling Protocol. The first 
reservation, included at the recommendation of the Executive 
Branch, reserves in part against the obligation contained in 
Article 6(2)(a) of the Protocol to criminalize attempted 
possession of fraudulent travel or identity documents, as U.S. 
law does not criminalize this conduct in all cases. The second 
reservation is similar to those contained in sections two and 
three of the resolution relative to the Convention and the 
Trafficking Protocol, and exercises the right of the United 
States under article 20(3) of the Smuggling Protocol to opt out 
of the dispute settlement mechanism established in article 
20(2) of the Protocol. The understanding relative to the 
Smuggling Protocol mirrors that included in section three of 
the resolution in relation to the Trafficking Protocol, and 
contains the U.S. understanding of how it will implement the 
obligation to establish the offenses listed in the Smuggling 
Protocol as money laundering predicate offenses under U.S. law.

     VII. Text of Resolution of Advice and Consent to Ratification

    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.
    (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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