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[Senate Executive Report 109-3]
[From the U.S. Government Publishing Office]

109th Congress                                              Exec. Rept.
                                 SENATE
 1st Session                                                      109-3

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

 
              INTER-AMERICAN CONVENTION AGAINST TERRORISM
                         (TREATY DOC. 107-18).

                                _______
                                

                 July 28, 2005.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                   [To accompany Treaty Doc. 107-18]

    The Committee on Foreign Relations, to which was referred 
the Inter-American Convention Against Terrorism (Treaty Doc. 
107-18) (hereafter ``Convention''), signed at Bridgetown, 
Barbados on June 3, 2002, having considered the same, reports 
favorably thereon with an understanding as indicated in the 
resolution of advice and consent, and recommends that the 
Senate give its advice and consent to ratification thereof, as 
set forth in this report and the accompanying resolution of 
advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Convention......................2
 IV. Implementing Legislation.........................................3
  V. Committee Action.................................................3
 VI. Committee Recommendation and Comments............................3
VII. Text of Resolution of Advice and Consent to Ratification.........4

                               I. Purpose

    The Convention was negotiated under the auspices of the 
Organization of American States (``OAS'') in the aftermath of 
the September 11, 2001 terrorist attacks on the United States 
and is designed to strengthen prohibitions against acts of 
terrorism and promote international cooperation in 
investigating and prosecuting such acts.

                             II. Background

    The Organization of American States was meeting in Lima, 
Peru on September 11, 2001, and was the first international 
organization to condemn the terrorist attacks on the United 
States. In response to the attacks, the OAS Foreign Ministers, 
at a meeting of consultation on September 21, 2001, instructed 
the OAS to negotiate the Convention. Following three rounds of 
negotiations held between November 2001 and March 2002, the 
Convention was adopted on June 3, 2002 at the thirty-second 
regular session of the General Assembly of the OAS in 
Bridgetown, Barbados and signed by thirty OAS member states, 
including the United States. It entered into force on July 10, 
2003, and is open to ratification by all OAS member states. 
Currently, thirty-three OAS member states are signatories and 
twelve are parties, including Canada and Mexico.

            III. Summary of Key Provisions of the Convention

    A detailed article-by-article discussion of the Convention 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 107-18. A summary of the key provisions of the 
Convention is set forth below.
    The core obligation of the Convention is that parties 
``endeavor to become a party'' to 10 international counter-
terrorism treaties (listed in Article 2) already in force that 
address specific subject areas, such as hijacking, hostage-
taking, bombing, attacks on diplomats, and financing of 
terrorism. The Convention then requires that parties ``adopt 
the necessary measures to effectively implement'' these 
instruments. The Convention permits each state to declare that 
the obligations contained in the Convention will not apply to 
the offenses set forth in one or more of the listed counter-
terrorism instruments if it is not yet a party to the 
instrument or ceases to be a party. The United States is 
already a party to all 10 instruments, and therefore it does 
not need to make such a declaration.
    The Convention contains additional provisions requiring 
parties to take specific measures to facilitate the prevention, 
prosecution and punishment of the offenses established in the 
international instruments listed in Article 2, including: 
developing domestic regimes to track and combat the financing 
of terrorist activities; expanding bases for seizure and 
forfeiture of funds and other assets; expanding predicate 
offenses for money laundering; enhancing cooperation on border 
controls and among law enforcement authorities; establishing a 
mechanism for transferring persons in custody for 
identification, testimony or other types of assistance; and 
denying refugee status or asylum in appropriate cases (as 
provided in Articles 12 and 13).
    Several articles of the Convention address aspects of 
cooperation between parties. Article 9 requires all parties to 
``afford one another the greatest measure of expeditious mutual 
legal assistance with respect to the prevention, investigation, 
and prosecution'' of offenses under the Convention in 
accordance with existing treaties or, in the absence of 
applicable treaties, with domestic law. The United States has 
mutual legal assistance treaty relationships, either through 
bilateral mutual legal assistance treaties or the Inter-
American Convention on Mutual Assistance in Criminal Matters, 
with 25 OAS member states. In cases where there is not a 
treaty, assistance would be provided by the United States in 
accordance with 28 U.S.C. section 1782. The Convention 
specifies, in Article 14, that parties are not obliged to 
provide mutual legal assistance in cases where the requested 
state has substantial grounds to believe that the request was 
made for the purpose of prosecuting or punishing a person on 
account of his race, religion, nationality, ethnic origin, or 
political opinion, or that complying with the request would 
prejudice that person's position for any of these reasons.
    Article 10 of the Convention establishes a procedure for 
persons in custody in the territory of one party to be 
transferred to another party, with the consent of that person 
and the agreement of the two states, for the purpose of 
assisting in the gathering of evidence for the investigation or 
prosecution of any of the offenses covered by the Convention. 
This provision is similar to provisions found in many bilateral 
mutual legal assistance treaties to which the United States is 
a party. Article 11 of the Convention further establishes that 
for offenses covered by the Convention, a party may not decline 
a request for extradition or for mutual legal assistance on the 
ground that the offense in question was a political offense, an 
offense connected with a political offense, or an offense 
inspired by political motives. As a result, a person whose 
extradition is sought for an offense covered by the Convention 
may not successfully rely on the defense of political offense 
to avoid extradition. Although the more recent multilateral 
counter-terrorism conventions contain this limit on the 
political offense exception, including it in this Convention 
ensures that it will apply, as between the parties to this 
Convention, also to the offenses established in the earlier 
multilateral counter-terrorism instruments. It bears emphasis 
that the Convention itself does not provide a basis for 
extradition, which would be governed by existing bilateral 
extradition treaties.
    The Committee notes that Articles 10 and 11 of the 
Convention 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.

                      IV. Implementing Legislation

    No implementing legislation is required for the Convention.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the Convention on June 17, 2004, at which it heard testimony 
from representatives of the Departments of State and Justice 
(S. Hrg. 108-721). On July 26, 2005, the Committee considered 
the Convention and ordered it favorably reported by voice vote, 
with the recommendation that the Senate give its advice and 
consent to its ratification, subject to the understanding 
contained in the resolution of advice and consent.

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
proposed Convention is in the interest of the United States and 
urges the Senate to act promptly to give advice and consent to 
its ratification, subject to the understanding contained in the 
resolution of advice and consent. The Committee believes the 
Convention will provide a modest but useful means to expand and 
facilitate counter-terrorism cooperation with other states in 
the hemisphere, provided that other OAS member states become 
party to the international treaties set forth in Article 2. The 
Committee urges the Executive Branch to encourage other OAS 
member states to adhere to those treaties.
    The proposed understanding to the Convention is designed to 
clarify U.S. obligations pertaining to the use of the term 
``international humanitarian law'' in paragraph 2 of Article 15 
of the Convention. Because the United States armed forces do 
not use this term, the understanding provides that the United 
States will interpret the term consistent with its 
understanding of the term ``law of war.'' This understanding 
was recommended by the Executive Branch when it transmitted the 
Convention to the Senate.

     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 UNDERSTANDING

    The Senate advises and consents to the ratification of the 
Inter-American Convention Against Terrorism (the 
``Convention''), adopted at the thirty-second regular session 
of the General Assembly of the Organization of American States 
meeting in Bridgetown, Barbados, and signed by the United 
States on June 3, 2002 (Treaty Doc. 107-18), subject to the 
understanding in Section 2.

SECTION 2. UNDERSTANDING.

    The advice and consent of the Senate under section 1 is 
subject to the following understanding, which shall be included 
in the United States instrument of ratification:
          The United States of America understands that the 
        term ``international humanitarian law'' in paragraph 2 
        of Article 15 of the Convention has the same 
        substantive meaning as the law of war.

                                    

      
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