U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

49–118 ★ (STAR PRINT) 

" ! SENATE 109TH CONGRESS

1st Session 

TREATY DOC. 

2005

109–6 

U.N. CONVENTION AGAINST CORRUPTION 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

UNITED NATIONS CONVENTION AGAINST CORRUPTION (THE ‘‘CORRUPTION CONVENTION’’), WHICH WAS ADOPTED BY THE UNITED 

NATIONS GENERAL ASSEMBLY ON OCTOBER 31, 2003 

OCTOBER 27, 2005.—Convention 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 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, October 27, 2005. 

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 United Nations Convention 

Against Corruption (the ‘‘Corruption Convention’’), which was 

adopted by the United Nations General Assembly on October 31, 

2003. I also transmit, for the information of the Senate, the report 

of the Secretary of State with respect to the Corruption Convention, with an enclosure. 

The international fight against corruption is an important foreign policy priority for the United States. Corruption hinders sustainable development, erodes confidence in democratic institutions, 

and facilitates transnational crime and terrorism. The Convention 

will be an effective tool to assist in the growing global effort to 

combat corruption. 

The U.N. Corruption Convention is the first global multilateral 

treaty to comprehensively address the problems relating to corruption. It provides for a broad range of cooperation, including extradition and mutual legal assistance, and commits governments to 

take measures that will prevent corruption from happening in the 

first place. The Corruption Convention includes provisions to criminalize and prevent corruption and provides procedures for governments to recover assets that have been illicitly acquired by corrupt 

officials. 

The provisions of the Corruption Convention are explained in the 

accompanying report of the Department of State. The report also 

sets forth proposed reservations that would be deposited by the 

United States with its instrument of ratification. With these reservations, the Convention will not require implementing and consent to its ratification, subject to the reservations, understandings, 

and declarations described in the accompanying report of the Department of State. 

I recommend that the Senate give early and favorable consideration to the Corruption Convention and give its advice and consent 

to its ratification, subject to the reservations, understandings, and 

declarations described in the accompanying report of the Department of State. 

GEORGE W. BUSH. 


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(V)

LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, September 23, 2005. 

The PRESIDENT, The White House. 

THE PRESIDENT: I have the honor to submit to you, with a view 

to its transmittal to the Senate for advice and consent to ratification, the United Nations (‘‘UN’’) Convention Against Corruption 

(the ‘‘Corruption Convention’’ or the ‘‘Convention’’), which was 

adopted by the UN General Assembly on October 31, 2003. On December 9, 2003, the United States, which actively participated in 

the negotiations hosted by the UN Office on Drugs and Crime in 

Vienna, signed the Convention at Merida, Mexico. I recommend 

that the Convention be transmitted to the Senate for its advice and 

consent to ratification. 

Accompanying the Convention are interpretative notes for the official records of the negotiations (or ‘‘travaux pre ́paratoires’’). They 

were prepared by the Secretariat of the Ad Hoc Committee that 

conducted the negotiations, based on discussions that took place 

throughout the process of negotiations. These notes would be submitted to the Senate for its information. 

As of August 30, 2005, 126 countries have signed the Convention 

and 29 countries have become States Parties. The Convention, once 

ratified by thirty countries, will enter into force among those countries on the ninetieth day after the date of deposit of the thirtieth 

instrument of ratification, acceptance, approval or accession. For 

each country that ratifies, accepts, approves, or accedes to the treaty after the deposit of the thirtieth instrument, the Convention will 

enter into force on the thirtieth day after the date of deposit of that 

country’s instrument of ratification. 

The Corruption Convention is the first multilateral treaty to 

comprehensively address, on a global basis, the problems relating 

to corruption. It expands the obligations contained in Articles 8 and 

9 of the UN Convention Against Transnational Organized Crime, 

which relate to corruption, and complements existing regional anticorruption instruments by expanding provisions to criminalize and 

prevent corruption and by providing procedures for governments to 

recover assets that have been illicitly acquired by corrupt officials. 

It also reflects and builds upon many of the provisions set forth in 

the Organization for Economic Co-operation and Development’s 

Convention on Combating Bribery of Foreign Public Officials in 

International Business Transactions. The Corruption Convention 

establishes a treaty-based regime of obligations to provide mutual 

legal assistance that is analogous to those contained in other law 

enforcement treaties to which the United States is a party. The 


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Convention thus would 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 certain acts of corruption and in efforts to recover illicitly obtained assets. 

A detailed, article-by-article analysis of the Convention is attached to this report. Included in that analysis are two reservations, an understanding, declarations that the Senate is being 

asked to include in its resolution of advice and consent. As further 

discussed in the analysis attached to this report, if the United 

States makes the proposed reservations, the existing body of federal and state law and regulations will be adequate to satisfy the 

Convention’s requirements for legislation, and, thus, further legislation will not be required for the United States to implement the 

Convention. 

It is my belief that the Convention would be advantageous to the 

United States and, subject to the proposed reservations, would be 

consistent with existing U.S. legislation. The Departments of Justice, Commerce, and Treasury join me in recommending that the 

Convention be transmitted to the Senate at an early date for its 

advice and consent to ratification, subject to the reservations, understanding, and declarations that are described fully in the attached analysis. 

Respectfully submitted. 

CONDOLEEZZA RICE. 

Attachments: 

1. Detailed analysis of the provisions of the Convention 

2. Travaux pre ́paratoires 


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(1) 

DETAILED ANALYSIS OF THE PROVISIONS OF THE UNITED 

NATIONS CONVENTION AGAINST CORRUPTION 

The following is a detailed analysis of the provisions of the 

United Nations Convention Against Corruption, which consists of 

seventy-one articles divided among eight chapters: (1) ‘‘General 

provisions’’; (2) ‘‘Preventive measures’’; (3) ‘‘Criminalization and 

law enforcement’’; (4) ‘‘International co-operation’’; (5) ‘‘Asset recovery’’; (6) ‘‘Technical assistance and information exchange’’; (7) 

‘‘Mechanisms for implementation’’; and (8) ‘‘Final provisions.’’ In 

addition, the following discussion contains, where relevant, a description of two proposed reservations, a proposed understanding, 

and two proposed declarations. 

Chapter I—General Provisions (Articles 1–4) 

Article 1 (‘‘Statement of Purpose’’) states that the purposes of the 

Convention are to promote and strengthen measures to prevent 

and combat corruption; facilitate international cooperation and 

technical assistance in the prevention of and fight against corruption; and promote integrity, accountability, and the proper management of public affairs and public property. Article 2 (‘‘Use of 

terms’’) defines nine terms used in the Convention. In particular, 

the defined terms ‘‘public official’’ and ‘‘foreign public official’’ are 

crucial to understanding the scope of the Convention, since both 

the preventive measures and criminalization chapters of the Convention use these terms in describing the type of government position toward which a State Party must direct certain measures. 

The Convention’s definition of ‘‘public official’’ gives significant 

deference to a State Party’s domestic law and practice in determining which group of persons must be covered by certain preventive measures and criminalization provisions. A ‘‘public official’’ is, 

for purposes of most of the Convention, defined as any one of three 

categories of persons: (1) a person holding a legislative, executive, 

administrative, or judicial office of the State Party concerned; (2) 

any other person who performs a public function or provides a public service, as defined by and applied in the domestic law of the 

State Party; and (3) any other person defined as a ‘‘public official’’ in the domestic law of such State Party. However, for purposes of 

‘‘some specific measures’’ in the chapter on prevention of the Convention, a State Party may define ‘‘public official’’ as any person 

who performs a public function or provides a public service, as that 

term is defined and applied under the law of that State Party. In 

addition to these references to a State Party’s law, the interpretative notes make clear that each State Party shall determine which 

persons are members of the three categories set forth in the first 

part of the definition. Furthermore, the travaux pre ́paratoires indicate that for countries with subnational units of a self-governing 

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sidered to apply to positions at the subnational level. Accordingly, 

there is significant discretion for federal states such as the United 

States in applying the term ‘‘public official.’’ A ‘‘foreign public official’’ is defined as any person holding a legislative, executive, administrative, or judicial office of a foreign 

country, whether appointed or elected, and any person exercising 

a public function for a foreign country. This definition, which is important for the provision in the Convention that requires each 

State Party to criminalize bribery of foreign public officials, provides clear guidance to each State Party as to which kind of foreign 

officials must be covered by that criminal law. 

Article 3 (‘‘Scope of application’’) elaborates the ambit of the Convention. In general, the Convention applies to the prevention, investigation, and prosecution of corrupt acts and to the freezing, seizure, confiscation, and return of proceeds of offenses established in 

accordance with the Convention. 

One issue that arises throughout the Convention is the question 

of how it can be implemented consistent with the United States’ federal system. With respect to the articles of the Convention that 

require States Parties to establish criminal offenses or related 

measures if they have not already done so (in particular Articles 

15, 16, 17, 23, 25, 27, 29, 31–32, 35–37), it should be noted preliminarily that these obligations apply at the national level. Existing 

U.S. federal criminal law has limited scope, generally covering conduct involving interstate or foreign commerce or another important 

federal interest. Under our fundamental principles of federalism, 

offenses of a local character are generally within the domain of the 

states, but not all forms of conduct proscribed by the Convention 

are criminalized by all U.S. states in the form set forth by the Convention. (For example, some states may not criminalize all of the 

forms of conduct set forth under Article 25 (‘‘Obstruction of justice’’).) Thus, in the absence of a reservation, there would be a narrow category of such conduct that the United States would be obligated under the Convention to criminalize, although under our federal system such obligations would generally be met by state governments rather than the federal government. 

The obligations set forth in the Convention in the area of preventive measures are generally more flexible than those found in the 

chapter on criminalization. Nevertheless, it should be noted that 

preventive measures addressing the conduct of state and local officials are generally handled at the state and local level. While the 

states generally regulate their own affairs in a manner consistent 

with the obligations set forth in the chapter on preventive measures in the Convention, in some cases they may do so in a different 

manner. Therefore, in the absence of a reservation, there may be 

some preventive measures the United States would be required to 

implement under the Convention that are not fully addressed at 

the state level, for example potentially under Articles 6, 9, 12, and 

13. In order to avoid such obligations in the criminalization and 

preventive measures areas, the following reservation is recommended to be included in the Senate’s resolution of advice and 

consent: 

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tion 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 an important component of the legal regime 

within the United States for combating corruption and is 

broadly effective for this purpose. Federal criminal law 

does not apply where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are conceivable situations involving 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. Similarly, in the U.S. system, the states are responsible for preventive measures 

governing their own officials. While the states generally 

regulate their own affairs in a manner consistent with the 

obligations set forth in the chapter on preventive measures 

in the Convention, in some cases they may do so in a different manner. Accordingly, there may be situations where 

state and federal law will not be entirely adequate to satisfy an obligation in Chapters II and III of the Convention. 

The Government of the United States of America therefore 

reserves to the obligations set forth in the Convention to 

the extent they (1) address conduct that would fall within 

this narrow category of highly localized activity or (2) involve preventive measures not covered by federal law governing state and local officials. This reservation does not 

affect in any respect the ability of the United States to 

provide international cooperation to other States Parties in 

accordance with the provisions of the Convention. 

Furthermore, in connection with this reservation, it is recommended that the Senate include the following understanding in 

its resolution of advice and consent: 

The United States understands that, in view of its federalism reservation, the Convention does not warrant the 

enactment of any legislative or other measures; instead, 

the United States will rely on existing federal law and applicable state law to meet its obligations under the Convention. 

Article 4 (‘‘Protection of sovereignty’’) sets forth two standard 

provisions in UN instruments, stating that States Parties respect 

each other’s sovereign equality and territorial integrity and providing that the Convention does not authorize a State Party to undertake in another State’s territory the exercise of jurisdiction and 

performance of functions reserved for the authorities of that other 

State by its domestic law. 

Chapter II—Preventive measures (Articles 5–14) 

Chapter II contains a set of measures against corruption—other 

than criminalization—that States Parties are to take to minimize 

the opportunity for corrupt acts to occur in the first place. Many 


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of the articles in the chapter expressly provide that such measures 

are to be undertaken in accordance with the fundamental legal 

principles of each State Party’s legal system. Most measures are directed toward corruption in the public sector, although the chapter 

also contains provisions to prevent corruption in the private sector 

and to promote the participation of civil society in the fight against 

corruption. Many of the obligations set forth in these articles include possible examples of ways in which a State Party might implement those obligations, although the specifics of such measures 

are left to the individual State Party. 

As noted above it is recommended that the United States take 

a reservation to the obligations of this chapter to enable its implementation consistent with our federal system. With this reservation, the United States can implement the obligations of this chapter under existing law. 

Each State Party is required under Article 5 (‘‘Preventive anticorruption policies and practices’’) to develop and implement or 

maintain effective and coordinated anti-corruption policies that 

promote goals such as transparency and accountability. Each State 

Party also must endeavor to review periodically its relevant legal 

instruments and administrative measures to determine whether 

they remain adequate to combat corruption, and is required, as appropriate, to collaborate with other States Parties and with relevant international and regional organizations to develop and promote measures to prevent corruption. 

Article 6 (‘‘Preventive anti-corruption body or bodies’’) requires 

that each State Party establish or maintain one or more independent, adequately staffed bodies to prevent corruption. Such 

body might, among other objectives, be tasked to implement the 

anti-corruption policies required by Article 5, or to increase and 

disseminate knowledge about the prevention of corruption. Each 

State Party is to inform the UN Secretary-General of the name and 

address of the authority that may assist other States Parties in developing preventive measures. For the United States, these authorities are the Department of Justice, Office of Justice Programs, 

National Institute of Justice and the Department of State, Bureau 

of International Narcotics and Law Enforcement Affairs, 

Anticorruption Unit, and the United States would so notify the depositary. 

States Parties must endeavor, under Article 7 (‘‘Public sector’’) i 

where appropriate, to adopt, maintain, and strengthen systems for 

the recruitment, hiring, retention, promotion, and retirement of 

civil servants and, where appropriate, other non-elected public officials. Such systems should be based on transparent and objective 

principles, such as merit, include adequate procedures for the selection and training for positions considered particularly vulnerable to 

corruption, promote adequate and equitable remuneration, and promote education and training. Each State Party also shall consider 

whether to prescribe criteria concerning the candidature for and 

election to public office, and whether to enhance transparency in 

the funding of candidatures for public office and of political parties. 

The Convention does not require that such steps be taken. 


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Article 8 (‘‘Codes of conduct for public officials’’) obliges States 

Parties to promote honesty and responsibility among its public officials. 

Specifically, each State Party must endeavor to apply a code or 

standard of conduct to its public officials and, where appropriate, 

require public officials to declare to appropriate authorities their 

outside activities, employment, and investments. Each State Party 

must also consider establishing systems to facilitate reporting by 

public officials of acts of corruption and the taking of measures 

against public officials who violate codes or standards of conduct. 

Article 9 (‘‘Public procurement and management of public finances’’) requires each State Party to establish transparent and 

fair government procurement systems based on competition and objective criteria for decision-making, and provides a general description as to the types of issues such systems shall address, such as 

the publication in advance of conditions for participation in procurements. It also requires each State Party to take appropriate 

measures to promote accountability and transparency in the management of public finances, and provides a general description as 

to the types of issues such measures should address, such as timely 

reporting on revenue and expenditures. 

Under Article 10 (‘‘Public reporting’’) each State Party shall take 

measures to enhance transparency in its public administration. 

The article provides examples of such measures, which could include procedures and reports that allow public access to information. 

Article 11 (‘‘Measures relating to the judiciary and prosecution 

services’’) focuses on preventing corruption in the judiciary. With 

due regard for judicial independence, each State Party shall take 

measures to strengthen integrity and prevent opportunities for corruption among judges. 

Article 12 (‘‘Private sector’’) requires each State Party to take 

measures to prevent corruption and enhance accounting and auditing standards in the private sector, and it sets forth a list of possible measures to achieve these ends. Notably, States Parties are 

required to take measures to prohibit acts such as the establishment of off-the-books accounts and the recording of non-existent expenditures that are done for the purpose of committing any of the 

offenses established in accordance with the Convention. In addition, States Parties are required to disallow the tax deductibility of 

bribes. 

Because civil society plays an important role in drawing attention to and fighting corruption, Article 13 (‘‘Participation of society’’) of the Convention requires each State Party to take appropriate measures to promote the active participation of individuals 

and groups outside the public sector in the prevention of and fight 

against corruption. The article provides general examples of how 

States Parties should strengthen the participation of civil society, 

including promoting the contribution of the public to decision-making and ensuring the public has effective access to information. 

Each State Party must ensure that the relevant anti-corruption 

bodies referred to in Article 5 shall, where appropriate, be available 

to receive reports of incidents that may be considered to constitute 

offenses established in accordance with the Convention. 


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Article 14 (‘‘Measures to prevent money-laundering’’) mandates a 

series of anti-money-laundering measures in the realm of financial 

regulation rather than criminal law. As part of a comprehensive regime, States Parties must impose customer identification, customer 

due diligence (‘‘know your customer’’), and suspicious transaction 

reporting requirements, and must consider the establishment of financial intelligence units. This article closely follows the text of Article 7 of the UN Convention Against Transnational Organized 

Crime, although it contains some modifications. Principal updates 

in Article 14 include: clear extension of anti-money-laundering reporting obligations to alternative remittance systems; a requirement to identify beneficial owners when appropriate; and a requirement that countries consider establishing wire originator information requirements. Like the Transnational Organized Crime Convention, Article 14 further calls upon States Parties, in establishing 

their domestic regulatory regimes, to be guided by existing international standards, which the negotiating record makes clear 

would include the principles elaborated by the Financial Action 

Task Force and its regional counterparts. The travaux 

pre ́paratoires articulate that references to ‘‘relevant initiatives of 

regional, interregional and multilateral organizations’’ include references to the recent revisions of the Financial Action Task Force’s 

Forty Recommendations and Eight Special Recommendations. 

Chapter III—Criminalization and law enforcement (Articles 15–42) 

Chapter III contains three types of provisions: substantive provisions under which a State Party must criminalize certain acts; provisions under which a State Party must merely consider criminalizing certain acts; and provisions related to participation, attempt, 

and procedural issues such as jurisdiction and statutes of limitations. 

As noted above, it is recommended that the United States take 

a reservation to the obligations of this chapter to enable its implementation consistent with the current distribution of criminal jurisdiction under our federal system. With this reservation and given 

the fact that a number of provisions of this chapter that might 

have given rise to gaps are non-obligatory (e.g., portions of Articles 

16, 27, 30–32, 37, and 39; as well as the entirety of Articles 18–

22, 24, 33, and 41) the United States can implement the obligations 

of this chapter under existing federal and state law. 

Article 15 (‘‘Bribery of national public officials’’) is the first of five 

articles that require States Parties to adopt criminal legislation regarding specified offenses. This article requires a State Party to 

criminalize, when committed intentionally, the promise, offering or 

giving of bribes to or the solicitation or acceptance of bribes by its 

domestic public officials. 

Another criminalization obligation follows in Article 16, which requires States Parties to criminalize, when committed intentionally, 

the promise, offering or giving of bribes to foreign public officials 

or officials of a public international organization in order to obtain 

or retain business or other undue advantage in relation to the conduct of international business. It also requires States Parties to 

consider criminalizing the solicitation or acceptance of bribes by 

foreign public officials. 


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Embezzlement is the subject of Article 17 (‘‘Embezzlement, misappropriation or other diversion of property by a public official’’). 

This article requires each State Party to criminalize, when committed intentionally, the embezzlement by a public official of any 

property entrusted to him or her. by virtue of his or her position. 

In Article 18 (‘‘Trading in influence’’), States Parties are to consider whether to criminalize the provision of an undue advantage 

to or acceptance by a third party to induce that person to use his 

or her real or supposed influence to obtain, from a public authority 

of the State Party, an undue advantage for the original instigator 

of the act. 

Similarly, Article 19 (‘‘Abuse of functions’’) requires a State Party 

to consider criminalizing a public official’s abuse of his or her function in order to obtain an undue advantage for himself or herself 

or for another person. 

Article 20 (‘‘Illicit enrichment’’) was included at the insistence of 

a number of the developing nations. The article requires States 

Parties to consider establishing the offense known as ‘‘illicit enrichment,’’ which is defined as a significant increase in the assets of 

a public official that such official cannot reasonably explain in relation to his or her lawful income. Such an offense could require a 

defendant to bear the burden of establishing the legitimate source 

of the income in question. This article is not obligatory. 

Article 21 (‘‘Bribery in the private sector’’) is another article 

under which a State Party must consider whether to criminalize 

the behavior described therein. It addresses the bribing of or the 

receipt of a bribe by any person, when committed in the course of 

economic or business activity, in order that the person act or refrain from acting in breach of his or her duties. 

Another discretionary criminalization provision is contained in 

Article 22 (‘‘Embezzlement of property in the private sector’’). 

Under this article, each State Party shall consider criminalizing 

embezzlement by a person who works in the private sector, in the 

course of economic or commercial activities, of property entrusted 

to him or her by virtue of his or her position. 

Article 23 (‘‘Laundering of proceeds of crime’’) contains the fourth 

affirmative criminalization obligation. This provision mandates the 

adoption of criminal law provisions, in accordance with the fundamental principles of a State Party’s domestic law, punishing the 

conversion, transfer, concealment, or disguise of property with 

knowledge that it is the proceeds of crime. In more discretionary 

language, the article requires that, subject to the basic concepts of 

its legal system, a State Party also must criminalize the acquisition, possession, or use of property with knowledge that it is the 

proceeds of a crime, along with participation in, association with, 

conspiracy to commit, or attempts to aid, abet, facilitate, or counsel 

the commission of covered offenses. 

The predicate offenses for money laundering must include a comprehensive range of criminal offenses established in accordance 

with the Convention. States Parties also must furnish the UN Secretary-General with copies of its laws giving effect to this article 

and of any subsequent changes to its laws. Article 23, which tracks 

in large part Article 6 of the UN Convention Against Transnational 

Organized Crime, is of critical importance to global anti-moneyVerDate Aug 31 2005 00:08 May 16, 2006 Jkt 049118 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 E:\HR\OC\TD006.XXX TD006

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laundering efforts because it imposes an international obligation on 

States Parties to expand the reach of their laundering laws to predicate offenses associated with corruption. References to the use of 

circumstantial evidence that are present in Article 6 of the 

Transnational Organized Crime Convention, were not repeated in 

Article 14, due to the inclusion of a broader article on the use of 

such evidence in Article 28. 

Article 24 (‘‘Concealment’’) states that each State Party shall consider criminalizing, when committed intentionally after the commission of any of the offenses established in accordance with the 

Convention, the concealment or continued retention of property by 

a person who knows that such property is the result of such offenses. 

The fifth and final criminalization obligation established by the 

Convention—obstruction of justice in criminal proceedings related 

to offenses established in accordance with the Convention—appears 

in Article 25 (‘‘Obstruction of justice’’) . As defined, the offense has 

two variants: first, the intentional use of force, threats, or intimidation, or the promise, offering, or giving of an undue advantage, in 

order to induce false testimony or to interfere in the giving of testimony or the production of evidence; and second, the intentional use 

of force, threats, or intimidation to interfere with the exercise of official duties by a justice or law enforcement official. 

Article 26 (‘‘Liability of legal persons’’) compels States Parties to 

fill what historically has been a loophole in the ability of many 

States to combat corruption: their inability to hold not only natural 

persons but also legal ones liable for illegal conduct. This provision 

requires the creation of criminal, civil, or administrative liability, 

and accompanying sanctions, for corporations that participate in 

the offenses established in accordance with the Convention. Such 

corporate liability is without prejudice to the criminal liability of 

the natural persons who committed the offenses. 

Article 27 (‘‘Participation and attempt’’) provides that participating in any capacity in an offense established in accordance with 

the Convention shall be made criminal. States Parties also may decide to criminalize the attempt to commit or the preparation to 

commit such an offense. 

Article 28 (‘‘Knowledge, intent and purpose as elements of an offense’’) recognizes that knowledge, intent, or purpose, when a requisite element of a crime, may be inferred from objective factual 

circumstances. 

Under Article 29 (‘‘Statute of limitations’’), each State Party 

shall, where appropriate, establish a long statute of limitations period in which to commence proceedings for an offense established 

in accordance with this Convention, and provide for a longer statute of limitations (or its suspension) where the accused has evaded 

the administration of justice. During the negotiations, the United 

States described its statutes of limitations and indicated that it 

considered those statutes of limitations to be sufficiently long as to 

meet any obligations under this article. The U.S. statement met 

with no objection from other States. 

Article 30 (‘‘Prosecution, adjudication and sanctions’’) identifies a 

series of important considerations for States Parties in pursuing 

prosecutions relating to offenses established in accordance with the 


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Convention. They range from ensuring that criminal law sanctions 

are sufficiently serious to minimizing defendants’ risk of flight. In 

addition, Article 30(2) requires each State Party to establish or 

maintain, in accordance with its legal system and constitutional 

principles, an appropriate balance between any immunities it affords to its public officials and the ability to prosecute offenses established in accordance with this Convention. Article 30(9) makes 

clear, however, that nothing in the Convention shall affect the 

principle that the description of the offenses established in accordance with the Convention and of the applicable legal defenses or 

other legal principles controlling the lawfulness of conduct is reserved to the domestic law of a State Party. 

The freezing, seizing, and confiscation of proceeds of crime are 

the subject of Article 31 (‘‘Freezing, seizure and confiscation’’). The 

article requires a State Party to adopt measures, to the greatest extent possible within its legal system, to enable confiscation of proceeds of, property of equivalent value, or property used in or detained for use in, offenses established in accordance with the Convention. Each State Party’s courts or other competent authorities 

shall be empowered to order that bank and other records may be 

made available to enable confiscation proceedings to go forward, 

and bank secrecy may not be invoked in this context. 

Article 32 (‘‘Protection of witnesses, experts and victims’’) reflects 

a concern that those accused of corruption not undermine judicial 

processes. This provision obligates States Parties to take appropriate measures within their means to protect witnesses, experts, 

and victims (to the extent that they are witnesses) and, as appropriate, their relatives and other persons close to them, from retaliation or intimidation when they testify in criminal cases related to 

the offenses established in accordance with the Convention. Among 

the measures a State Party may, in its discretion, implement are 

witness protection programs and evidence-taking techniques that 

ensure the safety of witnesses—for example, video link from a remote location. Under this article, States Parties also are encouraged to consider assisting one another in providing witness protection. The article also requires a State Party, subject to its domestic 

law and in a manner not prejudicial to the rights of the defense, 

to enable victims’ views to be considered during criminal proceedings. Many provisions of this article permit the exercise of discretion in particular cases, while others are either non-obligatory 

or are already consistent with or subject to U.S. state and federal 

laws; therefore, the article can be implemented by the United 

States under current statutes and regulations. 

A State Party must consider, under Article 33 (‘‘Protection of reporting persons’’), incorporating into its domestic law protection 

against unjustified treatment for persons reporting in good faith 

and on reasonable grounds to the competent authorities any facts 

concerning offenses established in accordance with this Convention. 

Article 34 (‘‘Consequences of acts of corruption’’) requires that 

each State Party take measures, in accordance with fundamental 

principles of its domestic law, to address the consequences of corruption. The article contains no specifically mandated implementation measures. 


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Article 35 (‘‘Compensation for damage’’) is intended to establish 

the principle that States Parties should ensure that they have 

mechanisms permitting persons or entities suffering damage to initiate legal proceedings. It requires a State Party to take such measures as may be necessary to ensure that entities or persons who 

have suffered damage as a result of an act of corruption may initiate legal proceedings against those responsible for such damage 

in order to obtain compensation. Some States, including the United 

States, were concerned that this article could be read to require or 

encourage a State to open its courts to civil suits unrelated or only 

tangentially related to that State, and for acts only marginally related to the act of corruption. In response to these concerns, the 

travaux pre ́paratoires clarify that Article 35 was intended to address only legal proceedings against those who commit acts of corruption, rather than those who may be associated with others who 

commit acts of corruption. The article intentionally provides the 

States Parties significant flexibility in its implementation. The article does not restrict the right of a State Party to decide the precise 

circumstances under which it will make its courts available, nor 

does it require or endorse a particular choice made by a State 

Party in determining how it will meet its obligations under this article. 

Article 35 would not have any direct effect on the potential exposure of U.S. companies or others in private litigation in the United 

States. The current laws and practices of the United States are in 

compliance with Article 35, and the United States does not construe Article 35 to require broadening or enhancing current U.S. 

law and practice in any way. U.S. jurisprudence permits persons 

who have suffered from criminal acts such as bribery to seek damages from the offenders under various theories. These remedies are 

sufficient to comply with this article. It should be noted that nothing in this article should be interpreted as requiring the United 

States to create a private right of action under the Foreign Corrupt 

Practices Act or as expanding the scope of the Alien Tort Statute 

to permit foreigners to litigate corruption claims in U.S. courts. The 

Convention does not itself suggest that corruption is a stand-alone 

violation of international law (but rather is something that States 

Parties should prohibit under their domestic law. Accordingly, this 

Convention does not signify that corruption is a norm that is specific, universal, and obligatory for purposes of the Alien Tort Statute. To avoid any potential confusion over these issues (it is recommended below that the Senate include a declaration in its resolution of advice and consent that makes clear that the provisions 

of the Convention (with the exception of Articles 44 and 46) are 

non-self-executing. None of the provisions of the Convention creates 

a private right of action. 

Article 36 (‘‘Specialized authorities’’) complements Article 6 in requiring a State Party to ensure the existence of at least one body 

that is specialized in combating corruption through law enforcement. The travaux pre ́paratoires acknowledge that this body may 

be the same body that a State Party establishes to comply with Article 6. 

Pursuant to Article 37 (‘‘Cooperation with law enforcement authorities’’), a State Party must take appropriate measures to enVerDate Aug 31 2005 00:08 May 16, 2006 Jkt 049118 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 E:\HR\OC\TD006.XXX TD006

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courage participants in offenses established in accordance with this 

Convention to assist law enforcement investigations. In so doing, 

States Parties are to consider reducing criminal penalties or granting immunity from prosecution for those who cooperate substantially. This article also envisages that States Parties will consider 

arrangements with one another to apply these inducements to persons located in one State Party who can assist an investigation into 

such offenses in another. 

The importance of cooperation between different elements of a 

State Party’s domestic system is highlighted by Article 38 (‘‘Cooperation between national authorities’’). A State Party must encourage cooperation between its public authorities and the authorities in that State Party that investigate and prosecute criminal offenses. Similarly, under Article 39 (‘‘Cooperation between national 

authorities and the private sector’’), a State Party shall take the 

necessary measures to encourage cooperation between national investigating and prosecuting authorities and private sector entities 

on matters relating to the commission of offenses established in accordance with the Convention, and to consider encouraging its nationals and others who habitually reside in its territory to report 

to those authorities regarding the commission of such offenses. 

Article 40 (‘‘Bank secrecy’’) supplements Article 31’s treatment of 

bank secrecy in the freezing and confiscation context by more 

broadly requiring each State Party to ensure that its domestic law 

contains appropriate mechanisms to avoid, in domestic criminal 

prosecutions, obstacles that may arise out of bank secrecy laws. 

Article 41 (‘‘Establishment of criminal record’’) urges States Parties to consider adopting measures enabling an offender’s previous 

conviction in one State to be taken into consideration in another 

State Party’s subsequent criminal proceeding relating to offenses 

established in accordance with this Convention. 

Article 42 (‘‘Jurisdiction’’) lays out the jurisdictional principles 

governing the Convention’s mandatory criminalization provisions 

generally. A State Party must establish jurisdiction in respect of offenses established in accordance with the Convention when committed in its territory or on board a vessel flying its flag or an aircraft registered under its laws. The latter jurisdiction (i.e., on board 

a vessel or aircraft) is not expressly extended under current U.S. 

law to these offenses—bribery of national public officials, bribery of 

foreign public officials and officials of public international organizations, embezzlement, money laundering, obstruction of justice, and 

participation—although certain cases can be pursued on other jurisdictional bases. For example, in most situations involving bribery of U.S. public officials, misappropriation of government property, or obstruction of U.S. investigations or proceedings, U.S. federal jurisdiction may extend over such offenses occurring outside 

the United States, either through an express statutory grant of authority (e.g., Title 18, United States Code, Sections 1512(h), 1956(f), 

1957(d)), or, most frequently, through application of principles of 

statutory interpretation. However, since under current U.S. law we 

cannot always ensure our ability to exercise jurisdiction over these 

offenses if they take place outside our territory on such vessels or 

aircraft, a reservation will be required for those cases in which 

such jurisdiction is not available. Accordingly, it is recommended 


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that the following reservation be included in the Senate’s resolution of advice and consent: 

The Government of the United States of America reserves the right not to apply in part the obligation set 

forth in Article 42, paragraph 1(b) with respect to the offenses established in accordance with 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 

many 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 shall implement paragraph 1(b) to the extent provided for under its federal law. 

A State Party is permitted, but not required, to establish jurisdiction over the five offenses when committed against one of its nationals, by one of its nationals or residents, or against the State 

Party itself. (Nationality and passive personality jurisdiction is limited under U.S. law, but is common in European countries and 

other civil law jurisdictions.) Permissive jurisdiction is further envisioned over the offense of money laundering, as defined in the Convention, where it is committed outside a State Party’s territory 

with a view to the commission of certain offenses within its territory. 

Article 42 requires a State Party to establish its jurisdiction 

when it refuses to extradite an offender for offenses covered by the 

Convention solely because the person is one of its nationals. The 

United States extradites its nationals, so this provision will impose 

no new requirements on our legal system. It will, however, help ensure that States Parties that do not extradite their nationals take 

steps to ensure that participants in offenses related to corruption 

face justice there even for crimes committed abroad. 

Chapter IV—International cooperation (Articles 43–50) 

Article 43 (‘‘International cooperation’’) provides an overview, 

forecasting the requirements in other articles of this chapter that 

States Parties cooperate in criminal matters, and articulating that 

States Parties shall consider whether to cooperate, where appropriate, with each other in civil and administrative matters relating 

to corruption. The article also clarifies how the issue of dual criminality, which arises in the context of extradition and mutual legal 

assistance, is to be analyzed. 

Article 44 (‘‘Extradition’’) elaborates a regime for extradition of 

persons for offenses established in accordance with this Convention, as long as the offense is criminal under the laws of the requesting and the requested States Parties. The article provides 

that States Parties may make extradition conditional on a bilateral 

extradition treaty. Pursuant to this provision, for the United 

States, the Convention will not provide a substitute international 

legal basis for extradition, which will continue to be governed by 

U.S. domestic law and applicable bilateral extradition treaties, including their grounds for refusal. As such a State, the United 

States is obliged by Article 44(6) to so notify the UN SecretaryVerDate Aug 31 2005 00:08 May 16, 2006 Jkt 049118 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 E:\HR\OC\TD006.XXX TD006

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General. Accordingly, upon ratification of the Convention, the 

United States would notify the depositary that pursuant to Article 

44(6) it will not apply Article 44, paragraph 5. 

For the United States, the principal legal effect of this article 

would be to deem the offenses established in accordance with the 

Convention (i.e., the mandatory offenses) to be extraditable offenses 

under U.S. bilateral extradition treaties. The result would be to expand the scope of older U.S. bilateral extradition treaties that list 

extraditable offenses and were concluded at a time when offenses 

such as money laundering did not yet exist. 

For numerous other States Parties that do not make extradition 

conditional on the existence of a separate extradition treaty, however, the Convention can, with regard to the offenses it covers, afford that international legal basis inter se. Article 44(11) requires a State Party that does not extradite its 

nationals, if requested by another State Party seeking extradition 

of such a national for offenses established in accordance with the 

Convention, to submit the case for purposes of domestic prosecution 

and to conduct the proceedings in the same manner as it would for 

purely domestic offenses of similar gravity. (This provision is the 

substantive obligation to which the above-mentioned jurisdictional 

provision in Article 42 relates.) A State Party may satisfy this obligation instead by temporarily surrendering its national for trial in 

the State Party that sought extradition, on the condition that he 

or she be returned to serve the resulting sentence. 

Article 44 also contains non-mandatory provisions designed to facilitate extradition, including, for example, a mechanism for provisional arrest in urgent circumstances, as well as an exemption 

from the obligation to extradite in a case where the requested State 

Party has substantial grounds for believing that the request has 

been made for the purpose of prosecuting or punishing a person on 

account of sex, race, religion, nationality, ethnic origin or political 

opinions, or that compliance with the request would cause prejudice to that person’s position for any of these reasons. 

Under Article 45 (‘‘Transfer of sentenced persons’’), States Parties may consider entering into bilateral or multilateral agreements 

or arrangements to enable the transfer to their territory of incarcerated persons who have been convicted abroad for offenses established in accordance with the Convention, in order that they may 

complete their prison sentences in their countries of nationality. 

Pursuant to Article 46 (‘‘Mutual legal assistance’’), States Parties 

are obligated to afford each other the widest measure of mutual 

legal assistance in investigations, prosecutions, and judicial proceedings in relation to offenses covered by this Convention. Pursuant to paragraph 6 of Article 46, where other international agreements governing mutual legal assistance exist between States Parties they shall be utilized and the Convention does not affect their 

provisions. This will be true for the United States in many instances, due to our extensive network of bilateral and regional mutual legal assistance treaties (‘‘MLATs’’). It is anticipated, however, 

that the United States will make and receive requests for mutual 

assistance under this Convention in a number of corruption-related 

cases involving States Parties with which we lack an applicable bilateral or regional agreement. 


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Consequently, Article 46, in particular paragraphs 9–29, provides 

a framework for mutual legal assistance to States Parties with 

which a State Party does not have a separate mutual legal assistance treaty obligation that is of a nature comparable to such U.S. 

bilateral and multilateral MLATs. This article identifies the range 

of purposes for which mutual assistance may be requested and the 

requirements for the content of requests for assistance, and states 

that, even absent a request, one State Party also may spontaneously transmit to another information relating to criminal matters 

that it believes could assist inquiries or proceedings there. Detained persons may be transferred voluntarily for purposes of providing evidence in another State Party as well. 

Under paragraph 9 of Article 46, States Parties may (although 

they are encouraged not to) decline to render mutual legal assistance in certain cases on the ground of an absence of dual criminality. Where a request involves coercive action, matters of a de 

minimis nature, or matters for which the cooperation sought is 

available under other provisions of the Convention (such as law enforcement cooperation pursuant to Article 48), States Parties may 

decline to render assistance in the absence of dual criminality. 

However, where a request involves non-coercive action, States Parties are to provide mutual legal assistance unless inconsistent with 

the basic concepts of its legal system. Thus, in addition to the fundamental grounds for refusal set forth in other paragraphs, the 

United States could decline a request for non-coercive action where 

the offense is fundamentally at odds with U.S. notions of due process, presumption of innocence, or other basic tenets of U.S. jurisprudence. 

As previously noted, Article 46 establishes certain modern procedures for mutual legal assistance that apply in the absence of another treaty between the Parties concerned. These include a requirement to designate central authorities to handle requests. The 

Department of Justice, Criminal Division, Office of International 

Affairs, would serve as the Central Authority for the United States. 

Each State Party is obliged by Article 46(13) to notify the UN Secretary-General of its designated Central Authority. Accordingly, 

upon ratification of the Convention, the United States would notify 

the depositary that the Office of International Affairs, United 

States Department of Justice, Criminal Division, is designated as 

its central authority for mutual legal assistance under the Convention. 

Under Article 46, paragraph 14, a State Party must specify the 

language in which mutual assistance requests to it shall be made. 

Accordingly, upon ratification of the Convention, the United States 

would notify the depositary that requests for mutual legal assistance under the Convention should be made in, or accompanied by 

a translation into, the English language. 

In addition, Article 46, paragraph 18, encourages the use of 

video-conferencing as an alternative to taking of evidence in person. The article also incorporates provisions found in a number of 

U.S. bilateral MLATs generally precluding a requesting State 

Party from using information or evidence in investigations, prosecutions, or judicial proceedings other than those identified in the 

request, unless the requested State Party consents (see paragraph 


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19). In additional a requested State Party may be obliged to keep 

confidential the fact and substance of a request, except to the extent necessary to execute it, or where the information or evidence 

provided is exculpatory to an accused person (see paragraph 20). 

Article 46, paragraph 21, specifies four grounds for refusing mutual legal assistance: (a) if the request does not conform to the requirements of the Convention; (b) if the requested State Party considers that execution is likely to prejudice its sovereignty, security, 

ordre public, or other essential interests; (c) if domestic law in the 

requested State Party would prohibit the action requested with regard to any similar offense under its own jurisdiction; or (d) if 

granting the request would be contrary to the legal system of the 

requested State Party relating to mutual legal assistance. These 

grounds for refusal are broader than those generally included in 

U.S. MLATs, and, in view of the large number of countries that 

may become Party to the Convention, will serve to ensure that our 

mutual assistance practice under the Convention corresponds with 

sovereign prerogatives. 

Article 46, paragraphs 8 and 22 provide, respectively, that assistance may not be refused on the ground of bank secrecy, or on the 

sole ground that the offense involves a fiscal matter. Moreover, if 

a request could be refused on any of the general grounds for refusal 

set forth in paragraph 21 or postponed on the ground that it interferes with an ongoing domestic investigation, prosecution, or judicial proceeding, the States Parties involved shall consult to consider whether it may be granted subject to terms and conditions. 

If the requesting State Party accepts assistance subject to conditions, it is bound to comply with those conditions. 

Finally, Article 46 addresses several other aspects of mutual assistance that are relevant in the absence of another MLAT in force 

between the States Parties concerned. It sets forth a procedure for 

providing safe conduct guarantees to a person who travels to a requesting State Party in order to give evidence (see paragraph 27). 

Ordinary costs of executing mutual assistance requests are, as a 

rule, to be borne by the requested State Party, but if substantial 

or extraordinary expenses are entailed the requesting and requested States Parties shall consult on their allocation (see paragraph 28). States Parties also may rely on the mutual assistance 

mechanism of the Convention to obtain from another State Party 

government records, documents, or information on the same terms 

as they are available to the general public under domestic law; if 

not available to the general public, however, a requesting State 

Party’s access to them lies in the discretion of the requested State 

Party (see paragraph 29). 

The possibility of transferring criminal proceedings between 

States Parties is envisioned in Article 47 (‘‘Transfer of criminal proceedings’’). This article calls on States Parties to consider the possibility of transferring criminal proceedings, recognizing that transfer can be considered to be efficient in cases where several jurisdictions are involved with different aspects of acts related to corruption. 

The importance of police-to-police cooperation, as distinct from 

formal mutual legal assistance, is highlighted by Article 48 (‘‘Law 

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sistent with their respective domestic legal and administrative systems, to enhance effective action among their law enforcement authorities, inter alia, by sharing information on persons, groups, and 

property involved in offenses covered by the Convention. The proviso that cooperation shall be conducted consistent with the respective domestic and administrative systems provides the flexibility 

required to enable the exercise of discretion in making determinations on the appropriateness of a request for cooperation on a caseby-case basic. 

In order better to combat organized criminal activities that span 

borders, Article 49 (‘‘Joint investigations’’) encourages States Parties to reach agreements or arrangements, either general or casespecific, to conduct joint investigations. Article 50 (‘‘Special investigative techniques’’) in turn contemplates that, if permitted by the 

basic principles of its domestic legal system, law enforcement authorities be given the ability to use controlled delivery, electronic 

surveillance, and undercover operations. Use of these techniques at 

the international level would be regulated by the States Parties involved through general or case-specific agreements or arrangements. 

Chapter V—Asset Recovery (Articles 51–59) 

Article 51 states the general principle that States Parties should 

cooperate in asset recovery cases. 

Article 52 requires States Parties to take certain preventive 

measures specifically focused on detection of transactions or deposits involving corrupt public officials. States Parties must require financial institutions to verify the identity of customers, take reasonable steps to determine the identity of beneficial owners of funds 

deposited into high-value accounts, and to conduct enhanced scrutiny of accounts held by individuals who are or have been in prominent public positions. The travaux pre ́paratoires make clear that 

these requirements are to be implemented on a national basis with 

due regard to particular risks of money laundering. For example, 

some countries will apply the enhanced scrutiny standards to foreign officials only, and other countries may wish to apply these 

standards to domestic officials as well. The article further requires 

adequate record keeping by financial institutions and prohibits the 

establishment of banks with no physical presence. 

Paragraph 5 of this article requires States Parties to consider 

taking such measures as may be necessary to establish financial 

disclosure systems for public officials as well as mechanisms for 

sharing information obtained through these systems. Paragraph 6 

requires States Parties to consider establishing measures to require 

reporting by appropriate public officials of foreign financial accounts. 

Article 53 (‘‘Measures for direct recovery of property’’) requires 

each State Party to have three basic methods for allowing another 

country to make a direct claim, like any other private litigant, on 

property located in its territory, where that property is acquired 

through the commission of one of the offenses that must be established by all States Parties in accordance with Chapter III of the 

Convention. Such direct recovery would take place without recourse 

to mutual legal assistance procedures. First, States Parties must 


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permit other States Parties to initiate civil actions in their courts 

to establish title or ownership of the property in question. Second, 

States Parties must have a mechanism by which their courts can 

order that another State Party be compensated or paid damages, 

such as through court-ordered restitution following a criminal conviction. Finally, States Parties are required to have a mechanism 

in confiscation proceedings for allowing the recognition of another 

State Party’s claim as a legitimate owner of the property. 

Article 54 (‘‘Mechanisms for recovery of property through international cooperation in confiscation’’) requires States Parties to establish a legal framework to enable them to provide assistance to 

other States Parties in the recovery of assets acquired through the 

commission of one of the offenses that must be criminalized by all 

States Parties in accordance with Chapter III of the Convention. 

Specific mechanisms required are (a) authority to give effect to foreign confiscation judgments, and (b) domestic procedures to confiscate property of foreign origin involved in offenses over which it 

may have jurisdiction. States Parties are also required to consider 

establishing mechanisms for confiscation in the absence of a criminal conviction. 

Paragraph 2 of Article 54 requires States Parties to have certain 

mechanisms for freezing or seizing property, including on the basis 

of a freezing or seizure order by another State Party, or upon a request by another State Party that provides sufficient grounds for 

taking such action. In addition, States Parties are to consider establishing additional measures for freezing or seizing property, for 

example, on the basis of a foreign arrest or charge. 

Article 55 (‘‘International cooperation for purposes of confiscation’’) specifies how the mechanisms established pursuant to Article 

54 will be used in practice in asset recovery cases involving the 

commission of one of the offenses that must be criminalized. Paragraph 1 requires States Parties receiving a request for assistance 

from another State Party to use the mechanisms established pursuant to Articles 31 and 54 to seek either an order of confiscation or 

the execution of a foreign judgment in connection with one of the 

mandatory offenses under the Convention. Paragraph 2 requires 

that State Parties utilize the freezing and seizure mechanisms established in accordance with Articles 31 and 54 in response to a request from another State Party. 

Paragraph 3 specifies that the procedures to be used in implementing this article are mutual legal assistance procedures and 

that the provisions of Article 46 on mutual legal assistance apply, 

including the exceptions to the obligation to provide assistance. It 

also details the type of information that must be provided by the 

requesting State Party in its request for assistance. Paragraph 4 

notes the continued application of domestic law and other bilateral 

and multilateral agreements. Paragraph 7 provides for important 

additional safeguards by stating that assistance may be refused if 

the requesting State Party does not provide sufficient and timely 

evidence or if the value of the property in question is of a de minimis value. Paragraph 8 requires that before provisional measures 

are lifted, the requested State Party should consult with the requesting State Party. Finally, paragraph 9 says that nothing in the 


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article should be construed as prejudicing the rights of bona fide 

third parties. 

Article 56 (‘‘Special cooperation’’) provides that States Parties 

should endeavor to engage in spontaneous information sharing 

with each other where such information sharing would assist another party in an asset recovery case. 

Article 57 (‘‘Return and disposal of assets’’) sets forth a framework for the disposition of property confiscated by one State Party 

at the request of another. Paragraph 1 makes clear that disposition 

is to take place in accordance with domestic law of the State Party 

executing the confiscation and the provisions of the Convention, in 

particular Articles 31 and 55. Paragraph 2 requires each State 

Party to have in place mechanisms to permit, at the request of another State Party, the return of confiscated property to rightful 

owners, taking into account the rights of bona fide third parties. 

Paragraph 3 describes how the mechanisms to be established in 

accordance with paragraph 2 are to be used in specific kinds of 

cases. This paragraph also makes clear that disposition of property 

is handled using mutual legal assistance procedures provided for in 

Articles 46 and 55. In other words, for example, the exceptions to 

the obligation to provide mutual legal assistance set forth in Article 

46(21) apply to the disposition of property as well. 

Subject to these protections, paragraph 3(a) states that where a 

State Party enforces a confiscation judgment of another State Party 

involving public funds embezzled from the requesting State Party, 

the requested State Party shall return the property to the requesting State Party. The provision does not specify whether international asset sharing, procedures to compensate victims, or other 

mechanisms must be used to effect such a return. 

Paragraph 3(b) provides that, where the property involved is the 

proceeds of an offense other than embezzlement of public funds, the 

requested State Party shall return the property to the requesting 

State Party where the requesting State Party reasonably establishes its ownership of the property prior to the offense or where 

the requested State Party, at its discretion, recognizes damage to 

the requesting State Party as a basis for return. Finally, paragraph 

3(c) provides that in all cases not covered by paragraphs 3(a) and 

3(b), the requested State Party will give priority consideration to 

returning the property to the requesting State Party, returning the 

property to prior legitimate owners, or compensating victims of 

crime. 

Paragraph 4 notes that the requested State Party may deduct 

reasonable costs before disposition of the property. The travaux 

pre ́paratoires indicate these costs are intended to be actual expenses rather than finders’ fees or other unspecified charges. Paragraph 5 provides for the possibility of case-by-case bilateral agreements on disposition of property. 

Article 58 requires States Parties to consider the establishment 

of a financial intelligence unit (‘‘FIU’’) to assist in cooperation in 

asset recovery cases. The travaux pre ́paratoires make clear that the 

same FIU established in accordance with Article 14 may be used 

to comply with the provisions of this article. 


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Article 59 states that States Parties shall consider bilateral or 

multilateral agreements to further enhance cooperation on asset recovery cases. 

Chapter VI—Technical assistance and information exchange (Articles 60–62) 

Training and technical assistance are dealt with in Article 60, 

which requires States Parties, to the extent necessary, to train domestic law enforcement personnel on matters relating to the prevention and detection of corruption, including in the area of the 

preparation of mutual legal assistance requests. The article also 

contemplates that States Parties will consider various potential 

methods to provide technical assistance to each other in their plans 

and programs to combat corruption. 

Article 61 (‘‘Collection, exchange and analysis of information on 

the nature of organized crime’’) is a counterpart provision to Article 

48. This article calls upon States Parties, together with their scientific and academic communities, to consider undertaking analytical studies relating to corruption and share the resulting expertise 

with each other. 

Article 62 (‘‘Other measures: implementation of the Convention 

through economic development and technical assistance’’) supplements Article 60 by requiring States Parties to take measures to 

facilitate the implementation of the Convention with a particular 

view toward cooperating internationally and strengthening the capacity of developing countries to prevent and combat corruption. 

Chapter VII—Mechanisms for implementation (Articles 63–64) 

Article 63 (‘‘Conference of the States Parties to the Convention’’) 

establishes a structure for promoting and reviewing the implementation of the Convention. A Conference of the States Parties 

(‘‘COSP’’) is to be convened within a year after the Conventions 

entry into force initially for the purpose of adopting rules of procedure, rules governing payment of expenses, and rules governing the 

activities with which it is charged. The negotiating history of this 

article reflects that sources of funding for the COSP include voluntary contributions, which takes into account U.S. legal provisions 

on funding framework treaty-based organizations. 

Among the most important tasks assigned to the COSP are facilitating technical assistance, the provision of which is discretionary 

under the Convention, and information exchange among States 

Parties and reviewing periodically the implementation of the Convention. The latter activity will entail scrutiny of information supplied by States Parties themselves on their programs and legislative and administrative measures. The COSP also may develop 

other supplemental review mechanisms. 

To support the COSP, Article 64 (‘‘Secretariat’’) states that the 

UN Secretary-General shall provide the necessary secretariat services. The UN General Assembly resolution adopting the Convention 

in turn requested that the Vienna-based UN Office on Drugs and 

Crime be designated for this purpose. 


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Chapter VIII—Final provisions (Articles 65–71) 

Article 65 (‘‘Implementation of the Convention’’) provides that 

each State Party shall take the necessary measures, including legislative and administrative measures, to ensure proper implementation of its obligations under the Convention. This provision also 

clarifies that the Convention does not preclude the adoption of 

stricter measures to combat corruption. 

Article 66 (‘‘Settlement of disputes’’) establishes a mechanism for 

States Parties to settle disputes concerning the interpretation or 

application of the Convention. If a dispute cannot be settled within 

a reasonable time through negotiation, a State Party may refer it 

to arbitration, or to the International Court of Justice if the Parties 

are unable to agree on the organization of the arbitration. A State 

Party may, however, opt out of dispute settlement mechanisms 

other than negotiation by making a declaration to that effect. In 

keeping with recent practice, the United States should do so. Accordingly, it is recommended that the following declaration be included in the Senate’s resolution of advice and consent: 

In accordance with Article 66, paragraph 3, the Government of the United States of America declares that it does 

not consider itself bound by the obligation set forth in Article 66, paragraph 2. 

Article 67 (‘‘Signature, ratification, acceptance, approval and accession’’) provides that the Convention is open for signature by all 

States, and by regional economic integration organizations 

(‘‘REIOs’’), such as the European Union, where at least one of its 

member States has signed. REIOs that become party to the Convention also are required to declare the extent of their competence 

with respect to matters covered by the Convention. The Convention 

is subject to ratification, acceptance, approval, or accession, with 

instruments thereof to be deposited with the Secretary-General of 

the United Nations. 

Pursuant to Article 68 (‘‘Entry into force’’), the Convention shall 

enter into force on the ninetieth day after the date of deposit of the 

thirtieth instrument of ratification, acceptance, approval, or accession. For a State ratifying or otherwise consenting to be bound 

thereafter, the Convention shall take legal effect on the thirtieth 

day after the deposit of that State’s instrument. 

Amendment of the Convention is governed by Article 69 

(‘‘Amendment’’), which establishes procedures for proposal, consideration, and decision on amendments with the involvement of the 

COSP. Adoption of proposed amendments requires consensus or, as 

a last resort, a two-thirds majority of the States Parties present 

and voting at the COP. The voting rights of REIOs are addressed 

in a way that is standard in international instruments. Any adopted amendment is subject to ratification, acceptance, or approval by 

States Parties, and binds only those States Parties that have expressed their consent to be so bound. 

Article 70 (‘‘Denunciation’’) states that any State Party may denounce the Convention by written notification to the SecretaryGeneral of the United Nations. The Convention shall cease to be 

in force for the denouncing State one year after receipt of such notification. 


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Article 71 (‘‘Depositary and languages’’) designates the SecretaryGeneral of the United Nations as depositary for the Convention, 

and specifies that the original of the Convention is equally authentic in each of the six UN languages (Arabic, Chinese, English, 

French, Russian, and Spanish). 

Finally, the terms of the Convention, with the suggested reservations, are consonant with U.S. law. To clarify that the provisions 

of the Convention, with the exceptions of Articles 44 and 46, are 

not self-executing, it is recommended that the Senate include the 

following declaration in its resolution of advice and consent: 

The United States declares that the provisions of the 

Convention (with the exception of Articles 44 and 46) are 

non-self-executing. None of the provisions of the Convention creates a private right of action. 

Article 44 and Article 46 of the Convention contain detailed provisions on extradition and legal assistance that would be considered self-executing in the context of normal bilateral extradition 

practice. It is therefore appropriate to except those provisions from 

the general understanding that the provisions of the Convention 

are non-self-executing. 


CCOLEMAN on PROD1PC71 with HEARING

CCOLEMAN on PROD1PC71 with HEARING
(23) 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 054 here TD6.001
24 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 055 here TD6.002
25 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 056 here TD6.003
26 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 057 here TD6.004
27 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 058 here TD6.005
28 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 059 here TD6.006
29 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 060 here TD6.007
30 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 061 here TD6.008
31 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 062 here TD6.009
32 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 063 here TD6.010
33 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 064 here TD6.011
34 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 065 here TD6.012
35 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 066 here TD6.013
36 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 067 here TD6.014
37 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 068 here TD6.015
38 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 069 here TD6.016
39 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 070 here TD6.017
40 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 071 here TD6.018
41 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 072 here TD6.019
42 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 073 here TD6.020
43 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 074 here TD6.021
44 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 075 here TD6.022
45 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 076 here TD6.023
46 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 077 here TD6.024
47 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 078 here TD6.025
48 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 079 here TD6.026
49 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 080 here TD6.027
50 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 081 here TD6.028
51 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 082 here TD6.029
52 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 083 here TD6.030
53 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 084 here TD6.031
54 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 085 here TD6.032
55 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 086 here TD6.033
56 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 087 here TD6.034
57 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 088 here TD6.035
58 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 089 here TD6.036
59 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 090 here TD6.037
60 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 091 here TD6.038
61 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 092 here TD6.039
62 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 093 here TD6.040
63 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 094 here TD6.041
64 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 095 here TD6.042
65 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 096 here TD6.043
66 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 097 here TD6.044
67 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 098 here TD6.045
68 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 099 here TD6.046
69 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 100 here TD6.047
70 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 101 here TD6.048
71 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 102 here TD6.049
72 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 103 here TD6.050
73 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 104 here TD6.051
74 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 105 here TD6.052
75 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 106 here TD6.053
76 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 107 here TD6.054
77 


CCOLEMAN on PROD1PC71 with HEARINGInsert offset folio 108 here TD6.055