39–115

109TH CONGRESS EXEC. REPT.

1st Session " ! SENATE 109-4

U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED

CRIME (TREATY DOC. 108–16)

AUGUST 31, 2005.—Ordered to be printed

Filed under authority of the order of the Senate of July 29

(legislative day, July 11), 2005

Mr. LUGAR, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Doc. 108–16]

The Committee on Foreign Relations, to which was referred the

U.N. Convention Against Transnational Organized Crime, together

with two supplementary protocols: (1) The Protocol to Prevent,

Suppress and Punish Trafficking in Persons, Especially Women

and Children, and (2) the Protocol Against Smuggling of Migrants

by Land, Sea and Air (Treaty Doc. 108–16) (hereinafter ‘‘Convention,’’ ‘‘Trafficking Protocol,’’ and ‘‘Smuggling Protocol’’), signed at

Palermo, Italy on December 13, 2000, having considered the same,

reports favorably thereon and recommends that the Senate give its

advice and consent to ratification thereof with three reservations

and one declaration relating to the Convention, three reservations,

one understanding, and one declaration relating to the Trafficking

Protocol, and two reservations and one understanding relating to

the Smuggling Protocol, as set forth in this report and the accompanying resolution of advice and consent to ratification.

CONTENTS

Page

I. Purpose ........................................................................................................... 2

II. Background .................................................................................................... 2

III. Summary of Key Provisions of the Convention and Protocols ................... 2

IV. Implementing Legislation ............................................................................. 4

V. Committee Action .......................................................................................... 4

VI. Committee Recommendations and Comments ............................................ 4

VII. Text of Resolution of Advice and Consent to Ratification .......................... 6

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I. PURPOSE

The Convention and accompanying Protocols are the first multilateral treaties to address the phenomenon of transnational organized crime. The instruments require the parties to criminalize certain conduct and to cooperate on extradition and mutual legal assistance in relation to these crimes. The agreements would thus enhance the ability of the United States to render and receive assistance on a global basis in the common struggle to prevent, investigate, and prosecute transnational organized crime. The Trafficking Protocol aims to prevent and combat trafficking in persons,

particularly women and children, to protect and assist the victims

of such trafficking, and to promote cooperation among parties in

meeting these objectives. The Smuggling Protocol is designed to

prevent and combat the smuggling of migrants and to promote cooperation among states parties to that end, while protecting the

rights of smuggled migrants.

II. BACKGROUND

The Convention, Trafficking Protocol, and Smuggling Protocol

were adopted by the United Nations General Assembly on November 15, 2000, and were signed by the United States on December

13, 2000, at Palermo, Italy. The Convention, which entered into

force on September 29, 2003, now has 107 parties. The Trafficking

Protocol entered into force on December 25, 2003, and has 87 parties. The Smuggling Protocol entered into force on January 28,

2004, and has 78 parties.

III. SUMMARY OF KEY PROVISIONS OF THE CONVENTION AND

PROTOCOLS

A detailed article-by-article discussion of the Convention and

Protocols may be found in the Letter of Submittal from the Secretary of State to the President, which is reprinted in full in Treaty

Document 108–16. A summary of the key provisions of the Convention and Protocols is set forth below.

The Convention requires parties to criminalize participation in

an organized criminal group, money laundering, bribery of domestic public officials, and obstruction of justice in relation to offenses

covered by the Convention, and to take measures to combat money

laundering and bribery of public officials.

The Convention also provides a legal basis for strengthening

international cooperation to combat transnational organized crime,

including in the areas of extradition, mutual legal assistance, and

confiscation of the proceeds and instrumentalities of crime. In the

area of extradition, Article 16(3) of the Convention requires parties

to deem offenses covered by the Convention to be included among

the extraditable offenses in extradition treaties existing between

the parties. These offenses include the specific conduct that the

Convention requires parties to criminalize, as well as other crimes

punishable by a maximum sentence of at least four years that are

‘‘transnational’’ and involve an ‘‘organized criminal group’’ as those

terms are defined in the Convention. For the United States, the

Convention will not provide an independent legal basis for extradition, which will continue to be based on U.S. domestic law and

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applicable bilateral treaties. It will, however, effectively expand the

scope of offenses covered under certain existing bilateral extradition treaties (those that specifically list the offenses for which extradition may be granted).

Article 18 of the Convention obligates parties to afford each other

the widest measure of mutual legal assistance in investigations,

prosecutions, and judicial proceedings in relation to the offenses

covered by the Convention. Existing international agreements on

mutual legal assistance between parties will not be affected by the

Convention, as Article 18(7) provides that where such an agreement exists, the parties will apply that agreement. Where there is

no such agreement in place between parties, however, the parties

will make and receive requests for mutual assistance in

transnational organized crime cases under the provisions of Article

18, paragraphs 9 through 29. The procedures in these paragraphs

are similar to those contained in U.S. bilateral mutual legal assistance treaties, but contain broader grounds for refusal of such assistance.

The Committee notes that Articles 16 and 18 of the Convention

on extradition and mutual legal assistance, as well as any provisions of the Trafficking and Smuggling Protocols implemented

through these articles, are intended to operate in the same way as

similar provisions contained in bilateral extradition and mutual

legal assistance treaties. As with such provisions in bilateral treaties, these provisions are self-executing. They will be implemented

by the United States in conjunction with applicable federal statutes. Additionally, the Executive Branch has indicated that they

are not intended to create any private rights of action. The Committee notes that the lack of a private right of action does not affect the ability of persons whose extradition is sought to raise any

available defenses in the context of the extradition proceeding.

The Trafficking Protocol provides, for the first time, a definition

of ‘‘trafficking in persons’’ in an international treaty, and requires

all parties to criminalize such conduct and to take certain measures to prevent and combat it. The Protocol also focuses on victim

protection by requiring that victims are offered the possibility of

obtaining compensation, and that parties facilitate and accept the

return of their nationals and permanent residents who are trafficking victims. In addition, the Protocol calls on parties, in appropriate cases, to make available to trafficking victims certain protections and assistance, including protection of their privacy and physical safety, as well as provisions for their physical, psychological,

and social recovery.

The Smuggling Protocol requires parties to criminalize: the

smuggling of migrants; document fraud when committed for the

purpose of enabling the smuggling of migrants; and, enabling a

person to reside illegally in a State by means of document fraud

or other illegal means; as well as participation as an accomplice in,

aiding and abetting in, and attempts to commit such offenses. It

also contains provisions designed to address the smuggling of migrants by sea, by requiring parties to cooperate to the fullest extent

possible to prevent and suppress migrant smuggling by sea in accordance with international law and by establishing procedures for

interdicting at sea vessels that are engaged in such smuggling.

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These procedures are based on long-standing international law

principles of flag-state jurisdiction on the high seas, universal jurisdiction over ships without nationality, and the rights of approach

and visit. The Protocol contains several provisions on cooperation

and prevention, including a requirement that parties, consistent

with their domestic law, exchange information for the purpose of

achieving the Protocol’s objectives, such as known or suspected

smuggling routes. Similar to the Trafficking Protocol, the Smuggling Protocol also obligates parties to facilitate and accept the return of smuggled migrants who are their nationals or permanent

residents at the time of return.

Both the Trafficking Protocol and the Smuggling Protocol require

parties to those instruments to apply all of the benefits and obligations of the Convention to the offenses established in the protocols,

including those related to extradition, mutual legal assistance, and

confiscation of the proceeds and instrumentalities of crime.

IV. IMPLEMENTING LEGISLATION

No implementing legislation is required for the Convention, Trafficking Protocol, or Smuggling Protocol. An existing body of federal

and state laws will suffice to implement the obligations of the Convention and Protocols, although a few narrow reservations are

needed, as explained below in section VI.

V. COMMITTEE ACTION

The Convention, and the Trafficking and Smuggling Protocols,

were transmitted to the Senate for advice and consent to their ratification on February 23, 2004 (see Treaty Doc. 108–16). The Committee on Foreign Relations held a public hearing on these instruments on June 17, 2004 (S. Hrg. 108–721), at which it heard testimony from representatives of the Departments of State and Justice. On July 26, 2005, the Committee considered the Convention

and Protocols and ordered them favorably reported by a voice vote,

with the recommendation that the Senate give its advice and consent to ratification of the Convention and Protocols, subject to reservations, understandings, and declarations contained in the resolution of advice and consent to ratification.

VI. COMMITTEE RECOMMENDATIONS AND COMMENTS

The Committee on Foreign Relations believes that the Convention, Trafficking Protocol and Smuggling Protocol are in the interest of the United States and urges the Senate to act promptly to

give advice and consent to ratification, subject to the reservations,

understandings, and declarations contained in the resolution of advice and consent.

The Committee has included a number of reservations, understandings, and declarations in the resolution of advice and consent.

Section two of the resolution contains three reservations and one

declaration relative to the Convention. The first reservation relates

to the federal system in the United States. Although U.S. federal

law prohibits the conduct proscribed by the Convention, federal

criminal law generally covers conduct involving interstate or foreign commerce or another important federal interest, while offenses

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of a purely local character generally fall within the jurisdiction of

the states. Not all U.S. states have criminalized all of the conduct

proscribed by the Convention (for example, a few states have extremely limited conspiracy laws). The Executive Branch therefore

has recommended that the United States reserve against these obligations in these narrow circumstances, and the Committee agrees

with this recommendation.

The second reservation relates to the scope of the Convention.

Article 15(1)(b) of the Convention requires each party to establish

jurisdiction in respect of the listed offenses when committed in its

territory or on board a vessel flying its flag or an aircraft registered

under its laws. U.S. law does not expressly extend U.S. jurisdiction

over these particular crimes when committed on board U.S. vessels

and aircraft outside of U.S. territory, although in certain cases U.S.

jurisdiction may exist on other jurisdictional bases. Because the

United States cannot ensure its ability to exercise jurisdiction in all

such cases, the Committee concurs with an Executive Branch recommendation that the United States enter a reservation limiting

the obligation of the United States consistent with the reach of

U.S. law.

The third reservation addresses dispute settlement. Article 35(2)

of the Convention provides that disputes between parties regarding

the interpretation or application of the Convention that are not settled through negotiation within a reasonable period may be referred by a party to arbitration or to the International Court of

Justice if the parties are unable to agree on the organization of the

arbitration. At the recommendation of the Executive Branch, the

Committee has included a reservation exercising the right of the

United States under article 35(3) of the Convention to opt out of

this dispute settlement mechanism.

The declaration relative to the Convention relates to U.S. implementation of the Convention under existing U.S. law. The Executive Branch has recommended that the United States include an

understanding to clarify that the United States intends to comply

with the Convention based on existing law. The Committee has included such a statement in the resolution, formulated as a declaration in accordance with recent Committee practice.

Section three contains three reservations, one understanding,

and one declaration relative to the Trafficking Protocol. At the recommendation of the Executive Branch, the Committee has included

three reservations that mirror the reservations to the Convention,

relating to offenses committed on board U.S. vessels and aircraft,

the U.S. federal system, and dispute settlement. As with the Convention, the Executive Branch also recommended an understanding

clarifying that the U.S. intends to comply with the Protocol based

on existing U.S. law. Consistent with its approach to this issue in

section two, the Committee has included a declaration on this

issue. The understanding relative to the Trafficking Protocol, also

included at the recommendation of the Executive Branch, contains

the understanding of the United States regarding how it will implement the obligation to establish the offenses listed in the Trafficking Protocol as money laundering predicate offenses under U.S.

law.

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Section four contains two reservations and one understanding

relative to the Smuggling Protocol. The first reservation, included

at the recommendation of the Executive Branch, reserves in part

against the obligation contained in Article 6(2)(a) of the Protocol to

criminalize attempted possession of fraudulent travel or identity

documents, as U.S. law does not criminalize this conduct in all

cases. The second reservation is similar to those contained in sections two and three of the resolution relative to the Convention and

the Trafficking Protocol, and exercises the right of the United

States under article 20(3) of the Smuggling Protocol to opt out of

the dispute settlement mechanism established in article 20(2) of

the Protocol. The understanding relative to the Smuggling Protocol

mirrors that included in section three of the resolution in relation

to the Trafficking Protocol, and contains the U.S. understanding of

how it will implement the obligation to establish the offenses listed

in the Smuggling Protocol as money laundering predicate offenses

under U.S. law.

VII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO

RATIFICATION

Resolved (two-thirds of the Senators present concurring therein),

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

The Senate advises and consents to the ratification of the United

Nations Convention Against Transnational Organized Crime (hereinafter in this resolution referred to as the ‘‘Convention’’) and two

supplementary protocols: the Protocol to Prevent, Suppress and

Punish Trafficking in Persons, Especially Women and Children

(hereinafter in this resolution referred to as the ‘‘Trafficking Protocol’’) and the Protocol Against Smuggling of Migrants by Land,

Sea and Air (hereinafter in this resolution referred to as the

‘‘Smuggling Protocol’’), adopted by the United Nations General Assembly on November 15, 2000 and signed by the United States on

December 13, 2000 at Palermo, Italy (T. Doc. 108–16), subject to

the reservations, understandings, and declarations of sections 2, 3

and 4.

SECTION 2. RESERVATIONS AND DECLARATION RELATIVE TO THE

CONVENTION

(a) RESERVATIONS.—The advice and consent of the Senate under

section 1 is subject to the following reservations relative to the

Convention, which shall be included in the United States instrument of ratification:

(1) The United States of America reserves the right to assume obligations under the Convention in a manner consistent

with its fundamental principles of federalism, pursuant to

which both federal and state criminal laws must be considered

in relation to the conduct addressed in the Convention. U.S.

federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, serves as the principal legal regime within the United

States for combating organized crime, and is broadly effective

for this purpose. Federal criminal law does not apply in the

rare case where such criminal conduct does not so involve

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interstate or foreign commerce, or another federal interest.

There are a small number of conceivable situations involving

such rare offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to

satisfy an obligation under the Convention. The United States

of America therefore reserves to the obligations set forth in the

Convention to the extent they address conduct which would

fall within this narrow category of highly localized activity.

This reservation does not affect in any respect the ability of the

United States to provide international cooperation to other

Parties as contemplated in the Convention.

(2) The United States of America reserves the right not to

apply in part the obligation set forth in Article 15, paragraph

1(b) with respect to the offenses established in the Convention.

The United States does not provide for plenary jurisdiction

over offenses that are committed on board ships flying its flag

or aircraft registered under its laws. However, in a number of

circumstances, U.S. law provides for jurisdiction over such offenses committed on board U.S.-flagged ships or aircraft registered under U.S. law. Accordingly, the United States will implement paragraph 1(b) to the extent provided for under its

federal law.

(3) In accordance with Article 35, paragraph 3, the United

States of America declares that it does not consider itself

bound by the obligation set forth in Article 35, paragraph 2.

(b) DECLARATION.—The advice and consent of the Senate under

section 1 is subject to the following declaration relative to the Convention:

The United States of America declares that, in view of its

federalism reservation, current United States law, including

the laws of the States of the United States, fulfills the obligations of the Convention for the United States. Accordingly, the

United States of America does not intend to enact new legislation to fulfill its obligations under the Convention.

SECTION 3. RESERVATIONS, UNDERSTANDING, AND DECLARATION

RELATIVE TO THE TRAFFICKING PROTOCOL

(a) RESERVATIONS.—The advice and consent of the Senate under

section 1 is subject to the following reservations relative to the

Trafficking Protocol, which shall be included in the United States

instrument of ratification:

(1) The United States of America reserves the right not to

apply in part the obligation set forth in Article 15, paragraph

1(b), of the United Nations Convention Against Transnational

Organized Crime with respect to the offenses established in the

Trafficking Protocol. The United States does not provide for

plenary jurisdiction over offenses that are committed on board

ships flying its flag or aircraft registered under its laws. However, in a number of circumstances, U.S. law provides for jurisdiction over such offenses committed on board U.S.-flagged

ships or aircraft registered under U.S. law. Accordingly, the

United States will implement paragraph 1(b) of the Convention

to the extent provided for under its federal law.

(2) The United States of America reserves the right to assume obligations under this Protocol in a manner consistent

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with its fundamental principles of federalism, pursuant to

which both federal and state criminal laws must be considered

in relation to conduct addressed in the Protocol. U.S. federal

criminal law, which regulates conduct based on its effect on

interstate or foreign commerce, or another federal interest,

such as the Thirteenth Amendment’s prohibition of ‘‘slavery’’

and ‘‘involuntary servitude,’’ serves as the principal legal regime within the United States for combating the conduct addressed in this Protocol, and is broadly effective for this purpose. Federal criminal law does not apply in the rare case

where such criminal conduct does not so involve interstate or

foreign commerce, or otherwise implicate another federal interest, such as the Thirteenth Amendment. There are a small

number of conceivable situations involving such rare offenses

of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation

under the Protocol. The United States of America therefore reserves to the obligations set forth in the Protocol to the extent

they address conduct which would fall within this narrow category of highly localized activity. This reservation does not affect in any respect the ability of the United States to provide

international cooperation to other Parties as contemplated in

the Protocol.

(3) In accordance with Article 15, paragraph 3, the United

States of America declares that it does not consider itself

bound by the obligation set forth in Article 15, paragraph 2.

(b) UNDERSTANDING.—The advice and consent of the Senate

under section 1 is subject to the following understanding relative

to the Trafficking Protocol, which shall be included in the United

States instrument of ratification:

The United States of America understands the obligation to

establish the offenses in the Protocol as money laundering

predicate offenses, in light of Article 6, paragraph 2(b) of the

United Nations Convention Against Transnational Organized

Crime, as requiring States Parties whose money laundering

legislation sets forth a list of specific predicate offenses to include in such list a comprehensive range of offenses associated

with trafficking in persons.

(c) DECLARATION.—The advice and consent of the Senate under

section 1 is subject to the following declaration relative to the Trafficking Protocol:

The United States of America declares that, in view of its

reservations, current United States law, including the laws of

the States of the United States, fulfills the obligations of the

Protocol for the United States. Accordingly, the United States

of America does not intend to enact new legislation to fulfill its

obligations under the Protocol.

SECTION 4. RESERVATIONS AND UNDERSTANDING RELATIVE TO THE

SMUGGLING PROTOCOL

(a) RESERVATIONS.—The advice and consent of the Senate under

section 1 is subject to the following reservations relative to the

Smuggling Protocol, which shall be included in the United States

instrument of ratification:

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(1) The United States of America criminalizes most but not

all forms of attempts to commit the offenses established in accordance with Article 6, paragraph 1 of this Protocol. With respect to the obligation under Article 6, Paragraph 2(a), the

United States of America reserves the right to criminalize attempts to commit the conduct described in Article 6, paragraph

1(b), to the extent that under its laws such conduct relates to

false or fraudulent passports and other specified identity documents, constitutes fraud or the making of a false statement, or

constitutes attempted use of a false or fraudulent visa.

(2) In accordance with Article 20, paragraph 3, the United

States of America declares that it does not consider itself

bound by the obligation set forth in Article 20, paragraph 2.

(b) UNDERSTANDING.—The advice and consent of the Senate

under section 1 is subject to the following understanding relative

to the Smuggling Protocol, which shall be included in the United

States instrument of ratification:

The United States of America understands the obligation to

establish the offenses in the Protocol as money laundering

predicate offenses, in light of Article 6, paragraph 2(b) of the

United Nations Convention Against Transnational Organized

Crime, as requiring States Parties whose money laundering

legislation sets forth a list of specific predicate offenses to include in such list a comprehensive range of offenses associated

with smuggling of migrants.

Æ