U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

29–118

" SENATE ! 108TH CONGRESS

2d Session 

TREATY DOC. 

2004

108–16

U.N. CONVENTION AGAINST TRANSNATIONAL 

ORGANIZED CRIME

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (THE ‘‘CONVENTION’’), AS WELL AS 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, WHICH 

WERE ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY 

ON NOVEMBER 15, 2000. THE CONVENTION AND PROTOCOLS 

WERE SIGNED BY THE UNITED STATES ON DECEMBER 13, 2000, 

AT PALERMO, ITALY

FEBRUARY 23, 2004.—The 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


E:\Seals\Congress.#13
(III)

LETTER OF TRANSMITTAL 

THE WHITE HOUSE, February 23, 2004. 

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 Transnational Organized Crime (the ‘‘Convention’’), as well 

as 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, which were adopted by the United Nations 

General Assembly on November 15, 2000. The Convention and Protocols were signed by the United States on December 13, 2000, at 

Palermo, Italy. 

Accompanying the Convention and Protocols are interpretative 

notes for the official records (or ‘‘travaux preparatoires’’) that 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 are being submitted to the Senate for information purposes. I also transmit the 

report of the Department of State with respect to the Convention 

and Protocols. 

The Convention and Protocols are the first multilateral treaties 

to address the phenomenon of transnational organized crime. Their 

provisions are explained in the accompanying report of the Department of State. The report also sets forth proposed reservations and 

understandings that would be deposited by the United States with 

its instruments of ratification. With these reservations and understandings, the Convention and Protocols will not require implementing legislation for the United States. 

The Convention and Protocols will be effective tools to assist in 

the global effort to combat transnational organized crime in its 

many forms, such as trafficking and smuggling of persons. They 

provide for a broader range of cooperation, including extradition, 

mutual legal assistance, and measures regarding property, in relation to serious crimes committed by an organized group that has 

a transnational element. 

The Convention also imposes on the States Parties an obligation 

to criminalize, if they have not already done so, certain types of 

conduct characteristic of transnational organized crime. For the 

Convention, these are: participation in an organized criminal group 

(i.e., conspiracy), money laundering, bribery of domestic public officials, and obstruction of justice. The Protocols require parties to 

criminalize trafficking in persons and smuggling of migrants. These 

provisions will serve to create a global criminal law standard for 

these offenses, several of which (e.g., trafficking in persons) curVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00003 Fmt 7633 Sfmt 7633 E:\HR\OC\TD016.XXX TD016
IV

rently are not criminal in many countries. The Trafficking Protocol 

also includes important provisions regarding assistance to and protection of victims of trafficking. 

I recommend that the Senate give early and favorable consideration to the Convention and Protocols, and that it give its advice 

and consent to ratification, subject to the reservations and understandings described in the accompanying report of the Department 

of State.

GEORGE W. BUSH.

(V)

LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, January 22, 2004. 

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 Convention Against Transnational Organized Crime (‘‘the Convention’’), as well as two supplementary protocols, the Protocol to Prevent, Suppress, and Punish Trafficking in 

Persons, Especially Women and Children (‘‘Trafficking Protocol’’), 

and the Protocol Against Smuggling of Migrants by Land, Sea and 

Air (‘‘Migrant Smuggling Protocol’’), which were adopted by the 

United Nations General Assembly on November 15, 2000, and 

signed by the United States on December 13, 2000 at Palermo. I 

recommend that the Convention and Protocols be transmitted to 

the Senate for its advice and consent to ratification. 

Accompanying the Convention and Protocols are interpretative 

notes for the official records of the negotiations (or ‘‘travaux 

preparatoires’’). 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 December 29, 2003, 147 countries have signed the Convention; 117 countries the Trafficking Protocol; and 112 the Migrant 

Smuggling Protocol. The Convention, which has been ratified by 59 

countries, entered into force among those countries on September 

29, 2003. The Trafficking Protocol, which has been ratified by 45 

countries, entered into force on December 25, 2003, and the Migrant Smuggling Protocol, which has been ratified by 40 countries, 

will enter into force on January 28, 2004. 

The Convention and these two Protocols are the first multilateral 

law enforcement instruments designed to combat the phenomenon 

of transnational organized crime. They establish a treaty-based regime of obligations to provide mutual assistance which is analogous 

to those contained in other law enforcement treaties to which the 

United States is a party. They thus would enhance the United 

States’ ability to render and receive assistance on a global basis in 

the common struggle to prevent, investigate and prosecute 

transnational organized crime. 

The Convention and Protocols will not require implementing legislation for the United States. As further discussed below, subject 

to the proposed reservations and understandings, the existing body 

of federal and state law and regulations will be adequate to satisfy 

the requirements for legislation. The following is an article-by-artiVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00005 Fmt 7633 Sfmt 7633 E:\HR\OC\TD016.XXX TD016
VI

cle description of the forty-one articles of the Convention, followed 

by similar descriptions for each Protocol. 

UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED

CRIME

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

intended to promote cooperation to prevent and combat 

transnational organized crime more effectively. Article 2 (‘‘Use of 

terms’’) defines ten key concepts utilized in the Convention. In particular, the defined terms ‘‘organized criminal group’’, ‘‘serious 

crime’’, and ‘‘structured group’’ are crucial to understanding the 

scope of the Convention. 

An ‘‘organized criminal group’’ means a ‘‘structured group’’ of 

three or more persons, existing for a period of time and acting in 

concert with the aim of committing one or more serious crimes or 

offenses established in accordance with the Convention, in order to 

obtain, directly or indirectly, a financial or other material benefit. 

The requirement that the group’s purpose be financial or other material gain encompasses, for example, groups which trade in child 

pornography materials. A terrorist group would fall within the 

scope of this definition if it acts in part for a financial or other material benefit. A ‘‘structured group’’ is a group that is not randomly 

formed for the immediate commission of an offense; it need not 

have formally defined roles for its members, continuity of membership, or a developed structure. This definition is flexible enough to 

accommodate the ever-evolving forms that organized criminal 

groups take. ‘‘Serious crime’’ is any offense punishable by at least 

four years’ imprisonment. 

Article 3 (‘‘Scope of Application’’) elaborates the ambit of the Convention. In general, the Convention applies to the prevention, investigation, and prosecution of the offenses established in accordance with Articles 5, 6, 8, and 23 (participation in an organized 

criminal group, money laundering, corruption of domestic public officials, and obstruction of justice) and to serious crime (as defined 

above), so long as the offense is transnational in nature and involves an organized criminal group. Transnationality is a broad 

concept, meaning an offense which is committed in more than one 

State, committed only in one State but substantially prepared, 

planned, directed or controlled in another, committed in one State 

with the involvement of an organized criminal group that engages 

in criminal activities in multiple States, or committed in one State 

but substantially affecting another. As discussed further below, 

this general scope for the Convention varies with respect to several 

different types of obligations it contains. 

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

provisions in United Nations instruments stating that States Parties respect each other’s sovereign equality and territorial integrity 

and providing that the Convention does not authorize a Party to 

undertake in another State’s territory the exercise of jurisdiction 

and performance of functions reserved for the authorities of that 

State by its domestic law. 

With respect to the articles of the Convention which require the 

establishment of criminal offenses (5, 6, 8, and 23), it should be 

noted preliminarily that these obligations apply at the national 

VII

level, as is customary in international agreements. However, 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 (for example, a few 

states have extremely limited conspiracy laws). Thus, in the absence of a reservation, there would be a narrow category of such 

conduct that the United States would be obliged under the Convention to criminalize, although under our federal system such obligations would generally be met by state governments rather than the 

federal government. In order to avoid such obligations, I recommend that the following reservation be included in the U.S. instrument of ratification:

The Government of the United States of America reserves the right to assume obligations under this convention in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and 

state criminal laws must be considered in relation to the 

conduct addressed in the Convention. U.S. federal criminal 

law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, 

serves as the principal legal regime within the United 

States for combating organized crime, and is broadly effective for this purpose. Federal criminal law does not apply 

in the rare case where such criminal conduct does not so 

involve interstate or foreign commerce, or another federal 

interest. There are a small number of conceivable situations involving such rare offenses of a purely local character where U.S. federal and state criminal law may not 

be entirely adequate to satisfy an obligation under the 

Convention. The Government of 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.

Furthermore, in connection with this reservation, I recommend 

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 5 (‘‘Criminalization of participation in an organized criminal group’’) is the first of four articles that require States Parties 

to adopt criminal legislation regarding specified offenses. The defiVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00007 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
VIII

nition of participation in an organized criminal group set out in 

this Article may be satisfied either by a conspiracy law of the type 

embodied in U.S. law or by a criminal association law of the kind 

utilized in many other countries of the world. For U.S. law, the key 

components of this Article are: agreeing with one or more persons 

to commit a serious crime for financial or other material benefit, 

and an act undertaken by one of the participants in furtherance of 

the agreement or involving an organized criminal group. It is also 

recommended that the United States take a partial reservation to 

this obligation, noted above, to enable its implementation consistent with the existing distribution of criminal jurisdiction under 

our federal system. 

In addition, the United States, as a State Party that requires in 

many instances an act in furtherance of the conspiracy as a prerequisite to criminal liability, is obliged under Article 5, paragraph 

3, to notify the Secretary-General of the United Nations of this requirement. Accordingly, upon U.S. ratification of the Convention, 

the Department of State will, by diplomatic note, provide the depositary with the following notification:

Pursuant to Article 5, paragraph 3, the Government of 

the United States of America informs the Secretary-General of the United Nations that, in order to establish criminal liability under United States law with respect to the 

offense described in Article 5, paragraph 1(a)(i), the commission of an overt act in furtherance of the agreement is 

generally required.

A second criminalization obligation follows in Article 6 (‘‘Criminalization of the laundering of proceeds of crime’’). This provision 

mandates the adoption of criminal law provisions, in accordance 

with the fundamental principles of a Party’s domestic law, punishing the conversion, transfer, concealment or disguise of property 

with knowledge that it is the proceeds of crime. Subject to the basic 

concepts of its legal system, a state 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, in the 

case of a country such as the United States whose laws enumerate 

them by list, a comprehensive range of offenses associated with organized criminal groups. Among the range of offenses must be 

some relating to the laundering of the proceeds of foreign crimes. 

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 such laws. Article 6 is of crucial importance to global 

anti-money-laundering efforts because it for the first time imposes 

an international obligation on States Parties to expand the reach 

of their laundering laws to predicate offenses associated with organized criminal activities other than those related to narcotics trafficking that are addressed in the 1988 United Nations Convention 

Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. As noted above, it is recommended that the United States 

take a partial reservation to this obligation to enable its implemenVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00008 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
IX

tation consistent with the existing distribution of criminal jurisdiction under our federal system. 

Article 7 (‘‘Measures to combat 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 (‘‘know 

your customer’’) and suspicious transaction reporting requirements, 

and must ensure that specialized financial intelligence authorities 

exist to exchange information with foreign counterparts. Article 7 

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. 

Article 8 (‘‘Criminalization of corruption’’) requires a State Party 

to have in place laws criminalizing the giving or receipt of bribes 

by its domestic public officials, along with participation as an accomplice in such offices, and to consider criminalizing such conduct 

when it involves a foreign public official or an international civil 

servant. The former provision is mandatory because corruption of 

domestic public officials was regarded as a core activity of organized criminal groups. The latter, however, was treated as a recommendation in deference to the separate United Nations Convention Against Corruption, which focuses on corruption generally 

rather than solely as it relates to organized crime. As noted above, 

it is recommended that the United States take a partial reservation 

to this obligation to enable its implementation consistent with the 

current distribution of criminal jurisdiction under our federal system. 

Measures against corruption other than criminalization are the 

subject of Article 9 (‘‘Measures against corruption’’). This provision 

obliges a State Party to adopt, to the extent appropriate and consistent with its legal system, legislative, administrative or other effective measures to promote integrity and to deter, detect, and punish corruption of domestic public officials. Among these are measures to enable domestic anti-corruption authorities to act independently. 

Article 10 (‘‘Liability of legal persons’’) compels States Parties to 

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

states to combat organized crime—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 serious crimes involving an organized criminal group or in 

the offenses covered by the Convention (i.e., serious crimes generally as well as the offenses criminalized). Such corporate liability 

is without prejudice to the criminal liability of the natural persons 

who committed the offenses.

Article 11 (‘‘Prosecution, adjudication and sanctions’’) identifies a 

series of important considerations for States Parties in pursuing 

prosecutions relating to offenses within the scope of the Convention. They range from ensuring that criminal law sanctions are sufficiently serious to minimizing defendants’ risk of flight. Article 

11(6) makes clear, however, that nothing in the Convention shall 

X

affect the principle that the description of the offenses established 

in the Convention and of the applicable legal defenses or other 

legal principles controlling the lawfulness of conduct are reserved 

to the domestic law of a State Party. 

Confiscation, seizure, and disposal of proceeds of crime, along 

with related international cooperation, are the subject of Articles 

12–14. Article 12 (‘‘Confiscation and seizure’’) 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 destined for use in, offenses covered by the Convention (i.e., serious crimes generally as 

well as the offense criminalized by the Convention). Each State 

Party’s courts or other competent authorities shall be empowered 

to order that bank and other records be made available to enable 

confiscation proceedings to go forward, and bank secrecy may not 

be invoked in this context. 

Article 13 (‘‘International cooperation for purposes of confiscation’’) goes on to elaborate procedures for international cooperation 

in confiscation matters. A State Party which receives a request 

must take measures to identify, trace, and freeze or seize proceeds 

of crime for purposes of eventual confiscation. Such requests are to 

follow the general mutual assistance procedures specified in Article 

18 of the Convention, with several additional specifications. Decisions on requests for cooperation in respect of confiscation must be 

made in accordance with the law of the Requested State, and any 

treaty or arrangement it has with the Requesting State. States 

Parties are required to furnish to the UN Secretary-General copies 

of their laws and regulations giving effect to such cooperation. 

Article 14 (‘‘Disposal of confiscated proceeds of crime or property’’) addresses international cooperation insofar as it relates to 

disposal of assets. It provides that States Parties must consider returning confiscated proceeds to a requesting State for use as compensation to crime victims or restoration to legitimate owners. Additionally, a State Party may consider concluding an agreement or 

arrangement whereby proceeds may be contributed to the United 

Nations to fund technical assistance activities under the Convention or shared with other States Parties that have assisted in their 

confiscation. 

Article 15 (‘‘Jurisdiction’’) lays out the jurisdictional principles 

governing the Convention’s four criminalization provisions generally. A State Party must establish jurisdiction in respect of offenses established under 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 

four offenses—participation in an organized criminal group, money 

laundering, corruption of domestic public officials, and obstruction 

of justice—although certain cases can be pursued on other jurisdictional bases. For example, in some situations, 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, Section 1512(g), or through application of principles of statutory interpretation. However, since under 

current U.S. law we cannot always ensure our ability to exercise 

XI

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, 

I recommend that the following reservation be included in the U.S. 

instrument of ratification:

The Government of 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 

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 these four offenses when committed against one of its 

nationals, or by one of its nationals or residents. (Nationality and 

passive personality jurisdiction is limited under United States’ laws, but common in European countries and other civil law jurisdictions.) Permissive jurisdiction is likewise envisioned over the offenses of participation in an organized criminal group or money 

laundering, as defined in the Convention, where they are committed outside a State’s territory with a view to the commission of 

certain offenses within its territory. 

Article 15 further requires a State 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 countries that do not extradite their nationals take steps 

to ensure that organized crime participants face justice there even 

for crimes committed abroad. 

Article 16 (‘‘Extradition’’) elaborates a regime for extradition of 

persons for offenses criminalized under the Convention, and for serious crimes generally which involve an organized criminal group, 

so long as the offense is criminal under the laws of the requesting 

and the requested State Party. For the United States, the principal 

legal effect of this Article would be to deem the offenses covered by 

the Convention to be extraditable offenses under U.S. bilateral extradition treaties. The result would be to expand the scope of older 

treaties which list extraditable offenses and were concluded at a 

time when offenses such as money laundering did not yet exist. 

Thus, for the United States, the Convention does 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 16(5) to so notify the 

UN Secretary-General. Accordingly, upon ratification of the Convention, the Department of State will, by diplomatic note, provide 

the depositary with the following notification:

XII

Pursuant to Article 16, paragraph 5, the United States 

of America informs the Secretary-General of the United 

Nations that it will not apply Article 16, paragraph 4.

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 16(10) requires a State Party that does not extradite its 

nationals, if requested by another State Party seeking extradition 

of such a national for offenses covered by 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 15 relates.) A State Party may satisfy this obligation instead by 

temporarily surrendering its national for trial in the state that 

sought extradition, on the condition that he be returned to serve 

the resulting sentence. 

Article 16 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 17 (‘‘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 covered by the Convention, in order that they may complete their prison sentences in their countries of nationality. 

Pursuant to Article 18 (‘‘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 within the scope of the Convention, 

provided that the state seeking assistance demonstrates that it has 

reasonable grounds to suspect that the offense is transnational in 

nature and involves an organized criminal group. Pursuant to 

paragraph 6 of Article 18, 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 is so 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 transnational organized crime 

cases involving states with which we lack an applicable bilateral or 

regional agreement. 

Consequently, Article 18 provides a framework for mutual legal 

assistance of comparable nature to U.S. MLATs. It identifies the 

range of purposes for which mutual assistance may be requested, 

the requirements for the content of requests for assistance, and 

XIII

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 for purposes of providing evidence in another State Party as well. 

One departure from United States MLATs, set forth in paragraph 9 of Article 18, is that States Parties may—although they 

are encouraged not to—decline to render mutual legal assistance 

on the ground of an absence of dual criminality. U.S. MLATs typically require dual criminality only for certain intrusive types of assistance, e.g., search and seizure requests by a foreign country. It 

is unclear to what extent States Parties to the Convention may insist upon dual criminality and whether this provision will constrain 

the utility of this Article to any significant degree. 

As previously noted, Article 18 establishes certain modern procedures for mutual 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 16(5) to notify the UN SecretaryGeneral of its designated Central Authority. Accordingly, upon ratification of the Convention, the Department of State will, by diplomatic note, provide the depositary with the following notification:

Pursuant to Article 18, paragraph 13, the United States 

of America informs the Secretary-General of the United 

Nations 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 18, paragraph 14, a Party must specify the language 

in which mutual assistance requests to it shall be made. Accordingly, upon ratification of the Convention, the Department of State 

will, by diplomatic note, provide the depositary with the following 

notification:

Pursuant to Article 18, paragraph 14, the United States 

of America informs the Secretary-General of the United 

Nations 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 18 encourages the use of videoconferencing 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. In addition, 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. 

Article 18 specifies four grounds for refusing mutual legal assistance: (a) If the request does not conform to the requirements of the 

XIV

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. 

As is the case for extradition, Article 18, paragraph 22 provides 

that assistance may not be refused on the sole ground that the offense involves a fiscal matter or on the ground of bank secrecy. 

Moreover, if a request could be refused, 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 them. 

Finally, Article 18 addresses several other aspects of mutual assistance that are relevant in the absence of another MLAT in force 

between the States Parties concerned. There is a procedure for providing safe conduct guarantees to a person who travels to a requesting State Party in order to give evidence. 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. 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, 

their access to a requesting State Party is discretionary. 

In order better to combat organized criminal activities which 

span borders, Article 19 (‘‘Joint investigations’’) encourages States 

Parties to reach agreements or arrangements, either general or 

case-specific, to conduct joint investigations. 

Article 20 (‘‘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 involved through general or case-specific 

agreements or arrangements. 

The possibility of transferring criminal proceedings between 

States Parties is envisioned in Article 21 (‘‘Transfer of criminal proceedings’’). This Article calls on States Parties to consider the possibility of transferring proceedings, recognizing that transfer can be 

considered to be efficient in cases where several jurisdictions are 

involved with different aspects of a pattern of transnational organized criminal conduct. 

Article 22 (‘‘Establishment of criminal record’’) urges States Parties to consider adopting measures enabling an offender’s previous 

XV

conviction in one State to be taken into consideration in another 

State Party’s subsequent criminal proceeding relating to 

transnational organized crime offenses. 

The fourth and final criminalization obligation established by the 

Convention—obstruction of justice in criminal proceedings within 

the scope of the Convention—appears in Article 23 (‘‘Criminalization of 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. As noted above, 

it is recommended that the United States take a partial reservation 

to this obligation to enable its implementation consistent with the 

current distribution of criminal jurisdiction under our federal system. 

A related concern that organized crime not undermine judicial 

processes is addressed in Article 24 (‘‘Protection of witnesses’’). This 

provision obliges a State Party to take appropriate measures within its means to protect witnesses and, as appropriate, their relatives and other persons close to them, from retaliation or intimidation when they testify in organized crime proceedings. 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. This Article permits the exercise of discretion in particular 

cases, and therefore can be implemented by the United States 

under current statutes and regulations governing the protection of 

witnesses.

Article 25 (‘‘Assistance to and protection of victims’’) elaborates 

a series of measures to aid those victimized by transnational organized crime. States Parties must take appropriate measures within 

their means to assist and protect them, particularly in cases of 

threat of retaliation or intimidation; provide them access to compensation and restitution; and, subject to domestic law and in a 

manner not prejudicial to the rights of the defense, enable their 

views to be considered during criminal proceedings. 

Pursuant to Article 26 (‘‘Measures to enhance cooperation with 

law enforcement authorities’’), a State Party must take appropriate 

measures to encourage participants in organized criminal groups 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 consider arrangements with one 

another to apply these inducements to persons located in one State 

who can assist an investigation into organized criminal activity in 

another. 

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

formal mutual legal assistance, is highlighted by Article 27 (‘‘Law 

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XVI

tems, to enhance effective action among their law enforcement authorities, inter alia, by sharing information on persons, groups, and 

property involved in organized crime offenses. A counterpart provision is Article 28 (‘‘Collection, exchange and analysis of information 

on the nature of organized crime’’), which recommends that States 

Parties, together with their scientific and academic communities, 

undertake analytical studies of organized crime and share the resulting expertise. 

Training and technical assistance are dealt with in Articles 29 

(‘‘Training and technical assistance’’) and 30 (‘‘Other measures: implementation of the Convention through economic development and 

technical assistance’’). Article 29 requires States Parties, to the extent necessary, to train domestic law enforcement personnel on 

transnational organized crime matters and to work with one another to devise training that promotes international cooperation. 

Article 30 focuses on the particular needs of developing countries 

for technical assistance in implementing the provisions of the Convention. States Parties are encouraged to make voluntary financial 

contributions for this purpose to a United Nations account established, as directed by the UNGA in its resolution approving the 

Convention, under the auspices of the Center for International 

Crime Prevention (CICP) of the UN Office for Drug Control and 

Crime Prevention. 

Article 31 (‘‘Prevention’’) recognizes that preventive measures are 

a component of the fight against transnational organized crime. It 

encourages States Parties to develop projects and best practices 

with this goal. Among the measures urged are cooperation with private industry and relevant professions, and measures to avoid organized crime subverting public procurement procedures. Paragraph 6 of this Article requires each Party to identify to the Secretary-General the governmental authority to which requests for 

assistance in developing preventive measures should be directed. 

The Department of Justice, Office of Justice Programs, National Institute of Justice, would serve as the point of contact for the United 

States on prevention matters arising under the Convention. Accordingly, upon ratification of the Convention, the Department of State 

will, by diplomatic note, provide the depositary with the following 

notification:

Pursuant to Article 31, paragraph 6, the Government of 

the United States of America informs the Secretary-General of the United Nations that requests for assistance on 

developing measures to prevent transnational organized 

crime should be directed to the United States Department 

of Justice, Office of Justice Programs, National Institute of 

Justice.

Article 32 (‘‘Conference of the Parties to the Convention’’) establishes a structure for promoting and reviewing the implementation 

of the Convention. A Conference of Parties (COP) is to be convened 

within a year after the Convention’s 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 COP shall include voluntary contribuVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00016 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
XVII

tions, which takes into account U.S. law provisions on funding 

framework treaty-based organizations. 

Among the most important tasks assigned to the COP are facilitating technical assistance and information exchange among States 

Parties and reviewing periodically the implementation of the Convention. The latter will entail scrutiny of information supplied by 

States Parties themselves on their programs and legislative and 

administrative measures. The COP also may develop other supplemental review mechanisms. 

To support the COP, Article 33 (‘‘Secretariat’’) states that the 

United Nations Secretary-General shall provide the necessary secretariat services. The United Nations General Assembly resolution 

adopting the Convention and Protocols in turn requested that the 

Vienna-based CICP be designated for this purpose. 

Article 34 (‘‘Implementation of the Convention’’) provides that the 

offenses to be criminalized in accordance with Articles 5, 6, 8, and 

23 of the Convention must be established in the domestic law of 

each State Party without transnationality or the involvement of an 

organized criminal group being required elements of the offense 

(except with respect to the offense of participation in an organized 

criminal group). This provision ensures that States Parties adopt 

laws of general applicability to these serious crimes rather than excessively narrow ones that would omit coverage of an offense such 

as money laundering when it is done in a purely domestic context 

or without the involvement of an organized group. It also clarifies 

that the Convention does not preclude either the adoption of stricter measures to combat transnational organized crime or the application of fundamental legal principles in its implementation. 

Article 35 (‘‘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, I recommend that the following reservation be included 

in the U.S. instrument of ratification:

In accordance with Article 35, 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 35, paragraph 2.

Articles 36–41 contain the final clauses. Article 36 (’’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 

which 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. 

XVIII

The relationship between the Convention and its supplementary 

Protocols is elaborated in Article 37 (‘‘Relation with protocols’’). In 

order to become a Party to a supplementary Protocol, a State or 

REIO must also be a Party to the Convention. But a State Party 

to the Convention must separately become a Party to a Protocol in 

order to be bound by the Protocol. Protocols are to be interpreted 

together with the Convention itself. 

Pursuant to Article 38 (‘‘Entry into force’’), the Convention shall 

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

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

thereafter, the Convention shall take legal effect thirty dates from 

that step. 

Amendment of the Convention is governed by Article 39 

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

Conference of the Parties. 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 40 (‘‘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. Denunciation of the Convention also entails denunciation 

of any protocols thereto. 

Article 41 (‘‘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 United Nations languages (Arabic, Chinese, 

English, French, Russian and Spanish). 

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

that the provisions of the Convention, with the exceptions of Articles 16 and 18, are not self executing, I recommend 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 16 and 18) are 

non-self-executing.

Article 16 and Article 18 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. 

XIX

PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE

UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGA- NIZED CRIME

The Trafficking Protocol consists of a preamble and 20 articles, 

which are divided into four chapters: I (‘‘General provisions’’), II 

(‘‘Protection of victims of trafficking in persons’’), III (‘‘Prevention, 

cooperation and other measures’’) and IV (‘‘Final provisions’’). To 

the extent practicable, the wording of key phrases and the structure of the Trafficking and Migrant Smuggling Protocols are consistent with each other and are modeled on the structure and wording of the Convention. As noted above, subject to the reservations 

and understandings recommended herein, the Protocol would not 

require implementing legislation for the United States. 

I. General provisions 

Article 1 (‘‘Relation with the United Nations Convention against 

Transnational Organized Crime’’) is structurally a key provision of 

the Trafficking Protocol. Rather than repeating in the Protocol 

every provision of the Convention that is also applicable to the Protocol, and rather than explicitly referencing every provision in the 

Convention that is also applicable to the Protocol, this Article provides that all provisions of the Convention shall apply, ‘‘mutatis 

mutandis,’’ to the Protocol unless otherwise provided. The negotiating record to the Protocol explains that the phrase in quotations 

means ‘‘with such modifications as circumstances require’’ or ‘‘with 

the necessary modifications,’’ and that the provisions of the Convention would thus be interpreted so as to have the same essential 

meaning or effect in the Protocol as in the Convention. Article 1 

further clarifies this concept by providing that the offences established in Article 5 of the Protocol (the criminalization article) shall 

be regarded as offences established in accordance with the Convention. Thus, wherever in the Convention it is stated that a particular provision applies to ‘‘offences established in accordance with 

the Convention,’’ that provision will also apply, for States Parties 

to this Protocol, to the trafficking in persons offences established 

in accordance with Article 5 of the Protocol. 

The obligations in the Convention that are to be applied to the 

offenses are all consistent with current U.S. law, with one exception. With respect to the obligation to establish criminal jurisdiction set forth in Article 15 of the Convention, a partial reservation 

will be required for Trafficking Protocol offenses committed outside 

the United States on board ships flying a U.S. flag or aircraft registered under U.S. law. I therefore recommend that the U.S. instrument of ratification include the following reservation: 

The Government of 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. HowVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00019 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
XX

ever, 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 shall implement paragraph 1(b) of 

the Convention to the extent provided for under its federal 

law.

In addition, for clarity, an understanding is recommended with 

respect to the application of Article 6 of the Convention, regarding 

criminalization of the laundering of proceeds of crime, to the Protocol offenses. Article 6(2)(b) of the Convention entitles States Parties to set out, in legislation, a list of money laundering predicate 

offenses, provided that the list includes a comprehensive range of 

offenses associated with organized criminal groups. Although current U.S. law does not designate all conduct punishable under the 

Protocol as money laundering predicate offenses, it so designates a 

comprehensive range of offenses associated with trafficking. To 

make clear that the U.S. understands its existing comprehensive 

list of money laundering predicate offenses as sufficient to implement the Article’s obligation with respect to the Protocol offenses, 

I recommend that the following understanding be included in the 

U.S. instrument of ratification:

The Government of 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.

Finally, it should be noted that the previously described notifications to be made by the United States with respect to Articles 16, 

18, and 31 of the Convention also apply to the Protocol. No additional notification in this regard is necessary with respect to the 

Trafficking Protocol. 

Article 2 (‘‘Statement of purpose’’) describes the purposes of the 

Protocol, which are 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 States Parties to meet these objectives. 

Article 3 (‘‘Use of terms’’) defines ‘‘trafficking in persons’’ for the 

first time in a binding international instrument. This key definition 

may be divided into three components: conduct, means and purpose. The conduct covered by ‘‘trafficking in persons’’ is the recruitment, transportation, transfer, harboring or receipt of persons by 

means of the threat or use of force or other forms of coercion, of 

abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or 

benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation includes, 

at a minimum, exploitation of the prostitution of others or other 

forms of sexual exploitation, forced labor or services, slavery or 

practices similar to slavery, servitude or the removal of organs. ArVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00020 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
XXI

ticle 3 further provides that once any of the means set forth above 

has been used, the consent of the victim to the intended exploitation is irrelevant. Finally, with respect to children, the Article 

makes it clear that any of the conduct set forth above, when committed for the purpose of exploitation constitutes ‘‘trafficking’’ even 

if none of the means set forth above are used. 

It should be noted that the negotiating record sets forth six statements intended to assist in the interpretation of the definition of 

‘‘trafficking in persons.’’ One of those statements makes clear that 

the Protocol is without prejudice to how States Parties address 

prostitution in their respective domestic laws. 

Article 4 (‘‘Scope of application’’) is modeled on the analogous article in the Convention. It is one of many provisions in the Protocol 

that have an analogous provision in the Convention. In all cases, 

the goal was to make the language in the Protocol consistent with 

the language in the Convention. Article 4 thus states that the Protocol applies, except as otherwise provided therein, to the prevention, investigation and prosecution of trafficking in persons, when 

the offence is transnational in nature and involves an organized 

criminal group (virtually identical language is used in the ‘‘Scope’’ article in the Convention), and to the protection of trafficking victims. 

Article 5 (‘‘Criminalization’’) is modeled on the analogous articles 

in the Convention. Article 5(1) requires States Parties to criminalize the conduct defined in Article 3 of the Protocol as ‘‘trafficking in persons,’’ when committed intentionally. Article 5(2) requires States Parties to criminalize, subject to basic concepts of 

their legal systems, attempts to commit the trafficking offenses described, and to criminalize participating as an accomplice and organizing or directing others to commit such conduct. As confirmed by 

Article 11(6) of the Convention, there is no requirement that the 

offenses under U.S. law implementing this obligation be identical 

to the text of the Protocol. As described in more detail below, existing federal statutes in Title 18, United States Code, Chapters 77, 

110 and 117, combined with state laws, and general accessorial liability principles of U.S. law, are sufficient to implement the requirements of Article 5, provided that a reservation is deposited 

with respect to trafficking for the purpose of removal of organs, and 

certain attempted trafficking offenses. With this reservation, no 

new implementing legislation will be required for the United 

States. 

With respect to the obligation to criminalize trafficking and attempted trafficking for the purpose of ‘‘forced labour or services, 

slavery or practices similar to slavery, servitude,’’ current U.S. federal slavery, peonage, involuntary servitude and forced labor laws 

found in Chapter 77 of Title 18, which apply nationwide, are sufficient to implement the requirement to criminalize trafficking for 

these purposes, independent of state law. 

It should also be noted, with respect to the obligation to criminalize trafficking for the purpose of ‘‘practices similar to slavery,’’

that in the course of negotiations on the Protocol representatives 

of the United States and other countries stated, without dissent, 

that we understand this term to mean practices set forth in the 

1956 UN Supplementary Convention on the Abolition of Slavery, to 

XXII

which the United States is a party without reservation. These practices include forced marriage, serfdom, debt bondage, and the delivery of a child for the purpose of exploitation. These practices are 

generally criminalized under U.S. law by prohibitions against 

forced labor and slavery (including forced marriage, which, as defined in the 1956 Convention, involves elements of ownership and 

control prohibited under the Thirteenth Amendment). With respect 

to the delivery of a child for the purpose of exploitation, the forms 

of exploitation for which U.S. law provides criminal sanction are 

slavery, peonage, forced labor, involuntary servitude and, as further described below, sexual exploitation. 

With respect to the obligation to criminalize trafficking and attempted trafficking for the purpose of ‘‘the exploitation of the prostitution of others,’’ U.S. federal law prohibits instances where a 

person is transported in interstate or foreign commerce, or induced 

or coerced to do so, with the intent that the person engage in prostitution, 49 states prohibit all prostitution, and Nevada prohibits 

prostitution derived from force, debt bondage, fraud, and deceit. 

While the Protocol requires criminalization of a range of conduct 

antecedent to the actual engaging in prostitution, this requirement 

is met by state procurement or promotion of prostitution laws, or 

as in Nevada’s case, the above-described trafficking law. 

The Protocol also requires criminalization of trafficking for the 

purpose of ‘‘other forms of sexual exploitation.’’ Federal law prohibits interstate travel or transportation of a person, and enticement or inducement for the purpose of committing any criminal 

sexual act. In addition, state laws proscribe a variety of forms of 

sexual abuse, as well as attempted commission of such offenses. 

These federal and state laws meet the obligation to criminalize 

trafficking in persons for the purpose of other forms of sexual exploitation. 

With respect to the obligation to criminalize attempted trafficking for the purpose of other forms of sexual exploitation, the 

federal laws described above are consistent with this requirement. 

However, with respect to state laws, some forms of conduct that 

are required to be criminalized as attempts would be too remote 

from completion to be punished under the attempted sexual abuse 

laws of a particular state. To address that narrow range of attempted trafficking for sexual exploitation offenses that do not rise 

to the level of attempted sex abuse offenses under federal or state 

laws, it will be necessary to reserve the right to apply the obligation set forth in Article 5, Paragraph 2(a), of the Protocol only to 

the extent that such conduct is punishable by the laws of the state 

concerned. 

In addition, the Protocol requires States Parties to prohibit trafficking and attempted trafficking in persons for the purpose of the 

removal of organs (which the negotiating record makes clear does 

not prohibit organ removal for legitimate medical reasons). The 

most closely analogous federal criminal statute, 42 U.S.C. 274e, penalizes only the sale of organs in interstate and foreign commerce. 

While that statute, along with federal fraud, kidnapping, aiding 

and abetting and conspiracy laws, likely covers most instances of 

such trafficking that could arise, the express obligation under the 

Protocol is nonetheless broader. Similarly, states generally do not 

XXIII

have statutes specifically treating as crimes trafficking or attempted trafficking in persons for the purpose of the removal of organs, although in a manner similar to federal law, such conduct 

may be punishable as murder, assault, kidnapping, fraud or similar offenses, depending on the circumstances of the crime. 

Accordingly, to avoid undertaking obligations with respect to the 

two areas discussed above, I recommend that the following reservation be included in the U.S. instrument of ratification:

The Government of the United States of America reserves the right to assume obligations under this Protocol 

in a manner consistent with its fundamental principles of 

federalism, pursuant to which both federal and state criminal laws must be considered in relation to conduct addressed in the Protocol. U.S. federal criminal law, which 

regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, such as the 

Thirteenth Amendment’s prohibition of ‘‘slavery’’ and ‘‘involuntary servitude,’’ serves as the principal legal regime 

within the United States for combating the conduct addressed in this Protocol, and is broadly effective for this 

purpose. Federal criminal law does not apply in the rare 

case where such criminal conduct does not so involve interstate or foreign commerce, or otherwise implicate another 

federal interest, such as the Thirteenth Amendment. There 

are a small number of conceivable situations involving 

such rare offenses of a purely local character where U.S. 

federal and state criminal law may not be entirely adequate to satisfy an obligation under the Protocol. The Government of 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.

I also recommend that the Senate include the following understanding in its resolution of advice and consent:

The United States understands that, in view of its reservations, the Protocol 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 Protocol. 

II. Protection of victims of trafficking, in persons 

Article 6 (‘‘Assistance to and protection of victims of trafficking 

in persons’’) recognizes that protection of victims is as important as 

prosecuting traffickers. It calls on States Parties to make available 

to victims of trafficking in persons certain protections and assistance. Among the protections included are protection of the privacy 

and identity of the victim by making legal proceedings confidential 

and protection of the physical safety of victims. The types of assistance to be offered include assistance during legal proceedings 

against the trafficker, and assistance to provide for victims’ physVerDate jul 14 2003 05:16 Feb 24, 2004 Jkt 029118 PO 00000 Frm 00023 Fmt 7633 Sfmt 6602 E:\HR\OC\TD016.XXX TD016
XXIV

ical, psychological and social recovery. This Article also calls on 

States Parties to take into account the age, gender and special 

needs of victims. In recognition of the fact that legal systems and 

available resources will affect how States Parties implement their 

obligations under this Article, the Article includes language providing appropriate discretion and flexibility. For example, States 

Parties are, required to ‘‘consider’’ taking certain of the measures 

called for, and are required to take certain other measures ‘‘in appropriate cases and to the extent possible under its domestic law.’’ States Parties, however, are required to ensure the possibility for 

the victim to obtain compensation for damages suffered. 

Article 7 (‘‘Status of victims of trafficking in persons in receiving 

States’’) calls on States Parties to consider providing temporary or 

permanent residency to victims of trafficking in appropriate cases. 

Paragraph 1 of Article 8 (‘‘Repatriation of victims of trafficking 

in persons’’) states that Parties must facilitate and accept the return of their nationals and permanent residents who are trafficking 

victims. This is consistent with the customary international law 

principle that a country is obligated to accept the return of any of 

its nationals. Article 8(2) provides that such return shall be with 

due regard for the safety of the victim and the status of legal proceedings against the trafficker, and shall preferably be voluntary. 

Paragraphs 3 and 4 provide measures to facilitate the return of 

trafficking victims. They require a State Party to verify whether a 

trafficking victim is its national or permanent resident, and to 

issue whatever travel or other documents are need to enable the 

person to return to its territory. Article 8 (5) states that Article 8 

is without prejudice to any right afforded trafficking victims by the 

domestic law of the receiving State Party. For example, nothing in 

Article 8 would interfere with a trafficking victim’s right to apply 

for asylum in the United States. Finally, Article 8 (6) contains the 

important statement that the Article will not prejudice any other 

applicable agreement or arrangement, be it bilateral or multilateral, that governs the return of trafficking victims. This was included to ensure that the Protocol did not interfere with other 

agreements or arrangements that a State Party may have worked 

out with another State Party on this subject. 

III. Prevention, cooperation and other measures 

Paragraph 1 of Article 9 (‘‘Prevention of trafficking in persons’’) 

obligates States Parties to take measures to prevent and combat 

trafficking in persons and to protect victims from revictimization. 

The remaining four paragraphs of the Article elaborate on that obligation. Article 9(2) calls on States Parties to take measures, including research and mass media campaigns, to prevent and combat trafficking. Article 9(3) states that the actions taken in accordance with this Article must include appropriate cooperation with 

non-governmental organizations. Article 9(4) requires States Parties to take or strengthen measures to alleviate the factors that 

make persons vulnerable to trafficking, such as poverty and lack of 

equal opportunity. Finally, Article 9(5) requires States Parties to 

adopt or strengthen measures to discourage the demand that fosters all forms of exploitation of persons, and consequently leads to 

trafficking. 

XXV

Article 10 (‘‘Information exchange and training’’) requires States 

Parties to exchange information, in accordance with their domestic 

law, in order to enable them to determine (1) whether persons 

crossing international borders with suspicious or no travel documents are perpetrators or victims of trafficking; and (2) the means 

and methods used by trafficking gangs, including, for example, 

means of recruitment and transportation of victims, and trafficking 

routes. Article 10 further requires States Parties to provide training for relevant government officials in the prevention of trafficking 

in persons, and elaborates on what that training should include. Finally, Article 10 provides that a State Party receiving information 

under this Article shall comply with any restriction placed on its 

use by the State Party that transmitted the information. As this 

Article relates to police cooperation, it does not affect mutual legal 

assistance relations, which are instead governed by treaties for 

that purpose, and by provisions such as Article 18 of the Convention itself. 

Article 11 (‘‘Border measures’’) provides that States Parties shall 

strengthen border controls as necessary to prevent and detect trafficking in persons without prejudice to international commitments 

to the free movement of people. It then goes on to set forth particular measures that states must take in order to strengthen border controls. These include measures to prevent commercial carriers from being used in the commission of trafficking offenses; 

obliging commercial carriers to ascertain that passengers are in 

possession of required travel documents, providing for sanctions 

against carriers who do not comply with the requirement to check 

their passengers’ travel documents, and denying or revoking visas 

to persons involved in the commission of trafficking crimes. All of 

these provisions include discretionary language (e.g., that States 

Parties ‘‘shall consider’’ adopting certain measures, or that they 

shall do so ‘‘where appropriate,’’ ‘‘to the extent possible,’’ or ‘‘in accordance with [their] domestic law’’), so as to provide flexibility to 

States Parties. 

Under Article 12 (‘‘Security and control of documents’’), States 

Parties are obliged to take measures, within available means, to 

ensure that their travel and identity documents are of such a quality that they cannot easily be misused and cannot readily be falsified, altered, replicated or issued, and to ensure the security and 

integrity of such documents so that they cannot be unlawfully created, issued or used. 

Article 13 (‘‘Legitimacy and validity of documents’’) is related to 

Article 12. It requires a State Party to verify within a reasonable 

time the legitimacy and validity of travel documents that appear 

to have been issued in its name and to have been used for trafficking in persons. 

IV. Final provisions 

Article 14 (‘‘Saving clause’’) is extremely important in setting appropriate balance in the Protocol between law enforcement and protection of victims. It reaffirms that the Protocol does not affect 

rights, obligations, and responsibilities of States and individuals 

under international law, in particular international humanitarian 

law as well as the 1951 Convention and the 1967 Protocol relating 

XXVI

to the Status of Refugees and the principle of non-refoulement as 

contained therein. (The negotiating record explicitly states that the 

Protocol does not deal one way or the other with the status of refugees.) Moreover, this Article provides that the Protocol must be applied in a way that does not discriminate against persons on the 

ground that they are victims of trafficking in persons and that the 

Protocol shall be interpreted and applied in a manner consistent 

with internationally recognized principles of non-discrimination 

(e.g., no distinction based on race, religion, nationality, membership 

in a particular social group or political opinion.) 

Article 15 (‘‘Settlement of disputes’’) and Article 16 (‘‘Signature, 

ratification, acceptance, approval and accession’’), are identical to 

the analogous provisions (Articles 35 and 36) of the Convention, except that the word ‘‘Protocol’’ is substituted for ‘‘Convention.’’ As 

with the analogous article of the Convention, the United States intends to exercise its right to reserve with regard to the dispute resolution mechanism set forth in the Protocol. Accordingly, I recommend that the following reservation be included in the U.S. instrument of ratification:

In accordance with Article 15, 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 15, paragraph 2.

Article 17 (‘‘Entry into force’’) is identical to Article 38 of the 

Convention, except that (1) the word ‘‘Protocol’’ is substituted for 

‘‘Convention’’; and (2) Article 17 provides that the Protocol shall not 

enter into force before the entry into force of the Convention. 

Article 18 (‘‘Amendment’’) is identical to Article 39 of the Convention, except that (1) the word ‘‘Protocol’’ is substituted for ‘‘Convention’’; and (2) Article 18 provides that the States Parties to the Protocol meeting at the Conference of the Parties (rather than the entire Conference of the Parties) approve any amendment to the Protocol. This change was necessary so that decisions regarding 

amendment to the Trafficking Protocol would be made only by 

States Parties to the Protocol, and not by parties to the Convention 

who were not also parties to the Protocol. 

Article 19 (‘‘Denunciation’’) is identical to Article 40 of the Convention except that (1) the word ‘‘Protocol’’ is substituted for ‘‘Convention’’; and (2) Article 19 does not contain the final paragraph of 

Article 40 (which states that a State Party that denounces the Convention must denounce any Protocols to which that State is a Party 

as well). 

Article 20 (‘‘Depositary and languages’’) is identical to Article 41 

of the Convention except that the word ‘‘Protocol’’ is substituted for 

‘‘Convention.’’

Finally, the terms of the Protocol, with the suggested reservations and understandings, are consonant with U.S. law. To clarify 

that the provisions of the Protocol, with the exceptions of those implemented through Articles 16 and 18 of the Convention, are not 

self-executing, I recommend that the Senate include the following 

declaration in its resolution of advice and consent:

The United States declares that the provisions of the 

Protocol (with the exception of those implemented through 

XXVII

Articles 16 and 18 of the Convention) are non-self-executing.

Article 16 and Article 18 of the Convention (which are applicable 

to the Protocol by virtue of Article 1 thereof) 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. 

PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND

AIR, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST

TRANSNATIONAL ORGANIZED CRIME

The Migrant Smuggling Protocol consists of a preamble and 25 

articles, which are divided into four chapters: I (‘‘General provisions’’), II (‘‘Smuggling of migrants by sea’’), III (‘‘Prevention, cooperation and other measures’’) and IV (‘‘Final provisions’’). To the 

extent practicable, the wording of key phrases and the structure of 

the Trafficking and Migrant Smuggling Protocols are consistent 

with each other and are modeled on the structure and wording of 

the Convention. While there was never any concern, in the context 

of the Trafficking Protocol negotiations, that the Protocol might be 

used to punish the victims, there was great concern, especially on 

the part of ‘‘sending’’ countries (i.e., states from which migrants are 

smuggled), that the ‘‘receiving’’ countries (i.e., states to which migrants are smuggled) might use the Migrant Smuggling Protocol to 

punish the smuggled migrants. It was necessary to address this 

concern, and develop a Protocol that balances law enforcement provisions with protection of the rights of smuggled migrants, in order 

to reach consensus. Thus, this Protocol contains a number of migrant-protection provisions. As noted above, subject to the reservations and understandings recommended herein, the Protocol would 

not require implementing legislation for the United States. 

I. General provisions 

Article 1 (‘‘Relation with the United Nations Convention against 

Transnational Organized Crime’’) is structurally a key provision of 

the Migrant Smuggling Protocol. Rather than repeating in the Protocol every provision of the Convention that is also applicable to 

the Protocol, and rather than explicitly referencing every provision 

in the Convention that is also applicable to the Protocol, this Article provides that all provisions of the Convention shall apply, ‘‘mutatis mutandis,’’ to the Protocol unless otherwise provided. The negotiating record to the Protocol explains that the phrase in 

quotations means ‘‘with such modifications as circumstances require’’ or ‘‘with the necessary modifications,’’ and that the provisions of the Convention would thus be interpreted so as to have the 

same essential meaning or effect in the Protocol as in the Convention. Article 1 further clarifies this concept by providing that the 

offences established in Article 6 of the Protocol (the criminalization 

article) shall be regarded as offences established in accordance with 

the Convention. Thus, wherever in the Convention it is stated that 

a particular provision applies to ‘‘offences established in accordance 

XXVIII

with the Convention,’’ that provision will also apply for States Parties to this Protocol to the migrant smuggling offences established 

in accordance with Article 6 of the Protocol. 

The obligations set forth in the Convention that are to be applied 

to offenses established in the Migrant Smuggling Protocol are all 

consistent with current U.S. law. In contrast to the Convention and 

the Trafficking Protocol, no reservation will be required with respect to the establishment of jurisdiction over Protocol offenses 

committed on board ships flying a U.S. flag or aircraft registered 

under U.S. law. This difference between the Migrant Smuggling 

Protocol and the other instruments arises because, as discussed 

further within, the Migrant Smuggling Protocol requires the 

United States to criminalize only the smuggling of migrants into 

the United States, and travel and identity document offenses in 

conjunction therewith. U.S. law provides for jurisdiction over such 

conduct occurring outside the United States, which would include 

on board ships flying a U.S. flag or aircraft registered under U.S. 

law. 

Similarly, since U.S. federal law covers any migrant smuggling 

into United States territory, and travel and identity document offenses in conjunction therewith, a federalism reservation is not required. 

As with respect to the Trafficking Protocol, to make clear that 

the U.S. understands its existing comprehensive list of money laundering predicate offenses as sufficient to implement the Article’s 

obligation with respect to the Protocol offenses, I recommend that 

the following understanding be included in the U.S. instrument of 

ratification:

The Government of 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.

Finally, it should be noted that the previously described notifications to be made by the United States with respect to Articles 16, 

18, and 31 of the Convention also apply to this Protocol. No additional notification in this regard is necessary with respect to the 

Migrant Smuggling Protocol. 

Article 2 (‘‘Statement of purpose’’) describes the purpose of the 

Protocol, which are 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. 

Article 3 (‘‘Use of terms’’) defines four terms used in the Protocol, 

including the key term ‘‘smuggling of migrants.’’ ‘‘Smuggling of migrants’’ means ‘‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry 

of a person into a State Party of which the person is not a national 

or a permanent resident.’’ The language that requires the purpose 

of the smuggling to be financial or other material gain is taken 

XXIX

from the definition of ‘‘organized criminal group’’ in the main Convention. The negotiating record explains that the inclusion of this 

language was meant to emphasize that the Protocol did not cover 

the activities of those providing support to smuggled migrants for 

humanitarian reasons or on the basis of close family ties. ‘‘Illegal 

entry’’ means crossing borders without complying with the requirements for legal entry into the receiving State. ‘‘Fraudulent travel 

or identity document’’ means a travel or identity document that has 

been falsely made or altered without proper authorization, that has 

been improperly issued or obtained, or that is being used by someone other than the rightful holder. ‘‘Vessel’’ means any type of 

water craft capable of being used-as a means of transportation on 

water, except for Government vehicles being used for governmental, non-commercial service. Thus, naval vessels being used for 

military purposes are not covered by the Protocol, but government 

vessels being used for services that might in other countries be provided by non-governmental, commercial entities are covered. 

Article 4 (‘‘Scope of application’’) is modeled on the analogous article in the Convention. It is one of many provisions in the Protocol 

that have an analogous provision in the Convention. In all cases, 

the goal was to make the language in the Protocol consistent with 

the language in the Convention. Article 4 thus states that the Protocol applies, except as otherwise provided therein, to the prevention, investigation and prosecution of the offenses established in 

the Protocol, ‘‘where the offenses are transnational in nature and 

involve an organized criminal group’’ (virtually identical language 

is used in the ‘‘Scope’’ article in the Convention), and to the protection of the rights of persons who have been the object of such offenses. 

Article 5 (‘‘Criminal liability of migrants’’) states that migrants 

must not be subject to criminal prosecution under the Protocol 

merely because they are the objects of conduct set forth in Article 

6 (criminalization). This Article was the key to getting the support 

of the ‘‘sending’’ countries for this Protocol. It makes perfectly clear 

that the Protocol does not call for the punishment of the migrant 

merely because he or she has been smuggled. However, as is made 

explicit later in the Protocol (Article 6(4)), nothing in Article 5 or 

anywhere else in the Protocol prevents a State Party from taking 

measures against a smuggled migrant under its domestic law. Also, 

Article 5 would not apply to a case where the smuggled migrant 

was also part of the organized criminal group that conducted the 

smuggling—in such a case the criminalization obligation of the Protocol would apply to the migrant not because of the migrant’s status as a smuggled migrant, but because of his or her participation 

in the smuggling operation as a smuggler. 

Article 6 (‘‘Criminalization’’) was modeled on the analogous articles in the Convention. It requires States Parties to criminalize 

three distinct types of conduct: (1) ‘‘smuggling of migrants,’’ (2) document fraud when committed for the purpose of enabling the 

smuggling of migrants, and (3) enabling a person to reside illegally 

in a State by means of document fraud or any other illegal means. 

As confirmed by Article 11(6) of the Convention, there is no requirement that the criminal offenses by which the U.S. will implement this obligation be denominated in terms identical to those 

XXX

used in the Protocol, provided the requisite conduct is a criminal 

offense under U.S. law. 

With respect to the first category (smuggling of migrants), each 

State Party is obligated to criminalize the conduct described in the 

definition set forth in Article 3(a), i.e., ‘‘the procurement . . . of the 

illegal entry of a person into a State Party of which the person is 

not a national or permanent resident.’’ This definition is consistent 

with the United States’ interpretation that the Protocol requires 

the United States to criminalize the smuggling of migrants into its 

country, an obligation that can be implemented under current U.S. 

law. 

Within the second category (document fraud enabling the smuggling of migrants), the Protocol requires Parties to criminalize producing, procuring, providing, or possessing fraudulent travel or 

identity documents. Although U.S. criminal statutes relating to 

false or fraudulent passports, visas, other travel documents, and 

identity documents are not couched in these precise terms, the conduct that must be prohibited under the Protocol is covered, either 

through these statutes or through those prohibiting the inducement 

or encouragement of migrant smuggling. U.S. law relating to identity documents requires that the conduct covered be done with the 

intent to defraud the United States. Since, as noted above, the Protocol is understood by the United States to require it to criminalize 

smuggling into the United States, this intent requirement is consistent with our obligation under the Protocol. 

The third type of offense (enabling illegal residence) requires 

some explanation. Until the last round of negotiations, the text of 

the entire Protocol was developed on the assumption that the definition of ‘‘smuggling of migrants’’ in Article 3 would cover both illegal entry and illegal residence. In other words, criminal groups 

that knowingly, intentionally and for profit, provided false documents, transportation, housing, etc. to persons who were present in 

a country illegally in order to enable those persons to continue to 

reside in the country, would be guilty of ‘‘smuggling of migrants,’’ even if the group had nothing to do with the initial entry of the 

persons into the country, and even if the persons’ initial entry was 

legal. The ‘‘sending’’ countries were concerned that this definition 

was too broad, and could cover the activities of family members or 

others who helped illegal migrants remain in a country for humanitarian reasons. The eventual compromise was to limit the definition of ‘‘smuggling of migrants’’ to illegal entry, and to have a separate criminalization requirement for enabling illegal residence that 

was limited to false documents, and did not cover other support, 

such as transportation or housing, which might be given to illegal 

migrants to enable them to remain in a country. In any event, current U.S. law prohibiting the harboring of illegal aliens covers the 

obligation set forth in this category. 

As with the Trafficking Protocol, Article 6 obliges States Parties 

to criminalize attempts to commit the offenses described in paragraph 1, subject to the basic concepts of their respective legal systems, as well as participation as an accomplice (subject to the basic 

concepts of their respective legal systems, with respect to procuring, providing, or possessing fraudulent travel or identity documents) or organizing or directing others to commit the offenses. 

XXXI

Participating as an accomplice and ordering or directing migrant 

smuggling offenses are criminalized under general accessorial liability principles of U.S. law. U.S. law prohibits most, but not all, 

attempts to engage in the described conduct. For example, U.S. law 

does not always criminalize attempted possession of fraudulent 

travel or identity documents. Accordingly, I recommend that the 

following reservation be included in the U.S. instrument of ratification:

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 Government of 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.

Article 6 also calls on States Parties to adopt measures to establish as aggravating circumstances those circumstances that endanger, or are likely to endanger, the life or safety of the migrants, or 

entail inhuman or degrading treatment with respect to the offenses 

described above. U.S. Federal Sentencing Guidelines provide enhanced penalties when the offense of smuggling, harboring, encouraging or inducing illegal entry to or residence in the United States 

involves the intentional or reckless creation of a substantial risk of 

death or serious bodily injury. In the case of production of false or 

fraudulent documents, an enhanced penalty would of necessity only 

apply to situations in which the documents are provided to a migrant under such circumstances. Such conduct constitutes ‘‘encouraging’’ or ‘‘inducing’’ alien smuggling under U.S. law, and is thereby subject to enhanced penalties under the Sentencing Guidelines. 

The Sentencing Guidelines further provide enhanced penalties for 

circumstances that entail inhuman or degrading treatment, such as 

subjecting migrants to inhumane conditions, or to circumstances in 

which they are likely to be forced into involuntary servitude. 

Finally, as a balance to Article 5’s guarantee that migrants shall 

not be punished under the Protocol for the mere fact of having been 

smuggled, Article 6 clarifies that nothing in the Protocol prevents 

a State Party from taking measures against a smuggled migrant 

whose conduct constitutes an offense under its domestic law. 

II. Smuggling of migrants by sea 

Article 7 (‘‘Cooperation’’) requires States Parties to cooperate to 

the fullest extent possible to prevent and suppress migrant smuggling by sea in accordance with the international law of the sea. 

Article 8 (‘‘Measures against the smuggling of migrants by sea’’) 

establishes procedures for interdicting suspect vessels at sea. This 

Article is based on long-standing international law principles of 

flag State jurisdiction on the high seas, universal jurisdiction over 

ships without nationality, and the right of approach and visit. 

Paragraph 1 provides that the flag State may take direct action 

XXXII

against its own flag vessels, as well as stateless vessels, and may 

request the assistance of other States Parties to suppress migrant 

smuggling by sea. Paragraph 2 provides for the boarding and 

searching of foreign flag vessels, with flag State consent, based on 

reasonable grounds to suspect that the vessel is engaged in migrant smuggling. The flag State must be promptly notified of any 

action taken against one of its vessels (paragraph 3). Paragraph 4 

provides that the flag State must respond expeditiously to a request for confirmation of registry and request for authorization to 

take appropriate measures with regard to one of its vessels. Paragraph 5 allows the flag State to condition its authorization with respect to the boarding, searching and taking of measures against 

one of its flag vessels, as mutually agreed between the flag State 

and the requesting State. The requesting State may not take any 

additional actions without the express authorization of the flag 

State, except those necessary to relieve imminent danger to the 

boarding party or to other persons on board, or as otherwise authorized by bilateral or multilateral agreements. 

Paragraph 6 requires States Parties to designate an authority or 

authorities to receive reports and respond to requests for assistance, confirmation of registry or authorization to take appropriate 

measures. The Operations Center, Department of State, would 

serve as such authority for the United States. States Parties are 

obliged by Article 8(6) to notify the UN Secretary-General of their 

designated authority or authorities within one month of the designation. Accordingly, upon ratification of the Convention, the Department of State will, by diplomatic note, provide the depositary 

with the following notification:

Pursuant to Article 8, paragraph 6 of the Protocol 

against the Smuggling of Migrants by Land, Sea and Air, 

supplementing the United Nations Convention against 

Transnational Organized Crime, the United States of 

America notifies the other States Parties through the Secretary-General of the United Nations that the Operations 

Center, U.S. Department of State, is designated as its authority to receive and respond to requests under the abovereferenced paragraph of the Protocol.

Paragraph 7 provides for universal jurisdiction over stateless vessels, by allowing all States Parties to board and search stateless 

vessels. 

Article 9 (‘‘Safeguard Clauses’’) requires States Parties taking 

measures against a vessel engaged in migrant smuggling to ensure 

the safety and humanitarian handling of the persons on board and, 

within available means, that any actions taken with regard to the 

vessel are environmentally sound. States Parties shall also take 

due account of the need not to endanger the security of the vessel 

or its cargo, as well as the need not to prejudice the commercial 

or legal interests of the flag State or any other interested State. If 

it is subsequently proven that the suspect vessel was not engaged 

in the smuggling of migrants, the vessel shall be compensated for 

any loss or damage that it may have sustained, provided that the 

vessel has not committed any act justifying the measures taken. 

Similar provisions are in other international instruments related to 

XXXIII

the law of the sea. Existing claims procedures in place under current law would be used in the processing and adjudication of any 

such claims. Any measure taken, adopted or implemented under 

this chapter must also take due account of the need not to interfere 

with the rights and obligations and the exercise of jurisdiction of 

coastal States in accordance with the international law of the sea, 

as well as the authority of the flag State to exercise jurisdiction 

and control in administrative, technical and social matters involving the vessels. Any action taken against vessels pursuant to this 

chapter must be carried out only by warships or military aircraft, 

or other ships or aircraft clearly marked and identifiable as being 

on government service and authorized to that effect. 

III. Prevention, cooperation and other measures 

Article 10 (‘‘Information’’) calls for States Parties, consistent with 

their domestic legal and administrative systems, to exchange 

among themselves certain types of information for the purpose of 

achieving the Protocol’s objectives. The information called for includes information on such matters as embarkation and destination 

points, as well as routes and means of transportation used by 

smugglers, and the identify and organization of smuggling groups. 

This information exchange is in addition to that called for in Articles 27 (‘‘Law enforcement cooperation’’) and 28 (‘‘Collection, exchange and analysis of information on the nature of organized 

crime’’) of the Convention and is analogous to that contemplated in 

Article 10 of the Trafficking Protocol. Finally, Article 10 provides 

that States Parties that receive information shall comply with any 

restrictions on its use imposed by the State Party that transmitted 

the information. 

Article 11 (‘‘Border measures’’) provides that States Parties shall 

strengthen border controls as necessary to prevent and detect the 

smuggling of migrants, without prejudice to international commitments to the free movement of people. It then goes on to set forth 

particular measures that states should take in order to strengthen 

border controls. These include measures to prevent commercial carriers from being used in the commission of migrant smuggling offenses; obliging commercial carriers to ascertain that passengers 

are in possession of required travel documents, providing for sanctions against carriers who do not comply with the requirement to 

check their passengers’ travel documents, and denying or revoking 

visas to persons involved in the commission of migrant smuggling 

crimes. All of these provisions include discretionary language (e.g., 

States Parties ‘‘shall consider’’ adopting certain measures, or that 

they shall do so ‘‘where appropriate,’’ ‘‘to the extent possible,’’ or ‘‘in 

accordance with domestic law’’) so as to provide flexibility to States 

Parties. 

Under Article 12 (‘‘Security and control of documents’’), States 

Parties are obliged to take measures, within available means, to 

ensure that their travel and identity documents are of such a quality that they cannot easily be misused (and cannot readily be falsified or unlawfully altered, replicated or issued), and to ensure the 

security and integrity of such documents so that they cannot be unlawfully created, issued or used. 

XXXIV

Article 13 (‘‘Legitimacy and validity of documents’’) is related to 

Article 12. It requires a State Party to verify within a reasonable 

time the legitimacy and validity of travel documents that appear 

to have been issued in its name and to have been used for smuggling of migrants. 

Article 14 (‘‘Training and technical cooperation’’) requires States 

Parties to provide or strengthen various types of law enforcement 

training for their relevant officials in order to prevent the conduct 

set forth in Article 6 and to provide humane treatment to the 

smuggled migrants. It further requires States Parties to cooperate 

with each other, and with international and nongovernmental organizations to make sure that such training is adequate. Finally, this 

Article provides that States Parties shall consider providing assistance to other States that are frequently countries of origin or transit for smuggled migrants. 

Article 15 (‘‘Other prevention measures’’) deals with nonlaw-enforcement prevention techniques. It requires States Parties to provide public awareness programs to ensure that the public is aware 

of the criminal nature of migrant smuggling and the risks it poses 

to the migrants. The last paragraph of this Article, which was very 

important to the ‘‘sending’’ countries, requires States Parties to 

promote or strengthen, as appropriate, development programs at 

the national, regional and international levels, to combat the root 

socio-economic causes of the smuggling of migrants. 

Article 16 (‘‘Protection and assistance measures’’), requires States 

Parties, consistent with their obligations under international law, 

to take appropriate measures to preserve and protect the rights of 

smuggled migrants, in particular the right to life, and the right not 

to be subjected to torture or other cruel, inhuman or degrading 

treatment. As discussed above under Article 6, neither this Article 

nor Article 5 preclude the United States from prosecuting a smuggled person if he or she has engaged in other criminal activity. Article 16 also obliges States Parties to take appropriate measures to 

protect smuggled migrants from violence, and to assist smuggled 

migrants whose lives or safety are endangered. It further requires 

States Parties to take into account the special needs of women and 

children in implementing this Article. Finally, it obliges States Parties, when a smuggled migrant has been detained, to comply with 

its obligations under the Vienna Convention on Consular Relations 

(‘‘VCCR’’), including those concerning consular notification and access. This last requirement creates no new obligations or interpretations; it merely states that States Parties must comply with their 

obligations under the VCCR, whatever those obligations may be. 

Article 17 (‘‘Agreements and arrangements’’) encourages States 

Parties to conclude bilateral or regional agreements or arrangements to implement the Protocol. This was an important Article to 

the United States, as we have bilateral migration agreements with 

a number of countries. 

Article 18 (‘‘Return of smuggled migrants’’) is one of the key articles in the Protocol. Paragraph 1 requires a State Party to facilitate 

and accept the return of smuggled migrants who are its nationals 

or permanent residents at the time of return. The Protocol is the 

first binding international instrument to codify this customary 

international law principle. Paragraph 2 calls on a State Party to 

XXXV

consider accepting the return of smuggled migrants who were permanent residents at the time they entered the receiving State. 

Thus paragraph 1 deals with cases where a person is a national or 

has the right of permanent residence at the time of return. Paragraph 2 is supplementary to paragraph 1 and deals with the case 

of a person who had the right of permanent residence at the time 

of entry, but no longer has it at the time of return. The remainder 

of the Article deals with means of facilitating and implementing 

the return of smuggled migrants. Some countries refuse to acknowledge that a person is their national or permanent resident, 

or refuse to issue necessary travel documents to enable the smuggled migrant’s return. This Article requires States Parties to do 

both. It also requires States Parties to carry out returns in an 7s 

orderly manner with due regard for the safety and dignity of the 

person. This Article does not affect any rights afforded to smuggled 

migrants by the law of the receiving State Party (e.g., the right to 

seek asylum); nor does it affect obligations entered into any other 

applicable agreement or arrangement governing the return of 

smuggled migrants. 

IV. Final provisions 

Article 19 (‘‘Saving clause’’) is extremely important in setting appropriate balance in the Protocol between law enforcement and protection of victims. It reaffirms that the Protocol does not affect 

rights, obligations, and responsibilities of States and individuals 

under international law, in particular international humanitarian 

law as well as the 1951 Convention and the 1967 Protocol relating 

to the Status of Refugees and the principle of non-refoulement as 

contained therein. (The negotiating record explicitly states that the 

Protocol does not deal one way or the other with the status of refugees.) Moreover, this Article provides that the Protocol must be interpreted and applied in a way that does not discriminate against 

persons on the ground that they were smuggled and that the Protocol shall be applied in a manner consistent with internationally 

recognized principles of non-discrimination (e.g., no discrimination 

on the basis of race, religion, nationality, membership in a particular social group or political opinion). 

Article 20 (‘‘Settlement of disputes’’) and Article 21 (‘‘Signature, 

ratification, acceptance, approval and accession’’), are identical to 

the analogous provisions (Articles 35 and 36) of the Convention, except that the word ‘‘Protocol’’ is substituted for ‘‘Convention.’’ As in 

the Convention and the Trafficking Protocol, and as contemplated 

in paragraph 3 of Article 20, I recommend that the following reservation with respect to paragraph 2 (which would otherwise require the United States to submit to binding arbitration of disputes) be included in the U.S. instrument of ratification:

In accordance with Article 20, 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 20, paragraph 2.

Article 22 (‘‘Entry into force’’) is identical to Article 38 of the 

Convention, except that (1) the word ‘‘Protocol’’ is substituted for 

XXXVI

‘‘Convention’’; and (2) Article 22 provides that the Protocol shall not 

enter into force before the entry into force of the Convention. 

Article 23 (‘‘Amendment’’) is identical to Article 39 of the Convention, except that (1) the word ‘‘Protocol’’ is substituted for ‘‘Convention’’; and (2) Article 23 provides that the States Parties to the Protocol meeting at the Conference of the Parties (rather than the entire Conference of the Parties) approve any amendment to the Protocol. This change was necessary so that decisions regarding 

amendment to the Migrant Smuggling Protocol would be made only 

by States Parties to the Protocol, and not by parties to the Convention who were not also parties to the Protocol. 

Article 24 (‘‘Denunciation’’) is identical to Article 40 of the Convention except that (1) the word ‘‘Protocol’’ is substituted for ‘‘Convention’’; and (2) Article 24 does not contain the final paragraph of 

Article 40 (which states that a State Party that denounces the Convention must denounce any Protocols that that State is a Party to 

as well). 

Article 25 (‘‘Depositary and languages’’) is identical to Article 41 

of the Convention except that the word ‘‘Protocol’’ is substituted for ‘‘Convention.’’ Finally, the terms of the Protocol, with the suggested reservations and understandings, are consonant with U.S. law. To clarify 

that the provisions of the Protocol, with the exceptions of those implemented through Articles 16 and 18 of the Convention, are not 

self-executing, I recommend that the Senate include the following 

declaration in its resolution of advice and consent:

The United States declares that the provisions of the 

Protocol (with the exception of those implemented through 

Articles 16 and 18 of the Convention) are non-self-executing.

Article 16 and Article 18 of the Convention (which are applicable 

to the Protocol by virtue of Article 1 thereof) 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.

It is my belief that the Convention and the Trafficking and Migrant Smuggling Protocols would be advantageous to the United 

States and, subject to the reservations and understandings proposed in this Report, would be consistent with existing U.S. legislation. The Department of Justice joins me in recommending that the 

Convention and the Protocols be transmitted to the Senate at an 

early date for its advice and consent to ratification, subject to the 

reservations and understanding described above. 

Respectfully submitted, 

COLIN L. POWELL. 

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52


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(59)


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60


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61


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62


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63


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64


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65


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66


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67


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68


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69


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70


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71


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72


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73


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75


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76


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77


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78


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79


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