[Senate Treaty Document 108-16]
[From the U.S. Government Publishing Office]
108th Congress Treaty Doc.
SENATE
2d Session 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
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) currently 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.
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-article 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 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. Federalcriminal 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 definition 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 Stateswhose 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 implementation 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 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 jurisdiction
over these offenses if they take place outside ourterritory 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:
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 offensescovered 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 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 theabsence 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
Secretary-General 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 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 mutualassistance 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 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 enforcement cooperation''). States Parties must
cooperate, consistent with their respective domestic legal and
administrative systems, to enhance effective action among their
law enforcement authorities, inter alia, by sharing information
on persons, groups, and property involved in 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
forassistance 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
contributions, 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 arerequired 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.
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
Secretary-General 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
Secretary-General 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.
PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED 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 areconsistent
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. 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) 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. Article 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 commitsuch 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 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 rangeof 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 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 oftrafficking 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' physical, 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.
Article 10 (``Information exchange and training'') requires
States Parties to exchange information, inaccordance 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 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 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
Protocolnegotiations, 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 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
NationsConvention 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 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--insuch 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 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 basicconcepts 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. 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 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
migrantsmuggling. 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 above-referenced 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
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 administrativesystems,
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.
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 obligationsunder
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 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 ofnon-
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 ``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 forits advice and consent to
ratification, subject to the reservations and understanding described
above.
Respectfully submitted,
Colin L. Powell.