U. N. Convention Against CorruptionSenate Consideration of Treaty Document 109-6
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[Senate Treaty Document 109-6] [From the U.S. Government Publishing Office] 109th Congress Treaty Doc. SENATE 1st Session 109-6 _______________________________________________________________________ U.N. CONVENTION AGAINST CORRUPTION __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting UNITED NATIONS CONVENTION AGAINST CORRUPTION (THE ``CORRUPTION CONVENTION''), WHICH WAS ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY ON OCTOBER 31, 2003 October 27, 2005.--Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate LETTER OF TRANSMITTAL ---------- The White House, October 27, 2005. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the United Nations Convention Against Corruption (the ``Corruption Convention''), which was adopted by the United Nations General Assembly on October 31, 2003. I also transmit, for the information of the Senate, the report of the Secretary of State with respect to the Corruption Convention, with an enclosure. The international fight against corruption is an important foreign policy priority for the United States. Corruption hinders sustainable development, erodes confidence in democratic institutions, and facilitates transnational crime and terrorism. The Convention will be an effective tool to assist in the growing global effort to combat corruption. The U.N. Corruption Convention is the first global multilateral treaty to comprehensively address the problems relating to corruption. It provides for a broad range of cooperation, including extradition and mutual legal assistance, and commits governments to take measures that will prevent corruption from happening in the first place. The Corruption Convention includes provisions to criminalize and prevent corruption and provides procedures for governments to recover assets that have been illicitly acquired by corrupt officials. The provisions of the Corruption Convention are explained in the accompanying report of the Department of State. The report also sets forth proposed reservations that would be deposited by the United States with its instrument of ratification. With these reservations, the Convention will not require implementing and consent to its ratification, subject to the reservations, understandings, and declarations described in the accompanying report of the Department of State. I recommend that the Senate give early and favorable consideration to the Corruption Convention and give its advice and consent to its ratification, subject to the reservations, understandings, and declarations described in the accompanying report of the Department of State. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, September 23, 2005. The President, The White House. The President: I have the honor to submit to you, with a view to its transmittal to the Senate for advice and consent to ratification, the United Nations (``UN'') Convention Against Corruption (the ``Corruption Convention'' or the ``Convention''), which was adopted by the UN General Assembly on October 31, 2003. On December 9, 2003, the United States, which actively participated in the negotiations hosted by the UN Office on Drugs and Crime in Vienna, signed the Convention at Merida, Mexico. I recommend that the Convention be transmitted to the Senate for its advice and consent to ratification. Accompanying the Convention are interpretative notes for the official records of the negotiations (or ``travaux 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 August 30, 2005, 126 countries have signed the Convention and 29 countries have become States Parties. The Convention, once ratified by thirty countries, will enter into force among those countries on the ninetieth day after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession. For each country that ratifies, accepts, approves, or accedes to the treaty after the deposit of the thirtieth instrument, the Convention will enter into force on the thirtieth day after the date of deposit of that country's instrument of ratification. The Corruption Convention is the first multilateral treaty to comprehensively address, on a global basis, the problems relating to corruption. It expands the obligations contained in Articles 8 and 9 of the UN Convention Against Transnational Organized Crime, which relate to corruption, and complements existing regional anti-corruption instruments by expanding provisions to criminalize and prevent corruption and by providing procedures for governments to recover assets that have been illicitly acquired by corrupt officials. It also reflects and builds upon many of the provisions set forth in the Organization for Economic Co-operation and Development's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The Corruption Convention establishes a treaty-based regime of obligations to provide mutual legal assistance that is analogous to those contained in other law enforcement treaties to which the United States is a party. The Convention thus would enhance the ability of the United States to render and receive assistance on a global basis in the common struggle to prevent, investigate, and prosecute certain acts of corruption and in efforts to recover illicitly obtained assets. A detailed, article-by-article analysis of the Convention is attached to this report. Included in that analysis are two reservations, an understanding, declarations that the Senate is being asked to include in its resolution of advice and consent. As further discussed in the analysis attached to this report, if the United States makes the proposed reservations, the existing body of federal and state law and regulations will be adequate to satisfy the Convention's requirements for legislation, and, thus, further legislation will not be required for the United States to implement the Convention. It is my belief that the Convention would be advantageous to the United States and, subject to the proposed reservations, would be consistent with existing U.S. legislation. The Departments of Justice, Commerce, and Treasury join me in recommending that the Convention be transmitted to the Senate at an early date for its advice and consent to ratification, subject to the reservations, understanding, and declarations that are described fully in the attached analysis. Respectfully submitted. Condoleezza Rice. Attachments: 1. Detailed analysis of the provisions of the Convention 2. Travaux preparatoires DETAILED ANALYSIS OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION AGAINST CORRUPTION The following is a detailed analysis of the provisions of the United Nations Convention Against Corruption, which consists of seventy-one articles divided among eight chapters: (1) ``General provisions''; (2) ``Preventive measures''; (3) ``Criminalization and law enforcement''; (4) ``International co-operation''; (5) ``Asset recovery''; (6) ``Technical assistance and information exchange''; (7) ``Mechanisms for implementation''; and (8) ``Final provisions.'' In addition, the following discussion contains, where relevant, a description of two proposed reservations, a proposed understanding, and two proposed declarations. Chapter I--General Provisions (Articles 1-4) Article 1 (``Statement of Purpose'') states that the purposes of the Convention are to promote and strengthen measures to prevent and combat corruption; facilitate international cooperation and technical assistance in the prevention of and fight against corruption; and promote integrity, accountability, and the proper management of public affairs and public property. Article 2 (``Use of terms'') defines nine terms used in the Convention. In particular, the defined terms ``public official'' and ``foreign public official'' are crucial to understanding the scope of the Convention, since both the preventive measures and criminalization chapters of the Convention use these terms in describing the type of government position toward which a State Party must direct certain measures. The Convention's definition of ``public official'' gives significant deference to a State Party's domestic law and practice in determining which group of persons must be covered by certain preventive measures and criminalization provisions. A ``public official'' is, for purposes of most of the Convention, defined as any one of three categories of persons: (1) a person holding a legislative, executive, administrative, or judicial office of the State Party concerned; (2) any other person who performs a public function or provides a public service, as defined by and applied in the domestic law of the State Party; and (3) any other person defined as a ``public official'' in the domestic law of such State Party. However, for purposes of ``some specific measures'' in the chapter on prevention of the Convention, a State Party may define ``public official'' as any person who performs a public function or provides a public service, as that term is defined and applied under the law of that State Party. In addition to these references to a State Party's law, the interpretative notes make clear that each State Party shall determine which persons are members of the three categories set forth in the first part of the definition. Furthermore, the travaux preparatoires indicate that for countries with subnational units of a self- governing nature, it is up to the State Party whether the term ``office'' is considered to apply to positions at the subnational level. Accordingly, there is significant discretion for federal states such as the United States in applying the term ``public official.'' A ``foreign public official'' is defined as any person holding a legislative, executive, administrative, or judicial office of a foreign country, whether appointed or elected, and any person exercising a public function for a foreign country. This definition, which is important for the provision in the Convention that requires each State Party to criminalize bribery of foreign public officials, provides clear guidance to each State Party as to which kind of foreign officials must be covered by that criminal law. Article 3 (``Scope of application'') elaborates the ambit of the Convention. In general, the Convention applies to the prevention, investigation, and prosecution of corrupt acts and to the freezing, seizure, confiscation, and return of proceeds of offenses established in accordance with the Convention. One issue that arises throughout the Convention is the question of how it can be implemented consistent with the United States' federal system. With respect to the articles of the Convention that require States Parties to establish criminal offenses or related measures if they have not already done so (in particular Articles 15, 16, 17, 23, 25, 27, 29, 31- 32, 35-37), it should be noted preliminarily that these obligations apply at the national level. Existing U.S. federal criminal law has limited scope, generally covering conduct involving interstate or foreign commerce or another important federal interest. Under our fundamental principles of federalism, offenses of a local character are generally within the domain of the states, but not all forms of conduct proscribed by the Convention are criminalized by all U.S. states in the form set forth by the Convention. (For example, some states may not criminalize all of the forms of conduct set forth under Article 25 (``Obstruction of justice'').) Thus, in the absence of a reservation, there would be a narrow category of such conduct that the United States would be obligated under the Convention to criminalize, although under our federal system such obligations would generally be met by state governments rather than the federal government. The obligations set forth in the Convention in the area of preventive measures are generally more flexible than those found in the chapter on criminalization. Nevertheless, it should be noted that preventive measures addressing the conduct of state and local officials are generally handled at the state and local level. While the states generally regulate their own affairs in a manner consistent with the obligations set forth in the chapter on preventive measures in the Convention, in some cases they may do so in a different manner. Therefore, in the absence of a reservation, there may be some preventive measures the United States would be required to implement under the Convention that are not fully addressed at the state level, for example potentially under Articles 6, 9, 12, and 13. In order to avoid such obligations in the criminalization and preventive measures areas, the following reservation is recommended to be included in the Senate's resolution of advice and consent: 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 an important component of the legal regime within the United States for combating corruption and is broadly effective for this purpose. Federal criminal law does not apply where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are conceivable situations involving offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation under the Convention. Similarly, in the U.S. system, the states are responsible for preventive measures governing their own officials. While the states generally regulate their own affairs in a manner consistent with the obligations set forth in the chapter on preventive measures in the Convention, in some cases they may do so in a different manner. Accordingly, there may be situations where state and federal law will not be entirely adequate to satisfy an obligation in Chapters II and III of the Convention. The Government of the United States of America therefore reserves to the obligations set forth in the Convention to the extent they (1) address conduct that would fall within this narrow category of highly localized activity or (2) involve preventive measures not covered by federal law governing state and local officials. This reservation does not affect in any respect the ability of the United States to provide international cooperation to other States Parties in accordance with the provisions of the Convention. Furthermore, in connection with this reservation, it is recommended that the Senate include the following understanding in its resolution of advice and consent: The United States understands that, in view of its federalism reservation, the Convention does not warrant the enactment of any legislative or other measures; instead, the United States will rely on existing federal law and applicable state law to meet its obligations under the Convention. Article 4 (``Protection of sovereignty'') sets forth two standard provisions in UN instruments, stating that States Parties respect each other's sovereign equality and territorial integrity and providing that the Convention does not authorize a State Party to undertake in another State's territory the exercise of jurisdiction and performance of functions reserved for the authorities of that other State by its domestic law. Chapter II--Preventive measures (Articles 5-14) Chapter II contains a set of measures against corruption-- other than criminalization--that States Parties are to take to minimize the opportunity for corrupt acts to occur in the first place. Many of the articles in the chapter expressly provide that such measures are to be undertaken in accordance with the fundamental legal principles of each State Party's legal system. Most measures are directed toward corruption in the public sector, although the chapter also contains provisions to prevent corruption in the private sector and to promote the participation of civil society in the fight against corruption. Many of the obligations set forth in these articles include possible examples of ways in which a State Party might implement those obligations, although the specifics of such measures are left to the individual State Party. As noted above it is recommended that the United States take a reservation to the obligations of this chapter to enable its implementation consistent with our federal system. With this reservation, the United States can implement the obligations of this chapter under existing law. Each State Party is required under Article 5 (``Preventive anti-corruption policies and practices'') to develop and implement or maintain effective and coordinated anti-corruption policies that promote goals such as transparency and accountability. Each State Party also must endeavor to review periodically its relevant legal instruments and administrative measures to determine whether they remain adequate to combat corruption, and is required, as appropriate, to collaborate with other States Parties and with relevant international and regional organizations to develop and promote measures to prevent corruption. Article 6 (``Preventive anti-corruption body or bodies'') requires that each State Party establish or maintain one or more independent, adequately staffed bodies to prevent corruption. Such body might, among other objectives, be tasked to implement the anti-corruption policies required by Article 5, or to increase and disseminate knowledge about the prevention of corruption. Each State Party is to inform the UN Secretary-General of the name and address of the authority that may assist other States Parties in developing preventive measures. For the United States, these authorities are the Department of Justice, Office of Justice Programs, National Institute of Justice and the Department of State, Bureau of International Narcotics and Law Enforcement Affairs, Anticorruption Unit, and the United States would so notify the depositary. States Parties must endeavor, under Article 7 (``Public sector'') i where appropriate, to adopt, maintain, and strengthen systems for the recruitment, hiring, retention, promotion, and retirement of civil servants and, where appropriate, other non-elected public officials. Such systems should be based on transparent and objective principles, such as merit, include adequate procedures for the selection and training for positions considered particularly vulnerable to corruption, promote adequate and equitable remuneration, and promote education and training. Each State Party also shall consider whether to prescribe criteria concerning the candidature for and election to public office, and whether to enhance transparency in the funding of candidatures for public office and of political parties. The Convention does not require that such steps be taken. Article 8 (``Codes of conduct for public officials'') obliges States Parties to promote honesty and responsibility among its public officials. Specifically, each State Party must endeavor to apply a code or standard of conduct to its public officials and, where appropriate, require public officials to declare to appropriate authorities their outside activities, employment, and investments. Each State Party must also consider establishing systems to facilitate reporting by public officials of acts of corruption and the taking of measures against public officials who violate codes or standards of conduct. Article 9 (``Public procurement and management of public finances'') requires each State Party to establish transparent and fair government procurement systems based on competition and objective criteria for decision-making, and provides a general description as to the types of issues such systems shall address, such as the publication in advance of conditions for participation in procurements. It also requires each State Party to take appropriate measures to promote accountability and transparency in the management of public finances, and provides a general description as to the types of issues such measures should address, such as timely reporting on revenue and expenditures. Under Article 10 (``Public reporting'') each State Party shall take measures to enhance transparency in its public administration. The article provides examples of such measures, which could include procedures and reports that allow public access to information. Article 11 (``Measures relating to the judiciary and prosecution services'') focuses on preventing corruption in the judiciary. With due regard for judicial independence, each State Party shall take measures to strengthen integrity and prevent opportunities for corruption among judges. Article 12 (``Private sector'') requires each State Party to take measures to prevent corruption and enhance accounting and auditing standards in the private sector, and it sets forth a list of possible measures to achieve these ends. Notably, States Parties are required to take measures to prohibit acts such as the establishment of off-the-books accounts and the recording of non-existent expenditures that are done for the purpose of committing any of the offenses established in accordance with the Convention. In addition, States Parties are required to disallow the tax deductibility of bribes. Because civil society plays an important role in drawing attention to and fighting corruption, Article 13 (``Participation of society'') of the Convention requires each State Party to take appropriate measures to promote the active participation of individuals and groups outside the public sector in the prevention of and fight against corruption. The article provides general examples of how States Parties should strengthen the participation of civil society, including promoting the contribution of the public to decision-making and ensuring the public has effective access to information. Each State Party must ensure that the relevant anti-corruption bodies referred to in Article 5 shall, where appropriate, be available to receive reports of incidents that may be considered to constitute offenses established in accordance with the Convention. Article 14 (``Measures to prevent money-laundering'') mandates a series of anti-money-laundering measures in the realm of financial regulation rather than criminal law. As part of a comprehensive regime, States Parties must impose customer identification, customer due diligence (``know your customer''), and suspicious transaction reporting requirements, and must consider the establishment of financial intelligence units. This article closely follows the text of Article 7 of the UN Convention Against Transnational Organized Crime, although it contains some modifications. Principal updates in Article 14 include: clear extension of anti-money-laundering reporting obligations to alternative remittance systems; a requirement to identify beneficial owners when appropriate; and a requirement that countries consider establishing wire originator information requirements. Like the Transnational Organized Crime Convention, Article 14 further calls upon States Parties, in establishing their domestic regulatory regimes, to be guided by existing international standards, which the negotiating record makes clear would include the principles elaborated by the Financial Action Task Force and its regional counterparts. The travaux preparatoires articulate that references to ``relevant initiatives of regional, interregional and multilateral organizations'' include references to the recent revisions of the Financial Action Task Force's Forty Recommendations and Eight Special Recommendations. Chapter III--Criminalization and law enforcement (Articles 15-42) Chapter III contains three types of provisions: substantive provisions under which a State Party must criminalize certain acts; provisions under which a State Party must merely consider criminalizing certain acts; and provisions related to participation, attempt, and procedural issues such as jurisdiction and statutes of limitations. As noted above, it is recommended that the United States take a reservation to the obligations of this chapter to enable its implementation consistent with the current distribution of criminal jurisdiction under our federal system. With this reservation and given the fact that a number of provisions of this chapter that might have given rise to gaps are non- obligatory (e.g., portions of Articles 16, 27, 30-32, 37, and 39; as well as the entirety of Articles 18-22, 24, 33, and 41) the United States can implement the obligations of this chapter under existing federal and state law. Article 15 (``Bribery of national public officials'') is the first of five articles that require States Parties to adopt criminal legislation regarding specified offenses. This article requires a State Party to criminalize, when committed intentionally, the promise, offering or giving of bribes to or the solicitation or acceptance of bribes by its domestic public officials. Another criminalization obligation follows in Article 16, which requires States Parties to criminalize, when committed intentionally, the promise, offering or giving of bribes to foreign public officials or officials of a public international organization in order to obtain or retain business or other undue advantage in relation to the conduct of international business. It also requires States Parties to consider criminalizing the solicitation or acceptance of bribes by foreign public officials. Embezzlement is the subject of Article 17 (``Embezzlement, misappropriation or other diversion of property by a public official''). This article requires each State Party to criminalize, when committed intentionally, the embezzlement by a public official of any property entrusted to him or her. by virtue of his or her position. In Article 18 (``Trading in influence''), States Parties are to consider whether to criminalize the provision of an undue advantage to or acceptance by a third party to induce that person to use his or her real or supposed influence to obtain, from a public authority of the State Party, an undue advantage for the original instigator of the act. Similarly, Article 19 (``Abuse of functions'') requires a State Party to consider criminalizing a public official's abuse of his or her function in order to obtain an undue advantage for himself or herself or for another person. Article 20 (``Illicit enrichment'') was included at the insistence of a number of the developing nations. The article requires States Parties to consider establishing the offense known as ``illicit enrichment,'' which is defined as a significant increase in the assets of a public official that such official cannot reasonably explain in relation to his or her lawful income. Such an offense could require a defendant to bear the burden of establishing the legitimate source of the income in question. This article is not obligatory. Article 21 (``Bribery in the private sector'') is another article under which a State Party must consider whether to criminalize the behavior described therein. It addresses the bribing of or the receipt of a bribe by any person, when committed in the course of economic or business activity, in order that the person act or refrain from acting in breach of his or her duties. Another discretionary criminalization provision is contained in Article 22 (``Embezzlement of property in the private sector''). Under this article, each State Party shall consider criminalizing embezzlement by a person who works in the private sector, in the course of economic or commercial activities, of property entrusted to him or her by virtue of his or her position. Article 23 (``Laundering of proceeds of crime'') contains the fourth affirmative criminalization obligation. This provision mandates the adoption of criminal law provisions, in accordance with the fundamental principles of a State Party's domestic law, punishing the conversion, transfer, concealment, or disguise of property with knowledge that it is the proceeds of crime. In more discretionary language, the article requires that, subject to the basic concepts of its legal system, a State Party also must criminalize the acquisition, possession, or use of property with knowledge that it is the proceeds of a crime, along with participation in, association with, conspiracy to commit, or attempts to aid, abet, facilitate, or counsel the commission of covered offenses. The predicate offenses for money laundering must include a comprehensive range of criminal offenses established in accordance with the Convention. States Parties also must furnish the UN Secretary-General with copies of its laws giving effect to this article and of any subsequent changes to its laws. Article 23, which tracks in large part Article 6 of the UN Convention Against Transnational Organized Crime, is of critical importance to global anti-money-laundering efforts because it imposes an international obligation on States Parties to expand the reach of their laundering laws to predicate offenses associated with corruption. References to the use of circumstantial evidence that are present in Article 6 of the Transnational Organized Crime Convention, were not repeated in Article 14, due to the inclusion of a broader article on the use of such evidence in Article 28. Article 24 (``Concealment'') states that each State Party shall consider criminalizing, when committed intentionally after the commission of any of the offenses established in accordance with the Convention, the concealment or continued retention of property by a person who knows that such property is the result of such offenses. The fifth and final criminalization obligation established by the Convention--obstruction of justice in criminal proceedings related to offenses established in accordance with the Convention--appears in Article 25 (``Obstruction of justice'') . As defined, the offense has two variants: first, the intentional use of force, threats, or intimidation, or the promise, offering, or giving of an undue advantage, in order to induce false testimony or to interfere in the giving of testimony or the production of evidence; and second, the intentional use of force, threats, or intimidation to interfere with the exercise of official duties by a justice or law enforcement official. Article 26 (``Liability of legal persons'') compels States Parties to fill what historically has been a loophole in the ability of many States to combat corruption: their inability to hold not only natural persons but also legal ones liable for illegal conduct. This provision requires the creation of criminal, civil, or administrative liability, and accompanying sanctions, for corporations that participate in the offenses established in accordance with the Convention. Such corporate liability is without prejudice to the criminal liability of the natural persons who committed the offenses. Article 27 (``Participation and attempt'') provides that participating in any capacity in an offense established in accordance with the Convention shall be made criminal. States Parties also may decide to criminalize the attempt to commit or the preparation to commit such an offense. Article 28 (``Knowledge, intent and purpose as elements of an offense'') recognizes that knowledge, intent, or purpose, when a requisite element of a crime, may be inferred from objective factual circumstances. Under Article 29 (``Statute of limitations''), each State Party shall, where appropriate, establish a long statute of limitations period in which to commence proceedings for an offense established in accordance with this Convention, and provide for a longer statute of limitations (or its suspension) where the accused has evaded the administration of justice. During the negotiations, the United States described its statutes of limitations and indicated that it considered those statutes of limitations to be sufficiently long as to meet any obligations under this article. The U.S. statement met with no objection from other States. Article 30 (``Prosecution, adjudication and sanctions'') identifies a series of important considerations for States Parties in pursuing prosecutions relating to offenses established in accordance with the Convention. They range from ensuring that criminal law sanctions are sufficiently serious to minimizing defendants' risk of flight. In addition, Article 30(2) requires each State Party to establish or maintain, in accordance with its legal system and constitutional principles, an appropriate balance between any immunities it affords to its public officials and the ability to prosecute offenses established in accordance with this Convention. Article 30(9) makes clear, however, that nothing in the Convention shall affect the principle that the description of the offenses established in accordance with the Convention and of the applicable legal defenses or other legal principles controlling the lawfulness of conduct is reserved to the domestic law of a State Party. The freezing, seizing, and confiscation of proceeds of crime are the subject of Article 31 (``Freezing, seizure and confiscation''). The article requires a State Party to adopt measures, to the greatest extent possible within its legal system, to enable confiscation of proceeds of, property of equivalent value, or property used in or detained for use in, offenses established in accordance with the Convention. Each State Party's courts or other competent authorities shall be empowered to order that bank and other records may be made available to enable confiscation proceedings to go forward, and bank secrecy may not be invoked in this context. Article 32 (``Protection of witnesses, experts and victims'') reflects a concern that those accused of corruption not undermine judicial processes. This provision obligates States Parties to take appropriate measures within their means to protect witnesses, experts, and victims (to the extent that they are witnesses) and, as appropriate, their relatives and other persons close to them, from retaliation or intimidation when they testify in criminal cases related to the offenses established in accordance with the Convention. Among the measures a State Party may, in its discretion, implement are witness protection programs and evidence-taking techniques that ensure the safety of witnesses--for example, video link from a remote location. Under this article, States Parties also are encouraged to consider assisting one another in providing witness protection. The article also requires a State Party, subject to its domestic law and in a manner not prejudicial to the rights of the defense, to enable victims' views to be considered during criminal proceedings. Many provisions of this article permit the exercise of discretion in particular cases, while others are either non-obligatory or are already consistent with or subject to U.S. state and federal laws; therefore, the article can be implemented by the United States under current statutes and regulations. A State Party must consider, under Article 33 (``Protection of reporting persons''), incorporating into its domestic law protection against unjustified treatment for persons reporting in good faith and on reasonable grounds to the competent authorities any facts concerning offenses established in accordance with this Convention. Article 34 (``Consequences of acts of corruption'') requires that each State Party take measures, in accordance with fundamental principles of its domestic law, to address the consequences of corruption. The article contains no specifically mandated implementation measures. Article 35 (``Compensation for damage'') is intended to establish the principle that States Parties should ensure that they have mechanisms permitting persons or entities suffering damage to initiate legal proceedings. It requires a State Party to take such measures as may be necessary to ensure that entities or persons who have suffered damage as a result of an act of corruption may initiate legal proceedings against those responsible for such damage in order to obtain compensation. Some States, including the United States, were concerned that this article could be read to require or encourage a State to open its courts to civil suits unrelated or only tangentially related to that State, and for acts only marginally related to the act of corruption. In response to these concerns, the travaux preparatoires clarify that Article 35 was intended to address only legal proceedings against those who commit acts of corruption, rather than those who may be associated with others who commit acts of corruption. The article intentionally provides the States Parties significant flexibility in its implementation. The article does not restrict the right of a State Party to decide the precise circumstances under which it will make its courts available, nor does it require or endorse a particular choice made by a State Party in determining how it will meet its obligations under this article. Article 35 would not have any direct effect on the potential exposure of U.S. companies or others in private litigation in the United States. The current laws and practices of the United States are in compliance with Article 35, and the United States does not construe Article 35 to require broadening or enhancing current U.S. law and practice in any way. U.S. jurisprudence permits persons who have suffered from criminal acts such as bribery to seek damages from the offenders under various theories. These remedies are sufficient to comply with this article. It should be noted that nothing in this article should be interpreted as requiring the United States to create a private right of action under the Foreign Corrupt Practices Act or as expanding the scope of the Alien Tort Statute to permit foreigners to litigate corruption claims in U.S. courts. The Convention does not itself suggest that corruption is a stand-alone violation of international law (but rather is something that States Parties should prohibit under their domestic law. Accordingly, this Convention does not signify that corruption is a norm that is specific, universal, and obligatory for purposes of the Alien Tort Statute. To avoid any potential confusion over these issues (it is recommended below that the Senate include a declaration in its resolution of advice and consent that makes clear that the provisions of the Convention (with the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention creates a private right of action. Article 36 (``Specialized authorities'') complements Article 6 in requiring a State Party to ensure the existence of at least one body that is specialized in combating corruption through law enforcement. The travaux preparatoires acknowledge that this body may be the same body that a State Party establishes to comply with Article 6. Pursuant to Article 37 (``Cooperation with law enforcement authorities''), a State Party must take appropriate measures to encourage participants in offenses established in accordance with this Convention to assist law enforcement investigations. In so doing, States Parties are to consider reducing criminal penalties or granting immunity from prosecution for those who cooperate substantially. This article also envisages that States Parties will consider arrangements with one another to apply these inducements to persons located in one State Party who can assist an investigation into such offenses in another. The importance of cooperation between different elements of a State Party's domestic system is highlighted by Article 38 (``Cooperation between national authorities''). A State Party must encourage cooperation between its public authorities and the authorities in that State Party that investigate and prosecute criminal offenses. Similarly, under Article 39 (``Cooperation between national authorities and the private sector''), a State Party shall take the necessary measures to encourage cooperation between national investigating and prosecuting authorities and private sector entities on matters relating to the commission of offenses established in accordance with the Convention, and to consider encouraging its nationals and others who habitually reside in its territory to report to those authorities regarding the commission of such offenses. Article 40 (``Bank secrecy'') supplements Article 31's treatment of bank secrecy in the freezing and confiscation context by more broadly requiring each State Party to ensure that its domestic law contains appropriate mechanisms to avoid, in domestic criminal prosecutions, obstacles that may arise out of bank secrecy laws. Article 41 (``Establishment of criminal record'') urges States Parties to consider adopting measures enabling an offender's previous conviction in one State to be taken into consideration in another State Party's subsequent criminal proceeding relating to offenses established in accordance with this Convention. Article 42 (``Jurisdiction'') lays out the jurisdictional principles governing the Convention's mandatory criminalization provisions generally. A State Party must establish jurisdiction in respect of offenses established in accordance with the Convention when committed in its territory or on board a vessel flying its flag or an aircraft registered under its laws. The latter jurisdiction (i.e., on board a vessel or aircraft) is not expressly extended under current U.S. law to these offenses--bribery of national public officials, bribery of foreign public officials and officials of public international organizations, embezzlement, money laundering, obstruction of justice, and participation--although certain cases can be pursued on other jurisdictional bases. For example, in most situations involving bribery of U.S. public officials, misappropriation of government property, or obstruction of U.S. investigations or proceedings, U.S. federal jurisdiction may extend over such offenses occurring outside the United States, either through an express statutory grant of authority (e.g., Title 18, United States Code, Sections 1512(h), 1956(f), 1957(d)), or, most frequently, through application of principles of statutory interpretation. However, since under current U.S. law we cannot always ensure our ability to exercise jurisdiction over these offenses if they take place outside our territory on such vessels or aircraft, a reservation will be required for those cases in which such jurisdiction is not available. Accordingly, it is recommended that the following reservation be included in the Senate's resolution of advice and consent: The Government of the United States of America reserves the right not to apply in part the obligation set forth in Article 42, paragraph 1(b) with respect to the offenses established in accordance with the Convention. The United States does not provide for plenary jurisdiction over offenses that are committed on board ships flying its flag or aircraft registered under its laws. However, in many circumstances, U.S. law provides for jurisdiction over such offenses committed on board U.S.-flagged ships or aircraft registered under U.S. law. Accordingly, the United States shall implement paragraph 1(b) to the extent provided for under its federal law. A State Party is permitted, but not required, to establish jurisdiction over the five offenses when committed against one of its nationals, by one of its nationals or residents, or against the State Party itself. (Nationality and passive personality jurisdiction is limited under U.S. law, but is common in European countries and other civil law jurisdictions.) Permissive jurisdiction is further envisioned over the offense of money laundering, as defined in the Convention, where it is committed outside a State Party's territory with a view to the commission of certain offenses within its territory. Article 42 requires a State Party to establish its jurisdiction when it refuses to extradite an offender for offenses covered by the Convention solely because the person is one of its nationals. The United States extradites its nationals, so this provision will impose no new requirements on our legal system. It will, however, help ensure that States Parties that do not extradite their nationals take steps to ensure that participants in offenses related to corruption face justice there even for crimes committed abroad. Chapter IV--International cooperation (Articles 43-50) Article 43 (``International cooperation'') provides an overview, forecasting the requirements in other articles of this chapter that States Parties cooperate in criminal matters, and articulating that States Parties shall consider whether to cooperate, where appropriate, with each other in civil and administrative matters relating to corruption. The article also clarifies how the issue of dual criminality, which arises in the context of extradition and mutual legal assistance, is to be analyzed. Article 44 (``Extradition'') elaborates a regime for extradition of persons for offenses established in accordance with this Convention, as long as the offense is criminal under the laws of the requesting and the requested States Parties. The article provides that States Parties may make extradition conditional on a bilateral extradition treaty. Pursuant to this provision, for the United States, the Convention will not provide a substitute international legal basis for extradition, which will continue to be governed by U.S. domestic law and applicable bilateral extradition treaties, including their grounds for refusal. As such a State, the United States is obliged by Article 44(6) to so notify the UN Secretary-General. Accordingly, upon ratification of the Convention, the United States would notify the depositary that pursuant to Article 44(6) it will not apply Article 44, paragraph 5. For the United States, the principal legal effect of this article would be to deem the offenses established in accordance with the Convention (i.e., the mandatory offenses) to be extraditable offenses under U.S. bilateral extradition treaties. The result would be to expand the scope of older U.S. bilateral extradition treaties that list extraditable offenses and were concluded at a time when offenses such as money laundering did not yet exist. For numerous other States Parties that do not make extradition conditional on the existence of a separate extradition treaty, however, the Convention can, with regard to the offenses it covers, afford that international legal basis inter se. Article 44(11) requires a State Party that does not extradite its nationals, if requested by another State Party seeking extradition of such a national for offenses established in accordance with the Convention, to submit the case for purposes of domestic prosecution and to conduct the proceedings in the same manner as it would for purely domestic offenses of similar gravity. (This provision is the substantive obligation to which the above-mentioned jurisdictional provision in Article 42 relates.) A State Party may satisfy this obligation instead by temporarily surrendering its national for trial in the State Party that sought extradition, on the condition that he or she be returned to serve the resulting sentence. Article 44 also contains non-mandatory provisions designed to facilitate extradition, including, for example, a mechanism for provisional arrest in urgent circumstances, as well as an exemption from the obligation to extradite in a case where the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of sex, race, religion, nationality, ethnic origin or political opinions, or that compliance with the request would cause prejudice to that person's position for any of these reasons. Under Article 45 (``Transfer of sentenced persons''), States Parties may consider entering into bilateral or multilateral agreements or arrangements to enable the transfer to their territory of incarcerated persons who have been convicted abroad for offenses established in accordance with the Convention, in order that they may complete their prison sentences in their countries of nationality. Pursuant to Article 46 (``Mutual legal assistance''), States Parties are obligated to afford each other the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to offenses covered by this Convention. Pursuant to paragraph 6 of Article 46, where other international agreements governing mutual legal assistance exist between States Parties they shall be utilized and the Convention does not affect their provisions. This will be true for the United States in many instances, due to our extensive network of bilateral and regional mutual legal assistance treaties (``MLATs''). It is anticipated, however, that the United States will make and receive requests for mutual assistance under this Convention in a number of corruption-related cases involving States Parties with which we lack an applicable bilateral or regional agreement. Consequently, Article 46, in particular paragraphs 9-29, provides a framework for mutual legal assistance to States Parties with which a State Party does not have a separate mutual legal assistance treaty obligation that is of a nature comparable to such U.S. bilateral and multilateral MLATs. This article identifies the range of purposes for which mutual assistance may be requested and the requirements for the content of requests for assistance, and states that, even absent a request, one State Party also may spontaneously transmit to another information relating to criminal matters that it believes could assist inquiries or proceedings there. Detained persons may be transferred voluntarily for purposes of providing evidence in another State Party as well. Under paragraph 9 of Article 46, States Parties may (although they are encouraged not to) decline to render mutual legal assistance in certain cases on the ground of an absence of dual criminality. Where a request involves coercive action, matters of a de minimis nature, or matters for which the cooperation sought is available under other provisions of the Convention (such as law enforcement cooperation pursuant to Article 48), States Parties may decline to render assistance in the absence of dual criminality. However, where a request involves non-coercive action, States Parties are to provide mutual legal assistance unless inconsistent with the basic concepts of its legal system. Thus, in addition to the fundamental grounds for refusal set forth in other paragraphs, the United States could decline a request for non-coercive action where the offense is fundamentally at odds with U.S. notions of due process, presumption of innocence, or other basic tenets of U.S. jurisprudence. As previously noted, Article 46 establishes certain modern procedures for mutual legal assistance that apply in the absence of another treaty between the Parties concerned. These include a requirement to designate central authorities to handle requests. The Department of Justice, Criminal Division, Office of International Affairs, would serve as the Central Authority for the United States. Each State Party is obliged by Article 46(13) to notify the UN Secretary-General of its designated Central Authority. Accordingly, upon ratification of the Convention, the United States would notify the depositary that the Office of International Affairs, United States Department of Justice, Criminal Division, is designated as its central authority for mutual legal assistance under the Convention. Under Article 46, paragraph 14, a State Party must specify the language in which mutual assistance requests to it shall be made. Accordingly, upon ratification of the Convention, the United States would notify the depositary that requests for mutual legal assistance under the Convention should be made in, or accompanied by a translation into, the English language. In addition, Article 46, paragraph 18, encourages the use of video-conferencing as an alternative to taking of evidence in person. The article also incorporates provisions found in a number of U.S. bilateral MLATs generally precluding a requesting State Party from using information or evidence in investigations, prosecutions, or judicial proceedings other than those identified in the request, unless the requested State Party consents (see paragraph 19). In additional a requested State Party may be obliged to keep confidential the fact and substance of a request, except to the extent necessary to execute it, or where the information or evidence provided is exculpatory to an accused person (see paragraph 20). Article 46, paragraph 21, specifies four grounds for refusing mutual legal assistance: (a) if the request does not conform to the requirements of the Convention; (b) if the requested State Party considers that execution is likely to prejudice its sovereignty, security, ordre public, or other essential interests; (c) if domestic law in the requested State Party would prohibit the action requested with regard to any similar offense under its own jurisdiction; or (d) if granting the request would be contrary to the legal system of the requested State Party relating to mutual legal assistance. These grounds for refusal are broader than those generally included in U.S. MLATs, and, in view of the large number of countries that may become Party to the Convention, will serve to ensure that our mutual assistance practice under the Convention corresponds with sovereign prerogatives. Article 46, paragraphs 8 and 22 provide, respectively, that assistance may not be refused on the ground of bank secrecy, or on the sole ground that the offense involves a fiscal matter. Moreover, if a request could be refused on any of the general grounds for refusal set forth in paragraph 21 or postponed on the ground that it interferes with an ongoing domestic investigation, prosecution, or judicial proceeding, the States Parties involved shall consult to consider whether it may be granted subject to terms and conditions. If the requesting State Party accepts assistance subject to conditions, it is bound to comply with those conditions. Finally, Article 46 addresses several other aspects of mutual assistance that are relevant in the absence of another MLAT in force between the States Parties concerned. It sets forth a procedure for providing safe conduct guarantees to a person who travels to a requesting State Party in order to give evidence (see paragraph 27). Ordinary costs of executing mutual assistance requests are, as a rule, to be borne by the requested State Party, but if substantial or extraordinary expenses are entailed the requesting and requested States Parties shall consult on their allocation (see paragraph 28). States Parties also may rely on the mutual assistance mechanism of the Convention to obtain from another State Party government records, documents, or information on the same terms as they are available to the general public under domestic law; if not available to the general public, however, a requesting State Party's access to them lies in the discretion of the requested State Party (see paragraph 29). The possibility of transferring criminal proceedings between States Parties is envisioned in Article 47 (``Transfer of criminal proceedings''). This article calls on States Parties to consider the possibility of transferring criminal proceedings, recognizing that transfer can be considered to be efficient in cases where several jurisdictions are involved with different aspects of acts related to corruption. The importance of police-to-police cooperation, as distinct from formal mutual legal assistance, is highlighted by Article 48 (``Law 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 offenses covered by the Convention. The proviso that cooperation shall be conducted consistent with the respective domestic and administrative systems provides the flexibility required to enable the exercise of discretion in making determinations on the appropriateness of a request for cooperation on a case-by- case basic. In order better to combat organized criminal activities that span borders, Article 49 (``Joint investigations'') encourages States Parties to reach agreements or arrangements, either general or case-specific, to conduct joint investigations. Article 50 (``Special investigative techniques'') in turn contemplates that, if permitted by the basic principles of its domestic legal system, law enforcement authorities be given the ability to use controlled delivery, electronic surveillance, and undercover operations. Use of these techniques at the international level would be regulated by the States Parties involved through general or case-specific agreements or arrangements. Chapter V--Asset Recovery (Articles 51-59) Article 51 states the general principle that States Parties should cooperate in asset recovery cases. Article 52 requires States Parties to take certain preventive measures specifically focused on detection of transactions or deposits involving corrupt public officials. States Parties must require financial institutions to verify the identity of customers, take reasonable steps to determine the identity of beneficial owners of funds deposited into high- value accounts, and to conduct enhanced scrutiny of accounts held by individuals who are or have been in prominent public positions. The travaux preparatoires make clear that these requirements are to be implemented on a national basis with due regard to particular risks of money laundering. For example, some countries will apply the enhanced scrutiny standards to foreign officials only, and other countries may wish to apply these standards to domestic officials as well. The article further requires adequate record keeping by financial institutions and prohibits the establishment of banks with no physical presence. Paragraph 5 of this article requires States Parties to consider taking such measures as may be necessary to establish financial disclosure systems for public officials as well as mechanisms for sharing information obtained through these systems. Paragraph 6 requires States Parties to consider establishing measures to require reporting by appropriate public officials of foreign financial accounts. Article 53 (``Measures for direct recovery of property'') requires each State Party to have three basic methods for allowing another country to make a direct claim, like any other private litigant, on property located in its territory, where that property is acquired through the commission of one of the offenses that must be established by all States Parties in accordance with Chapter III of the Convention. Such direct recovery would take place without recourse to mutual legal assistance procedures. First, States Parties must permit other States Parties to initiate civil actions in their courts to establish title or ownership of the property in question. Second, States Parties must have a mechanism by which their courts can order that another State Party be compensated or paid damages, such as through court-ordered restitution following a criminal conviction. Finally, States Parties are required to have a mechanism in confiscation proceedings for allowing the recognition of another State Party's claim as a legitimate owner of the property. Article 54 (``Mechanisms for recovery of property through international cooperation in confiscation'') requires States Parties to establish a legal framework to enable them to provide assistance to other States Parties in the recovery of assets acquired through the commission of one of the offenses that must be criminalized by all States Parties in accordance with Chapter III of the Convention. Specific mechanisms required are (a) authority to give effect to foreign confiscation judgments, and (b) domestic procedures to confiscate property of foreign origin involved in offenses over which it may have jurisdiction. States Parties are also required to consider establishing mechanisms for confiscation in the absence of a criminal conviction. Paragraph 2 of Article 54 requires States Parties to have certain mechanisms for freezing or seizing property, including on the basis of a freezing or seizure order by another State Party, or upon a request by another State Party that provides sufficient grounds for taking such action. In addition, States Parties are to consider establishing additional measures for freezing or seizing property, for example, on the basis of a foreign arrest or charge. Article 55 (``International cooperation for purposes of confiscation'') specifies how the mechanisms established pursuant to Article 54 will be used in practice in asset recovery cases involving the commission of one of the offenses that must be criminalized. Paragraph 1 requires States Parties receiving a request for assistance from another State Party to use the mechanisms established pursuant to Articles 31 and 54 to seek either an order of confiscation or the execution of a foreign judgment in connection with one of the mandatory offenses under the Convention. Paragraph 2 requires that State Parties utilize the freezing and seizure mechanisms established in accordance with Articles 31 and 54 in response to a request from another State Party. Paragraph 3 specifies that the procedures to be used in implementing this article are mutual legal assistance procedures and that the provisions of Article 46 on mutual legal assistance apply, including the exceptions to the obligation to provide assistance. It also details the type of information that must be provided by the requesting State Party in its request for assistance. Paragraph 4 notes the continued application of domestic law and other bilateral and multilateral agreements. Paragraph 7 provides for important additional safeguards by stating that assistance may be refused if the requesting State Party does not provide sufficient and timely evidence or if the value of the property in question is of a de minimis value. Paragraph 8 requires that before provisional measures are lifted, the requested State Party should consult with the requesting State Party. Finally, paragraph 9 says that nothing in the article should be construed as prejudicing the rights of bona fide third parties. Article 56 (``Special cooperation'') provides that States Parties should endeavor to engage in spontaneous information sharing with each other where such information sharing would assist another party in an asset recovery case. Article 57 (``Return and disposal of assets'') sets forth a framework for the disposition of property confiscated by one State Party at the request of another. Paragraph 1 makes clear that disposition is to take place in accordance with domestic law of the State Party executing the confiscation and the provisions of the Convention, in particular Articles 31 and 55. Paragraph 2 requires each State Party to have in place mechanisms to permit, at the request of another State Party, the return of confiscated property to rightful owners, taking into account the rights of bona fide third parties. Paragraph 3 describes how the mechanisms to be established in accordance with paragraph 2 are to be used in specific kinds of cases. This paragraph also makes clear that disposition of property is handled using mutual legal assistance procedures provided for in Articles 46 and 55. In other words, for example, the exceptions to the obligation to provide mutual legal assistance set forth in Article 46(21) apply to the disposition of property as well. Subject to these protections, paragraph 3(a) states that where a State Party enforces a confiscation judgment of another State Party involving public funds embezzled from the requesting State Party, the requested State Party shall return the property to the requesting State Party. The provision does not specify whether international asset sharing, procedures to compensate victims, or other mechanisms must be used to effect such a return. Paragraph 3(b) provides that, where the property involved is the proceeds of an offense other than embezzlement of public funds, the requested State Party shall return the property to the requesting State Party where the requesting State Party reasonably establishes its ownership of the property prior to the offense or where the requested State Party, at its discretion, recognizes damage to the requesting State Party as a basis for return. Finally, paragraph 3(c) provides that in all cases not covered by paragraphs 3(a) and 3(b), the requested State Party will give priority consideration to returning the property to the requesting State Party, returning the property to prior legitimate owners, or compensating victims of crime. Paragraph 4 notes that the requested State Party may deduct reasonable costs before disposition of the property. The travaux preparatoires indicate these costs are intended to be actual expenses rather than finders' fees or other unspecified charges. Paragraph 5 provides for the possibility of case-by- case bilateral agreements on disposition of property. Article 58 requires States Parties to consider the establishment of a financial intelligence unit (``FIU'') to assist in cooperation in asset recovery cases. The travaux preparatoires make clear that the same FIU established in accordance with Article 14 may be used to comply with the provisions of this article. Article 59 states that States Parties shall consider bilateral or multilateral agreements to further enhance cooperation on asset recovery cases. Chapter VI--Technical assistance and information exchange (Articles 60- 62) Training and technical assistance are dealt with in Article 60, which requires States Parties, to the extent necessary, to train domestic law enforcement personnel on matters relating to the prevention and detection of corruption, including in the area of the preparation of mutual legal assistance requests. The article also contemplates that States Parties will consider various potential methods to provide technical assistance to each other in their plans and programs to combat corruption. Article 61 (``Collection, exchange and analysis of information on the nature of organized crime'') is a counterpart provision to Article 48. This article calls upon States Parties, together with their scientific and academic communities, to consider undertaking analytical studies relating to corruption and share the resulting expertise with each other. Article 62 (``Other measures: implementation of the Convention through economic development and technical assistance'') supplements Article 60 by requiring States Parties to take measures to facilitate the implementation of the Convention with a particular view toward cooperating internationally and strengthening the capacity of developing countries to prevent and combat corruption. Chapter VII--Mechanisms for implementation (Articles 63-64) Article 63 (``Conference of the States Parties to the Convention'') establishes a structure for promoting and reviewing the implementation of the Convention. A Conference of the States Parties (``COSP'') is to be convened within a year after the Conventions entry into force initially for the purpose of adopting rules of procedure, rules governing payment of expenses, and rules governing the activities with which it is charged. The negotiating history of this article reflects that sources of funding for the COSP include voluntary contributions, which takes into account U.S. legal provisions on funding framework treaty-based organizations. Among the most important tasks assigned to the COSP are facilitating technical assistance, the provision of which is discretionary under the Convention, and information exchange among States Parties and reviewing periodically the implementation of the Convention. The latter activity will entail scrutiny of information supplied by States Parties themselves on their programs and legislative and administrative measures. The COSP also may develop other supplemental review mechanisms. To support the COSP, Article 64 (``Secretariat'') states that the UN Secretary-General shall provide the necessary secretariat services. The UN General Assembly resolution adopting the Convention in turn requested that the Vienna-based UN Office on Drugs and Crime be designated for this purpose. Chapter VIII--Final provisions (Articles 65-71) Article 65 (``Implementation of the Convention'') provides that each State Party shall take the necessary measures, including legislative and administrative measures, to ensure proper implementation of its obligations under the Convention. This provision also clarifies that the Convention does not preclude the adoption of stricter measures to combat corruption. Article 66 (``Settlement of disputes'') establishes a mechanism for States Parties to settle disputes concerning the interpretation or application of the Convention. If a dispute cannot be settled within a reasonable time through negotiation, a State Party may refer it to arbitration, or to the International Court of Justice if the Parties are unable to agree on the organization of the arbitration. A State Party may, however, opt out of dispute settlement mechanisms other than negotiation by making a declaration to that effect. In keeping with recent practice, the United States should do so. Accordingly, it is recommended that the following declaration be included in the Senate's resolution of advice and consent: In accordance with Article 66, paragraph 3, the Government of the United States of America declares that it does not consider itself bound by the obligation set forth in Article 66, paragraph 2. Article 67 (``Signature, ratification, acceptance, approval and accession'') provides that the Convention is open for signature by all States, and by regional economic integration organizations (``REIOs''), such as the European Union, where at least one of its member States has signed. REIOs that become party to the Convention also are required to declare the extent of their competence with respect to matters covered by the Convention. The Convention is subject to ratification, acceptance, approval, or accession, with instruments thereof to be deposited with the Secretary-General of the United Nations. Pursuant to Article 68 (``Entry into force''), the Convention shall enter into force on the ninetieth day after the date of deposit of the thirtieth instrument of ratification, acceptance, approval, or accession. For a State ratifying or otherwise consenting to be bound thereafter, the Convention shall take legal effect on the thirtieth day after the deposit of that State's instrument. Amendment of the Convention is governed by Article 69 (``Amendment''), which establishes procedures for proposal, consideration, and decision on amendments with the involvement of the COSP. Adoption of proposed amendments requires consensus or, as a last resort, a two-thirds majority of the States Parties present and voting at the COP. The voting rights of REIOs are addressed in a way that is standard in international instruments. Any adopted amendment is subject to ratification, acceptance, or approval by States Parties, and binds only those States Parties that have expressed their consent to be so bound. Article 70 (``Denunciation'') states that any State Party may denounce the Convention by written notification to the 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. Article 71 (``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 UN languages (Arabic, Chinese, English, French, Russian, and Spanish). Finally, the terms of the Convention, with the suggested reservations, are consonant with U.S. law. To clarify that the provisions of the Convention, with the exceptions of Articles 44 and 46, are not self-executing, it is recommended that the Senate include the following declaration in its resolution of advice and consent: The United States declares that the provisions of the Convention (with the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention creates a private right of action. Article 44 and Article 46 of the Convention contain detailed provisions on extradition and legal assistance that would be considered self-executing in the context of normal bilateral extradition practice. It is therefore appropriate to except those provisions from the general understanding that the provisions of the Convention are non-self-executing.