16. Questions & Answers for the record, UN Convention Against Transnational Organized Crime
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable generally to the UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling1. Are there any related exchange of notes, official communications, or statements of the U.S. negotiating delegation not submitted to the Senate with regard to the Convention or the two protocols that would provide additional clarification of the meaning of terms of the Convention or the Protocols?
No. The meaning of terms used in the Convention and Protocols is governed in the first instance by the definitions provided in those instruments, as well as by their context in the Convention. In addition, Interpretive Notes for the official records (travaux préparatoires) serve as a supplemental means of interpretation of certain terms in the Convention and Protocols. Additional perspective on the meaning of terms is provided in the Department of State’s letter of submittal, which sets forth an article-by-article analysis.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable generally to the UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling
2. The Convention and Protocols were signed on December 13, 2000. They were submitted to the Senate on February 23, 2004.
a. What was the cause of the delay in submitting the treaties to the Senate?
The interval between United States signature of the Convention and Protocols and their submission to the Senate for advice and consent to ratification results from their complexity and the need for extensive interagency discussion. Each instrument contains, among other things, detailed criminalization obligations that interact in complex ways with U.S. federal and state criminal law. As a result, the Department of Justice undertook systematic research to ascertain whether existing criminal laws in the United States were adequate to satisfy fully Convention and Protocol obligations, and the results of their inquiry required extensive subsequent consultation with the Department of State. Since certain of the criminalization obligations relate to subject-matter which is addressed in state criminal law, questions of federalism arose in these discussions, and ultimately a reservation and understanding relating to particular articles of the main Convention and Trafficking Protocol was prepared.
b. Was there any significant opposition within the executive branch to submission of the Convention or the Protocols to the Senate?
The Administration fully supports ratification of the Convention and the Protocols.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable generally to the UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling
- What is the view of the Executive Branch of the authoritative nature of the Interpretive Notes for the official records (travaux preparatoires) of the negotiation of the Convention and the Protocols thereto (UN document A/55/383/Add.1, November 3, 2000)?
The Interpretive Notes for the official records (travaux préparatoires) serve to preserve certain points relating to articles of the instruments that are subsidiary to the text but nonetheless of potential interpretive importance. In accordance with customary international law, as reflected in Article 32 of the Vienna Convention on the Law of Treaties, preparatory work such as that memorialized in the Interpretive Notes may serve as a supplementary means of interpretation, if an interpretation of the treaty done in good faith and in accordance with the ordinary meaning given to the terms of the treaty results in ambiguity or is manifestly absurd. Thus, the Interpretive Notes, while not binding as a matter of treaty law, could be important as a guide to the meaning of terms in the Convention and Protocols.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable generally to the UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling
4. A third protocol was concluded in connection with the Organized Crime Convention related to the illicit manufacturing and trafficking in firearms. What is the position of the executive branch on whether the United States should become a party to that Protocol? If the Administration supports doing so, when will it be submitted to the Senate?
Like many other countries, the United States has focused first on the Convention and the Trafficking in Persons and Migrant Smuggling Protocols, which were finished a year before the Firearms Protocol and were signed by the U.S. and over a hundred other countries at a high-level signing ceremony. The Administration is reviewing the Firearms Protocol in order to determine whether to propose that the United States accede to it.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
1. What federal statutes implement the obligations of Articles 5, 6, 8 and 23?
With respect to Article 5 (criminalization of participation in an organized criminal group), the key federal statute implementing paragraph (a)(1) is 18 U.S.C. § 371, which establishes criminal liability for conspiracy to commit any federal offense. With respect to paragraph (1)(b), 18 U.S.C. § 2 establishes criminal liability for aiding and abetting the commission of a federal offense. See also 18 U.S.C. § 1961 et seq. (RICO).
With respect to Article 6 (criminalization of laundering of proceeds of crime), the applicable federal statutes are 18 U.S.C. §§ 1956 and 1957.
With respect to Article 8 (criminalization of corruption), paragraph 1 is implemented through a variety of federal statutes, including 18 U.S.C. § 201 (bribery), 18 U.S.C. § 1341 et seq. (mail and wire fraud), 18 U.S.C. § 1951 (Hobbs Act), and 18 U.S.C. § 1961 et seq. (RICO). While paragraph 2 is not mandatory, U.S. law covers corrupt acts involving foreign or international officials in a number of circumstances, in particular under the Foreign Corrupt Practices Act (15 U.S.C. § 78 dd-1, et seq.). Paragraph 3, on accomplice liability, is implemented by 18 U.S.C. § 2.
With respect to Article 23 (criminalization of obstruction of justice), the applicable federal statute implementing paragraph (a) is 18 U.S.C. § 1512(b). With respect to paragraph (b), the applicable federal statute is 18 U.S.C. § 1503.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
2. Article 6(1) provides that a State Party shall adopt laws “in accordance with fundamental principles of its domestic law.” Article 6(1)(b) further provides that laws enacted pursuant to that subparagraph shall be “subject to the basic concepts of its legal system.” What is the difference between these two concepts?
The terms “fundamental principles of its domestic law” and “basic concepts of its legal system” are conceptually similar. However, a structural difference between the two clauses is that “subject to basic concepts of its legal system” in Article 6(1)(b) enables a State Party, without a reservation, to decide not to apply that paragraph, should it be deemed incompatible with such basic concepts. By contrast, “in accordance with fundamental principles of its domestic law” in the chapeau of Article 6(1) does not allow a State Party to exempt itself from obligations in 6(1)(a); instead, it sets a parameter for implementation of the obligation to criminalize the laundering of the proceeds of crime.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
3. What is the purpose of Article 6(2)(e)?
For a few States, it is fundamental that a person who commits the object crime, and thereby obtains proceeds from it, cannot also be prosecuted for laundering the proceeds of that crime. These States required Article 6(2)(e) to make clear that their legal approach was consistent with the Convention.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
4. Does the federalism reservation need to apply to Article 8? Does not every state criminalize bribery of public officials or solicitation or acceptance of bribes by public officials?
Article 8(1) covers, in essence, the offer or acceptance by a public official of “an undue advantage, for the official himself or herself or another person or entity.” In reviewing state bribery statutes, it appeared to us that the laws of one or more states may not be in full compliance with the particular way this offense was defined in the Convention. For example, one or more state bribery laws may not reach advantages that benefit third parties, or they may not reach all conceivable non-pecuniary types of benefits. Given such variations in state law, we determined that the federalism reservation should be applied to Article 8 as well as the other criminalization provisions of the Convention.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
5. What federal statutes implement the provisions of Articles 12 and 13?
Article 12(1) through (5) is implemented principally through 18 U.S.C. §§ 981-983. U.S. law, specifically 18 U.S.C. §§ 981 and 982, authorizes the civil and/or criminal forfeiture of property in the United States that is derived from, or traceable to, the proceeds of offenses that constitute “specified unlawful activities” under the U.S. money laundering statute or property that is involved in a money laundering offense. See 18 U.S.C. § 1956(c)(7)(B). There are also many other federal statutes providing for forfeiture of certain types of property relating to the commission of a crime under specifically defined circumstances. Paragraph 6 is implemented through compulsory process available pursuant to the Right to Financial Privacy Act, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence and general U.S. jurisprudence. The remaining provisions of Article 12 contain no specific obligations.
Article 13(1) through (2) is implemented through 18 U.S.C. §§ 981, 982, 983 and 28 U.S.C. § 2467. To preserve the availability of assets pending forfeiture, the United States can restrain assets located in the United States that are subject to forfeiture under foreign law either by seeking a restraining order from the court or by registering and enforcing those foreign restraining orders that have been certified by the Attorney General. The procedure for obtaining a restraining order is set forth at 18 U.S.C. § 983(j), which provides for a contested hearing with notice to persons having an interest in the property. The restraining order may remain in effect until the conclusion of the foreign proceedings and the final forfeiture judgment is transmitted for recognition. Notwithstanding this provision, U.S. prosecutors can obtain an ex parte order from the court for the initial restraint at the request of a foreign country against assets of a person arrested or charged in a foreign country in connection with an offense that would give rise to the forfeiture of property in the United States pending the arrival of evidence from the foreign country to support probable cause for forfeiture under 18 U.S.C. § 981 or under the Controlled Substances Act. See 18 U.S.C. § 981(b)(4)(A).
Pursuant to 28 U.S.C. § 2467, the United States can now seek the registration and enforcement of foreign forfeiture judgments rendered in connection with any violation of foreign law that would constitute a violation of an offense for which property could be forfeited under Federal law if the offense were committed in the United States.
Paragraph (3) of Article 13 will be implemented through application of U.S. Mutual Legal Assistance Treaties, and the self-executing provisions of Article 18 of the Convention. The remaining provisions of Article 13 contain no specific obligations.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
6. Is there authority under current U.S. law to provide confiscated funds as envisioned by Article 14(3)(a)?
Article 14(3)(a) provides that a State Party “may give special consideration to” contributing the value of confiscated property to the United Nations for purposes of combating organized crime, but does not go beyond suggesting the possibility of this step. While there is statutory authority to share the proceeds of successful forfeiture actions with countries that made possible or substantially facilitated the forfeiture of assets under United States law (18 U.S.C. §§ 981-982, 21 U.S.C. § 881(e)(1)(E), and 31 U.S.C. § 9703(h)(1)), there is no statutory authority for the United States to make such a contribution to the United Nations.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
7. Article 16(1) states that the article applies to “offenses covered by the Convention” or in cases where an offense referred to in Article 3(1)(a) or (b) involves an organized criminal group. By its terms, however, Article 3 requires that any offense be “transnational in nature” and “involve[] an organized criminal group.” What, then, is the scope of Article 16? Does it exclude the transnational element?
Extradition under the Convention may be sought not only for the offenses it requires that parties criminalize but also for “serious crime” generally, i.e. offenses punishable by at least four years’ imprisonment. At the same time, Article 16 is subject to the general scope provision of the Convention (Article 3), which requires that an extraditable offense be transnational in nature and involve an organized criminal group. Article 16(1) expressly recites the requirement that an organized criminal group be involved in the offense in order for it properly to be the subject of an extradition request under the Convention.
Article 16(1) further provides that the transnationality requirement is met if “the person who is the subject of the request for extradition is located in the territory of the requested State Party, provided that the offense for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party.” In other words, the transnationality element is supplied by the fact of a request from one sovereign state to another for a fugitive whose alleged offense satisfies the dual criminality requirement customary in the extradition context.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
8. Is Article 16(9) a general provision on detention of a suspect who is sought for extradition, or is it considered to also authorize provisional arrest? What provisions of U.S. law are applicable under this Article?
For those countries that will utilize the Convention as an international legal basis for extradition, Article 16 incorporates all of the essential provisions of an extradition treaty. Among these is a general authorization in Article 16(9) that a requested State Party may, in certain circumstances including urgency, and “subject to the provisions of its domestic law and its extradition treaties,” detain a person whose extradition is sought. This formulation is intended to enable execution of both a provisional arrest request and a request for arrest contained in a formal extradition submission. Since the United States will continue to extradite only pursuant to its bilateral extradition treaties (as amended by multilateral instruments such as the Convention), it will not rely on Article 16(9) as an international legal basis for detention of a fugitive. U.S. law authorizing the arrest and detention of a fugitive pursuant to a request made under a bilateral extradition treaty is found at 18 U.S.C. § 3184 et seq.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
9. Article 18, paragraph 11 requires informed consent of a prisoner before transfer to another state party. Paragraph 12 provides a means for bringing charges against a person transferred if the state party from which the person is transferred consents. When would such consent for an additional prosecution from the state party be sought? Is it prior to obtaining the informed consent of the prisoner for the transfer itself?
Article 18, paragraphs 10-12, collectively provide a framework for transferring a detained person from one State Party to another in order for the Requested State to obtain information or evidence from that person. It is not a substitute for extradition. Substantially similar provisions are included in a number of multilateral law enforcement conventions, including the Inter-American Convention Against Terrorism and the UN Conventions for the Suppression of Terrorist Bombings and Financing of Terrorism. U.S. bilateral mutual legal assistance treaties also include provisions of this type.
As a rule, the consent of a transferring state party to the bringing of charges in the state of transfer would be sought prior to the transfer taking place. There may, however, be rare cases in which the agreement of the transferring state is sought and provided subsequently, for example if completion of service of the prisoner’s sentence occurred during the transfer, and he was released and remained in the state to which he had been transferred.
Consent of the prisoner under Article 18(10) to the bringing of unrelated charges typically also would be obtained prior to transfer; a prisoner may, of course, waive this right.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
10. Article 18(21)(d) permits a state party to refuse a request for legal assistance on ground that it would “be contrary to the legal system of the requested State party relating to mutual legal assistance for the request to be granted.” Please provide examples of cases where the United States would likely refuse a request for assistance based on this provision.
As noted in the article-by-article analysis contained in the Letter of Submittal, the grounds for refusal permitted by Article 18(21) collectively are broader than those generally included in U.S. bilateral MLATs. Article 18(21)(d) itself is not found in our bilateral MLATs. Rather, it is drawn verbatim from the analogous mutual legal assistance provisions of the 1988 UN Drug Convention (Article 7(15)(d)), to which the United States is a party and which in numerous respects served as a model multilateral criminal law instrument for the negotiators of the TOC Convention.
The Interpretive Notes to the TOC Convention state that “contrary to the legal system” is “not intended to encourage refusal of mutual assistance for any reason, but is understood as raising the threshold to more essential principles of domestic law of the requested State.” While the Interpretive Notes do not further specify what “more essential principles” of domestic law are, the official Commentary on the 1988 Drug Convention (E/CN.7/590) cites as examples “where the offender may be subject to cruel, inhuman or degrading penalties or to capital punishment, or to trial by special ad hoc tribunals”. We are not aware of instances where the United States has utilized this ground for refusal under the 1988 Drug Convention.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
11. Article 30(2)(c) calls on State Parties to make voluntary contributions to a UN funding mechanism for the purpose of providing technical assistance to developing countries and countries with economies in transition. Does the Executive Branch plan to request funds from Congress to make such contributions and at what level?
The Executive Branch’s single greatest priority for the work of the Crime Prevention and Criminal Justice Program of the United Nations Office on Drugs and Crime (UNODC) is assisting with the ratification and implementation of the TOC and its protocols on trafficking in persons and smuggling of migrants. UNODC initiated a program devoted to this technical assistance work in 2001, and the Department of State has contributed a total of $1,475,000 (from FY’01 and FY’02) to support these efforts, along with expertise from within the Department of Justice. The Department of State’s Bureau of International Narcotics and Law Enforcement Affairs anticipates providing additional funds to UNODC for this project in the future, out of its International Narcotics Control and Law Enforcement account, in amounts to be determined as part of the Bureau’s annual process of earmarking its annual pledges to UNODC. In keeping with longstanding practice, the Department will inform Congress of all amounts earmarked for this project.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
12. The Secretary’s letter of submittal recommends a declaration on non-self-execution, except for Articles 16 and 18. It then states that “Article 16 and 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.”
a. Is this statement not contradicted, in part, by the assertion, also made in the Secretary’s letter, that 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.”? Similarly, is it not contradicted, in part, by a statement in the letter that where other MLATs exist between the parties, “they shall be utilized, and the Convention does not affect their provisions.”?
The statement that the provisions of Article 16 and 18, unlike the other provisions of the Convention, are self-executing is not contradicted by the other quotations cited in the question. With respect to extradition, Article 16(4) of the Convention allows but does not require State Parties to consider the Convention the legal basis for extradition in respect of any offense to which it applies. The United States would not use the Convention as an independent legal basis for extradition from the United States in cases where the United States has no extradition treaty with another State Party seeking extradition. We will continue our practice of extraditing persons under the authority of bilateral extradition treaties, and will deem the offenses under this Convention to be extraditable offenses under such treaties as are in force between State Parties to the Convention.
With respect to mutual legal assistance, Article 18(7) of the Convention sets forth the rule that the mutual legal assistance provisions of the Convention apply where the State Parties in question do not have a bilateral mutual legal assistance treaty. Where, however, a bilateral mutual legal assistance treaty is in force between State Parties, the provisions of that treaty shall apply unless the State Parties agree otherwise. State Parties therefore may by express agreement, but are not required to, apply the mutual legal assistance provisions of the Convention in situations in which a bilateral mutual legal assistance treaty is in force.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions on the Convention Against Transnational Organized Crime
b. How is Article 18 of the Convention related to “normal bilateral extradition practice,” as is set forth in the chapeau of the question above?
Article 18 of the Convention is not related to “normal bilateral extradition practice,” but rather to normal bilateral mutual legal assistance practice. The quoted excerpt of the submittal letter should have read as follows: “Article 16 and 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 and mutual legal assistance practice.”
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
1. In Article 3(a), what does the term “for the purpose of exploitation” mean?
Article 3(a) of the Protocol contains further explanation of what the negotiators meant by this phrase: “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
2. The Secretary’s letter of submittal states that the negotiating record sets forth six statements intended to assist in the interpretation of the definition of “trafficking in persons.” Please provide these statements.
The six statements are part of the notes for the official records (travaux préparatoires), which were provided to the Senate together with the Secretary’s letter of submittal. See paragraphs 63-68 on pages 12-13 of the travaux préparatoires. The statements read as follows:
Article 3: Use of terms
Subparagraph (a)
63. The travaux préparatoires should indicate that the reference to the abuse of a position of vulnerability is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.
64. The travaux préparatoires should indicate that the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms “exploitation of the prostitution of others” or “other forms of sexual exploitation” are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws.
65. The travaux préparatoires should indicate that the removal of organs from children with the consent of a parent or guardian for legitimate medical or therapeutic reasons should not be considered exploitation.
66. The travaux préparatoires should indicate that where illegal adoption amounts to a practice similar to slavery as defined in article 1, paragraph (d), of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, it will also fall within the scope of the Protocol.
Subparagraph (b)
67. The travaux préparatoires should indicate that this subparagraph should not be interpreted as restricting the application of mutual legal assistance in accordance with article 18 of the Convention.
68. The travaux préparatoires should indicate that subparagraph (b) should not be interpreted as imposing any restriction on the right of accused persons to a full defense and to the presumption of innocence. They should also indicate that it should not be interpreted as imposing on the victim the burden of proof. As in any criminal case, the burden of proof is on the State or public prosecutor, in accordance with domestic law. Further, the travaux préparatoires will refer to article 11, paragraph 6, of the Convention, which preserves applicable legal defences and other related principles of the domestic law of States Parties.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
3. The Secretary’s letter of submittal, in discussing the term “other forms of sexual exploitation” references state laws that proscribe a variety of forms of sexual abuse. Do these laws have a trafficking element? If not, how do they meet the obligation to criminalize trafficking in persons for the purpose of other forms of sexual exploitation? Please elaborate.
With respect to 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. It is thus fully consistent with the offense established in the Trafficking Protocol. The State laws addressed in the Secretary’s letter of submittal also proscribe a variety of forms of sexual abuse, as well as attempted commission of such offenses. However, these laws generally do not have an element of recruitment or transportation. As explained in the transmittal package, there may therefore be scenarios in which the act of trafficking a person for purposes of sexual exploitation would not be punishable under the relevant state criminal law governing attempted or completed sex abuse. (For example, the act of recruiting a person for purposes of sexual exploitation may not constitute a criminal offense under the laws of one or more states.) Accordingly, we have proposed the federalism reservation to address the possibility that there may be purely local crimes that would not be covered by the federal law, and would also not be covered by state sexual abuse laws.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
4. The Secretary’s letter of submittal, in discussing the obligation to prohibit the trafficking and attempted trafficking in persons for the removal of organs, discusses 42 U.S.C. 274e and other applicable federal statutes on fraud, kidnapping, and other laws, stating that these “likely cover[] most instances of such trafficking that could arise.” But the letter recognizes that the “express obligation under the Protocol is nonetheless broader.” The proposed reservation that follows this discussion indicates it is necessary, however, only to address rare offenses of a “purely local character.” Are there not also some gaps in federal law that are not addressed by the proposed reservation?
There is a theoretical possibility that a person could be viewed as committing an offense under the Protocol, without such activity satisfying the elements of an attempt or conspiracy under U.S. federal or state law. However, after careful examination of relevant law by the Justice Department, we concluded that the possibility was so remote and theoretical that a reservation was not needed.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
5. The proposed reservation related to federalism appears to [be] broader than any reservation entered to date by any State Party to the Protocol. Prior to recommending this reservation, did the Executive Branch assess the possible reaction of other States Parties to this proposed reservation? If so, what was the result of such an assessment?
The proposed federalism reservation to the Trafficking in Persons Protocol is analogous to that also proposed with respect to the Transnational Organized Crime Convention. It explains the United States federal criminal law relating to trafficking in persons, and notes that this federal law will be the “principal legal regime” for combating this offense. The proposed reservation also describes the very limited circumstances in which state criminal law may be applicable, and the conceivable scenario where there is no applicable federal or state law.
During the course of negotiations on both the Convention and Protocols, the U.S. delegation informed other delegations about the nature of our legal system, in which both federal and state substantive criminal law may be relevant in order to implement a criminalization obligation established in an international instrument. The U.S. system is virtually unique in this respect, even among federal states. We believe that this effort caused many foreign governments to understand the likelihood that the United States would require federalism reservations in connection with certain Convention and Protocol criminalization obligations.
The Administration, in preparing the proposed federalism reservations, considered the likely reaction of other State Parties. While it is impossible to predict every foreign government’s reaction in advance, we believe that the foundation laid during negotiations, as well as the somewhat detailed explanation in the text of the reservations of the nature of U.S. federalism, as well as the reservations’ very limited scope, will assist foreign understanding and acceptance.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
6. What is the nature of the obligation of Article 6(6)? Will it require the United States to extend the victims compensation law to U.S. victims of trafficking who are outside the United States?
Under Article 6(6), States Parties are required to ensure the possibility that victims obtain compensation for damages suffered. The United States already has laws in place that are adequate to meet this requirement. Under 18 U.S.C. § 1593, federal courts must, in sentencing defendants convicted of trafficking offenses, order that defendants pay restitution to the victim that is equal to the full extent of the victim's losses. In addition, as a general matter, the U.S. legal system affords victims of crime the possibility of bringing a civil suit for damages against the perpetrators of the harm. The entire range of trafficking behaviors is captured under State tort law, under which a victim may recover damages. Finally, section 4(a)(4) of the Trafficking Victims Protection Reauthorization Act of 2003 created a civil action provision that expressly allows trafficking victims to sue their traffickers in an "appropriate" federal district court. Under that provision, victims outside the United States could bring suit if their victimization constituted an offense under U.S. law, which would require that some part of the offense occurred in the U.S. Nothing in the Protocol suggests that trafficking cases entirely unrelated to the U.S. are required to be actionable in the United States.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
7. Article 8(2) requires that return of a victim of trafficking in persons be done “with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking.” How will the Executive Branch determine whether it is safe for the victim to their country of origin?
U.S. investigating authorities and immigration officials will consider all the evidence in the case, including information provided by the victim and any victim advocate involved in the case, the location of the suspected traffickers (including associates who may be located elsewhere), and the ability of authorities and non-governmental organizations in the source country to offer services and protection to the victim. The U.S. embassies in the source countries may also be asked to provide relevant information. Of course, the Trafficking Victims Protect Act, 22 U.S.C. § 7101 et seq., provides for the possibility of continued presence in the United States for victims of severe forms of trafficking who can assist in the investigation and prosecution, or a visa for trafficking victims who are victims of a severe form of trafficking, who have complied with any reasonable request for assistance in the investigation (or are younger than 18), and who would face extreme hardship by returning home.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Trafficking in Persons Protocol
8. With regard to Article 8(6), are there any such agreements in force for the United States? Please elaborate.
The United States has no bilateral or multilateral agreements or arrangements specific to trafficking victims. The United States does have more general agreements with, for example, the Dominican Republic, governing the return of those countries' nationals apprehended at sea, and may enter similar agreements with other countries in the future. The U.S. also has nonbinding arrangements on repatriation, including those with Canada and Mexico, as well as local arrangements with particular Mexican jurisdictions, which set forth procedures to be followed in repatriating those countries' citizens. All of these agreements are consistent with the obligations set forth in Article 8.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Migrant Smuggling Protocol
1. What federal statutes will implement the obligations of Article 6?
The U.S. will implement its obligations under Art. 6 through enforcement of the following statutes:
8 U.S.C. § 1324(a)(l)(A)(i) (knowingly bringing an alien to other than a designated port of entry); 8 U.S.C. § 1324(a)(2)(B)(ii) (bringing in any manner an alien without prior official authorization for commercial advantage or private financial gain); 18 U.S.C. § 1543 (falsely making passports); 18 U.S.C. § 1546(a) (falsely making various visas and entry and residence documents); 18 U.S.C. § 1028(a)(1) (producing false U.S. identity documents in a way that affects interstate commerce); 18 U.S.C. § 1542 (“securing” a passport by false statement); 18 U.S.C. § 1028(a)(4) (possessing a fraudulent passport with the intent to defraud the U.S.); 18 U.S.C. § 1546(a) (obtaining false visas and other travel documents); 18 U.S.C. § l028 (a)(4) (possession of an identity document with intent is to defraud the U.S. government); 18 U.S.C. § 1542 (“furnishes to another” a passport secured by fraudulent statement); 18 U.S.C. § 1544 (“furnishes, disposes of, or delivers a passport to any person, for use by another than the person for whose use it was originally issued and designed”); 18 U.S.C. § 1028 (“transfer” of a false or fraudulently produced identity document); 8 U.S.C. § 1324(a)(l)(A)(iii) (concealing, harboring, or shielding from detection an alien who has come to, entered, or remains in the U.S. in violation of law); 18 U.S.C. § 2 (general aiding and abetting); and 18 U.S.C. § 371 (conspiracy).
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Migrant Smuggling Protocol
2. The Secretary’s letter of submittal, in discussing Article 6(3) and its requirement to establish as aggravating circumstances certain conduct, references the federal Sentencing Guidelines, the constitutionality of which may have since been called into question by the Supreme Court in Blakely v. Washington. Does the executive branch have any views on the degree to which the United States will be able to comply with the obligation of Article 6(3) after Blakely?
It will take some time to determine how the United States Supreme Court will apply Blakely, which involved State sentencing guidelines, to the federal sentencing guidelines. In the meantime, until this issue is settled, Deputy Attorney General Comey has instructed federal prosecutors to include in indictments allegations that will form the basis of upward departures or upward adjustments, so that juries will make findings on those specific facts. This process will enable the courts to utilize those factual findings as a basis for increased sentences, thereby satisfying the requirements of the Blakely case. Thus, by submitting relevant facts to a jury, the United States can meet its obligation under Article 6(3) to punish migrant smuggling more severely when it includes degrading or inhumane treatment or endangerment of the migrant’s life or safety.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Migrant Smuggling Protocol
3. The discussion of Article 9 in the Secretary’s letter of submittal indicates that “existing claims procedures” under current law would be used to process and adjudicate any claims for compensation for any loss or damage. Please describe the authority for these existing procedures and how those procedures are administered.
The applicable U.S. law regarding claims against the United States for actions taken by the U.S. Armed Forces, including the U.S. Coast Guard, are contained in the Suits in Admiralty Act (46 U.S. Code App. §§ 741 et seq.) and the Public Vessels Act (46 U.S. Code App. § 781), in which there are waivers of sovereign immunity, as well as the Military Claims Act (10 USC § 2733) and the Foreign Claims Act (10 USC § 2734). The applicable U.S. Coast Guard regulations are to be found in 33 CFR Part 25 and the Admiralty Claims Procedures in 32 CFR Part 752.
For the U.S. Coast Guard (USCG), these procedures are administered by the USCG’s two Maintenance & Logistics Commands. The USCG, as a matter of policy, promptly pays all meritorious claims for property damage or personal injury resulting from law enforcement activities pursuant to which no violations or illegal activity are discovered. Claimants may initiate a claim by filling out a simple two-page form and presenting it to the Commanding Officer of any USCG unit, to the military attaché of any United States embassy or consulate, or to the Commanding Officer of any unit of the armed forces of the United States. Such forms are available through the USCG and United States Navy, including units that conduct boardings and searches of suspect vessels. After administrative investigation and review by the USCG, the claim, if merited, may be paid. If the parties cannot agree to settle the claim, the claimant retains the right to seek any available relief in United States federal court.
The Secretary of the Navy has authority to settle admiralty claims for damage caused by vessels or other property of the U.S. Navy and maritime torts committed by agents or employees of the U.S. Navy. This authority is subject to the caveat that legal liability must exist and the case must not be in litigation. The Office of the Judge Advocate General of the Navy, Admiralty and Maritime Law Division, is responsible for adjudicating all tort claims within admiralty jurisdiction involving the operation of United States Navy vessels, personnel or property. There is no particular form or format necessary to submit an admiralty claim to the Office of the Judge Advocate General of the Navy. The claimant must fully explain the facts underlying the claim and justify the amount claimed by including relevant documents, charts, diagrams, and photographs, as well as repair or replacement estimates, surveys, receipts, or invoices.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Migrant Smuggling Protocol
4. The discussion of Article 11 in the Secretary’s letter of submittal emphasizes the discretionary language of this provision. How will this article be implemented under U.S. law?
The text of Article 11 is designed to provide significant flexibility to States Parties. In this connection, the U.S. already has in place laws and practices that implement specific measures set forth in the Article. For example, 8 U.S.C. §§ 1224 & 1323 impose fines on commercial carriers for violations of immigration law, such as transporting aliens into the U.S. without a valid visa or passport. With respect to paragraph 5 of this article, 8 U.S.C. § 1182 (2) (H) deems inadmissible those engaged in trafficking in persons; and 8 U.S.C. § 1201(i) authorizes the Secretary of State to revoke visas and could be used against traffickers.
Questions of Sen. Biden for Mr. Witten (Department of State) and Mr Swartz (Department of Justice)
UN Convention Against Transnational Organized Crime and Protocols on Trafficking in Persons and Migrant Smuggling (Treaty Doc. 108-16)
Committee on Foreign Relations
June 17, 2004
Questions applicable to Migrant Smuggling Protocol
5. Is not Article 18(1) of the Protocol self-executing?
No, we would not consider Article 18(1) of the Protocol to be self-executing. The non-self-executing declaration proposed by the Administration was intended to make clear that Article 18(1) (among other provisions) does not create enforceable legal rights in U.S. courts.
