T.Doc.105-40 TREATY WITH ISRAEL ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ...

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105th Congress                                              Treaty Doc.
                                 SENATE

 2d Session                                                      105-39
_______________________________________________________________________


 
               INTER-AMERICAN CONVENTION AGAINST CORRUPTION

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

  INTER-AMERICAN CONVENTION AGAINST CORRUPTION (``THE CONVENTION''), 
 ADOPTED AND OPENED FOR SIGNATURE AT THE SPECIALIZED CONFERENCE OF THE 
 ORGANIZATION OF AMERICAN STATES (OAS) AT CARACAS, VENEZUELA, ON MARCH 
 29, 1996. THE CONVENTION WAS SIGNED BY THE UNITED STATES ON JUNE 27, 
1996, AT THE TWENTY-SEVENTH REGULAR SESSION OF THE OAS GENERAL ASSEMBLY 
                     MEETING IN PANAMA CITY, PANAMA


<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


 April 1, 1998.--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, April 1, 1998.
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 Inter-American 
Convention Against Corruption (``the Convention''), adopted and 
opened for signature at the Specialized Conference of the 
Organization of American States (OAS) at Caracas, Venezuela, on 
March 29, 1996. The Convention was signed by the United States 
on June 27, 1996, at the twenty-seventh regular session of the 
OAS General Assembly meeting in Panama City, Panama. In 
addition, for the information of the Senate, I transmit the 
report of the Department of State with respect to the 
Convention.
    The Convention was the first multilateral Convention of its 
kind in the world to be adopted. The provisions of the 
Convention are explained in the accompanying report of the 
Department of State. The report also sets forth proposed 
understandings that would be deposited by the United States 
with its instrument of ratification. The Convention will not 
require implementing legislation for the United States.
    The Convention should be an effective tool to assist in the 
hemispheric effort to combat corruption, and could also enhance 
the law enforcement efforts of the States Parties in other 
areas, given the links that often exist between corruption and 
organized criminal activity such as drug trafficking. The 
Convention provides for a broad range of cooperation, including 
extradition, mutual legal assistance, and measures regarding 
property, in relation to the acts of corruption described in 
the Convention.
    The Convention also imposes on the States Parties an 
obligation to criminalize acts of corruption if they have not 
already done so. Especially noteworthy is the obligation to 
criminalize the bribery of foreign government officials. This 
provision was included in the Convention at the behest of the 
United States negotiating delegation. In recent years, the 
United States Government has sought in a number of multilateral 
fora to persuade other governments to adopt legislation akin to 
the U.S. Foreign Corrupt Practices Act. This Convention 
represents a significant breakthrough on that front and should 
lend impetus to similar measures in other multilateral groups.
    I recommend that the Senate give early and favorable 
consideration to the Convention, and that it give its advice 
and consent to ratification, subject to the understandings 
described in the accompanying report of the Department of 
State.

                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, March 24, 1998.
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 Inter-American Convention Against Corruption 
(``the Convention''), adopted and opened for signature at the 
Specialized Conference on Corruption of the Organization of 
American States (OAS) in Caracas, Venezuela, on March 29, 1996. 
The Convention was signed by the United States on June 27, 
1996, at the twenty-seventh regular session of the General 
Assembly of the OAS meeting in Panama City, Panama. I recommend 
that the Convention be transmitted to the Senate for its advice 
and consent to ratification.
    To date, twenty-three states have signed the Convention. 
Eight states (Paraguay, Bolivia, Mexico, Peru, Ecuador, 
Venezuela, Costa Rica, and Argentina) have deposited their 
instruments of ratification. The Convention entered into force 
on March 6, 1997.
    The Convention is the first instrument of its kind in the 
world to be adopted. It establishes a treaty-based regime of 
obligations among the OAS member states to combat corruption, 
including various forms of cooperation analogous to those that 
exist pursuant to a number of multilateral law enforcement 
treaties to which the United States is a party. The Convention 
will enhance the United States' ability to cooperate with, and 
receive assistance from, other countries in the hemisphere in 
connection with efforts to prevent, investigate, and prosecute 
acts of corruption. The Convention will not require 
implementing legislation for the United States. As further 
discussed below, the existing bodies of laws and regulations in 
the United States will be adequate to satisfy the Convention's 
provisions regarding requirements for legislation, and the 
other provisions contained in the Convention are self-executing 
and will not require additional implementing legislation.
    The Convention consists of a preamble and twenty-eight 
articles. Article 1 (``Definitions'') defines the following 
terms: ``public function,'' ``public official,'' ``government 
official,'' ``public servant'' and ``property.'' With respect 
to the definitions of the first four of the terms listed above, 
it was agreed by the negotiators that the term ``at any level 
of its hierarchy'', which iscontained in such definitions, was 
intended to clarify the ``vertical'' scope of application of the 
Convention; i.e., that the Convention would cover officials ranging 
from those at the very top of the government bureaucracy, such as 
Cabinet-level officials, to those at the lowest levels, such as clerks. 
The phrase was included at the behest of certain delegations who 
expressed concern that some of the corruption laws that exist in their 
countries do not reach officials at the very top levels of government, 
or, alternatively, those at the lowest levels.
    However, the negotiators expressly discussed and understood 
that the phrase ``at any level of its hierarchy'' was not 
intended in this Convention to define the scope of application 
of the Convention with respect to constituent units of federal 
states, nor was the Convention as a whole intended to impose 
obligations with respect to the conduct of state or local 
officials. To emphasize this point, upon conclusion of the 
negotiations at the final session of the specialized conference 
in Caracas, the head of the U.S. negotiating team read the 
following statement into the record:

          The U.S. would like to reaffirm for the record the 
        statement made earlier by the President of the Working 
        Group for the article on definitions that the 
        conclusions of the Working Group reflect the fact that 
        countries with federal systems of government may not be 
        able to bind their states and municipalities to the 
        obligations under the Convention.

    This statement was seconded at the conference by the 
delegation from Canada and from other States with federal 
systems. To confirm our understanding on this point, I 
recommend that the following understanding to Article I be 
included in the United States instrument of ratification:

          The Government of the United States of America 
        understands that the phrase ``at any level of its 
        hierarchy'' in the first and second subparagraphs of 
        Article 1 refers, in the case of the United States, to 
        all levels of the hierarchy of the federal government 
        of the United States, and that the Convention does not 
        impose obligations with respect to the conduct of 
        officials other than federal officials.

    Article II (``Purposes'') describes the purposes of the 
Convention, which are to promote and strengthen the development 
by each of the States Parties of the necessary mechanisms to 
prevent, detect, punish, and eradicate corruption; and to 
promote, facilitate, and regulate cooperation among the States 
Parties to ensure the effectiveness of measures and actions 
against corruption in the performance of public functions and 
acts of corruption specifically related to such performance.
    Article III (``Preventive Measures'') sets forth a list of 
measures that the States Parties ``agree toconsider the 
applicability of '' within their own institutional systems, for the 
purpose of advancing the goals specified in Article II. These include 
measures to ``create, maintain, and strengthen,'' inter alia, the 
following: standards of conduct for the correct, honorable, and proper 
fulfillment of public functions and mechanisms to enforce such 
standards; instruction to government personnel to ensure proper 
understanding of their responsibilities and ethical rules; systems for 
registering the income, assets and liabilities of government officials; 
open, equitable, and efficient systems of government hiring and 
procurement of goods and services; government revenue collection and 
control systems that deter corruption; laws that deny favorable tax 
treatment for expenditures made in violation of anti-corruption laws; 
systems for protecting public servants and citizens who, in good faith, 
report acts of corruption; oversight bodies to implement modern anti-
corruption mechanisms; and deterrents to the bribery of domestic and 
foreign government officials, such as requirements for publicly held 
companies and other types of associations to maintain books and records 
that accurately reflect the acquisition and disposition of assets, and 
to have sufficient internal accounting controls.
    Article IV (``Scope'') states that the Convention is 
applicable provided that the alleged act of corruption has been 
committed, or has effects, in a State Party.
    Article V (``Jurisdiction'') enunciates obligations imposed 
on the States Parties to establish their jurisdiction over 
offenses covered under the Convention. Specifically, this 
Article obligates each State Party to adopt such measures as 
may be necessary to establish its jurisdiction over the 
offenses it has established in accordance with this Convention 
when the offense in question is committed in its territory. The 
Article also obligates each State Party to establish 
jurisdiction over covered offenses by individuals who are in 
its territory but whom it declines to extradite on the grounds 
of the nationality of the alleged criminal. In addition, the 
Article enables, but does not require, each State Party to 
establish jurisdiction over offenses covered by the Convention 
when such offenses are committed by its nationals or persons 
who habitually reside in its territory. Finally, the Article 
makes clear that this Convention does not preclude the 
application of any other rule of criminal jurisdiction 
established by a State Party under its domestic law.
    Article VI (``Acts of Corruption'') is one of the key 
provisions of the treaty, as it specifies the acts of 
corruption to which the Convention applies. In summary terms, 
such acts are: the solicitation or acceptance by, or the 
offering or granting to, government officials of bribes or 
benefits in exchange for any act or omission in the performance 
of his public functions; any act or omission by a government 
official in the discharge of his duties for the purpose of 
illicitly obtaining benefits for himself or for a third party; 
the fraudulent use or concealment of property derived from any 
of the acts contemplated in this Article; and participation in 
the commission of, attempt to commit, or any association or 
conspiracy to commit, any such acts. The Article also renders 
the Convention applicable with respect to any other act of 
corruption as agreed to between or among two or more States 
Parties.
    Article VII (``Domestic Law'') requires that the States 
Parties, to the extent they have not yet done so, adopt the 
necessary legislative or other measures to establish as 
criminal offenses under their domestic law the acts of 
corruption described in Article VI, as well as to facilitate 
cooperation among themselves pursuant to the Convention.
    At various times during the negotiations, the U.S. 
delegation described the extensive network of laws already in 
place in the U.S. that address the various acts of corruption 
covered under theConvention. Based on the discussions held at 
the negotiating sessions, the U.S. negotiators do not believe that it 
is the expectation of any of the other negotiating delegations that the 
United States would be required to enact any laws beyond those that it 
already has in place. Indeed, the opinion was voiced that one of the 
objectives of the Convention is to have the rest of the nations of the 
hemisphere develop a body of laws on corruption comparable to that 
which exists in the United States.
    There is, however, no single federal anti-corruption law in 
the United States that uses exactly the terms used in this 
Convention. Moreover, the network of United States anti-
corruption laws is extensive, but not every federal employee is 
subject to criminal prosecution for every act that could 
conceivably fall within the definition of the ``acts of 
corruption'' in the Convention. In particular, there is no 
general ``attempt'' statute in U.S. federal criminal law, 
although federal statutes make ``attempts'' criminal in 
connection with specific crimes. The practical effect of this, 
however, is debatable. The ``acts of corruption'' described in 
Article VI (1) (a) and (b) are defined in such a way as 
effectively to embrace the acts constituting an attempt within 
the crime since it is the mere solicitation, acceptance, 
offering or granting of a bribe which is a crime, without any 
consummation of an act of bribery or even an agreement to 
bribe. The literal terms of subparagraph (c), on the other 
hand, would embrace a situation in which an individual took 
some preparatory action unknown to anyone, with the ``purpose'' 
of profiting illicitly at some future point. Under U.S. law, 
this would not be criminalized as such, although the conduct in 
question in a given case might well be prosecutable in the 
context of some other crime. It should also be noted, with 
respect to subparagraph (e), that the reference to 
``instigator'' is not intended to require the United States to 
create a new crime of association denominated ``instigation,'' 
but rather was included in the Convention merely as an 
illustrative form of the types of ``participation'' that the 
provision intends to cover. Although the U.S. legal system does 
not recognize the offense of ``instigation'' as such, it does 
contemplate equivalent but differently denominated offenses, 
such as aiding or abetting.
    Despite the above, the existing network of laws in place in 
the United States can reasonably be deemed to satisfy the 
obligations imposed under the Convention with respect to the 

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