[Senate Executive Report 109-3]
[From the U.S. Government Publishing Office]
109th Congress Exec. Rept.
SENATE
1st Session 109-3
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INTER-AMERICAN CONVENTION AGAINST TERRORISM
(TREATY DOC. 107-18).
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July 28, 2005.--Ordered to be printed
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Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 107-18]
The Committee on Foreign Relations, to which was referred
the Inter-American Convention Against Terrorism (Treaty Doc.
107-18) (hereafter ``Convention''), signed at Bridgetown,
Barbados on June 3, 2002, having considered the same, reports
favorably thereon with an understanding as indicated in the
resolution of advice and consent, and recommends that the
Senate give its advice and consent to ratification thereof, as
set forth in this report and the accompanying resolution of
advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Convention......................2
IV. Implementing Legislation.........................................3
V. Committee Action.................................................3
VI. Committee Recommendation and Comments............................3
VII. Text of Resolution of Advice and Consent to Ratification.........4
I. Purpose
The Convention was negotiated under the auspices of the
Organization of American States (``OAS'') in the aftermath of
the September 11, 2001 terrorist attacks on the United States
and is designed to strengthen prohibitions against acts of
terrorism and promote international cooperation in
investigating and prosecuting such acts.
II. Background
The Organization of American States was meeting in Lima,
Peru on September 11, 2001, and was the first international
organization to condemn the terrorist attacks on the United
States. In response to the attacks, the OAS Foreign Ministers,
at a meeting of consultation on September 21, 2001, instructed
the OAS to negotiate the Convention. Following three rounds of
negotiations held between November 2001 and March 2002, the
Convention was adopted on June 3, 2002 at the thirty-second
regular session of the General Assembly of the OAS in
Bridgetown, Barbados and signed by thirty OAS member states,
including the United States. It entered into force on July 10,
2003, and is open to ratification by all OAS member states.
Currently, thirty-three OAS member states are signatories and
twelve are parties, including Canada and Mexico.
III. Summary of Key Provisions of the Convention
A detailed article-by-article discussion of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 107-18. A summary of the key provisions of the
Convention is set forth below.
The core obligation of the Convention is that parties
``endeavor to become a party'' to 10 international counter-
terrorism treaties (listed in Article 2) already in force that
address specific subject areas, such as hijacking, hostage-
taking, bombing, attacks on diplomats, and financing of
terrorism. The Convention then requires that parties ``adopt
the necessary measures to effectively implement'' these
instruments. The Convention permits each state to declare that
the obligations contained in the Convention will not apply to
the offenses set forth in one or more of the listed counter-
terrorism instruments if it is not yet a party to the
instrument or ceases to be a party. The United States is
already a party to all 10 instruments, and therefore it does
not need to make such a declaration.
The Convention contains additional provisions requiring
parties to take specific measures to facilitate the prevention,
prosecution and punishment of the offenses established in the
international instruments listed in Article 2, including:
developing domestic regimes to track and combat the financing
of terrorist activities; expanding bases for seizure and
forfeiture of funds and other assets; expanding predicate
offenses for money laundering; enhancing cooperation on border
controls and among law enforcement authorities; establishing a
mechanism for transferring persons in custody for
identification, testimony or other types of assistance; and
denying refugee status or asylum in appropriate cases (as
provided in Articles 12 and 13).
Several articles of the Convention address aspects of
cooperation between parties. Article 9 requires all parties to
``afford one another the greatest measure of expeditious mutual
legal assistance with respect to the prevention, investigation,
and prosecution'' of offenses under the Convention in
accordance with existing treaties or, in the absence of
applicable treaties, with domestic law. The United States has
mutual legal assistance treaty relationships, either through
bilateral mutual legal assistance treaties or the Inter-
American Convention on Mutual Assistance in Criminal Matters,
with 25 OAS member states. In cases where there is not a
treaty, assistance would be provided by the United States in
accordance with 28 U.S.C. section 1782. The Convention
specifies, in Article 14, that parties are not obliged to
provide mutual legal assistance in cases where the requested
state has substantial grounds to believe that the request was
made for the purpose of prosecuting or punishing a person on
account of his race, religion, nationality, ethnic origin, or
political opinion, or that complying with the request would
prejudice that person's position for any of these reasons.
Article 10 of the Convention establishes a procedure for
persons in custody in the territory of one party to be
transferred to another party, with the consent of that person
and the agreement of the two states, for the purpose of
assisting in the gathering of evidence for the investigation or
prosecution of any of the offenses covered by the Convention.
This provision is similar to provisions found in many bilateral
mutual legal assistance treaties to which the United States is
a party. Article 11 of the Convention further establishes that
for offenses covered by the Convention, a party may not decline
a request for extradition or for mutual legal assistance on the
ground that the offense in question was a political offense, an
offense connected with a political offense, or an offense
inspired by political motives. As a result, a person whose
extradition is sought for an offense covered by the Convention
may not successfully rely on the defense of political offense
to avoid extradition. Although the more recent multilateral
counter-terrorism conventions contain this limit on the
political offense exception, including it in this Convention
ensures that it will apply, as between the parties to this
Convention, also to the offenses established in the earlier
multilateral counter-terrorism instruments. It bears emphasis
that the Convention itself does not provide a basis for
extradition, which would be governed by existing bilateral
extradition treaties.
The Committee notes that Articles 10 and 11 of the
Convention are intended to operate in the same way as similar
provisions contained in bilateral extradition and mutual legal
assistance treaties. As with such provisions in bilateral
treaties, these provisions are self-executing. They will be
implemented by the United States in conjunction with applicable
federal statutes. Additionally, the Executive Branch has
indicated that they are not intended to create any private
rights of action. The Committee notes that the lack of a
private right of action does not affect the ability of persons
whose extradition is sought to raise any available defenses in
the context of the extradition proceeding.
IV. Implementing Legislation
No implementing legislation is required for the Convention.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the Convention on June 17, 2004, at which it heard testimony
from representatives of the Departments of State and Justice
(S. Hrg. 108-721). On July 26, 2005, the Committee considered
the Convention and ordered it favorably reported by voice vote,
with the recommendation that the Senate give its advice and
consent to its ratification, subject to the understanding
contained in the resolution of advice and consent.
VI. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
proposed Convention is in the interest of the United States and
urges the Senate to act promptly to give advice and consent to
its ratification, subject to the understanding contained in the
resolution of advice and consent. The Committee believes the
Convention will provide a modest but useful means to expand and
facilitate counter-terrorism cooperation with other states in
the hemisphere, provided that other OAS member states become
party to the international treaties set forth in Article 2. The
Committee urges the Executive Branch to encourage other OAS
member states to adhere to those treaties.
The proposed understanding to the Convention is designed to
clarify U.S. obligations pertaining to the use of the term
``international humanitarian law'' in paragraph 2 of Article 15
of the Convention. Because the United States armed forces do
not use this term, the understanding provides that the United
States will interpret the term consistent with its
understanding of the term ``law of war.'' This understanding
was recommended by the Executive Branch when it transmitted the
Convention to the Senate.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDING
The Senate advises and consents to the ratification of the
Inter-American Convention Against Terrorism (the
``Convention''), adopted at the thirty-second regular session
of the General Assembly of the Organization of American States
meeting in Bridgetown, Barbados, and signed by the United
States on June 3, 2002 (Treaty Doc. 107-18), subject to the
understanding in Section 2.
SECTION 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the United States instrument of ratification:
The United States of America understands that the
term ``international humanitarian law'' in paragraph 2
of Article 15 of the Convention has the same
substantive meaning as the law of war.