Business Coalition Draft Submission on Article 35 and the UN Convention Against Corruption

Tuesday, 24 May 2005

Business Coalition Draft Submission on Article 35 and the UN Convention Against Corruption

(to be included in Administration's transmission package to the Senate)

Stand-Alone Declaration

The United States' ratification of the United Nations Convention Against Corruption ("Convention") is subject to the following declaration:

With the exception of Articles 44 and 46, the Convention's provisions are not self-executing, and nothing in the Convention creates a new or independently enforceable private right of action in U.S. courts. Existing U.S. law provides sufficient protection and remedies to comply with the Convention. There is accordingly no need for the establishment of additional causes of action to enforce the requirements of the Convention.

Understandings/Declarations - Section-by-Section Analysis

(To be placed in the section-by-section analysis with regard to Article 35.)

As discussed in the travaux preparatoires to the Convention, Article 35 intentionally provides the State Parties significant flexibility in determining how to implement Article 35. Article 35 does not restrict the right of a State Party to choose how it will meet the Article's obligations under its domestic law, nor does it require or endorse a particular choice made by a State Party in determining how to meet its obligations under Article 35.
Consistent with the above, the United States ratifies the Convention based upon the understanding that Article 35 allows persons allegedly injured by acts of corruption to initiate legal proceedings in United States courts only against those who have directly committed the alleged acts of corruption (not simply those who may be associated with others who commit acts of corruption), and only with regard to acts of corruption committed within the United States involving United States government officials.

The United States, as stated in the Declaration above, declares that neither Article 35 nor any other provision in the Convention creates any private right of action. The United States declares that its current laws and practices satisfy Article 35, and therefore Article 35 does not expand, broaden, or enhance current United States law and practice in any way.

The United States ratifies the Convention subject to the understanding that Article 35 does not provide support for or facilitate cases brought under the Alien Tort Statute ("ATS") relating to acts of corruption for two reasons. First, as discussed in the Declaration above, Article 35 is not self-executing, and as such cannot form the basis of an ATS lawsuit. Second, although the United States strongly supports the objectives of prohibiting and criminalizing bribery of public officials, the United States does not view an act of corruption as a violation of a specific, universal, and obligatory international norm such that it could form the basis of an ATS claim/cause of action and/or lawsuit.

USA*ENGAGE is a coalition of over 670 small and large businesses, agriculture groups and trade associations working to seek alternatives to the proliferation of unilateral U.S. foreign policy sanctions and to promote the benefits of U.S. engagement abroad. For more information on USA*ENGAGE and the harmful effects of unilateral trade sanctions, visit the USA*ENGAGE web site at