The Offenses Against the Law of Nations Clause

The Congress shall have Power . . . To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations. . . .

—Eugene Kontorovich

Introduction

The Constitution expressly authorizes Congress to create only a narrow set of federal crimes. These include piracy, felonies committed on the high seas, and the domestic offenses of treason and counterfeiting. Another category of federal crimes that Congress can “define and punish” is “Offences against the Law of Nations.” The term “law of nations” is synonymous with what is today called “customary international law.” These rules are created not by treaty, but by the general consent and practice of states through their mutual dealings.¹

History Before 1787

Sir William Blackstone wrote that the law of nations recognized only a very limited number of “offences” that could be committed by private actors as opposed to states.² These offenses consisted of piracy and assaults on ambassadors and certain other foreigners bearing particular protection. In England, these crimes would be punished as common-law offenses in criminal courts and regulated by statute. The Founding generation was very familiar with the views of Blackstone, Vattel, and others on the law of nations.³

Following independence, there were assaults on foreign diplomats in the United States. In 1784, a Frenchman assaulted a French diplomat in public in Philadelphia. This incident could have complicated Franco–American relations, and the king of France took a personal interest in it. However, the Articles of Confederation Congress lacked power to respond to violations of treaties or the law of nations by individuals.⁴

The Constitutional Convention

At the Constitutional Convention, Edmund Randolph of Virginia cited the inability to punish “infractions of treaties or of the law of nations” as one of the Articles of Confederation’s many deficiencies.⁵ James Madison of Virginia echoed this theme, warning that the failure of states to punish such offenses could “involve [America] in the calamities of foreign wars.”⁶ No delegates contested the propriety of such a federal power. The motivation for giving Congress the power to punish such offenses focused entirely on acts (such as “infractions of treaties and conventions to which the United States are a party”) for which the new country would be held accountable by other nations.⁷ This power was not intended to advance a more general or cosmopolitan interest in upholding international norms.

On August 17, the delegates approved a provision granting Congress the power “to punish the counterfeiting of the securities and current coin of the United States, and offences against the law of nations.”⁸ While this draft gave Congress the power to “punish” such offenses, it did not empower Congress to “define” them. The Committee of Style revised the clause to grant Congress the power “[t]o define and punish piracies and felonies committed on the high seas, and punish offences against the law of nations.”⁹

The Convention revisited this provision on September 14. Gouverneur Morris of Pennsylvania moved to strike the word “punish.”¹⁰ With this revision, Morris explained, offenses against the law of nations would be “definable as well as punishable.”¹¹ Morris added that Congress needed the power to “define” offenses because the law of nations is “often too vague and deficient to be a rule.”¹² At the time of the Framing, the word “define” would be used to mean expounding or specifying the content of such “offenses” rather than inventing new ones.¹³ James Wilson of Pennsylvania worried that no one country could “define” international law. “To pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World,” Wilson said, “would have the look of arrogance, that would make us look ridiculous.”¹⁴ The concern was odd because the same text gave Congress the power to “define” piracy, which was already precisely specified in international law. (See Essay No. 54.) Morris’s position prevailed.

The Ratification Debates

In Federalist No. 42, James Madison observed that the Articles of Confederation “contain[ed] no provision for the case of offences against the law of nations.” As a result, any “indiscreet member [could] embroil the Confederacy with foreign nations.” Madison explained that “[t]he power to define and punish . . . offences against the law of nations, belongs with equal propriety to the general government; and is a still greater improvement on the articles of Confederation.” Anti-Federalists did not appear to take issue with the “Offences” power.

Early Practice

After the Constitution was ratified, Congress promptly passed laws punishing certain international crimes. Among these crimes were violations of the protections that international law gave to diplomats. These were precisely the concerns that arose under the Articles of Confederation.¹⁵ The Neutrality Act of 1794 also, arguably though less obviously, prohibited conduct that would violate international law.¹⁶

The U.S. Supreme Court did not consider questions about the scope of the Offenses Clause until nearly a century after ratification in United States v. Arjona (1887), which involved a law that prohibited counterfeiting foreign currency.¹⁷ Clear constitutional tests of the “Offences” power have been rare. Many borderline applications of the power, like that in Arjona, can be justified separately by reference to some combinations of the Treaty Clause, the Foreign Commerce Clause, or various war powers.

Delegation of the Power to Define Offenses

Can Congress delegate its power to define offenses against the law of nations to the other branches? The Offenses Clause did not grant Congress an exclusive power to interpret international law in every possible context. Rather, Congress’s power of “defining” is limited to statutes penalizing individuals’ conduct. James Madison suggested this limitation in his report on the Virginia Resolution.¹⁸ Both courts and the Executive, for example, must interpret terms in the Constitution like “war” or “ambassadors” that are borrowed from international law.

In The Paquete Habana (1900), the Supreme Court commented that “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.”¹⁹ But that decision concerned prize jurisdiction, where Congress can be understood as delegating the discernment of international law to the Court.²⁰ Justice Joseph Story, in United States v. Smith (1820), wrote that offenses against the law of nations could not be “completely ascertained and defined in any public code recognized by the common consent of nations.”²¹

Recall that at the Convention, the premise for giving Congress the power to define was the underlying indeterminacy or vagueness of the law of nations. This history makes it hard to argue that the law of nations is somehow incorporated into U.S. law as a form of common law, or even as a rule of statutory construction.²²

Congress has also delegated the work of “defining” offenses against the law of nations in statutes authorizing military commissions to try war crimes. Such a law was enacted during World War II. In 1942, German saboteurs infiltrated Long Island, New York. They were convicted of “unlawful belligerence.” Ex parte Quirin (1942) upheld their convictions.²³ The Supreme Court spent eight pages considering “whether any of the acts charged is an offense against the laws of war,” a component of the law of nations, and concluded that “unlawful belligerence” was such an offense.

A similar law was enacted during the twenty-first-century global war on terrorism. In 2004, a military commission charged Salim Hamdan with “conspiracy” to commit acts of terrorism. Hamdan v. Rumsfeld (2006) held that the international precedents for such a crime must be “plain and unambiguous.”²⁴ A plurality of the Court concluded that the conspiracy charge failed that test.²⁵

Quirin and Hamdan did not involve direct exercises of the “Define” power. Rather, Congress delegated the definition of offenses against the law of war to the military commissions themselves. It may be that offenses defined through delegation must match external international law more precisely than is the case when Congress defines offenses directly.

Limits on Congress’s Power to Define Offenses

An unresolved question about the clause is whether the content of “offenses against the law of nations” serves as an objective limit on Congress’s power or whether Congress can designate any conduct it chooses as an offense. The courts have suggested that Congress cannot simply invoke the power without a real connection to international law, but they have disagreed as to the scope of Congress’s discretion.

Arjona took a broad view of Congress’s powers. The Court declared that Congress need not formally invoke “the law of nations” to criminalize counterfeiting foreign securities as long as it was punishing an action that was in fact contrary to customary international law.²⁶ Yet instead of undertaking any substantive inquiry to see whether there was such a norm, the Court found it sufficient that the conduct could antagonize other countries.

Modern courts have required a greater connection between crimes defined under the clause and actual international law as practiced by the nations of the world. This more searching inquiry is motivated in part by federalism concerns. As a general matter, the Constitution sharply limits federal criminal powers. A federal court of appeals has observed that if Congress could regulate conduct simply by claiming it violates international law, “its power would be limitless and contrary to our constitutional structure.”²⁷

In response to Hamdan, Congress expressly exercised its power in the Military Commissions Act (2006) to define “conspiracy” and “material support” for terrorism as offenses.²⁸ A sharply divided D.C. Circuit took a narrow view of Congress’s power: “Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not.”²⁹ Other courts have not required that the specific offense exist in international law.³⁰ One court has found it sufficient that “the acts in question are recognized by at least some members of the international community as being offenses against the law of nations.”³¹

The Maritime Drug Law Enforcement Act (MDLEA) allows the extraterritorial application of U.S. drug laws to foreign drug trafficking.³² This law is often used to prosecute foreign defendants with no demonstrable nexus with the United States. The Eleventh Circuit concluded that “the word ‘define’ would not have been understood [by the Framers] to grant Congress the power to create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.”³³ The court rejected broad arguments that mere universal condemnation suffices to make drug trafficking a violation of the law of nations and thus found the statute unconstitutional as applied.³⁴

Sosa v. Alvarez-Machain (2004) confronted the limits of the Supreme Court’s power to define offenses.³⁵ The case dealt with the meaning of the Alien Tort Statute (ATS), enacted initially as part of the Judiciary Act of 1789. The law provided that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations, or a treaty of the United States.”³⁶ Lower courts had concluded that this statute authorized the judiciary to fashion civil causes of action for violations of international law. The Supreme Court disagreed, finding that Congress intended to allow for jurisdiction only over the few specific offenses against the laws of nations that existed at the time of the Founding, and concluded that the ATS is not a “mandate to seek out and define new and debatable violations of the law of nations.”³⁷

The Supreme Court has since resisted efforts to apply the Alien Tort Statute extraterritorially to punish conduct that occurs outside the United States. Such punishments could invite “reprisals” against the United States.³⁸ The Court has also declined to recognize private causes of action for a “narrow class of international norms” with particularly “definite content” comparable to those that commanded the attention of the Framers.³⁹

Open Questions

• Can Congress “define and punish only those violations of customary international law that were established at the Founding”?⁴⁰ Or does “the power granted under the Clause expand[] and contract[] with changes in customary international law”?⁴¹
• To what extent, if any, is Congress limited with respect to the offenses it defines by the law of nations, and how could this limitation be enforced?
• Could Congress justify domestic police powers on the basis of enforcing international human rights norms that govern the relations between a country and its citizens rather than the relations between states?⁴² This power would have implications even more expansive than the use of the Treaty Power questioned in Bond v. United States (2014).⁴³

1. Sarah Cleveland & William Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L. J. 2202 (2015). ↩︎
2. 4 Blackstone 68. ↩︎
3. E. de Vattel, The Law of Nations 165 (1758 ed., C. Fenwick transl. 1916). ↩︎
4. 21 J. Cont. Cong. 1136 (Nov. 16, 1781). ↩︎
5. 1 Farrand’s 19. ↩︎
6. Id. at 316. ↩︎
7. 21 J. Cont. Cong. 1137 (Nov. 23, 1781). ↩︎
8. 2 Farrand’s 312. ↩︎
9. Id. at 595. ↩︎
10. Id. at 614. ↩︎
11. Id. ↩︎
12. Id. at 615. ↩︎
13. Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause, 106 Nw. U.L. Rev. 1675, 1705–06 (2015). ↩︎
14. Farrand’s 615 (emphasis in original). ↩︎
15. An Act for the Punishment of Certain Crimes Against the United States, ch. 9, §§ 26, 28, 1 Stat. 112 (1790). ↩︎
16. 1 Stat. 381. ↩︎
17. 120 U.S. 479 (1887). ↩︎
18. 4 Elliot’s 556–57. ↩︎
19. 175 U.S. 677, 700 (1900). ↩︎
20. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). ↩︎
21. 18 U.S. 153, 160 (1820). ↩︎
22. Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479 (1998). ↩︎
23. 317 U.S. 1 (1942). ↩︎
24. 548 U.S. 557 (2006). ↩︎
25. Id. at 602–10. ↩︎
26. 120 U.S. 479 (1887). ↩︎
27. United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1250 (11th Cir. 2012). ↩︎
28. 120 Stat. 2600. ↩︎
29. Al Bahlul v. United States, 792 F.3d 1, 15 (D.C. Cir. 2015). ↩︎
30. United States v. Ahmed, 94 F. Supp. 3d 394, 415 (E.D.N.Y. 2015). ↩︎
31. United States v. Laden, 92 F. Supp. 2d 189, 220 (S.D.N.Y. 2000) (emphasis added). ↩︎
32. 46 USC § 70502(c)(1) & 70503. ↩︎
33. Bellaizac-Hurtado, 700 F.3d at 1250. ↩︎
34. Id. at 1257. ↩︎
35. 542 U.S. 692 (2004). ↩︎
36. 1 Stat. 73, 77. ↩︎
37. Id. at 728. ↩︎
38. Jesner v. Arab Bank, PLC, 584 U.S. 241, 292 (2018) (Gorsuch, concurring). ↩︎
39. Nestle USA, Inc. v. Doe, 593 U.S. 628, 637–38 (2021); id. at 644–45 (Gorsuch, concurring). ↩︎
40. Bellaizac-Hurtado, 700 F.3d at 1253. ↩︎
41. Id.; J. Andrew Kent, Congress’s Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843, 847 (2007). ↩︎
42. Anthony J. Bellia, Jr., & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009); Ernest A. Young, Historical Practice and the Contemporary Debate Over Customary International Law, 109 Colum. L. Rev. Sidebar 31, 37–38 (2009). ↩︎
43. 572 U.S. 844, 854 (2014). ↩︎