A phrase plumbed in myriad opinions on the Alien Tort Statute now has surfaced in a criminal case. The phrase is “the law of nations,” a term favored in early American legal instruments. The question is this:

May the United States prosecute persons with no U.S. ties for trafficking in cocaine found on a ship in another country’s territorial waters, absent evidence that the ship either sailed the high seas or was destined for the United States?

No, answered the U.S. Court of Appeals for the 11th Circuit in United States v. Bellaizac-Hurtado (Nov. 6, 2012).

Defendants  had been charged under the Maritime Drug Law Enforcement Act, a 1986 statute that makes it a federal crime to “knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board … a … vessel subject to the jurisdiction of the United States.” The government sought to anchor jurisdiction in Article I, § 8[10] of the Constitution, by which “Congress shall have Power … To define and punish … Offences against the Law of Nations.”

Judge William H. Pryor’s opinion for the panel reasoned that “although the Supreme Court has never held that the ‘law of nations’ is synonymous with ‘customary international law,’ its decision in Sosa v. Alvarez-Machain (2004) confirms that it is.” The appellate panel proceeded to rule – reversing the court below – that Congress cannot rely on the Offences Clause except to proscribe conduct that violates customary international law. Whether viewed through the lens of the 18th or the 21st century, drug trafficking was deemed to fall below the substantive state-practice-plus-opinio-juris threshold of customary international law. Cited were sources as varied as William Blackstone and the Rome Statute of the International Criminal Court.

In a separate opinion that tracked Justice Stephen G. Breyer’s concurrence in Sosa, Judge Rosemary Barkett stressed what she termed the “jurisdictional component” of customary international law. The only principle of extraterritorial jurisdiction at play was universality, she noted; she then demonstrated that while offenses such as genocide, crimes against humanity, and war crimes are subject to universal criminal jurisdiction, drug trafficking is not. Thus Barkett concurred that the prosecution in Bellaizac-Hurtado was unconstitutional.

I found these opinions fascinating (not the least because I had grappled with the MDLEA while representing the defendant in United States v. Juda (9th Cir. 1995)). Indeed, the opinions invite an experts’ roundtable on this case of 1st impression, which seems destined for further review.

Among the many things worth further discussion:

► Whether “law of nations” in the Offences Clause ought to be construed to correspond with the 1st Judiciary Act. Drafted by many of the same men who framed the Constitution, § 9 of that 1789 Act stated: “district courts shall have … cognizance … of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

The panel in Bellaizac-Hurtado purported to follow the Supreme Court’s interpretation of that provision, known today as the Alien Tort Statute. But the panel’s method was curious. The panel analogized “law of nations” to “customary international law” alone, even as it acknowledged that the Court in Sosa never so ruled. A broader view, one that encompassed other forms of international law, such as widely ratified treaties, might have yielded a different result. (The panel determined that ratification – by the United States and 187 others among the world’s nearly 200 states – of the 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was not sufficient. It thus seemed to call into question other U.S. statutes implementing treaties that outlaw hostage-taking and other cross-border offenses. And panel’s view that because drugs still are trafficked, the wide acceptance of the U.N. treaty doesn’t constitute meaningful state practice is, well, odd.)

What is more, the panel failed to mention that the interpretation of “law of nations” in Sosa is especially demanding notwithstanding that the ATS sounds only in tort: the black-letter definition of ordinary customary international law requires only that state practice be “general and consistent,” while the Court in Sosa favored adjectives, such as “specific” and “universal,” that typically are reserved for higher-order, jus cogens norms. Application of the standard set in Sosa likely would have entrenched the panel’s construction.

► How substance and jurisdiction interrelate. The opinions show that links to the forum state matter. Some judges in the United States may find it difficult to determine the cognizability of an extraterritorial wrong without considering the effects, if any, on the United States. This was true not only in Bellaizac-Hurtado, but also in Sosa, and it deserves further study.

► Whether the Offences Clause was meant to receive an originalist reading. Judge Pryor’s opinion dwells on circa-1780s understandings of terms like “universal” and “law of nations.” Yet this may not be the only relevant time frame, as the opinion’s citations to articles by J. Andrew Kent, Charles D. Siegal, and Beth Stephens underline. Not only does international law prefer an evolutionary approach, but the Constitution’s framers also may have understood, as Siegal put it, “that the list of international law offenses would expand with time.” Meriting discussion is the proper navigation of these interpretive cross-currents.

► What consequences flow from the finding of unconstitutionality. Though the fact pattern seems not to have arisen before in an appellate court, it does seem capable of repetition given the United States’ penchant for overseas policing. Consider the panel’s recitation of facts, which begins:

‘During a routine patrol of Panamanian waters in 2010, the United States Coast Guard observed a wooden fishing vessel ….’

(credit for photo made in Panamanian territorial waters off Colón, the country’s 2d largest city) Should the holding in Bellaizac-Hurtado stand, U.S. prosecutions could not go forward even with the foreign state’s consent. Perhaps rationales for such “routine” deployments of U.S. agents also would be implicated.

This is a judicial voyage worth charting.