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Abstract:
The past decade has seen an enormous expansion of the doctrine of universal jurisdiction. Universal jurisdiction is an exception to traditional rules of international jurisdiction; it allows any nation, even one with no connection to the offense, to try people suspected of extraordinarily heinous crimes. High-profile examples of universal jurisdiction include the Belgian proceedings against Israeli Prime Minister Ariel Sharon, the international tribunals for war crimes in Rwanda and Yugoslavia, and the growing docket of human rights litigation in U.S. federal courts. Courts that have joined in this expansion of universal jurisdiction, and the scholars who support them, rely on one key precedent - the law of piracy - to legitimize departing from the traditional jurisdictional requirements.

For hundreds of years, piracy was the only offense that was considered universally cognizable. The new universal jurisdiction (NUJ) uses piracy as its precedential and conceptual foundation. Piracy, the argument goes, merely illustrates the broader principle that whatever offenses most shock the conscience of a given era can be prosecuted by any nation. Exercises of universal jurisdiction can have dangerous consequences because they can be seen as encroachments on another nation's sovereign prerogatives. The piracy analogy maintains that at least for heinous crimes, this concern is unfounded: the jurisdictional treatment of piracy proves that nations do not mind ceding jurisdiction over people suspected of egregiously vile offenses.

This Article refutes the generally-accepted view that piracy became a universally cognizable offense because of its heinousness, and by extension, the notion that piracy law can provide a valid precedent or model for the NUJ. The Article shows that piracy existed side-by-side with privateering, a form of state-licensed piracy that was entirely legal under the law of nations. That piracy was considered acceptable when committed with sovereign authorization shows that piratical conduct was not viewed as innately heinous in the sense that NUJ crimes are. Furthermore, the Article explains that piracy is simply a species of robbery, and was never regarded as significantly more heinous than robbery is regarded today.

The fallacy of the piracy analogy casts into doubt the soundness of many cases that use the analogy to justify their expansion of universal jurisdiction. It also has cautionary implications for international tribunals that might seek to exercise universal jurisdiction, such as the International Criminal Court.

International law, Constitutional law, Criminal law & procedure

Abstract:
As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight pirates, a variety of other international legal rules - ranging from the Geneva Conventions to refugee law to the Law of the Sea Treaty - are in tension with this goal. These tensions are daunting enough to keep nations from even trying.

The legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. The War on Piracy and the War on Terror both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates' prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of targeted killings of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in just the first few months of the current Somali campaign.

The legal response to terrorism has been among the most contentious public issues in recent years. It is widely asserted that trying foreign terrorists in civilian courts is a workable response. However, the failure of this same strategy in the case of piracy - indeed, the refusal of the very nations that promote such an approach for terrorism to even attempt it with piracy - suggests that the civilian approach to terrorism will be extraordinarily challenging. For a variety of reasons, piracy would be far easier to deal with than terrorism. Thus, the legal impediments to dealing with piracy serve as an ideal case study for the future of terrorism prosecutions.

terrorists, piracy, detention, unlawful combatants

Abstract:
This article presents an economic perspective on universal jurisdiction ("UJ"). Under traditional jurisdictional rules, only nations with a direct connection to a crime can prosecute it. These limits amount to a "standing" doctrine for states. The relatively new notion of UJ allows all nations in the world to seek redress for certain serious international crimes, even if those nations were in no way affected. Thus, UJ amounts to a repeal of standing requirements for certain kinds of cases.

Quite often, the resolution of international problems involves some nations trading their right to prosecute certain international crimes in exchange for something more valuable. Such trades notably come in the context of amnesties that induce a despotic government to leave office, or belligerents in a civil war to law down their arms. But in fact, it is common-place for states and international criminal tribunals to waive or not exercising prosecutorial entitlements when the net benefits of prosecution are outweighed by the net costs. Such "transactions" can take many forms, such as charge bargains, exile, and, most commonly, simple sub rosa non-prosecution. And as this article shows, while controversial among academics, such trades have been made in most post-conflict situations, and have been encouraged and brokered by the international community, including the U.N.

While such deals are socially valuable - the increase the utility of the states and other parties involved - UJ makes them much harder to reach. This is because UJ greatly increases transaction costs by making ownership of the relevant entitlement - the right of to prosecute an international crime - broadly shared. When all nations effectively co-own the prosecutorial entitlement, full amnesty requires making deals with all. This in turn encourages states to strategically hold out by threatening prosecution. The increase in transaction costs may block even Pareto optimal deals.

universal jurisdiction, amnesty, impunity

Abstract:
The central principle of the General Agreement on Tariffs and Trade, now incorporated into the rules of the World Trade Organization, is the prohibition of discriminatory restrictions on international trade. However, some scholars contend that GATT applies only to trade restrictions adopted to protect domestic industry from foreign competition or for other economic purposes, and not to restrictions adopted for non-economic foreign policy reasons. While this purported foreign policy exception has been endorsed by the Restatement, it has received little critical attention from commentators. Recent developments in the WTO have made the legitimacy of the exception a matter of pressing concern not just to scholars of international trade law but to the free trade system itself. Saudi Arabia is expected to be admitted into the organization in the next few years. However, Saudi Arabia maintains a total boycott of Israel and a secondary and tertiary boycott of firms and individuals in the United States and elsewhere that trade with Israel. The boycott is part of the Arab League Boycott of Israel. This Article uses the occasion of Saudi Arabia's accession bid to examine the unresolved issue of whether GATT applies to trade restrictions imposed for purely foreign policy purposes. It finds that such an exception would be inconsistent with the language, structure, usage, purpose, and history of GATT. This in turn shows that Saudi Arabia's secondary and tertiary boycott violates WTO rules. Thus the accession of nations, like Saudi Arabia, that maintain the secondary and tertiary prongs of the Arab League Boycott would undermine the WTO's commitment to free trade and injure existing members. The Article concludes that these harms could not be redressed within the WTO framework, and thus the best way to avoid them is to condition accession on a termination of the secondary and tertiary boycott.

international law, international trade

Abstract:
In Roper v. Simmons the Supreme Court relied heavily on foreign and international law to interpret the United States Constitution. Many leading proponents of internationalist interpretation point to the Declaration of Independence's language about paying a decent respect to the opinions of mankind as evidence that the nation's Founders would have approved of using foreign law. Indeed, shortly after the Roper, Justice Ginsburg said the case represented the greatest victory for those who argue the Declaration approves of giving legal weight to the opinions of mankind.

The oft-made argument that Declaration supports American judges looking to foreign law is based on lifting the relevant passage from its textual and historical context. In fact, the Declaration does not remotely suggest that Americans should follow or adopt the "opinions of mankind." To the contrary, it shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.

Moreover, the Declaration was specifically drafted as an appeal for arms and money. The Founders understood that these would only be forthcoming if Britain's Continental enemies thought the Colonists were committed to the fight for the long haul. Thus the opinions in question are opinions about the likely perseverance of the Colonists, not the legality of their rebellion. And the mankind in question is France and Spain.

If the Declaration reveals anything about the relevance of foreign law to constitutional interpretation - which is unlikely, as it predated the Constitution - it suggests that the Founders' interest in the opinions of mankind did not involve their opinions on the legality of American actions. Any interest in foreign opinion also turned entirely on the ability and inclination of the foreign states to provide concrete support for America.

Of course, the Declaration of Independence itself does not dispose of the question of whether judges should follow foreign law. However, the cavalier misrepresentation of a basic document of the Founding by Justices of the Supreme Court and leading scholars may raise concerns about how faithfully or accurately they would interpret the more esoteric and broader universe of foreign legal materials.

constitution, foreign law, international law, Declration of Independence

Abstract:
The Supreme Court partially settled a long-standing dispute about the purpose and scope of the Alien Tort Statute (ATS) when it decided Sosa v. Alvarez-Machain at the end of its 2004 term - but it raised an equally important set of questions, ones that bear greatly on the future of ATS litigation and the foreign relations of the United States. Sosa held that the ATS is solely a jurisdictional statute that does not provide a general cause of action for violations of international law. However, backtracking on its "only jurisdictional" interpretation, it held out the possibility that the statute might allow judicial recognition of a narrow subset of modern customary international law (CIL) causes of action. That subset would be those substantially analogous to those for which the First Congress specifically intended to ATS to provide jurisdiction: offenses against ambassadors, violations of safe passage, and piracy. However, the Court did not set out a clear method for determining whether a CIL norm sufficiently resembles the historic offenses, leaving the "ultimate criteria" for future resolution.

This Article fleshes out the historical test contemplated by Sosa by identifying the defining characteristics of the three historic offenses, which are now the characteristics that a CIL norm must posses to be actionable under the ATS. Piracy is jurisdictionally and conceptually most closely related to the modern human rights offenses that have been litigated under the ATS thus far. It was the only universal jurisdiction offense known to common law and the law of nations, and thus the Article pays particular attention to the characteristics that gave it this unique status. A combination of six characteristics allowed piracy to become a universally cognizable offense against the law of nations by minimizing the problems and dangers that would otherwise accompany universal jurisdiction.

First, piracy was a crime in the municipal law of all nations; international law merely reflected an already ubiquitous condemnation of the conduct. Second, piracy had a narrow and universally-agreed on definition; the conduct it proscribed was well understood, thus preventing conflicts between states about the propriety of universal jurisdiction. Third, all nations made piracy punishable by death. Thus universal jurisdiction would not lead to forum shopping or disputes among nations as to what punishment should be inflicted. Fourth, and perhaps most importantly, pirates were private actors who had refused the protection of their home states by failing to obtain a letter of marque. They could expect little succor from their home state, since they had turned their back on it, and thus a prosecuting nation would not expect the home state to take offense. Fifth, piracy occurred on the high seas. While this did not make traditional jurisdictional limitations moot, it did make conventional enforcement difficult, and thus universal jurisdiction might seem an attractive auxiliary to domestic prosecution. Finally, pirates indiscriminately attacked the ships of all nations, as they were not constrained by ties of national loyalty or the limitations contained in a letter of marque. Thus many maritime states had a particularly strong interest in punishing pirates because their ships could fall prey to them, and all states would be economically harmed by disruptions of international commerce.

Having thus articulated the specifics of Sosa's historical test, the Article administers it to modern human rights offenses, and finds that they do not satisfy the test. New CIL norms do not posses one or more of the important properties that made piracy safe for UJ and enforceable by common law. Thus providing redress for modern CIL offenses would entail profound dangers not contemplated by the First Congress they enacted the ATS with the limited purpose of allowing suits dealing with piracy, ambassadors, and safe conducts. Comparing piracy to modern international law norms reveals that new causes of action under the ATS cannot be created without abandoning the fidelity to the historical paradigms mandated by the Court. The Court in Sosa may as well have shut the door to new causes altogether, for the door that it leaves "ajar subject to vigilant doorkeeping" has nothing behind it.

international law, universal jurisdiciton, Alien Tort Act, piracy

Abstract:
This Article provides a novel explanation of the function of standing doctrine in public law. Standing restrictions bar suits challenging governmental conduct that harms many people in an similar fashion, or that causes only an inchoate harm to the plaintiff. The voluminous scholarship on standing has been nearly uniformly critical of doctrine. Leading academics and judges have denounced it as useless and incoherent, and calls for its abolition abound.

The Article uses economic analysis to show that standing prevents potentially inefficient dispositions of constitutional entitlements that result from problems of high transaction costs and strategic behavior. Standing plays this role when a single governmental action infringes on the rights of many people with conflicting preferences about how and whether to use their rights. Some may prefer to exercise their right affirmatively; others may prefer to waive them. In this situation, when one person seeks injunctive relief, his exercise of his rights effectively determines the exercise of the individual rights of everyone in the affected class. Thus every individual rights-holder, in the absence of standing restrictions, would have veto power over a government action that affects the rights of many, making strategic holdout likely and efficient bargaining around an injunction nearly impossible. Standing allows courts to bypass the problems of high transaction costs and strategic behavior by attempting to replicate the outcome that would be reached in a low-transaction cost environment - the outcome in the sense of whether the government action proceeds or not.

Thus contrary to conventional wisdom, standing has significant, autonomous, and public-regarding functions. The analysis presented here also helps explain many of the mysteries of standing: Why should inchoate injuries be less justiciable than tangible ones? Isn't it paradoxical that justiciability exists when a few people are harmed, but not when a great many are harmed?

The Article also shows that while eliminating the doctrine would result in significant social costs, standing is itself not an costless solution. Thus the paper considers other potential solutions, such as using liability rules, the typical prescription for problems arising from high transaction costs. These solutions are found to also have serious problems.

standing, justiciability, transaction costs, constitutional law

Abstract:
This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply.

The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value.

Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles.

The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.

customary international law; social norms

Abstract:
In what may be a unique exception to the mitigation requirement, plaintiffs claiming damages for emotional distress need not show that they have taken any steps to mitigate their damages. The absence of mitigation rules creates a previously unrecognized tendency towards overcompensation in emotional distress claims.
The mitigation rule (also known as the doctrine of avoidable consequences) requires injured parties to take all reasonable measures to minimize their damages. Mitigation is a well-established and universal principle of damages; it limits recovery in every conceivable type of action for money damages. The mitigation requirement serves to limit plaintiffs' ex post moral hazard, which arises because defendants serve as insurers of plaintiffs' losses. However, despite the rapid expansion of liability for emotional distress, courts have failed to apply the mitigation rule to such damages. The absence of mitigation rules for emotional distress creates particular problems of moral hazard that courts have not yet considered. Any evaluation of the advisability of recovery for emotional distress must take into account the absence of the traditional legal mechanism for limiting plaintiffs' moral hazard.

Perhaps one reason mitigation has not been applied to emotional distress is the difficulty of crafting a workable definition of what such mitigation would look like. Some obvious definitions of mitigation, like seeking psychiatric treatment, would likely create more problems than they would solve. Thus measures to limit moral hazard in emotional distress must take the form on limitations on the scope of recovery or the amount of liability.

emotional distress, mitigation, avoidable consequences, moral hazard, damages, remedies, nonpecuniary injuries

Abstract:
This Article examines whether the Define and Punish clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's Piracies and Felonies provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the Piracies and Felonies powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal jurisdiction. Moreover, the limits on Congress's power under the Felonies power are directly applicable to the more widely-used power to punish Offenses Against the Law of Nations.

The Article shows that the Define and Punish Clause only clearly allows Congress to criminalize purely foreign conduct in the case of piracy. Certain interpretations of the clause would also allow Congress to universally legislate regarding other crimes that, like piracy, international law clearly treats as universally cognizable. But the clause certainly does not allow regulating foreign conduct that has no connection to the U.S. if it is not a universal crime in international law. Even the liberal interpretation of the provision casts serious doubt on the constitutionality of several major statutes applying UJ to drug and terrorism-related offenses that do not involve the U.S. in any way. The stricter interpretation would foreclose much of the foreign litigation under the Alien Tort Statute.

The analysis begins with the text of Clause 10, which contains a striking double redundancy. All piracies are felonies, and also offenses against the law of nations. Piracy, however, was the only crime that fell under universal jurisdiction. By singling out Piracy, Clause 10 refers to the one thing that makes it different from other felonies and offenses. This suggests that the clause gives Congress the power to punish piracy the same way as all other nations did - universally. But by listing piracy separately from the two categories of which it is a part, the Constitution indicates that Congress's universal jurisdiction powers over piracy should not be imputed to other felonies or offenses.

This reading of the clause comports with how it was understood by the Framers and the jurists of the early Republic. The Article brings together an exhaustive array of sources bearing on the jurisdictional scope of Clause 10. It charts its origins and purposes in the Articles of Confederation, its reception at constitutional convention and ratifying process, and the subsequent understanding of it by the leading legal authorities of the time. The Article looks to the views not only of jurists like James Wilson, John Marshall and Joseph Story, but also to the interpretation put on the clause by the executive and legislative branches. These authorities had to confront the limits of the clause against the backdrop of some of the most daunting foreign affairs challenges of the day, such as the preservation of U.S. neutrality, and the campaign against the transatlantic slave trade. Almost without exception, the sources support the view that Congress could only punish purely foreign conduct in the case of piracy.

universal jurisdiction, extraterritorial jurisdiction, Define and Punish Clause, Maritime Drug Law Enforcement Act

Abstract:
This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner's consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both.

The Article locates liability rules in diverse areas such as the First Amendment prior restraint doctrine, the Third Amendment, Fourth Amendment search and seizure rules, the Due Process Clauses, the Takings Clause of the Fifth Amendment, the Self-Incrimination Clause of the Fifth Amendment, and the Excessive Bail Clause of the Eighth Amendment. Thus constitutional theory's insistence on property rule protection fails to account for how some constitutional values are actually protected. This Article develops a richer understanding of the relationship between constitutional remedies and constitutional entitlements. The transaction cost perspective on constitutional law reveals previously unnoticed connections between various doctrines, and provides a new criterion for evaluating their strengths and weakness.

This Article also presents new evidence that the Constitution does not require property rule protection and can be satisfied with liability rules. It shows that the oft-overlooked Third Amendment explicitly mandates property rule protection for the entitlement it defines. This property rule, together with the Takings Clause's explicit liability rule, shows that for other entitlements the Constitution does not require any particular form of protection. The one explicit property rule and the one explicit liability rule define the second dimension in constitutional law.

Constitutional law

Abstract:
The United States' participation in international courts, and in particular, the potential accession to the International Criminal Court (ICC), which would have jurisdiction over U.S. nationals and U.S. territory, raises serious constitutional questions. These questions were thoroughly analyzed in the course of the debate about the constitutionality of international courts proposed by Britain in the early 19th century. This episode has never been examined by legal scholars or historians, despite its great relevance to a current legal and policy debates. This Article presents that historical debate over the slave trade courts, and draws lessons for the present legal questions.

The permissibility of joining international tribunals spans several major constitutional issues: delegating federal powers to supernational institutions; the limits if any on what can be done through the Treaty Power; and vesting judicial power in non-Article III courts. While these are all famously confused and contentious areas of law, a preponderance of scholarly opinion concludes that the Constitution does not bar joining international courts, the ICC included. However, the jurisprudence and literature on these questions has entirely neglected an important evidence.

In the wake of the Napoleonic Wars, a network of international tribunals to punish slave trading as created. Many European nations joined these "mixed courts." The United States, however, saw the courts as unconstitutional. It refused to join the mixed court system for forty-five years, spanning eleven presidencies. The constitutional objections were formulated by some of the leading statesmen of the early Republic, and even some members of the Founding Generation. They raised several constitutional objections of both structural and individual rights varieties: that the court would not be reviewable by the "Supreme" Court; and, even more importantly, that it would subject U.S. nationals to criminal trials without jury trial and other Bill of Rights protections. These objections were held unanimously in the distinguished Cabinet of James Monroe; shared by Congress; and undisputed by anyone for decades.

This suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would be unconstitutional. This does not mean that U.S. participation in international criminal courts would always be unconstitutional. Those interested in seeing the United States participate in such courts will find in the slave trade court episode not a constitutional straitjacket but rather a guide to tailoring their jurisdiction to avoid constitutional constraints. This Article unpacks the constitutional objections stated at the time and shows that some but not all international criminal courts are likely to be unconstitutional, while non-criminal international tribunals are far less problematic.

Aside from the precedential significance, the nineteenth century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions like the permissibility of non-Article III courts; constitutional restraints on the Treaty Power; and the binding effect of judgments of international courts. Additionally, nearly every argument made today about American exceptionalism in international law and the conflict between domestic and international law was rehearsed nearly 200 years ago.

treaty power, international courts, international delegations, non-Art. III courts, human rights

Abstract:
Constitutional law assumes that rights should always be protected by property rules - that is, the government can only take them with the individual's consent. This Article extends to constitutional law the insights of Calabresi and Melamed's famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law's insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law.

Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well as deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.

Abstract:
This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) - that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely foreign conduct.

Courts and commentators have suggested that the Define and Punish clause of the Constitution authorizes the MDLEA. This paper is the second in a two-part project examining the limits of Congress's power under the Define and Punish Clause and related issues - the first academic work examining the nature and scope of these powers. The companion Article, The Define and Punish Clause and Universal Jurisdiction: Recovering the Lost Limits, demonstrates that the Constitution's Define and Punish clause only allows for UJ over - at most - crimes that international law has established as universally cognizable. The present Article applies that understanding to the MDLEA. It shows that the MDLEA exceeds the limitations of the Define and Punish clause described in the companion article, as well as exceeding the limits of the clause in some additional ways. It also considers other potential Art. I bases for the statute.

The issue is of significant practical and theoretical importance. From a criminal law perspective, hundreds if not thousands are in jail under this statute, which lies at best at the horizon of Congress's Art. I powers. Furthermore, exploring the potential Art. I basis for the MDLEA exposes several important and novel questions of constitutional and international law in addition to the issue of UJ under Clause 10 explored in the companion Article. Can the foreign commerce clause be used to regulate conduct with no U.S. nexus? Can a law be considered an exercise of Congress's treaty power if passed a decade before the relevant treaty is ratified; that is, can a treaty retroactively validate a statute? Do Senate declarations made when ratifying count as part of the treaty for the purpose of Congress's lawmaking powers? Can Congress define a crime as an offense against international law when international law does not seem to treat it as such? To what extent can Congress assert UJ over acts committed not just in international waters but in foreign territory? Thus the analysis of the MDLEA offers a tour of novel and unresolved issues in Art. I's foreign relations provisions.

universal jurisdiction, extraterritorial jurisdiction, and Define and Punish Clause, Maritime Drug Law Enforcement Act

Abstract:
The prohibition on territorial conquest is a cornerstone of the international legal order. The United Nations Charter bans the use of force as a tool of international relations, even when used to rectify prior injustices. Thus territory taken by force has the status of ill-gotten gains, and cannot be kept by the victor. An important corollary is that third-party states cannot recognize the sovereignty of the conqueror or otherwise treat the acquisition as lawful.

Despite the Charter, nations sometimes acquire or try to acquire territory through force.

This paper, part of the proceedings of the American Society of International Law's 102nd annual meeting, discusses the preliminary results of an ongoing research effort to systematically explore the international response to every consummated conquest since the entry into force of the UN Charter. The question is, given a conquest, what is the expected international reaction?

This project classifies international reactions as condemnatory, accepting, or silent/acquiescing. There are close to 20 conquests depending how one counts (deciding what counts as a conquest is perhaps the major methodological issue of this project).

The preliminary results are that systematic international condemnation - a resolution of the U.N. Security Council or General Assembly - occurs in under 1/3 of the cases. On the other hand, some conquests have won overwhelming international acceptance; these surprisingly include both conquests of entire nations (Tibet and South Vietnam.)

While territorial conquest has been relatively infrequent in the post-World War II period, most conquests have not been condemned by the international community. Indeed, open acceptance is as common as condemnation. The small likelihood of international opposition to conquest suggests that the relatively low incidence of conquest should be attributed to causes other than the non-recognition norm. This does not mean that the anti-conquest norm has no force or "compliance pull," but it does suggest that condemnation and nonrecognition are not likely to play a significant role in decisions about whether to conquer.

conquest, territorial change, aggression

Abstract:
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting system of admiralty.

Seen in this historic light, admiralty, especially in the early years of the Republic, was an anomalous island of internationalism within the constitutional system. Thus to the extent that the history of foreign relations law is intertwined with admiralty, the lessons of this history cannot be simply transposed to modern foreign relations jurisprudence. This could have potentially significant implications, given that a list of canonical nineteenth century foreign relations cases reads like a port registry: The Schooner Exchange, Charming Betsy, La Jeune Eugenie, The Antelope, and The Paquete Habana.

This Article is part of the symposium at the Saint Louis University School of Law on "The Use and Misuse of History in Foreign Relations Law," and comments on Prof. Ingrid Wuerth's An Originalism for Foreign Affairs? Prof. Wuerth questions the applicability of originalism. This Article argues that the originalist method of constitutional interpretation applies to foreign affairs questions, and not just to matters of individual rights. However, as the admiralty example developed here shows, Prof. Wuerth is correct that foreign affairs originalism requires a great sensitivity to historical context. Ideas developed within a particular legal framework may not apply when that framework no longer exists.

originalism, admiralty, universal jurisdiction