Defining and Punishing Offenses Under Treaties
Sarah H. Cleveland
Columbia Law School
William S. Dodge
University of California Hastings College of the Law
July 31, 2014
124 Yale Law Journal, Forthcoming
UC Hastings Research Paper No. 62
One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments, and the scope of Congress’s constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing the statute to respect federalism, but these questions are unlikely to go away. This article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress’s constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Clause is limited to customary international law. But the Framers of the Constitution understood the law of nations to include both custom and treaties, or what they called “the conventional law of nations.” The history and purpose of the Offenses Clause show that it was intended to reach treaties and — despite the prevailing view in the academy — Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.
Number of Pages in PDF File: 83
Date posted: August 16, 2013 ; Last revised: August 11, 2014
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