In U.S. v. Bellaizac-Hurtado, No. 11-14049 (Nov. 6, 2012), the Court reversed convictions for cocaine trafficking offenses in violation of 46 U.S.C. §§ 70503(a), 70606; 21 U.S.C. § 960(b)(1)(B), that occurred in the territorial waters of Panama. The Court held that Congress cannot constitutionally proscribe such drug trafficking offenses under its Article I power to “define and punish . . . Offences against the Law of Nations.”
The Court explained that the power to “define” offenses does not give 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.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.
[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].