[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 11-14049; 11-14227; 11-14310; 11-14311

________________________

D.C. Docket No. 1:10-cr-20196-JLK

UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

YIMMI BELLAIZAC-HURTADO, 

a.k.a. Fausto, 

a.k.a. El Zarco, 

a.k.a. El Colorado, 

LUIS CARLOS RIASCOS-HURTADO,

PEDRO ANGULO-RODALLEGA,

a.k.a. Pepito,

ALBEIRO GONZALEZ-VALOIS,

a.k.a. Tocayo,

llllllllllllllllllllllllllllllllllllllDefendants - Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(November 6, 2012)

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Before BARKETT and PRYOR, Circuit Judges, and BATTEN,* District Judge.

PRYOR, Circuit Judge:

This appeal presents a novel issue about the scope of congressional power to 

proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46 

U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and 

punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as 

applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe 

Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in 

the territorial waters of Panama. Because we conclude that drug trafficking is not 

an “Offence[] against the Law of Nations” and that Congress cannot 

constitutionally proscribe the defendants’ conduct under the Offences Clause, we 

vacate their convictions.

I. BACKGROUND

During a routine patrol of Panamanian waters in 2010, the United States 

Coast Guard observed a wooden fishing vessel operating without lights and 

without a flag. The Coast Guard informed the Panamanian National Aero-Naval 

Service of the vessel. The Panamanian Navy pursued the vessel until its occupants

abandoned the vessel and fled into a jungle. When members of the Panamanian 

Navy searched the vessel the next morning, they discovered approximately 760 *

Honorable Timothy C. Batten, Sr., United States District Court for the Northern District of 

Georgia, sitting by designation.

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kilograms of cocaine. The Panamanian National Frontier Service searched on land 

for the occupants of the abandoned vessel and arrested Bellaizac-Hurtado, AnguloRodallega, Gonzalez-Valois, and Riascos-Hurtado in various locations on the 

beach and in the jungle. After an exchange of diplomatic notes, the Foreign 

Ministry of the Republic of Panama consented to the prosecution of the four 

suspects in the United States.

A federal grand jury indicted Bellaizac-Hurtado, Angulo-Rodallega, 

Gonzalez-Valois, and Riascos-Hurtado for conspiracy to possess with intent to 

distribute five kilograms or more of cocaine, and for actual possession with intent 

to distribute five kilograms or more of cocaine, on board a vessel subject to the 

jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. 

§ 960(b)(1)(B). The defendants moved to dismiss the indictment “based upon the 

lack of jurisdiction and the unconstitutionality of the Maritime Drug Law 

Enforcement Act as applied to [their] conduct.” A magistrate judge recommended 

that the motion be denied. The magistrate judge reasoned that the district court had 

jurisdiction because the defendants were operating a stateless vessel and that the 

Act was constitutional as applied because Congress and several courts had 

determined that drug trafficking was “universally condemned” by various nations 

with “reasonably developed” legal systems. The district court adopted the 

magistrate judge’s report. The district court also explained that section 70505 of 

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the Act “limits the actors that have standing to challenge the validity of an 

MDLEA prosecution on international law grounds.”

The defendants conditionally pleaded guilty to the conspiracy charge. The 

district court sentenced Bellaizac-Hurtado to imprisonment for 90 months, 

supervised release for five years, and a $100 fine; Angulo-Rodallega to 

imprisonment for 36 months, supervised release for two years, and a $100 fine; 

Gonzalez-Valois to imprisonment for 36 months, supervised release for two years, 

and a $100 fine; and Riascos-Hurtado to imprisonment for 25 months, supervised 

release for two years, and a $100 fine. The defendants appealed their convictions 

on the ground that the Act, as applied, exceeded the power of Congress under 

Article I, Section 8, Clause 10. We consolidated their appeals.

II. STANDARD OF REVIEW

“We review de novo the legal question of whether a statute is 

constitutional.” United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002). 

III. DISCUSSION

The United States argues that the Maritime Drug Law Enforcement Act, as 

applied to the defendants, is a constitutional exercise of the power granted to 

Congress “[t]o define and punish Piracies and Felonies committed on the high 

Seas, and Offences against the Law of Nations.” U.S. Const., Art. I., § 8, cl. 10. 

The Supreme Court has interpreted that Clause to contain three distinct grants of 

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power: the power to define and punish piracies, the power to define and punish 

felonies committed on the high seas, and the power to define and punish offenses 

against the law of nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153, 

158–59 (1820). The first two grants of power are not implicated here: piracy is, by 

definition, robbery on the high seas, United States v. Furlong, 18 U.S. (5 Wheat.) 

184, 198 (1820), and the Felonies Clause is textually limited to conduct on the high 

seas, see U.S. Const., Art. I, § 8, cl. 10. The United States relies instead on the 

third grant—the Offences Clause—as the source of congressional power to 

proscribe the defendants’ drug trafficking in the territorial waters of Panama. The 

question whether Congress has the power under the Offences Clause to proscribe 

drug trafficking in the territorial waters of another nation is an issue of first 

impression in our Court. 

We divide our discussion in two parts. First, we explain why the power of 

Congress to define and punish conduct under the Offences Clause is limited by 

customary international law. Second, we explain why drug trafficking is not a 

violation of customary international law and, as a result, falls outside of the power 

of Congress under the Offences Clause. 

A. Customary International Law Limits the Power of Congress to Define and 

Punish Crimes Under the Offences Clause.

The power granted to Congress in the Offences Clause is limited by 

customary international law for two reasons. First, the related Supreme Court 

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precedent and the text, history, and structure of the Constitution confirm that the 

power to “define” is limited by the law of nations. Second, the phrase “Offences 

against the Law of Nations” is understood today to mean violations of customary 

international law.

1. The Power of Congress to Define “Offences against the Law of Nations” Is 

Limited to Established Offenses Against the Law of Nations.

The power to “define” offenses against the law of nations does not grant 

Congress the authority to punish conduct that is not a violation of the law of 

nations. The Supreme Court has explained that the power to “define” in Article I, 

Section 8, Clause 10, is limited by the three specific subjects of the Clause. For 

example, the Supreme Court has explained that Congress may not define murder as 

“piracy” to punish it under the Piracies Clause:

Nor is it any objection to this opinion, that the law declares murder to 

be piracy. These are things so essentially different in their nature, that 

not even the omnipotence of legislative power can confound or 

identify them. Had Congress, in this instance, declared piracy to be 

murder, the absurdity would have been felt and acknowledged; yet, 

with a view to the exercise of jurisdiction, it would have been more 

defensible than the reverse, for, in one case it would restrict the 

acknowledged scope of its legitimate powers, in the other extend it. If 

by calling murder piracy, it might assert a jurisdiction over that 

offence committed by a foreigner in a foreign vessel, what offence 

might not be brought within their power by the same device? The 

most offensive interference with the governments of other nations 

might be defended on the precedent. Upon the whole, I am satisfied 

that Congress neither intended to punish murder in cases with which 

they had no right to interfere, nor leave unpunished the crime of 

piracy in any cases in which they might punish it . . . .

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Furlong, 18 U.S. (5 Wheat.) at 198. And, on the issue whether Congress must 

declare the conduct to be an offense against the law of nations to exercise its power 

under the Offences Clause, the Supreme Court has explained that “[w]hether the 

offense as defined is an offense against the law of nations depends on the thing 

done, not on any declaration to that effect by congress.” United States v. Arjona, 

120 U.S. 479, 488, 7 S. Ct. 628, 632 (1887).

This precedent is consistent with the original understanding of the word 

“define.” During the Founding period, the word “define” meant “[t]o give the 

definition; to explain a thing by its qualities” and “[t]o circumscribe; to mark 

limits.” Samuel Johnson, A Dictionary of the English Language, at DEF, DEF

(10th ed. 1792); see also Thomas Sheridan, A General Dictionary of the English 

Language, at DEF, DEF (1780) (“To Define . . . . To give the definition, to explain 

a thing by its qualities; to circumscribe, to mark the limit.”). These definitions 

reveal that the word “define” would not have been understood 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.

The records of the debates at the Constitutional Convention confirm that the 

Framers also understood the word “define” to be limited by international law. In 

an early draft of the clause, Congress would have been given the power “[t]o 

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declare the law and punishment of piracies and felonies &c.” 2 Records of the 

Federal Convention of 1787, at 315 (Max Farrand, ed. 1966). After Gouverneur 

Morris successfully moved to strike out “declare the law” and insert “punish,”

James Madison and Edmund Randolph moved to insert the power to “define.” Id.

at 316. Morris suggested that they should use the word “designate” as opposed to 

“define” because he felt that “define” was limited to the preexisting meaning of 

felonies. Id. But the delegates rejected this suggestion and adopted Madison and 

Randolph’s proposal to insert the more limited word “define.” Id. About one 

month later, the delegates considered a new draft of the clause, which granted 

Congress the power “[t]o define & punish piracies and felonies on the high seas, 

and ‘punish’ offences against the law of nations.” Id. at 614. Morris moved to 

strike out “punish” before the offenses provision, so that the offenses could also be 

definable. Id. Wilson objected on the ground that “[t]o pretend to define the law 

of nations which depended on the authority of all the Civilized Nations of the 

World, would have a look of arrogance” and “would make us ridiculous.” Id. at 

615. Morris responded by noting that “[t]he word define is proper when applied to 

offences in this case; the law of nations being often too vague and deficient to be a 

rule.” Id. (emphasis omitted). Although this last sentence might suggest that 

Morris believed that the word define would enable Congress to create offenses not 

already recognized as contrary to the law of nations, his statement a month earlier

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that the word “define” would limit the “law of nations” to its preexisting meaning

proves otherwise. See J. Andrew Kent, Congress’s Under-Appreciated Power to 

Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843, 899

(2007) (explaining that “Morris’s desire for prior notice and clear definition 

sound[ed] in the due process and legality principle concerns that we still have 

today about vague criminal statutes”). The insertion of the power to “define” 

enabled Congress to provide notice to the people through codification; it did not 

enable Congress to create offences that were not recognized by the law of nations.

The structure of the Constitution also confirms the limited power of 

Congress under the Offences Clause. If Congress could define any conduct as 

“piracy” or a “felony” or an “offence against the law of nations,” its power would 

be limitless and contrary to our constitutional structure. “The Constitution creates 

a Federal Government of enumerated powers. As James Madison wrote: ‘The 

powers delegated by the proposed Constitution to the federal government are few 

and defined. Those which are to remain in the State governments are numerous 

and indefinite.’” United States v. Lopez, 514 U.S. 549, 552, 115 S. Ct. 1624, 1626 

(1995) (citation omitted) (quoting The Federalist No. 45, pp. 292–93 (C. Rossiter 

ed. 1961)). “The enumeration of powers is also a limitation of powers, because the 

enumeration presupposes something not enumerated. The Constitution’s express 

conferral of some powers makes clear that it did not grant others. And the Federal 

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Government can exercise only the powers granted to it.” Nat’l Fed’n of Indep. 

Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 2577 (2012) (internal quotation 

marks and citation omitted). For that reason, we must interpret the Clause as 

consistent with the structure of our government of enumerated powers. See, e.g., 

United States v. Comstock, -- U.S. --, --, 130 S. Ct. 1949, 1956–58 (2010) (holding 

that a federal criminal law must, at least, be necessary and proper to the 

accomplishment of an enumerated power); see also Charles D. Siegal, Deference 

and Its Dangers: Congress’ Power to ‘Define . . . Offenses Against the Law of 

Nations’, 21 Vand. J. Transnat’l L. 865, 873–74 (1988) (“Congress possesses some 

discretion in establishing the boundaries of offenses that are unclear, but Congress 

may not create offenses where none exist.”). For these reasons, we look to 

international law to ascertain the scope of power granted to Congress under the 

Offences Clause.

2. The Phrase “Offences Against the Law of Nations” Is Synonymous With 

Violations of Customary International Law.

We and our sister circuits agree that the eighteenth-century phrase, the “law 

of nations,” in contemporary terms, means customary international law. 

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated on other 

grounds by Mohamad v. Palestinian Auth., __ U.S. __, 132 S. Ct. 1702, 1706 & 

n.2 (2012); Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 738 (9th Cir. 

2008); Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2 (2d Cir. 2003). And

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although the Supreme Court has never held that the “law of nations” is 

synonymous with “customary international law,” its decision in Sosa v. AlvarezMachain, 542 U.S. 692, 124 S. Ct. 2739 (2004), confirms that it is. See id. at 735 

(evaluating whether the “prohibition of arbitrary arrest has attained the status of 

binding customary international law” to determine whether Alvarez could bring a 

claim under the Alien Tort Statute). These decisions interpreted the Alien Tort 

Statute, instead of the Offences Clause, but the Alien Tort Statute was enacted by 

the First Congress and uses the same term of art—“the law of nations”—that is 

used in the Offences Clause. Given the proximity in time between the writing of 

these provisions and the substantial overlap between the delegates of the 

Constitutional Convention and the members of the First Congress, one would 

expect that the Framers understood the term “the law of nations” in the Offences 

Clause and the Alien Tort Statute to mean the same thing. The more difficult 

question involves how to determine whether a crime violates customary 

international law.

Our Court has referred to customary international law several times, but we 

have never defined it. See, e.g., Sinaltrainal, 578 F.3d at 1261; Aquamar S.A. v. 

Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1294–95 (11th Cir. 1999); 

Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996); Garcia-Mir v. Meese, 

788 F.2d 1446, 1448 (11th Cir. 1986); United States v. Postal, 589 F.2d 862, 869 

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(5th Cir. 1979). Five of our sister circuits have adopted the definition in the 

Restatement (Third) of Foreign Relations, which provides that customary 

international law is the “general and consistent practice of states followed by them 

from a sense of legal obligation,” Restatement (Third) of Foreign Relations 

§ 102(2) (1987). See Aziz v. Alcolac, Inc., 658 F.3d 388, 399 (4th Cir. 2011); 

United States v. Struckman, 611 F.3d 560, 576 (9th Cir. 2010); Buell v. Mitchell, 

274 F.3d 337, 372 (6th Cir. 2001); Sampson v. Federal Republic of Germany, 250 

F.3d 1145, 1149 (7th Cir. 2001); Comm. of U.S. Citizens Living in Nicar. v. 

Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988). 

We agree with our sister circuits that customary international law is 

determined by examining state practice and opinio juris:

Customary international law . . . consists of two components. First, 

there must be a general and consistent practice of states. This does 

not mean that the practice must be universally followed; rather it 

should reflect wide acceptance among the states particularly involved 

in the relevant activity. Second, there must be a sense of legal 

obligation, or opinio juris sive necessitatis. In other words, a practice 

that is generally followed but which states feel legally free to 

disregard does not contribute to customary law; rather, there must be a 

sense of legal obligation. States must follow the practice because they 

believe it is required by international law, not merely because that 

they think it is a good idea, or politically useful, or otherwise 

desirable. 

Buell, 274 F.3d at 372 (internal quotation marks and citations omitted); see also

Aziz, 658 F.3d at 399; Doe v. Exxon Mobil Corp., 654 F.3d 11, 54 (D.C. Cir. 

2011); Swarna v. Al-Awadi, 622 F.3d 123, 144 n.12 (2d Cir. 2010); Struckman, 

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611 F.3d at 576; Sampson, 250 F.3d at 1149. As evidence of customary 

international law, we consider “the works of jurists and commentators who by 

years of labor, research, and experience have made themselves peculiarly well 

acquainted with the subjects of which they treat.” See Sosa, 542 U.S. at 734, 124 

S. Ct. at 2766–67 (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S. Ct. 290, 

299 (1900)).

Private criminal activity will rarely be considered a violation of customary 

international law because private conduct is unlikely to be a matter of mutual legal 

concern: 

Matters of “mutual” concern between States are those involving 

States’ actions performed . . . towards or with regard to the other—

matters that, as Judge Friendly aptly noted, concern the dealings of 

States “inter se.” Matters of “several” concern among States are 

matters in which States are separately and independently interested. 

Even if certain conduct is universally proscribed by States in their 

domestic law, that fact is not necessarily significant or relevant for 

purposes of customary international law. . . . Therefore, for example, 

murder of one private party by another, universally proscribed by the 

domestic law of all countries (subject to varying definitions), is not 

actionable . . . as a violation of customary international law because 

the nations of the world have not demonstrated that this wrong is of 

mutual, and not merely several, concern. 

Flores, 414 F.3d at 249 (internal quotation marks and citations omitted).

Courts must exercise restraint in defining violations of customary 

international law because customary international law is, by its nature, difficult to 

determine:

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The determination of what offenses violate customary international 

law . . . is no simple task. Customary international law is discerned 

from myriad decisions made in numerous and varied international and 

domestic arenas. Furthermore, the relevant evidence of customary 

international law is widely dispersed and generally unfamiliar to 

lawyers and judges. These difficulties are compounded by the fact 

that customary international law—as the term itself implies—is 

created by the general customs and practices of nations and therefore 

does not stem from any single, definitive, readily-identifiable source. 

All of these characteristics give the body of customary international 

law a soft indeterminate character that is subject to creative 

interpretation.

Flores, 414 F.3d at 247–49 (internal quotation marks and citations omitted))); see

Aziz, 658 F.3d at 400 (4th Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643 

F.3d 1013, 1015 (7th Cir. 2011). 

B. Because Drug Trafficking Is Not a Violation of Customary International 

Law, Congress Lacks the Power to Proscribe Drug Trafficking Under the 

Offences Clause.

The text of the Offences Clause does not resolve the question whether it 

limits the power of Congress to define and punish only those violations of 

customary international law that were established at the Founding or whether the 

power granted under the Clause expands and contracts with changes in customary 

international law. The Supreme Court has not resolved the issue in either of the 

two cases in which it upheld federal statutes as a constitutional exercise of the 

power granted under the Offences Clause. See Ex Parte Quirin, 317 U.S. 1, 27–28, 

63 S. Ct. 2, 10–11 (1942); Arjona, 120 U.S. at 488, 7 S. Ct. at 632. In both cases, 

the Court explained that the conduct at issue had been condemned as a violation of 

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the law of nations since the time of the Founding. Scholars have long debated 

whether the Offences Clause is affected by the later development of customary 

international law. See 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) (“[B]ecause the Constitution created a government of limited and 

enumerated powers, it seems potentially problematic that Congress’s regulatory 

powers under the Law of Nations Clause could change or expand as a concomitant 

of expanding or changing understandings of what today constitutes customary 

international law or punishable ‘offences’ against that law.”); Charles D. Siegal, 

Deference and Its Dangers: Congress’ Power to ‘Define . . . Offenses Against the 

Law of Nations’, 21 Vand. J. Transnat’l L. 865, 869 (1988) (“The limited evidence 

available suggests that the framers knew that the list of international law offenses 

would expand with time. It is doubtful, however, that they anticipated several 

developments which would undermine the balance implicit in the offenses 

clause.”); Beth Stephens, Federalism and Foreign Affairs: Congress’s Power to 

“Define and Punish . . . Offenses Against the Law of Nations”, 42 Wm. & Mary L. 

Rev. 447, 454 (2000) (“[T]he constitutional language is not limited to the 

particular international law norms existing at the time the Constitution was ratified, 

or to any categories indicated by the types of violations recognized in the 

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eighteenth century, but rather evolves over time as international law continues to 

develop.”).

We need not decide whether the power granted to Congress under the 

Offences Clause changes with the evolution of customary international law 

because, under either approach, the result is the same. Drug trafficking was not a 

violation of customary international law at the time of the Founding, and drug 

trafficking is not a violation of customary international law today.

1. Drug Trafficking Was Not a Violation of the Law of Nations During the 

Founding Period.

When the Constitution was ratified, the range of conduct that could be 

viewed as a violation of customary international law was even more limited than it 

is today. In his Commentaries on the Laws of England, William Blackstone 

explained that, because offenses against the law of nations are “principally incident 

to whole states or nations,” they “can rarely be the object of the criminal law of 

any particular state.” 4 William Blackstone, Commentaries at *68. As a result, 

“[t]he principal offences against the law of nations [that could be committed by 

private individuals and punished criminally] . . . [we]re of three kinds: 1. Violation 

of safe conducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.” Id.; 

see also Sosa, 542 U.S. at 715, 124 S. Ct. at 2756. Although the Supreme Court 

added counterfeiting of foreign currency and violations of the laws of war to this 

list in Arjona and Ex Parte Quirin, respectively, those norms were also discussed in 

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Vattel’s influential treatise on the law of nations from that period. See 120 U.S. at 

484, 7 S. Ct. at 630 (quoting Vattel for the principal that sovereigns had a duty to 

prosecute false coiners); Vattel, Law of Nations § 179 (1797) (explaining that 

“[s]pies are generally condemned to capital punishment, and with great justice, 

since we have scarcely any other means of guarding against the mischief they may 

do us,” and citing provisions that describe assassination and poisoning as contrary 

to the laws of war). 

Drug trafficking was not a matter of international concern in 1789, let alone 

a violation of customary international law. Vattel’s Law of Nations contains no 

references to narcotics, opium, or drug trafficking. And the international 

community did not even begin its efforts to limit the drug trade until the turn of the 

twentieth century. As the United Nations Office on Drugs and Crime has 

observed, “[p]rior to the 1909 Shanghai Opium Commission, national governments 

and state-sponsored monopolies played an active role in peddling opium across 

borders. The profits to be made were enormous, generating as much as half of the 

national revenues of some island states serving as redistribution centres.” United 

Nations Office on Drugs and Crime, A Century of International Drug Control 7, 

(2008). Because violations of customary international law during the Founding 

Period were so limited, and narcotics then were not even a subject of international 

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concern, we cannot conclude that drug trafficking was an offense against the law 

of nations when the Constitution was ratified.

2. Drug Trafficking Is Not a Violation of Customary International Law Today.

Drug trafficking is also not a violation of contemporary customary 

international law. Although a number of specially affected States—States that 

benefit financially from the drug trade—have ratified treaties that address drug 

trafficking, they have failed to comply with the requirements of those treaties, and 

the international community has not treated drug trafficking as a violation of 

contemporary customary international law. Scholars also agree that drug 

trafficking is not a violation of contemporary customary international law.

The United States argues that the widespread ratification of the 1988 United 

Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 

Substances establishes that drug trafficking violates a norm of customary 

international law, but we disagree. Treaties may constitute evidence of customary 

international law, but “will only constitute sufficient proof of a norm of customary 

international law if an overwhelming majority of States have ratified the treaty, and

those States uniformly and consistently act in accordance with its principles.” 

Flores, 414 F.3d at 256. “Of course, States need not be universally successful in 

implementing the principle in order for a rule of international law to arise. . . . But 

the principle must be more than merely professed or aspirational.” Id. at 248. And 

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as the International Court of Justice has explained, a customary international law 

norm will not form if specially affected States have not consented to its 

development through state practice consistent with the proposed norm. North Sea 

Continental Shelf Cases (Fed. Republic of Ger. v. Den.; Fed. Republic of Ger. v. 

Neth.), 1969 I.C.J. 3, 43 (Feb. 20). 

The 1988 Convention was ratified by an overwhelming majority of States

and currently has 188 States Parties, U.N. Treaty Collection Database, 

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI19&chapter=6&lang=en, but the drug trade continues to flourish in many specially 

affected States despite their ratification of the Convention. In 2011, the President 

of the United States designated 21 of these States Parties as “major drug transit or 

major illicit drug producing countries.” Memorandum from Barack Obama, 

President of the United States, to Hillary Rodham Clinton, Secretary of State (Sept. 

15, 2011). And the President described Bolivia, Burma, and Venezuela “as 

countries that have failed demonstrably during the previous 12 months to make 

substantial efforts to adhere to their obligations under international 

counternarcotics agreements.” Id. The International Narcotic Control Board—the 

independent, quasi-judicial body established by the United Nations to monitor 

compliance with international drug treaties—has reported that drug-related 

corruption “has increasingly weakened the criminal justice systems in Central 

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America and the Caribbean.” International Narcotics Control Board, Report of the 

International Narcotics Control Board for 2011, at 52, E/INCB/2011/1 (Feb. 28, 

2012). The 2011 Report of the Board found that “[c]orruption and limited law 

enforcement capacity in Central America and the Caribbean have facilitated the 

use of smuggling channels and drug trafficking activities.” Id. The Board also has 

expressed concern about corruption and lack of progress in reducing illicit opium 

poppy cultivation in Afghanistan. Id. at 17. 

The practice of these specially affected States evidences that drug trafficking 

is not yet considered a violation of customary international law. Governments 

corrupted by the interests of drug traffickers are not simply unable to prosecute 

drug traffickers, but are often unwilling to do so because their economies are 

dependent upon the drug trade. Cf. United Nations Office on Drugs and Crime, 

Estimating Illicit Financial Flows Resulting from Drug Trafficking and Other 

Transnational Organized Crimes: Research Report 65–70 (Oct. 2011) (calculating 

the gross profits of drug trafficking and allocating those profits to countries in 

South America and to Afghanistan). The persistent failure of these specially 

affected States to comply with their treaty obligations suggests that they view the 

curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal 

obligation under customary international law.

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The international community has also distinguished drug trafficking from 

established violations of customary international law in its efforts to combat drug 

trafficking. Comparing the 1988 Drug Convention with the Genocide Convention

is instructive. Article 2 of the 1988 Drug Convention described drug trafficking as 

conduct “having an international dimension.” Convention Against Illicit Traffic in 

Narcotic Drugs and Psychotropic Substances, art. 2(1), Dec. 19, 1988, 1582 

U.N.T.S. 95, 28 I.L.M. 497. But Article 1 of the Genocide Convention defined

genocide as a “crime under international law.” Convention on the Prevention and 

Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 U.N.T.S. 277, 280. 

And, unlike genocide, the international community has addressed drug trafficking 

at the domestic, instead of international, level. The 1988 Drug Convention, for 

example, relied on domestic enforcement mechanisms to combat drug trafficking 

and prohibited States Parties from interfering in the domestic enforcement efforts 

of other States Parties. Convention Against Illicit Traffic in Narcotic Drugs and 

Psychotropic Substances, art. 2, art. 3(1), Dec. 19, 1988, 1582 U.N.T.S. 95, 28 

I.L.M. 497. By contrast, the Genocide Convention provided for trial by 

international tribunals, in addition to domestic tribunals, and permitted States 

Parties to appeal to the United Nations to take further action to prevent and 

suppress genocide. Convention on the Prevention and Punishment of the Crime of 

Genocide, art. 6, art. 8, Dec. 9, 1948, 78 U.N.T.S. 277, 280.

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The drafters of the Rome Statute, which established the International 

Criminal Court, considered and rejected a proposal to make drug trafficking a 

crime within the jurisdiction of the court. Johan David Michels, Keeping Dealers 

Off the Docket: The Perils of Prosecuting Serious Drug-Related Offences at the 

International Criminal Court, 21 Fla. J. Int’l L. 449, 450 (2009). The negotiators 

of the Rome Statute repeatedly referred to drug crimes as “treaty crimes” only, in 

contrast to genocide, war crimes, and crimes against humanity, which are 

violations of customary international law. U.N. Diplomatic Conference of 

Plenipotentiaries on the Establishment of an International Criminal Court, 

A/CONF.183/2 at 172, 176–78, 278 (June 15-July 17, 1998). And several 

delegates expressed the opinion that drug crimes “had no place in a statute dealing 

with international crimes” and should be addressed at the national level. Id. at 271; 

see id. at 172, 176, 272. 

Scholars who have considered the status of drug trafficking in international 

law agree too that it is not a violation of customary international law. Antonio 

Cassesse, a noted international criminal law scholar, has explained, for example,

that drug trafficking is not an international crime because it is not a crime under 

customary international law and is not a matter of mutual concern:

[T]he notion of international crimes does not include illicit traffic in 

narcotic drugs and psychotrophic substances . . . . For one thing, this 

broad range of crimes is only provided for in international treaties or 

resolutions of international organizations, not in customary law. For 

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another, normally it is private individuals or criminal organizations 

which perpetrate these offences; States fight against them, often by 

joint official action. In other words, as a rule these offences are 

committed against States. Usually they do not involve States as such 

or, if they involve State agents, these agents typically act for private 

gain, perpetrating what national legislation normally regards as 

ordinary crimes.

Antonio Cassesse, International Criminal Law 24 (2003). Another scholar has 

explained that “there is a vast difference between conduct that all nations 

criminalize and international crimes. Uniform condemnation and criminalization 

does not make something an international crime. Murder and rape, and indeed, 

most malum in se offenses, are also universally condemned, and all fall outside of 

international law.” Eugene Kontorovich, Beyond the Article I Horizon: 

Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 

Minn. L. Rev. 1191, 1226 (2009). The question “whether drug trafficking will and 

should ever rise to a level of a crime under general customary international law is 

questionable and remains to be seen.” Claus Kress, The Crime of Aggression 

Before the First Review of the ICC Statute, 20 Leiden J. Int’l Law 851, 853 & n.8 

(2007). 

The United States argues that this appeal is controlled by our decision in 

United States v. Saac, 632 F.3d 1203 (11th Cir. 2011), but we disagree. In Saac,

we considered a constitutional challenge to the Drug Trafficking Vessel 

Interdiction Act, which provides for the punishment of any person who 

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“knowingly operates . . . or embarks in any submersible vessel or semi-submersible 

vessel that is without nationality” on the high seas “with the intent to evade 

detection.” 18 U.S.C. § 2285(a). In Saac, we held that Congress had the authority, 

under the High Seas Clause, to prohibit this conduct. 632 F.3d at 1210–11. We 

did not hold that drug trafficking was an “Offence against the Law of Nations.” 

Instead, we held that Congress had the authority under the High Seas Clause to 

punish the operation of these stateless vessels. Saac is inapposite.

Moreover, none of our earlier precedents about the extraterritorial 

application of our drug trafficking laws have answered the constitutional question 

presented in this appeal. Indeed, all of the appeals in which we have considered 

the constitutionality of those laws involved conduct on the high seas. See, e.g., 

United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1376–77 (11th Cir. 2011); 

Saac, 632 F.3d at 1209; United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th 

Cir. 2006); United States v. Rendon, 354 F.3d 1320, 1322–23 (11th Cir. 2003); 

United States v. McPhee, 336 F.3d 1269, 1271–73 (11th Cir. 2003); United States 

v. Tinoco, 304 F.3d 1088, 1092–95 (11th Cir. 2002); United States v. Gonzalez, 

776 F.2d 931, 933–34 (11th Cir. 1985); United States v. Romero-Galue, 757 F.2d 

1147, 1149–51 (11th Cir. 1985); United States v. Marino-Garcia, 679 F.2d 1373, 

1377–78 (11th Cir. 1982). Congress possesses additional constitutional authority 

to restrict conduct on the high seas, including the Piracies Clause, U.S. Const., Art. 

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I, § 8, cl. 10, the Felonies Clause, id., and the admiralty power, United States v. 

Flores, 289 U.S. 137, 148–49, 53 S. Ct. 580, 582 (1933). And we have always 

upheld extraterritorial convictions under our drug trafficking laws as an exercise of 

power under the Felonies Clause. See Estupinan, 453 F.3d at 1339 (“[W]e readily 

hold that the district court committed no error in failing to sua sponte rule that 

Congress exceeded its authority under the Piracies and Felonies Clause in enacting 

the [Maritime Drug Law Enforcement Act].”). But we have never held that 

Congress has the power, under the Offences Clause, to apply our drug trafficking 

laws to conduct in the territorial waters of another State.

Judge Barkett argues in her special concurrence that we should decide this 

appeal on the ground that drug trafficking is not an offense of universal jurisdiction 

and, as a result, Congress may not punish the defendants’ conduct under the 

Offences Clause, but that reasoning raises issues that we need not decide. We need 

not decide whether the Offences Clause, which makes no mention of the 

requirements of prescriptive jurisdiction under international law in its grant of 

power to “define and punish . . . Offences against the Law of Nations,” U.S. Const. 

Art. I, § 8, cl. 10, nevertheless incorporates those jurisdictional principles. We 

need not decide whether Congress exempted prosecutions under the Act from any 

limitations on prescriptive jurisdiction imposed by international law. See 46 

U.S.C. § 70505 (“A person charged with violating section 70503 of this title . . . 

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does not have standing to raise a claim of failure to comply with international law 

as a basis for a defense. A claim of failure to comply with international law . . . 

may be made only by a foreign nation. A failure to comply with international law 

does not divest a court of jurisdiction and is not a defense to a proceeding under 

this chapter.”). We need not decide whether the Constitution imposes any limit on 

the power of Congress to violate international law. Cf. United States v. PintoMejia, 720 F.2d 248, 259 (2d Cir. 1983) (“[I]n enacting statutes, Congress is not 

bound by international law. If it chooses to do so, it may legislate with respect to 

conduct outside the United States, in excess of the limits posed by international 

law. As long as Congress has expressly indicated its intent to reach such conduct, 

a United States court would be bound to follow the Congressional direction unless 

this would violate the due process clause of the Fifth Amendment.” (internal 

quotation marks and citation omitted)). And we need not decide whether 

international law would permit the exercise of prescriptive jurisdiction by the 

United States over a stateless vessel in territorial waters when, as here, the 

sovereign of those waters has consented to that jurisdiction. Cf. United States v. 

Postal, 589 F.2d 862, 869 (5th Cir. 1979) (explaining that, in territorial waters, 

“[t]he sovereignty of the coastal state extends into the territorial sea, with the 

proviso that foreign vessels enjoy the right of innocent passage through it” (citation 

omitted)); United Nations Convention on the Law of the Sea, art. 17, Dec. 10, 

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1982, 1833 U.N.T.S. 397 (providing that only “ships of all States, whether coastal 

or land-locked, enjoy the right of innocent passage through the territorial sea”

(emphasis added)); Convention on the Territorial Sea and the Contiguous Zone, 

art. 14, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11 (same). 

Because drug trafficking is not a violation of customary international law, 

we hold that Congress exceeded its power, under the Offences Clause, when it 

proscribed the defendants’ conduct in the territorial waters of Panama. And the 

United States has not offered us any alternative ground upon which the Act could 

be sustained as constitutional. As applied to these defendants, the Act is 

unconstitutional, and we must vacate their convictions.

IV. CONCLUSION

We VACATE the defendants’ convictions.

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BARKETT, Circuit Judge, specially concurring:

I concur in the majority’s conclusion that drug trafficking does not constitute 

an “Offence[] against the Law of Nations” and agree with much of the majority’s 

opinion. However, my conclusion is based on my view that when conduct has no 

connection to the United States, such as the conduct at issue here, it can only be 

punished as an “Offence[] against the Law of Nations” if it is subject to universal 

jurisdiction. 

I agree with the majority that the “Offences against the Law of Nations” 

Clause must be interpreted in accordance with principles of customary 

international law. That is to say, customary international law necessarily informs 

what conduct may be punished as an “Offence[] against the Law of Nations.”1

However, I believe that customary international law contains both a substantive 

and a jurisdictional component. Thus, when analyzing Congress’s authority to 

proscribe conduct under the Offences Clause in light of customary international 

law, a court determines both whether the conduct at issue violates a “‘norm[ ] of 

international law’” that is “‘well-established’ and ‘universally recognized,’” Velez 

v. Sanchez, 693 F.3d 308, 316 (2d Cir. 2012) (internal citation omitted), and

 1 The majority questions whether the Constitution imposes any limit on the power of 

Congress to violate international law. However, Congress may only violate international law to 

the extent that it is acting within the authority granted to it by the Constitution. In other words, 

while Congress may violate international law when invoking its authority under other 

constitutional clauses, it cannot do so when acting under the Offences Clause, which is defined

by customary international law. Congress cannot violate international law when the Constitution 

says that it is bound by international law. 

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whether customary international law provides some basis for the exercise of

jurisdiction over that conduct, Hartford Fire Ins. Co. v. California, 509 U.S. 764, 

815 (1993) (Scalia, J., dissenting) (“‘[T]he law of nations,’ or customary 

international law, includes limitations on a nation’s exercise of its jurisdiction to 

prescribe.”). Only conduct that violates a norm of customary international law and

is subject to United States jurisdiction under customary international law principles 

may be prosecuted in United States courts as an “Offence[] against the Law of 

Nations.”2

Customary international law recognizes five theories of jurisdiction: 

territorial, protective, national, passive personality, and universality. See United 

States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984). The first four theories 

permit nations to exercise jurisdiction over offenses that implicate domestic 

interests—that is, offenses that occur within a nation’s territory and those that 

occur outside the territory but have effects within it. In contrast, the universality 

theory authorizes any nation to exercise jurisdiction over certain offenses, even

when no domestic interests are directly implicated. Here, because the drug 

 2 That is not to say, as the majority seems to suggest, that I consider a failure to comply 

with jurisdictional principles under international law to be a defense to prosecution under the 

Maritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C. § 70505 (“A claim of failure 

to comply with international law does not divest a court of jurisdiction and is not a defense to a 

proceeding under this chapter.”). Rather, to the extent that international law is incorporated into 

the Offences Clause of the Constitution, jurisdictional principles of international law must 

necessarily be considered in determining whether Congress has the authority to proscribe a 

defendant’s conduct under that Clause. 

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trafficking occurred outside of United States territory and had no direct impact on 

the interests of the United States, the only potential basis for jurisdiction is the 

universality principle.3

 

Although the class of offenses that triggers universal jurisdiction has 

expanded over the last century, the scope of universal jurisdiction remains 

exceedingly narrow: 

There are two premises underlying universal jurisdiction. The first 

involves the gravity of the crime. Crimes subject to the universality 

principle are so threatening to the international community or so 

heinous in scope and degree that they offend the interest of all 

humanity, and any state may, as humanity’s agent, punish the 

offender. The second involves the locus delicti (place of the act). 

Crimes subject to the universality principle occur in territory over 

which no country has jurisdiction or in situations in which the 

territorial State and State of the accused’s nationality are unlikely to 

exercise jurisdiction, because, for example, the perpetrators are State 

authorities or agents of the State.

Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals 

of Non-Party States, 35 New Eng. L. Rev. 363, 368-69 (2001). 

 3 Conduct can also be punished as an “Offence[] against the Law of Nations” if there is a 

jurisdictional basis other than universal jurisdiction. For example, in United States v. Arjona, 

120 U.S. 479 (1887), the Supreme Court held that counterfeiting of foreign securities was an 

“Offence[] against the Law of Nations” where the conduct took place within the United States 

and the United States, thus, had territorial jurisdiction. It would be a different scenario if the act 

of counterfeiting foreign securities, albeit a violation of a norm of international law, had no 

connection to the United States and occurred in another country. I do not believe the United 

States could prosecute it as an “Offence[] against the Law of Nations” without a jurisdictional 

basis.

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The government argues that drug trafficking is an “Offence[] against the 

Law of Nations” that is subject to universal jurisdiction because Congress, when 

enacting the MDLEA, stated that drug trafficking is “universally condemned” and 

is a “threat to the security and societal well-being of the United States[.]” 46 

U.S.C. § 70501. However, it is not Congress’s declaration that establishes conduct 

as subject to universal jurisdiction under customary international law. Rather, the 

scope of universal jurisdiction is “ascertained by consulting the works of jurists, 

writing professedly on public law; or by the general usage and practice of nations; 

or by judicial decisions recognising and enforcing that law.” United States v. 

Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820); see also Anthony J. Colangelo, The 

Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149, 150 (2006) (“If 

national courts prosecute on grounds of universal jurisdiction, they must use the 

international legal definitions . . . of the universal crimes they adjudicate; 

otherwise, their exercise of universal jurisdiction contradicts the very international 

law upon which it purports to rely.”).

Furthermore, universal condemnation is by itself insufficient to place an 

offense within the scope of universal jurisdiction. As noted by the Supreme Court 

in United States v. Furlong, murder may be universally condemned, but it is not 

subject to universal jurisdiction. 18 U.S. (5 Wheat.) 184, 197 (1820) (“[P]unishing 

[murder] when committed within the jurisdiction . . . of another nation[] has not 

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been acknowledged as a right, much less an obligation. It is punishable under the 

laws of each State . . . .”). For universal jurisdiction to apply to an offense, the 

international community must reach both a “substantive agreement” that the 

offense is “universally condemned” and a “procedural agreement that universal 

jurisdiction exists to prosecute [that offense].” Sosa v. Alvarez-Machain, 542 U.S.

692, 762 (2004) (Breyer, J., concurring). Thus, “because universal jurisdiction 

over a crime is established by international consensus, a state can only invoke 

universal jurisdiction for those acts that fall within the specific ‘subset of 

[universally condemned] behavior’ that the international community has agreed 

warrants the assertion of universal jurisdiction.” United States v. Hasan, 747 F. 

Supp. 2d 599, 608 (E.D. Va. 2010).4 

Drug trafficking does not fall within that subset. No source of customary

international law has designated drug trafficking as being subject to universal 

jurisdiction. The academic community is in accord that drug trafficking is not 

considered a universal jurisdiction offense. Although “[i]nternational criminal law 

 4 I agree with the majority that drug trafficking probably does not violate a norm of 

customary international law as of yet. However, I do not believe that this is because the drug 

trade continues to exist or because some signatories to an international drug treaty have not 

complied with their obligations under the treaty. There are undisputed violations of customary 

international law, such as torture, that also continue to exist and with regard to which countries 

may not comply with their treaty-based obligations. 

However, as explained above, even if drug trafficking were to be considered a violation 

of a norm of customary international law, I do not believe that the United States would have the 

authority to prosecute drug trafficking that has no connection to the United States as an 

“Offence[] against the Law of Nations” because drug trafficking is not subject to universal 

jurisdiction and no other jurisdictional basis exists.

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evidences the existence of twenty-seven crime categories[,]”5 only the so-called jus

cogens crimes of “piracy, slavery and slave-related practices, war crimes, crimes 

against humanity, genocide, apartheid, and torture” have thus far been identified as 

supporting universal jurisdiction. Bassiouni, supra, at 106-09; see also, e.g., Sosa,

542 U.S. at 762 (Breyer, J., concurring) (listing crimes supporting universal 

jurisdiction to include torture, genocide, crimes against humanity, and war crimes); 

Restatement (Third) of Foreign Relations Law § 404 (1987) (recognizing that 

universal jurisdiction applies only to “prescribe punishment for certain offenses 

recognized by the community of nations as of universal concern, such as piracy, 

slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps 

certain acts of terrorism”); The Princeton Principles on Universal Jurisdiction 48 

(Stephen Macedo et al. eds., 2001) (noting that drug crimes “were raised as 

candidates for inclusion” in the Princeton Principles’ list of serious crimes subject 

 5 These international crimes are: 

aggression, genocide, crimes against humanity, war crimes, crimes against the UN 

and associated personnel, unlawful possession and/or use of weapons, theft of 

nuclear materials, mercenarism, apartheid, slavery and slave-related practices, 

torture, unlawful human experimentation, piracy, aircraft hijacking, unlawful acts 

against civil maritime navigation, unlawful acts against internationally protected 

persons, taking of civilian hostages, unlawful use of the mail, nuclear terrorism, 

financing of international terrorism, unlawful traffic in drugs and dangerous 

substances, destruction and/or theft of national treasures and cultural heritage, 

unlawful acts against the environment, international traffic in obscene materials, 

falsification and counterfeiting of currency, unlawful interference with submarine 

cables, and bribery of foreign public officials.

M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and 

Contemporary Practice, 42 Va. J. Int’l L. 81, 107 (2001).

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34

to universal jurisdiction, but ultimately were not selected); Anne H. Geraghty,

Universal Jurisdiction and Drug Trafficking: A Tool for Fighting One of the 

World’s Most Pervasive Problems, 16 Fla. J. Int’l L. 371, 372 (2004) (explaining 

that the idea of utilizing universal jurisdiction as a tool for prosecuting drug

trafficking has never been “widely embraced”); Christina E. Sorensen, Drug 

Trafficking on the High Seas: A Move Toward Universal Jurisdiction Under 

International Law, 4 Emory Int’l L. Rev. 207, 208 (1990) (“Drug trafficking is . . . 

not subject to universal jurisdiction.”). 

Nor are there any judicial decisions recognizing Congress’s authority to 

punish drug trafficking that has no connection to the United States as an “Offence[] 

against the Law of Nations.” Indeed, several courts of appeals have held that drug 

trafficking is not a universal jurisdiction offense, albeit discussing drug trafficking 

as an offense occurring on the “high Seas” rather than as an “Offence[] against the 

Law of Nations.” See, e.g., United States v. Perlaza, 439 F.3d 1149, 1161-63 (9th 

Cir. 2006) (rejecting the government’s argument that it had jurisdiction over drug 

trafficking conducted on a go-fast vessel under the principle of universal 

jurisdiction); United States v. Wright-Barker, 784 F.2d 161, 168 n.5 (3d Cir. 1986) 

(“[I]nternational agreements have yet to recognize drug smuggling . . . as a heinous 

crime subject to universal jurisdiction.”). Nor have we been able to find any case 

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decided by any international court defining drug trafficking as an offense subject to 

universal jurisdiction. 

Because the drug trafficking at issue here is not subject to universal 

jurisdiction and no other internationally recognized jurisdictional basis applies, 

Congress does not have the authority to proscribe these defendants’ conduct under 

Article I, Section 8, Clause 10 of the Constitution. The government’s argument 

that this authority can be supplied by another nation’s consent to United States 

jurisdiction is without merit. As Judge Torruella illustrates in United States v. 

Cardales-Luna, accepting this argument leads to absurd results: 

Perhaps an even more relevant example would be if Congress passed 

legislation attempting to apply the criminal laws of the United States, 

with the Bolivian government’s consent, to the conduct of Colombian 

nationals in Bolivia traveling over its mountain roads carrying a load 

of coca leaves destined for Peru. The power of Congress to legislate in 

such a case cannot be countenanced even with the consent of Bolivia, 

whose consent is ultimately irrelevant, for Bolivia cannot grant 

Congress powers beyond those allotted to it by the Constitution.

632 F.3d 731, 741 (1st Cir. 2011) (Torruella, J., dissenting). 

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