We all know that the US is not party to the treaties establishing international criminal law, and that although it does not deny the jurisdiction of the International Criminal Court over foreigners, it does deny its jurisdiction over US citizens. (And it is inexplicably proud of this, but that’s a side-issue.)
You see, Paragraph 10 of Section 8 of Article 1 of the US Constitution gives the power of defining ‘the Law of Nations’ to the US Congress. Needless to say, no other country accepts the US’s power to unilaterally make international law. My question is this:
“Has the US Congress ever [pretended to] use its powers under the Constitution of the United States, Article 1, Section 8, paragraph 10 to define the Law of Nations?”
Congress did indeed get into that game very early, passing the Alien Torts Claims Act in 1789 as part of the first Federal Judiciary Act. Suits by the Falun Gong against the Peoples Republic of China and individuals suing for genocidal practices in Kosovo have been recently filed and adjudicated under the ATCA alleging violations of the “Law of Nations”
Some very interesting ATCA lawsuits have been recently filed against Texaco for releasing massive amounts of toxic petroleum products into waters used by Ecuadorian indians for bathing, drinking, fishing, etc. thus causing much illness and “cultural genocide” that has destroyed their way of life. These suits are largely being dismissed under the doctrine of forum non conveniens, which is a fancy way of saying “go sue in Ecuador, case dismissed.” That’s probably not going to happen due to the fact that Texaco arguably has more power in Ecuador than the govenment does, but there you have it.
Agback, you are misreading the Constitution. What the clause that you are quoting from actually says is that the Congress has the power
The United States does not (as you suggest) claim any “power to unilaterally make international law,” and the Constitution does not (as you suggest) confer any power “to define the Law of Nations.” The Constitution empowers Congress “to define and punish . . . offenses against the law of nations.” Every nation enjoys that right–particularly in the late 18th century when the Constitution was drafted and ratified, when an international legislative or judicial body was beyond contemplation–and the Constitution is simply saying that the institution which can exercise that power in the United States is Congress. Without a grant of authority to the federal government, the power of defining and punishing crimes against international law would have fallen to the individual states. Even the Articles of Confederation recognized the need for a national authority for defining and punishing piracy:
And Congress has indeed criminalized offenses against international law in domestic statute. For example, 18 U.S.C. § 1651:
Likewise, 18 U.S.C. § 2441, which criminalizes conduct entirely on the basis of international treaties and conventions:
These statutes and others are instances of Congress exercising its power “to define and punish . . . offenses against the law of nations.”