During this same period, both the Offenses Clause and the Necessary and Proper Clause were invoked as authority for proposed legislation protecting the treaty rights of aliens--legislation that ultimately failed to pass. From the 1880s through the turn of the century, violence and lynchings against resident aliens, particularly Italians and Chinese protected under treaties with the United States, were a cause of significant diplomatic concern, leading the executive and later Congress to seek to use federal criminal statutes to punish such crimes. (238) The 1880 U.S. treaty with China, for example, provided that "[i]f Chinese... meet with ill treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measures for their protection and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation." (239) The Supreme Court had previously held in Baldwin v. Franks that existing federal statutes could not be construed to prohibit the conduct at issue. (240) But the Court had emphasized that Congress clearly possessed the power to enact legislation protecting aliens' treaty rights: "That the United States have power under the Constitution to provide for the punishment of those who are guilty of depriving Chinese subjects of any of the rights, privileges, immunities, or exemptions guarantied to them by this treaty we do not doubt." (241)
An 1891 lynching in New Orleans brought renewed urgency to the topic. (242) In his resulting address to Congress, President Harrison called for legislation "to make offenses against the treaty rights of foreigners domiciled in the United States cognizable in the Federal courts," referring expressly to the United States's "constitutional power to define and punish crimes against treaty rights." (243) In response, the Senate adopted a resolution directing the Foreign Relations Committee to propose legislation that would enable the United States "to use its constitutional power to define and punish crimes against treaty rights conferred upon such foreigners." (244) The Committee reported legislation that would have made it a federal crime to commit a violation of state law that also violated an alien's rights under a treaty, and that would have enforced the penalties provided under state law. (245) In the ensuing congressional debates, many parties agreed that Congress possessed constitutional authority to implement U.S. treaty commitments. (246) At least one speaker expressly invoked the Necessary and Proper Clause, (247) while another stated that Congress must carry out any punishment for acts committed against foreign citizens under its treaty obligations "in the only mode in which it can exercise the power committed to it by the Constitution, and that is by defining a crime and annexing a punishment." (248) The proposed legislation failed. (249) As a subsequent Senate report noted, "The chief ground of this opposition was not that Congress lacked power to so legislate, but that it was unnecessary to confer such jurisdiction on the United States courts, and, therefore, impolitic, because the prosecution of (C.C.D. Cal. 1886), while the United States argued before the Supreme Court that the statute was also supported by the Offenses Clause, devoting the bulk of its argument regarding congressional authority to that theory. See Brief for Respondent at 25-27, Baldwin v. Franks, 120 U.S. 678 (1887). The Supreme Court did not specify which provision of the Constitution gave Congress the authority, though it is worth noting that Baldwin was decided on the very same day as Arjona, in which the Court adopted a broad reading of the Offenses Clause. such offenses could be safely intrusted to the State courts." (250) Clearly, Congress's view during the late nineteenth century was that the Offenses Clause, as well as other provisions of the Constitution, gave it authority to enact penal legislation required by a treaty or to protect rights guaranteed under a treaty. (251)
When Congress attempted to adopt anti-lynching civil rights legislation in the 1940s, it again looked to the Offenses Clause as a source of constitutional authority. (252) In addition to the Fourteenth Amendment and the Republican Guarantee Clause, (253) the House Report invoked "[t]he treaty power" and "the power to define and punish offenses against the law of nations" as authority for the legislation. (254) The report pointed to U.S. treaty obligations under Articles 55 and 56 of the United Nations Charter to promote "universal respect for, and observance of, human rights... without distinction as to race, sex, language, or religion" (255) and added that the same principle was reflected in "peace treaties with Italy, Rumania, Bulgaria, and Hungary containing guaranties that those countries would protect racial minorities in their midst from discrimination." (256) In light of these treaty obligations, the report concluded, "[c]learly we have here an adequate constitutional basis, either under the power to implement treaties or under the power to define offenses against international law, for a statute protecting all individuals against violence or threats of violence because of race or religion." (257)
In passing the Foreign Sovereign Immunities Act (FSLA) in 1976, (258) Congress again based its constitutional authority on the Offenses Clause, along with its authority to prescribe the jurisdiction of federal courts, the Foreign Commerce Clause, and the treaty power plus the Necessary and Proper Clause. (259) The FSIA established rules governing the immunity of foreign states and their agencies and instrumentalities, U.S. jurisdiction over suits against foreign states and service of process, and attachment and execution against the property of foreign states to satisfy a judgment. Although most of these issues were not governed by international agreements, (260) a few were. The FSIA therefore provides for service of process "in accordance with an applicable international convention on service of judicial documents." (261) With respect to execution of judgments, the FSIA made the immunity of government property subject not just to the exceptions stated in the Act (262) but also to "existing international agreements to which the United States is a party." (263) As the legislative history explains, "[a] number of treaties of friendship, commerce and navigation concluded by the United States permit execution of judgments against foreign publicly owned or controlled enterprises." (264) So the FSIA is properly viewed as an implementation not only of customary international law and international comity, but also of certain treaty obligations.
Over the past three decades, Congress has acted repeatedly and expressly to implement treaties using its authority under the Offenses Clause. In 1984, Congress passed the Aircraft Sabotage Act (265) "to implement fully the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation," (266) which required punishment of various acts of violence against aircraft, airports, or their personnel. (267) Congress explained that such offenses under the Convention "gravely affect interstate and foreign commerce, and are offenses against the law of nations." (268) With respect to Congress's authority, the Senate Report stated that the Act "is an exercise of the treaty power, of the power to regulate interstate and foreign commerce, and of the power to punish offenses against the laws of nations." (269)
In 1992, Congress passed the Torture Victim Protection Act (TVPA), which created an express cause of action for civil damages for acts of torture and extrajudicial killing committed under color of foreign law. (270) Congress stated that its purpose in adopting the TVPA was to "carry out the intent of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," (271) and relied expressly on the Offenses Clause as a constitutional basis for the legislation. (272) Congress explained the law as follows: "The [Convention [Against Torture] obligates state parties to adopt measures to ensure that torturers within their territories are held legally accountable for their acts. This legislation will do precisely that-by making sure that torturers and death squads will no longer have a safe haven in the United States." (273)
It is clear that in providing a civil remedy for acts of torture, the statute was intended to implement the treaty-as Congress indicated-and not simply the prohibition against torture in customary international law. Article 4 of the Convention Against Torture mandates that states parties must make all acts of torture "punishable by appropriate penalties," (274) and although Article 4 mandates that this must include criminal penalties, it otherwise leaves the choice of penalties to individual States. 75 Article 14 of the Convention further requires states parties to "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation." (276) The United States adopted an understanding upon ratification that the Article 14 obligation applied only to torture committed in territory under a state's jurisdiction, (277) but Article 14 clearly permits states to go further and to provide a civil remedy for torture occurring elsewhere, as the TVPA did. Of course, the TVPA also implemented customary international law, particularly in its creation of a cause of action for extrajudicial lolling, (278) and Congress could have adopted a civil damages remedy against torturers to punish violations of the customary international law prohibition on torture even in the absence of the Convention. But this fact simply shows that treaties and customary international law are often intertwined today, just as they were at the Founding, and it highlights...