Does the Legalization of Marijuana Violate International Law?

The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party.

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A Global Survey on the Study of International Law (Part II)

Last month I put up the first in what I anticipate will be a series of posts on the subject of international legal education. I summarized the results of a global survey on the study of international law, reported that a majority of law students around the world must complete at least one course on the subject prior to graduation, and pointed out that the overwhelming tendency for American law schools to offer international law exclusively as an elective is fairly abnormal. In this post, I’ll explain my methodology and elaborate a bit on the data underlying my conclusions.

The methodology was pretty simple: I relied on a collection of official government documents, information available on the websites of university law faculties, and, occasionally, email correspondence with faculty members. Where this evidence established that a curriculum includes a mandatory course that on its face substantially implicates public international law, I coded the corresponding university as requiring international legal training. Inversely, I coded a university as requiring no such training where the evidence demonstrated that courses on public international law are elective or unavailable. Finally, I coded a university as “no data” if it has a law faculty but evidence of its curriculum was inaccessible within the confines of the research methods. For present purposes, the key point is that the numbers only reflect what I could find. This probably amounts to all relevant data for many states. But for others, particularly in the developing world, the data are less complete because not all universities have functioning websites and even those that have them often omit information about their curriculum.

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Thoughts on Mwani v. Al Qaeda

A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction was appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable.

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