Judge Alito and the Case of the "Stateless" Marijuana

I agree that Alito’s international and comparative law record is thin, but in addition to the cases Roger and Julian discuss here and here, let me add US v. Rosero, a 1994 case reversing and remanding a conviction of possession of marijuana, with intent to distribute, on a vessel “subject to the jurisdiction of the United States.” The issue before the Third Circuit was whether the jury had been properly instructed on what constituted “statelessness” of a vessel under the Maritime Drug Enforcement Act. The case involved the US Coast Guard’s seizure of a boat carrying 200 bales (!) of marijuana in the waters off the coast of the Saba Island, Netherlands Antilles. The vessel was not marked with a port or country registry and was not flying a flag. (A later search of the ship turned up flags of three different nations.) The ship was brought into port at St. Croix, US Virgin Islands, where the ship’s crew was booked and later indicted under the US statute.

The US statute in question extends jurisdiction for possession and intent to ships outside US waters that were “stateless.” The general rule under international law is that jurisdiction of the state of registry or flag of a ship extends to it on the high seas. Thus, the US drug law would apply to a US registered ship, but not one registered in the Netherlands. But where a ship is “stateless” or “without nationality,” any country could seek to apply its law extraterritorially.

The issue before the court was whether the jury instruction, which applied the definition of “a vessel without nationality” from the US statute, and also allowed the jurors to take into account the “totality of the circumstances” concerning the nationality question, was in error. Alito concluded the instruction was in error because the statute did not include the “exhaustive definition” of “vessel without nationality” and that therefore international law should have been incorporated:

“Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meanings of these terms.” NLRB v. Amax Coal Co. , 453 U.S. 322, 329 (1981). See also Community of Creative Non-Violence v. Reid , 490 U.S. 730, 739 (1989). This same principle logically applies when Congress uses a term that has acquired a settled meaning under customary international law. We therefore think that it is reasonable to assume that the residual category of vessels “without nationality” under 46 U.S.C. App. § 1903(c)–i.e., those not within subsections (c)(2)(A) or (B)– are those that would be regarded as without nationality or stateless under international law.

Alito then proceeded to describe the international law of “stateless vessels” by reference to the 1958 Convention on the High Seas and Oppenheim on International Law. A vessel, he concluded, could be “stateless” under international law, whether or not it satisfied the non-exhaustive categories in the statute. The statute, therefore, should be read to incorporate the international law standards for determining statelessness.

Now, the broader effect of Alito’s interpretation would appear to expand the ways in which the US government can arrest individuals on international waters who possess drugs that may or may not be destined for the US, expanding the reach of governmental power that may be in line with his overall jurisprudential record. But in drawing an analogy between common law/equity and customary international law, he does so in a very un-Scalia-like way.