The United States is in the midst of a cannabis revolution. Four states and the nation’s capital city have opened up the once-feared black markets and made marijuana available for legal purchase by most of the adult population. There is still one big glaring issue, however: There is a very large governing organization that could try to pull the plug on the entire thing.
Surprisingly, it’s not the DEA, FBI, or White House. Although marijuana is still a Schedule I drug under federal law (and federal law generally trumps state law), the DoJ issued a memorandum in 2013 that effectively made a deal with states. As long as they “establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance,” then the federal government will defer “its right to challenge their legalization laws at this time.”
It’s the United Nations that could rain on the legal-weed parade. That’s right, the U.N.: The “look the other way mentality” offered by the DoJ is not in line with international drug laws, and some people at the U.N. have decided to throw around their weight a little bit.
“I don’t see how the new laws can be compatible with existing conventions,” Yury Fedotov, executive director of the United Nations Office on Drugs and Crime (UNODC), told reporters.
The convention Fedotov is talking about is the International Narcotics Control Board (INCB) addressing Uruguay’s new bill contravened the 1961 Single Convention on Narcotic Drugs, which, among other things, attempts to relegate marijuana to strictly medical or scientific use. UNODC monitors compliance with the convention.
Asked whether there was anything the UNODC could do about it, Fedotov said he would raise the problem with the U.S. State Department and other U.N. agencies.
But if you’re like most Americans, then you are probably not too worried about how the U.N. feels about marijuana legalization in the United States. According to Gallup, 58% of Americans now support legalization. Besides, despite a fairly strong image, many Americans feel like the U.S. is outside of the reach of the U.N. on mostly domestic issues like drug policy. There’s even precedent for a U.N. member nation bucking the convention, as Uruguay legalized cannabis in 2013.
If there’s one thing that truly gets Americans to lose their tempers, it’s anyone — especially an international organization like the U.N. — messing with their sense of personal freedom, or putting at risk their opportunity for economic prosperity.
So what does it really mean if the U.S. is technically violating international drug law? Does it mean anything at all, and should anyone actually care?
The U.N. is concerned that the U.S. will, in the near future, give full legalization a blessing from the federal government — it appears not to want that sentiment to spread internationally. Within the United States, however, that sentiment has already taken root and is spreading.
The debate over international drug treaties and state-by-state legalization
Keith Humphreys, a Stanford University professor and drug policy advisor, previously argued that states aren’t signatories to international drug control treaties — only the federal government is. So the federal government is meeting its international obligations as long as marijuana remains illegal under federal law, even if some states allow pot.
But Wells Bennett of the Brookings Institute argues that international drug control treaties require participants to actually enforce drug prohibition, not just enact a law. If that’s the case, the US is required under international obligations to wage a war on marijuana regardless of what voters decide at the state level — and it can’t turn a blind eye to legalization.
A report by the Congressional Research Service suggested marijuana legalization in Washington, DC, could produce a particular sticking point with the international treaties since DC is a federal jurisdiction and Congress could directly overturn the legalization law, the Washington Times reported. “This line of reasoning suggests that if Initiative 71 is permitted to take effect, this inaction by the federal government may strengthen the Board’s argument that the United States has not fulfilled its commitments under the Single Convention.”
The debate and confusion may eventually lead to reform. During the 2016 UN General Assembly Special Session on drugs, reformers hope to change international drug laws to allow legalization and other drug policy experiments.
If lawmakers decided to stop the war on drugs tomorrow, a major hurdle could be international agreements that require restrictions and regulations on certain drugs.
There are three major treaties: the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Drugs of 1971, and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. Combined, the treaties require participants to limit and even criminalize the possession, use, trade, and distribution of drugs outside of medical and scientific purposes, and work together to stop international drug trafficking.
There is a lot of disagreement among drug policy experts, enforcers, and reformers about the stringency of the treaties. Several sections of the conventions allow countries some flexibility so they don’t violate their own constitutional protections.
Many argue that any move toward legalization of use, possession, and sales is in violation of international treaties. Under this argument, Colorado, Washington, and Uruguay are technically in violation of the treaties because they legalized marijuana for personal possession and sales.
Others say that countries have a lot of flexibility due to the constitutional exemptions in the conventions. Countries could claim, for instance, that their protections for right to privacy and health allow them to legalize drugs despite the conventions. When it comes to individual states in the US, the federal government can also argue that America’s federalist system allows states some flexibility as long as the federal government keeps drugs illegal.
“It’s pretty clear that the war on drugs was waged for political reasons and some countries have used the treaties as an excuse to pursue draconian policies,” said Kasia Malinowska-Sempruch, director of the Global Drug Policy Program | Open Society Foundations. “Nevertheless, we’ve seen a number of countries drop criminal penalties for minor possession of all drugs. We’ve seen others put drugs into a pharmaceutical model, including the prescription of heroin to people with serious addictions. This seems completely possible within the treaties.”
Even if a country decided to dismantle prohibition and violate the treaties, it’s unclear how the international community would respond. If the US, for example, ended prohibition, there’s little other countries could do to interfere; there’s no international drug court, and sanctions would be very unlikely for a country as powerful as America.
Still, Martin Jelsma an international drug policy expert at the Transnational Institute, argued that ignoring or pulling out of the international drug conventions could seriously damage America’s standing around the world. “Pacta sunt servanda (‘agreements must be kept’) is the most fundamental principle of international law and it would be very undermining if countries start to take an ‘a-la-carte’ approach to treaties they have signed; they cannot simply comply with some provisions and ignore others without losing the moral authority to ask other countries to oblige to other treaties,” Jelsma wrote in an email. “So our preference is to acknowledge legal tensions with the treaties and try to resolve them.”
To resolve such issues, many critics of the war on drugs hope to reform international drug laws in 2016 during the next General Assembly Special Session on drugs.
“There is tension with the tax-and-regulate approach to marijuana in some jurisdictions,” Malinowska-Sempruch said. “But it’s all part of a process and that’s why we hope the UN debate in 2016 is as open as possible, so that we can settle some of these questions and, if necessary, modernize the system.”