Marijuana policy and international law

Commenting on Matt Yglesias’s essay about how cheap pot would be post-legalization, my old friend Kevin Drum notes that marijuana prohibition is built into the Single Convention on Narcotic Drugs and its successor international drug control treaties. Within the constraints of those treaties, what Kevin calls “decriminalization and wink-wink nudge-nudge lack of enforcement” are indeed all we could have at a national level.

But that doesn’t mean taxation-and-regulation needs to be completely off the table.

First, the treaties don’t bind the fifty states. The treaties explicitly recognize that the obligations they impose on the signatories are limited by those signatories’ own domestic constitutional arrangements, and it’s settled constitutional law that the federal government may not require a state to criminalize something, or force a state to help carry out federal law.

For example, if the Michigan proposal to simply repeal the state’s marijuana laws – parallel to what New York did with respect to alcohol in 1923 – had passed, Michigan would have been entirely within its constitutional powers, and no international law would have been violated.

The constitutional situation would become murkier if a state did something more complex: if it created a tax-and-regulation system, or even a system of distribution through state stores. When state law directly conflicts with federal law, the Supremacy Clause means that federal law wins. I think that means the federal courts would shut down a state-store system. In addition, the federal government might be able to effectively disable a state’s tax-and-regulation system by using injunctions or arrests to make it impossible for marijuana growers and dealers to comply with state laws. (As Jon Caulkins points out, that would give the feds a hard set of choices: they could prevent controlled legalization, but the result might be uncontrolled legalization.)

If a state were to tax and regulate, and the feds were to mind their own business (i.e., prevent interstate commerce but not mess with strictly intra-state production, sale, and use) then we’d have something much more like real legalization than, for example, the Dutch system is.

In addition, while even five years ago the treaties looked immutable, that’s much less true now. The U.S. could withdraw from the Single Convention and re-acceed to it with a “reservation” about marijuana. That would leave the other parties to the treaty with the option of accepting the reservation or kicking the U.S. out of the treaty system entirely. Or the U.S. could propose amendments to the treaties; we’d have company, though whether enough company to actually secure the 2/3 required for an amendment is doubtful.

So the treaties do create barriers to true legalization, but those barriers aren’t impassable.

Note this is all said without prejudice to the question whether legalization in one form or another would be a good idea. My own view is that some sort of legal availability for adults would, on balance, out-perform the current system. I also think that we’re likely to see national legalization within a couple of decades.

But the post-prohibition policy is likely to look more or less like current alcohol policy – modest taxes and weak regulations, with massive marketing of cheap products leading to widespread drug abuse – rather than the tighter system of high taxes and strong marketing controls I’d prefer.

In any case, I doubt the treaties will play much of a role in shaping the results.

Footnote And yes, this is all in the book, Ch. 10, pp. 145-150, under the question headings “Would marijuana legalization violate international conventions?” “Does Dutch policy violate these international conventions?” “What are the consequences for violating international conventions?” and “Could these international treaties be changed?”

Comments

  1. Josh G. says

    Do you really think treaty obligations restrain the actions of the US in any meaningful fashion? They certainly didn’t in regards to warfare.

    • Barry says

      Or torture, which is against US domestic law and treaties signed by the US (which gives them the force of law).

  2. Bryce says

    Don’t forget medical use. The conventions do permit use for medical and scientific purposes. A regulatory prescription system is something that wouldn’t be in violation of the treaties. The “decriminalization and wink-wink nudge-nudge lack of enforcement” is a bit disingenuous, whereas a regulated prescription regime would keep things aboveboard, albeit for only a certain group of individuals. But yes, doing what Bolivia did with coca–withdraw and then re-acceed with reservations–is the only way to achieve a commercial, legalized market.

  3. Keith Humphreys says

    There is a “federalist out” in UN treaties for countries like the US and Germany, so as long as the federal gov’t remains officially opposed, I agree with Mark that the treaties are not the central issue here.

  4. koreyel says

    The U.S. could withdraw from the Single Convention and re-acceed to it with a “reservation” about marijuana.

    Sure in a universe of rational political actors…

    I think you are getting a little rational fictive here Mark. A little too logical-cornucopian. I can’t imagine the US acting in such a sensical manner. I see us more as a rogue nation going forward. Global climate deniers who won’t participate in any treaties, esp. those dealing with accountability for carbon pollution or war crimes.

    If that seems a little dark…

    It seems like only a few years ago we were talking about the coming Democratic majority…
    Exit that idea stage right.
    And then a year or so ago, there was hopeful liberal snickers that Obama might win AZ…
    Exit that idea stage right.
    Where are we now?
    Pondering the real possibility of President Romney being worth a cool billion in 2016.

    If Romney wins there will be a huge lurch to the right that will make Goldwater look like a liberal and Nixon a commie.
    The nation will have chosen its future. And all this talk about marijuana legalization?
    “Pot” pies in a red sky…

    (Unless of course, the right sees it as a way to control the masses along the lines of Huxley’s soma.)

  5. Alejandro Hope says

    There is of course a potential alternative to denunciation to the treaties and reaccession. A number of countries could potentially negotiate a convention on cannabis that allowed for commercial or non-commercial production and sale. Under principles of international law, the most recent convention would trump prior treaties (this possibility, as well as the mechanics of denunciation, was discussed here: http://www.beckleyfoundation.org/cannabis-policy-moving-beyond-the-stalemate/). Whether or not that is a viable or desirable scenario is a different question, but I think it reinforces the point made by Mark: international law is not the biggest constraint facing marijuana policy reform. There are ways around the restrictictions imposed by the treaties.

    Best regards,

  6. says

    I know the discussion here is focused on the US, but we should not lose sight of what has happened and is happening in other countries. On the one hand, Bolivia has already denounced the 1961 Single Convention on Narcotics and will soon know whether its petition to reaccess it with reservations has been successful or not. Uruguay, on the other hand, is about to send to its congress a bill that would give the government monopolistic control on the production, distribution and selling of marihuana—in Uruguay’s view the bill would be in compliance with the UN Conventions. It seems to me that several articles of the 1961 Convention (for instance, art. 23, 28 & 36) seem to support Uruguay’s arguments. As for Europe, I discuss its stance on decriminalisation and the 1998 Convention here: http://bit.ly/MbIcJ5

    Gart Valenc
    Twitter: @gartvalenc

  7. says

    1. We can just disobey the treaty. We’re a superpower. Nobody’s going to stop us.

    2. State stores may very well be protected under Printz and New York v. United States. In any event, as a practical matter, if a state government put its police on guard at the state stores, federal agents would not be stupid enough to shut them down. Agaisnt a state government determined to deal drugs, no federal court order would be remotely enforceable.

  8. says

    The notion that the US will be bound by any sort of international treaty on this issue is a bit naive. The Geneva Conventions prevent us from torturing people, so we just (re?)interpreted waterboarding as “enhanced interrogation.” I know that the UN SCOND talks about legalizing drugs, and we’re talking about legalizing drugs, so semantics isn’t necessarily the issue, but the bottom line is when you’re a global hegimon you don’t have to abide by international treaties when you don’t want to. If the Obama/Romney administration decides, for reasons of political expedience or lack of resources, to “mind its own business” – otherwise known as federalism – it’ll find a way around the convention. And as Mark and Keith have pointed out, there are pretty easy outs built in to the treaty already.

    As an aside, Mark, you say “we’re likely to see national legalization within a couple of decades.” I live on Capitol Hill, but like visiting LA. You live in LA, but, I imagine, come to DC frequently. I’ll bet you one cross-country round trip flight (economy, I work on a non-profit salary) that Congress passes legislation enacting the “mind your own business” policy by the end of 2017 at the very latest (and likely sooner).

    Dan Riffle
    Legislative Analyst
    Marijuana Policy Project
    driffle@mpp.org

  9. says

    Denunciation of the treaties by the US, with or without a petition to re-accede, would be a tsunami in the small international drugs law world, as it would break the fragile global consensus and pose immediate headaches to other countries like Mexico. There would be enormous pressure to convene a new conference of the parties to redraft the treaties.

    The current régime consists SFIK of three of them; the “single convention” of 1961 belies its name. If there’s appetite for a comprehensive reform of the whole system, international law offers a neat legal mechanism in the “replacement convention”: the parties to the new convention are bound by it in relation to each other, but the old conventions continue to hold elsewhere. So the change is not held up by the slowest link.

    I know because I used this device to reform the European standards on recognition of school-leaving and higher education qualifications, grandfathering out an opaque mess of previous standards into the Lisbon Recognition Convention. Replacement mechanism here, Article XI.4. However, the previous standards didn’t have an enforcement mechanism like the Convention, so it was in that sense more simple.

  10. beowulf says

    “Uruguay, on the other hand, is about to send to its congress a bill that would give the government monopolistic control on the production, distribution and selling of marihuana—in Uruguay’s view the bill would be in compliance with the UN Conventions”

    That’s fascinating. You know, the US Postal Service actually sort of needs a new revenue stream. Win-Win. :O)

    • beowulf says

      Actually, giving the Post Office the pot monopoly is the best way to achieve withe Mark’s wish of high taxes and strong marketing controls to prevent massive marketing campaigns (of course, the Supremacy Clause would prevent state and local police from shutting down the mailman from playing the part of the weedman).
      1. If the govt is the seller, the tax would be whatever it set as the retail price.
      2. I’d like to think we can all agree that there is no First Amendment obstacles to US Government regulating the marketing activities of the US Government.