Understanding the U.N. Treaties, Federalism and Marijuana Legalization

I got private pushback from some major players on both the left and the right of drug policy for my argument that U.N. drug control treaties are not relevant to the legalization of recreational marijuana in Washington and Colorado. The view I expressed in my editorial was that for nations with federalist government like the U.S., U.N. treaties traditionally apply only to federal policy. The U.S. federal government is thus bound by the U.N. drug control treaties it signed but its individual states did not.

A policymaker sympathetic to marijuana legalization directed my attention to Article 3 the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The article includes an agreement to make a huge range of drug-related activities illegal, including manufacture, sales and transport. The article goes on to say: Subject to its constitutional principles and the basic concepts of its legal system [Emphasis mine], each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.

The “subject to its constitutional principles” phrase is the escape clause for federalist countries like the U.S. What the policymaker pointed out to me is that Article 3 invokes it for a subset of the activities covered by the treaty, e.g., possession, purchase and cultivation. This could be read as meaning that the “federalist escape clause” is not intended to apply to activities in the broader list that appears earlier in the same Article, e.g., production, manufacture and offering for sale. All of these are legal in Washington and Colorado, so one could argue from this Article that the U.S. is in violation of the 1988 treaty.

I am not an international law scholar, so I will fall back on a simpler analysis. The Constitution does not require states to mirror federal laws, nor does it give the federal government the power to force states to pass particular laws. If this article indeed means that the federal government of the U.S. promised that no state would legalize marijuana production, then I would say that the government signed onto an agreement that it had no legal power to keep. That’s therefore a problem between the U.S. federal government and the U.N., and does not in any way involve Washington and Colorado.

Some policymakers who oppose marijuana legalization critiqued my op-ed from a different angle by citing The Supremacy Clause of the U.S. Constitution. In their view marijuana is illegal in federal law and that’s an end of it: Washington and Colorado will just have to fall in line. The supremacy of federal law would be relevant if I had argued that federal agents could not enforce federal law in Washington and Colorado, but I did not make that argument. The federal marijuana law still reigns supreme everywhere, but that doesn’t mean that states have to mirror that law and dedicate their own law enforcement resources to enforcing it.

Now, both sides of the debate might say to me: Okay, so the state actions were not violations of the UN treaties, but if the federal government was bound by this treaty then the Attorney General was required to sue Washington and Colorado to overturn their legalization laws. This may well be correct from a legal point of view, but from a substantive drug policy outcome viewpoint, it does not make sense to me.

The reality is that states can simply rescind their marijuana laws and create a wild west policy framework for marijuana. But what Washington and Colorado did was create a regulatory apparatus that is intended to constrain and shape the marijuana market in various respects. So if in the name of the UN conventions or drug control more generally the federal government sues to overturn those regulatory frameworks and it wins the case….it loses. That is, it is illogical to say that the federal government will fulfill the spirit of the UN drug conventions by making sure that any states which repeal their state marijuana laws shall not be allowed to constrain the marijuana market that emerges as a result.