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.

Comments

  1. Frank says

    I wonder how this UN Convention will play out with Uruguay legalizing and creating a state-monopoly for cannabis?

    • Keith Humphreys says

      Frank: I initially had the same impression you did, that they were going to start “state stores” and control the supply themselves. But a colleague who has been consulted with them says that isn’t clear — it may be a commercial system. Whether that’s a distinction that matters to the UN I don’t know, but on policy substance a private company would seem more likely to export which would make other nations complain which may make the UN feel more compelled to act.

    • Katja says

      Actually, under the Single Convention on Narcotic Drugs, governments are permitted to cultivate, trade, export, and import Cannabis (see article 28 in conjunction with article 23), either directly or via designated third-party cultivators. The US government does that, too, though only for research purposes and in very limited quantities.

      Sale to individuals and possession of Cannabis is generally prohibited under the convention, but could arguably be decriminalized for such small quantities as the Uruguay proposal permits (plenty of other countries have done that already, after all).

      The proposal would also permit small-scale personal growth (up to six plants, I believe), which could also be labeled as a decriminalization.

      • Keith Humphreys says

        ..the Uruguay proposal permits

        Katja: Do you have an up to date link on what their proposal actually is? I am getting competing accounts including from people who have been there and would like to know what is going on. Thanks.

        • Katja says

          I wish I had one. I’m going by what I had read a couple of months ago (and possibly, with some details lost in translation), but it would be natural for a controversial legislative proposal to morph quite a bit during that timeframe. The limits that I remember were purchasing up to 40g of Cannabis per month and growing up to six plants at a time. These quantities seem to be in line with existing decriminalization limits.

          Anyhow, the bigger point I was trying to make is that the convention apparently has a loophole for the state-sponsored cultivation of Cannabis, which Uruguay may be making use of.

          • Keith Humphreys says

            Subsequent to my comment I have been in touch with someone who is working with the Uruguayan government on this on a close basis who has informed me that no one yet knows what the end policy will be,

          • Alejandro Hope says

            Keith,

            I know I’m pretty late on this, but here is the full text of the bill approved by the Uruguayan lower house: http://www.diputados.gub.uy/informacion/pl_47IV/0708-C1785-12.htm. It’s still pretty thin on details, particularly on taxation, licensing and prices, but it does seem there will be prívate firms at the production and retail level, with a state monopoly handling the wholesale end (along with parallel systems for self-grows and cannabis clubs).

            Best regards,

  2. Mike says

    Keith,
    Excellent analysis of a difficult and complex subject area. It adds specific reference to exactly what legal mechanisms are in the treaty that substantiate the arguments of those of us who offered a variety of sometimes tangential political reasons why the treaty is no barrier to state-level legalization. Obviously, some lawyers in Justice and State have likely been aware of this provision all along, yet have chosen to remain silent when politicians over the years have repeatedly cited the treaty as some absolute prohibition on the repeal of prohibition. That may be their job, but I think we all understand now the treaty itself is no barrier to reform in the US.

    It is at the intersection of politics and law that policy is made. Sometimes you go with what you have already in your quiver. Sometimes either the legal authority or political context needs to adjust for good policy change to happen. Lord knows we have a century of bad policy to fix. Burning strawmen like the UN treaty facilitates that process through a sort of intellectual “creative destruction.” Thanks.

  3. Katja says

    Keith,

    there are two different problems here. One is whether the federal government can override state law if it wishes to continue current policies; the other is whether the federal government can avoid complying with the Single Convention on Narcotic Drugs (while claiming that it’s still adhering to it).

    With respect to the first question, states can pass whatever laws they like; but they cannot set aside federal law. If federal law makes something a crime, then state law cannot make it not a crime. The question of Eric Holder suing Washington or Colorado is moot; simply executing federal laws in Washington and Colorado (i.e., arresting and charging Marijuana vendors) would suffice to (1) comply with the SCND and to (2) kill legalization dead..

    For the other question, i.e. whether the federal government can avoid complying with treaties (while claiming that it does comply), the answer is generally yes, if it’s willing to accept the consequences. A classic example is Article 6bis of the Berne Convention, the “moral rights” clause. The US government has never implemented article 6bis, except for the very limited scope of the Visual Artists Rights Act. It has argued (unpersuasively) that moral rights are already de facto guaranteed by existing US copyright law, but that isn’t the case.

    Now, frankly, moral rights would be a poor fit for US copyright law and contract law, but it shows that the government HAS gotten away with completely ignoring part of a treaty it signed. There’s generally no court in questions of international law that can issue binding judgements (except where agreed upon by the parties); international law is enforced, if anything, by consensus and reciprocity. The price the US government would risk paying is that with too blatant violation of the treaty, other countries may simply not feel bound by it any further or the US could find it difficult to negotiate future treaties. Nobody cares much about the moral rights clause; Cannabis trade would likely be a different story.

    Note that the US could also simply withdraw from the convention under Article 46 if the federal government were really keen on legalization, but that would have similar consequences.

    • James Wimberley says

      There isn´t a static international community view on cannabis, as there is on moral rights in copyright. The legalisation in Uruguay and Colorado/Washington is simply an extreme expression of a much wider dissatisfaction with the prohibition entrenched in the UN treaty and the drug warrior club of its institutions. There´s been a lot of decriminalisation, and enforcement practices change all the time. There´s no need for the USA to be defensive on this. It it wants to, it can take the opportunity to push for a wider review of the treaty and its mechanism. Above all, there must be room for policy experiments.

    • Keith Humphreys says

      @Katja. You wrote “With respect to the first question, states can pass whatever laws they like; but they cannot set aside federal law. If federal law makes something a crime, then state law cannot make it not a crime.”

      This what my supremacy clause quoting colleagues said, but it’s not an argument that I hear anyone making. States cannot make it not a federal crime, but they are under no obligation to make it a state crime and that I think is what is at issue.

      You wrote “The question of Eric Holder suing Washington or Colorado is moot; simply executing federal laws in Washington and Colorado (i.e., arresting and charging Marijuana vendors) would suffice to…kill legalization dead..”

      Even if they had the willingness, the feds don’t have the resources to police states that legalize, so I don’t see legalization being killed dead in this manner. They can bust big boys who break the rules, but that’s about it.

      • Katja says

        This what my supremacy clause quoting colleagues said, but it’s not an argument that I hear anyone making. States cannot make it not a federal crime, but they are under no obligation to make it a state crime and that I think is what is at issue.

        Hmm, that hasn’t been my understanding (of course, I’m currently living one ocean removed from America, so that understanding may be less than complete). But under the anti-commandeering doctrine, I don’t see how the states could be made to pass or enforce anti-drug laws. (New York v. United States: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Printz v. United States: “The Federal Government may neither issue directives requiring the states to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”) Conversely, at least for now (i.e., unless Bond v. United States overturns that precedent), Missouri v. Holland ensures that Congress can implement treaties against the wishes of the states and that such an implementation overrides state law. So, if the federal government wanted to enforce the convention, it would have to do it itself unless the states cooperate voluntarily.

        Even if they had the willingness, the feds don’t have the resources to police states that legalize, so I don’t see legalization being killed dead in this manner. They can bust big boys who break the rules, but that’s about it.

        The problem would be that each business would essentially be writing its own indictment through required paperwork and tax returns. In Washington, the investigation would be a two step process: (1) Get a list of all businesses who have requested marijuana licenses. (2) Check their state tax returns for the amount of taxes on the sales of marijuana that they’ve reported. Congratulations, you’ve got an open and shut case with a written and signed confession. Now, there may be remaining practical issues (e.g., would a Washington Grand Jury be willing to indict someone who’s followed WA law in good faith?), but there would still be a considerable risk of both losing your business and spending a few years in federal prison. I’m skeptical that a great many business owners would be willing to run that risk (especially if they have family). You don’t need to prosecute everybody, just enough to skew the risk-benefit analysis.

        Now, thankfully, Barack Obama and Eric Holder appear to be smart enough not to do that, but I don’t see a reason why the law would bar them from doing just that.

        • Keith Humphreys says

          @Katja: We may be underestimating the extent to which we agree.

          On point 1, I agree that this is not going to happen – what I am reflecting is that other people who critiqued my argument said that it can/should happen. On point 2, yes, as Mark has written about here you could do that if you were willing to commit the federal law enforcement and court time and prison time to it…but then what?: No one applies for licenses anymore they just produce what they want as they see fit, no one does a background check, future legalization states simply repeal all their mj laws and don’t bother with regulatory systems at all…my point is that it would be a strange victory in marijuana control for the federal government to effectively eliminate all controls on legal marijuana, which is what this strategy would do.

          • Katja says

            Keith, it wasn’t my intent to express some fundamental disagreement. A bit more than nitpicking, though.

            For the scenario that you outline, the states would have to be willing to engage in complete legalization AND deregulation. I just don’t think this is going to happen, in particular because it would be difficult to sell to their electorates.

            In either event, two questions remain are: (1) Would the federal government be stupid enough to enforce the laws regardless of the wishes of the states (and their voters) just because it can, and (2) would the federal government feel compelled by treaty obligations to enforce these laws?

            With respect to (2), your guess is as good as mine. The current administration seems to be smart enough to largely let Washington and Colorado do their thing and seems to be of the opinion that there is enough wiggle room. With respect to (1), I can’t feel certain, at least not as far as the future is concerned. As somebody who currently has to deal with the stupidity that is FATCA, I wouldn’t even put it beyond the current members of Congress, and God only knows what future administrations will do.

          • Keith Humphreys says

            For the scenario that you outline, the states would have to be willing to engage in complete legalization AND deregulation.

            I wonder about this as well. I don’t expect a legislator to do it, but ballot initiatives are funny things and I just don’t know how, say, California would vote on an initiative that said “State law enforcement against marijuana shall cease”.

            I do know how many police feel, which is that once a state votes for legalization, they don’t want to do the enforcement — even against black markets. So if a state regulatory system were struck down be the fed, I am not convinced that state cops would leap into the breach and start arresting pot smokers.

          • Mike says

            Keith,
            I don’t know about how the police feel about their role once legal markets start, but glad to hear of your assessment on that.

            Despite what some politicians are trying to do in reaching for “prohibition-lite” as they drag their heels trying to stop the legalization express, once marijuana does enter a legal market, then the police have no more business dealing with day-to-day management of marijuana distribution than they do presently with alcohol and tobacco. Yeah, unless someone hurts somebody driving stupid, engages in sales to minors, or an unlicensed outlet is discovered, etc, it’s up to the regulators to manage, NOT the police.

      • Mitch Guthman says

        Keith,

        I think Katja is right generally and also she’s right about how the Washington State’s regulatory regime itself obviates the resource constraints on Federal prosecutions of even very low level traffickers. Everyone (and I do mean everyone) who participates in the Washington system is going to create an immense body of perfect evidence, much of it very likely under oath. What do you think is going to happen when these people have to file state and federal income tax returns?

        Equally as important, there’s no safe harbor for the business records which everybody in the system from traffickers to growers to landlords is required to maintain for many years in support of their tax returns. Everybody who is participating in the regulatory scheme is going to be preparing bulletproof historical conspiracy cases against themselves on an ongoing basis. Making cases against the growers, wholesalers, bankers, venders and employes will be as easy and inexpensive as filling out a SDT.

        With all these people creating evidence against themselves, you’re not talking about Justice needing some kind of elite, expensive organized crime strike force like in the Pizza Connection cases. The clerical staff can gather the evidence and new lawyers looking for jury trials would more than adequate to push these cases through the system to their inevitable guilty pleas.

    • Brett Bellmore says

      “states can pass whatever laws they like; but they cannot set aside federal law.”

      Technically, they cannot set aside federal law enacted pursuant to the Constitution. Which, sad to say, is not all federal law.

  4. kathleen chippi says

    The Single Convention Treaty signed in 1961 exempts STATE REGULATED MEDICAL cannabis and and use from Federal control. My attorney and I have been trying to get a high court to hear our arguments. We will keep trying. The feds do not control on medical–they do on recreational.

    • Mike says

      kathleen wrote:
      “The feds do not control on medical–they do on recreational.”

      Well, they imagine they control both, but the reality is they control neither.

      Obviously, this does not prevent them from acting like a bully. Might makes right…for now.

  5. Mitch Guthman says

    I’m not following your line of reasoning. You seem to be saying that properly ratified treaties are binding on the national government but not on it’s constituent states, which means that treaties aren’t binding at all. So the nuclear test ban treaty is binding on the federal government t but not on Texas? Basically, you’re saying that for the sake of legalizing marijuana you think we should return to the Articles of Confederation?

    Obviously, that’s not what you mean or want. What you really want is some kind of a kludge that will allow us to legalize marijuana by essentially breaking these treaties without anybody in the Congress having to actually stand up and vote for either of these things. I think it’s a bad idea, a bad precedent and a course of actions that fraught with danger for a political system premised on the rule of law.

    • Brett Bellmore says

      Not so much a kludge, as a recognition that the federal government exceeds it’s authority when it presumes to ratify a treaty supposedly binding on states in THEIR areas of supremacy. Which areas they do have, thanks to the 10th amendment. When the federal government ratifies a treaty which pretends to regulate matters subject to state jurisdication, it’s not really much different from the US adopting a treaty which presumes to bind Uruguay; One sovereign is pretending to bind another without it’s consent.

    • Keith Humphreys says

      You seem to be saying that properly ratified treaties are binding on the national government but not on it’s constituent states, which means that treaties aren’t binding at all. So the nuclear test ban treaty is binding on the federal government t but not on Texas? Basically, you’re saying that for the sake of legalizing marijuana you think we should return to the Articles of Confederation?

      If this is directed at me I don’t follow you. The post doesn’t advocate anything. This principle mentioned in the post is well-established in UN treaties for federalist countries; I didn’t just now make it up. And I didn’t advocate marijuana legalization or treaty breaking either at all, so don’t know what you are on about there.