Bureaucratic politics 101: the U.S. adjusts its position on the drug treaties

INL’s Shawshank Redemption: thanks to cannabis legalization in WA and CO, the US now finds “flexibility” in the drug control treaties.

Historically, the United States was the chief architect of the prohibition-oriented international drug control regime, and among the most “hawkish” of the signatories (along with Sweden, France, Russia, Japan, and Singapore, and much of the Arab world). The U.S. did a bunch of finger-wagging at the Dutch for their relatively liberal policies. And the Bureau of International Narcotics and Law Enforcement in the State Department (“INL” in Alphabet-speak, informally “Drugs and Thugs”) has long been one of the more hawkish players in internal drug-policy debates.

The treaties, on their face, require the criminalization of not only drug dealing but drug use. One of the arguments made against the tax-and-regulation approaches adopted by initiative in Colorado and Washington State was that their adoption would put the country out of compliance with its treaty obligations. There are legal loopholes: the treaties acknowledge that their obligations apply to each signatory only insofar as consistent with its domestic institutional arrangements. Since the U.S. federal government, the party bound by the treaties, lacks the constitutional power to require criminalization at the state level, it’s not clear that the actions by Colorado and Washington State voters can be said to have been illegal under international law.

Uruguay has gone further, legalizing at the national level. The Uruguayan government argues that even that is allowed by the treaties, because the treaties recite the reduction of illegal drug trafficking and the protection of public health among their stated goals, and the Uruguayan law is designed to accomplish those goals. Whatever the merits of that argument legally – personally, I don’t think it passes the giggle test, though as a policy matter I’m glad Uruguay is making the experiment and hope it succeeds – it is one that the United States could once have been counted on to scorn.

And yet, when the U.N. Commission on Narcotic drugs met in Vienna last month, and some member countries got up to criticize the Uruguayan move (which the International Narcotics Control Board, the referee set up by the treaties, promptly denounced) the U.S. had no comment on that issue.

In part that reflects changing U.S. public opinion about cannabis, and the more liberal stance of the Obama Administration compared to its predecessors. But in part it reflects the fact that INCB also blasted Colorado and Washington State, putting INL in the position of having to defend the permissibility under international law of those regimes and of the accommodating stance toward them adopted by the Justice Department. So the voters in those two states in effect forced a change in our national stance in international fora.

Here’s Ambassador William Brownfield, the Assistant Secretary of State in charge of INL, explaining the new stance: the treaties, we are now told, are “living documents,” allowing “flexibility” in how different nations choose to meet their obligations, and we should seek a new consensus about what that means.

Obvious, once it’s happened. (It might not have happened in, say, the Romney Administration.) But, as far as I know, not predicted in advance by anyone, least of all by me.

Footnote It would be easier to take more seriously the self-appointed “Global Commission on Drug Policy” if spokespeople such as Michel Kazaktchine didn’t insist on making nonsensical claims, such as that minor drug offenses account for half of U.S. incarceration (the actual figure is more like 20% for all drug offenses) and that prohibition has failed to reduce consumption (compared to what?) and that alcohol and tobacco control via taxation and regulation have been more successful (by what measure).

Marijuana policy and international law

Do the Single Convention and its successors make marijuana legalization a pipe dream? Kevin thinks so, but I doubt it.

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?”