Vol. 37 Articles Editor
Vol. 36 Associate Editor
The Single Convention on Narcotic Drugs of 1961 (“Single Convention”) requires signatories to prohibit recreational use of cannabis within their territories.[i] The United States ratified the Single Convention in 1967.[ii] Under Article VI of the U.S. Constitution, treaties are “the supreme Law of the Land; and the Judges in every State shall be bound thereby.”[iii] In 1970, the U.S. Congress passed the Controlled Substance Act (“CSA”), which categorizes marijuana as a Schedule I controlled substance, defined as a drug with a high potential for abuse, no recognized medical usage and no safe usage under medical supervision.[iv] The CSA imposes criminal liability for growing, possessing or selling marijuana.[v] Enforcement of the CSA would seemingly place the United States in compliance with its obligations under the Single Convention. Now, however, new laws have legalized marijuana in Colorado, Washington, Oregon, Alaska and the District of Colombia. The President’s decision to abstain from enforcing the CSA in these states (and federal district) calls into question the compliance of the United States with its treaty obligations under the Single Convention.[vi]
- Current Status of Single Convention Compliance
The International Narcotics Control Board (“INCB”) and the Commission on Narcotic Drugs of the Economic and Social Council enforce and maintain the international drug regime under the Single Convention.[vii] The Single Convention obligates parties to impose punishment for violations, and even suggests guidelines for punishment, recommending imprisonment for intentional offenses.[viii] Regarding marijuana specifically, the Single Convention states that “[p]arties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”[ix] The language “as may be necessary” fails to couch compliance efforts in any standard of reasonableness, suggesting an expectation of substantial effort by signatories in their enforcement of marijuana prohibition.
In 2013, following marijuana legalization in Colorado and Washington, the INCB urged the United States Government to “take effective measures to ensure the implementation of all control measures for cannabis plants and cannabis, as required under the 1961 Convention, in all states and territories falling within its legislative authority.”[x] On March 13, 2013, INCB President Raymond Yans stated that allowing Colorado and Washington to legalize marijuana would amount to “a violation of international law, namely the United Nations Single Convention on Narcotic Drugs of 1961, to which the United States is party.”[xi] After voters in Alaska, Oregon and the District of Colombia legalized marijuana in November 2014, Yury Fedotov, chief of the UN’s Office on Drugs and Crime (UNODC), emphasized that the new legislation put the United States even further in breach of its international treaty obligations.[xii]
- Potential Impact of Noncompliance with the Single Convention
- The Case of Uruguay
In assessing the potential impact of U.S. noncompliance with the Single Convention, it is illustrative to look at Uruguay, a Single Convention signatory that officially legalized marijuana for recreational use within its territory in December 2013.[xiii] Following the legalization legislation, the INCB issued a statement condemning Uruguay’s decision due to the negative health impact of marijuana consumption and the potential harm it may inflict on youth.[xiv] However, the INCB did not announce any repercussions for Uruguay’s violation of its international commitments.[xv]
- Implications for the United States
Given the INCB’s response to Uruguay, it is unlikely that there will be substantial repercussions for the United States due to state-level legalization legislation. The U.S. government could, however, legally enforce the CSA marijuana prohibition on states by using federal officials, circumscribing state legalization and the use of state officials. Such an approach could be proscribed under the anti-commandeering principle.[xvi] Still, if the federal government were to enforce the CSA without assistance from state authorities, such enforcement would likely be ineffectual, at least given current federal drug enforcement resources.[xvii] Indeed, according to one estimate, if the federal government attempted to enforce a prohibition on just medical marijuana, authorities would only be capable of discovering and punishing only 0.05% of all offenses.[xviii] Although it would perhaps be burdensome for the federal government to enforce the CSA without state support, the “as may be necessary” language of the Single Convention does not appear to excuse lack of enforcement due to expense or impracticality.[xix]
The U.S. government has adopted an official approach of “flexibility” in its interpretation of international drug treaties.[xx] Assistant Secretary of State William Brownfield articulated this policy, pointing out that “things have changed since 1961” and that the United States “must have enough flexibility to allow us to incorporate those changes into our policies.”[xxi] Brownfield went on to appeal to all nations to “tolerate different national drug policies, to accept the fact that some countries will have very strict drug approaches; other countries will legalize entire categories of drugs.”[xxii] The United States thus does not appear poised to enter into compliance with its current treaty obligations.
Withdrawing entirely from the Single Convention or attempting to amend the Single Convention are two potentially feasible options for the United States to resolve its noncompliance with the Single Convention.[xxiii] Treaty withdrawal, however, can bring adverse consequences, including “international isolation, trade sanctions, removal of financial assistance and a damaged reputation.”[xxiv] That being said, the unique position of the United States, often described as that of a “global hegemon” in the international political community, would likely temper any adverse consequences resulting from withdrawal from the Single Convention.[xxv]
On the other hand, the Single Convention permits “[a]ny [p]arty [to] propose an amendment to this Convention.”[xxvi] The United States could propose an amendment to the treaty regarding marijuana provisions. This amendment would then be transmitted to the Secretary-General of the U.N., who would submit the proposal to the Commission on Narcotic Drugs of the Economic and Social Council and to all parties to the treaty.[xxvii] The Commission would then either submit an amendment directly to parties to adopt, or set up a conference to discuss the proposal.[xxviii] Approval of a treaty amendment does not necessarily require unanimous approval; individual signatories may either accept an amendment or reject it and instead remain subject to the original text.[xxix]
The United States will have the opportunity to propose amendments in 2016, when the U.N. General Assembly will host a Special Session on Drugs, known as UNGASS.[xxx] According to Stanford drug policy expert Keith Humphries, UNGASS presents an opportunity to reevaluate domestic and international approaches to marijuana control.[xxxi] Additionally, the new 2017 presidential administration may decide to reevaluate the federal approach to marijuana legality, depending on both the domestic and international political climates.[xxxii]
[i] United Nations Information Service, Uruguay is breaking the International Conventions on Drug Control with the Cannabis Legislation approved by its Congress, Dec. 11, 2013, http://incb.org/documents/Publications/PressRelease/PR2013/press_release_111213.pdf.
[ii] Single Convention on Narcotic Drugs, Mar. 30, 1961, 520 U.N.T.S. 151, available at https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=vi-15&chapter=6&lang=en [hereinafter “Single Convention”].
[iii] U.S. Const. Art. VI.
[iv] 21 U.S.C. 812(c).
[v] Id.; Nathaniel Counts, Initiative 502 and Conflicting State and Federal Law, 49 Gonz. L. Rev. 187, 192 (2014).
[vi] See Shelby Sebens, Voters give nod to legal marijuana in Oregon, Alaska, and Washington, D.C., Reuters, Nov. 5, 2014, http://www.reuters.com/article/2014/11/05/us-usa-elections-marijuana-idUSKBN0IO1362014110; Allison E. Don, Lighten Up: Amending the Single Convention on Narcotic Drugs, 23 Minn. J. Int’l L. 213, 226-27 (2014).
[vii] Don, supra note 6, at 224-25.
[viii] Id. at 225.
[ix] Id. (emphasis added).
[x] Id. at 226-27 (2014).
[xi] UN News Centre, US Recreational Cannabis Use Would Violate International Laws, UN Anti-Narcotics Panel Says, Mar. 14, 2013, http://www.un.org/apps/news/story.asp?NewsID=44376#.VC68rTlYA4O.
[xii] Christopher Ingraham, The U.N. really wishes that voters in Alaska and Oregon hadn’t legalized weed, Wash. Post, Nov. 14, 2014, http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/14/the-u-n-really-wishes-that-voters-in-alaska-and-oregon-hadnt-legalized-weed/.
[xiii] United Nations Information Service, Uruguay is breaking the International Conventions on Drug Control with the Cannabis Legislation approved by its Congress, Dec. 11, 2013,
[xv] Id. See also Don, supra note 6, at 229.
[xvi] Grabarsky, supra note 24, at 14.
[xvii] Id. at 14-15.
[xviii] Id. at 15.
[xix] Single Convention, supra note 2.
[xx] Ingraham, supra note 12.
[xxiii] Don, supra note 6, at 234-37.
[xxiv] Id. at 235.
[xxv] See, e.g., Thomas White, Why U.S. Hegemony Is Here to Stay, Huffington Post, Nov. 12, 2013, available at http://www.huffingtonpost.com/thomas-white/why-us-hegemony-is-here-t_b_4258264.html.
[xxvi] Don, supra note 6, at 236 (quoting Single Convention, supra note 2, at art. 47(1)).
[xxx] United Nations General Assembly Special Session on the World Drug Problem, 2015 http://www.unodc.org/ungass2016/en/about.html.
[xxxi] Ingraham, supra note 12.