Marijuana Legalization Poses a Dilemma for International Drug Treaties

I recently sat down with Wells Bennett, a Brookings fellow in governance studies who, along with John Walsh of the Washington Office on Latin America, has authored a new report, “Marijuana Legalization Is an Opportunity to Modernize International Drug Treaties.” We discussed the dilemmas—and opportunities—the Obama administration faces as it balances domestic change against international obligations.

Two U.S. states, Colorado and Washington, have passed laws legalizing and regulating recreational marijuana. Alaska and Oregon may follow suit this November. The Obama administration is letting the states proceed conditionally, though it could (and some say should) crack down. In your new paper you argue that this is a problem for international law, not just domestic policy. Why?

It’s a problem because we’re straining the limits of an international drug control regime that most participants, including the United States, have long understood to be quite strict. It is true that there is flexibility built into this regime, but if you push that flexibility too far, the question becomes: Will treaty partners in this regime and other regimes start to become opportunistic about their own flexibility? That’s something the United States should think about soberly as it works through marijuana policy.

What drug treaties are we talking about?

The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The U.S. has been a strong advocate of all three conventions, and that’s reflected in an almost unbroken fashion from the conclusion of the 1961 convention onward—and in public statements made by Obama administration officials to this very day.

The administration claims its course complies with the treaties. You say you know of no precedent for its claim. What’s so unusual about the administration’s approach?

Here you don’t have the sort of situation the United States has faced in the past, where there was some kind of external factor that made treaty compliance difficult for the executive branch. The administration is choosing to accommodate what Washington and Colorado are doing with marijuana, provided they do it in a rigorous way. What the administration is doing is waiting to see how marijuana legalization is going to turn out, something that could butt up against the limits of enforcement discretion. 

As a legal matter, what do you think of the administration’s argument that it has this kind of discretion?

It has a basis in international law—though the argument will lose a lot of force quickly, if marijuana legalization moves forward and the federal government holds back on enforcement. Considering the policy alternatives, the United States’ approach is nevertheless quite well justified under the circumstances, practically speaking.

So you think it’s okay as a short-term response?

Right, if you want to push domestic policy right now in a direction more respectful of the drug treaties, you would have to do things in domestic law that would be either very difficult or politically toxic. For example, there was a call in some quarters to have the Justice Department bring a lawsuit establishing that the federal Controlled Substances Act, which bans marijuana, preempts the states’ regimes. But doing that would essentially only upend the states’ marijuana rules without restoring their criminal prohibitions of marijuana. In other words, a legal victory on those grounds—which, by the way, is not assured—would require the federal government to take on a much broader enforcement portfolio with regard to marijuana, something it lacks the resources and political appetite to do.

It also matters that the international cost to the United States, right now, is not off the charts at all. The body established by the treaties to monitor compliance has disagreed with the administration’s claim that it is acting lawfully, but it hasn’t gone further than that. And other nations have not publicly been making a lot of noise about the United States’ views. For those and other reasons, wait-and-see is a short-term response that makes a lot of sense.

So, if what the administration is doing makes some sense, what’s the problem?

A wait-and-see strategy, under these circumstances, will look really good if marijuana legalization goes really badly. But if legalization proceeds in a smart and rigorous way—if 10, 15, 20 states enact and operate responsible regimes for the regulation of marijuana—we will be enforcing the Controlled Substances Act less and less in jurisdictions that have regulated, legal marijuana markets. And that will create more and more tension with our international commitments to suppress marijuana. At that point, it will be extraordinarily difficult for the U.S. to maintain that it complies with its obligations.

Why should we care about avoiding a collision between international commitments and domestic policies? Countries technically violate treaties all the time, don’t they?

The United States has a unique role in the world. It can summon powers that no other nation can summon, but it confronts risks that no other nation confronts. If you accept that premise, then the United States has a unique interest in securing reciprocal compliance from its treaty partners. It gets harder and harder to call out our partners for excessive flexibility within the drug treaty structures—or for that matter within other multilateral commitments—after we have claimed a lot of flexibility for ourselves.

You argue that the United States, starting now, should proactively rule in drug-treaty changes as a possibility, instead of ruling them out. What do you mean by that?

So far, in public anyway, the United States has described the drug treaties as living documents that can be updated through interpretation. Now, what’s missing from that is a suggestion that the drug treaties might be changed structurally through provisions established within the treaties themselves. There are real advantages that go with, say, a treaty amendment process.

Your paper emphasizes that revising the marijuana treaties could actually strengthen international law.  How so?

There are two ways to go about ensuring that international law accommodates domestic policy change. One is to engage in a unilateral interpretive exercise. The other is, where possible, to use channels that have been set up in international law itself. There are times when the former route is appropriate, but it carries certain risks, and one of those risks is undercutting an international legal regime on which the United States increasingly depends. The other approach, though it involves costs and challenges of its own, has the benefit of operating within international law itself. Going that route pays tribute to international law.

But why now? Why not wait?

Because you’re always setting a precedent. There are costs to not doing it now. Moreover, the United States has been justly described as the biggest advocate for and defender of the drug treaties. In the past, when it perceived deficiencies in the drug control regimes, it pushed for changes using procedural avenues created by the drug control system itself. So there’s a precedent set by the United States acting within this regime and using the rules that it sets forth.

What kinds of changes should we be starting to think about?

Nothing aggressive or radical, certainly. But ideally you would want to codify at the international level the kind of domestic flexibility that the Justice Department is claiming. For example, you might consider a treaty amendment making clear that a national government could allow federal subunits to liberalize their marijuana policies in a rigorous and regulated way, but still allowing or even requiring the national government to intervene if liberalization at that level goes awry.

Flexibility just for marijuana? Not other illegal drugs?

Right. In fact, that’s an advantage to making these changes using mechanisms within the treaties: when you negotiate for them in that way, you can provide greater clarity about what you’re allowing and not allowing. The United States is understandably anxious about setting bad precedents with respect to much more dangerous substances, things that would cause the whole drug control framework to unravel. The amendment procedure accounts for that in a better fashion than does a unilateral approach.

Is it realistic to talk about adjusting the treaties? Would our partners consider it? Would the Senate approve it?

Yes, I think it is realistic. Reaching a consensus at the international level would be difficult. Obtaining Senate approval would also be difficult. But difficult does not mean impossible. As an issue, marijuana summons unique support from both sides of the aisle domestically. On the international level, the United States has successfully changed the treaties when it has pushed to do so. So the difficulty of the project shouldn’t take it off the table.

If we and our partners made treaty reform work for marijuana, would that ramify beyond drug policy?

At a minimum, success in treaty reform could reaffirm the United States’ commitment to acting within international legal structures, and in that regard give us credibility in all kinds of international forums. Any time you’re trying to persuade parties to a treaty to go your way, it helps to be able to point to other treaty areas and say you acted as scrupulously as possible.