Pubdate: Wed, 05 Mar 2014
Source: New York Post (NY)
Copyright: 2014 N.Y.P. Holdings, Inc.
Author: Jacob Sullum


RAYMOND Yans is president of the International Narcotics Control 
Board (INCB), the UN agency charged with monitoring the 
implementation of antidrug treaties. It is therefore not surprising 
that Yans takes a dim view of marijuana legalization in Colorado and 
Washington, which he says poses "a grave danger to public health and 

But according to the INCB, legalization isn't just dangerous; 
legalization is illegal. Even Americans who support marijuana 
prohibition should be troubled by the implications of that argument, 
which suggests that international treaties trump the Constitution.

In an INCB report issued Tuesday, Yans scolds the US government for 
letting Colorado and Washington repeal criminal penalties for 
production, possession and distribution of cannabis. "INCB reiterates 
that these developments contravene the provisions of the drug-control 
conventions, which limit the use of cannabis to medical and 
scientific use only," he writes. "INCB urges the government of the 
United States to ensure that the treaties are fully implemented on 
the entirety of its territory."

Under our federalist system, however, states have no obligation to 
punish every activity that Congress chooses to treat as a crime. The 
Supreme Court has said (based on a dubious reading of the power to 
regulate interstate commerce) that the federal government may 
continue to enforce its own ban on marijuana in states that take a 
different approach. But that doesn't mean the feds can compel states 
to help, let alone force them to enact their own bans.

According to the INCB, none of that matters. "The international 
drug-control treaties must be implemented . . . including states with 
federal structures, regardless of their internal legislation, on 
their entire territory," it says in a recent position paper. "Those 
treaty obligations are applicable with respect to the entire 
territory of each state party, including its federated states and/or 

In other words, our government is required to impose marijuana 
prohibition on recalcitrant states, regardless of what the Constitution says.

Can that be true? Only if you believe that international treaties can 
give Congress authority that was not granted by the Constitution.

Even if treaties could override federalism, the agreements that the 
INCB cites do not purport to do so. The 1961 Single Convention on 
Narcotic Drugs says compliance is subject to "constitutional 
limitations" and undertaken with "due regard to [signatories'] 
constitutional, legal and administrative systems." The 1971 
Convention on Psychotropic Substances and the 1988 Convention Against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances contain 
similar provisions.

In light of such language, how can the INCB insist that "internal 
legislation" and "federal structures" have no bearing on a country's 
obligations under these treaties? The INCB cites Article 27 of the 
Vienna Convention on the Law of Treaties, which says "a party may not 
invoke the provisions of its internal law as justification for its 
failure to perform a treaty." It also mentions Article 29, which says 
"unless a different intention appears from the treaty or is otherwise 
established, a treaty is binding upon each party in respect of its 
entire territory."

Yet "it's a basic principle of statutory interpretation that a 
specific statute or command trumps a general one," notes Alex Kreit, 
a professor at Thomas Jefferson School of Law who specializes in drug 
policy. In this case, the drug treaties make allowances for the 
constitutional principles that the INCB says are irrelevant.

So is the US government violating international law by letting 
Colorado and Washington do what they have every right to do? No, and 
that desperate claim is yet another sign that pot prohibitionists are panicking.
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MAP posted-by: Jay Bergstrom