Pubdate: Sat, 08 Mar 2014
Source: Honolulu Star-Advertiser (HI)
Copyright: 2014 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum, Creators Syndicate

U.S. POT LEGALIZATION NOT VIOLATING INTERNATIONAL LAW

Raymond Yans is president of the International Narcotics Control 
Board (INCB), the U.N. agency charged with monitoring the 
implementation of anti-drug 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 well-being."

But according to the INCB, legalization is not 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 on Tuesday, Yans scolds the U.S. 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 does not 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 by 
States parties, 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 provinces."

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, which would obliterate the doctrine of 
enumerated powers and the state autonomy that depends on it.

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 is just flat-out wrong in making such a claim," says 
Richard Elliott, executive director of the Canadian HIV/AIDS Legal 
Network. "The INCB's claim that its narrow, restrictive 
interpretations of the conventions override domestic constitutional 
law cannot stand in light of the actual wording of the conventions."

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 U.S. 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