Pubdate: Wed, 05 Mar 2014
Source: Reason Magazine (US)
Copyright: 2014 The Reason Foundation
Author: Jacob Sullum


U.N. drug warriors falsely claim that treaties compel U.S. states
to ban pot.

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

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

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

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

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
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