Does Marijuana Legalization Violate International Law?

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 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. 

NEXT: Brickbat: Seek and Ye Shall Find

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  1. Yes! This might cheese off some rightwing UN-haters enough to support marijane legalization just for spite.

    1. I second this. Most Americans don’t want so foreigner to tell them how to run their country, even if they agree with them.

      1. Yeah, some foreigner like Obama.

    2. I think the US has enjoyed hosting the UN for long enough. I think it’s high time some other country experienced the benefits of being host to the UN. I pledge $50 for a special fund to move the UN from New York, New York, to Mogadishu, Somalia.

      Who’s with me?

      1. And then that building can be used to house some enterprise of superior social and moral value. Say, a combination brothel and gambling casino.

        1. That is more or less what the building is used for now.

          1. Except then it would pay taxes.

          2. Nonsense. It is now used as a playground for international remittance men whose vides are never so innocent as gambling or fornication.

            1. I don’t know by what process of personal idiocy or electronic perversity “vices’ became “videos”. My apologies.

      2. But how will they get to the U.N. without ROADZZZZ!!!1!

        1. That’s why I picked Mogadishu, it’s on the coast.

      3. I say we burn it down to the ground and turn it into a public toilet.

      4. I’ve suggested Haiti for some time…

    3. But the flip side of that is that an equal number of lefties who might otherwise be inclined to support legalization will feel that they have to support the UN.

      1. Maybe an equal number of lefties may finally realize the UN is not their friend after all.

        1. They support legalization because government controlling the trade of pot and the subsequent tax revenue gives them a boner.

  2. “International Law”?

    No such abomination. The next time you want to know how binding a treaty is, go visit a reservation. If there’s no mechanism for enforcement, a treaty is just a gentleman’s agreement among rogues.

    1. I was going to say something roughly comparable (although not as eloquent). The notion that international law is binding beyond the willingness of the participants to adhere to it is a fiction to stoke the egos of the diplomatic class.

      1. As well as the US Constitution

        1. I know you were just being snarky, but there is a sense in which this is true. If nobody enforces a law–specifically, if there are no consequences for breaking that law–then it essentially has no power. Look at the way the Feds refuse to enforce immigration laws, for example.

          Pretty scary considering how Congress does nothing in reaction to King Obama’s numerous violations of the Constitution. And how horrifically ignorant, lazy, and tuned-out almost all of America is, politically speaking.

          1. “Look at the way the Feds refuse to enforce immigration laws, for example.”

            The infuriating thing about that is just how much power the laws do have, in that case. Thousands of people are trapped in a legal limbo, where they can be exploited, because we will neither repeal laws we won’t enforce or enforce the laws we have. It’s morally repugnant; much worse than mass deportations, and as far as it could be from harmless.

  3. Raymond Yans should be charged with ugly tree abuse

    1. just made me nose my coffee you ass!
      thanks for the laugh

  4. If the US government would like to be in compliance with the treaty, they must gain additional powers over the states via the constitutional amendment process. Or they could use the more modern method of appropriating additional powers and then back-justifying them through “living document” mental gymnastics in the court system.

    Either way it is not international law that grants the Feds these powers, it would be their desire to meet their treaty obligations that drives them to obtain the powers needed.

  5. Each of these linked treaties allow “denunciation” – any party can send a letter to the UN un-ratifying and pulling out of the treaty.

    Now that the feds can’t constitutionally or practically enforce these treaties without state help, the Pres needs to denounce the treaties. Then he can follow the example of Bolivia and propose the re-ratification of these treaties with marijuana excluded, just as Bolivia re-ratified with an exclusion of traditional coca-leaf chewing.

    This conflict between state law and treaties is simply contrived. If the Pres *chooses* not to denounce, the international consequences are on him. Don’t let him get away with whining, “but the UN!”

  6. How many divisions does Raymond Yans and the International Narcotics Control Board (INCB)have?
    How many guns?
    Yeah, that’s what I thought.

    1. The problem is, Obama can use this guy as an excuse for prosecuting “drug dealers” – “I’d love to respect state MJ laws, but the UN won’t let me!”

      1. The problem is, Obama can use this guy as an excuse for prosecuting “drug dealers” – “I’d love to respect state MJ laws, but the UN won’t let me!”

        That’s not what’s in play here. What this is is establishing the principle that treaties trump Constitutional guarantees.

        It says right in the Constitution:”This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;”. (Emphasis added.)

        The question is, does ‘under the authority of the United States’ limit the extent of the treaty-making power to only that authority granted to the Federal government under the Constitution? It may seem to you and I and any other non-lawyer that it would be absurd to suppose that instruments of foreign law would be more binding on us than our own laws, but unfortunately it won’t be non-lawyers arguing the case.

        And think of why the President would support the UN interpretation – the Executive has authority over foreign relations and therefore can negotiate treaties which would bypass the Legislature in making laws he favors. To hell with not enforcing parts of laws he doesn’t like – he’ll just use the UN to re-write the damn Constitution.

        1. Imagine the Kyoto Protocol having a clause which can be interpreted as declaring that it shall become binding on the signatories from the time it is signed by the Chief Executive Officer, any domestic laws requiring ratification by other governmental branches notwithstanding.

        2. Whatever lawyers may pretend, the US government cannot be given authority or powers that it doesn’t have under the Constitution. It’s impossible.

        3. the Executive has authority over foreign relations and therefore can negotiate treaties which would bypass the Legislature in making laws he favors.

          Not entirely. The Senate still has to ratify any treaties. By a 2/3 margin, IIRC (too lazy to google).

        4. JK: You have the issue down. The major problem is convincing the people of the value of divided sovereignty, the original design of the Constitution. As Jefferson and others predicted long ago, relying on the Federal Judiciary to police its own powers will never work. The only real check on federal power is and ever was the states. The only way out of this is when the state legislatures grow some balls and ban together. I really don’t see any other real solution unless the people stop voting simply D or R.

  7. NATO invaded Yugoslavia to end ethnic cleansing, there was no U.N.
    The U.S. invaded Afghanistan after 9/11, there was no U.N.
    Saddam Hussein violated 17 U.N. resolutions; The U.N. was asked to join the war in Iraq. The U.S. invaded, Ha! there was no U.N.
    Libya bombed a discotheque in Berlin killing Americans, there was no U.N.
    Iran funds Hamas, and attacked the U.S. in the
    seventies, there was no stinking U.N.

    Colorado and Washington legalize a flowering plant with high medical potential, now were supposed to believe the UN is going to enforce something?

  8. As far as I can tell, the feds still have the authority to uphold marijuana laws, just ask Melinda Haag. If the UN wants to argue selective enforcement, then they should take a number.

  9. and how many divisions does the UN have? /Stalin

  10. Not that I have much patience for the U.N., but I have the uneasy feeling that many international treaties regarding the War On Self Medication originated with US.

    Anybody know?

    1. …I have the uneasy feeling that many international treaties regarding the War On Self Medication originated with US.

      Can’t say as I know for sure, but they almost certainly did. That said, so what? We had a shitty policy that we foisted on everyone else. We thought better of it and changed that policy. They’re free to do the same. Or not. That’s their call. But, it certainly doesn’t give us an obligation to remain forever stupid.

  11. One sternly worded letter, coming up!

    1. “Fuck you, Hans Brix!”

  12. An international body of the unelected claiming sovereignty over the people of the earth, is this news?
    America just needs to do what Canada does to the UN and tell them to take their grubby hands off my ball and go home.

  13. Raymond Yans even looks like a giant douchebag. Douchebag is as douchebag does.

    1. My first thought was ‘child molester’.

      1. That does seem to be one of their hobbies.

    2. If smoking weed is what it takes to not be like Raymond Yans then smoking weed should be mandatory for all.

  14. The world society needs the rule of law. How can anyone doubt that the WORLD society is more relevant than the society in Colorado? Without some form of international structure people will just make individualized choices to engage in behaviors and activities that do not benefit the world society.

    1. This is a joke post, right?

      Please be joking.

  15. Backpfeifengesicht (German)

    “A face badly in need of a fist.”

    1. x10

  16. I suggest we respond with a TV series about a president of the International Narcotics Control Board who is secretly a drug manufacturing kingpin. We can title it “Yans Can Cook”.

  17. Fuck the U.N.

    Subscribe to my newsletter today!

  18. “In other words, our government is required to impose marijuana prohibition on recalcitrant states, regardless of what the Constitution says. Can that be true?”

    It may be. The Constitution is a treaty between the sovereign states delegating the states foreign policy to the common federal government. In essence, on matters of foreign policy, the federal government speaks with Colorado’s voice along with the rest of the states.

    I may not agree with federal drug policy, but I do not think it is a slam dunk that the treaties regarding drug enforcement are unconstitutional.

    1. Well, the traties themselves contain provisions taking into account internal political subdivisions of the signatory states. So as long as the federal government is doing what it is constitutionally able under the treaty, then there is no issue.

      1. How is marijuana, or any personal choice a foreign policy issue?

        Methinks the Founders would have found such an idea to be such utter nonsense that it was a non issue at ratification.

        Though really, the 10th Amendment should take care of the entire issue if we didn’t have a corrupt/stupid/reading-comprehension-impaired SC over the years.

  19. I’m too lazy to Google the history of these treaties but I’m sure they were drafted and pushed through by the United States. The irony.

  20. Treaties that mandate a country pass certain legislation are barely worth the paper they’re written on. At least in the US, simply passing legislation that contravenes a treaty is enough to constitutionally neutralize its effects.

    Furthermore, these treaties just seem like gentlemen’s agreements. A quick google search does not seem to indicate they have any enforcement mechanism if a signatory refuses to pass or repeals legislation enacting the treaties.

    1. The way it’s supposed to work is that other signatory nations won’t export their narcotics to yours.

  21. Speaking as a free-born American citizen who has the right to elect the people who will make the laws I must follow, I say to the UN: Go take a cr&p in your fu$??ing blue helmet!

  22. I rather hope the treaty can be interpreted as binding on the states. If so, it is inconsistent with the Constitution and can be completely discarded.

  23. I have never liked all of these entangled treaties. It is none of his business what we do here.

    I would love to see the U.N. evicted from the United States. We don’t need them. Never have.

  24. Indeed, the U.S. government is enforcing drug laws on territory that it controls – D.C. and military bases, for example. Also, sadly, as noted here previously it is enforcing Fe(de)ral drug laws in states which have enacted medical MJ and decriminalized recreational use of MJ.

  25. The only reason other countries honor this treaty is because the US strongarms them. It’s why you see decriminalization but not outright legalization. But what’s stopping the US from legalization? Nothing. It won’t lose funds or troops or bases or anything like that. There’s no downside. Even the DEA gets to keep its jobs because it’s just marijuana we’re talking about.

    1. Somewhere there is a group of bushiness people that will lose money if it is legalized. Wars (be them military, against drugs, or whatever) make money for them.

  26. Dude! Where have you been? Missouri v. Holland (1920). Yes, it’s wrong. Why would a group of smart men carefully write the rules of government and include a phrase allowing the whole thing to be nullified simply by conspiring with foreign governments? But that’s what the USSC said;

  27. The “grave danger to public health and well-being” is the UN.

  28. What’s strange to me is that this sense of panic did not seem to be there 40 yrs. ago. At that time pot prohib’n seemed on the way out, and the opposition was merely trying to delay, saying the research wasn’t all in yet, too many unknowns, etc. In the meantime opposition seems to have hardened into a caricature of what it was then.

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  30. “Does Marijuana Legalization Violate International Law?”

    So many words when all that is required as an answer is “SO WHAT IF IT DOES?”

    Seriously, by nitpicking on what treaty this says or treaty that, you are giving them way more legitimacy and respect than they deserve. If somehow the treaty was worded such that marijuana would indeed violate international law, would it matter to anyone who believes in self-determination? Of course not.
    So why even entertain this bullshit with serious analysis?

    The simple answer is: “The UN and the INCB can go fuck themselves.”

  31. The simple answer is: “The UN and the INCB can go fuck themselves.”

    Shit, I was just going to say exactly that…

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