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The United Nations’s (UN) drug control body is suggesting that the U.S. is out of compliance with a decades-old international drug treaty because the federal government is passively allowing states within the country to legalize marijuana.
While the UN’s International Narcotics Control Board (INCB) has routinely criticized countries for allowing the enactment of cannabis legalization due to their obligations under the 1961 Single Convention to maintain prohibition, a section of the new annual report report it released last week stands out by appearing to indirectly address state-level reform efforts in the U.S.
“In States with a federal structure, a special issue may arise with respect to whether the federal Government may be held accountable if a federated entity implements legalization, which violates the conventions, while the federal Government does not have the power to compel the federated entity to fulfill the treaty obligations,” the report says.
INCB said the 1961 treaty mandates that member nations must “give effect to and carry out the provisions of this Convention within their own territories,” regardless of whether or not they have a constitutionally federalist system like in the U.S.
The convention states that “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.”
“The internal distribution of powers between the different levels of a State cannot be invoked as justification for the failure to perform a treaty,” it asserts, without directly referencing state-level legalization in the U.S. specifically.
“The Commentary on the Single Convention on Narcotic Drugs, 1961 explains that the question of whether a federal State is relieved from obligations under article 36, paragraph 1, of the Convention if it is unable to enact the required penal legislation on account of lack of authority under its federal constitution to do so should be answered in the negative. In the Commentary, it is noted that the lack of authority under a federal constitution would not free a party from the obligation to adopt the required measures if the states or provinces composing the federal State in question have the necessary powers.”
The practical impact of this analysis is unclear, as other UN member nations like Canada and Uruguay have outright federally legalized marijuana for adult use in clear contravention of the treaty, without any discernible consequences from the international body.
But it remains notable that the international organization is leaning on the six-decade-old treaty provision to imply that the U.S. is shirking its duties to stay in compliance by allowing states to legalize marijuana for recreational purposes without taking enforcement action.
INCB did say that more simple decriminalization of possession without allowing sales “can be considered consistent with the conventions as far as it respects the obligation to limit the use of drugs to medical and scientific purposes and under the condition that it remains within certain limits set by the conventions.”
But allowing full adult-use legalization is “in contradiction to the obligations set out in the drug control conventions,” it said.
Aside from the legalities of cannabis reform under international law, the board offered a number of criticisms against nations that have permitted legalization, and against marijuana consumption in general.
For example, it argued that the “growing availability and potency of cannabis products available on the illicit markets poses an increasing health risk.” And the authorization and expansion of legal cannabis businesses has “contributed to the normalization and trivialization of cannabis use and, consequently, to reduced perceptions of harm associated with cannabis consumption,” it said.
“Criminal organizations linked with large-scale illicit production and trafficking have benefited from the expanding demand for cannabis. This trend represents a growing challenge for the international community, mainly for the States parties to the international drug control conventions, which stipulate that, subject to the provisions of those conventions, any kind of drug use must be limited to medical and scientific purposes and that any use contrary to the provisions of the conventions should be treated as ‘punishable offense.'”
INCB acknowledged that different countries have sought to justify marijuana reform, in part, by maintaining that the policy changes support the convention’s stated goals of promoting health and safety, as well as respecting “human rights principles such as the rights to freedom, privacy and personal autonomy.”
But the board broadly responded by rejecting the arguments. However, it did acknowledge that evidence about the various implications of legalization has been mixed.
“Given this multifaceted and complex picture, it is hardly possible to make general statements and conclusions on the impact of legalization,” INCB said.
For example, the board noted that studies on youth consumption rates post-legalization have produced mixed results, with some research indicating increases in underage use, while others show stabilization or even decreases in such usage.
In the U.S., there have been numerous studies indicating that youth cannabis consumption has either remained stable or declined amid the state-level legalization movement. For example, a federally funded report that was released last month found that teen marijuana use fell from 2019 to 2021—and hit a record low since 2011.
Another concern for the international board is the impact of legalization on the illicit cannabis trade, the report says. While it’s the “objective” of member nations that pursue legalization to minimize the influence of illegal sales, INCB said that there’s a lack of uniformity in the results of that policy change.
It said that “the market for illicit supply persisted in all legalizing jurisdictions, albeit to varying extents, reaching from approximately 40 percent in Canada to nearly 50 percent in Uruguay and 75 percent in California.”
“In the United States, although the legalizing states intended to eliminate or diminish the illicit cannabis economy and the related organized crime, the illicit market continues to thrive,” it says. “It is difficult to fully assess the size of the illicit market because all its activities are ‘underground’ and not well known.”
Missing from the board’s analysis, however, is the fact that prior to legalization, 100 percent of cannabis sales took place in the unregulated, illicit market. And states aren’t turning a blind eye to the problem. California, for instance, has made further stamping out the illegal trade a regulatory priority.
“Legalization has led to a new legal cannabis market in the legalizing jurisdictions, attracting the interest of large corporations, which see the potential for growth and opportunity for investment,” it noted.
“The causality between legalization and statistical changes in the respective jurisdiction is often not clear. However, one can say, in general terms, that legalization has not achieved the objectives pursued by its proponents. It can be observed that legalization has not succeeded in overcoming the drug problems encountered in legalizing jurisdictions and worldwide. In those jurisdictions, consumption of cannabis is still higher than in others and prevalence of use is apparently increasing more rapidly than in non-legalizing jurisdictions, with noticeable health consequences. Legalization has not been able to dissuade youth from consuming cannabis. Illicit markets have been partly reduced, but they still survive and flourish in some countries. Organized crime has been widely replaced by an expanding cannabis industry which aims to make profit by increasing sales without regard for public health.”
So far, member nations that have moved forward with legalization have not faced penalties by UN.
In 2020, Canada sent comments to the drug enforcement board defending its legal cannabis law, but that hasn’t moved the needle with the international group. Those comments came about two years after INCB warned its membership not to take exactly the step that Canada did
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