Eric Sterling on Marijuana Legalization and America’s International Treaty Obligations

Sunday, August 26th, 2012

If you do not know who Eric Sterling is, permit me to excerpt his bio:

Mr. Sterling was Counsel to the U.S. House of Representatives Committee on the Judiciary from 1979 until 1989. On the staff of the Subcommittee on Crime, (Rep. William J. Hughes (D-NJ), Chairman), he was responsible for drug enforcement, gun control, money laundering, organized crime, pornography, terrorism, corrections, and military assistance to law enforcement, among many issues. He was a principal aide in developing the Comprehensive Crime Control Act of 1984, the Anti-Drug Abuse Acts of 1986 and 1988, and other laws. He has traveled to South America, Europe and many parts of the United States to examine the crime and drug problems first hand. In the 96th Congress, he worked on comprehensively rewriting the Federal Criminal Code. Mr. Sterling was honored by the U.S. Bureau of Alcohol, Tobacco and Firearms, and the U.S. Postal Inspection Service.

In other words, when Eric Sterling says anything about justice system or drug policy reform, it is probably worth your time. In this case, I wanted to discuss Sterling’s recent analysis of marijuana legalization and America’s international treaty obligations. This is a pertinent topic as Colorado, Washington State, and Oregon will all be voting on marijuana legalization initiatives this fall and a conflict with federal law is inevitable (and some would argue that it is already here). In any case, here is Sterling: has a very thoughtful article by three members of the New York City Bar Association’s Drugs and the Law Committee on the way international treaties impact efforts to legalize marijuana in the U.S.

The U.S. has signed the Single Convention on Narcotics (1961) and Article VI of the U.S. Constitution provides that federal law and treaties are the “supreme Law of the Land.” The various states are governed by these treaties, and thus limit the ability of any state to legalize marijuana. This is certain to become an issue in the summer and fall of 2012 as the voters of Washington State, Colorado and Oregon consider initiatives to legalize marijuana. If one or more of these pass, these international treaties will be a factor in how the federal government responds.

The authors — Heather J. Haase, Esq., Nicolas Eyle, and Joshua Schrimpf, Esq. — note that the international consensus behind these treaties is being shaken.

A major change in the traditional protocol of the treaties — don’t rock the boat — is coming from Bolivia. When Bolivia (and Peru) acceded to the Single Convention (what we in the U.S. call ratifying the treaty), they agreed to ban their long-time practices of coca chewing and drinking coca tea after 25 years (Article 49.2(e), Single Convention of Narcotics). Since 1987, they have not been in compliance.

A couple of years ago, Bolivia rewrote its constitution and decided to try to change the requirement that it disapprove of coca use. (Bolivia’s President, Evo Morales, came to political prominence as the leader of the union of coca growers!).

Bolivia tried to get the U.N.’s Commission on Narcotics Drugs to change the prohibition on coca use, unsuccessfully.

Now Bolivia is using different approach which is to “withdraw” from the treaty (called “denunciation,” Article 46, Single Convention on Narcotics) and then joining the treaty again (“accession,” Article 40) but with reservations (Article 50.3). The reservation can be rejected if it is objected to by one-third of the countries that are party to the Single Convention within twelve months after a country notified the U.N. Secretary General it wants a reservation. That means that one-third of the 183 nations (“parties”) have to object.

This type of strategy is outlined in chapter 6 in the excellent book by Robin Room, Benedict Fischer, Wayne Hall, Simon Lenton and Peter Reuter, Cannabis Policy: Moving Beyond Stalemate, (Oxford U. Press, 2010).

Moving beyond the strictures of the Single Convention on Narcotics is a worthwhile goal. I am reminded of that line from Keynes:

“The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.”

Eapen Thampy

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13 Responses to “Eric Sterling on Marijuana Legalization and America’s International Treaty Obligations”

  1. #1 |  Leon Wolfeson | 

    I’d point out, again, that Portugal’s Harm Minimization approach doesn’t need any changes in international law.

  2. #2 |  Dave Krueger | 

    “Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.”

    Interesting words coming from the defunct economist who has enslaved more “practical” men than any other.

  3. #3 |  Bob | 

    So basically… and in a nutshell: “We can’t legalize Marijuana because Magic Rock say no! And everyone believes in Magic Rock.”

    This treaty is ridiculous. No one is following it. No one believes in Magic Rock.

  4. #4 |  ricketson | 

    I usually think of the US as the main advocate for strong anti-drug treaties. In that case, the US would be in an optimal position to weaken the treaties if it so wanted.

    Are there other influential countries that are as fanatically anti-drug as the US? China?

  5. #5 |  John222 | 

    Why can’t they just do the same thing they do with other laws and change the definition of a word or two. If marijuana were not a narcotic, the treaty wouldn’t apply would it?

  6. #6 |  Marty | 

    good post- a lot for me to chew on and dig into… I hadn’t considered how international treaties apply to states’ legalization efforts.

  7. #7 |  Eapen Thampy | 

    Leon: Harm reduction does not equal legalization.

  8. #8 |  jb | 

    Mr. Sterling’s comments are far cry from identifying any obligation of the individual states to enforce treaties entered into by Washington. He didn’t say that, and I don’t believe it to be true. Washington isn’t anytime soon going to reverse itself and change it’s position on marijuana, but international treaties have little to do with that. There will be no change in Washington because there is no will for change in Washington.

    When the states begin to legalize marijuana there will surely be howls of protest emanating from Washington (and from opponents from within the states) that the states are usurping federal authority to define contraband. It is likely the argument that Washington’s authority to enter into treaties will be mixed in with those howls. But it all means nothing. It is a simple fact that the states are not obliged to enforce federal law. It’s a simple fact that the states are not obliged to enforce international treaties. It is a fact that the states will remain subject to those federal laws and treaties. It is a fact that the federal authorities will be on their own to enforce those laws.

    It will be interesting to see how such laws and treaties will be enforced against an unwilling people within states where local enforcement of contraband law is shut down.

  9. #9 |  Leon Wolfeson | 

    @7 – No, it doesn’t. But it works, and doesn’t require the Americans give you permission.

  10. #10 |  Carl Olsen | 

    A state cannot legalize marijuana at the federal level. A state can repeal any laws it has prohibiting the use of marijuana, but that does not change federal law. The treaties are not binding on the states. The treaties also have mechanisms for being amended. States can do whatever they want with marijuana. Federal court precedent is well settled that the federal government cannot force states to enforce federal law. All is well, but we really need to get this changed at the federal and international level, so don’t think state legalization is the end of it.

  11. #11 |  Len | 

    Mr. Sterling does what most do by saying partially quoting article VI, he omits ” Pursuance thereof”. As a power to enter into a treaty that polices personal conduct, as opposed to navigation or commerce, or territorial dispute was never granted then such treaty is null and void. Again, the USC was an instrument of limited, enumerated powers. Theoretically (and unlikely) a substance could be outlawed under the commerce power as part of a trade war, but not as policing policy.

  12. #12 |  Felix | 

    @8 The feds will withhold precious money from states which do not comply.

  13. #13 |  Tatiana Covington | 

    Just ignore the treaties. They are only pieces of paper with ink on them. We’ve got good practice there: more than 400 treaties with the American Indians, and every last one was broken pretty quick.

    Don’t like pot? Don’t smoke it. I don’t.

    I let everyone else just go to hell their own way.