The United Nations (UN) International Narcotics Control Board (INCB) 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.
The Single Convention on Narcotic Drugs of 1961 is an international treaty that controls activities such as, cultivation, production, supply, trade and transport of specific narcotic drugs and lays down a system of regulations for licenses, measures for treatment and research for medical and scientific uses; it also establishes the International Narcotics Control Board (INCB).
The 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 it released last week stands out by appearing to indirectly address state-level reform efforts 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 INCB further states that "The internal distribution of powers between the different levels of a State cannot be invoked as justification for the failure to perform a treaty,” without directly referencing state-level legalization in the U.S.
The practical impact of this analysis is currently unclear. In clear contradiction of the 1961 treaty, Canada and Uruguay, both members of the UN, have federally legalized marijuana for adult use within their nations without any discernible consequences from the INCB. It remains notable that the international organization is leaning on the six-decade-old treaty to imply that the U.S. is relinquishing its duties to stay in compliant by allowing states to legalize marijuana for recreational purposes.
INCB did say that a 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”.
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”. The INCB also stated that, “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 because, 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 offences.'”
The 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 these arguments.
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, the INCB noted that there’s a lack of uniformity in the results of that policy change. They 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”. Although the INCB states that “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.
So far, member nations that have moved forward with legalization have not faced any penalties by UN.
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