In November 2012, voters of Colorado and Washington State approved ballot initiatives that legalized and regulated the production, distribution, possession, and use of marijuana for recreational purposes.
These unprecedented actions posed a twofold predicament for the Obama administration. Marijuana remains illegal under a federal statute, namely the 1970 Controlled Substances Act, which explicitly prohibits the cultivation, distribution and possession of marijuana throughout the USA.
That law also implements three drug control treaties to which the United States is a party: the 1961 Single Convention on Narcotic Drugs as Amended by the 1972 Protocol, the 1971 Convention on Psychotropic Substances, and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
The first limits the use of marijuana “exclusively to medical and scientific purposes,” among other things; the third requires states to criminalise nearly all forms of marijuana activity, apart from the medical and scientific.
Whether the United States and its foreign interlocutors can adapt the three conventions to rapidly increasing domestic tolerance for marijuana is a stress test, so to speak, for the adaptability of today’s international legal framework.
If indeed Colorado and Washington do presage fundamental changes in U.S. marijuana law and policy, then the United States’ stance regarding its drug-control treaty obligations will need to measure up to the requirements of international law.
The U.S. assertion of its treaty compliance on the basis of “flexible interpretation” can be questioned.
The International Narcotics Control Board (“INCB” or the “Board”)—a body charged with monitoring drug-treaty compliance and assisting governments in upholding their obligations—has already made clear its view that the United States is now in contravention.
If more U.S. states opt to legalise marijuana, the gap between the facts on the ground in the United States and the treaties’ proscriptions will become ever wider.