Cannabis re-legalization and a more humanitarian and evidence-based drugs policy are both impeded by current UN treaties. This article examines the relationship between the Controlled Substances Act (CSA) and the three pertinent international treaties and how each affects the chances for saner drug policies in the USA, particularly with regards to the re-legalization of recreational cannabis. This article dives pretty deeply into the treaty language and is not for the faint of heart, but if you are the type of person who wants to understand these issues in-depth then you will find this post right up your alley!
How the CSA and UN treaties are connected
When Congress enacted the Controlled Substances Act in 1971, they included an interesting clause the delegates the authority to make drug scheduling decisions to the Attorney General’s office. Here is the CSA in pertinent part:
SUBCHAPTER I — CONTROL AND ENFORCEMENT
Part B — Authority to Control; Standards and Schedules
§811. Authority and criteria for classification of substances
(a) Rules and regulations of Attorney General; hearing
The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule—
(1) add to such a schedule or transfer between such schedules any drug or other substance if he—
(A) finds that such drug or other substance has a potential for abuse, and
(B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or
(2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.
The catch here is the clause “Except as provided in subsections (d) and (e)”. Subsection (e) regards drug precursors and is therefore not applicable to cannabis, which is a plant and therefore has no precursors as defined by law. But subsection (d) regards international treaties. It would appear therefore that an international treaty can override the Attorney General’s discretion under the CSA and indeed this is somewhat true.
However, a careful reading of subsection (d) (which is unfortunately much longer than subsection (a), above) indicates that the influence of international treaties over the AG are limited by statute. Specifically changes to international drug schedules must trigger a review by the Departments of Justice and Health and Human Services but nothing in the CSA requires the US government to accept unequivocally the decisions of the UN. The pertinent clause reads as follows:
(1) If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section. (21 USC §811(d)(1))
The important phrase to note is the “he deems most appropriate” clause, which grants the Attorney General significant leeway in interpreting the extent of the US government’s obligations under these treaties. And there is a lot of room for leeway as the treaties are not as iron-clad as some would have you believe. As we will see, none of the treaties mandate Schedule 1 status for any drug, nor do they mandate that any drug be completely banned.
Currently the only applicable treaties to which the USA is a party are the three UN conventions on drugs:
- The Single Convention on Narcotic Drugs of 1961
- The 1971 Convention on Psychotropic Substances
- The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
The Single Convention on Narcotic Drugs
The Single Convention focuses on the trafficking of narcotic drugs. It treats cannabis the same as opium, requiring:
- If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy.
- This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.
- The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant. (Article 28)
Article 23 dictates controls on opium poppy cultivation and Article 28.1 requires the same controls for cannabis. Under the terms of the treaty governments must regulate the acreage devoted to cultivation and then take physical possession of the entire crop after it has been harvested. Distribution of the crop shall be for medical or research purposes and must be overseen by the government agency or agencies charged with receiving and distributing that crop. In the USA, the National Institute on Drug Abuse (NIDA) fulfills that function. NIDA administers a contract with the University of Mississippi to grow a 1.5 acre crop of cannabis every other year; that supply comprises the only licit source of cannabis for medical and research purposes in the United States under the terms of the treaty.
In addition to the specific language concerning cannabis, it also places cannabis under Schedule IV, which is the most restricted schedule under the convention (analogous to schedule 1 under the Controlled Substances Act). The treaty says this about schedule IV:
5. The drugs in Schedule IV shall also be included in Schedule I and subject to all measures of control applicable to drugs in the latter Schedule, and in addition thereto:
(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and
(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party. (Article 2.5)
Paragraph (a) gives national governments latitude in how to manage controlled drugs and paragraph (b) gives them the option of banning them entirely (which strongly implies that they would also have the option to not ban them entirely). And let’s remember that this paragraph applies to the most restrictive schedule defined in the treaty. Prohibition is optional for every drug in scope for the Single Convention.
So far we have established that national governments have a lot of leeway in determining exactly what measures they take in order to comply with this treaty. The exception is that pesky Article 23, which is written to apply to opium but which also applies to cannabis as per Article 28.1. So let’s take a look at that Article:
Article 23: NATIONAL OPIUM AGENCIES
1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article.
2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium;
(a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted.
(b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.
(c) Each licence shall specify the extent of the land on which the cultivation is permitted.
(d) All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.
(e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations.
3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it.
Basically this section states that any cannabis (other than industrial hemp) grown in the USA must be grown by a licensed grower and the crop turned over to the government within 4 months of harvest. Although the Article seems to require a national agency, the last paragraph (3) gives the US Federal government a loophole big enough to drive the 10th Amendment through. The Federal government therefore has the authority to delegate this task to state agencies.
So far we have seen that the US government is required to manage the cannabis harvest but is not required to place cannabis under Schedule 1. In fact the treaty specifically allows for medical use of cannabis (Article 2.5(a)). However, we have also seen that the government is not in compliance with Article 28.1. In fact, the Controlled Substances Act is a barrier to compliance since under that law the States cannot comply with Article 28.1 of the Single Convention. Meanwhile the Federal government is steadfastly avoiding the issue to the full extent of its power to do so.
The real sticking point is the treaty’s “physical possession” clause (Article 23.2(d), reproduced above). If the states were to actively involve themselves in the physical distribution of cannabis then that almost certainly would be a violation of the Controlled Substances Act (because cannabis is in Schedule 1 at the Federal level).
Not only would the state laws implementing physical possession be unconstitutional but state officials would be subject to arrest by the Feds. This is one of the reasons that each state to adopt either medical or recreational cannabis laws has left the distribution to other parties. This “hands off” approach prevents them from actively breaking Federal law and avoids the situation where compliance with state law would require state officials to break a Federal law. This however does not satisfy the letter of Article 23.2(d) for approximately the same reason that it passes constitutional muster.
There is a possible loophole to Article 23.2(d). Let’s take another look at Article 23.3: The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it.
This clearly means that if a Party’s constitution does NOT permit a single agency (say because of that Party’s 10th Amendment, to pick a hypothetical example at random) then that Party can have multiple agencies that fulfill the role describe by the previous paragraphs in Article 23.
But, what if a Party had a constitution that invested the ultimate authority to govern in the People, and those People wanted to, say, legalize distribution of cannabis for recreational purposes by commercial enterprises? One could argue that in that case the Party’s constitution will not permit even one single agency to fulfill the role defined by Article 23.2. In that case that Party can argue that per Article 23.3 the provisions in Article 23.2 do not apply. It would be interesting to see how that argument played out in an International Court but in the case of international treaties a plausible excuse often is sufficient. We might have to strengthen the “to the people” clause in the 10th amendment for this argument to be really convincing. Unfortunately we might also have to abolish NIDA. Gosh, I’ll sure miss those guys…
Possession by individuals
The only thing the Single Convention says about possession is that “The Parties shall not permit the possession of drugs except under legal authority.” (Article 33) It does not define legal authority so presumably if you legally purchased cannabis at a Denver recreational cannabis outlet then you would be compliant. (The treaty does define “illicit” to mean anything prohibited by the treaty but that is not the word used in this clause.)
Under the Single Convention there are two types of penalties: penalties for non-compliant signatory countries and penalties for citizens of signatory countries.
The treaty does not specify with any precision what penalties for citizens must be other than to say that
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty. (Article 36.1(a))
In the event that seems too harsh, Article 36 then goes on to enumerate alternative interventions that may be undertaken such as rehabilitation, counseling, education, and so forth. Article 36.4 further states that “Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.” Which in the case of Colorado and Washington, for example, would mean not at all.
Penalties for non-compliant signatory states are more varied. They progress in seriousness and begin with a Consultation (which I imagine to be much like a scolding, but by a multinational team of stern-faced diplomats). If that somehow fails to whip the recalcitrant state into compliance then they will next issue a call for remedial measures. If the non-compliant country fails to adopt those measures then they will be the subject of a Study. By now the non-compliant state has probably been cowed into tearful submission but if not they will be brought to the notice of the Parties, the Council and the Commission, who may in turn draw the attention of the General Assembly to the matter! There are more punishments along these lines, with an embargo on drugs trade being the only of any serious consequence. It is not likely that the UN would ever take such a drastic measure, which could cause serious hardships and even mass death to some countries (but not to ours, which by law is not dependent on foreign sources of medications).
Note that nothing in the Single Convention requires the US government to maintain cannabis’ schedule 1 status. So if the US were to incur penalties it would not be due to rescheduling it. Even the least restrictive category is enough to satisfy the treaty. In fact, the treaty does not care one whit about the schedules set out by the CSA and if the Congress would come up with a completely alternate framework for regulating cannabis then the US could remove cannabis from the schedules completely, which is the only course of action that is defensible from a scientific perspective. The treaty does not however allow cannabis to be sold in a completely unregulated fashion the way we sell coffee and toilet paper.
Denunciations, Reservations, and Amendments
Any signatory can withdraw from the treaty by submitting a denunciation of the treaty by July 1 of the year preceding the year in which the withdrawal will become effective. Denunciations received after July first will be effective on the first day of the year following the first January after the denunciation was submitted. (A denunciation is like a letter of resignation saying that a nation quits the treaty.)
There is also a clause permitting reservations:
3. A State which desires to become a Party but wishes to be authorized to make reservations other than those made in accordance with paragraph 2 of this article or with article 49 may inform the Secretary-General of such intention. Unless by the end of twelve months after the date of the Secretary-General’s communication of the reservation concerned, this reservation has been objected to by one third of the States that have ratified or acceded to this Convention before the end of that period, it shall be deemed to be permitted, it being understood however that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by the reservation. (Article 50.3)
This clause applies to new Parties, but the USA could denounce the treaty, only to re-accede (or rejoin) but with reservations. A threat to remain outside the convention should be enough to encourage most signatories from objecting, especially given the size of the US economy and its insatiable demand for controlled substances. This mechanism to avoid Article 23 as it applies to cannabis (via Article 28) will probably never be necessary given the Article 23.3 loophole (described above), but the threat of following this path may discourage other Parties from challenging a stance based on the Article 23.3 loophole.
Signatory states can also propose Amendments. The Single Convention outlines the process for submitting the amendments in Article 47:
1. Any Party may propose an amendment to this Convention. The text of any such amendment and the reasons therefor shall be communicated to the Secretary-General who shall communicate them to the Parties and to the Council. The Council may decide either:
(a) That a conference shall be called in accordance with Article 62, paragraphs, of the Charter of the United Nations to consider the proposed amendment; or
(b) That the Parties shall be asked whether they accept the proposed amendment and also asked to submit to the Council any comments on the proposal.
2. If a proposed amendment circulated under paragraph 1 (b) of this article has not been rejected by any Party within eighteen months after it has been circulated, it shall thereupon enter into force. If, however, a proposed amendment is rejected by any Party, the Council may decide, in the light of comments received from Parties, whether a conference shall be called to consider such amendment. (Article 47)
There are several Articles in the Single Convention that beg for Amendment but the prospect of an 18 month waiting period before the decision is made whether or not to call a new Convention (which must be scheduled well in advance) makes this a long game. Nevertheless, it would be worth considering, if for no other reason then as a service to mankind, or to make up for our being responsible for much of the hard-line stance on cannabis in the first place.
The Convention on Psychotropic Substances
The Convention on Psychotropic Substances of 1971 is a United Nations treaty designed to control psychoactive drugs such as amphetamines, barbiturates, benzodiazepines, and psychedelics. It was signed in Vienna, Austria on 21 February 1971. The scope of this treaty does not include cannabis itself although some synthetic cannabinoids are covered. It does however for the first time make psychedelics internationally illegal, as well as numerous other substances. It makes allowances for medical and research use, which distinguishes it from US law. It also contains exceptions for hallucinogenic plants used for religious purposes, and it declines to outlaw mushrooms containing psylocybin, although it does outlaw the “separation of such substances from the plants from which they are obtained”.
The penalties outlined in this treaty for individuals caught violating the treaty’s provisions follow similar wording to the Single Convention:
1. (a) Subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty.
1. (b) Notwithstanding the preceding sub-paragraph, when abusers of psychotropic substances have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 20. (Article 22)
Since the penalties are subject to “constitutional limitations”, this treaty cannot obstruct the will of the People. (The legislators however can, but that is a different article.)
The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 is the third major drug control treaty currently in force. It provides additional legal mechanisms for enforcing the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. The Convention entered into force on November 11, 1990. As of June 2014, there were 189 Parties to the Convention, including all United Nations member states except Equatorial Guinea, Kiribati, Palau, Papua New Guinea, Solomon Islands, Somalia, South Sudan, and Tuvalu. The Holy See, the European Union, the Cook Islands and Niue are also signatories to this treaty although not currently UN member states.
The purpose to this treaty was to address the failures of the drug war by doubling down. For the first time, possession became a criminal offense:
Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention. (Aritcle 5)
Make no mistake about it; this treaty is harsh. It authorizes confiscation of money and other assets and mandates harsh penalties for individual offenders. However, it does contain this clause:
Article 2: SCOPE OF THE CONVENTION
1. The purpose of this Convention is to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems.
Since the fundamental provisions of our domestic legislative system invests ultimate authority with the People, this provision is more than enough to render the entire treaty moot with respect to our cannabis laws. It is too bad that the political will does not yet exist in the US to denounce this treaty. This is not universally true, however; in 2003, a European Parliament committee recommended repealing the 1988 Convention, finding that:
[D]espite massive deployment of police and other resources to implement the UN Conventions, production and consumption of, and trafficking in, prohibited substances have increased exponentially over the past 30 years, representing what can only be described as a failure, which the police and judicial authorities also recognise as such … [T]he policy of prohibiting drugs, based on the UN Conventions of 1961, 1971 and 1988, is the true cause of the increasing damage that the production of, trafficking in, and sale and use of illegal substances are inflicting on whole sectors of society, on the economy and on public institutions, eroding the health, freedom and life of individuals.
Apparently however the treaty contains no allowance for repeal, and would have to be denounced a country at a time.
There is absolutely nothing in either of the three UN treaties to stop the US from transferring cannabis to a less restrictive schedule, although de-listing it completely (which makes the most sense from an evidence-based perspective) in the absence of other Federal controls could arguably be non-compliant. In fact, the only facet of international law in which the US is now clearly non-compliant does not really have anything to do with schedule 1 status and has everything to do with Washington’s head-in-the-sand approach to statewide cannabis laws. And those state laws cannot comply with the letter of the treaty because to do so would put them in direct violation of Federal law — because of cannabis’ Schedule 1 status!
A much wiser approach would be to charge a Federal Agency with oversight over the various state agencies that have attempted to fulfill the US’ treaty obligations, especially with respect to controlling distribution. The agencies would collect cultivation and distribution statistics for use in the reporting requirements whose descriptions comprise a good chunk of the Single Convention’s text. They could also certify state controls. Even if the Federal efforts were modest they could create a veneer of compliance which is generally all that is needed to satisfy international treaties.
These actions are all that would be required to bring us into compliance with respect to medical marijuana laws. With respect to recreational cannabis, though, the path forward is obscured by the fact that these treaties specifically prohibit recreational use of cannabis. The loophole to Article 23 will not help us if cannabis becomes legal for recreational use nationwide, which is becoming increasingly likely and which is specifically prohibited by the Single Convention.
To effect a more strategic remedy, the US should submit an Amendment to the Single Convention. The amendment should de-schedule or reschedule cannabis and make Article 23 voluntary or offer alternatives thereto.
If the amendment were to fail then it’s next recourse should be to denounce the Single Convention and then rejoin but with Reservations regarding Article 23 and cannabis’ Schedule IV status (which it has at US insistence by the way). It should also denounce the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 on general principles.