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50% of Americans Want Marijuana Legal, 70% Want Medicinal Pot -- Are International Treaties Standing in the Way of Legalization?

Missing from US-conducted analyses is a discussion about the international legal system – as embodied in the three international drug control treaties.

The way the world looks at drug control is changing. There has been a growing awareness of the issue for the past decade, as well as increasing public outcry over what many see as a failure of the once popular “war on drugs.”

Nowhere is this battle more pronounced than in the so-called “marijuana wars,” which are slowly growing into an old-fashioned standoff between the states and the federal government. As of June 2012, seventeen states (and the District of Columbia) have passed laws legalizing medical marijuana, several states have introduced initiatives to legalize the use of recreational marijuana, and there are now two proposed federal bills designed to lift the ban on marijuana. The Gallup polls show that at least 70% of Americans support legalizing marijuana for medical use, and over 50% are now in favor of its legalization for recreational use as well. 
With so much movement in the area and so much public support, many are asking: Why is the federal government so vehemently resisting the liberalization of a policy that seems to be inevitable? One of President Obama’s campaign promises was to leave the issue of medical marijuana to state governments. Indeed, his Administration first declared a policy of non-enforcement against medical marijuana dispensaries operating in full compliance with state laws. Over the past year, however, the Administration has backtracked, famously going after not only dispensaries, but also landlords, banks, media outlets and all but the sickest of patients taking advantage of the medical marijuana laws. 
We tend to think of drug policy in domestic terms, attributing the policy to successive administrations; however, underlying domestic policies are three international treaties, to which the U.S. is signatory, that set strict limitations regarding the treatment of certain drugs within our country. Or do they?
While U.S. authorities are resistant to change in drug policy, more liberal marijuana laws seem to be sprouting up everywhere in countries around the world: Denmark, Spain, the UK, and now Uruguay and Colombia, to name a few. World leaders and former leaders across Europe and most recently, Latin America, have been speaking up in increasing numbers, all saying the same thing:  It’s time for the world to start thinking about legalization. 
To better understand how nations set their policies, it is essential to understand the international underpinnings. To this end, the New York City Bar Association’s Committee on Drugs & the Law formed a special subcommittee to study the implications of international law on domestic drug policy reform. We travelled to Vienna to attend the yearly sessions of the United Nations Commission on Narcotic Drugs in 2011 and 2012, and interviewed current and former diplomats and dignitaries working at the international level of drug control, in order to gain an understanding of the worldwide drug control system and its implications for domestic drug policy. 
We found that, while everyone seems to have an opinion on drug reform, many of the legal analyses are limited in scope to domestic factors. Missing from even the most sophisticated analysis conducted in the U.S. is a discussion about the international legal system – as embodied in the three international drug control treaties.  Through our work, we have grown to understand the vast importance of these treaties in the world of international relations, as well as to domestic drug reform.
The International Drug Control Treaties
Americans in general have little awareness that the international drug treaties exist at all, and if they do, they have only vague notions of how the system works. Myths abound when it comes to drug laws in foreign countries – for example, many believe that marijuana is legal in Amsterdam (it’s not), or that the treaties don’t apply to the states (they do). It is clear, then, that any explanation of the system should start with the basics – the international drug control treaties.
The 1961 Single Convention and its Progeny
The 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, forms the basis of the global drug control regime as it exists today, limiting use and possession of opiates, cannabis and cocaine, to “medicinal and scientific purposes.” (Recreational use is not permitted in any form under the Single Convention.) The 1971 Convention on Psychotropic Substances, enacted after an upsurge of drug use in the 1960s, added synthetic, prescription and hallucinogenic drugs to the list. The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances required member countries, for the first time, to criminalize possession for personal consumption.
The Conventions are legally binding under the 1969 Vienna Convention on the Law of Treaties: a country “may not circumscribe its obligations under the treaties by enacting a conflicting domestic law.”  However, there is no international police force in place to force countries to fulfill their obligations. The International Narcotics Control Board’s enforcement powers are limited to “quiet diplomacy,” or “blaming and shaming.” In extreme cases, the INCB can recommend an embargo on all prescription medicines coming into or going out of a country.  However, in our interview with former U.S. Assistant Secretary of State for Narcotics and current INCB member Melvyn Levitsky, he noted that this is “not a strong provision,” since, for humanitarian reasons, it is highly unlikely such a measure would ever be taken. (Ambassador Levitsky emphasized that his statements are his own personal opinions only and do not reflect the views of the INCB.)

Why does all this matter in the U.S.?