An evaluation of the effects of the legalization of marijuana in Colorado and Washington from an international law perspective.

• Author: Bushan, Aparna

1. OVERVIEW

   The legalization of marijuana in the states of Colorado and Washington has raised issues that the international community has not previously been forced to consider. Through examining relevant state laws, current federal legislation and applicable international agreements, this Note will outline the legal ramifications that the legalization of marijuana in Colorado and Washington could have both nationally and internationally. This Note will further evaluate all reasonable alternatives available to the United States in meeting the requirements mandated of it by the international agreements it is party to.

   Main Issue

   The United States' national legislation is currently in conflict with the international agreements it is party to. From a purely national perspective, the federal legislation governing the United States has numerous discrepancies with the recent laws in Colorado and Washington State regarding the usage of recreational marijuana. (1) These discrepancies in national and state law in turn have resulted in international consequences. As a party to various international conventions that govern the use of marijuana, the United States has contravened several convention provisions by allowing for the possession of marijuana. The legalization of marijuana in two states now requires the United States to justify its actions internationally in order to remain party to the affected international agreements. (2) Essentially, the conflict between state and federal law has resulted in a divergence between the United States and the international agreements it is committed to.

   Relevant Background Information

   In order to appreciate the scope of the issue faced by the United States internationally one must first recognize and understand the various drug control conventions the United States is a party to. The United States is a signatory of three different international agreements regarding the usage of illicit drugs: the Single Convention on Narcotic Drugs ("SCND"), (3) the Convention on Psychotropic Substances ("CPS", (4) and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("1988 UN Convention"). (5)

   Single Convention on Narcotic Drugs (1961)

   All of the nations that are signatories of the SCND are required to make the production, trade, and possession of illicit substances for non-scientific and non-medicinal purposes a punishable offense. (6) Therefore, by permitting the legalization of marijuana in Colorado and Washington, the United States violated the agreement.

   The objective of the SCND is to restrict worldwide possession, usage, manufacturing and the trade and trafficking of drugs, with the exception of certain substances that are to be used for purely medical and scientific purposes. (7) The Convention classifies illicit drugs by categorizing them into four separate schedules based on their common usages, features and corresponding levels of control. (8) Cannabis is classified as a Schedule 1 narcotic because of its addictive properties that are perceived as presenting a serious risk of abuse from its users. (9) It is also classified as a Schedule IV substance since it is viewed by the World Health Organization as a drug within Schedule I that is particularly susceptible to abuse and known to produce ill effects that are not offset by substantial therapeutic advantages. (10) Schedules 1 and IV are acknowledged as being the most stringent categories and cover other drugs, including opium and coca. Ironically, cannabis was listed Schedule IV due to pressure by the United States in the United Nations. (11) To monitor and support all the government's party to the treaty in achieving the convention's goals, the SCND established the International Narcotics Control Board ("INCB"). (12)

   The INCB is an independent, quasi-judicial expert body that was established in 1968. Its members serve impartially and currently enforce the provisions of the SCND, the CPS and the 1988 UN Convention. (13) The INCB's duties include questioning governments thought to have violated treaty provisions, proposing remedial measures if governments are found to breach said provisions and, if required, assisting governments in overcoming difficulties they may be facing in enforcing treaty provisions. (14) This requires close cooperation between the INCB and the governments of the nations that are signatories of the conventions it enforces. The INCB also publishes an annual report that outlines the yearly status of the international drug control system and provides recommendations to governments on areas of improvement in drug control. (15) If the INCB discovers that a government has not taken the measures necessary to remedy a situation, it can call the matter to the attention of the parties concerned or remit the issue to the Commission on Narcotic Drugs and the United Nations' Economic and Social Council. (16) As a last measure, the treaties monitored by the INCB allow the INCB to recommend that countries stop importing and/or exporting drugs from the defaulting government body. (17)

   CPS (1971)

   The CPS was established in 1971 to address issues created by drugs that were not covered by the SCND. Similar to the SCND, it too aims to implement an international control system for the illicit substances governed by its provisions. (18) Although the United States is a signatory of this international agreement, a further examination is unnecessary for the purposes of this Note as the Convention does not speak to the national or international effects of the legalization of marijuana in Colorado and Washington.

   1988 UN Convention

   The 1988 UN Convention supplements both the SCND and the CPS. (19) The Convention aims to end international drug trafficking through the promotion of international cooperation between law enforcement bodies. It seeks to prevent illicit trafficking, to promote the arrest and trial of drug traffickers, and deprive drug traffickers of their profits. (20) The legalization of marijuana in Colorado and Washington has breached the 1988 UN Convention by allowing for the production, distribution, sale and delivery of the illicit substance contrary to Article 3(1)(a) of the Convention. (21)

2. ANALYSIS OF THE ISSUE AT HAND

   To better understand the discrepancy in U.S. state and federal legislation a detailed examination of the provisions that govern the two levels of government is required.

   The Federal Perspective on Marijuana

   In 1970 the United States Congress introduced the Controlled Substances Act as a way of nationally enforcing its SCND obligations. The CSA categorizes all illicit substances under five schedules, with each schedule outlining the varying degrees of a drug's potential abuse and its acceptance for medical use in treatment. (22) Marijuana is considered part of the Schedule I substance category (23) which means it has a high potential for abuse, no accepted medical use in the United States, and that there is a lack of accepted safety for use of the drug under medical supervision. (24) Penalty provisions outlined under section 841 of the CSA criminalize marijuana possession, with imprisonment terms ranging from five years to life depending on the various factors outlined in the Act. (25) Despite changes in multiple state provisions regarding the legalization of medical marijuana (26), and the decriminalization and legalization of marijuana (27), current CSA provisions continue to categorize cannabis as a Schedule I substance and criminalize its possession.

   The State Perspective on Marijuana

   In the United States marijuana is currently decriminalized in eighteen states, medical marijuana is legalized in twenty-three states (28) and recreational marijuana is legalized in the states of Alaska, Oregon, the District of Columbia, Colorado and Washington. (29) While specifics vary from state to state, the decriminalization of marijuana differs from current CSA provisions by not subjecting persons found in possession of small amounts of marijuana to criminal records. (30) States that have decriminalized marijuana can still impose state regulatory laws and civil fines on persons found in possession of the substance. Conversely, while laws differ based on jurisdiction, legalizing marijuana removes most legal ramifications associated with usage of the substance. (31) While particulars of legislation detailing legalization differ between Colorado and Washington, both states have implemented similar regulatory schemes regarding the usage, possession and sale of marijuana. Since the focus of this Note is on the legalization of marijuana, it will strictly focus on the state laws of Washington and Colorado, the first government entities in the world to legalize marijuana. (32)

   Both Colorado and Washington decided to reform their previous provisions on marijuana for three reasons: public health and safety, elimination of black market sales and increasing overall tax revenue. (33) From a public health and safety perspective, both states found previous marijuana regulatory laws to be an inefficient use of law enforcement resources that could be better utilized by targeting violent crimes instead. The states also determined that legalizing marijuana by taxing it heavily would result in a decrease in black market sales and an increase in tax revenue, thereby increasing funding for government social assistance programs.

   Washington 1-502

   Washington reformed its legislation through the introduction of Washington Initiative 502 (1-502), which took effect on November 6, 2012 when the legalization of marijuana was authorized by popular vote. (34)

   The 1-502 gives the Washington State Liquor Control Board ("WSLCB") authority to grant licenses to three tiers of marijuana distribution sectors: producers...