Up in Smoke: International Treaty Obligations and Marijuana Reform in the United States

• Published date: 01 March 2021
• Author: Kevin J. Fandl
• Date: 01 March 2021
• DOI: http://doi.org/10.1111/ablj.12181

American Business Law Journal

Volume 58, Issue 1, 163–220, Spring 2021

Up in Smoke: International

Treaty Obligations and

Marijuana Reform in the

United States

Kevin J. Fandl*

As the number of U.S. states that seek to loosen restrictions on marijuana

rapidly increases, a heated debate over state and federal regulation has

ignited. But an important component of that debate has been largely

absent—are these state efforts placing the United States in violation of its

international treaty obligations? This article attempts to answer this ques-

tion by tracing the history of marijuana regulation both in the United

States and abroad and outlining the foundations for domestic legislation.

It argues that the experiments happening among a number of states and

countries to liberalize marijuana laws are bearing fruit and should be tied

to a broader reform agenda of the same international narcotics treaties

that the United States sought decades ago.

INTRODUCTION

Dramatic changes are unfolding for the marijuana industry in the

United States. Attitudes toward marijuana legalization have rapidly

evolved, with more than 60% of Americans in 2018 supporting

*Irvin Gross Research Fellow and Associate Professor of Business Law at the Fox School of

Business, Temple University. Ph.D. (George Mason University), J.D./M.A. (American Uni-

versity), B.A. (Lock Haven University). He also serves as the Academic Director for Global

Immersions and the Executive Director of the Temple Center for International Business

Education and Research. Special thanks to the helpful assistance of Nadijah Campbell, who

provided outstanding research assistance for this piece as well as to Inara Scott for her thor-

ough and detailed editing on this article.

©2021 The Author

American Business Law Journal ©2021 Academy of Legal Studies in Business

163

legalization of the drug.

1

More than thirty states have legalized the

medicinal use of marijuana and eleven have enacted laws

decriminalizing the recreational use of the drug.

2

Feder al law

enforcement efforts have dwindled, driven in part by the former

Obama Administration’s guidance to de-prioritize enforcement of

federal marijuana laws and the Trump Administration’s policy of

placing enforcement in the hands of the states.

3

Despite these changes in U.S. attitudes toward marijuana laws and the

bipartisan support for changes to U.S. law,

4

albeit for distinct political rea-

sons, any federal action to terminate enforcement of recreational marijuana

laws faces a major hurdle under international law. The 1961 U.N. Single

Convention on Narcotic Drugs, to which 184 nations subscribe, requires

parties to enact legislation that makes narcotic drug possession and produc-

tion illegal.

5

To implement this treaty, the United States enacted the Con-

trolled Substances Act of 1970,

6

the principal basis for federal prohibition of

marijuana today. Though the Single Convention allows for the medicinal

use of marijuana and research related to the drug, it prohibits its recrea-

tional use and the United Nations has made clear its position in recent

1

Andrew Daniller, Two-Thirds of Americans Support Marijuana Legalization,PEW RSCH.CTR.

(Nov. 14, 2019), https://www.pewresearch.org/fact-tank/2019/11/14/americans-support-

marijuana-legalization/.

2

Illinois became the eleventh state to legalize recreational marijuana in January 2020. Ger-

man Lopez, You Can Now Legally Buy Marijuana in Illinois,V

OX (Jan. 2, 2020, 12:30 PM),

https://www.vox.com/policy-and-politics/2020/1/2/21046592/illinois-marijuana-legalization-

recreational-sales (describing the legalization of recreational marijuana in Illinois);

State Medical Marijuana Laws,N

AT’LCONF.OF STATE LEGISLATURES (Mar. 10, 2020),

https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx (highlighting

states that have legalized some form of marijuana sales).

3

See Eileen Sullivan, Trump Says He’s Likely to Back Marijuana Bill, in Apparent Break with Ses-

sions, N.Y. TIMES (June 8, 2018), https://www.nytimes.com/2018/06/08/us/politics/trump-

marijuana-bill-states.html (expressing support for the Strengthening the Tenth Amendment

Through Entrusting States Act); OFF.OF THE DEPUTY ATT’YGEN., MEMORANDUM FOR SELECTED

UNITED STATES ATTORNEYS (Oct. 19, 2009), https://www.justice.gov/sites/default/files/opa/

legacy/2009/10/19/medical-marijuana.pdf [hereinafter Cole Memorandum].

4

Daniller, supra note 1.

5

Single Convention on Narcotic Drugs of 1961, art. 1, Mar. 30, 1961, 18 U.S.T. 1407,

976 U.N.T.S.105 [hereinafter Single Convention].

6

Pub. L. No. 91-513, 84 Stat. 1236 [hereinafter CSA].

164 Vol. 58 / American Business Law Journal

statements responding to countries that attempt to legalize recreational

marijuana.

7

Accordingly, as the U.S. Congress considers reforms to federal mari-

juana laws and the Executive Branch continues to limit enforcement of

existing provisions of that law, the United States is moving dangerously

close to a violation of its international treaty obligations. In this article, I

argue that the United States, which has historically taken the lead in

advocating for a global war on drugs, must now leverage its leadership

position to end the war on marijuana. International legal obligations

pose barriers to the legalization of marijuana; however, I will explain

how countries have begun experimenting with variations of decriminal-

ization and legalization in an effort to demonstrate the benefits of that

approach.

8

Though historically critical of marijuana, the United States

has recently aligned itself with that position, as it allows states to experi-

ment with decriminalized yet regulated programs for marijuana use.

9

I

will go on to describe the international legal obligations that a legalized

approach to marijuana would entail.

10

Finally, I argue that the United

States should utilize its federalist structure to incubate ideas for the

appropriate balance of marijuana legalization and regulation, and use

the results from these “experiments”to guide reforms of international

narcotics treaties. Those reforms should preserve the nature of those

treaties so as not to weaken other drug control policies.

This article is divided into five parts. Part I and Part II provide the his-

torical context for the current state of affairs by tracing the history of

marijuana and related drug legislation in the United States. Part III dis-

cusses the development and alignment of narcotics regulations in the

United States and around the world. Part IV describes the federalist

experiment in the United States with respect to marijuana legalization or

7

See, e.g., Statement Attributable to the UNODC Spokesperson on Canada’s Cannabis Act,U.N.OFF.ON

DRUGS &CRIME (June 21, 2018), https:// www.unodc.org/unodc/en/press/releases/2018/statement-

attributable-to-the-unodc-spokesperson-on-canadas-cannabis-act.html (criticizing the decision

by Canada’s legislature to legalize recreational marijuana and stating that “this decision contra-

venes the provisions of the drug control conventions, and undermines the international legal

drug control framework and respect for the rules-based international order.”).

8

See infra notes 265–73 and accompanying text.

9

See infra Part IV.

10

See infra Part V.

2021 / Up in Somke 165