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Two New Articles on the International Law Ramifications of State Marijuana Reforms

Posted by on Saturday, June 9, 2018 in News, Updates.

State marijuana reforms raise a host of nettlesome–and seldom discussed–questions about United States compliance with and the ultimate fate of international drug control treaties. Fortunately, two new articles focus on those questions and begin to fill the gap in the literature.

The first is by Brian Blumenfed, an attorney and researcher: Pacta Sunt Servanda: State Legalization of Marijuana and Subnational Violations of International Treaties: A Historical Perspective, __ Pepperdine Law Review __ (forthcoming 2018). In his article, Brian discusses international reactions to state violations of the Treaty of Paris, which ended the Revolutionary War. He then uses that historical experience to help illuminate how the international community might respond to state marijuana legalization, which could put the United States in violation of international drug control conventions.

Here’s the abstract of Brian’s article (the full version can be download on SSRN from the link above):

In November 2012, voters in the states of Colorado and Washington passed ballot initiatives to legalize recreational marijuana industries. Since then, six additional states and the District of Columbia have followed suit, and many more have seen legalization debates in their legislative halls and among their electorates. Over twenty bills introduced in the 115th Congress seek to break federal marijuana laws away from prohibition. Although the national debate is indeed a vibrant one, it has neglected to address how legalization may be jeopardizing the compliance status of the United States under international drug treaties, and what the consequences may be if legalization means breach. For decision-making over marijuana policy to produce creditable outcomes, it must take into consideration the factor of international relations. Subnational conduct implicating treaty commitments is in fact not without precedent in America, and one episode in particular—notable for its contributions to the nation’s constitutional origins—reveals how treaty noncompliance can degrade a nation’s diplomatic standing. This article examines both past and present controversies, and uses the advantages of historical perspective to draw international drug law issues into the legalization debate.

The second paper is by my former student (and now Vandy graduate) Mike Tackeff: Constructing a “Creative Reading”: Will US State Cannabis Legislation Threaten the Fate of the International Drug Control Treaties?, 51 Vanderbilt Journal of Transnational Law 247 (March 2018). Mike’s Note also discusses the possible international law ramifications of state marijuana legalization, but he offers a “creative reading” of international drug control treaties that could help reconcile state reforms with international law.

Here’s the abstract for Mike’s Note (alas, I could not find a free copy of the entire Note online, though it is available on Westlaw and Lexis Nexis):

While marijuana remains illegal at the federal level in the United States, state-level efforts to legalize cannabis have gained enormous momentum in recent years. The federal government, which possesses only limited power to stop this trend, has responded by grudgingly allowing such efforts to proceed, maintaining that its inaction on the issue comports with the international drug control regime. This presents a particularly complex problem for international policymakers and legal scholars, who worry that this state–federal conflict may render international drug treaties meaningless. This Note argues that the federal government’s strategy is a productive lens through which to view an international treaty regime that must change to survive. If state-level cannabis experiments are too far along to rein in and the federal government lacks the power or motivation to stop them, the conventional wisdom is that the treaties will diminish. This Note challenges that misconception and assesses practical transnational dimensions of US state-level cannabis activity, including human rights arguments and sovereignty questions applied to the treaties governing international drug policy. In light of the strict text of the drug control treaties and the accelerating pace of state-level initiatives, preserving the international drug treaties demands a “creative reading” of their text alongside a flexible interpretive schema. This Note seeks to articulate the benefits and limitations of such a novel reading.


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