What are the Possible Ramifications of the UN’s Vote to Reschedule Marijuana?

Posted by mikosra on Thursday, December 3, 2020 in News, Updates.

On Wednesday, the UN Commission on Narcotic Drugs narrowly voted to re-schedule cannabis under the Single Convention on Narcotic Drugs of 1961. In particular, the Commission approved a recommendation from the World Health Organization (WHO) to remove cannabis from Schedule IV of the Single Convention on Narcotic Drugs of 1961. (The recommendation in full stated: “Delete cannabis and cannabis resin from Schedule IV of the 1961 Convention.”)

Coverage of the vote can be found in Marijuana Business Daily here and the New York Times here. The full Single Convention is available here.

Let me make four observations about this development.

1. The vote means that the UN no longer considers cannabis to be a “particularly dangerous” substance

To see why, it’s necessary to understand the Convention’s odd scheduling structure, which differs from the Controlled Substances Act’s (CSA) more familiar model.

Under the Convention, the most dangerous drugs are placed on Schedule I (just like in the U.S.). There are 116 drugs now on Convention Schedule I. The list includes cocaine, fentanyl, heroin, opium, and cannabis. Importantly, cannabis remains on Schedule I under the convention, notwithstanding the Commission’s vote to remove it from Schedule IV.

A small subset of those Schedule I drugs – those with “particularly dangerous properties” — are also placed on Schedule IV. Convention, Art. 2(5). Prior to the Commission’s vote, cannabis had been included on Schedule IV, alongside 16 other Convention Schedule I drugs (heroin is the only drug from the list above that is considered dangerous enough to be included on Convention Schedule IV). By removing cannabis from Convention Schedule IV, the Commission necessarily indicated that it no longer considers cannabis to be among the “particularly dangerous” of the most dangerous drugs. So it’s more like opium and cocaine than heroin. But . . .

2. The change in marijuana’s status is mostly (and perhaps purely) symbolic.

The New York Times article linked above includes a lot of quotes from advocates and commentators suggesting that the UN vote is monumental and historic. In a symbolic sense,  I suppose it is. But while the Commission’s vote signals a softening of attitudes toward marijuana, it does not affect how cannabis is supposed to be regulated under international law, because cannabis remains on Convention Schedule I. And the the Convention requires member states to tightly control all Convention Schedule I drugs. Convention, Art. 2(1). (The WHO rebuffed entreaties to recommend moving cannabis to a lower Schedule.)

Importantly, under the Convention, there is no practical consequence to placing a drug on Convention Schedule IV. In other words, the treaty does not require member states to impose additional controls on Convention Schedule IV drugs beyond those they are required to impose on Convention Schedule I drugs, although it does suggest that they might consider imposing tighter controls.

The Commission vote thus has no effect on how international law regulates cannabis. The WHO acknowledged as much in its response to written questions back in November 2019:

It is important to note that the international control measures in place for a drug included in Schedules I and IV are the same as those for a drug in Schedule I. Therefore, there would be no weakening of the international control of cannabis if it was included only in Schedule I. For Schedule IV drugs, countries are encouraged to consider additional control measure, but such measure are not mandated by the 1961 Convention. (page 22)

3. The Convention doesn’t require any drugs (even Convention Schedule IV drugs) to be banned outright.

Interestingly, the Convention does not obligate member states to ban any drugs outright. The treaty allows nations to legalize the use of any drug for medical or research purposes – even Convention Schedule I and Convention Schedule IV drugs. The Convention thus differs from the CSA, which bans medical use of drugs on Schedule I (although the CSA does allow limited research on such drugs).

Again, this observation just reinforces the notion that removing cannabis from Convention Schedule IV has no practical significance. The United States could have legalized the medical use of marijuana without violating the treaty, even before the Commission’s vote. The federal Drug Enforcement Administration (DEA) has always acknowledged this, as I discuss in the book on pages 274-275.

4. Could the UN’s move nonetheless give Joe Biden more leeway to relax US controls on marijuana?

I’ve previously discussed two ways that international law has constrained federal cannabis policy.

First, while he was Attorney General, Jeff Sessions cited international law as his excuse to block a 2016 Obama Administration policy that would have expanded access to marijuana for research. As I discuss in an earlier post (here) and in a short American Journal of International Law article (here), the Obama policy would have expanded the number of licensed suppliers of marijuana for research (currently, there is only 1). Sessions tabled the Obama reform because he claimed it would have put the U.S. in violation of international law.

I think the Biden Administration will resuscitate the Obama reform. I don’t think the Biden needed the Commission vote to do that — he could have just said Jeff Sessions was wrong (indeed, every prior Administration had read the treaties more flexibly than did Jeff Sessions). But the Commission’s vote certainly doesn’t hurt. And it might help Biden explain to the world why the federal government shifted its views of international law between presidential administrations, without throwing Jeff Sessions under the bus in the process.

Second, and more interestingly, the DEA has always claimed that international law limits the Attorney General’s power to reschedule marijuana (and other drugs) under the CSA. As I have discussed previously, in this post, and in this forthcoming article, POTUS and Pot, the CSA requires the Attorney General to comply with international law when making scheduling decisions. Critically, the DEA has previously interpreted the Single Convention to require controls imposed by the CSA on Schedule I or Schedule II drugs. In other words, the DEA has previously taken the position that the Attorney General cannot move marijuana below Schedule II without violating the Convention (and thus, the limits of the Attorney General’s own authority under the CSA). A prominent federal court has endorsed this interpretation of the Convention and the corresponding limits it imposes on the Attorney General’s authority to reschedule marijuana, as I discuss in the book on pages 274-275.

Based on my analysis above (point 2), the Commission’s vote may not give the Attorney General any more leeway to reschedule marijuana under the CSA. After all, if the vote did not relax the controls required by international law, then the Attorney General still may not move marijuana below Schedule II of the CSA.

However, it’s possible the Biden Administration could use the vote as an excuse to revisit the DEA’s interpretation of our Convention obligations (the interpretation dates from 1975). In other words, the Biden Administration might suggest that the Commission’s vote sheds new light on the Convention, and that the controls the CSA imposes on Schedule III (or even Schedule IV) drugs would be sufficient to satisfy our treaty obligations under the Convention (and perhaps always would have been sufficient). Again, the Biden Administration might not have needed the Commissions’ vote to make this move – agencies can change their interpretation of federal and international law if they please. But the Commission’s vote gives the Administration cover and an excuse to reexamine previous agency decisions, and it also might help the Administration distinguish that federal court opinion mentioned above that endorsed the DEA’s prior interpretation of international law and the Attorney General’s CSA scheduling authority.

Of course, the Commission’s vote won’t allow the Biden Administration to sidestep all of the limits international law places on its scheduling authority. For example, moving marijuana to CSA Schedule V would plainly go too far, because the Convention requires prescriptions for all Convention Schedule I drugs, but the CSA doesn’t require prescriptions for CSA Schedule V drugs.

Given the divided federal government we’re likely to have over the next two years, any development that affects the Biden Administration’s unilateral authority to relax federal controls on marijuana is worth watching closely.

Tags: cannabis, Commission on Narcotic Drugs, international law, marihuana, marijuana, schedule, single convention on narcotic drugs, treaty, UN, united nations, WHO, World Health Organization