UN Body Reaffirms That Marijuana Legalization Violates International Treaties, While Addressing Germany Cannabis Reform And U.S. Psychedelics Movement

The United Nations’s (UN) drug control body is reiterating that it considers legalizing marijuana for non-medical or non-scientific purposes a violation of international treaties, though it also said it appreciates that Germany’s government scaled back its cannabis plan ahead of a recent vote. The global narcotics agency is also taking note of the psychedelics policy reform movement in U.S. states.

This is mostly par for the course for the International Narcotics Control Board (INCB), which has routinely criticized countries for allowing the enactment of cannabis legalization due to their obligations under various Single Convention treaties going back to 1961. But as Germany entered the fold, and the U.S. has continued to move toward marijuana and psychedelics reform, the body is again making its disappointment known.

INCB’s 2023 annual report, which was published on Tuesday, “underscores” that member nations are required to “take such legislative and administrative measures as may be necessary” to criminalize “the production, manufacture, export, import, distribution of, trade in, use and possession of drugs” such as marijuana under decades-old treaty agreements.

“The Board continues to reiterate its concern regarding the legalization of the use of cannabis for non-medical and non-scientific purposes in several jurisdictions, with other jurisdictions considering similar action,” it said.

To that point, INCB also included a recommendation in the latest report to recall an analysis from its 2022 report that, at one point, suggested that the U.S. is out of compliance with drug treaty obligations because the federal government is passively allowing states within the country to legalize marijuana.

“The apparent tension between these provisions and the trend towards legalization must be addressed by the signatories to the three drug control conventions,” it said.

Honoured to launch #INCB's 2023 Annual Report. The thematic chapter highlights opportunities to improve the reach of treatment & prevention services using the Internet & social media, and makes recommendations to address Internet-related drug trafficking. https://t.co/gQIRrmowaNpic.twitter.com/G6mbDLmO6w

— Jallal Toufiq (@INCB_President) March 5, 2024

Meanwhile, the new report also discusses the board’s ongoing monitoring of efforts to legalize marijuana in Germany. The country’s parliament officially approved a bill to legalize cannabis nationwide last month.

“The Board has had ongoing discussions with the authorities in Germany and has taken note of the evolution of the originally planned control measures following concerns expressed by the European Commission, in particular with respect to the provisions on the sale of cannabis in speciality shops to adults for non-medical purposes,” it said.

That’s in reference to changes to the Germany government’s legalization plan that makes it so possession and home cultivation would become legal, while authorizing social clubs to distribute marijuana to members, but not establishing a full-scale commercial market right away.

Overall, while German supporters have said legalization would take effect in April if the legislation is enacted, there are questions about that timeline. The country’s Bundesrat may move to refer the legislation to a mediation committee to address criminal justice-related implications of the law, which could mean several months of additional discussion.

In the U.S., INCB recognized that while “cannabis remains subject to the highest level of control under the Controlled Substances Act, use of the drug has been legalized in several states for non-medical purposes.”

“The Board has repeatedly expressed its concern that these developments may be inconsistent with the country’s legal obligations as a party to the three international drug conventions,” it said.

“The Board continues to maintain a constructive dialogue with the Government of the United States on these matters,” it added.

The report further notes that President Joe Biden’s mass pardons for federal marijuana possession offenses are actively “being implemented” by the Justice Department.

“While the presidential pardon does not expunge the existing conviction, it removes civil or legal restrictions, such as on the rights to vote, hold office or sit on a jury, and lifts barriers to housing, employment and educational opportunities,” it says.

Notably, INCB did not mention the parallel presidential directive that’s underway to review the scheduling status of cannabis under federal law.

The reason that lack of mention stands out is because supporters and opponents of rescheduling under U.S. law, as recommended by the U.S. Department of Health and Human Services (HHS), have made competing arguments about the influence of international treaty obligations in the final decision that the Drug Enforcement Administration (DEA) is expected to hand down.

For example, a Democratic congresswoman recently implored DEA to “reject any argument” that rescheduling marijuana under federal law would constitute a violation of international treaty obligations. She also asked the agency to reveal a list of any “outside partners” it has met with to discuss the global implications of a potential cannabis reclassification.

Legal experts recently released an opinion that disputes that assessment. In fact, they argued that a move to Schedule III would better uphold the country’s broader obligations under international law to regulate cannabis in a way that protects public health and safety.

Among those who’ve raised concerns about treaty obligations blocking a move to Schedule III is Rep. Andy Harris (R-MD), who raised the issue in a letter sent to DEA Administrator Anne Milgram late last month, claiming that any reclassification that puts marijuana outside of Schedule I or Schedule II “would constitute a violation of the Single Convention,” referring to the 1961 United Nations (UN) Single Convention on Narcotic Drugs.

But as a coalition of 12 senators pointed out in a separate letter to Milgram a week earlier, the UN has since revised global cannabis scheduling policies and allowed other member states, such as Canada, to legalize and regulate marijuana without penalty. Those lawmakers urged DEA to legalize marijuana completely.

Additionally, INCB in its new report said that it is monitoring psychedelics policy developments in the U.S. and in other countries, including the legalization of psilocybin services in Oregon and a broader class of psychedelics in Colorado.

“A growing interest in the therapeutical potential of psychedelic drugs and the potential risks in their unregulated use has also been noted,” the report said. “While clinical studies on the use of psychedelics are conducted in some countries, most of the health, wellness and tourism businesses involving the use of psychedelics have been operating without much regulatory oversight. Unsupervised and experimental use of those substances, even in microdoses as self-medication, may put some vulnerable populations at risk.”

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Image element courtesy of Kristie Gianopulos.

UN Suggests U.S. Federal Government Must Force States To Repeal Marijuana Legalization To Comply With International Treaty

The United Nations’s (UN) drug control body is suggesting that the U.S. is out of compliance with a decades-old international drug treaty because the federal government is passively allowing states within the country to legalize marijuana.

While the UN’s International Narcotics Control Board (INCB) has routinely criticized countries for allowing the enactment of cannabis legalization due to their obligations under the 1961 Single Convention to maintain prohibition, a section of the new annual report report it released last week stands out by appearing to indirectly address state-level reform efforts in the U.S.

Press release – International Narcotics Control Board expresses concern over the trend to legalize non-medical use of cannabis, which contravenes the 1961 Single Convention on Narcotic Drugs – more here➡ https://t.co/i9qEPqZa77pic.twitter.com/qNmFpTFQuN

— UN Vienna (@UN_Vienna) March 9, 2023

“In States with a federal structure, a special issue may arise with respect to whether the federal Government may be held accountable if a federated entity implements legalization, which violates the conventions, while the federal Government does not have the power to compel the federated entity to fulfill the treaty obligations,” the report says.

INCB said the 1961 treaty mandates that member nations must “give effect to and carry out the provisions of this Convention within their own territories,” regardless of whether or not they have a constitutionally federalist system like in the U.S.

The convention states that “unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”

“The internal distribution of powers between the different levels of a State cannot be invoked as justification for the failure to perform a treaty,” it asserts, without directly referencing state-level legalization in the U.S. specifically.

“The Commentary on the Single Convention on Narcotic Drugs, 1961 explains that the question of whether a federal State is relieved from obligations under article 36, paragraph 1, of the Convention if it is unable to enact the required penal legislation on account of lack of authority under its federal constitution to do so should be answered in the negative. In the Commentary, it is noted that the lack of authority under a federal constitution would not free a party from the obligation to adopt the required measures if the states or provinces composing the federal State in question have the necessary powers.”

The practical impact of this analysis is unclear, as other UN member nations like Canada and Uruguay have outright federally legalized marijuana for adult use in clear contravention of the treaty, without any discernible consequences from the international body.

But it remains notable that the international organization is leaning on the six-decade-old treaty provision to imply that the U.S. is shirking its duties to stay in compliance by allowing states to legalize marijuana for recreational purposes without taking enforcement action.

INCB did say that more simple decriminalization of possession without allowing sales “can be considered consistent with the conventions as far as it respects the obligation to limit the use of drugs to medical and scientific purposes and under the condition that it remains within certain limits set by the conventions.”

But allowing full adult-use legalization is “in contradiction to the obligations set out in the drug control conventions,” it said.

#Cannabis legalization moves driving consumption, psychotic disorders: UN drugs control board #INCB shows #DrugTrafficking@UN_Viennahttps://t.co/6ZJfx0w2SA

— UN News (@UN_News_Centre) March 9, 2023

Aside from the legalities of cannabis reform under international law, the board offered a number of criticisms against nations that have permitted legalization, and against marijuana consumption in general.

For example, it argued that the “growing availability and potency of cannabis products available on the illicit markets poses an increasing health risk.” And the authorization and expansion of legal cannabis businesses has “contributed to the normalization and trivialization of cannabis use and, consequently, to reduced perceptions of harm associated with cannabis consumption,” it said.

“Criminal organizations linked with large-scale illicit production and trafficking have benefited from the expanding demand for cannabis. This trend represents a growing challenge for the international community, mainly for the States parties to the international drug control conventions, which stipulate that, subject to the provisions of those conventions, any kind of drug use must be limited to medical and scientific purposes and that any use contrary to the provisions of the conventions should be treated as ‘punishable offences.'”

INCB acknowledged that different countries have sought to justify marijuana reform, in part, by maintaining that the policy changes support the convention’s stated goals of promoting health and safety, as well as respecting “human rights principles such as the rights to freedom, privacy and personal autonomy.”

But the board broadly responded by rejecting the arguments. However, it did acknowledge that evidence about the various implications of legalization has been mixed.

“Given this multifaceted and complex picture, it is hardly possible to make general statements and conclusions on the impact of legalization,” INCB said.

For example, the board noted that studies on youth consumption rates post-legalization have produced mixed results, with some research indicating increases in underage use, while others show stabilization or even decreases in such usage.

In the U.S., there have been numerous studies indicating that youth cannabis consumption has either remained stable or declined amid the state-level legalization movement. For example, a federally funded report that was released last month found that teen marijuana use fell from 2019 to 2021—and hit a record low since 2011.

Another concern for the international board is the impact of legalization on the illicit cannabis trade, the report says. While it’s the “objective” of member nations that pursue legalization to minimize the influence of illegal sales, INCB said that there’s a lack of uniformity in the results of that policy change.

It said that “the market for illicit supply persisted in all legalizing jurisdictions, albeit to varying extents, reaching from approximately 40 percent in Canada to nearly 50 percent in Uruguay and 75 percent in California.”

“In the United States, although the legalizing states intended to eliminate or diminish the illicit cannabis economy and the related organized crime, the illicit market continues to thrive,” it says. “It is difficult to fully assess the size of the illicit market because all its activities are ‘underground’ and not well known.”

Missing from the board’s analysis, however, is the fact that prior to legalization, 100 percent of cannabis sales took place in the unregulated, illicit market. And states aren’t turning a blind eye to the problem. California, for instance, has made further stamping out the illegal trade a regulatory priority.

The legalization of non-medical use of cannabis has resulted in increased use, without proper efforts to help users understand the serious health risks associated with the drug.

Latest from the International Narcotics Control Board: https://t.co/CAa3hRkwll#INCBpic.twitter.com/t93pAKEiiE

— United Nations (@UN) March 9, 2023

“Legalization has led to a new legal cannabis market in the legalizing jurisdictions, attracting the interest of large corporations, which see the potential for growth and opportunity for investment,” it noted.

“The causality between legalization and statistical changes in the respective jurisdiction is often not clear. However, one can say, in general terms, that legalization has not achieved the objectives pursued by its proponents. It can be observed that legalization has not succeeded in overcoming the drug problems encountered in legalizing jurisdictions and worldwide. In those jurisdictions, consumption of cannabis is still higher than in others and prevalence of use is apparently increasing more rapidly than in nonlegalizing jurisdictions, with noticeable health consequences. Legalization has not been able to dissuade youth from consuming cannabis. Illicit markets have been partly reduced, but they still survive and flourish in some countries. Organized crime has been widely replaced by an expanding cannabis industry which aims to make profit by increasing sales without regard for public health.”

So far, member nations that have moved forward with legalization have not faced penalties by UN.

In 2020, Canada sent comments to the drug enforcement board defending its legal cannabis law, but that hasn’t moved the needle with the international group. Those comments came about two years after INCB warned its membership not to take exactly the step that Canada did.

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