The United States is a party to various treaties that impose international obligations relating to the control of marijuana. These treaties generally seek to curb the use of controlled substances while carving out exceptions for “medicinal and scientific” uses. The principle governing treaty in international drug control, which has been agreed to by more than 180 nations, is the Single Convention on Narcotic Drugs (Single Convention). The Single Convention imposes restrictions on the manufacturing, distribution, and trade in narcotic drugs by establishing a multischedule classification structure that applies varying controls for each schedule. This framework later served as the blueprint for the
CSA and other foreign drug control statutes.
“Cannabis” is listed as a Schedule I substance under the Single Convention and is therefore subject to the agreement’s most restrictive controls. For example, parties must “take such legislative and administrative measures as may be necessary ... to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”; limit the quantity of the drug manufactured and imported to “the quantity consumed ... for medical and scientific purposes”; and furnish the International Narcotics Control Board with information, estimates, and statistics related to the consumption and production of the drug.
In addition to the Single Convention, the 1971 Convention on Psychotropic Substances requires that specific controls be placed by parties upon THC, the physiologically active chemical in marijuana, while the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires parties to establish criminal penalties for the possession, purchase, or cultivation of marijuana for nonmedicinal consumption, but only to the extent that such action is consistent with the “constitutional principles and basic concepts of [the country’s] legal system.”
Both the U.S. Drug Enforcement Agency (DEA) and the U.S. Department of State have determined that in order to comply with these international obligations, it is necessary that marijuana remain on either Schedule I or Schedule II of the federal CSA. The DEA, for example, has cited the nation’s obligations under the Single Convention as the legal justification for denying rulemaking petitions requesting that the Attorney General exercise his authority under the CSA to remove marijuana entirely from control, or to transfer marijuana to Schedule III or lower. The legalization measures enacted by Washington and Colorado would appear to be inconsistent with the obligations imposed upon the United States under existing international drug control treaties. However, existing jurisprudence suggests that a reviewing court may not view these treaty obligations, in and of themselves, as sufficient to preempt and invalidate the state laws.
It is well established that treaties, like federal statutes, may preempt conflicting state laws. The Supremacy Clause expressly provides that in addition to federal law, “all treaties made ... under the authority of the United States, shall be the supreme law of the land.” Therefore, a state law is generally preempted to the same degree whether it is in conflict with a federal statute or an international treaty obligation. However, not all treaties are accorded “automatic” preemptive effect. Only where a treaty “constitute binding federal law,” without the “aid of any [implementing] legislative provision,” does it qualify as the “Supreme law of the land” for preemption purposes. Such treaties are known as “self-executing” treaties—meaning an international agreement with “automatic domestic effect as federal law upon ratification.”
The Supreme Court recently clarified the distinction between the preemptive effect of selfexecuting and non-self-executing treaties in Medellin v. Texas. Medellin involved an evaluation of whether a decision of the International Court of Justice (ICJ)—and a series of underlying international agreements that required compliance with ICJ decisions—constituted enforceable federal law with the authority to preempt Texas procedural court rules. In holding that the state court rules were not preempted, the court noted that it had “long recognized the distinction between treaties that automatically have effect as domestic law, and those that ... do not by themselves function as binding federal law.”
Although the ICJ decision had clearly represented an “international obligation,” it did not “of its own force constitute binding federal law that preempts state restrictions.”
Like the ICJ decision at issue in Medellin, neither the Single Convention nor the other international drug control treaties appear to be “self-executing.” Each treaty requires the signatory nation to give legal effect to the goals of the treaty through domestic implementing legislation. The provisions of the treaties do not themselves establish binding domestic law. The United States, for example, implemented the obligations of these treaties through the CSA. Because these treaties do not create binding law “of [their] own force,” it would apear unlikely that a U.S. court would accord the treaties direct preemptive effect. Indeed, in County of San Diego, the California court explicitly rejected treaty preemption arguments on the grounds that the Single convention is non-self-executing. Thus it would appear unlikely that the Washington and Colorado laws would be found to be preempted by existing international obligations.