Pacta Sunt Servanda - State Legalization of Marijuana and Subnational Violations of International Treaties: A Historical Perspective

Abstract

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.

Following the Revolutionary War, the founding fathers faced the dilemma of state actions clashing with the terms of the peace treaty. Today, state legalization of marijuana is clashing with the terms of international drug control treaties. Reviewing the historical record reveals certain diplomatic risks inescapably tied to questions of treaty noncompliance, and provides instructive examples for how these risks and their consequences have unfolded in our nation’s past. Turning to the contemporary issues with this historical frame of reference highlights the potential costs from marijuana legalization that are external to strictly domestic policy considerations; and above all, underscores the imprudence of leaving international issues out of the legalization debate.

Keywords: marijuana law, marijuana legalization, international relations, united nations, international drug control treaties, supremacy clause, constitutional history, diplomatic history, Treaty of Paris, founding fathers, articles of confederation