State Legalization of Personal Recreational Marijuana Possession & Use: U.S. International Treaty Obligations and the August 29, 2013 DOJ Memorandum on Marijuana Enforcement

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On the 24th and 26th of February 2015 Alaska and the District of Columbia legalized personal recreational marijuana possession and use, becoming the 4th and 5th  States to do so.  In 2012 when the voters in the states of Washington and Colorado each passed a referendum (Initiative 502 (I-502), and  Amendment 64, respectively)  to permit legal, personal recreational use of marijuana, there were a number of news stories and commentaries (including a NY City Bar Association report) which stated that these laws put the federal government in violation of its treaty obligations under the international drug control conventions of the United Nations. Officials at the United Nations itself said this was the case in 2013. In 2014 when Oregon voters passed a referendum legalizing personal recreational use of marijuana (Measure 91) there were more news stories reporting similar statements by U.N. officials. 

The U.S. Constitution (Art. VI, cl.2) clearly states that federal law, including treaties, supersedes state law. The federal government of the United States, therefore, has the authority to prevent the states from implementing their marijuana personal use laws if it believes that those laws are in conflict with its treaty obligations.  On August 29, 2013, however, the Department of Justice (DOJ) of the United States issued a Memorandum Updating Marijuana Enforcement which permits the implementation of these laws to proceed rather than using federal law to preempt them, thus signaling that the U.S. Department of Justice believes that the laws do not necessarily conflict with the United States’ obligations under the international drug control conventions.

So, let us look at the  of the provisions in the state laws of Colorado, Washington and Oregon legalizing personal recreational marijuana use and the applicable provisions of the Single Convention on Narcotic Drugs of 1961 and its 1972 protocol, which the United Nations says these state laws contravene, to help us to assess the DOJ’s determination reflected  in the August 2013 memo that the implementation of State law provisions which legalize the personal possession and recreational use of marijuana does not necessarily violate the federal government’s treaty obligations.

The State Laws’ Provisions with respect to the Personal Use of Marijuana

Colorado’s Amendment 64  allows for both personal use and commercial growth and sales.  Personal use permits adults above the age of 21 to grow cannabis plants(3 immature plants and 3 mature plants) in a locked space, legally possess all the cannabis from the plants they grow so long as it stays where it was grown, legally possess 1 oz. (28 grams) of marijuana or THC while traveling. Residents can also give other citizens a gift of up to 1 oz.  Non-residents of the State can possess 1 oz. legally but can purchase  only ¼ oz. (7 grams) in a single transaction. Personal use is regulated for health and public safety in a manner similar to alcohol. 

Initiative 502, passed by the citizens of the state of Washington, legalizes the adult possession, in private, of up to one ounce of cannabis for personal use (as well as the possession of up to 16 ounces of marijuana-infused product in solid form, and 72 ounces of marijuana-infused product in liquid form) is not subject to criminal or civil penalty. The public consumption of marijuana is subject to a civil violation and fine.

The residents of the state of Oregon passed Measure 91 which allows for the production and possession of homegrown marijuana for noncommercial purposes at household by one or more adults over the age of 21 of 4 marijuana plants and 8 oz. of usable marijuana, homemade marijuana products not exceeding 16 oz. in solid form, homemade liquid marijuana products not to exceed 72 oz.

Applicable Provisions of the United Nations Treaty

The United Nations drug control treaty which sets out the control regime for marijuana (called cannabis in the treaty) is the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol

Articles 22 and 28 specifically deal with cannabis but Article 28 also refers back to the provisions regarding opiates set out in Article 23, while various of the other sections apply to all the controlled substances.

The Convention does not ban all uses of cannabis but rather recognizes that there are legitimate medical and scientific uses for it and so permits its cultivation and sets out the regulatory controls that each nation needs to have in place when they allow such cultivation.   Moreover, Article 28(2) exempts from the treaty entirely the cultivation of cannabis for industrial use (fiber and seeds) and for horticultural purposes.  Article 30, Trade and Distribution, sets out the rules under which cannabis and other controlled substances can be sold and distributed--requiring licensing, and labelling among other regulations. Article 49(2)(f) of treaty even permitted States where there was existing legal personal use of cannabis to become party to the treaty to reserve the right to continue this practice for up to 25 years after the treaty came into force.

The main thrust of the treaty with respect to cannabis appears to be Article 22(3) which states the obligation of the parties to the treaty is to “prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”  While possession of cannabis and the other controlled substances is covered by Article 33, which states that parties “shall not permit the possession of drugs except under legal authority.”  

So, looking at the memo of August 29, 2013, it seems fair to say that the Department of Justice believes that the states which enact marijuana personal use and possession laws (as well as medical marijuana laws)  can meet the requirements of the Single Convention with respect to the control of its use, trade and distribution, and thus make its possession legal.   It is clear, however, that the federal government retains its authority to hold the states to the requisite standards or to invalidate the state laws should they not be met.

The United States Supreme Court may have the opportunity the decide whether the Department of Justice has properly assessed the federal government's treaty obligations with respect to international drug control in permitting the implementation by individual states of laws permitting the personal possession and use of marijuana. In December 2014, Oklahoma and Nebraska filed a lawsuit in the Supreme Court against Colorado to invalidate that state's marijuana law grounding their argument on international treaties, among other sources of federal law.

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Sarah Cox
Foreign, International, and Comparative Law Librarian,UConn Law

Sarah Cox is the foreign, international and comparative law subject specialist in the Law Library.  She is the primary library liaison for the LL.Ms in the U.S. Legal Studies program, for the members of Connecticut Journal of International Law and the other J.D.s who take foreign and international law courses, as well as carrying out regular reference department duties.  Sarah received her J.D. from UCONN Law, her Masters in Library and Information Studies and a Certificate in Bibliography from the University of California, Berkeley, and holds a B.A. and M.A. in European History.