North Carolina Journal of International Law

Volume 43

New US Federal Policy toward Recreation Cannabis to ease the Tension between International Drug Law Policy and Select US State Law?

By: Molly Rubin

In 1961, the United Nations drafted the Single Convention on Narcotics Drugs (hereinafter “The Convention”), which was entered into force in 1964 and was subsequently amended by the 1972 Protocol. This Convention was formed in pursuance of the following goals: to develop a single instrument to replace the multilateral treaties concerning drug laws, to reduce the number of international treaty organizations dealing exclusively with the control of narcotics, and to formulate provisions guiding the control of the production of raw materials of narcotics.[1]  Though the Convention covers all narcotics, this report will focus on its provisions concerning the production and regulation of cannabis, specifically Article 28, “Control of Cannabis.”

First, the Convention refers to the preceding Article 23, “National Opium Agencies,” to articulate its policy on cannabis.[2]  The Convention then separately states “[t]he Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”[3]  In referencing Article 23, the Convention makes clear that the same rules that govern opium poppy also govern cannabis. The Convention mandates that a party which permits the cultivation of opium poppy and/or cannabis (via its incorporation in Article 28) shall maintain one or more government agencies to carry out the approved government functions.[4]

The remainder of Article 23 specifies the limited scope of the agencies in permitting the production of opium poppy and cannabis.[5]  This includes the authority to designate areas of production; to license cultivators with the extent of land used for cultivation specified; to require delivery of the product to the cultivator; and to have the exclusive right of importing, exporting, and wholesale trading and maintaining stocks other than by those held by the manufacturers of the opium or cannabis.[6]  Overall, Article 23 reinforces that government agencies are the only entities with the power to designate such cultivations of opium and cannabis. The Convention classifies marijuana as a Schedule I substance, similar to heroin and cocaine. In line with the treatment of heroin and cocaine, Convention adherents agreed to make the cultivation, sale, and purchase of marijuana a punishable offense for anything other than strictly regulated medical or scientific use.[7]

How does the US policy on Cannabis Conflict with the Convention?

While national headlines focus on the dissonance between US federal policy on recreational cannabis use and eight state’s recent legalization of it, this debate overlooks a crucial aspect of federal drug law. In addition to the federal government’s ban of recreational cannabis, it also prohibits the legalization of medical cannabis, in line with the strictly regulated guidelines of the Convention. Under federal law, cannabis is treated like every other controlled substance, including heroin and cocaine.[8]


The Controlled Substances Act (CSA) (21 U.S.C. Section 811), similar to cannabis’ status in the Convention, classifies cannabis as a Schedule I drug.[9]  This designation means that the federal government views cannabis as a highly addictive drug that presents no medical value. This classification severely limits doctors’ ability to prescribe cannabis for medical purposes under federal law, allowing them only to “recommend” its use as narrowly permitted under the First Amendment.[10]


Both the federal government’s and the international community’s strict treatment of cannabis starkly conflicts with the eight states that have legalized both its medicinal and recreational use. Due to this incongruity, in 2016 many agencies have promulgated guidelines and additional policy memos to directly address this tension. Notably, on August 23, 2013, the Department of Justice (DOJ) issued a guidance memo (the Cole Memo under then US AG James Cole) to prosecutors explaining that enforcement of cannabis laws is not a priority, as long as the manufacturers are following the stipulated guidelines of operation.[11]  This included conditions like preventing the sale or distribution of cannabis to minors and preventing the flow of cannabis across borders, in exchange for the condonation of the federal government.[12]


However, in January of 2018, United States Attorney General Jeff Sessions showed his intent to enforce states’ conformance with federal policy on cannabis by rescinding the Cole Memo. Id. Many argue that this action has created a chilling effect among cannabis businesses, given the uncertainty surrounding whether the federal government will actually pursue the prosecution of a company. Id. People also warn against the likely economic loss this initiative poses to both state and federal government, the former by means of costing potential jobs and tax revenue and the latter in the form of the unavoidable costs the Justice Department would incur in shutting down the entire legal cannabis industry.[13]


What is the International Community’s Response to this Federal-State Tension over the Legalization of Recreational Cannabis?

Although the United States has violated international treaties in the past, the present failure to enforce the Convention guidelines is markedly different due to the reasoning behind their action—or, more specifically, the federal government’s reluctance to act under the Cole Memo. While in the past external factors have made actual compliance with the treaty difficult to achieve, with respect to cannabis laws, the United States is actively choosing to disobey the policy of the Convention.[14]


However, there are significant challenges that an administration would face in combating states’ legalization of cannabis. Most notable is the federalism debate, which questions whether the prohibition of cannabis under the Controlled Substances Act could lawfully preempt the states or if states have power to regulate the sale of cannabis unencumbered by any federal policy. As more and more states begin to legalize cannabis, it will be more difficult for the United States to assert compliance with international treaty. It is argued that this non-compliance on the part of the United States is especially dangerous because of its unique position in the international community where it demands compliance from other counties in all other international agreements, due to its own high compliance and respected reputation. Such non-compliance would then be internationally perceived as a blemish, causing other countries to be less likely to reciprocate in treaty enforcement in other areas.[15]


Many speculate that Sessions’ enforcement of federal drug law policy doesn’t actually have much teeth behind it, as the business structure and states’ reliance on cannabis as revenue is already too far gone for the federal government to successfully intervene.[16]  Depending on whether Sessions’ declaration is one of only actions or words, it may simply invert the prior alienating relationship. Rather than being resented in the international community for its selective enforcement, the federal government will instead likely face backlash within its own nation for its actions of strict compliance. Given the recent cultural trend toward legalization, as well as the federalist argument for state’s rights, the possibility of enforcing federal law is threatening on several levels. As of yet, the international community (via the UN) has yet to make an official public statement regarding Sessions’ new agenda, and in fact may not comment on it until actual steps are taken by the federal government.[17]


The Future of International Drug Law Policies: Balancing the Need for International Drug-trafficking Laws and the Changing Realities of Society


The added value of international drug law is clear in the pervasive threat of drug-trafficking that extends past borders and oceans, and it only enhances the demand for and proliferation of highly addictive, life-threatening drugs. However, for those drugs that pose less drastic consequences to society, such as cannabis, there should exist greater flexibility to allow nations to carve out their own exceptions within international law.


For example, in Researchers Wells Bennett and John Walsh’s report on cannabis, they advocate for a treaty amendment that allows a national government to create more lenient cannabis policies, while still keeping open the possibility of intervention if problems result from such drug liberalization.[18]  Policies such as this would allow a nation to break away from international code when it is reasonable to do so, such as in the case of recreational cannabis, while still having a safeguard in place in the case that the national policy does get out of hand. Due to the fast-paced de-stigmatization of cannabis in the United States, and the likelihood that other countries will undergo similar cultural shifts, it makes sense to have an adjustable framework like the one suggested. Until such changes occur, however, the United States is likely to receive mild criticism from the international community, unless Sessions’ push for uniformity with federal law is actually carried out, despite the disadvantages to doing so. When the only threatened harm is reputational, however, this may not be enough to deter federal policy.



[1] Final Act of the United Nations Conference for the Adoption of a Single Convention on Narcotics Drugs, 1961 (hereinafter “the Convention”).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Supra note 1.

[7] Id.

[8] If the US legalizes marijuana, international law could be thrown into turmoil, The Inquirer: Daily News, Philly (Jan. 11, 2018),

[9] 21 U.S. Code § 812

[10] Supra note 8.

[11] Federal Marijuana Law, Americans for Safe Access,

[12] German Lopez, The Trump administration’s new war on marijuana, explained, Vox (Jan. 5, 2018, 10:35 am),

[13] German Lopez, The Trump administration’s new war on marijuana, explained, Vox (Jan. 5, 2018, 10:35 am),

[14] Jonathan Rauch, Marijuana Legalization Poses a Dilemma for International Drug Treaties, (Oct. 16, 2014), Brookings,

[15] Id.

[16] Michael Chernis, Jeff Sessions Marijuana Move will Backfire (Jan. 7, 2018),

[17] Id.

[18] Jonathan Rauch, Marijuana Legalization Poses a Dilemma for International Drug Treaties, (Oct. 16, 2014), Brookings,

Post navigation