By John Walsh (WOLA) and Wells Bennett (Brookings)
- Two U.S. states have legalized recreational marijuana, and more may follow; the Obama administration has conditionally accepted these experiments. Such actions are in obvious tension with three international treaties that together commit the United States to punish and even criminalize activity related to recreational marijuana.
- In essence, the administration asserts that its policy complies with the treaties because they leave room for flexibility and prosecutorial discretion. That argument makes sense on a short-term, wait-and-see basis, but it will rapidly become implausible and unsustainable if legalization spreads and succeeds.
- To avoid a damaging collision between international law and changing domestic and international consensus on marijuana policy, the United States should seriously consider narrowly crafted treaty changes. It and other drug treaty partners should begin now to discuss options for substantive alterations that create space within international law for conditional legalization and for other policy experimentation that seeks to further the treaties’ ultimate aims of promoting human health and welfare.
- Making narrowly crafted treaty reforms, although certainly challenging, is not only possible but also offers an opportunity to demonstrate flexibility that international law—in more areas than just drug policy—will need in a changing global landscape. By contrast, asserting compliance while letting treaties fall into desuetude could set a risky precedent, one that—if domestic legalization proceeds—could harm international law and come back to bite the United States.
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