The United States is again in violation of international law. That is a strong statement and one that reminds us of the invasion of Iraq, Guantanamo bay, water-boarding, rendition, and the strong international legal arguments made about these situations.
But in this case the violation will be hailed by many as a positive step.
On 6 November various ballot initiatives were voted on in the US, from abolishing the death penalty to allowing assisted suicide, to legalising gay marriage. Three had the clearest potential to render the US in breach of international law if they succeeded. With the votes in Colorado and Washington which established a legally regulated framework for non-medical production and sale of marijuana, that breach has now occurred.
The laws in question are the 1961 UN Single Convention on Narcotic Drugs and the 1988 UN drug trafficking conventions (which has a longer, duller title). Alongside one other treaty (which deals with synthetics) these form the bedrock legal foundation of the global drug control regime. Most countries follow them very closely, including the US.
Some states have been pushing at the boundaries of these treaties for some time, however, on particular points of contention that have developed in the decades since the treaties were negotiated. Times have changed since 1961. Grey areas have been exploited, arcane scheduling systems utilised, and interpretations adopted that allow more room for manoeuvre.
But what sets these ballot initiatives apart is that there is no grey area to exploit, and it would take some legal gymnastics to interpret your way past that. This is straight up legalisation of recreational use, production, and sale, which is not permitted. It's what the system was set up in large part to prohibit, with marijuana receiving particular attention alongside coca and opium. While most substances are listed in annexed schedules, these three are written into the very terms of the treaties ('cannabis' is the term used).
The US (alongside over 180 other states) is required, under a very robust and politically supported regime, to 'limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs'.
There is more, of course, and there are various provisos and caveats on certain provisions, but this is a 'general obligation' of the regime around which all else revolves. In other words, the US is not just in breach of some marginal aspect of the system, now, but a fundamental requirement of it that goes to the heart of prohibition.
Millions of US citizens are now permitted to buy and sell marijuana for recreational purposes (regulations pending). These laws apply to a population far exceeding that of Sweden (where I am currently sitting) and way over twice the size of Ireland (where I'm from). This would be supported by neither government, which have signed contracts with the US in the form of these international agreements to the effect that none of them would allow it. The fact that this has happened at state and not federal level does not rectify the legal dilemma the US government now faces.
Many in the US and worldwide are celebrating the results in Colorado and Washington as the beginning of the end of the war on drugs - and appropriately through a democratic process. People have voted for the US to breach international law. That very few would have cared or knew about this is not relevant. This is the fact of it.
There are now four possible scenarios. The US Federal Government can fight it out, stepping all over state sovereignty. The US can withdraw from the treaties in question. The treaties themselves can be changed by international processes. Or the US can carry on in breach and turn a blind eye. I think the fourth is the most likely. Ironically, this leads inexorably to arguments for broader reform, but this is something the US overnment has ardently opposed, even signing a recent declaration with the Russians to that effect.
So the implications for international law and the place of the UN drugs conventions within it must be considered.
We would not celebrate an ongoing breach by the US of the Convention on the Elimination of Racial Discrimination or the International Covenant on Civil and Political Rights, to which it is also bound. Nor would we tolerate (though they happen regularly) violations of the Geneva Conventions, the Torture Convention, the Nuclear Non-Proliferation Treaty or environmental protocols. Indeed, there is a hierarchy in international law that is exposed by the Colorado and Washington votes.
But it is one within which the drug control regime has an unnaturally elevated position due to the widespread political consensus around prohibition, and fears that have been intentionally fuelled over the years. Drugs, in the UN conventions, are seen as a threat to mankind, and an 'evil' to be fought. Over time, respect for the UN drugs conventions has been equated with respect for the rule of law itself. 'The three United Nations drug control conventions...set the international rule of law that all States have agreed to respect and implement' said the President of the UN's International Narcotics Control Board (INCB) in a recent speech. (The INCB is the body that monitors States' implementation of the drugs conventions). He has confused the rule of law with specific laws.
There are some things that are wrong in themselves (malum in se) and things that are wrong because they are prohibited (malum prohibitum). But when it comes to drug laws, fighting something that is prohibited has resulted in widespread acts that are wrong in themselves and that breach basic legal principles - the rule of law.
The racially discriminatory nature of drug laws is common knowledge. Some governments rely on the international regime to justify executions of people convicted of drug offences (in violation of international law, in fact). Police violence, mass incarceration, denial of due process are routine in States' pursuit of the general obligation the US now breaches.
The international legal arguments about the Colorado and Washington results will certainly arise. They must, though it will likely be in the rather closed and stale environment of UN drugs diplomacy. When that happens it must emerge is that these ballots are a victory for the rule of law even as they bring the US into conflict with the drugs conventions. Fundamental legal principles of proportionality, fairness and justice, not to mention democracy, have won out over arbitrary and unreasonable controls on human behaviour.
Ending the war on drugs, moreover, will be a victory for international human rights law. It will be a victory for international law itself - for environmental law, anti-corruption agreements, international security, for the achievement of international development agreements and improved health - all of which have been damaged by decades of prohibition. Colorado and Washington have taken us one step closer. For that we should all celebrate.