Crossing the threshold

Just outside of the main entrance to the United Nations General Assembly building in New York City stand a number of large sculptures. Most tower above the passersby, offering them a chance to pause and contemplate the evolving history, purpose and character of our global government.

But perched down low is “Sphere within a Sphere” by Italian sculptor Arnaldo Pomodoro, a giant golden globe hovering just above the ground. On one arc of the otherwise flawless surface is a rupture, or wound, exposing the interior of the globe with a smaller sphere within.

The inside sphere, made visible only because of the wound, is made of an orderly yet complex mechanized system, seemingly stuck in the moment between rupture and repair, a symbolic gesture to the lifeblood of the U.N.’s global political system.

On Nov. 6th, 2012 voters in Colorado and Washington tore open a new wound — or began repair on an old one, depending on your perspective — in the global political system. They did this by way of voting to legalize the adult use of cannabis. The far-reaching effects of these votes have been, and continue to be, extraordinarily profound, releasing long-standing tensions in international law that threaten to break down not just drug policy, but the global treaty system at its root.

No one, not even international policy experts, predicted the global impact of these two statewide votes in the U.S.

Denver-based lawyer Christian Sederberg, whose firm played a crucial role in creating Colorado cannabis regulation and policy, says while there was much conversation about amending Colorado’s constitution to go against federal law, international law rarely came up and did not play a significant role in the ballot initiative that amended the Colorado Constitution.

While these international implications may have been of little concern to the boots-on-the-ground effort in Colorado — a state within a federal system with no authority in global politics — they have been directly responsible for inciting debate about the greater context of the U.N. drug treaties that regulate relationships between sovereign states.

“It’s fascinating to me because if any exit polls had asked Colorado voters what impact they thought this would have on the global drug control system when they voted, I don’t think they could have imagined,” says John Walsh, senior associate for Drug Policy at the Washington Office on Latin America. “It has had an enormous impact … it is hard to overstate the impact on how [international treaties] are interpreted.”

From Colorado’s vantage point, now three years into a legalized market, the industry appears almost steady and immovable, an Archimedean point upon which a new and sturdy system can be built. But it is still rife with structural vulnerabilities over which neither the state nor federal government has total control. It could be argued the international treaty system has the potential to wreak havoc on the legalized industry in Colorado, but the reality may be just the opposite.

In order to be effective, the international treaty system recognizes the sovereignty of each member state and relies on each to implement policy in line with international agreements. But to deal with problems that extend beyond national borders, it must also be flexible, both to accommodate the diversity of global cultures, and to ensure that policy can evolve in a changing world.

Historically, international drug law takes a hard, prohibitionist stance to the illicit drugs cannabis, cocaine and opium because of the perception that they are toxic and harmful to the human body, addictive and cause dependence. This position also has strong moral roots that have led to the tough punitive requirements for drug offenders that are written into international law.

The consensus is changing, however, as states and countries decriminalize or legalize marijuana. Even President Obama has expressed his doubt with regard to the inclusion of cannabis on the list of illicit substances. In a 2014 interview with the New Yorker he said he considered marijuana less dangerous than alcohol and stressed the importance of the legalization experiments in Washington and Colorado, especially since blacks are arrested for the drug at a far greater rate than whites.

His statement followed the release of the Cole Memo by the Attorney General’s Office. The memo makes it clear that the Obama administration reserves every right to step in and enforce federal prohibition. But the memo also suggests that such intervention would only occur if the states were unable to maintain what could be called the spirit of federal and international law, namely suppressing criminal activity, protecting public health and preventing diversion of potentially dangerous drugs to the criminal market.

The legal adult-use markets within the U.S., now found in Colorado, Washington, Alaska, Oregon and the District of Columbia, are functioning despite federal prohibition because the U.S. government is taking a stance of non-interference. This willingness to look the other way has not gone unnoticed by the rest of the world.

As countries like Uruguay and Jamaica look to do the same as these states, their new systems of regulation will depend on a similar look-the-other-way arrangement with regard to the international drug treaty system.

This puts U.S. and international prohibitions in an awkward position and raises the obvious question as to how long and to what degree both systems — legalized and prohibited —  can withstand such breaches without one system ultimately eliminating the other.

Walsh says the United States was a, if not the, key protagonist in developing the 1961, 1971 and 1988 U.N. Single Conventions on Narcotic Drugs that created international drug prohibition and the requirements that offenders be criminalized and subject to punitive measures. For decades, he says, the United States has been widely and correctly viewed as the treaties’ chief champion and defender on the international scene.

In the past, countries played with the legal line in a variety of ways, from tolerating consumption, like in Amsterdam, to allowing for legal and regulated medical cannabis markets in the United States (which is arguably accommodated by international legal language), but these forms of soft defection were work-arounds of international law that didn’t threaten the integrity of international drug treaties.

Hard defection from international law did not occur until 2012 when Colorado and Washington legalized marijuana. These state-level legalizations hit a global nerve and unleashed a deluge of long-held, but rarely discussed criticisms of international drug law. Citing outdated drug policies around the world, the governments of Colombia, Mexico and Guatemala called for an early convening of the United Nations General Assembly Special Session (UNGASS), which was originally scheduled to be held in 2019.

During the so-called war on drugs, these countries found themselves on the front line of the fight to reduce the global drug supply. This effort resulted in soaring drug-related violence, overstretched criminal justice systems, runaway corruption and mangled democratic institutions. For the first time since the ’61 U.N. Single Convention on Narcotic Drugs, the countries joined together to publicly decry the drug treaties and call for immediate reform.

The human-rights and public-health-based appeal from the three governments gained support from the international community. Co-sponsored by 95 other countries, UNGASS was called to session in New York in April 2016, three years ahead of schedule.

The concomitance of the state and nation-state confrontations to international drug law created a strong and united challenge to prohibitionist policies, but also exposed a biting irony. While the United States was breaking the very laws it once championed — and is allowing states like Colorado to collect millions of dollars in tax revenue in the process — the countries most directly involved with continuing the war on drugs found themselves suffering severe losses in human lives and financial capital.

“How does one explain to a Colombian peasant in a rural community in the south-west of the country that he will be prosecuted under criminal charges for growing marijuana plants, while a young entrepreneur in Colorado finds his or her legal recreational marijuana business booming,” wrote then president of Colombia Juan Manuel Santos in a Guardian op-ed in 2012.

In preparation for UNGASS and in response to international scrutiny, the United States began a series of legal maneuvers in an effort to preserve existing treaties and maintain global agreement, however tenuous.

In 2014, Assistant Secretary for International Narcotics and Law Enforcement Affairs William Brownfield outlined a plan to allow for the flexible interpretation of the drug treaties by providing a position explaining why the U.S. considers itself to be in compliance with the drug treaties. In particular, they offer “substantial” discretion to member states as to the best means of carrying out the treaties’ objectives.

“This argument buffers against the kind of debate that some countries don’t want or feel prepared for,” Walsh says. “It allows Russia and other countries that want to impose the death penalty for drug offenses to continue to do so, they say ‘flexibility is great, just butt out of our business and we will butt out of yours.’ But I suspect that the U.S. officials who have themselves made that argument have serious doubts about it as a legal question, but this is the political position that the U.S. is occupying.”

While most of civil society seems opposed to this sidestepping maneuver by the United States, Walsh is sympathetic with the federal government as it moves from a position of rigidity to flexibility.

“Let’s put it this way,” he says. “If the states didn’t move and were awaiting Washington [D.C.] and Congress to act, nothing would have changed, but big things did change because of voters in Colorado and Washington and the government let that change happen.”

In August 2014, just a year after the Cole Memo was first issued, Uruguay became the first government to legalize cannabis at a national level. Walsh believes that the timing was at least in part due to the clear signal of non-interference sent by the Memo. With the U.S. no longer in a position to act as watchdog on international drug treaties, Uruguay is now willing to acknowledge the tensions its policies have created with international law.

Recognizing that it put itself in a delicate position, Uruguay has been clear in all of its statements and preparations leading up to UNGASS that if there is a conflict between the nation’s legalization and international law, then there is no question its human rights and public health approach takes precedent over the prohibition requirements of the drug treaties.

Uruguayan lawyer and Social Democratic Political Party politician Diego Cánepa, said at the 2013 Commission on Narcotic Drugs that “today more than ever we need the leadership and courage to discuss if a revision and modernization is required of the international instruments adopted over the last 50 years.”

The World Health Organization (WHO) agrees, acknowledging the role of prohibitionist policies in creating a mounting public health crisis. According to its data, there are more than 27 million drug-use disorders across the globe and approximately 400,000 drug-related deaths in the world each year. 

Meanwhile, WHO estimates 80 percent of the world has insufficient access to pain relieving medication and is firm in encouraging the U.N. to allow for more scientific and medical research exploring the potential role cannabis and opium might play as effective and inexpensive solutions.

There are also social justice issues that have led countries to object to the war on drugs for its aberrance to the U.N.’s own Declaration of Human Rights. In 2014, in the U.S. alone, $51 billion was spent enforcing drug laws. More than 1.5 million people were incarcerated for drug violations, of which 700,000 were for marijuana violations.

In light of the increasing data and political pressure to move away from prohibitionist policies, 2016’s UNGASS meeting had the potential to be an historic event launching a new era of evidence-based discussion about the immediate reformation of drug policies to replace the ideologically driven laws now in place.

But in the months prior to UNGASS, 53 member countries met in Vienna in order to discuss, negotiate and write a draft resolution that would be introduced for vote by the General Assembly at UNGASS in New York. But many of the countries that find themselves most affected by the drug treaties didn’t have permanent representation at the Austrian meeting. And without such representation, many Caribbean and South American countries had no way of making sure that their interests were taken into account as the closed session drafted the resolution.

“Unfortunately, what was supposed to be an open, honest and data-driven debate about drug policies has turned into a narrowly conceived closed-door affair,” wrote the former presidents of Mexico, Guatemala and Colombia in a March Los Angeles Times op-ed.

On April 19, no more than an hour into the convening of UNGASS, the draft resolution was introduced for a vote and quickly accepted, leaving little room for debate, objection or discussion. With no opportunity for changing the resolution, the remaining three days of the session was dedicated to the airing of grievances by states and to follow-up discussion in round table and side events.

Two UNGASS side events were dedicated to the issue of cannabis in international drug policy and fostered conversations directly confronting the tensions arising from legalization efforts. One such event, “Cannabis and the Conventions, the UNGASS and Beyond,” moderated by Walsh, deemed cannabis the “elephant in the room.” The ensuing conversation made it clear the agreement the General Assembly so quickly arrived at is tenuous at best.

At the side event, panelist Martin Jelsma of the Transnational Institute, an international research and advocacy organization that does work exploring cannabis prohibition, said international consensus on cannabis policy is no longer a viable option.

“If we are to really negotiate a new treaty, it is [unlikely] that something useful could come out of it, which is why people shy away,” Jelsma said. “We cannot continue waving away treaty tension by resorting to dubious legal moves. This is more a disrespect of international law. It is better to explore options than to ignore them entirely.”

Jelsma exhibited patience for the process of making international law, recognizing that making a resolution agreeable to 193 countries takes time. But, in light of the existing and imminent breaches of the international treaty system, he also expressed a fear that the treaty system itself is in danger of breaking down in what Walsh calls a “stress test.”

The drug regime was built, by design, to be resistant to change, Walsh explains. He says its structure doesn’t include any review mechanisms, like the ones found in other treaties designed to ensure that the laws are keeping up with the changing world.

“Can countries find a way to help the treaty regime adapt to these changes or will it be so brittle and resistant to change that it breaks and countries just move ahead without it?” Walsh asks. “I think that, from the point of view of broader international law, upholding treaty obligations as a principle is important. There is a chance for reforms to be made that would help the treaty system itself modernize, almost against its will.”

Both Jelsma and Walsh argue the path forward should be one of principled non-compliance in which a country legalizing a drug openly acknowledges that they are in breach of international law while arguing why, in detail, full compliance is no longer the principal option. In that respect, Colorado and Washington, now joined by Uruguay and Jamaica, are serving as the new global model for how to move forward.

It’s likely that the tide of legalization will continue to rise in the next few years, with bigger and more powerful governments coming on board. It is expected that voters in California, the world’s 7th largest economy, will approve legislation in 2016 and Canada, a G8 nation, is firm in its plans to legalize in 2017. 

“This is speculation on my part, but there is probably some sense of relief among U.S. officials that legalization efforts in other countries takes the U.S. off the hook,” Walsh says. “Other countries could deal with it in a way that the U.S. can sort of take a backseat or, at the very least, it has company in the way that Uruguay already is.”

While the draft resolution approved at UNGASS didn’t accomplish much of substance, it does reframe drug use from “an enemy on which to declare a war” to a human rights and public health issue.

In strategizing how to make such a transition, the draft resolution steers clear of committing to any specific path, forfeiting harm reduction language for a more vague “evidence-based approach.” How that evidence is collected will require establishing new metrics that can evaluate the drug problem, not in terms of supply and demand, but in terms of the harms to users, environment and society.

Colorado will, once again, take center stage in this phase of evidence collection as one of the only places in the world that can provide actual data to connect the actions of legalization to its effects on a number of vectors. But Colorado officials, aware of the immense scrutiny placed on their state, are wary of relying on that data too much or too soon.

“It is just too soon to not talk about this as an ongoing experiment,” says Andrew Freeman, Colorado’s director of marijuana coordination. “I think it is going to take a lot longer for us to draw lines of causation from what we have done to what the impact has been on Colorado. So, in some ways that experiment rhetoric has to continue.”

As long-established institutions falter, the international community is in a time when policy reform is all about the language and so the terminology of the “experiment” does not go unnoticed. Denver lawyer Sederberg rejects that characterization, saying that the failed “experiment” is not legalization, but prohibition and most of the world seems to agree. 

There is a time when the language of an old era cannot describe the new. Now is the time to forge a new path forward, but what that looks like, or what to call it, we just don’t know yet.

“As the consensus around the treaties breaks down, as breaches and ruptures open up the regime for reform discussion, countries ought to move forward with these reforms,” Walsh says. “We are in a moment of transition.”

Change doesn’t always happen the way it is supposed to. How we handle global legalization that threatens to end the war on drugs will ultimately determine if we are on the verge of a “rupture” or a “repair” of the global political system. Either way, Colorado voters will have played a key role in the outcome.