Cannabis legalization and public health: legal niceties, commercialization and countercultures.

The Conventions and US jurisprudence. Hawken and Kulick (2) dispute my assertion that in setting up legal nonmedical markets Washington and Colorado clearly contravene the conventions. I acknowledge my assertion was too strong, if it is read as implying that US courts would necessarily decide this way. Hawken and Kulick conclude that nations “with federal systems of government” are not bound by the Conventions “to override legalization in their constituent political units”. But this states the issue too broadly; legal interpretation on this will vary between federal countries (3, pp. 213-237). Hawken and Kulick focus on the relation between US state and federal law, a vexed issue in US history, but there is also the issue of current US jurisprudence on the application of treaties within the US in general, whether at the national or the state level. In recent decades, US courts have moved away from regarding US accession to a treaty as putting the treaty’s provisions into effect as national law (despite the US Constitution’s unambiguous wording: “all treaties made ... shall be the supreme law of the land; and the judges in every state shall be bound thereby...”). Reflecting a political backlash against the potential application of human rights treaties in cases against US governments, U.S. courts have increasingly only applied the constitutional provision where they decide a treaty is “self-executing” (4); a treaty provision which requires that a criminal law be passed, for instance, is not self-executing, even though it has gone through US ratification (5). Since “US courts are reluctant to find multilateral treaties self-executing” (6), they might well decline to make an order applying provisions in the drug treaties.