Thursday, March 17, 2005

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Uh.... I was talking about trade, right?

While trade is the subject of the day, it's worth pointing out that Tim Wu has a provocative story in Slate on an intriguing mechanism through which the United States could be forced to legalize marijuana: the World Trade Organization:

[T]he strange status of marijuana may also bring down the scrutiny of a different entity altogether: the World Trade Organization and its powerful condemnation of inconsistent national laws. The American ban on marijuana is what the WTO calls "a barrier to trade," raising the question: Can U.S. marijuana policy survive the tough scrutiny of world trade law?

WTO scrutiny of American drug laws may sound far-fetched, but then until recently so did WTO scrutiny of U.S. gambling or tax laws. U.S. gambling laws, like drug laws, are erratic: Online casinos are strictly prosecuted, but state lotteries and Las Vegas are tolerated. Citing such inconsistency, last November the WTO declared American gambling enforcement an "illegal barrier to trade in services." The fate of these gambling laws may be a guide to the future of American marijuana laws.

Read the whole thing -- the analysis is not completely far-fetched. Wu's biggest reach is his claim that "it may just be a matter of time" before another country will request a WTO panel. Yes, some countries have legalized marijuana, but I find it hard to conceive of a country pushing for the ability to export any narcotic that retains a moral stigma across the globe. A lot more countries would need to legalize Mr. Jay before this happens.

UPDATE: Jacob Levy emerges from seclusion to point out a more serious flaw in Wu's reasoning.

posted by Dan on 03.17.05 at 03:24 PM


I have no idea how the "science" and "morals" parts of trade law work, but the federalism/ gambling argument is a non-starter.

Growing marijuana is illegal everywhere in the United States, at least until and unless Raich v Ashcroft changes things. The fact that it's tolerated by the local police in California under California state law doesn't change that; it's still proscribed as a Schedule 1 drug under federal law; and people really are federally prosecuted regardless of whether they live in a medical marijuana state. By contrast, casinos in Las Vegas aren't just tacitly tolerated by the overall system; they're legal. There's no federal law that purports to pre-empt state control over intrastate gambling, the way there is for intrastate or personal drug use and growing.

Wu says:

Local marijuana-growing enjoys quasi-legal status in the United States, but the import of foreign marijuana is strictly banned. In trade terms, that's called illegal discrimination in favor of local producers. Does it matter that the medical-marijuana laws are the rogue efforts of a handful of states like California and Montana? No, said the WTO in its online casino case—while state laws may give rise to this inconsistency, federal systems are fully accountable for state action.

But the analogy fails. Unless Raich v Ashcroft changes things, the California growers' cooperatives just aren't legally comparable to Las Vegas casinos. The former aren't "quasi-legal;" they're illegal under federal law that applies uniformly nationwide. That federal law is, in most places but not everywhere, supplemented by state laws, exposing growers to two sets of police and two sets of criminal penalties. But the absence of such a second set of prohibitions doesn't amount to impermissible inconsistency in the federal system like in the gambling case.

posted by: Jacob T. Levy on 03.17.05 at 03:24 PM [permalink]

Prof. Wu's comments read like the logical equivalent of "black helicopters" or claims that CEDAW will require women to become prostitutes.

Gambling is legal in many parts of the US but the US and its localities have established barriers to entry that discriminate against foreign operators -- I don't think this was the initial intent but it is the effect -- and therefore WTO illegal.

Gambling is not covered by any existing multilateral international agreements. So-called "psychotropic drugs," like marijuana, are.

The 1961 Single Convention on Narcotics (its cover marijuana as "cannabis") address international trade directly:

Article 31
1. The Parties shall not knowingly permit the export of drugs to any country or territory except:
a) In accordance with the laws and regulations of that country or territory; and
b) Within the limits of the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts intended to be re-exported.

Under the convention, the US can establish whatever regulations it wishes regarding the import of cannabis so long as the volume of the imports are within the range of US supply needs for legal purposes as determined by the US govenment, which article 19 covers. Article 21 of the treaty also sets the rules for caps on how much a country may import or manufacture. There is a legitimate trade in narcotics and their components for medical, research, and industrial purposes, but not recreational use.

WTO norms would only kick in if the US applied one set of rules to foreign suppliers licensed to import but a different, more permissive set of rules to domestic suppliers, thereby discriminating against foreign trade. It would in no way allow foreign suppliers to claim the right to sell cannabis for recreational use in the US.

Some countries, the Netherlands most prominently, have either formally or in terms of enforcement practices, de-criminalized individual possession and use, but the convention still calls for bans on possession and use for non-medical or non-research purposes.

I remind students in my US foreign policy classes that the underlying principles of US national and foregin policy on narcotic drugs are embedded in international treaties. True legalization of marijuana -- the right to grow, possess, and use it like you would tomatoes or lettuce -- could only take place after a series of international treaties were abrogated in addition to changes in US domestic law. That's right -- multilateralism means no weed.


posted by: christopher ball on 03.17.05 at 03:24 PM [permalink]

I don't agree with Prof. Wu but his analogy is only slightly farfetched--I disagree with J. Levy.

There's a difference between on-line gambling and casino gambling. While bricks and mortar gambling is something that is legal in the sense that certain states allow it and there's no federal prohibition on it, on-line gambling is different. Its status is much less clear. At worst, states are trying to regulate on-line gambling operations based in other states and those based abroad abroad and the battle is around whether there's a federal prohibition (negative commerce clause) on that. So I would not say that on-line gambling operations in the United States are clearly legal. That's more a function of the nebulous realm of state regulation of activities in cyberspace, but I wouldn't characterize it any other way.

posted by: Balasubramani on 03.17.05 at 03:24 PM [permalink]

So Jacob Levy is right that the federalism argument is not without its weaknesses. But its worth pointing out (as Mr. Balasubramani seems to be alluding to) in the online gambling panel's decision, they made much of the fact that while online gambling is obstenibly illegal across the United States, enforcement practices burden overseas online casinos more than domestic.

The WTO has shown a tendency to care more about enforcement practice than the letter of the law -- GMOs, for example, for a long time weren't technically illegal in Europe, just never approved for import. And in its US remedies cases, promises as to enforcement practices were enough. So if it is true the laws against growers in California aren't enforced but legitimate imports are banned, that creates the potential WTO problem discussed in the Slate piece.

Tim Wu

posted by: Tim Wu on 03.17.05 at 03:24 PM [permalink]

Comment on Christopher Ball's argument

Raising the 1961 Convention is a good point missing from the Slate piece, and it establishes another U.S. defense at the WTO. But I don't agree with the broader point: that the United States would have the change its treaties to legalize weed. Or, more to the point, the change would be automatic: inconsistent subsequent Congressional legislation would abrogate the 1961 Treaty, at least from the US domestic legal perspective. Technically, it would put the United States in breach of that treaty, but I doubt anyone would care. So in other words I don't think multilateralism stops legalization as a legal matter.

Treaty compliance may have some political significance,but compared to the many other arguments against legalization I cannot imagine compliance with the 1961 treaty ranks very highly.

Tim Wu

posted by: Tim Wu on 03.17.05 at 03:24 PM [permalink]

So if it is true the laws against growers in California aren't enforced but legitimate imports are banned

But if that were true then the Raichs of Raich v Ashcroft wouldn't have been prosecuted in the first place. They were, the federal laws against growers in California are enforced-- and I suspect enforced a bit more vigorously than the same laws are elsewhere becase the DOJ is determined not to allow California medical marijuana to become de facto legal.

An unpleasant thought is that Tim's account of WTO rules intellectually jeopardizes Raich v Ashcroft. If those rules really mean that marijuana growing must be illegal nationwide in order for bans to be legitimate anywhere, because one-state legalization--> illegal reference for domestic producers --> WTO-imposed legalization nationwide, then there's no room for California to conduct its own one-state experiment with decriminalization. There really would have to be a single, federally-imposed, rule, because one state's liberalization would get imposed on all the rest. This is the same kind of problem for federalism, and for liberal federalism, that got brought home by the recent death penalty decision. If one state's liberalizing legislation is likely to provide reason for imposing the more liberal rule on all the rest of the states (either by the Supreme Court or by the WTO), then states aren't going to long be allowed to unilaterally liberalize. The federalism argument in Raich depends on the thought that California can legislate for itself without thereby legislating for all the other states.

posted by: Jacob T. Levy on 03.17.05 at 03:24 PM [permalink]

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