Categorized | News, Opinion


The latest outrageous nonsense from the United Nations is their attempt to tell the Federal Government to stop the Colorado and Washington state effort to legalize marijuana.

The President of the International Narcotics Control Board (INCB), Raymond Yans, has voiced grave concern about the outcome of recent referenda in the United States of America that would allow the non-medical use of cannabis by adults in the states of Colorado and Washington, and in some cities in the states of Michigan and Vermont. Mr. Yans stated that “these developments are in violation of the international drug control treaties, and pose a great threat to public health and the well-being of society far beyond those states”.

I am reminded of the scene in another favorite movie of mine:  The Life of Emile Zola where the harried defense attorney for Zola (I might need him if NDAA passes) exclaims that every time a hat is taken off a secret document comes out!  Every time I turn around, there is a UN agency, by “authority” of a another bad UN (Yes, readers I know what that is!) treaty, telling us what to do!

There is a treaty called the 1961 Single Convention on Narcotic Drugs (here is text; hope it does not ruin your Thanksgiving dinner!) and it does say the following:

Article 4
The parties shall take such legislative and administrative measures as may be necessary:
a) To give effect to and carry out the provisions of this Convention within their own territories;
b) To co-operate with other States in the execution of the provisions of this Convention; and
c) Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.

Yet one more unconstitutional treaty to renounce!  A Constitutionalist President’s work is never done…

BUT, there is a great decision of the US Supreme Court that says:  If Congress enacts a general law that has the effect of negating a treaty, the treaty dies!  It is Breard v. Greene, a case involving the Vienna Convention of Consular Relations and an unfortunate dust-up between Paraguay and the US.  Breard is actually a Virginia case, involving a killer who was a Paraguayan national and was admittedly not advised of his rights to consult with authorities form his embassy when arrested.  A good idea, actually and one which we had not been good at.  (I think violations of this treaty should result in appropriate cases in the suppression of evidence in court at trial.)

But Paraguay went too far:  They brought us before the International Court of Justice, a court where only nations can be parties.  And the ICJ said: (I quote from the Breard decision)

On April 3, 1998, nearly five years after Breard’s conviction became final, the Republic of Paraguay instituted proceedings against the United States in the International Court of Justice (ICJ), alleging that the United States violated the Vienna Convention at the time of Breard’s arrest. On April 9, the ICJ noted jurisdiction and issued an order requesting that the United States “take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings . . . .” The ICJ set a briefing schedule for this matter, with oral argument likely to be held this November. Breard then filed a petition for an original writ of habeas corpus and a stay application in this Court in order to “enforce” the ICJ’s order. Paraguay filed a motion for leave to file a bill of complaint in this Court, citing this Court’s original jurisdiction over cases “affecting Ambassadors . . . and Consuls.” U.S. Const., Art. III, 2.

I say the next time one of these nations defends a killer, offer to send him or her to that nation!  But here’s the great part:

Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held “that an Act of Congress . . . is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.” Reid v. Covert, 354 U.S. 1, 18, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386, 8 S. Ct. 456 (1888) (holding that if a treaty and a federal statute conflict, “the one last in date will control the other”). The Vienna Convention–which arguably confers on an individual the right to consular assistance following arrest–has continuously been in effect since 1969. But in 1996, before Breard filed his habeas petition raising claims under the Vienna Convention, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which provides that a habeas petitioner alleging that he is held in violation of “treaties of the United States” will, as a general rule, not be afforded an evidentiary hearing if he “has failed to develop the factual basis of [the] claim in State court proceedings.” 28 U.S.C. A 2254(a), (e)(2) (Supp. 1998). Breard’s ability to obtain relief based on violations of the Vienna Convention is subject to this subsequently-enacted rule, just as any claim arising under the United States Constitution would be. This rule prevents Breard from establishing that the violation of his Vienna Convention rights prejudiced him.

This said, in legalese, a language I am afraid I am fluent in, that a simple act of Congress can overturn a UN treaty.  Well, help is on the way:  There is a bill in Congress that in effect partially abolishes Federal drug law if the state legalizes that drug.  (By the way, Ron Paul was already there on this.)  Here‘s the details:

Colorado U.S. Rep. Diana DeGette introduced legislation today that would exempt states from federal laws banning the sale, possession and use of small amounts of marijuana by adults. The bill so far is being co-sponsored by Colorado Democrat Jared Polis and Republican Mike Coffman as well as a number of other representatives from around the country.

This law would not only allow states to decide drug policy (at least as far as marijuana is concerned) it also negates this treaty and tells the UN to butt out!  I am not sure about the pot part, but I am sure the UN should butt out!  The policy of the US should be:  Warn then defund.  Here’s a pertinent question from Lew Rockwell’s blog:

Most of the same conservatives who properly abhor the UN and all of its works and pomps also support drug prohibition. Now that a high-ranking UN functionary has offered an official directive to Washington demanding that the Obama administration escalate its war against the American people, will conservatives of that ilk finally come out in opposition to drug prohibition?

Well, will they?  Probably not.  I say add to this useful law a partial repeal of DOMA allowing those states who allowed gay marriage by vote or legislative action to be married for federal law purposes.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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