In praise of flawed treaties

International travel and trade connect different countries' drug markets—legal and illegal. International treaties can prevent commercial legalization of supply in one country from undermining prohibitions elsewhere. Even the current flawed treaties may be better than no treaties. Hall 1 describes the international drug control treaties as under assault, notes how hard they are to reform and suggests that they may become dead letters as signatories openly flout them. He then offers his views as to what policies a single nation should pursue once freed of treaty constraints. Some may celebrate the greater flexibility of a post-treaty regime, but it is worth remembering that individual nations do not exist in isolation. International treaties can protect one country from other countries' actions when bilateral treaties alone are insufficient. The Montreal Protocol regulates ozone-depleting chemicals, because one country's chlorofluorocarbons damage the atmosphere all nations share. Similarly, if one nation legalized commercial production of a drug such as cocaine, that would undermine other nations' rights to prohibit the drug within their own borders. Why? Legalization can reduce production costs radically, and drugs are extremely compact 2-4. Typical doses are approximately 1 g per day, so a year's supply weighs approximately as much as a bottle of Diet Coke. That makes it effectively impossible for one jurisdiction to prohibit a drug that an adjacent jurisdiction allows companies to legally produce and sell. In an age of international air travel and containerized cargo the externalities extend beyond near neighbors, making it hard to keep out a drug that any other country anywhere on the planet has legalized for commercial production 5. If the world's approximately 200 nations each occupied separate planets with no interplanetary trade or travel, then some would prohibit and some would legalize, and the actions of one would have no effect on others; but in our interconnected world, nations that might wish to legalize are forfeiting that opportunity to allow other nations to pursue prohibition. Libertarians think this is absurd. They would demand that all nations forfeit their right to prohibit if even one wanted to legalize. However, the treaties were negotiated in a world that believed in moral rights and wrongs more than in unbridled individual freedom. Outside the West and intellectual elites, many still think in this way. From this perspective, the treaties' greatest over-reach is pushing nations to criminalize possession, and hence drug users 6. When the Netherlands legalized retail sale and use de facto in the 1970s there were some effects on near neighbors 7, but those could have been addressed with bilateral agreements. Legalizing use alone does not affect international supply greatly, and so need not be a concern of international treaties. Hall 1 describes what ‘good’ drug policy would be if public health sensibilities ruled, but politics is the art of the possible. The legalization advocates who wrote the propositions that set the architecture of cannabis legalization in eight US states did not design a scheme that maximizes public health. They designed a scheme that maximized their chance of political victory. ‘Regulate like alcohol’ was a winning soundbite, not the solution of a carefully posed public health optimization problem. People who celebrate the undermining of our existing treaties ought to worry a little about what will replace them 8. It is hard to get almost 200 diverse countries to agree; Saudi Arabia and Switzerland do not see eye to eye on substance abuse policy or, more generally, on how to balance individual rights with state enforcement of collective moral codes. Clearly, neither Wayne nor any other public health advocate will get to write the replacement treaties. Furthermore, if the choice is between today's treaties and no treaties at all, then having no treaties would be worse. Any rogue nation could profit by hosting legal production for export to global markets—including illicit markets in countries that want to maintain their own internal prohibition. Expanded international supply can also challenge jurisdictions that embrace harm reduction; cheap fentanyl from China has driven up overdoses in British Columbia—a paragon of progressive policies—to more than 30 deaths per 100 000 individuals per year during the first half of 2017 9. There is a lore that good organizations and even good marriages require a six to one ratio of positive to negative comments 10. It is academics' nature to criticize, but as we try to reform the treaties and push for more flexible interpretation, we might want to utter six comments of appreciation for what they do in between each broadside. Treaties—even the ugly, flawed treaties we have now—play an important role in helping highly disparate nations get along in this interconnected world. None.

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