The certification process is applied to countries included in what came to be known as the Majors List .The success of the US to coerce and to induce dozens of countries to adopt its preferred models of implementing cannabis prohibitions promoted convergence of drug laws across jurisdictions and thus increased the degree of concordance between the transnational and the national levels of this TLO. However, the global diffusion of tougher cannabis laws cannot be sufficiently explained by focusing on the coercive mechanisms employed by the US alone. This diffusion was also a product of broader social transformations stimulating increasing political mobilization around law and order issues during the final decades of the twentieth century.Illustrating Durkheim’s observation that societies have a functional need to construct categories of deviance,the instigation of moral panics concerning drug abuse epidemics provide a useful tool of identifying “suitable enemies” and scoring political points.In an era during which a broader shift from welfare oriented to punitive-focused approaches to governing social marginality took place, strengthening state capacities to condemn and to penalize drug dealers and users proved to be a far more attractive project for politicians than undertaking to address the public health implications of drug use. As the primary international organization responsible for monitoring the implementation of the UN drug conventions, the INCB played an important role in facilitating the concordance between the transnational and national levels of the cannabis prohibition TLO. In its annual reports, the INCB has repeatedly supported the “gateway drug thesis,” according to which the use of cannabis serves as a risk factor in increasing the user’s probability of using harder illicit substances, such as amphetamine, cocaine, or heroin. Based on this thesis ,the Board’s 1983 Report criticized those “circles in certain countries” that “apparently assume that to permit unrestricted use of some drug,cannabis grow supplies regarded by them as less harmful, would permit better control of other drugs which they deem more perilous to health.”

This criticism was leveled at supporters of the separation of markets strategy, which came to be endorsed by Dutch policymakers at the time.In its later reports throughout the 1980s and 90s, the Board adopted an increasingly critical stance toward the Dutch attempts to depenalize cannabis usage. In its 1997 Report, the selling of cannabis in coffee shops was depicted as “an activity that might be described as indirect incitement.”The focus on the Netherlands and its singling out for disapprobation reflects the rarity of open contestations of the prohibitionist imperatives enforced by the Board during that period. The extensive institutionalization of the cannabis prohibition TLO throughout the 1980s and 1990s facilitated the international spread of tougher laws, severer penalties, and more aggressive policing strategies. However, the very success of this TLO to propagate its policy models highlighted its failure to deliver on its own promise to reduce the prevalence of cannabis use and to eliminate its illicit supply chains. The intensification of enforcement activities also brought into focus the adverse human rights impacts of implementing the prohibitionist cannabis policies. The increasing criticisms of the failures and boomerang effects of the cannabis prohibition TLO prompted both internal and external processes that eroded its legitimacy and compromised its ability to continue guiding the practices of legal actors at the national and local levels. From the early stages of the institutionalization of the cannabis prohibition TLO, it became vulnerable to criticism of its inherent input legitimacy deficiencies. As discussed earlier, the central role played by the US in shaping the goals and strategies of this TLO has largely depended on the exercise of unilateral measures of coercion and inducement. The degree to which the certification process has realized basic standards of transparency, inclusiveness, and accountability is obviously limited. The procedures by which the INCB defines and applies its compliance criteria seem conspicuously insulated from ongoing public debates regarding the impact of cannabis prohibition laws on marginalized populations.

These legitimacy deficits are conveniently set aside by proponents of the war on drugs, who tend to focus more on the ability of these measures to promote global public goods than on the quality of the processes through which these measures are created. As Niko Krisch observes, such tendency to prioritize output legitimacy considerations is pronounced in various contexts of global governance and often produces pressure to move toward more informal and hierarchical modes of transnational governance in these issue-areas.However, this view is becoming increasingly difficult to maintain in the issue-area of cannabis policy given the mounting evidence on the failure of this TLO to achieve its regulatory goals. Despite billions of dollars of investment and extensive law enforcement resources, a sizable body of scholarship has documented the growing availability of the drug during the 1990s, the widespread prevalence of its usage among adolescents, and the increasingly tolerant attitudes toward cannabis consumption among both users and non-users.Drawing analogies to the failure of the “Noble Experiment” of the alcohol prohibition period,criminologists developed thorough critiques of the underlying assumptions of the cannabis prohibition TLO. The assumption that the availability of cannabis can be meaningfully reduced by the deployment of militarized policing strategies has been criticized for overlooking the resilience of cannabis markets and their high levels of adaptability to changes in their regulatory environments. Studies have shown that rather than eliminating supply chains, such interventions served to disperse, displace, and fragment supply sources and distribution routes.In turn, such interventions precipitated a spillover of armed violence to new geographical areas and exposed otherwise uninvolved indigenous populations to new risks and insecurities. The inherent flaws of this dimension of the cannabis prohibition TLO are often illustrated by referencing the “balloon effect” metaphor, depicting the ways in which efforts to suppress the cultivation of cannabis in one geographical area causes a convenient shift of its production elsewhere. The legitimacy of the cannabis prohibition TLO has also been damaged by evidence regarding the immense human rights violations that the implementation of war on drugs policies has entailed.

Advocacy networks led by prominent transnational NGOs, such as Amnesty International and Human Rights Watch, have exposed the disproportionate punishments imposed under the banner of the war on drugs in various countries. In the US, such criticism focused on the contribution of marijuana prohibitions to the nation’s internationally unparalleled incarceration rates and its distinctive patterns of racially-skewed law enforcement.A recent ACLU report using data extracted from the FBI’s Uniform Crime Reporting Program indicates that between 2001 and 2010, there were over eight million marijuana arrests in the US, of which 88% were for marijuana possession.In 2010, there were more than 20,000 people incarcerated for the sole charge of cannabis possession. Outside of the US, human rights activists focused on the increasing use of capital punishments for drug offenses from the late 1980s onward, as part of the broader escalation of enforcement efforts during the war on drugs era.In China, Saudi Arabia, and the Philippines, the death penalty is exercised regularly for cannabis trafficking offenses. By the mid-1990s, the criticism leveled at the cannabis prohibition TLO began to stimulate increasing advocacy activity in favor of reform. These activities failed to change the direction of drug policy making at the international level. Indeed, the “outcome document” issued in the wake of the 2016 UN General Assembly Special Session on drugs kept in place the existing framework of cannabis prohibition and did not endorse the calls to reclassify cannabis as a less dangerous drug. However, the criticism of the prohibitionist approach had a considerable transformative impact on the development of drug policies at the national and subnational levels. Before long, the diffusion of liberal cannabis policies across national borders began to jeopardize the normative settlements institutionalized by the cannabis prohibition TLO in previous decades. The efforts to liberalize cannabis regulations have focused on three distinct models of reform: depenalization, decriminalization, and legalization. Under formal depenalization regimes, the possession of cannabis is still formally prohibited; however, such prohibitions are enforced through intermediate justice measures rather than through conventional penal sanctions such as incarceration. The Netherlands pioneered the experimentation with depenalization strategies in 1976 when it formalized the use of the expediency principle to guide the enforcement of drug prohibitions. Based on this principle, Dutch prosecutors are instructed not to bring charges when cannabis use offenses take place within the user’s home or within the so-called coffee shops, where cannabis can be openly consumed and purchased.From the 1990s onward, many national and subnational jurisdictions introduced cautioning and diversion schemes to deal with drug use offenses.Cautioning schemes authorize police officers to avoid arresting suspected drug offenders under certain circumstances. Instead, the cautioning schemes require them to issue a written warning of the possible consequences of the illegal behavior.

Diversion schemes, which may operate at the pre-trial, pre-sentence, or post-conviction stages of the legal process, are intended to shift offenders from the criminal justice system and its carceral institutions to other channels of legal intervention. When applied before the sentencing stage, such measures may require the offender to participate in certain treatment and education programs as part of the bail conditions. After the sentencing stage,cannabis grow facility diversion measures may subject a convicted offender to community-based or rehabilitative measures . The widespread transnational diffusion of depenalization regimes is enabled by the structural mismatch between the actors shaping the formal rules of the international drug control system and those implementing these rules in national and local contexts.58 The diffusion of these regimes was not initiated by international organizations or powerful countries. Rather, it has evolved through uncoordinated processes of institutional isomorphism, reflecting converging professional concerns regarding the complexities of implementing criminal prohibitions that are extensively violated by ordinary citizens and that do not reflect widespread social disapprobation of the targeted activity. From the perspectives of ground-level enforcement officials and more senior bureaucratic elites, the implementation of cannabis prohibitions raised pragmatic concerns regarding the limited effectiveness of conventional penal measures and the immense costs that such efforts entailed. In democratic systems committed to the principle of legalism, it seems natural to expect that schemes of depenalization would translate into de jure changes in the statutory definitions governing processes of criminalization. The international drug conventions place constraints on the ability of national legislatures to introduce such reforms. However, the treaties also contain textual ambiguities that provide leeway for negotiating the scope and ambit of such prohibitions. The rise of the medical cannabis movement illustrates the unfolding of such processes of normative contestation. The movement began to gain ground in the early 1990s, focusing its efforts on promoting ballot initiatives at the municipal and state levels in the US.Within the next two decades, it effectively initiated the enactment of laws decriminalizing the medical use of marijuana in thirty-one states across the US and inspired norm entrepreneurs in dozens of other countries to campaign for the adoption of similar models. Countries adopting medical cannabis laws utilize the latitude allowed by the UN drug conventions regarding the definition of the term “medical and scientific purposes.” Importantly, they challenge the powerful view that marijuana has no demonstrated medical use. In this regard, the medical cannabis movement has demonstrated the effectiveness of bottom-up legal mobilization strategies operating at the subnational level to contest authoritative interpretations of transnational prohibition norms produced by powerful global actors. Building on the successes of the medical marijuana reform movement, advocacy networks in various countries have campaigned for the enactment of more radical models of decriminalizing and even legalizing the recreational use of cannabis. The seeds of this development were sown in the 1990s when European countries increased the thresholds of the amounts of cannabis possession exempted from criminal responsibility. Portugal, for example, adopted threshold parameters based on “the quantity required for an average individual consumption during a period of ten days.”Whereas Portugal adopted this policy as part of a comprehensive redesign of its drug laws on the basis of harm reduction principles,in other countries, these steps toward legalizing cannabis use were stimulated by court rulings reviewing the constitutionality of cannabis prohibitions. For example, in Argentina, a 2009 ruling by the Supreme Court struck down Article 14 of the country’s drug control legislation, which punished the possession of small amounts of cannabis with prison sentences ranging from one month to two years.