Marijuana is key – continued non-compliance saps legitimacy, undermines multilateralism, and collapses the LIO.

Exactly how the consequences of marijuana legalization will play out on the international stage is a live issue that ultimately remains to be seen. 2 26 Although some nations are proving sympathetic to marijuana legalization as a matter of policy preference, 227 the issue of treaty breach continues to linger.2 28 Certain world leaders, notably those in Russia and Asia, remain staunch supporters of strict marijuana prohibition. 229 The European Union, while recognizing allowance for certain non-criminal justice approaches to marijuana use, has stated that licensing and regulating recreational industries exceeds treaty flexibility.23 0 So long as there are nations of the world who view marijuana legalization within the United States as violating the drug treaties, then the United States risks certain reputational, reciprocal, and institutional consequences-not unlike those, it might be mentioned, that it has faced elsewhere in its history.231

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229. See, e.g., id. at 37 ("Cuba and Venezuela are basically siding with Russia in a reaffirmation of a repressive prohibitionist doctrine . . . . [M]ost Asian countries are still fully committed to defending the status quo in its most repressive form."); see also MARK K. OSBECK & HOWARD BROMBERG, MARIJUANA LAW IN A NUTSHELL 443 (2017) ("The recent trends towards liberalization of cannabis law should not obscure the fact that most of the world's governments, at least officially, stand solidly behind the anti-cannabis strictures of the international treaties with no indication of imminent change."). For a revealing account of the prevalence of prohibition-supporting nations, see Harold Trinkunas, Senior Fellow and Dir., Brookings Inst., Latin Am. Initiative, Remarks at the Brookings Institution Panel on UNGASS 2016 and Beyond: Seizing the Opportunity to Improve Drug Policy 3 (Apr. 7, 2016), available at https://www.brookings.edu/wp-content/uploads/2016/03 /20160407_drug_policy ungass transcript.pdf ("[C]ountries in Asia, particularly China, as well as Russia, very much are adhering to the [international drug control] regime as it currently stands."); see also Vanda Felbab-Brown, Senior. Fellow, Brookings Inst., Foreign Policy Program, Remarks at the Brookings Institution Panel on UNGASS 2016 and Beyond: Seizing the Opportunity to Improve Drug Policy 10 (Apr. 7, 2016), available at https://www.brookings.edu/wp-content/uploads/2016/03 /20160407_drug_policy ungass transcript.pdf ("The division between those [countries] who are calling for reform . . . and those who are deeply committed to the existing . . . regime-China and East Asia, Russia, but also the Middle East-is very strong." (alteration in original)); John Walsh, Senior Assoc. for Drug Policy & the Andes, Wash. Office on Latin Am., Remarks at the Brookings Institution Panel on UNGASS 2016 and Beyond: Seizing the Opportunity to Improve Drug Policy 6-7 (Apr. 7, 2016), available at https://www.brookings.edu/wp-content/uploads/2016/03/ 20160407 drug_policy ungass transcript.pdf ("And the truth is that there are very vocal countries who are dissatisfied with the status quo, but there are relatively few, compared to the world at large ….)

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Traditionally, a nation's reputation for making good faith treaty commitments rests on its track record of treaty compliance. 23 2 If a nation believes that the United States will shirk its treaty obligations, not due to some existential threat, 23 3 but because it has become politically convenient to do so, then the credibility of the United States to make and maintain treaty commitments will diminish commensurately. 23 4

A helpful method for taking stock of reputation in diplomatic affairs is by analogy. As one leading international law scholar nicely put it:

The value of a good reputation for states can be compared to the value of a high bond rating. Just as a good rating increases investor confidence and, therefore, allows the firm to raise money more cheaply, a strong reputation increases the confidence of counterparties to an international agreement, allowing a state to extract more in exchange for its own promises. 2 3 5

To borrow those terms, a low reputational rating comes along with the risk of deterring other nations from viewing the United States as a trustworthy treaty partner.236 Especially in cases of multilateral agreements-such as the drug treaties-this reputational consequence could ripple out to influence any number of nations around the globe, and could therefore hamstring diplomatic missions of far greater import than drug policy. 2 37

Similarly, there is the danger that a breach by the United States can be used as a bargaining chip against it in negotiations over, or performance of, other foreign policy agreements. 238 When the United States enters into a treaty with another nation, it presumably does so because U.S. interests will be served by that other nation's performance of treaty obligations. 23 9 Seeing that there is no guaranteed supervising enforcement authority, 24 0 and barring a resort to coercion, then to secure its own interests, the United States would do well to induce performance by performing itself.241 "[R]eciprocal performance of treaty obligations," in other words, "depends in part on being able to credibly call out other nations for treaty failings-something which in turn depends on strictly performing our own obligations." 24 2

If the United States can "prosecutorial discretion" its way around the drug treaties, then another nation can just as easily try to "prosecutorial discretion" its way out of some other treaty the United States has an interest in holding it to. 24 3 In such a scenario, the bind the United States might find itself in could be minor, or not. 24 4 The ancient tenet of contract law, that when one party breaches an agreement all others are released from their obligations to perform, is perhaps nowhere truer and potentially more lethal than with regard to international treaties. 24 5

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243. See Koplow, supra note 231, at 69; see also REPORT OF EXPERT SEMINAR, supra note 208, at 26 ("At some point, for example, the U.S. should expect its own 'flexibility' argument to be used against it in another context, or that a country will use the breach as a negotiating tool in an area unrelated to drugs e.g., the U.S.'s claim that Russia is in violation of the 1987 Nuclear Forces Treaty.").

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Institutionally, the United States could be setting a corrosive precedent. When a nation wiggles out of treaty obligations, and especially when that nation is the most powerful and influential in the world, it tends toward the deterioration of global commitment to the principle of opinio juris sive necessitatis.24 6 Every instance of treaty breach therefore goes to further undermine the efficacy, and in turn the legitimacy, of international law itself.247