BEYOND THE CURRENT DRUG CONVENTIONS
So far in this volume we have been considering measures which have been taken within the context of the current international drug control regime. Now we turn our attention to measures which would in one way or another move beyond the limits of the regime.
Some such measures could be taken by concerted action by the parties to the current conventions, or by a substantial majority of them. Such measures would involve removing cannabis from the conventions, or fundamentally altering the provisions of the convention covering cannabis. For completeness, we list these alternative measures, but do not explore them in any detail. In the current global cultural politics of drugs, it seems unlikely that any of these measures could be successfully pursued.
Other measures could be taken by a single state or by a group of states. There is considerable variation between these measures in the extent to which they can be seen as politically viable at present. However, they are discussed in somewhat more detail, because possible paths forward seem more likely to be drawn from these alternatives. We also discuss some options for an alternative international cannabis regime to the present one.
REMOVING THE COVERAGE OF CANNABIS IN THE CONVENTIONS
The 1961 Convention (UN, 2007a) obliges parties to “limit exclusively to medical and scientific purposes” the production, manufacture, export, import, distribution of, trade in, use and possession” of the substances covered by it (Art. 4, §1.c).
While cannabis is presently listed under Schedule I of the treaty, this scheduling is not inscribed in the treaty itself, and it would theoretically be possible not only to shift cannabis to another schedule but to deschedule it altogether. The primary Article which refers specifically to cannabis, Article 28, requires that
cannabis production be licensed and controlled, and that a state agency act as the buyer and wholesaler of the crop.
So long as cannabis is in Schedule I of the 1961 Convention, each party to the treaty is obliged to keep as “punishable offences” production, trading in or possession of it (Art. 36), “subject to its constitutional limitations”. This is further backed up by Article 3, §1 of the 1988 Convention (UN, 2007b), which requires parties to establish production, distribution, possession or purchase of substances covered under the 1961 and 1971 Conventions “as criminal offenses under its domestic law”.
In theory, then, there are three ways in which cannabis could be removed from the scope of the 1961 Convention:
(1) by amendment under Article 47. This would require either unanimous consent, or the convening of a Conference of the parties by action of the Economic and Social Council (ECOSOC) of the United Nations. The official Commentary on the 1961 Convention points out that ECOSOC has the option to refuse to call an amending Conference, but that on the other hand the General Assembly of the UN could also take the initiative in amending the Convention (UN, 1973, pp. 462-463).
(2) by termination of the Convention as a result of a sufficient number of denunciations (withdrawals) from the Convention to reduce the number of parties below 40.
(3) by removal of cannabis from any of the Convention’s schedules. This would still leave in place Article 28, requiring state control and licensing of production and a state monopoly wholesaler. Such a “modification”, as it is termed by Andenas and Spivack (2003), must be based on the recommendation of a WHO Expert Committee, and would require a majority vote in the Commission on Narcotic Drugs (CND), and in the UN ECOSOC if any party appealed the CND decision.
None of these three methods of removing cannabis from the 1961 Convention seems likely to succeed in the foreseeable future, although it would be a interesting first step to try to delete cannabis from Schedule IV of the Convention. Accordingly, they will not be further considered here.
For completeness, we might mention a fourth way in which in which international control of cannabis could theoretically end. It has happened that international treaties simply fall into disuse as conditions change, without any formal termination or denunciation. “It is, indeed, generally considered that a treaty falls into desuetude when its non-application by parties over a period of time establishes their consent to let it lapse” (Pauwelyn, 2003:143). This is the case, for instance, with the two conventions which were adopted by the European colonial powers in 1889 and 1919 to control the market in spirits in Africa (Bruun et al., 1975). Again, this seems unlikely with respect to cannabis in the foreseeable future.
ACTIONS BY A SINGLE COUNTRY OR A GROUP OF COUNTRIES
The International Narcotics Control Board and other organs of the international drug control system put forward interpretations of the language of the conventions, and the INCB has been quite vociferous about its interpretations. But there is no interpretation of the language of the treaties which is binding on parties to them, and states have routinely adopted interpretations which differ from those of the INCB.
However, the room for manoeuvre on interpretations is in principle limited by the general rule in international law that words should be interpreted in terms of their plain meaning, and that “pacta sunt servanda”: as stated in Article 26 of the Vienna Convention on the Law of Treaties (UN, 2005a), which entered into force in 1980, “every treaty ... is binding upon the parties to it and must be performed by them in good faith”.
Beyond this, both the 1961 Convention (Art. 48) and the 1988 Convention (Art. 32) provide that in case of a dispute “relating to the interpretation or application of this Convention” which cannot be settled by negotiation, mediation or other means, it “shall be referred to the International Court of Justice for decision”. The 1988 Convention specifies that any party to the dispute can make the referral. These provisions do not seem ever to have been invoked.
In view of the explicit and clear references to cannabis in the 1961 Convention, it would not be possible to credibly reinterpret the Convention as excluding it. With respect to the specific provisions bearing on cannabis in the 1961 and 1988 Conventions, there is much more scope for interpretation. As Krajewski (1999) notes, the conventions “are formulated in a very broad, even vague manner”, which “allows for latitude in interpretation”. However, issues of interpretation fall primarily in the territory of alternative measures within the scope of the present international control system, dealt with in the preceding chapters. Accordingly, they are not further discussed here.
The 1961 treaty (UN, 2007a) provides a clear procedure for denouncing the Convention, that is, withdrawing from it with a specified notice period which amounts to less than a year (Art. 46). In the 1988 Convention (UN, 2007b) the specified notice period is one year (Art. 50). Helfer (2005:1601) notes that “the conventional wisdom holds that treaty exits are extremely rare events that governments undertake only after exhausting all other avenues of persuasion and influence”. However, compiling a database of ratifications and denunciations of treaties from 1945 to 2004, he found that exits were in fact not so rare; in that period there had been 1547 denunciations or withdrawals, a little under 5% of the number of ratifications. Of the multilateral treaties concluded after 1945, 3.5% had been denounced at least once.
Denunciation of a treaty is on the one hand a legal action that removes a state’s obligation to comply with the provisions of a treaty. On the other hand, it is also a public statement. As Helfer (2005:1588) notes, “withdrawing from an agreement (or threatening to withdraw) can give a denouncing state additional voice, either by increasing its leverage to reshape the treaty,... or by establishing a rival legal norm or institution together with other like-minded states”.
Leinward (1971) puts forward an argument for an option of selective denunciation of the 1961 Convention, specifically with regard to cannabis. He considers the requirements generally considered in international law for separability
of provisions in a treaty, and concludes that these requirements would be met in separating cannabis out. Leinward then justifies the selective denunciation in terms of the provisions for “error” and “fundamental change of circumstances” which are considered below. The end result of taking this path would be the same as full denunciation and reaccession with reservations, discussed next. Given that there is no provision for selective denunciation in the 1961 and 1988 treaties, taking this path might be less legally defensible than denunciation and reaccession with reservations.
It appears that no state has ever denounced any of the current international drug conventions.
Denunciation and reaccession with a reservation
Traditional practice has been that reservations to treaties can only be made at the time of accession to treaties. The 1961 Convention includes complex provisions on reservations, but the only provisions now applicable are in Article 50. Paragraph 2 provides for reservations with respect to 7 specific paragraphs of the treaty which are marginal to our present topic. Paragraph 3 provides that other reservations are only permitted if there are no objections or objections from less than one-third of the parties within twelve months after they have been notified.
The 1988 Convention does not include provisions on reservations, which means that the issue is governed by the Vienna Convention on the Law of Treaties between States 1969 (UN, 2005a:Articles 19-23). Though the provisions are somewhat complex, the effect is that a reservation will usually be permitted. In fact, both the Netherlands and Switzerland, in ratifying the 1988 Convention, made reservations against the application of some of the provisions on criminalization in Article 3.16
16 Switzerland’s ratification in 2005 made these reservations: “Switzerland does not consider itself bound by Article 3, paragraph 2 concerning the maintenance or adoption of criminal offences under legislation on narcotic drugs.... Switzerland considers the provisions of Article 3, Paragraphs 6, 7 and 8 as binding only to the extent that they are compatible with Swiss criminal legislation and Swiss policy on
There are recent precedents in international law for denouncing a treaty and immediately ratifying it with a reservation (Helfer, 2006). Thus in 1998 and 1999 Trinidad and Tobago and Guyana denounced their accession to the First Optional Protocol to the International Convenant on Civil and Political Rights and immediately reacceded with reservations blocking petitions concerning death penalty sentences to the UN Human Rights Committee. When the Committee made a ruling nullifying Trinidad and Tobago’s reservation, Trinidad and Tobago again denounced the treaty. Guyana, however, has neither denounced the treaty nor withdrawn its reservation, while refusing to comply with Committee’s recommendations concerning capital punishment (Helfer, 2006:372-373). In 2002, Sweden denounced the Convention on the Reduction of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, and then reacceded with a reservation. However, Helfer (2006) also cites instances where governments contemplated or announced such actions and then refrained from acting because of concerns about reputational damage. This was the case, for instance, when the British Prime Minister initially proposed in 2003 to withdraw from the European Convention on Human Rights and then rejoin with a reservation (Helfer, 2006:373).
Denunciation and reaccession with a reservation is thus a viable path for a state which wished to remove cannabis from its adherence to the 1961 Convention, though it would certainly draw adverse comment.17 However, under present circumstances there might well be objection by one-third or more of the parties. In general in international law, objections to a reservation simply mean that there is no international agreement between the reserving state and the objecting state for the matters covered by the reservation, unless the objecting state is “specifically denying the reserving party’s status as a party” (Swaine, 2006:319; UN, 2005a:Art. 21, §3). This would presumably pose no problem for a state reserving cannabis out of its
criminal matters.” The Netherlands made a similar reservation with respect to Article 3, Paragraphs 6, 7 and 8.
17 In fact, it was suggested as a path by Leinwand (1971:424) in his early consideration of ways in which the United States could remove cannabis from its international commitments under the 1961 Convention.
obligations under the treaty. If at least one-third of the parties objected to reaccession at all, in objecting to the reservation, the reacceding and reserving state would presumably be excluded from the treaty – what Helfer (2006:375) regards as an extreme case, and labels the “nuclear option”. Under the wording of the 1961 Convention, if at least one-third of the parties objected to the reservation but not to the reaccession, the reservation would not be “permitted”. But it is not clear what would happen next.
The situation with respect to the 1988 Convention is clearer. A state could probably successfully remove its obligation to the more onerous requirement of criminalization of cannabis in the 1988 Convention by denouncing and then reacceding to that treaty, with a reservation.
Swaine (2006) reviews the situation in international law on objections to reservations and notes that objections are surprisingly uncommon, and those that are made are quite often untimely. Where there are objections to a reservation, it is rather unclear what their effect is; in fact, reservations generally appear to remain in effect, despite any objections to them.
It should be noted that another uncertainty concerning reservations is introduced by the fact that the 1961 and 1971 Conventions came into effect prior to the entry into force of the Vienna Convention on the Law of Treaties, which, as Swaine (2006:308) notes, “is formally limited to treaties concluded after the Convention itself came into force in 1980”. However, Swaine goes on to note, the Vienna Convention’s provisions are “often invoked under other circumstances”.
“Error” and “fundamental change in circumstances” as grounds for withdrawing from a treaty or suspending its operation.
Article 48 of the 1969 Vienna Convention on the Law of Treaties provides that an error which “relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by that treaty” can be grounds for invalidating a state’s consent to a treaty. Article 62 provides that “a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty,
and which was not foreseen by the parties”, can be invoked as grounds for withdrawing from a treaty if “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty” (UN, 2005a). Such a change in circumstances can also be a ground for “suspending the operation of the treaty”.
Leinwand (1971) considers the applicability of error in the case of cannabis and the 1961 treaty, concluding that “the inclusion of cannabis in a narcotics treaty was a mistake ... in the state of scientific knowledge” at the time of the treaty’s adoption. In terms of the development of knowledge since 1971, things are now less black-and-white than Leinwand’s argument that cannabis is outside the ambit of “addiction to narcotic drugs”, but a strong argument can still be put forward in terms of degree of harm (see Chapter 2 above) that cannabis does not belong in the 1961 treaty. Leinwand (1971) also considers the applicability of the doctrine of “fundamental change in circumstances”, again primarily in terms of the change in knowledge since 1961. In the light of history, a parallel and perhaps stronger argument might be made about the radical change in the prevalence of use and social position of cannabis in a variety of societies since the early 1960s. In 1961, cannabis use was largely confined to some enclaves of entrenched traditional use in particular societies, and otherwise to small and marginalized fractions of the population. Almost a half-century later, the situation is quite transformed: in dozens of societies, cannabis use is widespread in youth populations, and is widely regarded as a normalized part of growing up. This could be seen as constituting a fundamental change in circumstances justifying withdrawal from or suspension of the application of the 1961 treaty to cannabis.
The “error” and “fundamental change of circumstances” provisions are of obvious significance for a treaty where there is no provision for denunciation. But both the 1961 and 1988 treaties, as noted, have such provisions, so in legal terms there seems little reason for invoking the arguments of error or a fundamental change in circumstances with respect to cannabis. Helfer (2005) notes that the
doctrine of fundamental change in circumstances has largely fallen into disuse, in his view probably because of the general availability of the option to denounce.
On the other hand, any effort at change in obligations on cannabis under the international conventions is at least as much a political as a legal matter. In political terms, a state or state may well find it wise to add arguments of error and fundamental change in circumstances when a path of denunciation or denunciation followed by reaccession with reservation is being followed.
A potential alternative to denunciation and reaccession with a reservation is for a party which has ratified a treaty to later file a new reservation. Helfer (2006:373) notes that “late reservations have become a regular, if infrequent, component of modern treaty practice”. He continues that “although legal commentators have frowned on this practice, it is sufficiently common that treaty depositories have developed different procedures for circulating late reservations to non-reserving states for their review”. The International Law Commission has recommended allowing such late reservations, but only if no other party objects within twelve months (http://untreaty.un.org/ilc/reports/2001/2001report.htm; 2.3.1- 2.3.3). Such a rule would, of course, nullify a late reservation if a single party objected. However, this remains a recommendation, rather than a settled matter in international law.
Adoption of a new convention
One option for neutralising the present international cannabis regime would be to adopt a new international treaty concerning cannabis. This could be a convention specifically about cannabis, or it could cover cannabis along with other topics – such as covering a broader range of substances. As Julian Ku (2005a), an expert on the issue, states the traditional rule: “There is traditionally a last in time rule for treaties, with the later in time treaty prevailing over the earlier in time one”. In practice, there is an “implicit” denunciation “when a new treaty on the same subject matter has been entered into” (de Matons, 2004).
These rules are clear when the two treaties are between the same parties. But it leaves open the question of what happens when a later treaty ratified by a smaller number of parties conflicts with an earlier treaty ratified by a larger number. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (UN, 2005b) has provisions covering this circumstance. In this 1986 Convention, with respect to two states who are both parties to both treaties, “the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty” (Art. 30, §§3, 4). When only one is party to the later treaty, the earlier treaty still governs “their mutual rights and obligations”. However, this treaty has not been ratified by enough parties to be in force, so these rules are not clearly in effect.
The 1969 Vienna Convention (UN, 2005a) also has a relevant provision, concerning “Agreements to modify multilateral treaties between certain of the parties only” (Article 41). The modification must not be prohibited by the earlier treaty, cannot affect “the enjoyment by the other parties of their rights under the treaty or the performance of their obligations”, and cannot involve a change “incompatible with the effective execution of the object and purpose of the treaty as a whole”. In considering conflict between “norms” (legal provisions) in different treaties, Pauwelyn (2003) discusses the situation where there are parties to the first treaty who are not party to the second. He draws on the distinction in discussions of international law between treaties imposing “reciprocal” and those imposing “integral” obligations (pp. 52-58). The “reciprocal” type can be broken down conceptually into pairwise obligations between parties, while the “integral” type reflects a higher common interest beyond pairwise obligations. In the case of treaties of the “integral” type, if the later treaty conflicts with the “object and purpose” of the earlier treaty, Pauwelyn’s view is that the earlier treaty takes priority (Pauwelyn, 2003:306).
A further consideration in the relationship between an older treaty and a new treaty between a smaller group of states is the principle of “lex specialis”: that a more specialized treaty takes priority over a more general one (Pauwelyn, 2003:384-416). By this principle, for instance, a treaty specifically on cannabis would take
precedence over a treaty on a broader range of substances. In Pauwelyn’s view, the provisions of Article 30 of the 1969 Vienna Convention giving priority to the later treaty take precedence over “lex specialis” (Pauwelyn, 2003: 409). He offers no opinion on the relation between “lex specialis” and Article 41.
The state of international law thus seems to be somewhat unsettled concerning the relation between an earlier general drug treaty ratified by a large number of states and a later more specific treaty signed by a subset of those ratifying the earlier treaty. It is clear that, despite the later treaty, states which ratify it still have obligations under the earlier treaty to states which did not ratify the second treaty. Whether the earlier or later treaty prevails for the obligations between states ratifying both treaties is likely to be a matter for dispute.
In terms of “mutual rights and obligations”, it is worth keeping in mind the specific nature of the international drug conventions. In part, the conventions are concerned with international matters, in particular with controlling both the legitimate and illegal trade in substances they cover. The provisions in the 1961 Convention requiring a government wholesale monopoly of the legitimate market (Art. 28), requiring authorizations for export and import (Art. 31, §4), and banning export to another nation except in accordance with that nation’s laws and with an import license (Art. 31, §§ 1, 5) are clearly related to controlling international trade in a substance of public health significance, and could well be retained or adapted in a new convention. On the other hand, the 1961 and 1988 Convention contain many provisions which do not specifically concern international trade, but have to do with a nation’s own internal laws and regulations. It is in fact these requirements in the Conventions – the requirement that states limit use to “medical and scientific medical purposes” (1961 Convention, Art. 4), the requirement that production sale and possession be criminalized (1988 Convention, Art. 3, §1), and so on – which would need to be changed if a country wished to move to a legal internal market in cannabis. So long as a new convention provided for control to be maintained with respect to exports, in particular to countries continuing under the full application of the 1961 and 1988 Conventions, there is a strong argument that the “mutual rights and obligations” to other parties would be being maintained. On the other hand,
ironically, the parts of the conventions dealing with internal markets and matters might well be seen as evidence that the treaties are “integral” rather than “reciprocal” in nature.
Addition of cannabis to an existing convention
The same purpose of providing a last-in-time substitute for the 1961 and 1988 conventions with respect to cannabis might be served by adding cannabis to an existing international treaty. Spivack (2004) has suggested that cannabis might be added to the Framework Convention on Tobacco Control (WHO, 2005). This Convention has provisions for adding Annexes and Protocols (Arts. 29 and 33). However, the wording of the Convention throughout is in terms of tobacco, and cannabis could not conceivably be added to its scope without an Amendment. Amendments require a three-quarters vote of the parties, and then accession to the amendment by at least two-thirds before they go into force (Art. 28). Adoption of a new convention would probably be an easier process than amending the FCTC to include cannabis.
Passing conflicting domestic legislation
A method of nullifying an obligation in international law guaranteed to raise considerable controversy would be for a state simply to pass legislation conflicting with the 1961 and 1988 Conventions: for instance, to set up a domestic control regime which legalizes production and sale of cannabis for non-medical use. The American legal literature on this has focused on the legality of doing this in terms of US law. The discussion is divided between the “internationalists” who would insist that international law takes precedence over national law, and what have been labeled in the US the “new sovereigntists”, who insist that national legislation can preempt the application of an international treaty (Ku, 2005b: 339). In the specific case of the US, it is settled that, under the US constitution, treaties have the same standing as national legislation – no less, but also no more. In the case of conflict between a treaty and a national law, the “last in time” principle applies, so that the more
recently adopted of the two is valid. The constitutional situation varies in other countries, though the US position is not unusual (Conforti, 1993:41-44).
This US principle conflicts with a provision of the Vienna Convention on the Law of Treaties (UN, 2005a), which applies to all treaties entering in force after 1980 (i.e., the 1988 Convention, but not the 1961 Convention): “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. The Vienna Convention’s provision codifies longstanding thinking in international law. With respect to international law, passing domestic legislation which nullifies an obligation would simply be a breach of treaty obligations. But in countries with principles concerning the status of international law similar to those applying in the US, it would be possible to nullify international law concerning cannabis by a new legislative enactment, if the country was willing simply to be in breach of its treaty commitments.
In the special case of the European Union, which has many characteristics of an international government, the general principle which has been established is that European Union law takes precedence over national law. But even in this case the issue is not wholly settled in all EU countries, particularly with regard to national constitutional provisions (Kumm & Comella, 2004).
Constitutional provisions or decisions
As noted above, the provisions in the 1961 treaty requiring criminalization of production, trading and possession are subject to the party’s “constitutional limitations”. However, the 1988 treaty includes this exception with regard to criminalization only for “possession, purchase or cultivation ... for personal consumption” (Art. 3 §2), and not for production and trading (Art. 3 §1.a). A constitutional protection of some sort against criminalizing production and trading thus will not countermand criminalization, in terms of the language of the Conventions, in any state which has ratified the 1988 Convention without reservation. Such provisions or decisions would fit under the previous rubric, “passing conflicting domestic legislation”, particularly if the constitutional provision
or decision came into effect after the effective date of the relevant Convention, but they would probably be construed as a breach of the 1988 Convention.
LIKELY PATHS FORWARD
There are thus several paths forward which could be taken by a single country or a group of countries inclined to allow a controlled legal market in cannabis. The simplest, in countries with a constitutional system like that of the US, would be to pass domestic legislation enabling this. Under the last in time principle, this would nullify international law with respect to national law and the domestic market. However, with respect to international obligations, this would be a breach of the treaties, and the state would have to be willing to bear this onus.
A second straightforward path would be to denounce the 1961 and 1988 Conventions. An alternative which is likely to be more politically viable would be to denounce and reaccede with reservations. There is a substantial chance of objections to the reservations, and with respect to the 1961 Convention there might in that case be a considerable aftermath of international jurisprudence about the effect of the objections. If the country persisted, the end result might be denunciation.
A more complex alternative would be to join with like-minded countries and to negotiate a new international convention specifically about cannabis (or about some broader range of substances). To the extent that the provisions of the new convention conflicted with the provisions of the 1961 and 1988 Conventions, the intention would be that it would replace them, although as we have suggested the international law on this is somewhat debatable. The new convention, however, would probably not apply with respect to “mutual rights and obligations” with parties to the 1961 or 1988 Convention who do not ratify the new convention. However, the argument that the provisions of the new Convention which applied to a country’s domestic market and laws are outside those mutual rights and obligations seems strong in substance, whether or not it is in law.
A NEW TREATY? SOME CONCRETE CONSIDERATIONS
One consideration in negotiating a new international convention on cannabis would be the auspices under which it would be negotiated. There is in fact no necessity for the negotiations to be hosted by any particular entity. It was in response to a US invitation, for instance, that conferences were convened and the original Hague Opium Convention was negotiated. Given the controversy which would be likely to surround the effort to negotiate a new cannabis convention, the simplest path forward might well be to proceed with a negotiating conference convened by this older path of invitation from one or more interested nations.
However, in recent years it has been common practice to negotiate such agreements under the auspices of an intergovernmental agency. In the United Nations system, the international drug conventions are under the auspices of the Commission on Narcotic Drugs, which reports to the UN Economic and Social Council (ECOSOC). An obvious alternative would be to take the precedent of the Framework Convention on Tobacco Control, which was negotiated at the call of the World Health Assembly and under the auspices of the World Health Organization (Room, 2006). There is a strong logic in proceeding with a parallel convention on cannabis under WHO auspices. Another international convention which involves psychoactive substances, the International Convention against Doping in Sport, was negotiated under the auspices of the United Nations Education, Scientific and Cultural Organization (UNESCO). It has been signed and put out for ratification, but is not yet in effect.
Another option would be to follow the earlier path taken in sports doping, and work under the auspices of a regional intergovernmental body. In 1989, an Anti-Doping Convention was negotiated under the auspices of the Council of Europe (Council of Europe, 1989), coming into force in 1990. As the Council’s website explains (http://www.coe.int/t/dc/files/themes/dopage/default en.asp?), “the Convention is an ‘open’ convention, which means it can be adopted by countries which are not members of the Council of Europe as well as countries outside Europe”, and indeed Australia, Canada and Tunisia have ratified it.
In the more general drug field, the Parliamentary Assembly of the Council of Europe adopted a resolution on 3 October, 2007, calling for “a European convention promoting public health policy in the fight against drugs” (Council of Europe, 2007). The content envisaged for the convention is particularly concerned with establishing a public health approach concerning treatment services and the social handling of drug users (http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc07/EDOC1134 4.htm). It would be a stretch to include within the proposed convention a new international agreement on cannabis. However, whether the agreement took this form or the form of a separate convention, the Council of Europe’s longstanding interest in the drugs field would make it one of the logical potential auspices for a new cannabis treaty.
Like the drug conventions and the tobacco convention (Room, 2006), a new cannabis treaty could be expected to contain three kinds of provisions: for domestic measures to control the market, for cooperation on international control, and for the international management of the agreement and its provisions. These provisions may be mandatory or recommended. Many of the provisions in the tobacco convention are encouraged but optional, while the provisions in the drug conventions tend to be mandatory. With respect to domestic measures, a major consideration is whether the 1961 Convention’s requirement of a government wholesale monopoly would be kept. Whether it was or not, it might be expected that a new cannabis treaty would require or strongly encourage measures requiring licensing of producers, wholesalers and retailers, as is common in the case of alcoholic beverages and pharmaceuticals. A state monopoly or licensing regime gives the state strong tools to control the market. In particular, the state can then effectively forbid market participants from participating in export of cannabis products except as allowed by the state to which they would be exported.
Another internal matter which potentially reaches across state borders is advertising and commercial promotion of sales. It might be expected that the
cannabis convention would follow the tobacco convention in requiring that advertising and other promotion and sponsorship be banned if constitutionally allowed.
Otherwise, with respect to domestic matters such as conditions of sale, taxation provisions, educational programs, treatment provision, etc., the choice would be follow the lead of the tobacco convention, and spell out a set of recommendations and encouragements in the treaty, or to leave these matters to be settled in the individual society.
With respect to cooperation in international control, a major issue to be settled would be how arrangements in the new treaty interact with those of the drug conventions. At least with respect to countries which had not signed the new convention, the drug treaties’ requirements for such matters as export and import authorizations, export declarations, seizure of illicit goods, and mutual assistance in law enforcement would remain in effect. The simplest path might be to continue such provisions in effect also in the new treaty, perhaps with a provision that signatories can waive such matters as export and import authorizations between themselves by mutual agreement. From the perspective of countries outside the new treaty, presumably the most important requirement would be of comity: that the new treaty should not alter the requirement of the existing drug treaties banning export to a country remaining prohibitionist.
Given the international environment into which it would come, strong consideration should be given to including provisions in the new treaty for a secretariat charged with watching over the new treaty and assisting signatories in implementing it. A counterpart for cannabis control to the International Narcotics Control Board would serve as a focal point in constructing a more realistic international drug control regime for cannabis.
With any of the paths forward outlined above, the basic drawback is that there will be vociferous opposition from a number of quarters – from the INCB, from the United States, and from a number of other countries. The opposition will be
couched in terms of the old idealized rhetoric about the need for solidarity among humankind to defeat a common scourge (Room, 1999). In practical terms, no country up till now has been willing to weather this storm and actually to denounce any of the conventions.
Any move forward has to face these political issues and develop its own framing in terms of such ideals and principles as human rights and liberties, proportionality, and the minimization of harm (see e.g. Bewley-Taylor, 2004). Along with this, as we have noted, it would be wise for a state or states which are moving outside the present conventions to give reassurances that they will continue a commitment to some aspects of the current regime – in particular to controls on international trade which maintain comity, the principle that other states’ domestic arrangements, for instance of cannabis prohibition, will be honoured. There are two paths forward which clearly do this: (1) denunciation and immediate reaccession with reservations (or the simpler but more difficult path of a late, post-accession reservation); and (2) negotiation and ratification of a new treaty covering cannabis.