Abstract
There are good reasons to legally regulate drugs markets, rather than persist with efforts to ban all non-medical uses of psychoactive substances. Regulated cannabis and coca markets are already a reality in several countries, with more likely to follow. But ignoring or denying that such policy shifts contravene certain obligations under the UN drug control treaties is untenable and risks undermining basic principles of international law. States enacting cannabis regulation must find a way to align their reforms with their international obligations. Reaching a new global consensus to amend the UN drug control conventions so as to accommodate cannabis regulation is not feasible for the foreseeable future, and the options that do not require consensus are limited. For countries choosing to regulate cannabis, notwithstanding the drug treaty provisions intended to disallow such a step, a proactive way forward would combine: (1) providing evidence of the ineffectiveness and negative consequences of the prohibitionist approach; (2) underscoring the inconsistencies and historical errors embedded in the treaty regime, and the political and procedural obstacles to its modernization; (3) explaining the shift to regulation with arguments of citizens’ health and safety, and justifying it with an appeal to human rights obligations; (4) acknowledging that regulation contravenes certain drug treaty provisions and arguing that a limited period of ‘respectful non-compliance’ is unavoidable; and 5) preparing to resolve the legal conflict by submitting new reservations or by elaborating a new agreement among like-minded countries on the basis of the inter se procedure for treaty modification, as provided by Article 41 of the 1969 Vienna Convention on the Law of Treaties.
Highlights
The 1961 Single Convention on Narcotic Drugs obliges States under Article 4 ‘to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs’ listed in its schedules
The treaty came into force in 1964, the transitional period permitted under Article 49 ended in 1989; the only countries to avail themselves of the transitional period for cannabis were Bangladesh, India, Nepal and Pakistan
The INCB has consistently maintained the position that legal regulation of cannabis for non-medical use contravenes core obligations and the object and purpose of the treaty regime, as there are limits to the treaties’ latitude, and one of the clearest limits is that regulated access to non-medical cannabis—or to any of the other over 300 substances within the treaties’ purview—is out of bounds (INCB 2019: 25, 62)
Summary
There are good reasons to legally regulate drugs markets, rather than persist with efforts to ban all non-medical uses of psychoactive substances. For countries choosing to regulate cannabis, notwithstanding the drug treaty provisions intended to disallow such a step, a proactive way forward would combine: (1) providing evidence of the ineffectiveness and negative consequences of the prohibitionist approach; (2) underscoring the inconsistencies and historical errors embedded in the treaty regime, and the political and procedural obstacles to its modernization; (3) explaining the shift to regulation with arguments of citizens’ health and safety, and justifying it with an appeal to human rights obligations; (4) acknowledging that regulation contravenes certain drug treaty provisions and arguing that a limited period of ‘respectful non-compliance’ is unavoidable; and (5) preparing to resolve the legal conflict by submitting new reservations or by elaborating a new agreement among like-minded countries on the basis of the inter se procedure for treaty modification, as provided by Article 41 of the 1969 Vienna Convention on the Law of Treaties
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