International legal barriers to Canada’s marijuana plans

Steven J. Hoffman; Roojin Habibi

doi:10.1503/cmaj.160369

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Cannabis Legalization in Canada and the International Conventions: Need for Resolve and Leadership
Benedikt Fischer

Posted on: 01 June 2016
An important discussion at a key moment, but Hoffman and Habibi's article is inaccurate
Damon Barrett

Posted on: 25 May 2016

Posted on: (1 June 2016)
Page navigation anchor for Cannabis Legalization in Canada and the International Conventions: Need for Resolve and Leadership
Cannabis Legalization in Canada and the International Conventions: Need for Resolve and Leadership
Benedikt Fischer, Senior Scientist & Professor
Other Contributors:
Hoffman & Habibi [1] correctly observe that the current plan to formally - i.e., on a de jure basis - legalize recreational cannabis use and supply in Canada would violate international drug control treaties (especially the 1961 'Single Convention'). While there have been extensive - and creative - interpretive efforts over decades on whether various cannabis law reform models indeed do violate the international conv...
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Hoffman & Habibi [1] correctly observe that the current plan to formally - i.e., on a de jure basis - legalize recreational cannabis use and supply in Canada would violate international drug control treaties (especially the 1961 'Single Convention'). While there have been extensive - and creative - interpretive efforts over decades on whether various cannabis law reform models indeed do violate the international conventions, there can be no doubt that a national legalization scheme as proposed in Canada surely violates the object and spirit of these conventions [2,3]. After all,the international drug conventions centrally enshrine the fundamental principles of prohibition for scheduled illicit drugs (including but not limited to cannabis), consequentially requiring its operationalization by criminal repression of use and supply by its signatories based on the premise that these drugs are disproportionately harmful and need to be purged. A legalization policy, for public health or other reasons, fundamentally disagrees and facilitates the opposite approach as state-based policy. Thus Hoffman & Habibi correctly conclude that such a rejection of international treaties requires appropriate remedy especially from a signatory country which prides itself as a democracy that fundamentally respects and promotes the rule of law.
However, we do not fully agree with the possible paths for remedy proposed. While Canada may indeed just leave the conventions, it may also denounce and re-accede to them with a reservation that will legally protect its planned legalization policy [4,5]. Reservations to international conventions are a possible - and increasingly common - tool. More than 30 countries have established reservations to the drug control treaties at time of accession, and Bolivia has established precedence for the 'denounce and re-accede' option (which did not meet substantial resistance from other signatories). While the 'denounce and re-accede with reservation' option would likely be the more pragmatic and diplomatically palatable solution for the specific Canadian situation, there may be good strategic reasons for either approach. The international drug control treaties, and the spirit and consequential forces of prohibition they represent and impose on their signatories, are an anachronistic 'yoke' of international law constituting a principal and powerful barrier to modern drug control policies guided by public health [6,7]. This yoke effect extends far beyond cannabis (e.g., to other substances like opioids or stimulants) but also to many other countries - many in the Americas - where impetus or concrete initiatives for drug policy reform is building but which may be too small or insufficiently astute to actively challenge the dictates of the international conventions [8].
Considering this, we urge Canada not to seek creative circumventions of its currently defined commitments under the conventions. Rather, it should not only demonstrate straight resolve by taking appropriate steps to proactively remedy impending conflict with the international conventions in support of its domestic legalization policy plans, yet also to provide international leadership toward aiding similar public health-oriented drug policy reform endeavours for the benefit of other countries where these are considered. This way, Canada would provide an incremental yet important contribution in moving the global community towards - urgently needed - altogether new international drug control conventions based centrally on public health principles as their essential core in material and spirit.
Benedikt Fischer, PhD; Institute for Mental Health Research Policy, Centre for Addiction & Mental Health (CAMH) and University of Toronto, Toronto, Canada
Robin Room, PhD; Centre for Alcohol Policy Research, Turning Point and La Trobe University, Melbourne, Australia
References
1. Hoffman SJ, Habibi R. International legal barriers to Canada's marijuana plans. CMAJ 2016; May 16.
2. Bewley-Taylor DR. Challenging the UN drug control conventions: Problems and possibilities. International Journal of Drug Policy 2003;14(2):171-9.
3. Bewley-Taylor D, Jelsma M. The UN drug control conventions: The limits of latitude. Amsterdam, The Netherlands: United Nations Drug Control Transnational Institute; 2012. Report No. 18: Legislative Reform of Drug Policies.
4. Room R, Fischer B, Hall W, Lenton S, Reuter P. Cannabis policy: Moving beyond stalemate. New York, NY: Oxford University Press; 2010.
5. Room R. Reform by subtraction: The path of denunciation of international drug treaties and reaccession with reservations. Int J Drug Policy 2012; Sep;23(5):401-6.
6. Room R, Reuter P. How well do international drug conventions protect public health? Lancet 2012;379(9810):84.
7. Wood E, Werb D, Marshall BD, Montaner JS, Kerr T. The war on drugs: A devastating public-policy disaster. Lancet 2009; Mar 21;373(9668):989-90.
8. Youngers CA. The drug policy reform agenda in the americas (version 2). Briefing Paper. London, United Kingdom: International Drug Policy Consortium (IDPC); 2013.
Conflict of Interest:
None declared
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Competing Interests: None declared.
Posted on: (25 May 2016)
Page navigation anchor for An important discussion at a key moment, but Hoffman and Habibi's article is inaccurate
An important discussion at a key moment, but Hoffman and Habibi's article is inaccurate
Damon Barrett
Other Contributors:
Hoffman and Habibi's article is correct in that to legally regulate cannabis falls outside of the international drug control conventions. They are correct, also, in that these treaties are outdated. It is an important discussion at a key moment. However, the article contains some inaccuracies that require correction.
The authors assert that depenalisation and decriminalisation violate the drug control treaties. T...
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Hoffman and Habibi's article is correct in that to legally regulate cannabis falls outside of the international drug control conventions. They are correct, also, in that these treaties are outdated. It is an important discussion at a key moment. However, the article contains some inaccuracies that require correction.
The authors assert that depenalisation and decriminalisation violate the drug control treaties. This is incorrect. States granted themselves leeway in the drafting of the treaties to ensure that penal policy remained a domestic concern, and built alternatives to conviction or punishment explicitly into the treaties. The obligation to criminalise possession for personal use, referred to by the authors, is caveated with regard to constitutional limitations. It requires no constitutional amendment to avail of, however, and is further broadened by the additional caveat that states need not criminalise if to do so would be contrary to the basic principles of their legal systems. Here, we might consider such considerations as arbitrariness, fairness and others.
The authors appear to have misunderstood the extent of what is possible with the constitutional caveat. While it appears numerous times it relates only to penal provisions, as is clear form the treaties, their official commentaries, and, indeed, the travaux preparatoires. It does not refer to the legal regulation of the market. Bolivia, for its part, was not 'leveraging' an 'exception' with its constitutional amendment regarding the coca leaf (nor is this an analogous situation with cannabis in Canada). It sought to amend the status of coca under the treaty first, and when this failed it denounced and re-acceded with a reservation.
The authors' apparent error in this regard speaks to the second possible option they set out - for Canada to amend its constitution to side step an international obligation. Given the authors' concern with the international rule of law, and their citation of the Vienna Convention on the Law of Treaties, this is an unusual suggestion (its acknowledged unlikelihood of success notwithstanding). States cannot invoke national law to justify non-compliance with international norms. The authors appear to believe that this is allowed for within the drug treaties, but it is not.
The authors also suggest that a reservation on cannabis would be a possible route to take, but they do not acknowledge the legal challenges this raises. As a post-ratification reservation it is already more difficult to see through than a standard reservation. But it is also by no means certain that this would not also run contrary to the 'object and purpose' of the treaty, which concerned the authors with regard, incorrectly, to depenalisation and decriminalisation. Moreover, the authors mention other areas of international law, so let us imagine gradually removing certain arms from the relatively new Arms Trade Treaty by post-ratification reservations.
Finally, the authors set out only three possible options. One of them, as we note above, is contrary to international law. Another, as we note above, is problematic. There are other possible routes that engage in a more nuanced way with the legal and political dilemmas at play, all with their positives and negatives. This includes a recognition of Canada's non -compliance with this component of the regime, while seeking multilateral solutions moving forward. There is no reason that this need be 'avoided at all costs' when the costs of cannabis prohibition have been so high, and when the political costs of full denunciation have not yet been calculated. The authors' conclusion is too simplistic, even if their recognition of the inability of Canada to end the prohibition of cannabis without international legal problems is correct.
From its statements at the UN General Assembly Special Session on the World Drug Problem in April, it is clear that the government recognises these legal issues already, and is moving carefully forward, mindful of the complexities.
Damon Barrett, Co-director, International Centre on Human Rights and Drug Policy; Visiting Fellow, Human Rights Centre, University of Essex; PhD candidate, University of Stockholm.
Dr. Rick Lines, Chair, International Centre on Human Rights and Drug Policy; Visiting Fellow, Human Rights Centre, University of Essex.
Conflict of Interest:
None declared
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Competing Interests: None declared.