Drug Law Reform

A House of Cards - ‘High compliance’: A legally indefensible and confusing distraction

A Commentary by Martin Jelsma (TNI), David Bewley-Taylor (GDPO), Tom Blickman (TNI), and John Walsh (WOLA)

In a recently published report, ‘High compliance, a lex lata legalization for the non-medical cannabis industry’, Kenzi Riboulet-Zemouli claims to have discovered a new legal justification for regulating recreational cannabis in accordance with the 1961 United Nations Single Convention on Narcotic Drugs. This option, according to Riboulet-Zemouli, went unnoticed by governments and by numerous experts ostensibly blinded by an orthodox prohibitionist treaty interpretation in the past decades. The report contends that it “easily finds a pathway where a ‘cannabis legalization’ in good faith is possible”, arguing that non-medical use of cannabis fits under the treaty exemption―in Article 2(9)―for “drugs which are commonly used in industry for other than medical or scientific purposes”.

Lengthy and amply resourced, the paper looks impressive. And the analysis does take into account several valid arguments that seemingly contribute to making the case for such a creative re-interpretation of the flexibility embedded in the Single Convention. At first glance, the argument that the Single Convention already allows for recreational cannabis legalization may hold appeal, as it purports to offer an enticingly easy way to overcome the treaty-related obstacles facing countries that are choosing the path of legal regulation of cannabis for not only medical purposes but for recreational uses as well.

A closer reading, however, quickly reveals the confused and legally indefensible nature of the paper’s proposed escape route. And while we consider the UN drug control treaties to be out of date and not fit for purpose, we strongly disagree with proposals that would seek to overcome the challenges on the basis of legally unsound and invalid arguments. The ‘High compliance’ paper constructs a legal house of cards that comes tumbling down when its core arguments are contested and taken out.

Prohibition and exemptions

The paper tries to argue that the Single Convention nowhere obliges States to ‘prohibit’ cannabis. To be sure, in 2020 the Commission on Narcotic Drugs (CND) voted by a narrow margin to remove cannabis from Schedule IV of the Single Convention, based upon a recommendation by the World Health Organization (WHO) arising from its first-ever critical review of cannabis. As a result of the 2020 vote, the treaty no longer recommends against medical use of cannabis. Removal from Schedule IV marked an important, long overdue reform. Unfortunately, also following the advice of the WHO (which we have questioned elsewhere), cannabis remains firmly in Schedule I, alongside such substances as cocaine, fentanyl and heroin.

‘High compliance’ makes a big point about the disappearance of ‘prohibition of cannabis’ wording from early drafts of the Single Convention. However, in the context of those deliberations, ‘prohibition’ referred to banning cannabis for all purposes, including medical uses, and several countries rejected that notion. India objected, for example, because it opposed abolishing the widespread traditional use of bhang made from cannabis leaves with a low THC content. Other States pointed out the use of cannabis in some pharmaceutical preparations as well as in indigenous medicine and argued that it was feasible that future research would reveal additional medicinal benefits. Also, the hemp industry was relevant for the production of fibre and seeds and could not be hampered by overly restrictive controls.

Negotiations led to compromises, such as explicitly omitting the leaves and seeds from the definition of ‘cannabis’ in the Single Convention, which as a result only refers to the ‘flowering or fruiting tops of the cannabis plant’; in addition, cannabis resin (hashish) and ‘extracts and tinctures’ were added to the Schedule. India made clear that it would not be able to sign the treaty if it would oblige them to also disallow the uses of cannabis leaves in foods and drinks. With a few other countries, India actually preferred to provide a more general exemption for ‘other legitimate uses’, as had been used in previous treaties. That would have afforded much more flexibility for traditional, social and religious practices, not only for cannabis but also for coca and opium.

Some countries maintained that it would not be easy for them to ban the centuries-old social uses of cannabis, and that they would need time to gradually phase out those widespread traditions. That led to the option spelled out in Article 49 that a Party may “reserve the right to permit temporarily” the use and production of “cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes” but “only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961”. Besides India, the only countries making use of that transitional reservation were Bangladesh, Nepal and Pakistan. Article 49 specifies further, however, that such “use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years”, a transition period that ended in 1989. To make it possible for the countries concerned to ratify the Convention, according to Adolf Lande (author of the Commentaries, involved in drafting the 1961 and 1971 Conventions and regularly quoted in ‘High compliance’ as an authority), it was “advisable to allow a certain period of grace before the complete prohibition of the practice” (Official Records I, p. 185).

Unfortunately, the Conference decided against the inclusion of a broad exemption and ultimately narrowed the language that would have allowed ‘other legitimate uses’ to a few specified provisions deviating from the Single Convention’s general and decisive obligation in Article 4(c) “to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”.

The general obligation is “subject to the provisions of this Convention”, ‘seven words’ that Riboulet-Zemouli claims are repeatedly neglected in other studies. But the treaty Commentary does not leave any room for ambiguity with regard to the three provisions which are excepted from the limitation to medical and scientific purposes, namely Article 49 (transitional reservations), Article 2(9) “(whose practical importance seems highly hypothetical)”, and Article 27, “permitting the use of coca leaves for the preparation of a flavouring agent which must not contain any alkaloids” (primarily meant for the manufacture of Coca-Cola, as long as the cocaine was removed from the leaves beforehand).

Underscoring the narrow scope of exemptions to the treaty’s general obligation, the Commentary added that: “It is one of the most important achievements of the Single Convention that it ended the exceptions permitted in earlier treaties, subject only to transitional provisions of limited local application and duration pursuant to article 49, and apart from two cases presenting no problem of public health because they exclude the consumption of the dangerous substances involved” (p. 110).

In attempting to argue that the Single Convention does not disallow recreational uses of cannabis, ‘High compliance’ cites (on pp. 99 and 103) from the Official Records that the Conference decided to leave “governments free to prohibit the production of cannabis or not, as they saw fit” and that “the prohibition should take the form of a recommendation only. In the last analysis countries themselves must decide”.

Crucially, however, those quotes refer only to countries’ option to prohibit cannabis for the purposes the treaty specifically allows (medical, scientific and some industrial uses), not to escape from its basic obligations. Understood in its proper context, the Commentary is actually highlighting that the treaty explicitly allows for a stricter regime—not for a more lenient one—in recognition of the position of countries that considered some or all of the treaty exemptions as unjustified and harmful to drug control (Article 39 and Commentary p. 450). If they so choose, States can decide to prohibit medical or industrial use, or extend controls to the whole plant including the leaves and seeds, beyond the basic treaty requirements. Nowhere in the texts of the Convention, the Commentary or the Conference proceedings is there any indication that the deletion of ‘prohibition’ intended to afford Parties leniency with regard to recreational cannabis. “With regard to cannabis”, according to the closing statement of the President of the Conference, “it would seem that, under the Convention, production should be prohibited except in special cases” (Official Records I, p. 217).

Industrial uses

Apart from allowing medical use―including traditional herbal medicines―the treaty includes two distinct exemptions for industrial uses. First, paragraph 1 of Article 28 on ‘Control of Cannabis’ establishes a control regime similar to opium poppy for countries that permit the “cultivation of the cannabis plant for the production of cannabis or cannabis resin”, which according to the Commentary, referring to Article 4(c), “must not be undertaken for other than medical and scientific purposes”, with the exception of those countries qualified for and availing themselves of the transitional reservation, as described above.

To protect the hemp industry, Article 28’s second paragraph then provides that the Single Convention “shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes”. The Commentary clarifies that the regime under paragraph 1 “applies only to the cultivation of the cannabis plant for the production of cannabis and cannabis resin. Cultivation of the plant for any other purpose, and not only for the purposes mentioned in paragraph 2, is consequently exempted from the control régime”. The parenthesized “(fibre and seed)”―as also the ‘High compliance’ paper argues―should therefore be interpreted as illustrative of industrial uses, rather than as a comprehensive listing of allowable uses. Production of CBD products, for example, can fit in this category, especially since the WHO’s recent critical review concluded that CBD does not warrant international control. Nevertheless, it is clear that the scheduled drug ‘cannabis’ cannot be legitimised under this second paragraph of Article 28 regarding industrial uses, and indeed it is not listed as a fourth exception to the general obligation. ‘High compliance’ misinterprets ‘any other purpose’ in this context to mean ‘any other purpose than medical and scientific’, though it clearly refers to ‘any other purpose’ than the production of the drugs ‘cannabis’ and ‘cannabis resin’. Cultivation of the cannabis plant (which is not scheduled as a ‘narcotic drug’) is thus allowed for more industrial uses than only ‘fibre and seeds’ under this article, but the drug ‘cannabis’ is not.

The other industrial exemption, found in Article 2(9), is that “Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes”, provided that they ensure “by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects [..] and that the harmful substances cannot in practice be recovered”. The exemption was meant for rare cases of drugs being used in ‘industrial processes’, and the only example mentioned at the time was the use of morphine in photography. The Commentary noted that it “was of no immediate practical importance, but had been inserted to anticipate possible future developments” where drugs might be “transformed for use for harmless non-medical purposes, e.g. as dyes”, while ensuring “that the recovery of drugs used up in manufacture is prevented or made impracticable” (p. 72). The only reference made to cannabis in this context was when the Office of Legal Affairs pointed out “that as defined in article I ‘cannabis’ was a drug. There were no industrial uses for that drug, but only for the hemp plant” (Official Records I, p. 185).

Riboulet-Zemouli claims to have found in this exemption the solution for justifying the legal regulation of recreational cannabis markets, using a mix of dubious, at times incomprehensible, and ultimately indefensible arguments. To square the circle, ‘High compliance’ argues that recent cannabis policy trends represent a ‘future development’, that the term ‘cannabis industry’ is ‘commonly used’, and that legal regulation reduces harms and therefore qualifies as ‘other means’ (instead of ‘denaturing’) to ensure that cannabis is no longer ‘liable to be abused or have ill effects’.

The report then goes on to contend that if countries―as required by Article 2(9)―just report to the International Narcotics Control Board (INCB) the amounts of cannabis allocated for recreational use under this exemption, the reporting will automatically legitimise it as industrial use. Moreover, the cannabis used for this purpose will then cease to be ‘cannabis’ as defined and scheduled, it would no longer be a ‘narcotic drug’, and therefore cultivation of the plant can then be legitimised under the exemption for industrial use in Article 28(2). Consequently, the cultivation of cannabis for ‘other than medical and scientific purposes’ would be “wholly exempted from the Convention” (p. 58). If that sounds confusing and far-fetched, that is because it is.

Treaty interpretation

Acknowledging the ‘innovative’ nature of his re-interpretation, to defend his case the author resorts to treaty interpretation concepts around ‘intertemporality’―questioning the temporality of a particular provision―and evolutionary interpretation taking into account the development of international law, practice, and custom. And of course a lot has happened over the past 60 years, and the UN drug treaties do afford certain latitude, which provides room for manoeuvre for policy makers to legally accommodate the progress made. Examples are the now widespread acceptance of medical cannabis, the emergence of a CBD market, the decriminalization of possession and cultivation of drugs for personal use, and harm reduction services such as drug consumption rooms, heroin prescription or drug testing. Those developments initially also created tensions with treaty provisions, running into an overly-prohibitive treaty interpretation by the INCB. But evolving state practices combined with sound legal argumentation have convincingly addressed those tensions, and the stance of the INCB is gradually adapting to these new realities.

But there are also clear limits to the latitude, and there is―unfortunately―simply no way around the fact that legal regulation of drugs markets for recreational use contravenes certain treaty obligations, and conflicts with the explicit purpose of the established international drug control regime to ban those practices. To be very clear, in our opinion the inevitable non-compliance with these obligations should neither prevent nor delay countries from proceeding ahead with legal regulation of cannabis markets. Indeed there are numerous compelling reasons for countries to choose to legalize cannabis, and we are actively supportive of countries moving in that direction. But undertaking reforms that will involve non-compliance with current treaty obligations must be addressed in ways that comport with the rules and procedures of international law, not through some fantasy re-interpretation.

In some countries the difficult reality about non-compliance has already been acknowledged. In recent answers to Parliament regarding the government’s planned experiment in cannabis regulation, the Dutch government referred to a legal advice from the State Council concluding that “[t]he planned experiment is presumably in breach of current international and European law”. At the same time, “the government intends to use the proposed experiment to investigate whether an alternative to the current, ineffective policy is possible” and on that basis, “the government considers the experiment legally defensible” while recognizing that “the experiment creates a certain amount of tension with those conventions”. As it elaborates its announced cannabis regulatory framework, Germany’s coalition government uses as a reference point the Green Party’s 2018 cannabis bill, which stated “there is little doubt that a system such as the Cannabis Control Act, which allows cannabis to be sold in licensed outlets for adult recreational consumption is not compatible with the international prohibition regime at this stage”. And Canada’s then-Foreign Minister Chrystia Freeland told the Senate in May 2018 that cannabis regulation does entail “contravening certain obligations relating to cannabis under the three UN drug conventions”, adding, “we need to be open about that”. Freeland affirmed that Canada is “definitely open to working with treaty partners to identify solutions that accommodate different approaches to cannabis within the international framework”.

Conclusion

It is time to plainly acknowledge that certain elements of these treaties are no longer fit for purpose, to confront the colonial legacy and injustice embedded in them, and to support a coordinated effort of a group of like-minded countries to distance themselves from the most problematic elements of this out-dated regime. Doing so, in our view, will also contribute to clear the path for other unduly restricted plants like the coca leaf or psychedelics, and to support ongoing struggles for the recognition of indigenous rights and ceremonial uses.

Cannabis policy developments have arrived at an important moment where the treaty issue needs to be confronted in an honest manner, and not by hypocritical denials or fantasy interpretations that undermine basic principles of international law and cannot stand the scrutiny of ‘good faith’ treaty interpretation. The pathway proposed in ‘High compliance,’ in our view, is no doubt well-intentioned but amounts to a legally indefensible distraction, and risks confusing the already complicated discussion over the most suitable strategies for moving forward with legal regulation with due respect for international law (as also argued by others). The principles behind the multilateral system and international law are precious, but also fragile and currently under threat on many fronts, and need to be treated with the utmost caution.

After careful consideration with a group of international lawyers, over the past years we have outlined in detail the few legally available and politically viable options, either by means of treaty withdrawal and re-accession with reservations or inter se modification (see sources below). In addition to Uruguay and  Canada, multiple U.S. states have legalized cannabis and federal regulation proposals are now under debate in the U.S. Congress, a bill is pending in Mexico’s Congress, and across Europe developments are speeding up with initiatives in LuxembourgMalta and Germany, and experiments in Switzerland and the Netherlands. Now is more urgent than ever for like-minded countries to coordinate discussions on realistic scenarios for resolving the unavoidable conflict between legalizing non-medical cannabis and the UN drug conventions and European Union law.

Photo credit
TNI

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