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Cannabis Research and International Law, A Thesis.

by Jon Gettman

(This article was written to clarify some ideas expressed in earlier
correspondence with Mario Lap.)

Summary:  International treaties requiring cannabis prohibition are based
on outdated scientific findings which lack modern day validity.  An effort
is underway in the U.S. to utilize legal and administrative procedures to
bring about an official review of this issue.  Advocates of ending cannabis
prohibition world-wide are invited to consider ways in which the research
behind this effort may aid efforts by other countries to call for a review
of the relevant international treaties.

        This article contains speculation about the impact of recent
cannabis-related research on international treaties.  This article presents
a thesis, and in no way attempts to present these assertions as
research-based analysis.  In fact I am presenting this speculation to
interested parties in hope that other people may be able to compile the
relevant research to transform this speculation into a well-founded
argument grounded in specific attributes of international law and treaty.

        The truth is, I don't know much about the international treaties
that concern cannabis control and prohibition.  I know a lot about United
States law, policy, and regulation, and what I know about the treaties
derives from that specific context.

        The way U.S. law is constructed, specific scientific findings are
required to classify a drug as prohibited.

        Until 1989 - 1994 no one knew what the mechanism of action was that
produced the characteristic effects of cannabis.  It has been assumed
throughout the 20th Century that cannabis affected the human brain in a
manner somehow similar to opium and opiate derivatives, and in both
domestic U.S. law and in International treaties this assumption has been
the basis for similar controls on both cannabinoids and opiates.  In the
U.S. this is manifest in the schedule I status of both cannabis and heroin.

        Until this period, henceforth described as circa 1991, all law and
policy about cannabis was based on a bet, on a wager that whenever science
figured out how it worked, it would prove cannabis worked like heroin.
Circa 1991 the discoveries, in fact, occurred, and it is now clear that
they bet on the wrong theory.  They bet on the wrong horse, and now they
don't want to talk about it and hope that nobody finds out.  They?
Politicians, government officials, and legislators in democratic societies
around the world who claim that prohibition is based on scientific
findings, not some form of repressive malice.

        Obligations affecting the prohibition and regulation of
cannabinoids related to two international treaties are codified in the U.S.
Controlled Substances Act, 21 USC Chapter 13.  These treaties are:  the
Single Convention on Narcotic Drugs, 1961 and Convention on Psychotropic
Substances, 1971.

        The mechanism of action by which cannabinoids affect the human
brain were discovered circa 1991.  This mechanism of action categorically
and definitively distinguishes cannabis from opiates, cocaine, and
amphetamines.  The latter list of drugs affects the neurotransmitter
dopamine, and cannabinoids to not.  See the following:

        1)  Cannabis produces effects by way of a receptor system .
Howlett, A.  "Pharmacology of Cannabinoid Receptors"  The Annual Review of
Pharmacology and Toxicology, 1995. (In press when copy received from
author.)

        2)  The receptor system allows a characterization of the dependence
liability of cannabis, and explains the fallacies of prior research
hypotheses.  Herkenham, M. (1992), "Cannabinoid Receptor Localization in
Brain:  Relationship to Motor and Reward Systems,"  P.W. Kalivas and
H.H.Samson (eds.), The Neurobiology of Drug and Alcohol Addiction, Annals
of the American Academy of Sciences.  654:19-32, 1992.

        (Incidentally, this characterization proves that patients who use
marijuana therapeutically are not engaging in denial when they attest to
medical benefits, and therefore patient anecdotes have increased scientific
validity.)

        3)  The receptor system also allows for explanation of tolerance to
cannabis, and provides evidence that tolerance and dependence to cannabis
are mediated differently in the brain. Oviedo, A., Glowa, J, and Herkenham,
M. (1993), "Chronic cannabinoid administration alters cannabinoid receptor
binding in rat brain: a quantitative autoradiographic study." Brain
Research, 616:293-302. 1993.

        My thesis, then, is fairly straightforward.  How can treaties
regulating cannabis that were signed in 1961 and 1971 be based on any valid
scientific findings when the mechanism of action for cannabinoids wasn't
discovered until circa 1991?

        U.S. law contains the following provision:

        "Nothing in the amendments made by the Psychotropic Substances Act
of 1978 or the regulations or orders promulgated thereunder shall be
construed to preclude requests by the Secretary of Health and Human
Services or the Attorney General through the Secretary of State, pursuant
to article 2 or other applicable provisions of the Convention, for review
of scheduling decisions under such Convention, based on new or additional
information."  21 USC 811 (d)(5)

        This provision refers to the U.S. legislation that was passed to
bring the U.S. into compliance with the 1971 treaty.  However this
underscores a fundamental aspect of the relationship between U.S. law and
our international treaty obligations.  If there is a conflict between the
two, U.S. law takes precedence and our government must take steps to change
the treaty, whether it is the Single Convention or the Psychotropic treaty.

        There have been two significant legal actions to reschedule
cannabis in the United States, by NORML, and by Carl Olsen.  I have
initiated a third.  The process itself is relatively straightforward.  A
petition citing evidence is filed.  If the evidence provides sufficient
legal and/or scientific grounds for consideration, then the Drug
Enforcement Administration must defer the petition to the Department of
Health and Human Services for a scientific and medical evaluation.  The
findings of this evaluation are binding on DEA, which is not allowed to
make such scientific and medical judgments in the absence of HHS findings.
The scientific findings provided by HHS are then used to apply statute to
obtain the appropriate level of regulation and control.  (The failure of
HHS to provide any findings on marijuana's accepted medical use in the
United States was in part DEA's justification for refusing action on
NORML's petition.)

        In legal papers filed in 1982 the DEA acknowledged that this review
process by HHS could produce evidence which would require the U.S.
government to seek a change in the international scheduling of cannabis.

        A 1977 ruling in NORML v. DEA by the U.S. Court of Appeals
determined that because of international treaty obligations, cannabis must
be placed in either schedule I or II of the U.S. Controlled Substances Act.
However U.S., courts have not ruled on the validity of the treaties in a
case where new evidence is submitted demonstrating the treaties are based
on invalid scientific assertions.

        The petition I filed in July, 1995 seeks the removal of all
cannabinoids from schedules I and II of the CSA because they do not possess
the high potential for abuse required for placement in those schedules
under U.S. law (see 21 USC 811(c) and 21 USC 812(b)(1)).  The petition
seeks only seeks the removal of cannabinoids from those two schedules, and
requests that the government appropriately schedule cannabinoids based on
the medical and scientific findings of the Department of Health and Human
Services.  In the U.S., this entire process is subject to review by both an
independent administrative law judge and the appeals branch of the
judiciary.

        The petition was accepted for filing by the Drug Enforcement
Administration on July 27, 1995.  Because the petition raises an issue
already decided by a U.S. court, it could (as Carl Olsen earlier and
shrewdly observed) easily have been dismissed under the doctrine of res
judicata, meaning (but not correctly translated) this was already decided.
However the petition raises a new issue, which is what happens if the
treaties are not based on valid science?

        Ending prohibition, in a technical sense, has always been
complicated by the treaties.  The U.S. government argues that the treaties
prevent them from ending prohibition.  And with apologies for the blatant
arrogance of this next remark, the whole world knows that the treaties will
not be changed unless the U.S. government agrees.

        In this specific case, it will be difficult for the U.S. Government
to ignore the scientific validity of the cannabinoid receptor research. The
petition for repeal is based on evidence from over 150 scientific journal
articles and government reports.  However the three articles cited above
are not only representative, but are in fact written by scientists with
reputations of the absolute highest caliber.  Dr. Miles Herkenham, key
author of two of the three studies cited above, is the chief of the
neuroanatomy section of the U.S. National Institute of Mental Health
(NIMH).

        It is my argument within the United States that in light of these
revolutionary research findings we have obligations under both U.S. and
international law to reassess the domestic and international legal status
of cannabis.

        My thesis is based on components of U.S. law, and this is all I
require for legal action within the United States.  It is my intention to
get the US to address the issue of international scheduling in light of the
recent scientific advances.  Perhaps the scientific findings supporting the
petition for repeal can support efforts by citizens of other countries to
have their governments seek the appropriate changes to international
treaties on cannabis.

        International treaties regarding cannabis prohibition are based on
invalid scientific findings that have been completely rejected by modern
day science.  How can any sovereign, democratic country justify adherence
to treaty provisions based on science which is so out of date?  Certainly,
these treaties provisions must be changed.

        How individuals around the world can bring this issue to the
attention of their governments is a question that deserves, I suggest, wide
consideration.


Author's note:  The complete text of the petition for repeal referred to
above will soon be available at the web site of the National Organization
for the Reform of Marijuana Laws, http://www.norml.org/.