Chapter 3.

CANNABIS IN CONTEXT: HISTORY, LAWS AND INTERNATIONAL TREATIES

Current international treaties

The international treaties relating to cannabis are the Single Convention on Narcotic Drugs 1961 as amended by the 1972 Protocol, the Convention on Psychotropic Substances 1971 and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). The Convention on Psychotropic Substances includes THC, the psychoactive constituent of cannabis. As THC is rarely extracted for illicit drug use ([68]Fox & Mathews 1992), no further attention will be devoted to it.

The Single Convention consolidated a number of previous Conventions on narcotic drugs and amalgamated a number of monitoring organisations to create the International Narcotics Control Board. Australia ratified the Single Convention on 1 December 1967. Cannabis is not a narcotic drug, but is classified as such for the purposes of the Single Convention.

This classification has been important in shaping public and political perceptions - that cannabis is dangerous to personal health and community safety. Narcotic drugs are listed in Schedules to the Convention. Schedule I contains the major opioids, as well as cocaine and cannabis. Schedules II and III contain less powerful drugs such as codeine. Schedule IV contains drugs regarded as having particularly dangerous properties. Cannabis, as well as drugs like heroin, is part of Schedule IV. Articles 36, 4 and 2(5) of the Single Convention are of particular importance for the purposes of this report. Article 36(1) of the Convention provides that, 'subject to its constitutional limitations', each Party shall adopt measures to ensure that activities such as manufacture, possession, distribution, sale, transport, importation and exportation of drugs 'contrary to the provisions of this Convention ... shall be punishable offences when committed intentionally ....'.

In addition, Article 4 provides that: (c) Subject to the provisions of this Convention, [Parties are] to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs. Cannabis is also located in Schedule IV of the Convention. Article 2(5) requires that: (a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and (b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials herewith to be conducted under or subject to the direct supervision of the Party.

It must be emphasised, however, that Article 2(5) is not mandatory. Rather, special measures of control can be imposed if, in the opinion of the Party, they are 'necessary' or 'appropriate'. Under the Single Convention Parties are required to criminalise activities relating to trafficking, subject to their constitutional limitations. In the past, however, questions have also arisen about the need for Parties to criminalise activities associated with personal use and possession. The Williams Royal Commission concluded that to remove prohibitions against cannabis would depart from the spirit and intention of the Convention. In Canada, the Le Dain Commission regarded possession for personal use as falling within the ambit of the Convention. Woltring (1990) also takes this view on the grounds that 'possession could relate to both possession for trafficking or possession for personal consumption' (p20).

However, there is authority (e.g. [69]United States 1972, [70]Noll 1977, [71]South Australia 1978) that 'the Convention does not require signatories to make either use or possession for personal use punishable offences, although the creation or retention of such offences would be consistent with the treaty. This is because "use" is not specifically covered by Article 26 and the term "possession" in that Article and elsewhere can be read as confined to possession for the purpose of dealing' ([72]South Australia 1978, p46).

Further, the requirement that Parties limit the use of drugs to medical and scientific purposes does not require them to 'attain that goal by providing penal sanctions for unauthorized "use" or "personal consumption" of drugs' ([73]Noll 1977, p44). In the view of the Shafer Commission, measures such as 'an educational program and similar approaches designed to discourage use' could be employed (1972, p167). While the International Narcotics Control Board appears to be equivocal about this interpretation of the Convention in respect of personal possession, it does not appear to condemn it, merely remarking in relation to the Single Convention, that Parties: may take the view that they are not required to establish such activities as criminal offences under law. The basis for this view appears to be that, since obligations relating to penal provisions appear among articles relating to illicit traffic, the obligations only apply to cultivation, purchase or possession for the purpose of illicit trafficking (1992, p6). The 1972 Protocol provides for measures to treat and rehabilitate drug users in addition, or as an alternative to, punishment.

It also contains provisions relating to the International Narcotics Control Board, and international narcotics trafficking. Australia ratified the Protocol on 22 November 1972. Australia's international treaty obligations must now be read taking the 1988 Vienna Convention into account. Australia ratified the Convention without reservations on 16 November 1992. While the Single Convention attempts to contain the supply of illicit drugs by limiting the use of scheduled drugs to medical and scientific purposes, the Vienna Convention is directed particularly at drug trafficking and is designed to provide a system of international cooperation to counter trafficking activities. It must be read subject to the Single Convention. The Vienna Convention was made against a background of international horse-trading, and was ratified domestically in the face of a measure of opposition.

An International Conference on Drug Abuse and Illicit Traffic in Narcotic Drugs and Psychotropic Substances was convened in 1987. At the Conference there was debate between the consumer, producer and transit states about the content of the treaty. Consumer nations felt that the Convention should target the movement of illicit drugs between states, while producer countries argued that the Convention needed to address drug consumption - in other words, create obligations for drug-using nations. As a result, provisions relating to domestic drug consumption are included in the Convention.

Nevertheless, the major thrust of the Convention is towards trafficking and international cooperation in matters such as extradition, mutual legal assistance, and transfer of proceedings. Paragraph 1 of Article 3 relating to trafficking offences states that 'Each Party shall adopt such measures as may be necessary to establish [them] as criminal offences under its domestic law, when committed intentionally'. Paragraph 2 of Article 3 deals with cultivation, possession or purchase for personal use.

In relation to the establishment of criminal offences its wording is different to and more qualified than that in paragraph 1. It states:

Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.

In addition, paragraph 4(d) of Article 3 provides that: The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence established in accordance with paragraph 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. Not surprisingly, there are a number of different interpretations that can be placed on the provisions of the Vienna Convention as they relate to personal consumption activities.

The International Narcotics Control Board states that the 1988 Vienna Convention requires criminal offences to be established in relation to possession, purchase or cultivation for personal use. However, it adds: None of the conventions requires a party to convict or punish drug abusers who commit such offences even when they have been established as punishable offences. The party may choose to deal with drug abusers through alternative non-penal measures involving treatment, education, after-care, rehabilitation or social reintegration ([74]International Narcotics Control Board 1992, p4).

Other commentators take the view that the Vienna Convention is a trafficking convention and that, with respect to personal use activities, a Party may choose not to retain or introduce criminal offences for those activities if such an approach does not accord with matters such as 'the basic concepts of its legal system'. What then are the implications of the Single Convention, the 1972 Protocol and the 1988 Vienna Convention for public policy options relating to cannabis?