Chapter 19 - The International Legal Environment 

Some leeway?

Three points bear making concerning the substance of the current conventions.

The first has to do with the absence of definitions. The terms drugs, narcotics and psychotropics are not defined in any way except as lists of products included in schedules. It follows that any natural or synthetic substance on the list of narcotics is, for the purposes of international law, a narcotic, and that a psychotropic is defined in international law by its inclusion in the list of psychotropics.[1][96] The only thing that the 1961 Convention tells us about the substances to which it applies is that they can be abused. The 1971 Psychotropics Convention, which, as noted earlier, reversed the roles in that the synthetic drug producing countries wanted narrower criteria, indicates that the substances concerned may cause dependence or central nervous system stimulation or depression and may give rise to such abuse as to “constitute a public health problem or a social problem that warrants international control.”

The second point, following from the first, relates to the arbitrary nature of the classifications. While cannabis is included, along with heroin and cocaine, in Schedules I and IV of the 1961 Convention, which carry the most stringent controls, it is not even mentioned by name in the 1971 Convention, though THC is listed as a Schedule I psychotropic along with mescaline, LSD and so on. The only apparent criterion is medical and scientific use, which explains why barbiturates are in Schedule III of the 1971 Convention and therefore subject to less stringent controls than natural hallucinogens. These classifications are not just arbitrary, but also inconsistent with the substances’ pharmacological classifications and their danger to society.

Third, if there was so much concern about public health based on how dangerous “drugs” are, one has to wonder why tobacco and alcohol are not on the list of controlled substances.

We conclude from these observations that the international regime for the control of psychoactive substances, beyond any moral or even racist roots it may initially have had, is first and foremost a system that reflects the geopolitics of North-South relations in the 20^th century. Indeed, the strictest controls were placed on organic substances - the coca bush, the poppy and the cannabis plant - which are often part of the ancestral traditions of the countries where these plants originate, whereas the North's cultural products, tobacco and alcohol, were ignored and the synthetic substances produced by the North’s pharmaceutical industry were subject to regulation rather than prohibition. It is in this context that the demand made by Mexico, on behalf of a group of Latin American countries, during the negotiations leading up to the 1988 Convention, that their use be banned must be understood. It was a demand that restored the balance to a degree, as the countries of the South had been forced to bear the full brunt of the controls and their effects on their own people since the inception of drug prohibition. The result may be unfortunate, since it reinforces a prohibitionist regime that history has shown to be a failure, but it may have been the only way, given the mood of the major Western powers, to demonstrate the irrationality of the entire system in the longer term. In any case, it is a short step from there to questioning the legitimacy of instruments that help to maintain the North-South disparity yet fail miserably to reduce drug supply and demand.

Putting aside such questions of substance, we will now examine how much leeway countries have within the current conventions to adopt less prohibitionist policies.

Several states have adjusted their criminal enforcement systems to allow de facto possession of small amounts of certain soft drugs, such as cannabis and its derivatives, for personal consumption while remaining within the legal bounds of the Conventions.[2][97] Although the Conventions do not permit legalization or even decriminalization of possession, those countries have circumvented the limitations by criminalizing possession, as required by the treaties, but not strictly enforcing the legislation, or they have effectively “depenalized” the offences by exempting them from punishment.[3][98]

According to some observers, such approaches clearly violate the spirit of the Conventions, especially the Trafficking Convention, which seems to use the term “trafficking” very broadly to include demand-side activities within a supply-oriented control regime. Yet there is a legal basis for these “softer” approaches because the treaties do not explicitly forbid them.

The hard-nosed criminal law approach adopted by the international drug control system has drawn criticism from human rights activists. Some maintain that the imprisonment penalties are excessive for soft-drug offences such as possession of a small amount of cannabis for personal consumption.[4][99] It is argued that imprisonment in such circumstances is disproportionate to the offence and therefore violates the inherent dignity of persons, the right to be free from cruel and degrading punishment, and the right to liberty, as set out in such instruments as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[5][100] It has also been argued that drug use is a human right and should be recognized as such in the Universal Declaration of Human Rights.[6][101]  

The Trafficking Convention is the only one of the three Conventions that mentions human rights. Article 14(2) of the Trafficking Convention explicitly requires Parties “to respect fundamental human rights” when they take measures to prevent and eradicate the illicit cultivation of plants containing narcotic or psychotropic substances, such as opium, cannabis and coca. The same provision also requires states to take into account traditional licit uses, where there is historical evidence of such use, and protection of the environment.

There are three factors that provide states, including Canada, with some leeway. The first is the fact that the conventions recognize the primacy of national legal systems. Indeed, the international drug agreements have no direct application in national law. To make them enforceable within its territory, the state must enact a law; in Canada, that law is the Controlled Drugs and Substances Act. Specifically, the conventions variously state that the proposed penalties are to be imposed “subject to [the Parties’] constitutional provisions” or “having due regard to their constitutional, legal and administrative systems.” In Canada, the provisions of the Canadian Charter of Rights and Freedoms and the interpretations given to them by the Supreme Court are the framework for interpreting the international conventions on drugs.

The second, slightly more technical point suggests that sanctions for possession apply only to possession for the purposes of trafficking, especially in view of this provision’s position between two articles on trafficking and of its earlier wording.[7][102] Failing to punish people for possession for personal use would not be, strictly speaking, prohibited. That is the legal opinion of an expert asked by Switzerland’s Federal Office of Public Health to comment on its draft legislation to legalize cannabis: [Translation] “The statute’s general depenalization of the consumption and small-scale cultivation of cannabis would be compatible with the conventions.”[8][103] With regard to cannabis trade and supply, the author writes: [Translation] “Even though regulating cannabis trade with a licensing system does not appear to be out of the question, some practical problems remain, partly because of the control mechanisms required by the 1961 Convention, and partly because the international community interprets the 1988 Convention as an obligation to punish the buying and selling of cannabis.”[9][104]

The third factor is that the conventions impose moral obligations on states and not legal obligations, much less penalties or sanctions for violating them, and that they also include review or amendment mechanisms.