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Chapter 19 - The International Legal Environment
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. 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.”
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.
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
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 20th 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.
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. 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.
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. 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. 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.
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.
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
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. 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.” 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.”
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.
Caballero and Bisiou, op. cit.,
For example, Belgium, Denmark, Germany, the Netherlands, Poland and some
Australian states. Switzerland is currently considering a bill to legalize
cannabis. The next chapter provides more detail on the Australian, Dutch and
Swiss approaches in particular.
See Krzysztof Krajewski, “How flexible are the United Nations drug
conventions?” International Journal of
Drug Policy, No. 10, 1999, page 329-338. Krajewski provides an
excellent overview of the conventions’ legal limits in the area of legalization
and prohibition. He concludes that legalization or decriminalization would
probably require amendment of Article 3(2) of the Trafficking Convention.
See also the discussion on legalization in Dupras (1998), page 24-33; and
Alfons Noll, “Drug abuse and penal provisions of the international drug control
treaties,” Bulletin on Narcotics,
Vol. XXIX, No. 4, October/December 1977, page 41-57.
The full text of these international instruments is available on the Web
site of the Office of the UN High Commissioner for Human Rights:
 See Erik Van Ree, “Drugs
as a Human Right,” International Journal
of Drug Policy, Vol. 10, 1999, page 89-98. Van Ree proposes the
addition of a new Article 31 to the Universal
Declaration of Human Rights: Everyone has the right to use psychotropic
substances of one’s own choice.
 See Daniel Dupras (1998) Canada’s International Obligations under the Leading International Conventions on the Control of Narcotic Drugs. Ottawa: Library of Parliament, available on the Committee’s Web site at www.parl.gc.ca/illegal-drugs.asp .
Peith, M., (2001) “Compatibilité de différents modèles de dépénalisation
partielle du cannabis avec les conventions internationales sur les stupéfiants”
[Compatibility of various models of partial depenalization of cannabis with
international narcotics conventions]. Legal opinion requested by the Federal Office of Public Health of the
Swiss Confederation, page 14.
Ibid., page 15.
Schaffer Library of Drug Policy
Major Studies of Drug and Drug Policy
Marihuana, A Signal of Misunderstanding - The Report of the US National Commission on Marihuana and Drug Abuse
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Frequently Asked Questions About Drugs
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LSD, Mescaline, and Psychedelics
Drugs and Driving
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Drug Abuse Treatment Resource List
American Society for Action on Pain
Let Us Pay Taxes
Marijuana Business News
Reefer Madness Collection
Medical Marijuana Throughout History
Drug Legalization Debate
Legal History of American Marijuana Prohibition
Marijuana, the First 12,000 Years
DEA Ruling on Medical Marijuana
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GAO Documents on Drugs
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