Opening statement by Steve Rolles, to the Canadian Senate Foreign Affairs Committee - on cannabis regulation and the UN drug treaties

 

 

Opening statement by Steve Rolles, Senior Policy Analyst for Transform Drug Policy Foundation – at the Canadian Senate Foreign Affairs and International Trade Committee, on the ‘subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations’

 

"A growing number of countries and jurisdictions are exploring cannabis regulation. As well as Canada, Uruguay and multiple US states, many countries in Latin America, the Caribbean, Europe and beyond are exploring or developing cannabis regulation policies.  This is important to emphasise: Canada is not alone in this endeavour or the challenges it raises on the international stage.

 

These developments in Canada and across the world take place within the international legal context of the three UN drug treaties - of 1961, 1971, and 1988 - all ratified by Canada, and indeed by the vast majority of UN member states. The 3 treaties have multiple functions, crucially including the strict legal regulation of drugs, including cannabis, for scientific and medical uses. They also, however, explicitly do not permit the legal regulation of cannabis markets for non-medical uses.

 

It is, however, important context to note that the 1961 Single Convention on Drugs, the treaty that established the international drug control framework and prohibitionist paradigm still in place today, was being drafted in the 1940s and 1950s, consolidating the structures and philosophy of a series of multilateral drug control treaties dating back to 1912. This treaty therefore comes from an era in which the cultural, political and economic landscape was very different to the one we live in today. Our understanding of the impacts of different drug policies on public health and community safety have evolved considerably over the last century.

 

The object and purpose of the treaties, as spelt out in the preamble of the 1961 Single Convention, is the ‘health and welfare of humankind’. Whist this goal naturally still commands universal support, there is no longer any such consensus behind the punitive enforcement response to non-medical cannabis enshrined in treaties.  Even if the initial intention of the treaties was a noble one, history demonstrates punitive prohibition has been the wrong tool - serving to undermine our ‘health and welfare’ rather than to protect and promote it.  Many countries, including Canada, have evidently looked at these historic failures and rightly concluded that a different approach is needed.

 

But as the Federal Government clarifies its answers the question of how to regulate, the question of how to square these developments with Canada’s international obligations under the drug treaties comes into sharper focus. Specifically, how can Canada — and other like-minded states on the same trajectory  — move from a temporary period of technical non-compliance, towards a long-term arrangement that brings full compliance with the country’s international obligations, yet permits sufficient policy space for national level innovation and change?

 

As with all treaties the drug treaties include mechanisms for their amendment and reform. The 1961 treaty itself was notably amended by the 1972 protocol. In theory, the drug treaties could similarly be amended, for example, to introduce sufficient flexibility for member states to explore the regulation of cannabis or other drugs.

 

Such amendments, however, require a consensus amongst state parties, and given the polarised nature of views on this subject at the UN - that include a significant and coordinated block of member states who are avowedly prohibitionist - achieving such a consensus seems impossible for the foreseeable future. Even achieving the voting majority needed for modification of the legal status of cannabis - that could in theory remove it from the treaty framework altogether - looks impossible for the time being, notwithstanding the ongoing WHO expert committee deliberations on cannabis’ legal status.

 

So - how to proceed?

 

Firstly, we were pleased to hear the Assistant Deputy Minister for International Security, recently make clear that “Canada’s proposed approach to cannabis will result in Canada being in contravention of certain obligations related to cannabis under the UN drug conventions.”

 

This honest and legally accurate statement is far preferable to denying the reality of partial non-compliance or somehow attempting to hide behind dubious legal arguments to accommodate regulated cannabis markets - such as the suggestion made by some US officials that the treaties do, in fact, offer sufficient flexibility to accommodate legalization. Such argumentation does little for the integrity of the UN treaty-based drug control regime, and is, we would argue, unsustainable, serving instead to undermine respect for international law more broadly.

 

Some commentators have concluded that Canada, must therefore, in order to retain due respect for international law, withdraw from the conventions before it can legalize cannabis. We would suggest that this is somewhat alarmist, and neither a necessary nor a useful course to follow. To quote the 2014 report of Global Commission on Drug Policy

 

“Unilateral defections from the drug treaties are undesirable from the perspective of international relations and a system built on consensus. Yet the integrity of that very system is not served in the long run by dogmatic adherence to an outdated and dysfunctional normative framework. The evolution of legal systems to account for changing circumstances is fundamental to their survival and utility, and the regulatory experiments being pursued by various states are acting as a catalyst for this process. Indeed, respect for the rule of law requires challenging those laws that are generating harm or that are ineffective”

 

If the treaty system is unable to accommodate the growing calls to evolve and modernize from the very member states it serves, it faces a slow drift into irrelevance, as more and more countries defect from it failed prohibitionist tenets.

 

In this context, moving into a temporary period of technical non-compliance with certain articles of the treaties, whilst - in parallel - pro-actively seeking to reform and modernize the outdated and malfunctioning drug control framework, would seem to be far more respectful of the treaty system than abandoning the system altogether, propping up a failing system with compromise reforms, or hiding behind dubious legal arguments.  Temporary non-compliance as a prelude to, or catalyst for a process treaty reform is indeed a common pattern within the evolution of the international treaty system. Time is on Canada’s side - it is better to resolve these issues patiently and properly, than be rushed into missteps or inadequate compromises.

 

Canada’s reforms are being implemented in the interests of the ‘health and wellbeing’ of Canadian citizens - This was the job given to Federal Task Force and then to the Health Canada team - and they have both discharged their duties in manner entirely in line with the core values of the UN Charter and its commitment to health human rights, development, and peace and security.

 

In this context, rather than being a moment for Canada to cower in shame, this is a in fact a moment for Canada to continue its history of principled leadership on the international stage - in the defence and promotion of the core values of the UN. While it may be bumpy road, in the medium to long term Canada’s international reputation will be enhanced, not jeopardized if it proceeds on these terms.

 

Certainly the precise contours of how these questions will play out is unclear - it is true that we are in uncharted territory as far as the Drug treaties are concerned. But again, it is important to stress that Canada is far from alone in this enterprise and, in the spirit of the United Nations, a coordinated collective response between like-minded reform states has clear benefits compared to a chaotic scenario characterised by a growing number of different unilateral defections, reservations and questionable re-interpretations. The concept of Inter Se treaty modification of the treaties amongst a group of like-minded states is one that we would particularly encourage Canada to explore.

 

The best outcomes in terms of protecting the ‘health and welfare’ of Canadians and indeed all humankind, are likely to come from such collective action, underpinned by honesty, proactive pursuit of open dialogue, and an unwavering commitment to the values enshrined in the UN charter."

 

The video of the full Senate hearing is available to view here

 

Further reading:

  1. Cannabis Regulation and the UN Drug Treaties: Strategies for Reform
  2. How to Regulate Cannabis: A Practical Guide