Side event: Cannabis and the conventions: Aftermath of UNGASS

Chaired by John Walsh (WOLA).

Dave Bewley Taylor (GDPO): I’d like to provide some historical context and then approach the current legal situation. During the UNGASS, the issue was largely ignored; certainly in the Outcome Document. Cannabis is the world’s most widely used illicit substance. Its scheduling had very little to do with scientific evidence on health harms. Legacy issues: MS signed the Convention in a dramatically different time. The Treaty was negotiated in the 1940s-50s. The issue was not a priority for most member states, which allowed for a handful of states to monopolise and influence the conversation and outcomes. Pseudo-scientific, racist, reports on cannabis contributed to demonising the substance. The WHO-ECDD only recently announced a formal review. Cannabis has never been subject to formal/critical review. The last scientific review took place in 1935 under the auspices of the League of Nations. The way many parties currently engage wth the rules: Dissatisfaction with the international drug control regime is not new. In the early 1970s, some US states decriminalised possession and Dutch authorities re-evaluated their system with the enactment of cannabis clubs. A second wave of reform occurred more recently in Latin America, Australasian and European countries. There’s also a tension between religious uses and drug control (re: transitional resolution that made MS abandon even religious uses 25 years after enactment. Tensions around cannabis in the Treaty framework come to paroxysm with Uruguay’s, the US states and Canada’s regulation. It’s expressly forbidden by the Treaties. While the UNGASS discussed flexibilities, some of us argue that this flexibility does not extend to regulated markets. A small, but growing, number of states are finding themselves dealing with this dilemma: infringing international law vs. domestic policy. How to reconcile the two? Treaty reform/modernisation doesn’t require negotiating a new global consensus. The best approach is a step-by-step process. Principled non-compliance, for instance: temporarily waiving compliance. This is not a full solution. It’s a temporary one. So reform options: treaty reform applying to all signatories (requires consensus); treaty reform applying to all signatories requiring majority approval (rescheduling cannabis); treaty reform applying to a group of states (inter-se treaty modification option – 2 or more parties agree between themselves to alter their relationship to treaty adherence); treaty reform that applies to individual states (withdrawal, selective denunciation, denunciation/re-accession).

Alison Holcomb (…): In 2014, Alaska, Oregon, followed Colorado and Washington. Colorado and Washington also started legal supply on line in that year. Last November, in 2016, as we were watching a shocking presidential election return, California, Massachussets, Maine and Nevada did so. California notably has a population of over 30million people. There are now more than 67 million people in the US who live in a state that has legalised the production and supply of cannabis for non-medical purposes. In 2018, Michigan might move towards this. It would add close to 10million people under this framework. Cannabis production, distribution and consumption even for medical purposes is still criminalised under federal law. The US is organised in a federalist structure of democracy. The 10th amendment of the constitution ensure s that the federal government cannot command state laws to follow federal policies. The federal government cannot commandeer the policing resources of states to follow federal laws. The overwhelming majority of laws in the US are enforced by local law enforcement authorities. There’s also a discretion inherent to the power of the states. Discretion of prosecutors, policing agencies. How best to prioritise their scarce resources? Cannabis regulation, decriminalisation, medical cannabis, etc. started at the local level. Cultural events, for instance, held in areas like Seattle that demonstrated to the community that cannabis de-enforcement didn’t cause chaos. States where civil society organisations and advocates engaged with local leaders, public / police authorities, health authorities, etc. at the local level had better margins of success in the ballots. It is important to show the value of change to our communities. There’s much speculation on the position of the new President towards cannabis. It is important to consider how sensitive the new administration is to public opinion. In February 2017, a national poll showed that the US public opinion is increasingly moving to support legal regulation. The sentiment on whether the federal government should enforce federal law in states is very strongly opposed to interference. 59% of Americans agree with legal regulation (incl. 58% independent voters and 54% of women). Republicans still oppose full legalisation by 51%; but when asked about enforcement of federal law against marijuana in states where it has been legalised, 55% of Republicans would oppose interference. 71% of all Americans would oppose intervention. I do believe that states decisions to move in this direction is not one of the highest priorities for this administration. It’s important for the US to evolve from ballot initiatives being the way to pass these laws. In my opinion, policies better hit that point of compromise if measures are passed by state legislatures. It’d be my preference. Legislatures are increasingly looking at the taxation revenue from the legal cannabis market in states that have legalised.

Lisa Sánchez (MUCD/Transform): Recalls regulation in US states and Uruguay. The Uruguayan case is particularly interesting because, compared to regulations in the US, Uruguay has three channels of supply in a model orientated towards state controlled. It’s a state with a strong tradition of trust to State institutions and State involvement in the economy. Uruguay allows self-cultivation, cannabis clubs (with clear regulation) and the supply of small amounts in pharmacies. The last “strand” is still to be implemented as there are many challenges involved, including licensing, evaluation and traceability. We can’t forget that Uruguay is located between two countries that are big and demand reassurances. In the Americas, there’s a true wave towards regulation. In Mexico, Colombia, Argentina, Chile, in the Caribbean (Jamaica) – notably allowing for the cultivation of religious use, and the use by foreigners. In the rest of the countries, regulation is still within the medical. It’s mediated by the action of civil society and courts. In Latin America we have an “addiction” to the criminal justice system. All activities related to drugs are “judicialised”. We are observing also a “feminisation” of the increasing rates of incarceration. Women are imprisoned more than men for drug offences. But, the legal initiatives and judicial case law show change. Mexico prohibited cannabis in 1920, and hardened the legislation since 1926. In 2009, it established a threshold system. Above 5g of cannabis possession, micro-trafficking. Ended up being a remedy worse than the disease. There’s a case by the Supreme Court that declares unconstitutional the regulation because it’s particularly intrusive and excessive (cannabis is less harmful than alcohol but penalised with particularly muscular responses). We need 5 cases in the same direction for it to become case-law. We expect the regulation in Canada and California will have catalysing effects. Chile is interesting too: biggest cultivation for medical purposes but no integral reform. Associations of parents at the forefront. In Brazil, Argentina, also moves galvanised by court cases. The decision of the WHO’s ECDD is conducive as it might embolden decisions in our region. Can’t finish without highlighting the impact of the US “War on Drugs” in Latin America; and the danger of this rhetoric being re-ignited by the current Administration. Very important to follow California, as they might be taking into account small growers and standards of fair trade. Important also to contribute to changing the narrative of misinformation that dominates these conversations.

Tom Blickman (TNI): Highlights recently development in the Netherlands regarding a bill that would frame the regulation of supply to coffee shops. The law passed the lower house, politically the most important chamber; but the upper house would have to approve it. The legislation is flawed, it’s hard to know what will happen because we had elections yesterday. We will probably have a coalition government. There’s always one party that doesn’t want to regulate cannabis and acts as a vetoing force. The Netherlands is not the only country in Europe. At the local level, a lot is happening. National governments seem to still be in denial in the region. At the local/federal level, you see municipalities urging the government to move towards regulation. And also cannabis social clubs. In Spain there’s some 800-1000 cannabis clubs, and there’s a lot of legislative movement. A law in the Catalonian Parliament seeks to regulate the clubs; although it would most likely be struck by the Constitutional Court. Cities are also moving towards forms of regulation. In Germany, cities like Berlin; in Switzerland, 4-5 cities are contemplating regulation; Copenhagen is urging the government to move forward. The question is not IF, it’s WHEN and HOW. In each country, this will take different forms. The negative consequence of domestic regulation is that those countries that traditionally have grown for the consumer markets (ex. Morocco) will find themselves with a shrinking income. Hence the need for international regulation that minimises asymmetries.

Question 1 – Carla Rossi – I coordinate a group on social costs of different laws. I’m particularly interested in data and leximetric data to analyse the different effects of different laws.
Alison Holcomb – The data exists. Washington state, for instance, embedded cost-benefit analysis in its regulation legislation. But there’s data on impact on individuals too, including impact of imprisonment, etc. It’s a good starting point for dialogue.

Question 2 – Mariela Hernández (Chile) – In Chile, people want to use cannabis and we try to organise social clubs; but it’s not about the government. The people are organising and have a model of associations. The law doesn’t say anything about collective cultivation. So we try to use the gaps in the law. We have 3 associations growing cannabis and giving people cannabis, and using the model of physicians to give people prescriptions of oils, extracts, so people can make things and go forward to use cannabis.

Question 3 – Marco Perduca (Italy) – A bill is currently in parliament. Debates will resume on Easter. Concerning Uruguay. At the UNGASS, I asked the INCB Chair and he said he couldn’t disclose content of dialogue. In the report, it’s clear they don’t support. What is the state of that relationship?
Lisa Sánchez – Uruguay utilises an argumentation that anchors itself in its human rights legislation; but the tensions between the agreements remain.

Question 4 – On the “Brownfield doctrine” –
Dave Bewley Taylor – It’s complicated and the “Doctrine” is not a clear-cut as it suggests. Many governments recognise the tensions.

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