Side event: Regulating cannabis in accord with international law

John Walsh, WOLA. In previous events we have discussed cannabis regulation as the elephant in the room. We should acknowledge it and assess the tensions with the drug control treaties. It is more likely that more elephants will show up in the room.

Annette Henry, Jamaica. I am part of the cannabis regulation institution. I will speak to you about our regulatory system. The cannabis licencing authority was established under the 2015 dangerous drugs act to establish a lawful regulatory industry of cannabis. It has the power to make regulations for licencing as may be appropriate. On 5th May 2016, the chief of justice and head of the authority approved the system. The authority did not waste time and in June 2016 we started accepting applications. We now have 300 applications, some have been approved. A community based sustainable AD plan is being finalised for ganja producers. The licences focus on cultivators, processing, retail, transportation, sale, etc.

It allows the production of ganja for religious purposes for Rastafari. This use is decriminalised. Like tobacco, smoking ganja within 5 meters of a public space is illegal. This is part of our legal framework and is part of our current realities. My colleague delivered her statement on 13th March. These points are relevant: Jamaica reaffirms its commitments to the 3 UN drug control treaties and other applicable international law. However, cultural freedoms have to be recognised in keeping with our national realities.

Dave Bewley-Taylor, GDPO. We have just heard about what is going on at national level, with tensions with the global framework. All international regimes need to evolve to accommodate current realities. Our regime clearly has the capacity to evolve. In the report we talk about the evolution processes taking place and how this links to the inbuilt flexibilities of the hard law. In the past few years, there is a general consensus that the flexibility is finite and limited. There is a good case to be made that the structures in the regime limit the opportunities for change. We engaged with international lawyers from many fields to look at our regime. They consider the treaties as a Jurassic system, frozen in time. This limits avenues for modernisation and forces states to consider extraordinary measures. We saw this as the case of Bolivia which withdrew and re-adhered with a reservation. Or we saw untidy legal justifications (USA, Uruguay). While adopting ‘somewhat ambiguous’ positions on treaty obligations are technically practical, this is far from ideal and is not sustainable. There is a holding position on respectful temporary non-compliance. International law is hugely important, however. The question for us all is how best to manage the changes within the parameters of international law.

What we do in the report is to offer a model that has clear advantages which provide a safety valve to adjust the treaty regime which is frozen in time. We are proposing an approach – not a solution – to manage this complicated issue.

Martin Jelsma, Transnational Institute. My task is to go into the legal details of the approach which we think is worth considering. We brought together a group of international lawyers to help us think through what would be viable options. Many experts have contributed to this report. We brought them together at meetings to discuss and tease out whether this would be a possible approach to take.

One of the approaches that we took out from this is the one from article 41 from the Vienna Convention on the Law of Treaties about inter-se modification. Amendments of multilateral treaties are difficult and cumbersome. Sometimes, it may even be impossible. So member states may decide to modify the treaties among themselves. This is described as a necessary clause to safeguard the stability of treaties while accepting the requirement for change and avoid stagnation.

Of course, it is an exceptional measure to take. The Vienna Convention on the Law of Treaties put specific conditions on when it can and not be applied. It goes through an agreement of a group of countries between themselves alone, without affecting the rights of other parties to the treaty, and they cannot derogate to the object and purpose of the treaty as a whole. We looked into these two conditions in detail to examine whether this would be possible here.

One of the starting points for this inter se modification is the nature of the treaty we are talking about. The convention makes a distinction between various treaties, and we also need to consider the rights of other parties, as well as the object and purpose of the treaties – all this depends on the nature of the treaties at hand. For example, countries deciding to build a space station could sign a convention, but if one does not want to build it, then this goes against the object and purpose of the treaty. The prohibition of torture is another example, which has an absolute nature and other countries cannot sign an agreement that torture might be allowed in some contexts.

Looking at the nature of the drug control regime – to what extent is it interdependent, absolute or does it allow for certain deviations among the parties? Looking back at the origins of the drug control regime, before WWII, the basic starting point of the logic behind it was to prevent the uncontrolled export of certain substances to states that have prohibited certain uses of these substances. This was dependent on the jurisdiction of other countries, asking them to collaborate. It acknowledges that there are different jurisdictions with different strictness on what kinds of uses are allowed. These talk about medical, scientific and other legitimate purposes, allowing certain countries flexibilities to define what is allowed. Parties to the treaties should respect these differences and collaborate those others which have a more prohibitive regime.

In the paper we argue that the nature of the regime is not comparable to an absolute principle of prohibition. There are several psychoactive substances which are not controlled. It is also clear that it allows for certain exemptions for certain substances. The 1971 convention has incorporated the principle of non-acceptance at the moment of scheduling exemptions if they don’t agree to the majority decision of the CND to bring a specific substance under control. In daily practice in the world, there are many examples of different regimes that are co-existing peacefully, for example for substances like khat or kratom which are not under international level but which are subject to different levels of control at national level. This shows these regimes are capable of coexisting in practice.

Inter se agreements enable us to make modifications without affecting the conventions. Cannabis is a good example here. It is a necessity of change in the absence of consensus for which inter se techniques were designed. The advantage of this more collective approach would open the possibility of international trade between regulating jurisdictions, enabling production by small cannabis farmers for the illicit emerging market. This is a clear advantage which can be applied also for the coca leaf. Bolivia has a national reservation which makes it legal to have the coca leaf in its national form in the market, but does not allow international export. Inter se could be used here. It is worth considering this as an option to move forward and maintain international law obligations. But how could this idea be implemented in practice? That’s where we need Allyns’ legal analysis.

Allyn Taylor, USA. Thank you for joining this panel, and I am here to provide concrete proposals for inter se agreements. The status of cannabis in the treaty system has been described as a quite revolution which is not a full blown revolt. International law cannot be ignored and we need to find solutions to maintain the integrity of the treaty system. However, there is no political will here to address this issue. The inter se practice is the only collective action possible to preserve the rule of law. Modifying the cannabis status in the treaties is now, the time is right and we can codify an inter se agreement here. I can discuss the process here. Civil society can jump start or support this process.

Member states have the sovereignty to negotiate any treaty. States can participate, alongside non-state actor, in the negotiation of treaties. One rule is applicable here on inter se: they have the obligation to notify other treaty signatories of their intention to put together inter se agreements. But this can then be negotiated in any manner the parties see fit. Civil society can make a very useful contribution. During or after the stage of notifying the policy process, there is a pre-negotiation phase, where they also identify common and separate processes involved. These are official and informal meetings. The development of inter se agreements raise a lot of questions: what should be the scope of the treaties: should we disapply the treaty for cannabis or should we focus on issues such as medical cannabis? Should the treaty be broadly drafted to encompass cannabis regulation in general? Or should it focus on specific regulation but also focus on some international control too? If international trade is allowed and included, how should it be done and how will we protect other states which are not part of the inter se agreement? What mechanisms should be in place to prevent diversion of cannabis into illicit channels? What should be the scope of information exchange?

These are only a few questions that arise. There are many procedural issues that exist in the policy making process. This could be a major barrier to policy development. But non state actors, CSOs and academia can help fill this vacuum. This is of technical and informational value for member states. One of the prime contributions of NGOs is policy research and development and there, their contribution is instrumental. In other areas of legal concern, the drug policy field is stacked with expertise, such as TNI, WOLA, and the GDPO at Swansea University. With these, governments can then develop policy advice and lower the cost of legal negotiations.

I was involved in several processes where NGOs made significant contributions early on. For example at WHO we had this collaboration on tobacco control. During the negotiations, NGOs provided policy input and advocacy for the treaties. In the final stages, NGO formal participation was increasingly narrow. Other examples included policy dialogues on the contents of proposed codes, to kick start discussions. This points to the role of NGOs in the process of negotiating a new cannabis treaty. At early stages, NGOs can bring together interested parties to discuss policy contours. This convening role can help set the scene in the context of cannabis regulation. There are other countries interested in policy reform but are perturbed by the international status of cannabis. None may want to take the political lead. So in this scenario an independent forum could relieve the political burden.

Another challenge will be treaty drafting. Non state actors can help at all stages of the process. One such document could be the drafting of an elements document. In the tobacco convention, we put together all the possible ideas that could be included in the framework of the convention. This helped launch the discussion at WHO and this could be interesting for member states on cannabis. Non-state actors could also help draft the actual text.

Non-state actors can help throughout this process. We have a unique window opportunity to create a new inter se treaty. The time is right. Ultimately, the benefits will be regulating cannabis more efficiently, legally and with legitimacy.

John Walsh. Thank you for covering such an enormous topic in such little time. We now open the floor to questions.

Michael Krawitz. We are working with a few NGOs focused on cannabis regulation. Are there any recommendations on how we can influence the process?

Mirtle Klark, Fields of Green in South Africa. We have been doing our work for 8 years, we are the only ones. How can other NGOs help us for our work on the ground. We sold weed to be able to come to Vienna! We keep hitting a brick wall. We are either told that cannabis legalisation is a done deal, or that we are not good enough. So what can people do at grassroots level about this situation?

Question. One of the panellists mentioned the normative power of fact. We all realise what has happened, and that there is an enormous amount of money here and that the outcome is good. It is time to act. We need to analyse the new situation.

UNODC Research Section. How is this new treaty linked to the UN?

Martin. Let me start with the WHO ECDD review process. We are extremely pleased that the ECDD is taking up the pre-review of all cannabis related substances. We expect that it will conclude to proceed to a critical review. Then the question is what could come out of it. I think that one of the issues the ECDD will address is the confusion and inconsistencies around the definitions used in the 2 treaties as they relate to cannabis. This creates a lot of confusion even within the INCB reports: the definition of extracts, the flowering buds. The ECDD would find it very hard to keep cannabis in schedule I. Then there will be a huge political issue which I suspect the CND will not be able to resolve. But it will give a good argument for those countries to apply the recommendation of WHO among themselves.

Allyn. This will not be a formal UN treaty. There is freedom of contract among the state parties including through formal and informal negotiations. This can include the UN in the process. I also want to respond on the grassroots question. I want to take up what happened on tobacco. When we began the tobacco control convention, there was no framework to include grassroots organisations. So a framework alliance of 300 NGOs was created. It provided a forum for non-state actors to discuss issues they faced in one voice. If you are interested, you may want to talk to Tobacco Free Kids and ask how they led in this process.

Farid, FAAAT. Is this inter se treaty be a way for the EU to negotiate with Latin American countries to access a market for products, for example coca tea.

Martin. Looking for example at the Moroccan production, it is a third of the sale in cannabis coffee shops. It is not easy to continue with closed national regulation systems because of consumer preferences, etc. The international trade is part of the cannabis market. The same could be applied to the coca leaf.

Allyn. I agree. But science matters, and it will also be a state-led process, although non-state actors can help accompany the process.

John. We invite you to provide feedback on the report. If an instrument like this is created, it is an open instrument to provide a safety valve for other countries that do not have such instruments. It can lead to other such instruments. This is really the beginning of a conversation.

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