Willful Blindness: INCB Can Find Nothing Good to Say on Cannabis Legalisation
A response to the annual report of the International Narcotics Control Board
In its report for 2022, the International Narcotics Control Board (INCB), the “independent, quasi-judicial expert body”1 that monitors the implementation of the UN drug control conventions, focuses on the legalisation of cannabis. Each year, in the first chapter of its annual report, the Board addresses a specific issue it deems important for drug policy discussions and the functioning of the international drug control system. This year, cannabis legalisation is the focus, because as many have noticed, a decade after the first state legally regulated adult recreational cannabis “a growing number of States have adopted policies that permit the use of cannabis for non-medical and non-scientific purposes”.
Indeed, after Uruguay in 2013 and Canada in 2018, as well as to date 21 of the 50 states in the United States of America since 2012, other countries have announced or set in motion steps to legalise cannabis, such as Germany, Luxembourg and Malta in Europe, Mexico and Colombia in the Americas, South Africa, and Thailand in South-east Asia, while in the Netherlands and Switzerland science-guided experiments are under way to assess the effects of a legal regulation of cannabis. The expectation is that more countries will follow in the coming years. Draft legislation is already being discussed in the U.S. Congress, while opinion polls indicate that a majority of voters of both main U.S. political parties are in favour of legalisation. The legalisation of cannabis at the federal level in the U.S., for decades the main proponent of its prohibition for anything other than scientific or medical purposes, would constitute a sea change and a serious challenge to the international drug control regime.
Over the past decade, since Uruguay and the first states in the U.S., Colorado and Washington, legally regulated cannabis for adult recreational use, the standard cut-and-paste reaction by the INCB, repeated in every annual report, has been that this is not allowed under the 1961 UN Single Convention on Narcotic Drugs as amended by the 1972 Protocol, and that measures to permit the use of controlled substances such as cannabis for recreational purposes are inconsistent with article 4, paragraph (c) of the 1961 Single Convention, which requires States parties to take such necessary legislative and administrative measures, “to limit the use of narcotic drugs exclusively to medical and scientific purposes”.
So there was a mixture of expectation and concern when the news trickled out last year that the Board would finally address the issue in greater depth in its Report for 2022. Would the Board dig in its heels, continue to reject legalization as contrary to the obligations of the UN drug treaties, and set on a course that could eventually—or inevitably—lead to the invocation of the enforcement and sanctioning measures of Article 14 of the 1961 Single Convention? Although the Board does not have the power to enforce the provisions of the international drug control conventions on its own, invoking Article 14, might, after a lengthy and complicated consultation procedure, lead to a recommendation for “co-operative action at the international level” to remedy the situation. Ultimately, that could result in an import and export embargo on licit drugs for medical purposes from or to the country concerned. Although such measures are seen by many as a ‘nuclear option’ and considered excessive and highly unlikely, triggering an Article 14 procedure in itself might already act as a deterrent. Since a remedial consultation procedure initially takes place behind closed doors, nobody but the members of the Board and the government involved actually know if such procedures may have already been set in motion regarding cannabis legalisation.2
Or would the INCB at last recognise that the trend toward legal regulation of adult recreational cannabis will not be reversed and initiate a process to assist State parties to the drug control treaties to find a solution, and a pathway to legally regulate cannabis in accordance with international law and the UN drug control treaties? On this issue, there has been an interesting debate for years among drug control experts and scholars in international law, with the notable exception of the INCB. Most experts involved recognise that legal regulation does in fact violate the 1961 Single Convention, so the debate focuses on legally sound and politically feasible options that would enable cannabis regulation to proceed in accordance with international law.
Without going into detail here, several viable options have been proposed.3 One option would be to denounce the 1961 Single Convention and subsequently re-accede with a reservation regarding cannabis. Although controversial, this option is anchored in the treaty itself and has a precedent; Bolivia successfully used this procedure to allow for the cultivation, trade and consumption of the coca leaf in Bolivia. The country using the denounce-and-re-accede option runs the risk of being blocked, however, if more than one-third of the parties to the convention object to the re-accession with a new reservation. If a group of like-minded countries were to collectively follow this procedure, the risk of being blocked from re-entering the treaty might be mitigated. Another option available to like-minded countries would be an inter se modification,4 a procedure specified in Article 41 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in which two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone. This procedure would also prove to be politically controversial, but would not be subject to the risk of being blocked by objecting countries, as in the case of the unilateral procedure of denouncing and re-acceding to the treaty. If the expanding group of like-minded countries were to agree on an inter se modification, an alternative control regime that allows for legally regulated adult recreational cannabis would eventually emerge.
An additional option, or rather a support and complement to the two mentioned above, is to argue that States can justify cannabis regulation based on positive human rights obligations, as regulated cannabis cultivation and trade may offer a better opportunity for states to comply with their positive human rights obligations. Under this approach, “a state can be obliged to permit, under regulation, cannabis cultivation and trade for recreational use if and only if such regulation ensures a better protection of e.g., the right to health, the right to life, the right to physical and psychological integrity (the right not to be subjected to inhuman treatment) and the right to privacy than a prohibitive drug policy as prescribed by the international drugs conventions does.”5 Some governments, notably Uruguay, have indeed argued that legalization is justified because it pursues the overall treaty goal to protect the health and welfare of humankind with full respect for human rights principles, which take precedence. While all these options separately may cause political and practical difficulties for States, “a cumulation of these options can have a combined strengthening effect and indeed present a legally sound and politically viable opportunity to regulate cannabis for recreational use without denouncing the whole UN drug control system.”6
Disappointingly, the Board largely ignores the discussion about various pathways that could enable legal cannabis regulation in accordance with international law, and in its recommendations again repeats its usual Nyet mantra.7 The report does engage with the human rights argument, but denies any tension between the international drug conventions and international human rights instruments, asserting that there is no conflict of norms between the two. The Board goes further, making the bold and untested claim that the drug conventions, “as lex specialis, make more specific the way that human rights must be observed in the area of drug control”.8 The lex specialis doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis). By “ensuring availability of and accessibility to controlled substances for medical and scientific purposes and preventing drug abuse, the conventions are aimed at protecting the right to life and health,” and “reflect the international community’s view that the most effective way to promote human rights in the field of drug control is to limit the use of drugs to medical and scientific purposes,” the Board claims. The report does not provide any reference to academic literature or documents from UN human rights entities supporting these controversial claims.
The Board does at least reiterate its position that measures to decriminalize or depenalize the personal use and possession of small quantities of drugs are consistent, within some limits, with the provisions of the drug control conventions. The Board thereby distances itself from those countries that continue with a hard-line, zero-tolerance policy. Although nothing in the UN drug control conventions themselves forces those countries to change their position, there is an increasing recognition, including by the INCB itself, that many tangible consequences of hard-line, zero-tolerance policies are contravening human rights obligations.
The Board on several occasions in the report admits that it is difficult to measure the impact of legalisation on public health, public safety and the economy. “There is a growing number of studies on the impact of legalization but which sometimes report diametrically opposed results and conclusions,” the Board observes.9 “Given this multifaceted and complex picture, it is hardly possible to make general statements and conclusions on the impact of legalization,” the Board continues.10 However, the report embarks on an effort to do just that, selectively highlighting the negatives and downplaying the positive impacts of cannabis legalisation. The most obvious example of the INCB’s reluctance to recognize positive impacts is when the Board discusses one of the main objectives of legalisation: to eliminate or diminish the illicit cannabis market. The Board notes that the illicit market has persisted in legalizing jurisdictions, ranging from “approximately 40 per cent in Canada to nearly 50 per cent in Uruguay and 75 per cent in California.”11 If such decreases in the scale of illegal cannabis markets had been reached through law enforcement measures in states adhering to cannabis prohibition regimes, the Board would have likely hailed it as a tremendous achievement. But the diminished size of illicit markets is instead described as an unsatisfactory aspect of legalisation, even as the trend toward diminished illicit markets continues in legalizing states.
Similarly, the Board also faults legal regulation for falling short regarding criminal justice reform. To be sure, much greater progress can and should be made to address the "continued existence of systemic institutional discrimination" in many countries criminal justice systems, in jurisdictions that have legally regulated cannabis as well those that have not yet done so. Just as legal regulation will not resolve all problems related to cannabis, it will not, by itself, resolve the profound inequities and enormous excesses that characterize so many countries criminal justice systems. However, some progress in reducing those problems is better than no progress. Moreover, the Board's argument that removing only one category of offence is insufficient to achieve wider criminal justice reforms begs the question of whether greater criminal justice reforms might indeed be achieved through the legal regulation of substances beyond cannabis.
“The impact of legalization on public health, public safety and the economy is difficult to measure and varies according to the different legalization models. In summary, based on the relatively short time of implementation, it can be observed that, to date, legalization has not succeeded in addressing the most pressing problems,” the Board concludes after an unconvincing overview. A decade after the first state legalised cannabis, the circumstances remain far from perfect (and never will be). But the relevant question is not whether legalisation models can resolve all problems associated with cannabis. Rather the focus should be if legalisation is indeed bringing improvements and reducing a range of harms compared to the situations that prevailed under prohibition. The Board’s blinkered view completely ignores that in the 60 years since the adoption of the Single Convention, the global drug control regime that it so tenaciously defends has failed dismally to solve those “pressing problems”. Indeed, states are moving toward legalisation precisely because the existing global regime has not only failed to resolve those problems, it has actually exacerbated them.
Instead of looking into workable solutions, the Board not for the first time defers to the treaty Parties themselves the responsibility to find solutions for the challenges they face. “The principle of pacta sunt servanda applies also in the field of the drug control treaties,” including to the general obligation to limit the use of narcotic drugs exclusively to medical and scientific purposes. “The apparent tension between this provision and the trend towards legalization must be addressed by the signatories to the three drug control conventions”.12 While it is undeniably true that it is up to the parties to the conventions to decide to amend them or not, the reality is that a special plenipotentiary conference convened to negotiate the issue would result in a diplomatic nightmare given the polarised political positions so evident today. The Board’s proposal, while formally correct, actually boils down to maintaining the paralysing status quo for those countries that for good reasons do want the option to regulate adult recreational cannabis in ways that align with their international legal obligations.
The Board’s mandate is of course tied to the conventions as they stand today. The report’s concluding paragraph emphasises the role of the Board in terms of dialogue with States to further the objectives of the conventions “through the adoption of balanced and proportionate approaches founded on respect for human rights and the advancement of public health and welfare”.13 Perhaps that could be read as a cautious shift towards a more constructive attitude, focusing more on the overall treaty objectives rather than a strict implementation of the letter of each provision. Answers to the systemic challenges that confront the treaty system today, however, will not be found “within the flexibility provided by the conventions”. To stimulate a discussion, the Board could choose to play a more pro-active role by presenting different scenarios for the direction in which the treaty system could develop in light of changing circumstances. A previous attempt in that direction was the supplement to its 1994 report, which contained a section on “Possible future adjustments in the international drug control treaties”.14
Instead, with this report, the Board puts legalizing states in the dock and forces them to defend themselves against a biased presentation of the impacts of legal regulation of cannabis, without offering them any food for thought on how to move forward. Perhaps the Board (a notoriously opaque institution) is debating internally how to adopt a more constructive role, moving beyond mere condemnation. But States that have already adopted cannabis regulation or appear poised to do so should not hold their breath awaiting constructive recommendations on the way forward from the INCB. Instead, such States should actively explore their shared challenges with a view toward defining clear proposals and common strategies for advancing as a like-minded group. States should take the initiative themselves, rather than depend on the Board itself to demonstrate leadership. Abundant research attests to the failure of the prohibitive approach and to the harms it causes, and numerous proposals exist on how to responsibly regulate cannabis. What remains is the as yet unresolved issue of how best to legally regulate cannabis in accordance with international law. A variety of thoughtful strategies for addressing this crucial issue have already been elaborated, and are ripe for serious consideration by like-minded countries, whether or not the INCB itself is ready to join the conversation in earnest. Meanwhile, continuing inertia on the Board’s part risks its drifting into irrelevance on one of the most important issues facing the international drug control regime.