Yes, legalizing marijuana breaks treaties. We can deal with that.
Buzzing in the background of Canada’s debate on cannabis legalization is the issue of the three UN drug control treaties, and what to do with them.
The issue arose during the House of Commons’ consideration of Bill C-45, and may well come up again now that the bill is coming under Senate scrutiny. There is no doubt that legalizing and regulating cannabis markets for non-medical use will mean Canada is no longer in compliance with the obligation under the treaties to restrict cannabis to “medical and scientific” purposes. And Canada will need to address those treaties — in due time.
However, what ‘due time’ should mean has been the subject of some alarmist commentaries. It has been argued that Canada should have initiated the process of withdrawing from the treaties by this past July 1 to avoid a breach of international law when cannabis is legal for recreational use in July, 2018, as the government intends. Some have suggested that, by missing this supposed deadline, Canada has now limited its legal options and might even suffer international sanctions if its reforms continue as scheduled.
This raises two key questions. Did the supposed July 1 deadline really exist? And does Canada really now have fewer options with regard to managing the mismatch between cannabis regulation and UN drug treaties?
The 1961 UN Single Convention specifies that if formal notification of withdrawal from the treaty is submitted before July 1, it takes effect on January 1 of the next year; if notification is submitted after July 1, then withdrawal takes effect a full year later. But at this stage in Canada’s reform effort, the mechanics of the treaty withdrawal process do not dictate hard deadlines. The alarmism about treaty violations, deadlines and delays is misplaced.
Canada certainly has important decisions to make about how to ensure that its impending cannabis reforms will align with its international obligations. As we describe in our report Cannabis Regulation and the UN Drug Treaties: Strategies for Reform, a range of alternatives merit Canada’s careful consideration. Beyond simply withdrawing from the drug treaties, these options include the possibility of withdrawing from and then rejoining the treaties with reservations (a procedure that Bolivia used with regard to coca) or of modifying certain treaty provisions by means of a special agreement among a group of like-minded countries.
In reviewing its options, Ottawa would be wise to be protective of Canada’s positive reputation as a country that upholds international law. But there is no need to postpone the regulation of cannabis, and there is also no reason to rush to withdraw from the drug treaties — certainly not before the relevant legislation has even become law, and not even immediately afterwards.
Canada’s cannabis regulation is part of a bigger trend and there is no reason to rush to unilaterally withdraw from the drug conventions.
The experience in Uruguay — the first country in the world to regulate cannabis — demonstrates why immediate withdrawal from the treaties is not necessary. Having justified its policy position via its human rights obligations, Uruguay has suffered no negative consequences beyond mentions in the annual reports of the International Narcotics Control Board (INCB), the watchdog of the UN drug conventions — noting that the country’s law regulating cannabis is contrary to the provisions of the drug conventions and urging a resolution.
The United States — where eight states have legalized adult-use cannabis and where the federal government has adopted a policy of accommodation — has received a similar message from the INCB regarding Washington’s legally dubious interpretation of the drug treaties.
Canada has better and more legally-grounded options, and plenty of time to consider them carefully. A good starting point would be for Canada to publicly acknowledge that moving forward with regulation of adult-use of cannabis will result in a period of respectful non-compliance with certain treaty obligations — a route that, in the absence of a seamless transition, displays the appropriate regard for international law.
Canada could explain the reasoning behind its reforms and why the country’s new regulatory approach is justified by the need to realize other domestic and international legal and policy commitments, particularly with regard to public health, child protection and human rights.
Canada is not alone in reforming its cannabis policy, nor is it the first. In addition to Uruguay and the eight U.S. states, many local authorities in other countries, notably in Europe, are pushing national governments to follow suit. In the Netherlands this has resulted in the October 2017 decision of the new coalition government to allow for experiments with regulated supply of cannabis to coffee shops. This would extend toleration of cannabis sales in these premises to tolerated regulation of the supply.
Meanwhile, the World Health Organization has initiated a review of the classification of cannabis under the drug conventions. Canada’s cannabis regulation is part of a bigger trend and there is no reason to rush to unilaterally withdraw from the drug conventions. Acting unilaterally may not even be in Canada’s best interests; it could be wiser to act in concert with like-minded states.
The bottom line is that Canada ultimately will need to choose a path forward with regard to cannabis regulation and the drug treaties. But there is no need for hasty decisions and plenty of time for Canada to evaluate its options — and act when the time is ripe.
John Walsh is director for drug policy at WOLA (Washington Office on Latin America) in Washington, DC. Tom Blickman is a senior policy analyst and Martin Jelsma is director of the Drugs & Democracy program of the Netherlands-based Transnational Institute (TNI). Dave Bewley-Taylor is director of the Global Drug Policy Observatory (GDPO), Swansea University, U.K.
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