The WHO’s First-Ever Critical Review of Cannabis

A Mixture of Obvious Recommendations Deserving Support and Dubious Methods and Outcomes Requiring Scrutiny
19 March 2019
Policy briefing

The World Health Organization’s (WHO) Expert Committee on Drug Dependence (ECDD or Expert Committee) released in January 2019 the outcomes of the first-ever critical review of cannabis, recommending a series of changes in the current scheduling of cannabis-related substances under the UN drug control conventions.

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Eagerly awaited, the ECDD recommendations contain some clearly positive points, such as acknowledging the medicinal usefulness of cannabis by removing it from Schedule IV of the 1961 Single Convention on Narcotics Drugs; clarifying that cannabidiol (CBD) is not under international control; and addressing some long-standing scheduling inconsistencies.

But the ECDD recommendations also reveal problematic underlying evaluation methods and scheduling procedures along with a very questionable rationale for keeping cannabis in Schedule I. Moreover, the recommendations leave many questions unanswered regarding levels of control for different types of medical cannabis preparations. The potential repercussions of those more questionable aspects of the ECDD recommendations trigger legitimate concerns that merit a close examination by governments and by civil society.
 
These concerns are heightened precisely because the recommendations result from the first-ever WHO critical review of cannabis. Allowing the questionable aspects of the recommendations to escape scrutiny risks not only accepting dubious scheduling recommendations now, but also risks acquiescing to problematic underlying evaluation methods and procedures. Governments should seriously consider their options for challenging these aspects of the review, since their acceptance now could set a damaging precedent for the future.
 
The limitations of the ECDD review also highlight that even far greater progress in bringing the UN drug treaties’ cannabis scheduling in line with modern science will be unlikely to clear the path for legal regulation of non-medical cannabis. Since such an approach remains outside what the drug control treaties permit, countries wishing to regulate cannabis for non-medical use in a way that comports with international law will need to find a different pathway out of the treaty structures. Among the treaty reform options not requiring consensus, the procedure of inter se modification, provided for by the Vienna Convention on the Law of Treaties, appears to offer the most elegant approach.
 

Conclusions

The WHO cannabis recommendations released in January 2019 had been eagerly awaited for good reason. Although cannabis was placed in the strictest control schedules of the 1961 UN Single Convention on Narcotic Drugs, until now cannabis had never been the subject of a critical review by the WHO’s Expert Committee on Drug Dependence.
 
The ECDD’s recommendations include some clearly positive points, especially acknowledging the medicinal usefulness of cannabis by removing it from Schedule IV of the 1961 Single Convention and clarifying that CBD is not under international control. Moreover, the documents generated by the Expert Committee in the course of its unprecedented review process provide a wealth of up-to-date information based on a thorough review of the available scientific evidence, and will surely be an authoritative reference for years to come on all aspects of medicinal uses of the various cannabis-related substances, including the plant material.
 
However, notwithstanding the scientific evidence marshalled over the course of the review process, the ECDD recommendations also reveal problematic underlying evaluation methods and scheduling procedures, along with a very questionable rationale for keeping cannabis in Schedule I. The potential repercussions of those more questionable aspects of the ECDD recommendations trigger legitimate concerns that merit a close examination by governments and by civil society. Precisely because the recommendations result from the first-ever WHO critical review of cannabis, they will set an important precedent. Governments should seriously consider their options for challenging the problematic aspects of the review, since their acceptance now could set a damaging precedent for the future.
 
The recent-completed ECDD review also highlights how the initial decision to include cannabis in the UN drug treaties continues to straightjacket UN-level deliberations on cannabis policy. The drug treaties’ confines make it nearly impossible for UN structures to constructively engage with some of the fundamental questions being considered by policymakers in many countries around the world today, such as whether and how to regulate non-medical cannabis—a policy that is beyond the bounds of what the drug treaties allow, but is nevertheless being considered and enacted in a growing number of countries.
 
The limitations of the ECDD review also highlight that even far greater progress in bringing the UN drug treaties’ cannabis scheduling in line with modern science will be unlikely to clear the path for legal regulation of non-medical cannabis. Since such an approach remains outside what the drug control treaties permit, countries wishing to regulate cannabis for non-medical in a way that comports with international law will need to find a different pathway out of the treaty strictures. Among the treaty reform options not requiring consensus, the procedure of inter se modification, provided for by the Vienna Convention on the Law of Treaties, appears to offer the most elegant approach.
 
Inter se modification would require a group of two or more the like-minded governments to conclude a new agreement with a clear commitment to the original treaty aim to promote the health and welfare of humankind and to the original treaty obligations vis-à-vis countries not party to the new agreement. A legally-grounded and coordinated collective response has many clear benefits compared to a chaotic scenario of a growing number of different unilateral reservations and questionable re-interpretations. Among other things, inter se modification would provide opportunities to experiment and learn from different models of regulation as well as open the possibility of international trade enabling small cannabis farmers in traditional Southern producing countries to supply the emerging regulated licit spaces in the global market.
 
Numerous governments have already insisted on the need for more time to examine the WHO recommendations before they are put to a vote. Voting will be postponed until the reconvened CND session in December 2019, or the next regular CND session in March 2020. Governments clearly do need more time to provide the necessary scrutiny to this unprecedented ECDD review process and the recommendations that emerged. Rather than just delaying a difficult decision out of political convenience, the months ahead should be used for an honest and evidence-based discussion among Member States, civil society, academia and the relevant UN entities.
 
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