Canada’s next steps on cannabis and the UN drug treaties

Canada’s proposed approach to cannabis will result in Canada being in contravention of certain obligations related to cannabis under the UN drug conventions
Dave Bewley-Taylor, Tom Blickman, Martin Jelsma, and John Walsh
Ipolitics (Canada)
Thursday, March 29, 2018

Ever since the introduction of Bill C-45, questions have been swirling concerning Canada’s position relative to the UN drug control conventions: conventions to which Canada is a party and that, crucially, prohibit the creation of regulated markets for the recreational use of cannabis. Amidst debates and discussion over the past few months on how best to manage the impending mismatch between Canada’s domestic cannabis policy and international commitments, various options have been proffered and examples from elsewhere sought. One possible avenue to explore is a mechanism called modification inter se, as outlined in ‘Balancing Treaty Stability and Change: Inter se modification of the UN drug control conventions to facilitate cannabis regulation.’

At the more alarmist end of the scale, these have included the notion that, to retain due respect for international law, Ottawa must withdraw from the conventions before it can legalize cannabis. Influenced by a certain amount of confusion around UN rules on deadlines for the withdrawal process, it was even suggested that the implementation of C-45 be delayed. Mindful of both the democratic mandate and the pressing need to move forward with an approach aiming to reduce the harms associated with the currently illicit cannabis market, such a delay would have been unfortunate.

With his impressive performance at March 21 hearings organized by the Standing Senate Committee on Foreign Affairs and International Trade, Mark Gwozdecky of Global Affairs shed light on the situation. Mr. Gwozdecky, Assistant Deputy Minister for International Security and Political Affairs, made clear that, within the context of an ongoing commitment to the ultimate goal of the conventions to protect the health and welfare of humankind, “Canada’s proposed approach to cannabis will result in Canada being in contravention of certain obligations related to cannabis under the UN drug conventions.”

Such a candid, factual stance is far preferable to denying the reality of partial non-compliance or hiding behind dubious legal arguments to accommodate regulated cannabis markets; approaches that do little for the integrity of the UN treaty-based drug control regime, undermine respect for international law more broadly, and are unsustainable.

Moreover, it is difficult to disagree with Mr. Gwozdecky that drug conventions should not be an inflexible set of norms, but that rather they should evolve according to the national circumstances and priorities of countries, and that “withdrawing from that framework would be an excessive and unnecessary response and would also be detrimental to both Canada’s and the international community’s interests.”

Based on our own informal dialogues on the issue — involving officials from numerous governments and UN agencies, as well as legal scholars — we can confirm that the position Canada takes in this regard is followed with great interest abroad, and that several other countries are keen to examine together with Canada the best way to align the new posture on cannabis with international obligations. At the UN Commission on Narcotic Drugs meeting in Vienna earlier this month, for example, Jamaica expressed its position that “the current international drug control architecture does not allow for the requisite policy space to design appropriate domestic policies suited to changing national realities.”

With the Trudeau government having clarified one question, another comes into sharper focus. How can Canada — or a state like Jamaica should it adopt a similar approach — move from what seems to be intended as a temporary period of technical non-compliance with the conventions vis-à-vis cannabis to a long-term arrangement that brings full compliance with the country’s international obligations, yet permits sufficient policy space at the national level?

One possible avenue to explore is a mechanism called modification inter se. As we and our colleagues outline in a new report, ‘Balancing Treaty Stability and Change: Inter se modification of the UN drug control conventions to facilitate cannabis regulation,’ this approach would allow a group of like-minded states to modify their relationship to the UN conventions in relation to cannabis through the creation of new treaty among themselves. Beyond its solid legal basis, such an approach would provide opportunities to learn from different models of regulation and to facilitate the development of what, within an international policy environment characterized by faux consensus, is increasingly necessary: a ‘multispeed drug control system’ operating within the boundaries of international law, rather than one that strains against them.

It is true that inter se modification is relatively uncommon in international law, especially as a procedure to derogate from (rather than intensify) certain treaty obligations. But the circumstances in which the UN drug control treaty regime finds itself today — systemic challenges and inconsistencies, increasing tensions with state practices, huge political and procedural obstacles to amendments, and unilateral escape attempts — merit a careful consideration of the legitimacy of the inter se option for treaty modification.

Global policy making on cannabis is clearly in a state of flux, as numerous countries enact or consider regulatory options, and as the WHO’s Expert Committee on Drug Dependence (ECDD) begins to review the classification of cannabis under the drug conventions, with a key meeting set for this June. In such a context, a coordinated collective response has clear benefits compared to a chaotic scenario of a growing number of different unilateral reservations and questionable re-interpretations. Canada still has plenty of time to choose its path forward with regard to cannabis and the UN drug treaties, and would do well to explore the inter se option.

Dave Bewley-Taylor is director of the Global Drug Policy Observatory (GDPO), Swansea University, U.K. Tom Blickman is a senior policy analyst and Martin Jelsma is director of the Drugs & Democracy program of the Netherlands-based Transnational Institute (TNI). John Walsh is director for drug policy at WOLA (Washington Office on Latin America) in Washington, D.C.