Van Schijndel rapport Jelsma.pdf

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Internationales und europäisches Recht – Cannabis-Legalisierung

Cannabis regulation vs international and EU law. Legal tensions and compliance options Martin Jelsma

Recent European policy shifts towards legal regulation of non-medical cannabis markets are likely to increase tensions in Vienna, the seat of the UN drug control system, as they contravene certain treaty obligations. The emerging conflict with European Union law is even more worrisome for policy makers because of the more robust sanction mechanism at the EU level in the case of noncompliance. This article gives an overview of the legal tensions with international and EU law, the potential consequences and the available compliance options.

1 Legal tensions with the UN drug conventions All three UN drug control treaties contain provisions relevant to cannabis. Cannabis flower and resin are scheduled under the 1961 Convention, its principal psychoactive compound THC is scheduled under the 1971 Convention, and the 1988 Convention mentions cannabis specifically in articles about cultivation and eradication.

1.1 1961 single convention on narcotic drugs (as amended by 1972 protocol) Everything starts with the ‘general obligations’ laid down in Article 4 of the 1961 Convention: ‘The parties shall take such legislative and administrative measures as may be necessary […]. Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.’ Article 36 then establishes ‘penal provisions’: ‘Subject to its constitutional limitations’, each Party will take measures to ensure that cultivation, production, sale, possession, etcetera, ‘shall be punishable offences when committed intentionally, and serious offences shall be liable to adequate pun-

ishment particularly imprisonment or other penalties of deprivation of liberty’. The wording of the Single Convention allows several exemptions for cannabis. Firstly, the cannabis plant itself, and the leaves and seeds, are not listed as drugs controlled by the Convention. The narcotic drug ‘cannabis’ is defined as the plant’s ‘flowering or fruiting tops’ (flower/buds), listed in Schedule I along with cannabis ‘resin’ (hashish) and ‘extracts and tinctures’. Only the ‘cultivation of the cannabis plant for the production of cannabis or cannabis resin’ (flower/buds and hashish) is strictly limited to medical and scientific purposes (Art. 28.1). The Single Convention does ‘not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes’ (Art. 28.2). The Convention does not define ‘hemp’ or establish a THC threshold, so in principle any cannabis variety may be grown as long as the purpose is not the production of flower/buds or hashish. This exemption provides the legal basis for the large-scale industrial hemp cultivation for fibre, seeds, hemp oil or CBD extraction taking place in Canada (more than 20,000 ha), Europe (> 50,000), U.S. (> 60,000) and China (> 65,000).

THC thresholds for hemp or for hemp-derived products are defined by national law, and for hemp plant material differ from 0.2 to 1 per cent THC on a dry weight basis. The European Union recently decided to increase the level from 0.2 to 0.3 per cent, while Italy has set the national limit at 0.6 per cent, rausch, 11. Jahrgang, 3/4-2022, 92–101

Cannabis regulation vs international and EU law. Legal tensions and compliance options

and countries such as Switzerland, Czech Republic and Australia maintain a one per cent threshold (Sabaghi, 2021). The relatively higher thresholds have also enabled the emergence of a ‘recreational’ market of low-THC cannabis from hemp cultivation, gaining certain popularity in countries like Switzerland and Italy. In the U.S. currently a threshold of 0.3 per cent is applied, but the draft federal ‘Cannabis Administration and Opportunity Act’ (CAOA) recently introduced in the Senate proposes an increase to 0.7 per cent (US Senate, 2022). The other exemption for cannabis in the 1961 Convention was the ‘transitional reservation’ option for countries that argued that it would not be easy for them to ban the centuries-old social uses of cannabis, and that they would need time to gradually phase out those widespread traditions. Article 49 provides therefor that a Party may ‘reserve the right to permit temporarily’ the use and production of ‘cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes’ but ‘only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961’.

To make it possible for the countries concerned to ratify the Convention, according to Adolf Lande (author of the treaty Commentaries and involved in drafting the 1961 and 1971 Conventions), it was ‘advisable to allow a certain period of grace before the complete prohibition of the practice’ (United Nations, 1964). India, Bangladesh, Nepal and Pakistan all made use of that transitional reservation, but Article 49 specified that such ‘use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from the coming into force of this Convention’, a transition period that ended in 1989.

1.2 1971 Convention on psychotropic substances Complicating the matter, cannabis’ main psychoactive cannabinoid, dronabinol or delta-9THC, obtained through chemical synthesis or plant extraction, is listed as a ‘psychotropic substance’ in Schedule II of the 1971 Convention; several other tetrahydrocannabinol isomers (including delta-8-THC) are listed in its strictest Schedule I. The decision to place THC under control of the 1971 Convention instead of adding it to the 1961 schedules, at the time done without a proper WHO review, represents a departure from the control logic of the Single Convention, where plant raw materials and the alkaloids they contain are generally placed in rausch, 11. Jahrgang, 3/4-2022

the same schedules (e.g. coca leaf and cocaine; opium and morphine). A WHO recommendation to resolve this inconsistency by transferring THC to Schedule I of the 1961 Convention, and certain ‘pharmaceutical preparations’ with THC to its Schedule III, was rejected by a vote at the Commission on Narcotic Drugs (CND) in December 2020 (23 in favour; 28 against; 2 abstentions). Resolving the anomaly of cannabis in 1961 and THC in 1971 requires a review of the contradictory logic between the two treaties rather than just transferring THC to 1961, which might have unintended consequences (Jelsma, 2020). The fact that delta-9-THC is scheduled under the 1971 Convention does not affect herbal cannabis products, because the 1971 logic does not extend control to plants from which ‘psychotropic substances’ can be extracted. For example, cathinone and cathine are scheduled, but the khat plant is not; the same with mescaline, psilocybine or DMT, while leaving out the cacti, mushrooms or herbal ayahuasca mixture containing those compounds. But it does mean that as long as THC remains controlled under the 1971 Convention, certain preparations made from isolated THC are subject to the general obligation of limitation to medical and scientific purposes and a range of control provisions remain in force.

That would still be the case even if cannabis would be deleted from the 1961 schedules or if countries would obtain a cannabis reservation under the 1961 Convention similar to the one Bolivia has obtained for the coca leaf.

1.3 1988 Convention against illicit traffic in narcotic drugs and psychotropic substances The 1988 Convention focuses on illicit trafficking and reinforces the obligation to criminalise including by removing the previous ‘escape clause’ in the 1961 and 1971 treaties about ‘constitutional principles’: ‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law‘, the production and trade of drugs, as well as the ‘cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions’ of the earlier conventions. (Art. 3.1) The escape clause, however, is upheld and even broadened out to ‘[s]ubject to its constitutional principles and the basic concepts of its legal system’ when it comes to the obligation to criminalise

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possession, purchase or cultivation for personal use (Art. 3.2). The 1988 Convention also devotes a special article to cultivation and eradication: ‘Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate […] cannabis plants, cultivated illicitly in its territory.’ (Art. 14.2) In spite of its harsh wording and the specific reference to cannabis, the 1988 Convention clearly builds on the two previous treaties. A strong legal argument can be made that a change in cannabis provisions under the earlier conventions, collectively or individually by means of reservation, would automatically also change the nature of state obligations under the 1988 Convention. The key wording in this regard is ‘contrary to the provisions’ of the 1961 and 1971 conventions; and ‘illicit’ cultivation of cannabis plants. The key question that follows from that is whether a legally regulated cannabis market would still be ‘contrary to the provisions’ or ‘illicit’ under the 1988 Convention once a Party has modified its cannabis obligations under the 1961 and 1971 conventions.

2 Legal tensions with European law To answer questions about potential legal conflicts for EU Member States between cannabis regulation and European law, three different issues need to be considered. Firstly, whether obstacles arise from the Schengen Acquis and the open borders within the Schengen area. Secondly, the specific provisions of the 2004 EU Framework Decision aimed to harmonise drug trafficking sentences (2004/757/JHA). And thirdly, what is the legal connection between the EU drug control instruments and the UN conventions?

2.1 Schengen Implementation Agreement The 1990 ‘Convention implementing the Schengen Agreement of 14 June 1985’ contains a special chapter on ‘Narcotic Drugs’ (Chapter 6, Art. 70–76). The Contracting Parties shall ‘adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking’ in drugs (Art. 71.1); ‘undertake to prevent and punish by administrative and penal measures the illegal export of narcotic drugs and psychotropic substances, including cannabis, as well as the sale, supply and handing over of such products and substances’ (Art. 71.2); and ‘combat the illegal import’ of drugs by stepping up their checks ‘at

their external borders’ (Art. 71.3). The wording of Article 71.2 could be interpreted as going further into domestic drug policies, which was the reason for a Joint Declaration of the Benelux countries, Germany and France, clarifying: ‘In so far as a Contracting Party departs from the principle referred to in Article 71(2) in connection with its national policy on the prevention and treatment of addiction to narcotic drugs and psychotropic substances, all Contracting Parties shall adopt the necessary administrative measures and penal measures to prevent and punish the illicit import and export of such products and substances, particularly towards the territories of the other Contracting Parties.’ The focus of the Schengen drugs articles is thus clearly on illegal international trafficking, and strengthening controls on the external borders of the Schengen area. ‘As regards the legal trade’, Parties agree that border checks arising from UN treaty obligations ‘be transferred to within the country’ (Art. 74).

Anticipating variations in control within the Schengen area, Parties shall ‘in accordance with their medical, ethical and practical usage, adopt appropriate measures for the control of narcotic drugs and psychotropic substances which in the territory of one or more Contracting Parties are subject to more rigorous controls than in their own territory, so as not to jeopardise the effectiveness of such controls.’ (Art. 76) The latter article mostly referred to existing policy discrepancies within Schengen regarding drugs for medical purposes, but can also serve as a basis for dealing with different approaches on cannabis regulation. Significant diversity in drug policy has always existed within the Schengen area and the EU as a whole. Different approaches to medical cannabis, which is still not allowed in some EU countries and fully legal in others, have been able to co-exist relatively unproblematically in the borderless Schengen or the single EU market environment. In legal terms, the drugs provisions in the Schengen Acquis seem flexible enough to accommodate such differences.

Politically, no doubt tensions will arise when some countries move towards cannabis legalisation, as they already did at the time of the Schengen Agreement when France initially refused to implement the gradual abolishment of border checks in disagreement over the Dutch coffeeshop policy (Berkman, 1996; Easton, 1999). About a decade ago, political tensions also arose rausch, 11. Jahrgang, 3/4-2022

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around khat policy differences, when huge amounts of khat was legally imported from Africa to the Netherlands and the United Kingdom, part of which was smuggled onwards to EU countries that had imposed a national khat ban (Csete, 2014). In the case of khat, the tensions ultimately led to the Netherlands and the UK adopting national bans as well and stopping all legal khat imports. But in the case of cannabis the policy trend is more likely to move in the opposite direction, with more countries opting for legal regulation in the coming years. More lessons can be learned in this regard from examples of peaceful co-existence of conflicting control regimes for other psychoactive plants or substances. Or from the U.S., equally without internal borders, where over 40 per cent of the population (19 states) now have full legal access to cannabis, while it remains strictly prohibited in other states and at the federal level.

2.2 EU Framework Decision 2004/757/JHA Though the 1985 Schengen Agreement mentioned ‘narcotic drugs’ as one of three policy areas where Parties ‘shall seek to harmonise laws and regulations’ (Art. 19), drug policy has remained to a large extent a domestic domain. One notable exception, however, has been the attempt to harmonise minimum provisions and penalties for drug trafficking, laid down in Council Framework Decision 2004/757/JHA (European Commission, 2004). In that legally binding instrument, EU Member States agreed to take the necessary measures to ensure that ‘the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs’, as well as ‘the cultivation of opium poppy, coca bush or cannabis plant’ is punishable ‘when committed without right.’ (Art. 2.1) The listing of punishable conduct is copy-pasted from the 1988 Convention, which requires to establish those as ‘criminal offences’ when committed ‘contrary to the provisions’ of the earlier conventions. The Framework Decision makes clear that the conduct described ‘shall not be included in the scope of this Framework Decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law’ (Art. 2.2).

Decriminalisation of cannabis for personal use can thus easily be justified under 2004/757/ rausch, 11. Jahrgang, 3/4-2022

JHA, and in fact the wording suggests that not only possession, purchase and cultivation, but also import would fall outside of the scope of the Framework Decision if perpetrated for personal consumption, including arguably distribution in collective setting by members of a social club. ‘The Dutch determination to be able to continue to allow the possession of small quantities of soft drugs and for such drugs to be sold in ‘coffee shops’ was one of the main problems to resolve in order to reach a final agreement.’ (European Parliament, 2004) The solution was in part found by inserting in Article 3.2 that a ‘Member State may exempt from criminal liability’ the attempt to offer, prepare or possess drugs including when intended for sale and distribution, allowing the Dutch tolerance policy of non-prosecution of the coffeeshops to continue. ‘The Council and the Commission firmly stated the subsidiarity principle should be applied here. Nonetheless, the Netherlands seems ready to make its legislation tougher, since the Dutch Justice Minister confirmed that his government hoped the coffee shops would restrict its sale to residents.

In a statement the Council declared its intention to dissuade the phenomenon of drug tourism.’ (European Parliament, 2004) A legally regulated cannabis market with statelicensed cultivation and sales to adults for nonmedical use, however, clearly falls within the scope of 2004/757/JHA and would constitute a breach ‘when committed without right’.1 The next key question therefor is under what conditions EU Member States can claim that a legally regulated cannabis market would no longer be ‘without right’. Would a national law establishing a regulated cannabis market suffice for that country to argue it would then also be ‘within right’ under EU law? A closer look at the connection between the UN treaties and EU law makes clear that it is not that easy.

2.3 Connections between EU and international law All EU Member States are signatories of the three UN drug control conventions, which is also a requirement for new states aspiring to 1

German: ‘wenn sie ohne entsprechende Berechtigung vorgenommen wurden’; Dutch: ‘wanneer daarvoor geen rechtvaardigingsgrond aanwezig is’; French: ‘lorsqu’ils ne peuvent être légitimés’; Spanish: ‘cuando se cometan contrariamente a Derecho’.

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join the Union. The EU itself is a party to the 1988 Convention, but only with competence with regard to the precursor regime established under Article 12 of the Convention, so that has no direct relevance for cannabis policies. The Schengen Acquis refers directly to the UN drug conventions (Art. 71.1) and the 2004 Framework Decision refers for the definition of ‘drugs’ to any substance covered by the 1961 and 1971 conventions (Art. 1.1). Even more explicit was the former EU Joint Action 96/750/JHA of 17 December 1996 concerning the approximation of the laws and practices to combat drug addiction and to prevent and combat illegal drug trafficking, requiring that: ‘Member States shall ensure that their obligations under the United Nations Conventions on narcotic drugs and psychotropic substances of 1961, 1971, and 1988 are applied strictly and effectively.’ (Art. 7) Formally, 96/750/JHA was repealed in 2016 because it became obsolete after the entry into force of several other instruments, including Framework Decision 2004/757/JHA (European Union 2016). The Framework Decision, however, was meant to be ‘entirely in keeping with the spirit of the Joint Action’ according to its Explanatory Memorandum (European Commission, 2001).

There are thus multiple linkages between EU drug control instruments and the UN drug conventions; additionally, all EU countries are themselves bound by the UN treaties. This means that EU Member States can only recognize a ‘right’ under Art. 2.1 of 2004/757/JHA if this does not violate their obligations under international law, according to a recent legal analysis by the Radboud University. ‘Of course, this would no longer apply’, according to the authors, if an EU Member State would ‘validly derogate from relevant articles in these conventions by means of an inter se agreement or by means of a reservation (including a kind of ‘inter se agreement light’ through a group action reservation)’ (Kempen & Fedorova, 2022). This will be explored further down in the section on compliance options, after first looking at the potential consequences of non-compliance.

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Consequences of non-compliance

3.1 Non-compliance with international law The International Narcotics Control Board (INCB) is the treaty body mandated to monitor

compliance with the 1961 and 1971 conventions. The two treaties have similar articles about Measures by the Board to ensure the execution of provisions of the Convention (Single Convention: Art. 14; 1971 Convention: Art. 19), detailing the possible steps the INCB can take in case of noncompliance. But also the restrictions placed upon the INCB mandate are clearly spelled out. The INCB mandate under the 1988 Convention is very limited because it deals ‘with matters of criminal law and its enforcement that go beyond the scope of the earlier conventions into areas touching more closely on the sovereignty and jurisdiction of States’ (United Nations, 1998, p. 374). Similar to the EU, the INCB basically only has competence with regard to the treaty’s precursor control regime under Article 12, and a few other technical issues, but the Board has deliberately not been given any mandate to monitor compliance of the 1988 Convention as a whole. Under the 1961 and 1971 treaties, action against non-compliance may only be taken when ‘the Board has objective reasons to believe that the aims of this Convention are being seriously endangered by reason of the failure of any Party’ (Convention 1961: Art. 14 – emphasis added).

The ‘conclusion that a serious situation of this kind exists will be justified if lack of control or defective control in one country or territory appears to endanger the effectiveness of control in another country’ (United Nations, 1973, p. 178). After confidential consultations, the Board may then call on a Party to adopt such remedial measures as seem to be ‘necessary for the execution of the provisions of this Convention’, which could include adopting ‘other methods of compliance as in its view would be necessary for a better execution of that treaty, i.e. for the purpose of achieving better results therefrom’ (United Nations, 1976, p. 28). Theoretically, persistent non-compliance could lead the INCB to recommend an embargo of international trade in controlled medicines with the defective country. In practice, however, the Board has never taken such extreme measures and it is unlikely to happen also in the case of cannabis regulation. Similarly, disputes between parties about interpretation and implementation of the drug conventions have never been brought before the International Court of Justice (ICJ), an option in principle available under the treaties (Single Convention: Art. 48; 1971 Convention: Art. 31; 1988 Convention: Art. 32). The practical consequences of treaty noncompliance, therefor are not economic sanctions but rather political and reputational damage.

It will lead to political tensions at the CND (as especially Canada has experienced), to uncomfortable dialogues with the INCB in the form of rausch, 11. Jahrgang, 3/4-2022

Cannabis regulation vs international and EU law. Legal tensions and compliance options

letters, country missions and private meetings in Vienna (as Uruguay has gone through), and to exposure in the INCB Annual Report. Consistently, the Board repeats in its report that ‘any measures allowing for the use of cannabis for nonmedical purposes are in violation of the legal obligation incumbent upon parties’ (INCB, 2022, § 819), calling out countries like Uruguay, Canada, the U.S. and the Netherlands whose cannabis policies are already in breach of 1961 treaty provisions, and warning others who consider heading in the same direction, like Luxembourg, Malta, Mexico and Switzerland. The most damaging consequence of a prolonged period of non-compliance, is that it shows disrespect for international law in general and that it weakens a country’s position to call out other states for violating other international obligations for example around territorial integrity, death penalty, extrajudicial killings or arbitrary detention. As any lawyer, judge or Court will argue, international law is not an à-la-carte menu a country can choose from: if you want others to comply with principles of international law that you hold high, you will have to demonstrate respect for all basic standards and procedures of international law yourself.

Positive human rights obligations can help to justify cannabis regulation if that can more effectively protect the right to health, the right to life or the right to privacy, and there are good arguments to prioritise human rights obligations over arguably outdated and ineffective international drug control obligations. Still, pointing out those contradictions does not automatically resolve the resulting non-compliance with the UN drug conventions: further legal action is required to reconciliate policy choices with international law.

3.2

Non-compliance with EU law

An important difference between the UN drug control conventions and EU drug legislation is that formal complaints procedures and sanction mechanisms have a much stronger basis under EU law, and breaches can potentially have more immediate and more serious consequences. The effective application, implementation and enforcement of EU law is a responsibility entrusted to the European Commission by Article 17(1) of the Treaty on European Union. In comparison with the INCB, the EC can more easily initiate infringement proceedings, acting on its own initiative or in response to a complaint from an EU member state, or (under certain circumstances) even from citizens, businesses or other stakeholders. Such proceedings are quite rausch, 11. Jahrgang, 3/4-2022

common especially about Single Market legislation (environment, transport, energy or tax issues), but have also been initiated to enforce respect for LGBTQ+ rights, independence of the judiciary or freedom of the press. Complaints can also more easily lead to a dispute procedure at the Luxembourg-based Court of Justice of the European Union (CJEU), and ultimately to the possibility of economic sanctions to force member states to comply with EU law. The Court ‘constitutes the judicial authority of the European Union and […] ensures the uniform application and interpretation of EU law’ (CJEU, n.y.). Because EU laws and treaties – like UN conventions – are not an à-la-carte menu from which countries can choose to comply with some obligations and not others, depending on political expediency, the same sanction procedure applies to the legal obligations under the Framework Decision on drug trafficking.

‘The uniform application of EU law throughout all Member States is essential for the success of the EU’, according to the European Commission: ‘That is why a robust, efficient and effective enforcement system is needed to ensure that Member States fully apply, implement and enforce EU law.’ (European Commission, 2017) ‘Infringements must be dealt with promptly’, and to proceed expeditiously in investigating breaches of the law, a mechanism for informal dialogue between the Commission and Member States, known as EU Pilot, was set up ‘to quickly resolve potential breaches of EU law at an early stage in appropriate cases’ (European Commission, 2017). In exercising its guardian role ‘the Commission enjoys discretionary power in deciding whether or not, and when, to start an infringement procedure or to refer a case to the Court of Justice’ (European Commission, 2017). Still, non-compliance with 2004/757/JHA will at least lead to questions from EC side and trigger the EU Pilot mechanism. Infringement proceedings have already started against Hungary for breaching the EU Common Position on the CND vote on the WHO cannabis recommendations.

After agreeing in Brussels a binding EU position to vote in favour of the WHO recommendation to delete cannabis from Schedule IV of the Single Convention, Hungary unilaterally decided to vote against it at the CND in Vienna in December 2020, shortly after the Hungarian Minister of Foreign Affairs had attended a meeting about it in Singapore. The WHO recommendation was still adopted by a narrow margin of 27–25 and one abstention, but Hungary’s defection was strongly criticised within the EU. Subse-

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quently, the infringement procedure added to the tensions that were already sky high due to the EU sanctions imposed against Hungary and Poland for violating LGBTQ+ rights and the independence of the judiciary. Against this background, Luxembourg’s Minister of Justice, Sam Tanson, confirmed in October 2021 that although a full legalisation of cannabis – as envisaged in the coalition agreement of 2018 – is still planned, it was temporarily postponed due to, among other things, ‘legal obstacles at the European level’ (Hansen, 2021).

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Compliance options

As argued above, the key to overcome the unavoidable legal tensions with international and EU law ultimately lies in adapting the legal obligations parties have under the UN drug conventions, which would also resolve the conflict with the 2004 EU Framework Decision. There are few available pathways to consider, and the two least controversial options (unscheduling or treaty amendments) which use uncontested and established treaty procedures, unfortunately require majority support that is politically unlikely to be found in the near or medium future. That leaves only two legally and politically viable but at the same time more controversial options: new treaty reservations or inter se modification.

4.1

Unscheduling of cannabis

Removing cannabis from the treaty schedules entirely would only be possible if the WHO recommends doing so after another critical review, and the CND votes in favour of adopting it. Both have become highly unlikely after the first WHO cannabis review which turned out to be a highly polarising multi-annual process, ending in a controversial reconfirmation of cannabis’ placement in the very strict Schedule I of the 1961 Convention, and only a narrow margin of the CND vote in favour of deleting cannabis from Schedule IV in recognition of its medicinal properties. It is highly unlikely that a repetition of the review process could lead to the more far-reaching unscheduling necessary to legitimise recreational/adult cannabis use. The underlying problem is not just the political opposition to cannabis policy reform, but also the scheduling criteria and the nature of the Single Convention. Scheduling criteria the WHO Expert Committee has to work with, include the ‘similarity’ and ‘convertibility’ principles: if a substance

resembles one that is already controlled, or if it can be easily converted into a drug already under control, it warrants similar control. Additionally, the nature of the Single Convention, contrary to the logic of the 1971 Convention, does not allow for making distinctions between plant material and extracted compounds, or between levels of potency. So, once the WHO had considered that butane-hash oil with THC concentrations up to 90 per cent can have ‘similar’ negative effects as some other substances in Schedule I, it felt it had no choice but to recommend keeping cannabis flower and resin in Schedule I as well, as those could be ‘converted’ into the high-potent derivatives. Until those underlying principles and the inconsistencies in the control logic of the 1961 and 1971 conventions are challenged, the unscheduling of cannabis via a WHO review process has become an unrealistic scenario.

4.2

Treaty amendments

Changing scheduling criteria and resolving fundamental treaty inconsistencies, however, would require treaty amendments. As most international treaties do, the drug conventions have built-in procedures for amendments, either via a simple/silent procedure or by convening a Conference of the Parties (COP) to negotiate a protocol of amendments. The simple procedure has been unsuccessfully tried once, when Bolivia proposed in 2009 to delete the treaty obligation to abolish coca chewing after 25 years. If no country objects to an amendment proposal within eighteen months, it would be automatically accepted. Bolivia’s proposal, however, met with eighteen objections from a U.S.-led ‘Group of Friends of the Conventions’ who agreed to protect the ‘integrity of the treaty system’ and to not allow any changes at all. But there is a successful precedent of substantial amendments to the 1961 Convention by the 1972 Protocol agreed at a COP that year. It was in fact the U.S. who argued then that it was ’time for the international community to build on the foundation of the Single Convention, since a decade has given a better perspective of its strengths and weaknesses‘ (United Nations, 1974). One could easily argue that half a century later, it might again be time for a number of updates and improvements.

No other COP has ever been convened for any of the three drug conventions, even though it has become regular practice for the subsequent conventions against Transnational Organized Crime (2000) and against Corruption (2003). A COP for the 1961 or 1971 convention, or for the two of them together, can rausch, 11. Jahrgang, 3/4-2022

Cannabis regulation vs international and EU law. Legal tensions and compliance options

be convened by ECOSOC (also if asked to do so in a CND resolution) or by the UN General Assembly; for the 1988 Convention only upon request of the majority of parties. Following the Rules of Procedure of the 1961 and 1971 conferences and the COP in 1972, a COP could adopt amendments by a two-third majority vote; but the amendments would only be binding for those parties signing the amendment protocol. Though there would be many good reasons for convening a COP to discuss the ‘strengths and weaknesses’ of the current treaty regime, it is unlikely to bring a solution for the cannabis regulation treaty conflict since a two-third majority support is not yet anywhere in sight. Still, it would show respect for treaty procedures and willingness to discuss emerging dilemmas with treaty parties. A draft amendment protocol does not have to be limited to cannabis regulation but can also address other issues where tensions have appeared, for example around coca, harm reduction, decriminalisation or human rights. And protocol parts that would not pass a vote, could still trigger useful debates and potentially lay the groundwork for subsequent reservations or inter se agreements.

face the same dilemma and would be well advised to follow Mexico’s example and withdraw their objections too. Denunciation before July 1st comes into force on January 1st following year, so the earliest moment for re-accession with new reservations would be January 2024, which would then come to effect by January 2025 at the earliest (unless 61 countries or more object). Withdrawal and re-accession is a unilateral procedure implemented by individual countries, but the procedure could in principle be employed in a coordinated manner with other like-minded countries. For example, countries could collaborate to draft comparable or identical reservations and could synchronize the timing of their separate processes for withdrawal and re-accession. Presenting a united front with a group of countries may also improve chances for success by deterring some countries from formally registering objections to the cannabis reservations. And a ‘collective’ reservation could establish a basis for an inter se agreement allowing international trade in cannabis products for nonmedical purposes between reserving states.

4.3

The only other remaining option would entail inter se treaty modification among two or more like-minded parties, a procedure allowed under Article 41 of the 1969 Vienna Convention on the Law of Treaties (VCLT):

Reservations

Registering reservations regarding specific treaty provisions upon signing, ratifying or acceding to an international treaty is common practice. However, submitting new reservations by a state already party to a treaty is a more controversial procedure. In the case of the UN drug control treaties, the only precedent for employing this procedure occurred when Bolivia (after its amendment proposal failed) withdrew from the 1961 Single Convention in 2012 and successfully re-acceded a year later, with a reservation clarifying that Bolivia no longer accepts the Single Convention’s control provisions for coca leaf in its natural state. Sixteen countries formally objected to Bolivia’s use of the withdrawal and re-accession procedure regarding coca, but a minimum of one-third of treaty parties – at least 61 countries – would have had to object to invalidate Bolivia’s reservation. Mexico, the only Latin American country that objected to Bolivia’s re-accession with a coca reservation, formally withdrew its objection in 2018, with a view to Mexico itself possibly seeking to make use of the withdraw and re-accede procedure with regard to cannabis. Several among the objecting countries, like Canada, Denmark, Germany, Italy, Netherlands, Portugal or the U.S., may soon rausch, 11. Jahrgang, 3/4-2022

4.4

Inter se treaty modification

“Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone.” The procedure is more commonly used to agree stricter rules among some parties, but can also be used ‘contra legem’ to derogate from certain treaty provisions, an option specifically designed to facilitate changes in the absence of consensus: ‘Due to the conflicting interests prevailing at an international level, amendments of multilateral treaties, especially amendments of treaties with a large number of parties, prove to be an extremely difficult and cumbersome process; sometimes, an amendment seems even impossible. It may thus happen that some of the States Parties wish to modify the treaty as between themselves alone.’ (Dörr & Schmalenbach, 2012) Clear conditions are that an inter se agreement cannot be incompatible with the object and purpose of the treaty or affect the rights

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of other Parties, and would therefor require 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. As argued in detail elsewhere, those conditions could in principle be met in the case of cannabis regulation (Boister & Jelsma, 2018). The legality of an inter se agreement as a means to escape from the cannabis prohibition embedded in the treaty regime would no doubt be questioned by other parties. But there is no established objection procedure that could obstruct a group of like-minded countries to sign such an agreement, and the only resort for opposing parties would be to bring a dispute to the International Court of Justice. In principle, an inter se agreement could address tensions with all three treaties, allow for trade among the signatory jurisdictions, and explain how it effects related legislation such as EU law.

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Concluding observations

Unfortunately, there is no way around the fact that legal regulation of cannabis markets for recreational use contravenes certain UN treaty obligations and conflicts with correlated EU law. The inevitable non-compliance with these obligations should neither prevent nor delay countries from proceeding ahead with legal regulation, since there are numerous good reasons to do so. But undertaking reforms that will involve non-compliance with current treaty obligations must be addressed in ways that comport with the rules and procedures of international law designed to resolve such legal tensions. A temporary period of ‘respectful non-compliance’ is probably unavoidable, as Uruguay and Canada felt forced to do, but it requires an honest acknowledgement of the legal tensions, a rationale explaining the reasons for non-compliance and an expressed commitment to find solutions in dialogue with the INCB and treaty parties. The lack of an effective enforcement mechanism at the UN level enables countries to take time to reconcile new policies with their international obligations and to find strength in numbers, awaiting more countries to join the regulation group. A prolonged period of noncompliance, however, will only further increase political tensions and undermine respect for international law in general.

EU countries, however, are confronted with a more robust mechanism to enforce compliance with EU law, adding urgency to find a coordinated solution to the legal tensions. As ar-

gued above, the legal conflict with EU law can only be resolved by derogating from cannabis obligations under the UN drug conventions; only then can EU Member States claim that cannabis regulation is no longer ‘committed without right’. An additional compelling argument for an urgent solution is that some form of international legal arrangement is needed to enable trade between regulating countries. It will be very difficult if not impossible, for example, to supply the huge German cannabis market only from newly created domestic sources. And even if that were possible, it would be undesirable for other reasons. Indoor cannabis cultivation comes with an incredibly high energy consumption and carbon footprint, and those negative consequences could be avoided by importing from traditional producing countries. Moreover, millions of people in those countries have been dependent on the illicit cannabis economy, so also in development and human rights terms it would be a bad policy choice to fully replace current illegal imports with domestic production, largely controlled by big Northern cannabis companies. It is now more urgent than ever to engage in a strategic dialogue among regulating countries about how to resolve the legal tensions with international and EU law, and how to enable international trade among regulating countries.

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https://www.democrats.senate.gov/imo/me dia/doc/caoa_final_introduction.pdf

Martin Jelsma Director of the Drugs & Democracy programme at the Transnational Institute (TNI) in Amsterdam; expert on the UN drug control system and links between drugs policy, conflict, human rights and development. mjelsma@tni.org

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