To protect the hemp industry, Article 28’s second paragraph then provides that the Single Convention “shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes”. The Commentary clarifies that the regime under paragraph 1 “applies only to the cultivation of the cannabis plant for the production of cannabis and cannabis resin. Cultivation of the plant for any other purpose, and not only for the purposes mentioned in paragraph 2, is consequently exempted from the control régime”. The parenthesized “(fibre and seed)”―as also the ‘High compliance’ paper argues―should therefore be interpreted as illustrative of industrial uses, rather than as a comprehensive listing of allowable uses. Production of CBD products, for example, can fit in this category, especially since the WHO’s recent critical review concluded that CBD does not warrant international control. Nevertheless, it is clear that the scheduled drug ‘cannabis’ cannot be legitimised under this second paragraph of Article 28 regarding industrial uses, and indeed it is not listed as a fourth exception to the general obligation. ‘High compliance’ misinterprets ‘any other purpose’ in this context to mean ‘any other purpose than medical and scientific’, though it clearly refers to ‘any other purpose’ than the production of the drugs ‘cannabis’ and ‘cannabis resin’. Cultivation of the cannabis plant (which is not scheduled as a ‘narcotic drug’) is thus allowed for more industrial uses than only ‘fibre and seeds’ under this article, but the drug ‘cannabis’ is not.
The other industrial exemption, found in Article 2(9), is that “Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes”, provided that they ensure “by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects [..] and that the harmful substances cannot in practice be recovered”. The exemption was meant for rare cases of drugs being used in ‘industrial processes’, and the only example mentioned at the time was the use of morphine in photography. The Commentary noted that it “was of no immediate practical importance, but had been inserted to anticipate possible future developments” where drugs might be “transformed for use for harmless non-medical purposes, e.g. as dyes”, while ensuring “that the recovery of drugs used up in manufacture is prevented or made impracticable” (p. 72). The only reference made to cannabis in this context was when the Office of Legal Affairs pointed out “that as defined in article I ‘cannabis’ was a drug. There were no industrial uses for that drug, but only for the hemp plant” (Official Records I, p. 185).
Riboulet-Zemouli claims to have found in this exemption the solution for justifying the legal regulation of recreational cannabis markets, using a mix of dubious, at times incomprehensible, and ultimately indefensible arguments. To square the circle, ‘High compliance’ argues that recent cannabis policy trends represent a ‘future development’, that the term ‘cannabis industry’ is ‘commonly used’, and that legal regulation reduces harms and therefore qualifies as ‘other means’ (instead of ‘denaturing’) to ensure that cannabis is no longer ‘liable to be abused or have ill effects’.
The report then goes on to contend that if countries―as required by Article 2(9)―just report to the International Narcotics Control Board (INCB) the amounts of cannabis allocated for recreational use under this exemption, the reporting will automatically legitimise it as industrial use. Moreover, the cannabis used for this purpose will then cease to be ‘cannabis’ as defined and scheduled, it would no longer be a ‘narcotic drug’, and therefore cultivation of the plant can then be legitimised under the exemption for industrial use in Article 28(2). Consequently, the cultivation of cannabis for ‘other than medical and scientific purposes’ would be “wholly exempted from the Convention” (p. 58). If that sounds confusing and far-fetched, that is because it is.
Treaty interpretation
Acknowledging the ‘innovative’ nature of his re-interpretation, to defend his case the author resorts to treaty interpretation concepts around ‘intertemporality’―questioning the temporality of a particular provision―and evolutionary interpretation taking into account the development of international law, practice, and custom. And of course a lot has happened over the past 60 years, and the UN drug treaties do afford certain latitude, which provides room for manoeuvre for policy makers to legally accommodate the progress made. Examples are the now widespread acceptance of medical cannabis, the emergence of a CBD market, the decriminalization of possession and cultivation of drugs for personal use, and harm reduction services such as drug consumption rooms, heroin prescription or drug testing. Those developments initially also created tensions with treaty provisions, running into an overly-prohibitive treaty interpretation by the INCB. But evolving state practices combined with sound legal argumentation have convincingly addressed those tensions, and the stance of the INCB is gradually adapting to these new realities.
But there are also clear limits to the latitude, and there is―unfortunately―simply no way around the fact that legal regulation of drugs markets for recreational use contravenes certain treaty obligations, and conflicts with the explicit purpose of the established international drug control regime to ban those practices. To be very clear, in our opinion the inevitable non-compliance with these obligations should neither prevent nor delay countries from proceeding ahead with legal regulation of cannabis markets. Indeed there are numerous compelling reasons for countries to choose to legalize cannabis, and we are actively supportive of countries moving in that direction. 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, not through some fantasy re-interpretation.
In some countries the difficult reality about non-compliance has already been acknowledged. In recent answers to Parliament regarding the government’s planned experiment in cannabis regulation, the Dutch government referred to a legal advice from the State Council concluding that “[t]he planned experiment is presumably in breach of current international and European law”. At the same time, “the government intends to use the proposed experiment to investigate whether an alternative to the current, ineffective policy is possible” and on that basis, “the government considers the experiment legally defensible” while recognizing that “the experiment creates a certain amount of tension with those conventions”. As it elaborates its announced cannabis regulatory framework, Germany’s coalition government uses as a reference point the Green Party’s 2018 cannabis bill, which stated “there is little doubt that a system such as the Cannabis Control Act, which allows cannabis to be sold in licensed outlets for adult recreational consumption is not compatible with the international prohibition regime at this stage”. And Canada’s then-Foreign Minister Chrystia Freeland told the Senate in May 2018 that cannabis regulation does entail “contravening certain obligations relating to cannabis under the three UN drug conventions”, adding, “we need to be open about that”. Freeland affirmed that Canada is “definitely open to working with treaty partners to identify solutions that accommodate different approaches to cannabis within the international framework”.
Conclusion
It is time to plainly acknowledge that certain elements of these treaties are no longer fit for purpose, to confront the colonial legacy and injustice embedded in them, and to support a coordinated effort of a group of like-minded countries to distance themselves from the most problematic elements of this out-dated regime. Doing so, in our view, will also contribute to clear the path for other unduly restricted plants like the coca leaf or psychedelics, and to support ongoing struggles for the recognition of indigenous rights and ceremonial uses.
Cannabis policy developments have arrived at an important moment where the treaty issue needs to be confronted in an honest manner, and not by hypocritical denials or fantasy interpretations that undermine basic principles of international law and cannot stand the scrutiny of ‘good faith’ treaty interpretation. The pathway proposed in ‘High compliance,’ in our view, is no doubt well-intentioned but amounts to a legally indefensible distraction, and risks confusing the already complicated discussion over the most suitable strategies for moving forward with legal regulation with due respect for international law (as also argued by others). The principles behind the multilateral system and international law are precious, but also fragile and currently under threat on many fronts, and need to be treated with the utmost caution.
After careful consideration with a group of international lawyers, over the past years we have outlined in detail the few legally available and politically viable options, either by means of treaty withdrawal and re-accession with reservations or inter se modification (see sources below). In addition to Uruguay and Canada, multiple U.S. states have legalized cannabis and federal regulation proposals are now under debate in the U.S. Congress, a bill is pending in Mexico’s Congress, and across Europe developments are speeding up with initiatives in Luxembourg, Malta and Germany, and experiments in Switzerland and the Netherlands. Now is more urgent than ever for like-minded countries to coordinate discussions on realistic scenarios for resolving the unavoidable conflict between legalizing non-medical cannabis and the UN drug conventions and European Union law.