Alternative Systems of Cannabis Control in New Zealand
A Discussion Paper
Drug Policy Forum Trust, Wellington
Section 3. International Treaty Considerations
Two international treaties are relevant to the discussion of cannabis policy: the Single Convention on Narcotic Drugs 1961 1 as amended in 1972, and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention).2 As the name of the latter treaty suggests, the Vienna Convention is primarily concerned with international trafficking, whereas the Single Convention restricts the domestic cannabis policy of signatory nations. As such, the Single Convention (to which New Zealand is a signatory) is the primary potential obstacle to changes in domestic cannabis policy.
Article 36 of the Single Convention requires signatory nations to make possession and use of cannabis, 3 "cannabis resin (hashish), and "extracts and tinctures of cannabis" (among other drugs) an offence:
. . . each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in
transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally. 4
Use and commerce in drugs covered under the Single Convention are to be restricted to "scientific and medical purposes".
Although this particular clause seems rather black-and-white, the treaty as a whole provides considerable room for varying interpretations. As noted by a 1979 Canadian Department of Justice report:
The deliberate vagueness of some critical treaty provisions and the discretion permitted each party allow for a considerable variety of cannabis control regimes. As one official of the United Nations Division of Narcotic Drugs has recently written: "the treaties are much more subtle and flexible than sometimes interpreted." (Noll, 1977:44).5
One major question to be addressed is whether the provisions of the Single Convention concerning cannabis possession are aimed at small- scale personal use or, alternatively, large-scale (even international) trafficking. No less an authority than Adolf Lande, who served as secretary of the UN Permanent Central Narcotics Board and the UN Drug Supervisory Body, and who was also one of the main drafters of the 1961 Convention, wrote that the term 'possession' used in the penal provisions of the Single Convention means only possession for the purpose of illicit traffic. Consequently, unauthorized possession and purchase of narcotic drugs including cannabis for personal consumption need not be treated as punishable offences or as serious offences". 6
Similarly, the official Commentary on the Single Convention on Narcotic Drugs 1961, prepared by the Office of the UN Secretary General, states that whether personal use of drugs requires imposition of penal sanctions "is a question which may be answered differently in different countries." 7
The same commentary proceeds to note that those nations that do interpret Article 36 as requiring a legal approach to personal use may undoubtedly choose not to provide for imprisonment of persons found in possession, but to impose only minor penalties such as fines or even censure since possession of a small quantity of drugs for personal consumption may be held not to be a "serious" offence under article 36 .
. . and only a "serious" offence is liable to "adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
Further, as noted by Noll, a senior legal officer of the United Nations Division of Narcotic Drugs, the requirement that Parties limit the use of drugs to medical and scientific purposes does not require them to "attain that goal by providing penal sanctions for unauthorized 'use' or 'personal consumption' of drugs." 8
Noll also points out that the "whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this also holds true for the 1972 Protocol." 9 (Emphasis in original.)
An explanation for the apparent contradiction between these interpretations and the language found in Article 36 (s-para 1-A) is provided by Smith. 10
Governmental commissions on cannabis control have arrived at divergent opinions on the question of whether the Single Convention requires signatory nations to ban personal use of cannabis. The Williams Royal Commission 11 concluded in the affirmative, as did the Canadian LeDain Commission. 12 However, the 1978 Sackville Commission report concluded that the Convention does not require signatories to make either use or possession for personal use punishable offences, although the creation or retention of such offences would be consistent with the treaty. This is because 'use' is not specifically covered by Article 36 and the term 'possession' in that Article and elsewhere can be read as confined to possession for the purpose of dealing. 13
Similarly, the U.S. National Commission on Marihuana and Drug Abuse took the view that "the word 'possession' in Article 36 refers not to possession for personal use but to possession as a link in illicit trafficking." 14 The Commission concluded that measures such as "an educational program and similar approaches designed to discourage use" could be employed to meet treaty obligations.15
The 1972 Protocol added a second subparagraph (s-para 1(b)) to Article 36, paragraph 1. This provision reads:
Notwithstanding the preceding subparagraph [quote above], when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration. . . .
The official Commentary emphasises that these alternatives to punishment for the offences listed in Article 36 s-para 1A can be instituted "no matter how serious that offence may be." 16 This provision reinforces the more permissive interpretations of the treaties described above.
The authors of 1994 AIC report appear to take the position that only free availability is ruled out by international treaties,17 permitting both a policy of partial prohibition and a regulated approach. The Victorian Premier's Drug Advisory Council took the position that partial prohibition was permitted under the treaties, but recommend further study of the matter.
While there are diverging legal opinions about what the conventions require, the Queensland Criminal Justice Commission concluded that legalising possession of cannabis for personal use would be outside convention terms (Criminal Justice Commission, 1994). . . . Another view
is that the combined effect of the conventions preclude only one option: legalisation or total deregulation of drugs (Woltring, 1990). . . .Internationally, parties to the conventions have a variety of approaches for dealing with cannabis ranging from 'administrative' decriminalisation in the Netherlands, to decriminalisation at different times in Italy and Spain. 18 Council is not aware that any action has been taken against these regimes. 19
A few other provisions of the Single Convention have received attention in the cannabis policy debate, including paragraph 3 of Article 28, which states that "The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." 20 Similarly, Article 22 of the Single Convention reads as follows:
In all cases in which, in light of the circumstances prevailing in the country or area of a Party, prohibition of the cultivation of the poppy plant, coca plant or cannabis plant is, in the view of that Party, the most appropriate measure for protecting public health and welfare and to prevent the narcotic substances from finding their way to illicit trafficking, the Party involved can prohibit cultivation.
A reasonable interpretation of these clauses is that if a country decides that a system other than prohibition is most appropriate for protecting public health and welfare and for deterring illicit trafficking, that country is not obligated by virtue of the Single Convention to maintain a prohibition policy. It is for this reason that the Oregon Cannabis Tax Act, a citizen referendum slated for a vote in 1998, makes frequent reference to the fact that the proposed new system of cannabis control (regulated, taxed, and sold through state-run liquor stores) is being put in place for the express purpose of "preventing the misuse of, and illicit traffic in" cannabis. In addition, the text of the Act amply details why prohibition increases both misuse and (almost by definition) illicit traffic.
Along similar lines, Article 2(5) requires that:
(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and
(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for
amounts which may be necessary for medical and scientific research only, including clinical trials herewith to be conducted under or subject to the direct supervision of the Party.
As noted by the 1994 AIC report, "It must be emphasised, however, that Article 2(5) is not mandatory. Rather, special measures of control can be imposed if, in the opinion of the Party, they are 'necessary' or 'appropriate'."
Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition, as defined above, would certainly be considered by most authorities as being in compliance with international treaties. On the other hand, a policy of regulated commerce would find less support among a majority of authorities. However, the authoritative interpretations of the Single Convention described above would appear to permit a system of regulation and control.
In particular, if New Zealand were to notify the United Nations that, after careful study, it had determined that a regulated system of cannabis control were necessary to reduce both public harm and illicit trafficking, it seems unlikely that such an announcement would be condemned (except, perhaps, by the United States). To clarify matters, and as permitted by the Single Convention, New Zealand could propose an amendment to the treaty, 21 perhaps along the lines of "Notwithstanding any other provision, a regulated system of domestic cannabis control shall not be deemed impermissible, provided due care is taken to prevent international trafficking."
As described earlier, only regulated commerce in cannabis is likely to substantially reduce or eliminate the black market. Moreover, rural (and perhaps particularly Maori communities) would likely be disadvantaged by partial prohibition. It seems inappropriate for countries to be forced by international treaty to foster black markets within their borders, especially if doing so serves to disadvantage native populations.
Such concerns have been raised increasingly, including by the AIC:
An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission commented, in relation to the Single Convention, that the spirit and intention of the treaty was 'a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly' (1980, pC263). 22
Similarly, the Victorian Drugs Advisory Council discussed with concern the restrictions imposed by international treaty restrictions, particularly with respect to cannabis:
In Australia and other countries, there is concern about the impact of the treaties on policy flexibility. The debate on the legal status of cannabis and the most effective way to reduce its use and misuse is perhaps the most visible focus of concern.23
Analogous concerns could be raised in the New Zealand environment. International involvement should not dictate domestic policy.