With the Canadian federal government set to imminently launch a legislative framework for the legalization of recreational cannabis, it will have to deal with some pesky little thorns in its side: two major United Nations drug treaties that dictate that cannabis use and trafficking must be penalized.
Together, the 1961 Single Convention on Narcotic Drugs and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances require signatory countries—practically the entire world—to criminalize the trafficking of marijuana.
That’s a requirement that will run counter to Canada’s domestic legalization, and there's a couple of routes Canada could take in maneuvering the waters of international drug treaties.
One approach is to do as Uruguay has done. The country legalized marijuana on a recreational basis domestically back in 2013, with pharmacies just now beginning to sell the drug to consumers.
When it came to the two UN drug treaties, of which it had been a full signatory from the start, Uruguay opted not to alter its relationship with them, despite appearing to contradict their requirements domestically. It remains a full signatory to both UN treaties, and its move to legalize the plant while seemingly ignoring its treaty obligations has ruffled some feathers in the international drug community.
When the country tabled legalization legislation back in August 2013, the International Narcotics Control Board strongly condemned the move. “Such a law,” a statement from the INCB read, “would be in complete contravention to the provisions of the international drug control treaties.” In December of that year, when the legislation passed in the Uruguayan Parliament, the United Nations Office on Drugs and Crime disapproved. Ultimately, little action was taken, and Uruguay has continued to argue that its only mandate to the drug treaties is to prohibit the illicit trafficking of cannabis, which it says it is combating through the enabling of legal sales channels.
Denunciation and re-accession with reservation
A second option would be for Canada to denunciate the treaties and re-accede to them with the specific reservation of bypassing them vis-à-vis the matter of cannabis use and trafficking. This is exactly what Bolivia did in 2009 when it denunciated the 1961 treaty and in 2013, re-acceded with the reservation that it would not prohibit the coca leaf within its borders. Various UN treaties already have a number of reservations by multiple countries, and this could be a promising route for Canada to follow, but it is not without its pitfalls: a third of the 183 signatories to the 1961 Convention, or 61 states, could have objected to Bolivia’s reservation in 2013, but that never happened. With the way the world is starting to look at cannabis, there may not be more than a handful of states that wish to block Canada’s path.
The medical exemption route
The drug treaties contain a curious exemption that has not been well-defined. The treaties enable countries to bypass imposing penalties for “scientific” or “medical” endeavors. It’s a long-shot, but Canada could position its recreational legalization as a medical program, though this would certainly make a mockery of the treaties. Still, it’s interesting to note that some observers, such as CAMH’s Benedikt Fischer, have viewed the MMPR (and ostensibly the ACMPR that followed it) as “de facto legalization.” In addition to medical exemptions, the treaties enable an exemption where parts of the treaty directly contradict a country’s constitution, though you’d be hard-pressed to find Prime Minister Justin Trudeau conferring with the provinces to add cannabis to the Charter.
Earlier this year, University of Ottawa Professor Steven Hoffman and student Roojin Habibi wrote a piece in the Canadian Medical Association Journal comparing options. They advocated for Canada to withdraw from the treaties completely.
I would probably argue on behalf of the denunciation and reaccession with reservation route—in my mind it’s unlikely that a third of the signatory countries would block Canada’s attempts to legalize. This would also allow Canada to continue following the drug treaties as a whole while carving out the ability to legalize and regulate cannabis domestically.
“What should be avoided at all costs,” Hoffman and Habibi write, “is the illegal path, which is to legalize marijuana in a way that violates Canada’s international legal obligations.” But to that I say: look at what Uruguay has done—then again, they’re not a G8 country like Canada.
Featured image by Maina Kiai.