Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System
November 2019
There are good reasons to legally regulate drugs markets, rather than persist with efforts to ban all non-medical uses of psychoactive substances. Regulated cannabis and coca markets are already a reality in several countries, with more likely to follow. But ignoring or denying that such policy shifts contravene certain obligations under the UN drug control treaties is untenable and risks undermining basic principles of international law. States enacting cannabis regulation must find a way to align their reforms with their international obligations.
Reaching a new global consensus to amend the UN drug control conventions so as to accommodate cannabis regulation is not feasible for the foreseeable future, and the options that do not require consensus are limited. For countries choosing to regulate cannabis, notwithstanding the drug treaty provisions intended to disallow such a step, a proactive way forward would combine:
1) providing evidence of the ineffectiveness and negative consequences of the prohibitionist approach;
2) underscoring the inconsistencies and historical errors embedded in the treaty regime, and the political and procedural obstacles to its modernization;
3) explaining the shift to regulation with arguments of citizens’ health and safety, and justifying it with an appeal to human rights obligations;
4) acknowledging that regulation contravenes certain drug treaty provisions and arguing that a limited period of ‘respectful non-compliance’ is unavoidable; and
5) preparing to resolve the legal conflict by submitting new reservations or by elaborating a new agreement among like-minded countries on the basis of the inter se procedure for treaty modification, as provided by Article 41 of the 1969 Vienna Convention on the Law of Treaties.
Conclusion: Regulating Cannabis and Upholding International Law
As a path forward for a like-minded group of countries committed to regulating cannabis and to upholding international law, inter se treaty modification would offer a safety valve for collective action to adjust a treaty regime frozen in time such as the UN drug control conventions. It would require that the like-minded agreement includes 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 inter se agreement. Taking recourse to this not-often used mechanism will surely be contested, but in the absence of realistic alternatives, the inter se option is ‘perhaps the most elegant way out’ (Klabbers 2006: 1086).
An inter se agreement would also open the possibility of international trade between regulated licit markets, enabling small farmers in traditional Southern producing countries to participate and diminishing the risk of a corporate capture of the emerging licit markets. Closed national systems of regulation are unlikely to fully replace existing illicit markets that are partly dependent on international trade to accommodate product variety and quality, cultural diversity and consumer preferences.
Implementing the inter se mechanism will require careful consultations during a temporary period of non-compliance. Entering such a period of transitionary ‘respectful non-compliance’ is justifiable in combination with the explicit goal of formally altering the relationship to the treaty obligations that States can no longer meet. Appealing to positive human rights obligations can complement and reinforce the legitimacy of temporary non-compliance while exploring the option of a reservation or negotiating an inter se modification agreement.
Moreover, in tandem, inter se treaty modification and the positive human rights approach ‘can strengthen each other and seem to be a supreme combination’ (Van Kempen & Fedorova 2018: 525). Explicit references to full human rights compliance in an inter se agreement on cannabis regulation would also underscore that the application of the VCLT inter se procedure for this purpose would in no way provide a precedent allowing for other States to derogate from fundamental human rights obligations.
A collective response offers a markedly better path forward than ignoring or denying treaty breach and provides a more promising approach than the scenario of multiple unilateral reservations and legally dubious treaty re-interpretations. The circumstances in which the UN drug control treaty regime finds itself today—systemic challenges and inconsistencies, increasing polarisation and legal tensions, inconceivability of consensus-based solutions—merit a careful consideration of the legitimacy and feasibility of an inter se solution.
