Is Canada Really Going to Flout UN Anti-Drug Treaties by Legalizing Weed?

Canadian Prime Minister Justin Trudeau has a decision to make about Canada’s plan to legalize marijuana. Canada is a signatory to an international drug treaty called the United Nations Single Convention on Narcotic Drugs of 1961, the foundation for the global War on Drugs. The question for Trudeau is whether to abandon cannabis legalization, work around the UN, violate the treaty, or withdraw completely.

The International Narcotics Control Board, a “quasi-judicial” body established by the Single Convention to oversee adherence to the treaty, warned Canada in their 2016 annual report “that the treaties made no allowance for legal recreational cannabis.” Continuing, they said, “the limitation of the use of drugs to medical and scientific purposes is a fundamental principle that lies at the heart of the international drug control framework, to which no exception is possible and which gives no room for flexibility.”

In short, the international body overseeing execution of the drug treaties believes Canada will be in violation of its obligations and flaunting the world order by opening legal cannabis markets in the summer of 2018.

Shortly after Washington and Colorado legalized legal adult-use cannabis in 2013, the INCB also criticized the United States by emphasizing, “permitting recreational use of marijuana would be a violation of the international law, to which the United States is party.” Then-President Obama would have none of it, bluntly replying to the INCB that the UN drug conventions, “allow sovereign nations the flexibility to develop and adopt new policies and programs in keeping with their own national circumstances.”

It seems disingenuous for the INCB to take Canada and the U.S. to task when they made a special exemption in 2013 for Bolivia and their centuries-old tradition of chewing coca leaves, the primary ingredient in cocaine. Bolivia successfully argued that the Single Convention violated the Bolivian constitution that “protects native and ancestral coca as cultural patrimony,” while asserting that coca is not a narcotic in its natural state.

The INCB also turns a blind eye to countries meting out incredibly harsh punishments for drug crimes, like China, which recently sentenced 10 men to death for drug crimes in front of thousands of onlookers before summarily executing them out of sight, and Iran, which only recently made it more difficult to apply mandatory death sentences to drug offenders.

It is highly unlikely that Canada will simply abandon legalization plans. But there is a middle-ground, the so-called “soft defection” where countries utilize the treaty’s flexibility -- the same flexibility that allows President Rodrigo Duterte to execute his murderous campaign in the Philippines -- to deviate from the framework while still adhering to the spirit of the treaty.

There are currently 184 signatories to the Single Convention, but only a handful currently employ the “soft defection;” Portugal with the across-the-board decriminalization of all drugs, Spain’s cannabis social club model, and Switzerland, which provides heroin by prescription.

When first devised, the Single Convention had many lofty ideals, including concern for “the health and welfare of mankind.” Retired Lt. Commander Diane Goldstein, who worked for more than 20-years for the Redondo Beach Police Department and now serves as an Executive Board Member for Law Enforcement Action Partners (LEAP), sees the Single Convention as obsolete. “The current UN drug treaties as they stand are outdated, don’t reflect the current science, and continue to prop up regimes like the Philippines’ that violate human rights,” she says.

Many drug policy reformers believe that the Single Convention is a dusty relic from a time when governments thought that the worldwide illicit drug trade could be controlled by regulation and law enforcement. And even though countries like Uruguay and Canada have passed cannabis legalization -- in clear violation of the treaty -- being a signatory to the Single Convention has not proven itself to be a deterrent to moving forward on cannabis legalization.

The treaty does acknowledge that narcotic drugs are indispensable to the relief of pain and suffering,” but the primary goal, from the Treaty’s preamble, is to “limit the use of drugs exclusively to medical and scientific purposes, because addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind.”

If it sounds a bit like the drug propaganda perpetuated by Harry J. Anslinger and his ilk, you’d be correct, because when it comes to punitive drug policies and the creation of massive bureaucracies to dictate drug policy, all arrows point in Anslinger’s direction.

He was the first person to head the United States’ Federal Bureau of Narcotics, which later evolved into the Drug Enforcement Administration. Anslinger notoriously created a racial smear campaign against blacks and Latinos, claiming they had forgotten their place in American society, then sensationalized crimes that purportedly occurred under the influence of marijuana.

In the midst of the hysteria, the “reefer madness” gripping America, Anslinger drafted and then pushed into passage the Marijuana Tax Act of 1937, a strict penalty on anyone who handled marijuana and hemp.

The Marijuana Tax Act proved to be a harbinger for the Single Convention. Anslinger came into power in 1930 and stayed there until 1962, just in time to bring his stringent and severe approach to cannabis to the United Nations, leading the charge to create the UN Single Convention on Narcotic Drugs of 1961. Though amended in 1972 and again in 1988, the Single Convention continues to loom over drug policy to this day.

Goldstein believes that drug prohibition has been ineffective in reducing death, disease, or addiction, arguing, “the UN could simply update the treaties around marijuana, or individual countries could withdraw from the treaties, but I don’t see that happening anytime soon.”

Canada’s move toward cannabis legalization is propelled partly by data showing Canadians use cannabis at some of the highest rates in the world; 21 percent of youth and 30 percent of young adults in 2015. Trudeau’s government believes that legalizing and strictly regulating marijuana within their borders will siphon off black-market cannabis profits and slow criminal activity.

But the Center for International Governance Innovation, a Canada-based, non-partisan think tank specializing in global policy, has come out strongly against Canadian legalization. Steven J. Hoffman, in an opinion piece for CIGI about Canada and the Single Convention, said, “Canada cannot ignore this international law dilemma because it has broader implication for its commitment to rules-based world order and for its standing in the global community.” Treaties are binding, meaning that they cannot be broken by parties who have agreed to the treaty’s terms by holding to the principle pacta sunt servanda, Latin for “agreements that must be kept.”

Many argue that violating this principle would make a treaty neither binding nor enforceable, rendering it completely ineffectual. Goldstein disagrees, saying, “multiple countries are experimenting with how best to regulate an industry that has been underground.” And Canada is no exception. Trudeau could assume a strong, global leadership role by withdrawing from the Single Convention and standing up for more progressive, evidence-based cannabis policies.

So, why doesn’t Canada simply drop out? Opting out of the Single Convention is not without risk. Should it withdraw, Canada could, in a worst-case scenario, find itself facing the International Court of Justice, or The Hague, who may exert pressure to bring Canada back in line with other signatories. There is also the possibility of sanctions imposed by the other nation signatories.

The INCB, which also oversees global supplies of pain medication, could conceivably punish Canada for violating the Single Convention by withholding that supply or imposing strident sanctions, though it’s unlikely. And since treaties act more like a “gentleman’s agreement,” it is really up to the other signatories to coerce Canada back into the fold. At this point, it is hard to predict what would happen if Canada did withdraw from the Single Convention. Until it makes one move or another, it’s wait-and-see.