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Remarks Allyn Taylor at 2018 CND side event Regulating Cannabis in Accord with International Law
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The prior panelists have made a concrete political and legal case for the codification of a treaty inter se to address the tension between state regulation of cannabis and commitments under the Single Convention on Narcotic Drugs. Dissatisfaction with the status of cannabis in the treaty system has long resulted has been described as “quiet revolution,” Today, however, the quiet revolution has turned into an all out revolt. With more and more direct treaty violations, the tensions between state cannabis policy and international law can no longer be ignored and viable options to maintain the integrity of the treaty system are highly limited. Recognizing the increasing polarization of policy debates in Vienna, there is simply no political will to resolve the challenges of cannabis reform within the treaty system.
In this scenario, the codification of a treaty inter se between two or more state parties is, as Dr Jelsma and his colleagues have written, the only safety valve for collective action that can adjust the treaty regime for like minded parties and, at the same time, preserve the rule of law.
With more and more states modifying the legal status of cannabis in contravention of the treaty, the time is ripe for such states to use their sovereign authority to codify a new inter se treaty consistent with international law. The codification of a treaty inter se can maintain the integrity of the drug treaties and the legitimacy of state action.
My task for the next few minutes is not to further make the case for an inter se treaty, but to discuss the processes that can be used by interested parties to advance negotiation of such an instrument. I will focus, in particular, on the contribution that civil society can make to strengthen this process and, perhaps, even jump starting it.
States by virtue of their international legal personality have the sovereign authority to negotiate virtually any treaty consistent with the UN Charter–including the proposed inter se treaty. Contemporary international lawmaking tends to be viewed as a process in which states, with participation of non-states actors formulate rules in accordance with agreed, pre-determined procedures.
Notably, the Vienna Convention on the Law of Treaties (VCLT) has very little to say about the process by which lawmaking happens. The VCLT has only one rule of negotiation applicable to inter-se treaties. Pursuant to Article 41 negotiating parties have a duty to notify other parties to the multilateral treaty of their intention to adopt an inter-se modification near the end of the process (according to the VCLT commentary). Some further general guidance is provided by the UNGA 1999 Negotiating Principles, including the duty to negotiate in good faith. But outside these limited parameters, law-making can be conducted in any manner that the state parties see fit and there are a multitude of fora and designs of treaty negotiations.
In recognition of the variety of processes, I want to focus on the early stages of the treaty making endeavor and the contribution that non-state actors (NGOs) can make to this process. In general, the initiation of the legislative process is an unsystematic affair, at the national level and especially at the international level because of the highly decentralized nature of the entire process. During or after the stage in which interested parties begin to identify their desired goals through domestic policy processes, the parties will enter into the pre-negotiation phases of the “if” and “how” of formal negotiations. In the course pre-negotiation the parties will also begin to identify common or separate interests and goals The subsequent negotiation phase consists, of course, of official meetings and informal meetings.
The development of an inter se treaty on cannabis raises novel and potentially highly complex substantive issues on which little exists to guide the policy making process. For example, what should be the scope of the treaty? Should it simply dis-apply the scheduling system of the drug treaties or address other issues such as medical cannabis and the stringent requirement of state medical systems in the Single Convention? In addition, should the treaty be broadly drafted to allow states maximum autonomy to regulate cannabis according to domestic preferences? Or should it include some international controls and commitments? And if so what? Should the treaty include commitments on public education? Protection of youth? Should it be drafted as a full blown public health regulatory instrument? In addition, there are important issues regarding international trade. Should the treaty authorize international trade in cannabis amongst the parties to the treaty? And, if so, how? What legal mechanisms and controls can be included in the treaty to assure other states that States moving outside the current legal regime will continue to honor other states’ domestic prohibition of cannabis? Whether or not the treaty incorporates an international trade regime, what mechanisms can be included in the treaty to control potential diversion of cannabis into illegal international channels? These are just a few of the myriad of substantive issues that will confront negotiators?
In addition to complex substantive issues, there are a host of legal procedural mechanisms to be considered. For example, should there be duties of international cooperation and information sharing to guide future policy development, and if so what? Should the treaty allow for reservations? Should it be open-ended to allow other states to join the instrument as their domestic public policy environments evolve?
Clearly the elaboration of an inter se treaty on cannabis raises novel and potentially highly complex substantive and, procedural issues on which little exists to guide the policy making process. The lack of information on these issues could be a major barrier to policy development and treaty codification,
but NGOS can help fill this vacuum
NGOS are an important and even central component of most treaty-making processes today, both inside and outside the UN system. As Raustalia has observed, their participation yields political, technical and informational benefits for states and participation can be structured to secure these benefits, while maintaining real limits on NGO activities and power.
As a former legal adviser at WHO, I have been involved in several legal processes as the which NGOS made a substantial contribution to honing the treaty-making process early in the process. For example, formal negotiations of the Framework Convention on Tobacco Control were initiated by public hearings in which NGOs participated and provided substantive ideas some of which were debated during the negotiation process. During the negotiations, NGOS continued to provide policy input and advocacy for the treaty. Notably, as states moved closer to fixed positions and final text of treaty , NGO formal participation became increasingly narrowed – consistent with what we see in final stages of other negotiations. Another interesting example is the negotiation of the WHO Global Code of Practice on the International Recruitment of Health Personnel. Although the Health Assembly authorized the negotiations many years earlier, the process remained dormant until it was launched by an initiative spearheaded by Realizing Rights led by Mary Robinson. Realizing Rights convened several sessions of a global policy counsel consisting of key interested states, representatives of international organizations and other NGOs to begin the policy dialogue on the content of the proposed Code. This process served as a kick start to formal negotiations.
The experience of these two , very different processes, points to critical roles that NGOs can play in process of negotiating an inter se treaty.
First, at the early lawmaking stages, major independent NGOs could utilize their convening power to bring together interested parties to discuss contours and policy process for codifying an inter se agreement. This convening rule could play a critical role in galvanizing action on the cannabis treaty. The reality is cannabis reform is highly politically controversial A number of states are moving y ahead domestically, including Canada, the Netherlands, Switzerland, Uruguay, Morocco and Jamaica. Further, a number of other countries are interested in domestic reform, but are deterred by the international legal status of cannabis. All of these states are likely interested in changing legal status of cannabis, but none find taking the political lead feasible or palatable.
In this scenario, the creation of an independent forum organized by NGOs can relieve the political pressure on states to take the lead will providing a platform for all interested states to meet and negotiate
A second key role that NGOs can play is providing policy research at all stages of the lawmaking process, but especially at initiation. One of the prime contributions of NGOS in international lawmaking process is policy research and development. This contribution will be essential in the early stages of the development of an inter se cannabis treaty – when state policy positions are being developed. As is in the case of other areas of legal concern, the drug control field includes, expertly staffed NGOs and academic centers that devote considerable efforts and resources to policy research and have substantial expertise in drug policy. These organizations include, the Transnational Institute, the Washington Office on Latin America, and the Global Drug Policy Observatory at Swansea University in the UK. By involving organizations such a s these in the process of developing a cannabis treaty, governments may be able to gain accurate and creative policy advice from independent sources, advance the efficacy and lower the effective cost of treaty negotiations.
In this process, NGOS and academic centers can potentially also move process along by creating different type of draft documents . The most complicated and diverse stage in the treaty-making process is, of course, that of formulating the instruments. This may involve several sub-stages: preliminary studies, particularly in technically complex fields and initial drafts. NGOs can help at all stages. For example, one such document that NGOs can potentially draft early on is what I call the "Elements" document. In early days of FCTC, the secretariat created a document called Elements of FCTC – that included all of the possible topics that could be included in the treaty.
Such a document could be very helpful to states to kick start discussion of novel inter se agreement. Further on in the process NGOs can also potentially create draft text on direction of states
To sum up. NGOs can play a central role in supporting states and facilitating the development of a new inter se treaty outside of the UN system The legal reforms happening at increasing pace in states today means that there is a window of opportunity to resolve the legal dilemma by adopting a new treaty.
Sovereign states will be the creators of a new inter se treaty, but can do so in a manner strengthened by the contributions of civil society. Ultimately, the benefits that states will accrue from NGO participation will allow them to regulate cannabis with greater efficiency, effectiveness, legality and legitimacy.
Allyn Taylor, University of Washington School of Law (U.S.)
Friday, March 16, 2018
Summary of report Beckley Foundation
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The Beckley report, Licensing and Regulation of the Cannabis Market in England and Wales: Towards a Cost-Benefit Analysis, grasps of the economic consequences of a regulated market, as opposed to the current prohibitionist model. This is essential for evaluating the impacts of possible drug policy reform. The report outlines the factors which must be included in further cost-benefit analyses. The report costed 60.000 pounds and 3 years to create. Reliable data was often lacking and more evidence is needed.
One of the key advantages to a cost-benefit analysis is its complete elimination of subjective and emotive processes, which have become an unfortunate mainstay in the drug policy debate - this gives the results an objective credibility.
It is very important to note that by excluding 'internal costs and benefits' the report specifically excludes the reasons why people use cannabis, such as medication, enjoyment and creativity - instead this report takes the perspective of a concerned tax payer, or a budget-focused politician.
An often-used argument surrounding cannabis reform is the concept of the 'gateway effect'; the idea that cannabis use leads to the use of 'harder drugs'. This report not only rejects the idea of a demand side gateway effect (through a thorough assessment of the available data), but also introduces the idea that a regulated market would virtually eliminate another sort of damaging gateway effect, namely the supply-side gateway. This is where social dealers of cannabis come into contact with professional dealers of a larger variety of drugs and thus are more likely to progress to dealing harder drugs.
Another element which has gained much attention in recent history is the mental health costs of cannabis brought about by the increased ratio of THC to CBD. One of the many advantages of a regulated market is that through health-education, labelling and variable tax rates, strains of cannabis with a high CBD ratio can be encouraged, particularly for vulnerable users.
The main conclusion is that there would be a net social benefit to reform of somewhere between 280 and 460 million pounds. This means that even when we ignore the experiential benefits claimed by cannabis users and just focus on the financial effects on society at large, the argument for reform remains robust, compelling and increasingly difficult for policy makers to ignore.
On top of the financial benefit there are of course many other advantages. These include increased respect of human rights, the avoidance of discrimination in the enforcement of prohibition, the minimisation of the blighting effect of a criminal record on a person’s life and the increased accessibility to health information and treatment. The current criminalization of cannabis users sacrifices the credibility of health campaigns. Moreover, based on US evidence it is expected that access to cannabis for teenagers would probably decrease.
Because taxes are a transfer, rather than a net social gain, they are not included in the report’s cost benefit analysis. However, a conservative estimation is made of what the tax revenue might be following reform.
The authors aim to bring the price of cannabis to lower than the illicit price, whilst aiming to keep it high enough to deter the expansion of use due to low price, particularly by the young. This would be achieved by a tax rate of around 70%, which is lower than the 83% on cigarettes and closer to the 72% on high alcohol beer.
The report predicts a small increase in cannabis quantity [+15% - +40%] due to a decreased cannabis price. The price elasticity of cannabis is estimated between [-0.2, -0.7]. The cross-price elasticity is important to consider: will alcohol consumption decrease if the price of cannabis decreases and cannabis consumption increases? According to a study of Clements and Zhao (2005), a4% increase in cannabis consumption would lead to a decrease of alcohol consumption (-1% beer, -2% wine, -4% spirits).
The authors assumed a cap on THC levels of 10% for licensed cannabis. By creating this limitation it leaves higher THC strains of cannabis in the illicit market. It would probably be better to keep all strains of cannabis within the licit market, and use taxation intelligently to make more potentially risky or harmful strains of cannabis less financially attractive. Campaigns could move users away from combining tobacco and cannabis.
The authors estimate that the government would gain in budgetary terms by something around one billion pounds a year, roughly three quarters of which would come from tax revenues rather than expenditure savings. In these times of economic hardship cost-benefit analyses with positive results should surely begin to play a key role in government.
The report
Mark Bryan, Emilia Del Bono, Stephen Pudney, Licensing and Regulation of the Cannabis Market in England and Wales: Towards a Cost-Benefit Analysis, Institute for Social and Economic Research (Iser), University of Essex & Beckley Foundation, September 2013
Fact Sheet: Coca leaf and the UN Drugs Conventions
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1. An ECOSOC mandated study published in 1950 as the Report of the Commission of Enquiry on the Coca Leaf, recommends to suppress “the harmful habit of chewing coca” within a few years;
2. In 1952 the WHO Expert Committee on Drugs Liable to Produce Addiction concluded that “coca chewing comes so close to the characteristics of addiction ... that it must be defined and treated as an addiction” and advised this to the Commission on Narcotic Drugs.
3. Coca, together with cannabis and opium, became one of the main control targets of the 1961 Single Convention on Narcotic Drugs, including special restrictions on cultivation, proscribing the phasing out of traditional use within 25 years and listing the coca leaf as “a substance liable for abuse” in Schedule 1;
4. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances forced states to criminalize coca, under article 3, paragraph 2: “Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law,when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961Convention as amended or the 1971 Convention”, but it also makes an exemption for traditional use; Article 14 states: “Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory”, but then continues saying that the “measures adopted shall respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use”. One official reservation was made, only by Bolivia, upon signing and confirmed upon ratification of this Convention to preserve the right to use coca leaf for traditional purposes.
5. The INCB annual report for 1994 stressed that: “The conflict between the provisions of the 1961 Convention and the views and legislation of countries where the use of the coca leaf is legal should be solved. There is a need to undertake a scientific review to assess the coca-chewing habit and the drinking of coca tea.” A supplement to the 1994 report dedicated one section to ‘Coca leaf: a need to clarify ambiguities’, calling for ”a need to examine the situation regarding State parties to the 1961 Convention that have made reservations under article 49 of that Convention. A true assessment of the habit of coca leaf chewing is urgently called for”.
6. In 1995 the WHO finished “the largest global study on cocaine use”, including one part on the use of coca leaf, concluding that "the use of coca leaves appears to have no negative health effects and has positive therapeutic, sacred and social functions for indigenous Andean populations", apparently one of the reasons the study was obstructed in a peer review process, and never published.
7. In September 2007 the UN adopts the Universal Declaration on the Rights of Indigenous Peoples, reflecting a global commitment to respect cultural traditions and medicinal practices of all indigenous populations. This recognition reflects a clear contradiction in international law regarding the legal status of traditional use of coca.
8. The government of Bolivia proposed to amend the 1961 Single Convention in March 2009, by removing two sub paragraphs of article 49 that bans coca leaf chewing. A US-led coalition presented objections within the 12 months period established by the procedure, and blocked the amendment.
9. In July 2011 Bolivia denounced the 1961 Single Convention, which came into effect in January 2012. Bolivia will reaccede the treaty on the 10 th of January 2013 with a new reservation that will only enter into force if two third of all parties to the Convention do not express objections. Whether Bolivia would decide to still reaccede in the unlikely case that the reservation is not accepted, remains to be seen.
10. In February 2012 Bolivia responded to the INCB annual report for 2011 preface, in which it was accused of threatening the integrity of the entire international drug control regime by using the rarely used but legitimate procedure of treaty denunciation and reaccession with a reservation to defend traditional uses of the coca leaf.
Updated until September 2012
De Nederlandse kabinetsplannen in internationaal perspectief
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Na een lange periode van pragmatisme en gedurfde vernieuwingen van het drugsbeleid, waarmee Nederland ook internationaal een pioniersrol innam, is er – zoals de Commissie Van de Donk constateerde – al jarenlang sprake van beleidsverwaarlozing. Die feitelijke stilstand dreigt met de huidige kabinetsplannen om te slaan naar achteruitgang. Er zijn een aantal goede redenen om daarover ernstig bezorgd te zijn, niet alleen ten behoeve van de verworvenheden hier in Nederland, maar ook bezien vanuit recente internationale ontwikkelingen.
Read more: De Nederlandse kabinetsplannen in internationaal perspectief
Myth 4: Coca and the Environment
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Coca cultivation is devastating the rainforest / Coca is an ideal crop for poor soils in the tropics and will be cultivated everywhere once declared legal
Since at least the 1980s, there has been a consistent effort to link the growing of coca with widespread environmental degradation, baptized recently by the Colombian government as “ecocide”. Others state that "coca is an ideal crop for poor soils in the tropics".
In terms of deforestation of actual primary rainforest, the impact of coca farming has been deliberately exaggerated, with the clear objective of gaining political support for eradication campaigns. Coca is rarely planted in areas of virgin woodland, since this demands a great deal of effort to clear, and leaves stumps and fallen tree-trunks which make harvesting of coca leaves impractical and highly labour intensive. Deforestation figures, not surprisingly, have never been analysed in terms of exactly what type of vegetation has been cleared to plant coca. Coca agriculture is also best organized in individual family units, rather than in large plantations, and this has the effect of dispersing the plots in small fields, which rarely exceed one hectare.
Furthermore, the point needs to be made, and repeated, that coca eradication campaigns have greatly compounded what could have been a relatively containable phenomenon, forcing coca farmers to relocate, clear new areas, and engage in increasingly predatory agricultural practices.
Both manual eradication and aerial glyphosate spraying have the effect of further displacing coca producers and their crops, leading to the clearing and colonization and clearing of new areas. Forced eradication also has the consequence of making agricultural practices more predatory; since quicker yields must be ensured before the eradicators intervene. This leads to excessive stocking of the coca fields, soil depletion, and the need to employ ever-increasing quantities of industrial fertilizers and pesticides. Dlyphosate spraying - the backbone of Plan Colombia - has involved the added environmental cost of destroying all the flora surrounding areas of coca production, as well as a series of knock-on effects on human health.
On the other hand, in order to counter the “ecocide”, the Colombian government – generously funded by US, UN and EU bureaucracies – has engaged in alternative development projects whose consequences, in both social and environmental terms, appear considerably more alarming than the problem they were supposedly designed to solve. In some regions of Colombia, the expansion of mega plantations - like palm oil - has been achieved by means of the violent expulsion of independent coca farmers, a pattern repeated in many other areas of the country. Such policies have produced unimaginable levels of hardship and violence, as well as internal displacement, social “cleansing”, political fragmentation, and land counter-reform.
Further reading: Coca Myths, Drugs & Conflict Debate Papers 17, June 2009
