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High compliance, a lex lata legalization
for the non-medical cannabis industry
How to regulate recreational cannabis in accordance
with the Single Convention on narcotic drugs, 1961
Kenzi Riboulet-Zemouli
March 2022
FAAAT editions
Kenzi Riboulet-Zemouli
First published March 2022
FAAAT editions,
32 rue Vitruve, ℅ ASUD, 75020, Paris, France.
BY-SA 4.0 2022 contents: Kenzi Riboulet-Zemouli; cover p hotos: Maurice Narkozy.
Published in the United States of America by FAAAT editions,
PO box 9853, Washington DC, 20016, United States of America.
Library of Congress Control Number:
2022902549
ISBN 979-10-97087-23-4 (PDF);
ISBN 979-10-97087-24-1 (paperback);
ISBN 979-10-97087-22-7 (spiral bound)
Stable URL: faaat.net/highcompliance
Keywords: Cannabis, international law, treaty interpretation, drug
control, 1961 Single Convention, recreational use, non-medical use, abuse,
compliance, intertemporality, international relations
Suggested reference: Riboulet-Zemouli K. (2022). High compliance, a lex
lata legalization for the non-medical cannabis industry: How to regulate
recreational cannabis in accordance with the Single Convention on
narcotic drugs, 1961. Paris and Washington, DC: FAAAT editions. ISBN:
979-10-97087-23-4 (pdf). faaat.net/highcompliance
2
Kenzi Riboulet-Zemouli
Erratum
[22 May 2022]
After publication, a reader noted an incorrect depiction of the language present in the 2016 United
Nations General Assembly (UNGA) Special Session, on page 116 of the present document.
In the drafting history of the 2016 UNGA Special Session, the inclusion of the term “flexibility” was
not necessarily brought to refer to reforms such as decriminalization and non-medical regulations;
instead, the expression “emerging challenges” was the euphemism used by those countries that
supported an open discussion about such reforms and their possible conflicts with the treaty
system. Ultimately, the delegates agreed on the inclusion of language of a section of the document
titled:
“Operational recommendations on cross-cutting issues in addressing and countering the world drug
problem: evolving reality, trends and existing circumstances, emerging and persistent challenges and
threats, including new psychoactive substances, in conformity with the three international drug
control conventions and other relevant international instruments.” (UNGA, 2016 at 17)
In order to more accurately reflect the UNGA document language, the following sentence (p. 116):
« At the 2016 UNGA Special Session focused on drug policies, all UN Member States agreed that
the three IDCC “allow for sufficient flexibility for States parties to design and implement national
drug policies according to their priorities and needs.”394 »
Should read as follows:
« At the 2016 UNGA Special Session focused on drug policies, all UN Member States agreed that
the three IDCC “allow for sufficient flexibility for States parties to design and implement national
drug policies according to their priorities and needs” while recalling that “emerging and
persistent challenges” were to be addressed “in conformity with the three international drug
control conventions and other relevant international instruments.”394 »
Accordingly, the footnote 394 should read: « UNGA (2016) at 3, 17, supra note 118. See also supra
section “Non-medical use in subsequent practice” in Chapter 4 and notes 266 through 268. »
4
High Compliance, a lex lata legalization for the non-medical cannabis industry
CONTENTS
TABLES & FIGURES 7
ABBREVIATIONS 8
Part I: Acknowledgment
1. INTRODUCTION 11
Wandering histories 12
Legal hermeneutics and the fringe of vagueness 16
Recent History 20
2. APPROACH 25
3. THE INTERNATIONAL LEGAL REGIME FOR NON-MEDICAL CANNABIS 29
Which of the three Conventions? 31
Typology of legal regimes 37
Typology of the Commentary 37
Typology in Article 2 of the Single Convention 39
Typology of uses 40
Article 4(c): two tiers, control & exemption 41
Article 49: transitional exemption 43
Article 2(9): industrial exemption 44
Subparagraph (a): upstream, prevention and harm reduction 46
Subparagraph (b) & Article 20: downstream, statistical reporting 50
Article 28: cultivation 54
Fiber & seed in the intent of the Parties 56
Part II: Resolution
4. THE MEANING OF WORDS: ABUSE, ILL EFFECTS, ADDICTION, MISUSE 63
The term “abuse” in the Conventions 64
The term “misuse” in the Conventions 71
Legal provisions relating to “abuse” 72
5
Kenzi Riboulet-Zemouli
5. THE MEANING OF WORDS: NON-MEDICAL USE 75
Non-medical use in subsequent practice 79
6. ON TIME & INTERTEMPORALITY 83
Article 2(9): voluntarily evolutionary 86
Article 2(9) v. rebus sic stantibus 89
Article 2(9) v. Article 49: non-conflicting exemptions 89
Raison d’être 91
Title 94
A Framework Convention on the Control of Some Medicines 96
7. PROHIBITION, IN THE TEXT? 99
“Prohibition of Cannabis:” intentionally written out 101
The drafters discuss “Cannabis intoxication” 105
Depenalization v. legalization: in the text 106
8. CONCLUSION 109
The international legal regime for non-medical cannabis 111
A standard regime 112
Interpretation of Article 2(9) in the diplomatic arena 114
In dubio mitius 115
Contestation, harm reduction, and pacta sunt servanda 116
Paretho superiority 117
Moving forwards 118
Annexes & index
ANNEX I. Text, context, and use of “abuse” 124
ANNEX II. How are recreational/adult uses referred to in domestic law? 129
ANNEX III. Single Convention, Dos and Don’ts of interpretation 133
INDEX 135
6
High Compliance, a lex lata legalization for the non-medical cannabis industry
TABLES & FIGURES
Tables
Table 1. Provisions of the 1961 Single Convention relevant to Cannabis and its products 35
Table 2. Summary of international legal provisions for medical & non-medical Cannabis 112
Table A1. Comprehensive list of mentions of the term “abuse” in the three international drug control
Conventions 124
Table A2. Terms used to refer to non-medical use in pieces of municipal law from Canada, Jamaica,
Malta, Mexico, South Africa, Uruguay, US. 129
Figures
Figure 1. Presence of the expression “cannabis industry” in English publications, 1800–2019 45
Figure 2. Representation of the vision of the terms “abuse,” “dependence,” and “addiction” by the
Plenipotentiaries in 1961. 67
Figure 3. Number of people with drug use disorders globally, 2006–2019 70
Figure 4. Graphical representation of the “purposes” in the Single Convention 72
Figure 5. Use of the terms “abuse,” “recreational use,” and “non-medical use” in Resolutions
approved by the Commission on narcotic drugs, 2000–2020 78
Figure 6. Graphical representation of the utilitarian object of the Single Convention 94
Figure A1. Use and abuse of the term “abuse” in relation with “drugs” or “substances” in English
publications, 1910-2019. 128
7
Kenzi Riboulet-Zemouli
ABBREVIATIONS
AMA American Medical Association
APA American Psychiatric Association
Single Convention Single Convention on narcotic drugs, 1961 (unamended)
C61 Single Convention on narcotic drugs, 1961, as amended by the 1971 Protocol
C71 Convention on psychotropic substances, 1971
C88 UN Convention against illicit traffic in narcotic drugs and psychotropic substances (1988)
CCD Cannabis-related controlled drug
CND Commission on narcotic drugs
COP Conference of plenipotentiaries
COP61 Conference of plenipotentiaries which concluded the Single Convention
COP71 Conference of plenipotentiaries which concluded the C71
COP72 Conference of plenipotentiaries which concluded the 1971 Protocol (C61)
COP88 Conference of plenipotentiaries which concluded the C88
CRC Convention on the Rights of the Child
∆9-THC see: dronabinol
Dronabinol delta-9-tetrahydrocannabinol (natural and synthetic)
DSM Diagnostic and Statistical Manual of Mental Disorders
ICD International Classification of Diseases/ International Statistical Classification of
Diseases and Related Health Problems
ICJ International Court of Justice
ILC International Law Commission
INCB International Narcotics Control Board
MSP Medical and scientific purposes
OMSP Other than medical and scientific purposes
RAU Recreational use/Adult Use
SUD Substance Use Disorder(s)
THC dronabinol and other tetrahydrocannabinol isomers
UK United Kingdom of Great Britain and Northern Ireland
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNGA United Nations General Assembly
UNODC United Nations Office on Drugs and Crime
US/USA United States of America
USSR Union of Soviet Socialist Republics
WHO World Health Organization
WTO World Trade Organization
8
High Compliance, a lex lata legalization for the non-medical cannabis industry
1. INTRODUCTION
“One hundred years is a very respectable period and enough time has elapsed to demonstrate the
value of our institutions. The international drug control institutions have proven their worth. The licit
control system established by the international drug control treaties has expanded from when it was first
created, managing an ever increasing number of substances and a continuously rising demand for
drugs needed for medical and scientific purposes.”
–Hamid Ghodse, INCB President, Statement at the event marking the centennial
of the International Opium Commission in Shanghai, 2009.1
P hoto:
Maurice Narkozy
CC BY-SA 4.0.
1Ghodse, H., “Annex III: Statement made by Hamid Ghodse, President of the International Narcotics Control Board, on
26 February 2009 at the event marking the centennial of the convening of the International Opium Commission in
Shanghai, China”, In: INCB. (2009), Report of the International Narcotics Control Board for 2008 [E/INCB/2009/1].
United Nations.
11
Kenzi Riboulet-Zemouli
Wandering histories
In order to construe the legal regime for Cannabis today, it is necessary to
deconstruct its past. The history of international laws and norms, a relatively underdeveloped
field, is sometimes characterized by, inter alia, hagiographical tendencies or anachronisms. The
2 3 4
history of the international drug control Conventions (IDCC), considered “one of the oldest
multilateral treaty-based systems in existence,” is not unfamiliar to these tendencies –particularly
5
concerning the Cannabis sativa L. plant and its derivatives. Three treaties, embedded in four legal
instruments, together make the IDCC:
-Single Convention on Narcotic Drugs, as amended by the 1972 Protocol (hereinafter C61):
-(1) “Single Convention on Narcotic Drugs, 1961” (Single Convention)
concluded at New-York in 1961, and
-(2) “Protocol amending the Single Convention on Narcotic Drugs, 1961”
(1972 Protocol) done at Geneva in 1972;
-(3) “Convention on psychotropic substances” (C71), Vienna, 1971; and
-(4) “United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances” (C88), Vienna, 1988.
In recent years, the academic world has witnessed the emergence of new, burgeoning,
transnational historiographies of global drug control that have untapped a genesis of the current
legal framework more complex than what may often be commonly perceived. An unforeseen
6
6An insight to this renewed approach to the history of the early drug treaties and the way the international legal system
unfolded with respect to drugs, and Cannabis drugs in particular, can be found in: Campos, I. (2012), Home Grown:
Marijuana and the Origins of Mexico's War on Drugs, University of North Carolina Press; Collins, J. (2015),
Regulations and prohibitions: Anglo-American relations and international drug control, 1939-1964. PhD thesis,
London School of Economics and Political Science; Collins, J. (2020), “A Brief History of Cannabis and the Drug
Conventions; Symposium on drug decriminalization, legalization, and international law”, AJIL Unbound 114; Collins, J.
(2021), “Evaluating trends and stakeholders in the international drug control regime complex”International Journal of
Drug Policy 90:103060; Colson (2019) supra note 5; Duvall, C. S. (2019), The African Roots of Marijuana, Duke
University Press; Framke, M. (2013), “Internationalizing the Indian War on Opium: colonial policy, the nationalist
movement and the League of Nations”, In: Fischer-Tiné, H. and Tschurenev, J. (Ed.s), A History of Alcohol and Drugs in
Modern South Asia: Intoxicating Affairs (pp. 155–171), Routledge; Gootenberg, P., and Campos, I. (2015), “Toward a
New Drug History of Latin America: A Research Frontier at the Center of Debates”, Hispanic American Historical
5Colson, R. (2019), “Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law”, Journal of
Law and Society 46(S1):73–94, at 73.
4Although the methodological usefulness (or lack thereof) is a vivid topic of debate which adds depth to the
considerations laid out in this essay. For an introduction to that discussion, watch the lecture by Orford, A. (2013),
Histories of International Law and Empire, ESIL Lecture (University Paris 1 Pantheon Sorbonne, 23 January 2013); and
for a critical discussion, see Benton, L. (2019), “Beyond Anachronism: Histories of International Law and Global Legal
Politics”, Journal of the History of International Law 21(1):7–40. Allott, P. (2015), “Interpretation – An Exact Art”, In:
Bianchi, A., Peat, D. and Windsor, M. (Ed.s), Interpretation in International Law (pp. 373–392). Oxford University
Press, at 390–391, and Warren, C. A. (2017), “Henry V, Anachronism, and the History of International Law”, In:
Hutson, L. (Ed), The Oxford Handbook to English Law and Literature, 1500–1700 (pp. 709–727), Oxford University
Press, take insightful steps aside to discuss the place of anachronism in the analyses of international law.
3at 95, in: Rodogno, D., Gauthier, S., and Piana, F. (2013), “What does transnational history tell us about a world with
international organizations?” In: Reinalda, B. (Ed.) Routledge Handbook of International Organization (pp. 94–105).
Routledge.
2at 27–29 in: Lesaffer, R. (2007), “Restricted Access International Law and Its History: the Story of an Unrequited
Love”, In: Craven, M., Fitzmaurice, M., and Vogiatzi, M. (Ed.s), Time, History and International Law (pp. 27–41),
Martinus Nijhoff Publishers; see also: Orford, A. (2017), “International Law and the Limits of History” In: Werner, W.,
de Hoon, M. and Galán, A. (Ed.s), The Law of International Lawyers, Reading Martti Koskenniemi (pp. 297-320),
Cambridge University Press.
12
High Compliance, a lex lata legalization for the non-medical cannabis industry
aspect of this revisited history has been to deepen our awareness of several such commonly shared
misunderstandings about the current Conventions.
But most of the foundational literature –around which scholars and drug policy advocates, as well
as governments and international organizations, have articulated their interpretation of the IDCC–
does not take this transnational history into consideration, and was consequently based on grounds
of an incomplete historical analysis; for John Collins, one of the consequences of these gaps has
been the lack of a
“nuanced account of the emerging state-centric and regional histories of drug control which
challenge the uniform international and regime-oriented teleologies of a US drug control mission.”7
Indeed, much of the historical analyses of international drug control seem to have missed that:
while the United States of America (US/USA) have prominently led international relations in the
last few decades, generally, their actual geopolitical supremacy started fairly late in the 20th
Century, around the end of the cold war. Although they initiated the Shanghai Opium Commission
8
in 1909, they were not leaders in the field of international opium policy, and did not join many of
the pre-world war II drug treaties. With respect to Cannabis, in the first half of the
century, the isolationist US had been a mostly passive observer of the debates at the
League of Nations –the predecessor of the United Nations (UN). Before 1967, the US was not a
9
Party to (i.e. had not joined, signed, or ratified) any international legal instrument which included
provisions on the Cannabis plant or its products. In 1961, during the Conference of
10
Plenipotentiaries (COP) that concluded the Single Convention on narcotic drugs, the members of
the US delegation, led by Harry J. Anslinger, had a weaker voice than they had hoped. The US
10 In fact, there was only one multilateral legal instrument mentioning cannabis at all: the Second International Opium
Convention concluded at Geneva on 19 February 1925 (at 2–4, 13, 24, in: League of Nations (1929) “Second Opium
Conference; Convention, Protocol, Final Act; Signed at Geneva on February 19th 1925”, Treaty Series, 81:319), that the
US never ratified (at 415, in: Leinwand, M.A. (1971), “The International Law of Treaties and United States Legalization
of Marijuana”, Columbia Journal of Transnational Law, 10(2):413–441).
9See for instance Kozma (2011b); and others in supra note 6.
8Klein, P. (2003), “The effect of US predominance on the elaboration of treaty regimes and on the evolution of the law
of treaties”, In: Byers, M. and Nolte, G. (Ed.s), United States Hegemony and the Foundations of International Law (pp.
363–391).Cambridge University Press.
7Collins (2021) at 3, see supra note 6.
Review, 95(1):1–35; Kendell, R: (2003), “Cannabis condemned: the proscription of Indian hemp”, Addiction
98(2):143–151; Kingsberg, M. (2013), Moral nation: Modern Japan and Narcotics in Global History, University of
California Press; Kozma, L. (2011a). “Cannabis Prohibition in Egypt, 1880—1939: From Local Ban to League of Nations
Diplomacy”, Middle Eastern Studies, 47(3):443–460; Kozma, L. (2011b), “The League of Nations and the debate over
cannabis prohibition”, History Compass,9(1):61–70; McAllister, W. B. (2000), Drug Diplomacy in the Twentieth
Century, Routledge; Mills, J. H. (2003), Cannabis Britannica, Empire, trade, and prohibition, Oxford University Press;
Mills, J. H. (2016), “The IHO as Actor: The case of cannabis and the Single Convention on Narcotic Drugs 1961”, Hygiea
Internationalis, 13(1):95–115; Molano Cruz, G. (2017), “A View from the South: The Global Creation of the War on
Drugs”, Contexto Internacional,39(3):633–653; Richardson-Little, N. (2019), “The Drug War in a Land Without
Drugs: East Germany and the Socialist Embrace of International Narcotics Law”, Journal of the History of International
Law,21(2):270–298; Scheerer, S. (1997), “North-American Bias and non American roots of cannabis prohibition”, In:
Böllinger, L. (Ed.), Cannabis Science: From Prohibition to Human Right (pp. 31–36), Peter Lang; Unterman, K.
(2020), “A History of U.S. International Policing” In: Dietrich, C. R. W. (Ed.), A Companion to U.S. Foreign Relations:
Colonial Era to the Present (pp. 528–546), Wiley Press; Windle, J. (2013), “How the East Influenced Drug Prohibition”,
International History Review, 35(5):1185–1199. In addition, the author of the present essay has conducted historical
research (currently in press) on the international discussions, politics, relations, and law related to Cannabis between
1925 and 1961 (understudied period), witnessing first-hand the complexity of the topic, and documenting a forgotten
episode (1935-1938 assessments of medical cannabis preparations) and controversial roles of players like Egypt or the
Office International d’Hygiène Publique (International Office of Public Health).
13
Kenzi Riboulet-Zemouli
disliked the final text of the treaty and put off ratification until 1967 after over 50
11
other countries had already done so. The US federal government lasted three more years in
12
transposing the non-self-executing provisions of the Single Convention into municipal law (i.e.,
domestic law). Yet, the US continues to be considered by many as central in the
13
conclusion of the Single Convention. Collins explains that:
“While the US unquestionably served as a key enforcer from the 1970s onwards, the genesis period of
the conventions was a much more complex story. Without understanding this genesis and
development story from a rigorous historical perspective, international relation theories continually
misinterpret the power dynamics, negotiated outcomes and the foundational premises of the system”
14
Rediscovering these elements suggests that there was a pivotal political moment within the
US, roughly around the turn of the 1960-1970s decade (between the 1967 ratification and
“Richard Nixon’s declaration of a ‘War on Drugs’ in 1971 and the creation of the DEA in 1973”).15
However, internationally, “the country’s shifting attitudes” only started to be felt much later,
around 1980 when the US ratified the 1971 Convention on psychotropic substances (C71). From
16
that point on, an important (and well-documented) soft power was deployed to “internationalize
US policing,” for instance by pressuring countries into “adopting US-style drug-control laws.”17
There is no compelling evidence that this was the case before the 1980s.
The globalization of US drug policy that unfolded since then has been characterized by
an “increasing dominance of law enforcement” which, however, “came chronologically
second and contingent to a regulatory regime whose main purpose was, in the first place, to
establish a licit market.”18
A substantial repositioning happened (paralleled, it should be noted, by broader changes in
international relations ) between the times when the drug control treaties were concluded, (they
19
were “originally intended simply to rationalize international control efforts” and the licit trade in
20
20 McAllister (2000) at 202, see supra note 6.
19 See for instance Elias, T. O. (1992), New horizons in international law (revised and edited by Francis M. Ssekandi -
2nd rev. edition), Martinus Nijhoff Publishers. See also Koskenniemi (2005), infra note 67.
18 Colson (2019) at 79 (supra note 5)
17 Unterman (2020) at 540, see supra note 6; see also at 514, 535–536 in: Boister, N. (2001), Penal aspects of the UN
drug conventions, Kluwer Law International; Nadelmann, E. A. (1990a), “Role of the United States in the International
Enforcement of Criminal Law”, The Harvard International Law Journal, 31(1):37–76. On this particular aspect, Colson
(2019) at 79 (supra note 5) notes: “Eventually, states had little option but to ‘voluntarily’ transplant prohibitionist laws
into their national jurisdiction: [...] sovereign decisions were sometimes imposed through a mix of diplomatic and
political inducements.”
16 McAllister (2000) at 242, see supra note 6.
15 Unterman (2020) at 539, see supra note 6.
14 Collins (2021) at 8, see supra note 6.
13 Specifically with the adoption of the Comprehensive Drug Abuse Prevention and Control Act, 1970 (Leinwand, 1971, at
413n1, 415n10; see supra note 10).
12 ibid. at 215–218. It is not uninteresting to see what countries joined the Single Convention before the US did, on 25
May 1967: Afghanistan, Algeria, Argentina, Benin (Dahomey), Brazil, Byelorussian SSR, Cameroon, Canada, Chad, Ivory
Coast, Cuba, Denmark, Ecuador, Egypt, Ethiopia, Finland, Ghana, Hungary, India, Iraq, Israel, Jamaica, Japan, Jordan,
Kenya, Republic of Korea, Kuwait, Lebanon, Malawi, Mali, Mexico, Morocco, Myanmar (Burma), the Netherlands, New
Zealand, Niger, Pakistan, Panama, Peru, Poland, Senegal, Spain, Sri Lanka, Sweden, Syria, Thailand, Togo, Trinidad and
Tobago, Tunisia, Turkey, Turkmenistan, the UK, Ukrainian SSR, USSR, and Zambia had all ratified the Single
Convention, which entered into force in 1964; see: United Nations. (2021a), “Single Convention on Narcotic Drugs,
1961; New York, 30 March 1961”, In: United Nations Treaty Collection; Chapter VI, Narcotic Drugs and Psychotropic
Substances. United Nations.
11 McAllister (2000) at 204–210, see supra note 6.
14
High Compliance, a lex lata legalization for the non-medical cannabis industry
medical drugs) prior to the “declaration of war” in 1971, and today’s common understanding of
these treaties as drug prohibition (nay war on drugs)instruments.
This shift took the form of a theoretical and teleological change in the
hermeneutics of the IDCC… but not in an alteration of the normative framework per se:the
21 22
Conventions have not changed, it is how we interpret these Conventions when
implementing them that has changed –under the influence of US efforts.
As Colson rightfully puts it: the rules as we perceive them today “are founded in dogma that
hides from us their contingent nature.”23
23 Colson (2019) at 74–75 (supra note 5)
22 This is true at least for C61 and C71, both chronologically prior to the actual unfolding of the “war on drugs” policy, and
importantly anchored in a then-already old-fashioned approach to drug control (see McAllister, 2000, supra note 6).
21 George, T. (2020), “Hermeneutics”, Stanford Encyclopedia of Philosophy, defines hermeneutics as “the study of
interpretation. [...] Traditionally, disciplines that rely on hermeneutics include theology, especially Biblical studies,
jurisprudence, and medicine, as well as some of the human sciences, social sciences, and humanities.”
15
Kenzi Riboulet-Zemouli
Legal hermeneutics and the fringe of vagueness
This essay shows that this shift of the main interpretive scheme of the Conventions
(from control treaties to prohibition treaties) at times conflicts with the letter of the
treaties, leading to absurd or unreasonable conclusions. It accounts in large part for
increased reliance on the subsequent practice of the large number of State Parties, those that have
come to align with the prohibitionist agenda; but such a basis to address textual norms is hardly
compelling. As René Provost rightfully noted:
24
“an opinion may be neither compelling nor authoritative and yet still qualify as a legal interpretation.
Once interpretation moves beyond the rarefied judicial atmosphere, it becomes a way
of engaging with others much more than a basis for an unassailable conclusion.”25
The treaties have become an easy tool used to spread prohibitionist policy objectives, for countries
that had this agenda (the US in particular). And that has been incorporated into foundational
scholarly literature.
Although surprising, the narrative roamings around control treaties and prohibition
treaties can be seen as reflecting a somehow characteristic nonlinear process of norm evolution:26
“norms derive their validity primarily from the shared intersubjective acceptance of their obligatory
claims by their addressees and, only secondarily, from their factual enforcement.”27
In this context, interpretation –a word with obscure etymology and meaning, tentatively defined
by Robert Kolb as the “intellectual operation by which one seeks to discover the legal meaning of a
provision” – is critically relevant, as it has been in international relations from ancient times to
28
our days in every corner of the globe. Interpretation is an entire part of the “continuum
29
with the making of rules,” after drafting and adoption, but before implementation. Between
30
the law and its implementation, there is always interpretation.
30 Focarelli, C. (2012), International Law as a Social Construct; The Struggle for Global Justice, Oxford University
Press, at 80.
29 Gardiner, R. K. (2008), Treaty interpretation, Oxford University Press, at 54–55; Kolb (2006) at 32–40 (supra note
28); Korhonen, O. and Selkälä, T. (2016), “Theorizing responsibility”, In: Orford, A. and Hoffmann, F. (Ed.s), The
Oxford Handbook of the Theory of International Law (pp. 844–861), Oxford University Press, at 847-848; Merkouris,
P. (2015), “(Inter)Temporal Considerations in the Interpretative Process of the VCLT: Do Treaties Endure, Perdure or
Exdure?”, In: Ambrus. M. and Wessel. R.A. (Ed.s), Netherlands Yearbook of International Law 2014; Between
Pragmatism and Predictability: Temporariness in International Law (pp. 121–156), Asser Press; Özsu, U. (2012),
“Ottoman Empire”, In: Fassbender, B. and Peters, A. (Ed.s), The Oxford Handbook of the History of International Law
(pp. 429–447), Oxford University Press.
28 Kolb, R. (2016), The Law of Treaties, Edward Elgar Publishing, at 128; see also: Kolb, R. (2006), Interprétation et
création du droit international. Esquisses d’une herméneutique juridique moderne pour le droit international public,
Éditions Bruylant/Éditions de l’Université de Bruxelles, at 24–28.
27 Deitelhoff, N., & Zimmermann, L. (2020), “Things We Lost in the Fire: How Different Types of Contestation Affect
the Robustness of International Norms”, International Studies Review, 22(1):51–76, at 53
26 Krook, M. L. and True, J. (2010), “Rethinking the life cycles of international norms: The United Nations and the
global promotion of gender equality”, European Journal of International Relations 18(1):103–127, at 122–124.
25 Provost, R. (2015), “Interpretation in International Law as a Transcultural Project”, In: Bianchi, A., Peat, D. and
Windsor, M. (Ed.s), Interpretation in International Law (pp. 290–308),Oxford University Press, at 302.
24 Subsequent practice is usually only considered only as contextual interpretive elements (see Crawford, J. (2012),
Brownlie’s Principles of Public International Law (8th edition), Oxford University Press, at 365–369) but “textual
language should still be the fundamental basis for interpretation” (Lo, C. (2017), Treaty Interpretation Under the
Vienna Convention on the Law of Treaties; A New Round of Codification, Springer Nature, at 210).
16
High Compliance, a lex lata legalization for the non-medical cannabis industry
This continuous process of interpretation is generally fueled by what H. L. A. Hart termed
the “fringe of vagueness or ‘open texture’”inherent to all rules, but more clearly even for
31
written rules such as treaties: the malleability and fragility of talks and consensus from the past,
put into black and white letters at that time, render the hermeneutics of any written rule a much
necessary “day-to-day work.”32
Because international law is written by many diverse hands, it tends to settle on
least-common-denominator and often uses “imaginative and subtle drafting to bridge the gap
33
between opposing interests.” This is what generates treaty norms tainted not only by
34
“imprecision” or an “abstract, ambiguous nature,” but also sometimes even by mistakes, making
35 36
hermeneutics vital to any attempt of reaching the shared intersubjective acceptance that makes
them valid.37
This is also why, in interpreting international law like the IDCC, like any other rule, “[a]ny
attempt to come up with a definite statement of the law would be futile.”38
The rules enshrined in the IDCC were particularly not immune from flaws in their
drafting. The text of the Single Convention originates in an acrobatic merger of “six treaties
39
concluded between the years 1912 and 1936 [...] to which were added three more in the postwar
period” all of these being notably “shrouded in ambiguity in order to guarantee both their
40
acceptance by, and their application in, states with very different legal cultures.” Adolf Lande, an
41
41 Colson (2019) at 77, supra note 5.
40 Lande (1962) at 776, 778, supra note 39. See also United Nations (1948), Economic and Social Council Resolution
159 II D (VIII), Simplification of existing international instruments on narcotic drugs (E/RES/1948/159(VII)IID);
United Nations (1964a), United Nations Conference for the adoption of a Single Convention on Narcotic Drugs, New
York, 24 January - 25 March 1961; Official Records, Volume I, [E/CONF.34/24], at 20; UN Division of Narcotic
Drugs (1966), “Twenty years of narcotics control under the United Nations”, Bulletin on Narcotics, 18(1):1–60, at 59.
39 Boister, N. (1996), “The international legal regulation of drug production, distribution and consumption”, The
Comparative and International Law Journal of Southern Africa, 29(1):1–15; Boister, N. (1997), “The historical
development of international legal measures to suppress illicit drug trafficking”, The Comparative and International
Law Journal of Southern Africa, 30(1):1–21; Boister, N. (1998a), The suppression of illicit drugs through international
law (Vol. 1), University of Nottingham, at 28, 110–120, 132–135, 160–164; Boister (2001; supra note 17) at 13–17; Colson
(2019), supra note 5; Lande, A. (1962), “The Single Convention on Narcotic Drugs, 1961”, International Organization,
16(4):776–797, at 787–794.
38 Waibel, M. (2011), “Demystifying the Art of Interpretation”, European Journal of International Law, 22(2):571–588,
at 576.
37 Johnstone, I. (1991), “Treaty Interpretation: The Authority of Interpretive Communities”, Michigan Journal of
International Law,12(2):371–419, at 419; Oppenheim, L. (1921) “The Future of International Law” In: Pamphlet
Series of the Carnegie Endowment for International Pease, 39, Oxford at the Clarendon Press, at 27–30, 35–40; Provost
(2015), supra note 25.
36 Allott (2015) at 380-381, see supra note 4.
35 O’Mahoney, J. (2014), “Rule tensions and the dynamics of institutional change: From 'to the victor go the spoils' to
the Stimson Doctrine”, European Journal of International Relations 20(3):834–857, at 839. See also: Allott (2015) at
376–377 (supra note 4); d’Amato, A. (1993). “Purposeful Ambiguity as International Legal Strategy: The Two China
Problem”, in: Makarczyk, J. (Ed.), Theory of International Law at the Threshold of the 21st Century; Essays in honour
of Krzysztof Skubiszewski (pp. 109-121), Kluwer Law International, at 109–110; van Damme, I. (2009), Treaty
Interpretation by the WTO Appellate Body, Oxford University Press, at 112.
34 Aust, A. (2012), Handbook of International Law (Second edition), Cambridge University Press, at 83.
33 Chayes A. and Chayes A. H. (1993), “On compliance”, International Organization, 47(2):175–205, at 177–180, 195.
32 Kolb (2016) at 128 (supra note 28).
31 Hart, H. L. A. (1994), The Concept of Law (2nd edition), Oxford at the Clarendon Press, at 123–154.
17
Kenzi Riboulet-Zemouli
eyewitness of the 13 years of negotiations of the Single Convention, deemed that such a textual
42 43
imprecision in the Convention was “unavoidable in a work which requires the consent of
numerous states of different legal, administrative, social, and cultural backgrounds.”
44
Textual vagueness, forgotten fragile consensus from the past, “reversed historicization” of
the US-led drug war era onto the genesis of the IDCC, changing States and evolving States’
45
interests. All these granularities seem to be smoothed out when one evokes “the prohibition
treaties.” Yet, nowadays this is the main and mainstream understanding of the IDCC. Such a
conflation between the texts of the drug control treaties and the political atmosphere
of prohibitionism that prevailed decades after their conclusion is overwhelming and
transversal –almost dogmatic– across continents, stakeholders, and opinions. And this, in
apparent contradiction with the fact that different interpretive agents are generally “influenced by
their national idiosyncrasies in the interpretation of enactments, and dependent on the method of
their school of law.”46
Axiomatic but mainstream, this cognitive frame of a treaty-mandated prohibition,
blurring the line between treaty and politics, is the ground in which the majority of epistemic
communities that gravitate around the IDCC (let alone its core interpretive community, the three
47
Vienna-based treaty-mandated bodies ) have grown their roots.
48
The recently-rediscovered legal history of the IDCC (complex, transnational, and much
closer to provisions on trade aimed at preventing a new “opium war” than to a prohibition or a “war
on drugs”) questions that classical cognitive frame; it challenges decision-makers, bureaucrats,
49
49 Focarelli (2012) at 80–82, supra note 30; Schachter, O. (1991), International Law in Theory and Practice, Martinus
Nijhoff Publishers, at 18–23; Wählisch, M. (2015), “Cognitive Frames of Interpretation in International Law”, In:
Bianchi, A., Peat, D., and Windsor, M. (Ed.s), Interpretation in International Law (pp. 331–350). Oxford University
Press.
48 INCB, CND, and UNODC are three treaty-mandated bodies headquartered in Vienna, Austria; the fourth one, WHO, is
located in Geneva, Switzerland. The three Vienna-based bodies arguably constitute the core “interpretive community” of
the IDCC. The term was coined by Ian Johnstone in the context of international law and relations, after Stanley Fish.
Johnstone explains that the concept is better defined “in terms of its function in interpretive practice” (Johnstone, 1991 at
376; see supra note 37) and is “constituted by a set of conventions and institutional practices that structure the
interpretive process” (ibid. at 372). Interpretive communities reflect “the power of institutional settings, within which
assumptions and beliefs count as established facts” (ibid. at 374). See also: Ege, J. and Bauer, M.W. (2013).
“International bureaucracies from a Public Administration and International Relations perspective” In: Reinalda, B.
(Ed.) Routledge Handbook of International Organization (pp. 135–148), Routledge, at 140–142. In this regard, this
concept should be distinguished from the various epistemic communities, diverse networks of knowledge-based experts,
reformists or not, which can sometimes flirt with and within the interpretive community.
47 Epistemic communities in this context can be sketched as social groups of professionals and academics that shape the
discursive policies of international law (see Bianchi, A. (2019), “Epistemic communities”, In: d’Aspermont, J. and
Singh, S. (Ed.s), Concepts for International Law: Contributions to Disciplinary Thought (pp. 251–266), Edward Elgar
Publishing, at 265; Haas, P.M. (1992) “Introduction: epistemic communities and international policy coordination”,
International Organization, 46(1):1–35, at 3).
46 Oppenheim (1921) at 36, supra note 37.
45 Collins (2021) at 2, supra note 6.
44 Lande (1962) at 796, supra note 39.
43 McAllister (2000) at 204, see supra note 6.
42 Adolf Lande (1905-1978), Austrian-Swiss national, was deputy Executive Secretary of the 1961 Conference of
Plenipotentiaries that adopted the Single Convention (UN, 1964a at xviii; supra note 40) and main author of both
Commentaries on the Single Convention and the C71. He was also deeply involved in drafting C61 & C71 (Bayer, I.
(1989), Development of the Convention on Psychotropic Substances, 1971 [Unpublished manuscript], at 9). Long-time
UN civil servant at the core of the nascent drug control apparatus (he held positions at the the Permanent Central Opium
Board and the Drug Supervisory Body, former bodies eventually merged onto the current INCB). He also worked for the
US government and as a consultant for the pharmaceutical industry (McAllister, 2000, at 225, 232; see supra note 6).
18
High Compliance, a lex lata legalization for the non-medical cannabis industry
scholars, activists, and the epistemic communities they form part of, as unbiased interpretive
agents. Critically, it also influences today’s interpretations, insofar it disputes assumptions about
international relations and dynamics contemporaneous to the conclusion of the Conventions, thus
enabling, at last, an analysis of their text as (or at least closer to) originally intended –not as
marketed by some governments in the last few decades.
This new look at the past, its impact on how we see the present, and possibly
how we can reach a shared acceptance of the treaties to imagine a future of peace and
stability –where treaties can make sense for everyone– is timely.
19
Kenzi Riboulet-Zemouli
Recent History
Deitelhoff and Zimmermann suggest that norms “only become visible when they are violated.”50
Arguably, in this regard, the normative aspect of the dogma of the IDCC interpreted as a global
drug prohibition regime became pellucid to the international community in relation with
51
Cannabis in early 2013, after Uruguay (a State Party to all three IDCC) allegedly
overruled the norm of global prohibition when its parliament approved domestic
reforms “legalizing” the Cannabis plant and its products, not only “hemp” and medicines,
but also for the purposes commonly referred to as recreational or adult uses (RAU).52
From its headquarters in Vienna, Austria, the International Narcotics Control Board (INCB)
labeled Uruguay as an outsider to the international community: Its then-President called
53 54
the country a “pirate” for “deciding neither to withdraw from the Convention, nor to respect it”55
while pledging to the monolithic interpretation of the IDCC as prohibition instruments.56
In 2018, when discussing a similar “legalization of recreational cannabis,” a report of the
Canadian Standing Senate Committee on Foreign Affairs verbalized that countries “signatories to
[the IDCC] are committed to prohibiting the production, sale, distribution and possession of
[...] cannabis” thereby assuming, without elucidating, the legal bounds of such a commitment.
57
The INCB lectured Canada comparably to Uruguay, although with less vitriol.58
58 Walsh and Jelsma (2019, at 268; supra note 57) relate that:
“the INCB accused Canada of having ‘contributed to weakening the international legal drug control framework and
undermining the international rules-based order’. Other than implying that Canada should move to annul its new law, the
Board offered no suggestions as to how Canada might reconcile its decision to regulate cannabis with its international legal
obligations.”
57 Senate of Canada (2018), The Subject Matter of Bill C-45: an act respecting cannabis and to amend the controlled
drugs and substances act, the criminal code and other acts, insofar as it relates to Canada’s international obligations,
at 8. Canada’s status has been theorized by some as the curious concept of “respectful temporary non-compliance”
(Jelsma, M., Boister, N., Bewley-Taylor, D., Fitzmaurice, M., and Walsh, J. (2018), Balancing treaty stability and
change: inter se modification of the UN drug control conventions to facilitate cannabis regulation, Global Drug Policy
Observatory; Walsh, J. and Jelsma, M. (2019), “Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty
System”, Journal of Illicit Economies and Development, 1(3):266–271). On another tone, Canada’s reforms are directly
used as a case study in the discussion of the concept of treaty repudiation in Fleming, S. (2020), “A Political Theory of
Treaty Repudiation”, Journal of Political Philosophy,28(1):3–26.
56 INCB (2003), Report of the International Narcotics Control Board for 2002, [E/INCB/2002/1], at 28–29.
55 Lidón, L. (2013). “ONU: La legalización de la marihuana en Uruguay es una actitud de ‘piratas’”, La Vanguardia, 12
December 2013.
54 Smetana, M. and Onderco, M. (2018), “Bringing the outsiders in: an interactionist perspective on deviance and
normative change in international politics”, Cambridge Review of International Affairs, 31(6):516–536, at 5–7.
53 INCB is the expert “treaty body” ( Kolb, 2016 at 174–175, see supra note 28; UN General Assembly (UNGA) (2019).
Seventy-third session; Agenda item 82; Resolution adopted by the General Assembly on 20 December 2018;
“Subsequent agreements and subsequent practice in relation to the interpretation of treaties” [A/RES/73/202], at 5) to
the IDCC. It is one of the four organs mandated under the IDCC, alongside the Commission on Narcotic Drugs (CND, the
forum of State Parties, see infra note 120), the UN Secretary-General (whose mandate is carried on mostly by the UN
Office on Drugs and Crime, UNODC), and the World Health Organization (WHO).
52 This type of reform is commonly referred to as “cannabis legalization” or “marijuana legalization,” e.g. in: Panicker,
B. (2015), “Legalization of Marijuana and the Conflict with International Drug Control Treaties”, Chicago-Kent Journal
of International and Comparative Law, 16:3–50.
51 The expression is borrowed from Collins (2020) at 280; (2021) at 2 (see supra note 6)
50 Deitelhoff and Zimmermann (2020) at 53, supra note 27.
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High Compliance, a lex lata legalization for the non-medical cannabis industry
The diplomatic answers of Uruguay and Canada to the INCB, fairly similar in substance,
59 60
articulated around questioning “why a certain normative obligation should be upheld” –namely,
61
that of prohibition– implicitly assuming “prohibition” as an untouchable legal keystone.
INCB’s utterance that “the cultivation, manufacture, possession, purchase and sale of
cannabis for nonmedical use [...] would contravene the letter and the spirit and essential objectives
of the international drug control treaties” (emphasis added) is not exclusive to the
62
treaty-monitoring body: it is widely shared by scholars and analysts across the board. But the
63
actual treaty provisions mandating the prohibition of such nonmedical use are never
clearly pointed out (arguably making such a “definite statement of the law” even more futile).
* * *
Robert Kolb highlights that “[a]ny new or unprecedented legal problem questions the text under a
new light” making “new interpretive avenues” necessary, and consequently “implying also a new
‘discovery’ of the norm.” Indeed “[n]orms are dynamic and contested even as they become
64
embedded in institutional practices,” they still undergo:
65
“a constant development in relation to both ‘external’ interactions with other norms, rules and
principles, and ‘internal’ discursive interventions that problematize and (temporarily) fix the
meanings of these norms”66
thereby resolving rule tensions. Surprisingly, however, none of this happened in 2013 or in 2018,
even though the newly questioned historical premises of the treaties were pressing an open-ended
reconsideration of the international drug control legal system. Given the above, it is possible that:
(1) The interpretive limitations of reformist stakeholders have constrained the strategies of
norm contestation and proposals of reform to a mere challenge of the appropriateness and
legitimacy of the IDCC as a “project,” a prohibitionist project, in order to weaken the robustness
67
of the treaties: in this case, “fracturing [the] control system [and] eventual radical alteration
through treaty reform”. Deitelhoff and Zimmermann call this a strategy of “justificatory
68
contestation” or “validity contestation.”69
69 Deitelhoff and Zimmermann (2013), supra note 61; (2020) at 58, supra note 27.
68 Collins (2021) at 2, see supra note 6.
67 Martínez Mitchell, R. (2020), “International Law as Project or System?”, Georgetown Journal of International
Law,51(3):623–689; see also Koskenniemi, M. (2005), The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870-1960, Cambridge University Press.
66 Smetana and Onderco (2018) at 8, supra note 54; see also O’Mahoney (2014), supra note 35; Krook and True (2010),
supra note 26.
65 Krook and True (2010) at 106 (supra note 26).
64 Kolb (2016) at 134–135, see supra note 28.
63 To name but a few: Bayer, I. & Ghodse, H. (1999), “Evolution of international drug control, 1945-1995”, Bulletin on
Narcotics, 51(1&2):1–18; Habibi, R. and Hoffman, S. J. (2018), “Legalizing Cannabis Violates the UN Drug Control
Treaties, But Progressive Countries Like Canada Have Options”, Ottawa Law Review, 49(2):427–459; Sinha, J. (2001),
The history and development of the leading international drug control conventions; prepared for the Senate special
committee on illegal drugs, Library of Parliament, Parliamentary Research Branch, at 2.
62 Something the INCB has been repeating for two decades at least, e.g. INCB (2003) at 28–29, supra note 56.
61 Deitelhoff, N., & Zimmermann, L. (2013). Things we lost in the fire: how different types of contestation affect the
validity of international norms. [PRIF Working Papers, 18], Hessische Stiftung Friedens- und Konfliktforschung, at 5.
60 Walsh and Jelsma (2019), supra note 57. See also: Fultz et al., 2017
59 Uruguay Presidencia (2013), Ley de regulación de cannabis La posición del presidente de JIFE no fue consultada
con otros directivos del organismo, Gobierno de Uruguay.
21
Kenzi Riboulet-Zemouli
(2) These approaches of validity contestation arguably acted as a negative
Ergebnisorientierung (outcome-orientation) for actors defending these reforms: not only policy
70
reform advocates but also State Parties, because “social acceptance of and unconditional deference
to expert knowledge prompt decision-makers’ recourse to epistemic communities’ advice.” This
71
may have quashed the mere incentive of looking into the treaties and the eventuality of relying on
the “art” of interpretation to “excuse or justify or extenuate a prima facie case of breach.”
72 73
The ever-increasing and unfolding domestic “cannabis legalization” efforts of our days, that
some see as nearing rebus sic stantibus (the fact that a treaty provision becomes unapplicable due
to a fundamental change in circumstances, and can be terminated), prompt the need for
74
renewed interest in treaty law surrounding Cannabis, its products, and its RAU.
Concurrently, the new look at the history of the IDCC, by challenging premises and cognitive biases
that transcend epistemic communities, invites a re-reading and rediscovery of the text of
the treaties and the context of their conclusion, possibly opening the way to new
“interpretive avenues” –and if not, at least, making sure the map is up-to-date.
In law, as we have seen, various equally-credible interpretations of the same term or
disposition are not only possible, but vital, and possibly even more in international law. Parties
75 76
have to make “a choice which reflects preferences, often lying outside the norm, [...] reasoned and
justified according to legal parameters. Notably, on the basis of interpretation.” From that
77
perspective, an unbiased set of interpretive options from which to choose would be
preferable.
77 d’Argent, P. (2017), “Interpreting International Law” in: International law MOOC, Université Catholique de Louvain.
76 United States of America v. France (1963), “Case concerning the interpretation of the air transport services
agreement between the United States of America and France, signed at Paris on 27 March 1946” (Ago, R., Reuter, P., and
de Vries, H., Arbs.), In: Reports of the International Arbitral Awards,XVI:5–74, at 48.
75 Wählisch (2015) at 332, supra note 49.
74 Crawford (2012) at 378–379, supra note 24; Leinwand (1971) at 433–438 (supra note 10). On rebus sic stantibus and
the IDCC, see also Ghodse (2009) supra note 1.
73 Chayes and Chayes (1993) at 188, see supra note 33.
72 ILC (1967), Yearbook of the International Law Commission 1966; Volume II [A/CN.4/SER.A/1966/Add.1], United
Nations, at 218; Merkouris, P. (2010). “Introduction: Interpretation is a Science, is an Art, is a Science”, In:
Fitzmaurice, M., Elias, O. and Merkouris, P. (Ed.s), Treaty Interpretation and the Vienna Convention on the Law of
Treaties: 30 Years on (pp. 1–17), Martinus Nijhoff Publishers. For a discussion of this concept, see Allott (2015; supra
note 4) and the talk: Ammann, O. (2021), “The Interpretation of Customary International Law: Art or Science?” In:
Panel 3: Interpretation and Sources of International Law beyond Treaties (TRICI-Law), University of Groningen,
Faculty of Law.
71 Bianchi (2019) at 254, also at 263–265 (supra note 47); Haas (1992) supra note 47; Johnstone (1991) at 389–391
(supra note 37); Rodogno et al. (2019) at 96–97 (supra note 3); Ruiz-Fabri, H. (2021). “The Puzzle of Interpretation in
International Law” In: Workshop - Interpretation in International Law: Rules, Content, and Evolution (TRICI-Law).
University of Groningen, Faculty of Law; Waibel, M. (2015), “Interpretive Communities in International Law”, In:
Bianchi, A., Peat, D., and Windsor, M. (Ed.s), Interpretation in International Law (pp. 147–165), Oxford University
Press.
70 Kolb (2006) at 910–919 (supra note 28); Schachter (1991) at 38–39 (supra note 49).
22
High Compliance, a lex lata legalization for the non-medical cannabis industry
This study, by attempting to distance itself from the “orthodoxy of ‘prohibition regime’ theories”78
and its influence on treaty interpretation, and via a reliance on standard interpretive tools, easily
finds a pathway where a “cannabis legalization” in good faith is possible, with
compliance mechanisms which already exist (lex lata). Under the light of the
interpretation presented in this essay, one can find that:
-the drug control conventions are no more than conventions controlling drugs.
-“prohibition” is present marginally as an escape clause of a fairly limited reach.
- all activities involving drugs under control which are not related to the medical and
pharmaceutical or research sectors (i.e., all “other than medical and scientific purposes”)
are actively exempted by precisely-defined provisions.
- the above applies to the Cannabis plant and all of its products under international control
(cannabis, resin, extracts and tinctures) without any kind of specifics of limitation (e.g. THC
threshold or subtypes of uses) whatsoever.
78 Collins (2021), see supra note 6.
23
High Compliance, a lex lata legalization for the non-medical cannabis industry
2. APPROACH
“-Do you admire frankness?
-Yes – within reason.
-Sometimes I’m seized by a raging desire to say everything I think. But I know the world would collapse
completely if people were completely candid.”
–August Strindberg,The Ghost Sonata, 1907.79
P hoto: Maurice Narkozy/CC BY-SA 4.0.
79 Strindberg, A. (1907/2012), The Ghost Sonata (Carlson, K., Scheid, P., and Trebino, Z., Trad.s), at 39.
25
Kenzi Riboulet-Zemouli
This essay consists of a complete review and discussion of the legal arrangements (or lack thereof)
of the IDCC which apply to the cultivation of the Cannabis sativa L. plant and the production,
manufacture, export, import, distribution of, trade in, use, and possession of its derivatives under
international control (Cannabis-related controlled drugs, hereinafter CCD ) used for
80
recreational use/adult use (RAU).
To ascertain this legal regime, the essay adopts a classical, objective, textualist method to
the treaties, reading them as they stand –as Fitzmaurice would put it, “subject to the limitations
81
inherent in the fact that they only contain so many articles, phrases, and words.” The letter of the
82
IDCC is, therefore “the only objective common denominator which can be externally ascertained”83
while it is acknowledged that, as Krook and True put it:
“Norms get constructed and, in many instances, evolve over time (1) in response to debates over their
‘internal’ definition, related to competing meanings of the norm, and (2) in interaction with the
‘external’ normative environment, consisting of other norms that are themselves ‘in process’”84
A priori, the interpretive method laid out in the Vienna Convention on the Law of Treaties (VCLT),
concluded in 1969, is not retroactively applicable to treaties concluded before the VCLT entered
85
into force, in 1980. Yet, the VCLT is often accepted as reflecting fairly (and codifying usefully) a
customary international law which pre-existed its entry into force. In this regard, the
86
International Law Commission (ILC) suggested that the VCLT can be applied “including to treaties
which were concluded before the entry into force of the [VCLT]” and to States not a Party to it.87
Hence this essay, while adopting the textualist method, relies on the sober and flexible normative
guidance provided by the VCLT as a benchmark. This allows interaction with teleological and
88
purposive approaches, anticipating interpretive divergences and issues of intertemporality.
89 90 91
91 Elias, T. O. (1980), “The Doctrine of Intertemporal Law”, American Journal of Int’l Law, 74(2):285–307; Fernández
de Casadevante Romaní, C. (1996), La Interpretación de las Normas Internacionales, Aranzadi, at 225–226.
90 See: Focarelli (2012) at 93–94, 135–136 (supra note 30); Helmersen, S. T. (2013), “Evolutive Treaty Interpretation:
Legality, Semantics and Distinctions”, European Journal of Legal Studies, 6(1):127–148, at 129; ILC (1967; supra note
72) at 218–219; Kolb (2006; supra note 28); Oppenheim (1921) at 36 (supra note 37); Waibel (2011) supra note 38.
89 UNGA (2019) at 2 (supra note 53). See: Gardiner (2008) at 9–10 (supra note 29); Kolb (2006) at 771–773 (note 28).
88 See Kolb (2016) at 128 (supra note 28).
87 ILC (2018), “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries”, In: Report of the International Law Commission Seventieth session (30 April–1 June and
2 July–10 August 2018) [A/73/10] (pp. 11–116), at 19.
86 This is still a topic of debate. While some like Allott (2015; supra note 4) are still unconvinced, there are merits to such
a consideration; see for instance: Aust, A. (2000), Modern Treaty Law and Practice, Cambridge University Press; Aust
(2012 at 83; supra note 34); Gardiner, R. K. (2003), International law, Pearson Education Limited, at 78–92; Gardiner
(2008; supra note 29) at 12–13, 63–64; Kolb (2016) at 128–131 (supra note 28); Schwebel, S. M. (1993). “May
Preparatory Work be Used to Correct Rather than Confirm the ‘Clear’ Meaning of a Treaty Provision”, In: Makarczyk, J.
(Ed.), Theory of International Law at the Threshold of the 21st Century; Essays in honour of Krzysztof Skubiszewski
(pp. 540–548), Kluwer Law Int’l, at 541, 547; Shaw, M. N. (2017), International Law, Cambridge University Press, at
707; UNGA (2019) at 2 (supra note 53); Zemanek, K. (2013). “Introductory note” In: Vienna Convention on the Law of
Treaties, 1969, United Nations Audiovisual Library of International Law, at 2.
85 UN (2005), “Vienna Convention on the Law of Treaties, 1969”, Treaty Series, 1155(18232):331–495, at 12–13.
84 Krook and True (2010) at 105, see supra note 26.
83 Kolb (2016) at 131 (supra note 28).
82 Fitzmaurice, G. G. (1951), “The law and procedure of the International Court of Justice: treaty interpretation and
certain other treaty points”, British Yearbook of International Law, 28:1–28, at 7, 9.
81 On this approach, see: Gardiner (2008) at 63–64 (supra note 29); van Damme (2009) at 111 (supra note 35).
80 CCDs corresponds to a limited set of products and substances which are listed in the Schedules annexed to the C61 and
C71 (regardless of whether they are derived from the Cannabis plant or obtained by chemical synthesis): “cannabis,”
“cannabis resin,” “extracts and tinctures of cannabis,” and “dronabinol” & other THC isomers (see Chapter 3).
26
High Compliance, a lex lata legalization for the non-medical cannabis industry
Noting how “cannabis legalization” was labeled as deviant (and generally because of the
need for inputs from the sphere of sociological sciences in the field of international law ), this
92
essay draws on insights from the interactionist perspective of the sociology of deviance in
international relations and norm dynamics. This field of study would diagnose the discursive
93
approach developed as an “applicatory contestation and affirmation” of the Conventions, where it
is the meaning of the norms that is discussed, as opposed to most literature in the field of drug
policy, articulated around “validity contestation” approaches (see “Recent History” in Chapter 1).
Primary sources are therefore favored for the review of legal provisions (echoing the
method laid down in Article 31(1), VCLT) in Chapter 3 which also precises the scope of the study,
94
and the review of unclear terms (Articles 31(4), and 31(2)a., VCLT) in Chapter 4: chiefly, both rely
on treaty provisions of the Single Convention/C61 (Art. 31(1), (2), and (4), VCLT), C71, and C88
(Art. 31(3)a., VCLT), as well as resolutions and final acts adopted at the four Conferences of
Plenipotentiaries (COP): COP61 which concluded the Single Convention, COP71 which concluded
the C71, COP72 which concluded the amendment to the Single Convention, making it the C61 in
force today, and COP88 which adopted C88 (VCLT Art. 31(2)a.). In addition, the study explored
the four official Commentaries (Art. 31(2)b. and 32, VCLT) as well as first-hand accounts by
95
stakeholders participating in, and travaux préparatoires of the four COPs (VCLT Art. 32).
96
Chapter 5 analyzes the use of terms in subsequent practice in both municipal systems and
internationally (Art. 31(3)b., VCLT), and Chapter 6 discusses questions of intertemporality (Art.
31(3)c., VCLT). Chapter 7 finally addresses the perceived concept of a cannabis-specific prohibition
and discusses the place of the general idea of “prohibition” in the IDCC.
Research for this essay was conducted between 2016 and 2022; it primarily relied on
bibliographical resources from Biblioteca de Catalunya, Universitat de Barcelona, Universitat
Pompeu Fabra, and secondarily from the UN Library in Geneva and Vienna, League of Nations
Archives, Université de Genève, Université de Paris, internet resources, and first-hand experience
of the author and team (acknowledgments infra note 420).
96 French for “preparatory works,” this expression refers to the minutes of the COP and other oral or written statements
exchanged in the process of drafting and concluding a given treaty. On the reliance on the travaux, see Aust (2012) at
87–88 (supra note 34); Gardiner (2008) at 99–108 (supra note 29); Kolb (2016) at 134 (supra note 28); McNair, A. D.
(1961), The Law of Treaties, Oxford at the Clarendon Press, at 411–412; Schwebel (1996), supra note 86.
95 Commentary of the Single Convention: infra note 114; Commentary of the 1972 Protocol amending the Single
Convention: infra note 213; Commentary of the C71: infra note 105; Commentary of the C88: infra note 108. For a
discussion on use of Commentaries, see: Levine, S.J. (2015), “The Law and the ‘Spirit of the Law’ in Legal Ethics”,
Journal of the Professional Lawyer, 1(Touro Law Center Legal Studies Research Paper Series No. 16-01), at 3.
94 op. cit. note 85. See also: Aust (2012) at 83–86, supra note 34.
93 On this, see: Chayes and Chayes (1993; supra note 33); Deitelhoff and Zimmermann (2013; supra note 61); (2020;
supra note 27); Smetana & Onderco (2018; supra note 54); as well as the volume Onderco, M., Wagner, W., and
Werner, W. (Ed.s) (2014), Deviance in International Relations ‘Rogue States’ and International Security, Palgrave
Macmillan.
92 Waibel (2011) at 585, supra note 38.
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3. THE INTERNATIONAL LEGAL REGIME FOR
NON-MEDICAL CANNABIS
“Sometimes the absence of something means that it simply isn’t there.”
–Report of the WTO Appellate Body, 2000 (infra note 118).
P hoto: Maurice Narkozy/CC BY-SA 4.0.
29
Kenzi Riboulet-Zemouli
How is Cannabis and its products subject to international law? As a starter, the broad landscape of
international law must be screened, to identify any unwritten custom or written instruments
applying to Cannabis and its products. There is a strong case to make, after Leinwand, that:
“[t]here are no traditional or customary norms in international law regarding drugs. The
international legal norms that do exist are embodied in international agreements and treaties.”97
Assuming that there is no customary international law –and leaving aside bilateral and regional
98
agreements– a review of legal instruments shows that there is a large number of international
treaties with minor or secondary mentions of, or references to Cannabis:
- Some provide direct, additional, and topic-specific obligations with regards to products and
substances scheduled under the C61 and C71 (“drugs”). This is the case for instance of the
UN Conventions on the Law of the Sea (UNCLOS) or the Convention on the Rights of the
Child (CRC).
- Others may apply indirectly (no direct mention of “drugs”), in specific contexts. For plants
and other drugs present in nature, there are treaties that may enter into play, say the
Convention on Biological Diversity or part of FAO’s International Treaty on Plant Genetic
Resources, which may apply to Cannabis seeds or some farming activities. Other treaties
99
would eventually enter into play in specific contexts, such as the Madrid Agreement
Concerning the International Registration of Marks of 1891 in the case of application for
international trademarks on Cannabis-derived medicines.100
These instruments define neither the “drugs” nor the activities or type of uses targeted. Instead,
directly or indirectly, they defer to what is established elsewhere as “contrary to international
conventions” or otherwise “defined in the relevant international treaties.” This points at the
101
existence of legal instruments that are core to the arrangement of Cannabis-related
international law, by including provisions to which other treaties are referring to.
These core treaties, of course, are the three IDCC. But among the three IDCC Conventions,
only two treaties –C61 and C71– are central, because they list activities contrary to them,
101 Article 27(1)d., UNCLOS, refers to measures necessary for “the suppression of illicit traffic in narcotic drugs or
psychotropic substances” (emphasis supplied) and Article 108, UNCLOS reads:
“Illicit traffic in narcotic drugs or psychotropic substances
1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by
ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or
psychotropic substances may request the cooperation of other States to suppress such traffic.” (emphasis supplied)
These provisions for suppression do not apply to any and all traffic (i.e. trade), but only to what is elsewhere defined as
illicit traffic. See UN (1982), United Nations Convention on the Law of the Sea. Similarly, Article 33, CRC reads:
“States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to
protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international
treaties, and to prevent the use of children in the illicit production and trafficking of such substances.” (emphasis supplied)
Similarly to UNCLOS, these provisions for the protection of children do not apply to any and all uses, but only to
whatuses that are illicit as defined elsewhere. See UN Office of the High Commissioner for Human Rights
(2022), Convention on the Rights of the Child.
100 See for instance the international registration of the trademark Sativex™ in: WIPO IP Portal (2003), “805396 -
SATIVEX”, Madrid Monitor, World Intellectual Property Organization. The “Madrid Agreement” is mentioned here to
refer to the “Madrid System,” indistinctly of the Agreement’s different revisions, amendments, and protocols.
99 Riboulet-Zemouli, K. and Krawitz, M. A. (2021), Voluntary Contribution to INCB Guidelines on Medical Cannabis
– Due Diligence, Good Faith, & Technical Concerns,FAAAT editions.
98 This could call for a study of its own.
97 Leinwand (1971) at 414, supra note 10.
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and define “drugs.” The C61 defines, and has jurisdiction over, the products and molecules called
“narcotic drugs,” and the activities/uses related to them. The C71 defines a distinct set of molecules
called “psychotropic substances,” as well as their related activities and uses, but does not include
plants or plant products. The C88, as its title suggests, adds a layer of rules, but only concerning
102
the “narcotic drugs” and “psychotropic substances” that are defined respectively in C61 and C71.
Which of the three Conventions?
Concerning Cannabis and most of its products, the treaty establishing the core legal framework is
the C61: it contains provisions specific to, and definitions of, the Cannabis plant and some of its
plant parts and products, and it lists some of those in the Schedules annexed to the text of the
Convention. These scheduled products are “cannabis,” “cannabis resin,” and “extracts and tinctures
of cannabis,” all listed in Schedule I. They are therefore legally defined as “narcotic drugs.”
103
In parallel, the C71 lists Cannabis-related products in its Schedules: pure phytocannabinoid
molecules found in Cannabis. These are pure dronabinol (i.e.,delta-9-tetrahydrocannabinol or
∆9-THC) in Schedule II, and other pure tetrahydrocannabinol isomers in Schedule I; accordingly
104
legally defined as “psychotropic substances.”
Although both C61 and C71 affect the same plant genus, they do not overlap: the
provisions of the C71 do not extend to plants containing psychotropic substances, or plant parts
and preparations thereof. Therefore –and contrary to the C61–, C71 applies only to pure
molecular compounds, once they have been separated (isolated) from the plants.105
105 The latter is well established. One thing is that, domestically, State Parties may decide to implement the C71 by going
beyond its provisions and extending control to the plants or parts of plants containing psychotropic substances. But the
C71 is very clear: per se, the Convention does not apply beyond pure molecules, except in very limited contexts. The
discussions during the COP71 were unequivocal, and the Commentary on C71 made it more explicit (UN (1976a),
Commentary on the Convention on Psychotropic Substances [E/CN.7/589], at 3, 25, 385). A direct testimony to the
negotiations, István Bayer (1989 at 23; see supra note 42) confirmed it; more recently, it has been corroborated by the
INCB on various occasions (INCB (2014), Contribution of the International Narcotics Control Board to the high-level
review of the implementation by Member States of the Political Declaration and Plan of Action on International
Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem, at 68; Schappe, H.
(2001), International control of the preparation ‘ayahuasca’ [INCB-PSY 10/01], International Narcotics Control Board)
and further explained by scholars (Tupper, K. and Labate, B. (2012), “Plants, Psychoactive Substances and the
104 Note that “dronabinol” is the international nonproprietary name for ∆9-THC: both plant derived and synthetic (at 6 in:
WHO (1984a), “Prop. INN: List 51”, WHO Chronicle, 38(2); at 4 in: WHO (1984b), “Rec. INN: List 24”, WHO
Chronicle, 38(6))). There are tetrahydrocannabinol isomers other than dronabinol, which are all listed in Schedule I, C71
(UN Secretary-General (2021). The International Drug Control Conventions; Schedules of the Convention on
Psychotropic Substances of 1971, as at 7 December 2021. [ST/CND/1/Add.2/Rev.7], at 4–5). Collectively, all
tetrahydrocannabinol isomers are referred to as “THC.”
103 INCB (2021a). List of Narcotic Drugs Under International Control prepared by the International Narcotics Control
Board, in accordance with the Single Convention on Narcotic Drugs, 1961, and Protocol of 25 March 1972 amending the
Single Convention on Narcotic Drugs, 1961 (Yellow List); 60th edition, revision 1.
102 Most often, nowadays, the term “drugs” is used as an overarching category that refers to both narcotic drugs and
psychotropic substances, meaning, anything under control of either C61 or C71.
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Kenzi Riboulet-Zemouli
The C71 has not been particularly focused on in this essay, since the immense majority of
RAU concerns products of the Cannabis plant rather than pure isolated compounds,
whose RAU is insignificant. The provisions of the C71 would only come into play in the event of a
106
discussion of the legal framework surrounding these two phytocannabinoids in pure form, which
falls outside of the scope of this essay.
Although routinely described as the third treaty of the IDCC, the C88 is not per se a drug
control instrument, but rather, it is “essentially an international criminal law instrument [...]
primarily aimed at combating illicit trafficking of narcotic drugs with instruments of criminal law”
which only comes in support of, and complement to the C61 and C71: While both C61 and C71
107 108
could make sense alone, if there was no other treaty, the C88 would make no sense without the C61
and C71 to which it constantly refers. The C88 is presented in its preamble as a treaty “directed
specifically against illicit traffic and that considers the various aspects of the problem as a whole, in
particular those aspects not envisaged in the existing treaties.” Its Article 25 specifies that “this
Convention shall not derogate from any rights enjoyed or obligations undertaken by Parties [under
the C61 or C71].” Penal sanctions and other measures of repression present in the C88 are
109
therefore not in vacuo: in practice, they refer directly to what C61 and/or C71 define as “illicit
activities,” “activities contrary to the Convention” as well as “abuse,” and “diversion.” From that
perspective, the C88 should be considered in a similar category as treaties such as the
UNCLOS or the CRC, rather than to a core drug control treaty like the C61 and C71
undoubtedly are. Emblematic of this reliance upon C61/C71 provisions is C88’s Article 3(2), which
states:
“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 [C61 or
C71]” (emphasis supplied)
110
It is not “personal consumption” but rather “personal consumption contrary to the provisions of
the C61” that this article targets. Similarly, Article 14(2), C88 requests States to “take appropriate
measures to prevent illicit cultivation of and to eradicate [...] cannabis plants, cultivated illicitly in
110 ibid. at 129. van Kempen and Fedorova (2019a, at 53) discuss it in great detail –see supra note 107.
109 The text of the IDCC as currently in force (with final acts and resolutions from the COPs) can be consulted in:
UNODC (2013), The International Drug Control Conventions: Single Convention on Narcotic Drugs of 1961 as
amended by the 1972 Protocol; Convention on Psychotropic Substances of 1971; United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988; with final acts and resolutions, United Nations,
at 124. “[T]he existing treaties” at the time of conclusion of the C88 refers only to C61 and C71, other multilateral
agreements having been terminated.
108 Boister (2001; supra note 17); UN (1998), Commentary on the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances [E/CN.7/590], at 294–297, 393–396.
107 van Kempen, P. H., and Fedorova, M. (2019a), International Law and Cannabis I; Regulation of Cannabis
Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in
Anti-Drugs Policy, Intersentia, at 51.
106 WHO found “no diversion of the pharmaceutical product for nonmedical purposes and no evidence of abuse” for
plant-derived dronabinol or other THC isomers in pure forms (WHO (2019b), WHO Expert Committee on Drug
Dependence: forty-first report; WHO Technical Report Series, No. 1018, at 45; also at 48, 55).
In addition, non-CCD Cannabis products need to be drawn out of the scope of this essay, in particular plant parts or
products that are not mentioned in the IDCC (e.g. roots) or in their Schedules (e.g. cannabidiol) and who, similarly, are
not characterized by their “recreational use.”
International Narcotics Control Board: The Control of Nature and the Nature of Control”, Human Rights and Drugs,
2(1):17–28).
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its territory” (emphasis added). The need to establish as criminal offenses the possession,
111
purchase, or cultivation of Cannabis and CCDs, as well as the mandate to eradicate Cannabis
plants, depends upon what a Party will consider unlawful or illicit under, or contrary to the
provisions of, the C61.
In addition to this deference to the C61/C71, the penal obligations contained in C88 are
generally largely “open to domestic variation and non-application.” In doing so, the C88 only but
112
reenacts the consensus reached by the Parties in 1961. Indeed this is also the case for the C61: just
like in the C88, and “although formally binding, the penal provisions prove remarkably soft” in
113
the C61 –as explained in the Commentary on the Single Convention,the obligation of the
Parties in terms of criminal justice with regards to the C61 are “rather vague, and
[admit] escape clauses for the benefit of those Governments to which even such vague norms
would be unacceptable.” A well-known example is the fact that the C61 does not call for
114
mandatory punishments in cases of possession of narcotic drugs for personal use.115
Overall, scholars generally coincide in describing the penal aspects of the IDCC as
secondary, flexible, timid. They appear to be fundamentally articulated around breaches and
116
infringements to the establishment of a licit market for medical and scientific purposes, in essence
inherited from previous drug control treaties.
The central focus of the analysis of the international legal framework surrounding the RAU
of Cannabis-related controlled drugs (CCDs), therefore, has to be an analysis of the C61. Any
understanding of the eventual provisions applying to RAU and subsequent obligations for State
116 Boister (1997) at 15 (supra note 39); Colson (2019) at 77–79 (supra note 5); Paoli, L., Greenfield, V.A., and Reuter, P.
(2012), “Change is Possible: The History of the International Drug Control Regime and Implications for Future
Policymaking”, Substance Use & Misuse, 47(8-9):923–935, at 925–927, 931.
115 The Commentary on the Single Convention at 113–114 (supra note 114) explains that the possession of drugs for
“non-medical consumption or industrial use is exceptionally permitted by the Single Convention” and that countries can
“legally authorize” it, but, beyond and distinct from this exceptional authorization (reviewed in this essay), it is worth
signaling that an important scholarship has developed around the analysis of the legal provisions applying to personal
possession and use, almost since the Single Convention was adopted (see at 597 in: Lande, A. (1976). “The Gentlemen's
Club. International Control of Drugs and Alcohol. by Kettil Bruun; Lynn Pan; Ingemar Rexed”, American Journal of
International Law, 70(3):597–598). From these studies, in particular, the constitutional principles and rules inherent to
different domestic legal systems are shown to prevail, in particular regarding the human right to privacy or other aspects
related to personal use and consumption. For instance:
“Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988
relieves State parties from the Article's obligation to criminalize drug possession and cultivation for "personal consumption'
when doing so would conflict with their constitution or basic concepts of their legal system. Spain relied on Article 3(2) in its
decision not to criminalize conduct involving personal consumption” (Marks, A. (2019), “Defining ‘personal consumption’ in
drug legislation and Spanish cannabis clubs”, International and Comparative Law Quarterly, 68(1):193–223).
Additionally, it was shown that “the burden of proof is on the State to justify criminalisation” of these activities (see
Barrett, D. (2011), Is the decriminalisation of possession of controlled substances for personal use consistent with
international law?, International Centre on Human Rights and Drug Policy & International Harm Reduction
Association).
114 UN (1973), Commentary on the Single Convention on Narcotic Drugs, 1961 [United Nations publication Sales No.
E.73.XI.1], at 425.
113 Colson (2019) at 81 (supra note 5). For further discussion on the weakness of the penal provisions included in the
Single Convention/C61, see Boister (1996; 1997), supra note 39; and Anslinger, H. J. (1958), “Report on Progress in
drafting the ‘Single Convention,’ a Proposed Codification of the Multilateral Treaty Law on Narcotic Drugs”, Food Drug
Cosmetic Law Journal, 13(11):629–697, at 696.
112 Boister (2001) at 519, see supra note 17.
111 UNODC (2013) at 149; supra note 109.
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Parties under the IDCC (or indeed any other treaty) first requires finding out what is licit and what
is not under the C61.117
In this respect, the task starts less easily than one could anticipate, given that the words
“recreational use” or “adult use” are never mentioned in the C61 or indeed in the C71 or
C88. Insofar “the absence of something [sometimes] means that it simply isn’t there,” the
118
apparent unanimity around these treaties establishing a prohibition of RAU suggests that these
concepts should be there, somewhere. At first sight, it is unclear whether another term serves as a
straightforward synonym, and if so, which one. In order to find out where the terminology applying
to the production of Cannabis and use of CCDs for RAU lie, this chapter comprehensively lists
(Table 1) and discusses the legal provisions applying to Cannabis and CCDs in the C61.
118 WTO (2000). Canada – Term of Patent Protection: Report of the Appellate Body [WT/DS170/AB/R], at 24. Cited in
Gardiner (2008; supra note 29) and van Damme (2009; supra note 35). Note that CND and UNGA, in their
documentation, routinely mentions the term “recreational,” but only in reference to sports, cultural events, and other
activities presented as alternatives to the actual RAU of drugs (e.g. at 111 in: UN (1987a), Report of the International
Conference on Drug Abuse and Illicit Trafficking, Vienna, 17-26 June 1987 [A/CONF.133/12]; or at 5 in: UNGA (2016),
Thirtieth special session; Agenda item 8; “Our joint commitment to effectively addressing and countering the world
drug problem”; 19 April 2016 [A/RES/S-30/1]).
117 C71 and C88 might however enter into play as a mean of interpretation, e.g. as suggested by Article 31(2), VCLT.
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Table 1. Provisions of the 1961 Single Convention relevant to Cannabis and its products
Section
Art.
Text of the Single Convention of 1961 as amended in 1972
Definitions
1(1)b.
“‘Cannabis’ means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin
has not been extracted, by whatever name they may be designated.”
1(1)d.
“‘Cannabis resin’ means the separated resin, whether crude or purified, obtained from the cannabis plant.”
Scope
2(1)
“Except as to measures of control which are limited to specified drugs, the drugs in Schedule I are subject to all measures of control applicable to drugs under this
Convention and in particular to those prescribed in article 4 (c), 19, 20, 21, 29, 30, 31, 32, 33, 34 and 37.”
2(6)
“In addition to the measures of control applicable to all drugs in Schedule I, … cannabis [is subject to the provisions of] article 28.”
2(9)
“Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes,
provided that:
a. They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects (article 3,
paragraph 3) and that the harmful substances cannot in practice be recovered; and
b. They include in the statistical information (article 20) furnished by them the amount of each drug so used.”
4(c)
“The parties shall take such legislative and administrative measures as may be necessary:
(a) To give effect to and carry out the provisions of this Convention within their own territories;
(b) To co-operate with other States in the execution of the provisions of this Convention; and
(c) Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of,
trade in, use and possession of drugs.”
Control
measures
19
Requirements on “Estimates of drug requirements”
20
Requirements on “Statistical returns to be furnished to the Board”
21
Requirements on the “Limitation of manufacture and importation”
23
Requirements related to “National Opium Agencies”, also applying for the cultivation of the Cannabis plant and the production of cannabis and cannabis resin for
medical and scientific purposes, as per Article 28(1).
28
“1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided
in article 23 respecting the control of the opium poppy.
2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.
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3. 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.”
29
Measures of control of “Manufacture”
30
Measures of control of “Trade and distribution”
31
“Special provisions relating to international trade”
32
“Special provisions concerning the carriage of drugs in first-aid kits of ships or aircraft engaged in international traffic”
33
Requirements on the “Possession of drugs”
34
“Measures of supervision and inspection”
37
Requirements related to “Seizure and confiscation”
Transitional
reservations
49
“1. A Party may at the time of signature, ratification or accession reserve the right to permit temporarily in any one of its territories: …
(d) The use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes; and
(e) The production and manufacture of and trade in the drugs referred to under … (d) for the purposes mentioned therein.
2. The reservations under paragraph 1 shall be subject to the following restrictions:
(a) The activities mentioned in paragraph 1 may be authorized only to the extent that they were traditional in the territories in respect of which the reservation is
made, and were there permitted on 1 January 1961;
(b) No export of the drugs referred to in paragraph 1 for the purposes mentioned therein may be permitted to a non-party or to a territory to which this
Convention does not apply under article 42; […]
(f) The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from
the coming into force of this Convention as provided in paragraph 1 of article 41;
(g) The production and manufacture of and trade in the drugs referred to in paragraph 1 for any of the uses mentioned therein must be reduced and finally
abolished simultaneously with the reduction and abolition of such uses.
3. A Party making a reservation under paragraph 1 shall:
(a) Include in the annual report to be furnished to the Secretary-General, in accordance with article 18, paragraph 1 (a), an account of the progress made in the
preceding year towards the abolition of the use, production, manufacture or trade referred to under paragraph l; and
(b) Furnish to the Board separate estimates (article 19) and statistical returns (article 20) in respect of the reserved activities in the manner and form prescribed
by the Board. [...]” [Note: Non-relevant paragraphs have been omitted.]
Key:
Provision applies to cannabis for all purposes.
Provision applies to cannabis for medical and scientific purposes.
Provision applies to cannabis for other than medical and scientific purposes.
Provision does not apply to cannabis (plant & controlled drugs) since 2021 (Schedule IV withdrawal).
Provision does not apply to cannabis (plant & controlled drugs) since 2000 (expiration of the provision).
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Typology of legal regimes
The prevailing provisions for Cannabis and CCDs are spread out throughout the
Single Convention, and can be presented in different manners.
Typology of the Commentary
The Commentary on the Single Convention lists, over two pages, the “various regimes which [the
Convention] provides” including the ones for Cannabis and CCDs. Reproduced below, that
119
section of the Commentary provides a quasi-comprehensive range of variations in the legal
framework applying to Cannabis and some of its products under the Single Convention. Although
almost all eventualities are enumerated there –including the legal regime that would apply if some
“cannabis preparations” were listed in Schedule III (a situation that has not happened to date)–
one element was not foreseen: the withdrawal of “cannabis and cannabis resin” from
Schedule IV, C61, which effectively happened, and took legal effect early 2021.120
Therefore, the eventual specificities of the legal regime prevailing after such withdrawal are missing
from that section of the Commentary. Nonetheless, critical information is provided to understand
the basis of the legal arrangements of Schedule I, which “constitute the standard regime
under the Single Convention” and currently as well the regime of control prevailing for CCDs
121
under the C61.
“(1) The regime applicable to drugs in Schedule I with the exception of opium, the coca leaf and
extracts and tinctures of cannabis in territories in respect of which they have been made the object of
a reservation under article 49 by the Parties concerned […]
(2) The regime applicable to preparations, other than preparations in Schedule III, of the drugs
subject to the regime mentioned under (1).
[…]
121 As explained in the Commentary on the Single Convention at 51; supra note 114.
120 On descheduling generally: The treaty-related process is as follows: 53 State Parties seat at the CND, on a rotating
basis. These CND members have the options to amend the content of the Schedules annexed to the C61, on a yearly basis
at CND annual meetings, pursuant to Article 3, C61 (Commentary on the Single Convention at 74–107, supra note 114;
Riboulet-Zemouli et al. (2021) at 27–32, infra note 147; Riboulet-Zemouli, K. and Krawitz, M. A. (2022), “WHO’s first
scientific review of medicinal Cannabis: from global struggle to patient implications”, Drugs, Habits and Social Policy,
published online ahead of print 15 March 2022) –the procedure is mimicked in the C71. The provision of flexibility in a
treaty via a delegation of the power to amend it to a reduced number of Parties is discussed briefly by McNair (1961 at
748n2; supra note 96). As summed up in the Commentary on the Single Convention (29; supra note 114):
“The Schedules may be amended in a different way than the other parts of the Single Convention. A special procedure, that of
article 3, is provided for their revision. Amendments of the Schedules, but not that of other sections of the Single Convention,
can become binding on Parties to that treaty without their express or implied consent.”
On descheduling “cannabis and cannabis resin” from Schedule IV (whose implications are discussed in Chapter 7): The
CND adopted Decision 63/17 on 2 December 2020, by which it “decided by a roll-call vote of 27 votes to 25, with 1
abstention, to delete cannabis and cannabis resin from Schedule IV of the Single Convention…” (CND (2020), “Decision
63/17: Deletion of cannabis and cannabis resin from Schedule IV of the Single Convention on Narcotic Drugs of 1961 as
amended by the 1972 Protocol” In: Commission on narcotic drugs; Report on the reconvened sixty-third session (2–4
December 2020) [E/2020/28/Add.1], United Nations, at 5). The Decision definitively entered into force in April 2021
(Riboulet-Zemouli and Krawitz, 2022; Riboulet-Zemouli et al., 2021, infra note 147). Previously, “cannabis and cannabis
resin” had been listed in Schedule IV additionally to Schedule I, while “extracts and tinctures of cannabis” were only
listed in Schedule I (and have not been affected by Decision 63/17).
119 Commentary on the Single Convention at 49–51; supra note 114.
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(7) The regime applicable to extracts and tinctures of cannabis in territories in respect of which they
have been made the object of a reservation under article 49 by the Parties concerned.
(8) The regime applicable to preparations, other than those included in Schedule III (if any) of such
extracts and tinctures
[…]
(13) The regime applicable to cannabis and cannabis resin in territories in respect of which they have
not been made the object of a reservation under article 49 by the Parties concerned.
(14) The regime applicable to preparations, other than preparations in Schedule III (if any) of the
cannabis and cannabis resin referred to under (13).
(15) The regime applicable to cannabis and cannabis resin in territories in respect of which they have
been made the object of a reservation under article 49 by the Parties concerned.
(16) The regime applicable to preparations, other than preparations in Schedule III if any, of the
cannabis and cannabis resin mentioned in (15) above.
(19) The regime applicable to cannabis leaves.
[…]
(22) The regime applicable to the cannabis plant.
[…]
(24) The regime applicable to drugs which are commonly used in industry for other than medical or
scientific purposes.”
This typology in useful to draw a sets of legal provisions arranged according to the different
“classes” of “types” of products, botanical parts, or substances considered:
●Cannabis products that are not “drugs” (in the meaning of Article 1(1)j.):122
○Cannabis plant; seeds when separated from flowering/fruiting tops;
flowering/fruiting tops from which the resin has been removed; stem; roots; etc.:
■Provisions mentioned in (22) of the above citation;
○Cannabis leaves:
■Provisions in (19) above;
●Cannabis products that are “drugs” (and the focus of this essay):
○Drugs in Schedule I, when no reservation has been made under Article 49:
■Provisions in (1) for extracts and tinctures, in (13) for cannabis and cannabis
resin (nowadays similar provisions, after withdrawal from Schedule IV);
■Provisions in (2) for preparations of extracts and tinctures, in (14) for
preparations of cannabis and cannabis resin (nowadays similar too);
■Provisions in (24);
○Drugs in Schedule I, when a reservation has been made under Article 49:
■Provisions in (15), for cannabis and cannabis resin;
■Provisions in (16), for preparations of cannabis and cannabis resin;
■Provisions in (7), for extracts and tinctures;
■Provisions in (8), for preparations of extracts and tinctures.
122 That Article reads: “‘Drug’ means any of the substances in Schedules I and II, whether natural or synthetic.”
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High Compliance, a lex lata legalization for the non-medical cannabis industry
Typology in Article 2 of the Single Convention
Back to the text of the treaty, Article 2, C61, titled “substances under control” is proposing its own
insightful typology of legal regimes.
Article 2 provides clear references to the provisions prevailing for drugs listed
in Schedule I (in its paragraphs 1 and 9), as well as to the additional dispositions that are
specific to CCDs (paragraph 6) or to “cannabis plant” and “cannabis leaves,” and other
the non-“drug” cannabis items (paragraph 7). It reads as follows:
“(1) Except as to measures of control which are limited to specified drugs, the drugs in Schedule I are
subject to all measures of control applicable to drugs under this Convention and in particular to
those prescribed in article 4 (c), 19, 20, 21, 29, 30, 31, 32, 33, 34 and 37. […]
(6) In addition to the measures of control applicable to all drugs in Schedule I, […] cannabis [is
subject to the provisions of] article 28. […]
(7) The […] cannabis plant, […] and cannabis leaves are subject to the control measures prescribed in
article […] 22 and 28; […] and 28, respectively
(9) Parties are not required to apply the provisions of this Convention to drugs which are commonly
used in industry for other than medical or scientific purposes, provided that:
a. They ensure by appropriate methods of denaturing or by other means that the drugs so used are
not liable to be abused or have ill effects (article 3, paragraph 3) and that the harmful substances
cannot in practice be recovered; and
b. They include in the statistical information (article 20) furnished by them the amount of each drug
so used”123
Another way of presenting these provisions which prevail for CCDs is as follows:
-Definitions, in Article 1(1) subparagraphs b. and d., of “cannabis” and “cannabis resin”
(note that there is no definition for “extract and tinctures of cannabis”),
-Scope of control and general obligations of State Parties, in Articles 2(1), 2(6), 2(9), and
4(c);
-Measures of control for CCDs in Articles 19, 20, 21, 23 (triggered by Art. 28), 28 to 34,
and 37;
- Additionally, Article 49 allows for temporary reservations related to CCDs, that entail a
different tier of measures and obligations.
123 UNODC (2013) at 27–28; supra note 109. Because of the length of Article 2, only sections that are relevant to
Cannabis and CCDs have been quoted.
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Typology of uses
Among this legal landscape, when looking for the terms related to types of consumption and use
that may point at RAU, the presence of several “types of uses” recur. These “types of uses” or “types
of purposes” (the term “purposes” not only encompasses the “use,” but also other activities) are
also echoed in other Articles of the treaty that are unrelated to Cannabis or CCDs. Each of these
“types of uses” is associated with a specific set of provisions:124
- Medical and scientific purposes (Article 4(c)) are the central purposes regulated; these types
of uses and associated activities, clearly not RAU, are associated with precise dispositions
125
of control, varying according to the Schedule in which the drug is listed;
- “Other than medical and scientific uses” commonly used in industry (Article 2(9)) exempt
from the controls applied to “medical and scientific purposes” but subject to specific
provisions;
- “Other than medical and scientific purposes” that are traditional (Article 49) subject to
specific, temporary provisions;126
- Slightly apart, the concept of “abuse and ill effects” is present, but not defined, not linked to
a specific legal regime (see Chapter 4), and not associated with the concept of “purpose”
(see Annex I).
Medical and scientific purposes (hereinafter MSP)are the main focus of the vast
majority of provisions for mandatory or optional control established by the C61.
The preamble of the Convention lays out the desire to conclude “a generally acceptable
international convention replacing existing treaties on narcotic drugs, limiting such drugs to
medical and scientific use” concurrently recognizing that (1) “the medical use of narcotic drugs
continues to be indispensable for the relief of pain and suffering and that adequate provision must
be made to ensure the availability of narcotic drugs for such purposes” and that (2) “addiction to
narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic
danger to mankind” –a phraseology geared towards health, medicine, medical uses and the
biomedical concept of addiction, although indeed with some archaic terms.127
127 Preamble, C61 in: UNODC (2013) at 23; supra note 109. See also infra section “Raison d’être.”
126 While it is “other than medical and scientific purposes” that is mentioned in Article 49 subparagraph (2)f. In relation
to cannabis, subparagraphs (1)d. and (1)e. Of the same Article 49 mention the use of cannabis for “non-medical
purposes.” On this point, the Commentary precises that “the phrase ‘non-medical purposes’ in subparagraph (d) means
‘purposes other than medical and scientific ones’” (Commentary on the Single Convention at 469; supra note 114).
125 Some have argued that there may be some beneficial therapeutic or psychological considerations related to use of
drugs in the context of “recreation” or “leisure”, however, these philosophical considerations go beyond the scope of this
essay, which considers as a premise that RAU is distinct from “medical use.”
124 Yet another “regime” of “Special Government purposes” and “special stocks” for that purpose is present in the
Convention (a somewhat parallel legal framework defined in Article 1(1)w. and elsewhere in the treaty), but, again, its
would require an analysis of its own, which exceeds the scope of this essay.
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High Compliance, a lex lata legalization for the non-medical cannabis industry
Article 4(c): two tiers, control & exemption
Article 4, C61 is titled “General obligations.” It reaffirms and details the “limitation” to MSP
contained in the preamble. Article 4(c) which stipulates that:
“subject to the provisions of this Convention, [Parties shall take such legislative and
administrative measures as may be necessary] to limit exclusively to medical and
scientific purposes the production, manufacture, export, import, distribution of, trade in, use and
possession of drugs.” (emphases supplied)
128
Note that:
- The goal of the Convention, expressed in its preamble, is: “limiting [narcotic] drugs to
medical and scientific use.”
- On the other hand, Article 4(c) calls to “limit exclusively to medical and scientific purposes”
(emphasis added).
This difference is notable. Although, at first sight, the phraseology of the preamble could seem
more liberal, the apparently more “exclusive” limitation of Article 4(c) is actually balanced by the
subjection of the limitation “to the provisions of this Convention.” It is therefore a relative
exclusive limitation, not an absolute one, given the expression “subject to” invokes a
conditionality or dependence upon other textual elements within the C61, thus indicating
to readers “that they should cross reference the current clause they are reading [...] with
another clause elsewhere.” Textually, therefore, the C61 establishes as a general obligation to
129
limit all activities involving drugs exclusively to medical and scientific purposes (MSP), but subject
to exceptions present elsewhere.
The Commentary is crystalline in identifying the clauses to cross-reference:
“the provisions to which paragraph (c) is ‘subject’, i.e. which are excepted from its application, are
article 49, article 2, paragraph 9 […].
Article 4, paragraph (c) [requires] Parties, subject to the exceptions expressly permitted by the Single
Convention[1], to limit exclusively to medical and scientific purposes the possession of drugs.
[1] Article 2, paragraph 9, […] and article 49”130
So, the provisions to which the “exclusive limitation” is “subject to” (for Cannabis)
are: Article 49 and Article 2(9).
Notably, both Articles reference “other than medical and scientific purposes”
(OMSP): Article 49 allows countries to present temporary reservations allowing continued
traditional use for OMSP during a certain period, whereas Article 2(9) allows to exempt drugs
“commonly used in industry” for OMSP. The Commentary corroborates this, mentioning “Article 4,
130 Commentary on the Single Convention at 110, 402; supra note 114. Note: there are other clauses, not relevant to
Cannabis (e.g., specific exemption for some products derived from coca leaf in Article 27), that are omitted from the
quote.
129 Hossein J. (2019), Legalese - Subject to - What does it mean?; see also: “Subject to” (2022), In: Black’s Law
Dictionary Free Online Legal Dictionary, 2nd Ed.
128 ibid. at 30.
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para. (c) together with article 2, para. 9” as examples of “cases in which non-medical consumption
or industrial use is exceptionally permitted by the Single Convention.”131
In short: Article 4(c) establishes a general obligation for State Parties to limit the activities
involving narcotic drugs to MSP, while accepting exceptions to said limitation in the case of OMSP.
This, a priori, seems like if the Convention was attempting to establish a medical sector in a
closed-loop, rather than giving that sector the exclusivity. This is supported by the fact that early
drug control instruments (e.g., the 1931 Convention for Limiting the Manufacture and Regulating
the Distribution of Narcotic Drugs) hover over a similar concept of relative exclusive limitation
geared at establishing a stable medical market.
Surprisingly, however, the INCB never mentions the first part of Article 4(c) in its
analysis of the C61, and, in consequence, never discussed the subsequent dichotomy conveyed by
132
the Convention. Sheer mention of the seven words “subject to the provisions of this
Convention” remains exceptional in scholarly and general literature; when mentioned,
no effort is made into analyzing the clauses cross-referenced by such subjection, even though they
are explicit in the Commentary.133
The previous drug control instruments (that the Single Convention terminated and
replaced) contained a broad range of exemptions. The Single Convention indeed eliminated all
exemptions contained in previous treaties that were related to MSP… but it expressly maintained
exemptions related to OMSP. The Commentary, again, corroborates that it was “one of the most
important achievements of the Single Convention that it ended the exceptions permitted in earlier
treaties [...] apart from two cases” –Articles 49 and 2(9).
134
134 Commentary on the Single Convention at 72; supra note 114. See also Lande (1962) at 781, see supra note 39.
133 Leinwand (1971; supra note 10) is an exception, quoting the full article and considering it accordingly (at 418–419),
although the analysis provided is sometimes inconsistent in some points (at 440). All other essays related to the question
of cannabis and the treaties (referenced or not throughout this essay) only mentioned the latter part of Article 4(c),
without including the first seven words “subject to the provisions of this Convention.” Rarely, like in the policy report by
Jelsma et al. (2018 at 3; supra note 57), the Article is cited in its entirety –in this case, in a footnote, but the authors’
analysis and interpretation does not take these seven words into consideration, and do not attempt to cross-reference the
clauses to which the limitation is subject to.
132 Only two examples among dozens: INCB (2019b), Report of the International Narcotics Control Board for 2018
[E/INCB/2018/1], at 2; INCB (2020), Report of the International Narcotics Control Board for 2019 [E/INCB/2019/1],
at 40. See also: Fleming (2020) at 29, supra note 57. In INCB (2020, at 17), this omission leads to inconsistencies in a
single paragraph:
“the conventions foster the availability of controlled substances for medical, scientific or industrial use while preventing their
diversion into illicit channels. One of the hallmarks of the drug control framework is that it limits the production,
manufacture, export, import and distribution of, trade in and possession of drugs exclusively to medical and scientific
purposes.”
At first, INCB affirms that the IDCC fosters “medical, scientific or industrial use” but in the next sentence it claims that
the IDCC limit activities “exclusively to medical and scientific purposes.” Where has “industrial” gone? This is the result
of the “exclusive limitation” not being balanced by the exemptions for industrial purposes to which it is subject in Article
4(c). Countless inconsistencies linked to the omission of the beginning of that provision punctuate INCB reports.
131 Commentary on the Single Convention at 113–114; supra note 114.
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High Compliance, a lex lata legalization for the non-medical cannabis industry
Article 49: transitional exemption
Article 49, C61 establishes an exemption from the general regulatory and control obligations of the
C61. It contains transitory clauses allowing to stagger the full application of the
Convention.
The application of Article 49 is limited (1) to coca leaf, opium, and CCDs, (2) to the
geographical areas where their use was traditional before 1961, and (3) in time. This last condition
is particularly relevant, because the clauses contained in Article 49 already ceased to be
applicable (since 8 August 2000). For this reason, a detailed study of Article 49 is not
135
relevant.
Nonetheless, it is worth noting that Article 49 explicitly mentions different subsets of OMSP
for opium and coca leaves: “quasi-medical use,” “smoking,” “chewing.” Conversely, the vocabulary
related to Cannabis and CCDs in Article 49 remains limited to two expressions: “non-medical
purposes” in Article 49(1)d., and “use of cannabis for other than medical and scientific purposes” in
Article 49(2)f. The Commentary notes, on this particular language, that “the phrase
‘non-medical purposes’ in subparagraph (d) means ‘purposes other than medical and
scientific ones.’”136
The relevance of Article 49, today, is that it suggests that the traditional non-medical use of
Cannabis products that existed before 1961 (arguably RAU) is among, or at least assimilable to, the
category of OMSP.
136 Commentary on the Single Convention at 468–469; supra note 114.
135 That is, 25 years after the entry into force of the last version of the Convention (the amended C61) in 1975, as per
subparagraph (2)f. (UN (2021b). “Protocol Amending the Single Convention on Narcotic Drugs, 1961 Geneva, 25 March
1972; Status as at 26 October 2021”, United Nations Treaty Collection; Chapter VI, Narcotic Drugs and Psychotropic
Substances;UN (2021c), “Single Convention on Narcotic Drugs, 1961, as amended by the Protocol amending the Single
Convention on Narcotic Drugs, 1961 New York, 8 August 1975; Status as at 26 October 2021”, United Nations Treaty
Collection; Chapter VI, Narcotic Drugs and Psychotropic Substances). Some analyses may interpret different dates
based on the date of entry into force of the unamended text (in 1968). This staggering in time is something common, see
Martín Rodríguez, P. J. (2003), Flexibilidad y tratados internacionales, Editorial Tecnos, at 184–187.
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Article 2(9): industrial exemption
Article 2, paragraph 9, also establishes an exemption from the general obligations of the C61.
Contrary to Article 49, however, Article 2(9) is applicable to all scheduled drugs, and contemplates
neither time expiration nor geographical limitation. Article 2(9) reads as follows:
“Parties are not required to apply the provisions of this Convention to drugs which are commonly
used in industry for other than medical or scientific purposes, provided that:
(a) They ensure by appropriate methods of denaturing or by other means that the drugs so used are
not liable to be abused or have ill effects (article 3, paragraph 3) and that the harmful substances
cannot in practice be recovered; and
(b) They include in the statistical information (article 20) furnished by them the amount of each drug
so used.”
Textually, quite clear.
A look at the report of the discussions during the Conference of Plenipotentiaries of 1961
(hereinafter the COP61) –where the Single Convention was negotiated and adopted– shows that
137
the inclusion of an exemption for the broad concept of OMSP, and the choice to use
vague, imprecise, and undefined terms, was a purposeful and acknowledged decision
of the drafters.The direct applicability of Article 2(9) to CCDs was even verbalized
138
during the negotiations, without any objection being raised.139
Hence, a priori, there is no reason to evade the consideration of the application of the
exemption contained in Article 2(9) to Cannabis-related products used for OMSP –as long as that
use is common in industry. “Industry,” another undefined term in the treaty.
139 Amidst a discussion wholly focused on cannabis, this statement is made (UN (1964b) at 98–99; supra note 138):
“Mr. VAN NIEUWENBORG (Congo (Leopoldville)) observed that under article 2, paragraph 9(a) of the draft [...], parties
would not be required to apply the provisions of the Convention to drugs which were commonly used in industry for other
than medical or scientific purposes, provided that they ensured by appropriate methods of denaturing or by other means that
the drugs so used were not liable to be abused or have ill effects.”
To which the delegate from Australia, chairing that particular meeting, answered:
“The CHAIRMAN said that, except for the cases covered by that provision [...], extracts and tinctures of cannabis and cannabis
resin would have to be retained in Schedule I.”
No objection was raised by none of the other countries present in the room (at least: Canada, France, Hungary, Mexico,
Sweden, Switzerland, UK, United Arab Republic (Egypt), USA, USSR, as well as one representative from WHO and
another from the Drug Supervisory Body, a former intergovernmental organization merged onto the INCB in 1968).
138 This acknowledgement by the drafters is discussed in great details in Chapters 5 and 6. An good overview is provided
by: UN (1964a) at 25, 55, 185 (supra note 40) and UN (1964b), United Nations Conference for the adoption of a Single
Convention on Narcotic Drugs, New York, 24 January - 25 March 1961; Official Records, Volume II,
[E/CONF.34/24/Add. 1], at 3, 79, 84, 98–99.
137 A Conference of Plenipotentiaries is the convening of Ambassadors vested with full power to negotiate a treaty on
behalf of their State’s government. Various preliminary drafts of the Single Convention had been discussed between 1950
and 1960, prior to the COP61 (officially “UN Conference for the adoption of a Single Convention on Narcotic Drugs”), but
the COP61 was a “grande finale” of intense negotiations leading to the current text, from January to March 1961. Most
records of the COP61 are included in UN (1964a, supra note 40) and UN (1964b, infra note 138).
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The terms “cannabis industry” are routinely used to refer to the operators of
legally-regulated companies, nonprofits, and other establishments working in direct relation with
Cannabis and CCDs for “nonmedical use” in the jurisdictions where such uses are legally regulated.
This phraseology makes sense insofar it is harmonious with the use of “industry” in other
140
contexts (food industry, tourism industry, movie industry, pharmaceutical industry, and even the
illegal drug industry…): in legal RAU operations indeed, CCDs are “commonly used in
industry for other than medical or scientific purposes.” Although the term appeared
relatively recently (Figure 1), it has become generalized in common language.
Figure 1. Presence of the expression “cannabis industry” in English publications, 1800–2019
Using the research queries (cannabis=>industry + industry=>cannabis), case-insensitive,
without smoothing, in the joint English corpora 2019 (period 1900-2019).141
A number of publications of bodies such as INCB and the UNODC also use the expression
“cannabis industry” to refer to activities undertaken for other than medical and
scientific purposes in different legally-regulated contexts such as the Netherlands or the
USA.142
142 For example, INCB’s report for 2005 (INCB (2006), Report of the International Narcotics Control Board for 2005
[E/INCB/2005/1]) reads:
“The Government of the Netherlands estimates that the cannabis industry in that country consists of 1,200 retail businesses,
employing about 4,600 people. [...] the annual turnover of outlets where cannabis is sold and used (so-called “coffee shops”)”
The expression is also used in other reports such as INCB (2019b) at 11, 61 (supra note 132) or a case study of mention of
“cannabis industry” a few lines before a truncated quote of Article 4(c), at 55 in: INCB (2016a), Report of the
International Narcotics Control Board for 2015 [E/INCB/2015/1]. The also uses the word UNODC, see: UN (2020a), at
33.
141 Google Books (2019), Ngram Viewer; English corpora, 2019.
140 The economic type, legal personality, and industrial models of what “industry” refers to are not detailed in the
Convention, which might make sense insofar economic views and approaches to “industry” were, to say the least,
divergent at the time. In the case of the “cannabis industries” of today, there are important variations (from jurisdiction
to jurisdiction and within them) in the type of structures that are actually producing and/or dispensing CCDs for RAU,
where it is legally-permitted. Legal “cannabis industries” may take the form of regular commercial businesses (e.g. in
some provinces of Canada or US States), partially-regulated entities (e.g. the “coffee shops” in the Netherlands), or
non-for-profit economic entities such as those following the “cannabis social club” model (which is implemented
diversely in municipal law: via national pieces of legislation in Malta and Uruguay, via jurisprudencial rulings in South
Africa and Spain, in addition to local-level regulations in Spain).
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There seems to be nothing preventing reading Article 2(9) as applicable to CCDs
commonly used in industry. If Article 2(9) is to be applied to CCDs, there are therefore two
further conditions, laid out in subparagraphs (a) and (b), that need to be analyzed.
Subparagraph (a): upstream, prevention and harm reduction
“provided that: (a) [the Parties] ensure by appropriate methods of denaturing or by other means that
the drugs so used are not liable to be abused or have ill effects (article 3, paragraph 3) and that the
harmful substances cannot in practice be recovered” (emphases supplied).
The first of the two requirements in Article 2(9) –subparagraph (a)– is appearing as a precondition
or step prior to the actual use of the drug for OMSP (in a way, upstream the consumption) which
would allow triggering the exemption. The expressions “appropriate methods of denaturing,”
“other means,” “harmful substances,” and the concept of recovering in practice, are not defined in
the Single Convention nor explained in its Commentary.
Behind a relatively cryptic language, it is possible to attempt summarizing the provision. In
substance, what subparagraph (a) says is:
1. What to do:
- ensure that the drugs used for OMSP are not liable to “be abused or have ill effects”
-and ensure that the harmful substances cannot in practice be recovered.
2. How to do it:
- by appropriate methods of denaturing
-or by other means.
On the “how to do it,” several elements are worth noting:
- It applies to both avoiding abuse, and avoiding recovery of harmful substances,143
- It leaves the choice between “denaturing” or “other means” in the way to apply the
provision.144
Such a flexibility invites an interpretation of the “what to do” part of the provision which would be
consistent with (and possible under) both eventualities: the meaning of Article 2(9)a. has to
144 Also present in the C71, this type of requirement is often considered rather “outdated as a safeguard [...] in a world in
which codeine is extracted from a tablet containing 3 other ingredients and converted into heroin by a schoolboy” (Bayer,
1989 at 24; see supra note 42) –as stated by an eyewitness of the COP71 (“he was UN officer (staff member of the
Division on Narcotic Drugs) between 1967 and 1973 [...] also joint secretary of the Technical Committee of the [COP71];”
at 1). Given these circumstances, this makes the “other means” not just an option, but a particularly relevant one.
143 This is made clear by the absence of a coma after the bracket and before the terms “and that the harmful substances”
which could have suggested that the words “by appropriate methods of denaturing or by other means” did not apply to
the later part of the provision; it could also have been even more clearly stated by replacing “and that” by “and ensure
that” after the bracket and before the terms “the harmful.” We have to conclude therefore that the terms “by appropriate
methods of denaturing or by other means” apply to both “the drugs so used are not liable to be abused or have ill effects”
and “the harmful substances cannot in practice be recovered.”
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make sense not only for State Parties that would choose “denaturing” the drug, but
also for those which would choose “other means.” The meaning of undefined terms and
unclear concepts in this provision must correspond to something which, in real life, allows to avoid
liability to abuse and to avoid the practical recovery of harmful substances by other means than
“denaturing.”
“Abuse and ill effects” are not defined, not even in Article 3(3) mentioned in this
clause (which, in essence, explains that “abuse and ill effects” defines what products or substances
ought to be included in the Schedules). But because “abuse and ill effects” are also mentioned in the
context of both MSP and OMSP, it is difficult to assimilate that concept with RAU. As extensively
discussed in Chapter 4, this concept, associated with “addiction” and other symptoms of illness
(Annex I), is most probably referring to substance use disorders (SUD), indeed currently defined as
a medical condition. Taking appropriate measures to avoid an increase in diagnoses of a medical
condition does seem to make sense in light of the preamble of the C61 which calls for the protection
of health and welfare and the fight against “addiction.” Because it is present in many instances, in
other IDCC treaties, and has a complex drafting history, the concept of “abuse and ill effects” is
analyzed in greater detail in the next Chapter.
A more problematic concept to interpret is that of “harmful substances,” not defined
or indeed used anywhere else in any of the three IDCC or their final acts and resolutions. It
may seem easy to reach conclusions about these words, for example: “harmful substance is the
drug,” or “harmful substance is that thing within the drug that makes you high.”
One has to remark, however, that it is “substances” which should be prevented from
recovery via denaturing or other methods, and not the “drugs” as such. This is surprising, insofar as
the C61 refers to the products under its scope as “drugs” and not “substances” (contrary to the C71,
which defines “psychotropic substances”). What does “substance” come to mean in the context of
the C61? In the text of the 1961 Convention, the term “substance” is present on several occasions,
appearing as a general term, with a broader meaning that the category of “drugs.” “Drug” seems to
be a category within that of “substance.” Drugs are those particular substances which are listed in
Schedule I or II of the C61. Furthermore, the term “substance” is also often used in reference to
things that are not drugs. What the term “substance” alone means in this provision is difficult to
145
145 Article 1(1)j. reads: “‘Drug’ means any of the substances in Schedules I and II, whether natural or synthetic” (UNODC,
2013; op. cit. note 109; see supra note 122). This is echoed in Article 2, titled “Substances under control”: indeed, that
article also mentions controls to be applied to substances that are not technically “drugs”, for instance substances to
which emergency controls could be applied by CND, which are not “drugs” until the process of scheduling has taken
place, although they might temporarily fall under control. The Commentary says on this regard:
“The term ‘other substances’ in clause [Art. 1(1)x.(ii)] includes drugs not covered by this Convention, such as nalorphine or
apomorphine, but would also apply to any drug which eventually come to be ‘commonly used in industry for other than
medical and scientific purposes’” (at 35 in Commentary on the Single Convention,supra note 114).
In C61, the other mentions of the term are:
- “drugs and other substances” (Art. 1(1)x.),
- “substances which do not fall under this Convention, but which may be used in the illicit manufacture of drugs”
(Art. 2(8)),
- “substance not already in Schedule I or in Schedule II” (Art. 3(3)),
- “a preparation because of the substances which it contains is not liable to abuse and cannot produce ill effects”
(Art. 3(4)),
- “substances other than drugs in Schedule IV” (Art. 3(5)) here encompassing drugs in other schedules as well as
substances not scheduled,
- “substances not covered by this Convention” (Art. 19(1)b., 20(1)b., and 21(1)b.),
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ascertain in and of itself, given the broad and inconsistent meaning given to that word in the rest of
the treaty.
“Harmful substances” –not just “substances”– are the object of this provision. The extent of
what “harmful” comes to represent is maybe even more debatable, but, at first, it is worth
mentioning that “harmful” or “harm” are totally absent from the three Conventions, except in this
Article 2(9)a. It should also be noted that “harmful substance” is presented as a concept apart from
“abuse and ill effects.” It is extremely tempting to interpret that the “harmful substance” in CCDs is
dronabinol/THC, such an interpretation may lead to absurd or unreasonable conclusions:
-THC is not listed in the C61, and therefore not subject to its provisions. While the
meaning given to the term “substance” could a priori suggest this considering that THC
146
removal is a way of complying with Article 2(9)a. would de facto subject THC to the legal
regime of the C61. This is not only something expressly recommended against, since it
would represent an undesirable outcome for the cohesion of the international legal system,
it also directly contradicts the will of the Parties expressed twice (in 1971 and in
2020) not to subject THC to the provisions of the C61.147
- Such an interpretation sees the concept of “harmful substance” as an ingredient of the
“drug” –a physical or chemical subset, which would be responsible for the harms of the
drug. However, Article 2(9) applies equally to all drugs in Schedule I: therefore, it
needs to make sense, and have a similar meaning, in all instances and for all drugs. While
removing THC from CCDs seems possible, removing morphine from morphine is not. The
interpretation considered would therefore be specific to Cannabis products (and other
plant-based products) and not be applicable to single-compound drugs. Besides the
148
challenge to the laws of physics, this also appears to oppose the fact that the Commentary
148 Otherwise it would require previous intellectual acrobacies, to first conceptualize demorphinized morphine, or
decocainized cocaine… Imagining dry water might be more simple. But similarly unrealistic.
147 The will of the Parties, in 1971, was to include THC in the C71. The C61 was already in force and almost all States
present at the COP71 were Parties to the C61. In 2020, the Parties, via the mechanism of Schedule amendment contained
in the treaties, refused to move THC from the C71 to the C61, reiterating their refusal to see THC subject to the legal
provisions of the C61. There is a broad consensus at the CND against having THC (or any other drug or substance)
subjected simultaneously to both C61 and C71. This has been expressed by innumerable State representatives during the
discussions related to cannabis scheduling, between 2019 and 2020 (for an overview of these discussions, see
Riboulet-Zemouli and Krawitz (2022), supra note 120; for in-depth review, see: Riboulet-Zemouli, K., Krawitz, M. A.,
and Ghehiouèche, F. (2021), History, science, and politics of international cannabis scheduling, 2015–2021, FAAAT
editions). See also WHO (2010), Guidance on the WHO review of psychoactive substances for international control [EB
126]. See also the answer of the representative of WHO’s Expert Committee on Drug Dependence to a question of the
USA representative asking why the Committee “could not make a recommendation that differentiates between low THC
concentration and high THC concentration cannabis resin?” Answer by WHO’s representative:
“It was the Committee’s understanding that differentiating cannabis or cannabis resin on the basis of the concentration of the
active compounds, particularly delta-9-THC (dronabinol), could be perceived as proposing to change the definitions in Article
1 of the 1961 Single Convention, since these definitions do not currently address concentrations. The Committee sought to
avoid such perceptions (whether they would be correct or not) and did, therefore, not make proposals that may be viewed as
changing the definitions or creating new sub-categories within the definition of cannabis in Article 1 of the 1961 Convention”
(UNODC Secretariat to the Governing Bodies (2019), Questions and answers relating to WHO’s recommendations on
cannabis and cannabis-related substances Status: 26 November 2019, at 27).
146 See supra note 145. For recall, the Parties to the Single Convention could not discuss this during the COP61, since
dronabinol had not yet been identified as the key active compound in Cannabis plants (it was only identified in 1964).
The Parties to the Single Convention reconvened in 1972 to agree on a Protocol amending the Single Convention; they
had therefore a chance to amend the text of the treaty to reflect the new discovery, but did not do it.
- “Any drugs, substances and equipment used in or intended for the commission of any of the offences referred to
in article 36” (Art. 37).
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and records of the negotiations document the use of (obviously non-demorphinized)
morphine under an Article 2(9) exemption, for use in the photography industry.149
- The act of removing THC from CCDs is nothing more than “denaturing.” As
discussed above, while removing THC from CCDs would seem to be one of the
ways to comply with subparagraph (a) under the concept of “appropriate
means of denaturing,” it can not be the only way, or else the sentence would be
redundant, and the relevance of the words “or by other means” (other than
denaturing) would be annihilated, which also seems to oppose the principle of ut res
magis valeat quam pereat, according to which “the maximum of effectiveness should
be given to [an international obligation] consistently with the intention — the common
intention — of the parties.” Understanding the non-recoverability of “harmful substance”
150
as the removal of an active principle renders the subparagraph at least partly absurd,
unreasonable, and ineffective.
Because it would be in direct contradiction to repeated decisions of the Parties, because the same
provision cannot apply differently to different drugs without it being present in the text, and
because such an interpretation would make part of the provision devoid of substance and absurd,
the removal of an abuse- or addiction-producing ingredient from the drug (such as THC removal
from CCDs)is not a legitimate interpretation of this provision.
In that case, what does “harmful substance” mean? The expression is not entirely
undefined, since it is visibly demarcated from “abuse and ill effects.” If not, why would the
Plenipotentiaries choose extraordinary wording instead of writing the provision as: ensure that the
substances liable to abuse or ill effects can not in practice be recovered? This seems to support the
case that there is not necessarily a direct link between the concept of “harmful
substance” in this provision and the ingredients known to have a potential for SUD
(like THC). The “harmful substance” seems to refer to other harms, not necessarily to addiction
and SUD –and these possible harms are of a fairly diverse nature.151
The fact that there is no definition of the word “substance,” coinciding with diverse
meanings of it in the Convention, calls attention to the polysemy of the term “substance” in
common language: substance can refer to a physical, material object; but it can also refer to an
151 The literature is profuse about drug-related harms. It is also known that drugs can be associated with harms linked to
how they are managed by public policy: the UNODC recognizes that harmful “unintended consequences” may arise in
relation with drug policies (see: CND (2008), Making Drug Control “Fit for Purpose”: Building on the UNGASS Decade:
Report by the Executive Director of the United Nations Office on Drugs and Crime as a contribution to the review of the
twentieth special session of the General Assembly; Fifty-first session; Vienna, 10-14 March 2008; Agenda item 3
[E/CN.7/2008/CRP.17], at 10–12; Lines, R. M. (2017), Drug Control and Human Rights in International Law,
Cambridge University Press, at 49; Reuter, P. H. (2009), The unintended consequences of drug policies [Report 5],
RAND Corporation).
150 On ut res magis valeat quam pereat, see: ILC (1965), Yearbook of the International Law Commission 1964; Volume
II [A/CN.4/SER.A/1964/ADD.1], at 60). See also: Fernández de Casadevante Romaní (1996) at 222–223 (supra note 91);
Fitzmaurice (1951) at 8 (supra note 82); ILC, (1965) at 53–62; ILC (1967; supra note 72) at 219; Kolb (2016) at 154–155
(supra note 28); Lo (2017) at 243–244 (supra note 24).
149 Note that many could define photography as a recreational industry, including UN documentation (see supra note
118). On the example mentioned: the Commentary indeed refers to this example of morphine being exempted for its uses
in analog chemical photographic processings (at 72 in Commentary on the Single Convention,supra note 114; for the
drafting discussions, see: CND, 1955, infra note 289). There is, however, no sign that morphine was “demorphinized”
(something obviously impossible), that the removal of any sort of “harmful” ingredient had taken place, or how it was
prevented from being “recovered in practice” by photographers (...and what about schoolboys photographers? –see supra
footnote 144).
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essence,pith,gist. If, in this provision, “harmful substance” is interpreted as an equivalent to
harmful essence, harmful potential, harmfulness, substantific harm –rather than as
harmful ingredient, harmful part of the drug– it follows that no part of the subparagraph
are obliterated, and it is possible to give full effect to the provision by opting for
“appropriate other means” instead of “denaturing,” as the drafters intended and as
the text reads.
On these premises, and through the lens of the preamble of the Convention, all parts of
Article 2(9) make sense and can be applied coherently. Article 2(9)a. can be understood as
exempting drugs provided that State Parties implement effective prevention of
substance use disorders (“ensure [...] that the drugs so used are not liable to be abused or have
ill effects”) and harm reduction strategies (“ensure [...] that the [harms] cannot in practice be
recovered”). This approach is supported by the existence of appropriate and efficient means to
prevent abuse and addiction and to reduce the harmful impact of drugs, by other means than
denaturing: prevention, education, harm reduction programs, but also quality analysis of products,
information for consumers on potency, etc.
These upstream exemption conditions can be formulated as follows:
1. What to do:
- avoid substance use disorders
-and avoid other potential harms
2. How to do it:
- by appropriate methods of denaturing
-or by other means known for prevention and harm reduction.
Subparagraph (b) & Article 20: downstream, statistical reporting
The second condition, in subparagraph (b), is much more straightforward. It consists of sending
the INCB an annual statistical reporting of the quantity of drugs used for OMSP. This takes place
downstream to the use for OMSP. The subparagraph reads:
“provided that: [...] (b) [the Parties] include in the statistical information (article 20) furnished by
them the amount of each drug so used.”
This represents a limited data collection exercise, as compared to the statistical and reporting
requirements prevailing for MSP. The Commentary explains:
“Failure to furnish information under article 2, paragraph 9, subparagraph b would not only
constitute a violation of this provision and possibly of article 20, paragraph 1, subparagraph (b), but
would also render illegal the non-application of the full narcotics regime prescribed by the Single
Convention to the use of the drugs”152
152 Commentary on the Single Convention at 73, also at 248; supra note 114.
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High Compliance, a lex lata legalization for the non-medical cannabis industry
Consequently, reporting to the INCB on “the amount of drugs so used” is a way to appropriately
render legal the non-application of C61’s full narcotics regime to the use of drugs.
Subparagraph (b) requires only statistical returns on the “amount used,” pointing at Article 20.
Article 20 says:
“1. The Parties shall furnish to the [International Narcotics Control] Board for each of their
territories, in the manner and form prescribed by the Board, statistical returns on forms supplied by
it in respect of the following matters:
(a) Production or manufacture of drugs;
(b) Utilization of drugs for the manufacture of other drugs, of preparations in Schedule III and of
substances not covered by this Convention, and utilization of poppy straw for the manufacture of
drugs;
(c) Consumption of drugs;
(d) Imports and exports of drugs and poppy straw;
(e) Seizures of drugs and disposal thereof;
(f) Stocks of drugs as at 31 December of the year to which the returns relate; and
(g) Ascertainable area of cultivation of the opium poppy. [...]” (emphases supplied)
153
A confusion may arise from the fact that “use” is not mentioned in Article 20. Both “utilization” and
“consumption” could be the clauses targeted under Article 2(9)b. Article 1(2) defines
“consumption” as the “[supply] to any person or enterprise for retail distribution, medical use or
scientific research” and the Commentary on Article 20(1)c. explains that “the figures concerning
consumption to be furnished under subparagraph (c) relate to consumption for medical and
scientific purposes.” The INCB has also clarified that “consumption” refers to:
“the amounts supplied for retail distribution, medical use or scientific research, to any person,
entreprise or institute (retail pharmacists, other authorized retail distributors, institutions or
qualified persons duly authorized to exercise therapeutic or scientific functions: doctors,
veterinarians, hospitals, dispensaries and similar health institutions, both public and private;
scientific institutes)”154
While the terms “other authorized retail distributors” (and in Article 1(2) “retail distribution”)
could apply to industrial retailers, all examples given point to “therapeutic or scientific” purposes,
and the Commentary clarifies that “consumption” in Article 20(1)c. has to be
155
understood as this “the meaning of transfer from the wholesale to the retail level” for
medical professions and researchers, and explains:
156
156 ibid. at 46, 250–251. See also Berterame, S. (2021), “Q&A”, In: ‘Way forward in the control and monitoring
requirements of cannabis and cannabis-related substances: INCB Guidelines on the International Drug Control
Requirements for the Cultivation, Manufacture and Utilization of Cannabis for Medical and Scientific Purposes’
side-event organized by the International Narcotics Control Board during the 64th Commission on Narcotic Drugs,
April 13, 2021, at 36:41
155 ibid. at 44, 47–48.
154 Commentary on the Single Convention at 250; supra note 114.
153 Article 20(2) also informs that “The statistical returns [...] shall be prepared annually and shall be furnished to the
Board not later than 30 June following the year to which they relate” ( UNODC (2013) at 40–41; supra note 109).
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“the Single Convention sometimes applies the word ‘use’ for consumption by individual patients or
animals, i.e. for ‘consumption’ in its common meaning. [...] The word ‘use’ is, however, also
employed in other meanings.[22]
[22] E.g., [...] article 2, para. 9 (‘used in industry’)”157
As corroborated on the Commentary on Article 20(1)b. about “utilization of drugs…,” “the amount
of drugs used in industry for other than medical and scientific purposes would also have to be
furnished to the Board” with a footnote pointing at Article 2(9)b. The term “used” in Article 2(9)
158
seem to refer to “utilization” in subparagraph (b) in Article 20, and because drugs exempted for
159
OMSP are neither used for the manufacture of other drugs, nor preparations in Schedule III, it
should be assumed that they fall under “substances not covered by this Convention.”
It is not, therefore, the actual consumption by final users that countries are required to
report, but the quantities that transit within the industry supply chain.
It is compelling that, in practice, there already exists a possibility for countries to
report statistical information on a variety of different uses in industry under Article 2(9)b. via
Part II.B of the Form C –supplied by the INCB to governments for their reporting. This
form indeed includes a large “empty space [...] to report other narcotic drugs and their quantities
used for the manufacture of other substances to be reported” which corresponds to Articles
160
2(9)b. and 20(1)b.
160 INCB (2021b), Form C; Annual statistics of production, manufacture, consumption, stocks and seizures of narcotic
drugs; Single Convention on Narcotic Drugs of 1961: articles 1, 2, 13, 20 and 27, 1972 Protocol amending the Single
Convention on Narcotic Drugs of 1961: articles 1 and 10 (20th unedited edition).
159 Generally, the term “utilization” in the Convention refers to the management of the product at different levels of the
supply chain, not to the actual use/consumption by people who use drugs, as commonly understood. Recently, the INCB
explained that “utilization” refers to a process of manufacture, not to the final consumer’s use (see Berterame (2021) at
36:41, supra note 156). In the Convention, we have seen, the term “use” sometimes in its common meaning, sometimes
–like in Article 2(9)– it has the meaning of “utilization.” See supra note and Commentary on the Single Convention at
47–48, 227–228, 248–250; (supra note 114).
158 ibid. at 248.
157 Commentary on the Single Convention at 48; supra note 114.
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High Compliance, a lex lata legalization for the non-medical cannabis industry
Article 2(9), subparagraph (b) consists in a clear compliance mechanism, via statistical
reporting on industry stocks and flows, something that can be ascertained externally
and allows the INCB to exercise a de minimis oversight. Opposite is subparagraph (a)
which includes no such mechanism or assessing authority: the determination of the appropriate
means to apply to drugs exempted under Article 2(9)a. is discretionary upon State Parties
(however, obviously, in good faith).
Once exempt, drugs cease to be drugs in the meaning of the Convention: they become
“other substances.” “Cannabis” ceases to be “cannabis in the meaning of the convention,” it
becomes “other substances” as well insofar it ceases to be under treaty control.
There is, therefore, a positive legal regime for the non-medical use of CCDs in
the C61: RAU are not ignored or absent from the treaty, they are regulated under
Article 2(9) with measures of harm reduction in subparagraph (a), statistical
monitoring in subparagraph (b) and Article 20 also serving as a mechanism to
ascertain compliance. It is worth noting that countries that have regulated RAU already
implement a monitoring of quantities circulating in the licit market, including for internalized
161
organizational business models such as Cannabis social clubs, which already include systems of
internal monitoring and control of the information that Article 2(9)b. requires. It seems therefore
162
possible for these countries to comply immediately by submitting this information to INCB
as described above (and independently, documenting and evidentiating the public policies and
other means than denaturing that are applied to reduce harms and prevent SUD).
162 About monitoring practices of these entities: see supra notes 140 & 161, and Ghehiouèche, F. and Riboulet-Zemouli,
K. (2016), Cannabis Social Club, Policy for the 21st century: a social, ethic, human-scale and health-based model
addressing the misuse, abuse and potential damages due to cannabis use while countering the unregulated growth of
cannabis supply,UNODC UNGASS 2016 website; Pardal, M., Decorte, T., Bone, M., Parés, Ò., and Johansson, J.
(2020), “Mapping Cannabis Social Clubs in Europe”, European Journal of Criminology, s.n.:147737082094139;
Belackova, V. and Wilkins, C. (2018), “Consumer agency in cannabis supply – Exploring auto-regulatory documents of
the cannabis social clubs in Spain”,