The INCB has laxed controls on marijuana legalization.

Or would the INCB at last recognize that the trend toward legal regulation of adult recreational cannabis will not be reversed and initiate a process to assist State parties to the drug control treaties to find a solution, and a pathway to legally regulate cannabis in accordance with international law and the UN drug control treaties? On this issue, there has been an interesting debate for years among drug control experts and scholars in international law, with the notable exception of the INCB. Most experts involved recognize that legal regulation does in fact violate the 1961 Single Convention, so the debate focuses on legally sound and politically feasible options that would enable cannabis regulation to proceed in accordance with international law.

Without going into detail here, several viable options have been proposed.[3] One option would be to denounce the 1961 Single Convention and subsequently re-accede with a reservation regarding cannabis. Although contro­versial, this option is anchored in the treaty itself and has a precedent; Bolivia successfully used this procedure to allow for the cultivation, trade and consumption of the coca leaf within Bolivia. The country using the denounce-and-re-accede option runs the risk of being blocked, however, if more than one-third of the parties to the convention object to the re-accession with a new reservation. If a group of like-minded countries were to collectively follow this procedure, the risk of being blocked from re-entering the treaty might be mitigated. Another option available to like-minded countries would be an inter se modification,[4] a procedure specified in Article 41 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in which two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between them­selves alone. This procedure would also prove to be politically controversial, but would not be subject to the risk of being blocked by objecting countries, as in the case of the unilateral procedure of denouncing and re-acceding to the treaty. If the expanding group of like-minded countries were to agree on an inter se modification, an alternative control regime that allows for legally regulated adult recreational cannabis would eventually emerge.

An additional option, or rather a support and complement to the two mentioned above, is to argue that States can justify cannabis regulation based on positive human rights obligations, as regulated cannabis cultivation and trade may offer a better opportunity for states to comply with their positive human rights obligations. Under this approach, “a state can be obliged to permit, under regulation, cannabis cultivation and trade for recreational use if and only if such regulation ensures a better protection of e.g., the right to health, the right to life, the right to physical and psychological integrity (the right not to be subjected to inhuman treatment) and the right to privacy than a prohibitive drug policy as prescribed by the international drugs conventions does.”[5] Some governments, notably Uruguay, have indeed argued that legalization is justified because it pursues the overall treaty goal to protect the health and welfare of humankind with full respect for human rights principles, which take precedence. While all these options separately may cause political and practical difficulties for States, “a cumulation of these options can have a combined strengthening effect and indeed present a legally sound and politically viable opportunity to regulate cannabis for recreational use without denouncing the whole UN drug control system.”[6]

Disappointingly, the Board largely ignores the discussion about various pathways that could enable legal cannabis regulation in accordance with international law, and in its recommendations again repeats its usual “Nyet” mantra.[7] The report does engage with the human rights argument, but denies any tension between the international drug conventions and international human rights instruments, asserting that there is no conflict of norms between the two. The Board goes further, making the bold and untested claim that the drug conventions, “as lex specialis, make more specific the way that human rights must be observed in the area of drug control.”[8] The lex specialis doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis). By “ensuring availability of and accessibility to controlled substances for medical and scientific purposes and preventing drug abuse, the conventions are aimed at protecting the right to life and health,” and “reflect the international community’s view that the most effective way to promote human rights in the field of drug control is to limit the use of drugs to medical and scientific purposes,” the Board claims. The report does not provide any reference to academic literature or documents from UN human rights entities supporting these controversial claims.

The Board does at least reiterate its position that measures to decriminalize or depenalize the personal use and possession of small quantities of drugs are consistent, within some limits, with the provisions of the drug control conventions. The Board thereby distances itself from those countries that continue with a hard-line, zero-tolerance policy. Although nothing in the UN drug control conventions themselves forces those countries to change their position, there is an increasing recognition, including by the INCB itself, that many tangible consequences of hard-line, zero-tolerance policies are contravening human rights obligations.