The Single Convention And Drug Policy Reform

A paper presented at the "Regulating Cannabis" Conference
London, September 5th 1998

Is it possible to reform cannabis laws without infringing the obligations of the UN Single Convention?

In order to explore this hypothesis, we will analize some crucial norms of the 1961 and 1988 Single Conventions (S.C.)

SINGLE CONVENTION, 1961

Art. 28 - Control of cannabis

(....) 2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

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.

From this article we can infer:

A) the cultivation of cannabis is not by itself illegal;

B) the cultivation of cannabis is legal if done "for horticultural purposes", namely independently of the THC content and size of the plant(s);

C) only "misuse" and "illicit traffic" are illegal. Since the term misuse is not defined by the "Glossary" of the S.C., the Par.3 could be interpreted according to commonsense, as the assumption that the use of cannabis should not be subjected to "measures"

SINGLE CONVENTION, 1988

Art. 2 - Scope Of the Convention

Par 1 [...] In carrying out their obligations under the Convention, the Parties shall take necessary measures [...] in conformity with the fundamental provisions of their respective domestic legislative systems.

Par.2. The Parties shall carry out their obligations under this Convention in a manner consistent with the principle of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States

These paragraphs leave a margin of autonomy to the national law - though it doesn't explain what would happen if the "fundamental provisions of domestic legislative svstems" should be contradictory to the "obligation" of the S.C.

What has happened in Alaska (decriminalization of marijuana in 1975-1990) seems to prove that the sentence of the Alaskan High Court has been accepted by the UN.

The autonomy of the domestic law is stressed again in ArL3, Par. 11:

Art.3, Par. 11. - Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and such offences shall be punished in conformity with that law." (e.a

The issue of sanctions is faced again in Art.3, Parr. 1,2,4.

Art.3 - Offences and sanctions

Par.1. Each Party shall adopt such measures as may be necessary to establish as criminal offence under its domestic law, when committed intentionally:

(i). The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance [...]

(ii) The cultivation of opiun poppy coca bush or cannabis plant for the purpose of production of narcotic drugs [...]

(iii) The possession or purchase of any narcotic drug [...] for the purpose of any of the activities enunerated in (i) above

According to par. 1 (ii) the cultivation of cannabis is not a criminal offence by itself, but only when it is done with the purpose of drugs' production.

This means that (confirming the Art. 28 of 1961 S.C.) cultivation of cannabis is not illegal while the plant remains untouched.

Moreover, according to par,1 (iii), possession and purchase of cannabis shall be criminal offences only when it is done with the purpose of the "activities" listed in Par. 1(i), but not use neither possession for personli use.

To this sublect the S.C. comes in the next paragraph:

Art.3 Par.2. Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law [...] the possession, purchase or cultivation of narcotic drugs [...] for personal consumption

Hence we can infer:

A) the measures related to cultivation, possession and purchase for personal consumption, are "subject to constitutional principles... and basic concepts": this reference to the national discretional power seems much more strict than the one in Art.2, Par. 1, and in fact is not mentioned by Art3, Par. 1. This means that, regarding behaviours related to personal use (cultivation, purchase, possession) the S.C. leaves a wider range of discretion to national laws.

B) as a matter of principle, the Art.3, Par.2 implies that cultivation for personal use is equivalent to possession: this principle is contradicted by many national laws that prescribe harsher sanctions for cultivation than for possession.

On this subject, we find something more in Par. 4 (c)

Art.3. Par.4 (c) - The Parties may provide. either as an alternative to conviction or punishient. or in addition to conviction or punishment of an offence established in accordance with Par 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender.

As we have seen, the offences quoted in Par. 2 are related to personal use, and also include cultivation.

This means that behaviours related to personal consumption (possession and cultivation) do not necessarily lead to conviction or punishment. Between the alternatives, there are "measures of treatment", but also "tmeasures of education" or "social reintegration".

CONCLUSIONS

Some remarkable reforms of the cannabis law seem possible carrying out the obligations under the S.C.:

1) CANNABIS CULTIVATION is not within the control of the S.C., independenly from the size and the THC content of the plants Therefore, nobody could be indicted for cultivating cannabis plants, before they are harvested.

2) CANNABIS CULTIVATION, if proved to be for drug production, and provided that it is intended for personal use, would be legally equated to possession for personal use.

3) CANNABIS CULTIVATION & POSSESSION for personal use could be sanctioned with "measures of education" and /or "social reintegration"

4) CANNABIS CULTIVATION & POSSESSION for personal use could be exempted from criminal measures, when a national government would consider these measures as conflicting with the "constitutional principles and the basic concepts of its legal system".

GIANCARLO ARNAO

SCIENTIFIC CONSULTANT OF "FORUM DROGHE" - ROMA

POD. CASALONE 58050 PANCOLE (GR) ITALY