Legalizing marijuana: What about Canada's international commitments?

By Justin Ling Web Only

Legalizing marijuana: What about Canada's international commitments?

Photo licensed under Creative Commons by GoToVan

If Canada legalizes marijuana, will the U.N. Security Council authorize direct force to dissuade the Trudeau Government’s pot plans?

It's most unlikely.

But that’s the absurd conclusion to a strange thought experiment accidently set-off by some bureaucrats in the Privy Council Office.

“Canada is party to three international drug conventions,” reads a briefing note prepared for the prime minister after his election. “All three require the criminalization of possession and production of cannabis. As part of examining legalization of cannabis possession and production, Canada will need to explore how to inform the international community and will have to determine the steps needed to adjust its obligations under these conventions.”

The bureaucrats were referring to three different conventions: the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

The language in the three conventions contain various exemptions for medical and industry purposes, but Article 28 of the 1961 treaty reads: “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.”

The 1988 convention went on to explicitly spell out that many of these drugs, including cannabis, were not to be marketed and sold for personal possession.

So what does that mean for Canada?

“I guess the short answer is: in terms of the ‘61 treaty, failure to abide by the rules, it says, could refer this to the International Court of Justice,” says Mark Warner, who runs his own firm focusing on international business and regulatory law.

And what happens if Canada loses that case, and the world feels the need to enforce the ruling? Well the case could then head to the Security Council, which could authorize military enforcement.

Obviously, that probably won’t happen. “It seems unlikely,” says Warner.

But the conundrum is nevertheless interesting.

On the one hand, Canada supports the spirit of these conventions, legally binding on some 73 nations in the fight against drug smuggling. On the other, the Trudeau government has clearly signalled that the current prohibitions surrounding marijuana do not work, and cracking down on organized crime could be more easily achieved by internalizing the black market.

Still, the treaty is unambiguous: Signatory countries are required to criminalize cannabis, just like non-medical opiates and cocaine.

Canada, however, wouldn’t be the first jurisdiction among signatories to the convention to legalize or decriminalize marijuana. Marijuana has become, to varying degrees, decriminalized across South America, including in Colombia and Chile. In Portugal, most drugs, including cannabis, have been decriminalized since 2001. In America, recreational cannabis is available in Oregon, Washington, Colorado, Alaska and the District of Columbia.

Most of the countries that have decriminalized the drug have generally only done so for small amounts, and/or have argued that it falls under the guise of medical exemptions.

But the most brazen nation to defy the U.N. conventions thus far has been Uruguay, which legalized the drug outright in 2013, making it the first country to do so.

A 2014 report from the International Narcotics Control Board, tasked with enforcing those treaties, tried to dissuade Uruguay’s government from their decision.

“The Board stresses the importance of universal implementation of the international drug control treaties by all States parties and urges the Government of Uruguay to take the necessary measures to ensure full compliance with those treaties,” it reads.

It also warned American states in a similar manner.

The Government of Uruguay has largely ignored the warnings, insisting that they will table documents at the U.N. contesting the report.

Ultimately, unless another country insists that Uruguay’s legalization is having a serious negative impact on their ability to combat drug trafficking — if, say, Argentina says huge crates of marijuana are crossing their border — the matter will likely be confined to the board’s reports.

But, hypothetically, if Canada legalizes the drug, the United States could bring Ottawa before the international court for its failure to uphold the conventions. And Canada — experienced mostly in law of the sea cases — may well lose. But, even then, enforcement is hardly practical.

America, inversely, need not worry too much about the U.N. conventions. Because of clear distinctions on criminal matters between the federal and state governments, the U.N. likely can’t try to enforce such a national treaty onto America’s sub-national governments. Canada, with its federal competence on criminal law, likely can’t claim that exemption.

Either way, the legal mechanisms involved here are more symbolic than practical.

“In the realm of international law, it’s moral suasion,” says Warner. “Countries don’t want to be regarded as bad.”

Suasion works well on Canada. “I can’t think of a case where Canada has lost a world court case and said: to hell with you world court,” he says.

Warner lays out three options: “We’ll either have to negotiate changes to the treaty, which will be difficult; we’ll have to leave the treaty; or we’ll have to leave and come back in.”

To leave the treaty and come back — with the reservation that Canada will not abide by the articles governing cannabis — Canada would need to file its intention to leave in writing, and wait six months to be released from the convention.

Alternatively, trying to amend the convention outright might prove to be a headache, although Canada wouldn’t be alone.

An April 2016 meeting of the United Nations General Assembly will tackle international efforts to address the world drug problem. “At the meeting, several South American countries, as well as Mexico, wish to discuss what they perceive as more effective policy approaches to respond to the current realities of the drug problem, which could include decriminalization/legalization of illicit drugs, harm reduction, and/or a call to renegotiate the international drug control conventions,” reads Trudeau’s briefing notes.

A fourth path — trying to “shoehorn” Trudeau’s plans into the medical exemptions laid out in the conventions — would be difficult.

Hugo Alves, Matthew Kronby, and George Reid penned a column in last week’s National Post entitled “When it comes to pot, Canada shouldn’t worry too much about treaty obligations.”

Alves is a partner who focuses on the medical marijuana business, Kronby a partner who focuses on international regulatory compliance, while Reid is an associate specializing in international trade; all three are with Bennett Jones.

“Central tenets of international law include the principles of state consent, sovereign equality among states, and non-intervention in the domestic affairs of other states,” the three write.

They note several examples — including Canada’s withdrawal from the Kyoto Accord — in arguing that U.N. conventions, generally, are not to be seen as constraints on domestic policy-making.

“As Canada moves towards legalization, how it complies with its international obligations under the conventions will not be an insurmountable obstacle. All options should be on the table at this early stage, along with the acknowledgement that the course Canada takes may set the precedent for other parties to the conventions that decide to legalize marijuana in the future,” they conclude.

Navigating U.N. bureaucracy is probably the least of Trudeau’s worries. The government has yet to put forward any concrete plan to legalize marijuana, despite attacking it as a central campaign promise during the last federal election

Justin Ling is a regular collaborator based in Ottawa.

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