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Martin Jelsma and John Walsh testify before Canadian Senate

On May 1, Canadian Foreign Minister Chrystia Freeland appeared before the Canadian Senate’s Standing Committee on Foreign Affairs and International Trade (AEFA) to discuss the international dimensions of Bill C-45 to regulate cannabis. She acknowledged that regulating cannabis would entail “contravening certain obligations related to cannabis under the three UN drug conventions,” adding that, “we have to be honest about that.” Asked about the ‘inter se’ proposal, whereby like-minded nations can negotiate amongst themselves to contract out of certain provisions of the treaty, Minister Freeland replied that the government had discussed the ‘inter se’ concept and that it was worth thinking about: “We are definitely open to working with treaty partners to identify solutions that accommodate different approaches to cannabis within the international framework.”

Last month, in the course of studying Bill C-45, the Senate’s foreign affairs committee received a brief from the Vienna-based International Narcotics Control Board (INCB, the UN drug treaty monitoring body), basically arguing that derogating from the cannabis provisions would be impossible. The document, dated 13 April 2018 and available on the AEFA website, indicates it was authored by the Chief of the Convention Evaluation Section of the INCB Secretariat, Paul Rabbat, but was submitted to the Senate “as a statement of the Board’s policy.” The INCB has previously made clear its view that the UN drug treaties do not allow for the legal regulation of cannabis for non-medical uses. And we quite agree on that point, as we highlighted in our Senate testimonies last month.

The reality is that Canada and other jurisdictions are planning to regulate non-medical uses of cannabis despite the fact that the drug treaties expressly forbid doing so. The INCB, for its part, could attempt to facilitate a constructive dialogue about these very real treaty tensions. But if the brief submitted to the Committee is any indication, the INCB has chosen the route of bluster and intimidation, warning that Canada’s cannabis regulation, if implemented, may have “serious negative ramifications for the integrity of the international legal drug control framework” and calling for Canada to “reconsider the adoption of Bill C-45.”

If the INCB indeed meant to intimidate Canada against moving ahead with Bill C-45, the brief submitted to the Senate by Mr. Rabbat—supposedly in the name of the entire Board—seems unlikely to do the trick. Instead, the brief’s harsh tone and spurious legal arguments seem more likely to insult than intimidate, and can only serve to erode the INCB’s own credibility.

The brief’s most reckless claim is that the general obligation of the UN drug control treaties to limit drugs “exclusively to medical and scientific purposes” (UN Single Convention on Narcotic Drugs, 1961, article 4c) has become a “peremptory norm” of international law (jus cogens), “absolute and unequivocal in nature,” and “could not be derogated from by a State Party.” The brief asserts that any attempt by Canada to deviate from that principle in the case of cannabis would be invalid under international law. In our recent paper “Balancing Treaty Stability and Change: Inter se modification of the UN drug control conventions to facilitate cannabis regulation,” we demonstrate that drug prohibition is in no way comparable to an absolute and incontrovertible principle like the prohibition of genocide or torture.

After lengthy sessions and detailed reports to determine criteria for peremptory norms, the International Law Commission (ILC) has yet to find anything lending credibility to the position taken by the INCB. According to the ILC, the “criteria for identifying peremptory norms of general international law are stringent.” Only a few peremptory norms are generally recognised, and even those are limited to “the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.”

To date, no serious legal scholar has found a credible source attributing jus cogens-status to the drug treaty obligations. In fact, the Canadian Supreme Court has itself ruled that there is “no indication in international law” that drug offences belong to that highest category of legal norms. There are even provisions for exemptions, amendments, and reservations in the drug conventions themselves, and there are no specific restrictions made with regard to article 4(c). There is also sufficient state practice regarding cannabis policies to suggest that many states do not in fact consider its prohibition as absolute, from which no deviation is allowed.

The ILC adheres closely to the concept that for a norm to acquire the status of jus cogens from which no derogation is permitted, recognition and acceptance by the “international community of States as a whole” is determinative. At best, positions of other actors, such as the INCB or other UN bodies, may provide some secondary means of identifying the acceptance of States. The INCB, for its part, is in no way mandated to make any claims about peremptory norms regarding the drug treaty provisions without presenting evidence of that being explicitly recognised by “the international community of States as a whole.”

At a moment when more countries are moving towards legal regulation of the cannabis market, the INCB could have an important role to play, but it will clearly need to up its game. Overstretching its mandate by making unsustainable legal claims and resorting to fear-mongering tactics will only discredit the Board as an arbiter in exploring the best options for dealing with the undeniable treaty tensions that are already triggered.

Adapting the UN drug control system to modern realities is long overdue, and if the Board wants to protect the useful elements of the current system, the only option is to facilitate change, through honest discussion and valid guidance. By stubbornly defending the frozen treaty system in the face of numerous and legitimate calls for change, the Board will further erode its already tainted credibility and risks relegating itself to the role of a technical administrator of the system dealing with drugs for medical purposes.

Canada’s government can only be advised to maintain its clear and well-founded position, and to reject the Board’s false claims and thinly veiled effort at intimidation. Canada should proceed apace with its democratic mandate to approve Bill C-45 and initiate talks with other like-minded countries to address the tensions with the UN drug control system in a coordinated manner.

Read the transcript of Martin Jelsma's testimony to the Senate.