The paper tries to argue that the Single Convention nowhere obliges States to ‘prohibit’ cannabis. To be sure, in 2020 the Commission on Narcotic Drugs (CND) voted by a narrow margin to remove cannabis from Schedule IV of the Single Convention, based upon a recommendation by the World Health Organization (WHO) arising from its first-ever critical review of cannabis. As a result of the 2020 vote, the treaty no longer recommends against medical use of cannabis. Removal from Schedule IV marked an important, long overdue reform. Unfortunately, also following the advice of the WHO (which we have questioned elsewhere), cannabis remains firmly in Schedule I, alongside such substances as cocaine, fentanyl and heroin.
CND 2019/ Credit: Martin Jelsma
‘High compliance’ makes a big point about the disappearance of ‘prohibition of cannabis’ wording from early drafts of the Single Convention. However, in the context of those deliberations, ‘prohibition’ referred to banning cannabis for all purposes, including medical uses, and several countries rejected that notion. India objected, for example, because it opposed abolishing the widespread traditional use of bhang made from cannabis leaves with a low THC content. Other States pointed out the use of cannabis in some pharmaceutical preparations as well as in indigenous medicine and argued that it was feasible that future research would reveal additional medicinal benefits. Also, the hemp industry was relevant for the production of fibre and seeds and could not be hampered by overly restrictive controls.
Negotiations led to compromises, such as explicitly omitting the leaves and seeds from the definition of ‘cannabis’ in the Single Convention, which as a result only refers to the ‘flowering or fruiting tops of the cannabis plant’; in addition, cannabis resin (hashish) and ‘extracts and tinctures’ were added to the Schedule. India made clear that it would not be able to sign the treaty if it would oblige them to also disallow the uses of cannabis leaves in foods and drinks. With a few other countries, India actually preferred to provide a more general exemption for ‘other legitimate uses’, as had been used in previous treaties. That would have afforded much more flexibility for traditional, social and religious practices, not only for cannabis but also for coca and opium.
Some countries maintained that it would not be easy for them to ban the centuries-old social uses of cannabis, and that they would need time to gradually phase out those widespread traditions. That led to the option spelled out in Article 49 that a Party may “reserve the right to permit temporarily” the use and production of “cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes” but “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”. Besides India, the only countries making use of that transitional reservation were Bangladesh, Nepal and Pakistan. Article 49 specifies further, however, that such “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”, a transition period that ended in 1989. To make it possible for the countries concerned to ratify the Convention, according to Adolf Lande (author of the Commentaries, involved in drafting the 1961 and 1971 Conventions and regularly quoted in ‘High compliance’ as an authority), it was “advisable to allow a certain period of grace before the complete prohibition of the practice” (Official Records I, p. 185).
Unfortunately, the Conference decided against the inclusion of a broad exemption and ultimately narrowed the language that would have allowed ‘other legitimate uses’ to a few specified provisions deviating from the Single Convention’s general and decisive obligation in Article 4(c) “to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”.
The general obligation is “subject to the provisions of this Convention”, ‘seven words’ that Riboulet-Zemouli claims are repeatedly neglected in other studies. But the treaty Commentary does not leave any room for ambiguity with regard to the three provisions which are excepted from the limitation to medical and scientific purposes, namely Article 49 (transitional reservations), Article 2(9) “(whose practical importance seems highly hypothetical)”, and Article 27, “permitting the use of coca leaves for the preparation of a flavouring agent which must not contain any alkaloids” (primarily meant for the manufacture of Coca-Cola, as long as the cocaine was removed from the leaves beforehand).
Underscoring the narrow scope of exemptions to the treaty’s general obligation, the Commentary added that: “It is one of the most important achievements of the Single Convention that it ended the exceptions permitted in earlier treaties, subject only to transitional provisions of limited local application and duration pursuant to article 49, and apart from two cases presenting no problem of public health because they exclude the consumption of the dangerous substances involved” (p. 110).
In attempting to argue that the Single Convention does not disallow recreational uses of cannabis, ‘High compliance’ cites (on pp. 99 and 103) from the Official Records that the Conference decided to leave “governments free to prohibit the production of cannabis or not, as they saw fit” and that “the prohibition should take the form of a recommendation only. In the last analysis countries themselves must decide”.
Crucially, however, those quotes refer only to countries’ option to prohibit cannabis for the purposes the treaty specifically allows (medical, scientific and some industrial uses), not to escape from its basic obligations. Understood in its proper context, the Commentary is actually highlighting that the treaty explicitly allows for a stricter regime—not for a more lenient one—in recognition of the position of countries that considered some or all of the treaty exemptions as unjustified and harmful to drug control (Article 39 and Commentary p. 450). If they so choose, States can decide to prohibit medical or industrial use, or extend controls to the whole plant including the leaves and seeds, beyond the basic treaty requirements. Nowhere in the texts of the Convention, the Commentary or the Conference proceedings is there any indication that the deletion of ‘prohibition’ intended to afford Parties leniency with regard to recreational cannabis. “With regard to cannabis”, according to the closing statement of the President of the Conference, “it would seem that, under the Convention, production should be prohibited except in special cases” (Official Records I, p. 217).