Highly Non-Compliant: Does Non-Medical Cannabis Legalization Really Fit within the UN Single Convention on Narcotic Drugs? No, It Does Not!
By Jason Adelstone
Apr 27, 2022
A recent paper by Kenzi Riboulet-Zemouli, published to coincide with the March 2022 session of the UN Commission on Narcotic Drugs (CND) in Vienna, purports to describe how regulating cannabis for recreational use (non-medical and non-scientific, collectively, “Non-Medical”) fits comfortably within the bounds of the 1961 Single Convention on Narcotic Drugs.
Entitled High compliance, a lex lata legalization for the non-medical cannabis industry: How to regulate recreational cannabis in accordance with the Single Convention on Narcotic Drugs, 1961, Riboulet-Zemouli’s paper argues that the Single Convention, as it stands, already allows for the regulation of Non-Medical cannabis. This premise, unfortunately, is just incorrect.
In this article, I will refute Riboulet-Zemouli’s arguments. As much of what is discussed in his paper is hard to understand and unclear from the outset, the below discussion is based on assumptions around Riboulet-Zemouli’s arguments and a reasonable understanding of the Single Convention.
The original inclusion of cannabis in the Single Convention was a historical error based on paternalism, colonialism and racism masquerading as science. Now, decades later, a growing number of countries are recognizing cannabis prohibition as a costly failure and shifting national policies toward legal regulation of Non-Medical (i.e., “recreational”) cannabis.
With two countries having already formally enacted legal regulation of Non-Medical cannabis domestically and several other countries in process, the question of how such policies relate to obligations under the Single Convention and other UN drug control treaties is a genuine one.
So, do Riboulet-Zemouli’s arguments provide a coherent and legally defensible way forward? No. And far from it. The paper does not shed light on the important treaty-related questions facing cannabis reformers but instead offers a confusing, contradictory and wholly unconvincing account. Instead of outlining a legally valid and politically feasible path forward, the paper’s arguments arrive only at an indefensible dead-end.
In reality, the Single Convention’s general obligation remains intact: to “limit exclusively to scientific and medical purposes” the drugs listed in its schedules (including cannabis), allowing only narrowly specified exemptions to that foundational principle. This obligation, however, should neither prevent nor delay countries from legally regulating Non-Medical cannabis. But doing so will entail a situation of treaty non-compliance that cannot be ignored or wished away, as Riboulet-Zemouli appears to do in his paper.
Fortunately, the Single Convention itself and other international treaties, provide Member Statesi with several methods that would permit a country to establish a Non-Medical program, including, Inter Se Modification, and Withdrawal and Reaccession with Reservations.ii Bolivia used the latter procedure to exclude the coca leaf (in its natural state) from Convention control (as it pertains only to Bolivia). Inter se modification is a procedure allowed under Article 41 of the 1969 “Vienna Convention on the Law of Treaties” and is specifically designed to find a balance between treaty regime stability and the need for change in the absence of consensus.iii Unlike the arguments presented by Riboulet-Zemouli, these internationally recognized methods would offer a pathway for Member States to implement Non-Medical legislation under international law.
At a time when respecting international obligations is of the utmost importance, Riboulet-Zemouli’s arguments are not only demonstrably incorrect but also potentially dangerous. With Russia violating its own fundamental international obligations daily, proponents of Non-Medical cannabis regulation should champion ways forward that are based on, and demonstrate, a respect for international law. Riboulet-Zemouli’s paper fails to do this, so it is important to clarify that his arguments discussed below are fundamentally flawed.
Articles 4 and 49
The express goal of the Convention is to limit the use of drugs, subject to controls, to medical and scientific purposes.iv The official Commentary to the Single Convention reinforces this animating principle, emphasizing that “[t]he object of the international narcotics system is to limit exclusively to medical and scientific purposes the trade in and use of controlled drugs. From the beginning this has been a basic principle of the multilateral narcotics system . . .”v Expounding on the same point, it adds that “[p]arties must prevent the possession of drugs for other than medical and scientific purposes by all the administrative measures which they are bound to adopt under the terms of the Single Convention . . . . Parties cannot legally authorize the possession of drugs for other than medical and scientific purposes, except in the cases in which Non-Medical consumption or industrial use is exceptionally permitted by the Single Convention.”vi
Riboulet-Zemouli’s thesis—that Non-Medical, non-scientific uses of cannabis are exempt from control under the Convention—defies the plain text of the treaty itself. If “‘other than medical and scientific purposes’ are exempt” from Convention control, then it is reasonable to assume that the definition of “cannabis” would have been drafted more precisely to specify that “cannabis” applies to only medical, scientific, and industrial purposes. This would have eliminated the need to include exemptions in the treaty, streamlining the entire document. The reason Non-Medical cannabis is barely mentioned in the treaties is because the basic premise of the Convention was to disallow such use and to force countries to abolish it. Not, as Riboulet-Zemouli argues, because Non-Medical cannabis is exempted. The only exceptions to the basic premise that survived the treaty negotiations were deliberately limited to a time deadline and to narrowly defined industrial purposes.
Mr. Riboulet-Zemouli argues that the modern view of the Convention is flawed because it focuses on prohibition rather than control. He is correct that the Convention establishes a regime of control, not prohibition, because its restrictions are subject to enumerated exceptions. However, from that unassailable premise, Riboulet-Zemouli leaps to the demonstrably false conclusion that the Convention is therefore permissive. But, the mere fact that the Convention’s restrictions aren’t categorical doesn’t mean that anything it doesn’t expressly ban is permitted. On the contrary, common sense and widely accepted norms of construction treat the enumeration of specific exceptions as presumptively foreclosing other un-enumerated exceptions.
Riboulet-Zemouli relies on the first clause of Article 4(c), which states that “[s]ubject to the provisions of this Convention” as evidence that Non-Medical use is permitted. But cherry-picking this clause confuses the goal and the intent of the Convention. A more straightforward reading of this clause is that “subject to the provisions of this Convention” refers to transitional periods of time during which Member States were allowed to authorize Non-Medical use for 25 years after signing onto the Convention (provided the country satisfied certain other requirements), as described in Article 49.vii
Riboulet-Zemouli contends that Article 49 proves that the Convention allows for Non-Medical cannabis use. However, the entire point of Article 49 was to provide temporary authorization as countries transition toward the complete abolition of Non-Medical uses. Specifically, Article 49 allows for Non-Medical regulation if such regulation was permitted by a Member State before January 1, 1961, and “the use of cannabis for other than medical and scientific purposes [was] discontinued as soon as possible but in any case within twenty-five years from the [Convention] coming into force . . . .” Additionally, the production and manufacture of, and trade in, cannabis, cannabis resin, and extracts and tinctures of cannabis for Non-Medical purposes “must [have] be[en] reduced and finally abolished simultaneously with the reduction and abolition of such uses.”viii Therefore, even if a country had made a reservation related to cannabis for Non-Medical purposes, it would have expired in 1989—more than three decades ago.
After considering Article 49’s Transitional Reservations, the better reading of “[s]ubject to the provisions of this Convention” is as a simple acknowledgment of Member States’ ability to continue authorizing Non-Medical use during this transitional period (among other specific exceptions). Viewed in this light, Article 49 dooms—and certainly doesn’t support—Riboulet-Zemouli’s thesis.
Articles 4 and 33
In Riboulet-Zemouli’s circular argument, Article 33 should be read to mean that since Non-Medical use is authorized (supported only by his assertions), then possession of Non-Medical cannabis is permitted. But the text of the treaty and language in the Commentary contradict this thesis.ix According to the Commentary, “Article 33 [(Possession of Drugs)] must be read in connection with Article 4, paragraph (c) requiring Parties, subject to the exceptions expressly permitted by the Single Convention, to limit exclusively to medical and scientific purposes the possession of drugs . . . . [A]part from these exceptions, Parties may not authorize the possession of drugs for other purposes.”x Confusingly, Riboulet-Zemouli acknowledges this language in the Commentary, but disregards its clear meaning, under the rationale that Non-Medical use complies with the Industrial Use exception and Article 49’s temporary authorization of Non-Medical cannabis. Those two positions are without merit or legal support.
While Article 33 is focused more on Member States’ punishment regimes, it offers further evidence that the Convention disallows Non-Medical use. “Whatever the position the Parties may take on this question of penal sanctions, it does not affect their obligation under Article 33 not to permit the unauthorized possession of drugs for personal consumption, like any other possession of drugs without legal authority.”xi If the Member State chooses to not punish unauthorized possession for personal use, the Member State must still prevent the possession through administrative controls of production, manufacture, trade and distribution which are required by the Single Convention.xii Simply claiming that Non-Medical use is authorized, without support, does not make it so.
Riboulet-Zemouli argues that Non-medical use fits into the definition of industrial use. But this again contradicts a straightforward understanding of the Convention.
Article 2, section 9, states that:
“Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes, provided that: (a) They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects (Article, 3, paragraph 3) and that the harmful substances cannot in practice be recovered; and (b) They include in the statistical information (Article 20) furnished by them the amount of each drug so used.”xiii
The Commentary discusses that Article 2, Section 9, was not intended to allow for Non-Medical use. It was intended to ensure that certain chemicals (e.g. “morphine was used in certain processes of photography”) were excluded from control due to their Non-Medical industrial properties.[xiv] Riboulet-Zemouli argues that removing THC from cannabis seems possible but removing morphine from morphine is not (this argument is hard to follow but does make sense at times). As such, removing THC from cannabis would fall into “denaturing” a substance to eliminate the harm, so “or by other means” must mean something else. That something else—as Riboulet-Zemouli states but does not support—is allowing Member States to implement Non-Medical regulations as an effective prevention of substance use disorders and harm reduction strategies. While cannabis has great potential to aid in the prevention of substance use disorders and harm reduction strategies, its classification as a schedule I substance restricts how those strategies can be implemented.
Riboulet-Zemouli appears to ignore an impossible aspect of his argument; for his argument to be justified—for Non-Medical cannabis to fall under industrial use—it could no longer be “cannabis” (as defined in the Convention) after the industrial processing concludes.xv For Non-Medical cannabis to fit into “industrial-use” it would need to be considered harmless (e.g. dyes). Like with the exception of coca leaves used as a flavoring agent under Article 27(1), for cannabis to be excepted in the same way, it would need to no longer be liable for abuse or have ill effects. Since, Riboulet-Zemouli’s premise is that Non-Medical regulation includes cannabis in its normal state, it would contain elements that have been determined to be liable for abuse and have ill effects. Thus, such regulation could not be permitted under the Single Convention. It is evident that the Convention and Commentary consider cannabis harmful—requiring control under Schedule I (and IV, until December of 2020) of the Convention. The Commentary also adds that “other than medical or scientific purposes” is meant to include “e.g., common industrial use.”xvi Riboulet-Zemouli misses an opportunity to discuss hemp since it has been a common industrial crop for centuries and has no qualifying definition under the Convention.
Riboulet-Zemouli also contends that because Non-Medical cannabis programs are sometimes referred to as “cannabis industries,” they should qualify under the Convention’s industrial use exception. However, for that to be true, one would have to believe that the Convention regulates semantics, not substances.
Riboulet-Zemouli proposes that the Convention has morphed into a prohibitionist treaty rather than a control treaty. In fact, the Convention establishes a regime of both control and prohibition. It controls what is permitted and prohibits what is not. If it simply controlled without prohibition, all drugs could be regulated so long as they were controlled. This was obviously not the intent of the treaty.
Despite highlighting that the term “prohibition” is absent from the Single Convention and was deleted from an earlier draft, Riboulet-Zemouli’s observation ignores that the term was only removed after the drafters/negotiators intended for prohibition to apply also to “medical purposes.” The removal of the term “prohibition” further proves that the drafters intended for both control and prohibition. Not, as Riboulet-Zemouli’s claims, that such an absence from the Single Convention indicates any flexibility towards Non-Medical use.
Because the Convention’s purpose and overriding goals are express and clear, Riboulet-Zemouli’s thesis is not only mistaken, but dangerous. At a time when international cooperation and demonstrating respect for international obligations are paramount, proponents of cannabis regulation should explore strategies that would allow cannabis reform countries to realign their new laws with their legal obligations, and with the understanding that cannabis regulation will create a situation of non-compliance with the Single Convention.
Proponents of Non-Medical regulation should avoid question-begging and instead focus on internationally recognized mechanisms for regulating Non-Medical cannabis. These include the several legally supported and internationally recognized methods for implementing Non-Medical programs outside of the Single Convention (Inter Se Modification and Withdrawal and Reaccession with Reservations). By promoting a fundamentally flawed interpretation of the Single Convention rather than exploring legitimate avenues for Non-Medical regulation, Riboulet-Zemouli risks distracting from the pursuit of legally valid and politically attainable strategies for countries to shift toward cannabis regulation in ways that uphold international law. As acknowledged but then disregarded by Riboulet-Zemouli, the Single Convention “limit[s] such drugs to medical and scientific use.”xvii Arguing that the Single Convention allows for Non-Medical regulation is simply without merit.
[i] The term “Member States” refers to those countries who have signed on as a party to the Single Convention.
[ii] These topics warrant their own discussion, but for purposes of this paper, we will just make mention of them.
[iii] John Walsh, Martin Jelsma, “Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System" (Nov. 29, 2019).
[iv] Single Convention on Narcotic Drugs, 1961, Mar. 30, 1961, 18 U.S.T. 1407 at preamble (hereinafter, “’61 Convention”).
[v] United Nations, Secretary-General, Commentary on the Single Convention on Narcotic Drugs, 1961, Aug. 3, 1962 at 110, Art. 4, commentary ¶ 9 (hereinafter “Commentary”).
[vi] Commentary, at 113-14, Art. 4, commentary ¶¶ 23, 25 (emphasis added).
[vii] Commentary at 467, Art. 49.
[viii] Commentary at 470, Art. 49, ¶ (2)(g) (emphasis added).
[ix] Commentary at 402.
[x] Commentary at 402, Art. 33, commentary ¶ 3 (emphasis added).
[xi] The concept of legal authority is a topic worthy of discussion. But again, it gets lost in the Article.
[xii] Commentary at 402, Art. 33, commentary ¶ 3.
[xiii] Commentary at 71, Art. 2, ¶ 9 (emphasis added).
[xiv] Commentary at 72, Art. 2, commentary ¶ 1.
[xv] A rational argument that the author could have made here is how countries have their own definitions of “cannabis” that conflicts with the Conventions definition (e.g. “Hemp” under the 2018 Farm Bill).
[xvi] Emphasis added
[xvii] 61 Convention, at Preamble.