Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System

Abstract

There are good reasons to legally regulate drugs markets, rather than persist with efforts to ban all non-medical uses of psychoactive substances. Regulated cannabis and coca markets are already a reality in several countries, with more likely to follow. But ignoring or denying that such policy shifts contravene certain obligations under the UN drug control treaties is untenable and risks undermining basic principles of international law. States enacting cannabis regulation must find a way to align their reforms with their international obligations. Reaching a new global consensus to amend the UN drug control conventions so as to accommodate cannabis regulation is not feasible for the foreseeable future, and the options that do not require consensus are limited. For countries choosing to regulate cannabis, notwithstanding the drug treaty provisions intended to disallow such a step, a proactive way forward would combine: (1) providing evidence of the ineffectiveness and negative consequences of the prohibitionist approach; (2) underscoring the inconsistencies and historical errors embedded in the treaty regime, and the political and procedural obstacles to its modernization; (3) explaining the shift to regulation with arguments of citizens' health and safety, and justifying it with an appeal to human rights obligations; (4) acknowledging that regulation contravenes certain drug treaty provisions and arguing that a limited period of 'respectful non-compliance' is unavoidable; and (5) preparing to resolve the legal conflict by submitting new reservations or by elaborating a new agreement among like-minded countries on the basis of the inter se procedure for treaty modification, as provided by Article 41 of the 1969 Vienna Convention on the Law of Treaties.