Remarks Allyn Taylor at 2018 CND side event Regulating Cannabis in Accord with International Law

Allyn Taylor, University of Washington School of Law (U.S.)
CND side event Regulating Cannabis in Accord with International Law: Options to Explore
Friday, March 16, 2018


The prior panelists have made a concrete political and legal case for the codification of a treaty inter se to address the tension between state regulation of cannabis and commitments under the Single Convention on Narcotic Drugs. Dissatisfaction with the status of cannabis in the treaty system has long resulted has been described as “quiet revolution,” Today, however, the quiet revolution has turned into an all out revolt. With more and more direct treaty violations, the tensions between state cannabis policy and international law can no longer be ignored and viable options to maintain the integrity of the treaty system are highly limited. Recognizing the increasing polarization of policy debates in Vienna, there is simply no political will to resolve the challenges of cannabis reform within the treaty system.

In this scenario, the codification of a treaty inter se between two or more state parties is, as Dr Jelsma and his colleagues have written, the only safety valve for collective action that can adjust the treaty regime for like minded parties and, at the same time, preserve the rule of law.

With more and more states modifying the legal status of cannabis in contravention of the treaty, the time is ripe for such states to use their sovereign authority to codify a new inter se treaty consistent with international law. The codification of a treaty inter se can maintain the integrity of the drug treaties and the legitimacy of state action.

My task for the next few minutes is not to further make the case for an inter se treaty, but to discuss the processes that can be used by interested parties to advance negotiation of such an instrument. I will focus, in particular, on the contribution that civil society can make to strengthen this process and, perhaps, even jump starting it.

States by virtue of their international legal personality have the sovereign authority to negotiate virtually any treaty consistent with the UN Charter–including the proposed inter se treaty. Contemporary international lawmaking tends to be viewed as a process in which states, with participation of non-states actors formulate rules in accordance with agreed, pre-determined procedures.

Notably, the Vienna Convention on the Law of Treaties (VCLT) has very little to say about the process by which lawmaking happens. The VCLT has only one rule of negotiation applicable to inter-se treaties. Pursuant to Article 41 negotiating parties have a duty to notify other parties to the multilateral treaty of their intention to adopt an inter-se modification near the end of the process (according to the VCLT commentary). Some further general guidance is provided by the UNGA 1999 Negotiating Principles, including the duty to negotiate in good faith. But outside these limited parameters, law-making can be conducted in any manner that the state parties see fit and there are a multitude of fora and designs of treaty negotiations.

In recognition of the variety of processes, I want to focus on the early stages of the treaty making endeavor and the contribution that non-state actors (NGOs) can make to this process. In general, the initiation of the legislative process is an unsystematic affair, at the national level and especially at the international level because of the highly decentralized nature of the entire process. During or after the stage in which interested parties begin to identify their desired goals through domestic policy processes, the parties will enter into the pre-negotiation phases of the “if” and “how” of formal negotiations. In the course pre-negotiation the parties will also begin to identify common or separate interests and goals The subsequent negotiation phase consists, of course, of official meetings and informal meetings.

The development of an inter se treaty on cannabis raises novel and potentially highly complex substantive issues on which little exists to guide the policy making process. For example, what should be the scope of the treaty? Should it simply dis-apply the scheduling system of the drug treaties or address other issues such as medical cannabis and the stringent requirement of state medical systems in the Single Convention? In addition, should the treaty be broadly drafted to allow states maximum autonomy to regulate cannabis according to domestic preferences? Or should it include some international controls and commitments? And if so what? Should the treaty include commitments on public education? Protection of youth? Should it be drafted as a full blown public health regulatory instrument? In addition, there are important issues regarding international trade. Should the treaty authorize international trade in cannabis amongst the parties to the treaty? And, if so, how? What legal mechanisms and controls can be included in the treaty to assure other states that States moving outside the current legal regime will continue to honor other states’ domestic prohibition of cannabis? Whether or not the treaty incorporates an international trade regime, what mechanisms can be included in the treaty to control potential diversion of cannabis into illegal international channels? These are just a few of the myriad of substantive issues that will confront negotiators?

In addition to complex substantive issues, there are a host of legal procedural mechanisms to be considered. For example, should there be duties of international cooperation and information sharing to guide future policy development, and if so what? Should the treaty allow for reservations? Should it be open-ended to allow other states to join the instrument as their domestic public policy environments evolve?

Clearly the elaboration of an inter se treaty on cannabis raises novel and potentially highly complex substantive and, procedural issues on which little exists to guide the policy making process. The lack of information on these issues could be a major barrier to policy development and treaty codification,
but NGOS can help fill this vacuum

NGOS are an important and even central component of most treaty-making processes today, both inside and outside the UN system. As Raustalia has observed, their participation yields political, technical and informational benefits for states and participation can be structured to secure these benefits, while maintaining real limits on NGO activities and power.

As a former legal adviser at WHO, I have been involved in several legal processes as the which NGOS made a substantial contribution to honing the treaty-making process early in the process. For example, formal negotiations of the Framework Convention on Tobacco Control were initiated by public hearings in which NGOs participated and provided substantive ideas some of which were debated during the negotiation process. During the negotiations, NGOS continued to provide policy input and advocacy for the treaty. Notably, as states moved closer to fixed positions and final text of treaty , NGO formal participation became increasingly narrowed – consistent with what we see in final stages of other negotiations. Another interesting example is the negotiation of the WHO Global Code of Practice on the International Recruitment of Health Personnel. Although the Health Assembly authorized the negotiations many years earlier, the process remained dormant until it was launched by an initiative spearheaded by Realizing Rights led by Mary Robinson. Realizing Rights convened several sessions of a global policy counsel consisting of key interested states, representatives of international organizations and other NGOs to begin the policy dialogue on the content of the proposed Code. This process served as a kick start to formal negotiations.

The experience of these two , very different processes, points to critical roles that NGOs can play in process of negotiating an inter se treaty.

First, at the early lawmaking stages, major independent NGOs could utilize their convening power to bring together interested parties to discuss contours and policy process for codifying an inter se agreement. This convening rule could play a critical role in galvanizing action on the cannabis treaty. The reality is cannabis reform is highly politically controversial A number of states are moving y ahead domestically, including Canada, the Netherlands, Switzerland, Uruguay, Morocco and Jamaica. Further, a number of other countries are interested in domestic reform, but are deterred by the international legal status of cannabis. All of these states are likely interested in changing legal status of cannabis, but none find taking the political lead feasible or palatable.
In this scenario, the creation of an independent forum organized by NGOs can relieve the political pressure on states to take the lead will providing a platform for all interested states to meet and negotiate

A second key role that NGOs can play is providing policy research at all stages of the lawmaking process, but especially at initiation. One of the prime contributions of NGOS in international lawmaking process is policy research and development. This contribution will be essential in the early stages of the development of an inter se cannabis treaty – when state policy positions are being developed. As is in the case of other areas of legal concern, the drug control field includes, expertly staffed NGOs and academic centers that devote considerable efforts and resources to policy research and have substantial expertise in drug policy. These organizations include, the Transnational Institute, the Washington Office on Latin America, and the Global Drug Policy Observatory at Swansea University in the UK. By involving organizations such a s these in the process of developing a cannabis treaty, governments may be able to gain accurate and creative policy advice from independent sources, advance the efficacy and lower the effective cost of treaty negotiations.

In this process, NGOS and academic centers can potentially also move process along by creating different type of draft documents . The most complicated and diverse stage in the treaty-making process is, of course, that of formulating the instruments. This may involve several sub-stages: preliminary studies, particularly in technically complex fields and initial drafts. NGOs can help at all stages. For example, one such document that NGOs can potentially draft early on is what I call the "Elements" document. In early days of FCTC, the secretariat created a document called Elements of FCTC – that included all of the possible topics that could be included in the treaty.
Such a document could be very helpful to states to kick start discussion of novel inter se agreement. Further on in the process NGOs can also potentially create draft text on direction of states

To sum up. NGOs can play a central role in supporting states and facilitating the development of a new inter se treaty outside of the UN system The legal reforms happening at increasing pace in states today means that there is a window of opportunity to resolve the legal dilemma by adopting a new treaty.
Sovereign states will be the creators of a new inter se treaty, but can do so in a manner strengthened by the contributions of civil society. Ultimately, the benefits that states will accrue from NGO participation will allow them to regulate cannabis with greater efficiency, effectiveness, legality and legitimacy.

Allyn Taylor, University of Washington School of Law (U.S.)
Friday, March 16, 2018