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International law experts say legal cannabis defies Canada’s UN treaty obligations

|Written By Aidan Macnab
International law experts say legal cannabis defies Canada’s UN treaty obligations
Roojin Habibi, a research fellow at the Global Strategy Lab, says cannabis legalization, in a public health perspective, makes sense but it is sending the message to the international community.

Experts in international law say legalizing recreational use of cannabis could spell political trouble on the international stage for Canada as it is going against three United Nations drug-control treaties.

In Legalizing cannabis violates the UN drug control treaties, but progressive countries like Canada have options, which is to appear in the Ottawa Law Review, Roojin Habibi and Steven Hoffman lay out how Canada, often an advocate for international law and critic of those who violate international treaty obligations, is violating the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

“Cannabis legalization, in a public health perspective, makes sense. But we're sending out the message to the international community that we don't care about the fact that we're violating a treaty,” says Habibi, a research fellow at the Global Strategy Lab, a collaborative research program between the University of Ottawa and York University.

Habibi, who has a law degree from the University of Ottawa and specialization in transnational law from the University of Geneva, co-authored the paper with Hoffman, professor of global health, law and political science at York University.

The two authors advise Canada to take this as an opportunity in advocating for Canada’s position that the prohibition of cannabis does more harm than good and work with other nations to reform the international drug control regime.

 “Our argument was if you do that, then you come out with a principled stance on cannabis,” Habibi says.

However, prior to legalization, Minister of Foreign Affairs Chrystia Freeland told the Standing Senate Committee on Foreign Affairs and International Trade that Canada would not advocate legalization as a solution for other countries.

The Standing Senate Committee met May 1 to discuss Canada’s international obligations. Ontario Senator Salma Ataullahjan asked Freeland how she reconciles her strong advocacy on the importance of a rules-based international order with a decision to violate Canada’s international treaty obligations.

Freeland told the committee her government recognizes its cannabis legalization would “result in Canada contravening certain obligations related to cannabis under the three UN drug conventions.

“With this said, it is nevertheless our government’s view that our approach is consistent with the overarching goal of these conventions, namely, to protect the health and welfare of society,” Freeland said.

Freeland pointed to Canada’s 2017 re-election to the commission on narcotic drugs, which happened one week after cannabis legalization was tabled in Parliament, to argue that Canada is still seen as a devotee to the UN drug control treaties and viewed as a leader in the international community.

Freeland continued to explain why Canada cannot simply withdraw from these treaties, noting the conventions regulate more than 100 drugs and substances, including those that are responsible for the current opioid crisis and others essential to Canada’s health system.

“Withdrawing would be an excessive response and detrimental to Canada’s and the international community’s best interests,” she said.

Richard Walker, a spokesman at Global Affairs Canada, said in an emailed statement, “Canada’s approach to cannabis is consistent with the overarching goals of the conventions to protect the health and well-being of Canadians.”

A statement released Oct. 17, the day cannabis legalization came into effect, by the UN’s International Narcotics Control Board stated: “By moving forward with the legalisation of cannabis for non-medical purposes in disregard of its legal obligations and diplomatic commitments, the Government of Canada has contributed to weakening the international legal drug control framework and undermining the rules-based international order.”

Another witness in front of the Senate committee was Bruno Gelinas-Faucher, a PhD candidate at the University of Cambridge Faculty of Law, former editor of the Quebec Journal of International Law and the Cambridge Journal of International and Comparative Law and member of the Quebec and Ontario bars.

Gelinas-Faucher says Freeland’s responses to the Senate committee were “disheartening,” as she acknowledged Canada was breaking the treaties but showed no proactive approach to making that right, simply stating that Canada would continue to work with its partners.

Though Canada has four options to remedy its treaty violation, Gelinas-Faucher says they are more politically difficult than they look.

He says countries, such as Russia, criticized by Canada for not following its international treaty obligations for its invasion and annexation of Crimea, are trying to “turn the Canadian rhetoric on its head.”

On June 22, Russia’s Canadian embassy tweeted a statement from Russia’s information and press department, calling on “Canada’s partners in the G7 to respond to its ‘high-handedness’” and called Canada’s cannabis legalization a “serious obstacle on the way to the strategic goal set by the world community — building a drug-free society.”

Gelinas-Faucher says that, according to 2016 briefing materials from the minister of Foreign Affairs he received through access to information requests, Canada is preparing a campaign to be elected on the UN Security Council.

“I think it's very dangerous for Canada to be so cavalier with the international approach,” he says. “International law is based on reciprocity. When we asked other countries like Saudi Arabia to respect human rights, when we asked Russia to respect their international law obligation, we don't have the luxury of the country to decide which conventions we ask the other countries to respect and which convention we decide we don’t have to respect.”

As a signatory to the Single Convention, under article 33, Canada is required to make the possession and production of narcotic drugs, including cannabis, a punishable offence. Article 22.1.a of the Psychotropics Convention requires Canada to treat any violation of law or regulation under the treaty as a punishable offence, for which serious consequences will “be liable to adequate punishment, particularly imprisonment or other penalty of deprivation of liberty.”

In the Trafficking Convention, under article 3.2, Canada signed on, again, to maintaining as a criminal offence the possession, purchase or production of narcotic drugs, including cannabis.

Canada shares its treaty obligations with almost the entire world. The Single Convention includes 186 countries, the Psychotropics Convention 184 and the Trafficking Convention has 190 nations signed on.

Canada’s move is significant, as it comes at a time when the United States and President Donald Trump stand as an example of a growing rejection of globalization, internationalism and international law, says Habibi. Canada is the second signatory nation to disobey these treaties and the first G7 country to do so, she says.

“There's definitely backlash, a trend toward saying international rules are not important,” she says.

Habibi says Canada has four options to remedy the situation:

• initiate reform within the treaties, amending out the inclusion of cannabis as a controlled drug;

• denunciate then re-accede to the treaty with reservations, its reservation being cannabis, thereby eliminating cannabis control from its obligations. The re-accession can establish an inter se agreement with other parties in a shared move toward changing the provision that deals with cannabis;

• a denunciation, to leave the treaty citing “historical error” or “fundamental change of circumstances,” which signatories are entitled to via the Vienna Convention;

• push for the World Health Organization to re-schedule cannabis in its categorization of controlled substances.