Cannabis in the international prohibition regime

As noted, almost all countries are signatories to the 1961 and 1988 drug control Conventions, and are required under these conventions to criminalize production, distribution, use or possession of cannabis. Cannabis was brought into the emerging international drug control system in 1925, at the instance of the

Egyptian delegate to the Second Opium Conference, but only with respect to medical preparations from the resin (Bruun et al., 1975:183). Cannabis preparations had had wide medical use at the end of the 19th century (Fankhauser, 2008), and in 1952 1000 kg. per year was still used for this purpose (Bruun et al., 1975: 201). Primarily under urging from the US (Bruun et al., 1975: 195-203; Edwards, 2005:153), cannabis was included in the strictest prohibition regime category in the 1961 Single Convention on Narcotic Drugs. This decision was premised on a conclusion that cannabis had no medical value; it was agreed that in the new treaty "it should ... be made clear that the use of cannabis should be prohibited for all purposes medical and nonmedical alike" (10th Session of the CND, quoted in Bruun et al., 1975:199). The fundamental decisions on the status of cannabis in the international regime were thus taken prior to the much wider modern experience with its nonmedical use. The effect of the 1961 Convention was broadened by the provision in the 1988 Convention requiring the production, distribution, possession or purchase of cannabis to be treated "as criminal offenses under [each country's] domestic law".

The Organs Of The International Regime

There are three main international bodies with responsibility under the drug control conventions (Room & Paglia, 1999). The Commission on Narcotic Drugs, with 53 nations elected as members by the Economic and Social Council (ECOSOC) of the United Nations, meets annually as the policy-making body. The International Narcotics Control Board (INCB), composed of 13 persons chosen as experts, has a dual role as the manager of the international supply of plant-derived medicines, particularly opiates, and as the watch-dog of the prohibition system for drugs covered by the treaties. The UN Office on Drugs and Crime serves as the secretariat for the system, with a broad international program of work. A fourth international body, the World Health Organization, also has a technical role in evaluating drugs and recommending on how they should be classified under the system.

The Place Of Cannabis In The System

Cannabis is by far the most commonly used substance subject to the system's prohibitions, but it has never been central to the concerns and activities of the system. The discussions of production and trafficking of cannabis in the UNODC's World Drug Report 2000, for instance, lacked the specificity of the discussions of opium and coca trafficking. "Available cultivation and production estimates are not sufficient to determine whether production at the global level has increased or decreased in recent years", the Report remarks (UNODC, 2000:32). The Report went on to note that cannabis seizures rose in the early 1990s, but "have not increased since the mid-1990s", but added that it is difficult to judge if this reflects "a real stabilization in global production and trafficking" or shifts in law enforcement priorities. By 2008, a substantial effort had been made to make the global picture for cannabis more concrete. Discussion of the global cannabis situation occupied about one-fifth of the space devoted to specific drug classes (UNODC, 2008:37-169). But this allocation might be compared with the Report's estimate that 65% of global seizures, and 67% of the "doses" of drugs seized, were of cannabis, and that the estimated global rates of drug use were 3.9% for cannabis, 0.6% for amphetamines, 0.4% for cocaine, and 0.4% for opiates (UNODC, 2008:26, 31).

Indications can be found in all parts of the system of the marginality of cannabis in the system's concerns, at least until recently. The Bulletin on Narcotics is a research journal published by the UNODC and its predecessors since 1949 ( Of the 191 articles published in the journal between 1986 and 2005 (the date of the most recent issue), only 9 were on cannabis, 7 of which were in an issue devoted to cannabis in 1994.14 At its annual sessions, the Commission on Narcotic Drugs passes a series of resolutions, often after heated debate in drafting committees (Room, 2005), and also recommends resolutions to be passed by ECOSOC. Of the 132 CND resolutions passed in the period 1997-2008 (, 4 concerned cannabis (3 of them in 2008); of the 51 resolutions recommended to the ECOSOC, one concerned cannabis. A reading of the annual

14 A further issue on cannabis was announced at the 2008 CND sessions (IDPC, 2008).

report for 2007 of the International Narcotics Control Board (INCB, 2008) conveys, on the one hand, the ubiquity of cannabis growing and trafficking as the Board reports on the situation region by region, and, on the other hand, the marginality of cannabis to the system's central concerns. Thus none of the report's 48 recommendations is specifically concerned with cannabis.

The International System And National And Local Laws

In its self-conscious role as the "guardian of the conventions" (Bewley-Taylor & Trace, 2006), the INCB periodically mounts the ramparts on cannabis in defense of the system, for instance by issuing an admonitory press release (UNIS, 2008) in response to press reports of experiments with computerized vending machines by California dispensaries for medical cannabis to be used in accordance with a doctor's letter. A prominent feature of the international drug control system, in fact, is the extensiveness and detail of its concerns with domestic matters in nations which are parties to the treaties. It was a common experience for national delegations to return from international drug treaty conferences with the news that amendment of domestic legislation would be required by the new treaty.

The level of control over domestic decisions to which the system aspires exceeds, for instance, the level of ambition of the European Union to control national arrangements in the same areas (e.g. concerning the Dutch "coffee shops" for cannabis), or the power of national governments in federal states to control state or provincial matters (e.g. concerning medical marijuana availability in California and other US states).

In addition to mandating controls on markets in psychoactive substances, the conventions require criminalization of the drug user, if and when the user is in possession of substances that have not been legally obtained. This is an unusually strong requirement even in the context of national laws on contraband commodities, let alone as a requirement of parties to an international treaty; there was no such provision, for instance, in the US alcohol Prohibition laws. The 1961 Convention includes specific provisions that possession of cannabis and other substances controlled by the Convention without legal authority shall not be permitted, and that, where constitutionally allowed, it shall be a punishable offence. As noted, the 1988 Convention adds the requirement that possession must be made a criminal offence.

Freezing Up: The System And Dronabinol

As noted, the World Health Organization (WHO) plays a technical role under both the 1961 and 1971 Conventions in recommending whether particular substances should be scheduled under either of the conventions, and in which Schedule of the conventions they should be placed. These recommendations are made by an Expert Committee on Drug Dependence, which is now reconstituted for a meeting every two years.

However, the international control system is increasingly inclined to disregard the scientific advice it receives from the WHO. Perhaps the most dramatic instance of this is the turning back by the CND in 2007 of a recommendation for a rescheduling of dronabinol (A-9 tetrahydrocannabinol, THC), the principal psychoactive constituent of cannabis, under the 1971 Convention on Psychoactive Substances. Dronabinol is prescribed particularly in the USA under the brand name Marinol as an appetite stimulant, primarily for AIDS and chemotherapy patients. While the plant cannabis and its natural products are included in the 1961 Convention among the substances which are considered the most dangerous and without any therapeutic usefulness (Schedules I & IV) , dronabinol was listed under Schedule I of the 1971 Convention (the most restrictive schedule) at the time of that Convention's adoption. The 1989 WHO Expert Committee on Drug Dependence recommended that dronabinol be transferred to Schedule II of the 1971 Convention. The CND initially rejected this, but after a reconsideration by the next Expert Committee made the same recommendation, the CND assented in 1991 (IDPC, 2007).

The 2002 WHO Expert Committee made another critical review, and partly in view of the increased medical use of dronabinol, recommended its reclassification to Schedule IV, the least restrictive schedule. The Executive Director of the UNODC persuaded the Director-General of WHO not to forward this recommendation, claiming it would "send a wrong signal and create a tension with the 1961

Convention" (IDPC, 2007). The 2006 WHO Expert Committee reconsidered and updated the review. Hesitating between Schedules III and IV, it finally recommended transfer to Schedule III as a small step forward. In its Report for 2006 and at the 2007 CND plenary, the INCB spoke out against the recommendation, expressing concern "about the possibility of dronabinol, the active principle of cannabis, being transferred to a schedule with less stringent control" (INCB, 2007). In the 2007 CND debate on this, the US was strongly opposed, and many other countries fell in line. Canada commended the WHO Committee for its "excellent expert advice", but did not support rescheduling because it "may send a confusing message with regard to the risks associated with cannabis use" (IDPC, 2007). The recommendation was sent back again for reconsideration by the WHO "in consultation with the INCB" - although the INCB has no formal role in scheduling under the treaties.

A System In Stalemate

Cannabis has lately come to play an important role in the international drug control regime at the rhetorical level. The annual statements of the UNODC always mention the estimated share of the world population that use illegal drugs. That number is dominated by cannabis. For example, in the 2005 World Drug Report the UNODC stated that there were 200 million drug users globally; of these 160 million (80%) used cannabis. The other drugs listed (ATS, cocaine and opiates) had user populations totaling only 40 million, less than 1 percent of the world's population. Without cannabis, the totals would suggest that illegal drug use is not a global population-level issue. Thus the drug helps give breadth to the drug issue globally; the same is true in many member nations.

Nor, despite the moves to a less punitive regime in some countries, is the prohibition regime at risk. For example, in 2008 the British government, with Prime Minister Gordon Brown leading the way, and against the advice of the official expert advisory committee, increased the severity of penalties for drug possession and sale,15 reversing an easing of penalties that occurred in 2004. The maximum penalty for supplying has been raised to 14 years; possession penalties have been raised to a maximum of five years. The rationale for this change, achieved primarily through the revision of the scheduling of cannabis from Class C to Class B, is primarily the new evidence discussed in Chapter 2 of an association between cannabis use and psychosis, particularly schizophrenia.

The event serves as a useful reminder that efforts to reverse cannabis prohibition or to substantially lessen the severity of the regime can readily be reversed. Popular support for cannabis prohibition is surprisingly strong. Eurobarometer, the principal survey of opinion in the European Union, reports that only about one quarter of respondents favored the legalization of simple possession of cannabis. Support for major changes in the legal status of marijuana possession laws has also been low in the United States for the thirty-odd years that the Gallup poll has asked the question. This provides a base of support for increasing the severity of penalties when perceptions of the potential dangers of the drug increase.

As discussed, however, there is minimal evidence that changes in statutory penalties would reduce cannabis use. The lack of evidence of a deterrent effect has to be weighed against the considerable harms that undoubtedly arise from the existing regime. Cannabis is a drug used by very large proportions of the populations of many Western countries. There is a large-scale black market that is an unintended consequence of the existing system of prohibition, as acknowledged recently in an essay by the Executive Director of the United Nations Office on Drugs and Crime (Costa, 2008). The cannabis market causes less harm than similarly-sized black markets for cocaine and heroin since it is associated with less violence and probably less corruption; the latter is a consequence of the more dispersed production and shorter distribution chains. Nonetheless, a global black market of tens of billions of dollars represents in itself a challenge to the authority of governments.

The arrests of many hundreds of thousands of cannabis users in the Western world might also be called a harm. That might not be the case if arrest were typically

15 The Home Office announcement of the change in policy can be found at

the prelude to provision of treatment, as is increasingly the case for heroin in some countries such as the United Kingdom, and if those arrested were likely to be users with treatable problems. However, there is nothing about the arrest process that suggests that it targets high-rate and problematic users; instead, it seems that arrestees are users who are unable to act discreetly or who simply are unlucky. A modest percentage of arrestees are referred to treatment. Thus, unless there is evidence of deterrent effect, arrest in itself seems to cause harm to some users without many compensating benefits. We note, though, that in most countries there is little formal punishment beyond the arrest itself. It is, accordingly, important not to exaggerate the severity of the harms suffered by arrested users.

Finally, there must be a nagging concern about the fairness with which cannabis laws are enforced. The small amount of available evidence suggests that police often use the charge of cannabis possession as an easy way of harassing or making life difficult for marginalized populations. It is often an excuse for intrusion into their lives, allowing a search which might turn up something else of interest for the police.

In the next two chapters, we turn to the various efforts and experiments which have been made at national or subnational levels to ameliorate these harms, considering first the nature and scope of the efforts, and then the evidence on their effects.

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