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Cannabis: UN vs UN

by Marco Perduca and Guido Long

In 2021 it will be 60 years since the adoption of the United Nations Single Convention on Narcotic Drugs. Over all these years, “inspired” laws and policies have failed in the goal of making plants and derivatives listed in four schedules widely available for medical and scientific use, while their non-prescribed use has been criminally sanctioned all over the world with increasing violations of freedoms and rights.

Over the years many UN member States have revised many of the provisions resulting from the ratification of the UN drug Conventions – after the 1961 one, amended in ’72, two more were adopted, in 1971 and 1988. Such revisions have been systematically stigmatised by annual reports of the International Narcotics Control Board, INCB, because they condoned the “recreational” use of controlled substances. 

The policies of the international drug control system are discussed at the UN in Vienna, by UNODC, where C stands for crime, while those on the health aspects of public life are decided at the UN in Geneva. For almost 40 years there has been no sharing of analyses and evaluations between these offices, nor did anyone think about reforming the management hierarchy of various programmes so that one could learn from the experience of certain decisions.

Also as a result of this, none of the 63 sessions of the UN Commission on Narcotic Drugs, CND, was ever opened by a declaration of reached goals – in the best of cases it was acknowledged that supply and demand had stayed stable, but were still structurally present in all countries.

Even if the World Health Organisation, and then UNAIDS, have been clear about the need to promote harm reduction policies for problematic drug use, UNODC and the INCB have never put into question the centrality of the three Conventions nor have they ever taken the responsibility to analyse the impact of decisions taken a long time ago when the phenomenon was of a very different magnitude and reach.

In April 2020 the UN Committee on Economic, Social and Cultural Rights published its General Comment on Science.

It is a document detailing in depth the implications deriving from Article 15 of the International Covenant on Economic, Cultural and Social Rights by reviewing the texts the international community has dedicated to science and specifying States’ obligations deriving from the implications of the “right to science”.

The General Comment will be used, among other things, to assist member States in preparing their reports for the United Nations about the respect of the obligations deriving from the ratification of the Covenant.

One paragraph is dedicated to controlled substances:

[…] scientific research is impaired for some substances under the international conventions on drug control, as these substances are classified as harmful for health and with no scientific or medical value. However, some of these classifications were made with insufficient scientific support to substantiate the decision, as credible evidence exists regarding the medical uses of a number of them, such as cannabis for the treatment of certain epilepsies. Thus, States Parties should harmonize the fulfilment of their obligations under the international drug control regime with their obligations to respect, protect and fulfil the [right to participate and to enjoy the benefits from scientific progress and its applications,] RPEBSPA, through a regular revision of its policies in relation to controlled substances. Prohibition of research in those substances are in principle limitations of the RPEBSPA and should meet the requirements of article 4 of the Covenant. Besides, because of the potential benefits for health of these controlled substances, these restrictions should also be weighed in relation to State Parties’ obligations under article 12 of the Covenant.

Without mentioning, it is a declaration of incongruity between what is foreseen by the drug Conventions and what is established by the Covenant, a document which, unlike the Conventions, has precise constitutional implications.

The Comment also dedicated a paragraph to the precautionary principle, a “guideline” that, theoretically, could have been the inspiration behind the necessity to sanction the use of psychoactive substances outside the medical and scientific realm:

The precautionary principle should not hinder and prevent scientific progress,  which is beneficial for humanity. On the other hand it should be able to address available risks for human health, the environment etc. Thus, in controversial cases, participation and transparency become crucial because the risks and potentials of some technical advances or some scientific research should be made public in order that society, through an informed, transparent and participatory public deliberation, can decide whether or not the risks are acceptable.

Although in the past much of commissioned research had the goal of proving the harm deriving from the use of certain substances, also thanks to the softening of laws and policies at local level and the progressive legal regulation of cannabis, scientific literature has produced studies that go in the opposite direction from those of the ’70s and ’80s.

More in detail, about internationally controlled substances, the General Comment states:

In particular, States should make all efforts to ensure that medicines and medical treatments, including in the field of drug dependency, are evidence-based, that their risks have been properly evaluated, and communicated in a clear and transparent manner, so that patients can provide properly informed consent.

Without mentioning arbitrarily imposed limits and bans, it is noted that some decisions go against the full enjoyment of the right to health and pose structural problems with respect to the protection and promotion of the right to science.

As confirmation of what is stated by the General Comment, already in 2018 the World Health Organization recommended the rescheduling of cannabis. The decision planned for the March 2020 session of the CND has been postponed to the supplementary session of December 3-4.

From 2020, thanks to the General Comment on Science we have a further document confirming the necessity to update rules not conforming to the international obligations of States.

While waiting for the CND to vote on the WHO cannabis recommendation, we need to act to ensure the sixtieth anniversary of the single Convention next year turns into a moment for political, juridical, socio-sanitary and economic evaluation of what has (not) happened in terms of access to plants under international control for medical and scientific use.

Now that the analysis of the right to health and the right to science on the basis of lessons drawn and international principles has taken place, the revision of criminal aspects can’t but follow suit.