Will the legalization of marijuana in Canada depend on the votes of federal MPs or on the views of Canada’s international partners? The Post’s Tasha Kheiriddin poses the question, “Will Prime Minister Justin Trudeau’s promise to legalize pot go up in smoke, or will he turn into an activist and try to convince other countries to liberalize their drug laws, as well?” and argues that this is “the choice he faces, if he doesn’t want Canada to run afoul of its international obligations” (‘Seeing green,’ Jan. 7). Fortunately, Canada does not need to convince the world to legalize marijuana.
The fate of Canada’s international obligations is in its own hands. Central tenants of international law include the principles of consent, sovereign equality among states, the territorial integrity of states and non-intervention in the domestic affairs of other states. States draft international treaties within this legal framework and include rules that govern how states join, amend and withdraw from treaties. Subject to limitations, international treaties also can permit states to take “reservations” to their obligations under specific provisions of a treaty when they join the treaty.
Canada is a signatory to three international treaties that, with the exception of medical marijuana, require the criminalization of the manufacture, distribution and possession of cannabis and its active psychotropic substance, tetrahydrocannabinol, or THC: the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol; the convention on Psychotropic Substances of 1971; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (the “conventions”).
While there are differences and nuances among these conventions, they generally provide that a state can: (a) make a reservation when it joins; (b) propose an amendment to the convention; or (c) withdraw from the convention.
Seeking an amendment to the conventions to exclude cannabis and THC would be no easy task. But it is not the only option. In 2009, Boliva, a signatory to all the conventions, proposed an amendment to the Single Convention to remove the ban on the practice of coca leaf chewing. In January 2012, after the amendment was opposed by other states, Bolivia withdrew from the Single Convention and re-joined in February 2013 with a reservation on the prohibition on coca leaf chewing.
A state cannot alter its obligations through a reservation unilaterally under the conventions. If a third of the parties to the convention oppose the reservation, it is nullified. Bolivia’s reservation was accepted because only 15 of the required 61 states were opposed.
(The withdrawal and re-accession approach is not without controversy, however. When Guyana and Trinidad and Tobago withdrew and re-acceded with a reservation to a treaty on civil and political rights, other countries claimed that this was a violation of international law.)
Uruguay is another example. In 2013 it legalized marijuana and has so far not attempted to alter its obligations under the conventions. The ramifications for Uruguay have been minimal. The International Narcotics Control Board has denounced Uruguay for being in breach of its obligations under the conventions, but little else has happened. While Uruguay’s approach may not be a model for Canada to follow, it serves as a reminder that a sovereign state can choose not to comply with its international treaty obligations, provided that it is prepared to face the consequences, if any.
There is also a precedent for withdrawing from international treaties when the government decides that the commitments in the treaty are no longer consistent with the country’s policies or interests, as the Canadian government has done in the recent past. In 2011, despite international condemnation, Canada withdrew from the Kyoto Protocol on the justification that it would be unable to satisfy the carbon emission reduction targets and would be faced with a $1.4-billion bill for carbon emissions permits from other Kyoto Protocol countries. Canada also withdrew from the UN Convention to Combat Desertification in 2013 and the International Convention for the Regulation of Whaling in 1981.
As Canada moves towards legalization, how it complies with its international obligations under the conventions will not be an insurmountable obstacle. All options should be on the table at this early stage, along with the acknowledgement that the course Canada takes may set the precedent for other parties to the conventions that decide to legalize marijuana in the future.