Reference:
LEBAUX, Valerie. Cannabis and Cannabinoids under the United Nations Drug Control Conventions. In; CARLINI, et. Al. Cannabis sativa L. e Substâncias Canabinóides em Medicina. Brasília – DF: Secretaria Nacional Antidrogas, 2004. p.103-115.

ABSTRACT
Cannabis control regime

The legal definition of Cannabis is gíven by article I in the 1961 Single Convention.

“Cannabis” means theflowering or fruitíng tops of the Cannabis plantfroco which the resin has not been extracted, by whatever name they may be designated. The definition of the Single Convention covers ali forms of Cannabis plant, no matter whether they are considered to be different species or varieties. States have to prohibit the cultivation of the Cannabis plant, if in the country or territory of the Party, “…the prevailing conditions…render the prohibition of the Cannabis plant the
most suitable measure in its opinion for protecting the public heaith and welfare and preventing the diversion of drugs into the illicit traffic… ” (Single Convention, A 22, para 1).

Cannabis and Cannabis resin appear in Schedule IV of the 1961 Single Convention including the most dangerous narcotic substances, which are “particularly harmful and addictive with no appreciable compensatory therapeutic properties”. The three UN Conventions require parties to establish as criminal offences under law the possession, purchase or cultivation of controlled drugs including Cannabis for the purpose of non-medical personal consumption.

Tetra-hydrocannabinol control regime

Tetra-hydrocannabinol is included in schedule I of the 1971 Convention on Psychotropic substances and Delta 9 THCs is classified in schedule II. In 1990, on recommendation of the WHO committee of experts, dronabinol – an isomer of Delta 9 THCs – has been transferred froco schedule I to schedule II in order that it can be prescribed as a medicine used when the classic treatment for nausea caused by the chemotherapy for cancers fails, and also to treat anorexia frequently associated to the loss of weight by people suffering AIDS.

In 2004, a new reclassification of dronabinol/Delta 9 THC and of all its isomers is being considered from schedule II (substances susceptible of abuse constituting a serious risk for the public health and whose therapeutic value is weah to average) to schedule IV of the 1971 Convention (substances susceptible of abuse constituting a weak rish but non negligible for the public health and whose therapeutic value
is weak to big).

Discrepancies in the implementation of the UN Conventions
Ineffective enforcement.

Many national law enforcement agencies give de facto priority to the prosecutions of personal users of Cannabis. The cases have the advantage of easy proof, no strong defense, case of conviction and hence high statistical success rates. But this diverts resources from the more important and difficult cases (e.g. organized cultivation prosecutions and asset forfeiture cases), and tends to overload the criminal justice and penitentiary systems.

Lach of enforcement of illicit cultivation laves, either by choice or by default.

In developed countries, enforcement can be lax in some countries by choice, because of the high proportion of illicit use in the population and due to the perception that Cannabis products are not “as harmful” – as the other drugs included in Schedule I of the 1961 Single Convention – to justify the scarce and expensive resources of criminal justice systems.
In developíng countries, illicit cultivation penalties and sanctions are typically higher but prosecutions are often not brought to court, e.g. because of unwillingness to prosecute rural farmers and workers, physical danger to law enforcement agencies seizing remoce cultívations in often hostile territory or lach offlexible criminal procedures. With the ongoing evolution, some producing countries could prefer to posítíon themselves to become Lhe first supplier to any legalized European marhets rather than implementing effective interdiction programmes. This can lead to such expansion of domestic illicit production that national cereal crop self-sufficiency is eroded.

INTRODUCTION

The United Nations drug control conventions – the Single Convention on Narcotic Drugs, 1961, amended by the 1972 Protocol, the Convention ou Psychotropic Substances, 1971, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, share one main objective: To limit the supply and use of narcotic drugs and psychotropic substances to exclusively medical and scientific purposes.

The 1961 Single Convention on Narcotic Drugs, which entered into force in1964, replaced drug control treaties concluded before World War 11(1912 HagueOpium Convention, 1925 Geneva Opium Agreement, 1931 Narcotic Drugs Convention, 1936 Illicit Traffic Convention, 1946 Lake Success Protocol, 1948 Protocol, 1953 New York Opium Protocol). It establishes an international system of control on possession, cultivation, production, distribution, import and export of controlled drugs for licit use. The 1972 Protocol amending the 1961 Convention introduces provisions relating to the treatment and rehabilitation of drug addicts.

The 1971 Convention on Psychotropic Substances which entered into force in 1976 was adopted in response to the expanding spectrum of drugs of abuse and provides for control over more than a hundred psychotropic substances: hallucinogens, amphetamines, barbiturates, tranquillizers.

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides for comprehensive measures against drug trafficking, including provisions against money laundering and diversion of precursor, chemicals and aims at strengthening international cooperation through mutual legal assistance, extradition, controlled deliveries. It entered into force in 1990.

The United Nations drug control conventions enjoy quasi-universal adherence: 180 States are parties to the 1961 Convention, 175 are parties to the 1971 Convention and 169 are parties to the 1988 Convention1. They therefore represent the wide consensus of the international community on matters of drug control.

The present paper presents an overview of the control regime established over Cannabis and cannabinoids by the drug control conventions: their classification under the conventions [1] schedules, control measures applicable to their licit trade and penal provisions provided for their illicit trafficking and nonmedical personal consumption.

1. Classification of Cannabis and cannabinoid substances under the conventions

1.1. Legal definition of Cannabis

Article 1 of the 1961 Convention defines Cannabis as “the flowering or fruiting tops of the Cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated”;

Cannabis plant as “any plant of the genius Cannabis “; and Cannabis resin as “the separated resin, whether crude or purified, obtained froco the Cannabis plant”.

Those definitions were taken over from the Indian legislation of that time: ganja was defined similarly as Cannabis under the Convention, and charras, similarly as Cannabis resin. It should be noted that in 1961, the use of Cannabis occurred in some countries only (Egypt, South Africa, India) as a traditional use for religious , ceremonial, quasi-medical and recreational purposes.

The 1961 Convention obliged those countries to abolish traditional use of Cannabis and Cannabis resin, as well as production, manufacture and trade for non-medicai purposes after a transitional period of 25 years (article 49, Transitional reservations).

A few remarks may be made on the adequacy of the definitions adopted in 1961. Seeds and leaves of the Cannabis plant (when not accompanied by the tops) are excluded from the definition and therefore not under international control. Concerning Cannabis leaves, the Convention merely provides that Parties “shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the Cannabis plant” (Article 28). The absence of any international obligation to control Cannabis seeds has recently been identified as a matter of concern in view of the widespread sale over the
Internet of Cannabis seeds advertised in terras of their intoxicating ability and potency and therefore clearly not for licit cultivation.

It should also be noted that new, highly potent varieties of Cannabis have been developed through sophisticated horticultural techniques (hydroponic cultures, selection of cultures, cloning), with high THC leveis. It seems paradoxical that at a time when the reputation of Cannabis as a soft drug expands and its classification as a dangerous drug under the conventions is being questioned, some varieties of Cannabis (Nederwiet-type Cannabis) have a potency and hallucenogic effects unheard of in 1961.

1.2. Classification of Cannabis under the 1961 Convention

Narcotic drugs placed under control in the 1961 Convention are classified underfour schedules. The criteria for inclusion in the schedules strike a balance between liability to abuse and risk to public health, on the one hand, and therapeutic usefulness on the other.

• Schedule 1 includes drugs particularly liable to abuse and to produce ill
effects (ex: opium, cocaine)
• Schedule II includes drugs not liable themselves to generate dependence, but that can be converted into drugs which can generate dependence (ex:codeine)
• Schedule III includes preparations submitted to a less strict regime, as they are not liable to abuse and to produce ill effects and the drugs contained in them cannot be readily recovered.

Schedule IV includes drugs classified under Schedule 1 (i.e. particularly
liable to abuse and to produce ill effects), when their dangerousness is not offset by substantial therapeutic advantages not possessed by other less dangerous substances (ex: heroin).

Cannabis and Cannabis resin are since the adoption of the 1961 Convention included in both Schedule 1 and Schedule IV, i.e. assessed as particularly liable to abuse and to produce ill effects, such liability not being offset by substantial therapeutic advantages not possessed by substances other than drugs in Schedule IV.

1. 3. Classification of tetrahydrocannabinols under the 1971 Convention

While Cannabis, Cannabis resin and extracts and tinctures are classified as narcotic drugs under the 1961 Convention, the active ingredients of Cannabis (tetrahydrocannabinols and dronabinol) are classified under the 1971 Convention as psychotropic substances.

In 1971 there had been discussion of whether the new substances of abuse should be added to the schedules under the 1961 Convention or whether a new specific control regime should be established. The fear that adding psychotropic substances to the scope of control of the 1961 Convention would weaken the existing control regime of narcotic drugs finally prevailed and it was decided to create a new instrument.

In the case of Cannabis and cannabinoids, their classification under different conventions may create inconsistencies as well as difficulties in deciding under which convention a product containing delta-9-THC should be considered to be controlled. Will an extract of Cannabis purified to the point of having a very high THC content still be considered as Cannabis extract under Schedule 1 of the 1961 Convention or as delta-9-THC under Schedule 11 of the 1971 Convention? This will have implications on the monitoring and reporting to the International Narcotics Control Board [2] (INCB) and on the application of penalties to traffickers. So lar, a distinction seems to be made on the basis of whether the product is derived from the natural plant material (1961 Convention) or whether it is obtained by chemical synthesis (1971 Convention).

Psychotropic substances placed under control in the 1971 Convention are classified under four schedules, submitted to control measures of decreasing strictness.
• Schedule 1 includes substances which liability to abuse constitutes an especially serious risk to public health while their therapeutic usefulness, if any, is very limited (ex: LSD, ecstasy)
• Schedule II includes substances which liability to abuse constitutes a substantial risk to public health while their therapeutic usefulness ranges from little to moderate (ex: amphetamines, barbiturates)
• Schedule III includes substances which liability to abuse constitutes a substantial risk to public health and that have a moderate to great therapeutic usefulness (ex: buprenorphine)
• Schedule IV includes substances which liability to abuse constitutes a
smaller but still significant risk to public health and that have little to great therapeutic usefulness (ex: benzodiazepines).

Tetrahydrocannabinol or THC and its isomers are classified in Schedule 1 of the 1971 Convention. Dronabinol (Delta-9-THC), an isomer of THC at the origin of the psychoactive effects of Cannabís and its preparations, has been transferred in 1991 from Schedule 1 to Schedule 11 (following the marketing of dronabinol as a medicine in the United States).

A recommendation has been made in 2002 by the World Health Organization (WHO) Expert Committee on Drug Dependence to transfer Delta-9-THC from Schedule 11 to Schedule IV. It has not yet been transmitted for consideration to the Commission on Narcotic Drugs [3] (CND). The recommendation was based on the assessment that Delta-9-THC has therapeutic usefulness, that its abuse is almost inexistent and is expected to remain low as long as Cannabis is readily available, and that it does not constitute a substantial risk to public health and society.

1.4. Procedure for amending the schedules under the drug control
conventions

The drug control conventions provide for a procedure for adding or deleting a substance to or from a schedule or transferring a substance from one schedule to another. The initiative of the procedure may be taken by a Party or by WHO.

The Party or WHO transmits a notification to that effect with supporting information to the Secretary-General. The Secretary-General communicates such notification to ali Parties, to CND and to WHO (if the notification originates from a Party). WHO then formulates a recommendation based on the assessment of the drug or substance. The decision is taken by CND by a vote of its members [4]. If a Party so requests, the decision taken by CND may be reviewed by the Economic and Social Council.

It should at this point be noted that, while the control regime applicable to Cannabis or cannabinoids may be changed with an amendment to the schedules, the Cannabis plant is, together with the coca bush and the opium poppy, at the center of the control system established by the conventions and is referred to in numerous articles belonging to the body of the conventions. Removing Cannabis from the conventions’ scope of control would require amending the conventions themselves, which implies a more demanding procedure [5].

2. Control measures applicable to the licit trade in Cannabis

2.1. Control regime applicable to Cannabis and medical use of Cannabis

Article 2 (Substances under control), paragraph 5 of the 1961 Convention provides that “a Party shall, if in its opinion the prevailing condition in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of (a Schedule IV) drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith (…).”

Parties are therefore not obliged to prohibit the use of Schedule IV drugs which include Cannabis ) but they should consider the option of prohibition in the context of their specific circumstances. Even when a Party decides to prohibit the use of a Schedule IV drug, medical and scientific research and clinical trials are excluded from the scope of that prohibition and remam permitted.

Leaving aside the prohibition option, the control regime applicable to Schedule 1 as well as Schedule IV drugs aims at ensuring that their manufacture, domestic and international trade, possession and use are limited to medical and scientific needs. Companies participating in the licit trade have to be licensed or owned by the State. Each international transaction requires an import or export authorization. Dispensation to individuais is upon medical prescription.

The Convention also establishes a system of estimates and statistics
managed by the International Narcotics Control Board to limit quantities available to States to their declared medical and scientific needs.

It should accordingly be emphasized that medical use of Schedule IV substances is not excluded under the 1961 Convention. Heroin which is also classified under Schedule IV is being used for medical purposes as well as for instance ketobemidone, a strong analgesic and another Schedule IV drug.

Cannabis is since a long time being used medically in Jamaica for the treatment of asthma and glaucoma and in Sri Lanka in Ayurvedic medicine. Both countries use seized Cannabis to produce standardized extracts. More recently, Canada has initiated a strictly restricted and closely monitored programme in which authorized users are provided with Cannabis for smoking, for medicinal purposes. In the Netherlands, Cannabis with a guaranteed THC content can be bought as a magistral preparation against a medical prescription. Medical use of Cannabís is in various phases of research and trial in a number of other countries for indications including glaucoma, multiple sclerosis, AIDS related loss of appetite and wasting, and severe arthritis.

With respect to medical use of Cannabis, it should be noted that no confusion should be made between medicinal usefulness and a perception that Cannabis would be harmless or even beneficial for health in the context of recreational purposes. Medicinal usefulness is assessed in the context of specific indications and with an emphasis on modes of administration (e.g. spray, capsules, eye drops, tea) which are not necessarily those used in a recreational context.

2.2. Cultivation of Cannabís

Article 22 of the 1961 Convention provides that a Party shall prohibit the cultivation of Cannabis whenever the prevailing conditions in the country render such prohibition the most suitable measure, in its opinion, for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic.

If cultivation is permitted for the production of Cannabis or Cannabis resin (for medical and scientific purposes), article 28 of the 1961 Convention requires that the same control system apply as for opium poppy: Parties have to establish a Cannabis agency, which licenses and regulates licit cultivators, designates arcas of cultivation, takes possession of crops and organizes trading. This has been done in countries such as The Netherlands where Cannabis is available for medicinal purposes.

Article 14 of the 1988 Convention also contains a provision obliging parties to prevent illicit Cannabis cultivation and to eradicate Cannabis plants cultivated illicitly. The Political Declaration adopted by the General Assembly Special Session devoted to countering the world drug problem in 1998 addressed illicit Cannabis cultivation together with opium poppy and coca cultivation, setting the target of a significant reduction in illicit cultivation to be achieved by 2008.

It should be noted that the cultivation of Cannabis for industrial (fibre and seeds) or horticultural purposes is not controlled under the conventions. Hemp cultivation for textile and paper industries is on the increase in Europe. Having been replaced with cotton, wood cellulose and synthetic fibres at the end of the nineteenth century, hemp has recently come back into favour. Research and hibridization programmes have led to the development of Cannabis varieties with a good potential for fibre production and a low THC content in various European countries such as France, Hungary, Italy, The Netherlands, Romania. The European Union granis aids to farmers for fibre flaz and hemp cultivation, subject to various controls: licensing, registration, guarantee of a THC content below 0.2%.

3. Penal provisions concerning trafficking and consumption of Cannabis

3.1. Penal provisions on drug trafficking

Article 36 of the 1961 Convention provides that cultivation, production, manufacture, possession, offering, purchase, sale, delivery, transport, importation and exportation of drugs contrary to the Convention (i.e. for illicit purposes) shall be punishable offences when committed intentionally and as serious offences shall be liable of adequate punishment particularly by imprisonment.

Article 3 of the 1988 Convention also includes a provision to the same effect.

3.2 . Penal provisions on personal consumption

Although article 36 of the 1961 Convention includes “possession” in the list of punishable offences, it has been argued that possession in this context should be interpreted as possession for trafficking and that possession for personal consumption was not targeted by article 36 of the 1961 Convention.

The 1988 Convention has its primary focus on drug trafficking. However,
contrary to the 1961 Convention, it contains a clear statement on possession for personal consumption and requires that Parties establish it as a criminal offence:

“Subject to its constitutional principies and the basic concepts of its legal
system, cach Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase, cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention or the 1971 Convention” (Article 3, paragraph).

As the provision proved controversial during the negotiation of the Convention, the obligation for States to establish personal consumption-related activities as criminal offences is submitted to the safeguard clause, “subject to each Party’s constitutional principies and basic concepts of its legal system”.

Constitutional principies and basic concepts of the legal system that States have invoked under that safeguard clause in order not to establish personal consumption-related activities as criminal offences include:

• the libertarian principie or principie of individual freedom including freedom to choose one’s way of life and harm one’s health, e.g. Constitutional Court of Bolivia’s judgment of 1994: a law establishing consumption, transport and keeping of drugs for personal use as offences is unconstitutional because the Constitution guarantees right to free development of personality.

• the principie of restraint , e.g. Italian Constitutional Court in 1993 : the penal sanctions are the most extreme form of protection of legal interests and should be used with restraint.

• the principle of proportionality between the seriousness of an offence and the strictness of the penalties provided for it, e.g. German Constitutional Court in a ruling of 1994.

• the principle of discretion in prosecution or expediency: law enforcement authorities in many countries have a certain discretion in exercising powers to arrest, charge, prosecute offenders of a minor character on the ground that law enforcement resources should not be wasted on minor offences.

3.3. Alternative treatment measures for personal consumption

States, that in accordance with article 3, paragraph 2 establish drug consumption-related activities as criminal offences, are not obliged to convict and penalize offenders. Such offenders may be diverted out of the criminal justice system:

Parties “may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence (related to personal consumption), measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender” (Article 3, paragraph 4 (d)).

Article 3 refers to alternatives to conviction and punishment. Drug users
may accordingly be diverted out of the criminal justice system towards the health care system, e.g. by probation order with therapeutic supervision, therapeutic injunction or in drug courts proceedings.

Although not in conformity with the strict letter of the Convention and therefore questionable, diversion of drug users from the criminal justice system may intervene at earlier stages, e.g. police issues a simple police warning or prosecution is dropped after arrest. Administrative sanctions, such as fines, withdrawal of driving licenses, are also being provided in some countries for recreational users instead of penal sanctions.

Parties have under the conventions an obligation “to take ali practicable
measures for the prevention of drug abuse and for the early identification, treatment, after-care, rehabilitation of drug abusers”. At the 1998 Special Session of the General Assembly devoted to drugs, a Declaration on the Guiding Principles of Drug Demand Reduction was adopted to complement the general provisions of the conventions concerning demand reduction.

CONCLUSIONS

The conventions inherently aim at ensuring availability of drugs and substances for medical use, while strictly limiting such availability to medical and scientific purposes. There is therefore roem under the conventions for accommodating an increased medical use of Cannabis and cannabinoids, as the schedules under which drugs and substances are included may be amended to reflect changes in the assessment of dangerousness and therapeutic usefulness of drugs and substances.

The conventions also leave a large degree of discretion to States in designing their policy towards drug users. In particular there is no obligation under the conventions to convict and punish drug users.

The essence of the conventions lies in the principie that non-medical consumption of drugs should be prohibited and earnestly addressed by Parties.

Allowing recreational use of Cannabis therefore clearly runs counter not only to the letter but also to the basic spirit of the drug control conventions.

[1] Status of adherence as of May 2004.
[2] 2 The International Narcotics Control Board (INCB) is the independent and quasi-judicial control organ for the implementation of the United Nations drug conventions, established in 1968 by the Single Convention on Narcotic Drugs of 1961. Its 13 members serve in their personal capacity. They are elected by the United Nations Economic and Social Council (ECOSOC) and their work is financed by the United Nations. Three members are elected from a list of candidates nominated by WHO and 10 from a list nominated by Governments.
[3] The Commission was established by the Economic and Social Council in its resolution 9 (1) of 16 February 1946 as the central policy-making body within the United Nations system dealing with drug-related matters. The Commission analyses the world drug situation and develops proposals to strengthen the international drug control system to combat the world drug problem.
[4] The Commission comprises 53 members elected for 4 years by the Economic and Social Council (a) from among the States Members of the United Nations and members of the specialized agencies and the Parties to the Single Convention on Narcotic Drugs, 1961, (b) with due regard to the adequate representation of countries that are important producers of opium or coca leaves, of countries that are important in the field of the manufacture of narcotic drugs, and of countries in which drug addiction or the illicit traffic in narcotic drugs constitutes an important problem and (c) taking into account the principie of equitable geographical distribution.
[5] The initiative may be taken by a Party. The proposal is communicated with supporting reasons by the Secretary General to ali Parties and to the Economic and Social Council. To be adopted the amendment requires unanimous agreement of ali Parties (this is the simplified procedure of amendment by consultation). For controversial amendments, after the consultation phase and depending on its outcome, the ECOSOC may convene a Conference to consider the proposed amendments.

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