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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 11 April 2015
Decriminalizing Personal Use of Cannabis in New Zealand: the Problems and Possibilities of International Law
BY NEIL BOISTER*
1. INTRODUCTION
New Zealanders are presently debating the wisdom of the prohibition of cannabis.' If New Zealand was to move away from prohibition, various policy options are available. How extreme these options are in comparison to the present situation depends on how they treat three variables. The first of these is cannabis-related conduct. Such conduct ranges from those that use, possess and purchase cannabis for use (hereinafter simple possession), to those who cultivate cannabis, to those who supply and sell cannabis. The second variable is the substance itself. Its various forms include the stalks, leaves, seeds and heads of the flowering plants, cannabis resin and oil, and the active cannabinoids within the plant resin. The third variable is the level of restriction in the policy. The range of options is broad. They include the warning of offenders, diversion of offenders, non-prosecution of offenders, regulation of the substance, complete legalisation of the substance, and so forth. Decriminalization in the form of non-prosecution of simple possession, cultivation and supply without value of the cannabis plant and its
Neil Boister, University of Nottingham, United Kingdom.
Pressure for reform has been growing steadily, driven by large-scale domestic
cultivation and use. In its Final Report of 30 March
1998, the Drug Policy
Forum, an independent group of physicians and professionals, recommended that
New Zealand regulate and tax
cannabis commerce. A petition requesting
decriminalization was referred to the Justice and Law Reform Select Committee on
25 July
1997 and then to the Health Select Committee on 18 November 1998. On 18
December 1998 the Health Select Committee concluded that
although cannabis does
have serious impact on certain individuals suffering from schizophrenia and
psychotic illness, the 'moderate
use of cannabis does not seem to harm the
majority of people' and 'that current policies do not deter cannabis use to any
great extent.'
It recommended a harm minimisation approach, and that the
Government review the appropriateness of the existing policy and legal
status of
cannabis: NZ House or Representatives Health Committee, Report on Petition
1996/686 On 26 December 1999 a police statement revealed that the police
would prefer cannabis charges to be decriminalized and punished by
an instant
fine system. The Minister of Justice is currently reviewing the legal status of
cannabis —New Zealand Herald, 24 January 2000. The Green Party
policy on cannabis includes the immediate legalisation of cannabis for personal
use and the small-scale
cultivation for personal use: www.greens.org.nz, while the Aotearoa
Legalise Cannabis Party (ALCP) has a more fully developed response along the
same lines which recommends that
cannabis and its derivatives be shifted to a
Class D category within the Misuse of Drugs Act 1975 to make this possible:
www.alcp.org.nz.
56 Yearbook
of New Zealand Jurisprudence Vol 3
resin would be a tentative step for New Zealand. It would leave many questions unanswered. What of commercial cultivation and supply? What of cannabinoids? And why not regulation? But it is the basic assumption of this paper that the starting point of the cannabis market, simple possession, is likely to be the first area in which decriminalization will occur because experience in other jurisdictions has shown that such a model proposing an incremental inroad into prohibition is most easily accepted by the general public and is practically and legally possible.
The problem confronted by this paper is that domestic variation of the policy of prohibiting cannabis does not take place in an international vacuum. New Zealand's policy makers and legislators must decide whether it may vary this policy in terms of the obligations that New Zealand undertook when it ratified the multilateral drug conventions that institutionalise drug prohibition globally.2 While a change in domestic policy will be legal within New Zealand as these conventions are not self-executing, it cannot be made without considering the international legal consequences that flow from the Single Convention on Narcotic Drugs, 1961 (hereinafter the 1961 Convention),3 the Convention on Psychotropic Substances, 1971 (hereinafter the 1971 Convention),4 the Protocol of 1972 Amending the Single Convention on Narcotic Drugs, 1961 (hereinafter the 1972 Protocol),5 and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (hereinafter the 1988 Convention).6 New Zealand is party, without reservation, to all of these conventions.' Its legal position in respect of the other Parties to these conventions is governed by the terms of these conventions.
2. THE PRESENT LEGAL POSITION OF CANNABIS WITHIN NEW ZEALAND
3 520 UNTS
151, in force 13 December 1964.
4 1019 UNTS 175; in
force 16 August 1976.
5 975 UNTS 000; in force 8 August
1975.
1999 Decriminalizing Personal Use of Cannabis in New Zealand 57
Cannabis was originally criminalized in New Zealand terms of the Dangerous Drugs Amendment Act 1960. The pertinent statute today is the Misuse of Drugs Act 1975. With regard to the substance itself, a distinction is made between more and less harmful forms of the substance. The more harmful forms are classified as Schedule B drugs (part 1) and they include cannabis preparations (any preparation containing tetrahydrocannabinols produced by subjecting cannabis plant material to any kind of processing, including cannabis resin or hashish and cannabis oil or hash oil), as well as tetrahydrocannabinols, except when contained in a class C drug. The less harmful forms are classified as Schedule C drugs (part 1) and they include cannabis fruit, cannabis plant (any plant of the genus cannabis whether fresh, dried, or otherwise except when all the resin has been extracted) and cannabis seed. Section 2(1) provides that cannabis is a "prohibited plant". With regard to the forms of drug related conduct criminalized, the Act makes the now globally common distinction between forms of supply, simple possession and cultivation. In terms of section 6, entitled "dealing", it is an offence to import or export (section 6(1)(a)), produce or manufacture (section 6(1)(b)) any form of cannabis. Section 6 also makes it an offence to supply or administer or offer to supply or administer or otherwise deal in Class B forms of cannabis (section 6(1)(c)) or to perform the same conduct in respect of someone under 18 (section 6(1)(d)) or sell or offer to sell to someone 18 or over any Class C forms of cannabis (section 6(1)(e)). These offences are punishable by imprisonment (section 6(2)). Section 7, entitled "possession", makes it an offence to procure or have in one's possession, or consume, smoke or otherwise use, any form of cannabis (section 7(1)(a)), or to supply or administer, or offer to supply or administer, any Class C form of cannabis to any other person, or otherwise deal in any such form of cannabis (section 7(1)(b)). Punishment for section 7 cannabis offences is 3 months or a fine of $500 or both (section 7(2)) although custodial sentences in respect of Class C cannabis will only be applied if previous convictions or exceptional circumstances demand such a sentence. Section 9, entitled "cultivation of prohibited plants", makes it an offence to cultivate cannabis (section 9(1)) and makes such cultivation punishable by a term of imprisonment not exceeding 7 years (section 9(2)).
3. NEW ZEALAND'S INTERNATIONAL OBLIGATIONS
3.1 The 1961
Convention
The 1961 Convention was designed to suppress the non-medical and
nonscientific use of narcotic substances. Not surprisingly, seeing
as it serves
as the framework for most domestic drug laws, it follows the same broad
structure as New Zealand's Misuse of Drugs Act,
i.e. it classifies
cannabis
58 Yearbook of New Zealand Jurisprudence Vol 3
according to perceived harmfulness and obliges Parties to criminalize certain forms of cannabis related conduct.'
The 1961 Convention's classification of the different forms of cannabis is rooted in the conceptions about the substance prevailing in 1961. "Cannabis" is defined in article 1(b) 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". "Cannabis plant" is defined in article 1(c) as "any plant of the genus Cannabis". "Cannabis resin", in terms of article 1(d) "means the separated resin, whether crude or purified, obtained from the cannabis plant". Interestingly, although cannabis leaves are separately provided for in the Convention,9 by definition they fall outside of the scope of the prohibition in the convention. Cannabis seeds are simply ignored by the Convention, as its drafters did not consider them harmful. This leads New Zealand legal scholar Kevin Dawkins ingeniously to suggest that the Convention permits the decriminalization of conduct involving small quantities of cannabis leaves and seeds for private use, but he recognises that this would not affect total prohibition of cannabis tops and resin, commonly smoked for pleasure.° Cannabis and cannabis resin are included in Schedule I of the 1961 Convention and are therefore subject to all of the general control measures under the Convention. They are also included in Schedule IV that subjects them to a range of more severe measures at the discretion of the Parties."
Turning to the prohibition of specific forms of cannabis related conduct, these specific prohibitions must be seen against the background of the general obligation in article 4(1)(c) on Parties "to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs" and the obligation in article 33 which provides that "the parties shall not permit the possession of drugs except under legal authority". However, neither articles 4(1)(c) nor article 33 necessarily requires penal sanctions to attain the purpose of limitation or authorised possession.' Article 33 allows possession under legal authority while article 4(1)(c) is a "General obligation" specifically "subject to the provisions of this Convention"." The specific obligation to
The penal obligations in the conventions are not "crimes", they are tortious obligations among states obliging states to criminalize.
I° Dawkins, supra n 2 at
281-2.
Article 2(5).
12 Currie et al, supra n 2 at
247.
13 Dawkins, supra n 2 at 282.
1999 Decriminalizing
Personal Use of Cannabis in New Zealand 59
criminalize is provided for in article 36(1) of the amended 1961 Convention. It states that:
subject to its constitutional provisions, each party shall adopt such measures that will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation, and exportation of drugs contrary to the provisions of this Convention, shall be punishable offences when committed intentionally.
Although article 36(1) deliberately does not mention "use",14 it does specifically refer to "purchase" and "possession". As the whole thrust of the penal provisions of the Convention is the prohibition of drug trafficking, there appears little doubt that Parties are obliged in terms of article 36(1) to criminalize purchase and possession for onward trafficking. Parties have, however, taken different approaches to the criminalization of simple possession. The United Nations Official Commentary on the 1961 Convention states:
Some Governments seem to hold that they are not bound to punish addicts who illegally possess drugs for their personal use. This view appears to be based on the consideration that the provisions of article 36...are...intended to fight the illicit traffic, and not to require the punishment of addicts not participating in that traffic.15
The 1961 Commentary notes that this view is supported by the drafting history and context of article 36.16 Given that use has not been specifically mentioned in article 36, criminalization of simple possession, which amounts in effect to criminalization of use, appears not to have been contemplated by the drafters of the Convention. It thus does not appear that article 36(1) obliges Parties to criminalize simple possession of drugs)' Logically, this must also exclude purchase for use from criminalization.
Cultivation for personal use is also at least arguably not prohibited in terms of the Convention. Because cannabis plants were still cultivated in many
60 Yearbook of New Zealand Jurisprudence Vol 3
states in 1961 whether for industrial purposes or for smoking, cannabis cultivation was not totally prohibited in the 1961 Convention; instead it was subject to a special regime. Article 28(2) specifically excludes cannabis cultivated "exclusively for industrial purposes (fibre and seed) or horticultural purposes" from the material scope of the convention. With respect to non-industrial non-horticultural cannabis, article 22(1) provides that a Party is only obliged to prohibit cultivation when the prevailing conditions render it a suitable measure for protecting the public health and welfare and preventing the diversion into the illicit traffic. Article 28(1) provides that where a Party permits the cultivation of cannabis, it is obliged to apply the same system of licensed cultivation that applies to the cultivation of opium. Both provisions suggest that the authors of the 1961 Convention did not foresee Parties prohibiting cultivation altogether. Dawkins seizes upon this gap in the system of international legal prohibition to suggest that each Party is free to decriminalize private cultivation of amounts of cannabis that neither threatens the "public health and welfare" nor contributes to the "illicit traffic".I8 He argues, I think convincingly, that the prohibition of "cultivation" in article 36(1) is, like the prohibition of possession, limited to actions in the chain of trafficking rather than actions associated with personal use. It likely that the drafters of the Convention were prepared to tolerate cultivation for own use because of historical cultivation of the substance.
With respect to supply, Dawkins'argument holds if the supply is to oneself, but he probably goes too far when he suggests that supply for no or insignificant remuneration falls outside the scope of article 36(1), which he suggests is limited to criminalizing various commercial or trafficking transactions. Supply to others, whether as a gift or even for negligible amounts of money, does appear to be a target of article 36(1). The article specifically enumerates and thus distinguishes between "offering" and "offering for sale", and prohibits "delivery on any terms whatsoever" which would seem to cover disposal of drugs to another without consideration, including giving cannabis as a gift.
In sum then, while the 1961 Convention does admit of interpretations permitting parties to decriminalize the simple possession of cannabis and the cultivation for personal use, it does not appear as open textured as DawkinsI9 suggests when it comes to the supply of cannabis. The prohibition on supply of any kind does appear to be an international obligation, and not just a stricter measure adopted voluntarily by Parties in terms of article 39.
18 Dawkins, supra n 2 at 282.
19 Ibid at 283.
3.2 The 1971 Psychotropic Convention
The purpose of the 1971 Convention is to suppress the non-medical and scientific use of psychotropic substances. Tetrahydrocannabinol (THC), one of the psychoactive canabinnoids found in cannabis, is listed in Schedule I of the 1971 Convention. The cannabis plant does not fall within the material scope of the convention. THC must be separated or synthesised before the 1971 Convention applies, thus excluding for practical purposes its impact on most cannabis related actions which deal with cannabis in a raw or slightly altered state. For this reason the 1971 Convention would not be considered by most states to be important in respect of decriminalization as they would not consider it necessary to avoid the obligation to prohibit THC. However, for the sake of completeness, the decriminalization of THC is discussed here.
The general obligation in article 7 of the 1971 Convention on Parties to prohibit possession and use of THC except for medical or scientific purposes does not apply to the naturally occurring THC found in the cannabis plant, resin or preparations. Moreover, as with article 36 of the 1961 Convention, it is submitted that article 22(1)(a) of the 1971 Convention, the provision specifically directed at illicit conduct, was not intended to criminalize simple possession of psychotropic substances. The United Nations Official Commentary on the 1971 Convention20 notes that in terms of article 5 "use" of psychotropic substances is limited to medical and scientific purposes. Article 5(1) limits the use of Schedule I substances as provided in article 7, which prohibits their use except for "scientific and very limited medical purposes". It is arguable that use of Schedule I substances for any purpose is an action in violation of an obligation under the Convention and is thus, in terms of article 22(1)(a), a criminal offence. However, the tenor of article 7, which is devoted to control of supply of such substances, suggests that prohibition of use only for the purposes of trafficking is contemplated. The 1971 Commentary submits, however, that, apart from the requirement that possession of such substances for use requires authorisation in terms of article 7(b), these limitations relate to the supplier and not the consumer.21 Use, together with acquisition for use are, according to the 1971 Commentary, unauthorised actions, but they are not "actions" contrary to the laws and regulations that a Party is obliged to adopt under the Convention; they both imply possession and whether they are unlawful in terms of the
2° Commentary on the Convention on Psychotropic
Substances, 1971 (1976) UN Doc. E/CN.7/589; UN Publication Sales
No.E.76.XI.5.
21 1971 Commentary, ibid at
349.
62 Yearbook of New Zealand Jurisprudence Vol 3
Convention depends on whether possession is an offence under article 22(1)(a), which, it appears, it is not.22
The term "illicit traffic" in article 1(j) of the 1971 Convention does not cover the cultivation of plants from which psychotropic drugs can be obtained. While the 1971 Commentary suggests,23 however, that cultivation may constitute an attempt or preparatory act in terms of article 22(2)(a) to commit an offence under article 22(1)(a), that is an interpretation not supported by the rest of the Convention which is aimed at the traffic of psychotropic substances.
It seems incontrovertible, however, that the drafters of the 1971 Convention intended article 22(1)(a) to oblige Parties to punish as an offence any unauthorised supply of THC by classifying such conduct as an intentional "action" contrary to laws or regulations adopted by Parties in pursuance of their obligations under the Convention. Actions must by implication mean the "illicit traffic" in psychotropic substances, and "illicit traffic" is defined by article 1(j) as "manufacture of or trafficking in psychotropic substances contrary to the provisions of this Convention", where "trafficking" means all forms of unauthorised trade and distribution, while "manufacture" is self-explanatory.24
3.3 The 1988 Convention
The 1988 Convention relies entirely on the scheduling of drugs
made in
terms of the 1961 and 1971 Conventions. It only provides a revised
system
of "offences" for indirect application.
With regard to simple possession, the 1988 Convention's provisions are best understood in the context of their development. Within the spirit of the liberal interpretation of the earlier conventions states had adopted a variety of non-penal approaches to simple possession.25 Continuing in this spirit, early drafts of the 1988 Convention did not address the issue of personal use offences.26 "Illicit traffic" was defined so as to include most of the offences
22 1971 Commentary, ibid.
23 1971 Commentary, ibid at
25.
24 1971 Commentary, ibid.
26 See generally UN Doc. E/CONF.82/3 20 July 1988 at 13 and UN Doc. E/CONF.82/C.1/SR.24 at 4.
contained in article 36 of the 1961 Convention, but possession was limited to possession for the purpose of distribution. Successive drafts omitted simple possession reflecting the general view among delegations that the new Convention was a tool for the suppression of what they considered to be the more serious aspects of the drugs problem rather than for criminalizing trivial conduct like possession for personal consumption.
However, the Mexican delegation, opposing the general view because it assigned responsibility for illicit drug suppression to drug producer states, an imbalance reflected in the Convention's provisions as a whole, argued that the Convention should address all aspects of the illicit drug problem including personal use. Delegations opposed to the inclusion of a personal use offence, particularly delegations from Western consumer states, argued that it would be impractical to require Parties to render expensive and time-consuming legal assistance for relatively minor offences. As a compromise between the two positions, the Conference agreed that although a personal use offence should be added to the Convention, it should not be a subject of the expensive and logistically complicated obligations imposed by the Convention in respect of extradition, confiscation and mutual legal assistance. Article 3(2) is the net result. It reads:
Subject to its constitutional principles and the basic concepts of its legal system, each 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 or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.27
Article 3(2) criminalizes possession, purchase and cultivation for use "contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention". The earlier conventions define by implication what is unlawful conduct. The UN's official Commentary on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 198828 points out that this may lead to the interpretation that Parties are able to retain the stance they had adopted to simple possession under the earlier conventions.29 The 1988 Commentary
27 Article 3(2) is not the only consumption-related measure in the Convention. Article 14(4) also attempts to balance the distribution of obligations between producer and consumer states by providing that consumer states "shall adopt measures aimed at reducing or eliminating elicit demand for narcotic drugs and psychotropic substances..." The wording of the provision as a whole suggests that these measures should be non-penal in nature but the implication is that article 3(2) is penal in nature.
29 1988 Commentary, ibid at
81.
64 Yearbook of New Zealand Jurisprudence Vol 3
suggests, however, that to be consistent with the express inclusion of "personal consumption" in article 3(2) "contrary to the provisions" of the earlier conventions merely "incorporates the schedules of controlled substances as well as the distinction under those conventions between licit and illicit consumption".3° Given the ambiguities surrounding the delimitation of lawful conduct under the earlier conventions, it is not easy to discern what conduct is rendered unlawful by article 3(2).
Three options present themselves. First, it is possible to argue that article 3(2) may be restrictively interpreted so as not to apply to the possession, purchase and cultivation of cannabis for personal use, because the earlier conventions do not do so and article 3(2) simply replicates the provisions of these conventions. Second, it is possible to argue that the earlier conventions did prohibit the possession, purchase and cultivation of cannabis for personal use, and article 3(2) simply confirms this prohibition. But both these arguments, whatever their merits,31 are entirely dependant on the interpretation of the earlier conventions fixing the scope of application of the later convention. A third option presents itself. It may be that article 3(2) of the 1988 Convention is an entirely novel provision meant to prohibit prospectively the possession, purchase and cultivation of cannabis for personal use. Dawkins submits that the latter is the better view. But does that mean that New Zealand is bound to criminalize these forms of conduct now that it has ratified the 1988 Convention without reservation in this regard? Following Dawkins, the New Zealand House of Representatives Justice and Law Reform Committee in their Report on the 1988 Convention concluded that "the absence of any prohibition on the possession and use of cannabis [in New Zealand] may be justified on the ground [inter alia] that the 1988 Convention is a trafficking Convention".32 However, article 3(2) must be viewed in the context of the statement in the Convention's Preamble that the Convention's drafters desired to "eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from the illicit traffic".
Unlike the 1961 and 1971 Conventions, which are largely administrative instruments where penal control remains mainly a domestic choice, the 1988 Convention is a penal convention. The late introduction of article 3(2) into
1988 Commentary, ibid.
the Convention was a deliberate act by drug producer states to shift some of the burden of prohibition onto drug consumer states. The provisions for diversion in article 3(4)(d) assume that demand related conduct will be prohibited. Demand elimination by criminal prohibition in the 1988 Convention was a victory for drug producer states and a burden assumed by drug consumer states. This reality was accepted by the German Federal Constitutional Court in the Cannabis Decision33 when it held:
Specifically, the United Nations have recognised, in the 1988 Convention...that any involvement with narcotics — including cannabis — should be subject to penalties because the production of narcotics and psychotropic substances, the illicit demand for them, and unauthorized involvement with them "seriously endanger health and well-being and damage the economic, cultural and political foundations of society" (Preamble to the 1988 Convention...)....The United Nations has therefore decided to co-operate in removing the basic causes of this abuse, "including the illicit demand for such substances and the enormous profits resulting from the illicit traffic in them." In this context, the countries of Europe, in which hardly any production of narcotics takes place, assume the task, above all, of combating demand for them. The Federal Republic of Germany has adopted this evaluation of the dangers by means of the Ratification Act on the 1988 Convention...and the subsequent actual ratification and has made it the basis of the obligation it has thereby assumed to combat involvement with narcotics, including by the imposition of penalties. The Narcotics Act is to be seen as the Federal Republic of Germany's contribution to the international control of narcotic drugs and psychotropic substances, to controlling involvement with these substances, and to combating the illegal market in drugs and the criminal organizations involved in it. These aims are the common concern of the community of states making up the United Nations and according to their unanimous conviction can only be successfully achieved via co-operation between them.'
In reality the developing states who sponsored article 3(2) seldom have the financial wherewithal to engage with users in any other way than treating them nominally as criminals and then simply ignoring them. But the result of the actions of these states is that although Parties are not obliged to criminalize use itself, they are obliged to criminalize possession, purchase and cultivation for the purpose of use. Those Parties that actually remove all legal sanction from the simple possession or cultivation of even small amounts of cannabis violate article 3(2) and the 1988 Convention unless their actions fall within the recognised exception to this obligation, discussed below.
The rest of the 1988 Convention's penal provisions provide the full range of by now easily recognisable obligations, as well as some new ones.
BverfG NJW 1994, 1577.
34 Ground C,I,2(a).
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New Zealand Jurisprudence Vol 3
Interestingly cultivation for supply is dealt with separately in article 3(1)(a)(ii) which obliges Parties to criminalize the cultivation of cannabis plants for the purpose of "the production of narcotic drugs contrary to the provision of the 1961 Convention or the 1961 Convention as amended". The rest of article 3 sets out a full range of trafficking offences in article 3(1)(a)(i) and specifically criminalizes possession for the purpose of trafficking in article 3(1)(a)(iii).
In sum then, both the 1961 and 1972 Conventions provide the New Zealand government with some room for legislative manoeuvring in respect of cannabis. Neither convention obliges states party to criminalize use. Article 36(1) of the 1961 Convention does not require criminalization of simple possession nor arguably cultivation of cannabis tops and resin for personal use but does require criminalization of any form of supply, cultivation for supply or possession for supply. Sections 6(1), 6(2), 6(3) and 7(2) of New Zealand's Misuse of Drugs Act serve the latter purpose, but section 7(1) in respect of possession and section 9 in respect of cultivation are not obligatory and could be altered to exclude possession and cultivation of cannabis tops and resin for personal use. Article 22(1) of the 1971 Convention does not require criminalization of simple possession of pure THC or preparations containing THC nor cultivation of cannabis containing THC but does require criminalization of any form of supply of THC. Sections 6(1) and 6(2) of New Zealand's Misuse of Drugs Act serve the latter purpose, but section 7(1) in respect of possession is not obligatory and could be altered to exclude cannabis tops and resin.
Article 3(2) of the 1988 Convention requires the criminalization of possession, purchase and cultivation of cannabis tops and resin and THC for personal use, while article 3(1) requires the criminalization of any form of supply, or cultivation or possession for supply.35 Sections 6, 7 and 9 serve these purposes and their scope cannot be altered without breaching international obligations. If New Zealand were to do so, the international community, through the mouthpiece of the UN's Commission For Narcotic Drugs, and the International Narcotics Control Board, would condemn this step as a breach of the 1988 Convention. The United States has up until now appeared generally pleased with the level of New Zealand's commitment to
35 Interestingly, when it was proposed in 1993 that the sale of cannabis should be legalized in the Netherlands, the official response was that the Netherlands' international obligations in terms of the drug conventions and particularly the 1988 Convention left no room for legalization of the supply of cannabis for recreational purposes. See Dutch Drug Policy, 2nd Chamber of Parliament, 1994-5, 24077, Nr 3-4, p.14. The expert opinion of JJ Schutte was provided in support of this (appendix II). He argued that the 1961 and 1988 Conventions did not make a formal distinction between hard and soft drugs.
the suppression of indigenous cannabis production and consumption.36 However, it would almost certainly apply diplomatic pressure if decriminalization took place, and while the possibility of economic sanctions is highly unlikely, it would become more likely were New Zealand's production of cannabis to begin to feed the US market, given the United States' use of de-certification to enforce implementation of the supply reduction elements of the 1988 Drug Convention."
However, the international scheme created by the conventions is not as impenetrable as it looks. There are loopholes and ways of altering the international scheme which warrant exploration. It must be noted, before beginning this examination, that even if the specific provisions in the drug conventions which provide for criminalization of cannabis were avoidable, a range of regulatory obligations governing the cultivation and provision of cannabis would still apply. If New Zealand were to legalize cannabis completely it would be in violation of these regulatory mechanisms.38
4. CHANGING DOMESTIC LAW IN WAYS PERMITTED BY
EXISTING
INTERNATIONAL OBLIGATIONS
4.1 Constitutional exceptions
The provisions in the drug conventions criminalizing conduct are subject to constitutional "get-out" clauses. In respect of the 1961 Convention, article 36(1) makes it clear that criminalization takes place subject to each Party's "constitutional limitations". Thus if it is legally impossible due to a constitutional provision for a Party to criminalize a particular form of conduct, then the Convention permits this exception.39 An escape clause is also provided by article 22(1)(a) of the 1971 Convention. Its obligations are also subject to the "constitutional limitations" of the Party. And in the 1988 Convention article 3(2)'s controversial obligation is subject to the "constitutional principles and basic legal concepts of [the Party's] legal system". While constitutional principles are easily identified, and Parties
Through the 1986 Anti-Drug Abuse Act the US amended its Foreign Assistance Act to the effect that states that did not co-operate with it in stopping the flow of drugs into the US would be decertified and forfeit all forms of foreign aid from the US.
68 Yearbook of New Zealand Jurisprudence Vol 3
would not violate the Convention if their domestic courts held criminalization of cannabis offences to be unconstitutional, article 3(2)'s basic concepts are more difficult to identify. The inclusion of "basic concepts" reflects the concerns of many delegates at the experts' meetings that these offences would conflict with basic principles of their criminal law. Whether legislative decriminalization of, for example possession of cannabis, could be seen to be part of the "basic concepts" of a legal system and thus escape article 3(2)'s obligation is unclear. The International Narcotics Control Board (INCB) obviously does not believe that such an interpretation is valid because the INCB stated that Italian legislation repealing the non-medical prohibition on drugs passed after a referendum in April 1993 was not in line with article 4(c) and 33 of the 1961 Convention or article 3(2) of the 1988 Convention.4° It may be that "basic concepts" was intended by the authors of the 1988 Convention to refer only to conflicts with codified basic law, rather than specific drug legislation. Interestingly, some civilian (Civil Law) Parties, cautious in spite of the limitation clause, have made reservations to article 3(2)'s criminalization of personal use on constitutional grounds and because it conflicts with the basic concepts of their legal system.41 Other civilian Parties have stated that the basic concepts of their legal systems may alter, obviously anticipating that changes such as decriminalization may occur in the future.42 New Zealand made no such reservations or declarations so this option is no longer open to it. New Zealand could argue that the criminalization of conduct that does not harm the user such as the simple possession of cannabis is a violation of a basic principle of its law, but simple possession remains plausibly an offence mala prohibita (rather than malum in se) and still subject to formal prohibition under the 1988 Convention.
42 See the declaration made by the Federal Republic of Germany (20/11/1993): Multilateral Treaties Deposited (1997), ibid.
The advantage of a judicial pronouncement of unconstitutionality is that the provisions obliging Parties to criminalize cannabis would immediately be of no effect. It does not carry the stigma of denunciation, and because it emanates from the judiciary, nor is it as easily subject to external political pressure as a legislative policy change.
In practice, courts have been active in this regard. Many of the earlier cases involved conflicts between criminalization and general rights such as privacy and equality. The early land mark case on decriminalization for constitutional reasons remains the 1975 Alaskan decision of Ravin v State43 where the State Supreme Court decided that the relative insignificance of cannabis consumption as a health problem in Alaskan society meant there was no reason to intrude on the citizen's right to privacy by prohibiting possession of cannabis by an adult for personal consumption at home. Possession in public, and purchase and sale were not constitutionally protected." In 1994, the Colombian Constitutional Court45 ruled that the domestic criminalization of simple possession of small quantities of drugs article 2 and article 51 of Law 30 of 1986 was unconstitutional primarily on the basis that it interfered with article 5 of the Constitution, the right to personal autonomy. By regulating the conduct of an individual, when that conduct did not affect others, the legislator was held to cross an ontologically prohibited frontier because it held that law is only bilateral, while morality is unilateral. In spite of the chapeau in article 3(2), and the Colombian Constitutional Court's opinion that the 1988 Convention distinguished between use and trafficking, the Court's declaration was considered to be "not in conformity with the provisions of the international drug control treaties" by the INCB.46 In Germany, criminalization of cannabis under the Narcotics Act (Betaubungsmittelgesetz or BtMG) was considered unconstitutional by the Regional Court in Ltibeck on the basis that as intoxicants such as alcohol were not criminalized it violated the principle of equality (article 3(1) of the Basic Law) and because becoming intoxicated fell within the principle of self-determination (article 2(1) of the Basic Law). The Federal Constitutional Court in the Cannabis Decision,47 held that the criminalization of the sale or donation of cannabis in the Narcotics Act was constitutional. In addition, it held that criminalization of
43 537 P.2d 494 (1975) per Rabinowitz CJ, Doochover and Conner JJ concurring.
47 BverfG NJW 1994, 1577. Available at
www.drugtext.org/legal.
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of New Zealand Jurisprudence Vol 3
conduct preparatory to the use of small quantities of cannabis products which does not endanger others, does not contravene the prohibition of excessive state interference, since the legislature has made it possible for the prosecution authorities to take account of any individual element of the wrongdoing by refraining from imposing a penalty (section 29(5) of the BtMG) or refraining from prosecution (sections 153ff of the Code of Criminal Procedure). The court ruled that in the latter instances the prohibition on excessive interference with the personal freedom of an individual when that freedom does not harm others effectively requires that the prosecution authorities refrain from prosecuting such offences.
The right to freedom of religion has also been relied upon in domestic jurisdictions to try to justify judicial intervention. Its narrower scope may make it more appealing to the judiciary. But it does not have a universal appeal. In the United States" and Canada" courts have affirmed the prohibition on drugs used for religious purposes. In 1997 in Forsythe v DPP," the Jamaican Supreme Court rejected the appellant's argument that the statutory prohibition of possession of cannabis in Jamaica conflicted with his constitutional right to conscience and freedom of religion. However, in late 1999, in the People of Guam v Guerrero5I the Superior Court of Guam held that the importing of cannabis by a Rastafarian priest was protected by constitutional and statutory guarantees of freedom of the exercise of religion and against religious non-discrimination, and that the state had failed to demonstrate a compelling state interest in the denial of these rights. In a 1998 South African case, Prince v President of the Law Society, Cape of Good Hope and Others,52 currently on appeal, the provincial division of the High Court held that the Cape Law Society's
In Employment Division Department of Human Resources of Oregon, et al v
Smith [1990] USSC 90; [1990] 494 US 872, 108 Led 2(d) 876, the US Supreme Court decided a
similar issue, the constitutionality of the prohibition of the possession and
use of the hallucinogenic
drug Peyote by members of the North American Church
for sacramental purposes in terms of the free exercise of religion protected
by
the First Amendment to the Constitution. The majority held that the prohibition
was not unconstitutional, although a significant
minority dissented. Inferior US
courts have consistently upheld such a position: Olsen v Iowa [1986] USCA8 1126; 808 F2d 652
(CA 1986 — marijuana use by Ethiopian Zion Coptic Church); Commonwealth
v Nissenbaum, 404 Mass 575, 536 NE 2d 592 (1989 —marijuana use by
Ethiopian Zion Coptic Church); State v Blake, 5 Haw App 411, 695 P 2d 336
(1985 — marijuana use in practice of Hindu Tantrism); Whyte v United
States, 471 A 2d 1144 (1982 — marijuana use by Rastafarians); State
v Rocheleau, 142 Vt 61, 451 A2d 1144 (1982 — marijuana use by Tantric
Buddhist); and State v Brashear, 92NM 622, 593 P2d 63 (1979 —
marijuana use by non-denominational Christians).
In Regina v Kerr
[1986] 75 NSJ (2d) 305 (CA) the Nova Scotia Supreme Court upheld a
conviction despite the defence that cannabis use was in accordance
with the
appellant's religious beliefs.
The Gleaner, Kingston, 17 May
1997.
Criminal Case No. 00001-91, August 1999.
1998 (8) BCLR 976 (CPD)
Friedman JP, Brand J, Hlophe J.
decision that the applicant was not a "fit and proper person" to be admitted as an attorney because of his two previous convictions for possession of cannabis and his avowed intention as a Rastafarian to continue to use the substance, assumed that such an action limited his constitutional rights, right to freedom of religion, the prohibition against discrimination and the right freely to choose one's profession, but held that these rights could be reasonably limited in the circumstances. In doing so it relied heavily on South Africa's international obligations under the international drug conventions.53 It rejected the argument that an exception could be made in respect of Rastafarians by holding that "such an exception would be contrary to South Africa's obligations in terms of the international conventions to which it is a party".54 Amazingly, no mention was made of the chapeau in article 3(2) of the 1988 Convention.
Despite some positive authority from foreign jurisdictions, internationally permitted constitutional exceptions represents only a limited opportunity for decriminalization in New Zealand by the judiciary. New Zealanders do enjoy legally protected rights to practice and manifest their religion.55 They would appear to apply to the use of cannabis by Rastafarians or other cultural minorities for which cannabis use is part of that culture. Rights of a more general scope would be more useful in respect of recreational use of cannabis by any person in New Zealand.56 But there are also further formidable legal obstacles to overcome once the prohibition on cannabis is held to be within the scope of the right. The court may be convinced that it was demonstrably justifiable to subject these rights to reasonable limitation in terms of section 5 of the Bill of Rights Act 1990. Even if it chose not to limit the right, the almost insurmountable problem is that constitutional rights are not entrenched in New Zealand so all that the New Zealand Court could do would be to attempt in terms of section 6 of the New Zealand Bill of Rights Act 1990, to interpret the Misuse of Drugs Act consistently with the rights and freedoms contained in the Act. Strained interpretations are
53 At 985D-H.
54 At 989A.
72 Yearbook of New Zealand Jurisprudence Vol 3
likely to be rejected57 and it is difficult to imagine how such an interpretation would not be strained.
It is obviously open for New Zealand's legislature to amend its domestic law on the basis that its legislation criminalizing cannabis conflicts with the Bill of Rights Act 1990. I am unaware of such an example in practice. If New Zealand were to take this approach, it would simply have to state that in the memorandum accompanying the bill that it is amending the Misuse of Drugs Act because it considers it to be in conflict with the New Zealand's constitution of which the Bill of Rights Act 1990 makes up an important part. To take advantage of the escape clause in this way and to show good faith it would have to demonstrate such a conflict to the international community, and that the New Zealand Bill of Rights Act demands such legislative amendment. Conflict would be simple to demonstrate, but given that the Act is not entrenched, it would be difficult to demonstrate that the New Zealand Bill of Rights Act 1990 is of the fundamental nature that the authors of the conventions envisaged when they drafted the constitutional escape clause.
4.2 Refraining from prosecuting
One of the reasons given by the New Zealand House of Representative's Justice and Law Reform Committee's support for the ratification of the 1988 Convention was that the 1988 Convention recognised the requirement to criminalize cannabis related activities was subject to the principle that these offences shall in terms of article 3(11) "be defined, prosecuted and punished in conformity with the domestic law of the party".58 In terms of article 36(4) of the 1961 Convention, article 22(5) of the 1971 Convention and article 3(11) of the 1988 Convention it falls within the discretion of the Parties to define, prosecute and punish these laws in conformity with their domestic
law.59 The scope of these discretionary powers in respect of the obligation to prohibit drug related conduct is contentious. It cannot remove the obligation to prohibit, or it would undermine the purpose of the convention completely and violate the fundamental principle pacta sunt servanda. But Parties do have discretion in choosing when and under what circumstances to prosecute the offences established. This autonomy includes the right to determine the level of offence (e.g. delict, misdemeanour, crime) and the right to choose not to prosecute. This kind of approach to discretion was taken by the New Zealand Justice and Law Reform Committee" to be the justification for the approach of the Netherlands and certain Australian states, where the explicit prohibitions demanded by particularly the 1988 Convention remain on the statute books, but an administrative decision is made not to prosecute possession of less than a certain amount of cannabis (the Dutch position)6I or drug control legislation is amended to allow payment of a fine to expiate
The autonomy of domestic law is reinforced by article 2(1) of the 1988
Convention which provides that "Mil carrying out their obligations
under the
Convention, the Parties shall take necessary measures, including legislative and
administrative measures, in conformity
with the fundamental provisions of their
respective domestic legislative systems".
House of Representatives Justice
and Law Reform Committee, Report on International Treaty Examination of the
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic
Substances 1988, 3 September 1998, at 3.
van Vliet H J "The uneasy decriminalization: a perspective on Dutch drug
policy" (1990) 18 Hofstra Law Review 717 at 731-2 explains that in terms of the
Opium Act of 1976 the possession of up to 30 grams of cannabis is a misdemeanour
or delict
subject to low penalties. By itself this does not amount to
decriminalization but the authorities, applying the expediency principle,
do not
prosecute such possession on grounds of public interest (see Drug Policy
Explanation, 2nd Chamber of Parliament, 1994-5, 240007,
No.2-3, at 5). Their
actions are regulated by prosecution guidelines, which rank such prosecution as
the lowest priority. These guidelines
also determine the authorities' attitude
to the prosecution of supply. Although supply, like possession remains illegal,
if suppliers
conform to certain rules such as no sale of more than 5 grams of
cannabis, hard drug sales, no sales to minors etc. they will be
left alone
—Netherlands Ministrie van Justititie Fact Sheet Drug:s
www.minjust.nl.a_beleid/fact.cfact7.htm. The decision to prosecute supply is
made by a triangle of authorities at the local level,
the mayor, chief of policy
and chief prosecutor. When the Opium Act was revised in 1976 taking use and
possession for use of cannabis
products out of the criminal sphere, the official
memorandum accompanying the change of policy recognised that this would violate
the 1961 Convention but provided that the government would investigate the
possibility of the Convention's amendment to give states
the option of adopting
a separate regime for cannabis products — Memorandum of the Minister of
Health and the Environment;
rd Chamber 1973/1974, 11.742 No.3 cited by van Vliet
supra at 724. Today, however, although the policy does not appear to have
changed
substantially, the Dutch believe that their policy fully conforms to
international obligations and note that there has been much
less criticism of it
recently. See Memorandum of the Minister of Health and the Environment 'Drug
Policy', 2na Chamber of Parliament, 1999/2000, 24.077 No.71, at 24. A
proposal to license coffee shops to sell cannabis was rejected in 1993 by
the
Ministry of Justice on the grounds that this would force withdrawal from the
drug conventions.
74 Yearbook of New Zealand Jurisprudence Vol 3
the offence of possession or small-scale cultivation which remains on the statute books (a tactic adopted by some Australian states).62 Precisely why the application of the expediency principle in the Netherlands or expiation in Australian states do not breach treaty obligations is not all that clear. Article 3(2) of the 1988 Convention speaks of a "criminal offence"; article 3(11) itself refers to "prosecute and punish". The granting of extensive discretionary powers is difficult to reconcile with the provision in article 3(6) of the 1988 Convention, which reads:
The Parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.63
While it may be possible to classify as less serious a certain type of offence, some kind of penal obligation imposed by the Party is necessary to meet international obligations. Van Vliet, commenting on the position in Dutch law, notes: "There is, of course, a certain tension between the illegal status and the actual decriminalization of cannabis products".64
Some may take the view that this tension is more apparent than real because in fact most international treaties only require purely formal application when indirect application is involved, and that this is particularly so in the drug conventions which expressly recognise a discretion to prosecute or not. It would follow that material non-compliance is not a breach of the treaty. However, where a treaty provides for supervisory machinery then it appears that material observance is required and such an action would be a breach of the treaty obligation. And the drug conventions do provide for such supervision by the UN's drug control organs. Under the drug conventions, the Commission on Narcotic Drugs (CND) is authorised in terms of article 8 of the 1961 Convention to consider all matters affecting the conventions' aim of suppression of the illicit traffic, and the implementation of the provisions relating to the illicit traffic, and to make appropriate recommendations. The INCB monitors implementation. Article 9(4) of the 1961 Convention provides that the INCB must endeavour "to prevent illicit
64 See note 61 at 732.
cultivation, production and manufacture of, and illicit trafficking in and use of, drugs". In terms of article 14(1) of the 1961 Convention if it has "objective reasons" to believe that the aims of the Convention are threatened by a Party's failure to carry out its obligations, for example, by failing to enact and apply article 36 offences, the INCB has the right to confidentially consult with that Party or request it to supply information. Article 14(1)(b) provides that the INCB may call upon the Party to adopt appropriate remedial measures. If results are undesirable, in terms of article 14(1)(c) the INCB can call the attention of the Parties, ECOSOC and the CND to the matter. But it may only do so if either: (i) the aims of the Convention are being seriously endangered and it is impossible to resolve the matter satisfactorily in any other way; or (ii) the INCB fmds that there is a serious situation that needs co-operative action at the international level with a view to remedying it; or (iii) bringing such a situation to the notice of the Parties, ECOSOC, and the CND is the most appropriate method of facilitating cooperative action. If one of these conditions is met, the INCB can in terms of article 14(3) make a special report including the views of the defaulting Party to ECOSOC, and recommend in terms of article 14(2) that Parties stop the import and export of all drugs to and from that country for a designated period or until it is satisfied with the situation in that country. The Party has the right to put its case to ECOSOC.65
The INCB has been given similar powers under the 1971 Convention. It has the right to ask a Party to furnish information which it needs in connection with the Party's execution of the 1971 Convention's provisions, and article 19 allows it to recommend an embargo against a Party when it has reason to believe that the aims of the Convention are being seriously endangered by the Party's failure to carry out the Convention's provisions.66 Under the 1988 Convention, article 22 confers on the INCB powers of investigation in response to allegations that a Party is not meeting the aims of the 1988 Convention. No provision is made for the INCB to take steps against a defaulting Party to force it to comply with the Convention's provisions. Article 21 provides instead that the CND is authorised to consider all matters pertaining to the aims of the 1988 Convention. Article 21(a) obliges the CND to review the operation of the 1988 Convention, article 21(b) allows it to make suggestions and general recommendations based on the examination of the information it receives from the Parties and article 21(d) obliges it to take appropriate action on any matter referred to it by the INCB under article 22(1)(b). In practice the system's embargo powers have not been used. But
76 Yearbook of New Zealand Jurisprudence Vol 3
that does not mean that given sufficient political support from states party, they may not be brought into action. One source of support for the characterisation of the de facto decriminalization of cannabis as a "serious situation" would be the strong prohibitionists like the United States, but Bassiouni and Thony point out that support may also come from drug producer states that do not feel that the consumer states are pulling their weight in applying the system. Bassiouni and Thony comment:
The relaxed laws in states like the Netherlands presents a strange situation where Western states put a lot of pressure on developing countries to stop the illicit production of cannabis, and at the same time close their eyes to their own national production and use. This inconsistency could lead to a crack down of the international control system over cannabis.67
Whatever the source of the pressure, in the light of the capacity of the UN drug control organs to examine and enforce prohibition of cannabis it seems facile to argue that the drug conventions oblige states to engage in purely formal application. Purely formal application is contrary to the object and purpose of particularly the 1988 Convention and is thus a material breach of article 3 paragraphs (1) and (2).68
Another way of approaching the domestic autonomy granted by the conventions is to focus on which body within a party may exercise this discretion and still meet the terms of the international agreement. When a Party's supreme law making body legislates to the effect that a discretion should always be exercised in favour of the non-prosecution of the accused, then that Party cannot argue that such a discretion in fact exists, and by extension it cannot be said to act within such a discretion when it decriminalizes cannabis. In other words, the discretion recognised by, for instance, article 3(11) of the 1988 Convention, cannot be a discretion simply not to meet the terms of the agreement or else it would be a fundamental violation of the principle of effectiveness in international law and render the Convention's provisions in respect of offences optional. For a system of indirect application to mean anything, the bodies responsible for such application cannot have a choice about whether to adhere to the terms of the agreement or not. That would be a discretion to legislate rather than a discretion to apply. If the discretion is fettered by policy generated by bodies subordinate to the supreme domestic law-making body, as in the Dutch case where the local triangle of officials decide whether to prosecute cannabis
6g Article 60(3)(b) of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, provides that a material breach of a treaty is "the violation of a provision essential to the accomplishment of the object or purpose of the treaty".
trafficking, the Party can plausibly argue that it is still exercising the "discretion" recognised by international law. The latter discretion is recognised by the international agreement because certain subordinate bodies will be closer to the individual accused and more aware of their actual situations and should be able to make case related decisions about prosecution. I would submit that Krajweksi reads article 3(11) of the 1988 Convention correctly when he argues that by combining the principle that self-destructive behaviour should not be the subject of punishment69and the expediency principle whereby a state introduces legislation but does not enforce it, Parties could enact the article 3(2) offence and then use their administrative discretion not to apply it when no-one other than the user is threatened by use.70 It has been stated by Parties that they possess greater discretionary legal powers with regard to simple possession than trafficking offences,7I and it seems to me that New Zealand could validly argue that it has retained the discretion in terms of the conventions to impose administrative limitation on the prosecution of the simple possession and cultivation of cannabis for personal use. A direction from the Ministry of Justice would serve this purpose effectively.
4.3 Refraining from punishing
Under this option, cannabis related offences would remain prohibited but penal sanctions would be replaced by civil or administrative measures. The basis of this option is the discretion granted by the conventions to divert offenders away from punishment for a specific purpose such as treatment or rehabilitation.
Article 36(1) of the 1961 Convention obliges Parties to provide for two standards of punishment. The general standard provides that all the forms of drug related conduct enumerated in article 36(1) shall be "punishable offences". The special standard provides that "serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty". Neither of these standards apply to personal use offences as "use" is not listed in article 36(1), and "possession" and "purchase" in article 36(1) have been restrictively interpreted as limited to possession or purchase for the purpose of trafficking. The 1961
" This principle was used by German Constitutional Court in its 1994
decision.
70 Krawjewski, supra n 2 at 8-12.
78 Yearbook of New Zealand Jurisprudence Vol 3
Commentary points out that Parties may "undoubtedly choose not to provide for imprisonment of persons found in such possession, but to impose only minor penalties such as fines and even censure" and thus in effect not to treat possession for personal use as a "serious" offence under article 36(1) deserving of imprisonment or other "adequate punishment".72 It is submitted that a Party may take the same approach to cultivation of cannabis for personal use, but it appears that article 36(1) requires the punishment of illicit trafficking offences such as the supply of cannabis. Article 36(1)(b), inserted by article 14 of the 1972 Protocol into the 1961 Convention, provides Parties with the discretion to implement measures such as treatment, education, and rehabilitation as alternatives to conviction and punishment or in addition to conviction and punishment, no matter how serious the offence, when the offender is an abuser.
As with the 1961 Convention, a dual punishment regime is envisaged by article 22(1)(a) of the 1971 Convention, viz.: "punishable offences" and "serious offences ... liable to adequate punishment". If one accepts that simple possession is not criminalized by the 1971 Convention, then the question of its conviction and punishment is entirely a domestic affair. If not, article 22(1)(b) provides that when abusers of psychotropic substances have committed article 22(1)(a) offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, for an obligation on abusers to undergo measures of treatment, education, aftercare, rehabilitation and social reintegration in conformity with article 20(1). The measures listed, viz.: "treatment, education, aftercare, rehabilitation and social reintegration", are steps in the general process of reintegration of the drug user. The Party is allowed to employ substitution to any abusers of a psychotropic substance such as THC at any stage of criminal proceedings including at the arrest stage. Non-abusing suppliers are not so fortunate. Their offences are punishable under article 22(1)(a).
One of the reasons given for supporting the ratification of the 1988 Convention by the Justice and Law Reform Committee of the New Zealand House of Representatives was that the Convention "does not actually require the Parties to convict and punish persons for personal possession or use of cannabis".73 Article 3(4)(d) of the 1988 Convention allows Parties to "provide either as an alternative to conviction or punishment, or in addition to conviction or punishment" for measures such as education and treatment for the personal use offence in article 3(2). With regard to the more serious
72 See 1961 Commentary, supra n 15 at 112.
article 3(1) offences of supply and cultivation of cannabis, article 3(4)(a) obliges Parties to take into account their grave nature by applying sanctions such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation. Article 3(4)(b) allows Parties to provide for treatment etc in addition to conviction or punishment. In appropriate cases of a minor nature article 3(4)(c) provides for such measures in the alternative to conviction or punishment. It is arguable that cultivation of cannabis for personal use or supply of small amounts of cannabis for no value are article 3(1) offences of a minor nature and any Party is free to apply alternative measures to them.
The provisions in the drug conventions that allow Parties to apply treatment measures in the alternative or in addition to conviction or punishment only provides an escape route from violation of the conventions to those Parties that criminalize and then choose as a matter of administrative policy not to punish.74 They allow New Zealand to depenalize simple possession of cannabis in terms of all the conventions, cultivation for personal use in respect of all of the conventions, and supply for no value of small amounts of cannabis in respect of the 1988 Convention only. The problem with relying on these alternative measures is that under the 1961 and 1971 Conventions the options are limited to treatment, education, after-care, rehabilitation, and social reintegration. Thus if a Party chooses to retain the prohibition of cannabis but avoid prosecution and conviction of cannabis related offences, it has a problem if it does not want to treat potential offenders. Therapeutic measures like "treatment", "aftercare" and "rehabilitation" of most cannabis users would simply be inappropriate, if what is really aimed at is decriminalization. "Education" of the general public on the health implications of cannabis use seems more apposite. On the other hand Dawkins argues, that "a decriminalization regime for small amounts of cannabis for personal use could be defended as a means of `social reintegration' of a class of persons subject to a prohibition policy of dubious utility".75 Under the 1988 Convention, the list of measures is not a numerus clausus and Parties are free to use whatever other methods are judged to be appropriate to the particular circumstances of the offender.76 Possible alternatives include confiscating the illicit substance, cautioning or fining, or only imposing therapeutic measures when chronic use endangers health. Parties have become more flexible in their punishment of use and
75 Dawkins, supra n 2 at
283.
76 1988 Commentary, supra n 28 at
89.
80 Yearbook of New Zealand Jurisprudence Vol 3
simple possession particularly,77 and it is submitted that state practice provides a solid foundation for non-therapeutic diversion as a valid interpretation of the drug conventions by New Zealand.78
5. CHANGING INTERNATIONAL LAW TO ALLOW DOMESTIC
CHANGE
5.1 De-scheduling cannabis
The drug conventions arrange drugs in separate schedules, corresponding to different regimes of control. Removing a drug from a schedule or moving it into another schedule, without amending the treaty can bring about a change in the degree of control of any drug.79 The most efficient way of decriminalizing cannabis at the domestic level, in that it is the least complex from a legal point of view, is to de-schedule the substance at the international level, and then adjust domestic drug schedules accordingly. Importantly, New Zealand could not de- or re- schedule cannabis unilaterally without violating its international agreements, even if it had decided that cannabis was a social risk worth taking or testing revealed that cannabis has medical benefits. The international system of drug control is structured in such a way that no signatory state has the authority to decide unilaterally that cannabis should be dealt with in a non-penal way or that cannabis has in fact got bone fide medical applications. In either case New Zealand would have to attempt to have the drug de- or re- scheduled using the international process. For most purposes the material scope of the 1988 Convention is defined by the 1961 and 1971 Conventions.80 It is therefore the scheduling process under the earlier conventions that is important here.
The procedure for de- or re- scheduling drugs under the 1961 Convention is most significant. Article 2 of the Convention divides narcotic drugs into four
different schedules based on an assessment of their properties, and different control regimes are applied to the drugs in these schedules. Cannabis is listed in Schedule I, to which in terms of article 2(1) all the general regulative control articles apply,8I and in Schedule IV, a list of the drugs considered most dangerous, but to which it is only recommended in terms of article 2(5) that additional, special control measures should be applied.82 Article 3(6) allows the Commission for Narcotic Drugs (CND), in accordance with the WHO's recommendation, to (a) amend any of the schedules by transferring a drug from Schedule Ito Schedule II, or. (b) delete any drug from a schedule. Re-scheduling cannabis to Schedule II is pointless because it would still be subject to article 36's penal provisions, while Schedule III is reserved for preparations. De-scheduling is the only option. The article 3(6)(b) procedure can only be initiated by Parties who must notify the Secretary-General and furnish him with information in support of the notification.83 The Secretary-General must notify the other Parties and the WHO if necessary of the potential de-scheduling.84 The WHO, relying upon the expertise of its ad-hoc Expert Committee, makes the necessary recommendation upon which the CND takes the final decision.85 The decision making process is set out in article 3(3)(iii) and takes place in two stages. Stage one would require the WHO, relying on the decision of its Expert Committee, to find that cannabis is in fact not a) liable to similar abuse and productive of similar ill effects as the drugs in Schedule I or Schedule II, or b) convertible into such a drug. Criteria a) depends on similarity in abuse and effect to scheduled substances. Thus the criteria used originally to schedule the drugs by the Technical Committee at the 1961 Conference are important. The two tests it used in preparing Schedules I and II were the substance's "degree of liability to abuse" and "its risk to public health and social welfare". The 1961 Commentary86 notes that as a result of the application of these two tests "the substances in these two Schedules, that is, the drugs under the narcotics regime have morphine like, cocaine
82 Schedule
IV is composed of those substances which a) have strong addiction-producing
properties or a liability to abuse not offset
by therapeutic advantages that
cannot be afforded by some other drug; and/or b) for which expunging from
general medical practice
is desirable because of the risk to public health. The
cannabis plant and cannabis leaves are subject to special measures of control
under article 2(6) of the 1961 Convention and article 1 of the 1972
Protocol.
83 Article 3(1).
84 Article
3(2).
85 Article 3(7).
86 Supra n 15 at
86-7.
82 Yearbook of New Zealand Jurisprudence Vol 3
like, or cannabis like effects or are convertible into 'drugs' having such effects". Thus in withdrawing cannabis from control the WHO Expert Committee would in effect have to delete one of the core markers of abuse. The test leaves the Committee a measure of discretion, and it is guided by the risk the substance presents to "public health and social welfare". If cannabis was found by WHO not to be liable to similar abuse and productive of similar ill effects as the other drugs controlled, then the WHO will notify the CND of this finding. Stage two consists of the CND deciding, upon the basis of the WHO's recommendation, to delete cannabis from the schedules. The CND votes by simple majority. The CND's decision is binding immediately on the Parties upon receipt of notification thereof. It may be reviewed by ECOSOC on petition by a signatory state. De-scheduling would, I suggest, given that cannabis has served as a benchmark since 1961, be extremely difficult to achieve, despite the medical and welfare merit of the case. Without a much greater consensus than exists at present globally on the nature of its harmful effects, it seems an unlikely route for successful change. It may be possible to convince the WHO Expert Committee, the WHO itself, and the CND of the medical benefits of cannabis to specific users, given the growing evidence of such benefits to sufferers of conditions like multiple sclerosis.87 But the medicalization model is not a broad solution for the removing the prohibition of the recreational use of cannabis, because most users are not suffering from anything other than a desire to get high. The flaw of rescheduling cannabis to take account only of its medical uses is that it takes no account of the non-medical social nature of most cannabis usage - cannabis is more like alcohol than a prescription drug.
The procedure for scheduling substances under the 1971 Convention presents much the same apparent opportunities and actual problems. Barbiturates, tranquillisers and amphetamines fall outside the scope of the 1961 Convention, hence the elaboration of the 1971 Convention, which like the 1961 Convention, has four schedules of substances to which different control regimes apply. From the point of view of criminal law, the penal provision in article 22 of the 1971 Convention applies to any psychotropic substance covered by the Convention. Tetrahydroncannbinol (THC), is listed in Schedule I. As under the 1961 Convention, article 2(6) of the 1971 Convention provides that either a party or the WHO may, if it has information relating to a controlled substance and believes that it should be de-scheduled, notify the Secretary-General to this effect, justifying its opinion and thus setting in motion the process for de-scheduling. Under article 2(2) the Secretary-General is obliged to transmit the notification to
87 In November 1996, California legalised the use of cannabis for medical purposes and
Arizona allowed doctors to prescribe any drug for medical treatment and approved treatment and not incarceration for illegal possession: The Guardian 22 February 1997.
the Parties, the CND and if the notification is made by a Party, the WHO. Under article 2(4), the WHO Expert Committee would have to find that THC does not in fact have the capacity to produce a state of dependence and central nervous system stimulation or depression, resulting in hallucination or disturbances in motor function or thinking or behaviour or perception or mood, or similar abuse and similar effects as a substance in Schedule I, II, III, or IV, and that there is no evidence that the substance is being abused so as to constitute a public health and social problem warranting the placing of the substance under international control. If it does so it is obliged to communicate an assessment of the substance to the CND. The WHO may in terms of the provision examine a substance solely on the basis of its chemical structure, but Chatterjee notes, that following it usual practice, it will take into account the harmful effects the substance might produce.88 While according to article 2(5) the Expert Committee's assessment is determinative as to medical and scientific matters, the CND takes the decision to de-schedule the substance and in doing so it has the right to seek advice elsewhere. A two-thirds majority is required in the CND when voting on such a question. Article 2(7) obliges the Secretary-General to communicate the CND's decision to all UN members, the WHO, the INCB and those Parties to the 1971 Convention who are not UN members. The CND's decision is not binding until 180 days after receipt by the Parties of notification thereof, and a Party may take exception to such a decision and make a reservation. Article 2(8) provides for review of the CND's decision. The discretionary power of the CND may suggest a possible opening should the WHO Expert Committee make an unfavourable decision in regard to de-scheduling, but in fact it is more likely to be used to block a favourable decision by the WHO. The same considerations apply - broad approval on a global scale - and the same result is likely - a negative one.
In essence then, de-scheduling under the 1961 and 1971 Conventions is a part scientific, part political process controlled by the UN's central drug control supervision organs. Even though there may be dissenting voices within WHO about the harmful medical and social effects of cannabis,89 those voices are not in the majority and they are unlikely to sway the criminal justice professionals, diplomats and politicians who run the CND.
se Chatterjee S K Legal Aspects of International Drug Control (1981) at 460.
84 Yearbook of New Zealand Jurisprudence Vol 3
5.2 Amending the Conventions
One possible way of avoiding the de-scheduling blockage would be for New Zealand to propose the amendment of both the 1961 and 1971 Conventions to remove any reference to cannabis or THC." The virtue of amendment is that it is direct and effective. Both conventions require that the text of and reasons for the amendment be communicated to the UN Secretary General who is obliged to communicate them to ECOSOC and to the Parties. The ECOSOC "may decide" either to call a diplomatic conference to consider the amendment or to ask Parties whether they accept the amendment and to submit their comments. In the latter case, if the amendment has not been rejected by one Party within eighteen months of circulation it shall enter into force. Rejection gives ECOSOC the choice of calling a conference or not.
Currie et al believe two options are available using the provisions for amendment — partial elimination or total elimination of international obligations requiring criminalization.91 Partial elimination would involve the decriminalization of the use and possession and provision of cannabis for no value,92 while total elimination allows legalization of cannabis or its being subject to a regulatory regime like that applying to alcohol.93 The advantage of amendment is that the whole of the international community would move forward together on this policy issue. That is also the reason why amendment is unlikely to succeed and may result in no change for a state, like New Zealand, desiring change. Such a proposal would almost certainly be challenged and acceptance without a conference is unlikely. It would have to be settled by a diplomatic conference. States opposed to such amendment would argue that the rescheduling process is the process for amending the schedules. The prospect of consensus being achieved at such a conference are difficult to gauge, but it seems unlikely.
5.3 Withdrawal from the conventions
If New Zealand were not satisfied with decriminalization by administrative action or depenalization within the possibilities of the drug conventions, and it wanted to remove the prohibition of cannabis from its statute books, it could assert its sovereign right to enact its own policies on the harm
90 Article 47 of the 1961 Convention and article 30 of the 1971
Convention.
91 Currie et al, supra n 2 at 245-8.
minimisation of cannabis and denounce the conventions by written notification to the UN Secretary-Genera1.94 Invocation of either of two separate grounds may serve to justify withdrawal and give New Zealand the moral high ground. New Zealand could state that its agreement to the scheduling of cannabis in the 1961 Convention and/or THC in the 1971 Convention was an error in terms of article 48 of the Vienna Convention on the Law of Treaties on the basis that it assumed that the substance was medically and socially harmful at the time it signed and ratified the Convention, when in fact it has since been discovered that it is not. A more plausible route would be to argue that New Zealand has determined that harm from cannabis use can best be managed using a regulation model, and invoke the doctrine of "changed circumstances" set out in article 62 of the Vienna Convention of the Law of Treaties.95 New Zealand would have to argue that acceptance of harm driven prohibition was fundamental to its consent to the scheduling of cannabis and its reassessment of this harm has in the interim radically transformed the extent of its obligations under the drug conventions because it obliges New Zealand to criminalize conduct it no longer regards as sufficiently harmful to justify criminalization.
Withdrawal would terminate New Zealand's treaty obligations. Advocates of cannabis prohibition could argue that the obligation to criminalize cannabis within the drug conventions has become part of customary international law and New Zealand remains bound. However, evidence of contradictory state practice and opinio iuris abounds: many states take a very lenient approach to the prohibition of cannabis and particularly to the prohibition of cannabis for personal use.96 There may be a case for a customary rule obliging states to control cannabis, but the variation in intensity and scope of state control over cannabis militates against the establishment of a customary international rule of criminalizing cannabis.
When denunciation takes effect, New Zealand would be in a position to change its domestic law and either lobby to overturn the global policy against cannabis97 or re-ratify them with reservations in respect of the
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scheduling of cannabis." The former action is probably not an option given New Zealand's general commitment to international drug control. Transitional reservations to the 1961 Convention were permitted in respect of the "the use of cannabis, cannabis resin, extracts, and tinctures of cannabis for non-medical purposes" for twenty five years after the coming into force of the 1961 Convention in terms of article 49(1)(d), but article 49(2)(f) provides that such use had to be discontinued within twenty-five years of the coming into force of the 1961 Convention. Article 50 provides that no reservations other than those in article 49 shall be permitted unless in terms of article 50(3) the Party wishing to make a reservation notifies the Secretary General and no more than one third of states parties object within one year. Article 32 of the 1971 Convention also prohibits reservations generally except under the same criteria. Given the support for prohibition, such a low level of objection would be easily attained.
General international law provides no assistance because article 19 of the Vienna Convention on the Law of Treaties provides specifically that reservations are not permitted when they are a) expressly prohibited by the treaty in question or b) when they are not among those specifically provided for by the treaty. As the 1988 Convention has no provisions for reservations, general international law prevails. Article 19(c) of the Vienna Convention on the Law of Treaties provides that a state when ratifying a treaty may make formulate a reservation, as long as that reservation is not incompatible with the convention's object and purpose. This raises the issue of whether a reservation in respect of the criminalization of cannabis would conflict with the object and purpose of the 1988 Convention. If decriminalization prior to withdrawal is considered as a contradiction of the object and purpose of the Convention resulting in a material breach of the treaty obligation in terms of article 60(3)(b) of the Vienna Convention on the Law of Treaties, then avoiding breaching by denouncing and reserving to the same effect means that the reservation will conflict with the object and purpose of the treaty, leaving such a reservation's legality questionable.
Denunciation, whatever follows it, would generate a lot of official displeasure from advocates of global prohibition, like the United States, and these states may resort to sanctions to get New Zealand to conform. The argument that New Zealand presents little actual threat internationally due to its isolated geographical position which means that it is unlikely to contribute to global smuggling or drug tourism is tenable, but at least in the eyes of prohibitionists, almost certainly outweighed by the "bad" example it will have set. The control organs of the international drug control system
98 Schutte made this point in respect of the proposed legalisation of supply of cannabis in
the Netherlands, see supra n 35 at 69.
remain firmly opposed to decriminalization, something evidenced by the INCB' s continual criticism of Dutch drug policy.99 Withdrawal, an uncommon process in international law,m is a difficult option, particularly in the light of the difficulties of re-entry with reservations.
6. CONCLUSION
The Justice and Law Reform Committee for the New Zealand House of Representatives concluded in its analysis of the consequences of ratification of the 1988 Convention as follows:
While liberalisation of laws against the possession and use of cannabis is not on the Government's agenda at present, it would appear to us that ratification of the 1988 Convention would not unduly restrict the possibility of liberalisation of such laws in future. 101
Examination of the law leaves less room for manoeuvre than the Committee believed there to be. While the 1961 and 1971 Conventions arguably do not require New Zealand to criminalize simple possession and cultivation for personal use of cannabis or THC, the 1988 Convention does. And all three conventions criminalize supply for whatever purpose. If no attempt to change international law is going to be made, then New Zealand could argue that the constitutional/basic law exceptions to the obligation to prohibit permit decriminalization, but the difficulty would be convincing the international community that this was in fact the case, given the un-entrenched nature of the Bill of Rights Act 1990. Reliance on the autonomy of indirect application granted by the conventions is more promising although a legislated blanket decision not to prosecute cannabis offences at all would seem to be in violation of the convention obligations because falls outside domestic autonomy. An administrative decision not to prosecute would be effective, especially when based on the principle that those that do
100 Jamaica withdrew recently from Optional Protocol 1 of the International Covenant on Civil and Political Rights, 23 October 1997, UN Status of Multilateral Treaties 1997 164 note 1. Its withdrawal was not welcomed, and the Secretary General hoped it would reconsider.
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no harm to others should not be subject to the criminal law. Diversion from the system and depenalization is also a promising alternative permitted by the conventions.
If New Zealand sought to change international law in order to facilitate domestic decriminalization, the options are not attractive. If it sought to have cannabis rescheduled in the 1961 Convention, it would almost certainly fail, because it is unlikely that the international community is ready to make this step, especially to enable recreational use. Amendment would in all likelihood suffer the same fate as de-scheduling. Withdrawal and denunciation are possible but seem highly unlikely, given the recent decision to ratify, and would also be frowned upon by the international community. Re-ratification of the conventions with reservations in respect of cannabis would be very difficult and unpopular.
In sum then, it would seem that the best option for New Zealand to take would be to avoid trying to change international law, and to use the open textured nature of the provisions relating to the discretion not to prosecute or punish. It should retain the prohibitions in the Misuse of Drugs Act while making an administrative decision to refraining from applying it to the letter, and choosing to divert when no-one other than the user is threatened by use.102
At the centre of this debate is assessment of the medical and social harm caused by cannabis. It is central to the notion of rescheduling, of constitutional rights to use, and to decisions not to prosecute or to divert offenders or to withdraw from the system. It is important to understand that this assessment is not and probably never was purely scientific. It is, to a very large extent, a moral-political assessment. Crucial to this evaluation is not so much the fact of the evaluation itself, but who controls the evaluation. The global network that exists to suppress illicit drugs on behalf of states also serves to legitimise the policy of blanket prohibition. Removal of cannabis from scheduled prohibition in the international drug conventions would be a defeat for the international public political morality of prohibition. It would be a reclaiming of control over this issue by individual states. That political morality is not likely to give way without a fight. But the example of decriminalization of cannabis in NZ, within the bounds of international law, in response to a re-evaluation of the harm caused by cannabis and the inappropriateness of blanket prohibition, would add to a growing global trend to take the harm principle seriously. If nations that took such a view were able to link-up, it may result in the reconstruction of the global drug problem, at least to a degree, from the bottom-up.
102 This mixed approach was suggested by Krawjewski, supra n 2 at 8-12.
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