Written by Damir Defterdarević, LLM student in International Human Rights Law, damir.defterdarevic gmail.com.

It has been a turbulent journey for States in their efforts to regulate harmful substances on the international level, starting with the Opium Convention of 1912. With the passing of the 20th century, the scope and the approach to regulation has been affected by numerous political, cultural and economic factors.[1] In 1961, The United Nations (UN) established the Single Convention on Narcotic Drugs (Single Convention) with the intention of consolidating the previous treaties and together with the following two conventions establishing an expanded scope of substance regulation. However, the Single Convention has represented more than a consolidation, it also significantly expands the scope of previous treaties.[2] The current UN international drug regulation system is comprised of three drug control treaties – the previously mentioned Single Convention as amended by the 1972 Protocol, the Convention on Psychotropic Substances of 1971 and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.[3] In order to achieve their goals, the treaties have given mandates to the International Narcotics Control Board (INCB), the Commission on Narcotic Drugs (CND) and the World Health Organisation (WHO). These treaties have introduced a substance scheduling system which separates the substances into different categories based on their potential therapeutic benefits, risk of abuse and possible negative effects on health.[4] The Single Convention has set the limits regarding the production and possession of illicit drugs in Article 4, specifically limiting “exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession” of illicit substances.[5]

The aforementioned Conventions became widely adopted, with the Single Convention reaching 186 State parties. However, the advancement of scientific research involving the effects and potential uses of these substances has caused conflict between these Conventions and the ability of States to insure the best possible level of public health protection. As previously stated, Article 4 of the Single Convention has clearly determined that the use, production, manufacture, possession, export, import, distribution and trade of illicit substances (as determined by the scheduling system) is limited to medical and scientific purposes. However, an increasingly growing number of State parties to these conventions have decriminalised or even legalised production, sales and use of illicit substances for recreational purposes.[6] Furthermore, even the “allowed” aspect of utilising illicit substances for medical and scientific purposes has been challenged and labelled inadequate by drug experts to the slowness of the institutions to adapt to the scientific progress and evidence.[7] The large part in this issue is played by the rigid substance scheduling system, which hinders scientific research of potential health benefits of certain substances and is characterised as outdated by a number of experts. However, the process of potentially reforming the current system, including the scheduling procedure, is certain to face a number of obstacles. The issues with the current categorisation system were outlined by the 2019 report of the Global Commission on Drug Policy which indicated the “collateral damage” caused by the imbalance between controlling substances and enabling their use for medical purposes, as well as the negative influence of the regulation on mortality rates, spread of infectious disease and consequences of overcrowded detention facilities.[8] One of the most notable examples of an illicit substance with potential beneficial properties is cannabis. Cannabis has been categorised as a Schedule IV substance, which characterises the substance as “…particularly liable to abuse and to produce ill effects, and such liability is not offset by substantial therapeutic advantages”, a status which has not been reviewed by the WHO since 1961.[9] In contrast to this characterisation, certain cannabis preparations can be used for medical purposes.[10] The movement for the rescheduling of cannabis has gained momentum in recent years, with the WHO sending a letter to the Secretary General of the UN recommending the its rescheduling as well as other related substances in order to facilitate trade of the substances for medical and research purposes in January of 2019. However, the CND’s vote on this decision was delayed indefinitely, further echoing the criticisms towards the relevant UN bodies.[11]

From the human rights perspective, the responsibility of the State to respect, protect, and fulfil human rights can only be maintained if the State employs a public health approach, applying limitations proportionate to the goal of improving public health.[12] The right to health, as well as the right to enjoy the benefits of scientific progress are undeniably affected by the previously described state of international drug regulations. The previously mentioned limitations to scientific research which are imposed by the current regulation system can be showcased by a number of examples. One of them is the USA, with the Drug Enforcement Administration’s interpretation of the Single Convention resulting in direct and negative consequences with regards to scientific studies of substances, in particular cannabis.[13] The examples of struggles that State parties to the international drug regulation treaties endure with regards to scientific and medical research of illicit substances indicate that the current UN drug regulation system established disproportional limitations to the ability of State parties to achieve the best possible level of public health protection. Due to the inefficiency of the relevant international bodies, States have been increasingly deviating from these drug Conventions. This will only continue to increase in the future due to the recognition of the necessity of legislation to keep up with the scientific progress and research which could potentially significantly contribute to the level of public health protection. It can be stated that the UN drug control regulations must be either significantly reformed or replaced by new regulation in order to enable the adequate level of human right protection.

List of sources

Primary sources:

Single Convention on Narcotic Drugs (Signed 30 March 1961, entered into force 13 December 1964) 520 UNTS 204

European Monitoring Centre for Drugs and Drug Addiction, ‘Medical use of cannabis and cannabinoids: questions and answers for policymaking’ (2018) Publications Office of the European Union, Luxembourg

European Monitoring Centre for Drugs and Drug Addiction, ‘Classification of Controlled Drugs’ accessed on 14 November 2019; available at < http://www.emcdda.europa.eu/publications/topic-overviews/classification-of-controlled-drugs/html_en >

Global Commission on Drug Policy, ‘Classification of Psychoactive Substances – When Science was Left Behind’ (2019) Geneva, Switzerland

National Academies of Sciences, Engineering, and Medicine; Health and Medicine Division; Board on Population Health and Public Health Practice; Committee on the Health Effects of Marijuana ‘The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research’ (2017) Washington (DC): National Academies Press, Chapter 15, p. 377-394

 Secondary sources

 Armenta, Amira and Jelsma, Martin, ‘Primer: The UN Drug Control Conventions’ Transnational Institute (2015)

 Bewley-Taylor, D.R and Jelsma, Martin, ‘Fifty Years of the 1961 Single Conventions on Narcotic Drugs: A Reinterpretation’ (2011) Amsterdam: Transnational Institute, Series on Legislative Reform of Drug Policies, No. 12

 Burke-Shyne, Naomi; Csete, Joanne; Wilson, Duncan et al, ‘How Drug Control Policy and Practice Undermine Access to Controlled Medicines’ (2017) Health and Human Rights Journal, Vol. 19(1), p. 237–252

 Nutt, David, ‘Illegal Drugs Laws: Clearing a 50-Year Old Obstacle to Research’ (2015) PLOS Biology, Vol. 13(1)

 Somerset, Sara Brittany, ‘As Expected the UN Delays Voting on Cannabis’ (2019) Forbes; available at < https://www.forbes.com/sites/sarabrittanysomerset/2019/02/26/as-expected-the-un-delays-voting-on-cannabis/#3292fc7514e0 > accessed on 28 August 2019

[1] Amira Armenta and Martin Jelsma, ‘Primer: The UN Drug Control Conventions’ Transnational Institute (2015)

[2] D.R Bewley-Taylor and Martin Jelsma, “Fifty Years of the 1961 Single Conventions on Narcotic Drugs: A

Reinterpretation’ (2011) Amsterdam: Transnational Institute, Series on Legislative Reform of Drug Policies, No. 12

[3] Ibid.

[4] European Monitoring Centre for Drugs and Drug Addiction, ‘Classification of Controlled Drugs’ accessed on 14 November 2019; available at < http://www.emcdda.europa.eu/publications/topic-overviews/classification-of-controlled-drugs/html_en >

[5] Single Convention on Narcotic Drugs (Signed 30 March 1961, entered into force 13 December 1964) 520 UNTS 204

[6] For example, the national drug regulation policies of countries such as the Netherlands, Canada, Portugal and Uruguay are in direct conflict with the Single Convention on Narcotic Drugs, specifically article 4(c) of the Convention.

[7] David Nutt, ‘Illegal Drugs Laws: Clearing a 50-Year Old Obstacle to Research’ (2015) PLOS Biology, Vol. 13(1)

[8] Global Commission on Drug Policy, ‘Classification of Psychoactive Substances – When Science was Left Behind’ (2019) Geneva, Switzerland

[9] Single Convention on Narcotic Drugs (Signed 30 March 1961, entered into force 13 December 1964) 520 UNTS 204

[10] European Monitoring Centre for Drugs and Drug Addiction, ‘Medical use of cannabis and cannabinoids: questions and answers for policymaking’ (2018) Publications Office of the European Union, Luxembourg

[11] Sara Brittany Somerset, ‘As Expected the UN Delays Voting on Cannabis’ (2019) Forbes; available at < https://www.forbes.com/sites/sarabrittanysomerset/2019/02/26/as-expected-the-un-delays-voting-on-cannabis/#3292fc7514e0 > accessed on 28 August 2019

[12] Naomi Burke-Shyne, Joanne Csete, Duncan Wilson et al, ‘How Drug Control Policy and Practice Undermine Access to Controlled Medicines’ (2017) Health and Human Rights Journal, Vol. 19(1), p. 237–252

[13] National Academies of Sciences, Engineering, and Medicine; Health and Medicine Division; Board on Population Health and Public Health Practice; Committee on the Health Effects of Marijuana, ‘The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research’ (2017) Washington (DC): National Academies Press, Chapter 15, p. 377-394