Pubdate: Tue, 19 Jan 2016
Source: National Post (Canada)
Copyright: 2016 Canwest Publishing Inc.
Authors: Hugo Alves, Matthew Kronby and George Reid
Note: Hugo Alves and Matthew Kronby are partners at, and George Reid 
is an associate with, Bennett Jones SLP in Toronto.
Page: A8


Will the legalization of marijuana in Canada depend on the votes of 
federal MPs or on the views of Canada's international partners? The 
Post's Tasha Kheiriddin poses the question, "Will Prime Minister 
Justin Trudeau's promise to legalize pot go up in smoke, or will he 
turn into an activist and try to convince other countries to 
liberalize their drug laws, as well?" and argues that this is "the 
choice he faces, if he doesn't want Canada to run afoul of its 
international obligations" ('Seeing green,' Jan. 7). Fortunately, 
Canada does not need to convince the world to legalize marijuana.

The fate of Canada's international obligations is in its own hands. 
Central tenants of international law include the principles of 
consent, sovereign equality among states, the territorial integrity 
of states and non-intervention in the domestic affairs of other 
states. States draft international treaties within this legal 
framework and include rules that govern how states join, amend and 
withdraw from treaties. Subject to limitations, international 
treaties also can permit states to take "reservations" to their 
obligations under specific provisions of a treaty when they join the treaty.

Canada is a signatory to three international treaties that, with the 
exception of medical marijuana, require the criminalization of the 
manufacture, distribution and possession of cannabis and its active 
psychotropic substance, tetrahydrocannabinol, or THC: the Single 
Convention on Narcotic Drugs of 1961, as amended by the 1972 
Protocol; the convention on Psychotropic Substances of 1971; and the 
United Nations Convention against Illicit Traffic in Narcotic Drugs 
and Psychotropic Substances of 1988 (the "conventions").

While there are differences and nuances among these conventions, they 
generally provide that a state can: (a) make a reservation when it 
joins; (b) propose an amendment to the convention; or (c) withdraw 
from the convention.

Seeking an amendment to the conventions to exclude cannabis and THC 
would be no easy task. But it is not the only option. In 2009, 
Bolivia, a signatory to all the conventions, proposed an amendment to 
the Single Convention to remove the ban on the practice of coca leaf 
chewing. In January 2012, after the amendment was opposed by other 
states, Bolivia withdrew from the Single Convention and re-joined in 
February 2013 with a reservation on the prohibition on coca leaf chewing.

A state cannot alter its obligations through a reservation 
unilaterally under the conventions. If a third of the parties to the 
convention oppose the reservation, it is nullified. Bolivia's 
reservation was accepted because only 15 of the required 61 states 
were opposed.

(The withdrawal and re-accession approach is not without controversy, 
however. When Guyana and Trinidad and Tobago withdrew and re-acceded 
with a reservation to a treaty on civil and political rights, other 
countries claimed that this was a violation of international law.)

Uruguay is another example. In 2013 it legalized marijuana and has so 
far not attempted to alter its obligations under the conventions. The 
ramifications for Uruguay have been minimal. The International 
Narcotics Control Board has denounced Uruguay for being in breach of 
its obligations under the conventions, but little else has happened. 
While Uruguay's approach may not be a model for Canada to follow, it 
serves as a reminder that a sovereign state can choose not to comply 
with its international treaty obligations, provided that it is 
prepared to face the consequences, if any.

There is also a precedent for withdrawing from international treaties 
when the government decides that the commitments in the treaty are no 
longer consistent with the country's policies or interests, as the 
Canadian government has done in the recent past. In 2011, despite 
international condemnation, Canada withdrew from the Kyoto Protocol 
on the justification that it would be unable to satisfy the carbon 
emission reduction targets and would be faced with a $1.4-billion 
bill for carbon emissions permits from other Kyoto Protocol 
countries. Canada also withdrew from the UN Convention to Combat 
Desertification in 2013 and the International Convention for the 
Regulation of Whaling in 1981.

As Canada moves towards legalization, how it complies with its 
international obligations under the conventions will not be an 
insurmountable obstacle. All options should be on the table at this 
early stage, along with the acknowledgment that the course Canada 
takes may set the precedent for other parties to the conventions that 
decide to legalize marijuana in the future.
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MAP posted-by: Jay Bergstrom