United Nations Drug Conventions

 

1. UN drug Conventions are not self-executing:

(a) UN drug Conventions do not affect UK law (or other ‘dualist’ nations’ law):

An international treaty ratified by the UK Government has no affect on UK law unless Parliament incorporates the treaty into domestic law. The UK Government has ratified the UN drug Conventions but the Misuse of Drugs Act does not incorporate UN drug Conventions, making no mention of them. Parliament clearly intended the Act to be based on the continually developing scientific evidence rather than permanently limited (‘fettered’) to UN drug Conventions.

Lord Templeman in the case of JH Rayner (Mincing Lane) Ltd v DTT [1990] 2 AC 418 (HL) at 476, quoted in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at para 54:

The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a Treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a Treaty or to award damages against a sovereign state for breach of a Treaty or to invent laws or misconstrue legislation in order to enforce a Treaty.
A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.

For example, the European Convention on Human Rights was ratified by the UK Government in the 1950s but had no affect on UK courts’ interpretation of law until the Human Rights Act was introduced in 1998, incorporating the ECHR into domestic law. Now the courts can declare that an Act of Parliament is ‘incompatible’ with the Human Rights Act, effectively declaring it to be illegal, though it remains Parliament’s responsibility to remedy the problem. The courts have followed this procedure with terrorism laws and could do so with the Misuse of Drugs Act if it is proven that the Act unjustifiably discriminates between consumers and traders of equally harmful drugs.

(b) International treaties are only relevant where there is ambiguity in domestic law, but there is none:

Unincorporated international treaties are only relevant to the interpretation of domestic legislation if there is some ambiguity in the legislation. There appears to be no such ambiguity in the Act but if there were then the influence of UN drug Conventions supporting drug discrimination would still be constrained by over-riding human rights treaties and norms that contradict such discrimination (see below).

2. UN drug Conventions

1998, United Nations, Political Declaration:
We, the States Members of the United Nations,
Concerned about the serious world drug problem, having assembled at the twentieth special session of the General Assembly to consider enhanced action to tackle it in a spirit of trust and cooperation,
1. Reaffirm our unwavering determination and commitment to overcoming the world drug problem through domestic and international strategies to reduce both the illicit supply of and demand for drugs;
2. Recognize that action against the world drug problem is a common and shared responsibility requiring an integrated and balanced approach in full conformity with the purposes and principles of the Charter of the United Nations and international law, and particularly with full respect for the sovereignty and territorial integrity of States, the principle of non-intervention in internal affairs of States, and all human rights and fundamental freedoms.

(a) UN drug Conventions are not “an integrated and balanced approach in full conformity with the purposes and principles of the Charter of the United Nations and international law… and all human rights and fundamental freedoms”:

• UN drug Conventions are not “an integrated and balanced approach”: they discriminate between consumers and traders of equally harmful drugs used for non-medical purposes by excluding the two drugs that cause most harm, alcohol and tobacco.
• The Charter of the United Nations suggests that the creation of a ‘War against Drugs (used by minorities)’ cannot be a legitimate aim of the United Nations:
  Article 1. The Purposes of the United Nations are:
  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
  2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
• The Universal Declaration on Human Rights, 1948, states there should be equality before the law - equal rights of freedom and equal rights to protection – and suggests a right to international treaties that respect those rights of equality.
  Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law.
  Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
• International Covenant on Civil and Political Rights, 1966:
  The right to equality before the law and freedom from discrimination is protected by various provisions of the International Covenant on Civil and Political Rights.
  First, in article 2(1) each State party:
  “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
  Article 26, the cornerstone of protection against discrimination, states:
  “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
  Contrary to article 2(1), which is linked to, or relative to, the rights recognized in the Covenant, article 26 provides an ‘autonomous’, or absolute, right of equality and prohibits discrimination in law or in fact in any field regulated and protected by public authorities.
  Drug consumers and traders and denied equality before the law and freedom from discrimination on the ground of ‘property’ and ‘other status’. Drugs are property and drug offences target property rights of possession, supply, production and import/export; consumers and traders are discriminated between on the ground of legal status with illegal drug consumers and traders criminalised because they have illegal status.
• Art.31 of the Vienna Convention on the Law of Treaties [pdf, 595Kb] states that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purpose”. The legitimate aim of UN drug Conventions is the reduction of risks to the public from the international trade in drugs.
• The Commentary to 1971 UN drug Convention, 1976, p.48, attempts to provide an explanation for the exclusion of alcohol and tobacco from the Convention [e.g. Social Policy and Psychoactive Substances, p.11, [pdf, 136Kb] by Robin Room for UK Government's Foresight Drugs Project]:

The official Commentary on the 1971 Convention (1976) notes that "alcohol appears to be covered by" its wording but adds that the "public health and social problem" that alcohol presents is not of such a nature as to warrant it being placed under "international control". Alcohol does not "warrant" that type of control because it is not "suitable" for the régime of the 1971 Convention. The Commentary then goes on to provide similar reasoning for why tobacco "is not covered" by the paragraph.

(b) UN drug Conventions are “subject to [each Party’s] constitutional limitations”, “principles” and “systems”:

• 1961, The Single Convention on Narcotic Drugs [pdf, 502Kb]:
  Article 36 - PENAL PROVISIONS
  1. a) Subject to its constitutional limitations, each Party shall adopt such measures as 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, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
  2. Subject to the constitutional limitations of a Party, its legal system and domestic law,….
  3. The provisions of this article shall be subject to the provisions of the criminal law of the Party concerned on questions of jurisdiction.
  4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.
• 1971, Convention on Psychotropic Substances [pdf, 812Kb]:
  Article 21- ACTION AGAINST THE ILLICIT TRAFFIC
  Having due regard to their constitutional, legal and administrative systems, the Parties shall:
  Make arrangements at the national level for the co-ordination of preventive and repressive action against the illicit traffic;
  Article 22 - PENAL PROVISIONS
  a) Subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty.
• 1988, Convention Against Illicit Traffic in Narcotic and Psychotropic substances [pdf, 742Kb]:
  Article 2- SCOPE OF THE CONVENTION
  1. The purpose of this Convention is to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In 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.
  Article 3 - OFFENCES AND SANCTIONS:
  11. Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law.

(c) UN drug Conventions - purpose, methods and definitions:

• 1961 Single Convention:
  PREAMBLE
  The Parties,
  Concerned with the health and welfare of mankind,
  Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes,
  Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
  Conscious of their duty to prevent and combat this evil,
  Considering that effective measures against abuse of narcotic drugs require co-ordinated and universal action,
  Understanding that such universal action calls for international co-operation guided by the same principles and aimed at common objectives,
  Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned should be within the framework of that Organization,
  Desiring to conclude a generally acceptable international convention replacing existing treaties on narcotic drugs, limiting such drugs to medical and scientific use, and providing for continuous international co-operation and control for the achievement of such aims and objectives,
  Hereby agree as follows:
  Article 1 DEFINITIONS
  1. Except where otherwise expressly indicated or where the context otherwise requires, the following definitions shall apply throughout the Convention:
  j) “Drug” means any of the substances in Schedules I and II, whether natural or synthetic.

(d) Other: demand-reduction should include alcohol & tobacco & should use similar definitions etc.

• 1998, United Nations, Declaration on the Guiding Principles of Drug Demand Reduction:

“14. Governments should consider providing … as an alternative to conviction or punishment … that abusers of drugs should undergo treatment, education, aftercare, rehabilitation and social reintegration.
5. Programmes to reduce the demand for drugs should be part of a comprehensive strategy to reduce the demand for all substances of abuse. [what about unequal ‘deterrence’?]
9. Demand reduction programmes should be based on a regular assessment of the nature and magnitude of drug use and drug-related problems in the population …using similar definitions, indicators and procedures to assess the drug situation”.

• Council Directive 2000/43/EC of 29 June 2000: implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Before considering racism specifically, the Directive states:

(1) The Treaty on European Union marks a new stage in the process of creating an ever closer union among the peoples of Europe.
(2) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and should respect fundamental rights as guaranteed by the European Convention for the protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community Law.
(3) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.
(4) It is important to respect such fundamental rights and freedoms, including the right to freedom of association. It is also important, in the context of the access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in this context.