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”:

Article 2, paragraph 4:
If the World Health Organization finds:
a) That the substance has the capacity to produce
1) A state of dependence, and
2) Central nervous system stimulation or depression, resulting in hallucinations or disturbances in motor function or thinking or behaviour or perception or mood, or
ii) Similar abuse and similar ill effects as a substance in Schedule I, II, III or IV, and
b) That there is sufficient evidence that the substance is being or is likely to be abused so as to constitute a public health and social problem warranting the placing of the substance under international control,.....

9. Alcohol appears to be covered by both definitions of dangerous substances which may be considered for control by the Vienna Convention, by the definition contained in subparagraph (a), clause (i) as well as that laid down in clause (ii) of that subparagraph. Alcohol is capable of producing a state of dependence, a central nervous system depression resulting in such disturbances as some of those referred to in clause (i). Alcohol also may be considered to be capable of producing similar abuse and similar ill effects as substances in the Schedules of the Vienna Convention. There is also ample evidence that it is being widely abused so as to constitute a very serious "public health and social problem". Alcoholism is, moreover, a serious problem in many countries, and in this sense is a very important international problem. The treatment of alcoholics also gives rise to some problems similar to those relating to the treatment of abusers of many narcotic drugs or of some psychotropic substances. Furthermore, the degree of usefulness of alcohol in present day medical therapy is minimal. It must be admitted that the alcohol problem has many features similar to those related to the abuse of other dependence-producing drugs.
10. Nevertheless, alcohol is not fully covered by the terms of paragraph 4 and therefore cannot be placed under the control of the Vienna Convention. The "public health and social problem" which alcohol presents is not of such a nature as to warrant being placed under "international control", which - as has been submitted - means control by the Vienna Convention. Alcohol does not "warrant" that type of control because it is not "suitable" for the regime of the Vienna Convention. It appears to be obvious that the application of the administrative measures for which that treaty provides would not solve or alleviate the alcohol problem. In fact, this was also the view of the 1971 Conference, which did not intend to apply the Vienna Convention to alcohol and consequently to cover it by the terms of paragraph 4, subparagraph (b).
11. No matter how serious the public health and social problems may be which tobacco presents in many countries, it is not covered bt the criteria given in paragraph 4. Although it is capable of producing a "state of dependence", it is not capable of producing central nervous system stimulation (or depression) resulting in any of the disturbances mentioned in subparagraph (a), clause (i), nor does it have the capacity to produce "similar abuse and ill effects" similar to those of a substance in a Schedule of the Vienna Convention. Moreover, although of no usefulness in medical therapy, it is not suitable for the kind of controls for which the Vienna Convention provides, and which if applied would not make any useful impact on the tobacco problem. That problem, however serious, therefore does not "warrant" the placing of tobacco "under international" control, i.e. under the Vienna Convention. Tobacco was not considered by the 1971 Conference to be a suitable object for control by that treaty.

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

(c) UN drug Conventions - purpose (protection from non-medical drug harm), methods (prohibition of property rights) and definitions (contradictory definitions of the word 'drugs' - general in Preamble, specified in Art 1.1 (j))

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

“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”.

(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.