INTERPRETING THE 1988 UNITED NATIONS DRUG CONVENTION: DOES IT ALLOW DECRIMINALISATION OF DRUG POSSESSION?

• Author: Mostyn, Benjamin

I INTRODUCTION

Given the contested nature of drug policy, and the enduring discussion of alternatives to criminal prohibition, the question of whether the UN conventions dealing with illicit drugs allow decriminalisation of drug possession has become increasingly relevant. Some governments have considered this question when considering new drug policies and some academics have turned their minds to the issue. However, there remains a need for strict legal analysis of the question: How would an Australian court interpret the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 ('the 1988 Convention'). This article was spawned during the development of a previous article (1) where it became clear that there was a need for a clear legal analysis of whether the existing illicit drug conventions allow for decriminalisation of possession--defined as complete removal of drug possession offences from the criminal law and the removal of State authority to arrest, charge, and convict persons for simple possession. (2)

Further, given the sprawling nature of international drug law (the Single Convention on Narcotic Drugs 1961, the Convention on Psychotropic Substances 1971 and the 1988 Convention) many analyses are forced to be superficial. This article will attempt to remedy some of these gaps in the prior studies by focussing on one particularly important provision: art 3(2) of the 1988 Convention.

This article will provide a brief summary of the literature that has provided interpretations of the provision. The literature can be broken into a 'traditional view' which holds that the article only allows decriminalisation in very narrow circumstances and a 'revisionist view' that argues for flexibility due to ambiguity in the article. It will provide a succinct summary of how treaties interact with domestic laws, a question that has generally been neglected in articles considering the drug treaties. It will then analyse the specific article of the 1988 Convention to provide a prima facie interpretation for the purposes of international law. This is followed by an analysis of whether extraneous materials such as the commentary and travauxpreparatoires would be considered by a court, and if so, whether they would change the prima facie interpretation. (3) Given the growing body of academic literature arguing that the treaties allow parties considerable room to manoeuvre, it is imperative to provide the legal reasoning behind the traditionally strict interpretation of the UN drug control bodies.

The issue of interpreting the UN treaties is of growing importance given the seeming inevitability that more local jurisdictions will move to reform drug laws. In early 2020, the ACT 'decriminalised' cannabis and allowed citizens to grow four plants and possess 50 grams of the drug. (4) The Commonwealth opposed the ACT law reform and the Commonwealth Attorney-General wrote to the ACT Government to warn the new laws do not provide legal protections from Commonwealth prosecution. (5) The Commonwealth has not traditionally had power to criminalise drug possession but explicitly refers to the 1988 Convention in its legislation which does just that. (6) In early 2019, the NSW government passed regulations that allowed police officers to give fines for all drug possession. In late 2020, NZ held a referendum on fully legalising the supply of cannabis which narrowly failed to pass. Community attitudes are changing too and in late 2020, the largest survey of attitudes to drug policy revealed that 41% of Australians support the legalisation of cannabis and only 37% opposed it. (7) It seems inevitable that an Australian state will fully decriminalise drugs at some point which, depending on the interpretation of the 1988 Convention, will bring it into direct conflict with Commonwealth and international law.

II A REVIEW OF INTERPRETATIONS OF THE 1988 CONVENTION

1. The traditional view of the 1988 Convention

   The traditional view of the 1988 Convention is that it requires member States to criminalise drug possession for personal consumption. Article 3(2) of the 1988 Convention states:

   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. The commentary to the Convention (completed ten years after the Convention itself, in 1998) states, amongst other things, 'paragraph 2 clearly requires parties to criminalise such acts unless it would be contrary to the constitutional principles and basic concepts of their legal systems to do so'. (8)

   Boister has completed the most comprehensive legal analysis of all international drug treaties. (9) He provides a brief history of the provision noting that early drafts of the Convention did not mention possession and focussed only on trafficking. Mexico, at the plenipotentiary conference to finalise the 1988 Convention, argued that possession should be a criminal offence as it would be unfair for responsibility on suppressing the global drug trade to fall entirely on producer countries. Opposing delegations, including the USA, argued that it would be impractical for countries to have to provide expensive mutual legal assistance and extradition for such minor offences. Sproule and St-Denis, who were delegates at the conference, observe that, '[a]s a compromise between the two positions, the Conference agreed that, although personal consumption should be added as a criminal offence to form part of each party's domestic law, it should not be the subject of co-operation among parties as provided for in other articles'. (10) The existence of art 3(2) 'represents an apparent victory for the producer states in their dispute with consumer states about who is responsible for the drug problem'. (11)

   Boister devotes six pages of his book to a legal analysis of art 3(2), including a two-page discursive footnote on courts that have found drug possession laws unconstitutional. He does not deal with the phrase 'basic concepts of its legal system' in detail, except to say that it is

   'unclear'. (12) He also points out that the International Narcotics Control Board ('INCB'--the UN body responsible for interpreting and enforcing the 1988 Convention) does not believe decriminalisation of cannabis can be seen to be part of the basic concepts of a country's legal system, after its response to Italy's decriminalisation of cannabis possession. (13)

   It would appear, on its face, that the purpose of art 3(2) of the 1988 Convention was to tighten up international drug prohibition. Although the 1961 Single Convention had made drug possession a 'punishable offence', (14) the earlier conventions had never explicitly required parties to make drug possession a criminal offence. In 2008, the United Nations Office on Drugs and Crime ('UNODC') confirmed this approach by saying that the article 'goes beyond the requirements of previous conventions'. The 2012 World Drug Report states:

   Moreover, unlike the first two United Nations conventions, the 1988 Convention also requires parties to establish as criminal offences the possession and purchase or cultivation of drugs for personal consumption, with the rationale that demand also fuels trafficking (article 3)... [however] countries may apply a range of alternatives to criminal sanctions in dealing with illicit drug use and still be in line with the international drug control system. (15) Bewley-Taylor states:

   Boister points out that possession of a drug for personal use is in actuality a key example of a gap within the Single Convention.... [Although the implication of some of its provisions remain a matter of debate, article 3 of the 1988 Convention can be interpreted as a move to close this space. (16) When the UK conducted a wholesale inquiry into drug policy, the Runciman report, it found in regard to the 1988 Convention:

   [The]... commentaries [to the 1961 and 1971 treaties] reveal that the references to possession, purchase and cultivation may not have been intended to cover possession, purchase or cultivation for personal use. This seems to have been regarded as a loophole which on most interpretations was closed by the 1988 Convention.... The United Nations conventions impose an obligation on the United Kingdom to establish possession for personal consumption as a criminal offence. (17) The drug offices of the UN have also traditionally adopted this interpretation of the treaties and have generally opposed law reforms that removed drug possession from lists of criminal offences. The INCB stated in their 1999 Annual Report that the then-proposed Portuguese decriminalisation law 'is not in line with the international drug control treaties, which require ... that States parties make drug possession a criminal offence'. (18) Bewley-Taylor states that the INCB clearly regards the liberalisation of cannabis laws at odds with the conventions. (19) The Board only supported Portuguese drug law reforms once it was pointed out that the Portuguese Constitution required criminalisation as a last resort.

   Room and Reuter confirm that the position of the INCB is that decriminalisation of 'drug use' violates the 1988 Convention and also that the UNODC has issued a discussion paper 'in which it argues that diversion of illicit drug users into treatment is consistent with international treaties, as long as criminal penalties are retained in law'. (20)

   Boister focusses on the phrase in art 3(2) that only criminalises possession 'contrary to the provisions' of the earlier conventions. He disagrees with the commentary's interpretation by referring to his own detailed analysis of the...