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(Preamble:) The parties
(Hereby agree as follows:) Article 1: DEFINITIONS
Article 2: SUBSTANCES UNDER CONTROL
Article 3: CHANGES IN THE SCOPE OF CONTROL
Article 28: CONTROL OF CANNABIS
Article 23: NATIONAL OPIUM AGENCIES
Article 46: DENUNCIATION
Article 47: AMENDMENTS
カナビスがヘロインと同等に危険とみなされたのは、単一条約がまとめられる６年前の１９５５年に世界保険機構（ＷＨＯ）が、「カナビスの影響下では衝動的な殺人が起こる危険が非常に高く、冷血で、明確な理由や動機もなく、事前に争いもなく、たとえ全く見知らぬ他人でも快楽だけで殺してしまう」 と報告していたことが大きく影響している。 しかし、１９９５年に発表された報告には、「カナビスは、アルコールのような暴力行為による殺傷事件には、ほとんど何の役割も果たしていないと考えられる」 と書かれている。
実際には、単一条約の罰則規定では、ドラッグの生産と供給についてのみを対象としてしており、その結果として２次的に出てくる個人使用に関しては対象になっていないことを理解しなければならない。つまり、所持ばかりではなく栽培や販売についても、個人使用目的のみで商的な流通に係わっていない限りは、単一条約では罰則の対象とすることは要求されていない。 このことは、国連自身による単一条約に関する公式の見解によっても明確に述べられている。 (‘Commentary on the Single Convention on Narcotic Drugs’, 1961, United Nations, New York, 1973.) また、１９７２年に発表されたアメリカのマリファナとドラッグに関する連邦委員会（シャーファー委員会）でも詳細な検討が行われ、監査調書の結論では、「国が個人使用目的の所持を処罰対象にするかどうかについては、単一条約で要求されているものは何もない」 と結論付けている。(Marihuana: Signal of Misunderstanding: The Shafer Report, Appendix, Vol. 1,Technical Papers, p 533.) さらに、最も権威ある解釈とすれば、条約会議の全権主任草稿委員を務めた事務次長アドルフ・ランド教授によるもので、「単一条約で罰則規定として使われている『所持』や『売買』という用語は、違法な流通目的での所持や売買を意味しているだけで、結果として、個人の使用目的でのドラッグの所持や入手に関しては単一条約の対象になる必然はなく、罰すべき罪や重大犯罪として扱うように定めているわけでもない」 としている。(A. Lande, The International Drug Control System in Drug Use in America: Problem in Perspective, Appendix, Technical Papers, Vol. III, p 129.)
The spirit of the treaty was to completely eradicate the cultivation and use of cannabis within thirty years; many consider it fortunate that this aim was not achieved. This failure applies to all the drugs which are listed in the schedules of the treaty; despite the "War on Drugs" there are more hard drug addicts worldwide than ever before. The measures adopted to eradicate cannabis (as well as the opium poppy and coca leaf) were ones of repression. This was emphasised in the 1988 Vienna Convention against the Illicit Traffic of Narcotic Drugs and Psychotropic Substances, which provided for international co-operation, extradition and the confiscation of assets; this resulted in the UK the Drug Trafficking Offences Act. The problem with these conventions is, in our opinion is that cannabis has been misrepresented and mis-classified within the treaties. The problem with these conventions is, in our opinion is that cannabis has been misrepresented and mis-classified within the treaties. In the Single Convention cannabis is included in Schedule 1, alongside natural opium and semi-synthetic opium (morphine, heroin), opiates, derivatives of coca (cocaine), pethidine, methadone. Cannabis is also included in Schedule 4, substances deemed to be particularly dangerous and with an extremely limited or no therapeutic value. The main criteria of classification within the 4 schedules is based on medicinal value and use. Cannabis is mis-classified within these conventions. Rather than destroy the whole agreement there exist Articles to allow for the reclassification of substances within or between the schedules. Article 3 of the UN Single Convention allows the schedules to be amended. In order to legalise cannabis we must persuade the various parties to these international agreements to consider correcting this misrepresentation of cannabis, recognise that cannabis has many medicinal and therapeutic properties, and to address the situation and remove cannabis from the schedules
6. International Obligations Do Not Require Maintenance of a Possession Penalty Some have raised the possibility that removal of simple possession criminal penalties would contravene this country's obligations under the Single Convention on Narcotic Drugs (1961), to which it became a signatory in March, 1967. We do not believe the provisions of that Convention compel the criminalization of possession for personal use. Nowhere in the Convention are its Parties expressly required to impose criminal sanctions on possession for personal use. Article 4 requires Parties to "take such legislative and administrative measures as may be necessary . . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs." Penal sanctions are not necessarily included in this formulation. Article 36, which deals specifically with penal provisions, requires each party to adopt "such measures as will ensure" that the listed activities, including possession, "shall be punishable offenses." Some have argued that this provision requires prohibition of personal use. However, from a comprehensive study of the history of the Convention, the Commission has concluded that the word "possession" in Article 36 refers not to possession for personal use, but to possession as a link in illicit trafficking. This interpretation is bolstered also by the failure to include "use" in Article 36 even though it has been included in Article 4. Finally, we must consider Article 33, which provides that "the Parties shall not permit the possession of drugs except under legal authority." This Article also does not require the imposition of any sanctions on possession for personal use. Experts consulted by the Commission have indicated that this Article may, nevertheless, require that the Parties to limit possession and use to medical and scientific purposes. To affirmatively allow drugs to remain in the possession of persons for non-medical use would in this view contravene Articles 4 and 33 to read together. From this perspective our international obligations may require the classification of marihuana, as contraband. For this reason, together with a desire to symbolize our discouragement policy in a clear way, we have included the contraband feature in our legal implementation scheme. In conclusion, our reading of the Convention is that a Party may legitimately decide to deal with non-medical use and possession of marihuana through an educational program and similar approaches designed to discourage use.
スペインでは、２００６年８月に行われた裁判で、カナビスを共同で育てるカナビス・クラブの合法性が確定している。 ＥＵの対応は、違法ドラッグの営利目的売買については、国連条約やＥＵ法に基づいて加盟国が訴追する義務を負うものの、個人使用を目的に結成された消費者組合に対してはその義務はない、という立場を取っており、規制するかどうかはそれぞれの国に委ねられている。 こうしたことから、ヨーロッパではカナビス・クラブの結成の動きがでてきている。カリフォルニアのコレクティブの事情とはだいぶ異なるが、カナビス・クラブが単一条約などの国際条約の制約を受けないという事実は、コレクティブの動きとして今後の展開が注目される。 カナビス・ソーシャル・クラブのすすめ (2007.10.1) カナビス・ソーシャル・クラブ
In the absence of any sound scientific evidence that cannabis consumption causes any serious harm, modern day defenders of the criminal prohibition often argue that Canada's criminal prohibition law is justified because of Canada's international legal obligations. Indeed, defenders of the criminal prohibition say that the genesis of the "current" Canadian cannabis prohibition is the 1961 "Single Convention". It is that international treaty, the prohibition's proponents say, which reflects global recognition of the serious harm associated with the consumption of cannabis. The unsupported opinions of many governments, as reflected in treaties such as the Single Convention, can not and should not serve as a substitute for the evidence of harm required to justify invoking the criminal law to regulate an activity. Simply put, a group of blind men walking do not see their path any clearer just because they walk in lock step together. Indeed, the 1961 Single Convention pre-dated the conclusions of at least six government commissions in four different countries (i.e., the U.S., England, Canada and Australia), all of which found that cannabis consumption was not sufficiently harmful to justify the use of the criminal sanction. Furthermore, since 1961, many Western European countries have "decriminalized" cannabis consumption notwithstanding that they were parties to the Single Convention. Their decriminalization efforts have been justified by the fact that Article 36 of the Convention requires only that the parties to the Convention make cannabis consumption a "punishable offense", but not necessarily a criminal offence. In other words, regulatory offences concerning the personal possession of cannabis (such as those which the provinces have the power to create) would, as they have in other jurisdictions, satisfy Canada's international obligations.
In addition, it is worth noting that the majority of these countries have liberalized their marijuana laws despite being signatories of international drug treaties, in particular the 1961 Single Convention on Narcotic Drugs. While proponents of marijuana prohibition have often argued that these treaty obligations require signatories to adhere to a rigid national policy of criminal marijuana prohibition, several studies have concluded that these treaties do not prohibit countries from relaxing legal restrictions on the personal use or cultivation of marijuana. Most recently, a legal study released by the British think-tank DrugScope concluded that governments have "considerable room for maneuver under the terms of the three drug control Conventions," adding that the treaties allow for measures such as "education, rehabilitation and social reintegration … [to] be substituted for conviction and penal sanction" in drug cases. 30 Authors noted that many European nations have replaced criminal penalties for minor drug crimes with "administrative sanctions" without running afoul with U.N. treaties by either calling on "constitutional principles, principles of proportionality or public interest criteria with regard to use or possession offenses which are considered minor in nature, [or by invoking their] right … to apply alternatives to punishment for offenses which have been established as punishable." 31 Other studies, including the United States' First Report of the National Commission on Marihuana and Drug Abuse, have reached similar conclusions, concluding that the word "possession" in Article 36 of the Single Convention "refers not to possession for personal use, but to possession as a link to illicit trafficking." 32
Of the many fallacies surrounding pot prohibition, one that often goes least challenged is the claim that international treaty obligations forbid the US government from relaxing America’s marijuana laws. However, like the bulk of prohibitionists’ propaganda, this charge fails to hold up under scrutiny. The United States is a signatory to three global drug control treaties: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Historically, drug warriors have argued that these treaty obligations require us to uphold a national policy of criminal pot prohibition. Nevertheless, many drug policy experts maintain a different position: that international treaties, in fact, do not prohibit countries from relaxing legal restrictions on the personal use or cultivation of marijuana. Last summer, a legal study by the British DrugScope think-tank concluded that governments have “considerable room for maneuver under the terms of the three drug control Conventions.” Perhaps most significantly, researchers argued that the treaties allow governments to substitute measures such as “education, rehabilitation and social reintegration … for conviction and penal sanction” in drug cases. The study noted that several Eurpean nations, including Italy, Spain and the Netherlands, have replaced criminal penalties for minor drug crimes with “administrative sanctions” without running afoul of U.N. treaties. They further speculated that additional nations could legally enact similar laws by either calling on “constitutional principles, principles of proportionality or public interest criteria with regard to use or possession offenses which are considered mi- nor in nature, [or by invoking their] right … to apply alternatives to punishment for offenses which have been established as punishable.” While the DrugScope report is the latest research body to draw such conclusions, it is hardly the first. In fact, even the prohibitionist International Narcotic Control Board (INCB) admits, “None of the conventions require a party to convict or punish drug abusers who commit … offenses … [that] have been established as punishable.” Specific to pot, several advisory panels have concluded that nations may institute systems of decriminalization or partial prohibition without conflicting with international conventions. As early as 1972, the US-led “Shafer Commission” determined that the term “possession” in Article 36 of the Single Convention “refers not to possession for personal use, but to possession as a link to illicit trafficking.” The commission went on to recommend a national policy decriminalizing the use, possession and nonprofit transaction of the herb. One year later, the U.N.’s official “Commentary on the Single Convention on Narcotic Drugs” confirmed their interpretation, stating that whether or not pot possession for personal use requires the imposition of penal sanctions “is a question which may be answered differently in different countries.” A 1979 Canadian government report also reached this conclusion. Its authors found that international treaties granted governments “considerable constructive latitude” in dealing with cannabis offenses. They concluded, “Even if Canada should elect to continue criminalizing consumption-oriented conduct, it is not required to convict or punish persons who have committed these offenses.” A 1997 discussion paper by the New Zealand Drug Policy Forum Trust went even further. Its authors declared that a policy of “partial prohibition” 窶� defined as “permit[ing] adults to possess up to a defined amount of cannabis and cultivate up to a certain number of plants” 窶� is also likely in compliance with international conventions. While the researchers did acknowledge that the 1961 treaty probably prohibits government regulation of marijuana commerce, they added that any nation wishing to enact such a system may “simultaneously ‘denounce’ the Single Convention, as permitted under Article 46, while re-ratifying with reservations concerning cannabis in accordance with Article 49,” which allows signatories the “right to permit temporarily in any one of its territories … the use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes” under limited circumstances. In sum, although the US’ treaty obligations are often regarded as an impediment to marijuana- law reform, the truth is that our nation possesses wide-ranging flexibility regarding its pot policies despite international commitments. In reality, international treaties are little more than a paper tiger, and it remains the prohibitionists themselves that still pose the greatest barrier to pot reform.
Is it possible to reform cannabis laws without infringing the obligations of the UN Single Convention? In order to explore this hypothesis, we will analize some crucial norms of the 1961 and 1988 Single Conventions (S.C.) SINGLE CONVENTION, 1961 Art. 28 - Control of cannabis (....) 2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes. 3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant. From this article we can infer: A) the cultivation of cannabis is not by itself illegal; B) the cultivation of cannabis is legal if done "for horticultural purposes", namely independently of the THC content and size of the plant(s); C) only "misuse" and "illicit traffic" are illegal. Since the term misuse is not defined by the "Glossary" of the S.C., the Par.3 could be interpreted according to commonsense, as the assumption that the use of cannabis should not be subjected to "measures" SINGLE CONVENTION, 1988 Art. 2 - Scope Of the Convention Par 1 [...] In carrying out their obligations under the Convention, the Parties shall take necessary measures [...] in conformity with the fundamental provisions of their respective domestic legislative systems. Par.2. The Parties shall carry out their obligations under this Convention in a manner consistent with the principle of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States These paragraphs leave a margin of autonomy to the national law - though it doesn't explain what would happen if the "fundamental provisions of domestic legislative svstems" should be contradictory to the "obligation" of the S.C. What has happened in Alaska (decriminalization of marijuana in 1975-1990) seems to prove that the sentence of the Alaskan High Court has been accepted by the UN. The autonomy of the domestic law is stressed again in ArL3, Par. 11: Art.3, Par. 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 such offences shall be punished in conformity with that law." (e.a The issue of sanctions is faced again in Art.3, Parr. 1,2,4. Art.3 - Offences and sanctions Par.1. Each Party shall adopt such measures as may be necessary to establish as criminal offence under its domestic law, when committed intentionally: (i). The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance [...] (ii) The cultivation of opiun poppy coca bush or cannabis plant for the purpose of production of narcotic drugs [...] (iii) The possession or purchase of any narcotic drug [...] for the purpose of any of the activities enunerated in (i) above According to par. 1 (ii) the cultivation of cannabis is not a criminal offence by itself, but only when it is done with the purpose of drugs' production. This means that (confirming the Art. 28 of 1961 S.C.) cultivation of cannabis is not illegal while the plant remains untouched. Moreover, according to par,1 (iii), possession and purchase of cannabis shall be criminal offences only when it is done with the purpose of the "activities" listed in Par. 1(i), but not use neither possession for personli use. To this sublect the S.C. comes in the next paragraph: Art.3 Par.2. 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 [...] the possession, purchase or cultivation of narcotic drugs [...] for personal consumption Hence we can infer: A) the measures related to cultivation, possession and purchase for personal consumption, are "subject to constitutional principles... and basic concepts": this reference to the national discretional power seems much more strict than the one in Art.2, Par. 1, and in fact is not mentioned by Art3, Par. 1. This means that, regarding behaviours related to personal use (cultivation, purchase, possession) the S.C. leaves a wider range of discretion to national laws. B) as a matter of principle, the Art.3, Par.2 implies that cultivation for personal use is equivalent to possession: this principle is contradicted by many national laws that prescribe harsher sanctions for cultivation than for possession. On this subject, we find something more in Par. 4 (c) Art.3. Par.4 (c) - The Parties may provide. either as an alternative to conviction or punishient. or in addition to conviction or punishment of an offence established in accordance with Par 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. As we have seen, the offences quoted in Par. 2 are related to personal use, and also include cultivation. This means that behaviours related to personal consumption (possession and cultivation) do not necessarily lead to conviction or punishment. Between the alternatives, there are "measures of treatment", but also "tmeasures of education" or "social reintegration". CONCLUSIONS Some remarkable reforms of the cannabis law seem possible carrying out the obligations under the S.C.: 1) CANNABIS CULTIVATION is not within the control of the S.C., independenly from the size and the THC content of the plants Therefore, nobody could be indicted for cultivating cannabis plants, before they are harvested. 2) CANNABIS CULTIVATION, if proved to be for drug production, and provided that it is intended for personal use, would be legally equated to possession for personal use. 3) CANNABIS CULTIVATION & POSSESSION for personal use could be sanctioned with "measures of education" and /or "social reintegration" 4) CANNABIS CULTIVATION & POSSESSION for personal use could be exempted from criminal measures, when a national government would consider these measures as conflicting with the "constitutional principles and the basic concepts of its legal system". GIANCARLO ARNAO SCIENTIFIC CONSULTANT OF "FORUM DROGHE" - ROMA POD. CASALONE 58050 PANCOLE (GR) ITALY
Switzerland has dismissed an international report criticising its decision to decriminalise cannabis, saying its approach is honest and realistic. The International Narcotics Control Board (INCB) said it would be a "historic mistake" if cannabis were effectively placed in the same category as alcohol and tobacco. But the Swiss authorities disagree. "I’ve heard more people say it was a historic mistake to put cannabis on the list of substances that are totally prohibited," says Ueli Locher, deputy director of the Federal Office for Public Health. "We have to adapt to the changes in our society. We know more about how harmful 窶� or harmless 窶� cannabis is. We cannot continue to treat it like heroin and cocaine," he told swissinfo. Legalisation In its annual report, the INCB says the draft Swiss law 窶� which has already been approved by the Senate 窶� would go much further than simply decriminalising cannabis consumption. It would, the board believes, "amount to an unprecedented move towards legalisation of the consumption, cultivation, manufacture, possession, purchase and sale of cannabis for non-medical purposes". "It would entail additional health problems to those we have already with alcohol and tobacco," INCB secretary Herbert Schaepe told swissinfo. The INCB, an independent Vienna-based watchdog that oversees the implementation of United Nations drugs treaties, says the Swiss law would contravene the 1961 Single Convention on Narcotic Drugs. Prosecutions The Swiss government disagrees. It says four independent legal assessments have found that the law is consistent with the convention, and that under the proposed law, the cultivation and sale of cannabis would remain illegal. However, prosecutions would likely be few and far between. It would be permissible to sell the drug to people over the age of 18, provided they do not publicise their dealing, do not sell hard drugs at the same time, and are not a public nuisance. Schaepe argues that "Allowing people to sell cannabis to anybody for non-medical purposes is simply not in line with the conventions". Common sense In Locher’s view, though, the Swiss position is a common-sense reaction to a better scientific understanding of illegal substances, a change in public attitudes and a shortage of resources to pursue law-breakers. "We are trying to deal with the reality 窶� to have an honest and consistent approach to a problem - and not continue to have laws which are not applied," Locher explains. "Time will tell whether cannabis is also reconsidered at the level of international conventions," he adds. Schaepe says it is the job of the INCB to point out to governments and the public when countries fail to abide by their treaty obligations. It is up to governments, he says, to amend conventions if they feel they are no longer relevant. "The conventions are not cast in stone. They can be amended. Ultimately, it is in the hands of governments to decide future drug policies," he says. "But there is a procedure that has to be followed. We cannot have a lawless situation at the international level."
４．ドラッグの合法化を真剣に考えている国にとってはどのような選択肢があるのでしょうか？ 上でも触れたように、国がドラッグの合法化を考える場合には、国際法にどのように対処するつもりなのか決める必要があります。つまり、国際法の枠の中で行うのか外で行うのか選択しなければならないということです。 国際法の枠内で行う場合には、いくつかの方法があります。国連のドラッグ規制条約では加盟国に条約の修正や改定を提案することを認めていますから、技術的にはそうしたオプションを利用することが可能です。 しかしながら、現実問題として、修正にしても改定にしても手順や政治的駆け引きを一つにまとめることは非常に難しく、逆に、いかなる変更にも反対する国にとっては、そうした動きを阻止することは非常に容易です。アメリカなど現行のシステムを支持している国が変更を阻止しようとすることはまず間違いありません。 また、国際条約の枠組みから自由になろうとする場合は公式にその制約を非難することになりますが、条約自体がなくなるわけではなく、単に国内レベルでの活動が自由になるだけに過ぎません。当然のことですが、この方法のマイナス面は、特にアメリカなど現在の条約を支持している国際社会からの批判を免れないことにあります。また、前にも触れたように、国連には慈悲深いイメージがありますから、それを踏みにじっても国の国際的なイメージにプラスになることはほとんど期待できません。 最後のオプションは、条約内にあるループホールを利用する方法です。ドラッグ規制条約の条項については、国の憲法や基本的な考え方に反しない限りにおいて機能することになっていますから、もし調印国の最高裁判所がカナビスなど特定のドラッグの禁止を憲法違反だと裁定すれば、その国はもはや条約の制約に縛られることがなくなるわけです。 しかし、繰り替えしますが、国がこのオプションを選択すれば、国際社会から多大な摩擦を受けることを覚悟しなければなりません。ですが、志を同じくする国がグループになって密接に協力し合って行えば、非難を薄めることもできるかもしれません。 また、こうした条約内のオプションに魅力を感じない場合は、単に条約を無視するという手もあります。この方法は、これまでにもアメリカがまさに他の分野でしばしば取ってきたやり方でもありますが、国連の条約システムに多大な悪影響を与えることにもなります。もっとも、特にＥＵで結ばれているヨーローッパ諸国に関して言えば、このような国際的枠組みを弱めるリスクを冒すとはとても思えませんが。 ５．国が条約に挑戦するにはどのような状況が整う必要がありますか？ 鍵になるのは、国家の利益と政治力学的な状況だと思います。俗に 「潮の目」 とか 「転換点」 といわれる時代が変わる時です。 「転換点」は、国際条約に関連したコストが利益を上回った時に訪れると考えられます。コストには財政的なものばかりではなく、公衆衛生や法と秩序に関わる人的なコストなどさまざまな形のものが含まれますが、「転換点」においては、国際的な非難を受けてでも、国内法を変更したほうがより国家の利益が見込まれる状態になります。 現実の政治では、選挙民がドラッグ政策の劇的な変更を望んでいるのかといった点についても、政府は一種のコスト対利益比較分析をすることになりますが、状況が整えば、現在の国際ドラッグ規制システムの制約に挑戦しようとする機運が出てくると思います。 （ビューレイ・テイラー） |
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