Guest Post: Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines, Damon Barrett and Patrick Gallahue

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016 just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

By permitting legal markets in recreational cannabis, the United States is in breach of both the 1961 Single Convention on Narcotic Drugs and the 1988 Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This is an awkward position for the US, which for over 100 years has been both the driving force behind the international drug control regime, as well the regime’s de facto policeman. Admitting the breach threatens both a system the US wishes to protect, as well as its own influential role within it. Rectifying the breach domestically requires trampling on State-level democratic ballot initiatives. To its credit the Obama Administration has said via a memorandum from Deputy Attorney General James Cole it will respect and not interfere with the outcomes of those referenda.

The four pillars are a response to this legal and diplomatic conundrum. To justify its contention of treaty ‘flexibility’ – allowing, for example, its legal cannabis market – the US engages in some interesting, if problematic, legal gymnastics. As explained in an earlier speech of Brownfield’s in March:

[I]f it is a living document and they are living documents [the UN drug control conventions], living means you are allowed to adjust your interpretation as the world changes around you, the world in 1961 was a different place from the world in 2014 and we the governments and members states of the UN system should be permitted to interpret with that degree of flexibility as we move in to the 21st century.

Using the language of treaties as living documents – more commonly known as dynamic or evolutive interpretation – Brownfield attempts to paint cannabis legalisation in the US as something other than the breach it obviously is, in the process raising a number of international legal concerns.

Dynamic interpretation is well established in international human rights law, particularly the jurisprudence of the European Court of Human Rights. But, as described by the International Law Commission in 2006, it is an approach ‘much more deeply embedded in human rights law than in general international law’, suggesting that its application in the context of international drug control law must be considered cautiously. This is not to suggest that dynamic interpretation is not evident in other regimes, and it indeed has been used by the International Court of Justice, the European Court of Justice and the Appellate Body of the World Trade Organization in various cases.

The drug treaties are suppression conventions. They form part of the body of transnational criminal law, not international human rights law. However, we accept that, for a variety of reasons it is legitimate to apply a dynamic interpretive approach to elements of international drug control law, particularly where drug control engages human rights. However, there are clear problems with the US’s use of this approach.

The first is the limits of interpretation itself. The classic approach to dynamic interpretation, as established by the European Court in Tyrer v UK, is a process of broadening or expanding the understanding of an obligation based upon changes in law, evolving social norms or widespread change in State practice. In other words, understanding treaty language in a modern context. There are various examples of this in practice from differing legal regimes.

However, Brownfield suggests that the ‘living’ nature of the drug treaties means that an obligation can legitimately evolve to the point of meaning the exact opposite of what it states, and that somehow the non-medical, non-scientific use of cannabis has evolved from being illegal in international law to being legal. This is an absurdity. The treaties already include a mechanism for the status of individual drugs to change or evolve, and for individual substances can be included in, or removed from, international control with approval of the UN Commission on Narcotic Drugs, a process known as ‘rescheduling’. The Brownfield approach circumvents this, for the obvious reason that such a resolution would never make it through the Commission, and instead posits the ‘living instrument’ idea as the alternative.

However, for this outcome to be legally valid without cannabis being rescheduled, dynamic interpretation would need to alter the understanding of what the term ‘medical and scientific use’ means within the conventions, the only circumstance within the current international regime under which cannabis, and all controlled substances, may be legally manufactured, accessed and used. But Brownfield does not suggest this, for if he did then this evolved understanding of medical and scientific use could reasonably be applied to all drugs under international control, making legal recreational access to all controlled drugs part of the new ‘living’ drug regime. This is clearly a bridge too far for the US.

The second problem is one of interpretive forum. Dynamic interpretation is a judicial approach, utilised by judges or adjudication bodies to balance competing or conflicting interests in arriving at a decision. It is an approach employed by a neutral arbiter to dispute resolution, not a doctrine for States to use to unilaterally change the nature and scope of their own treaty obligations. Indeed, if we are to pursue an evolutive approach, then we also need to look at broader State practice. You can easily count on the fingers one hand the number of countries with a legalised recreational cannabis market, so this approach has clearly not evolved to an extent where legal regulation of the substances within the treaties would be permissible. Even then it is stretching any reasonable interpretation to reverse what the law in fact says. But in any case Brownfield does not suggest that we look to evolving State practice. The four pillars suggest, quite clearly, the acceptance of divergent unilateral interpretations. Whatever one thinks of the drugs treaties, such an approach creates an international minefield. Imagine an international legal order in which individual States are allowed to decide for themselves which treaty obligations apply to them, and in what way.

Here, however, we come to the third major problem, which is that the flexibility the US seeks for itself may not extend to others at all. We have both argued separately that this new US position has little to do with treaty compliance, and is really about maintaining its own central role as global arbiter of drug control, a position which it uses to great influence internationally. Surprisingly, US drug czar Michael Botticelli recently admitted as much in his Senate confirmation hearings, stating that ‘[t]he Four Pillar framework is an effort to stake out a middle ground between those who believe that prosecution and jail is the only approach and those favoring radical changes to the conventions’. In effect, the US denial of its own treaty breach allows it to sit in judgement over the drug reform actions of other States, comfortable in its self appointed role of neutral ‘middle man’ or ‘referee’ of acceptable treaty flexibility, and therefore protecting its own national interests against any ‘radical changes to the conventions’, apart from its own.

To be clear, our concern is not about compliance with bad laws, which these treaties surely are. Our concern is with the potential implications of the State Department’s argumentation. The failed, punitive prohibitionist approach of the international drug control regime must end. It is a regime that causes untold human and societal damage across the globe, and change to this regime is slow yet becoming more inevitable. However, it would be unfortunate to see established rules of international law become collateral damage in the fallout of the end of the war on drugs.

http://opiniojuris.org/2014/12/18/guest-post-us-just-called-unilateral-interpretation-multilateral-obligations/

11 Responses

  1. FYI, the link to the 2006 ILC report is broken. The correct link is: http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf

    This is an interesting post; thank you for writing it. You refer to how US’s approach to interpretation could lead to a “minefield” if States got to determine their own obligations. But, focusing on the narcotics treaties, I don’t see the US’s approach as being that bad. This (admittedly unreasonable) interpretation shows that the US wants to generally accept the rule of law while also weakening the (harmful) impacts of the narcotics treaties.

    What are the US’s alternatives? As you note, it’s clear that the US is in breech. Would it be better for US to admit that it’s in breech? If so, would that mean that the US should take actions to end the internal violations (i.e. to end the non-medical or scientific use of marijuana in the US)? If the US admits to breeching the narcotics treaties and takes no action to remedy the breech, couldn’t that be viewed as promoting acceptance of breeches of treaties?

    The problem the US faces is common within any system of law: what should you do with a bad law? The obvious answer is to change it but that can’t happen overnight (ditto with the rescheduling option discussed in the post). In the meantime, the options a State has to not enforce a bad law are to ignore it, weaken it through reinterpretation, or find a legal mechanism to defang it (e.g. an injunction or finding a conflict with human rights or other fundamental principles). The US took the middle route.

    Fundamentally, as the narcotics treaties don’t have a court overseeing them, I don’t see much of a problem. Enforcement of the narcotics treaties is done by other signatories, making enforcement more of a political issue than, for example, enforcement of the European Convention on Human Rights. Chances are that US’s approach will not cause much fuss from other signatories as decriminalization of drug use is gaining international momentum. If other States don’t make a fuss, then the issue of US’s unreasonable interpretation is academic. You’re right that if US’s approach becomes common practice, it would lead to a chaotic international order. But I doubt that the international community will accept unreasonable interpretations like this except at times when there is significant momentum to jettison the old law.

  2. I respect Rick Lines and Damon Barrett as colleagues in the drug policy reform movement, but respectfully disagree with the main claims of this post. While I agree that some US states are breaking the black letter law of the conventions re cannabis regulation, I don’t think this has bearing on the future of international law. Moreover, I don’t understand the point of their claim that “the four pillars suggest, quite clearly, the acceptance of divergent unilateral interpretations.” The US doesn’t need the four pillars to diverge unilaterally from the drug control conventions. It has interpreted what Barrett and Lines (inaccurately in my interpretation) call “the drug control regime” to suit its own purposes ever since it began to formulate drug control in 1909, and has been in flagrant “breach” as they call it, multiple times. It funded irregular armies all over the world to advance its interests (or those of special interests) as has been well documented by Alfred McCoy and others, and has been an official drug trafficker par excellence. The excellent new film “Kill the Messenger” makes the point quite clearly. Why the Brownfield Doctrine should be a more noteworthy “unilateral interpretation” than the ones involving mass murder and mayhem in Southeast Asia, Central America, and South Central is unclear.

    Furthermore, my colleagues play fast and loose with terminology. The drug control conventions do not constitute “a global prohibition regime that has dominated since the turn of the twentieth century.” There is no one regime, if we must use that term, but multiple configurations of policies and preferences that fluctuate with national interest. The conventions, besides prohibiting the cultivation, sale, manufacture, etc. of “narcotic drugs” also define the enabling mechanisms of a global market. They configure a deeply flawed “command economy” in the words of one contemporary observer — in “narcotic drugs” to be used only “for medical and scientific purposes.” Like all command economies, it has failed abysmally in its stated end, to ensure the provision of medicines “for the relief of pain and suffering”. This is because the enabling (not prohibition) mechanisms, amount to a global patent for the pharmaceutical industry, to produce what the WHO lists as “essential” medicines such as morphine and methadone. By this, I mean that only the industry is legally allowed (licensed) to produce and market opioid medicines for pain relief. The fact that these medicines are now largely unavailable in more than 83% of the world reflects the failure of the “enabling” command economy mechanism, not of a blanket prohibition regime.

    I do agree with my colleagues that international lawyers have paid scant attention to the drug control conventions. When I was studying international law, I found that they were not indexed as multilateral treaties in any of my text books, and none of my professors were familiar with their provisions. As such, the conventions have become part of the wallpaper of the international policy landscape. A lacunae, since they affect the lives of billions of people.

    And why should the US interpretive move on the drug control conventions be “considered more cautiously” than interpretations of human rights law? All international law is subject to interpretation, yet the authors don’t mention teleological interpretation, which is more apropos in this case, since the telos of the conventions as stated in the Preamble of the Single Convention is “the health and welfare of mankind,” which is best served by the sort of evidence-based, context appropriate, flexible interpretations the US recommends in the Brownfield Doctrine.

    Re the authors’ invitation to the thought experiment of a world in which “individual States are allowed to decide for themselves which treaty obligations apply to them, and in what way,” that is the world we live in! Such decisions are normal state behaviour, whether we agree with it or not. It happens all the time, not the least with human rights conventions. The US is one of the worst offenders in that regard, as Barrett and Lines both know.

    And I also agree with the authors that the drug control policies of many member states “cause untold human and societal damage.” However, many other member states have created much more humane drug polices, and will continue to do so, within the framework of the conventions, again falsifying the author’s claim that this is a “prohibition regime”.

    International law by nature is small c catholic, in that it is a broad church, governed by the same double standards, hypocrisy, self-interest, and the divine idealism that characterise any human institution. But it is not yet the kingdom of heaven, or the perfect cosmopolitan world, as Kant was one of the first to recognize.

    The cornerstone of international law is national sovereignty, as the Commission on Narcotic Drugs recognises and proclaims in all it sessions. Clearly this cuts both ways. Drug policy reformers favour liberal policies rather than their antitheses, but both moves toward reform and strict prohibition are legitimate sovereign acts (literally, legally speaking) whether or not they are ethically palatable to reformers, under the conventions. The Brownfield doctrine is a step in the right direction, and not an anomaly or a dangerous direction for international law.

  3. Thanks for your comment Katherine.

    We pose a question in our title, the answer to which appears to be ‘yes’ and you seem to agree. The main differences are:

    a. That we think that’s problematic as a matter of law and you don’t.

    b. You think this is a move towards reform, we think it’s intended to hinder it.

    We’d welcome the views of others on these points and, indeed, their interrelationship given our view that the most legally appropriate approach is also the one most conducive to reform.

    Damon

  4. It’s interesting that Brownfield’s official statement (http://www.state.gov/j/inl/rls/rm/2014/232824.htm) — as opposed to the informal remarks at a press briefing — does not quite argue for a flexible *interpretation* of the treaties. It simply says: “The authors of these conventions wisely left each treaty flexible in order to help governments address new and emerging threats, like wildlife trafficking and cybercrime. As threats and our responses evolve, the international community *should show tolerance* as governments try new policies within their borders to address specific national concerns, provided they promote the aims of the conventions.”

    As I read it, the statement only goes so far as to say (i) that the conventions understandably contemplate some permissible degree of setting enforcement priorities, and expending resources on the most acute drug-related problems; and (ii) that even if such enforcement priorities result in some broad areas of nonenforcement (as in Colorado and Washington) — perhaps, even, rising to the level of technical breaches (although that’s not stated expressly) — the international community “should show tolerance” in *response* to such breaches.

    I wonder how much weight (if any) State intended to put on Brownfield’s use of the phrase “flexible interpretation” in the press briefing (http://fpc.state.gov/232813.htm) — a phrase conspicuously absent from the formal statement.

  5. Flexible interpretation was also discussed during the Senate confirmation hearing with Botticelli. When asked about it he said “ONDCP supports what the Department of State has termed a “flexible” interpretation of the conventions”. I’ve also heard it repeated by State department officials.

    But if it is as you suggest that’s worth disucssion too as that’s also an interesting way to look at it. The question in our title, then, could be ‘Has the US just called for tolerance of breaches of the UN drugs conventions?’

    I’d just say that the flexibilities of these treaties are long discussed and by now laid out. And a legally regulated market in cannabis is a far cry from non-enforcement. Uruguay is not simply not enforcing this, for example, it’s got a state monopoly. Interestingly it also argued interpretation to get around this.

  6. I should have also added that there is also the statement from the UN Commission on Narcotic Drugs in March 2014 and that we quote in the piece:

    “living means you are allowed to adjust your interpretation as the world changes around you, the world in 1961 was a different place from the world in 2014 and we the governments and members states of the UN system should be permitted to interpret with that degree of flexibility as we move in to the 21st century”.

  7. Thanks for the comment Katherine. I concur with Damon that our main point of disagreement seems to be less on the current situation, but rather whether or not we find that situation acceptable or defensible.

    Just a couple of additional points.

    Regarding the suggestion that ‘the authors don’t mention teleological interpretation’, dynamic interpretation and teleological interpretation are in fact different terms for the same legal interpretive process. As our article is about dynamic interpretation and its limits, you can apply the same analysis to teleological interpretation if that’s the term you prefer.

    Also regarding your point ‘the cornerstone of international law is national sovereignty’, well the truth is yes and no. Consent of States to voluntarily participate in international treaty regimes is of course a cornerstone of international law. But it is also a core principle that by voluntarily entering into these legal regimes, States are voluntarily agreeing to rules or limits that infringe on their sovereignty. This is the essence of international treaty-making. You seem to suggest that State sovereignty means a government can legitimately ignore the obligations it has voluntarily signed up to by a claim of sovereignty, which is false.

    The State sovereignty position in this case is actually the sovereign right of the US to withdraw from the treaty and choose not to be bound by its obligations, not to ratify the treaty and then choose which obligations it wants to observe. If we accept the latter position as valid, then we must also accept that a country can in the same manner unilaterally interpret its way out of its obligations on access to medicines, access to which you rightly cite as a huge problem.

    Thanks!

  8. Thanks for the comment Gabriel. Your questions are good ones, and ones we and others have in part addressed in other blogs linked above.

    We seem to agree on some core points, the main difference seeming to be our views of what is behind the US reasoning. In our view, the US flexibility argument has nothing at all to do with protecting the domestic cannabis reforms at state level. That was decided and made clear in the Deputy AG’s memo. The four pillars is damage limitation given these national reforms, and an effort to protect the international regime itself.

    You ask ‘If the US admits to breaching the narcotics treaties and takes no action to remedy the breach, couldn’t that be viewed as promoting acceptance of breeches of treaties?’ We would argue that no, but such an admission would fundamentally undermine the US’s credibility as the global policeman on drug control, which is precisely what the four pillars framework is designed to protect. In other words, if the US can claim itself not in breach, it maintains established power relationships that allows it to define what is and is not acceptable reform. As is pointed out in our previous blogs, this is precisely what the US is doing with Bolivia at the moment, where it is penalising that government for its recent decision to allow the traditional uses of the coca leaf domestically, particularly among indigenous communities. In this case, the US is penalising Bolivia for a non-breach (Bolivia has a reservation on the relevant treaty provision) while avoiding criticism of its own clear breach by embracing ‘flexibility’.

    We believe the four pillars is designed to undermine momentum for treaty reform coming from other States, not promote or protect it, a point illustrated in Botticelli’s confirmation hearings, where he says explicitly that the four pillars are to provide an alternative to ‘radical changes to the conventions’.

    In terms of your question about best options, our position is that admitting the breach, and explaining why that position of breach is acceptable or unavoidable, is the best way to truly promote legal reform and honest discussion about national or international ways forward. Pretending a bad law is really a good law (which is the essence of the four pillars statement) does little to promote progressive and thoughtful law reform in our view.

    Thanks again for your thoughts. Much appreciated!

  9. Having seen these debates from behind the curtain (as a Senior International Policy Analyst for FDA), I would suggest that IL Professors tend to underestimate the tension that exists behind the scenes at the Inter-agency (or Inter-Ministerial) levels. There are many vested economic and political interests pushing and pulling behind the scenes for control. The neighboring States to Colorado, for example, are now seeking control. Who else stands to benefit from the status quo?

  10. Just a quick response to your point on meds Rick, because we’ll have to agree to disagree on most of the conceptual points, which is the point of different interpretation. The Single Convention does not oblige states to provide essential meds. That is the heart of the problem we are facing now. There is no link between the Preambular and Operational paras of the Single Convention. States parties only have an obligation to “control” not to ensure supply, even though the preamble recognises their importance. The only entity with an obligation to “ensure adequate supply” is INCB, not MS. The rest we will have to take up in other fora.
    I’m glad we’re having this debate, though. Shows we’re all thinking.

  11. Thank you for the great responses!

    I look forward to seeing how the other signatories respond to America’s interpretation, whether an official objection or something more nuanced. State responses would go a long way to answering the question posed in the post’s title.

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