International Law & Cannabis
International Drug Control Conventions
South African policies on Cannabis are partly framed by the so-called International Drug Control Conventions (IDCC) which consists mostly of three treaties:
- Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol.
- Convention on Psychotropic Substances, 1971.
- United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
In addition, a regional enforcement arrangement reinforces the IDCC: the Southern African Development Community (SADC) Protocol on Combating Illicit Drugs, of 1996.
While governments tend to use the IDCC as an excuse to hamper reform efforts, as outlined in our “Heads of Argument” for our intervention in the WCHC case in the Constitutional Court, the time for using the conventions against us is over. Indeed, it is now largely recognised that “obligations derived from the drug control conventions are subordinate to human rights obligations”. Many provisions of the drug control Conventions conflict with Human Rights obligations – which has been demonstrated in concrete by the Constitutional Court of South Africa. Human rights violations occurring in the name of drug control can never be justified by States or their defenders as a necessary and unavoidable part of fulfilling international drug control obligations.
The academics, Van Kempen and Fedorova, explain that “under international law, states must give priority to their human rights obligations over and above any conflicting obligations under the UN Drugs Conventions. This means that states have the possibility under international law to regulate Cannabis despite their obligations under the UN Drugs Conventions” provided they meet certain conditions:
- The legal regulations must be motivated by a relevant Human Rights-based interest,
- A more effective Human Rights protection must be substantiated,
- A national democratic support and an inclusive decision-making process are needed,
- The legal regulation must not affect or disadvantage other states (closed system),
- The State has an obligatory policy of discouragement of use.
“If a State is able to satisfy these conditions, under current international law it can legitimately prioritize the human rights obligations over and above any conflicting obligations arising from the UN Narcotic Drugs Conventions” and regulate Cannabis for adult use.
These scholars just strengthen the evidence backing the Constitutional Court’s ruling: Human Rights prevail over prohibition, and lead to disregarding drug policies that violate Human Rights, either nationally or internationally. This is valid in regard to International Human Rights law, but also internally, as “South Africa’s international obligations are subject to South Africa’s constitutional obligations. The Constitution is the supreme law of the Republic and, in entering into international agreements, South Africa must ensure that its obligations in terms of those agreements are not in breach of its constitutional obligations.”
The Constitution prevents South Africa from fully complying with the IDCC, and obliges its government to breach them to the extent that they do not respect Human Rights and dignity.
International Human Rights law: Indigeneous People, Rural communities & Farmers’ Rights.
Because of the strong Human Rights orientation of the South African constitution, the recourse to international Human Rights law is not made necessary. Yet, elements of the broader Human Rights landscape should be considered as guidance for any design of new policy that, beyond preventing Human Rights violations, aims to enhance individual and collective rights wherever possible.
Human Rights are the legal way to enforce the protection and respect for the dignity inherent to all people. With the 1948 Universal Declaration on Human Rights as a starting point, Human Rights law has always been seen as constantly expanding and refining, in a movement towards the universal respect of the Dignity of every single living soul on earth. Therefore, the “United Nations has gradually expanded human rights law to encompass specific standards for women, children, persons with disabilities, minorities and other vulnerable groups”, in order to give positive legal protection to all.
This is why, in 2007, the United Nations extended the concept to local autochthonous communities, adopting the Declaration on the Rights of Indigenous Peoples (UNDRIPS) reinforced in 2018 by the Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP).
South Africa voted in favour of both texts that enshrine rights of peasants and rural populations, workers and indigenous peoples – while fully recognizing their contribution to sustainable development and biodiversity. The guidance of these guarantor documents might be of more use to South African Cannabis policy reforms than the IDCC that disregards rural populations and invites States to violate Cannabis farmers & indigenous communities’ fundamental right to use their traditional pharmacopoeia.
The topic of biological diversity also provides for some international dispositions affecting Cannabis farming communities, in particular the 2004 Convention on Biological Diversity and its Protocols that helped to shape most countries’ legislation and policies on the protection of traditional knowledge, bioprospecting, access and benefit sharing, plant variety protection and plant breeders’ rights, and more generally the sustainable use of crop genetic resources – each element being key to a smooth and respectful transition to legal settings for historical Cannabis farming communities.
In a similar manner, South Africa is currently taking part, in Geneva, in negotiations of a future Treaty to ensure the effective protection of traditional knowledge, traditional cultural expressions and genetic resources. Both the international negotiation and our local Cannabis regulations would benefit from increased dialogue of experts on that matter.