Defending An Effective Control on National and International Drug Trade : Challenging the International Drug Conventions
By Christophe Marchand, Member of the Brussels’s Bar
I. World Repression Wanted ?
1. International Narcotics Treaties
The Definition of Narcotic Drugs
From 1909 to 1988: Few Historical Elements
Aims of the Single Convention
2. ”Use Of Drugs” in the Conventions
Between Public Health and Repression
“Use” Versus “Abuse”
“Use” in the 1988 Convention: the End of a Loophole ?
Textual Exceptions to Prohibition in the 1988 Convention
About the “Wrong Message”
3. Prohibition of the use of cannabis
The Preparatory Works of the Single Convention
Is Cannabis Always Harmful for Health ?
II. About Interpretation in International Law..
1. Are the Parties Bound by the Narcotics Conventions ?
Are the Narcotics Conventions Binding ?
« Pacta Sunt Servanda »
Self-Executing Provisions of the Narcotics Treaties
Misunderstanding a Self-Executing Provision of the Single Convention
2. Drug Policy and Reserved Domain
Duty of Non-Intervention
State Freedom and Reserved Domain
The Intention of the State Parties
3. Interpretation According to the Vienna Convention on Treaties
Introduction: About Official, Textual, Contextual and Modificative Interpretation
The Textual Interpretation and the Legalization
The Limit to Textual Interpretation in International Law.
Other Legal Means of Interpretation.
Supplementary Means of Interpretation
State Practice and New Customary International Law as a Tool for Modification of Treaties
III. Case-study of A State Practice Towards International Drug Law.
The Spanish Case : A Step Behind In The Name Of Sovereignty (From De Iure Decriminalization To De Facto Penalization)
1. Legal Evolution of the Spanish Criminal Code
The Legal Criminal Impunity of the Consumer
2. Special Provisions in the Spanish Criminal Code
1. The trafficker and the immune consumer
A Unique Case of “De Iure” Decriminalization
Negative Side-Effects in a Repressive Environment
Administrative Sanction for Users and 1988 Convention
2. The difference between drugs
Very Dangerous Drugs
Hashish, Oil and Leaves
The Schedules of the Single Convention
3. Conclusion : Breach of the Treaties, Constitutional Rights and Situation of the Narcotics Treaties in Spanish Law
Breach of the Treaties ?.
Internal Politic Affairs.
Constitutional Exception: Human Rights
Constitutional Exception: National Sovereignty.
“The union of such an army might excite our surprise, but the causes of separation are obvious and forcible: the pride of birth, the insolence of valour, the jealousy of command, the impatience of subordination, and the obstinate conflict of opinions, of interests, and of passions among so many kings and warriors who were untaught to yield or to obey.”
Edward GIBBON, The Decline and Fall of the Roman Empire, An Abridged Version, Penguin Classics, 1985, p. 573
Is the American drug policy the only possible one that would comply with international drug law ? The point here, is not to describe in details what is the American drug policy. It is enough to state that it is a repressive policy, and even an increasing repressive policy. This simple statement is in opposition with another way of dealing with the use of drugs: the “legalizationpolicy”. The question is then: is it possible to legalize drugs within the frame of the current International Conventions on Drugs ?
From the first Convention of 1912 to the last one of 1988, there have been huge changes in the way we consider drugs. First, in relation with the toxicological and medical knowledge of the products : the irrational fears of satanized substances turned into a reasonable management of well known risks. Secondly, our society had racist or at least ethno centrist fears towards the use of non occidental products causing pleasure or inebriation. Nowadays we can see that these fears turned into a cultural understanding or even, they have vanished in favour of a massive use of those “exotic drugs”, so that they have become one of the scheme of states, driven by worldwide or continental dynamics. Last but not least, drug use is, has been and will be a part of human life. The religious mastication of coca leaves by Andean people, the psychological use of Prozac by the North American nations, as well as the drunk parties where Gauls absorb hydromel, all these uses of psychoactive products are a part of mankind. On top of all this, once we accept that a drug free world is not possible, we have to deal with the use of our time and the drugs people use, how they use it. The universal society now understands and accepts its contemporaneous way of life characterized by flash information, chemical and electronic post-industrialization, global interactivity, urban and fast human activities.
The ideology of drug policies has evolved from a survival instinct guided by imperialistic and moral goals, to a more reasonable attitude driven by equality, equity and dignity. The international laws moved in their norms and ideas, the sovereign states decided to face the International Conventions, and slowly but surely an universal debate on drug policy have been created. The international vigils striving for the respect of the ideology contained in the International Covenants had to accept state practices and realize their lack of ideological and juridical power to stop and challenge this worldwide movement of opinion.
At length, verging towards old age, and sometimes conquering by the terror only of her name, she sought the blessings of ease and tranquillity. The Venerable City, which had trampled on the necks of the fiercest nations and established a system of laws, the perpetual guardians of justice and freedom, was content, like a wise and wealthy parent, to devolve on the Caesars, her favourite sons, the care of governing her ample patrimony. (...)But this native splendour is degraded and sullied by the conduct of some nobles who, unmindfully of their own dignity and of that of their country, assume an unbounded licence of vice and folly.”
Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., p. 593.
Drugs can be either recreative (tobacco, alcohol, cocaine,…), either have a medical utility (chemical and pharmaceutical products,…) or serve both purposes (heroine, opium,...). Opioids and cannabis products are a kind of drugs. As a reference, we use the « summa divisio » of the three major international conventions in the field of drugs, that differenciate between « narcotics » on the one hand and « psychotropic substances » on the other hand. In international law, « narcotics » are not clearly defined. « Narcotics » are the substances enumerated by the Single Convention of 1961, as mentioned in article 1.1.j. These narcotics are the opioids, cocaine and cannabis products. Opioids are all the narcotics obtained from the poppy (Papaver Somniferum L.) and listed in Schedules I, II and IV of the Single Convention. Cannabis products are the narcotics proceeded from the cannabis plant (Cannabis Indica L.), and listed in the same schedules as opioids.
It has been said that narcotics international law started with the war. In fact, the two opium wars of 1839 and 1856 are at the roots of the first international drug convention. China wanted to ban, for public health reasons, the opium imported from India by the British Empire. In the name of the free enterprise, Great Britain wanted the market to be free. Under the influence of the United States, the Shanghai Convention of 1909 established the first international regulation on trade of opium. Since 1909, nine other conventions have been signed, including the Single Convention of 1961.
Today there are three major international conventions in force in the field of international drug law. The first one is the Single Convention of 1961, as amended by the Protocol of the 25th march 1972. As we have seen the convention regulates the three « natural » drugs. Apart from establishing an international control on the licit traffic in drugs, the Single Convention requires Parties to the convention to take all necessary legal and administrative measures to limit exclusively the production, manufacture, export, import, distribution, trade, use and possession to medical and scientific goals (article 4 of the Single Convention). The second Convention is the Convention on Psychotropic substances, signed in Vienna in February 1971. The 1971 Convention is drafted on the model of the Single Convention but regulates other types of drugs : the « psychotropic substances » (hallucinogens, amphetamines, barbiturics and tranquillisers), i.e. all drugs of industrial or synthetic origin. As its model, the 1971 Convention does not define the drugs it regulates. It enumerates in lists the drugs it controls. The third convention is the United Nations Convention Against the Illicit Trade in Narcotics and Psychotropic Substances signed in Vienna in December 1988. The aim of this convention is to strengthen and complete the fight against illicit traffic and abuse of drugs and not to regulate the licit trade . The 1988 Convention requires measures against money laundering, measures in favour the improvement of international cooperation, extradition and mutual judicial assistance.
The Single Convention is the most important treaty since it lays the grounds for control of licit trade and defines what is licit and what is not. The general principle enunciated in the Single Convention is the organisation of all activities related to drug trade: culture, fabrication, importation, exportation, sale, distribution and use. Parties undertake to limit the use of drugs to medical and scientific needs, in view of protecting public health.
The Convention establishes a worldwide control system on the licit traffic in narcotics. This business is limited principally to the pharmaceutical purposes : the narcotics necessary in medicine as said in the Preamble. Regarding this framework, does the treaties authorize a state to pursue a goal that would not be the criminalization of users and the prohibition of the use of some « evil » narcotics for medical use ? In other words, can a state legalize and organise the use of cannabis for recreational (and medical) purposes or the distribution of heroine to compulsive heroine users ?
If we refer to the aim of the International Conventions, as it appears from the Preambles, there are two main goals. On the one hand, the fight against illicit drug trafficking and on the other hand, the protection of the health and welfare of human beings. Moreover, the words “scientific and medical purposes » are not to be understood in a stringent fashion. Some exceptions can be found, i.e., industrial, culinary or veterinary use of narcotics. But, the wordings was chosen in order to emphasize the final aim of the Convention: “ It is therefore proposed that the general purpose of international control should be defined in terms of its final aims and not in terms of intermediary objectives. Consequently, the Preamble will emphasize the positive aspect of any control of drugs, i.e., to ensure sufficient supplies for medical and scientific requirements ”. We can also refer to the first words of article 4.c that establishes a prohibition “subject to the provisions of this convention”. This means that exceptions to the principle can be found in other articles of the Single Convention that are serving other purposes than medical and scientific ones.
This could obviously mean that the Convention does not only aim at promoting the scientific and medical use of narcotic drugs but basically, its objective would be to prohibit the use of narcotics for the pleasure. The “recreational use” of narcotics would then be an unknown but clearly forbidden concept in these conventions. Well, what we can be found in opposition to the general obligation of article 4.c in order to limit the use of drugs to the scientific and to the medical purposes, is the hypothesis of drug abuse. Again in the third sentence of the Preamble of the Single Convention, the Parties are « recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind ». Every non-medical or scientific use would be an « abuse », by « addicts ». But the Single Convention does not oblige a state to convict or punish a drug abuser as a Party to the Single Convention can provide for medical or social care as alternative to penalties. It could mean that the repression or prohibition of use by a « non addict drug user », if it ever exists, was not foreseen by the Single Convention. But there is more. As “ the “use” of drugs is not specifically listed in article 36, par. 1. among the actions which, subject to its constitutional limitations, a Party must treat as punishable offences. It appears that it is left to the discretion of each Party to decide whether it wishes to penalize the non-medical consumption of narcotic drugs by addicts “. It is as though the Single Convention meant to leave the drug abuser immune, as opposed to the illicit producer or seller that should be convicted. It is quite ambiguous : on the one hand, it is forbidden to use drugs other than for medical and scientific purposes but on the other hand, there are no penalties on the illicit user…
The 1988 Convention would go further since it obliges the states to regard as a criminal offence the possession, purchase or cultivation of narcotics for « personal consumption » (article 3.2). It is a switch in the International Treaties. The aim of the Single Convention, apart from the objectives we have seen below, was to provide a worldwide control system on the production and trade in narcotics and to impose criminal offences for those who would not respect the rules. The 1988 Convention obliges the Member States to criminalize the personal consumption of drugs through the wordings “possession for personal use”. It is a significant switch, as a possible root of the Single Convention (to prohibit the habit of smoking opium or to use Indian hemp) was not expressed openly. Using the words “personal consumption”, the 1988 Convention would express something that was obvious in 1961. The need to say it was drafted in the context of the arising debate on legalization of the recreational use of drugs. It is interesting to note that the debate would find its expression in the words used in the Convention. Would this mean that the Single Convention is not clear enough ? Would it mean so far that drug abuse only is regarded as forbidden ? Would this mean that personal consumption must be totally forbidden ?
It is controversial. In the 1988 Convention the possession, purchase or cultivation of narcotics for personal consumption is forbidden if « contrary to the provisions of the 1961 Convention » as mentioned in article 3.2, in fine. Would that mean that possession, purchase and cultivation for personal consumption can be licit ? Of course, the medical and scientific purposes are licit. Several authors already pointed out that the interpretation of the Conventions is possible. LAP and POLAK analyse three articles of the Single Convention. They interpret in a large sense article 4.c and the words “medical and scientific purposes”. They understand those words as containing the concept of “protection of the public health”, as we can find it in the article 22 of the Convention and in the Preamble. On the other hand reading the regulatory provisions of the Single Convention, they see that licit culture, fabrication, sale, import, purchase and possession of narcotics are regulated in the Convention. As far as cannabis is concerned, they emphasise article 28.1 of the Convention: “if a Party permits the cultivation of the cannabis plant for the production of cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy”. This article explicitly mentions the possibility of a government agency regulating production and distribution of cannabis, as article 23 regulates in connection with opium. They propose that the governments that are willing to decriminalize the use of cannabis put that article into force. We can see it as an example of an interpretation of the Single Convention. On top of this, article 3.2 of the 1988 Convention limits the obligation to a State to criminalize the possession for personal consumption by the « constitutional principles » and the « basic concepts of its legal system ». It means that some national legal principle can exclude the criminalization of the cultivation, purchase and possession of narcotics. It could be, for example, the right to health, or the right to freedom of behaviour, or the disproportion between the means used to fight illicit drug business and consume, and the ineffectiveness to reach the desired goal, or even the right to pleasure as a part of the right to the Privacy.
Furthermore, the 1988 Convention did not banish the ambiguity contained in the principle “prohibition without sanction”. The Conventions would oblige the Parties to provide for a penalty on drug consumers. Even if it is not put into force. It is the “tolerance policy”, the « de facto legalization ». Tolerance in the sense that the Criminal Law of a country must establish that consuming drugs is prohibited by the Criminal Code. « De facto » in the sense that the Criminal Law still exists and that the legalization is not « de jure », by a reform of the Criminal Code. But, in the application of the law, a State is not obliged to convict or punish: an “expiation fee” can be enough. Using drugs for pleasure is a taboo and it would be a « wrong message » to authorize their recreational use. The problem is that a “de facto” legalization of the use of narcotics is unfair: as the law remains, as its application or non-application will depend on the will of the people in charge of the enforcement of the law. This is unfair as the people with a good social and family situation, and well-educated could escape from penalties while the others could not. It is unfair as the policy will not be the same from one place to the other in a same state. It can be seen as a violation of the basic and constitutional concept of equality towards law, thus also as a violation of a human right.
As a first conclusion we can say that the Conventions does not obviouslyprohibit the decriminalization of the culture, purchase, possession of narcotics for personal consumption. The treaties leave room for a formal legalization (« de iure ») of recreational use of drugs even though it is controversial. On the one hand we have seen that the “constitutional exception” can be put into force. This means that a government could reasonably defend the point of view that some of its constitutional principles hamper the criminalization of the recreational use of drugs. On the other hand, a government can also declare that the Convention needs to be interpreted in the sense that the protection of public health requires a regulation of the use of narcotics for pleasure, in conformity with the international and national administrative control system of the 1961 Convention.
Now I wish to discuss a special issue related to the use of cannabis. If we look at the official recordof the discussions held prior to the conference that was to create the Single Convention, we find that the “cannabis question” has been a controversial item. In fact, there were disagreements between the delegates. On the one hand, some of them considered that the use of cannabis was not dangerous and on the other hand, some considered that cannabis could be used as a medical drug. First, I shall consider the recreational drug use. When I wrote above that “recreational use” is unknown in the Convention, I must confess that it was not entirely true. In fact, article 49 of the Single Convention contains the transitional reservations to the Convention. It permits one State to tolerate the traditional use of opium smoking, cannabis using and coca leaves chewing during 25 years. Besides, what is specific to cannabis, is that the Indian representative said during the discussions that using the leaves of cannabis is not harmful and that: “India could not afford the expense of combating a relatively harmless habit”. Furthermore, the Canadian representative said that it was necessary to find “a formula which could cover that social but legitimate use of the leaves”. “Social but legitimate use”. As far as I know, it is the first and last time that this expression was used. Consumption of cannabis leaves for pleasure is not prohibited by the Single Convention as the Representatives found it was not a dangerous drug. It is very important though to note that the authors of the Single Convention did notexcluded every single recreational use of drugs. The Indian Representative really had to convince the other Representatives, and he did succeed. The discussion was so controversial, that the item was sent to an “ad hoc committee” that would try to conciliate the points of view. The Indian Representative fiercely kept his point of view, so that the definition of cannabis as drafted, was changed to exclude the leaves. The definition of cannabis is now (article 1.1.b): “”Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated”. The leaves of cannabis are therefore not in any Schedule of the Single Convention. But it does not mean that the cannabis leaves are a totally free drug in the International Law: “The leaves of the cannabis plant (…) are not “drugs” in the sense of the Single Convention.(…). Parties are not bound to prohibit the consumption of the leaves for non-medical purposes, but only to take the necessary measures to prevent their misuse. (…). The conditions under which non-medical consumption might be permitted might also depend on the outcome of the studies which at the time of this writing are being carried out concerning the effects of the use of the leaves”. Now, we don’t know what happened to those studies, …
Nevertheless, the problem of medical use is related to that of social use since at the time the Convention was drafted, it was not sure whether cannabis was harmful or could be used as a medical drug. Cannabis as a medical drug… Some representatives indeed (such as the representative of the Byelorussian Soviet Socialist Republic) claimed that cannabis and cannabis resin were being used in indigenous medicine, and that it could not be prohibited. On the other hand, other representatives (such as the representative of France) claimed that some therapeutic use could possibly be found in the future for cannabis, so that it should not be simply and purely prohibited. A third position was that of the USA, in favour of a complete prohibition of cannabis as a “steppingstone” to heroine. In fact, the value of cannabis as an antibiotic or as a sedative, was pointed out by the Secretary-General of the United Nations in a note (“Medical use of cannabis”) published a few months before the Conference started. Attached to this note was the report by the WHO over “The merits of antibiotic substances obtainable from cannabis sativa”. The Secretary General concluded that the Conference must consider the “possible modification of the provisions of the Single Convention in order to permit the use of cannabis for the extraction of useful drugs”.
Cannabis is now listed in schedules I and IV of the Single Convention. Just like heroine. Schedule IV is supposed to be the more stringent one. It recommends to the Parties a total ban on any drug it mentions. Yet it is only a recommendation and a state may still consider that this drug may be used as a medicine. As far as the recreational use of narcotics is concerned, we have seen that the textual approach provides for exceptions to the prohibition of the possession, purchase and culture of narcotic drugs for personal consumption. Furthermore, cannabis has a special statute as we can find it in the preparatory works of the single convention. This contextual approach confirms the textual one and at this stage, we can draw the following conclusions. First, we can say that cannabis leaves are not a drug and dealing with it does not oblige the state to use article 28: a state can authorize the recreational use of it without violating the Single Convention. Secondly we must note that cannabis resin or the flowering tops and fruiting tops of it are drugs, even though their medical use is not excluded by the Single Convention but, article 28 must in this case be put into force. Thirdly, it is obvious that if a state decides to legalize cannabis, for medical or recreational use, it will have to comply with the administrative provisions of the Single Convention and to explain its legal arguments, as well as to deal with the International Narcotics Control Board, such as it has been the case for Switzerland with respect to the heroine trial and for The Netherlands to the coffee shops. Fourthly, we cannot say that the goal of the Single Convention (and of the 1988 Convention) is clearly and obviously the prohibition of all the recreational use of narcotics and it is then necessary to interpret those international treaties.
“The political and secret transactions of two statesmen who laboured to deceive each other and the world must forever have been concealed in the impenetrable darkness of the cabinet if the debates of a popular assembly had not thrown some rays of light on the correspondence of Alaric and Stilicho. The necessity of finding some artificial support for a government which, from a principle not of moderation but of weakness, was reduced to negotiate with its own subjects had insensibly revived the authority of the roman senate; and the minister of Honorius respectfully consulted the legislative council of the republic.”
Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., pp. 577-578.
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In a recent book over the concept of treaty in international law, KLABBERS writes : «any study dealing with the concept of treaty will sooner or later have to come to terms with wider notions as to what is meant by law in general, and by international law in particular ». In fact, we can recall the theory saying that a law without a sanction (this means enforced in a court of law) is not binding. Do the Narcotics Conventions build a system of norms providing with sanctions in the event their provisions would not be respected ? The answer is obviously negative. To the best of my knowledge, no case was ever dealt with by the International Court although it has jurisdiction over the settlement of these disputes according to the Single Convention (article 48) and the 1988 Convention (article 32). We might think that the international organisations or bodies operating in the field of control and enforcement of the Narcotics Treaties have the possibility to sanction an offender. We face here the concept of « sanction » in international law… Should a moderate condemnation in appropriate wordings in the yearly report of the International Narcotics Control Board be regarded as a proper sanction ? Does a visit in a country by a delegation of the INCB amount to a punishment ? Well, to my point of view, it is not, and these actions are the only ones the INCB ever permitted to undertake. Although, the Single Convention empowers the INCB to impose an embargo on all narcotic products against an alleged offender of the treaty. Although the Board can draw the attention of United Nations Bodies on the behaviour of a state…
We must depart from this rather unrealistic view : international drug law does exist even if no sanction but for a moral condemnation is provided. And this is the point : international (drug) law is of course binding,even without sanctions. It is far out of my intellectual reach to theorize on the existence of law, but I can see that states respect, more or less, international treaties. It is rather a matter of « credit, confidence, consideration and compromise » than a matter of sanction. The treaty, according article 26 of the Vienna Convention on Treaties must be performed by the parties in good faith, it is the adagio « pacta sunt servanda ».
Furthermore, international treaties can be a direct source of internal or municipal law for the provisions that are self-executing, i.e. sufficiently clear in order to be directly used in municipal law without any legislative or administrative intervention of the state. Most provisions of the Narcotics Conventions are not self-executing. This means that the state party must take legislative measure in order to respect it. Furthermore, it certainly gives a greater power of interpretation to the states in the application of the treaty and it permits a reform of the « application law » if the state thinks a new one would better fit the goals and obligations of the Narcotics Treaties. Only very few provisions of the treaties could be self-executing : for example, part of article 36 of the Single Convention on criminal provisions and the « non bis in idem » principle, article 7 on mutual legal assistance in the 1988 Convention and article 11 on controlled deliveries in the same convention. One pitiful example of direct application of article 36 of the Single Convention can be found in Belgian Law.
Illicit importation or illicit exportation of narcotics can be one same behaviour : a trafficker going from France to Belgium, carrying drugs. This person is trialed twice for the same facts : once in Belgium for importation and once in France for exportation : two trials, two sentences, two jails, one French and one Belgian. The Belgian « Cour de Cassation » referred in 1989, in a classical fashion, to the different goals that are protected under Belgian and French Law with respect to the second trial of a drug trafficker. But there is more : the Court also referred to the Single Convention. In its article 36.2.a..i, the convention asks that : « each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence ». We find in paragraph 1, the two offences we are tackling with : illicit importation and illicit exportation of narcotics. Since the goals of both the Belgian and French Criminal Law are becoming identical i.e. « the protection of the interests of the European people », the Court had to refer to the Single Convention in order to be able to conclude that the second trial, even though obviously relating to the same facts, was legal. I would like to evidence the real significance of article 36.2.a.i of the Single Convention. Does it aim at putting someone on trial twice in a row ? We will analyse the preparatory works of the Single Convention and the Commentary on the Single Convention, drafted by the UN Secretary General. Did the Single Convention really mean to have a drug trafficker judged twice ? Is the Single Convention as repressive as the « Cour de Cassation » wanted it to be ? I believe not : the aim of this article was only to make sure that the drug trafficker would not escape to any trial, and not to have him condemned twice or more because of his so called particularly bad behaviour. First of all, article 36.2.a.iv of the Single Convention puts a condition precedent to the application of article 36.2.a.i : the offender shall be prosecuted by the Party on whose territory the offence was committed if such offender has not been prosecuted and if no judgement has been rendered. It is worth mentioning the Single Convention Comment relating to article 36.2.a.i : « it (clause (i)) is not intended to violate the principle « non bis in idem » (prohibition of double jeopardy)( ...) ». This article only aims at avoiding that a country provides for a shelter to a trafficker : the extensive descriptions of the offences aims at giving jurisdiction to the largest possible number of States. We can find the same opinion in the discussions that took place during the Conference held prior to the Single Convention : the members emphasized that this article 36.2.a.i was not intended to violate the « non bis in idem » principle. That is the reason why a special clause was added in the article 36 : it is the constitutional exception that permits one State not to apply a rule if it is contrary to its constitutional and legal system. It seems that pursuant the Belgian « Cour de Cassation » case law the principle « non bis idem » was none of these exceptions. Some of the members of the Conference feared exactly what happened in Belgium during the last thirty years : that someone would be trialed twice for the same facts, in a clear breach of a human right.
It has been said that the current drug policies are inefficient. But there is more, in the sense that the prohibitionist policies could be viewed as a danger. It is a danger for human rights and for democracy. It is also a tool for imperialistic politics by the United States as it has, inter alia, permitted this State to send military forces in some countries to assure the enforcement of, for example, the so-called « eradication of culture » policy. This means that by implementing and interpreting the Narcotics Conventions in a certain way, the United States of America and the international drug control bodies are influencing on internal affairs of many countries. One can see this as a breach to national sovereignty, to the right to natural resources and further more, as actions against the economical, cultural, social and political independence of a country. The duty of non-intervention is one of the basic principles of the Charter of the United Nations and of the relations between States or between a State and an international organisation. Drug policies are so misused and have such important consequences in many field of social life, that saying that by choosing a drug policy, a State makes a choice of an economical, cultural, social and political system can be seen less polemical than at the first sight.
One of the corollary to the freedom and to the sovereignty of the states, although controversial, is that there is a field where they remain free : the reserved domain. International law organizes the pacific coexistence of independent States. The limits to the independence of a state is not defined : the burden of proof that a policy is breaking the limit does not bear on the alleged offender but on the one who sustains that sovereignty does not authorize a state to act in the way he does. In other words, a State that does not comply with the strictest interpretation of the Narcotics Treaties arguing that it acts within its reserved domain would not need to prove, before a Court, that doing so is not a breach of international law. On the other hand, the claimer will have to prove that the stringent interpretation and the so-called impossibility to legalize drugs does affect the reserved domain and prevents the alleged offender to act as he does. It could be argued that national sovereignty is not infringed by the administrative ruling of the Single Convention on licit drug traffic but by the (politically) strict interpretation of the conventions. It can be sustained that states do not the freedom anymore to choose and implement their own political, economical and social system.
As a consequence, on one hand not only, the systematic, institutional, economical, military and police intervention of the United States could be considered as a breach to International Law, but it also it could be considered that the repressive drug policies affect the internal affairs of the states so deeply that it broke into the reserved domain of the States. Such domain is, of course, limited by treaties : sovereignty is abandoned by a state as soon as it signs a treaty on that particular matter. Such was the case with respect to the Single Convention and the 1988 Convention. Yet I mean to argue that the choice of drug policies, if ever limited by the provisions of a treaty, cannot result in the abandon of sovereignty in other fields unless it was willingly meant. This is especially so if those fields are closely related to human rights issues and to the constitutional protection of freedom of individuals and states themselves… With this respect it must be noted that the intention of parties is an important element when one construes a treaty.
The interpretation process in international law is based on different principles than those ever used in domestic law. For example, the interpretation given to the 1988 Convention and to the Single Convention by United Nations bodies or International Drug control bodies, although they might call it « official », is not the authentic in the view of the 1969 Vienna Convention on Treaties. It is also worth noting that in international law States are keeping their sovereignty. The world is not a federation of States, such as the United States of America, Mexico, Switzerland or Belgium. Sometimes, treaties empower an international body to construe a treaty. Such is not the case in international drug law. Practical application of treaties and state practices are highly important in order to construe treaties properly. Furthermore it was once said that « the process of interpretation through subsequent practice is legally distinct from modification, although the distinction is often rather fine ». Interpretation and modification of a treaty can be very close. Apart from the formal modification or amendment of the Single Convention or of the 1988 Convention, such as foreseen in article 47 of the first and article 31 of the last, international law accepts that a treaty may be modified by a consistent practice of states. I would be tempted to say that even if the text was sufficiently clear standing alone which the Narcotics Treaties are not, the state parties may still claim to interpret the said treaty. By doing so they can refer to the ordinary and natural meaning of words, to the context of the treaty at the time it was drafted or even interpreted, to its object and purposes, to the preparatory works of the treaties, to the teleological approach and of course, to their own practice. Even if article 31 of the Vienna convention establishes as first principle the « textual approach » of a treaty, BROWNLIE writes that « the textual approach in practice often leaves the decision-maker with a choice of possible meaning and in exercising that choice , it is impossible to keep considerations of policy out of account. Many issues of interpretation are by no means narrow technical inquiries ». Thus states are obviously entitled to interpret a treaty. Nevertheless, if a dispute occurs between parties, there is still, according to the Narcotics Conventions, one body that can put an end to it, which is the International Court. Thus, a `mixed method` can be regarded as a rule of interpretation in international law, even if the textual approach seems to be preferred by some prominent authors and by the Vienna Convention of 1969.
The most difficult method of interpretation for the “legalizers” would be the textual one. One clear limit to freedom of interpretation is a clear text: article 31 of the Vienna Convention on the treaties states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The question is then: does the text of the Narcotics Treaties clearly exclude the legalization of drugs for recreational use ? Thinking about the meaning of words, we must then define them in compliance with their customary use. What do we mean by legalization, by decriminalisation or by depenalization ? First of all, all the three terms refer to a kind of “legal criminal policies”, in the sense that to each wording corresponds a state criminal law policy. “Depenalization” would then mean the legal process, by which a milder sanction is given to a behavior that still remains criminally forbidden. “Decriminalization”, on the other hand, refers to a process wherein a behavior is not criminally sanctioned any more: no criminal sanction whatsoever still applies to that behavior. It is important to note that “decriminalization” and “depenalization” can be “de facto” or “de iure”. The “de iure” process refers to the fact that law is changed and that the application does not depend on the whims of the national authorities in charge with its enforcement. “Legalization” then is a process by which a behavior is not forbidden anymore. Furthermore, we must distinguish between “liberalisation” and “regulation”. The first refers to a system where the state does not mean to influence on a considered behavior and allows the market to regulate its trade. The second describes a system of control and organization of a considered behaviour. Therefore, it is sometimes called “controlled legalization”.
Returning to the textual interpretation, we can note that the words “recreational use” are not mentioned in the Narcotics Conventions. We can also recall that the text of the 1988 Convention clearly allows a state not to criminalize the possession, purchase and culture for personal consumption in the name of the “constitutionalexception”. Of course, we still have to tackle with article 4 of the Single Convention and the “exclusive” limitation of the use of drugs to medical and scientific needs therein mentioned. Some major analysts of the Single Convention have once written that this specific point must be interpreted in order to be properly understood. WADDEL wrote that article 4 aims at limiting to medical and scientific goals the production of narcotics. NOLL argued that the Convention is not clear, so that it must be determined whether it excludes the legalization of drugs. The Secretary-General of the United Nations noted that article 4 did not exclude other uses than the medical and scientific ones. Nevertheless, a strict textual interpretation of article 4 has led NOLL to consider that “”legalization” of drugs in the sense of making them freely available for non-medical and non-scientific purposes – as it is sometimes demanded by public mass media and even experts on the subject – is without any doubt excluded and unacceptable under the present international drug control system as established by the international treaties”, yet he also wrote that “the treaties are much more subtle and flexible than sometimes interpreted”. The strict textual interpretation also leads us to the first words of article 4 : “Subject to the provisions of this convention”. It is a clear reference to other provisions in the Single Convention that could provide with exceptions to aforementioned principle. Article 4 of the Single Convention together with article 36 of the same and article 3 of the 1988 Convention, make it clear that the exclusive wording of article 4 does not exclude the legalization of drugs for recreational use, bearing in mind that legalization is defined as a criminal law policy that should be understood under the criminal provisions of the treaties, and not under the administrative ones. Article 36 of the Single Convention does not oblige State Parties to criminalize the purchase, possession or culture of drugs for personal consumption. Article 36 provides for an obligation of the states to repress illicit traffic. Even if the “dealer-consumer” can avoid criminal sanctions thanks to article 36.1.b. of the Single Convention. Indeed, the consumer is not the target of the criminal provisions of article 36. As a consequence the cited authors properly sustained that the Narcotics Conventions must be interpreted since the treaty is not clear enough. The Vienna Convention does not limit the general rule of interpretation to the strict textual one. Article 31.1 also allows the interpreters to look into the context and the object and purpose of the interpreted treaty.
It would be unfair to write that interpretation of the Narcotics Conventions unequivocally leads to a progressive meaning of the treaties, i.e. an interpretation that allows the legalization of drugs for personal consumption or for leisure. My meaning is that state parties remain free to give the interpretation they want. The Vienna Convention allows the interpreter a lot of tools. Article 31 §2 of the Vienna Convention on Treaties states: “2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty” and §3 continues: “there shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties” and finally, §4 states “4. A special meaning shall be given to a term if it is established that the parties so intended “. In these provisions we can find a clear legitimating of the interpretation seen below, as proposed by POLAK and LAP. The Vienna Convention on treaties certainly gives a priority to the intention of states, but also considers fundamental the reference to the preamble and to the entire text of the interpreted convention. Viewing the international legality of the legalization of the recreational use of drugs, it can be argued that the protection of public health, seen as a primary goal of the Narcotics Conventions can be considered as better achieved through legalization than by means of repression. On the top of this, taking into account the wish of control of all the drug business by state agencies, established by the Narcotics Conventions, the legalization is a more efficient and reasonable, way to achieve this goal then to let a great part of the trade in “dirty hands”. Furthermore, the legalization of drugs will not change the Narcotics Treaties into voided norms. All the regulatory provisions of the Single Convention will of course be needed to organize this extension of the licit market in drugs governed by the treaty. The 1988 Convention will also remain an effective tool to tackle the illicit drug traffickers that would continue the business. Last but not least, in international law, it is the choice of a state to interpret a convention in a determined sense. The state exercise this competence through particular agreements with other states or through unilateral declarations explaining its point of view.
Article 32 of the Vienna convention states: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable “. This provisions provides other arguments to confirm the “public health interpretation” made by the Dutch authors. It can be noted that this position is the official Dutch one as stated by the Minister of Foreign Affairs at the UNGASS in June 1998. On the one hand, the preparatory works of the Single Convention confirm that article 4 does not exclude the use of drugs for other purposes than the medical and scientific ones. We have seen below that a “social but legitimate” use of drugs was discussed and accepted by the delegates at the Conference. On the other hand, if we still remain on the strict interpretation, one can consider it as ambiguous, in regard of the lack of criminal sanction in the penal provisions of the Narcotics Treaties. One can also consider the interdiction of the legalization of the non-medical and non-scientific use of drugs unreasonable as it leads to extensive and structural damages for the public health of state parties.
If we are still not at ease with the extensive interpretation of the treaty or at least with the sole legal possibility of that interpretation, we can use a conservative opinion and argue that the Vienna Convention on Treaties does not apply, even as a rule of customary law, on the Single Convention, as the Vienna Convention entered into force on 27 January 1980 . The Vienna Convention on Treaty would not apply on the Single Convention as it is not retroactive in effect. This would then mean that the “old rules” of interpretation would be still in effect. These rules let a vast area of freedom to every state in the interpretation of its conventional obligations. It consist of such rules as “in dubio mitius”, i.e. if in doubt, the least unfavorable interpretation to the subject of an obligation must be chosen, or “ultra posse nemo obligatur”, i.e. no one is bound beyond what he can do... Furthermore, we can refer to so-called theory of the emergent rule of customary law. According to this opinion, “supervening custom can also be taken into account in order to clarify ambiguities or fill gaps in treaty text”. Moreover this way of understanding “new international law” permits the interpretation of a treaty in the light of new customary rules that are contrary to its meaning. KONTOU writes: “One party has the right to call for termination or revision of a treaty on account of the development of new custom. State practice offers a number of examples where one or several of the parties clearly and forcefully argued for termination or revision on accounts of its incompatibility with supervening custom.(...) In the end, the treaty was expressly abrogated, revised or replaced by a new treaty; or it was brought to an end or modified by subsequent practice of the parties. In other case the process of treaty adaptation to supervening custom was longer and at times more controversial, but the same result was finally achieved” . An author has called this kind of rule of international law “wild custom”. Another one wrote that the dynamic of change in international law can pass by the violation of an old rule, to come to a new and more reasonable or equitable one. In fact, a state can adopt a determinate illegal behavior towards a rule of international law, because this state think it is the right answer to a social, political, environmental, economical or cultural problem. And there begins the end of the old rule...
“The correspondence of nations was in that age so imperfect and precarious that the revolutions of the north might escape the knowledge of the court of Ravenna till the dark cloud which was collected along the coast of the Baltic burst in thunder upon the banks of the Upper Danube”
Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., p. 572
Let’s try to argue that the international covenants tend to be repressive, bearing in mind the hereafter mentioned reservations. Does it mean that sovereign states have lost the power to choose the drug policy they want to implement ? At first sight the answer might seem positive. The Spanish situation will give a moderate answer. Even though it demonstrates that a state can decriminalize the use, possession, purchase , culture of drugs in the Criminal Code itself.
The practice of the Spanish State towards international drug law is very peculiar. On the one hand we can observe a legal evolution of the Spanish Criminal Code, parallel to the International Covenants (I). On the other hand, Spain kept peculiarities that seem to show that this state wanted to keep its sovereignty in drug policy, in compliance to its constitutional principles, said drug policy seen as a field of social, public health and judicial policy (II).
- Francis CABALLERO, Droit de la drogue, Précis Dalloz, Paris, 1989, pp.664-672
- Angel Javier MARTINEZ HIGUERAS and Fernando MOYA LORENTE, Legislacion sobre drogas, Segunda edicion, Biblioteca de textos legales, Madrid, 1990, 1.423 pages
- Grupo de Estudios de Politica Criminal, Una alternativa a la actual politica sobre drogas, Secciones de Cadiz, Malaga y Sevilla del Instituto Andaluz Interuniversitario de Criminologia – Jueces para la democracia – Instituto de Criminologia de la Universidad de Santiago de Compostela, 1992, 132 pages
- Javier Ignacio PRIETO RODRIGUEZ, El delito de trafico y el consumo de drogas en el ordenamiento juridico penal espanol, Segunda edicion, Editorial Aranzadi, Pamplona, 1993, 686 pages
- Constitucion Espanola, Textos Legales, Boletin Oficial del Estado, Madrid, 1993, 274 pages
- Francisco RUBIO LLORENTE (Ed), Derechos fundamentales y principios constitucionales (Doctrina jurisprudencial), Ariel Derecho, Barcelona, 1995, 793 pages
- Ignacio DE OTTO, Derecho Constitucional, Sistema de fuentes, , 4.a reimpresion, Ariel Derecho, Barcelona, 1995, 315 pages
- Francisco Javier BLANCO HERRANZ, Derecho de las drogodependencias, Legislacion y trabajos parlamentarios, Coleccion informes y documentos, Parlamento Vasco, Vitoria-Gasteiz, 1989, 1060 pages
- Catalina VIDALES RODRIGUEZ, « La ultima reforma del Codigo penal en materia de drogas », Revista General de Derecho, Ano XLIX, Abril 1993, Num. 583, pp. 2725-2744
- Manuela CARMENA CASTILLO, « La législation actuelle et les possibilités d’alternative », Psychotropes, Vol. V, N° 1 and 2, Winter 1989, pp. 29-31
- Jose Luiz DIEZ-RIPOLLES, « Les politiques anti-drogues en Europe occidentale », Psychotropes, Vol. V, N° 1 and 2, Winter 1989, pp. 55-61
The Spanish Criminal Code evolved in four phases.
1. The Code of 1822 already forbids the sale and business of substances poisonous for health and without therapeutic interest. The criminalization of the illicit pharmaceutical trade will be completed by the reform of 1928 in the course of which the repression of the “illicit traffic in narcotics and toxic substances » was added. Up to 1971, numerous reform of the Criminal Code confirmed the words used « narcotics », clearly refering reference to the International Conventions.
2. In 1971 the Spanish criminal legislator has profoundly changed article 344 of the Criminal Code in order to comply with article 36 of the Unique Convention as ratified by Spain in 1966. The aim of the reform was to define offences related to traffic in a more complete and less vague fashion. The objective was to boost the repression against drug traffickers, in particular with respect to sanctions (up to 20 years) and definition of the offences. Spanish authors harshly criticized this new regulation because in mind judges are arbitrarily empowered to choose a sanction, varying from 6 month to 20 years. On the other hand, they considered that there should be a distinction among drugs, criticized the fact that drug consumer could be prosecuted only because of the detention of narcotics and that the concept « toxic and narcotic drug » were not clearly defined..
3. Together with the end of the franquist Era and the promulgation of the democratic constitution of 1978, the Spanish Criminal Code was once again reformed. Between 1980 et 1983, a fundamental change took place aiming at replying to the former criticism. The number of offences was diminished and a difference was made between different types of drugs. In the meantime, detention of drugs remained a criminal offence only to the extend it also implied traffic. In other words, the consumer became immune in the Criminal Code itself.
4. The last reforms of 1988 and 1992, resulting in the New Criminal Code of 1995 were adopted in order to increase the repression of the traffic in narcotics and to have Spanish Law complying with the 1988 Convention, ratified by Spain in august 1990. The aggravating circumstances were changed, the money laundering in connection with drug trafficking was criminalized, the status of the repentant defined, as well as the police drug controlled delivery. However, this reform did not infringe immunity of the consumer.
In conclusion the Spanish legal drug statute has considerably evolved. It is quite surprising to note that since 1980, the drug consumer is not legally subject to criminal sanctions and that the law differentiates between the different types of drugs. It is even more so since we noted that the legal reform aimed at enforcing the Single Convention and the 1988 Convention while these treaties can be interpreted as rejecting such legislation.
In order to understand the peculiarity of the Spanish case, and to appraise their compliance with international drug law, Spanish legislation and its application must be deeper looked into.
In June 1984, the General prosecutor of Spain published a comment on article 344 of the Spanish Criminal Code. The General Prosecutor stated that possession of drugs for personal use, without trafficking, does not amount to a crime. For a long time, the Supreme Tribunal of Spain considered that possession of drugs for personal use was not an offence as it did not induce a commercial goal. Later on, in spite of the repressive reform of 1971, the Supreme Tribunal confirmed its doctrine, by deciding that the possessor-user was also immune even if he was not a « real addict ». It was finally in 1983, after controversial doctrines, that the legislator intervened. It seems to be unique, since it is the first time in the occidental world, according to CABALLERO, that in Criminal Law itself, the user is not criminalized because of illicit possession of drugs. It must be emphasized that the Spanish Parliament had the courage, in the name of individual freedom and protection of the drug addict, not to follow the repressive trend observed throughout the scope of the world by the parties to the Conventions. Nevertheless immunity of the consumer must be clarified. On the one hand it resulted in an extensive doctrine by Spanish tribunals defining the trafficker. On the other hand, possession for personal consumption and public use of narcotics have been punished by an administrative fee since 1992.
First of all, the notion of trafficker is widely defined. The Spanish Law distinguishes between three types of drug possessors : the consumer, the trafficker possessor of « notably important amounts of drugs » (article 344 bis, a.3) and the trafficker who only possesses small quantities. The trafficker possessor of « notablyimportant amounts of drugs » is more heavily condemned than the two other ones : it is an aggravating circumstance. The issue whether an offender is a simple trafficker, an important one or a single consumer, is left to the appreciation of courts. Tribunals will have then to proceed to a « meticulous analysis of each case ». This principle has given birth to several - sometimes contradictory - decisions. On December 28th , 1987, the Supreme Tribunal decided that the detention of 320 grams of hashish was not a sufficient amount in order to consider that the traffic was not important while the same Supreme Tribunal decided on December 9th , 1984 that 90 grams was a sufficient amount with this respect. Broadly, it seems that when an amount of 1.000 grams of hashish is possessed, the aggravating circumstance of the delict is proven. In order to differentiate between a consumer and a trafficker, the Tribunal looks into several elements such as : a larger than usual amount of drugs, whether the possessor is an addict or not, the place where the drug is found, the financial ability of the possessor, … For example, the existence of a precision balance and of a few plastic bags proved the commercial goal of the possessor. On top of all this, the detention of 0,940 grams of cocaine and of 0,015 grams of heroine were considered sufficient for a user to be a trafficker. In fact, the Supreme Tribunal estimated that « possession, in order to qualify as aggravating circumstance, had to be that of someone who intends to distribute drugs”. In that particular case, the court was dealing with the following circumstance: the possessor was an addict and his neighbors were complaining about addicts, gathering in the residence of the offender.
As far as the administrative sanction is concerned, it should also be noted that an administrative law of 1967 prohibited the use of drugs even though its breach was not sanctioned. As a conclusion, it should be noted that even after the law 1/1992 of 21st December 1992 (« law of citizen security »), the drug consumer was not criminally penalized for the use or purchase of drugs, or even for the possession,… . At this stage of our study we can see that the Spanish State is not complying with its international obligations with that respect, if we consider that the Single Convention requires to take every administrative and legal measures to prohibit any non medical and scientific use of drugs, in the more stringent interpretation, and if we consider that the 1988 Convention requires State Parties to criminalize the possession of drugs for personal use.
As we know, the Spanish Criminal Code differentiates, since 1983, between « hard » and « soft » drugs, i.e. drugs « that cause a great damage to health » and the others. The Supreme Tribunal declared several times that hashish, the resin of cannabis, was not a drug that causes great damages to health. The Tribunal considered that hashish was the « prototype » of a soft drug and that « by its very nature, it does not cause great damage to health ». On the contrary, the Supreme Tribunal decided that cocaine and heroine were causing great damages to health and were « hard » drugs. It is quite surprising that in order to define cocaine as a hard drug, the Supreme Tribunal referred to the Schedules of the Single Convention, as we know that cannabis resin is classified in the « hardest » Schedule (Schedule IV), with the heroine, and that cocaine is in Schedule I but not in the Schedule IV where only the drugs with « particularly dangerous properties » are listed…
The Supreme Tribunal also made a distinction among cannabis products : « in the glandular hair of the plant, where there are the products containing resin, concentration in tetrahidrocannabinol varies between 5 and 12 %, while the flowers and the leaves of this plant, this rate falls down to 4 to 8 % for the first and to 0.4 to 4 % for the latter ; we will have to take this difference into account in order to determinae the specific aggravating circumstance whether one deals withs hashish, that is prepared with the resinous parts of the plant, or « griffa » or marihuana that is made with the leaves and flowers ». Furthermore, the same decision restates the distinction between « oil of hashish », « 4 or 5 times richer than the hashish », according to the Tribunal, and the « resin of hashish »… We can wonder whether the Supreme Tribunal will still consider cannabis, the rate in THC of which is higher than 12 % as a « soft drug ».
Nevertheless, it is encouraging to see that the Supreme Tribunal of a country does take time to seek to understand the contents of a psychoactive agent in a narcotic product, before considering its legal status. Furthermore, we can criticize the distinction made « in abstracto » between different types of uncontrolled narcotics, as we know that THC rates varies from one origin to another, from one agronomical manipulation to another. In conclusion we can state that the distinction between hard and soft narcotics, between cocaine/heroine and cannabis, is illegal regarding the schedules of the Single Convention and regarding to article 2.5 of the Single Convention.
This double violation of the contents of the Single Convention and of the 1988 Convention are critical. The difference between soft and hard drugs is « at the first sight » contrary to the International Conventions that do no make that specific difference between narcotics. The most astonishing element is that the Supreme Tribunal justifies its distinction on the Single Convention in order to consider cocaine more dangerous than cannabis. Where the contrary is stated in the former Convention. Who is right ?
We have seen that several laws has been adopted in order to comply with the Narcotics Treaties. These are the administrative law of 1967 and the criminal law of 1992. The preambles of these laws clearly explain that the reforms are following the Single Convention and the 1988 Convention. As far as the prohibition of the use of narcotics is concerned, we must recall article 3.2 of the 1988 Convention that states that « 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 Spanish Law of 1992 did not modify the Criminal Code in that way. In the preamble of this law it is never said that it is necessary to criminalize the use of narcotics. May we consider that the administrative fee of public use and of possession responds to the « criminal offence » criteria asked by the 1988 Convention ? The answer is negative. In fact, if the Hague Convention of 1912 requires States to « punish » the use of narcotics (article 20), the 1988 Convention goes further and reinforce the wordings of article 36 of the Single Convention for the criminalization of the illicit drug trafficking. In the light of the preparatory works of the Single Convention and of the commentary made by the UN Secretary-General, it is clear that the Narcotic Treaties aim at criminalizing behaviors and not at applying administrative sanctions.
It seems that rather then bringing the Spanish Law in compliance with the 1988 Convention, the administrative sanction of the law 1/92 of citizen security seeks to find a compromise in a question of internal politics. In fact, there is a controversy between a conservative tendency and a very influent reformist tendency requiring the legalization of all drugs and the denunciation of the Narcotic Treaties. The administrative sanction of the use of drugs does not meet the requirement of article 3.2 of the 1988 Convention, but the Spanish State did not care. I can see two reasons for this « breach » : the importance of constitutional rights in the Spanish constitution and the attachment to the national sovereignty.
First of all, the young democratic Spanish State is not a sheep and constitutional rights is of the highest interest in Spanish politics. It would have probably been impossible to infringe individual freedom in the post-franquist Spain, fiercely worried about this newly conquered rights. Individual freedom is embodied in article 1.1 of the 1978 Constitution : « Spain is a social and democratic State under the rule of law, that promotes as superior values of the judicial order, freedom, Justice, equality and political pluralism ». Even if these are rather vague goals that are to be sought by the parliament, rather than norms with a determinate content the position of this provision as first article of the Constitution is very significant. After the dictatorship of Franco, the criminal repression must respond to very strict criteria to be legitimate : Criminal Law is seen as the ultimate way to solve a social problem, and is only authorized if other means of action do not provide for an efficient solution (keeping in mind the pursued goal, i.e. public order or public health in the case of narcotics). Moreover, Spain is a « Social State », and the Constitution in article 43 requires public services to organize and to promote the public health with preventive measures and to permit adequate use of leisure. The constitution foresees explicitly preventive action as a means to protect public health and one can thus better understand the opposition to criminalize the use of drugs, seen as a way to enjoy leisure time.
Secondly we have to recall the importance of national sovereignty in the Spanish Constitution as article 1.2 states that : « national sovereignty is in the Spanish people, from which come the powers of the State ». If Spain is a party to all drug conventions, these are considered as merely of administrative norms if not composed by « general declarations » for the penal dispositions. The constitution of 1978 rules the place of treaties in Spanish Law in its articles 93 to 96. Treaties are lesser important norms than the Constitution and must respect the constitutional rights : article 9.5 states that « the ratification –celebration- of an international treaty that contains dispositions that infringe the constitution requires the previous revision of the Constitution ». On the other hand, normative dispositions of treaties are equal to laws of the Spanish Parliament. The question is then : what happens if a treaty is contrary to a law ? First of all, the treaty must have been adopted by the Spanish Parliament in the form of law (which is the case for all the Drug conventions). Then article 96.1 of the constitution provides that once published in Spain, it will be part of Spanish Law and that the provisions will only be changed, infringed or suspended in respect of what the treaty or International law authorizes. This mean that the Treaty is a « higher » source of law than the Spanish Law. So it is very mysterious that Spain did not changed its Criminal Code after the 1988 Convention that asked the criminalization of drugs for the possession of narcotics by users…
All this could mean that Spain applied the « constitutional principle exception » as foreseen in article 3.2 of the 1988 Convention consciously or unconsciously. The same explanation may justify the distinction between drugs and the earlier mentioned contradiction with the Single Convention. In this case the treaty does not state that national constitutional rights may grant a ground for an exception to its dispositions. It is then in application of its own internal law and in virtue of the superiority of its Constitution on the Single Convention that the latter is not respected until now…
It is as it would be a « double exception of constitutional rights ». On the one hand the one mentioned in the 1988 Convention and on other one mentioned in the Municipal Law of a state (Spain) that for reasons of internal politics and of constitutional rights, or in other words for reasons of national sovereignty, decided not to comply the Narcotics Treaties, and keeps doing so.
“Yet party spirit, however pernicious or absurd, is a principle of union as well of dissension. The bishops, from eighteen hundred pulpits, inculcated the duty of passive obedience to a lawful and orthodox sovereign; their frequent assemblies and perpetual correspondence maintained the communion of distant churches; and the benevolent temper of the Gospel was strengthened, though confined, by the spiritual alliance of the catholics.”
Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., p. 623.
In a book on international law SCHACHTER wrote: “When I first met Mr La Guardia on business in his office, his first question to me was: “Sonny”, he said (this was a long time ago) “are you a hot lawyer or a cold lawyer ?” I looked at him rather blankly, and he said, “Well, if you are hot lawyer, I am going to get myself a cold lawyer; and if you are a cold lawyer, I am going to get myself a hot lawyer”. This rather dumbfounded me, and I said, “Does this mean I am through ?” He said, “No, you are not through. But I need both of you. I need a hot lawyer to tell me that I can do what I want to do, and I need a cold lawyer to tell me I cannot do What I don’t want to do”. According to LA GUARDIA everything could be argued in law. I do not agree. It is not the point to try by all means to find a “legalization suitable” interpretation of the Narcotics treaties. We have seen in chapter one and two that the treaties can be interpreted. It is only a matter of application of general international law.
On the top of this I believe that the treaties must be interpreted. The rule of law is endangered by forty years of increasing repression. The human rights are in danger. The voice of human rights have entered United Nations Bodies through the Human Rights Committee on behalf of Human Rights Watch. At the Session of the Narcotics Commission of March 1998 the Finnish Delegate also complained about possible infringement of human rights. It is a good step in the right direction. The states and the NGO’s must be encouraged to do so. In the meantime some states are changing their policy, they can do it in compliance with the Narcotics Treaties, and must continue to interpret the Narcotics Conventions in that progressive sense.