INCB Annual Report – Treaty obligations applicable in the entire territory of a State party

Treaty obligations applicable in the entire territory of a State party

277. During the last few decades, the majority of States parties to the international drug control treaties have applied adequate control measures, as required under the treaties, to ensure that narcotic drugs and psychotropic substances are used only for medical and scientific purposes.

278. Despite the almost universal application of the international drug control treaties, the Board has noted with concern that a number of States parties to the treaties have been turning to and persisting in the implementation of national policies that are not in line with the treaties. In particular, the Board has noted that a number of States parties have permitted the use of “safer crack kits”, the “medical” use of cannabis, “coffee shops” and the establishment and operation of so-called “drug injection rooms”, which contravene the international drug control treaties.

279. In response to the Board’s repeated warnings that those measures promote social and legal tolerance of drug abuse and drug trafficking and run counter to the provisions of the international drug control treaties, those States parties continue to argue that their domestic legal systems prevent them from fully complying with the treaties, as their state and/or provincial legislative and judicial structures and competencies are independent and prevail over their national or federal legislation and jurisdiction.

280. The Board is aware that current international law recognizes the various national legal traditions and systems. The Board also acknowledges that all States parties to the international drug control treaties follow differing legal systems and apply legal traditions in which, in some instances, the relationship between state or provincial and national or federal legislative, judiciary and jurisdictional issues is highly complex, sensitive and even controversial.

281. In this connection, the Board wishes to stress the basic principles of international law enshrined in the provisions of articles 26 (on the obligation of parties to fulfil their treaty-based obligations in good faith) and 27 (on the primacy of international law over national legislation) of the Vienna Convention on the Law of Treaties,39 as well as the international drug control treaties.

282. Moreover, the 1961 Convention and that Convention as amended by the 1972 Protocol sets very strict and unavoidable control measures for cannabis, limiting its use to medical and scientific purposes by defining it as a drug under the terms of article 1 (Definitions) and including it in Schedule I. Besides those general provisions, specific obligations are set for parties on the control of cannabis (in article 28) and penal provisions (in article 36). The 1988 Convention goes much further into the detailed penal provisions related to the illicit traffic in narcotic drugs and psychotropic substances (in article 3) and with a nonderogation clause (in article 25), solves all possible arguments on any perceived contradiction vis-à-vis the other international drug control treaties.

283. The Board recognizes the fact that certain state, regional and/or provincial powers, jurisdictions and delegated competencies are expressly granted and guaranteed in the constitutional frameworks of some States parties. Legislation and policies adopted by provinces or federated states are enacted in concordance with the constitution of the State party. Acceding to the international drug control treaties should result in States parties adopting national strategies and measures that ensure their full compliance with the treaties. Those treaty obligations are applicable in the entire territory of each State party, including its federated states and/or provinces.

284. According to internationally accepted law and practice, as well as the international obligations of all parties to the international drug control treaties, state and/or provincial legislative and/or judicial measures and actions should be in compliance with each State’s policies and obligations at the international level. If a State, irrespective of its constitutional framework and legal system, enters into an international agreement by acceding to the international drug control treaties, that State must ensure that all state and/or provincial policies and measures do not undermine its efforts to combat drug abuse and trafficking in narcotic drugs, psychotropic substances and precursor chemicals.

285. The Board wishes to emphasize that the structure of all States parties (whether federal, state, regional or provincial) should contain, develop and continually evaluate a comprehensive system of intergovernmental coordination procedures in order to ensure that drug control laws and policies are nationally consistent.

286. The Board reiterates that article 4 of the 1961 Convention and that Convention as amended by the 1972 Protocol obligates States parties to “limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”, while article 35 of that Convention obliges States parties to “make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic” in drugs.

39 United Nations, Treaty Series, vol. 1155, No. 18232.

Chapter 4 in the report, Recommendations to Governments, the United Nations and other relevant international and regional organizations, is of great interest.