11.2. Increasingly, there have been calls for these international standards to be amended to take account of the wealth of scientific evidence on the benefits of cannabis. H.E. Mogens Lykketoft, the then President of UNGASS, in his opening address, lamented the current unfortunate situation where medical “cannabis laws defy the current conventions.” Several countries have now breached the provisions of the Conventions and these instruments can no longer be seen as authoritative, given that international law is based on the consensus of states. The UN Global Commission acknowledged that this consensus “has fractured” and the treaty framework can be seen to be in transition. More and more states are viewing the core punitive elements of the drug treaties as inflexible, counterproductive and in urgent need of reform. It warned that the drug treaty system risks becoming “even more ineffectual and redundant, [and]. . .the integrity of that very system is not served in the long run by dogmatic adherence to an outdated and dysfunctional normative framework222 11.3. Many countries have decided not to wait on treaty reform. Some states challenge the interpretation of the Convention, arguing that usage of marijuana, as opposed to other activities, such as sale, trafficking etc. is not prohibited. For example, The Netherlands argues that "[t]he use of drugs is not an offence under international agreements. Nor is it an offence in Germany, Italy, Denmark or, indeed, most countries of the European Union. The Government sees itself in compliance with the UN Conventions of 1961, 1971 and 1988 . . . The policy is based on the "principle of expediency", whereby authorities are given "discretion to decide, on the grounds of the public interest, not to bring criminal action in a given case." 223 11.4. The distinction between usage and trade has been exploited by several countries to bring about reforms consistent with treaty requirements. Notably, UNGASS also permits flexibility or a margin of appreciation given to a state to determine how best to deal with drug problems. A comprehensive public health program will suffice.
Challenging the International Regime on Human Rights Grounds
11.5. The Conventions contain provisos that allow a state to proceed differently on constitutional grounds, invoking considerations of human rights. This is an established principle in international law which places treaty requirements as subordinate to fundamental human rights which are inalienable. As explained above, several human rights considerations are brought into play in the issue concerning cannabis as an unlawful substance. 11.6. As discussed above, the human rights argument on the use of cannabis has previously failed in Caribbean courts, because of the technical restriction of the savings law clause (Forsyth), which preserved existing law from challenge, the reasonable justification requirement and in one case, in the early years, the failure of the court to accept that Rastafarianism is a religion. Notwithstanding, the results in the particular cases before domestic courts do not preclude Member States from raising human rights objections to the Conventions on this ground. 11.7. First it is now evident that current jurisprudence in the region recognises the general principle of human rights as a limitation to treaty requirements. For example, the landmark case of Myrie (CCJ)224 supports an interpretation of the Convention as entrenching a human rights approach. “(10) . . . It should be noted, however, that the Court is an international court authorised to apply “such rules of international law as may be applicable” of which human rights law is an inextricable part. It stands to reason therefore that, in the resolution of a claim properly brought in its original jurisdiction, the Court can and must take into account principles of international human rights law when seeking to shape and develop relevant Community law.” ‘War on Drugs, REPORT OF THE GLOBAL COMMISSION ON DRUG POLICY’ JUNE 2011 ‘The Government therefore gives “high priority” to suppressing the sale of hard drugs and trafficking of large quantities of drugs, hard and soft, while “low priority is given to curbing the sale and possession of soft drugs” for personal use. In this context "soft drugs" refer to cannabis and its derivatives. A Guide to Dutch Policy,’ Foreign Information Division of The Netherlands Ministry of Foreign Affairs, in cooperation with the Ministries of Health, Welfare and Sport, Justice, and Interior and Kingdom Relations, Government of The Netherlands, 2000, p. 6. 224 Shanique Myrie v State of Barbados [2013] CCJ 3 (OJ), at para 10. However, the Court has no jurisdiction to adjudicate violations of international human rights treaties and conventions. Those instruments generally provide for their own dispute resolution mechanism which must be the port of call for an aggrieved person who alleges a breach of those treaties.” 222 223
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