International Drug Law Treaties: Shaping Domestic Drug Prohibition

Australian states and territories each have their own drug laws – and the Commonwealth Criminal Code provides a national framework for regulating drug trafficking and other drug crimes committed across borders.

But did you know that our local laws – and the drug laws of many other countries around the world – are shaped by international treaties and conventions?

While these treaties are not technically law in Australia, they have had a major influence on laws enacted by our Federal governments.

What Drug Treaties is Australia a Signatory To?

There are three key United Nations treaties which relate to drugs – and Australia is a signatory to all of them. These are:

1. The Single Convention on Narcotic Drugs 1961;

2. The Convention on Psychotropic Substances 1971;

3. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.

The Single Convention on Narcotic Drugs

Beginning in 1961 with the passage of the Single Convention on Narcotic Drugs, the United Nations sought to play a role in the development of international drug laws.

The Single Convention was developed in response to the wide range of new drugs which had come onto the market since the passage of previous treaties, which only regulated commonly known drugs such as morphine, cocaine and heroin.

The Single Convention expanded international drug laws to include cannabis and newly-developed drugs.

The main provision of the Single Convention is Article 36, which requires signatories to enact laws against various drug-related activities, such as cultivation, sale, possession, distribution, importation and exportation, as well as:

‘intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article.’

The Single Convention was one of the first attempts to ensure uniformity in drug laws around the world, and signatories were required to pass laws in accordance with its provisions.

It has had a major impact on the development of drug laws worldwide; with many countries passing new or updated drug legislation after signing the Convention.

Perhaps most importantly, it was the first piece of international law to prohibit the use of cannabis.

The Convention on Psychotropic Substances 1971

The next important instrument was The Convention on Psychotropic Substances which was drafted in 1971.

Again, this was developed in response to the growing use of drugs such as MDMA, LSD and other newly-discovered hallucinogens and the drugs contained in plants such as psilocybin mushrooms.

Like the Single Convention, the Convention of Psychotropic Substances was passed at a time when governments around the world were becoming concerned at the widespread use of hallucinogens – and actively spreading fear that drugs could cause health risks and an increased propensity to engage in ‘anti-social’ conduct.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988

Passed in 1988, The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was the final major piece of international drug law.

This represented yet another attempt to crack down on the use of drugs as the ‘War on Drugs’ waged on – a fact that is noted in the Preamble to the Convention, which discusses the unsuccessful attempts of previous conventions to prevent drug use, and the increase in drug usage and trafficking around the world.

This Convention went a step further than previous conventions, by requiring signatories to enact laws aimed at preventing organised drug crime and confiscating the proceeds of drug-related activities.

It also required signatories to control drug precursors. Significantly, Article 3 states that signatories must take steps to criminalise drug possession, drug purchase and drug cultivation for personal consumption, subject to its constitutional principles and the basic concepts of its legal system.

Do International Laws Pose a Roadblock to Drug Law Reform?

It is possible that our international obligations could hinder moves to decriminalise or legalise certain drugs in the future.

On one interpretation, Article 36 of the Single Convention does not require signatory nations to criminalise drug related activities – but simply requires them to impose adequate punishments for ‘serious offences.’

Furthermore, each Article of the Single Convention contains a caveat to the effect that, if a signatory state’s Constitution conflicts with the provisions of the Convention, the nation’s Constitution would take precedence and the conflicting provisions would not apply.

And in Australia, it is the Federal government which is a signatory to these conventions, rather than state governments. Although most state law generally follows Federal ones, this state governments can still enact laws which conflict with the Convention. The majority of minor drug matters – such as drug possession and supply – are indeed regulated by state laws.

At any rate, it seems that the United Nations may one day repeal its instruments – with the European Parliament recommending that The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances be done away with, citing the failed war on drugs as evidence that prohibition simply does not work.

However, repealing the Convention may be procedurally difficult because it does not contain a termination clause – meaning that it might need to remain in force until all signatories formally withdraw.