CEU Electronic Theses and Dissertations, 2023
| Author | DeCloedt, Matthew Paul-André |
|---|---|
| Title | Cannabis Constitutionalism: Caveats, Courts, Commerce, and the Future of the International Drug Control System |
| Summary | The safeguard clauses, or constitutional caveats, in the nearly universally ratified international drug control treaties – the Single Convention 1961, Convention on Psychotropic Substances 1971, and Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 – permit states parties to depart from the strictures of the agreements where their provisions conflict with the architecture and features of the domestic constitutional order. Apex courts in the United States of America, Canada, Colombia, Mexico, Argentina, South Africa, and Georgia, for example, have determined that human rights and fundamental freedoms protections are part and parcel of the constitutional order. Rights to liberty, privacy, and autonomy, among others, have warranted judicial intervention in these jurisdictions and legislation criminalizing the possession of cannabis for personal consumption has been struck down and/or sent back to the legislature for amendment as a result. Liberal courts have been a key tool in minimizing the adverse impact of the War on Drugs on illicit consumers, but they are limited by the separation of powers and judicial politics and unlikely to remedy the international drug control system’s (IDCS) structural defects. Courts in the United Kingdom, Germany, and Austria, among others, deny the nexus between drug consumption and rights and freedoms, a point of view consistent with the object and purpose of the drug control conventions. This thesis puts the IDCS and panoply of drug control-related judicial decisions into historical and political context and engages with the international and domestic law and policy implications of challenges to the regime. Cannabis legalization has been framed in the language of rights and freedoms by litigants and advocates, creating a politics conducive to regulated markets in several jurisdictions in direct contravention of the drug control regime’s obligation to limit the use of drugs to medical and scientific purposes alone. The dynamics of licit and illicit drugs markets and consumption are key drivers of drug law and policy reform, which are in turn deeply entangled with rights and freedoms concerns. As such, it is necessary to examine whether the IDCS can cope with the crafting of extensive constitutional exemptions from generally applicable drug control laws, psychedelic medicine, religious liberty, and the rise of “legal weed.” Drawing on international law, national case law, comparative constitutional scholarship, and a country case study approach focused on innovative and conservative judicial decisions and policies, it argues that the purported flexibility of the IDCS cannot accommodate cannabis constitutionalism – i.e., law and policy reform undertaken in the name of rights and freedoms but exacted on behalf of privileged consumers vis-à-vis their preferred controlled substances, leaving out-groups and the drugs they consume subject to the punitive measures constituting the standard response to drug use – without leaving the international system in a state of fragmentation and undermining domestic constitutional commitments to the equal fulfilment of rights and freedoms. The ramifications of the failure to treat drug users equally were laid bare during the Covid-19 pandemic, when the bio- and necropolitics of drug control were on full display and differential treatment based on race, class, caste, and gender conditioned life and death for consumers. While cannabis users in several jurisdictions enjoyed their controlled substance of choice unbothered by the authorities those taking opioids suffered as supplies became adulterated and overdoses skyrocketed to record levels, revealing the double-standards and hypocrisy animating self-interested contemporary drug control reform efforts. While the IDCS’s dissolution may not imminent its coherence is in serious jeopardy because of the reforms taking place in a growing number of states dissatisfied with the status quo of strict control, prohibition, suppression, and criminalization, which has failed to create a world free of illicit drugs, inadequately provided essential medicines to the sick, and served to justify the securitization of drug enforcement and carceralization of drug users around the globe. If the IDCS is to survive into the middle of the twenty-first century, the international community must reckon with its rights and freedoms problem. |
| Supervisor | Buxton, Julia |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2023/decloedt_matthew.pdf |
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