Cannabis Research and International Law, A Thesis. by Jon Gettman (This article was written to clarify some ideas expressed in earlier correspondence with Mario Lap.) Summary: International treaties requiring cannabis prohibition are based on outdated scientific findings which lack modern day validity. An effort is underway in the U.S. to utilize legal and administrative procedures to bring about an official review of this issue. Advocates of ending cannabis prohibition world-wide are invited to consider ways in which the research behind this effort may aid efforts by other countries to call for a review of the relevant international treaties. This article contains speculation about the impact of recent cannabis-related research on international treaties. This article presents a thesis, and in no way attempts to present these assertions as research-based analysis. In fact I am presenting this speculation to interested parties in hope that other people may be able to compile the relevant research to transform this speculation into a well-founded argument grounded in specific attributes of international law and treaty. The truth is, I don't know much about the international treaties that concern cannabis control and prohibition. I know a lot about United States law, policy, and regulation, and what I know about the treaties derives from that specific context. The way U.S. law is constructed, specific scientific findings are required to classify a drug as prohibited. Until 1989 - 1994 no one knew what the mechanism of action was that produced the characteristic effects of cannabis. It has been assumed throughout the 20th Century that cannabis affected the human brain in a manner somehow similar to opium and opiate derivatives, and in both domestic U.S. law and in International treaties this assumption has been the basis for similar controls on both cannabinoids and opiates. In the U.S. this is manifest in the schedule I status of both cannabis and heroin. Until this period, henceforth described as circa 1991, all law and policy about cannabis was based on a bet, on a wager that whenever science figured out how it worked, it would prove cannabis worked like heroin. Circa 1991 the discoveries, in fact, occurred, and it is now clear that they bet on the wrong theory. They bet on the wrong horse, and now they don't want to talk about it and hope that nobody finds out. They? Politicians, government officials, and legislators in democratic societies around the world who claim that prohibition is based on scientific findings, not some form of repressive malice. Obligations affecting the prohibition and regulation of cannabinoids related to two international treaties are codified in the U.S. Controlled Substances Act, 21 USC Chapter 13. These treaties are: the Single Convention on Narcotic Drugs, 1961 and Convention on Psychotropic Substances, 1971. The mechanism of action by which cannabinoids affect the human brain were discovered circa 1991. This mechanism of action categorically and definitively distinguishes cannabis from opiates, cocaine, and amphetamines. The latter list of drugs affects the neurotransmitter dopamine, and cannabinoids to not. See the following: 1) Cannabis produces effects by way of a receptor system . Howlett, A. "Pharmacology of Cannabinoid Receptors" The Annual Review of Pharmacology and Toxicology, 1995. (In press when copy received from author.) 2) The receptor system allows a characterization of the dependence liability of cannabis, and explains the fallacies of prior research hypotheses. Herkenham, M. (1992), "Cannabinoid Receptor Localization in Brain: Relationship to Motor and Reward Systems," P.W. Kalivas and H.H.Samson (eds.), The Neurobiology of Drug and Alcohol Addiction, Annals of the American Academy of Sciences. 654:19-32, 1992. (Incidentally, this characterization proves that patients who use marijuana therapeutically are not engaging in denial when they attest to medical benefits, and therefore patient anecdotes have increased scientific validity.) 3) The receptor system also allows for explanation of tolerance to cannabis, and provides evidence that tolerance and dependence to cannabis are mediated differently in the brain. Oviedo, A., Glowa, J, and Herkenham, M. (1993), "Chronic cannabinoid administration alters cannabinoid receptor binding in rat brain: a quantitative autoradiographic study." Brain Research, 616:293-302. 1993. My thesis, then, is fairly straightforward. How can treaties regulating cannabis that were signed in 1961 and 1971 be based on any valid scientific findings when the mechanism of action for cannabinoids wasn't discovered until circa 1991? U.S. law contains the following provision: "Nothing in the amendments made by the Psychotropic Substances Act of 1978 or the regulations or orders promulgated thereunder shall be construed to preclude requests by the Secretary of Health and Human Services or the Attorney General through the Secretary of State, pursuant to article 2 or other applicable provisions of the Convention, for review of scheduling decisions under such Convention, based on new or additional information." 21 USC 811 (d)(5) This provision refers to the U.S. legislation that was passed to bring the U.S. into compliance with the 1971 treaty. However this underscores a fundamental aspect of the relationship between U.S. law and our international treaty obligations. If there is a conflict between the two, U.S. law takes precedence and our government must take steps to change the treaty, whether it is the Single Convention or the Psychotropic treaty. There have been two significant legal actions to reschedule cannabis in the United States, by NORML, and by Carl Olsen. I have initiated a third. The process itself is relatively straightforward. A petition citing evidence is filed. If the evidence provides sufficient legal and/or scientific grounds for consideration, then the Drug Enforcement Administration must defer the petition to the Department of Health and Human Services for a scientific and medical evaluation. The findings of this evaluation are binding on DEA, which is not allowed to make such scientific and medical judgments in the absence of HHS findings. The scientific findings provided by HHS are then used to apply statute to obtain the appropriate level of regulation and control. (The failure of HHS to provide any findings on marijuana's accepted medical use in the United States was in part DEA's justification for refusing action on NORML's petition.) In legal papers filed in 1982 the DEA acknowledged that this review process by HHS could produce evidence which would require the U.S. government to seek a change in the international scheduling of cannabis. A 1977 ruling in NORML v. DEA by the U.S. Court of Appeals determined that because of international treaty obligations, cannabis must be placed in either schedule I or II of the U.S. Controlled Substances Act. However U.S., courts have not ruled on the validity of the treaties in a case where new evidence is submitted demonstrating the treaties are based on invalid scientific assertions. The petition I filed in July, 1995 seeks the removal of all cannabinoids from schedules I and II of the CSA because they do not possess the high potential for abuse required for placement in those schedules under U.S. law (see 21 USC 811(c) and 21 USC 812(b)(1)). The petition seeks only seeks the removal of cannabinoids from those two schedules, and requests that the government appropriately schedule cannabinoids based on the medical and scientific findings of the Department of Health and Human Services. In the U.S., this entire process is subject to review by both an independent administrative law judge and the appeals branch of the judiciary. The petition was accepted for filing by the Drug Enforcement Administration on July 27, 1995. Because the petition raises an issue already decided by a U.S. court, it could (as Carl Olsen earlier and shrewdly observed) easily have been dismissed under the doctrine of res judicata, meaning (but not correctly translated) this was already decided. However the petition raises a new issue, which is what happens if the treaties are not based on valid science? Ending prohibition, in a technical sense, has always been complicated by the treaties. The U.S. government argues that the treaties prevent them from ending prohibition. And with apologies for the blatant arrogance of this next remark, the whole world knows that the treaties will not be changed unless the U.S. government agrees. In this specific case, it will be difficult for the U.S. Government to ignore the scientific validity of the cannabinoid receptor research. The petition for repeal is based on evidence from over 150 scientific journal articles and government reports. However the three articles cited above are not only representative, but are in fact written by scientists with reputations of the absolute highest caliber. Dr. Miles Herkenham, key author of two of the three studies cited above, is the chief of the neuroanatomy section of the U.S. National Institute of Mental Health (NIMH). It is my argument within the United States that in light of these revolutionary research findings we have obligations under both U.S. and international law to reassess the domestic and international legal status of cannabis. My thesis is based on components of U.S. law, and this is all I require for legal action within the United States. It is my intention to get the US to address the issue of international scheduling in light of the recent scientific advances. Perhaps the scientific findings supporting the petition for repeal can support efforts by citizens of other countries to have their governments seek the appropriate changes to international treaties on cannabis. International treaties regarding cannabis prohibition are based on invalid scientific findings that have been completely rejected by modern day science. How can any sovereign, democratic country justify adherence to treaty provisions based on science which is so out of date? Certainly, these treaties provisions must be changed. How individuals around the world can bring this issue to the attention of their governments is a question that deserves, I suggest, wide consideration. Author's note: The complete text of the petition for repeal referred to above will soon be available at the web site of the National Organization for the Reform of Marijuana Laws, http://www.norml.org/.