TNI briefing for the 2003 UNGASS mid-term review

March 2003

The backbone of the United Nations drug control system consists of three UN Drug Conventions. The prohibition of potentially harmful substances has its origin in the desire to protect human well-being. However, the way in which the global regime was set up decades ago and the escalation of repression it has brought about since, has been an historical mistake increasing rather than diminishing the problems.  There is no point now in dreaming about how the world might have looked without it, or deluding ourselves that all the problems could be solved by scrapping the conventions. The challenge is to create the political space which would allow a reform process to move ahead. A process guided by pragmatism, open-mindedness and evaluation of practices on the basis of costs and benefits; providing leeway for experimentation and freedom to challenge the wisdom of the existing conventions.

The three United Nations drug control conventions are the codification of a prohibitionist view on drugs. This being the result of an ideology based upon a crusade against recreational use of drugs. For a thorough overview of their background and the negotiations about them, see The History and Development of the Leading International Drug Control Conventions, a paper prepared for the Canadian Special Senate Committee on Illegal Drugs. 

The Single Convention on Narcotic Drugs of 1961 was set up as a universal system (replacing the various treaties signed until then) to control the cultivation, production, manufacture, export, import, distribution of, trade in, use and possession of narcotic substances, paying special attention to those that are plant-based: opium/heroin, coca/cocaine and cannabis. More than a hundred substances are listed in the four schedules of the convention, placing them under varying degrees of control.

The Convention on Psychotropic Substances of 1971, in response to the diversification of drugs of abuse, introduces controls over the licit use of more than a hundred-largely synthetic- psychotropic drugs, like amphetamines, LSD, ecstasy, valium, etcetera, again divided over four schedules. An important purpose of the first two treaties is to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes, while preventing their diversion into illicit channels. The World Health Organisation (WHO) is responsible for the medical and scientific assessment of all psychoactive substances and to advise the Commission on Narcotic Drugs (CND) about their classification into one of the schedules of the 1961 or 1971 treaties.

In response to the increasing problem of drug abuse and trafficking during the 1970s and 1980s, the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 provides for comprehensive measures against drug trafficking. These include provisions against money laundering and the diversion of precursor chemicals, and agreements on mutual legal assistance. The International Narcotics Control Board (INCB) is the quasi-judicial control organ for the implementation of all three United Nations drug conventions. The board consists of thirteen members, three elected from a list of candidates nominated by WHO and ten from a list nominated by Governments.

The 1988 Convention was also an attempt to reach a political balance between consumer and producer countries. It was not only the duty of producing countries to suppress illicit supply, but also that of consumer countries to reduce the demand for drugs. At the time illicit cultivation and production was mainly concentrated in the developing countries of Asia and South America, and consumption in the industrialised countries of Europe and North America. Nowadays this distinction is greatly decreased. The boom of amphetamine-type stimulants (ATS) like ecstasy has led to major production in the North (as well as the South), while cannabis cultivation on an industrial scale is common in the North (for instance in Canada, The Netherlands and the US). Consumption has also become a global issue. Today most heroin addicts are to be found in Asian countrieslike Pakistan, Iran, India and possibly China – and Brazil has become the second largest cocaine-consumer after the US.

The Limits of Latitude: Consumption

The UN Drug Conventions are not self-executing. The implementation of the provisions in the Conventions is left to the parties themselves. This leaves room for interpretation, allowing countries to develop a differentiated national drug policy. However, this latitude is not unlimited. In general, the Conventions require loyal enforcement by the parties. Two useful recent studies are available that explore the Room for Manoeuvre [PDF document] (the 2000 DrugScope study of which an executive summary is available online) and the possibilities of formal revision of the treaties (see the 2002 study by the Ghent university: Multidisciplinary Drug Policies and the UN Drug Treaties).

There is no formal obligation to criminalise the personal use of drugs within any of the UN Conventions. Obviously it is impossible to consume drugs without prior cultivation or purchase. In order to use, one has to be able to supply oneself and possess. On all preceding acts prior to consumption the treaties -especially the 1988 Convention- are much stricter. Articles 2 and 4 of the 1961 Single Convention already could be read as a requirement to prohibit production, trade, possession and including use of drugs, but such a requirement is not spelled out. The prohibition is only required from a signatory state "if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare" (Article 2, paragraph 5b). States are thus not obliged to establish sanctions or punishments, criminal or otherwise, under the 1961 Convention. 

The 1988 Convention tightens the control regime significantly, though one loophole remains on the consumption side. Article 3 clearly distinguishes between "production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation" in paragraph 1; and "the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption" in paragraph 2. Paragraph 1 has an absolute mandatory character, since it states that a signatory party shall "establish as criminal offences under its domestic law" the acts mentioned in that paragraph. However, the requirement for a party to criminalise the acts under paragraph 2 is "[s]ubject to its constitutional principles and the basic concepts of its legal system". This loophole leaves countries a range of possibilities to differentiate their reaction towards preparatory acts for personal consumption. 

The Conventions do not require parties to criminalise the consumption of drugs and leave them some room for creative interpretations regarding personal preparations for it. Still, the principle of limitation of drugs strictly to medical and scientific purposes, leaves little room for the legal possibility of recreational use. "Free and unrestricted availability of narcotic drugs to people for non-medical purposes is prohibited," according to the Commission on Narcotic Drugs. 

The Limits of Latitude: Cultivation

Since the 1988 Convention there is no room for manoeuvre for the production side. The 1961 Convention's "special provision applicable to cultivation" (article 22) still left the decision to criminalise or not in the hands of each individual country: "Whenever the prevailing conditions in the country or a territory of a Party render the prohibition of the cultivation of the opium poppy, the coca bush or the cannabis plant the most suitable measure, in its opinion, for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic, the Party concerned shall prohibit cultivation." Several conditions are specified, however, under which a country may permit the cultivation of opium poppy, coca leaf and cannabis. A special government agency has to be established to control the production and prevent diversion to illicit channels. The agency has to designate the areas where cultivation is permitted and only "cultivators licensed by the Agency shall be authorized to engage in such cultivation" and these "be required to deliver their total crops" to the agency. Any cultivation outside of such a regulated system is not permitted and should be destroyed. 

These possibilities end with the adoption of the 1988 Convention. The 1961 latitude was tied to an agreement to phase out opium consumption within 15 years time and coca within 25 years. That period was over by the time the 1988 Convention was negotiated. Its article 3, paragraph 1, specifically applies to the "cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention". Only measures related to cultivation for personal consumption can make use of the 1988 loophole mentioned above. Any other cultivation necessarily has to be treated as a criminal offence. This closure of latitude for the production side, is a major obstacle for initiatives to introduce pragmatic policies towards the sector of small illicit farmers. For example the proposal in debate in Colombian Congress to decriminalise small scale illicit cultivation or the Jamaican proposal to decriminalise cannabis including its cultivation. It also hinders attempts to find a legal rationale for allowing -in the context of Alternative Development programmes- more realistic gradual reduction schemes on a long term basis, in accordance with the slow pace of securing alternative livelihoods. 

An additional problem is posed by the fact that the three crops -opium poppy, coca bush and cannabis- are mentioned specifically in several articles of the 1961 convention. Therefore a re-scheduling to one of the lighter control schedules would open more room for manoeuvre on the consumption side, but not for cultivation. "Cannabis and cannabis resin" is even shortlisted in Schedule IV, reserved for drugs with "particularly dangerous properties" including heroin, while coca leaf, cocaine or opium all do not appear on the shortlist. There have been proposals for re-scheduling as an option to reform the control regime, especially to take the coca leaf off Schedule I and cannabis off Schedules I and IV. This would definitely open space for policy diversity and such steps would be scientifically backed by many studies, including some undertaken by the WHO. Still to create latitude for the cultivation side amendments of the articles in which they are mentioned would be necessary. 

Historical Mistake

Drug control has its origin in the desire to protect human well-being. The international community, concerned about the impact of drugs on public health, began to prohibit a series of substances and establish measures to suppress production, distribution and abuse. Ever since, the illicit drug economy has grown exponentially and the strategy for fighting it has escalated to full-scale war. It has led to extremes like military operations against small illicit farmers, chemical fumigations of drug-linked crops, mass imprisonment and even death penalties for drug law offenders in several countries.  The prohibition of illicit drugs also placed the market of this lucrative trade in the hands of criminal organisations. It created huge illegal funds fueling corruption and armed conflicts around the world. 

"We believe the global War on Drugs is now causing more harm than drug abuse itself" 500 prominent people concluded in a Public Letter to Kofi Annan. The way in which the global prohibition regime was set up so many decades ago was an historical mistake, increasing rather than diminishing the problems. The wisdom of the Conventions and the effectiveness of the resulting drug control policies are increasingly being questioned. Many think it is time for change and some common sense. The leading weekly magazine The Economist urged governments to go back to basic principles and "... a first priority is to look for measures that reduce the harm drugs do, both to users and to society at large". (See: Stumbling in the dark, The Economist, July 26th 2001). 

There is no point now in dreaming about how the world might have looked without drug prohibition, or deluding ourselves that all the problems could be solved simply by scrapping the conventions. In the design of a transition from today's failing system to a better functioning future set of policies, the many realities created by the prohibition regime have to be taken into account. Realistic steps have to made that can move the debate forward from where it is now towards a more just and effective policy, with greater allowance for regional and national specificities. The challenge is to create the political space which would allow a reform process to move ahead. A process guided by pragmatism, open-mindedness and evaluation of practices on the basis of costs and benefits; providing leeway for experimentation and freedom to challenge the wisdom of the existing conventions.

While outside the UN system many have come to the conclusion that it is impossible to erradicate drug use, within the UN system this point of view is not accepted. Even the member states who in their national drug policies have acknowledged the fact that drugs are here to stay – and consequently have based their policies on reducing the harm drug abuse causes to the individual user and society at large – do not challenge the hawks within the UN system who refuse to open the debate and are propagating a full scale war on drugs. For instance, the words ‘harm reduction’ are off limits at the UN level because they would displease the United States and Sweden, two major donors of UNDCP. The result is an impasse within the UN drug control debate, which is getting increasingly out of touch with the policy debates that are taking place outside. (See: Time for Breakthrough – Polarisation and Paralysis in Global Drug Policy) 

Conventions Reform on the Agenda

Until now, the UN Drug Conventions have been sacrosanct, blocking any attempt to move further along the path of pragmatic solutions. But the wisdom of the Conventions and the UN drug control system is being questioned more and more in policy circles. "If there is any single lesson from the experience of the last 30 years, it is that policies based wholly or mainly on enforcement are destined to fail," the House of Commons Home Affairs Select Committee in the United Kingdom concluded in the report The Governments Drugs Policy: Is It Working? – released in May 2002. The Committee also concluded that "... harm reduction rather than retribution should be the primary focus of policy towards users of illegal drugs." 

The Home Affairs Select Committee said that modifications in UK drug policy towards a more lenient approach "... could be implemented without breaching the treaties or requiring their renegotiation. In the long term, however, we believe the time has come for the international treaties to be reconsidered. We recommend that the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways -including the possibility of legalisation and regulation- to tackle the global drugs dilemma."

Especially cannabis policy is undergoing rapid changes. The United Kingdom earlier this year re-classified cannabis to a lighter control regime putting cannabis low on the list of law enforcement priorities. Switzerland is considering the introduction of new legislation that would fully decriminalise consumption, possession and purchase of cannabis and would install a licencing system for legal domestic cultivation. In Canada the Special Senate Committee on Illegal Drugs concluded after a two-year study that cannabis should be legalised. The Committee recommends the government "to inform the appropiate United Nations authorities that Canada is requesting an amendment to the conventions and treaties governing illegal drugs".

Options and Obstacles for Reform

The advances of more tolerant approaches adopted by a number of nations are increasingly running into the limits of latitude provided by the conventions. This was clearly argued once again in the latest report by the International Narcotics Control Board (INCB), the UN watchdog established to monitor compliance with the Conventions. (See: European Cannabis Policies Under Attack) Further progress will only be possible through either some sort of change in or defection from the global regime. Any such move would certainly encounter considerable hostility. As its staunchest defender, it is the United States that maintains the regime’s disciplinary framework. Pressure from Washington has long supplemented the moral legitimacy bestowed upon the doctrine of prohibition by the UN. The INCB judgements backed by United States diplomatic and financial pressures has made it impossible for nations to deviate significantly, or even to discuss deviation, from the basic doctrines of prohibition. This has produced a formidable source of inertia. (See: Habits of a Hegemon – The United States and the Future of the Global Drug Prohibition Regime)

Nations wishing to expand national policy space by operating beyond the confines of the conventions are faced with several possible paths. However, the possibility for parties to successfully modify the treaties is very limited. Many opportunities exist for nations that favour the status quo, particularly the US, to block any move for re-scheduling or amending. This may lead parties to seriously examine various options for denunciation and withdrawal. By simply ignoring the treaties, they could institute any policies deemed to be necessary at the national level, including for example the legalis ation of cannabis and the introduction of a licensing system for domestic producers.

This option has been gaining support amongst many supporters of harm reduction for some time. Disregarding the treaties, however, raises serious issues beyond the realms of drug control. The possibility of nations unilaterally ignoring drug control treaty commitments could threaten the stability of the entire UN treaty system. Moreover, any nation contemplating to step out of the international drug control harmony, could run into serious problems with Washington. Since the 1980s, the US has used certification as an important vehicle for economic persuasion to keep nations in line with international drug control policy. The annual process has also been strengthened by Washington's efforts to fuse its war on drugs with the transnational fight against organised crime. Such a move increases the reputational implications of deviation. Similarly, US moves to fuse the drug war with the new war on terror makes movement away from the prohibitive regime potentially damaging for a nation's international image.

A formal re-examination of the treaties could even provide prohibition-oriented nations with the opportunity to hijack proceedings and strengthen the current regime. A credible alliance of nations would be better able to withstand opposition than a lone state. That said, levels of resilience would certainly differ between nations, depending upon their economic status and relationship with the US. The abandonment of several multilateral treaties by the Bush II administration has also re-opened debate on the efficacy of simply ignoring the drug conventions. If faced with censure for defecting from the global prohibition regime, parties will now be able to argue that they are merely emulating the habits of a hegemon.

With the current polarisation and consensus-driven functioning of the CND, it is virtually unthinkable that any agreement could be reached even on the slightest tinkering with the conventions to facilitate more latitude for member states to re-define their own drug policies. Still, if the countries committed to the search for pragmatic solutions want to advance any further, it becomes urgent to earnestly and openly question the straitjacket of the conventions. The first step will have to be that like-minded countries become more assertive in defending their policy direction in the UN arena and express their desire to pursue on the path of pragmatism also if that would require adjustments in the global regime.