Intro - The International Drug Control Regime (IDCR)

The current global drug control system is based upon three international conventions, namely the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol; the 1971 Convention on Psychotropic Substances; and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. As of March 2016, 186 states were parties to the Single Convention and the number of member states signatory to the 1971 and 1988 are of currently 183 and 189, respectively. These drug control measures officially aim to reduce one or more of those five objectives:

• the number of consumers of a given substance;

• the proportion of consumers that develop an abuse disorder;

• the length of time that those habits are maintained;

• the damage done to drug consumers and others (both casual and problematic consumption);

• the damage created by both illicit trafficking and counter-law enforcement policies directed against the former.

The issue here is that these objectives often come into conflict with one-another. Indeed, under these treaties, two goals are above all, more specifically mentioned: to reduce the use and supply of illicit substances, and to ensure access to these substances for scientific and medical purposes. But as mentioned by Damon Barrett and Manfred Nowak (2009), in practice, “the overwhelming focus of the international drug control regime has been on law enforcement.” (1) As such, there is a clear tension between in one hand, security and governance objectives, and drug-abuse control objectives in the other. It would be argued then that theses laws and their enforcement theoretically intending to reduce the damages caused by drugs and drugs users to themselves and others, have created “harms and hazards of their own.” (Kleiman & al., 2011)

Indeed, often the warrior hell is paved with good and peaceful intentions. One very important thing that we will intend to develop in this thesis, is that currently, not only the conventions stand as a major obstacle to the possibility of pragmatic and scientifically grounded approaches to drug control, but so does the U.N. agency in charge of the application of the current drug control policies: the United Office on Drugs and Crime (UNODC) (2) and the others U.N. drug related institutions, namely the International Narcotic Control Board (INCB) and the Commission on Narcotic Drugs (CND). Because, “within the UN, drug control system procedures and politics are inextricably entwined” (Bewley-Taylor, 2003) possibilities of reform within are often killed even having even reached an official stance. The result as we will observe in further articles, is that parties wishing to expand their national policy space, may de facto, create parallel systems of drug control which come into conflict within the presently dominant one.

For some time now, observers of the regime have described the internationalization of crime and drug control, “as simply a natural and predictable response to the growth of transnational crime in an age of globalization.” (Andreas & Nadelmann, 2006) This is quite misleading, as explained by the authors, as it is most primally the result of “ambitious efforts by generations of western powers to export their own definitions of “crime,” not just for political and economic gain but also in an attempt to promote their own morals to other parts of the world.” (Ibid) Driven by moral entrepreneurs such as the U.S. and its allies, (Bewley-Taylor, 1999; Nadelmann, 1990), the current regime reflects the political, economic, and moral interests of these countries and those interests remain a driving force behind the refusal to even debate of treaty revision (Bewley-Taylor & Jelsma, 2012). The simple fact that some drugs such as alcohol, tobacco or caffeine have remained outside the scope of the current drug control regime, demonstrated the cultural bias and power relations within which the conventions were created (Andreas & Nadelmann, 2006).

As perfectly said by Abraham Maslow (1966) "It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” For this reason, and because of their tremendous impact, underlying ideologies and dated regulations, we intend to present the view of those treaties as necessarily flexible and reformable, thus potentially allowing drug policy changes on a global scale.

• The 1961 Single Convention on Narcotic Drugs as amended by the 1972 Protocol

The Single Convention, was named as such because it largely replaced the previous international agreements on drug control that started to emerge at the beginning of the twentieth century (McAllister, 2000; Bewley-Taylor, 2001). Accordingly nowadays, this denomination has lost its pertinency. Back then, the treaty nevertheless instituted a clear simplification of the international drug control functioning, notably with the creation of the INCB, (or also simply called “the Board”). In charge of overseeing the implementation of the drug control conventions (Fazey, 2003), the INCB powers were enlarged by the additional 1972 Protocol (protocol 5), “as it moved to strengthen the entire control system instituted by the 1961 legislation.” (Sinha, 2001)

Arguably, one of the most problematic issue with the Single Convention, considered by many as the “bedrock of the global drug control regime” (Bewley-Taylor, 2003), is the use of a “war-like” vocabulary, that has even since today, indelibility stained the rest of the IDCR. The use of word such as “evil” (3) to describe the very subject it is suppose to regulate, has notably allowed modern drug policies to overtrump human rights and human security states obligations (Lines, 2010, pp. 7-8).

The primary obligation of the treaty is laid out in its Article 4 which states that “parties shall take such legislative and administrative measures as may be necessary (…) to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”, without nonetheless specifying as to which measures countries are supposed and allowed to take. Designed “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” (OAS, 2009, p.51), the Single Convention has listed more than a hundred substances in four different schedules, with varying degree of control and which are still very much in effect today.

• The 1971 Convention on Psychotropic Substances

Officially drafted as a response to the diversification of illicit drug abuse, the 1971 Convention on Psychotropic Substances “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.” (OAS, 2009, p. 51) Perhaps one of the most important intended purpose of this convention was to codify applicable measure in order to internationally guarantee the availability of controlled substances for scientific and medical purposes, while, ambitiously, strengthening the mechanisms created to avoid their diversion for illicit purposes. The convention also declared the World Health Organization (WHO) responsible for the scientific and medical assessment of all controlled substances, as an adviser to the CND (4), in regard to their classification into either schedules of the 1961 and 1971 treaties.

• The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Officially signed in response to the “increasing problem of drug abuse and trafficking during the 1970s and 1980s” (OAS, 2009, p. 51), the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances principally focused on the criminal organizations that came to rise during that time and which were handling the trade and production of substances ultimately prohibited by the 1961 Single Convention. The treaty notably includes provisions for agreements on mutual legal assistance, and asset-seizure, as well as against money laundering and the diversion of chemical precursors used to process plant-based illicit drugs into synthetic substances (5).

An important issue of the 1998 Convention, is that although its preamble refers to the elimination of the “root causes” of drug abuse, nowhere in the treaty (nor in any of the two precedent ones for that matter), is there any “reference to (economic) poverty, discrimination or social exclusion, well known to act as push factors towards the drug trade and as significant risk factors for drug dependence and drug related harms.” (Barrett & Nowak, 2009) Instead all conventions focus on visible symptoms, such as use and supply, which - as mentioned by the precedent UNODC Executive Director Antonio Maria Costa - has notably created a “massive criminal market.” (ECOSOC, 2008)

Already in 1989, academic observers of the IDCR noted that, although it was true that the 1988 Convention did provide powerful legal means in order to counteract criminal organizations activities, everything would depend on the way the convention would be implemented. As such, “the insertion of safeguard clauses in many articles and the weakness of monitoring and supervisory mechanisms will allow recalcitrant parties to avoid their Convention obligations with relative impunity. Hence, the success of the Convention will be heavily de-pendent on the determination of states to co-operate in taking strong measures against drug trafficking.” (Sproule & St-Denis, 1989, p. 291) This observation is nowadays particularly pertinent, in regard to the numerous, alternative experimentation in drug control that are, since the beginning of the 2010’s, regularly popping up all over the world. In the absence of means of enforcement, and member states willing to strong-arm recalcitrant countries (such as the U.S. did for so many years), the 1988 convention find itself as toothless as an unborn child (or in this case, a very old lady).

Perhaps most importantly, the 1988 Trafficking Convention forced parties to “criminalise all aspects of illicit drug trafficking – cultivation, manufacture, distribution, sale, possession, money laundering, etc” (Jelsma, 2003) in order to "ensure that such illicit activities were dealt with as serious offences by each State’s judiciary and prosecutorial authorities” (UN Convention 1988a). In relation to this obligation, an important distinction is made between possession with intent to traffic and possession for personal consumption. According to Neil Boister (2001), a legal argument (6) could be made that the penal necessity lays down on trafficking and not on personal use, therefore an important doubt exist in regard to the necessity to criminalize illicit drug possession for personal use. Similarly, “even though the language in the 1988 Convention is more restrictive and might be regarded as reducing the flexibility of the earlier treaties” (TNI, 2012), it exists a potentially powerful legal case in regard to the Article 3, paragraph 2 of the 1988 Convention which can potentially leave some room for a non-punitive approach appreciation. The argument relies on the fact that this convention is principally concerned with trafficking (7), and in which demand is only marginally mentioned and dealt with (Elliott & al., 2002, p. 31 & 114; UNODC, 2008f, p. 206; UN Convention, 1988a, p. 83). Consequently, it could be argued that a country could be entirely in its right, if national circumstances demand it, not to prosecute offenders for personal drug possession.

Consequently, it could be argued that the 1988 convention, does not require the criminalization of drug consumption per se (8), but of the “possession” for personal consumption, which nevertheless “amounts to de facto, (the) criminalisation of drug users.” (Barret & Nowak, 2009) Nevertheless, contrary to what has been and is still currently enforced in many countries, the convention does not require specific sanctions, and certainly not imprisonment for personal consumption. Arguably as we will see in further articles, there is certainly the potential for certain flexibility in regard to current practices, including “prosecutory tolerance.” (Dorn & Jamieson, 2000, p. 1)

Ultimately the 1988 Convention aimed at increasing domestic countries’ powers to prohibit the illicit trade of controlled substances, specifically noting that “the links between illicit traffic and other related organized criminal activities (…) undermine legitimate economies and threaten the stability, security, and sovereignty of states.” (Jojarth, 2009) If it is true, as scholar Moises Naim (2008) declared that criminal networks “diversify into other businesses and invest in politics (…) assum(ing) a powerful – and in some countries unrivaled – influence on matters of state”, increasingly the illicit drug trade has became de facto, the most useful commodity, to merge warfare and crime, in order for non-sanctioned, and ideologically motivated groups to finance their activities, including state and non-state actors.

Today

The reasons for the existence of the conventions are quite straightforward. As noted by Dave Bewley-Taylor and Martin Jelsma (2012), they “provide the legal structure for an international system of drug control by defining control measures to be maintained within each state party to these conventions and by prescribing rules to be obeyed by these Parties in their relations with each other.” As pointed out by Neil Boister (2001), there are two principal methods that can be underlined here: the commodity control (the regulation and legal definition of legal production, supply and use of controlled drugs) and the penal control (the intent to legally and criminally suppress the illegal production, supply and use of controlled drugs). As such there is an explicit principle declaring that the only way to reduce illicit drug availability is through penal law enforcement in order to prohibit the supply side of illicit drugs. This side of the two control methods, has over time, ultimately took over the other, which has resulted in a failure to assure and control the availability of prohibited substances for the legally authorized scientific and medical use of these substances.

Additionally, as any other multilateral instruments, the conventions are the product of political compromise and are therefore “saturated with textual ambiguity.” (Boister, 2001, p. 22) In consequence, interpretation of the treaties should be regard “as an art, not a science” (Aust, 2007, p. 230), which arguably, is not the way the INCB, has done so since 1961. Interpretative tensions therefore undeniably and unavoidably last, and are often fueled, rather than resolved by the INCB. Other issues in regard to the conventions are linked with their conflict with human rights and indigenous rights obligations; as-well as the scientifically dubious scheduling processes. Along with the principle of zero-tolerance and punitive approaches, many raise the question as if the benefit and health care of human kind are ultimately benefiting from the regime. Similarly, the overall failure of the system, none-standing the colossal law enforcement investments, to actually reduce the scale of the illicit market, as well as securing access to essential medicine to the world population, greatly undermines their pertinence. As such and in regard to the overarching conflictual views and the negative consequences of the regime on the ground, arguments for treaty revision are regularly and increasingly surfacing, while being currently avoided by U.N. member states during UNGASS 2016 preparatory meetings. (Global Commission on Drug Policy, 2011; Reuter & Trautmann, 2009; ECOSOC, 2008; TNI, 2008)

What is additionally probably important to note is that the U.N. drug control conventions are not directly responsible for the human rights violations that are linked with the way member states all over the world deal with drug related matters. But “they also cannot be divorced from these and other violations, as their influence on domestic drug control policy and legislation is considerable.” (Barret & Nowak, 2009) All three conventions have been widely ratified by most countries, and the conventions have guided the development of domestic drug control policies, which are for the overall majority, restrictive and punitive oriented. This is the international legal environment within which “decisions on drugs have been made, laws enacted, policies developed and practices shaped” (Ibid.) and of which are part the INCB, the CND and the UNODC in order to carry out their respective mandates. By being silent on the topic of human rights, the conventions allow the possibility to criminalize the most vulnerable groups of the world’s countries populations, and allow for the sustainability of poor practices.

In regard to the potential room for interpretation left to state parties to the convention, several analyst have argued that certain policy dispositions - that are still very much viewed negatively by the U.N. drug control institutions - could be legally acceptable in regard to the conventions. Among them: decriminalization of personal possession and use; cultivation for personal use; harm reduction services such as safe injection rooms and opioid substitution treatments; greater use of controlled substances for medical use, including heroin prescription and medicinal cannabis; health care and social support for people in violation for personal use and/or economic necessity.

Another important feature of the conventions is that there are not self-executing. In this regard, the executory nature of the treaties means that they are not directly enforceable, although they impose obligations on signatory states. This is important in regard to the lack of enforcing powers of the INCB for example, as it now finds itself with very little means to force member states not to experiment alternative drug control policies that do not concur with its vision of their obligations. This said, in regard to international law obligations, and notably the 1969 Vienna Convention on the Law of Treaties, member states are required to interpret the U.N. drug control conventions “in good faith” and respect the “‘object and purpose’’ of the treaties (UN Convention, 1969, Art. 31), and thus to accept the norms and standards created by the regime. In this regard, while the current situation should certainly leave rooms for national interpretations and a certain degree of freedom when enforcing and debating national policies, “there should be no doubt that the purpose of the UN conventions is to introduce some sort of global drug prohibition.” (9) (Bewley-Taylor, 2003)

Because of its near-universal ratification, countries have inherently accepted the cost and benefices of the treaties and as mentioned by Damon Barrett and Manfred Nowak (2009), there is a clear “danger that drug control has become an end in itself.” Still today, success in regard to drug policies is very much measured in term of how much of a certain substances has been sized, how much hectares of illicit crops have been eradicated, how many drug-related offenders have been prosecuted and how many people have stopped consuming illicit drugs; mostly the most visible and superficial results. Many other indicators exist, such as the reduction in drug using HIV transmission disease, or the number of illicit drug users among youth, which would show that the current regime is far from performing well.

Another important issue in regard to treaty efficiency is “the patchwork of almost 100 (legal) reservations already in place” (TNI & IDPC, 2012) among the three conventions, which indicate that more than an impenetrable rock of common agreement, the treaties are more truthfully described as a “Swiss cheese.” (Ibid.) Nevertheless, the international community, “persistently finds ways to mask this failure, such as by stating at its meetings that what has been achieved so far is a success.” (Fazey, 2003) Effectively, the U.N. member states have surrounded themselves in a cocoon, which allows to turn a blind eyes in the face of growing defections for some, as much as over strictly compliance to the treaties for others.

One of the most, often overlooked, important trend that we need to observe in order to be able to judge of the current drug control regime is to look at who has profited, and still largely profit from the prohibition situation. Until very recently, the demand side of illicit drugs was considered a domestic prerogative, in part because they mainly concerned countries from the Global North. But this approach allowed the prevention and neutralization of any criticism in regard to counterproductive domestic policies. However, since the end of the 1990’s, “domestic demand for drugs has become universally recognised as an international issue, despite the fact that this view was never supported by the foreign affairs ministries of many countries, and continues to be opposed by many of them.” (Fazey, 2003) The issue now is that populations, are increasingly pressuring their governments to adopt drug control policy that differ from the conventions, while it remains impossible for the member states to argue for treaty reform. This has led a growing number of them to quietly defect and go on their own way.

Recently, the Global Commission on Drug Policy (2014) regrouped former-Head of states, and of governments, high-level officials from international organizations and civil society (10) in order to publicly denounce, in their different reports, the current regime and call for regulatory measures and alternative policies to prohibition. Although, this move is extremely positive and show the building of a new consensus at the highest level, mentioning the “former” part in front of each of the Commission members’ qualifications is important. Such personalities, with all the power they once hold, were never allowed, never dared or never thought, to voice their concern while they were still in office. This can tell us a lot in regard to the difficulty, and the courage, it takes to publicly denounce the status quo while holding office. Indeed, it must be noted that signatories to the treaties are subject to “enormous diplomatic pressure” (King County Bar Association, 2005), not to deviate from the treaty orthodox interpretation, originally from the U.S., but which is increasingly delegating this task to other countries which are taking a leadership role in order to fight off national willings for alternative policies (11).

If the “purposes and principles” of the U.N. are laid out in Article 1 and 55 of the 1945 Charter, grounding the three pillars of the international organization system in “security, “development” and “human rights” (UN General Assembly, 2005, para 9; Nowak & al., 2007) - which have been reaffirmed as the “foundations for collective security and well-being” (UN General Assembly, 2005, para. 9) - the current IDCR arguably forsake these goals. While the Charter should take precedence over all other international obligations (UN Charter, 1945, art. 103), including the drug control conventions and that all signatory states have agreed to work in cooperation towards the achievement of these goals (Ibid., art. 56), more than fifty years of the current regime has left little doubts in the minds of many that the reality of the drug control conventions application and enforcement are not reflective of these imperative. Similarly, if the international drug control regime has been based on the premise of assuring the “health and welfare of mankind” (UN Convention, 1961, Preamble), very few could sensibly defend the success of such commitment. But as noted by Damon Barrett (2010), it may also be argued that “advocating for a move towards policy based on the aims of the UN naively presumes genuine governmental support for those aims, when in fact other political agendas are more likely the drivers of current drug control efforts.” In this regardg critically analyzing the ratifications of the U.N. conventions can show us that in the discourse, the implemented policies seem to prioritize the protection of worldwide populations, while in the act, it seems to favor state security and the defense of their interests.

The current framework, further uses artificial, non-scientific and ideologically charged differentiation in between substances, labelling some as “soft” and other as “hard”. The “soft” drugs being linked to civil or criminal offenses, while offenses linked to “hard” drugs remain always a criminal one. Those policies have not only failed, but have exacerbated certain forms of human insecurity. This in turn, highlights the need to challenge conventional notions of security that drive the drug control regime, in order to adopt more critical reasoning. A shift towards critical human security approach, would complement traditional notions of security and contribute to the development of the policies needed to overcome some of the most blatant failures of the current system. While modern reproductive policies have heavily focused on law enforcement and the fight against drug trafficking organizations, the IDCR has continuously faced powerful resistance from wealthy, legal and illegal cartels encompassed within an expansive transnational drug market, leading to minimal, if any, progress. Instead, we will argue in the thesis that drug policies should focus above all on reducing direct, structural and cultural violence that fall upon the most vulnerable populations, in order to address the underlying conditions that allow drug abuse and criminal organizations to perdure.

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(1) The current UNODC Executive Director, Yury Fedotov, has reaffirmed several times that "a robust international control system must remain a key supply control strategy” (UNODC, 2014b), demonstrating again, that deep, outdated believe of form of drug control remain very much entrenched within the agency.

(2) “To support U.N. Member States in combating drugs, the UNODC conducts field-based technical assistance projects internationally and conducts research and analysis on current drug market trends.” (Sun Wyler, 2013)

(3) “Addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind” (UN Convention, 1961, Preamble)

(4) As noted by Liana Sun Wyler (2013), “the U.N. policymaking on drug-related matters takes place through the U.N. Commission on Narcotic Drugs, which is a functional commission of the U.N. Economic and Social Council. The U.N. Commission on Narcotic Drugs monitors global drug trends, develops strategies for international drug control, and recommends measures to combat the ‘world drug problem’.”

(5) Because it is often harder to produce the precursor than the drug itself, a used tactics is to restrict the production and sale of these precursors. The issue there is that precursors often have, many others, legitimate uses.

(6) It “does not appear that article 36 (1), obliges Parties to criminalise possession of drugs for personal use.” (Boister, 2001, p. 81)

(7) There is very limited room in the 1988 Convention “to relax what are deemed to be trafficking and commercial supply related offences.” (TNI, 2012) Indeed, only “in appropriate cases of a minor nature the Parties may provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare.” (UN Convention, 1988, Article 3, para. 4.c)

(8) Pointed out more clearly in the Commentary to the 1988 Convention in relation to its article 3: "It will be noted that, as with the 1961 and 1971 Conventions, paragraph 2 does not require drug consumption as such to be established as a punishable offence.” (UN Convention, 1988a, p. 82)

(9) To note, Article 2 paragraph 5(b) as-well as Article 4(c) of the Single Convention “obliges Parties to limit the use and possession of drugs, including cannabis, exclusively to medical and scientific purposes.” (Bewley-Taylor, 2003; De Ruyver & al., 2002, p. 23)

(10) The members of the Commission are: Aleksander Kwaśniewski (Former President of Poland); Anand Grover (HIV and human rights activist, former UN Special Rapporteur on the Right to Health from India); Asma Jahangir (Human rights activist, former UN Special Rapporteur on Arbitrary, Extrajudicial and Summary Executions, from Pakistan); Carlos Fuentes (Writer and public intellectual, from Mexico – in memoriam); César Gaviria (Former President of Colombia); Ernesto Zedillo (Former President of Mexico); Fernando Henrique Cardoso (Former President of Brazil) George Papandreou (Former Prime Minister of Greece) George Shultz (Former Secretary of State, from the United States); Javier Solana (Former European Union High Representative for the Common Foreign and Security Policy, from Spain); John C. Whitehead (Banker and civil servant, chair of the World Trade Center Memorial, from the United States – in memoriam); Jorge Sampaio (Former President of Portugal); Kofi Annan (Former Secretary General of the United Nations, from Ghana); Louise Arbour (Former UN High Commissioner for Human Rights, president of the International Crisis Group, from Canada); Maria Livanos Cattaui (Former Secretary-General of the International Chamber of Commerce, from Switzerland) Mario Vargas Llosa (Writer and public intellectual, from Perut); Michel Kazatchkine (Professor of medicine, former Executive director of the Global Fund to fight AIDS, tuberculosis and malaria); Nick Clegg (Former Deputy Prime Minister of the UK); Olusegun Obasanjo (Former president of Nigeria, chairs the West Africa Commission on Drugs); Paul Volcker (Former Chairman of the US Federal Reserve and of the Economic Recovery Board, from the US); Pavel Bém (Former Mayor of Prague, member of the Parliament, from the Czech Republic); Ricardo Lagos (Former president of Chile); Richard Branson (Entrepreneur, advocate for social causes, founder of the Virgin Group, cofounder of The Elders, from the UK); Ruth Dreifuss (Former President of Switzerland and Minister of Home Affairs); Thorvald Stoltenberg (Former Minister of Foreign Affairs and UN High Commissioner for Refugees, from Norway).

(11) Pr. Peter Andreas describes the political pressure on countries not to withdraw from the letter of global drug prohibition: “Open defection from the drug prohibition regime would (…) have severe consequences, placing the defecting country in the category of a pariah “narcostate,” generating material repercussions in the form of economic sanctions and aid cutoffs and damaging the country’s moral standing in the international community.” (Friman & Andreas, 1999) Dutch scholar Peter Cohen expresses it even more significatively: “The international drug treaties are among the holiest texts of the Drug Prohibition Church. At the Church's meetings, wherever they are held, you will find people kneeling in ridiculous postures before them, because for them the texts contain the sacred words of the Divine. A reformist perspective on the Treaties or a refusal to kneel before the texts, are very dangerous actions now for countries, as the growing hegemony of the U.S. has consequences that push towards extremism and orthodoxy. The more the U.S. Caesars exploit their hegemony, the more the U.N. Drug Conventions symbolize their desire to define and control Humankind, the same way as their gulag state, armies and armada of aircraft carriers are its material expression.” (Cohen, 2003a). See also: (Levine, 2002; Albrecht, 2001, p. 49)

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#video #Introduction #Thesis #Background