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4/5 UNGASS 2016 member states - Evolving within the perimeters of the “drug-control cornerstones”

  • Benjamin-Alexandre Jeanroy
  • Apr 6, 2016
  • 21 min read

This country regroupment is probably the most controversial issue of the section, as it puts together many countries that are currently perceived to be strong partisans of the current IDCR (such as China), or which were even at one point the sole enforcer of the regime (in the case of the U.S.), with other countries (most notably in the E.U.), which have been experimenting with different alternatives that have been for a long time criticized by advocates of an orthodox application of the IDCR. However, all are currently experiencing profound changes that could potentially have large effects on their conduct during the upcoming Special Session.

Ex-proponents of an ultra-orthodox application of the conventions

and experimenting on new policies

  • China

China’s situation in regard to drug control policy is far from being uniform. Although, growing interest in drug policy among academics and policy makers is not necessarily easily perceived as the political context and policy process remain “opaque and difficult to penetrate” (Baldwin, 2013), recently, China’s “drug situation” has significantly evolved. A 2000 “government white paper” on “Narcotics Control in China” noted that “at present, each province, autonomous region, and municipality directly under the Central Government in China suffers from illegal drug-related activities to a certain extent, and China has been turned from a victim of the transit drug trade into a victim of both drug transit and consumption.” (China, 2000) Among the changes, scholar Zhang Yong-an (2012) notes that, “greater availability of cheap and high-purity heroin, along with limited access to drug treatment, combined with ineffective counter-narcotics policies, have resulted in greater rates of addiction along with other public health problems in China.” In this regard, because of the diversification of drug use patterns and products, a growing middle class is increasingly engaging in the public policy debate. Most notably, the country’s HIV epidemic and the “inconsistencies in the drug policies adopted by different government agencies and an overly harsh response to drug use” (Baldwin, 2013), allow advocacy and growing public support to slowly rise toward drug policy reform.

Similarly to Singapore and Indonesia, China’s drug policy control response can be traced back to the colonial influence, and in this case, to the opium wars fought against the U.K. during the nineteenth century (Windle, 2013). But perhaps more pertinent today (1), is the fact that “China’s continued reliance on a harsh response to drug use is a likely remnant of the celebrated opium eradication programme conducted by the Communist Party of China shortly after it assumed power in 1949.” (Liu & al., 2010) This highly punitive approach “dominated drug policy in China until the early 21st century when two key events precipitated a shift in policy.” (Baldwin, 2013) The first came with the progression of China’s HIV epidemic and the political recognition that injection drug use was a decisive factor fueling the spreading rate (Sullivan & Wu, 2007). The second, was linked to the “harmonious society” socio-economic vision and policy shift orchestrated by President Hu Jintao’s in the mid-2000s, which theoretically “introduced the idea of balancing leniency and severity, replacing the previous approach of “Strike Hard” offensives.” (Trevaskes, 2010)

However, the country’s drug policies are slowly evolving, notably through the recognition that “bringing drug addicts to justice is no longer the ultimate goal of drug policy.” (Liu & al., 2010) As such, and just as in other countries of the region, Chinese authorities are now starting to perceive drug consumers as “sick” and as victims of their supposed dependencies rather than mere criminals, which is as we have seen, not necessarily a pledge demonstrating an amelioration of the treatment conditions imposed on suspected consumers. Nor does it show a clearer understanding of drug consumption patterns as it conflate drug use and addiction. This situation mirrors other neighboring countries, as “a chasm still remains between the public health and public security authorities with regard to the best way to handle drug-related issues.” (Ibid.) These conflicts have been highlighted by several researchers, notably documenting the profound lack of support in favor of Needle and Syringe Programs (NSPs) “which are seen as promoting drug use.” (Reid & Aitken, 2009; See also Smith & al., 2012) The country paradoxically remains much keener on the topic of methadone substitution treatment, which is seen by some as “substituting one addiction for another” (Baldwin, 2013) but can still satisfy the broader goal of “social control” (Foucault, 1975) of others.

In this regard, several questions can be put forward in regard to the public intransigence shown by China on the international arena, notably during CND Sessions, and the slight but decisive inflection currently being observed domestically, notably in regard to harm reduction. Could the latter represent an opening for a potential harm reduction coalition which could advocate for the services without using the label with which many countries still have a problem? Could the domestic changes experienced by the country in the face of growing HIV spread, influence other countries of the region?

  • The United States

For almost half of a century, the U.S. have opposed “any deviations abroad from its preferred drug policies, including differing approaches toward domestic drug use.” (Felbab-Brown & Trinkunas, 2015) Although the country is at the very foundation of the current IDCR, as the drug policy world looks towards the upcoming UNGASS, the country finds itself in a very different setting. Because the U.S. is currently experiencing, at the state and city levels, some of the most severe systemic breaches of the current IDCR, the Federal state finds itself in a peculiar situation on the international scene. This has lead, for example, to surprising positions and new argumentations, such as the one made by Assistant Secretary of State William Brownfield, which declared during a meeting with reporters at the U.N New York based office that countries can now have a “flexible interpretation" of the U.N. drug control conventions: “Things have changed since 1961. We must have enough flexibility to allow us to incorporate those changes into our policies.” (U.S. State Department, 2014) The U.S. representative followed up by saying that the international community should “tolerate different national drug policies, to accept the fact that some countries will have very strict drug approaches; other countries will legalize entire categories of drugs.” (Ibid.) During the same, arguably surprising, conference the Secretary indicated that countries should nonetheless "agree to combat and resist the criminal organizations - not those who buy, consume, but those who market and traffic the product for economic gain.” (Ibid.) Other indications of the current shift in the country drug control policy towards more health oriented approaches can be found in the 2014 White House National Drug Control Strategy Report which indicated for the first time that “reforms to the criminal justice system have addressed sentencing disparities for drug crimes and offered alternatives to prison for nonviolent substance abusers” (U.S., 2014), notably referencing the lowering of sentencing disparity between crack and powder cocaine users.

This tension currently being experienced by the American country will be reviewed more in depth in a specific article, but several things can be noted here. Domestically, more than half of the country's states currently possess laws regulating medicinal cannabis use. Furthermore, the states of Colorado, Washington, Oregon, Alaska, as well as the District of Columbia have all passed legislation regulating their internal economic cannabis market. While, several others are planning to follow on, including California, during 2016 November referendums, it could be argued that the U.S. is potentially rapidly closing on towards federal regulation. However, this is far from being a done deal. But as a result of domestic experimentations, the country arguably “finds itself increasingly in a questionable position in terms of compliance with the international counter-narcotics regime and treaty interpretation it fostered.” (Felbab-Brown & Trinkunas, 2015) As such, several points are worth considering in regards to how the country will conduct itself during the upcoming Special Session. If we can reasonably doubt that it could partake in advocating for structural changes as other American nations had at some point shown the will to, foreseeing if the U.S. will intend to derail reforms staying within the range of the conventions remains probably the central question. Additionally, according to the Drug Enforcement Administration (DEA), “abuse of prescription medications is now the country's greatest drug threat” (Insight Crime, 2014), which makes the - ideologically motivated -, separation between legal and illegal drugs, somehow even more fragile and could force the U.S. to engage in the topic.

While prohibitionist and war rhetoric approaches are still very much encompassed within the U.S. foreign policy, an examination of the 2015 U.S. State Department Drug Report allow us to evaluate the paradoxical situation within which the U.S. currently find itself. The report is notably tasked “to identify any country (…) that has "failed demonstrably to make substantial efforts (…) to adhere to international counter-narcotics agreements and to take certain counter-narcotics measures set forth in U.S. law.” (U.S State Department, 2015) The report is surprisingly silent on certain experimentations such as the ones currently undertaken by Uruguay and Colombia. But it is not so surprising as it is itself, at the state level, not abiding international legal obligations. Consequently, it could be argued that the “U.S. compliance regarding international treaties and obligations is questionable, just as the United States is losing interest in enforcing the global regime.” (Felbab-Brown & Trinkunas, 2015)

In regard to the country’s potential future position at UNGASS 2016, observers could only point out the relative public silence of its representatives during CND preparatory meetings. This could partially be explained by the domestic timeline and traditionally careful political atmosphere from current presidential administrations during election year. In this regard, it should be noted as announced by the U.S. Vice President Joe Biden interviewed by the Wall Street Journal (2012) “no dramatic announcements from the U.S. are likely to occur.” International drug reform, the VP said, is "worth discussing, but there is no possibility the Obama-Biden administration will change its policy.”

For most policy analysts and international legal experts, the ambiguous declarations of U.S. officials and alternative policies being implemented domestically, there is a strong conviction that state laws regulating their respective cannabis market are in clear breach of the U.N. drug control conventions obligations. As such, we could argue here, as Martin Jelsma (2015) does that “by stretching the treaty-flexibility approach beyond the legally defensible, the United States is reverting to selective adherence to international law based on political expedience.” By doing so, the U.S. is greatly weakening the normative power of an already vacillating international legal framework, as-well as still enforcing prohibitionist views abroad, such as recent declaration from the U.S. government on the Mexican Merida initiative has shown (U.S., 2016). For this reasons, we need “to question the US’s role in perpetuating drug myths and the “war on drugs” and the impact this is having on the human rights of US citizens and those in other countries whose governments continue to follow the US example.” (Hart, 2014) Likewise, observation of the country’s conduct and speeches during the upcoming months will be crucial for the potential future of the IDCR.

Long time advocates of a less

strict application of the conventions.

  • European Union

Unlike its Southeast Asian regional counterpart, the E.U. has the full status of a U.N. observer. Member states of the organization notably have, at least in theory, institutional capacity, through the E.U. rotating Presidency, to speak from one unified voice inside U.N. forums. But as in many other political domains, “enormous differences continue to exist in the EU” (TNI, 2012) in regard to drug control policy. In the Czech Republic for example, as in other E.U. States (such as the Netherlands), possession is no longer considered a criminal offense “but those caught with small amounts can be deferred to treatment services if required, or administrative sanctions may be applied.” (Ibid.) Today, there remain only a few European countries (such as Sweden, Latvia and Cyprus) which still exercise the option of imprisonment for possession for personal use (2). A rapid round-view of different national policies will confirm so.

Several European countries have been enforcing for several years health related drug control policies with an emphasis on harm reduction approaches and - either de jure or de facto - decriminalization. But as observed during the preparation meetings for the upcoming Special Session, E.U. member states may not be willing to engage other countries into a real debate. As observed by Carel Edwards and Maurice Galla (2014) “at EU level, policy makers, (…) seem to be unwilling to move away from their comfort zone and accept that over the past decade the nature of drug use and drug-related problems has changed.” We find among the approaches that guide the organization policies the concept of a “balanced approach”. As we have previously seen, this concept has been used at the U.N. level to legitimize heterogeneous policy approaches. Considered as “remarkably restrained” (Ibid.), the concept mostly “reflects the reality that very few Member States have either the socio-political culture or the resources to consistently apply the punitive sanctions foreseen by the UN conventions.” (Ibid.)

Another core feature of the E.U. approach is international cooperation, which can take several forms (3), including political collaboration with and within international agencies, most notably UNODC. The regional organization is one of the world biggest aid donors of the agency, notably by allotting between €800 million to €1 billion between 2005 and 2013 to “third countries supporting alternative development and supply reduction, and to a lesser extent demand reduction, harm reduction and the protection of human rights, threatened by harsh drug policies.” (Ibid) Central key programs also include funding scientific research, data collection, monitoring and evaluation of any drug related matters.

However, this major donor position, does not translate into direct political influence when it comes to global drug policy making. For example, during CND Sessions (4), despite being a key donor to the U.N. system, the E.U. “is classed (incorrectly) as an international organisation and thus does not have the same status as the UN member states” and “as long as the EU's status is not changed, it can take part in statutory meetings only as observer.” (Edwards & Galla, 2014) The rotating presidency of the organization further complicates the work of the E.U. delegations as diplomats are often reluctant to place in the balance and implicitly in the name of their respective country, the organization massive financial contribution, preferring to highlight their own, often modest national contributions. Additionally, a recent comment from a staff member of the International Drug Policy Consortium (IDPC), explicitly told the author that the E.U. repreenative in Vienna at the CND was recently "expelled" from 'informal' meetings where most of the decisions in regard to UNGASS 2016 preparations are made. Despite the financial contribution of the regional organization, this arguably leaves little doubt as to the extent of the true influence of the EU in this forum.

The last E.U. drug control strategy was adopted in 2013 and “although it ticks all the pragmatic boxes of a sensible EU drug policy, it avoids addressing some of the major questions that lie ahead." (Edwards & Galla, 2014) Those, include the fragile concept of a “balanced approach” which has for many, became a screen covering inertia. However, little by little, national policies converged within the European political organization and despite ideological differences, most approaches related to harm-reduction have been implemented, to a different degree, by country members. A space for debate exists while, with the notable exceptions of The Netherlands and Spain, European countries experimenting with new drug policy, strictly remain within the perimeters of the U.N. conventions. In this regard, the European approach regarding the “world drug problem” has somehow preserved the concepts of proportionality and subsidiarity, as it also allowed its member states to mostly “accommodate the problem rather than to ‘solve’” it (Edwards & Galla, 2014), while often finding pragmatic answers to complex issues. As regrettable as it could seem for drug policy advocates, the common position of the European Union could end up being formulated during UNGASS 2016 as a preservation of the status quo.

Despite successful alternative policies implemented for more than a decade at the national level in the region, as we will observe further down, the blunt truth is that “Europe isn’t pulling its weight on the international stage” (The Guardian, 2016b), as the preparation for the upcoming Special Session are trundling along in the diplomatic weakness that define the E.U. on the international stage.

  • Spain

In Spain, possession of illegal substances for personal use is not a punishable offense since 1982 which followed a 1974 Supreme Court ruling at the very end of the Franquist dictatorship regime (Gamela & Rodrigo, 2004; Barriuso Alonso, 2011). As the latest republican region to be overtaken by the fascist regime in the 1920’s, the region of Catalonia remains at the forefront of the Spanish drug policy reforms. The best example of such policy reform is “the cannabis social club, which—through a cooperative, nonprofit structure—legally grows, sells, and creates a space for members’ consumption of cannabis.” (OSF, 2015) In the autonomous region, “cannabis social clubs are legal non-profit associations created by cannabis consumers to grow and use cannabis on a collective basis” (Sarosi & Gábor Takács, 2015), and which allow the market to function outside of state and corporate control on the look-out for profit. As a result of decade of grass-roots activism, these clubs operate in a grey legal area but still remain under the threat of potential law enforcement activities. First opened in 1994 “with 100 people signing an agreement to cultivate 200 cannabis plants” (Ibid.), the policy, de facto, created the first system of its kind on the continent. In 2015, there were 11 federations regrouping under a common umbrella, and “between 800 and 1000 legally constituted entities” (Ibid.) dispatched all over Spain.

It should be noted that in the 1970’s, “in the midst of a major political and economic transition, Spain suddenly faced unprecedented levels of heroin consumption, which soon evolved into an epidemic of fatal drug overdoses and HIV and hepatitis infections.” (OSF, 2015) Despite the political inertia and overall confusion during the time, Catalonia established, within a comprehensive approach, the first harm reduction programs of the country “that not only reduces the harms of drugs, but also creates new opportunities for public health, security, economic growth, and a thriving civil society.” (Ibid.) The 2015 “Innovation Born of Necessity: Pioneering Drug Policy in Catalonia” OSF Report presents an exhaustive analysis of the way the region, through its relative political independence from Spain’s central power, was able to implement, out of necessity, a community-driven, public-health centered approach in response to a HIV crisis, while creating a new regulation model for the cannabis market (OSF, 2015a).

  • The Netherlands

In the Netherlands a decriminalization policy has been de facto in place since 1976. While ‘de jure’ a criminal offense, possession for personal use up to 5g of cannabis (30g before 1996) (Reuter, 2010), or “one dose” of other substances, remains permitted (EMCDDA, 2015) and guidelines have been established “for police, prosecutors and the courts to avoid imposing any punishment.” (TNI, 2012) Additionally, even for other substances trades and activities, the Dutch authorities have “quietly stopped prosecuting the smuggling of small amounts of cocaine coming into Amsterdam’s international airport.” (King County Bar Association, 2005) This policy is currently under further examination for expansion to other substances (5).

The 1976 written policy further “regulates the technically illicit sale of such small amounts in commercial establishments called “coffee shops,” of which there are up to 1,500 nationwide. The regulations are strictly enforced and prohibit advertising, ‘hard drug’ sales, transactions over the small quantity threshold and public disturbances” (King County Bar Association, 2005), while Dutch law enforcement authorities “move aggressively against any large-scale cannabis growers or distributors.” (MacCoun & Reuter, 2001, p. 240-41) As explained by the authors (p. 239), “a key tenet of Dutch drug policy is “normalization,” fostering the integration of drug users and drug addicts into the community rather than their marginalization, which helps to discourage antisocial behavior and facilitates treatment and rehabilitation.” Lately, however, several political initiatives from more conservative political parties have intended to reduce the scale of the “coffee shop” policy, which has arguably created a kind of “narco-tourism” for citizens of other European neighboring countries. As a result, several dozen coffee shops located at the country’s borders have been closed down.

Ultimately critics have pointed out that the Dutch way of dealing with drugs, notably cannabis, has not resolved the issue of organized crime and illicit production. Indeed, coffee shop owners often find themselves in a peculiar situations as they need to stash their merchandise outside of their shops, while remaining at the mercy of criminal endeavors attracted by the flow of cash that these establishment generate. The cannabis decriminalization policy has also fostered the trade of other substances and allowed the country to be one of the biggest New Psychoactive Substances (NPS) and synthetic drugs producers on the European continent.

  • Portugal

Portugal probably remains one of the most famous examples for successful drug policy reforms of which implementation began in July 2001 as the country faced a dreadful HIV epidemic. In this regard, “Portuguese officials were careful to ensure that the new policy remained within the ‘mainstream of international drug policy’ and that, utilising the existing flexibility within the conventions, they did not break the letter of the law.” (6) (TNI, 2012) As noted by the King County Bar Association (2005): “Although sale and trafficking of drugs are still criminally punished, the sale of drugs to support one’s own drug habit is considered a mitigating circumstance.” As we can imagine the INCB was initially quite hostile to the new policy orientation but finally recognized in 2005 that “the practice of exempting small quantities of drugs from criminal prosecution is consistent with the international drug control treaties.” (INCB, 2004, p. 80, para 538) The country provides a useful case study as numerous scientific and independent evaluations have been made during the past 15 years (LSE, 2014; Greenwald, 2009).

The National Strategy drug control document notably coupled its decriminalization policies “with a public health reorientation that directed additional resources towards treatment and harm reduction.” (EMCDDA, 2011) As described by Steve Rolles and Niamh Eastwood (2012), “those caught in possession are referred to a ‘dissuasion board’ that decides whether to take no further action (the most common outcome), direct the individual to treatment services if a need is identified, or impose an administrative fine.” (7) As a result of these health related pro-active measures, individuals seeking treatment, “no longer fearing punishment by the state” (The Guardian, 2001, p. 20) have been voluntarily coming forward asking for treatment. Evidence suggests that by removing any criminal sentences and coupling the policy with “alternative therapeutic responses to dependent drug users” (Ibid.), the Portuguese authorities have created an effective precedent that is relatively hard to ignore.

There are two established facts that can help measure the success of the Portuguese way. Firstly, “HIV infection rates among injecting drug users have been reduced at a steady pace, and has become a more manageable problem in the context of other countries with high rates” (Aleem, 2015), as it can be observed in the chart below from a 2014 report by the European Monitoring Center for Drugs and Drug Addiction Policy:

In the second graph from Transform and contrary to what many had predicted, there has also been “a decline in the percentage of the population who have ever used a drug and then continue to do so.” (Aleem, 2015) However, the country is still facing a precarious financial situation since 2008 and there are potential risks that authorities would choose to defund certain social and health-care programs, including drug-related ones, therefore putting in jeopardy more than a decade of efficient drug control policy.

As shown by the different examples highlighted above, heterogeneous contexts, situations and policy developments still show an evolution of even the strictest advocates of the current regime. While they could all be perceived as legally remaining within the boundaries of the conventions, - and ultimately limited by the restriction imposed by the framework - they do show that “flexibility” is not just a rhetorical subterfuge and that the regime could evolve into more lenient vision of drug control. However, this may not be enough as change is happening fast all around the world. The number of countries openly breaching not only the spirit but also the letters of the conventions are rapidly growing as we will see in the next article.

(1) While these past events remain historically relevant, some experts designate China’s modern day response to illicit drugs within the central national political narratives of “protecting social order”, “maintaining social stability”, and “building a harmonious society.” (Biddulph & Xie, 2011)

(2) For an overview of European drug policies, the reader can refer to Blickman & Jelsma, 2009.

(3) “On a more practical level cooperation includes technical assistance to third countries in order to support alternative development, drug supply and drug demand reduction, as well as more general goals such as strengthening the rule of law and human rights.” (Edwards & Galla, 2014).

(4) “At the CND, the European Commission and the EU Delegation in Vienna, in a rather vigorous supporting role behind the country that holds the EU presidency, do what they can technically and diplomatically to keep all the Member States singing from the same hymn sheet, to ensure consistency between positions decided on in Brussels, but often ‘lost in translation’ upon arrival in Vienna. Daily meetings are organised before the proceedings begin, to coordinate all positions and to plan interventions from the floor in the assembly.” (Edwards & Galla, 2014)

(5) “In 2003 Dutch customs officers arrested 2,176 smugglers from the Caribbean, an average of more than five per day” (King County Bar Association, 2005). In 2005, “the Dutch government has decided that prosecuting them was a waste of resources” (Ibid.). At the time, a Dutch Justice Ministry spokesman stated: “Locking up thousands of smugglers doesn’t solve the problem - there will always be more of them. We’ve been honest enough to admit that we only manage to stop fifteen percent of the drugs coming in, so we are trying something new.” (The Sunday Times, 2004, p. 24)

(6) Authorities have “declared that it was consistent with the provisions of the 1988 Convention in adopting the strategic option of decriminalising drug use as well as possession and purchase for this use. It was the Portuguese view that the replacement of criminalisation with mere breach of administrative regulations maintained the international obligation to establish in domestic law a prohibition of those activities and behaviours." (TNI, 2012) See also: (Van Het Loo & al., 2002, p. 54 & 57).

(7) “If someone is found in the possession of less than a 10-day supply of anything from marijuana to heroin, he or she is sent to a three-person Commission for the Dissuasion of Drug Addiction, typically made up of a lawyer, a doctor and a social worker.” (Aleem, 2015)

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