7/9 Post UNGASS 2016 - Forsight scenarios

If Greek philosopher Heraclitus through his doctrine of flux (1) would tell us that “there is nothing permanent except change”, we could consider that the nature of foresight analysis, although only allowing us to get a partial appreciation of what could come next, may represent a useful exercise for whoever wishes to accompany change—a fortiori in the case of drug control policy reform. We therefore choose to observe and present here several scenarios that could potentially play out in the aftermath of the Special Session.

We will first analyze the scenarios presented by the 2012 OAS report: pathway, resilience and disruption; then the ones presented by Cindy Fazey in her 2003 article ‘The Commission on Narcotic Drugs and the United Nations International Drug Control Programme: politics, policies and prospect for change’.

a) The 2012 OAS scenarios

In 2012, a Scenario Team was appointed by the Organization of American States under the mandate given to the OAS by the Heads of Government of Member States Meeting at the Summit of the Americas in Cartagena De Indias, Colombia. Several potential scenarios for the 2013-2015 IDCR were presented including, “Pathway”, “Resilience” and “Disruption” (OAS, 2012) which we will further describe. Limited to the “Americas”, the fore-sighting exercise is nonetheless quite relevant in order to question potential evolutions of the global drug policy regime. Obviously these scenarios are interlinked and each can describe parallel experiences that can interconnect in between cross-path events.

• Pathway scenario

In the “Pathway” scenario, the OAS describes the road in which some countries, weary of the same, potentially unchangeable direction given to the drug control regime, have started experimenting new policies that in effect diverge from the status quo and de facto gradually build on a new consensus.

In this scenario, UNGASS 2016 has not provided enough ground to allow for more domestic flexibility, notably in regard to potentially legally acceptable norms such as decriminalization and harm reduction, nor have countries agreed to give space for alternative policies aiming at regulating domestic illicit drug markets.

Forces driving these changes are heterogeneous, go beyond the scope of the continent, and include civil society, academia, political and economic leaders, as well as affected populations. Because several political leaders (currently holding office), have come to the realization that “there are no perfect or perfectly consistent solutions – only alternatives to current approaches that would be less harmful” (OAS, 2012), wider breaches are created in the current international legal framework, which can no longer sustain much more blow to its integrity.

The results of such conclusions are various and include countries which “pursue a path of gradual, evidence-based experimentation and reform” while others sticking to the current policy framework focus “their energies on demand reduction programs through prevention and alternatives to incarceration.” (Ibid.)

The process remains a complex undertaking as all countries experience different drug-related problems, but not in the same way. Public supports also vary greatly in-between countries; from support of regulation by structured civil society movements, to advocacy for restricted harm reduction procedures and supporters of an even more strict application of the current approach. This scenario leads to holistic appreciation and solutions to the way countries (and society) handles drugs in the world without providing an over-arching systemic architecture under which these different visions and actions are undertaken.

• Resilience scenario

The “Resilience” scenario emerges when “national and local leaders recognize that the best approach is to focus on people rather than drugs and to rebuild and strengthen communities from the grassroots level up.” (OAS, 2012) Triggered by high levels of drug-related violence, overcrowding the prison systems, and social exclusion due to the stigmatization of users, this path includes “an array of troubling risk factors” which “has contributed to the desperation and frustration at the community level.” (Ibid.)

Additionally, the delegitimization processes affecting the rule of law and governmental institutions in several countries, pushes communities, local governments, NGO coalitions, and businesses to collaborate in order to engage citizens more broadly in a field where the state has proven to be unfit for the task at hand. At UGASS 2016 the principles of harm reduction, better data collection, and decriminalization, were widely accepted and endorsed by U.N. agencies, civil society organizations, and member states.

In order to help slow down the increasing rates of violence, a number of countries have decided to strengthen control on weapons exportation and ratify the Convention against Illicit Manufacturing of and Trafficking in Firearms. Furthermore, these countries negotiate common Memorandums of Understanding (MOUs) which “allow the sharing of forfeited assets of drug-related illicit proceeds” (Ibid.) in order to create a Special Fund dedicated to “emphasize violence prevention and community strengthening” (Ibid.), as well as rebalancing foreign drug control assistance.

Adherent countries “begin to measure the success of its societies in terms of health and safety rather than aspects of one particular problem within it”, and over time “the concept of a balanced approach becomes more than just words.” (Ibid.) In this scenario, citizens gradually become aware that they represent the most important component of the solution and are not solely victims of a socially constructed paradigm.

• Disruption scenario

In the “Disruption” scenario, several countries realize that, despite promesses, very little progress has been made after UNGASS 2016 and some countries in the Global South are still enduring the most violent outcomes of the current drug control regime. Citizens and political leaders become gradually concerned over the regulation path taken by other countries in which certain previously illegal products are now being regulated by foreign states; while the same substances remain strictly prohibited in their respective nations at a “high costs in lives and resources.” (Ibid.)

States then decide to shift their focus to “education, providing treatment for problematic drug users, preventing substance use, controlling money-laundering activities, providing harm reduction services, and adopting stringent measures to contain corruption” (Ibid.), while achieving less control over the transit of currently illegal drugs in order to facilitate “social peace.” These differentiated approaches potentially increase the flow of drugs in the direction of the highest consuming countries. Many countries assert that criminal organizations gradually buy out respectability and further disrupt the institutions of the concerned countries, while legitimate private investment become scarce. The U.N. drug control agencies declare that this situation is not only a violation of the current treaties but also threatens regional security.

Several other countries, including from Africa, the Caribbean, Central and South America, join the movements and several years after the beginning of this new approach, a “reduction in the reported number of drug seizures and trafficker arrests” as well as the level violence, including murder, is being reported in these countries. Ultimately, “by 2025, international tensions and conflicts over drugs and organized crime have increased throughout the hemisphere.” Because no international oversight exists, and most illicit drug production remains in the hands of criminal organizations, several countries, notably members of NATO and of the Gulf Cooperation Council, decide to collectively create an armed force dedicated to fight off the power acquired by these organizations in the largest producing and transit countries.

As we can see, this exercise is perilous but can help in giving us a glimpse into several pathways that could emerge, especially if UNGASS 2016 does not provide the necessary political will for changing the current course. Cindy Fazey’s scenarios are equally interesting in regard to the results of the upcoming Special Session.

b) Fazey’s scenarios “for change”

Criminologist and former Chief of Demand Reduction for the U.N. Drug Control Programme, Cindy Fazey (2003) presented three possible paths that could be taken in regard to post UNGASS 2016 member states choices; 'the quiet path', a new 'level of decision-making', and a 'renewal of the U.N. drug control conventions'.

• The quiet path

The quiet path represents a way for limited change to happen gradually and has been followed for some time now by several European countries as well as by Canada and Australia. In the future, by further interpreting the U.N. conventions with more flexibility and “in the light of their own needs” (Fazey, 2003), most notable changes (2) are centered on decriminalization and the medicinal use of illicit substances. Spread of HIV/AIDS has led many of these countries “to argue that to limit its spread is more important in the short term than getting everyone off drugs.” (Fazey, 2003; See also Advisory Council on the Misuse of Drugs, 1988) Such activities are considered breaching the letter of the conventions by several drug control actors notably the INCB (3); however several analysts argue the contrary. Ultimately, the INCB is no final arbiter of the interpretation of the conventions, although its members often seem to like giving that impression, as its commentaries on the conventions do not possess legal authority. As such, limited change is possible, at the margin of the system, for which ever country decides to ignore the INCB injunctions.

However, only recently the INCB and UNODC have come to realize that flexibility is probably better than the utter implosion of the regime they ought to protect, and therefore have finally recognized that practices such as harm reduction (if not in words but in practices) and decriminalization schemes are acceptable under the current conventions. Nevertheless arriving too late for some, while certain member states continue to reject such concepts, others choose to go further down the alternative path.

• Level of decision-making

The second path described by Fazey (2003) is a way “to open up the policy debate to discuss the appropriate level of decision-making.” Since the 1998 Convention arguably requires states to criminalize the personal consumption of illicit drugs, and states that demand reduction has become an important core part of the drug control framework, countries from the Global North have been for a decade delivering 'international aid', which intends to tackle potential domestic problems linked to consumption. In this regard, “The difficulty arises for the very reasons that many countries argued that there cannot be a universal policy on demand reduction: domestic conditions are so variable that drug policy needs to be tailored to the country, its culture, and its social and religious customs.” (Ibid.)

The example of alcohol and the way it is controlled differently throughout the world, offers here a pertinent archetype on how drug control policy could be context-based. The key question of this path is therefore “whether domestic drug policy is best developed at national, rather than international level.” Cindy Fazey takes here the example of the E.U. ‘principle of subsidiarity’, which declares that decisions should be taken at the lowest possible administrative level “closest to those affected by them.” (Ibid.) She argues that by applying this principle to drug control policy, it “would enable Governments to repatriate their own domestic decision-making on the issue.” (Ibid.)

However, as much as the principle is attractive and theoretically at the core of the European Union philosophy, one could argue that this principle was implemented to reassure member states in regards to their respective sovereignty, but in no case, empirical evidences has shown us in the E.U. policy praxis, that it was designed to allow citizens to be closer to the decision making center. Nor did it become in practice a way for policy to be more context-based and locally anchored. Nevertheless, it could not be argued against such a principle in which context should be taken into account and therefore allow the reduction of the level of decision-making. This fundamental democratic principle sorely lacks within the U.N. policy-making process; but also de facto, within E.U. institutions.

• A new Convention

The last possible path presented by Fazey is a reconsideration of the U.N. conventions “by way of a plenipotentiary conference to draft a new Convention to replace the others.” (Fazey, 2003 and see also: Bewley-Taylor, 2003) Several countries from the E.U. and Latin America have suggested this over the past, but it has always been blocked on the public ground of cost (4). However, one could argue that cost is a matter of view and of choices; if money can be found for militarization endeavors or financial bailouts, this publicly proclaimed excuse barely holds.

Fazey suggests that an option had not been tried in the past and could take the form of member states “to establish an earmarked fund for such a conference, and if it did not meet the required amount in, say, 3 years, then the funds could be repaid.” This could help secure funding in circumventing existing channels. Usually, funding for this kind of event would come from the U.N. regular budget, which represents a serious obstacle course. A resolution of the kind, before being presented before the General Assembly, would have first to go through the Administrative and Budgetary fifth Committee of the GA then to the Advisory Committee on Administrative and Budgetary Questions (ACABQ). As noted by the author, “these committees can be pressured, and their deliberations also depend on who is the chairperson, which in turn can be manipulated, usually by a major donor or two." (Ibid.)

A third, and more far-reaching consideration would be the drafting of a new, truly “Single Convention” which would replace the existing ones (ironically, the same way the 1961 Convention was intended to replace all pre-existing treaties on the matter). We will discuss this option in a later article, but this new treaty could integrate several topics such as; ways to include alcohol and tobacco provisions into the new system, “establishing more consistency in terms of drug regulation, management and law" (TNI & IDPC, 2012); provisions to encourage and lead context based tight regulatory control of national markets for previously illegal substances; and include the principle of “comity” (5).

As noted by both TNI and IDPC (2012), “at the moment, the perceived costs of a regime change are still larger than the gains of convention revision” for the member states. Hard defections can only follow on the soft ones that are currently taking place if countries keep moving towards alternative drug control policies. One of the most useful tactics, whether consequently or not, by experimenting countries, is to first demonstrate that a paradigm shift is possible (even at the local level) and only in a second time to look for support for convention revision if need be.

Maybe equally important is the need to control the narrative by highlighting the need to make the international framework “fit for purpose” again (6). This would “involve introducing a degree of flexibility for States or State groupings to explore currently restricted options, but doing so in ways that preserve the shared consensus around the need to maintain public health, security and development, and also necessary controls around trade issues and medical drugs.” (TNI & IDPC, 2012)

This pathway will prove to be disruptive of current international legal affairs but could be necessary to strengthen international law which is currently being defrauded by alternative drug control policies—most notably domestic market regulation schemes. As such, aside from drafting a new convention, several paths could be taken in order to revise the current international treaties which we will present in the next and last article of the Post-UNGASS set.

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(1) A Greek philosopher of the late sixth century BCE, Heraclitus criticizes his predecessors and contemporaries for their failure to see the unity in experience. He describes a world which is not to be identified with any particular substance, but rather through an ongoing process governed by a law of change. See more here: Internet Encyclopedia of Philosophy, A Peer-Reviewed Academic Resource, Heraclitus, http://www.iep.utm.edu/heraclit/#H3

(2) For example: “The Dutch government's policy is to separate cannabis and hard drug markets through special cafes so that users do not have to buy cannabis from heroin suppliers, who can than be pursued more vigorously. Switzerland and the Netherlands prescribe heroin to heroin addicts, a policy abandoned by psychiatrists in the UK, not through law or political edict. The UK's politicians have re-taken control now and the policy seems likely to be revived.” (Fazey, 2003)

(3) The INCB has chosen in the past for example, to criticize Australia's policy of providing safe injecting rooms: “Some states unfortunately challenge the policy of the federal government and choose to support policies that run counter to the treaty obligation limiting the use of drugs to medical and scientific purposes only, by establishing heroin injection rooms where illicitly obtained drugs can be injected under supervision.” (INCB,1999). The Board also criticized the decision of the Canadian Supreme Court to allow the medicinal use of cannabis (INCB, 2001). However, it could be argue that it is not the place of the INCB to question a decision of the Supreme Court of any country, nor to interfere with the separation of the legislative and the judiciary powers.

(4) “Countries that call for change are not always those countries that will have to bear the brunt of the cost of a large plenipotentiary conference.” (Fazey, 2003)

(5) The principle of comity indicates “the legal courtesy principle of recognising and respecting the decisions of other nations about domestic regulation or prohibition of certain drugs. The idea is that countries should not act in a way that demeans the laws or judicial decisions of other countries, and that other jurisdictions will reciprocate the courtesy shown to them.” (TNI & IDPC, 2012)

(6) As the former UNODC Executive Director Antonio Maria Cost suggested in 2008 in his Fit for Purpose discussion paper: “There is a spirit of reform in the air, to make the conventions fit for purpose and adapt them to a reality on the ground that is considerably different from the time they were drafted.” (ECOSOC, 2008)

• (Advisory Council on the Misuse of Drugs, 1988) United Kingdom Advisory Council on the Misuse of Drugs, AIDS and Drug Misuse. Part 1. London: Department of Health and Social Security, Her Majesty's Stationery Office, 1998.

• (Bewley-Taylor, 2003) D. R. Bewley-Taylor, "Challenging the UN drug control conventions: problems and possibilities", International Journal of Drug Policy, 14 (2003) 171-179, http://www.unawestminster.org.uk/pdf/drugs/UNdrugsBewley_Taylor_IJDP14.pdf, Accessed: 11/12/15.

• (Fazey, 2003) C. S.J Fazey, “The Commission on Narcotic Drugs and the United Nations International Drug Control Programme: politics, policies and prospect for change”, International Journal of Drug Policy, Volume 14, Issue 2, April 2003, Pages 155–169, http://www.sciencedirect.com.proxyau.wrlc.org/science/article/pii/S0955395903000045, Accessed: 10/08/15.

• (TNI & IDPC, 2012) Transnational Institute & International Drug policy Consortium, Report TNI / IDPC Expert Seminar , “The Future of the UN drug conventions” Prague, January 25-26, 2012, http://www.undrugcontrol.info/images/stories/documents/Prague-Expert-seminar-report.pdf, Accessed: 11/12/15.

• (OAS, 2012) Organization of American States, Scenario For The Drug Problem In The Americas 2013-2025 by the Scenario Team appointed by the Organization of American States under the mandate given to the OAS by the Heads of Government of Member States, Meeting at the 2012 Summit of the Americas in Cartagena De Indias, www.oas.org/documents/eng/press/Scenarios_Report.PDF, Accessed: 29/10/15.