8/9 Post-UNGASS 2016 - Altering the “drug-control cornerstones”

There are two possible options in regard to the revision of the U.N. drug control conventions; by modification (1) or by amendment (2). Moreover, two additional paths could be taken by signatory members with greater legal and normative consequences for the integrity of the regime; denunciation and disregard.

• Modification

Article 3 of the 1961 U.N. Single Convention on Narcotics Drugs concerns the regulation of possible change in the scope of drug control, by the way of modifying the list of current controlled substances, as well as the system that classifies them. The power to make these changes lies in the hands of the CND 53 member states, which arguably make any velleity of scheduling changes currently unlikely.

Researcher David Bewley-Taylor (2001) considers the blockade to come from the hegemonic status of the U.S. which has been true for as long as the current system was established. But lately the U.S. has found itself in a peculiar situation—as seen in the set of articles dedicated to the member state actors of the Special Session and which we will further develop in later articles dedicated to the on-going tensions in between the U.S. Federal state and lower states. In this regard, it has become increasingly difficult for the U.S. to continuously act as the sole guardian of the orthodox interpretation of the conventions. That is not to say, that other countries are not already taking the mantle which still makes any modification of substance scheduling quite strenuous.

Removing one particular substance from scheduling coverage is equally complex. A proposition from the WHO Expert Committee on Drug Dependence would have to be made, in front of the CND as well as in front of the ECOSOC upon proposition of a State Party (3). However, after observation of the way the scheduling system works, and the still present velleity of many countries (such as China) to place current widely-used medical substances under tighter restriction, the modification path remain quite difficult to undertake. A late set of articles will be dedicated to the topic.

• Amendment

By formally altering treaty provisions, the amendment process could theoretically reform the current framework more profoundly. Such process is authorized by Article 47 of the 1961 Convention, Article 30 of the 1971 and Article 31 of the 1988 Convention.

For the 1961 and 1971 Conventions the procedures are quite similar. First, a member state would notify the General Secretariat of an amendment proposal and the motivations behind it. The Secretariat would then notify the move to ECOSOC and member states. The Council can then either call on a conference to consider the change or directly ask signatory partires if they accept such amendment. If the amendment is not rejected under 18 months, it can come into force. As noted by Bewley-Taylor (2003), “this outcome would appear to be most unlikely considering the trenchant support that currently exists for the maintenance of the extant.” Even a decade after these words were written, it seems unlikely that not one Treaty Party would make a remark or express disagreement if such move was triggered In the more probable case, if one or more Parties reject the amendment and submit comments to the ECOSOC within the 18 month period, then the organization’s Council can decide to convey a special conference to debate the conflictual amendment.

But, if such conference was to happen, it cannot be necessarily regarded as a first step towards the adoption of the proposed amendment. Indeed, “prohibition-oriented nations could ultimately exploit the occasion to strengthen the current system.” (Bewley-Taylor, 2003) As we have seen in the article dedicated to precedent UNGASSs this already occurred during the 1998 Session which initially started as an effort to “reassess the effectiveness of the drug control regime” and ended up being “reduced to a reaffirmation of the current system and its strategies.” (Ibid.)

The 1988 provisions for amendment slightly differ from the aforementioned conventions. In this case, the ECOSOC is by-passed and its present functions are taken over by the Secretary General. The period opened to member states for comments is extended to 24 months. If objections are made, a majority of member states, under paragraph 2 of Article 31 can call on the ECOSOC for intervention. The Council may then call for a conference. As such, the process is made more difficult in regards to requiring a majority of the Parties to call on the ECOSOC, and the impracticality of the conference setting remains. It is worth noting that as the International Antiprohibitionist League (1994, p.5) argued, there would be very little gain in trying to amend the 1988 Convention: “its strict prohibitive nature renders the Convention irremediable.”

As noted, “the need for unanimous consent means that dissenting unwilling States could easily prevent any move towards more flexible or liberal regimes.” (TNI & IDPC, 2012) Options for the dismissal of the conventions remain greatly restricted. However, two other paths exist within the confinement of international law; Denunciation and Disregard.

• Denunciation

While made theoretically possible by provision within each of the Treaties, the denunciation process (4) remains a highly improbable way to formally terminate the conventions. As noted by scholar Peter Andreas (1999, pp. 127/128), ‘‘Open defection from the drug prohibition regime would (…) have severe consequences: it would place the defecting country in the category of a pariah ‘narcostate’, generate material repercussions in the form of economic sanctions and aid cut offs, and damage the country’s moral standing in the international community.” Consequently, it would be perilous for one single country to engage alone in this process.

As noted earlier, a group of like-minded member states could have more success engaging in the denunciation of the conventions and “the ‘denouncers’ may find safety in numbers and quite legitimately walk away from the treaties.” (Bewley-Taylor, 2003) However, these consequences can be regarded as more impactful if they are enforced by willing countries. As former holder of this mission, the U.S. is not willing nor capable of doing so anymore, as shown in the Bolivian case and potentially the Uruguayan one.

It is generally an accepted view that denunciation of a Treaty often leads to its demise. As a result and quite paradoxically, the process of denunciation could be regarded as the most efficient way to achieve treaty modification and amendment. If a sufficient critical mass of member states consider following the denunciation of the conventions, the move might be in itself sufficient “to initiate regime change and thus create some space for movement at the national level within the current system.” (Bewley-Taylor, 2003) If a foreseeable collapse of the regime is perceived by the prohibition advocates, it could potentially make them more inclined to envision treaty change as the U.N. drug control conventions heavily rely on widespread international adherence.

The thresholds for denunciation to occur differ between conventions. 40 member states for the 1961 and 1971 Conventions – “which would involve the highly improbable event of more than 140 States denouncing”- it while the 1988 Convention has no termination clause (TNI & IDPC, 2012). It has been noted by International Law Professor Laurence Helfer (2005), that whilst it exists a 5% rate of denunciation of international conventions without re-accession, this option has never happened with any of the U.N drug control treaties.

• Disregard

To disregard a treaty is viewed by many as a serious destabilizing move in regards to the fragility of the overall international legal architecture’s stability. Even ignoring only certain parts of an international agreement can have wider repercussions. As a consequence, Parties may be wary to act as such. One could nevertheless argue that this ‘‘collective responsibility for global order’’ argument (Bewley-Taylor, 2003) would be more convincing if it did not conflict with the empirical selective approach taken by many historically “powerful” member states in regards to international law. When considering this, the disregarding move could ultimately allow member states to implement alternative policies which they may deem necessary, and has gained “support amongst many opponents of the prohibition based international system for some time.” (Ibid.)

It is worth noting that only in a few countries, such as the U.S., national laws “have equal primacy with treaties” (TNI & IDPC, 2012) and therefore render the possibility to pass national legislation in direct conflict with the conventions, much harder for less prominent countries. Furthermore, as noted by the TNI and IDPC (2012), “there is the possibility that a convention could ‘wither on the vine’ through disuse – becoming an irrelevance even if technically still in place.” Ultimately, the option to ignore the conventions would certainly conflict with the basic international legal principle that ‘agreements must be kept’ (‘pacta sunt servanda') as asserted in the 1969 Vienna Convention on the Law of Treaties, requiring that "every treaty in force is binding upon the parties to it and must be performed by them in good faith.” (UN Convention, 1969) If enacted, these moves could have dire consequences on other international agreements.

It must be understood that any of the processes previously described would “undoubtedly follow a protracted and difficult debate, and will be fraught with diplomatic wrangling.” (Transform, 2009) While there is a need to inject reality into the previsions of these potential forthcoming debates and scenarios, the potentiality to simply ignore them is also quite powerful for member states. As we have observed, member states, “key figures and institutions in the UN system freely acknowledge the inappropriateness of criminalising drug users, the systemic failure and futility of supply side drug controls and interdiction, the dramatic negative unintended consequences of international supply side interdiction and enforcement efforts, and that the conventions are outdated and not fit for purpose.” (Transform, 2009) Meanwhile, we observe a growing recognition of the primacy of public health of law enforcement in regard to drug policy. In this regard, drug policy reform advocates do not find themselves in the same position and context as during the previous UNGASS, which is not to say that anything could necessary change in a substantive manner.

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(1) Modification refers to “a possible alteration in the regime through the re-scheduling of a drug, that is to say moving it from one to another of the 1961 and 1971 Convention schedules or the 1988 Convention tables, or through the deletion of a drug from a schedule/schedules or table/tables altogether.” (Bewley-Taylor, 2003)

(2) Amendment refers to “the formal alteration of treaty provisions, namely a convention article, which affects all the Parties.” (Bewley-Taylor, 2003)

(3) “This route does not require consensus: the CND votes on WHO scheduling recommendations for the 1961 Convention by simple majority, while the 1971 Convention requires a two-thirds majority (an affirmative vote of at least 35 members of the Commission). An ECOSOC review procedure would require a simple majority to confirm or reject the CND decision.” (TNI & IDPC, 2012)

(4) “Articles within all the treaties allow any Party to opt out by depositing in writing, including reference to the legal grounds for the move, a denunciation” of the Treaty to the the Secretary-General. (Bewley-Taylor, 2003).

• (Andreas, 1999) P. Andreas, "When policies collide: market reform, market prohibition, and the narcotization of the Mexican economy", In H. R. Friman & P. Andreas (Eds.), The Illicit Global Economy and State Power, Lanham, Boulder, New York and Oxford: Rowman and Littlefield Publishers, Inc, 1999.

• (Bewley-Taylor, 2001) D. R. Bewley-Taylor, The United States and International Drug Control, 1909/1997. London and New York, Continuum, 2001.

• (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.

• (Helfer, 2005) L. R. Helfer, “Exiting treaties”, Virginia Law Review 91, 1579-1648, 2005.

• (International Antiprohibitionist League, 1994) International Antiprohibitionist League, “For a Revision of the International Policy on Drugs; Report on the Possibilities for Amending and/or Repealing the United Nations Conventions”, I.A.L Papers, 1994.

• (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.

• (Transform, 2009) S. Rolles, Transform Drug Policy Foundation “Talk About”, After the War on Drugs - Blueprint for Regulation, UK, 2009, http://www.tdpf.org.uk/resources/publications/after-war-drugs-blueprint-regulation, Accessed: 11/12/15.

• (UN Convention, 1969) United Nations Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, United Nations Treaty Series, 1155, no. 18232, 1980, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf, Accessed: 25/01/16.