The Global Initiative For Drug Policy Reform

Rewriting The UN Drug Conventions

Reforming Drug Control: 2011 represents the 50th anniversary of the 1961 UN Single Convention on Narcotic Drugs, which stands at the centre of the prohibitionist approach. Now is the perfect time to discuss how the UN Conventions can be amended to give signatory countries the freedom to experiment with policies best suited to their special needs

Three UN Drug Conventions (1961, 1971 and 1988) lock into place a rigid, prohibitionist system of drug control. The conventions’ legislation has significantly constrained various countries’ efforts to experiment with alternative methods of drug control, such as the decriminalisation of use and possession, to reduce the harms associated with drug use and provide better care for drug addicts using a medical rather than criminalising regime.

Whilst they constitute a major hurdle to reform, they are not insurmountable. UN Treaties are not ‘written in stone’ and can be, and indeed often are, frequently redrafted. However, despite their lack of success the current Conventions have never been re-examined.  Whilst countries often admit in private to the failings of the Conventions, the potential political costs (such as withdrawal of US aid) for an individual state that publicly criticises these treaties has created a taboo regarding reform discussion.  This taboo must now be broken.

Drug Reform through New International Conventions

A team of drug policy analysts and international lawyers, led by Professor Robin Room, commissioned by the Beckley Foundation, have been examining possible alternatives to the present situation. These include various reforms or rewriting the current conventions.  The team have developed three pragmatic options to consider approaches to amend the conventions.

The three alternatives attempt to preserve the rules and structure of the current treaties in terms of international cooperation and controls of the international market, BUT at the same time open up the options for national governments to implement new drug laws for their individual nation. A country’s domestic drug law would therefore be the responsibility of that country alone.

 

Option 1

– A series of amendments to the current three UN Conventions which would preserve both the present treaties’ controls on international trade and the prohibition of domestic markets, but explicitly state that the decision whether or not to criminalise non-commercial drug possession or use was for individual nations to determine.

 

Option 2

– A series of amendments, incorporating those in Option 1, but also stating that it is the nation’s responsibility to determine whether or not to establish a regulated domestic market for non-medical use

 

Option 3

– Reduces the extent of international controls on the market and supply for substances covered by the 1961 Convention (opium, cannabis and the coca leaf) to the same level as the controls for substances covered by the 1971 convention (i.e. differentiating between substances according to their potential harm to public health and their therapeutic values).

 

Just imagining how an alternative drug control system could operate is a concrete and liberating advance from the present rigid, prohibitionist approach. The above three options open the important discussion over permitting individual countries greater decision-making power regarding the control of psychoactive substances trade and consumption within their territory.

From Spain to India to England, drug use in each country around the world varies. Some countries have more issues with harder drugs, others with softer drugs. For example whilst Switzerland has had major problems with heroin use, the same has not been the case for Brazil. To force them to both have the same laws makes no sense. Additionally, some countries regard certain drugs as holy and part of their indigenous culture; it is a universal human right to have their culture and religion respected, not forced upon them. The importance of allowing a country to determine what the most harmful drugs are in its’ own particular territory is a major step towards more appropriate law.

 

Paths Forward for Countries Interested in Drug Reform

How could the draft conventions be implemented?

Three possibilities are available to countries, but politically impossible within the current context.

1) Amendment of the current international drug conventions

Procedures for amendment are specified in each drug convention. Cons: It is unlikely that sufficient international agreement between the signatory countries could be reached at present for substantive changes.

2) Denunciation of one or more conventions, or post-ratification reservation

After a period of notice, a country can withdraw from any of the conventions. A ‘late reservation’ would be an alternative, where a country files a reservation to a treaty to which it has already signed up. Traditionally, reservations are made at the time of accession to a treaty, but ‘late reservations’ are a regular feature of current treaty practice. Cons: The reservation would be disallowed if more than one-third of the signatory countries objected. This alternative would require a strong national commitment against international pressure, which remains unlikely.

3) Passing countermanding national legislation

In the US, established drug conventions and national law hold equal status. On the principle that the ‘last in time’ (i.e. the last law signed changes all previous laws) applies, national legislation in the US can therefore invalidate a commitment in international law. Depending on their constitutional situation, this may also be possible in other countries. Cons: A strong national commitment to withstand immense international pressure would be required.

 

Possibilities for a Country Acting Alone:

It is possible for a country to independently reform its drug laws. For example, in 2011 Bolivia recently did so by withdrawing from the 1961 UN Single Convention and then immediately resigning it with a specific reservation in order to remove illegal status of the coca leaf. [1] However, this move has been met with significant international condemnation and may have major repercussions in terms of international aid, with countries such as the US likely to be less willing to provide financial help to the country.

) Denunciation and re-accession with reservations

Withdrawing from a treaty and then immediately rejoining with specified reservations. This has been done on a number of occasions regarding other treaties and by Bolivia regarding the 1961 UN Single Convention. The comments of Bolivian Foreign minister David Choquehuanca illustrate the support for this approach, “[This] is an attempt to keep the cultural and inoffensive practice of coca chewing and to respect human rights, but not just of indigenous people, because this is an ancient practice of all Bolivian people” [1]. Cons: The 1961 Convention specifies that a reservation is not accepted if one-third or more of the signatories reject it. Therefore in the Bolivian case, vast international lobbying is taking place with the US trying to convince other countries not to back Bolivia’s efforts and Bolivia trying to gain support for its bid. The comments of Bolivian Congressman Mauricio Muñoz demonstrate the opposition to such a step, “Internationally, we’re giving a bad impression as a country. There will be disastrous and irreversible consequences for Bolivia.”[[1]] Full national support for the reform (which is often very difficult with the country’s parliament or congress) is often hard to achieve.

Possibilities available to groups of countries acting collectively:

1) Denunciation of the treaties and replacement with alternatives

The countries would each announce they are withdrawing from the present UN Conventions, but sign new treaties based on Option 1, 2 or 3. The new treaties could be negotiated and signed under a body in the UN system, another international body, or by the call of a single State. The 1961, 1971 and 1988 Conventions in their present form would continue to be in force for those parties who had not joined in the withdrawing group of countries. Cons: There would be a need for negotiation regarding how to coordinate actions under the two sets of treaties.

2) Adoption of new, alternative treaties

Countries wishing to do so could simply adopt new treaties, without denouncing the existing treaties(any of Options 1, 2 or 3 could be adopted). Those countries signing the new treaty would remain obliged to follow the laws/provisions of the 1961, 1971 and 1988 conventions (eg. in terms of international trade and cooperation), to which they would still be parties, with respect to their relationships with countries which were not parties to the new treaty.  This path would be less directly confrontational to the international system than possibility v (see above) With respect to the changed provisions, on domestic laws on possession and use, and also potentially on a regulated domestic market, the “last in time” rule would be expected to apply, both in their domestic affairs, and in the relations between countries ratifying the new treaty. Cons: A strategy of adding a new convention on top of the existing ones is likely to attract some controversy, with various countries arguing that having two semi-contrasting sets of drug laws undermines the originals.

3) A New Single Convention.

It is now widely agreed that the greatest harm to public health from psychoactive substances comes from two substances, tobacco and alcohol, which are not included in the international drug conventions. Comparing substances on the basis of harms associated with heavy use, alcohol and tobacco are among the most harmful.  In spite of this, there is no current international treaty on alcohol. Cons: Heavy lobbying from tobacco and alcohol companies likely.

Perhaps it is time for a new Single Convention which pulls together into a single international control regime the major psychoactive substances.

A number of key principles could be followed when drafting a new Single Convention.

a) Countries should be encouraged to set up regulatory regimes controlling commercial production and sale of psychoactive substances, in order to limit health and social harms from use of the substances.  Regulating substances enables the control over ingredients and percentages, much in the same way as alcoholic drinks and the information of purity, strength and ingredients on the packaging. Decisions regarding the form and content of the regime for a particular substance are taken at national or sub national level, and the prohibition of production and sale of the substance is an option.

b) Other countries should be required to respect national decisions about the domestic market for a particular psychoactive substance, including forbidding commercial export to a country where sale of the substance is prohibited, and requiring that a country’s advertising or promotion restrictions on a psychoactive substance be respected by media directed across borders.

c) An international oversight agency would have the tasks of monitoring production and trade in psychoactive substances and patterns of use globally, and coordinating international action to minimise health and social harms.

d) Consideration should be given to whether local customary production and use of traditional substances, e.g., khat, coca leaves, cannabis leaves, should be excluded from the scope of the convention.

e) The treaty should include a variety of soft-law recommendations concerning the regulation of domestic markets, including recommendations on prescription regimes, quality and labelling controls, state licensing and enforcement mechanisms, tax regimes, restrictions on availability, and controls on advertising and promotion.

 

 The above discussion demonstrates that there are possible and ‘politically acceptable’ alternatives to the present system of drug control. A debate over convention reforms or rewrites is an effective entry into the topic of drug policy alternatives from the position of what can be done at the international level.

 

References:

Mattia Cabitza, ‘Bolivia to withdraw from drugs convention over co-classification’, The Guardian, 23 June 2011.