THE UN DRUG POLICIES AND THE PROSPECT FOR CHANGE
Professor of International Drug Policy,
University of Liverpool
There appears to be an ever-widening gap between the United Nations
Conventions, UN agencies’ own interpretation of them, and
the reality of various countries’ responses to the increasing
use of illicit drugs for recreational purposes.
The present legal position is determined by the three international
conventions, namely the 1961 Single Convention on Narcotic Drugs
as amended in 1972, the 1971 Convention on Psychotropic Drugs
and the 1988 Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances. The 1961 Convention limits the production,
manufacture, export, import, distribution of, and trade in use
and possession of controlled drugs. It also allows the use of
controlled drugs for medicinal and scientific purposes, which
means that the prescription of heroin, morphine or methadone to
heroin addicts is within the conventions. However, the 1988 convention
specifically requires the possession of scheduled drugs for personal
consumption be made a criminal offence under domestic legislation.
Although initially complying, many countries, particularly in
Europe, have either introduced administrative sanctions for possess
of illicit drugs or have simply decided not to enforce the law
in this respect.
Many people anticipate that the forthcoming meeting of the Commission
on Narcotic Drugs, particularly its high level segment to which
ministers are expected to attend, will produce a thorough examination
of the progress of the international community in achieving the
goals set out in 1998 at the General Assembly Special Session
on Drugs. I am afraid that they are likely to be disappointed.
It was agreed in 1998 to review progress towards six goals set
out in the Political Declaration five and ten years after the
Special Session. Although the six goals set out in 1998 will be
reviewed, it will be done by examining the process not the outcome.
For example, one goal is to counter money-laundering. If governments
have passed legislation to this effect, then the goal will be
deemed to have been achieved – whether the measures are
effective or not. Another reason why there will be no serious
debate is that the meeting is not set up to achieve this. Any
change to the conventions will come about slowly after several
years of discussion and preparation, if at all.
Theoretically, the conventions can be changed by modification,
such as moving a drug from one schedule to another or simply by
removing it from the schedules. However, this cannot be done with
cannabis because it is embedded in the text of the 1961 Convention.
Also, modification would need a majority of the Commissions’
53 members to vote for it. Amendment to the conventions, that
is changing an article or part of an article, does not offer
a more promising route for the same reason. Even if a majority
were gained, then only one state need ask for the decision to
go to the Economic and Social Council for further consideration,
and demand a vote. The 1971 and 1988 Conventions need a two-thirds
majority for change, not just a simple majority. None of this
would occur for the simple reason that no votes are taken at any
of these fora. All resolutions go through by informal agreement.
Also, only those countries that are up-to-date with the payment
of their UN dues are technically allowed to vote, which is one
reason why no votes are taken, as many countries rarely are paid-up.
Another alternative is state-by-state denunciation, but even then
the conventions would remain in effect until the number of signatories
fell below 40 in the case of the 1961 convention. Moreover, because
the 1988 convention has no termination clause, it would remain
in effect even if only one signatory remained.
Many articles in the conventions are prefaced by the words “subject
to its constitutional principles and the basic concepts of its
legal system”. This has been used by the USA not to implement
part of article 3 of the 1988 Convention, which prevents inciting
others to use narcotic or psychotropic drugs, on the basis that
this would be in contravention of their constitutional amendment
guaranteeing freedom of speech.
By the same token, Italy has a particular case to argue because
of its referendum on the possession of drugs for personal use.
It is difficult to see how a referendum of the entire country
could not be seen as an expression of that country’s wishes.
Could it not be incorporated in that country’s constitution,
or held to be a part of the country’s legal system, that
a referendum is an expression of the basic concept of its legal
system? Since Italy has had a referendum on possession of drugs
for personal use, could this be a route for it to follow?
The prospect for immediate change is not great through the United
Nations. The only change that can come about is through the Member
States themselves and the Commission on Narcotic Drugs. Their
secretariat, part of the United Nations International Control
Programme (UNDCP) does not have any power, except to facilitate
or block for a time the expressed wish of the Member States.
The Commission is often confused with the International Narcotics
Control Board (INCB). This is the body whose origins go back to
the League of Nations and comprises thirteen people who act in
an individual capacity to oversee the workings of the conventions
with respect to the system of regulating the licit supply of drugs,
and the precursor chemicals that are needed to make both licit
and illicit drugs. Unfortunately these individuals also see their
role not only as the guardians of the conventions, but also the
interpreters of them as well. In their annual report they have
criticised many governments, such as Canada for permitting the
medicinal use of cannabis, Australia for providing injecting rooms
and the United Kingdom for proposing to downgrade the classification
of cannabis, which would entail less serious penalties than at
present. These criticisms go far beyond their remit, and indeed
it is hubris to criticise the Canadian Supreme Court.
They have clearly failed to appreciate that the Declaration on
the Guiding Principles of Drug Demand Reduction, which was adopted
at the United Nations Special Session on the World Drug Problem
in 1998, was also an expression of the will of Member States.
Declarations do not have the legal authority of conventions, but
they nevertheless reflect what most of the governments of the
world think. It is also the most recent of these expressions in
relation to illicit drugs, and clearly states that “Demand
reduction policies shall:…aim at reducing the adverse consequences
of drug abuse…provide for and encourage active and coordinated
participation of individuals at the community level, both generally
and in situations of particular risk, by virtue, for example,
of their geographical location, economic conditions or relatively
large addict populations; and be sensitive to both culture and
gender, and contribute towards developing and sustaining supportive
environments.” Clearly this says that, among other things,
reducing the adverse consequences of drug abuse is a key goal.
Both syringe and needle exchanges and injecting rooms fall in
But where to from here? Many European countries are quietly going
their own way and either not implementing their laws regarding
the possession of illicit drugs, such as the Netherlands, or are
clearly saying that more appropriate means need to be employed,
such as Portugal. One option would be to employ the European Union
principle of subsidiarity, which is that decisions are taken at
the level closest to those who are affected. Many Europeans would
argue for the repatriation of drug laws, so that, as with alcohol
and tobacco, each state can devise laws that are appropriate to
its own population, principles and legal norms.
Repatriation of drug policy may be the only way of changing the
prohibitionist global policy as agreed by the conventions. Each
state should therefore establish whatever drug policy it wishes,
and should not have one imposed by previous agreements, which
may no longer reflect international opinion.