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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 this category.
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.
