Breaking the Impasse
Nov 17 2005
Breaking the Impasse In April 2003, there is to be a mid-term review of the outcomes of the United Nations General Assembly Special Session (UNGASS) on Drugs in 1998. The 1998 UNGASS was originally called to evaluate the effectiveness of the current repressive drug control regime. During the prepara-tory phase at the Commission on Narcotic Drugs (CND), however, the effort at evaluation backfired and the UNGASS was reoriented towards an affirmation of prohibition-ism, despite the obvious failure of current drug control policies. The General Assembly in their political declaration gave the UN International Drug Control Programme (UNDCP) the mandate "...to develop strategies with a view to eliminating or significantly reducing the illicit cultivation of the coca bush, the cannabis plant and the opium poppy by the year 2008". Four years on, one can only conclude that the unrealistic deadlines set at the 1998 UNGASS have - once again - failed. This issue of Drugs & Conflict analyses the possibilities and obstacles for change of international drug control as a contribution towards ensuring that the 2003 mid-term review of UNGASS does not constitute another lost opportunity for evaluation. In Time for Breakthrough - Polarisation and Paralysis in Global Drug Policy, TNI fellow Martin Jelsma describes the increasingly divergent trends in global drug policies. On the one hand, there is an escalation in the US- driven War on Drugs, creating a drug gulag domestically, increasing and militarising forced eradication abroad. On the other hand, in Europe and several like-minded countries a more flexible and pragmatic approach has gained ground in domestic drug policy-making, taking distance from indiscriminate repression and the zero-tolerance approach. In these countries, the trend towards greater leniency has become irreversible and rational thinking is gradually replacing the dogmas of the past. The stark polarisation of these two main trends, however, has led to paralysis at the UN level. The key question now is how to achieve a breakthrough. In Habits of a Hegemon - The United States and the Future of the Global Drug Prohibition Regime, David Bewley-Taylor analyses the growing dissatisfaction with the UN drug control sys-tem. Nations from around the world have implemented, or seriously discussed, harm reduction measures that attempt to work The wisdom of the UN Drug Conventions is increasingly being questioned. In May, the Time for Breakthrough. Polarisation and Paralysis in Global Drug Policy The big trends in drug policy over the past decade reveal two opposing tendencies: one tends towards tolerance and pragmatism and has its centre of gravity in Europe, while the other under US guidance tries to reinvigorate a zero-tolerance mentality using more repressive means. The polarisation These diverging trends start from a shared recognition that all combined efforts thus far - eradication, crop substitution, drug seizures, demand reduction - have failed in terms of global impact. There may be a wealth of good practices on the local level, but there is barely any reduction in either supply of or demand for illicit drugs. In the consumption markets, whole-sale and retail prices show a downward trend while purity is rising, which means there is no shortage on the market. Consumption patterns Some conclude that this recognition should lead to a global evaluation: re-assessment of the applied principles, opening of the debate, more space for experimentation with other approaches and a focus on more realistic aims in terms of reducing drug-related harms. Others, how-ever, maintain that the reason the 'medicine' has not worked is that not enough has been applied and that the logical response should be to apply a stronger dose: re-affirm political commitment, oppose any tolerance, close ranks behind a 'get-serious' approach, set deadlines and don't be afraid to dirty your hands to achieve concrete results, "A drug free world - We can do it!" At the UN level, the polarisation has caused paralysis. The United Nations International Drug Control Programme (UNDCP) has actively promoted the re-affirm discourse, suffocating attempts to open up the debate, censoring critical remarks in its own publications, trumpeting doubtful success stories, and punishing dissent-ing views among its staff.(1) The International Narcotics Control Board (INCB) has maintained a very strict interpretation of the UN conventions and regularly appears to overstep its limited mandate by passing judgement on sovereign states whose policies take a slightly different direction and exercising pressure on them to get back in line. As for the UN Commission on Narcotic Drugs (CND), it is clear the more liberal-minded countries are taking a low profile. Careful not to fuel tensions that might endanger care-fully conquered ground for experimentation, they opt to keep the debate as general and diplomatic as possible, avoiding open controversy in the CND over their policy directions. The polarisation between the divergent trends became visible at the United Nations General Assembly Special Session (UNGASS) on Drugs, which took place in June 1998. The UNGASS motto 'A Drug Free World - We can do it!' recycled the illusion that with sufficient commitment and a bold strategy it was possible to eliminate illicit drugs from the planet completely. To reach that goal, during the months before UNGASS, UNDCP elaborated an ambitious plan called SCOPE, the Strategy for Coca and Opium Poppy Elimination by 2008. (2) UNDCP expected UNGASS to approve SCOPE, which called for a mix of alternative development The SCOPE plan, however, was not endorsed by the General Assembly. At the Vienna preparatory meetings, the proposal was criticised harshly by several member states, which prevented After having lost the opportunity to use UNGASS to re-assess current anti-drug policies, Around this same period (1997/98), a 're-affirmation' push was taking place in the United On the consumption side of the drug chain, an escalation also became visible. During the In Europe, meanwhile, another approach gained ground. Expected to contribute the alternative development components to accompany the escalation in the Andes, Europe instead took distance from the US-led War on Drugs. The blur-ring of lines between development and eradication, environmental concerns over chemical spraying, and the over-emphasised military force in the 'carrot and stick' balance, made European donors reluctant. US officials expressed their disappointment: "Everyone was looking for the rest of the world, particularly the Europeans, to do the soft side. We have done the military side. You can't do one without the other."(7) Apart from verbal disagreements and donor reluctance, Europe has been also reluctant to directly challenge the US and has had great difficulty defining an alternative policy framework for the drugs production side. Domestically, however, the Harm Reduction concept has spread very fast in recent years and has now become the basis for a rational and pragmatic drug policy in almost every European Union country and several others like Australia, New Zealand, Canada and Brazil. Practices like decriminalisation of consumption, leniency in law enforcement towards cannabis and towards pos-session of other drugs for personal use, and needle exchange programmes are commonplace nowadays. The more controversial steps further There is no question that sooner or later the tolerance trend guided by the Harm Reduction philosophy will run into the limitations of the UN conventions. It already touches the very edges With this blend of motives dominating the re-affirm camp, there is little possibility of negotiating a new consensus on the basis of rationality and pragmatism. There may still be possibilities, With regard to formal amendments to the conventions themselves, all parties do have to agree. Ultimately, the only formal escape route out of the consensus stalemate here would be for countries to denounce the conventions. Informally, groups of countries can choose to test the boundaries of UN conventions by taking the leniency approach beyond the point where this could be justified under the internationally agreed drug control principles, and then 'just take the heat'. Clearly, only some countries can afford politically to play with those margins. The INCB may not have the mandate or power to impose any sanctions, but the US still maintains its disciplinary system of certification and has several instruments of pressure. These obstacles are further explored in the other article in this edition. The divergent global policy trends are starting to lead to serious inconsistencies. At the CND in March this year, Morocco, for example, raised questions about the possible implications of the Being the leading multilateral agency for drugs issues, the functioning of UNDCP in all these matters is crucial. The agency not only implements UN programmes and advises many countries on drug policy matters, it also functions as the secretariat for both the INCB and the CND. The agency went through a deep crisis these past years. The UN Office of Internal Oversight Ser-vices (OIOS) was called in to investigate mismanagement, donors lost confidence and Executive Director Pino Arlacchi had to step down in December 2001. The combination of the strong zero-tolerance position with bad management has meant that UNDCP has not been able to play a moderating role amidst the growing polarisation. The recommendations of the OIOS triggered a reform process in mid-2001 at UNDCP's Vienna headquarters and several organisational improvements are now well underway. But the question remains as to whether the UNDCP will also be able to grow away from its politicised re-affirm position towards becoming more of a centre of expertise better able to reflect the different views on drug policy and its application nowadays. One of the OIOS reports concluded: "The role of ODCCP as a centre of expertise cannot be fulfilled without a free exchange of views, discussions and the involvement of staff in decision-making. However, at the time of the inspection, corporate mechanisms of collective advice and guidance and of programme and policy coordination were not functioning. Also lacking was a consistent system for programme This goes beyond the mere organisational reform needs that tend to become the focus In May 2002, Antonio Maria Costa arrived in Vienna as the new Executive Director of the UN Office for Drug Control and Crime Prevention (ODCCP) and Director General of the UN Office at Vienna (UNOV). In his very first speech to the staff upon arrival in Vienna in May, Mr Costa mentioned the need to be "tough in imposing upon ourselves the sort of efficient monitoring and evaluation of our work needed to restore Member States' confidence." He promised to make the values of "fairness, transparency and accountability (..) a fundamental part of our culture." (13) These statements combined with Mr Costa's vast experience in the management of international organisations - his latest position was secretary general of the European Bank for Reconstruction and Development - indicate his commitment to ensure the following through of the OIOS recommendations for organisational restructuring, In his address to the staff, Mr Costa emphasised the connections between "drugs, crime and terrorism, the evils of our time." The 1998 step to merge under one umbrella - ODCCP - the UNDCP and the Centre for International Crime Prevention (CICP) has over-emphasised the drugs-crime connection, however intimate and important that relationship is. As the current discourse adopted by most donors indicates, drugs is a 'cross-cutting issue' covering many policy areas. The drugs issue is as closely interrelated with health or development as it is with crime. Within the UN community, the particular relationship established between UNDCP and the crime department - as compared with the loose collaborative relationships with WHO, UNDP or UNAIDS - runs the risk of leading to an ODCCP drugs policy focus which leans more towards a law enforcement approach than a health or developmental approach. While most countries have established drug policy co-ordinating structures that carefully balance responsibilities between the health, justice, internal and foreign affairs departments, co-ordination on drug-related issues within the UN system is, in This has led to conflicting views and policies on the drugs issue within the UN community, and between UNDCP and major donors. The WHO's rational approach from a purely health perspective, which treats licit and illicit substances alike, regularly conflicts with the vision emanating from the UNDCP offices. While UNAIDS is actively promoting needle exchange programmes to prevent the spread of HIV, The mid-term UNGASS review could provide a new opportunity to achieve a breakthrough. A A necessary pre-condition for a breakthrough, however, will be political will and a concerted effort from those countries interested to pursue the path of pragmatism and conscious of the need to conquer more space on the UN level for national policy differentiation. This includes European countries like the Netherlands, Switzerland, Portugal, Germany, Belgium and the UK alongside like-minded countries like Canada and Australia, possibly with support from members of the GRULAC block of Latin American and Caribbean countries like Mexico, Brazil, Jamaica, Uruguay and Peru. Differences aside, policy developments in these countries demonstrate a common interest in lifting international drug control out of its present stalemate towards policies which offer more room for manoeuvre in the implementation of realistic and pragmatic policies. The time has come for the European countries leading this way to become more assertive about their achievements, to bring this refreshing tone to the UN level and to support - in the spirit of co-responsibility - those Southern countries that are eager to take steps in a similar direction also for the production side. Mexico has been elected to preside over that mid-term UNGASS review and its preparations. A rational guiding principle for the mid-term review can be found, perhaps, in the conclusions reached by the New York County Lawyers' Association: "The appropriate goal of any drug policy must be to decrease the prevalence and spread of harmful drug use and substance abuse, and to minimize the harms associated with such problems where they are found to exist. Additionally, any policy which creates more harmful results than the societal problems it proposes to solve, must be re-evaluated in terms of the advisability of further pursuit of such policy. Further, to justify continuation of any public policy, the costs incurred must always be weighed against the benefits derived. It is within this context, and with these criteria in mind, that present approaches to drug policy must be objectively assessed and, where appropriate, alternative models for future policy evaluated and considered."(16) 1. Letter of Resignation to Mr Pino Arlacchi, by Michael vd. Schulenberg, Director Division for Operations and Analysis - UNDCP, December 4, 2000 Habits of a Hegemon As dissatisfaction with the prohibition oriented UN drug control system builds, increasing numbers of states are reviewing their stance on the international treaties. The Netherlands is no longer isolated in testing the boundaries of the Conventions. Recent years have seen nations from around the Any such move would certainly encounter considerable hostility. As noted in the previous article, a major obstacle to considering any changes in that direction is the consensus-driven functioning of the CND. An important force sustaining such consensus is the United States. As its staunchest defender, it is the US that maintains the regime's disciplinary framework. Pressure from Washington has long supplemented the moral legitimacy bestowed upon the doctrine of prohibition by the UN. (1) This has produced a formidable source of inertia. Through the strategy of issue linkage, the US has certainly exploited its hegemonic status for the defence of the global drug prohibition regime it has worked so hard to construct. (2) This UN-US alliance has made it difficult for nations to deviate significantly, or even to discuss deviation, from the doctrine of prohibition. Since the 1980s, the US has used certification as an important vehicle for economic persuasion. The annual process has also been strengthened in recent years by Washington's efforts to conflate its war on drugs with the transnational fight against organised crime. (3) Such a move increases the reputational implications of deviation. Similarly, US moves to fuse the drug war with the new war on terror makes movement away from the prohibitive regime potentially damaging for a nation's international image. Clearly, when considering any change at the UN level, it would be unwise for nations to The re-scheduling of substances is one possible method parties could use to create more space for movement within the current regime. This is an option often discussed in relation to cannabis. This is especially the case since the WHO recently announced that it would be "very pleased to consider scientific data" on the drug. As the WHO noted, the Single Convention outlines conditions for the changes in the scope of international control. Article 3 allows for amendments to the list of classified substances and the system accompanying them. The WHO or any contracting party can initiate the modification process at any time. This is a legitimate course of action. At the practical level, however, it is far from straightforward. It can be taken as a given that any move towards modification would provoke US displeasure and attempts to discredit and 'persuade' parties to refrain from such action. Nonetheless, fundamental problems do exist with regard to the legal status of the cultivation of 'natural drugs.' As the International Anti- Prohibition League noted in 1994, according to the text of the commentary to the 1971 Convention on Psychotropic Substances, cannabis and cannabis resin "...could be deleted by the Commission [on Narcotic Drugs] from the Schedules of the Single Convention and indeed be withdrawn from the control instituted by this Convention "with respect to drugs, with the exception of the measures of control mentioned in article 26 and article 28 paragraph 1" (emphasis added). (5) To be sure, the retention of these unaltered articles means that any changes resulting from the reclassification of cannabis would not include provisions concerning cultivation. The CND, therefore, would be unable to abolish the prohibition of cultivation since it is entrenched in specific articles of the 1961 legislation. Only an amendment to the Single Convention could achieve revision. Such a situation clearly limits the utility of the rescheduling route. While other drugs could theoretically be re-scheduled according to procedures laid out in Article 3 of the Single Convention, changes relating to cannabis (as well as the coca leaf and opium) would be greatly limited. Concerns surrounding the issue of cultivation may be purely academic considering the considerable systemic obstacles that stand in the way of reclassification. While the WHO plays a central role in the rescheduling process the body can only make non-binding recommendations. The power to make any changes in classification initially belongs to the CND. The current state of the Commission makes it unlikely that sufficient support for re-scheduling would be forthcoming. The complex dynamics of the 53-member body creates considerable inertia resisting any significant change within the regime. Additionally, while perhaps not as dominant as in earlier years, the US still plays an important role in influencing the direction taken by the Commission. As a diplomat at the UN in Vienna observed only a few years ago "Wherever a nation seems about to break ranks [with Washington's views on prohibition] the US will be there, cajoling or threatening." (6) Under such circumstances even the necessary majority, rather than a consensus, decision required to approve re-scheduling may prove unobtainable. And yet, even if the WHO or a party were to make a recommendation concerning reclassification and the CND were to accept it, Article 3 has other means for blocking possibilities. In accordance with paragraph 8 (a) only one party has to make a request for the Commission's decision to be taken to the ECOSOC for review. The Council then has the authority to confirm, alter or reject the decision of the CND. The ECOSOC's decision is final. This clause could easily be invoked by the US or a proxy nation to shift the decision-making process to the 54-member Council. Again, although the judgment is dependent upon a majority rather than a consensus decision, the forum of the ECOSOC would offer the United States further opportunities to create and exploit issue linkage. In light of both the cultivation issue and the obstacle-strewn route to re-scheduling, parties may feel that the modification game isn't worth the candle. It would seem at first glance that the amendment procedure offered by Article 47 of the Single Convention is a more cost-effective route. As with modification, however, the amending route provides plenty of scope for blocking action by a nation opposed to revision of the regime. The central role played by the ECOSOC in the process would again permit the US to take advantage of issue linkage. Amending the Single Convention involves parties notifying the Secretary-General of a proposal for an amendment, including the reasoning behind the move. The Secretary-Gen-eral then communicates the proposed amend-ment and the reasons for it to the Parties and to the Council. It is then the ECOSOC's decision to either call a conference to consider the amendment, or ask the parties if they accept the amendment. If no party rejects the amendment within 18 months after circulation by the Council, the amendment comes into force. This outcome would appear to be most unlikely with the US stance on the maintenance of the regime beyond doubt. If, as is more probable, one or more parties reject the amendment and submit to the ECOSOC their comments within 18 months, the Council can decide whether or not to convene a Clearly then, difficulties beset the options available to create more room for manoeuvre Articles within all the treaties allow parties to withdraw consent by depositing in writing a denunciation with the Secretary-General. (8) Although perhaps regarded as an extreme move, action of this type, as the Canadian LeDain Commission noted thirty-years ago, "...would not, of course, be in violation of international obligations" since it is written into the treaties. (9) It would undoubtedly, however, draw extreme criticism from the UN and the US. As noted above, a party who chooses to denounce the treaties would have to be prepared to face not only US-UN condemnation but also the threat or application of some form of US sanctions. As Peter Andreas notes, Denunciation, nonetheless, opens up some interesting possibilities. If a credible group of parties from Europe, Australasia and Latin America, for example, were to combine to denounce one or all of the treaties, the US-UN axis may lose much of its potential influence. The 'denouncers' may find safety in numbers. Paradoxically, by moving to leave the confines of the regime such a group might be able to generate a critical mass sufficient to initiate regime change and thus create some space for movement at the national level within the current system. The UN apparatus and the US might be more open to treaty modification or amendment if it was felt that such a concession would prevent the destruction of the existing treaty system. This would differ from the procedures to modify the treaties discussed above since such a group would not simply be playing the numbers game in an effort to gain majority decisions in both the Council or the Commission. A sufficiently weighty 'denouncers' group may be able to not only withstand UN-US pressure, but also apply pressure itself. Alternatively, in view of the fact that members of the group would have already broken free from the regime, nations may feel sufficiently confident to simply walk away from the treaties. While theoretically possible it would be highly unlikely that the denunciation route could be employed to formally terminate the treaties. For example, as of January 2002 it would require 138 nations to denounce Should parties prefer not to follow the denunciation route, they could exploit what Peter Thus, if the highest courts in signatory nations ruled that such prohibitive clauses with regard to a single drug (cannabis for example) or a selection of outlawed substances was unconstitutional, Another strategy, as alluded to above, would be for parties to simply ignore the treaties. In this way, they could institute any policies deemed to be necessary at the national level, including for example the legalisation of cannabis and the introduction of a licensing system for domestic producers. This option has been gaining support amongst many supporters of harm reduction for some time. Disregarding the treaties, however, raises serious issues beyond the realm of drug control. The possibility of nations unilaterally ignoring drug control treaty commitments could threaten the stability of the entire treaty system. As a consequence, states may be wary of opting out. Some international lawyers argue that This 'collective responsibility for global order' argument would, of course, be more persuasive were it not for the cafeteria approach to international law adopted by world's only Superpower. The US withdrawal from the Kyoto Treaty and repudiation of the ABM treaty had already gone a long way to threaten the treaty system before its recent announcement to 'unsign' itself from the convention to establish an International Criminal Court. In facilitating this unprecedented move, the Bush II administration has asserted that the US is also no longer bound by the Vienna Convention on the Law of Treaties. Under the 1969 convention, a country that has signed a treaty cannot act to defeat the purpose of that treaty, even if it doesn't intend to ratify it. (14) Thus, having set this precedent on the basis of national interest, Washington will surely find itself in an awkward position Nations wishing to expand national policy space by operating beyond the confines of the The possibility for parties to successfully modify the treaties is limited. Many opportunities exist for nations that favour the status quo, particularly the US, to block any move for re-scheduling or amending. A re-examination of the treaties may also provide prohibition-oriented nations with the opportunity to hijack proceedings and strengthen the current regime. This may lead parties to seriously examine various options for denunciation and withdrawal. As shown, a credible alliance of nations would be better able to withstand UN-US opposition than a lone state. That said, levels of resilience would certainly differ between nations, depending upon their economic status and relationship with the US. The abandonment of many multilateral treaties by the Bush II administration has also re-opened debate on the efficacy of simply ignoring the drug conventions. If faced with censure for defecting from the global It is clear that international acceptance of a US-inspired and perpetuated global blueprint for drug prohibition is waning fast. Yet, while becoming increasingly isolated, the US, as David Bewley-Taylor lectures at the Department of American Studies of the University of Wales Swansea, UK; he is the author of The United States and Internation-al Drug Control, 1909-1997, Continuum, London, 2001 References 1. Inis L. Claude, Jr., "Collective Legitimization as a Political Function of the United Nations," in Frederich Kratochwil and Edward D. Mansfield, International Organization: A Reader, HarperCollins, 1994, p. 196. (First published in Inter national Organization, 20 (1966), pp. 267-279 and David R. Bewley-Taylor, The United States and International Drug Con-trol, 1909-1997, Continuum, London, 2001, p. 7 & pp. 185-186 |
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See also
- In April 2003, there is to be a mid-term review of the outcomes of the United Nations General Assembly Special Session (UNGASS) on the World Drug problem in 1998. The UNGASS was originally called for to evaluate the effectiveness of the global drug contro
- Breaking the Impasse. Mid-term UNGASS Review. Obstacles and Opportunities
- Related websites and documents: UN Drug Control
- Revising and Integrating Policies at National and International Level
- The backbone of the worldwide drug control system consists of three United Nations
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