Breaking the Impasse. Mid-term UNGASS Review. Obstacles and Opportunities

Breaking the Impasse. Mid-term UNGASS Review. Obstacles and Opportunities
Martin Jelsma - TNI Fellow
IPPR seminar on Drug Law Reform, London, 18 June 2002

1. Current Situation. Where are we?

Europe: Irreversible Trend Toward Pragmatism

In Europe and several like-minded countries, a pragmatic approach has gained ground in domestic drug policy-making, taking distance from indiscriminate repression and zero-tolerance. In these countries, the trend towards greater leniency has become irreversible and rational thinking is gradually replacing the dogmas of the past. 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 many European countries and several others like Australia, New Zealand, Canada and Brazil. Practices like the decriminalisation of consumption, law enforcement leniency towards cannabis and possession for personal use, and needle exchange programmes are commonplace nowadays. The more controversial steps further along the path of leniency, like 'coffee shops', heroin (diamorphine) prescription programmes, XTC testing, etc, have received acceptance beyond the pioneer countries, Switzerland and The Netherlands, and are under consideration or in preparation in several other countries. Europe has advanced rapidly on these issues. The trend towards more leniency has become irreversible.

The electoral shifts to the right may well cause some set-backs and delays, as became clear last week in The Netherlands with the parliamentary vote against extension of the heroin maintenance programme. It is also very clear that major tensions persist within the EU, where especially France and Sweden are maintaining a tough stance against leniency. Last week in Brussels, no agreement could be reached between the Justice Ministers on harmonisation of penalties. Still, the trend is rooted so strongly in policy practices at municipal levels all across Europe that the point of no return has been passed.

There is no question that sooner or later the tolerance trend guided by the Harm Reduction philosophy will run up against the limitations of the UN conventions. It already touches the very edges of the letter and spirit of some articles. All steps taken thus far are defendable in that they adhere to the 1961 Single Convention, as well as most of the stricter obligations agreed to in the 1988 Vienna Convention. If the countries committed to the search for pragmatic solutions want to advance any further, it is becoming urgent that they begin to question openly the straitjacket of the conventions.

Paralysis: UNDCP crisis / CND consensus

That is easier said then done because on a global level the European trend is only one side of the picture. The other side reveals a trend in the opposite direction: an escalation in the US-driven War on Drugs, which has created a drug gulag domestically and increased and militarised forced eradication abroad. The past decade has thus shown an increasing polarisation between two diverging trends in global drug policies. And at the UN level, this polarisation has caused paralysis.

The United Nations International Drug Control Programme (UNDCP) has actively promoted a discourse to re-affirm political commitment, oppose any tolerance, close ranks behind a 'get-serious' approach, set deadlines and not to fear dirtying hands to achieve concrete results, "A drug free world - We can do it!". The agency went through a deep crisis these past years, suffocating attempts to open up the debate, censoring critical remarks in its own publications, trumpeting doubtful success stories, and punishing dissenting views among its staff. The UN Office of Internal Oversight Services (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 a strong zero-tolerance position and bad management has meant that UNDCP has not been able to play a moderating role amidst the growing polarisation.

The International Narcotics Control Board (INCB) has maintained a very strict interpretation of the UN conventions. It regularly appears to overstep its limited mandate in passing judgement on sovereign states whose policies take a slightly different direction, exercising pressure on them to get back in line. The INCB warns, in its 2001 report, of an increasing tension between expanding tolerance practices and strict adherence to the conventions and attacked, with strong wording, cannabis policy trends in Europe. The report complains that in Italy, Luxembourg, Portugal and Spain possession of cannabis is no longer considered a criminal offence, worries about legislative changes under consideration in Belgium and the United Kingdom, and condemns The Netherlands and Switzerland for acting in contravention of the international drug control treaties.

As for the 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 carefully 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.

Mid-term UNGASS review: What's at stake?

The mid-term UNGASS review could provide a new opportunity to achieve a breakthrough in the paralysis within the UN. A two-day ministerial segment will be included in next year's CND session, scheduled for 8-17 April 2003 in Vienna, to evaluate progress made with regard to the goals and targets set out in the Political Declaration of the 1998 UNGASS. The review provides the first global opportunity since the UNGASS to re-assess and adjust the current international drugs policy framework. UNDCP will play a crucial role in preparing for the review. The Executive Director presents biennial reports to the CND on progress as regards the UNGASS outcomes, which will form the basis for the evaluation in April 2003.

Breaking the Impasse. Where could we go from here

Looking at this European trend, the UN paralysis and the upcoming UNGASS review, what would be needed to turn the review into an opportunity to break the impasse and what could be a possible agenda to pursue?

Using the Opportunity

• Bring together a critical mass of like-mindedness
  The urgency is to create the political space that would allow the trend of pragmatism to move ahead, guided by open-mindedness, evaluation of practices on the basis of costs and benefits, leeway for experimentation, and freedom to challenge the wisdom of the existing conventions.
  A necessary pre-condition for a breakthrough will be political will and a concerted effort from those countries interested to pursue this path and convinced of the need to conquer more space at 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 debates and developments in all 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. Mexico has been elected to preside over the mid-term UNGASS review and its preparations. Mexico is the country that originally called for the 1998 UNGASS, aspiring to convene a forum for in-depth evaluation of global drug control policy.
  The time has come for the European countries leading this way to become more assertive about their achievements, to bring a refreshing tone to the UN level and to support Southern countries eager to take steps in a similar direction. To get there means seriously putting the issue of the mid-term review on the agenda of formal fora like the Horizontal Drug Group and the Dublin Group, but will also require more informal channels of communication and strategising to side-step the usual stumbling blocks that prevent reaching agreement on a common position within the European Union and GRULAC blocks.
• UNDCP reform process
  Being the leading multilateral agency for drugs issues, the functioning of the UNDCP in all these matters is crucial. The agency not only implements projects and advises many countries on drug policy matters, it also functions as the secretariat for both the INCB and the CND. The recommendations of the OIOS triggered a reform process in mid-2001 at the 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 position towards becoming more of a centre of expertise better able to reflect the different views on drug policy and its application nowadays.
  Mr Arlacchi not only ran the office in a "highly centralized and arbitrary manner", but claimed successes on the drugs front "beyond the limits of credibility" - concluded the OIOS. He also dragged the agency into highly questionable projects like the aborted SCOPE programme, the Tajik Drug Control Agency, the mycoherbicide projects for Colombia and Afghanistan. Those projects have caused considerable damage to the political credibility of the organisation. It was not only his managerial style or the lack of transparency around projects that was problematic, but also the policy direction in which he took the agency. The much-criticised World Drug Report 2000 was a case in point, demonstrating how out of touch the agency was with shifting opinions on international drug control. All this contributed to an erosion of confidence among donors, and even more strongly amongst the NGO and academic communities working on drugs issues.
  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). In his very first speech to the staff upon his 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" These statements indicate his commitment to ensure follow through of the OIOS recommendations for UNDCP reform.
  The UNGASS mid-term review will present Mr Costa with a high-level political opportunity to convince the world of his commitment to take UNDCP in a more rational direction, to say farewell to the years of crisis, to restore donor confidence and to open up the debate.
• Create political momentum: April 2003
  At this moment, the only certainty about the mid-term review is that it will happen. Whether it will pass by almost unnoticed or whether it becomes a significant moment, fully depends on the political momentum we manage to create between now and April next year. In March, the CND adopted a resolution (45/7) setting some basic rules. The idea is to convene three one-day preparatory sessions in Vienna in the second half of this year to define the agenda. In the CND discussions about the draft resolution, two big clouds appeared already casting shadows on the prospect of a serious evaluation.
  Firstly, the US declared that it was not necessary "to agree on a declaration to be adopted by the ministers at the conclusion of the ministerial-level segment" (the wording of the draft text) because "we already have the Political Declaration of 1998". The objection was against the use of the word 'declaration', which might give the impression that the new declaration could replace or adjust the 1998 one. The UK supported this view, which in fact means that the objective in April 2003 should not be to re-assess the conclusions reached by the UNGASS, but should be restricted to an an interim stocktaking on the implementations of the UNGASS commitments and provide recommendations for the period 2003-2007. The final resolution agreed on the wording of a "brief joint ministerial statement" to be issued at the closure of the ministerial segment.
  Secondly, it became clear that there are, in fact, no funds available to convene the preparatory meetings, basically because of mistakes made with handling the annual budget for intersessional meetings. This relates primarily to costs of simultanuous translation because use of the building does not bring any costs to the CND and travel costs are covered by member states themselves. This comes down to something like USD 30-37,000 per day, but because that was no longer available in the budget and the New York secretariat was unable to provide additional funds for this purpose, no decision could be made about how and when to organise the preparatory meeting.
  The resolution therefore "Decides that intersessional sessions in the second half of 2002 shall be devoted also to preparations for the ministerial-level segment of its forty-sixth session and that up to three additional one-day intersessional sessions shall be held, if necessary, for that purpose, if and when services are available at no additional cost to the Organization, and requests the Secretariat to undertake a careful review of the relevant budgets and utilization of facilities to enable the holding of those intersessional sessions..."

Agenda for April 2003

In spite of these obstructions already in the making, we should try to establish an agenda on the basis of which we might find common ground between a number of NGOs and a group of 'like-minded nations'.

1. Arrive at some basic conclusions
   At the very least, we should try to prevent the mid-term review recycling unrealistc pledges and reconfirming deadline thinking. A drug free world is an illusion.
   The chairman of the Home Affairs Select Committee Chris Mullin, said: "Attempts to combat illegal drugs by means of law enforcement have proved so manifestly unsuccessful that it is difficult to argue for the status quo." The report concluded:
   "If there is any single lesson from the experience of the last 30 years, it is that policies based wholly or mainly on enforcement are destined to fail. It remains an unhappy fact that the best efforts of police and Customs have had little, if any, impact on the availability of illegal drugs and this is reflected in the prices on the street which are as low as they have ever been. The best that can be said, and the evidence for this is shaky, is that we have succeeded in containing the problem."
   We have to try to bring the debate to the level of a rational evaluation on the basis of a cost-benefit analysis of current anti-drug policies, shifting the attention from illusionary global pledges to best practices and lessons learnt.
2. Open debate about conventions
   Till now, the UN Drug Conventions have been sacrosanct, blocking any attempt to move further along the path of pragmatic solutions. The stalemate between prohibition and legalisation is confusing public opinion and paralysing the policy debate.
   The House of Commons Home Affairs Committee in its recent report "The Government's Drugs Policy: Is It Working?" rejected the concept of legalisation and regulation of drugs. They acknowledged there are some attractive arguments for it, but called it a "step into the unknown... to tread where no other society has yet trod... to gamble the undoubted potential gains against the inevitability of a significant increase in the number of users.."
   But they also concluded:
   "All of our recommendations could be implemented without breaching the treaties or requiring their renegotiation. In the long term, however, we believe the time has come for the international treaties to be reconsidered. We recommend that the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways-including the possibility of legalisation and regulation-to tackle the global drugs dilemma."
   We have to move beyond the deadlock where the UN conventions are cast in stone, representing for the prohibitionist camp the ultimate line of defence against the flood of evil drugs. While on the other end, many legalisers delude themselves that all the problems could be solved simply by scrapping the conventions. We have to accept the many realities created by the prohibition regime and think in terms of realistic and pragmatic steps that can move us forward from where we are now towards a more just and effective policy, with a focus on allowing more space for national policy diversity. Questioning the wisdom of the Conventions as they stand today should be an acceptable and normal dimension of that debate.
3. Cannabis regulation
   In several countries -not only in Europe-, debates are now taking place that openly question the wisdom of prohibition of cannabis products and open up the discussion to looking at legal models for the regulation of that illicit market. There have been government sponsored cannabis conferences to explore the option to move forward on this issue in Europe. In the case of cannabis, this would not be a step into the unknown because of the de-facto situation in several countries.
   In order to advance on the cannabis issue, it could be very helpful to make use of the experience gained in the meetings about the WHO Framework Convention on Tobacco Control on how to legally regulate a harmful substance. Current tobacco negotiations cover many areas, like prevention policy; restrictions on advertisement, marketing and non-smoking areas; taxation and the suppression of an illegal parallel market - cigarette smuggling is a huge criminal business.
   The tobacco convention is a potential blueprint for cannabis regulation across all aspects of the production chain - cultivation, trafficking, consumption, including the difficult issue of how to provide other means of subsistence to farmers now dependent on illicit crops, and the inequalities in trade relations between North and South. In the case of tobacco, this is a very delicate subject in the negotiations. The European Commission has proposed that subsidies for growing tobacco (1 billion Euro to 135.000 farmers) be phased out and replaced with support for economic development and transition to alternative economic activities.

Using the tobacco example, we can argue that to design a cannabis regulation framework, we don't have to start from scratch. The conversion of the illicit cannabis market to a system of regulation is neither a step into the dark nor a risky undertaking, and will provide valuable lessons for policy considerations in relation to other illicit drugs as well. It might well light the end of the tunnel of polarisation and paralysis.

Conclusion

The mid-term UNGASS review could be an opportunity to break the impasse if we manage to:

1. Bring together a critical mass of like-mindedness
2. Ensure the UNDCP reform process to continue
3. Create political momentum toward April 2003 to overcome the obstacles already in the making

Recommendations for an agenda to work on toward April 2003 are:

1. Arrive at some basic conclusions, a drug-free world is not possible
2. Open the debate about the conventions, moving beyond the prohibition-legalisation stalemate
3. Move the debate on cannabis regulation forward, making use of the tobacco control framework