Prospects for Treaty Reform and UN Coherence on Drug Policy

Improving Global Drug Policy: Comparative Perspectives and UNGASS 2016
01 May 2015
Policy briefing

Can UNGASS 2016 realistically initiate a process of modernizing the global drug control system and breathe oxygen into a system risking asphyxiation?

Published at
Brookings

This paper explores key lessons from the 1990 Special Session of the United Nations General Assembly on Drug Abuse (UNGASS 1990) and the 1998 Special Session of the United Nations General Assembly on the World Drug Problem (UNGASS 1998), and tracks subsequent policy events and trends. It discusses the wide array of increasing tensions and cracks in the "Vienna consensus," as well as systemic challenges and recent treaty breaches. Various options for treaty reform are explored.

The following questions are considered: Given policy developments around the world this past decade, what outcomes can the 2016 Special Session of the United Nations General Assembly on the World Drug Problem (UNGASS 2016) have in terms of a new political compromise? How can UNGASS 2016 contribute to more system-wide coherence where previous attempts failed? Can UNGASS 2016 realistically initiate a process of modernizing the global drug control system and breathe oxygen into a system risking asphyxiation? Finally, is there a chance that treaty reform options will be discussed at all, or do today’s political realities still block possible future regime changes?

This paper is part of the project Improving global drug policy: Comparative perspectives and UNGASS 2016 by the Brookings Institute.

Key findings

  • In April 2016, the United Nations (UN) will dedicate, for the third time in its history, a Special Session of the General Assembly (UNGASS) to review the performance of the UN drug control system and provide an opportunity for improving the UN’s normative guidance and legal and institutional framework.
  • Initiatives taken at UNGASS 1990 to develop a UN system-wide coherent drug policy failed dramatically over the following decade.
  • UNGASS 1998 supported the quixotic goal of a drug-free world by setting 2008 as the target to "eliminate or significantly reduce" the global illicit drugs market.
  • Rather than admitting that progress toward the target had not been made, United Nations Office on Drugs and Crime has promoted a "containment" hypothesis, claiming the "undeniable success" of a century of international drug control.
  • Present divides in global drug policy preclude any significant progress on a new UNGASS political declaration through consensus-driven negotiations.
  • Controversial issues like cannabis regulation and treaty reform are unlikely to appear prominently on the UNGASS 2016 agenda.
  • Legal arguments denying conflict between cannabis regulation and the strictures of the UN conventions are counterproductive.
  • By stretching the treaty-flexibility approach beyond the legally defensible, the United States is reverting to selective adherence to international law based on political expedience.

Policy recommendations

  • The drug control conventions lack built-in review mechanisms to enable the system’s evolution, but there are several treaty reform options that do not require consensus, such as the rescheduling of substances.
  • Modifications inter se may offer an attractive interim option for like-minded countries to legitimize legal regulation of the cannabis market under international law by modifying the treaty only between themselves.
  • An expert advisory group should be established to review the UN drug control architecture, system-wide incoherence, treaty inconsistencies, and legal tensions regarding cannabis regulation.
  • The Civil Society Task Force should be supported in its efforts to ensure meaningful participation from nongovernmental organizations in the UNGASS 2016 process.
  • Member states should heed Ban Ki-moon's urgent plea that they use UNGASS 2016 "to conduct a wide-ranging and open debate that considers all options."

The final and concluding section of the paper

Policy Recommendations for UNGASS 2016

A genuinely open and inclusive debate is the only promising way forward. Denying the reality that the drug policy landscape has changed and that systemic breaches have occurred is no longer a feasible option. Just one year away from UNGASS 2016, the chance that controversial issues like cannabis regulation and treaty reform will appear prominently on the agenda are slim at best.

Most likely there will be unsatisfactory watered-down language vaguely reflecting a change of course in drug policy: more focus on health and development, less criminalization, more respect for human rights and proportionality in sentencing, better access to essential medicines, and so on. But such high-level political gatherings have the potential to ratify more progressive language on each of these key issues, thereby showing that things are changing and moving in the right direction.

Legally untidy justifications arguing that there are no tensions between ongoing drug policy reforms and the strictures of the UN conventions are counterproductive. An honest discussion about the inconsistencies and the Jurassic nature of the treaty regime cannot be avoided much longer.

The pressure from local and national policy changes will continue to build, and the UN regime will soon have to show a capacity for evolution to accommodate these developments. Otherwise the treaty system risks becoming irrelevant as more countries resort to dubious unilateral reinterpretations, leading to an à la carte approach of cherry-picking politically convenient treaty provisions and simply ignoring the rest, and in so doing weaken respect for the basic principles of international law.

At present, the broken Vienna consensus and politicized divides in global drug policy cripple any possibility of reaching significant UN-level progress in a political declaration or in treaty reforms through consensus-driven negotiations, as the 2014 Joint Ministerial Statement clearly manifested. Hence, it is perfectly understandable that a majority of countries resists putting treaty reform formally on the policy agenda at this point in time.

A more promising approach would be to explore, at least for the interim, systemic reform options that do not necessarily require consent of all treaty parties. The possibility of an inter se agreement, specifically designed for these kinds of circumstances, could offer an attractive option for a group of like-minded countries interested in beginning a discussion on how to make the international drug control framework "fit for purpose" again. Over time, such an inter se agreement might evolve into an alternative treaty framework to which more and more countries could adhere.

In principle, several other routes could also allow more maneuvering within the treaty regime while avoiding the cumbersome process of unanimous approval. A decision to remove a specific substance, the coca leaf or cannabis for example, from the schedules listing the drugs controlled under the 1961 Convention, or to move it to a lighter-controlled schedule, is taken by a simple majority vote in the CND on the basis of a WHO recommendation, and so does not require consensus. Similarly, rescheduling decisions of substances controlled under the 1971 Convention require a two-thirds majority vote.

The General Assembly is mandated to adopt amendments by majority vote for most UN treaties, including amendments of the drug control conventions. Additionally, individual countries or groups of like-minded countries can exempt themselves from certain treaty provisions using the Bolivian route of withdrawal from a treaty followed by re-accession with a reservation, when the validity of certain provisions are questioned on the basis of a legal conflict with other obligations.

At this early preparatory stage, one cannot predict whether UNGASS 2016 will be a watershed moment in drug policy history or one more anticlimax, as in 1998. But drawing lessons from the history of the UN drug policy debate and previous special sessions can facilitate a meaningful process and outcome for UNGASS 2016.

Special advisory groups played a useful role in both UNGASS 1990 and 1998, in spite of the political restrictions imposed upon their mandates and composition. The secretary-general and the president of the General Assembly should use this mechanism again for UNGASS 2016, especially given the array of tensions, cracks, and breaches described above.

The group’s terms of reference should cover all key issues emerging in UNGASS preparations, including the UN institutional drug control architecture; UN system-wide coherence on drug policy; harmonization of drug control with human rights and development principles; inconsistencies of the treaty regime regarding scheduling criteria and procedures; securing the availability of controlled drugs for medical purposes; and the increasing legal tensions with evolving policy practices, especially with regard to cannabis regulation.

The group’s main task would be to recommend ways to better deal with these contentious and difficult issues following UNGASS 2016, in preparation for the next UN high-level review in 2019. The composition of such an advisory expert group no doubt will be subject again to political negotiations, but evolved UN standards for such initiatives are likely to enable participation from different UN agencies, civil society, academic experts, and affected populations such as drug users and farmers.

While recognizing the special role and expertise of the Vienna-based agencies, another lesson learned from previous special sessions is the importance of active involvement by all relevant UN agencies. The near monopoly Vienna acquired over the drugs issue within the UN system after UNGASS 1998 has proven to be an obstacle to a more system-wide coherent approach.

The marginalized position of the WHO, despite its comparable mandate to the INCB under the drug control conventions, is a case in point and requires urgent attention. Actively soliciting and mandating the participation of UN agencies working in the fields of health, social and economic development, human rights, and peacekeeping would surely contribute to a more holistic and balanced approach at UNGASS 2016.

The UN System Task Force on Drug Trafficking and Organized Crime, jointly coordinated by UNODC and the Department of Political Affairs, could play an important role in that process given its special mandate to facilitate contributions of all relevant UN departments in the UNGASS process.

Since the previous two UNGASSs, global civil society, affected populations, and the academic community have become more active and better organized on drug policy issues. Mechanisms for their meaningful participation in UN-level drug policy making processes have improved but still do not live up to the established practices of most other branches in the UN family.

A Civil Society Task Force has recently been jointly created by the Vienna and New York NGO Committees on Narcotic Drugs to strengthen civil society participation in the UNGASS process; it should receive full support in its efforts to ensure optimal use of the accumulated nongovernmental expertise and experience to shape the UNGASS process and its outcomes. Secretary-General Ban Ki-moon urged member states to use UNGASS 2016 "to conduct a wide-ranging and open debate that considers all options."

UN special sessions are precious—and costly—political opportunities for the international community to discuss key global challenges and to agree on more effective policy responses to protect the welfare of humankind. Such an opportunity must not go to waste.

 

Photo: Hyperakt