How can Reform be Achieved?

Revising and Integrating Policies at National and International Level
27 March 2002

hans_brinkerAllow countries and regions more space for policy reform using and stretching the margins of the conventions. Strengthen alliances of like-minded nations to support one another and effectively coordinate efforts at the UN level through informal consultations and strategy meetings. Any crack in the global prohibition regime would not plunge the world into chaos immediately. We should not press for a new global straitjacket but for a model that respects cultural differences. We have to open up the debate about the wisdom of the conventions as they stand.

 

 

 

The tale of Hans Brinker:

This is a famous Dutch tale about an 8-year-old boy who put his finger in the dike to save the city of Haarlem. The dramatic story goes like this. Some 150 years ago, on a beautiful autumn day, Hans Brinker took some cookies to a blind man who lived further down the dike. While walking, he noticed that the rains had raised the water to dangerous levels. Without any advance warning, the weather turned very dark and windy. Suddenly, the boy heard the sound of dripping water. He looked and saw a very small hole in the dike. His father always spoke about the evil water. So the little boy knew there was great danger that the small hole in the dike could get bigger and bigger and cause the dike to burst. This could result in the flooding of large parts of the country and many people could die. He immediately knew what to do. He climbed down the dike and put his finger in the hole. No more water came through it. "I will rescue the city from the evil water", the little boy said bravely to himself. He screamed for help but nobody could hear him. Quickly our little hero became colder and colder. His feet in his wooden clogs got very wet. The night was falling rapidly. The boy was scared, cold, lonely and very tired but he decided to hold on all through the night. The next morning, the local vicar came walking along the dike and heard Hans Brinker crying. Help soon arrived and the city was saved. Though this never really happened, there is a beautiful statue in Haarlem today showing Hans with his finger in the dike.

At the risk of betraying one of the heroes of Dutch history, I want to argue that in the case of drug policy we do not need any Hans Brinkers. The flood is already on this side of the dike. The tale symbolises the polarisation within 'prohibition versus legalisation', which is confusing public opinion and paralysing the policy debate. We have to move beyond seeing the dike of the current prohibition regime as the ultimate line of defence against the flood of evil drugs and where the UN conventions are cast in stone. On the other hand, we also have to be careful with a drug policy reform agenda which plays with images of blowing up the dike and to speak in terms of the "fall of the wall of prohibition" as long as concepts of legalisation are so diverse, ill-defined, confusing and the consequences not sufficiently thought through for the whole drug chain.

The first step is to get rid of the fear that the holes in the prohibition regime - apparent in many countries now - will flood the world with the evils of drugs, and the panic-stricken efforts to put fingers in dikes. As I've said, it's too late, the flood is already on this side of the dike. There is, however, a wealth of accumulated knowledge about the drug phenomenon in all its aspects and enough experts and responsible policy people in place to assure that a process of reform can be guided in the right direction. The urgency is to create the political space which would allow this reform process 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.

My own view is that the way in which the global prohibition regime was set up so many decades ago was a serious historical mistake, increasing rather than diminishing the problems. There is no point now dreaming about how the world may have looked without it, or deluding ourselves that all the problems could be solved now 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 greater allowance for regional and national specificities. In that spirit, I offer some recommendations and input for our debate with first, a rough overview of where we are at and then a closer look at some of the scenarios that offer some strategies for change and which require our urgent attention.

A sketch of diverging policy trends

The big trends in drug policy making over the past decade reveal two opposing tendencies: one tends towards tolerance and pragmatism while the other gets tough and tries to reinvigorate a zero-tolerance mentality.

These diverging trends begin from a shared recognition that all combined efforts thus far - eradication, alternative development, drug seizures, disruption of trafficking groups, 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 measurable reduction in either supply of or demand for illicit drugs. As the Inter-American Drug Abuse Control Commission (CICAD) says about cocaine: "The overall conclusion is that, notwithstanding efforts to reduce crops in producing countries and cocaine seizures, production and availability of this drug for consumption have not been reduced".

In the consumption markets, wholesale and retail prices show a consistent downward trend while purity levels are rising, which means there is no shortage on the market. Consumption patterns and youth culture fashions are continuously changing (between preferences for cannabis, XTC, amphetamines, cocaine/heroin/poli-drug use, etc) but there is no indication whatsoever that overall levels of consumption of illicit substances are diminishing, quite the contrary.

Now, some conclude that this recognition should lead to a global evaluation: re-assessment of the applied principles, opening of the debate, experimentation with other approaches, a focus on more realistic aims in terms of reducing drug-related harms, etc. Others, however, maintain that the reason the 'medicine' has not worked is that not enough has been applied and that the logical response should simply 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 a bit to achieve concrete results, "A drug free world - We can do it!".

The results of the tension between the re-assess and re-affirm camps are as follows:

(1) On the consumption side, 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 possession of other drugs for personal use, coffee shops, heroin maintenance programmes, needle exchange, XTC testing, etc. Compared with the tense situation at the time of the Maastricht Treaty, Europe has advanced rapidly on these issues.

(2) On the production side, quite to the contrary, we've seen an escalation these past five years of repressive approaches. Intensification of chemical spraying of crops in Colombia, an attempt to develop mycoherbicides to start a biological front in the War on Drugs, increasing military involvement in drug control efforts especially in Latin America under US leadership, the setting of the 2008 deadline at the United Nations General Assembly Special Session (UNGASS) on drugs, and a blurring of lines between Alternative Development approaches and repression.

(3) At the UN level, the polarisation has caused paralysis. The United Nations International Drug Control Programme (UNDCP) these past years has explicitly followed and actively promoted the re-affirm trend, suffocating attempts to open up the debate, censoring critical remarks in its own publications, trumpeting doubtful success stories, punishing dissenting views among its staff. As for the Commission on Narcotic Drugs (CND), it is clear the re-assess and liberal-minded countries are taking a very low profile. Careful not to fuel tensions that might endanger their carefully conquered ground for experimentation, they opt to keep the debate as general and diplomatic as possible, studiously avoiding open controversy in the CND over their policy directions.

Key scenarios and opportunities for change

I. Strengthen Harm Reduction policy trend

On the cannabis front, policy developments are gaining steam. The UK is currently considering a reclassification of cannabis from a class B to class C drug, while Belgium and Switzerland are on the brink of taking significant new policy steps, including on issues of possession and cultivation.

Today's Hans Brinkers, the guardians of prohibition, are doing their best to stop the hole from getting bigger and bigger. At the CND recently (11-15 March), there was a strong attack against the more relaxed policy trend in Europe towards cannabis. There was an orchestrated - and apparently International Narcotics Control Board (INCB) inspired - attempt to get a CND resolution to put a finger in the 'leniency' hole in the dike.

Next year, a new attempt to have a CND resolution adopted to slow down the trend towards cannabis decriminalisation, may well be undertaken. This last one focused on "use", where the conventions allow most flexibility, which made it relatively easy for the attacked countries to defend their leniency. If a similar resolution appears on the issues of possession and supply (coffee shops, cultivation), it will be much more difficult to negotiate a compromise.

There is no question that sooner or later the tolerance trend will run into the limitations of the UN conventions. It already touches the very edges of the letter and spirit of some articles. Both the Drugscope 'Room for Manoeuvre' study and a soon-to-be-released study by the University of Gent in Belgium clearly argue that all steps taken along this path so far are easily defendable in that they adhere to the 1961 Single Convention and even most of the stricter obligations agreed to in the 1988 Vienna Convention. Still, the latest INCB report, using a strict interpretation of the conventions, warns of an increasing tension between expanding tolerance practices and strict adherence. If the countries committed to the search for pragmatic solutions want to advance any further, it becomes urgent to begin to question openly and seriously the straitjacket of the conventions.

The obvious obstacle to considering any changes in that direction is the consensus-driven functioning of the CND. With the current polarisation, it is virtually unthinkable that any agreement could be reached even on the slightest tinkering with the straitjacket model or on the possibility of allowing more space for member states to re-define their own drug policies. Even among the most fervent defenders of the prohibitionist regime, considerable differences exist as to the cultural and political roots of their zero-tolerance position. For Sweden, for example, it is primarily rooted in a strong social democratic tradition where the state is supposed to protect its citizenry against any threat perceived to undermine the fabric of society. The rise of Islamic fundamentalism and the accompanying strong religious laws against any drugs, including alcohol, has resulted in stronger opposition from Islamic states to any deviation from zero-tolerance within the CND. Then there is the USA, the principle force promoting a global prohibitionist regime, which has a zero-tolerance position rooted in Christian fundamentalism and an aspiration to world leadership, leading it to blur the drugs issue with other foreign policy and security agendas.

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, however, to break the impasse at the UN level and conquer space for more policy diversity while avoiding the necessity to reach a new consensus. On the cannabis issue, for example, it may be worth taking up the invitation made by the World Health Organisation (WHO) during the CND session. The WHO had said it "would be very pleased to consider scientific data on cannabis, as provided in the 1961 convention, if they were delivered by member states". It only takes a simple CND majority to ratify a WHO recommendation to re-schedule substances under the 1961 convention and there is no formal rule that prohibits voting procedures. The CND practice of proceeding on the basis of consensus was adopted only when the US lost its voting power for not having paid their UN dues. CND resolutions, in principle, do not necessarily require consensus and can be helpful to clarify the interpretation of provisions of the conventions and to stretch the latitude countries have to develop a differentiated national drug policy.

With regard to formal amendments to the conventions themselves, beyond the scheduling of substances, basically all Parties have to agree. Ultimately, the only formal escape route out of the consensus stalemate here would be for countries to write a statement of denunciation to the Secretary-General, specifying why they can no longer abide by the obligations of specific articles of a convention. Politically this is a very difficult step to take and would only be possible where a strong alliance has been constructed on the basis of a shared reform agenda.

Informally, groups of countries can choose to test the boundaries of UN conventions by taking the leniency approach beyond the point where this could still be justified under the internationally agreed drug control principles, and then 'just take the heat'. The legal inconsistencies such a move would generate would have to be defended on the basis of constitutional obligations or tensions with other international agreements, for example, in the field of HIV/AIDS prevention or within the broad framework of human rights protection. Clearly, only some countries can afford 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 annual drug control certification, the main instrument of pressure brought to bear on any country dependent on US aid or international financial institutions. A recent case in point is Jamaica, where decriminalisation of cannabis is under consideration.

II. Harm Reduction for the production side

Given the dramatic consequences of increased repression on the production side of the drugs chain, it is urgent that further escalation is prevented. Space for pragmatism has also to be opened up on this side of the equation.

The countries now leading the way on pragmatism and leniency should begin also to play a more assertive role in challenging the ongoing escalation of the War on Drugs on the production side.

Apart from arguments derived from human and civil rights; environmental protection; livelihood strategies etc, the divergent policy trends are starting to lead to serious global inconsistencies. At the CND, Morocco, for example, raised questions about the possible implications for producers in their country of the current cannabis consumption policy trend in Europe. Others have pointed out the same contradiction between liberalisation on the consumption side while maintaining or even increasing international pressure to eradicate drugs crops in traditional production regions of the South. These Southern countries are allowed much less political space to re-assess their national policy and enter a path towards pragmatic solutions. Moreover, the international conventions allow much less flexibility for the production side as compared to the consumption side when it comes to national policy-making.

Within the most advanced thinking about alternative development, several ideas helpful to containing further escalation may be found, for example within the Drugs and Development programme of the German Agency for Technical Co-operation (GTZ). If the narrowness of the margins for policy intervention as regards global supply reduction are duly recognised, and the fact accepted that the phenomenon of drug-linked crop cultivation is here to stay as long as demand exists, then alternative development donors could be relieved of the pressure to comply with counter-productive reduction targets and deadlines for illicit crop producing countries. More realistic and flexible time frames, allowing for a gradual reduction over a period of several years in closer conjuncture with realistic possibilities for demand reduction, are essential.

A 'participatory approach' to alternative development means more than just consulting communities about their wishes. It requires serious dialogues in which these communities are allowed to have substantial leeway for negotiation. Mutual trust should be constructed upon the basis that if development in the target period cannot guarantee dignified conditions of life, the continued presence of an established maximum of illicit crops per family for subsistence purposes is allowed.

This means, in fact, de-linking alternative development from the conditionality embedded in the 'balanced approach' that combines developmental investments with law enforcement and forced eradication measures. Assistance has been made far too conditional on hectare reductions and too often under the threat that 'if the carrot does not work fast enough, we'll show them the stick'. De-linking alternative development from repressive policy approaches would mean turning the burden of proof around. Communities would no longer have to 'prove their willingness to substitute', but the government and the international community would have to 'prove the viability of alternatives' before demanding that peasant and indigenous communities place the fragile foundations of their survival economy at risk.

The time has come to begin to apply a more rational and pragmatic approach also to the drugs production side. Here are some initial ideas on how Harm Reduction concepts could be applied to the production side:

  • Shifting away from the current obsession with counting and reducing the numbers of hectares, towards prioritising the policy goal of reducing the harm associated with the existence of illicit crops, including measures to reduce the harm done to the environment and attempts to reduce their importance in fuelling armed conflict.
  • Opening up spaces for dialogue with involved communities - free of deadline and 'zero option' thinking - about their own problems with drug-linked crops, allowing flexible gradual reduction processes.
  • Defining small growers more as economic victims that have become 'addicted' to illicit crops for survival. Similarly to the Harm Reduction approach to drug addicts, try to provide conditions that allow them to come out of it, but if that doesn't work don't spray, incarcerate or kill them, but rather assist them in a way that reduces the harm to themselves and to society at large.
  • Supporting the option of de-penalisation or law enforcement leniency towards small illicit cultivation similar to the tolerance trend towards individual consumption or the possession of small quantities for personal use.
  • Exploring options of direct linkages between Harm Reduction interventions on the supply and demand sides in order to stimulate global debate. For example, within the framework of a development, conflict resolution or reconstruction project, raw opium from a community in Colombia or Afghanistan might be used to produce heroin to supply the maintenance programmes in Switzerland, the Netherlands and soon also in Germany. Or a pilot project could be considered in the Moroccan Rif for controlled supply to the Dutch coffee shops, soon to be found in Belgium and the UK as well.
  • 'De-demonising' certain aspects of illicit drugs, by differentiating more between specific substances and their potential harms and benefits on the basis of scientific studies and thus, for example, allowing exports of coca products to international markets.

III. UNDCP reform

A key issue to address is the reform process currently underway at UNDCP's Vienna headquarters. As we all know, the agency went through a deep crisis these past years. The Office of Internal Oversight Services (OIOS) was called in to investigate mismanagement, donors lost confidence and Executive Director Arlacchi had to step down. Being the leading multilateral agency for drugs issues, implementing UN programmes and advising many countries on drug policy matters, the functioning of UNDCP is crucial. The combination of the strong zero-tolerance position with bad management has meant that UNDCP has become a serious obstacle to policy improvements around the world. There are, however, some recent positive developments.

With the appointment of Antonio Maria Costa as the new Executive Director, Kofi Annan seems to have opted for someone without a particularly strong personal vision on the drugs issue, more a professional with strong capacity primarily on the organisational management side. In order to take a clear step away from the crisis of past years, the most important characteristic of a new head of the agency should be open-mindedness about the future direction of the drug policy debate and a more constructive style of leadership. We hope Mr Costa will bring some fresh air to the agency when he starts in June.

Meanwhile, organisational improvements based on the recommendations of the OIOS are already well underway. Mr Dileep Nair, Under-Secretary-General for Internal Oversight Services, appeared before the CND to express his satisfaction. He also made clear that OIOS will be closely monitoring the reform process and will undertake another inspection later this year to ensure that all recommendations are fully implemented.

Beyond mere organizational improvements, the question remains as to whether the UNDCP will also 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. A big test will be the role it plays in preparing for the ministerial segment of the CND next year (two days out of the 8-16 April 2003 session), which will evaluate progress made with regard to the targets set out in the Political Declaration of the 1998 UNGASS on Drugs.

Conclusions

By way of conclusion, I offer the following recommendations:

Allow countries and regions more space for policy reform using and stretching the margins of the conventions. Strengthen alliances of like-minded nations to support one another and effectively coordinate efforts at the UN level through informal consultations and strategy meetings.

Meanwhile, erode the unsubstantiated fear of today's Hans Brinkers that any crack in the global prohibition regime would plunge the world into chaos immediately. We should not press for a new global straitjacket but for a model that respects cultural differences. We have to open up the debate about the wisdom of the conventions as they stand.

Use the opportunity of the mid-term UNGASS review in April 2003. A positive sign is that Mexico has now been elected by the CND to preside over that mid-term review and the preparations for it. Mexico had originally called for the UNGASS and aspired to it being a forum for critical evaluation of global drug control policy, but they were manoeuvred out of chairing it. In her opening statement for the 46th CND session Friday March 15th, Mexican Deputy Minister of Foreign Affairs, Patricia Olamendi, recalled some of Mexico's original spirit in saying, in reference to the 2003 and 2008 deadlines, "in this period of sessions we will be very critical about these ambitious goals". And distancing herself from Arlacchi's preference for trumpeting non-existent success stories, she said: "Above all, we must be honest and not self- indulgent. To report about achievements where there have been none neutralize those that we have genuinely reached".

The tone of the debate is definitely changing. This conference itself is yet another testimony to that. Rational thinking is gradually replacing the dogmas of the past. The pragmatic trend in Europe has become irreversible. The time has come for the countries leading this way to become more assertive about their achievements, to bring this refreshing tone and pragmatism to the UN level and to support Southern countries that are eager to take steps in a similar direction for the production side too.

 

March 27, 2002
Presentation at the Wilton Park Conference: Drug Policies and Their Impact

Re-Asserting Control: Voluntary Return, Restitution and the Right to Land for IDPs and Refugees in Myanmar - cover