The UN Drug Control Treaties History and Options

The UN Drug Control Treaties: History and Options for Reform Martin Jelsma – mjelsma@tni. org Centrum voor Internationale Verenigingen Brussels, 26 February 2016

The treaty decades 1961 – 1971 - [1972] - 1988 1. UN Secretary-Generals: Dag Hammarskjöld (Sweden, Apr 1953 – Sep 1961); U Thant (Burma, Nov 1961 – Dec 1971); Kurt Waldheim (Austria, Jan 1972 – Dec 1981); Javier Pérez de Cuéllar (Peru, Jan 1982 – Dec 1991). 2. US Presidents: John F. Kennedy (20 Jan 1961 – 22 Nov 1963); Lyndon B. Johnson (22 Nov 1963 - 20 Jan 1969); Richard Nixon (20 Jan 1969 – 9 Aug 1974); Gerald Ford (9 Aug 1974 – 20 Jan 1977); Jimmy Carter (20 Jan 1977 - 1981); Ronald Reagan (20 Jan 1981 – 20 Jan 1989); George H. W. Bush (20 Jan 1989 - 1993).

The UNGASS decades 1990 – 1998 – [2009]- 2016 – [2019] 1. UN Secretary-Generals: Javier Pérez de Cuéllar (Peru, 1982 -1991); Boutros-Ghali (Egypt, 1992 -1996); Kofi Annan (Ghana, 19972006); Ban Ki-moon (South Korea, 2007 -2016). 2. UN Under-Secretary Generals for drug control: Margaret Anstee coordinated UN drug control activities in her capacity of Director General of the UN in Vienna (UK, 1987 -1992) until UNDCP was established in 1991; Executive Directors of UNDCP and its successor UNODC: Giorgio Giacomelli (Italy, 1991 - 1996); Pino Arlacchi (Italy, 1997 -2001); Antonio Maria Costa (Italy, 2002 -2010); Yuri Fedotov (Russian Fed. , 2011 -? ). 3. US Presidents: George H. W. Bush (20 Jan 1989 – 20 Jan 1993); Bill Clinton (20 Jan 1993 – 20 Jan 2001); George W. Bush (20 Jan 2001 – 20 Jan 2009); Barack Obama (20 Jan 2009 – 20 Jan 2017);

Prehistory UN Conventions • 1912 The Hague Opium Convention: basic principles for regulating the international trade of opium; gradual suppression of opium smoking; limitation of morphine and cocaine to “medical and legitimate” needs • 1925 Geneva Convention: import certificate and export authorisation • 1931 Limitation Convention: estimates and requirements system

Widespread traditional uses Medicinal use Ceremonial use Social use

Pharmaceutical preparations

Recreational & problematic use

Towards a global prohibition regime • Alcohol prohibition (1920 -1933) in the US • 1936 Trafficking Convention: introducing a punitive criminal law framework but only 13 countries sign and World War II interrupts implementation • United Nations: Post WW-II US hegemony • 1953 Opium Protocol: restriction of the number of opium-producing countries • Draft Single convention: authorised opium producers Afghanistan, Bulgaria, Burma, India, Iran, North-Vietnam, Pakistan, Turkey, USSR and Yugoslavia

1961 Single Convention on Narcotic Drugs • incorporates all key features of previous treaties, including the 1925 export / import certification and the 1931 estimates / requirements system • General Obligations: “limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs” [Art. 4] • Penal provisions: “Subject to constitutional limitations”, cultivation, sale, possession shall be punishable offences and “serious offences shall be liable to adequate punishment particularly imprisonment” [Art. 36]

1961 Single Convention on Narcotic Drugs • Establishes the International Narcotics Control Board (INCB) • Requires the abolition of ‘quasi-medical’ use of opium in 15 years (1979), and coca chewing and all non-medical uses of cannabis in 25 years (1989) • Comes into effect in 1964

Schedules 1961 Single Convention on Narcotic Drugs

1971 Psychotropic Convention Inconsistencies • “the international classification into narcotic drugs and psychotropic substances according to whether the substance is governed by the 1961 or by the 1971 Convention has no conceptual basis. The legal definition of many psychotropic substances is entirely applicable to narcotic drugs, and in many cases, the reverse is true. ” (UNDCP 2000) • Allows Parties to make reservations regarding plants “which are traditionally used by certain small, clearly determined groups in magical or religious rites. . . except for the provisions relating to international trade” [Art. 32, § 4] • Contrary to the logic of the 1961 Convention, the cultivation of plants containing ‘psychotropic’ substances is not placed under control of the 1971 Convention; certain alkaloids are scheduled, while the plants containing them (like khat, mushrooms and cactii) remain outside the scope of control

Schedules 1971 Convention on Psychotropic Substances

Market response: illicit production

1988 Trafficking Convention: obligatory criminalisation The 1988 Convention annuls the escape clause embedded in the 1961 and 1971 conventions that the obligation of each Party to impose penal sanctions is “subject to its constitutional limitations”. • Only the obligation to establish as a criminal offence also “the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption” remains “subject to the constitutional principles and the basic concepts of its legal system” [Art. 3 § 2] • The exemption for personal consumption provides the legal basis for various decriminalisation schemes of possession (f. ex. Portugal), purchase (f. ex. Dutch coffeeshops) and cultivation (f. ex. Spanish social clubs) for personal consumption in many countries

1988 Trafficking Convention: harsher sentences Parties shall: • make drug offences “liable to sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty” [Art. 3, § 4] • “bear in mind the serious nature. . . when considering the eventuality of early release or parole” [Art. 3, § 6] • ensure that “any discretionary legal powers. . . are exercised to maximize the effectiveness of law enforcement measures in respect of those offences, and with due regard to the need to deter the commission of such offences” [Art. 3, § 7] • take measures to “eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory” [Art. 14, § 2]

1988 Trafficking Convention: alternatives to incarceration “in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare” [Art. 3, § 4 c]

Tables 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance

Market response: Pharmaceuticals

Market response: New Psychoactive Substances

Policy response: Testing the limits of Latitude Limits of treaty flexibility on cannabis § Dutch coffeeshops § US medical marijuana § Spanish cannabis social clubs Limits of treaty flexibility on harm reduction § Drug consumption rooms § Heroin maintenance § Pill testing

Medical marihuana

Coca regulation in Bolivia • 2009: amendment proposal Single Convention • 2011: withdrawal from the treaty • 2013: re-adherence with coca reservation

Cannabis regulation in Uruguay “Someone has to be first. . . ”

Cannabis regulation in the US

State with legalized cannabis State with both medical and decriminalization laws State with legal medical cannabis State with decriminalized cannabis possession laws State with total cannabis prohibition

US ‘flexibility’ doctrine 1) Defend the integrity of the conventions 2) Allow flexibility of interpretation 3) Permit some national differentiation 4) Continue fight against organised crime “As a starting point, it is essential that Member States use the UNGASS to reaffirm support for the three UN drug-control conventions” (U. S. non-paper for UNGASS, June 2015)

Treaty flexibility? • There is an established ground of flexibility of drug treaty interpretation that has been conquered over the decades in a responsible manner • The limits of latitude have been explored, contested and legally tested around decriminalisation, harm reduction and cannabis policies • More recently ‘flexible treaty interpretations’ have been invented purely for political convenience, disregarding basic standards of treaty interpretation and undermining basic principles of international law

Treaty reform? “Laws -and even the international Conventionsare not written in stone; they can be changed when the democratic will of nations so wishes it. ” UNODC, World Drug Report, Oxford University Press, 1997. “There is indeed a spirit of reform in the air, to make the conventions fit for purpose and adapt them to a reality on the ground that is considerably different from the time they were drafted. ” UNODC, “Making Drug Control ‘Fit for Purpose’: Building on the UNGASS Decade”: Report by the Executive Director of the United Nations Office on Drugs and Crime as a Contribution to the Review of the 20 th Special Session of the General Assembly, E/CN. 7/2008/CRP. 17 (May 7, 2008).

Treaty reform? Amendment: the 1972 Protocol amending the 1961 Single Convention. The U. S. argued then that it was “time for the international community to build on the foundation of the Single Convention, since a decade has given a better perspective of its strengths and weaknesses. ” E/CONF. 63/10, United Nations Conference to Consider Amendments to the Single Convention on Narcotic Drugs, 1961 (Geneva, 6 -24 March 1972): Official Records, vol. 1 (New York: UN, 1974), 3 -4. Most other international treaty regimes have built-in monitoring and evaluation mechanisms and regular COPs to review implementation. The drug control conventions lack mechanisms to enable an evolution of the system over time; it’s a ‘Jurassic’ system. Report of the International Law and Drug Policy Reform Expert Seminar TNI / Swansea University GDPO / ICHRDP / WOLA, July 2015

Treaty reform without consensus q q q Re-scheduling: WHO review of cannabis and coca leaf Denunciation and re-adherence with a new reservation ‘Inter se’ modification: “Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone” 1969 Vienna Convention on the Law of Treaties, article 41 “Due to the conflicting interests prevailing at an international level, amendments of multilateral treaties, especially amendments of treaties with a large number of parties, prove to be an extremely difficult and cumbersome process; sometimes, an amendment seems even impossible. It may thus happen that some of the States Parties wish to modify the treaty as between themselves alone. ” Vienna Convention on the Law of Treaties: A Commentary, Springer Heidelberg , 2012, p. 719.

Post-UNGASS: towards 2019 • Minister of Justice Mark Golding (May 7 th General Assembly thematic debate): “Jamaica is in favour of the establishment of an expert advisory group to review the UN drug-policy control architecture, its system-wide coherence, treaty inconsistencies and the legal tension of cannabis regulation. ” • Uruguayan drug coordinator Milton Romani: “We are facing a structural phenomenon that deserves an Expert Group composed of several agencies and participation of civil society to examine in depth these issues and other mechanisms in order to give coherence to our Conventions and bring them up to date”

UNGASS outcome document We underline that there are new and evolving challenges, threats and realities, specific to every country, and that these shall be addressed in compliance with relevant international law, in particular the international drug control conventions, which provide to States Parties sufficient flexibility to design and implement tailored national drug policies according to their own priorities and needs, without prejudice to the objectives and purposes of the conventions; [2 nd draft outcome document UNGASS 2016, 9 February 2016, paragraph 9] Key question: Is there “sufficient flexibility” or should the international legal framework of the UN drug control conventions be reviewed and modernised?

Thanks. . . For updates on the preparations for UNGASS 2016: Official site: www. ungass 2016. org @ungass 2016 TNI sites: www. tni. org/drugs www. undrugcontrol. info @Drug. Law. Reform @Martin. Jelsma. TNI International Drug Policy Consortium: www. idpc. net @IDPCnet