Reforming the global drug-control system: The stakes for Washington

Washington's new narrative defends the integrity of the UN drug control conventions, while allowing more flexible interpretations
Friday, June 27, 2014

The extent to which the ongoing drug-control reforms across the Americas are pushing the boundaries of the global legal framework laid down in three UN drug-control conventions has become a delicate issue. The decriminalization of possession for personal use in several Latin American countries and the establishment of a supervised injection room in Vancouver, Canada have already triggered protracted legal disputes with the International Narcotics Control Board (INCB), the quasi-judicial organ for the conventions’ implementation.

Recently, Bolivia’s steps to legitimize coca leaf and the legal regulation of cannabis in the U.S. states of Washington and Colorado, as well as in Uruguay, have forever changed the drug policy landscape. The question today is no longer whether there is a need to reassess and modernize the UN drug-control system, but rather when and how to do it.

For Washington as well as the UN drug control bureaucracy, this is a nightmare scenario. Over the past century, the United States has invested more effort than any other nation to influence the design of the global control regime and enforce its almost universal adherence. Opening the debate now risks undermining the legal instrument the United States has used so often to coerce other countries to operate in accordance with its own principles.

The State Department has initiated an international campaign, similar to its previous effort to marshal a "group of friends of the conventions" to object to Bolivia’s efforts on coca leaf. The new narrative underscores the importance of "defending the integrity of the three conventions", while allowing more flexible interpretations and permitting "some degree of national differentiation". [1]

Washington proposes to allow more flexibility with regard to constitutional discretion on how to allocate scarce resources for treaty implementation. This interpretation, until now rejected by the INCB, forms the basis for the U.S. argument that its federal decision not to intervene in states’ regulation of cannabis is in compliance with the UN conventions. In exchange for international acceptance of this narrative, Washington appears willing to let Uruguay and others regulate cannabis unhindered as well. This nascent U.S. leniency, however, does not extend to areas such as Bolivia’s coca policy or harm reduction measures such as drug consumption rooms.

No easy treaty reform options exist, and renegotiating a new single convention is not a very attractive prospect given diverging opinions and broken global consensus. But avoiding the debate only perpetuates an outdated and inconsistent treaty framework, leading to more legal hypocrisy that hides the reality of treaty breaches, which in turn undermine respect for international law. The current flexibility in the treaties – thanks to built-in escape clauses – has been useful in generating more respect for human rights and for arguing the legality of certain harm reduction and decriminalization policies. But that’s not good enough.

The normative UN framework for drug control should represent a moral high ground and provide proper guidelines for countries to do what is right, instead of allowing them via legally contested interpretations to abstain from doing what is wrong. The conventions’ escape clauses do not turn the treaties into something whose "integrity" is worth defending.

The current framework is rooted in zero tolerance; it obliges countries to ban ancient cultural, religious, and indigenous practices, forces them to criminalize cultivation and possession including for personal use, and imposes severe criminal sanctions on anyone involved in the illicit market.

In 2008, at the ten-year review of the United Nations General Assembly Special Session (UNGASS) on drugs the UN recognized "a spirit of reform in the air to adapt [the conventions] to a reality on the ground that is considerably different from the time they were drafted." Today that is truer than ever. The 2016 UNGASS represents a unique opportunity to perhaps not yet resolve, but at least to openly discuss genuine options for bringing the global drug policy framework up to date and making it more flexible.

This comment has been originally published in a special Summer 2014 issue of the NACLA Report on the Americas: Reimagining Drug Policy in the Americas.

[1]. The US Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, William Brown­field, summarized the new US policies as "flexible interpreta­tion": "if it is a living document and they are living documents [the UN drug control conventions], living means you are allowed to adjust your interpretation as the world changes around you, the world in 1961 was a different place from the world in 2014 and we the governments and members states of the UN system should be permitted to interpret with that degree of flexibility as we move in to the 21st century." He defended the decision of the US federal government not to interfere in Washington and Colorado as "the right of United States government to determine how best to use its limited and in some cases scarce law enforcement and criminal justice resources to best accom­plish the objectives of the conventions". (See the video: Speech at Focus on the Inter­national Drug Policy Debate, Center for Stra­tegic & International Studies (CSIS), March 31, 2014 | Read the Transcript )

In an interview with The Jamaica Gleaner, after the Jamaican's government decision to decriminalize cannabis, Brownfield said: "I represent a government, two of whose states have decided to legalise marijuana. Forty-eight states and the federal government continue to prescribe it, so if I am not in a position to argue that there must be some room for flexible interpretation [of the UN conventions], I am going to have a very frustrating several years ahead of me." He added that "so long as we stay within the basic international conventions, we have to accept that some countries will prescribe marijuana aggressively, while others, like Uruguay, will legalise it throughout their country."