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The Mechanics and Dynamics of the UN System for International Drug Control

David R. Bewley-Taylor B. Sc (Econ), PhD

& Professor Cindy S. J. Fazey B. Sc. (Soc), PhD

with Tim Boekhout van Solinge.

March 14 2003.

Increasing numbers of sovereign states are beginning to review their stance on the prohibition based UN drug control conventions.  Recent years have seen nations implement, or seriously discuss, tolerant drug policies that exploit the latitude existing within the legal framework of the global drug control regime.  With efforts to implement pragmatic approaches to drug use at the national level, however, comes the growing recognition that the flexibility of the conventions is not unlimited.

The aim of this paper is to provide a comprehensive overview of the UN international drug control system and offer the reader the context necessary to engage with the debates surrounding some form of change within that system.     The paper begins with a discussion of the conventions and the UN drug control apparatus and includes an overview of drugs and decision-making in the European Union. It then explores the background to the 1998 United Nations General Assembly's special session on drugs (UNGASS) and the April 2003 mid-term review of the progress made towards achieving the targets set by the UNGASS for 2008.   The paper also examines the extent of domestic room for manoeuvre within the existing conventions.  It investigates the possibilities and problems that nations may encounter when working to change the conventions via routes both inside and outside of the boundaries of international law.   The paper finishes by offering a number of possible scenarios whereby states may be able to increase policy space at the national level.

The Conventions and the UN drug control apparatus

The present system of worldwide drug control is regulated by three international conventions.  These are the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, (See Appendix 1) the 1971 Convention on Psychotropic Substances (See Appendix 2) and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (See Appendix 3).  As of February 1 2003 179 states are parties to the Single Convention, or are parties to the Convention as amended by the 1972 Protocol.  The number of nations signatory to the 1971 and 1988 Conventions is 174 and 166 respectively (http://www.odccp.org/odccp/treaty_adherence.html).  Deriving authority from these conventions are a number of specialist drug control organs, which, as will be shown, work closely with other UN bodies to deal with drug policy.

The bedrock of the global drug control regime is the Single Convention, so called because it largely replaced the previous international agreements that had been developing piecemeal since the early years of the twentieth century (McAllister, 2000, Bewley-Taylor, 2001).  The Convention clearly represents a prohibitionist approach to the drug problem (Krajewski, 1999).  As a general obligation, Article 4 (c) obliges signatory nations, subject to the provisions of the Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.  The Convention pays particular attention to plant based drugs such as opium, heroin, coca, cocaine and cannabis. It places more than one hundred illicit substances in four schedules, that is to say lists of drugs or preparations that are under the Control of the Convention, with drugs being grouped according to their perceived dependence creating properties.

In line with Article 2 of the Single Convention, the supply or dispensing of any substance listed in the schedules is only possible under legal authority, namely under license. Schedule I contains substances that are subject to all of the control measures under the Convention, including heroin, cocaine and cannabis, while Schedule II is comprised of substances used for medical purposes that are deemed to require less stringent control in view of a lesser risk of abuse. Schedule II includes codeine and norcodeine for example.  Schedule III is effectively the schedule of exemptions and as such excludes a series of pharmaceutical preparations made from substances perceived not to lead to abuse or ill effects, such as powders and liquids with very low dosages of opium or cocaine.  Substances under Schedule IV are permitted for amounts that may be necessary for medical and scientific research.  This includes some substances from Schedule I when they are considered to have particularly dangerous properties which are not offset by therapeutic value that cannot be afforded by some other drug; cannabis, cannabis resin and heroin for example. (De Ruyver, 2002: 9, Chatterjee, 1981: 351). 

The Single Convention also instituted a simplification of the international drug control machinery with, as will be discussed below, the creation of the International Narcotics Control Board (INCB). The powers of the INCB were enhanced in the 1972 Protocol Amending the Single Convention as it moved to strengthen the entire control system instituted by the 1961 legislation (Sinha, 2001).

Constructed as a companion instrument to the Single Convention on Narcotic Drugs, the 1971 Convention came about as a result of a growing global concern for the harmful effects of psychotropic substances, including synthetic drugs such as amphetamines, barbiturates and LSD.  In a similar fashion to that of the 1961 Convention, psychotropic substances are also categorized in four schedules.  Classification is determined according to dependence creating properties, the potential level of abuse and the therapeutic value of the substances.  Any substances included in the four schedules must be licensed by the governments for manufacture, trade and distribution with supply or dispensing only being possible under legal authority.  Substances in Schedule I must be strictly limited to medical and scientific purposes.  Parties, however, may permit the use and possession of those drugs listed in Schedules II, III and IV in specific cases, such as for industrial purposes, providing they apply the measures of control required by the Convention (De Ruyver, 2002: 10-11).  It should be noted that concerted efforts by drug manufacturing nations and the pharmaceutical industry ensured that the controls on psychotropics in the 1971 treaty were considerably looser than those applied to organic drugs in the Single Convention (Sinha, 2001: 25).

An important purpose of both the 1961 and 1971 Conventions was to codify internationally appropriate control measures to ensure the availability of narcotic drugs and psychotropics for medical and scientific purposes, while preventing leakage into illicit channels.  It is in this connection that the World Health Organization (WHO) is responsible for the medical and scientific assessment of all psychoactive substances and to advise the CND (see below) about the classification of drugs into one of the schedules of the 1961 and 1971 treaties.

The 1988 Convention was designed to deal with the growth of international trafficking in illegal substances in the 1970s and 1980s, since the earlier international instruments only dealt with the issue in a limited fashion. It provides comprehensive measures against drug trafficking, including provisions on money laundering, asset seizure, agreements on mutual legal assistance and the diversion of precursor chemicals.  In a similar manner to its sister treaties, annexed to the 1988 Convention are two lists, in this case termed tables rather than schedules.  In line with the provisions within Article 12, these tables list substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances.  The Convention also tightened the control regime considerably by moving it to incorporate drug demand.  Both the 1961 as amended by the 1972 Protocol and the 1971 Conventions required application of criminal policy measures only on the supply side of the drug problem (Krajewski, 1999: 331).  While the 1988 Convention was mainly concerned with the illicit supply of drugs, one paragraph, paragraph 2 of Article 3, concerned itself with the individual drug user.  This Article 3 (2) requires each party to make the possession of drugs for personal consumption a criminal offence under their domestic law, and as the Commentary on the United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances 1988 suggests, this "amounts in fact also to a penalisation of personal consumption" (United Nations, 1998: 80). [1]   

UN Bodies associated with drug policy.

The relevant bodies of the UN associated with drug policy include the Economic and Social Council (ECOSOC or Council), the CND or Commission, the United Nations International Drug Control Programme (UNDCP) and the INCB or Board.

The UN Charter entrusts ECOSOC with international economic, social, cultural, educational, health and related matters. (http://www.un.org/esa/coordination/ecosoc/overview.htm) In order to perform these functions the Council established various functional commissions, including the CND. (Bewley-Taylor, 2001)  ECOSOC is a non-legislative framework for discussion and recommendation and initiates studies, drafts conventions and calls conferences on the illicit drugs problem. (Boister, 2001:469)

The CND was formed in 1946 to advise ECOSOC "and prepare draft international agreements on all matters relating to the control of narcotic drugs." (E/RES/1991/38).  As a formally constituted organisation of the UN, the CND now meets annually for a period not exceeding eight days. (E/RES/1991/39) The Commission comprises 53 UN member States, elected by ECOSOC.  Because ECOSOC has 54 members, the CND cannot be larger than its parent body.  The Commission's membership was enlarged from 40 in 1991 and its seats are now distributed according to the unofficial geographical groups that exist within the UN.  Thus the CND is made up of eleven African States, eleven Asian States, ten Latin American and Caribbean States (the so-called GRULAC), fourteen Western European and other States (the so-called WEOs group that includes all of Western Europe plus Australia, Canada, New Zealand and although the USA does not belong to any regional group it is also usually considered a WEOs State) [2] and one seat that rotates between the Asian and GRULAC States every four years (http://www.undcp.org/odccp/cnd_composition.html).  Other non-members can, and do sit as observers, so that although CND meetings comprise as many countries as wish to attend, whether UN Member States or not, only the 53 official members can vote. In 2002, for example, 56 additional Member States sent observers. With the Holy See and Switzerland, there were, in effect, 111 states represented (Fazey, 2003). 

The body is crucial to all international drug policy making.  As De Ruyver et al note, it considers the changing nature and control of the illicit drug traffic, promotes international agreements for that control, plays an important role in the exchange of related information and maintains links with other international drug control organs. (De Ruyver, 2002:149-150) It is important to note, however, that its decisions are dependant upon confirmation from ECOSOC unless stated otherwise in the drug conventions. (BoIster, 2001:496)  As laid out in article 8 of the Single Convention, article 17 of the 1971 Convention and article 21 of the 1988 Convention, the CND is authorized among other things to: consider all matters referring to the aims of the Convention, including amending the schedules; to call the attention of the INCB to matters which are relevant to it; to make recommendations for the implementation of the aims and provisions of the Convention.  The Commission relies on the UNDCP for administrative and technical support.

The UNDCP was created at the UN Office in Vienna in 1991 (A/45/179) as the single body in charge of concerted international action for drug abuse control. Its formation was an attempt to resolve the confusion of having three co-located but separate UN bodies with differing but overlapping responsibilities for policy and implementation in the drugs field  (Fazey, 2003). As such the UNDCP has responsibility for coordinating and directing UN action against illicit drugs.  It provides secretariat services for the Commission and the International Narcotics Control Board, advises parties on issues concerning accession to and implementation of the conventions and establishes and usually executes projects in the field.

Another merger took place in 1997 when the UNDCP joined with the Centre for International Crime Prevention (CICP) to come under the umbrella of the United Nations Office for Drug Control and Crime Prevention  (UNODCCP). Yet another change of name came about in September 2002 when the UNODCCP became the UN Office on Drugs and Crime (UNODC).  

The Vienna based INCB is the independent and quasi-judicial control organ for the implementation of the drug control treaties. As noted above, the creation of the Board was outlined in the Single Convention, articles 5 and 9, and ultimately established in 1968. [3]

The Board is independent of Governments, as well as of the UN, with its 13 individual "experts" - principally pharmacologists, pharmacists, lawyers, police officers and medical doctors - serving in their personal capacities.  They are elected by ECOSOC and can call upon the expert advice of WHO.

The Board has the authority to assess worldwide scientific and medical requirements for controlled substances based on estimates from member states.  It subsequently allocates quotas among parties concerning licit cultivation, production, manufacture, export, import, distribution and trade in an attempt to prevent leakage of drugs from licit sources into the illicit traffic (De Ruyver, 2002 & http://www.incb.org/e/index.htm).  Parties are obliged to comply with the Conventions provisions and report annually to the INCB on this matter.  It examines the reports and if there is perceived to be non-compliance or other problems, the Board can bring them to the attention of ECOSOC, the CND and the Parties themselves.  Recent years have seen the INCB assume a wider role, reporting on trends in drug trafficking and illicit use, monitoring precursor chemicals in line with the provisions of the1988 Convention, and commenting on policy developments among UN Member States. While recent INCB reports have been critical of developments in some Member States, it can only "request explanations" and "call upon governments to adopt remedial measures".  The Board has no power to enforce provisions and, some would argue, has been increasingly exceeding its mandate (Fazey, 2002).

The Commission, the UNDCP and the INCB have the collective aim of implementing the international drug control system.  They are not considered as guardians but as monitors.  They have no law making function but initiate law-making. [4] They have no judicial function but hold administrative and executive powers. (De Ruyver, 2002: 151-152)

The European Union and international drug Control. [5]

Drugs have been discussed within the institutions of the EU since the entry into force of the Maastricht Treaty in 1993. Along with a great many other new subject areas, drugs were brought within the EU's competence. Since then the subject has been on the agendas of numerous EU forums. The powers possessed by these forums depend on the aspect of the drugs problem that is under discussion. This is because Maastricht introduced a three-pillar structure, which distinguishes between the EU's different policy areas. The first pillar consists of the "old" European Community (EC), the second deals with the Common Foreign and Security Policy, while the third deals with Justice and Home Affairs. (See diagram 1)

Drugs are discussed in each one of the pillars. In the first pillar discussions arise in relation to development cooperation, and to Community health measures adopted to complement member states' actions at national level. In the second pillar drugs are discussed in the context of the EU's Common Foreign and Security Policy. However, the issue is discussed most of all in the third pillar, "Justice and Home Affairs", in the context of policy and agreements on cooperation between police and judicial authorities. Since drugs are a cross-pillar theme, the Horizontal Drug Group has been created to coordinate issues across the three pillars.

Commission, Council, and Parliament

All three administrative structures making up the EU are involved with drug issues, although to differing extents.  The European Commission conducts a wide range of activities in the area of drugs. Though several Directorates-General are involved, coordination is in the hands of the Directorate-General for Justice and Home Affairs. The European Commission's powers lie chiefly in first-pillar matters such as health (including drugs prevention), development cooperation, precursors and money laundering. In recent years it has raised the drugs issue with increasing frequency in the EU's external relations; drugs have become a routine part of talks with third countries, which are required to take certain measures as a prerequisite for cooperation with the EU. This applies not only to EU applicant countries but to the developing world as well, with Latin America and the ACP (African, Caribbean and Pacific countries) being designated priority regions. In general, the European Commission's activities in relation to drugs are rather diffuse. This is partly because it bears responsibility for different aspects of the issue, and as a result its activities may appear to lack coherence.

            The Council of the European Union (or Council of Ministers) too is active on many drug-related fronts at once. It may be the most obscure of the EU's major institutions, but it is nonetheless probably the most important, as it is responsible for decision-making. Directly under the Council of the European Union comes a body, composed of the member states' Permanent Representatives to the EU (Coreper), which prepares the decision-making. But in practice the member states try to reach agreement earlier still, in the Council of the European Union's working groups, which consist of officials from the member states. In drugs policy the most important Council of Ministers group is the Horizontal Group on Drugs. Everything to do with drugs has to pass through this Group before it goes to Coreper. Although it has been a horizontal, or cross-pillar, group from the outset, the third pillar has long played a dominant role. In 1999 the Horizontal Group's cross-pillar structure became more tangible, as it started paying attention to first and second pillar issues. Like the European Commission, the Council of the European Union is very active in incorporating drug-related issues into the EU's external relations. It conducts dialogues about drugs measures with numerous countries and regions, in second as well as third-pillar talks.

The European Parliament has also taken an active interest in drugs in recent years, and has set up various committees of inquiry. Parliament has only limited powers in this area. It has the power of codecision (i.e. together with the Council of Ministers) only in relation to health issues, money laundering and precursors. In other drug-related issues its function is purely advisory. This restriction also applies to the parliamentary committee that discusses drugs most frequently, the third-pillar committee on Citizens' Freedoms and Rights, Justice and Home Affairs.

            The chief "growth area" in all this activity is in the EU's external relations. Drugs prevention receives a great deal of emphasis in talks with third countries, and measures are more or less imposed on them. The EU adopts the position that such talks should be based on a balanced approach - that is, balancing supply and demand reduction measures and taking the third countries' interests into account. Given wider issues of concern, particularly those relating to poverty, in many Southern countries, and the small budget that the EU makes available for this balanced approach, ensuring the effectiveness of demand reduction measures is fraught with difficulty. What is more, most of these measures are third-pillar (law enforcement) rather than first-pillar (health and development cooperation) activities.

            At the moment, the institution that has the greatest say on drugs is the Council of the European Union. Among other things this means that law enforcement currently takes precedence over a health-oriented approach, since the Council's drug-related activities are heavily biased towards the third pillar. The European Council's six-monthly summits of heads of state and government, is also highly influential. Although formally speaking it only issues guidelines, its pronouncements have a major impact on policy.


Diagram 1: Drugs and Decision-Making in the European Union: a cross pillar issue

     diagram 1

1st Pillar: Community Method

- Commission makes proposals

- Council (member states) decides, with the voting procedure varying per theme.

- In case of co-decision: Council and Parliament decide together

Drug issues discussed:

- Health (only complementary measures to member states actions)

- Development cooperation

- Precursors

- Money Laundering

2nd pillar: Foreign and Security Policy

- Council, (i.e. country having presidency) makes proposals

- Council (member states) decides, with every member state having right of veto

- Parliament makes recommendations

Drug issues discussed:

- dialogue with third (non EU) countries

- international instruments (UN, Dublin Group)

3rd pillar: Justice and Home Affairs

- Commission or Council (country having presidency) make proposals

- Council (member states) decides, with (in most cases) every member state having right of veto.

- Parliament makes recommendations

Drug issues discussed:

- Fighting International drug trafficking, organised crime

- Police/Justice cooperation

- Customs

- Europol

In all cases, the Council is the main decision-making body. Since drugs are discussed in all three pillars, the Horizontal Drugs Group has been created as the main Council working group where drugs are discussed.  

EU Relations with UN Drug Conventions

· Signing of the 1988 UN drugs convention

In 1987 a UN conference took place in Vienna on trafficking in narcotics and psychotropic substances, which eventually led to the Convention of 1988. In principle this conference was meant for countries, but the EEC also attended as a legal entity. In 1988 the EEC signed Article 12, paragraph 2 of the UN drugs convention of 1988, the part of the convention that deals with precursors. The fact that the EEC acted here as a legal entity and signed an article was based on article 113 (now article 155, paragraph 3) of the Treaty of Rome, the treaty establishing the EEC. This article empowers the Community to "cooperate with third countries [that is to say non-Community members] to promote projects of mutual interest". On the basis of this competence, the EEC acted as a legal entity and signed the article concerned.

·The Schengen Agreement

The Schengen Agreement dates from 1985, and its object is to accomplish the free movement of persons, goods and services. To achieve this, the Schengen countries worked to abolish all controls along their inner frontiers. This clearly made it harder to curb cross-border crime. The Schengen countries, therefore, decided to endeavour to harmonise their legislation on drugs, arms and explosives, and hotels' registration procedures, to improve the effectiveness of law enforcement.

            The harmonisation of legislation on drugs was, however, a stumbling block in these negotiations and this is where relations with the UN drug conventions become relevant. During discussions on Schengen the question arose concerning which national legislation or practice should be adopted as the standard position on drug policy.  This was understandably problematic.  Should Schengen rules be based on the liberal policy of the Netherlands or the stricter policy favoured by France?  A political solution was eventually found by invoking the UN drugs conventions. As a result, the ratification of these conventions was to be regarded as a guarantee of the harmonization of legislation as enshrined in Article 19 of the Schengen Agreement. It should be noted that since the Treaty of Amsterdam [6] entered into effect, the Schengen Agreement has been annexed to the official Treaty on European Union as a protocol. What this means is that the compromise solution described above now applies to all member states.

· Drug Conventions as EU's acquis

Since all 15 countries of the EU have signed the three drugs conventions, these conventions have been incorporated into what is known as the EU's acquis or legal foundations. This means that all acceding countries also have to sign them (Boekhout van Solinge, 2002: 110). In addition, countries that want to accede must in principle take all the other measures that EU countries have already taken in areas such as money laundering and precursors, and the same or similar measures to combat drugs as the present EU countries. Besides passing legislation, this also means that they must have institutions similar to those in the EU countries and national policy coordination points.

            Countries that want to sign association agreements with the EU must also have signed the UN drugs conventions. Drug-related issues are raised in talks with several of these "associated countries", such as Iran, Afghanistan, Nigeria, Morocco and Peru. The EU goes further still: it brings drug-related issues systematically into virtually all political dialogues with third countries or regional organisations, including Afghanistan, Myanmar (Burma), the Southern African Development Community and the countries of Central Asia. Drugs and human rights are among the subjects that are raised routinely. The EU holds up action to combat drugs and respect for human rights as key conditions for cooperation.

·EU- UNDCP Relations

Since January 1999 the UNDCP has had offices in Brussels. It claims that it wishes to partner the EU and help it develop its drugs policy, for instance by contributing expertise. As the EU and the UN are the two largest international organisations in the world, they want to cooperate more. As noted above, the UNDCP is still promoting its extremely ambitious plan to virtually eradicate the cultivation of coca bush and opium poppies by 2008. The UNDCP is the fastest-growing UN sector and its plans are not cheap to implement, which makes lobbying essential.

            In this light, the decision to open an office in Brussels was probably motivated in part by the desire to gain easier access to the EU budgets. The UNDCP already gets 70% of its budget from EU countries. Italy is by far the biggest donor, providing almost half of the total contributions by EU countries and accounting for 31% of the UNDCP's overall revenue - twice the proportion contributed by the US. [7] This probably explains why Italians hold so many key positions at the UNDCP, not only at the headquarters in Vienna but at regional offices too. Another explanation for the opening of a UNDCP office in Brussels may be that the agency hopes to exert more influence on EU drugs policy from the Belgian capital, and to bring it more into line with UN policy, which is largely based on the American approach.

The EU increasingly invokes the UN conventions. In justification, the conventions are presented as the basis of international drugs policy, and hence of the EU's activities in this area. The conventions are not open to discussion within the EU, and in internal documents they apparently play a useful role when member states fail to reach agreement, being a body of texts to which all countries have signed up; as was the case with the Schengen Agreement.  Some bodies and forums, especially second-pillar groups, want the UNDCP to play a bigger role in the fight against drugs. They claim that it is the ideal coordinating agency, and has proved its worth in the Caribbean. Other parties are less enthusiastic. The European Commission in particular is unwilling to involve the UNDCP too much in EU policy. In part this has to do with a reluctance to give up too many of its powers, and in part it has to do with the difference between the UN's strong orientation towards punitive measures and the Commission's emphasis on health issues and development cooperation.

·The Dublin Group

Finally, there is a relatively little-known consultative body on international drugs control, the Dublin Group, named after the city where it was convened for the first time in 1990. The Dublin Group has no firm status and no mandate, only has informal status and cannot make legally binding agreements. It is an informal group involving consultations between the donors of drugs programmes, the main theme being the progress made in the international fight against drugs. The countries now taking part are the EU member states, Australia, Canada, Japan, and the US. The UNDCP also takes an active part in the consultations. In 1999 Russia also began to participate.

The Dublin Group meets in Brussels for two days every six months; once every three years it convenes in Washington. The secretariat of the Council of the EU takes care of its administrative work. Meetings discuss the production and trafficking of drugs and ways of curbing them, focusing on different regions in turn. The Group divides the world into eleven regions, with one member of the Group chairing talks on each region. Thus the US is responsible for Latin America, France for the Caribbean, the Netherlands for Eastern Europe, Sweden for Africa and so on. Each regional chair in turn reports on "his" region until a picture emerges for the whole world. The minutes of these meetings are not released into the public domain; they are only sent to the UNDCP and the foreign ministries of the participating countries.

            In addition to this central Dublin Group there are numerous "mini-Dublin Groups" throughout the world, consultative bodies involving the same countries but at local or regional level. There are by now about 70 regional mini-Dublin Groups around the world. They issue regional reports and exchange information on drugs prevention in their own area. Mini-Dublin Groups are based in towns and regions in production countries (Bogota, Lagos and Bangkok, for instance), but not in the countries of the Dublin Group itself. The consultations are conducted by embassy representatives.

Background to Vienna 2003.

In April 2003 there will be a two-day special session of the CND at its headquarters in Vienna. At its high level segment after its annual meeting, the Commission will carry out a scheduled review of the progress made towards achieving the targets set for 2008 by the United Nations General Assembly's special session on drugs (UNGASS). At the 1998 UNGASS UN member states adopted a Political Declaration and a Declaration on the Guiding Principles of Drug Demand Reduction, approved two action plans and advocated action in three other areas.  The aim of this year's mid-term review is, therefore, to examine how far governments have achieved the targets set out. 

There are accordingly six areas on which governments are to report and assess progress:

  • Action Plan for the Implementation of the Declaration on the Guiding Principles of Drug Demand Reduction,
  • Action Plan for the International Cooperation on the Eradication of Illicit Drug Crops;
  • Alternative Development;
  • Measures to promote Judicial Cooperation;
  • Action Plan against Illicit Manufacture, Trafficking and Abuse of Amphetamine-type Stimulants (ATS) and their Precursors; 
  • Countering Money-Laundering.

While the motto of the UNGASS was "A Drug Free World - We can do it!" the origins of the 1998 meeting actually lay in moves to re-evaluate the effectiveness of the international drug control regime: particularly its focus on drug supply rather than demand.  Over time, however, various efforts to officially re-assess the direction of UN drug policy were greatly diluted by both member states and bodies within the UN drug control machinery.   Thus despite the ongoing ineffectiveness of the UN drug policies, the UNGASS became little more than a reaffirmation of UN treaties and the prohibition oriented strategies contained therein. 

The road to the 1998 UNGASS begins in the late 1980s.  Following the adoption of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, there was strong pressure by a number of countries to put in place a convention on demand reduction. This was particularly popular among so-called drug producing nations, notably Mexico.  There was much informal discussion on this topic at the CND, and several tentative resolutions drawn up.  These efforts were, however, resisted by the US, the UK, Germany and many other of the WEOs countries (Fazey, 2003). As will be shown, grounds for such opposition were based on either the expense of convening the necessary conference or because it was thought that such a convention might infringe upon national sovereignty.

Producer states, in particular most of the GRULAC, wanted demand reduction to be the subject of an international agreement.  Previous treaties had focused predominantly on supply reduction and many nations were tired of being criticized for producing drugs.  They wanted consumer nations to accept responsibility for driving the drug trade through their high consumption levels.  "If you did not consume the drugs, we would not be producing them" was the argument.

It became clear, however, that the basis of resistance to a new convention, particularly by the USA but supported by the UK, was a belief that demand reduction was essentially a domestic matter that should not be the subject of binding international agreement. Supply reduction was on the other hand perceived to be very much a matter for international agreements because the drugs were trafficked from one country to another. (Fazey, 2003)

What also became clear during discussions concerning the status of international cooperation in drug control in the early 1990s was that a number of WEOs countries, including Demark and Spain and supported by Australia and Canada, wished to review the dominant prohibitive philosophy of the UN system and study the merits of harm reduction policies (Jelsma et al, 2003 & Jelsma, 2003).

With this knowledge encouraging continued effort to instigate internal debate, Mexico tried another approach to redress the demand-supply imbalance within the global drug control system. In 1994 it began to rally support for an international conference to review all the UN drug control conventions on the basis that the bedrock of the current system, the 1961 Single Convention on Narcotic Drugs, was written over 30 years previously and thus warranted re-visiting.

While the principle of convening such a conference was not attacked directly, proposals that may have opened debate failed to gain support from most members of the CND and ECOSOC.  The idea for a conference was also looked upon unfavourably by the INCB (Jelsma et al 2003 & Jelsma, 2003) and the project was ultimately dropped on the grounds of cost: a means of dropping ideas much favoured within the UN, and in this case led by the UK (Fazey, 2003). During this period the financial argument was heightened because the US was refusing to pay its UN dues.

Eventually a compromise was reached and it was agreed to hold a Special Session of the United Nations General Assembly.  The UNGASS was called to discuss many aspects of the illicit drug trade and to work towards having, not a convention, but a declaration on demand reduction. Accordingly, at its 1996 annual session, the CND adopted a resolution (E/CN.7/1996/L.16) recommending what became the UN's 20th UNGASS.  Its objective was to "lead to renewed commitment by governments to fight against drug abuse and illicit trafficking, and also strengthen the implementation of the international drug control instrument (E/1996/27: Supp.7, par.17). 

All its efforts to convene some sort of meeting to review UN drug policy made Mexico the natural choice for the Presidency of the UNGASS.  Washington nonetheless, blocked its candidacy in February 1997 when it alleged that there was widespread corruption in Mexican anti-drug agencies.  Only much behind-the-scenes negotiation led to the compromise Portuguese presidency (Jelsma, 2003).  Undeterred, Mexico continued to play a major role in preparatory work and along with Colombia aimed to create more balance between the demand and supply components of the international framework.  A threat to such efforts appeared in the form of the  "Strategy for Coca and Poppy Elimination by 2008" (SCOPE).  The Strategy, put forward by the new Executive Director of the United Nations International Drug Control Programme (UNDCP), Pino Arlacchi, during the preparatory process in September 1997, called for wiping out illicit crops in Colombia, Bolivia, Peru, Burma, Laos, Vietnam and Afghanistan (Blickman and Jelsma, 1998) Arlacchi's plan clearly re-focused attention on supply nations. The plan was never discussed.  In another guise, however, it emerged in the UNGASS Political Declaration which stated that Member States welcomed "&the global approach by the United Nations International Drug Control Programme to the elimination of illicit crops, and commit ourselves to work closely with the Programme to develop strategies with a view to eliminating or significantly reducing the illicit cultivation of the coca bush, the cannabis plant and the opium poppy by the year 2008." (Italics added) (UNGASS, Political declaration, 9th Plenary Meeting, A/RES/S-20/2, June 10 1998.)

Only after intense debate was it agreed that the same year was also to be the focus for measures that would impact WEOs nations.  Accordingly, 2008 was set as the target date for "eliminating or significantly reducing the illicit manufacture, marketing and trafficking of psychotropic substances, including synthetic drugs, and the diversion of precursors" as well as for "achieving significant and measurable results in the field of demand reduction" (Jelsma et al, 2003, Jelsma 2003, Fazey, 2003).

Room for Manoeuvre within the Treaties.

It is important to appreciate that the Conventions are not self-executing. This so-called "executory" nature means that while the Conventions impose obligations on states to apply international law, such law is not directly or immediately enforceable by a UN body.  Indeed, while often vocal in its criticism of national policy, the INCB, as the body responsible for overseeing the operation of the treaties, has no formal power to enforce the implementation of the Convention provisions.  Nor has the Board the formal power to punish parties for non-compliance. As students of the international system note, the autonomy of domestic law is stressed within all the conventions (Krajewski, 1999: 331). That said, states are required to remain true to the UN Conventions in line with the 1969 Vienna Convention on the Law of Treaties. Article 31 of the Convention obliges states to interpret treaties in good faith, respect the "object and purpose" of the Conventions (http://www.un.org/law/ilc/texts/treaties.htm) and thus, within the context of this discussion, adhere to the standards and norms of the global drug control regime.

This situation certainly leaves some room for interpretation at the national level and consequently presents signatory nations with a degree of freedom when formulating domestic policies.   As the Commentary of the Single Convention on Narcotic Drugs 1961, says "it appears that it is left to the discretion of each party to decide whether it wishes to penalize the non-medical consumption of narcotic drugs by addicts, or whether it prefers to prevent such abuse solely by administrative and penal measures." (United Nations, 1973: 112) The Commentary goes on to note that some governments hold that they are not bound to punish addicts who illegally possess drugs for their personal use because the intent of the Convention is to penalize those engaged in illicit trafficking in drugs, and addicts usually do not participate in this traffic.  This was the interpretation of the Dutch government in the mid-1970s who were concerned to separate the markets for "hard" drugs, that is heroin, from "soft" drugs such as cannabis.    

Those countries, which are signatories to the 1988 Convention, are, however, bound to criminalise possession of controlled drugs for personal use:

 "Each Party shall adopt such measures as may be necessary under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention" (United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , 1988, Article 3 paragraph 2).

 The only caveat is that it is "subject to its constitutional principles and the basic concepts of its legal system." If a country does not have a written constitution then citing this caveat could be problematical.  It is interesting that the article says that personal consumption is contrary to the provisions of the previous two Conventions, in effect retrospectively interpreting those Conventions in a way with which not all would agree.

Many countries have now decided not to use the full weight of criminal sanctions against people who are in possession of drugs that are for their personal consumption. The Conventions say that there must be an offence under domestic criminal law, it does not say that the law has to be enforced, or that when it is what sanctions should apply. The discretion that the police have to prosecute or not is enshrined in common law.  The Lambeth experiment in London bears witness to the fact that the police do not have to arrest anyone for an offence, and here they choose not to under certain circumstances, if they find someone in possession of an illicit drug in amounts that they deem is for personal use.  Similarly, any examination of the criminal statistics reveals a marked increase in the number and proportion of people who are cautioned rather than charged, with drug offences.  This increase continued until very recently, but it has now begun to decline. Government figures show that in 1973 3% of offenders were cautionedThis figure rose to 52% in 1995 and fell to 50% in 1997 (Home Office Criminal Statistics, 1998). One interpretation of these figures is that the decline is due to the fact that the police are no longer even bothering to caution for a first offence, and are simply letting the offender off with an informal warning rather than charging more people rather than cautioning them. 

Such a situation explains the variations that exist within Europe today, including the de facto legalization of personal cannabis possession in a number of countries  (Krajewski, 1999, Dorn and Jamieson, 2001, De Ruyver, 2002).  While it may be argued that such moves go against the spirit of the Conventions, especially the stricter provisions of the 1988 Convention, nations have a strong legal position when contending that they are still operating inside the parameters of the international legislation. This is a point of contention for the INCB. The Board clearly regards the liberalization of cannabis laws in Europe in particular to be at odds with the objectives of the international drug control treaties (INCB, 2001: 33-37, & INCB, 2002: 69).

Additional latitude is also provided by the fact that the Single Convention does not define medical and scientific purposes.  The framers of the 1961 Convention left signatory nations a significant amount of leeway since the expression will have different meanings at different times (Chatterjee, 1981: 356-7) and indeed within different nations.  Consequently, countries wishing to pursue risk reduction strategies such as the exchange and distribution of needles and syringes, the prescription of heroin, injecting rooms and even on the spot testing of drugs like ecstasy can convincingly argue that they are working within the confines of the international control framework (De Ruyver 2002: 30-33).

Accordingly, liberal interpretations of the conventions meant that by the mid-1990s many European countries had adopted a harm reduction approach to the drug problem and employed, in varying degrees, many of the strategies mentioned above (See MacCoun & Reuter, 2001: 265-299). 

The legitimization of this approach with reference to international commitments was undoubtedly further enhanced with the pronouncement of the UN Declaration on the Guiding Principles of Drug Demand Reduction in 1998.  Negotiations surrounding the final form of the document required wording that would be acceptable to all the States involved, including prohibition oriented nations like the USA. Eventually under the heading of Guiding Principles agreement was reached with,  "Demand reduction shall: (i) Aim at preventing the use of drugs and at reducing the adverse consequences of drug abuse".  Later it is reiterated under the heading of "Tackling the Problem,"  "Demand reduction programmes should cover all areas of prevention from discouraging initial use to reducing the negative health and social consequences of drug abuse." (Political Declaration, 1999: 9)

  The Action Plan developed to implement the UNGASS Guiding Principles on Demand Reduction also committed countries themselves to offer "the full spectrum of services, including reducing the adverse health and social consequences of drug abuse" (A/RES/54/132).

Clearly then the Declaration and the Action Plan can be used to support needle exchange programmes as well as injecting rooms since both reduce the negative health consequences of drug abuse. To be sure, while both strategies have been criticized for not being within the spirit of the Conventions, they are supported by the far later Declaration by Member States of the United Nations, and so represent the more recent views of governments. 

With this is mind a harm reduction approach has recently also been acknowledged at the EU level.  The European Union Action Plan to Combat Drugs (2000-2004) makes reference to the UN Declaration on the Guiding Principles of Drug Demand Reduction and notes, "A comprehensive approach is still considered to be the best strategy to meet future problems. Such an approach should cover all areas of drug abuse prevention, from discouraging the initial use to reducing the negative health and social consequences of drug abuse" (European Union Action Plan to Combat Drugs, 1999: 16).  Making specific reference to reducing the harm associated with intravenous drug use the European Union Strategy on Drugs (2000-2004) states as one of its targets to "reduce substantially over five years the incidence of drug related health damage (HIV, hepatitis B and C, TBC etc) and the number of drug related deaths." (Jelsma et al, 2003)

Such a situation consequently makes the INCB position upon harm reduction measures like injecting rooms problematic. Recent years have seen the Board argue, among other things, that injecting rooms facilitate illicit drug trafficking and that it is the obligation of governments to "combat illicit drug trafficking in all its forms"  (INCB, 1999: 26).  The INCB report for 2002 reiterated this point noting,  "drug injection rooms (or any other similar outlets established in some developing countries) might even facilitate drug abuse, are contrary to the international drug control treaties" (2002: 70).  To many observers the Board's statements are thus contrary to the Declaration.

The INCB position on injecting rooms also highlights the inconsistencies that currently exist within the UN with regard to harm reduction, particularly the reluctance of the UNDCP, the CND and the Board itself to directly engage with the concept while other UN bodies do.  Indeed, as Jelsma, Blickman and Montañės note, WHO, UNAIDS and the United Nations Development Programme (UNDP) today use the strategy of harm/risk reduction as a matter of course.  For example, The Declaration of Commitment on HIV/AIDS adopted at the UNGASS June 2001 specifically calls on nations to ensure, by 2005, expanded access to clean needles and to promote "harm reduction efforts related to drug use" (A/RES/S-26/2: art 52). (Jelsma et al, 2003. Also see Wilson, 2002)

The importance of the Declaration on the Guiding principles of Drug Demand Reduction has not yet been explored by many governments and organisations when elaborating their policies. The preamble under the heading of Guiding Principles says that drug control strategies should be formulated "in accordance with the principles of the Charter of the United Nations and international law, in particular, respect for the sovereignty and territorial integrity of States, human rights and fundamental freedoms and the principles of the Universal Declaration of Human Rights, and the principle of shared responsibility" (Political Declaration, 1999: 8). This immediately opens up the possibility of justifying numerous policy options, which have been denied by the very strict interpretation of the Conventions.

For many States, there may be a constitutional principle, or a principle of law, which regards the preservation of human life or vital public health issue, as the highest priority.  With the advent of HIV/AIDS and the rapid spread of hepatitis C, any programmes designed to limit the spread of these diseases would be exempted from the Conventions if these caveats existed.

Despite such grey areas latitude is by no means unlimited.  The centrality of the principle of limiting narcotic and psychotropic drugs for medical and scientific purposes leaves no room for the legal possibility of recreational use. To be sure, Article 2 paragraph 5 (b) as well as Article 4 (c) of the Single Convention obliges Parties to limit the use and possession of drugs, including cannabis, exclusively to medical and scientific purposes (De Ruyver, 2002: 23) Article 2.5 (b) states "A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of drugs" in Schedules I and IV "except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party" (emphasis added). As a reading of the Commentary of the Single Convention on Narcotic Drugs, 1961, makes clear the article is intended to allow parties to strengthen their domestic systems, not weaken them (United Nations, 1973: 64-69). Nations may currently be pushing the boundaries of the international system, but the pursuit of any action to formally legalize non-medical and non-scientific drug use would require either treaty revision or a complete or partial withdrawal from the current regime. 

Possibilities for changing the current treaties.

Treaty Revision

Two possible routes exist when considering revision of the Conventions; modification and amendment.

· Modification

Modification itself takes two forms: either moving a drug from one schedule to another of the 1961 and 1971 Conventions, or the 1988 Convention tables, or through the deletion of a drug from a schedule or table altogether. Changing the schedule or table changes the type of restrictions placed on the drug. The World Health Organization (WHO), or in the case of the 1988 Convention the International Narcotics Control Board, or any contracting Party can initiate the modification process at any time. At the practical level, however, the process is far from straightforward. 

The power to make changes in drug classification belongs, in the first instance, to the 53-member states of the CND.  The current state of the Commission, particularly the stance of the prohibition-oriented nations makes it highly unlikely that the necessary decision required to approve change would be obtainable.  Nations opposed to any weakening of the conventions comprise a curious alliance including Sweden, Japan, many ex-Soviet states, most Arab nations and the United States.  Members of this group have, all for their own reasons, a strong desire to maintain or strengthen the current regime.  The mechanisms for change within all three conventions provide the group with many opportunities to stifle any revisionist action.  Within this significant power block the US plays a crucial role.  As its staunchest defender, it is the US that provides the INCB with the muscle to police the regime's disciplinary framework.  Pressure from Washington has long supplemented the moral legitimacy bestowed upon the doctrine of prohibition by the UN.  As a diplomat at the UN in Vienna noted only a few years ago "Wherever a nation seems about to break ranks [with Washington's views on prohibition] the US will be there, cajoling or threatening (Webster, 1998). Such a US-UN alliance represents a formidable source of inertia.  Through the strategy known as issue linkage, the US has used its superpower status to defend the international drug control system it worked hard to construct.  (Bewley-Taylor, 2001)

In the unlikely event that a move to modify did gain support in the CND, it would only take one party to make a request for the Commission's decision to be taken to the Economic and Social Council for review. The Council then has the authority to confirm, alter or reject the decision of the CND. The ECOSOC's decision is final, and there is no reason to believe that the 54-member body would be any more receptive to a modification proposal than the CND.

In the case of reclassification of cannabis, the situation is further complicated by the fact that the control of cultivation is entrenched in specific articles of the 1961 legislation. This means that only an amendment to the Single Convention could achieve any significant revision. (Bewley-Taylor, 2003)

· Amendment

If re-scheduling is not feasible then Parties may seek amendment. Amendment refers to the formal alteration of treaty provisions, that is changing, by adding or deleting words, phrases or whole articles from a convention, that affect all the Parties. 

As with modification, however, the amending route provides plenty of scope for blocking action by nations opposed to revision of the international prohibition regime. 

Procedures for amending both the 1961 and 1971 Conventions are almost identical.  Parties can notify the Secretary-General of a proposal for an amendment, including the reasoning behind the move. The Secretary-General then communicates the proposed amendment and the reasons for it to the Parties and to the Council.  It is then the ECOSOC's decision to either call a conference to consider the amendment, or ask the Parties if they accept the amendment.  If no Party rejects the amendment within 18 months after circulation by the Council, the amendment will come into force. This outcome would appear to be most unlikely considering the trenchant support that currently exists for the maintenance of the extant regime. If, as is more probable, one or more Parties reject the amendment and submit to the ECOSOC their comments within 18 months, the Council can decide whether or not to convene a conference to consider the amendment. Even if the issue of cost was overcome and a conference convened, there is no guarantee that it would lead to any meaningful revisions to a convention.  It may even provide prohibition-oriented states with an opportunity to strengthen the current system.

A similar process, and thus a similar set of obstacles, would be encountered upon attempting to amend the 1988 Convention.

Considering the enormous difficulties that are incurred with attempting to amend or to modify, Parties may wish to consider withdrawing from the treaties.

Withdrawal from the Treaties

Two main options exist for nations to withdraw from the treaties whilst remaining clearly within the confines of international law. 

· The Possibilities of Denunciation

Articles within all the treaties allow any Party to opt out by depositing in writing, including reference to the legal grounds for the move, a denunciation with the Secretary-General.  Such action would open up two possibilities: termination of the treaty and unilaterally freeing an individual nation from the constraints of the treaty.

It would be highly improbable, however, that the denunciation route could be employed to formally terminate the conventions because of the sheer number of states necessary to denounce a treaty to the point where it is no longer in force.  As of 1 February 2003, for example, it would require 140 of the current 179 nations who are Parties to denounce the 1961 Convention.  This would be needed to bring the number of Parties to the Convention below the 40 ratifications or accessions required for it to be in force.  The 1988 Convention, it should also be noted, can never be terminated because it has no termination clause.  Consequently, in accordance with Article 55 of the 1969 Vienna Convention on the Law of Treaties, it will remain in force even if it has only one signatory (http//:www.un.org/law/ilc/texts/treaties.htm).

While the prospects for treaty termination may be limited, states may wish to use denunciation to extricate themselves from the current system.  Although perhaps regarded as an extreme move, action of this type, "&would not, of course, be in violation of international obligations" since it is written into the treaties. (Commission of Inquiry into the Non-medical Use of Drugs, 1972: 248). 

Denunciation by a state would, however, undoubtedly draw extreme criticism from the prohibition-oriented camp, especially the US, and the UN, particularly the INCB.  A Party who chooses to denounce the treaties would have to be prepared to face not only US-UN condemnation but also the threat or application of some form of US sanctions. As the American scholar Peter Andreas notes, "Open defection from the drug prohibition regime would&have severe consequences: it would place the defecting country in the category of a pariah narcostate,' generate material repercussions in the form of economic sanctions and aid cut offs, and damage the country's moral standing in the international community." (Andreas, 1999:127-128. Also see Bewley-Taylor, 2001: 171-174). This would create different problems for different states.  For economic reasons so-called developed nations are better placed to resist US-UN pressure than those from the so-called developing world.

· The Constitutional Principles and Basic Concepts of Legal Systems "Loophole"

Should Parties prefer not to follow the denunciation route, they could exploit what has been called an "important loophole" in the treaties.  As noted above during the discussion of room for manoeuvre within the treaties "&[none of the] three international drug Conventions insist on the establishment of drug consumption per se as a punishable offence.  Only the 1988 Convention clearly requires parties to establish as criminal offences under law the possession, purchase or cultivation of controlled drugs for the purpose of non-medical, personal consumption, unless to do so would be contrary to the constitutional principles and basic concepts of their legal systems." (Italics added) (Webster, 2001). 

Thus, if the highest courts in signatory nations ruled that prohibition of a single drug (cannabis for example) or a selection of outlawed substances, was unconstitutional then the Parties involved would no longer be bound by the limitations of the Conventions with respect to those drugs.  Such action would be perfectly legitimate according to the provisions of the treaties themselves.  Debate already exists with regard to the value of challenging drug prohibition on the grounds of human rights violations (Riley, 1998, van Ree, 1999).  As with all of the options discussed here, this course of action would undoubtedly attract massive criticism and more from the UN and the US.

Disregarding the Treaties 

Another strategy would be for Parties to move beyond the boundaries of international law and simply ignore the treaties or certain parts of them. In this way they could institute any policies deemed to be necessary at the national level, including for example the legalization of cannabis and the introduction of a licensing system for domestic producers.   This option has been gaining support amongst many opponents of the prohibition based international system for some time.  Disregarding all or selected components of the treaties, however, raises serious issues beyond the realm of drug control.  The possibility of nations unilaterally ignoring drug control treaty commitments could threaten the stability of the entire UN treaty system.  As a consequence states may be wary of opting out. It is true that some international lawyers argue that all treaties can naturally cease to be binding when a fundamental change of circumstances has occurred since the time of signing (Starke, 1989: 473-4). Bearing in mind the dramatic changes in the nature, extent and understanding of the drug problem since the 1960s, this doctrine of rebus sic stantibus could possibly be applied to the drug treaties or a specific article within the treaties  (Leinwand, 1971). Yet the selective application of such a principle would call into question the validity of many and varied conventions.   Furthermore, since the treaties fulfill an important role in the control of licit pharmaceuticals any withdrawal from the international treaty system would certainly be problematic.

Conclusions

There is clearly a mounting desire among some, particularly European, nations to pursue pragmatic strategies to address the illegal drug issue.  The result is the development of increasing tension between many domestic policies and the strict interpretations of the Conventions held by the INCB and prohibition oriented members within the CND.  There are, however, a number of possible scenarios whereby the more liberal minded states may be able to increase policy space at the national level.

            The first option for limited change is to more actively pursue the quiet path that is currently being followed to varying degrees by many European States, including the Netherlands, Switzerland, Portugal, Belgium, the United Kingdom and Germany, and other countries such as Canada and Australia.  These nations are interpreting the ambiguities within the Conventions in the light of their own needs. This occurs especially in relation to the depenalization of possession of illicit drugs and the use of controlled drugs for medicinal reasons.

The advent of HIV/AIDS has also led many countries to argue that to limit its spread is more important in the short term than getting everyone off drugs.  Such a harm reduction approach is not contrary to the Conventions, although the INCB consistently argues that it is. Additionally, as noted above, clauses within the 1998 Declaration on the Guiding Principles of Drug Demand Reduction add further scope for harm reduction measures. 

Increased policy space is therefore possible within the conventions by those countries willing and able to ignore condemnation from the INCB and prohibition-oriented states, particularly the USA. Indeed, a coalition of like-minded states may be in a better position to withstand such criticism. The existence of such a group may also have the effect of softening the predominantly prohibitionist interpretation of the Conventions adopted by the core triangle of the UNDCP, CND and INCB and bring them into line with other UN bodies like UNAIDS who do engage with harm reduction strategies. 

More significant change in national policies, notably the legalization of non-medical and non-scientific use of one or more drugs, is more problematic but may in the longer term be realized via the second option.  This would also involve a group of like-minded nations.

In this case revision oriented states might move to initiate some form of change in the drug control regime.  It is uncertain if a lone state would be able to leave the regime without incurring the full wrath of the defenders of the current international system.  If, however, a credible group of parties from Europe, Australasia and the GRULAC, for example, were to combine to denounce one, all or a specific section of the treaties, the US-UN partnership may lose much of its potential influence. It is important to note that a like-minded group would not include the EU as an entity because, while some member states are moving to liberalize policies, Sweden remains very much in the prohibition-oriented camp.

By merely making moves to leave the confines of the regime such a group might also be able to generate a critical mass sufficient to initiate regime change and thus create some space for movement at the national level within the current system. The UN apparatus and the prohibition-oriented nations might be more open to some form of treaty modification or amendment if it was felt that such a concession would prevent the collapse of the existing treaty system.  Such a scenario is possible since it is generally agreed that denunciation of any treaty can lead to its demise.  This would likely be the case with regard to any of the drug control treaties due to the nature of the issue and the convention's reliance on widespread transnational adherence.  Using denunciation as a trigger for treaty revision would differ from the procedures to revise the conventions discussed above since a group of like minded states would not simply be playing the numbers game in an effort to gain favourable decisions in both the ECOSOC or the CND. A sufficiently weighty "denouncers" group may be able to not only withstand UN-US pressure, but also apply significant pressure itself.

A similar group of like-minded states may also ask for reconsideration of the Conventions by way of a plenipotentiary conference to draft a new Convention to replace the others.  If this could be achieved without the issue of cost be raised as an objection, a conference could provide an opportunity to reconsider the appropriate level of decision-making and question whether domestic drug policy is best developed at national, rather than international level.   

Indeed, it seems clear that the rigidly prohibitionist interpretations of the UN conventions are ever more out of step with the demands placed on governments by contemporary drug problems within nation states.  It is true that dramatic changes to an international drug control framework that dates back to the early years of the twentieth century are unlikely to occur overnight.  Nonetheless, the Vienna mid-term review in April 2003 provides nations with an ideal opportunity to engage in an ongoing reassessment of the operation and principles of the current system.


While it is extremely difficult to summarize any of the Conventions, the Appendices that follow contain a brief overview of some of the key areas covered by the instruments.  For this section the authors are indebted to De Ruyver et al, 2002, pp. 8-12.

Appendix 1.

1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol.

The 1961 Convention was set up as a universal system to control the cultivation, production, manufacture, export, import, distribution of, trade in, use and possession of narcotic substances (opium poppy, coca leaf and cannabis). Consequently, the Convention exercises control over more than one hundred narcotic drugs.

As noted in the main text of this report, an important objective of the Convention was to streamline the international control machinery. This resulted in the establishment of a multilateral authority within the United Nations, namely the International Narcotics Control Board (INCB).

Articles 21 to 34 regulate the licit activities. The Convention requires that Parties license the production and manufacture of controlled substances. The import and export of narcotic products require specific government authorization.  Trade and distribution in domestic markets require licenses by the governmental authorities, and individual users require medical prescriptions to obtain the controlled substances. Thus, except under legal authority, Parties shall not permit the possession of drugs.

As noted in the main body of this report (p. 2), illicit substances covered by the convention are catalogued in four schedules.

The supply or dispensing of any substance listed in the schedules is only possible under legal authority (e.g. under license).

Article 36 concerns the penal provisions for illicit activities. The Convention urges the Parties to declare as punishable offences the cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of the Convention.

The INCB has no power to enforce the implementation of the Convention provisions, nor has it the power to punish Parties for non-compliance. This power remains under the domestic jurisdiction of each individual Party. This Convention terminates and replaces all the previous international treaties on drugs for the ratifying states according to Article 44.

Appendix 2.

1971 Convention on Psychotropic Substances

As a result of a world wide growing concern over the harmful effects of psychotropic substances, including synthetic drugs, the Convention on Psychotropic Substances was established as the companion instrument of the 1961 Convention, since it deals with psychotropic substances next to narcotics.

Again, it establishes an international control machinery, which was entrusted to the INCB.

Similar to the 1961 Convention, psychotropic substances are categorized in four schedules. The classification is related to the dependence creating properties, the potential abuse level and the therapeutic value of the substances. Any substance included in any of the four schedules, must be licensed by the governments for manufacture, trade and distribution. The supply or dispensing of any substance on the schedules is only possible under legal authority. Regarding the psychotropics of schedule I, the use of these substances need to be strictly limited to medical and scientific purposes.  Concerning the scope of control of substances listed in schedule II, III and IV, Parties may permit the use and possession of these substances in specific cases (e.g. industrial purposes, the possession of small quantities by international travellers for personal use and for the capture of animals). However, the Parties need to apply the measures of control required by the Convention.  The penal provisions, which are stipulated in Article 22, are similar to those of the 1961 Convention. Again, the implementation of the Convention provisions remains under the domestic jurisdiction of each state.

The Schedules are added in Annex to the Convention. These Schedules include the amendments made by the INCB in force as of 23 November 1992.

The Convention establishes norms and procedures for applying controls (licensing, domestic use, export, import, inspection, record-keeping, prescriptions, warnings on packages, advertising, reports).  The INCB oversees the application of the provisions.

Appendix 3.

1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

The 1988 Convention was designed especially to deal with the growing problem of international trafficking in illicit substances. Indeed, the earlier international legal instruments only dealt with this problem in a marginal fashion.  The Preamble to the Convention stresses the need for multilateral action and intergovernmental co-operation to eliminate the root causes of the problem, including the illicit demand for such drugs and substances and the enormous profits derived from illicit trafficking.  The agreement on co-operation among the Parties to combat more effectively the international illicit trafficking ensures full respect for the states' domestic legislative systems.

To ensure this co-operation, the Conventions include provisions on extradition, mutual legal assistance, transfer of proceedings, international co-operation and assistance for transit states, asset seizure, money laundering and forfeiture of proceeds derived from illicit trafficking, etc.

Concerning the penal provisions, the main thrust of the Convention is the obligation on the states to establish as criminal offences: cultivation, production, manufacture, import, export, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, transport, importation and exportation, possession or purchase of any narcotic drug or psychotropic substance contrary to the 1961 and 1971 provisions.

Article 3 explicitly imposes the obligation to criminalize the demand side, while the previous two Conventions focused on the supply side. Consequently, the possession of illicit drugs for personal consumption has to be adopted as a criminal offence.

It is important, however, to understand this shift in focus in the following context. The 1988 Convention was an attempt to reach a political balance between consumer and producer countries. Consequently, it was not only the duty of producing countries (e.g. the developing countries of Asia and South America) to suppress illicit supply, but also the duty of consumer countries (e.g. the industrialized countries of Europe and North America) to suppress the demand for drugs.

In Annex to the Convention, Tables I and II are added. These tables include precursor substances.

Again, the INCB oversees the implementation of the Convention by the Parties.

REFERENCES

UN Documents

A/RES/S-20/2. Political Declaration, General Assembly 20th Special Session, 9th Plenary Meeting. June 10, 1998.

A/RES/45/179 United Nations General Assembly 1990 Enhancement of the United Nations Structure for Drug Abuse Control

A/RES/54/132, Action Plan for the Implementation of the Declaration on the Guiding Principles of Drug Demand Reduction, annex to resolution, General Assembly, February 2, 2000.

E/RES/1991/38 United Nations. Economic and Social Council. Terms of Reference of the Commission on Narcotic Drugs

E/RES/1991/39. United Nations. Economic and Social Council. Functioning of the Commission on Narcotic Drugs and provisional agenda for its thirty-fifth session.

E/CN.7/1996/L.16. Resolution. Special session of the General Assembly devoted to the combat against the illicit production, sale, demand, traffic and distribution of narcotic drugs and psychotropic substances and related activities.

E/1996/27, Commission on Narcotic Drugs, Report on the 39th Session (16-25 April), Economic and Social Council, Official Records 1996.

Political Declaration, (1999), Special Session of the General Assembly Devoted to Countering the World Drug Problem Together, 8-10 June, 1998.  Guiding Principles of Drug Demand Reduction and Measure to Enhance International Cooperation to Counter the World Drug Problem.

Retrieved from http://www.undcp.org/pdf/report_1999-01-01_1.pdf March 14 2003.

EU Documents

European Action Plan to Combat Drugs, 2000-2004 Brussels 26.05.1999 COM (1999) 239 Final.  Retrieved from http://www.emcdda.org/multimedia/actionplan/action_en_pdf on March 13 2003.

Books and Articles

Advisory Council on the Misuse of Drugs (1988) AIDS and Drug Misuse.  Part 1.  London: Department of Health and Social Security, Her Majesty's Stationary Office.

Andreas, P., (1999). When Policies Collide: Market Reform, Market Prohibition, and the Narcotization of the Mexican Economy.  In H. R. Friman and P. Andreas (Eds), The Illicit Global Economy and State Power, (pp. 127-128) Lanham, Boulder, New York and Oxford, Rowman and Littlefield Publishers, Inc,.

Boekhout van Solinge, T., (2002), Drugs and Decision Making in the European Union, Mets & Schilt Publishers, Amsterdam, CEDRO, University of Amsterdam.

Bewley-Taylor, D.R.  (2001), The United States and International Drug Control, 1909-1997. London & New York, Continuum.

Bewley-Taylor, D.R., (2002), Habits of a Hegemon: The United States and the Future of the Global Drug Prohibition Regime, in Breaking the Impasse: Polarization and Paralysis in UN Drug Control, Transnational Institute, Drugs and Conflict Debate Papers, July, No. 5. 10-15

Bewley-Taylor, D.R. (2003), "Challenging the UN Drug Control Conventions: Problems and Possibilities," International Journal of Drug Policy, 14.2, Forthcoming.

Blickman, T and M. Jelsma, "Full Scope on the War on Drugs.  The United Nations wants to eliminate illicit drug cultivation by 2008." Retrieved 25 February 2003 from http://www.tni.org/drugs/ungass/scopetni.htm

Boister, N., (2001) Penal Aspects of the UN Drug Conventions, The Hague, Boston, London, Kluwer Law International,

Chatterjee, S. K., (1981) Legal Aspects of International Drug Control. The Hague, Boston & London, Martinus Nijhoff Publishers.

Commission of Inquiry into the Non-Medical Use of Drugs (1972) (Gerald Le Dain, Chairman) Interim Report, Ottawa.

De Ruyver, B., Vermeulen, G., Vander Beken, T., Vander Laenen, F., & Geenens, K., (2002) Multidisciplinary Drug Policies and the UN Drug Treaties. Institute for International Research on Criminal Policy Ghent University, (IRCP), Maklu, Antwerpen/Apeldoorn.

Dorn, N. & Jamieson, A., (2000) Room for Manoeuvre; Overview of comparative legal research into national drug laws of France, Italy, Spain, the Netherlands and Sweden and their relation to three international drug conventions.  A study of DrugScope, London, for The Independent Inquiry on the Misuse of Drugs Act 1971.

Fazey, C.S.J., (2003) The Commission on Narcotic Drugs and the United Nations International drug Control Programme: Politics, Policies and Prospects for Change, International Journal of Drug Policy, 14.2, Forthcoming.

Fazey., C.S.J., (2002)  The INCB and the Wizard of Oz. Usurping the Role of the Commission on Narcotic Drugs: The Politicisation and Unauthorized Expansion of the Role of the International Narcotics Control Board.  Unpublished.

Home Office (1998) Criminal Statistics for England and Wales.

International Narcotics Control Board (INCB) (1999), Report of the International Narcotics Control Board.  Retrieved 9 September 2002 from  http://www.incb.org/e/index.htm

International Narcotics Control Board (INCB) (2001), Report of the International Narcotics Control Board. Retrieved 9 September 2002 from    http://www.incb.org/e/index.htm

International Narcotics Control Board (INCB) (2002), Report of the International Narcotics Control Board. Retrieved 26 February 2003 from    http://www.incb.org/e/index.htm

Jelsma, Martin (2003), Drugs in the UN System.  The 1998 UNGASS: An Unwritten History, International Journal of Drug Policy, 14.2, Forthcoming.

Jelsma, Martin, Tom Blickman and Virginia Montañės, (2003) Change of Course: An Agenda for Vienna, Transnational Institute, Drugs and Conflict Debate Papers, March  No. 6. 20-21

Krajewski, K. How Flexible are the United Nations drug conventions? (1999). International Journal of Drug Policy, 10, 329-338.

Leinwand, M., (1971), The International Law of Treaties and the United States Legalization of Marijuana, Columbia Journal of Transnational Law, Vol. 10, 431-441

MacCoun, R. J. and Peter Reuter, (2001), Drug War Heresies: Learning from Other Vices, Times and Places, Cambridge University Press.

McAllister, W. B., (2000) Drug Diplomacy in the Twentieth Century: An International History. London & New York, Routledge.

Riley, Diane, (1998) Drugs and Drug Policy in Canada: A Brief review and Commentary.  Retrieved 15 May 2002 from http://www.cfdp.ca/sen1841.htm

Sinha, J., (2001) The History and Development of the Leading International Drug Control Conventions (Report prepared for the Canadian Senate Special Committee on Illegal Drugs)

Starke, J. G., (1989) Introduction to International Law, (10th Ed.) London, Butterworths.

United Nations (1998) Commentary on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, Done at Vienna on 20 December 1988, United Nations Publications, New York. E/CN.7/590.

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , Vienna, 1988.  http://www.incb.org/e/conv/1988/articles.htm

United Nations Drug Control Programme (UNDCP) (1997), World Drug Report.  Retrieved 24 November 2002 from http://www.undcp.org/adhoc/world_drug_report_1997/Contents/CONT.pdf

United Nations. The Single Convention on Narcotic Drugs, New York, 1961 as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, Geneva, 1972. http://www.incb.org/e/conv/1961/articles.htm

United Nations(1976) Commentary on the Convention on Psychotropic Substances, Done at Vienna on 21 February 1971.  United Nations Publication, New York. E/CN.7/589.

United Nations. (1973) Commentary on the Single Convention on Narcotic Drugs, 1961, United Nations Publications, New York. 

United Nations.  The Convention on Psychotropic Substances, Vienna, 1971. >http://www.incb.org/e/conv/1971/artciles.htm

Van Ree., Erik, (1999) Drugs as a Human Right, International Journal of Drug Policy, (10), 89-98.

Vienna Convention on the Law of Treaties, 23 May 1969.  Retrieved 31 May 2002 from  www.un.org/law/ilc/texts/treaties.htm

Webster, P., (2001) UN Treaties and the Legalization of Drugs.    Retrieved 24 November 2002 from http://www.narconews.com/webster1.html

Webster, P., (1998) Rethinking Drug Prohibition: Don't Look for US Government Leadership, International Journal of Drug Policy, 9 (5), 297-303

Footnotes


[1] While the Commentaries to all of the UN drug control conventions are not legally binding they are valuable in interpreting the treaties in the terms intended by their framers.

[2] The WEOs were formally known as the WEOGs within the UN.

[3]   While this is the case the INCB had predecessor bodies dating back to the League of Nations.

[4] This is particularly the case with the UNDCP's Legal Assistance Programme that assists nations draft domestic laws in order to be treaty compliant.  See http://www.undcp.org/odccp/legal_assistance.html 

[5] For an in-depth European Union and drug policy see Boekhout van Solinge, T., (2002), Drugs and Decision Making in the European Union, Mets & Schilt Publishers, Amsterdam, CEDRO, University of Amsterdam.

[6] The Treaty of Amsterdam that entered into effect on 1 May 1999 made substantial changes to the EU Treaty ("Maastricht") and the EC Treaty ("Rome"). One of the most significant changes is that the European Council has now been endowed with a formal legal basis, which it lacked before.  The Treaty of Amsterdam also gave the European Parliament more powers. The Parliament can now participate, together with the Council, in decisions on legislation in a growing number of areas through the codecision procedure. Additionally, The Treaty provides that Parliament must always be asked for its advice in matters relating to the third pillar.

[7] Italy's total contribution in the period 1971-1998 was almost $239 million, as compared to $103 million from the US. The total contributions of all EU countries in this period amounted to $535 million. See United Nations Office for Drug Control and Crime Prevention - UN/ODCCP (1999), European-United Nations Partnerships Against Perils, p. 11.

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