View From the Ground: Heading for the Hills; Cannabis in Malana

By Romesh Bhattacharji (GDPO Technical Advisor)

Cannabis use in India is thousands of years old. It is traditional, cultural and linked to many indigenous rituals. As such, to believe that modern, and largely externally imposed, laws can prevent its cultivation and use is little more than wishful thinking.  Until 1985 Indian law essentially ignored cannabis. Then came the extremely severe Narcotics Drugs and Psychotropic Substances Act that was inspired by the UN drug control conventions, specifically the 1961 Single Convention on Narcotic Drugs. Overnight millions of cannabis users became culpable, and thousands ended up in jail every year. Despite this severe law, cannabis cultivation and use has increased all over India. Today the plant grows alongside country roads, major highways, in villages, towns and cities.

The Parvati Valley, in the mountainous Kullu district of Himachal Pradesh (HP) (See map 1), was once known for apples, peaches, hydro-electric (hydel) projects and mountaineering. However, for the past two decades Parvati, and all its side valleys, have become better known for hashish-cannabis resin. One of its tributaries is the rowdy Malana River, which has, about half way to its glacial source, the only village along its course.

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Map 1: Location of Malana

Malana village, perched on the mountainside 2,652 metres above sea level, is about an hour’s steep walk above the River.  Authorities in HP have linked all but nine of its 17,495 villages by motor roads.  Eight of them remain inaccessible by car because the imposing terrain is still to be subdued.

Malana does not have a road, not just because of the terrain, but also because its inhabitants do not want it. It would, after all, allow authorities access to the village without warning and risk the increasingly profitable cannabis trade. Moreover, and somewhat ironically, the State Government is not too keen to force a road as it wants to preserve a myth of Malana being one of the oldest so-called democracies in the world. Malana has a presiding deity called Jamlu Devta. This deity used to ‘appoint’ an all male village council of eleven, who then administered the village. In reality, there was clearly little democratic about this council, but it was a good story. A few years ago, the State Government superseded this council with an elected one. The present pradhan (head) is a woman, which could never have happened under the earlier ‘democratic’ dispensation.

Change is in the air; some might say, at last. A modern school building is being constructed and it seems that the village will soon be accessible by motor vehicles. Despite continued opposition from the village, a road has now come to within three kilometers. So, have three multi megawatt hydro-electric projects called Malana I, II and III.

I first visited this village in October 1964. At that time, friends and I had to trek from Bhuntar, about 45 kilometres away. We were going over the Chanderkhani pass (3660 metres above sea level) to Nagar in the Beas Valley.  Malana was steeped in the superstitious ignorance of the stone-age. Even leather was not allowed inside the village. Subsistence farming and shepherding were their only sources of livelihood.  We did not know what cannabis looked like, but our guide pointed out these plants growing wild above the village, and said that they were offered to Jamlu Devta.

By the early 1970s, cannabis in the village was getting attention from elsewhere.  At that time and in the midst of the counter-cultural movement of the 1960s and 1970s, travelling ‘hippies’ noticed that these cannabis plants were superior to others elsewhere, and soon there was a steady demand for it amongst the ‘hippie’ community within and passing through India.  As a result, many villages in Kullu district organized cannabis cultivation to meet this new external demand.  Cultivation consequently spread up all of the valleys within the vicinity.  People from Malana, perhaps because of its soil and climate, produced high quality cannabis resin (THC : 11-12%), which, known as Malana Cream, soon became popular abroad, including, sometime later, within the coffee shops of the Netherlands.  Lesser quality cannabis resin is produced in the rest of the Parvati Valley.

During my time as Commissioner of Customs in Amritsar (2001- 3), this area was part of my responsibility.  Even then it was clear that eradication did not work. Indeed, seizures of hashish and arrests of traffickers did not check production. Trafficking increased.

Seven years ago, and after retirement, I joined a group who, influenced by the buzz around Alternative Development (AD), wanted to convince the people of Malana to give up cultivation of cannabis and switch to some alternative crops, business or employment.  The group held a meeting in 2008 in Malana to discuss what alternatives the village could accept. The proponents of AD included bankers and bureaucrats, and agro-economists and scientists from Himachal Pradesh Agricultural University in nearby Palampur. In a survey around Malana the agro-scientists had found several valuable herbs, amongst them artemisia and cinchona. The bankers said that they would finance the picking of these herbs and their marketing with subsidies and interest free loans (see photo).

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Photo: An introduction to the concept of AD and the invaluable (non-cannabis) herbs of Malana (September 2008)

In 2009 when the AD group met again in Malana (see photo), the villagers listened to us, gave us lunch, and then quite gently were amused by us for being idiotic! Could anything compare with the profits made from cannabis?

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Photo: Another try at AD  – and another rebuff (November 2009)

These days the expansion of cannabis fields to meet the rising demand has resulted in the cutting of protected forests. Moreover, the plant has suffocated all those rare herbs. Indeed, nearly every house in Malana produces cannabis resin, or hashish as it is better known here.

In October 2014, along with colleagues from TNI and others from South East Asia, Dave Bewley -Taylor and I visited this village. Hashish samples were being openly offered to prospective customers. Upon entering the village, a young man shouted to Dave, ‘Malana Cream?’ While walking around Malana and going about their daily business, other villagers were casually rolling cannabis in their palms to extract slowly the resin (see photo).

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Photo: Not a minute to waste: Extracting resin on the go (October, 2014).

It was also a common sight to see mothers and their young children rolling out resin while sitting in the sun or on the balconies of the ancient buildings (see photo).  Even foreigners and Indians from other states were helping in the process.  At the same time our group was in the vicinity, other visitors were walking up to Malana, searching for the well-known dark brown resin.

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Photo: Extracting resin: A family affair (October 2014)

On the way up from the River, I met a couple of engineering students from South India. They were going to buy a couple of kilograms of hashish to sell it at home. This is how the demand for the sought after ‘product’ increases.

The demand is now so high that inferior hashish from other districts of Himachal Pradesh, from the neighbouring hill state of Uttarakhand, and from as far away as Nepal is used to swell the stocks of Malana Cream. It sells for Rs, 4000/- (or £ 44) per tola (11 grams) in the village, and for twice as much in the closest towns in the plains.

On the way back from Malana, a man, who was pradhan there in 2008 and 2009, joined me.  Smiling somewhat smugly about the boom in their cottage industry, he was happy that their clientele included many Indians now.  The former pradhan said, however, that the law must be reformed because no one bothers about it. Offering one explanation for such a lax approach to enforcement, cannabis growers, he said, are a large ‘vote bank’ in HP!

So, if the former pradhan is right, what should happen to the law?  Should the possession of cannabis for personal use be formerly, as opposed to what is effectively de facto, decriminalized in India, with hashish resin remaining illegal?  Cannabis is after all smoked by millions of manual labourers in India to keep hunger at bay. But then, what should happen with resin and cultivation in general?  In light of significant policy shifts in other parts of the world – specifically Uruguay and US states – should the Indian government consider a legally regulated market?

These difficult questions are compounded by the fact that little is known about either cannabis markets within different parts of the country or how policies within various India states where cannabis is cultivated are applied, or not.  On the former point, no survey has been done to estimate the area under cannabis cultivation in Himachal Pradesh or elsewhere in India. For this reason, the United Nations’ World Drug Reports consistently show that India does not produce resin (See for example, page 39 of 2014 Report). Were a survey to be done and some sort of ‘ground truth’ established the results would be shocking and surely lead to the inevitable query: isn’t it time for the law to change?

 

 

 

 

 

 

Ketamine secured for medical and veterinary use!

Originally posted here

By Willem Scholten

On Friday 13th March, the Commision on Narcotic Drugs discussed the possible bringing of ketamine under international drug control. Initially, China proposed to add the substance under Schedule I of the UN Convention on Psychotropic Substances. Such a scheduling means that the substance can be used for medical purposes only under direct governmental supervision, and in very limited situations. The proposal was very inappropriate for an essential medicine. However, thanks to the efforts of many, China amended its proposal to the less strict Schedule IV of the same convention. Again we opposed this and thanks to our opposition, China withdrew this morning its entire proposal. The CND then decided to postpone its decision on scheduling ketamine to a future date to allow more information to be gathered. A transcript of the debate is available on the CND Blog.

 

Source: http://drugabuse.com/library/the-effects-of-ketamine-use/

 

This is a very good result and I want to thank everyone who was involved in the lobbying to keep access to ketamine as a human and veterinary medicine for his or her efforts. In the end we had 87 endorsements on the fact sheet and several organizations came to Vienna to convince the delegates personally. Many went to their governments to convince the ministries of health and the drug controllers that any scheduling of ketamine was not a good idea.

Over the past few weeks it became more and more clear that we were successful, and many countries declared that they would oppose the scheduling. Initially, we were able to find over 19 CND members opposing schedule IV, and once we had these, we continued to  convince more CND Member countries to oppose all scheduling. This became clear only gradually toward last weekend. In my messages you may have seen the countries I recommended to focus your lobby on. On purpose we decided not to be transparent on the countries we had convinced. I hope for your understanding, as such transparency would have made it easy for China to lobby these countries back into its camp.

During the week at the CND (which started last Monday), we discussed with country delegations the possible ways forward, being afraid of unwanted precedents in the procedure. But finally today, it happened as some had predicted: China withdraw its proposal while saving face by saying that this allows for more data collection. How serious this “more data collection” is, is in this stage not completely sure. It may be that we never hear back about ketamine scheduling, but some vigilance is needed in the coming years.

What further to do? There are over 50 countries who have scheduled ketamine in their national legislation (i.e. independent form the international drug control conventions). In several of these countries, veterinarians and physicians may have experienced reduced availability of ketamine already. They and their organizations may want to discuss the issue now with their governments in order to re-increase availability. Because of this CND and Chinas proposal, the climate may have changed now. After some of the preparatory meetings, someone mentioned that this was the first time ever that the countries at the CND discussed medicines availability for over three hours. Never before there was such a focus at the internaitonal levle on the relation between drug control and medicines availability. Therefore, this is the moment that most drug controllers around the world are seeing that drug control has also the negative side for public health of medicines unavailability.
Medical and veterinary organizations may also want to use the opportunity for discussing the availability of medicines controlled as drugs more in a general way, e.g. the availability of opioid analgesics, long-acting opioids for the treatment of opioid dependence, phenobarbital and other controlled medicines.

For those who want to take action in this regard, I also refer to the WHO Guidelines on this issue, available in multiple languages, including English, French and Spanish.

 

Another UN agency savages the drug war

Originally posted here

The United Nations Development Programme (UNDP), the UN agency charged with developing strategies to reduce global poverty, has strongly criticised current international drug policy, highlighting the disastrous costs it is producing – particularly for the world’s poor.

In the agency’s formal submission to the UN General Assembly Special Session (UNGASS) on drugs (PDF), launched at the annual UN Commission on Narcotic Drugs which began last week in Vienna, the UNDP argues:

"While drug control policies have been justified by the real and potential harms associated with illicit drug production, trafficking, and use (e.g., threats to safety and security, health problems, crime, decreased productivity, unemployment, and poverty), evidence shows that in many countries, policies and related enforcement activities focused on reducing supply and demand have had little effect in eradicating production or problematic drug use."

The agency goes on to say:

"As various UN organizations have observed, these efforts have had harmful collateral consequences: creating a criminal black market; fuelling corruption, violence, and instability; threatening public health and safety; generating large-scale human rights abuses, including abusive and inhumane punishments; and discrimination and marginalization of people who use drugs, indigenous peoples, women, and youth".

With regard to the harmful impacts on international development specifically, the UNDP states that international drug policy is having a negative effect on “poverty and sustainable livelihoods; governance and the rule of law; human rights; gender equality; the environment; and on indigenous peoples and traditional and religious practices.”  Detailed sections on each of these topic areas follow in the body of the report.

Ketamine under international law

This blog was originally posted here

Psychoactive substances or ‘drugs’, often associated with recreational use, are in fact commonly used for a variety of medicinal purposes. It is even less understood that the supply of more than 100 of these drugs is regulated by a complex system of international drug control underpinned by three United Nations treaties with near universal ratification. This post explores the relationship of drugs and international law, specifically international drug control law and international human rights law, using the topical example of placing ketamine under international control.

International drug control law

The legal framework of international drug control is shaped by three treaties: the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), the 1971 Convention on Psychotropic Substances, and the 1988 Convention against the Illicit Traffic in Narcotic or Psychotropic Substances. Scheduling is the process established by the treaties to bring certain psychoactive substances under a graded scale of international control. Scheduling a substance creates positive obligations for States to implement regulatory processes that meet or exceed requirements established by the treaties. In some overburdened health systems, this can lead to over-restrictive controls that inhibit medical access to essential drugs, well documented in the case of opioid analgesics.

Uses of ketamine

Ketamine’s unique properties make it one of the most important and widely used drugsin emergency and surgical medicine globally.   Where most anaesthetics require electricity for ventilators and gas masks, ketamine—an injectable anaesthetic—can be safely administered in settings without regular access to power, for example, war zones or impoverished rural areas. The analgesic properties of ketamine make its use during emergency surgery, such as for caesarean sections, indispensible for improving mortality outcomes in less-developed countries throughout the Global South. It is because of these properties that the World Health Organisation (WHO) placed ketamine on its list of essential medicines for both children and adults.

Outside of clinical settings, ketamine is used recreationally, although such use is mainly in more developed countries. China, in particular, views the illicit production of ketamine as an “increasingly serious” domestic issue and has repeatedly requested the substance be subject to international control. It is with this direction from China, that ketamine has made its foray onto the international legal stage.

Scheduling ketamine under international law

Established in 1946 by ECOSOC, the Commission on Narcotic Drugs (CND) serves as the principal policy-making body of the UN drug control system and under the three drug control treaties, it is mandated to oversee the scheduling system. China is currently one of 53 members of the CND, and is authorised under the treaties—in the case of ketamine, the 1971 Convention on Psychotropic Substances—to introduce substances of concern for scheduling consideration.  Procedurally, article 2 of the 1971 Convention requires the CND to submit scheduling recommendations to the World Health Organisation (WHO) for an evidence-based review to determine if the substance meets the criteria elaborated under article 2(4) to require scheduling (or not) and its degree of restriction under the graded scheduling system. Under article 2(5) of the 1971 Convention, the WHO’s recommendations are “determinative” when it comes to the “medical and scientific” basis for adding substances to a schedule.

This is not the first time China has requested ketamine be scheduled. The WHO’s review this year and each time before (see here and here) determined the public health risks associated with recreational use did not merit any measure of scheduling. The conclusive nature of this recommendation under the 1971 Convention has been subject to much interpretative debate. The current prevailing interpretation has placed the status of such a recommendation within broader considerations such as “economic, social, legal, [and] administrative” factors listed in article 2(5).

What this interpretation signals is that despite WHO’s determinative assessment that ketamine does not meet the criteria for scheduling under article 2(4), its scheduling may now be subject to a purely political process (a two-thirds vote by the CND would place ketamine under international control).

The control of ketamine and international human rights law

The impact the control of ketamine has upon human rights is a critical consideration. While human rights are not explicitly mentioned in the 1971 Convention, they are contained within the meaning of “legal” considerations as written in article 2(5), which States must take into account when deciding to add a substance to a schedule.

As mentioned previously, scheduling a substance creates regulatory barriers that have made essential medicines completely inaccessible for those most in need. These barriers result in on-going violations of human rights—most notably the right to health. The normative scope and content of the right is contained within article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and imposes upon States core obligations to be given immediate effect. General Comment 14 on the right to health elaborates further that amongst this minimum core is the obligation to provide medicines as indicated on the WHO’s essential medicines list. As such, ensuring ketamine is available, accessible, acceptable, and of sufficient quality forms part of a State’s core right to health obligations.

Should ketamine fall under the scope of international control, any restrictive measures a State subsequently imposes cannot interfere with current levels of access. The imposition of international control requirements would in many States, restrict current levels of access to ketamine and amount to a deliberate retrogressive action in violation of the right to health. This is relevant to any scheduling level under the 1971 Convention. While Schedule 1 imposes the most restrictive control measures, States can apply equally or more restrictive measures for any schedule level under article 23. As such, the same human rights assessment would apply as States with less complex regulatory systems often lump controls into one or two highly restrictive categories—see the example of phenobarbital, a Schedule 4 drug under the 1971 Convention.

As the vote fast approaches, a human rights framework offers States a powerfulnormative counterweight to the political pressure they face to place ketamine—an essential, life-saving medicine—under unnecessary international control.

Visit the International Centre on Human Rights and Drug Policy for more resources.

Daily updates from the CND can be found here.

The ketamine controversy, continued

This blog was originally posted here

UN legal opinion adds confusion while China changes its scheduling proposal

Friday, March 6, 2015

The Commission on Narcotic Drugs (CND) in Vienna will decide next week between two opposite proposals by China and the WHO about international control ofketamine, an essential anaesthetic in human and veterinary medicine. China originally proposed bringing ketamine under the 1971 Convention’s most severe control regime of Schedule I, which would dramatically affect its availability for surgery in poor rural settings and emergency situations. The WHO Expert Committee reviewed all the evidence and advised against any international control of ketamine, arguing it would trigger a public health disaster.

fact sheet produced by concerned NGOs, TNI among them, has received endorsements from over 80 organisations around the world, including many medical associations of anaesthesiologists and palliative care. The International Federation of Red Cross and Red Crescent Societies came out with its own statement of concern. At intersessional CND meetings past weeks in Vienna, several countries expressed their worry about the Chinese proposal and questioned the procedural legality of bringing it to a vote, now that the WHO has strongly recommended against it. Confronted with broad opposition, China changed it proposal and now calls for inclusion in Schedule IV instead, the lightest control regime under the 1971 Convention. The move is meant to soothe concerns and apparently several countries that opposed China’s original proposal are considering the softer option as an acceptable compromise.

Adding ketamine to Schedule IV, however, would still negatively impact on its availability in a number of countries, less severely so when compared to Schedule I, but millions of people would still be at risk of not having access to anaesthesia if they require surgery (seeextended fact sheet). Moreover, too little attention has been given in the debate so far to the potential consequences for future scheduling decisions, as this would set a precedent to add substances to the treaty schedules bypassing WHO’s expert advice. In response to questions raised about the procedure, UNODC asked the UN Office of Legal Affairs (OLA) in New York for a legal opinion about the basic question: “Can the Commission on Narcotic Drugs schedule a substance under the Convention on Psychotropic Substances of 1971 if there is a recommendation from the World Health Organization that the substance should not be placed under international control?”. Unfortunately, under time pressure, OLA produced an unhelpful, confusing and questionable legal argumentation concluding that “the Commission can schedule a substance under the Convention on Psychotropic Substances even if there is a recommendation from WHO that the substance should not be placed under international control” (E/CN.7/2015/14).

The 1971 treaty – as explained in detail in its Commentary – established a threshold for substances to be eligible for international control, which requires a careful weighing of their addictive and harmful properties against their medicinal usefulness. The review of the WHO Expert Committee on Drug Dependence is “determinative” regarding medical and scientific matters whether or not a substance meets that threshold. Once the WHO has determined that a substance meets those minimum criteria warranting international control, the CND can discuss the WHO recommendation and consider additional arguments (“economic, social, legal, administrative and other factors it may consider relevant”) to either adopt, reject or deviate from the choice for the particular Schedule recommended by the WHO. As spelled out in the Commentary on the 1971 Convention, if the WHO “recommends in its communication to the Commission that the substance should not be controlled, the Commission would not be authorized to place it under control” (§ 22, p. 71). Clear and simple, it seems, but apparently not for the Office on Legal Affairs.

In its legal opinion, OLA acknowledges that “WHO assessments are determinative as to medical and scientific matters of a substance,” but then continues saying: “but the ultimate authority to decide whether the substance should be added in a Schedule rests with the Commission. In doing so, the Commission is required to take into account factors broader than medical and scientific factors.” The CND “is expected to take a broader perspective, and is required to take into account all relevant factors to reach a conclusion.” On those grounds OLA then reaches its controversial conclusion quoted above, contradicting the official Commentary, and clearing the path – though the OLA advice is not binding in any way – for bringing China’s proposal for scheduling to a CND vote next week. Two-thirds of the 53 CND Member States would need to vote in favour to adopt it, in other words if 18 countries vote against it or abstain from voting the proposal would be rejected.

Following OLA’s treaty interpretation means that the other factors that the CND needs to consider (economic, social, legal, administrative) may provide sufficient reason for adding a substance to a treaty schedule, including if the substance does not meet the required threshold of dependence-producing and harmful properties. The OLA opinion confuses the clear intention of the treaty to establish a minimum threshold to be determined on the basis of medical/scientific evidence by the WHO, with the subsequent discretion of the CND to deviate from WHO’s specific recommendation about which schedule would be most appropriate, after taking into consideration other factors. It is difficult to understand how OLA arrived at such a fundamentally flawed judgement.

OLA also looked into the scheduling history to determine whether there have been any precedents for the situation the CND is confronted with now in the case of ketamine. Two previous cases, in 1991 and 1999, were identified as possibly relevant cases to consider. After acknowledging their different nature compared to the question at hand and that “these two cases seem to indicate that the Commission has generally followed WHO recommendations”, OLA then concludes in what again appears to be a difficult-to-follow twist of the argument that “the practice of the Commission to reject WHO recommendations is still relevant as it indicates that the Commission has not felt itself bound by WHO recommendations.” For the matter under consideration not only a confusing but also an irrelevant remark, because nobody questions that the CND has considerable discretion under the 1971 Convention (more than allowed under the 1961 Convention) to deviate from WHO scheduling recommendations. The treaty and the Commentary make very clear that indeed, the CND is not “bound by WHO recommendations”. The one thing the CND is not allowed to do, however, is scheduling a substance that the WHO has reviewed and concluded that it does not meet the threshold that warrants international control. In the case of ketamine, the WHO has reviewed and decided that three times now…

In one of the previous cases the OLA refers to, arguments were raised in the procedure that could in fact be relevant for the current situation. In short, Spain, worried over the amount of new psychoactive substances appearing on the market, tabled in 1999 a proposal to add all isomers, esters and ethers of substances already on Schedule I or II, placing all such chemically similar substances under the same control. The WHO reviewed the Spanish proposal, and recommended instead to only add substances falling under the much narrower definition of “stereoisomers” and only for Schedule I. The CND adopted by vote the WHO recommendation, and according to the OLA document “there is no record of any action taken with respect to the substances to which WHO objected”. And indeed, correctly following treaty procedures no vote was taken on the Spanish proposal because that included a much broader range of substances that the WHO had not recommended for international control.

The Netherlands argued at the time that the 1971 Convention “prescribes that new substances should first be carefully examined by WHO and then could be added to one of four Schedules if deemed necessary” and that the Spanish proposal therefore “may contradict the scheduling procedure”. The Netherlands “attaches great importance to a balanced and thorough expert opinion on health and social risks created by new substances before they are included in a schedule. As indicated above, WHO is required by the Convention to examine and evaluate each individual substance. Applying unconditional analogue scheduling would, however, substantially diminish the importance of this WHO task. In the opinion of the Netherlands, this would be a loss of expertise and negatively affect the scientific basis of the decision-making process within the Commission on Narcotic Drugs.”

As the OLA opinion confirms (in spite of its confused wording), there is not a single precedent in the history of scheduling decisions under the 1971 Convention where the CND decided to schedule a substance that had not been recommended for scheduling by the WHO. If the CND would decide to vote on the Chinese proposal to schedule ketamine, despite the fact that the WHO has already determined three times that it does not meet the threshold criteria for international control, it would therefore set a very worrying precedent. It effectively means the removal of the medical/scientific threshold for international control and abolishing the determinative nature of the mandate given to the WHO. The consequence of that for the future would be that any CND Member State from now on can call for a vote to put any substance on whatever schedule of the 1971 Convention (under the 1961 Convention this would be unthinkable), regardless of the opinion of the WHO Expert Committee. Tramadol and khat would be likely candidates to become scheduled in the coming years in a similar way, using the ketamine precedent to justify neglecting WHO’s expert advice again.

The OLA opinion was accompanied by a disclaimer saying that countries and the CND “may take a different view to the responses we provide. As such, our response should not in any way be construed as the only or definitive view.” Countries should critically examine OLA’s legal opinion and carefully consider its consequences for the future functioning of the UN drug control treaty system. Allowing the CND to vote about the scheduling of ketamine contrary to WHO’s recommendation, makes a mockery of the evidence-based intentions of the treaties and politicizes scheduling decisions in the future. Countries that are genuine in their calls for a more health- and human rights-based drug control system, for improving access and availability of essential medicines and for a more evidence-driven drug policy making, cannot allow this to happen…

See also my previous blog: “CND decision to schedule ketamine would undermine WHO treaty mandate”, 16 February 2015

World Medical Association warns against making essential anaesthetic a controlled drug, WMA press release, March 6, 2015

View From the Ground: Rosario, Argentina

In early January around 2,000 members of Argentina’s military-style border force – known as the gendarmeria – left the country’s second city of Rosario.  They had arrived 9 months earlier, on April 9th, carried clandestinely into the city as part of an elaborate rouse involving a fake climate change conference.  In a surprise display of force the local press justifiably described as “cinematic”, six helicopters hovered above while more than 80 raids were launched on known ‘bunkers’, the one room buildings that serve as illicit drug dispensers and are almost wholly located in the villas, the poor neighbourhoods that form a loose rim around the city centre.  At the forefront of proceedings was the National Security Secretary, Segio Berni.  “This was the largest operation in the history of Argentina, with the objective of pacifying the area of Rosario,” he told the press.

Since 2012 drug trafficking and violence have become issues of public debate in the city.  The violence and the trafficking had been going on in isolation in the villas, separate from the affluent heart of the city, but the issue was forced into the public eye and onto the political agenda thanks to the dedicated work of the activist organisation Frente Popular Dario Santillan after three of its members were killed on New Year’s Day 2012 by a local drug gang who mistook them for rivals.  Since a spike in mid-2010, violence has been spiralling upwards.  The city’s homicide rate is now the highest in the country.  Overwhelmingly, the victims are young men and boys; confrontations between rival gangs involved in the drug trade – generally small outfits, and often family-run – are considered to be behind a sizeable proportion of the deaths.  In response, “insecurity” has become the buzzword among politicians and the media.  It’s election time here at the moment and the posters blanketing every advertising space promise to combat insecurity, to bring back security, to make Rosario normal again.  Official mentions of the root causes – poverty, exclusion, corruption – are rare.  Policies designed to address them are even rarer.  (I know an activist group that struggled for a year and a half just to have lights put above a football pitch so the kids in one villa could have something to do in the evenings.)  The growing use of Argentina as a transit point for cocaine headed to Europe has increased the stakes and likely contributed to the violence, as have a provincial police force heavily involved in the trade and the lacklustre efforts of the judiciary and the government.  But in the public mind, and according to government policy, the embodiment of insecurity, the cause and the consequence, is a drugged-up 16 year old with a gun (a forthcoming GDPO Situation Analysis will discuss the treatment of children here involved in the trade).  “What these kids need,” local journalist, author, and political candidate Carlos del Frade told me, “is education, sport, art, activities.  They don’t need the gendarmeria in the neighbourhood.”  But that’s what they got.

It was something of an omen of things to come that while the mega-operation of April 9th looked impressive, the haul that day – 25 low-level actors involved in small-scale selling, “three guns, a couple of thousand dollars and some drugs”, quoting the former governor of the province – was less so.  The gendarmeria continued the established trend of pursuing the lowest and most visible link in the trafficking chain. Over their 9 month stay they did reduce violence in certain areas of the city; when they were replaced by the provincial police, shootings resumed.  Their presence also resembled an occupation and abuses were reported.  A university study of one area found selling alcohol was not permitted after 10pm, shopping receipts needed to be kept at hand to show proof of purchase, youngsters were detained arbitrarily and prevented from gathering outside, and people riding motorbikes were constantly stopped and searched.  Drug traffickers, local sources suggest, responded by selling more at night, and switching from ‘retail’ selling to ‘delivery’ – a text message is sent and a motorbike appears with the goods.  After the bandage was ripped off in January the blood began flowing again – as would be expected.

Party politics is central to all this.  When the gendarmeria were withdrawn, Berni, of the ruling Frente Para la Victoria party, could not resist using the opportunity to fire some parting shots at the Socialists who govern Rosario and Santa Fe.  The Socialists blame the national government for not sealing up the borders and not acting on drug trafficking, which is a federal, not provincial crime.  The national government blame local corruption.  Both have a case.  Berni rightly took some flak for politicising the issue, but this was merely an open recognition of what previous actions have made clear.  Even major operations are largely reactive and serve to score political points: when the provincial government were impelled to move on the city’s biggest drugs gang two years ago, the national government sent their forces into the province to capture a powerful drug trafficker – “I’m caught in the middle of a political war”, he somewhat justifiably told the press.  Nice rhetoric aside, the national government, which has sworn not to follow a War on Drugs approach, has done exactly that with the sending of the gendarmeria.

For now there are few signs things will improve.  Post-gendarmeria, the public debate is focused on the narrow question of whether they should come back or not; the governor of the province, Antonio Bonafatti, is adamant they return.  The national government seems to be enjoying watching their provincial rivals suffer.  Not enough is being done or said, on a national or provincial level, about the conditions behind the violence and trafficking – present in many cities across the country – or about the corruption in the police, the judiciary and the government; some local experts are incensed the provincial government didn’t use the breathing space provided by the national forces to overhaul the notoriously corrupt police force.  The short term seems to be the sole consideration for parties focused on upcoming elections. “The long term exists only for theoretical dalliances,” remarked a local columnist while discussing the dominance of the “security” issue within local political campaigns.  But serious, sustained programs designed to address deep-rooted issues are imperative if the many youngsters growing up in the villas who feel helpless and excluded and angry, who have lost a sense of value for life, are to have a better future than the one offered to them today.  Youngsters like 23 year old Pablo Martinez, who died this February while playing russian roulette.

By Ross Eventon

CND decision to schedule ketamine would undermine WHO treaty mandate

This blog was first posted here

The UN Commission considers to bring ketamine under the control of the 1971 Convention on Psychotropic Substances contrary to WHO recommendations
Monday, February 16, 2015

The 58th Session of the UN Commission on Narcotic Drugs (CND) in March 2015 has been asked to consider a Chinese proposal to place ketamine – an essential medicine used for anaesthesia – in Schedule I of the 1971 Convention (E/CN.7/2015/7 and E/CN.7/2015/81). Ketamine is the only available anaesthetic for essential surgery in most rural areas of developing countries, home to more than 2 billion of the world’s people. Scheduling ketamine under any of the 1971 treaty schedules will reduce its availability and further deepen the already acute crisis of global surgery.

The WHO has strongly and repeatedly recommended against international control, warning it would constitute a public health crisis in countries where no alternatives are available. The CND is taking place in Vienna on 9-17 March 2015.

> See also: Fact Sheet on the Proposal to Discuss International Scheduling of Ketamine at the 58th CND

On the UNODC website, in the CND section, appears a page under the title “Scheduling procedures” containing incomplete – and therefore misleading – information with regard to the options available to the CND in the case of a decision on ketamine. It says that the Commission “may decide – contrary to a recommendation of WHO – to add a substance to a schedule of the 1971 Convention or refuse to do so, to add a substance to a different schedule than recommended, or to remove a substance from the schedule in which it is listed or refuse to do so. However, the CND has to take into account the assessment from the WHO, which shall be determinative as to medical and scientific matters, and to bear in mind the economic, social, legal, administrative and other factors communicated to it by the Parties.”[1]

The footnote to the paragraph references the Commentary on the 1971 Convention [2], which indeed talks about the Commission’s “very wide discretionary powers” but it adds that this “does not mean that it may act arbitrarily”. [3] The key procedural question on the table in the case of ketamine is whether the CND “may decide – contrary to a recommendation of WHO – to add a substance to a schedule of the 1971 Convention”, a correct direct quote from the Commentary. [4] However, the Commentary also specifies that “there are cases in which the Commission would be bound to act in accordance with recommendations of WHO”, cases that unequivocally apply to the current case of ketamine:

commentary-1971-par22

The WHO Expert Committee in its latest review clearly established that “ketamine abuse currently does not appear to pose a sufficient public-health risk of global scale to warrant scheduling. Consequently, the Committee recommended that ketamine not be placed under international control at this time.” [5] According to the Commentary quote above, that means that “the Commission would not be authorized to place it under control.”

Moreover, the Commentary also mentions specific restrictions on the CND to decide about adding substances to Schedule I:

commentary-1971-par24

Again, the WHO Expert Committee is very clear on that issue:

“Ketamine is included in the WHO Model List of essential medicines and the WHO Model List of essential medicines for children as well as in many national lists of essential medicines. Ketamine has analgesic, hypnotic and short-term memory loss (amnesic) effects and is useful for induction of anaesthesia, procedural sedation and analgesia. Compelling evidence was presented about the prominent place of ketamine as an anaesthetic in developing countries and crisis situations. The ease of parenteral administration gives ketamine a major advantage when anaesthetic gases are impossible to use owing to limited equipment and a lack of appropriately trained specialists.”[6]

According to the Commentary quote above, this means that the CND cannot decide to place ketamine in Schedule I. This renders the Chinese proposal to include ketamine in Schedule I invalid under the terms of the treaty, thereby ruling out the option of calling for a vote on the proposal. Also the note prepared by the Secretariat on “Changes in the scope of control of substances”, is confusing and misleading. After describing the Chinese proposal, under the heading “Action to be taken by the Commission on Narcotic Drugs” the note explains the voting procedure specifying that a decision requires a two-thirds majority, concluding:

“The Commission should therefore decide whether it wishes to place ketamine under Schedule I of the 1971 Convention or, if not, what other action, if any, might be required.”[7]

The Secretariat does not point out the obvious contradiction with the WHO recommendation (which is only included in the note as an annex) and the procedural limitations the WHO conclusion places on the nature of the decision the CND can make. Instead, the issue is presented under the title “Consideration of a notification from China concerning the proposed recommendation for international control of ketamine under the Convention on Psychotropic Substances of 1971” and the note implies that the normal action to take would be to call for a vote. The WHO recommendation not to place ketamine under international control is only included as an annex.

Conclusion

Both the UNODC website text and the note by the secretariat give the misleading impression that the CND has full discretion to decide against the WHO recommendation and that the procedurally normal course of action would be for CND Member States to vote on the Chinese proposal. Under the terms of the 1971 Convention, as clearly explained in the Commentary, neither is correct. While the CND does have more discretionary powers in scheduling decisions under the 1971 Convention compared to the 1961 Single Convention, there are clearly established restrictions how far a CND decision can deviate from the WHO recommendations. Those restrictions fully apply in the case of ketamine and exclude the option for the CND to place ketamine under international control. The WHO review outcomes have rendered the Chinese proposal for scheduling invalid under the terms of the 1971 Convention.

The importance of following the proper procedure of scheduling in the international drug control system goes much further than the urgency right now to prevent the public health disaster that would be triggered by scheduling ketamine. Allowing this procedure to proceed unquestioned would set a dangerous precedent for scheduling other substances such astramadol and khat in the future in a similar way bypassing WHO advice. It would once again marginalize the role of the WHO in the UN drug control system and undermine the specific treaty mandate given to the WHO Expert Committee to provide an evidence base to scheduling decisions. It would be yet another example that the original treaty balance between assuring adequate access of controlled substances for medicinal purposes while preventing diversion and abuse, has been lost. It is also a good litmus test for the welcome but often vague discourse of shifting towards a health and human rights-based drug control approach. Keeping ketamine out of the treaty schedules is a good example of what taking that discourse serious means in practice.


[1] Scheduling procedures, UNODC web page (visited 8 February 2015), first paragraph 11 (there are two).

[2] Article 2(4)-2(6), 1971 Convention. See also the Commentary on the Convention on Psychotropic Substances , pp. 45-72.

[3] Paragraph 19, p. 70.

[4] Paragraph 20, p. 71.

[5] WHO Expert Committee on Drug Dependence: thirty-sixth report, WHO technical report series no. 991, 2015, p. 45.

[6] Ibidem.

[7] E/CN.7/2015/7, Changes in the scope of control of substances, Note by the Secretariat, p. 10.

Worrying proposals to discuss the international scheduling of Ketamine at the CND in March 2015

As noted in the 2014 TNI – IDPC report Scheduling in the international drug control system, although often viewed as an obscure technical issue, the problem of scheduling lies at the core of the functioning of the international drug control system. Scheduling – the classification of a substance within a graded system of controls and restrictions, or ‘schedules’ – must take place in order for a substance to be included in the international control framework, and determines the type and intensity of controls to be applied. For this reason, the topic is of central importance.  Within this context, recent years have seen ketamine become an increasing point of contention.  Concerned by ‘recreational use’, some states, China key among them, have been pushing for international control of the drug.  This goes against repeated recommendations from the WHO, the body responsible for providing expert guidance on scheduling decisions within the UN Commission on Narcotic Drugs (CND).  As the WHO points out, while some non-medical use certainly takes place within some parts of the world, international scheduling would likely have damaging consequences on medical access to the drug (a WHO listed essential medicine) in developing countries.  Here it is the only available anaesthetic for essential surgery in most rural areas.

This Fact Sheet on the Proposal to Discuss International Scheduling of Ketamine at the 58th CND – endorsed by a wide range of civil society organisations, including the GDPO – provides background on the issue and explains why international scheduling would go against all the scientific evidence on the issue, be procedurally unsound and generate considerable negative public health impacts in parts of the world where there is already an acute crisis in essential surgery.

Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines And Damon Barrett

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

This post was originally published here

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

By permitting legal markets in recreational cannabis, the United States is in breach of both the 1961 Single Convention on Narcotic Drugs and the 1988 Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This is an awkward position for the US, which for over 100 years has been both the driving force behind the international drug control regime, as well the regime’s de facto policeman. Admitting the breach threatens both a system the US wishes to protect, as well as its own influential role within it. Rectifying the breach domestically requires trampling on State-level democratic ballot initiatives. To its credit the Obama Administration has said via a memorandum from Deputy Attorney General James Cole it will respect and not interfere with the outcomes of those referenda.

The four pillars are a response to this legal and diplomatic conundrum. To justify its contention of treaty ‘flexibility’ – allowing, for example, its legal cannabis market – the US engages in some interesting, if problematic, legal gymnastics. As explained in an earlier speech of Brownfield’s in March:

[I]f 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.

Using the language of treaties as living documents – more commonly known as dynamic or evolutive interpretation – Brownfield attempts to paint cannabis legalisation in the US as something other than the breach it obviously is, in the process raising a number of international legal concerns.

Dynamic interpretation is well established in international human rights law, particularly the jurisprudence of the European Court of Human Rights. But, as described by the International Law Commission in 2006, it is an approach ‘much more deeply embedded in human rights law than in general international law’, suggesting that its application in the context of international drug control law must be considered cautiously. This is not to suggest that dynamic interpretation is not evident in other regimes, and it indeed has been used by the International Court of Justice, the European Court of Justice and the Appellate Body of the World Trade Organization in various cases.

The drug treaties are suppression conventions. They form part of the body of transnational criminal law, not international human rights law. However, we accept that, for a variety of reasons it is legitimate to apply a dynamic interpretive approach to elements of international drug control law, particularly where drug control engages human rights. However, there are clear problems with the US’s use of this approach.

The first is the limits of interpretation itself. The classic approach to dynamic interpretation, as established by the European Court in Tyrer v UK, is a process of broadening or expanding the understanding of an obligation based upon changes in law, evolving social norms or widespread change in State practice. In other words, understanding treaty language in a modern context. There are various examples of this in practice from differing legal regimes.

However, Brownfield suggests that the ‘living’ nature of the drug treaties means that an obligation can legitimately evolve to the point of meaning the exact opposite of what it states, and that somehow the non-medical, non-scientific use of cannabis has evolved from being illegal in international law to being legal. This is an absurdity. The treaties already include a mechanism for the status of individual drugs to change or evolve, and for individual substances can be included in, or removed from, international control with approval of the UN Commission on Narcotic Drugs, a process known as ‘rescheduling’. The Brownfield approach circumvents this, for the obvious reason that such a resolution would never make it through the Commission, and instead posits the ‘living instrument’ idea as the alternative.

However, for this outcome to be legally valid without cannabis being rescheduled, dynamic interpretation would need to alter the understanding of what the term ‘medical and scientific use’ means within the conventions, the only circumstance within the current international regime under which cannabis, and all controlled substances, may be legally manufactured, accessed and used. But Brownfield does not suggest this, for if he did then this evolved understanding of medical and scientific use could reasonably be applied to all drugs under international control, making legal recreational access to all controlled drugs part of the new ‘living’ drug regime. This is clearly a bridge too far for the US.

The second problem is one of interpretive forum. Dynamic interpretation is a judicial approach, utilised by judges or adjudication bodies to balance competing or conflicting interests in arriving at a decision. It is an approach employed by a neutral arbiter to dispute resolution, not a doctrine for States to use to unilaterally change the nature and scope of their own treaty obligations. Indeed, if we are to pursue an evolutive approach, then we also need to look at broader State practice. You can easily count on the fingers one hand the number of countries with a legalised recreational cannabis market, so this approach has clearly not evolved to an extent where legal regulation of the substances within the treaties would be permissible. Even then it is stretching any reasonable interpretation to reverse what the law in fact says. But in any case Brownfield does not suggest that we look to evolving State practice. The four pillars suggest, quite clearly, the acceptance of divergent unilateral interpretations. Whatever one thinks of the drugs treaties, such an approach creates an international minefield. Imagine an international legal order in which individual States are allowed to decide for themselves which treaty obligations apply to them, and in what way.

Here, however, we come to the third major problem, which is that the flexibility the US seeks for itself may not extend to others at all. We have both argued separately that this new US position has little to do with treaty compliance, and is really about maintaining its own central role as global arbiter of drug control, a position which it uses to great influence internationally. Surprisingly, US drug czar Michael Botticelli recently admitted as much in his Senate confirmation hearings, stating that ‘[t]he Four Pillar framework is an effort to stake out a middle ground between those who believe that prosecution and jail is the only approach and those favoring radical changes to the conventions’. In effect, the US denial of its own treaty breach allows it to sit in judgement over the drug reform actions of other States, comfortable in its self appointed role of neutral ‘middle man’ or ‘referee’ of acceptable treaty flexibility, and therefore protecting its own national interests against any ‘radical changes to the conventions’, apart from its own.

To be clear, our concern is not about compliance with bad laws, which these treaties surely are. Our concern is with the potential implications of the State Department’s argumentation. The failed, punitive prohibitionist approach of the international drug control regime must end. It is a regime that causes untold human and societal damage across the globe, and change to this regime is slow yet becoming more inevitable. However, it would be unfortunate to see established rules of international law become collateral damage in the fallout of the end of the war on drugs.

Fatal attraction: Brownfield’s flexibility doctrine and global drug policy reform

This post was first published here at the Huffington Post

A joint contribution by:

Professor Dave Bewley-Taylor
Director, Global Drug Policy Observatory, Swansea University

Martin Jelsma
Coordinator, Transnational Institute Drugs and Democracy Programme

Damon Barrett
Director, International Centre on Human Rights and Drug Policy

___________________________________

State-level cannabis reforms, which gathered steam this month, have exposed the inability of the United States to abide by the terms of the legal bedrock of the global drug control system; the 1961 Single Convention on Narcotic Drugs. This is something that should force a much-needed conversation about reform to long-standing international agreements. But while ostensibly ‘welcoming’ the international drug policy reform debate, it is a conversation the US federal government actually wishes to avoid. The result is a new official position on the UN drugs treaties that, despite its seductively progressive tone, serves only to sustain the status quo and may cause damage beyond drug policy.

The 1961 Single Convention has been massively influential. Almost every state in the world is bound to prohibit cultivation, trade and possession of cannabis and a range of other substances such as coca and opium for anything but medical and scientific purposes. Wherever you are, your drugs laws are probably modeled on this agreement.

The United States has been a staunch defender of this legal regime. The treaties are central to its foreign policy on drugs, including in Latin America. But at home the government has been clear that it will not trample on the will of voters with regard to cannabis, even though this places it in breach of the 1961 Convention. So the US faces a predicament; a treaty breach it does not wish to admit within a system it wishes to protect.

The response is the new ‘four pillars’ approach, set out by Ambassador William Brownfield (Assistant Secretary of State for International Narcotics and Law Enforcement):

Respect the integrity of the existing UN Drug Control Conventions…

Accept flexible interpretation of those conventions…

Tolerate different national drug policies…accept the fact that some countries will have very strict drug approaches; other countries will legalize entire categories of drugs…

Combat and resist criminal organizations

Brownfield’s statement received some positive responses, welcoming it as a breakthrough in drug policy reform. However, its attractiveness is superficial and there are important reasons to be cautious.

For US foreign policy on drugs the four pillars make sense in the short term. Through these pillars, the US can appear to embrace reform discussions while changing nothing of substance. US approaches to Latin America that have dominated US attentions can carry on as before. The US gets to continue to have presence in places it has no business being other than to fight the drug trade – the fourth pillar of this ‘new’ approach.

In addition, in defending the ‘integrity of the treaties’, the US can go on using those treaties as a disciplinary tool against producer and transit nations in the region. Under the Foreign Relations Authorization Act, when a country does not fulfill the requirements of the international drugs conventions, the President determines that the country has ‘failed demonstrably’ to meet its obligations, which can lead to sanctions.

Bolivia received such a determination again only a few weeks ago. While explaining the rationale for a more ‘flexible interpretation’ Brownfield said, ‘Things have changed since 1961‘. However, the Presidential Determination on Bolivia stressed that the ‘frameworks established by the U.N. conventions are as applicable to the contemporary world as when they were negotiated and signed by the vast majority of U.N. member states‘.

The determination further expressed the US government’s concern that Bolivia tries ‘to limit, redefine, and circumvent the scope and control‘ for coca under the 1961 Convention, even though that is precisely what the US is doing in the case of cannabis.

The US also objected to Bolivia’s efforts to have traditional uses of coca removed from international control because it challenged the ‘integrity of the treaties’ – the very first pillar above. So which countries’ reforms or interpretations will be deemed tolerable, and which will threaten the integrity of the treaties? Crucially, who decides?

It is clear that a legally regulated market in cannabis is not permissible under the 1961 Single Convention. To deal with this the US, in the second pillar above, has signalled its acceptance of unilateral interpretation of multilateral agreements beyond what those agreements allow for. That is a very serious call beyond cannabis and beyond drug policies. The attempt under the Bush administration to argue that waterboardingwas not a breach of the UN Convention Against Torture and that detainees in the war on terror were not covered by the Geneva Conventions should caution against allowing this kind of unilateral approach.

In reality, beyond the progressive sounding words, the path the Brownfield doctrine set out leads to further US exceptionalism and the ongoing use of the treaties as it sees fit.

But that exceptionalism cuts both ways, and the US has also vital interests, including national security, in holding states to international and bilateral treaty obligations. A recent example demonstrates the risks of failing to take this into account. In July, the US issued a determination that Russia was in violation of obligations of the Inter-Range Nuclear Forces Treaty (INF), a bilateral agreement banning the testing of ballistic missiles of a certain range. But if a ‘flexible’, a-la-carte approach is to be permissible under the drug control regime when it suits the US, why should that not apply here?

Why not other important international agreements that matter to so many such asenvironmental protocols setting specific targets, or human rights law and its vital protections? Following the second pillar to the extent the US suggests is a very slippery slope.

The shift to regulated cannabis markets in the US should open the space for a much-needed discussion of treaty reform. The problem at hand is not the treaty breach by the US; the problem is the drug control treaty system itself. Preparations have started for a UN summit on drugs in 2016, the first in almost twenty years, and where a conversation about treaty reform should begin. The Brownfield doctrine is part of US efforts to keep it off the agenda.

For governments, in an effort to avoid political controversy, the four pillars may seem attractive. For those who support drug policy reform they may seem progressive. But this is no win for drug policy reform or progress towards policies grounded in evidence and human rights. To allow the US, for its own ends, to lead us into a politically calculated theatre of adherence simply serves to sustain a regime that is no longer fit for purpose. It is also harmful for the integrity of international law more broadly, from human rights, to security to the environment. The price of allowing the US to avoid its breach of the 1961 Convention, in other words, is too high. And the war on drugs has already cost too much.