Category Archives: US drug policy

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.

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.

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:

Respect the integrity of the existing UN drug control conventions.
Accept flexible interpretation of those conventions.
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.
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.

Pushing Treaty Limits?

By Wells Bennett

This post was originally published here.

Suppose the United States government helps to negotiate, and subsequently champions, certain framework treaties–ones justly viewed as imposing significant constraints on all signatories. Down the road, the United States occasionally even calls out counterparties for their looser policy innovations, when the latter push the outer boundaries of what’s permitted under the treaties; a treaty-created monitoring body does likewise in its annual reporting. This pattern essentially holds year in and year out and from one presidential administration to the next.

But then the facts on the ground change radically. History shifts course. Unforeseen challenges arise. Some quite unprecedented changes insist upon–in the view of the executive branch–a more flexible approach, one in visible tension with the treaties’ express (and now seemingly outdated) language. The United States claims that instruments once thought to be airtight are in fact rather capacious, and that the treaties build in enough discretion to permit states parties to decide, unilaterally, how best to further the accords’ larger aims. This in turn permits the United States to oppose any calls to revisit the treaties, and to avoid the messy, uncertain business of international negotiation and (shudder) eventually winning Senate approval.

Here’s a Lawfare thought experiment: what’s the body of law in play here? And what’s the policy shift now confronting that law?

As to the law: I refer of course to 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 Drugs and Psychotropic Substances (the treaty compliance body, established by the 1961 Convention, is the International Narcotics Control Board, or “INCB”). Policy-wise, I have in mind the legalization and regulation of recreational marijuana by Colorado and Washington State—and that development’s conditional tolerance by the United States, in its enforcement of the Controlled Substances Act.

These are the subjects of a recent Brookings paper I co-authored with John Walsh of the Washington Office on Latin America. The piece’s title is “Marijuana Legalization is an Opportunity to Modernize International Drug Treaties.” Here’s the gist:

If indeed Colorado and Washington do presage fundamental changes in U.S. marijuana law and policy, then the United States’ stance regarding its drug-control treaty obligations will need to measure up to the requirements of international law. The U.S. assertion of its treaty compliance on the basis of “flexible interpretation” can be questioned. The International Narcotics Control Board (“INCB” or the “Board”)—a body charged with monitoring drug-treaty compliance and assisting governments in upholding their obligations—has already made clear its view that the United States is now in contravention. If more U.S. states opt to legalize marijuana, the gap between the facts on the ground in the United States and the treaties’ proscriptions will become ever wider. The greater the gap, the greater the risk of sharper condemnation from the INCB; criticism or remedial action by drug-treaty partners and other nations; and rebukes (or, worse, shrugs) from countries that the United States seeks to call out for violating the drug treaties or other international agreements. It is a path the United States—with its strong interest in international institutions and the rule of law—should tread with great caution.

The United States therefore should begin, now, to explore options that would better align its evolving domestic approach to marijuana with its international commitments. To be clear, this essay advances no claim about the desirability of legalizing and regulating marijuana. Indeed, the logic of our argument does not hinge upon one’s views as to the wisdom of legalizing marijuana, but instead upon recognizing that legalization has become a plausible scenario for the United States. Nor do we call for immediate, drastic treaty reforms or endorse particular approaches over others. Rather, our ambition in these pages is more modest: to encourage policy makers to rule treaty reform in as an option, rather than presumptively ruling it out.

Time for UN to open up dialogue on drug policy reform and end counter-productive blame-game

As the UN International Narcotics Control Board (INCB) launched its annual report on Tuesday, 4 March, amidst an unprecedented crisis in the international drug control regime, leading drug policy reform experts have called on the INCB and related UN institutions to urgently open up a constructive dialogue on international drug policy reform.

Approval of legally regulated cannabis markets in the states of Colorado and Washington and in Uruguay have caused breaches in the UN drug control regime and shakes the foundations of the prohibitionist “Vienna consensus” that has dominated international drug policy for several decades.

Yet rather than seek to learn from or understand the growing political support for alternative drug policies, the UN drug apparatus – and particularly the INCB – has responded mainly with shortsighted hostility and narrow-minded rejectionism. It has refused to countenance any reforms, treating the set of conventions like a perfect immutable constitution rather than a negotiated settlement that needs reforming and modernising as science advances or political and social conditions change. This came to a head recently, when Raymond Yans, President of the INCB denounced Uruguay’s “pirate attitude” for its cannabis regulation laws, causing a diplomatic uproar and raising questions about his position.

A forthcoming report by the Transnational Institute and the Global Drug Policy Observatory to be released in the advance of high-level UN drug policy meetings in Vienna in mid March 2014, tells the hidden story of how the inclusion of cannabis in the 1961 Single Convention on Narcotic Drugs as a psychoactive drug with “particularly dangerous properties” was the result of dubious political compromises, questionable decision-making procedures and with little scientific backing.

Growing numbers of countries such as the Netherlands and Spain, but also states in the U.S. and India have shown discomfort with the UN drug control treaty regime through soft defections, stretching the inbuilt legal flexibility to sometimes questionable limits. The regulated cannabis markets in Uruguay, Washington and Colorado however are clear breaches with the treaty, and mean that a discussion on the need for fundamental reform of the UN drug control system can no longer be avoided.

Martin Jelsma of the Transnational Institute said,

“We are at a tipping point now as increasing numbers of nations realise that cannabis prohibition has failed to reduce its use, filled prisons with young people, increased violence and fuelled the rise of organised crime. As nations like Uruguay pioneer new approaches, we need the UN to open up an honest dialogue on the strengths and weaknesses of the treaty system rather than close their eyes and indulge in blame games. The moral high-ground that Yans claims in name of the Board to condemn such “misguided” policies, are completely out of place and unacceptable.”

Dave Bewley-Taylor of the Global Drug Policy Observatory said,

“For many years, countries have stretched the UN drug control conventions to their legal limits, particularly around the use of cannabis. Now that the cracks have reached the point of treaty breach, we need a serious discussion about how to reform international drug conventions to better protect people’s health, safety and human rights. Reform won’t be easy, but the question facing the international community today is no longer whether there is a need to reassess and modernise the UN drug control system, but rather when and how.”

In July 2013 the Research and Documentation Centre (WODC) of the Netherlands Ministry of Security and Justice asked RAND Europe to provide a multinational overview of cannabis production regimes. The result of this research was a report that summarises differing cannabis production regimes across the world. It also analyses official statements and/or legal decisions made about production regimes for non-medical and non-scientific purposes (i.e. recreational use for adults).

Because GDPO has been following developments in cannabis policy across the world, particularly in the US, we decided it would be worthwhile to summarise some of the key points made in this important piece of research. The report focuses on four key case studies: Spain, Belgium, the USA and Uruguay.

Spain – “Following several Supreme Court rulings, the possession and consumption of cannabis is no longer considered a criminal offence, and the jurisprudence in the field has tended to interpret the existing legislation in a way that permits ‘shared consumption’ and cultivation for personal use when grown in a private place.”

These legal developments have allowed hundreds of Cannabis Social Clubs (CSC) to be established although they still operate in a legal grey area. The report identifies a number of conditions that need to be met in order for the Spanish CSC to be considered to “act in accordance with recurring criteria defined in case law.”

The CSC must aim to reduce the harms associated with the consumption of cannabis, decreasing for instance the risk of adulteration of the substance.
The premises must be closed to the public, and entrance must be only allowed to members (who should be regular consumers of cannabis).
The members must only obtain and consume the average quantity of cannabis. The CSC must not allow traffic of cannabis among its members.
The cannabis obtained from the CSC by its members is for immediate use on the CSC premises, to prevent others from having access to the substance.
There should be no payment/fee for access to the substance, or a limited one.” (pg. 10)

Belgium – “The Belgian CSC ‘Trekt Uw Plant’ (‘Pull Your Plant’) is a non-profit organization initiated in 2006, following the 2005 joint guideline (as issued by the Minister of Justice and the College of Public Prosecutors) which assigned the lowest possible priority to prosecution for possession of up to three grams of cannabis or one cultivated cannabis plant.”

Trekt Uw Plant allows its members to produce cannabis collectively in closed private spaces in a number of cities (Antwerp, Luik, Brussels and Hasselt) with a ‘one plant per person’ policy. Since establishing Trekt Uw Plant a number of members have been charged with a variety of offences from possession of cannabis to encouraging drug use, however none of charges have stuck. The report sets out how Trekt Uw Plant operates:

“Each member pays a contribution for the costs incurred for raising the plants and every two or three months a so-called ‘exchange fair’ takes place in a private space, where members receive the harvest of their own cannabis plant (Trekt Uw Plant, 2013). In August 2013 Trekt Uw Plant consisted of 304 members, with departments in several cities and a medicinal division (Trekt Uw Plant, 2013). Eligibility for membership in Trekt Uw Plant is restricted to adults who live in Belgium, are cannabis users, are informed about the Belgian Drug Law regarding cannabis, support the organisation’s aims, and endorse its statutes and decisions (Trekt Uw Plant, 2006; Plant, n.d.), and membership is open to both non-medical and medical cannabis users (Verbond voor Opheffing van het Cannabisverbod, 2010). The organisation is based on a not-for-profit principle and is financially supported through donations, loans, membership contributions, legacies and other awards (Trekt Uw Plant, 2006).”(pg. 18)

United States – The RAND report analyses the developments in Washington and Colorado where legal regulation of cannabis was instituted by voter initiatives in November 2012. The report notes that, “Both states now allow adults aged 21 and older to possess up to one ounce (28.35 grams) of cannabis and larger weights of cannabis-infused beverages and edibles, and Colorado allows home growing (up to 6 plants), but the significant change is the licensing of large-scale commercial cannabis businesses. The initiatives tasked state agencies with developing regimes to license and regulate for-profit cannabis firms.”

In Colorado, the commercial market is regulated by the Marijuana Enforcement Division, operating under the Department of Revenue, and based on the Medical Marijuana Enforcement Division, which already regulates the medical cannabis market. Colorado’s regulatory system of production and supply came in to force on 1^st January 2014 and it’s estimated that recreational cannabis sales exceeded $5million in the first week alone. An NBC News survey published on 3^rd February indicates that taxes raised from cannabis sales have netted the state $1.24 million in tax revenue in the first month. It is possible that the sales will not continue at these levels once the novelty has worn off, however Mason Tvert, director of communications for Marijuana Policy Project argues that the so-called “Colorado experiment” will continue to show impressive sales, “obviously this is just the first month of sales and only a fraction of the businesses that are expected to be open are currently operating.”

In Washington where the Liquor Control Board (LCB) is in charge of regulating the industry, no date has formally been stated for the opening of stores but its thought they might be ready for sales by June of 2014. The LCB started accepting applications for licenses on November 18^th 2013.

Whilst cannabis is still illegal under federal law, in August 2013 the US Department of Justice issued a memo that set out eight enforcement priorities in the light of the votes in Washington and Colorado:

Preventing the distribution of marijuana to minors;
Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
Preventing state-authorized marijuana activity from being used as a cover or pretext for
the trafficking of other illegal drugs or other illegal activity;
Preventing violence and the use of firearms in the cultivation and distribution of marijuana
Preventing drugged driving and the exacerbation of other adverse public health consequences
associated with marijuana use;
Preventing the growing of marijuana on public lands and the attendant public safety and
environmental dangers posed by marijuana production on public lands; and
Preventing marijuana possession or use on federal property.

Uruguay – On 31^st July 2013 Uruguay’s House of Representatives voted in favour of a bill to regulate the production, sale and use of cannabis. Details of the bill can be found here (in Spanish). This bill was then passed to the Senate who approved the bill by 16 to 13 votes on 10^th December. President Mujica signed the bill into law at the end of December with the first sales likely to be in April 2014.

The bill will, “create a new public agency, the Instituto de Regulacion y Control del Cannabis [IRCCA], to issue permits for production by for-profit companies, and maintain registries for users and those who want to (1) grow at home (up to six plants), (2) participate in collectives (between 15 and 45 members who maintain up to 99 plants at any given point) and (3) purchase at pharmacies (up to 40 grams per month produced by licensed companies).”

The RAND report identifies four crucial distinctions between these case studies:

“The first is whether the activity pertains only to distribution within cannabis clubs, as in Belgium and Spain, or whether larger scale and overtly for-profit activity is or would be permitted, as in Colorado, Washington and Uruguay. The second distinction pertains to whether government action is undertaken by the national government or by a subnational jurisdiction that has some degree of sovereignty under that country’s constitution. Uruguay’s situation is the only one that involves a national government passing a law with respect to activity that is clearly meant to be suppressed by the international treaties. The third issue is the role government employees do or do not play in production and distribution. In Belgium and Spain, there is no role. In Colorado and Washington the role is indirect, in the form of licensing and regulating but not participating in the trade. A final distinction pertains to how overt the officially banned but nonetheless tolerated activity can be. In Belgium, if the cannabis clubs are visible in the manner of Trekt Uw Plant, law enforcement may act, albeit perhaps half-heartedly. By contrast, cannabis production and distribution in Uruguay and the United States will involve fully open activities; cannabis business will be registered with, and will pay taxes to, the government.” (pg. xi-x)

As well as reviewing these four case studies, the report also refers to a number of the other countries (or jurisdictions) that have either allowed production of cannabis for medical and scientific purposes (Canada, Chile, Czech Republic, France, Israel, Germany, the United Kingdom and Switzerland) or have had discussions about changing the laws on cannabis production for recreational use (e.g. Chile, Denmark, Portugal and Switzerland and Copenhagen City Council).

This report is a fantastic resource for those anyone interested in the ways that cannabis policy is developing across the globe.

Citation for the report is as follows: Kilmer, Beau, Kristy Kruithof, Mafalda Pardal, Jonathan P. Caulkins and Jennifer Rubin. Multinational overview of cannabis production regimes. Santa Monica, CA: RAND Corporation, 2013. http://www.rand.org/pubs/research_reports/RR510

Modernizing Drug Law Enforcement takes the stage at United Nations headquarters in New York

rsz_1gpdo_final

Last week the topic of modernizing drug law enforcement took center stage at UN Headquarters when the Permanent Missions of Switzerland and the Czech Republic to the United Nations co-sponsored a program with International Drug Policy Consortium (IDPC), Harm Reduction Coalition, the International Security Research Department at Chatham House and the International Institute for Strategic Studies (IISS) entitled “Modernizing Drug Law Enforcement”. Featuring a distinguished international panel of scholars and law enforcement personnel including Professor David Bewley-Taylor (Director, Global Drug Policy Observatory (GDPO) at Swansea University, UK), Dr. Vanda Felbab-Brown (Brookings Institute, Washington D.C.) and Interim Chief of Police Jim Pugel (Seattle), the event aimed to promote debate around the current challenges to drug law enforcement, the concept of managing drug markets to minimize harm and the implications for future law enforcement strategies. The program was moderated by Heather Haase of IDPC and Harm Reduction Coalition and was well-attended by the UN community and civil society.

The first speaker was Professor David Bewley Taylor, who gave an overview of the Modernizing Drug Law Enforcement project and its key goals and objectives. Providing background for the project, he explained that for decades drug law enforcement has focused on reducing the size of the illicit drug markets by seeking to eradicate drug production, distribution and retail supply, but that these methods have failed in significantly decreasing supply and demand in consumer drug markets. As a result there is a need for an adjustment in drug law enforcement strategies: the new challenge is to manage drug markets policing strategy in a way that will minimize harm to communities.

Minimizing harm is particularly relevant in the case of drug-related violence. Discussing the relationship between violence and drug markets, Professor Bewley-Taylor explained how actions of law enforcement can affect – and even cause – drug drug-related violence. He noted the growing recognition that law enforcement powers can be used to constructively shape these markets and discussed several underlying concepts, especially focusing on the need to change indicators to “metrics that matter” – from metrics concerned with numbers of drug-related arrests, seizures, or hectares of crops eradicated to measures relating to public health and community well-being. He also discussed the need for selective targeting of law enforcement efforts on areas where the most impact on harms can be achieved, and concentrating law enforcement action on the basis of the level of harm caused by individuals in the market (rather than focusing on the easiest to catch).

Professor Bewley-Taylor then presented the core objectives of the program, supported by a series of publications as well as network development and seminars. He ended by expressing the hope that “we will move into the High Level Review in Vienna and the 2016 drugs UNGASS with a different view about policing drug law enforcement”.

Next, Dr. Vanda Felbab-Brown discussed her report “Focused deterrence, selective targeting, drug trafficking and organized crime: Concepts and practicalities” (as well as various concepts addressed in the other reports in the series), focusing on enforcement efforts in the context of global drug markets. Giving an overview of the ever changing global drug market, she noted that while each country is different and “one size does not fit all” in the context of law enforcement responses to each situation, there were some things that are generally true across the board. These included that we not only cannot arrest our way out of the drug problem but we also cannot “eradicate” our way out: eradication efforts have not had a lasting effect on markets due to the “balloon effect”. The drug markets pose very severe threats to states and societies – including violence – and therefore it is critical how these markets are managed. She discussed traditional law enforcement methods (exported from the US, particularly NY) such as zero tolerance and high-value targeting (going after heads of criminal organizations) that have been ineffective overall. She then suggested an alternative: while law enforcement has traditionally focused on suppression on the flow of drugs, it makes more sense to focus on suppressing the violence instead. Drug markets lend themselves to this prioritization because drugs are an infinitely renewable resource; thus it would be more effective to focus on the harms associated with the flows, rather than on the flows per se. Another method is to identify the greatest threat generated by a particular drug market and apply selective targeting and focused deterrence methods to signal to criminals that certain behaviors are less tolerated than others (e.g., trafficking will be punished, but violence will be punished far more). Also, middle-level targeting is more effective than high-value targeting, as it is really the middle layer that allows an organization to operate, while in many cases high-value targeting disrupts an organization leading to more violence but no change in conditions.

Finally, she suggested that the goal of law enforcement in connection with drug markets should be to shape behavior of criminals to pose the least threat to societies. She discussed certain aspects connected with this goal, including reducing, to the lowest level possible, the violence of criminals, their capacity to corrupt societies, and their interaction with society. She pointed out that these goals might be achieved not just through deploying law enforcement approaches but with other policies including socioeconomic approaches to dealing with criminality.

The last speaker was Interim Chief Jim Pugel, acting chief of the Seattle Police Department. Chief Pugel described a program that puts many these concepts into practice: the Law Enforcement Diversion Program, or “LEAD”, operating in Seattle. The LEAD program is a comprehensive initiative championed by government and non-government, multi-agency and community partnership to divert non-violent, low level drug dealers away from jail and toward a productive life while making residents feel safer and saving money.

First he discussed some of the challenges law enforcement faced in Seattle that gave rise to the program, including business and resident complaints of street level drug dealing in the downtown area, pressure to arrest low level drug dealers, many of whom were ‘subsistence’ sellers, and concerns of disproportionate impact of these arrests on racial minorities – as the result of which the police department and prosecutors were sued. In the end, they realized that the system was very expensive for everyone involved, and did not produce results. To come up with a better solution for the community, numerous stakeholders, including ACLU, public defenders, police, prosecutors, elected officials, local businesses and community, came together, and, over an 18-month period, met to define the issues and agree on moving forward. The result was the LEAD program.

Chief Pugel then discussed the program including eligibility for LEAD (involving factors such as amount of drugs sold or possessed, whether the person is amenable to diversion, and whether the person exploits others or has committed a violent crime) and how it works: at the point of arrest, the officer offers the choice of going to jail or going to see a case manager. The case manager from a service provider performs an initial assessment at the police station, and within a week a 3-hour assessment is done. The program tries to meet the person’s needs on a holistic basis whether that entails treatment, housing or other services. Any treatment is harm reduction based, and a person can be in the program indefinitely.

A brief audience Q&A session followed the panel speaker presentations in which the discussion circled back to examples of “metrics that matter” – metrics based on community health, such as HIV/AIDS rates, drug-related violence (particularly homicides), and the level of penetration of criminal groups into political processes were cited as examples. The point was made that the difficulty of measuring “smarter” metrics should not deter us from using them – and that there were many indices already available such as the Human Developments Index.

The following day, Professor Bewley-Taylor and Dr. Felbab-Brown, along with Virginia Comolli, Research Associate for Transnational Threats at IISS, presented a similar program to an audience of US officials, security experts, members of the drug policy reform community and embassy personnel at IISS-US in Washington, DC. During his stay in New York, Chief Pugel also made a presentation on the LEAD program to a group of state prosecutors, district attorneys, public health professionals and law enforcement personnel from all over New York State in a meeting held by Drug Policy Alliance and Open Society Foundations, at OSF’s offices in New York City.

The full audio of Modernizing Drug Law Enforcement at UN Headquarters is available here and a video of the IISS-US event can be viewed here.

By Heather Haase, IDPC New York consultant

This post was originally published on the IDPC website –

The Beginning of the End for the Pot Prohibition

The beginning of the end for the ‘war on weed’ in the US?

A new survey conducted by Rasmussen Reports in August 2013 shows that 82% of Americans think the US is losing the war on drugs. Only 4% of respondents believe the US is winning this war. This survey comes at a sensitive time for US commitment to the ‘war on drugs’ or the ‘war on weed’ at least.

In November 2012 two US states – Washington and Colorado – voted to tax and regulate recreational adult use of cannabis. Earlier this year Pew Research found a majority of the public – 52% – think the drug should be legal. The same poll also found that almost three quarters of Americans – 72% – think that efforts to enforce marijuana laws cost more than they are worth.

Now it seems that even the federal government is having doubts about the benefits of criminalising pot smokers. In August US Attorney General Eric Holder announced that low level, nonviolent drug offenders with no history of ties to gangs or organised crime shouldn’t be charged with offences that carry mandatory minimum sentences.

Also in August CNN’s Chief Medical Correspondent Sanjay Gupta (reportedly Obama’s choice for US Surgeon General, though Gupta turned the post down) made a documentary about the medical benefits of marijuana. Gupta argued that the DEA’s insistence that cannabis has “no accepted medicinal use and a high potential for abuse” has little scientific basis and that the American public has been “systematically misled” about cannabis and apologized for his role in this. The White House has refused to comment on Gupta’s documentary and in fact since Obama took office raids on medical marijuana dispensaries have increased.

On 29th of August 2013 the Department of Justice released a memorandum to US attorneys and law enforcement officials noting that whilst they should continue to enforce the federal government’s prohibition on marijuana the main focus in those states that allow some form of cannabis use – either for recreational purposes such as Washington and Colorado – or for medical use should be on eight key areas:

• Preventing the distribution of marijuana to minors;
• Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
• Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
• Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Preventing marijuana possession or use on federal property

This guidance is an attempt to resolve the tensions between state laws and federal law with regards to cannabis. The commitment to maintaining the prohibition on pot is essential – not least because they are signed up to international treaties such as the 1961 UN Single Convention on Narcotic Drugs – however Obama has been open about his own weed smoking as a college student and must find it hard to ignore the shifting public opinion especially when more people voted to tax and regulate pot in Colorado than voted for him.

So the big question many drug law reformers in the US are asking is, ‘Is this the beginning of the end for pot prohibition?’