Category Archives: international drug policy

Why is coca production on the rise in Colombia?

After countless reforms and billions of investment eradicating coca cultivation is still a great challenge for Colombia.

Ross Eventon, GDPO

Early March, 2017: The United States government and the United Nations announce large increases in the amount of coca being cultivated in Colombia.

The head of the US Bureau of International Narcotics and Law Enforcement Affairs flies to Colombia and meets the President. The increase is due to the end of aerial fumigation operations, he says, but he also assures the press that he would not be asking the government to restart that policy….
Continue reading full open access article here: http://www.aljazeera.com/indepth/opinion/2017/04/coca-production-rise-colombia-170419130227958.html

View from the Ground – Harm reduction, drug policy and the law in the Maghreb: focus on Morocco and Algeria

View from the Ground – Harm reduction, drug policy and the law in the Maghreb: focus on Morocco and Algeria

Khalid Tinasti, Geneva
Global Drug Policy Observatory, Swansea University
October 2016

As WordPress doesn’t allow referencing, full PDF with references available here: khalid_blog-maghreb-drug-policy_final

Introduction:

The Maghreb countries, part of the Arab Maghreb Union, are Algeria, Libya, Mauritania, Morocco and Tunisia and form the largest part of North Africa. These countries are currently in the centre of the boiling issues of the world including terrorism, human trafficking and drug trafficking. These countries are large consumers and producers of plant-based and synthetic l psychotropic substances, Morocco being the largest cannabis producer in the world in 2014. But when it comes to discussing the issue of drug use, the legal response to it, and its impact on society, the debate focuses on ideological issues of morality and the rejection of illicit drugs, as data on the prevalence of drug use and the patterns of the use in these countries are missing.

The Maghreb is also part of the MENA region (Middle East and North Africa), which is one of the two regions in the world in which new HIV infections are increasing (with Eastern Europe and Central Asia) and largely driven by drug injection. In 2014, the region has seen HIV infections related to drug injection represent 28% of all new infections, and this represents a minimum since it is based only on often incomplete data submitted by governments. The region is also home to an estimated 630,000 people who inject drugs. This blog will analyze the current situation in two major countries of the region, Algeria and Morocco, which have chosen different approaches to drugs, and compare the outcomes of their policy choices. The blog will finally highlight the current drug policy reform discussions in both countries.

The current official drug prevalence:

Morocco is the country with the most widely available data in the region, with an estimated injecting population of 3000 to 4000 according to the Ministry of Health. Drug injection is concentrated in the North and East of the country, in the transit regions that export cannabis to Algeria and Spain, and import amphetamines (mainly from Algeria) and heroin (mainly from Spain). The country is also the first Arab country, and the second in Africa, to have introduced methadone substitution therapy in six centers in 2011. Furthermore, it is among the two only countries that have a national harm reduction policy in the Arab world, the other being Lebanon. The prevalence of HIV in the general population is of 0.14% (0.1%-0.2%), and mainly concentrated among key affected populations, with people who inject drugs (PWID) representing 10.17% of this total. The country has introduced methadone therapy in prisons as a pilot project , but the author has been informed that the experiment will be extended to five penitentiary centers throughout the country in the coming months.

In Algeria, the situation of PWID or people who use drugs without injection is undocumented. There is no official data on the prevalence of drug use in the country, but it is known that cannabis is the most widely used substance in the country and its use has doubled in the course of two years, between 2012 and 2014. PWID living with HIV represents 1.1% of those tested in 2014, for a prevalence rate among the general population of less than 0.1%. In 2014, a study by the National Office on Drugs and Addiction (Office national de lutte contre la drogue et la toxicomanie) showed that the number of people who use drugs (PWUD) is 250.000, while simultaneously independent research by the FOREM (Fondation nationale pour la promotion de la santé et le développement de la recherché), a non-governmental organization, estimated PWUD to be one million people in the country. A 2006 study on the number of PWID in developing countries reveals that Algeria is the second highest burden country in all North Africa following Egypt, with a number of PWID reaching 40,961.

The two neighboring countries, the largest demographically in the region, hegemons politically and dynamic economically, are at odds largely due to their conflict on the Western Sahara, Morocco claiming its territorial integrity includes the said territory, while Algeria hosts and supports, diplomatically and financially, the separatists. The conflicting relationship between the two countries is also represented in the cooperation against drug trafficking, where they accuse each other of knowingly enriching their respective black markets of illicit drugs. Publicly and through official press conferences, Algeria accuses Morocco of the impact of the large amounts of cannabis being smuggled by the Rif traffickers, while Morocco reminds Algeria that it is one of the largest producers of psychotropic substances that flood the Moroccan black market.

The narcotic laws and drug use:

The laws in Algeria and Morocco punishing drug use and possession are harsh, as they are in the rest of the African and MENA regions. The Algerian law (Law No. 04-18 of 25 December 2004) imposes incarceration between two months to two years in addition to a fine from five to fifty thousand Dinars (fifty to five hundred US dollars) or one of the two sentences for personal use or possession. For a similar offence, a Moroccan convict will face imprisonment of between two months and one year in addition to a fine (Dahir No. 1-73-282 of 21 May 1974), or one of the two sentences. Meanwhile, the Moroccan law remains the least harsh policy in the region. In 2014, 31% of the cases treated by tribunals in the country were related to illicit drugs.

The Algerian narcotics law differs highly from its Moroccan counterpart since it gives precedence to prevention over punishment, as it states preventive and treatment measures before penal judgments. It makes treatment the basis of the legal response to drug use, and sanctions are not enforced if and until the treatment is refused. In addition, returning to treatment when necessary is not prevented even in cases where the treatment decision was previously refused (Article 9 of the law). Sanctions on drug consumption have been reduced for the following reasons: First, punishment for possession or consumption would be imprisonment of between two months and two years. This is a lighter sentence than lockup or hard labor and indicates that drug consumption or possession for personal consumption is considered a misdemeanor rather than a felony; second, the law authorizes the judge to choose between imprisonment and a fine and does not force him to combine the two and third, the judge’s authority to determine the sanction provides some autonomy as to whether imprisonment or a fine is chosen, as there are large differences between the minimum and the maximum limits.

These parameters of the law, that are presented as a prioritization of public health over punishment in drug policy, are still problematic as they allow for the institutionalization of mandatory treatment. According to Article 7 of the law, the examining magistrate or juvenile judge may order detoxification, accompanied by medical surveillance and rehabilitation for “any drug user whose condition requires these measures”. The court’s judicial authority, in this case the specialized judicial authority, may also rule exemption from sanctions (Article 8). According to Article 9, incarceration and fines shall only be applied to anyone who refrains from executing the decision to undergo detoxification. The law as it is today gives judges the power to decide on medical conditions and how they should be treated. Despite every effort, it is still difficult to find data on how many people are diverted from tribunals to treatment centers in both countries.

The findings of on-the-ground research:

To face this complex situation, in countries that produce large quantities of illicit drugs, consume heavily and carry the burden of epidemics related to drug injection, non-governmental organizations on the ground have started researching the situation and gathering evidence. The Association de Lutte contre le Sida (ALCS) in Morocco has launched on-the-ground research as early as 1996 in the Northern provinces of the country to map the injection drug use, and respond to the HIV situation. At the time, drug injection has been found to be limited. A 2003 national survey on mental health and addiction, with a sample of 6000 people over 15 years old, has shown that cannabis is the most widely used substance with a prevalence rate of 3.94%, the age of first use was decreasing, and the prevalence of heroin was of 0.02%. In 2006, with the changing nature of drug use and the spread of HIV through drug injection as transmission mode, the Ministry of Health launched situational studies on drug injection, in order to establish the first harm reduction national plan. The first action was to launch needle and syringe programmes, followed by methadone treatment. The harm reduction programme includes several advances, such as the inclusion of civil society in the delivery of services, the dispensing of harm reduction training, and the delivery of services during the night hours. For instance, the ALCS delivers through its mobile unit a needle exchange programme in three cities in the Rif. Nevertheless, the programme faces tremendous challenges, be it within the harsh legal environment or through the obstacles for the scaling up the services delivery.

In Algeria, and as stated earlier, data and monitoring of current drug policies is missing. The Association de Protection Contre le Sida (APCS) has reached out to the Moroccan ALCS to conduct a rapid diagnostic mission to map the drug situation in the capital city Algiers. For this research, 43 PWUD were interviewed, of which 5 were women, 62% were students or unemployed at the time of the qualitative interview, and represented 6 communes of the capital city. The findings concluded that outside of the squats in the Blida neighborhood, drug injection remains a personal activity, that it concerns all ages and all socio-professional categories of society. Regarding PWID, 70% injected Subutex (buprenorphine) and 30% heroin, and poly-consumption was the most shared behavior of the study participants (100%). 33% of those interviewed were incarcerated at some point in their lives, and up to 5 times for some, and for over 25% the imprisonment resulted of a simple possession offence. The study finally has shown that PWID do not access the services they need, since pharmacists refuse to sell them clean syringes, increase substantially their price, or do not have a stock in remote areas. Finally, only the national hospital of Blida offers rehabilitation and abstinence based programmes which are limited in number and do not respond to the needs of PWID.

This first study highlights the situation in Algiers, and is being currently used to advocate for drug policy and harm reduction reform with the Algerian authorities and civil society. In a consultation entitled “the role of civil society in harm reduction” held in Algiers on September 26-27, 2016 attended by the author, the representative of the Office national de lutte contre la drogue et la toxicomanie, the drug control organ under the chairmanship of the Prime Minister, announced that the country will open the first methadone induction service in Algiers in the coming months. No details were given. Moreover, NGOs collaboration between the two countries is in vivid contrast with the non-cooperation of the states on the drugs issue.

Conclusion:

Algeria and Morocco share the same languages (Berber and Arabic), similar colonial historical patterns, and the longest border for both countries. They also share the drug production, use and trafficking since they both produce large amounts of plant-based (Morocco) or manufactured (Algeria) illicit drugs; they share the same trafficking routes from the Sahara or from the Middle East towards Europe; and cannabis is the most used substance in both countries. Nevertheless, the countries have taken different public policies to respond to drugs. Morocco, a traditional and large producer of cannabis, faced with a heroin crisis in the 2000s developed the first harm reduction strategy in North Africa. Algeria, where heroin injection has not been seen as a health crisis until recently, has focused its efforts on the rehabilitation of PWUD.

khalid_blog-maghreb-drug-policy_finalAfter years of designing drug policies, mainly focused on eliminating drugs and curbing the HIV infections among PWID, drug policy reform is becoming a mainstream discussion in Morocco. The political parties PAM and Al Istiqlal have introduced parliamentary bills to legalize the medical and industrial use of cannabiskhalid_blog-maghreb-drug-policy_final. In Algeria, the debate still focuses on the issues related to trafficking and illicit production, and the announcement of a methadone service has been recurrent since 2015 without details on the location or the conditions required to enroll PWID in need of this service.

View From the Ground: Bocas del Toro; Drugs in Paradise

By Alastair Smith, Panama

Following exploratory fieldwork in the rural coca growing fields of Colombia, GDPO followed the cocaine supply chain to Panama. Most recently, time spent on the Northern Caribbean coast soon revealed the permeation of drug trafficking into the already complex socioeconomic context that many perceive as paradise.

Paradise of Bocas del Toro (MandingA 2013)

First impressions of Bocas del Toro – the name of both the 7,000+ person settlement on Isla Colon, just off the north eastern seaboard of Panama, but also the wider surrounding Province – largely confirm its international reputation as an accessible tropical ‘paradise’. With sympathetic afternoon light, the final leg of the 1-hour flight from Panama City reveals aqua marine water lapping at golden sands backed by lush green forests. Once established in the area, other widely talked about attractions of Bocas quickly emerge. There is a wealth of outdoor activities. Many international tourists, largely backpackers, and domestic visitors come to enjoy the Caribbean Sea: to scuba dive and snorkel, surf the notorious waves of Playa Bluff, or to take things a little easier with sunbathing and guided tours to spot the charismatic wildlife.

Party goers in one of Bocas’ bars open late into the morning (Taken by Author 2015)

Another attraction of Bocas del Toro for many, and particularly backpackers, is undoubtedly the opportunity to mix Salsa and Reggaeton music, with low cost national beers and regional rum cocktails, as they enjoy the party life offer on Isla Colon (primarily in BocasTown) and the surround islands. Many of the bars and clubs in Bocas town are right on the water: making it very possible to ‘live the dream’ of enjoying beers in a hammock, dancing off the alcohol, and when things get a little too hot back-flipping off the dock into the cooling sea.

In this hedonistic environment, it is seemingly easy to forget the volumes of boat traffic and not think about the dubious quality of the sea water while enjoying a midnight swim. Another undercurrent in the town is the availability cocaine and cannabis. Sellers freely mix in the nightlife with various degrees of subtly in communicating their offerings. During the day, it is unusual to walk the length of town without being offered ‘weed’ – sometimes as a follow up to the initial list proposal of taking a boat tours to the beach – although there is little menacing about time spent in Bocas, and disinterest is well-accepted by opportunistic sellers.

Part of the reason for the level of supply is the demand of international tourists and more permanent life style migrants willing to pay higher prices than local consumers. However, Bocas del Toro is also well supplied with drugs as one of the recognized points of refuge for traffickers making the journey up the EasternCoast from Colombia to North America

Originally founded as a settlement of concentrated population by foreign banana producers, the region remained disconnected from administration in Panama City due to a lack of a reliable road connection: and therefore, the centralized government administration has lacked a presence in many respects. The archipelago is also composed of some highly remote islands that fall well beyond almost all government services and authority: and as in many cases across the world, the lack of state institutions supports the trafficking of drugs.

View of coastal geography from the air (Author 2015)

Despite limited resources, local law enforcement officers in Bocas confirm that they have been involved in interdiction operations in partnership with central authorities and the US Coast Guard: furthermore, these operations have yielded high powerboats used by the traffickers that are then repurposed for local counter narcotics operations. Discussions with the local police support existing knowledge that traffickers use the inland water ways of the Panamanian coast to evade the authorities during the day, and then make their staged journeys under the cover of night (UNODC 2012). In some cases it is believed that small shipments of drugs are consolidated in Panama before being moved on (UNODC 2012). Local testimony also identified that during chases, traffickers will jettison quantities of drugs in attempts to bribe the police.

It is through a combination of these mechanisms that trafficked drugs enter the Bocas economy. The availability of drugs then provides relatively easy returns for those willing to become involved. This option is especially attractive so some due to the poor quality of education, high levels of poverty and general limitations on livelihood opportunities in the Bocas region. Despite Panama’s average national economic growth of 7.2% between 2001 and 2013, of the mainly indigenous population of the Bocas del Toro province, 25% are classified as poor and 11% as extremely poor (Omar and Moreno 2014). Many of these people live on subsistence agriculture and fishing on outer islands. There is therefore a potentially strong pull incentive to become involved in the distribution of drugs. In this case, as was found in Colombia, rural development will likely be as important an anti-trafficing policy as strengthening governance capacity for interdiction operations.

In conclusion, while the vast majority of visitors to Bocas del Toro find their expectations of fulfilled, the reality is that the international trafficking of drugs is playing into a complex socioeconomic situation, which many of the ‘poor’ permanent residents might well not accept as ‘paradise’. Again, genuine investment in enhancing the life opportunities of those currently motivated to support drugs distribution will likely contribute to a reduction in the global trade in narcotic drugs.

Sources

Omar, A. and V. Moreno ( 2014). Pobreza e Indigencia. Panama, Ministerio de Economia y Finanzas.

UNODC (2012). Cocaine from South America to the United States. Transnational Organized Crime in Central America and the Caribbean A Threat Assessment. Vienna, United Nation Office on Drugs and Crime.

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View from the Ground: Infrastructure and Coca in Guaviare, Colombia

By Alastair Smith, GDPO Research Associate.

In mid-May 2015, Ross, Dave and I left the relatively comfortable climate of Bogotá and headed to the humidity of South East Colombia and the Department of Guaviare to conduct fieldwork. Leaving the Department’s capital, San José del Guaviare, Pedro Arenas – the city’s previous mayor, current director of the Observatory of Declared Illicit Crops and Cultivators at the NGO INDEPAZ, and our guide for the weekend – explained that although Guaviare has been settled since time of Spanish conquistadors, the rural population greatly increased during and after the period of Colombian history known as ‘The Violence’. This was a ten year period (1948-58) of civil war in Colombia when the Colombian Conservative Party and the Colombian Liberal Party fought for dominance, and during which it is estimated that some 200,000 lives were lost. In an effort to flee the problems that came to San José, much of its population moved further into the countryside both temporarily and permanently. Pedro further explained that after the upheaval, the government offered land titles and investment to those moving to the rural area. However, as the government failed to honour these promises, an increasing population was left with little other than subsistence farming for their survival (Ortiz, 1984). As a capitalist economy grew around them, campesinos became aware of the opportunities to sell the traditional crop of coca for conversion into cocaine. For the first time, the communities were faced with the opportunity to stabilise their subsistence existence and offer a decent future to their families – although they lived nothing like the extravagant lifestyles synonymous with processors and traffickers working higher in the supply chain.

Moving through the countryside, the panoramic pasture with its sparse population of cattle – apparently underused for productivity, as powerful interests accumulate land primarily as an investment and a status symbol – began to merge into patches, and then significant areas of uncleared jungle. As we sat in the rear of our 4×4, cushioning ourselves against the contours of the dirt track road (only reasonably passable with such a vehicle or motorbike, and the expert manipulation of Freddy our driver), our travel companion, a local community leader, explained the basic truths of coca production. His language was human, straightforward and non-technical; yet he eloquently outlined a situation which formal national and international drugs policy in Latin America and Colombia, has always, and continues to largely disregard.

The community has been born into a context where the possibilities of development constantly fail to emerge due to a lack of even the most basic of investment. While there are major roads that connect San José to Bogotá and other large regional centres, the majority of communities remain connected only by dirt tracks, which are in a volatile state due to the local climate. Our own travel time consumed four hours in both directions, despite moving only 60km into the interior. As explained by other community leaders, the lack of reliable and passable roads drastically impede the sale of legal agricultural produce to local urban markets: long travel times undermine the ability to provide a reliable supply and drastically increase the transport costs associated with the purchase of inputs and sale of the final products.

In the country as a whole, 75% of roads are paved and generally in good condition (Ministerio de Transporte, 2014). However, those in the countryside are the least developed and least well maintained. A quick comparison, undertaken back at our hotel, identified something of a correlation between the UN 2013 estimates of coca growing and government statistics on the existence and quality of roads. To take one example, in Putumayo, the second biggest producer of coca, only 54% of roads are paved, and over 57% of the remaining dirt track routes are currently evaluated to be in “bad” or “very bad” condition (Ministerio de Transporte, 2014)

In the morning we were lucky enough to have met with the Governor of the Department of Guaviare, José Octaviano Rivera Moncada. Moving from a campesino family into politics, inspired he said by the lack of representation that he witnessed as he travelled the region as a rural health worker, the Governor explained that his department was critically underfunded, pointing out that while his administration had been able to make investments, it was almost entirely the result of locally raised funds. The central Government does not provide sufficient support for development in his view. One reason for this, as suggested by a number of people we met during our time in Guaviare, is that there is little incentive for politicians and government officials to provide for the isolated communities. By way of explanation, people point out that the political support in the region is of little consequence, and there is better status (and some say money) to be generated (through corruption and kickbacks) by focusing efforts elsewhere.

By generous invitation we accompanied the Governor to a village where we had the opportunity to participate in a momentous event in the community’s history. In the year 2015, this village was to be connected to the electricity grid: meaning that until that day, the households there had been among the 6,300 in the department, and 435,500 nationwide, officially estimated to be living without an electricity supply of any kind (MMEUPME, 2014). Again, reviewing numbers of households without electricity in the departments where coca is grown reveals a potentially telling pattern. Indeed, talking at the event, we met with further leaders from surrounding villages also still without this basis economic input. Talking of their current economic situation, they posed the rhetorical question: ‘How are we to generate income for our communities without electricity?’ ‘How are we expected to store food crops in a way which keeps them suitable for market?’ The answer they immediately follow with is the logically obvious one: ‘We simply can’t’. It is perhaps partly for this reason that coca tends to be grown in areas with notable levels of poverty (see Table 1, below – although, it should be noted that statistical analysis correlates coca with mid-levels of poverty, likely because of the need for some capacity to engage in the activity). Overall, we encountered the same position in all the communities we visited: the people are desperate for alternative livelihood options, but without roads and electricity, from which one leader noted many other opportunities would come, the only rational option for those seeking to provide for their families is to grow coca leaf. After all, in contrast to others, this crop grows easily in the region, and can be transported by the buyers on motorbikes.

Back in San José, we talked with a corn dealer, who elaborated on the impact of what we had seen and heard in the countryside. Although the man had dedicated himself to trading corn – partly in order to help small farmers in the region, Pedro suggested – the ageing trader is only able to pay a price to farmers that is barely, if at all, sufficient to cover their costs of production. While this ratio is impacted by competition from industrial producers and growing imports under Colombia’s free trade agreements, there is little chance that market incentives drive efficiency in Guaviare given the constraints imposed by a lack of basic rural infrastructure. Here, I am reminded of my work in the field of international development, and the need to compliment policies to develop market incentives (the primary focus of the trade agreements and market liberlisation pushed by international institutions, such as the World Trade Organization and the International Monetary Fund), with investment in building the economic capacity that people need to respond (Smith 2009).

Finally then, on the issue of investment in development, the other topic at the centre of many conversations on our trip to Guaviare, was the Colombian Government’s policy – heavily backed by the United States – to reduce the production of coca through aerial fumigation. Recent news reaching the communities supported previous analyses demonstrating that the fumigation programme, estimated to have cost between US$1 billion and US$2 billion since its launch in 1994 (Isacson, 2015), has done little to reduce cultivation (ONDCP, 2015); aside from the heinous damage inflicted on human health and the environment, as recently identified by the WHO (2015). In this situation, campesinos, well aware of the financial cost of each fumigation flight, ask a very logical question: Why does the government not direct investment into roads and electricity, instead of dropping chemicals that along with killing coca, destroy legal food crops, cause cancer and damage our natural resources? Indeed, undertaking statistical analysis of the characteristics associated with growing coca, nationwide studies find that while fumigation is little associated with reducing coca cultivation (with a minor and statistically insignificant association) there is a strong statistically significant correlation between the size of the coca crop and transport infrastructure (for example see: Dion and Russler, 2008). On the basis of the evidence then, a clear conclusion emerges: if the Colombian and US Governments are serious about reducing coca cultivation, it is essential to invest more seriously in the kind of economic development needed to support legal livelihood opportunities for the rural populations of Colombia. Indeed, if the balance between investment in fumigation and development does not change, it is high time the international community asked more critical questions about the continuation of such an ineffective and inhuman drugs policy in areas such Guaviare.

Table 1: Basic infrastructure for largest coca producing regions in Colombia (DANE 2014; MMEUPME 2014; Ministerio de Transporte 2014).

References

DANE (Departamento Administrativo Nacional de Estadística) 2014. Cifras Departamentales De Pobreza Monetaria Y Desigualdad. https://www.dane.gov.co/files/investigaciones/condiciones_vida/pobreza/cp_pobreza_departamentos_R2013.pdf.

Dion, M.L., Russler, C., 2008. Eradication Efforts, the State, Displacement and Poverty: Explaining Coca Cultivation in Colombia During Plan Colombia. Journal of Latin American Studies 40 (03), 399-421.

Isacson, A. 2015. Even If Glyphosate Were Safe, Fumigation in Colombia Would Be a Bad Policy. Here’s Why. Washington: Washington Office on Latin America. http://www.wola.org/commentary/even_if_glyphosate_were_safe_fumigation_in_colombia_would_be_a_bad_policy_heres_why.

Ministerio de Transporte 2014. Transporte En Cifras 2013. https://www.mintransporte.gov.co/descargar.php?idFile=11527.

MMEUPME (Ministerio de Minas y Energía Unidad de Planeación Minero Energética) 2014. Plan Indicativo De Expansión De Cobertura De Energía Eléctrica 2013 – 2017. http://www.upme.gov.co/Siel/Siel/Portals/0/Piec/Libro_PIEC.pdf.

ONDCP (Office of National Drug Control Policy) 2015. Coca in the Andes. https://www.whitehouse.gov/ondcp/targeting-cocaine-at-the-source.

Ortiz, S. 1984. Colonization in the Colombian Amazon. Frontier expansion in Amazonia, pp. 204-230.

UNODC (United Nations Office on Drugs and Crime) 2014. Colombia Coca Cultivation Survey 2013. http://www.unodc.org/documents/crop-monitoring/Colombia/Colombia_coca_cultivation_survey_2013.pdf.

Smith, A.M., 2009. Fair Trade, Diversification and Structural Change: Towards a Broader Theoretical Framework of Analysis. Oxford Development Studies 37 (4), 457-478

WHO (World Health Organisation) 2015. Iarc Monographs Volume 112: Evaluation of Five Organophosphate Insecticides and Herbicides. http://www.iarc.fr/en/media-centre/iarcnews/pdf/MonographVolume112.pdf.

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

Martin Jelsma

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.

A 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

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

Martin Jelsma

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.

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 58^th 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.

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.

The Long March of Ayahuasca; From the Amazon basin to UNGASS 2016

Notes on the World Ayahuasca Conference 2014

Constanza Sanchez Aviles, GDPO Research Associate & Law, Policy & Human Rights Coordinator at ICEERS Foundation

The World Ayahuasca Conference (AYA2014), held in Ibiza on September 25^th-27^thand organized by the ICEERS Foundation gathered more than six hundred professionals and non-professionals with an interest in this psychoactive Amazonian beverage, coming from nearly 60 different countries: shamans, psychologists and therapists, anthropologists, lawyers, doctors, drug policy experts and even some government representatives shared and enjoyed, in the symbolic and privileged environment of this Spanish island, workshops, book presentations, film screenings and conferences of the most prominent experts in the field such as Jonathan Ott, Dennis McKenna, Claudio Naranjo or Bia Labate, naming just a few of the 100 international experts that participated for this event. Renowned personalities from the drug policy arena such as Ethan Nadelmann, Amanda Fielding, Pien Metaal, Rick Doblin or Kasia Malinowska-Sempruch and many drug policy researchers and activists also attended, turning AYA2014 into a pivotal moment in the history of ayahuasca in the broader drug policy context.

Benjamin de Loenen, Bia Labate, Leon Garcia, Amanda Fielding, Joan Obiols and Claudio Naranjo.

For hundreds of years, Amazonian indigenous societies have been using ayahuasca to facilitate the physical and psychological health of the individual as well as the community. However, Western societies are in general repressive and intolerant towards the potential of plants with psychoactive properties, mistakenly interpreting their use as destructive and addictive, even though they are increasingly being recognized for their potential role in psychotherapeutic processes and the improvement of interpersonal relations.

Ayahuasca is a psychoactive beverage composed of two plants, Banisteriopsis caapi and Psychotria viridis, the latter of which contains DMT (N,N-dimethyltryptamine), a controlled substance under the 1971 United Nations Convention on Psychotropic Substances (Schedule I) and therefore under most national drug legislations. However, the International Narcotics Control Board (INCB), the quasi-judicial monitoring body for the implementation of the United Nations international drug control conventions, has specifically stated that ayahuasca and similar botanicals that contain psychoactive alkaloids that are included in the 1971 convention are not under international control, unlike coca, opium poppies or cannabis.

During the past few decades, ayahuasca use has spread beyond its native Amazonian context; the globalization has facilitated the cultural interchange between indigenous and occidental practices leading to a globalized interest in traditional ceremonial use, therapeutic use and religious use of ayahuasca. Brazilian churches like the Santo Daime or the União do Vegetal, which incorporate the ritual use of ayahuasca in their practices, have settled in an increasing number of countries, along with indigenous healers as well as occidental practitioners offering ayahuasca sessions to a broader interested public. Particularly in the last five years, collectives and individuals involved in these practices have suffered stigmatization and legal prosecution in the US, and many parts of Europe and South America. These prosecutions included respected indigenous leaders such as Taita Juan Bautista Agreda (also present at AYA2014) who was arrested in Texas in 2010, and released later on, members of Santo Daime and UDV in the UK, Spain, Netherlands, US, Italy, Belgium and Germany, and Western practitioners working with ayahuasca in therapeutic or spiritual practices, such as the arrest of members of the Argentinean center Emilio, Manto Wasi in Chile, and over 50 cases in Spain, Portugal, UK, Belgium, Switzerland, Netherlands, and Germany.

At the end of 2009 ICEERS became involved in the defense of the court case of Manto Wasi Center in Chile and made a request to the INCB on March 2010 to clarify the legal status of plants and preparations containing DMT. On June 2010, the INCB response confirmed that “no plant or decoction containing DMT, including ayahuasca is currently under international control”. However, the Board added that some countries may have decided to apply control measures to the use and trade of ayahuasca, due to the “serious health risks” that the use of this preparation carries^[1]. In fact, the experience suggests the interpretation of the 1971 Convention has not been uniform among individual States, which have had the final decision in regulating ayahuasca use within their own territories.

The challenge faced by lawyers and policy-makers comes, on the one hand, from the fact that the religious and ritual use of ayahuasca has spread at the global level but resists traditional conceptualizations and categorizations of illegal drug “abuse” that has determined drug policy formulation. Ayahuasca has a long history of use as a medicine, sacrament and ‘plant teacher’, categories that do not fit into contemporary drug policy frames^[2]. On the other hand, the presence of ayahuasca religions is forcing some States to balance the respect for these groups against their international commitments within the worldwide “war on drugs”, namely to balance Western perceptions of drug use with the evolving use of ayahuasca^[3].

Taita Juan Bautista Agreda, Kajuyali and Sia Kaxinawa.

This ambiguous situation has generated considerable confusion surrounding the categorization of ayahuasca and the assessment of the potential risks of its use in the context of what are considered “reasonably safe and socially controlled ritual contexts”^[4]. For instance, ayahuasca has been considered an ‘emerging drug’ by the Clinical Committee for the Spanish National Plan on Drugs and categorized as a ‘plant-origin drug of abuse’^[5]. The INCB, rather than providing clarity, has contributed to this lack of understanding noting that there exist an apparent “interest in the recreational use of such plant materials” which are “often used outside of their original socio-economic context to exploit substance abusers”^[6]. Two years later, the INCB referred to ayahuasca as one of “the most commonly sold new psychoactive substances” through the Internet, apparently encouraged by a lack of clarity concerning the control status of the plants at the national and the international level and exploited by “drug trafficking networks and online retailers, resulting in increased trade, use and abuse of these plant materials in many countries”^[7].

However, epidemiological and scientific evidence available on the use of ayahuasca and its consequences do not seem to be in line with INCB statements. In contrast, ICEERS’ Ayahuasca Scientific Literature Compilation^[8] and Technical Report on Ayahuasca^[9] seem to point in the opposite direction. Moreover, scientific research points towards ayahuasca’s beneficial effects on addiction^[10], cognitive functions[11] and depression^[12]. The court case of Manto Wasi in Chile even concluded that ayahuasca had been beneficial for the participants of the sessions and the latest case in Catalonia concluded similarly to ICEERS’ Technical Report that there is no scientific proof of ayahuasca being a harmful substance.

Furthermore, in some Latin American countries (Brazil, Peru) ayahuasca religions and traditional practices are recognized as cultural heritage and the United Nations Declaration on the Rights of Indigenous Peoples adopted in 2007 includes the right of indigenous people “to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals” (Article 24).

Therefore, considering the ritual and therapeutic use of ayahuasca to be similar to the problematic use of controlled drugs like opiates, cocaine or methamphetamine, or considering that this psychoactive preparation is inserted in drug trafficking networks and illegal markets, is misinformed, not evidence-based, and contribute to generate confusion around the legality and legitimacy of these practices.

The grey zone in which ayahuasca is located nowadays encouraged ICEERS to give the legal and political issues a prominent place within AYA2014. The conference was intended to be a space for joint reflection and discussion, building a bridge between ayahuasca churches legal strategists such as Santo Daime and União do Vegetal, lawyers that have defended ayahuasca cases worldwide and drug policy researchers and activists.

In order to support this endeavor, the first meeting of the so-called Ibiza Expert Committee for Regularization of Psychoactive Ethnobotanicals took place within the Conference, intended to be a starting point for a multi-faceted international campaign aimed at rightful, justified, regulated, professionally managed use of psychoactive plants for individual and social benefit.

In addition to the need for assistance in the context of legal ambiguity in which ayahuasca unfolds today, ICEERS also is committed to foster a change of scenario. Particularly, its intention is to fight INCB attempts to control traditional plants. In this sense, learning from the experience of other substances such as cannabis and coca for the defense of ayahuasca, within a context of drug policy evaluation and reform is essential. Therefore, perhaps one of the main achievements of AYA2014 has been to “introduce” ayahuasca to drug policy activists and professionals. And vice versa: to introduce to the ayahuasca community the political strategies being developed for other substances in different contexts. Building a solid networking and political strategy for psychoactive plants vis-a-vis UNGASS 2016 could be a good starting point.

^[1] The fax sent to ICEERS by the INCB in 2010 is available by request at info@iceers.org.

^[2] Kenneth W. Tupper, “The globalization of ayahuasca: Harm reduction or benefit maximization?”, International Journal of Drug Policy, 19 (2008) 297–303.

^[3] Beatriz Caiuby Labatea & Kevin Feeney, “Ayahuasca and the process of regulation in Brazil and internationally: Implications and challenges”, International Journal of Drug Policy, 23 (2012), 54– 161.

^[4] Statement on ayahuasca, International Journal of Drug Policy, 23 (2012) 173-175.

^[5] Mainly referring to ectopic uses in religious rites far from the places of origin, as peyote users in the United States or ayahuasca shamanic groups of the Santo Daime Church in Madrid. See Comisión Clínica de la Delegación del Gobierno para el Plan Nacional sobre Drogas, “Drogas Emergentes”, available at http://www.pnsd.msc.es/Categoria2/publica/pdf/InformeDrogasEmergentes.pdf

^[6] INCB Annual Report, 2010, par. 286.

^[7] INCB Annual Report 2012, par. 329-330.

^[8] Available at http://iceers.org/docs/science/ayahuasca/ICEERS2012_Ayahuasca_literature_compilation.pdf

^[9] Also available by request at info@iceers.org.

^[10] Thomas G, Lucas P, Capler NR, Tupper KW, Martin G. 2013. Ayahuasca-assisted therapy for addiction: results from a preliminary observational study in Canada. Curr Drug Abuse Rev. 6 (1):30-42; Bouso, JC y Riba, J. 2014. Ayahuasca and the Treatment of Drug Addiction, in Labate, B y Cavnar, C (eds). The Therapeutic Use of Ayahuasca. Springer.

[11] Bouso JC, González D, Fondevila S, Cutchet M, Fernández X, Ribeiro Barbosa PC, Alcázar-Córcoles MÁ, Araújo WS, Barbanoj MJ, Fábregas JM, Riba J. 2012. Personality, psychopathology, life attitudes and neuropsychological performance among ritual users of Ayahuasca: a longitudinal study. PLoS One.; 7 (8):e42421. Available at http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0042421.

^[12] Osório,F., Sanchez, R., Macedo, L et al. (in press). Antidepressant effects of a single dose of ayahuasca in patients with recurrent depression: a preliminary report. Revista Brasileira de Psiquiatria.