Monthly Archives: November 2014

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.

SPP Prof. Julia Buxton Highlights the Great Disconnect Between Drugs and Development

This post was originally published here by the School of Public Policy at the Central European University.

Julia Buxton, Professor of Comparative Politics at the School of Public Policy (SPP), outlined key conclusions from her forthcoming report on the relationship between drugs and development in a stimulating faculty research presentation on Thursday, October 16. “Drugs are a development issue,” emphasized Buxton, “and this needs to be recognized by development actors.” The report, Drugs and Development: The Great Disconnect, will be published by Global Drug Policy Observatory at Swansea University as part of a portfolio of work that is being prepared ahead of the United Nations General Assembly Special Session (UNGASS) on Drugs in 2016.

Buxton analyzed United Nations Office on Drugs and Crime (UNODC) alternative development (AD) projects. Since UN endorsement in 1998, these projects have become a counter to traditional law enforcement strategies of drug crop eradication and drug interdiction. She highlighted multiple UNODC failings that have resulted in a 36% increase in opium poppy cultivation in Afghanistan between 2012 and 2013, an increase that is even more shocking given the more than $7.5 billion that has been spent in counter narcotics efforts. Some of the examples of failed efforts include the use of generic AD approaches across regions and communities, a lack of pre- and post-project monitoring and evaluation, a dearth of development experts on staff, the absence of development and human security metrics (with AD projects evaluated only on the basis of short-term drug supply reduction targets), and, most crucially, the failure of AD to target the poorest of the poor and identify motivations for engagement in drug crop cultivation. Ultimately, “Alternative development is unworkable within the framework of drug criminalization, a focus on the sources of drugs, and ongoing militarized enforcement,” asserted Buxton, all of which serves to drive up the price of illicit drugs and the incentives to participate in supply.

Citing “profound institutional sclerosis” in the UNODC, Buxton asked how alternative development can be successful if the end goal is drug prohibition. “The more the UNODC is involved in alternative development, the more it risks doing more harm than good,” she argued. According to Buxton, drug policy and also the drug policy reform lobby pay too much attention to raw narcotics (opium poppy and coca leaf) rather than synthetics such as MDMA and amphetamines manufactured in the Global North. This underlines the bias in the international drug control model and the risk of further problematic interventions that exacerbate rather than alleviate poverty and insecurity in drug crop cultivating regions.

Ultimately it is development and not law and order factors that enable drug crop cultivation. As such, Buxton concluded, drug crop cultivation should be the concern of the development community and NGOs. Unfortunately, development actors often treat drugs as a taboo subject preferring that they be handled within the portfolio of law enforcement. This works against the achievement of development objectives, with counter narcotics responses generating violence while distorting security priorities and democratic systems.

Watch Buxton discuss her latest research on drugs as a development issue here.

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.