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

by Rick Lines And Damon Barrett

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

This post was originally published here

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

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

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

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

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

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

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

[I]f it is a living document and they are living documents [the UN drug control conventions], living means you are allowed to adjust your interpretation as the world changes around you, the world in 1961 was a different place from the world in 2014 and we the governments and members states of the UN system should be permitted to interpret with that degree of flexibility as we move in to the 21st century.

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

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

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

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

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

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

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

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

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

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

This post was first published here at the Huffington Post

A joint contribution by:

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

Martin Jelsma
Coordinator, Transnational Institute Drugs and Democracy Programme

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

___________________________________

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

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

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

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

Respect the integrity of the existing UN Drug Control Conventions…

Accept flexible interpretation of those conventions…

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

Combat and resist criminal organizations

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

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

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

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

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

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

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

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

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

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

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

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

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.

GDPO Summer School Success

In July, Global Drug Policy Observatory staff Professors David Bewley Taylor and Julia Buxton delivered the 10 day intensive Human Rights and Drug Policy summer school, at the Central European University (CEU) in Budapest, Hungary. Funded by the Open Society’s Global Drug Policy Programme, the summer school was attended by 24 participants from across the world. This included colleagues from Nigeria, India, Pakistan, Bangladesh, Hong Kong, Kyrgyzstan, Georgia, Lithuania, Tajikistan, Hungary, Jamaica, Mexico, Argentina, Brazil, United States of America, Poland, Ireland and the United Kingdom. With backgrounds in journalism, social work, harm reduction, legal services, advocacy, political service and the security sector, the participants brought extensive professional experience to the course, which presented an excellent opportunity for global networking and knowledge exchange.

The summer school was delivered by academics and practitioners through lectures, discussion groups and workshops that enabled participants to analyse core issues and debates at the interface of human rights and drug policy. This began with David Bewley Taylor’s day-long session exploring the treaty framework and institutions of the international drug control regime administered by the United Nations Office on Drugs and Crime (UNODC). Key questions included the remit and mandate of bodies such as the Commission on Narcotic Drugs (CND) and the International Narcotics Control Board (INCB), and the extent to which current reform of cannabis laws constitute a breach of the 1961 Single Convention. On the second day, participants considered international human rights conventions and obligations supported by key cases in human rights law. Delivered by Damon Barrett, Deputy Director and Head of Research and Advocacy at the Harm Reduction International and Director of the International Centre on Human Rights and Drug Policy, the session incorporated a focus on the rights of children and of minority religious groups particularly Rastafari.

Niamh Eastwood, the Executive Director of the drug policy reform and legal services organisation Release delivered the third day’s session. This addressed racial disparities in drug policy enforcement, trends in incarceration for drug related offences, and, returning to a theme raised earlier by Bewley Taylor, the politics of drug scheduling. Course participants welcomed back Peter Sarosi and Denes Balazs from the Hungarian Civil Liberties Union (HCLU) at the end of the week. The first engagement for participants at the beginning of the course had been an informative and moving visit to a needle injecting facility with Peter Sarosi. In this second session with HCLU, participants enjoyed a day of media training in drugs advocacy. This involved submitting to a recorded camera interview, which was played back to the class for comments.

As the summer school is an intensive course, designed to maximise the ability of professionals to take time from work to attend, participants were back in the classroom on Saturday with Dr Katherine Pettus, Advocacy Officer at the International Association for Hospice and Palliative Care. This was a challenging session, requiring participants to focus on the impacts in poor and developing countries of lack of access to essential medicines. The session threaded with earlier discussions on the scheduling of controlled drugs and the role of drug control bodies (CND but particularly the INCB) in impeding access to medicines that are essential for pain relief in terminal illness. Participants did enjoy a break on the Sunday, with the majority taking the opportunity of a boat cruise along the Danube to Szentendre.

The final three days of the course were delivered by Kasia Malinowska Sempruch the Director of the Open Society Global Drug Policy Programme and Julia Buxton. With Kasia, participants examined the record and principles of global harm reduction initiatives, including safe injecting facilities and methadone maintenance programmes. The impact on women of drug policy enforcement was considered, developing the argument forwarded earlier in the course by Niamh Eastwood relating to bias in the policing and treatment of drug-related offences. Julia Buxton examined why the international community focuses attention on naturally occurring (cocaine and opioid) drugs that are produced in the Global South, rather than more widely abused synthetic drugs manufactured in Europe, North America and China. Following this discussion, participants considered the cost paid by developing and conflict prone countries in their role as ‘front line’ states in the international drug war. The final session was applied in orientation, and focused on writing drug policy reports. Participants presented and discussed different topics for a Situation Analysis, supporting each other in constructing brief, focused analytical pieces.

Feedback from the course was extremely positive, with friendship and close working relations making for excellent group dynamics throughout the 10 day period of study. This was the final year Human Rights and Drug policy will be delivered at the CEU, with the course relocating to other institutions in India, Ghana and Mexico for 2015. With Julia Buxton’s move to the School of Public Policy at the CEU in January 2015, work will begin to develop a Masters level programme in Human Rights and Drug Policy; a programme that will aim to maintain a close relationship with Swansea University and the GDPO.

Interview: Anya Sarang, President of the Andrei Rylkov Foundation

The following is a transcript of an interview with Anya Sarang, President of the Andrei Rylkov Foundation in Moscow. Sarang, who has worked on developing and supporting the emerging harm reduction movement in Russia, discusses contemporary drug policy in the country and its effects. The interview was conducted by Alexander Marshall as part of his recent GDPO policy brief, ‘From drug war to culture war: Russia’s growing role in the global drug debate’.

Q: I’ve read a lot about how things are going in Russia but there is a lot of course that I still don’t understand, and I recognize this fact, therefore to begin with I still have a lot of what might seem general questions regarding the local context, particularly as there is a comparative aspect with other countries in our project. Your opinion is very important and I’m very glad you agreed to meet me. My first question is how you see the current situation in Russia currently developing generally? What is your opinion?

A: It seems to me that compared with the 1990s open drug scene, access for heroin has reduced-in the 1990s access was as free as you please, ‘you want heroin, you want khanka [Russian slang: a home-made opium derivative, normally injected] go ahead‘-compared to this the situation has quite changed, it’s become more closed and less accessible, and also that people have started using synthetic drugs and pharmaceutical substitutes, for example last year we had a string of cases of people using prescription drugs without prescription, and we had a three year epidemic of ‘krokodil’. We street methadone in the market, but since last year this has also become less accessible. To me it seems that if one compares today with the 1990s and start of the 2000s access to substances has become more limited in general, even with pharmaceutical drugs, however new synthetic drugs are becoming more available.

Q: Many thanks. Could you say a few words about your organization, what you do here in Moscow and how the authorities relate to you?

A: Our foundation was created to honour the name of Andrey Rylkov, we wanted to create a mobile group of activists and we were the whole time occupied with the problem of HIV/AIDS, but it became clear that it was impossible to engage this question without also engaging with the issue of drug policy, so, we are advocates of drug reform, based on human rights, that is the mission of our organization. We also have ‘service’ projects helping drug users on the streets of Moscow, we go every night to the pharmacies to dispense condoms, ointment, quick tests for infection, we accompany people to hospitals, which in Moscow is a difficult process, and we also have a large advocacy role in drug reform and everything connected with that, preparing reports for the international human rights bodies, the UN, and we seek to influence the legal situation with regard for example access to therapy for hepatitis (which you just saw in our press conference), the arbitrary detention of drug users by the police, the criminalization and over-incarceration of drug users and so on. On top of all this we work on strategic litigation cases aimed at the European Court of Human Rights.

Q: Could you say a few words about how the attitude of organizations working in this area, for example the Ministry of Health or FSKN, has changed in the last few years?

A: In the last ten years the situation has very significantly changed. For example in 1997 we worked with the Ministry of Health on development of a training program on harm reduction for Russian doctors, and the Ministry took quite a supportive position. Since 1997-98 there were over 40 harm reduction programs, there were training programmes and the Ministry of Health supported training for specialists, issued several orders about necessity to focus on HIV prevention among drug users and they treated this question more or less normally. A few years ago, by 2009, this approach simply ceased. Measure to reduce prevalence of HIV/AIDs practically ceased, and there also came forth a more repressive position, particularly towards some international recommendations around harm reduction, the Ministry of Health openly opposed recommendations of the WHO for example, and in the past year they have taken a still more aggressive position towards harm reduction. On top of this you have the FSKN, an enormous agency, with a budget of billions of roubles, which wants complete control of this whole area, but it is completely unclear and confusing what their role is. If you look at drug cases in Russia – there were practically no cases with systematic work to turn down a real drug lord or king pin – people who are prosecuted are drug users who are set up while “selling” half a gram of heroin. In other words this service is in no condition to carry out any kind of serious work, they prosecute people who uses drugs, veterinarians and people making poppy-seed buns but they do nothing against the real drug lords as they claimed they would in the beginning of their existance. In connection with this agency there has also emerged a repressive discourse about throwing drug users in prison, arresting pharmacists, but of course they aren’t engaged in anything actually productive.

Q: Why in your opinion has the state attitude become more aggressive, and can you say something about public opinion changing on this subject-for example in Moscow?

A: It seems to me the tone of FSKN became more aggressive in order to justify this budget of billions of roubles, they started on 3 billion roubles, last year they asked for 220 billion, in other words they would like to increase their budget by hundreds of times, and in order to justify this they need to be seen to be throwing all these kinds of groups in jail, and from this emerges a kind of social paranoia regarding drugs in general. What was the second question?

Q: On public opinion

A: Well you know public opinion is a very broad subject…

Q. Of course. But for example someone like Evgenii Roizman appears to have become somewhat popular…

A: Well three years ago when one of Roizman’s associates was put on trial for kidnapping and torturing drug users in their ‘rehabilitation’ center people came out in his defence, views were expressed that what he did was right and that in fact it was the only effective approach to dealing with drug addicts. In this past year however attitudes have somewhat changed, some of the intelligentsia have begun to recognize that drug addicts are also human beings, that they too have human rights, in part in my opinion this change has come about through activity of our organization and engagement with broader groups of social and political activists.

Q: I have a question about head of the FSKN Victor Ivanov, who in 2011 announced the need for a rehabilitation program. To me- I just read about this-this seemed from one point of view a slightly more progressive approach, recognizing for example that past approaches hadn’t worked, proposing the creation of communes and so on. I wondered if I could ask you about this-is it propaganda, is it a real change, or what?

A: Well the first thing you have to understand about this rhetoric is that it was used to generate a lot of money. In the past three years the FSKN were to have built up a regulatory base for certification of rehabilitation centres, they were not to build their own centres but to bring existing centres up to these standards, and then disburse state funds to them, but even with this more simple task the FSKN haven’t managed to move forward in three years. Up to this day I haven’t heard of one person who has officially gone through a state rehabilitation centre. We have state rehabilitation centres in Moscow and St Petersburg, there are perhaps three or four in the whole country, however on the FSKN website there are centres ‘approved by’ the FSKN, and there you find the most diverse kind of centres, for example Roizman’s City witout drugs one in Ekaterinburg which is famous for kidnappig and torturing drug users, others which are known to everyone as charlatans-they simply made a list of all centres in the country and posted it on their website.

Q: So if I understand correctly they-on paper-set out to regulate everything but in practice aren’t regulating anything?

A: Well not quite, they simply continue their consultations, meetings, they spend money, but no kind of product has appeared yet. […] Let me add that another complication is that rehabilitation centres have become accessible only to local residents -in Moscow there are spaces in such establishments only for residents of Moscow. In regards to harm reduction and HIV prevention programs they are ceasing to exist in Russia due to opposition of the Ministry of Health that declared that they were harmful.

Q: Who decided that they were harmful?

A: In 2009 the Minister of Health has talked in front of the State Security Council specifically on harm reduction programs – needle and syringe provision to drug users and substitution treatment and expressed clear opposition.

Q: If I understand the Orthodox church also had a role in this?

A: They don’t work very strongly in this area, they work more against safe sex campaigns but in the area of drug policy they didn’t make any particularly harmful declarations. They also have some rehabilitation centres of their own which differ in quality and approaches but sometimes these are the only accessible rehab options for drug users.

Q: What do you see as the most harmful consequence of these policies in Russia?

A: The most harmful consequences are the high mortality rates amongst people who use drugs – of overdosis, of tuberculosis, of AIDS, of hepatitis complications. According to UNAID we have one and a half million people with HIV/AIDS infections but this estimate is already five years old, right now a minimum of 2 million people are living with the infection, and frequently a condition for them for receiving antiretroviral treatment is that they abstain from drug use, which they can’t do due to the absence of rehabilitation programs or substitution treatment, so the mortality rate of people with HIV is high.

Too many people end up in prisons – early in their lives and that forms their future as a criminals a future that could be avoided. Prisons are also full of disease and outrage upon personal dignity. People with HIV and TB are especially vulnerable as for many of them, due to absence of proper treatment in prisons, poor hygiene and infectious control and malnutrition a prison sentence is often equal death sentence. All of this would be avoidable if we had harm reduction programmes available throughout the country. The courts don’t think about this, and might say this person will sit in jail two years and then will be free, but in fact they’re sentencing them to death, if this person already has AIDs and then acquires tuberculosis in jail they will be likely to die – in prison or shortly after.

We started a project three years ago looking at the quality of tuberculosis treatment in Russia and rate of drop out. The tuberculosis in drug dependent people is practically untreatable due to high rate of drop out and many tuberculosis treatment centres in the regions are simply morgues. The consequences of the current drug policy are therefore in actual fact catastrophic, but they’re also completely invisible to wider society as a whole.

Q: Where do you think the origins of this whole problem lie-is it a Soviet legacy, a legacy of Soviet narcology, a cultural problem, an issue of too little money, or what?

A: Well Russia has a lot of money, really a lot of money-when you consider the Ministry of Health, the FSKNs budget -really you see a lot of money. But they don’t direct this money in any kind of useful way. The repressive policy and drug treatment does have a history, the Russian addiction treatment (narcology) grew out of repressive psychiatry of the Brezhnev times – when dissidents were ‘treated’ in psychiatric wards, this is indeed a hard legacy to overcome and the psychiatry in Russia is still very repressive and so is narcology. Plus you also have to consider the whole factor of corruption among the Ministries officials – these people are simply not interested in improving the public health situation, all they are interested in is to gain more personal profit from their high positions and access to large budgets. So I don’t expect any kind of solutions from the Ministry of Health or the FSKN.

2014 The World Drug Report: The Titanic sails at dawn

This post was originally published here by the International Drug Policy Consortium.

As it its customary practice, the UNODC released its flagship publication on June 26th, the UN’s designated ‘International day against drug abuse and trafficking’ as well as the occasion of the ‘Support Don’t Punish’ day of action, which seeks to draw attention to the collateral damage of the ‘war on drugs’. So the growing debate over the failure of the international drug control system, which has now entered mainstream political discussion, provides the context for the publication of the most recent World Drug Report.

UNODC Executive Director Yuri Fedotov acknowledged that the Report is being published at a key moment for drug policy. As ever, the UN claims to be external to these disputes and to constitute a neutral source of data, the Report continues to position the UNODC as a supporter of the current drug control regime and the international treaties that underpin it. In his Foreword, Mr. Fedotov refers to the recent Commission on Narcotic Drugs as providing a ‘much needed forum for an open and inclusive dialogue’, and to ‘a shared understanding of a way forward’ to counter the ‘world drug problem’. This, at best, is wishful thinking. The Report’s fundamental terms are not up for negotiation. What exactly the ‘world drug problem’ is (i.e. the lack of access to essential medicines for billions of people, the alienation produced by drug law policing, the market opportunity the system offers to organised crime) is a question that the Report does not ask, let alone answer.

As to the main body of the 2014 World Drug Report, the most prominent headlining issue recalls a familiar narrative at the UNODC: the stability of global drug use, its containment by the present drug control arrangements, which restrict drug use to about 5 per cent of the world population – some 243 million individuals having illicitly consumed drugs in 2012. ‘Problem drug users’ have meanwhile continued to represent about 0.6 per cent of the global population, around 1 in every 200 individuals. Opium production in Afghanistan and Myanmar has expanded, while Novel Psychoactive Substances continue to proliferate. Global use of cannabis ‘seems to be down’, but has increased in North America. Although these data can inevitably only provide us with approximations, they are impressive enough, and will be analysed in depth when IDPC produces its annual response to the World Drug Report (to be released in early October).

But for now, in the build up to the UN General Assembly Special Session (UNGASS) on Drugs in 2016, when the consensus of which the UNODC speaks is fast disappearing, a more clear-eyed recognition of the facts is needed. As countries around the world grow weary of a system devised in very different circumstances and that fails to meet the policy needs of the contemporary age, the time for platitudes is surely past.

Christopher Hallam, IDPC Research Officer

Peace Wins in Colombia

When the Colombian presidential elections headed into a run-off in May, and voters were given the choice between the right-wing incumbent Santos administration and Óscar Iván Zuluaga, a right-wing protégé of former President Alvaro Uribe Velez, journalist Mario López, writing in the local newspaper El Espectador, noted, “Whichever candidate wins the country is not going to change its economic model, this is the reason the establishment has supported and financed both candidates in the same proportion. The only considerable difference is the peace process moving forward in Havana, and, perhaps, the personal style of leadership.” The article was titled “War or Peace?” Zuluaga’s stance softened slightly in respect to the talks, but for those opposed to both the right and the ultra-right an essential dilemma remained: vote to save the peace process in its current form, or submit a blank vote in protest at the constrained choice? (A cartoon doing the rounds on social media showed a cow standing at the crux of two paths, one with a sign saying ‘Santos’, the other ‘Zuluaga’. After a small distance the paths could be seen to converge and enter a dark tunnel, above which a sign read “Well-being”, replacing the scrubbed-out but still legible “Slaughterhouse”). It looks like the decision by centre and left wing groups to support Santos may have been the critical factor in giving him a 5 point victory in the run-off, ensuring the survival of the peace talks and the tentative steps that have so far been made, including the agreed upon but not-yet-finalised commitments to radically alter the country’s approach to the questions of illicit drug production and consumption. Leading opposition figures afterwards celebrated the victory under the banner “Peace Won.” Left wing senator Ivan Cepeda Castro told local press that the vote for Santos was a pragmatic one. Those who made the choice, he said, would not forfeit their role as the opposition.

The elections have been a reminder of the conservative sentiments held by powerful sectors of Colombian society and a significant proportion of the population (a recent poll suggested only about half of Colombians thought democracy was preferable to authoritarianism, a result that maybe says more about the specific nature of what ‘democracy’ has entailed in the country rather than widespread anti-democratic sentiments among the people). It also demonstrated the fragility of even minor progressive gains in the current political climate.

Just prior to the run-off, the government announced they would be opening peace talks with the second largest guerilla group in the country, the ELN (The National Liberation Army), in the near future.

Resistance to a ‘War on Drugs’ in West Africa

It has long been known that the most cost-effective way to combat the drug trade is through treatment, prevention, and education at home. These methods continue to be underfunded in the the main consumer countries. Instead, the focus is on supply, a policy choice that has, among many other disastrous implications, served to push routes around the globe in a cat and mouse war of attrition between cartels and law enforcement agencies. In recent years, West Africa has experienced an uptick in interdictions of illicit drugs bound for Europe. This has inevitably led to official discussion, mainly among foreign states and agencies, of the need to confront the trafficking problem through militarised, punitive, supply-focused means. Civil society and observers of the drug war elsewhere have been arguing against such an approach. GDPO itself has produced two reports on the region. Last November a report discussed the strategic goals that underlie the agenda being pushed by foreign actors, and this month another policy brief highlighted the risks involved in a War on Drugs type approach to the region. The Institute of Development Studies released a paper on West Africa this month, written by a technical advisor to GDPO. The report is a critique of the calls for “building up increased regional law enforcement and interdiction capacities to curb illicit flows.” In a similar vein, the West Africa Commission on Drugs, a group of experts headed by former UN Secretary General Kofi Annan, this month released a comprehensive assessment of the present situation in the region. The group warn against the adoption of War on Drugs-style policies and reiterate a now common conclusion: “that criminalisation of drug use worsens health and social problems, puts huge pressures on the criminal justice system and incites corruption.” Instead they recommend partial decriminalisation, and that drugs be treated as a public health concern. Such high-level advocacy is an important step in saving West Africa from the drug policy related nightmares experienced elsewhere.

The Commission’s report is online here.