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Articles - Law and treaties
Written by Freek Polak   
Tuesday, 05 December 1995 00:00

Response to the report on 1992 by the INCB (International Narcotics Control Board)

by FREEK POLAK and MARIO LAP 1

"There is something very special about illicit drugs. If they don't always make the drug user behave irrationally, they certainly cause many non-users to behave that way." (Lester Grinspoon and James Bakalar, 1993, Marihuana, the Forbidden Medicine, Yale University Press.)


SUMMARY


In reaction to the criticism of the Netherlands' drug policy in the annual report of the International Narcotics Control Board (INCB, 1993), the authors claim this report is based on a too narrow, legalistic interpretation of the international drugs conventions.

As is evidenced by the worldwide disastrous developments with respect to the spread of problematic drug dependence and AIDS, prohibition has increased the public health risks, whereas the drugs conventions where meant to prevent this. There are better ways to contain problematic drug dependence and AIDS, as demonstrated by the Netherlands and some other areas, with policies that are not primarily directed at the eradication of drug use, but at the reduction of drug related harm to the health and social position of drug users.

There is an urgent need to further develop this policy, which is, without justification, obstructed by the international drug treaties and by the INCB.

In a cursory way the INCB has summed up the legalization debate with the intent to discredit the idea that the regulated availability of psychoactive substances could improve public health.

The authors have tried to present a more complete case for legalization. The main argument for prohibition has always been that the public health risks of drugs oblige governments to protect the population from them. But on the contrary, prohibition has proved harmful to public health. Precisely because of the health risks connected to the consumption of intoxicants, the state is morally and socially obliged to regulate their production and distribution.

Prohibition is based on a mixture of moral and ideological considerations, on preconceptions and a lack of factual knowledge, and last but not least, on irrational fears. It has proved advantageous only to criminality and to organizations involved in the legal production and trade of alcohol, tobacco and tranquilizers.

The authors have described the options for a careful and gradual transition to a system of regulated availability of both soft and hard drugs, analogous to the abolition of alcohol prohibition in 1933, and focussing on:

  • 1. the prevention of dependence on psychoactive substances and of secondary social and health risks (including the protection of vulnerable groups such as psychiatric patients and marginalized subcultures),
  • 2. the acculturation of safe patterns of usage, for instance less intravenous use, less use of high potencies.

It is important to note that a prime condition for a successful transition is the elimination of the profit motive in the drug trade.

With regard to the Dutch soft drugs policy the authors comment that its results are positive and stimulating. Because the Single Convention explicitly mentions the possibility of a government agency regulating production and distribution of cannabis, the only reasonable objection the INCB can raise is the absence in the Netherlands of such an agency.


The annual report of the International Narcotics Control Board of the United Nations which appeared in the spring of 1993 caused some commotion in the Netherlands, since it could be interpreted to mean that the INCB condemns the Dutch drugs policy in general and the cannabis policy in particular.

The INCB report, however, contains no substantive judgement of the Dutch drugs policy, but only a legalistic one. The conclusion was, therefore, predictable: according to the INCB, the Dutch cannabis policy is in contravention of the International Conventions2. Furthermore, the INCB made a more general attempt to respond to those in favor of the legalization of drugs.

In this article, the authors wish to provide a response to the INCB report, since this public and official opinion piece merits a broader response than only from other official channels. After summarizing the prohibition - legalization debate and assessing the state of international drug policy in relation to the spread of drug dependency and other public health aspects, the authors conclude that the public health arguments that constitute the basis and justification of drug prohibition, can no longer be considered to favor prohibition.

The INCB is charged with enforcing compliance by treaty partners with the obligation to combat and penalize the possession, trade and production of illicit drugs. A strictly legalistic approach is taken (i.e. emphasizing simply the letter of the law). Greater value is attached to the verbatim text of the International Conventions than to the results that have been attained in the various nations as a consequence of different interpretations of the text of the treaty. By taking this defensive position, the INCB fails to recognize that, without interpretation, treaties, like laws, degenerate into nothing more than dry meaningless words.

It is commendable of the INCB, however, that it appears willing to enter into meaningful debates with the advocates of legalization (albeit the arguments in favor of legalization are not presented optimally).

During its visit to the Netherlands, the Board came to the conclusion that the cannabis policy adhered to is in contravention of UN policy. In such a situation, the INCB is obliged to discuss its observations with the local authorities and to issue a report on the content of these discussions. We have the impression that the members of the INCB stumbled across a problem that was new to them while carrying out these activities. They talked to officials and politicians who made them begin to doubt whether the Dutch policy actually is so bad after all. The confidence of the Dutch discussion partners impressed the UN delegation. The INCB resolved this by not only mentioning the positive results achieved in the Netherlands but also by restating their strict position on the issue of legalization. As a result, this report can serve as the first step of an open international discourse on prohibition versus legalization, to the credit of the INCB.

We will now proceed to discuss the points of those sections of the report that relate to legalization in general and/or to the Dutch drugs policy (from A. View of the Board on the question of legalization of the non-medical use of drugs).


Re 13, 14, 15 a, b and c; obligations of parties to treat illicit drug use as punishable offence


The INCB states that the increasing call for legalization of 'non-medical use of drugs' reflects the widespread misunderstanding of the obligations of parties to the international drug control treaties. The INCB announces it will clarify these obligations: the parties have undertaken to penalize the possession, production of and trade in illicit drugs. 'Drug abusers' need not be detained per se; treatment and rehabilitation may suffice. According to the INCB, a nation can only refrain from prosecuting possession of drugs, if to do so would be contrary to its constitutional principles.

The INCB proceeds from the assumption that every non-medical use of psychoactive drugs, besides alcohol and tobacco, is by definition abuse. (With respect to the differentiation use/abuse, see also 16a.) No latitude is allowed for changing views, nor for the experience gained that criminalization, prosecution and penalization of drug users have yielded no positive results. This a priori kind of approach, in which every rational, critical view or change of opinion is called wrong, is void of any sense of reality and out of step with the times.

In this context, it is appropriate to take a closer look at the Single Convention (NY 1961), paying special attention to the Preamble and Articles 22, 23 and 28. In the Preamble, one of the basic premises from which the Parties proceed is that it is their duty to fight the evil of addiction to narcotics. Article 22 of the Single Convention reads as follows:

'In all cases in which, in light of the circumstances prevailing in the country or area of a Party, prohibition of the cultivation of the poppy plant, coca plant or cannabis plant is, in the view of that Party, the most appropriate measure for protecting public health and welfare and to prevent the narcotic substances from finding their way to illicit trafficking, the Party involved can prohibit cultivation.'

More specifically related to cannabis, Article 28 of the same convention reads:

'If a Party permits cultivation of the cannabis plant for the production of cannabis or cannabis resin, it must apply the relevant provisions concerning supervision, in conformity with Article 23, i.e. the establishment of a government agency charged with controlling the production of cannabis.'

The logical interpretation of this is: it is up to each individual nation to decide for itself which measures are the most appropriate for protecting public health and welfare and for deterring illicit trafficking. If a country becomes convinced that prohibiting the cultivation of, say, the cannabis plant is not the most appropriate means, that country is not obligated by virtue of the Single Convention to enforce prohibition, provided that it establishes a government agency that regulates and controls cultivation. In that case, this country does not act in contravention of Article 3 of the treaty concerning the illicit traffic in narcotic and psychotropic substances (Vienna, 1988).


Re 16; arguments in favor of legalization


In this section, the Board very briefly discusses three arguments in favor of legalization. While it is commendable that the Board reaches out to the advocates of legalization and at least makes an attempt to enter into discussion, it is unfortunate that, in so doing, the INCB follows the following fixed pattern: after presenting a pro-legalization argument one or more counterarguments are given, whereby the first argument is not refuted at all. The Board then immediately proceeds to the following point, which is handled in the same manner. Taken together, the three arguments do not adequately reflect the pro legalization case. This renders the result, however well-intentioned, disquieting. Does the INCB really expect this style of argumentation to be decisive in a rational debate? But perhaps the intention was to simply provide a cursory overview in order to instigate further debate.

After this introduction we will quote the arguments mentioned by the INCB report and give our comment. Then we give a concise presentation of the remainder of the argumentation for legalization.


Re 16 a; Argument in favor of legalization, according to the INCB:


Legalization is justified, since law enforcement has failed to control illicit supply or to reduce illicit demand.

INCB's counterargument:

This argument ignores the fact that legal sanctions have helped to deter or delay potential abusers, thereby limiting the growth of the illicit market.

First, a seemingly small, but essential point: every non-medical use of drugs other than alcohol and tobacco is systematically referred to as 'abuse' and everyone who could possible use them is titled a 'potential abuser'. In other words, the INCB abuses the word 'abuse'.3

Furthermore, it is not justified to use the word 'fact' if one is to claim that prohibition has limited the growth of the illicit market. Statistics from the past decades present a different picture, creating the general impression that the inverse is true: prohibition has caused the extent of use to increase. In any case, it is known that the relatively liberal Dutch drugs policy has resulted in no or a negligibly small increase in any form of drug use.4

Perhaps we can make the following assumption: although the 'war on drugs' proved unable to reduce the magnitude of drug problems, the members of the Board believe that the problems would have been even worse and wider spread if drugs had not been fought with such fervor. We will return below to this fear of the irresistible power of addictive substances.


Re 16b; Argument in favor of legalization, according to the INCB:


Given current levels of access to illicit drugs, legalization would only have a minimum adverse impact on current drug abuse levels and would thus generate few additional health, safety or behavioral problems.

INCB's counterargument:

This argument ignores the potential expansion of demand by individuals and society, particularly among young people, which could follow the removal of legal barriers, the freeing of entrepreneurial initiative and the lowering of market prices. It also ignores the possibility that there may be a substantial increase in economic and social costs, particularly to health-care systems (given the global experience with alcohol and tobacco abuse). This may include a sharp increase in costs resulting from accident-related injuries and other health-related problems.

Here, the Board does no more than play upon the fear of the addictive power of drugs and then simply proceeds to point 16.c. The arguments in favor of legalization, however, are not so easily refuted.

First of all, the argument is based upon a flawed proposition, that legalization can only have one meaning: the removal of all legal barriers, making all drugs freely available to all people in all places at all times.

This interpretation of legalization does not do justice to the views of the advocates of legalization.

Obviously, regulations should be differentiated according to substance or group of substances. For instance, a conceivable approach to cannabis would be a licensing system for the production and sale, whereas, for opiates, a more medical approach seems appropriate, at least during the transition period from prohibition to legalization. Regulations will have to be developed that provide the best options for prevention, the development of safer patterns of usage and for other health aspects.

Furthermore, the INCB argues that the high economic and social costs stemming from the use of alcohol and tobacco should serve as a warning. It seems that the enormous costs of investigation, prosecution, punishment and imprisonment are conveniently disregarded, which, combined, comprise a substantial part of the social costs of the current system.

Friedman, Becker and other leading economists also advocate legalization, since prohibition is contrary to the laws of supply and demand and, for this reason alone, is impossible to enforce. An approach better geared to market forces would provide better opportunities to exert influence.


Re 16c; Argument in favor of legalization, according to the INCB:


Legalization would remove evils created by drug laws, such as corruption, violence and drug-related crime, which are worse than the drugs themselves.

INCB's counterarguments:

  • 1. Crime committed under the influence of drugs, as well as chronic violence in the family and in the community, may increase.
  • 2. The assumption that organized criminal activity and related violence would significantly decrease may underestimate the capacity of organized crime to adjust to changing conditions without significant loss of economic, political or social power.

The widespread and popular perception that drugs cause crime is unfounded. Opponents of prohibition have always pointed out that it is the criminalizing effect of existing drug laws that has engendered the catastrophic increase in 'drug-related crime', and that this is not caused by the drugs themselves 5.

In countries where drugs are most severely prohibited, the percentage of the population that is imprisoned in connection with drugs is extremely high compared to the Netherlands, without improving the situation with respect to safety or drug problems.6

As to organized crime, it is obvious that legalization will not erase this phenomenon completely, but also that this consideration comprises an extremely feeble argument for continuing to criminalize users of and traders in drugs.

Another aspect that should not be underestimated is that many (small and large) traffickers would prefer to be able to conduct their businesses legally. In a license system as exists for alcohol in most countries, traders have a vested interest in refraining from criminal activities.


The case for legalization


In a recent survey, MacCoun et al. have analyzed the content of the drug legalization debate in essays in U.S. newspapers.7 Comparing their list of arguments pro and contra with the INCB report, it is striking that the INCB has fairly represented the arguments pro prohibition. The same cannot be said of the arguments pro legalization. A number of important arguments has been left out altogether or was feebly stated.

Because it is not possible in the scope of this paper to discuss all aspects and arguments in a manner that does justice to the complexity of the issue, on every aspect of which a wealth of literature exists, we hereafter limit ourselves as follows: we will discuss the health aspects more extensively and just mention one fundamental argument the INCB has left out: that prohibition infringes on personal and civil rights8 and that government should not interfere in its citizens' choice of intoxicants 9.

It is important to stress the public health aspects of the issue, since these make up the decisive argument in the debate. Apart from morality and ideology, for most people only the conviction that it is in the interest of public health to prohibit addictive psychoactive drugs, is necessary, sufficient and acceptable ground for prohibition and all the concomitant misery. Inevitably however, it is becoming clear that the health argument is void. Prohibition has been counterproductive, not only with respect to the combat against the drug trade, but also in its primary objective: to protect the population against the risks of drug abuse. In the scientific forum of public health gradually some recognition of this unhealthy situation is arising.10

The perception that prohibition is good for public health may still be harbored because it is very difficult not to lose sight of the difference between the actual effects of the drugs themselves and the effects of prohibition. The myth has been created that hard drugs unavoidably have a destructive effect on the users and on society. In actuality, the greatest damage connected to drug use is caused by the drugs policy. Firstly, repression elicits the use of higher concentrations and promotes unsafe patterns of usage. The marginal conditions under which many problematic drug users are forced to live intensify the social and health problems and lead to criminal activities. Moreover, prohibition does not only exacerbate health problems, but in contrast to a system of regulated availability, impedes their detection and treatment. The 'hardest' data in this respect, the drug related death rate, gives a clear picture of the harm prohibition is causing to public health.

Of course, it is necessary to be aware of the health risks of drugs, of which the direct psychopharmacological consequences and the spread of dependence and problematic dependence are the most important. But there is also a need to know whether safe usage patterns exist, in what circumstances and for how many users. Nicholson (1992) has stated that 80 - 90 % of drug consumption in the USA is use and not abuse. "The major exceptions are tobacco consumers, 90 % of whom are abusers. The next highest "potential for abuse" comes with cocaine (and its freebase crack) which has an abuse rate of somewhere between 10 and 25 percent. Virtually all other drugs are used by 90 % of the people who consume them and abused by the remaining 10 %."11

It should be kept in mind however, that there is no way of measuring these risks in an absolute sense, independently from the sociocultural context, which includes the legal status and the regulatory regime of the drugs. As stated before, a situation of repression is not conducive to safe usage patterns and to health care and prevention.

From the perspective of public health the question should not be whether a certain drug carries acceptable or unacceptable health risks, but which regulatory regime provides the least risks for public health and society in general.

No drug is addictive to such an extent, that prohibition could be useful. Even if a substance existed that were capable of producing the mythological "instant addiction", which is not the case, even then prohibition would not be the best policy to prevent abuse and dependence. (Besides, consumers are not likely to have much interest in such an intoxicant, except when they are in the power of the drug trade.)

Many people who agree with this reasoning, are nevertheless uncertain about the consequences of prohibition. The idea that greater availability of dependence producing drugs produces a greater number of addicts is widespread, but its foundation is weak. Greater availability does not automatically lead to more use or abuse. Even in the existing situation in which drug use easily leads to social marginalization, isolation and criminalization, all of which are not conducive to safe and controlled use, most people who start using do not continue, and a majority of those who get addicted manage to learn controlled use or stop altogether without treatment. Although data derived from addicts in treatment or in the judicial-penitentiary system provide little reason to optimism, research in other populations of drug users has produced a totally different picture of the natural course of drug use.12

If the objective is to minimize harm to public health and protect vulnerable people as much as possible from the health risks of intoxicants, it follows that production of and trade in these substances should not be placed in the hands of criminals. Because of the very risks connected with addiction to psychotropic substances, governments should see it as their duty to regulate the production, trade and distribution of these substances by administrative law - in a similar manner as alcohol and tobacco, drugs which are at least as addictive and entail higher health risks.

As this is being recognized to an increasing extent (in the circles of drug experts and policy-makers, especially policy-makers of large European cities), the political base of support for prohibition is becoming increasingly shaky. It is not possible to maintain the argument that 'these substances are terribly addictive and so dangerous to public health that they must be banned'. Based on the current knowledge on the matter, only one conclusion can be reached in a scientific debate: public health benefits more from regulated availability of addictive substances than from prohibition.13 Legalization offers no immediate solution for dependency problems, but does create a situation with better conditions for effectively doing something about these problems.

In a rational debate the issue seems clear. Politicians, however, are confronted with a major problem: to date, the most important motive of prohibition has been the inflated and politically exploited fear of the addictive power of drugs. How does a politician go about explaining to the voters that they have been misled about drugs all along and systematically? In most countries, sticking your neck out in favor of legalization of drugs is tantamount to political suicide.


Re 17; practical questions concerning legalization.


In this section, the Board states the following:

Advocates of legalization have not adequately dealt with the tough practical questions that must be answered if proposals for legalization are to be taken more seriously.

A series of questions follow under 17 a to h. For the reader's convenience, we have abridged the questions somewhat:

  • a. What drugs would be legalized? According to what criteria? Who would determine those criteria?
  • b. What potency levels would be permitted for the various substances?
  • c. What would be done to control the adverse consequences of non-medical use? How would the marketing of such new drugs be dealt with?
  • d. Would production be limited?
  • e. Would the private sector or the public sector be involved? How would price, purity and potency levels be established and regulated? Would advertising be permitted and by whom?
  • f. Where would such drugs be sold and how (e.g. over the counter, through the mail, vending machines)? Would the sale of such drugs be limited to dependent abusers? What about experimenters and those not yet granted dependent status?
  • g. Would there be age limits (e.g. access to cannabis at age 16, to cocaine at age 18 and to heroin at age 21)?
  • h. What agency would enforce the law? What penalties and sanctions would be established for violations and how would the risks of corruption and continued 'illicit traffic' be dealt with?

First, it should be acknowledged that posing these questions in such a clear, explicit manner in this context is a major step in the right direction. By doing this, the INCB provides, in fact, a springboard for an earnest exploration of the issues involved in a systematic, careful transition to a situation of regulated availability of substances now illicit. On the other hand, the Board does appear rather naive and unknowing, as if these questions have never been contemplated and as if no one has any experience with these questions. (Under #19, incidentally, one rather tendentious example is given: the situation in China after the Opium War in the previous century when 'the country was forced to accept the free availability of opium'.)

In response to the INCB's questions, it is apparently necessary to assert that relevant experience does, in fact, exist and historical studies as well as those pertaining to the contemporary situation are available14 and that abolition has been successful in a number of countries and for different substances.15

The most important and extensive experience with the transition from a system of prohibition of an addictive psychotropic substance to regulated availability of that substance was gained in the US after 1933, when Prohibition was repealed. In general, alcohol was still widely viewed as a highly addictive and harmful substance, but for various reasons, enough social support was generated so that Prohibition, instituted in 1920, was abolished. Mostly based on the recommendations by the Institute of Public Administration under John D. Rockefeller Jr.'s guidance, a flexible system was selected which allowed continuous monitoring and adjustment. Within a national system, each state - and sometimes each separate county - controlled distribution through the 'state stores' while the production was privatized. Public health interests played virtually no role. The most important argument was that the profit motive had to be eliminated - that is, for sales; Rockefeller did not find it necessary to do the same for production.

By way of comparison: in Finland, both the production and sale of alcoholic drinks are controlled by state monopoly. This provides better possibilities for including public health aspects in policy.

This literature is quite instructive and pertinent to the situation in Western countries with respect to illicit drugs. Unlike in 1933, it is not a single substance that is at issue, but a number of groups of substances. Thus it is evident that a multiform approach should be developed in which a substance like cannabis that entails low health risks would be regulated in a manner as is now customary for alcoholic drinks. Other avenues should be taken for controlling substances with higher health risks, certainly in the transitional stage.

A separate arrangement would be conceivable for new substances, with special attention being paid to scientific research and medical guidance before a substance is admitted. A system such as the one that currently applies to 'List II substances' of the Dutch Opium Act [hemp products] may be appropriate, because it allows flexibility in toleration and regulation.

In the preliminary stages, some fundamental political choices have to be made. If public health interests are to have the highest priority and if the profit motive is to be completely eliminated, as with alcohol in Finland, then the obvious choice would be to institute a state monopoly for production and trade alike.

For each substance or group of substances, an adequate arrangement can be made which is flexible enough to allow adjustment if that appears necessary or desirable.

The policy must be geared towards promoting use of lower concentrations. Ways to achieve this include public education, packaging and price-setting.

In short, it will require intensive preparation, but it is possible to draft a differentiated set of rules for the production and distribution of the various drugs now illicit, with acceptable levels of risk to public health.

After this general discussion of the objections raised by the Board under #17 a-h, we would now like to discuss some of the stated points in more detail, focusing on their specific relation to cannabis, since a licensing system for cannabis products is the most topical issue in our country.

The supply side of the cannabis market will have to be brought under the control of a government agency in a subsequent stage. This agency must contribute towards decision-making concerning production sites and the granting of licenses to cannabis cultivators. The agency will also have to supervise production and the product, assigning the product a quality mark indicating potency, etc., and carry out other supervisory, attendant and advisory tasks with respect to cannabis. Cannabis would only be allowed to be sold by businesses licensed to do so. One of the authors (ML) has introduced a draft bill for this purpose.16

Based on current knowledge of actual patterns of cannabis use, setting a limit for the maximum THC content (tetrahydrocannabinol, the most active ingredient in cannabis) cannot be said to be desirable. After all, there is virtually no demand in the Netherlands for stronger cannabis. This is a sign that the market has worked in a self regulating way.

The potency of a cannabis product should, however, be clear to consumers. Users also have the right to be spared additives and the use of harmful pesticides in production.

As regards cultivation: it seems reasonable to set a limit of five cannabis plants for personal use. Cultivation of more plants would then automatically be seen as commercial cultivation and would be exclusively allowed with a license.


Re 18; The INCB points out the ambiguity of the terms 'soft' and 'hard' drugs.


The Dutch legal system draws a distinction between legal drugs (alcohol and tobacco) and illicit drugs. The latter drugs (soft and hard drugs) are subsumed under the Opium Act. The Opium Act contains two lists:

  • List I: substances entailing an unacceptably high risk level;
  • List II: hemp products.

When the Dutch government uses the term 'soft drugs', it is referring to List II substances.

Apparently, the legislative authorities feel that hemp products are not substances posing an unacceptably high risk. The comparison with 'hard and soft liquor' is not as misplaced as the Board thinks. In many countries, clearly different sets of rules apply to weak and strong alcoholic beverages.

A comparison of the figures for cannabis use and health care related to cannabis in the Netherlands17 with those pertaining to legal drugs such as alcohol supports the classification of cannabis as a substance with an acceptable risk level.


Re 19; In this section, the Board claims the following:


It appears that the basic aim of the advocates of legalization is to allow the recreational use of narcotic drugs and/or psychotropic substances.

This is only partially true. Other motives play a large role: the injustice done to users and dependent people; the threat to the constitutional state and the economic order, caused by the superior financial strength of drugs criminality, thanks to prohibition. It is, however, not within the scope of this paper to elaborate on this topic.

Apart from that, it can be seen as a (small) breakthrough that the report even uses the term 'recreational use of narcotic drugs and/or psychotropic substances'. The climate in most countries in the past years was such that a researcher who wanted to qualify for a government grant had better not use the formulation 'recreational use of drugs'.


The INCB continues:


It must be noted that such a step would create a legal demand for those drugs and, consequently, the current restrictions in respect of supply would need to be abolished or fundamentally changed. History offers a good example of the consequences of such a change. The result would be similar to the situation of China in the nineteenth century, when, after the Opium War, the country was forced to accept the free availability of opium. Following that action, the number of opium addicts in the country increased drastically to an estimated 20 million.

This description of complex political and social events such as the Opium Wars in China is not at the level that should be expected of the Board.

The magnitude of dependency problems of a certain substance and the degree to which controlled use is possible are not, as implied here, directly determined by the chemical properties of that substance. There are a number of factors that have an impact on the percentages of people who

  • 1) use a certain drug once,
  • 2) continue recreational use of the drug,
  • 3) become dependent on it, and
  • 4) get into troubles because of their dependency. The chemical properties of the substance constitute one of the factors, but other ones, such as the control or prosecution policy and social and cultural circumstances, are more important.

The example of opium in China in the middle of the 19th century has little relevance to the current situation in developed countries. It can be instructive, but in a different manner. After all, the Opium Wars cannot be considered an example of a transition planned according to public health interests. Traditional patterns of use were disturbed or supplanted, solely for western economic and trade interests.

Moreover, insufficient reliable epidemiological information on opium use in China before and after the Opium Wars is available. Secondly, even if this information were available, it is not clear how to apply this to other countries 150 years later.

What we do know is that since 1976, the year that cannabis was decriminalized, cannabis use has remained quite steady in the Netherlands, whereas it has grown in other European nations and the US, in spite of or as a result of increased repression. The lifetime prevalence18 of cannabis use in the US is higher than in the Netherlands. Unsafe patterns of use have increased in the countries which crack down on hard drugs the hardest, whereas in the Netherlands, instead of 'shooting up', relatively more people take drugs by 'snorting' or 'chasing the dragon'.19


Re 20 and 21; Here, the Board suggests that it would be absurd to maintain the system of strictly regulating medicines while the more addictive substances heroin or cocaine would be legalized.


This suggests a disparity that does not exist. All addictive substances should be regulated, but each in its own proper way. (This line of reasoning would, incidentally, be as accurate for alcohol and tobacco, but the Board does not pursue that argument.)


Re 22 and 23; Here, the Board rightly states that the debates on legalization are centered on cannabis.


The assertion that the production of so-called 'hash oil' could pose a threat is not, however, indicative of much knowledge of the field. Consumption of this sticky substance which made its way to the Netherlands from the US has never caught on and so this product has virtually disappeared from the market. The comments about high concentrations of THC (active ingredient of cannabis) in Dutch hemp are probably based on similar claims made by the Dutch CRI (Central Criminal Investigation Information Service). It is true that Dutch hemp has developed into a high-quality product since the seventies, but research into the concentrations of THC in cannabis sold does not justify speaking of alarmingly high concentrations.


Re 24 and 25; Nonetheless, the INCB grew interested in the results of the Dutch drugs policy in general and of its cannabis policy in particular.


There is reason enough to be interested. In the years since 1976, the Netherlands has been the only country which has successfully managed to normalize the use of what was previously an illicit substance.

Referring to the Preamble and Articles 22, 23 and 28 of the Single Convention, the Netherlands can rightfully add to the international debate that our experiences are of such a nature as to refute the assumption that a ban on the production, distribution of and trade in cannabis is the best measure for achieving the stated aims (see 13-15). The Netherlands can add the following:

The 'policy of tolerance' that the Netherlands has pursued since 1976 concerning the recreational use of cannabis has positively influenced public health and welfare, as may be evident from the reasonable degree to which the Netherlands has succeeded in achieving and maintaining a separation of the markets, the stabilization of the number of cannabis users and the low number of problematic hard drug addicts. Broad layers of society have come to take a relaxed attitude to cannabis. If a young person is caught smoking cannabis, it no longer automatically leads to unnecessary and harmful phenomena such as stigmatization, marginalization and/or psychiatrization (being considered mentally ill), as still occurs on a large scale in surrounding countries and the US. In the case of problematic use, everyone, even those from the poorest classes, can apply for a variety of easily accessible treatment programs.

Legalization of production and distribution of cannabis will have a further positive effect on public health and welfare, because it would allow introduction of supervision of the product and production process in order to protect the consumer. It would facilitate safe patterns of use (e.g. through regulations concerning packaging and concentrations that encourage moderation and prudent use), prevention and public education.

If production, trade and distribution are regulated by administrative law, illicit trafficking, smuggling and high profits for organized crime can be better deterred or prevented.

To conclude, a great deal of fundamental criticism can be made about the report, but that is less important than the impetus it can give to an international debate about the legalization of drugs and about the value of the international conventions. The INCB Report poses a challenge: to demonstrate that it is, in fact, possible to provide rational and reasonable answers to the questions about the transition to legalization.


Freek Polak (1942) is a psychiatrist and psychoanalyst. In addition to his private practice, he has worked at the Amsterdam and the Zaanstreek/Waterland Institutes for Medical Psychotherapy, and since 1990 in the Mental Health Service and the Drugs Department of the Amsterdam Municipal Health Service. He has written on various aspects of psychotherapy in Tijdschrift voor Psychotherapie [Magazine for Psychotherapy] and Maandblad Geestelijke Volksgezondheid [Public Mental Health Monthly].

Mario Lap (1952) is responsible for policy and legal matters at the NIAD, Netherlands Institute on Alcohol and Drugs, Utrecht. Furthermore he is the editor on policy and legislation within the Dutch Focal Point of the European Monitoring Center on Drugs and Drug Addiction and the author of a draft of a cannabis law.

Among his publications:

Het recht op roes [the Right to intoxication], 1992, TADP [Magazine for Alcohol, Drugs and other Psychotropic Substances].

Een vergunningenstelsel voor cannabis, [A licensing system for cannabis], 1993, Justiti‰le Verkenningen [Magazine of the Ministry of Justice], 19, 111-118.

Van nederweed en koffieshops [On dutch marijuana and coffeeshops], 1993, Proces [Magazine for penal law and criminology].


NOTES


The authors wish to express their gratitude to Peter Cohen, Erik Fromberg and Jos Silvis for their valuable comments.

  • 1. A previous version has been published in the "Tijdschrift voor alcohol, drugs en andere psychotrope stoffen",18, 216-224. (Magazine on Alcohol, Drugs and other Psychotropic Substances)
  • 2. Too little is known about the history and meaning of these conventions. In recent years, the value and utility of these world-wide regulations which allow no latitude for adaptation to regional circumstances, have been the subject of doubt in increasingly larger circles. In countries which already had drug problems, as well as in those countries where they still barely existed, problematic drug use did not reach the catastrophic proportions of today until prohibition was actually implemented.
  • Cohen argues that such a global regulation aimed at totally eradicating an undesirable phenomenon - which no one would expect to work for any different problem - should be seen as a fossil, an anachronism, and that keeping it intact can only further augment the damage. Peter Cohen, "Re-thinking Drug Control Policy: historical perspectives and conceptual tools", lecture presented to UNRISD, United Nations Research Institute for Social Development, Geneva, July 1993; in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • 3. The failure to differentiate between drug use and drug abuse has been criticized by, among others:
  • David F. Duncan and R. S. Gold, 1981, Drugs and the whole Person, MacMillan.
  • Thomas Nicholson, 1992, The Primary Prevention of Illicit Drug Problems, The Journal of Primary Prevention, 14, 275-88,
  • David C. Lewis and Eric M. Klinenberg, 1993, Taking a Measure of U.S. Drug Policy, in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • 4. H. Kuiper: Prevalentie van Cannabisgebruik in Nederland [Prevalence of Cannabis Use in the Netherlands], 1992, NIAD [Netherlands Institute on Alcohol and Drugs], Utrecht. Kerngegevens peilstations-onderzoek naar riskant middelengebruik onder scholieren vanaf 10 jaar [Basic data on substance use among schoolgoing youngsters from age 10 and up], 1993, NIAD, Utrecht.
  • 5. "Research findings show consistently that the psychopharmacological influence of drugs themselves appears to be a minor factor in violence." from David C. Lewis: Medical and Health Perspectives on a Failing US Drug Policy, 1992, Daedalus, 121,3, 165-94.
  • In this respect Lewis refers to:
  • Paul J. Goldstein et al., 1989, Crack and Homicide in New York City, 1988: A Conceptually Based Event Analysis, Contemporary Drug Problems, 651-87.
  • James A. Inciardi, 1990, The Crack-Violence Connection Within a Population of Hard-Core Adolescent Offenders, in Marion De La Rosa, Elizabeth Y. Lambert and Bernard Gropper, eds., Drugs and Violence: Causes, Correlates and Consequences, KNALDE Research Monograph 103, US DHHS Pub. No. ADM 91-1721.
  • 6. Nils Christie, 1993, Crime Control as Industry, Routledge.
  • 7. Robert J. MacCoun, James P. Kahan, James Gillespie and Jeeyang Rhee, 1993, A Content Analysis of the Drug Legalization Debate, The Journal of Drug Issues, 23(4), 616-29.
  • See also:
  • Rod L. Evans and Irwin M. Berent, Editors, 1992, Drug Legalization, For and Against, Open Court Publ. Cy.
  • Arnold S. Trebach and James A. Inciardi, 1993, Legalize It? Debating American Drug Policy, American Univ. Press.
  • 8. Jos Silvis, Aart Hendriks and Norbert Gilmore, Editors, 1992, Drug Use and Human Rights in Europe, Report for the European Commission, Utrecht University and McGill University, Montreal.
  • Lorenz Böllinger, 1990, Möglichkeiten und Grenzen der Legalisierung und Entkriminalisierung des Betäubungsmittelgebrauchs im Rahmen einer Novellierung des BtMG, Archiv für Socialpolitik e.V. Frankfurt am Main. [Possibilities and limitations of the legalization and decriminalization of drug use with regard to a renewal of the German Drug Act].
  • Battaglia, Bisiou, Buhler, Dubois, Gonz lez, Labrousse ,1992, Drogues et Droits de l'Homme, Ligue Suisse des Droits de l'Homme, GenŠve. [Drugs and Human Rights, Swiss Human Rights League].
  • 9. Assemblée Nationale Constituante, 1789, Déclaration des droits de l'homme et du citoyen, Section IV, "La liberté‚ consiste … pouvoir tout ce qui ne nuit pas … autrui." Paris. [National Constituant Assembly, 1789, Declaration of Human and Civil Rights, 4th Section, "Liberty consists of being able to do anything that does not hurt anyone else.". Paris.
  • 10. David F. Duncan, 1993, Using Epidemiologic Measures to Assess Drug Policy, in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • David C. Lewis, 1992, Medical and Health Perspectives on a Failing US Drug Policy, Daedalus, 121(3), 165-94.
  • David C. Lewis and Eric M. Klinenberg, 1993, Taking a Measure of US Drug Policy, in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • Thomas Nicholson, 1992, The Primary Prevention of Illicit Drug Problems, The Journal of Primary Prevention, 14, 275-88.
  • Public Health Association of Australia, 1993, Principles and Actions for Drug Policy Reform, Draft Policy Statement, in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • 11. Nicholson, 1992, op.cit., p.278.
  • 12. Peter Cohen, 1989, Cocaine use in Amsterdam in non-deviant subcultures, University of Amsterdam.
  • Jean-Paul C. Grund, 1993, Drug use as a social ritual, IVO [Addiction Research Institute], Rotterdam.
  • H. K. Klingeman, 1991, The motivation for change from problem alcohol and heroin use, British Journal of Addiction, 85, 727-44.
  • H. K. Klingeman, 1992, Coping and maintenance strategies of spontaneous remitters from problem use of alcohol and heroin in Switzerland, International Journal of the Addictions, 27, 1359-88.
  • Lee N. Robins, 1993, Vietnam veterans' rapid recovery from heroin addiction : a fluke or normal expectation? Addiction, 88, 1041-1054.
  • Bruce J. Rounsaville and H. Kleber, 1985, Untreated opiate addicts - how do they differ from those seeking treatment? Arch. Gen. Psychiatry, 42, 1072-1077.
  • R. Stall and P. Biernacki, 1986, Spontaneous remission from the problematic use of substances: An inductive model derived from a comparative analysis of the alcohol, opiate, tobacco and food/obesity literature, International Journal of the Addictions, 21, 1-23.
  • Dan Waldorf, Craig Reinarman and Sheigla Murphy, 1991, Cocaine changes - the experience of using and quitting, Temple Univ. Press.
  • 13. Erik Fromberg, 1993, Prohibition as a necessary stage in the acculturation of foreign drugs, in Heather, N., Ed., Psychoactive Drugs and Harm Reduction, from faith to science. Whurr Publishers Ltd, London.
  • Public Health Association of Australia, 1993, Principles and Actions for Drug Policy Reform, Draft Policy Statement, in The Faces of Change, 1993, Policy Track Manual for the Seventh International Conference on Drug Policy Reform, Washington D.C., the Drug Policy Foundation.
  • 14. A selection from the literature:
  • Virginia Berridge and Griffith Edwards, 1981, Opium and the People, Yale Univ. Press.
  • Harry G. Levine, and Craig Reinarman, 1991, From Prohibition to Regulation: Lessons from Alcohol Policy for Drug Policy, The Milbank Quarterly, 69, 3.
  • David F. Musto, 1991, Opium, Cocaine and Marijuana in American History, Scientific American.
  • Ethan Nadelmann, 1989, Drug Prohibition in the U.S.: Costs, Consequences and Alternatives, Science, 245, 939-47.
  • Nadelmann, Ethan, 1992, Thinking Seriously About Alternatives to Drug Prohibition, Daedalus, 121, 85-132; and other publications of the Princeton Working Group on the Future of Drug Use and Alternatives to Drug Prohibition.
  • Ewald Vanvugt, 1985, Wettig Opium [Legal Opium], Uitgeverij In de Knipscheer.
  • 15. Sebastian Scheerer, 1993, Aus der Geschichte lernen? Einige F„lle in denen die Prohibition schon mal abgeschafft wurde, in Menschenw�rde in der Drogenpolitik - Ohne Legalisierung geht es nicht! [Learning from History? Some Cases in which Prohibition has already been Abolished, in Human Dignity in Drug Policy - Impossible without Legalisation!], Red. I.I.Michels en H.St"ver, 'akzept', Konkret Literatur Verlag, Hamburg.
  • 16. Mario Lap, 1992, Concept Cannabiswet. Een ontwerp voor cannabiswetgeving naar het model van de Drank- en Horecawet met dien verstande dat ook de produktie van cannabis is geregeld, met bijbehorend concept voor een Memorie van Toelichting" [Draft Cannabis Act, a Bill for Cannabis Legislation based on the Model of the Dutch Law concerning the Supply of Alcoholic Beverages, on the understanding that the Production of Cannabis is also Regulated, with an accompanying Draft for a Memorandum of Explanation], NIAD, Netherlands Institute for Alcohol and Drugs, Utrecht.
  • 17. Els Noorlander, 1992, Cannabisgebruik in Nederland gezien vanuit de hulpverlening, Amsterdams Drugs Tijdschrift [Cannabis Use in the Netherlands from the perspective of health care, Amsterdam Drug Magazine].
  • 18. Lifetime prevalence: the percentage of people in which the phenomenon under study occurs in the course of their lives, from birth to the time of assessment.
  • 19. Jean-Paul C. Grund, L. Synn Stern, Charles D. Kaplan, Nico F. P. Adriaans and Ernest Drucker, 1992, Drug Use Contexts and HIV-Consequences: The Effect of Drug Policy on Patterns of Everyday Drug Use in Rotterdam and the Bronx, British Journal of Addiction's special edition on HIV/AIDS, 87, 381-92.

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Our valuable member Freek Polak has been with us since Sunday, 19 December 2010.

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