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Articles - Law and treaties
Written by Transnational Institute   
Monday, 22 July 2002 00:00

Time for breakthrough
Polarisation and paralysis in global drug policy
July 2002, Transnational Institute

The big trends in drug policy over the past decade reveal two opposing tendencies: one tends towards tolerance and pragmatism and has its centre of gravity in Europe, while the other under US guidance tries to reinvigorate a zero-tolerance mentality using more repressive means. The polarisation has led to paralysis on the UN level. A more assertive European role, combined with the UNDCP reform process and the evaluation in April 2003 could provide an opportunity for a breakthrough.

These diverging trends start from a shared recognition that all combined efforts thus far - eradication, crop substitution, drug seizures, demand reduction - have failed in terms of global impact. There may be a wealth of good practices on the local level, but there is barely any reduction in either supply of or demand for illicit drugs. In the consumption markets, wholesale and retail prices show a downward trend while purity is rising, which means there is no shortage on the market. Consumption patterns and youth culture fashions are continuously changing but there is no indication that overall levels of consumption of illicit substances are diminishing.

Some conclude that this recognition should lead to a global evaluation: re-assessment of the applied principles, opening of the debate, more space for experimentation with other approaches and a focus on more realistic aims in terms of reducing drug-related harms. Others, however, maintain thatthe reason the 'medicine' has not worked is that not enough has been applied and that the logical response should be to apply a stronger dose: re-affirm political commitment, oppose any tolerance, close ranks behind a 'get serious' approach, set deadlines and don't be afraid to dirty your hands to achieve concrete results, "A drug free world - We can do it!"

At the UN level, the polarisation has caused paralysis. The United Nations International Drug Control Programme (UNDCP) has actively promoted the re-affirm discourse, suffocating attempts to open up the debate, censoring critical remarks in its own publications, trumpeting doubtful success stories, and punishing dissenting views among its staff.(1) The International Narcotics Control Board (INCB) has maintained a very strict interpretation of the UN conventions and regularly appears to overstep its limited mandate by passing judgement on sovereign states whose policies take a slightly different direction and exercising pressure on them to get back in line. As for the UN Commission on Narcotic Drugs (CND), it is clear the more liberal minded countries are taking a low profile. Careful not to fuel tensions that might endanger carefully conquered ground for experimentation, they opt to keep the debate as general and diplomatic as possible, avoiding open controversy in the CND over their policy directions.

The 1998 UNGASS on Drugs

The polarisation between the divergent trends became visible at the United Nations General Assembly Special Session (UNGASS) on Drugs, which took place in June 1998. The UNGASS motto A Drug Free World - We can do it!' recycled the illusion that with sufficient commitment and a bold strategy it was possible to eliminate illicit drugs from the planet completely. To reach that goal, during the months before UNGASS, UNDCP elaborated an ambitious plan called SCOPE, the Strategy for Coca and Opium Poppy Elimination by 2008.(2)

UNDCP expected UNGASS to approve SCOPE, which called for a mix of alternative development projects and eradication operations wiping out illicit crops in Colombia, Bolivia, Peru, Burma, Laos, Vietnam, Afghanistan and Pakistan, the eight countries where coca and opium production is concentrated: "After three decades of experience, the international community is now equipped with tested methodologies and the know how to tackle the problem in the producing areas. The strengthening o f the drug control mechanisms in the regions concerned has paved the way for full scale interventions and most producing countries have adopted well-defined national strategies and action plans that are ready for implementation.(3)

 

The SCOPE plan, however, was not endorsed by the General Assembly. At the Vienna preparatory meetings, the proposal was criticised harshly by several member states, which prevented the plan even getting onto the UNGASS agenda. SCOPE disappeared from UNDCP docu ments and no longer exists today. The Political Declaration from UNGASS still reflected some of its principles, by welcoming "the global approach by the United Nations International Drug Control Programme to the elimination of illicit crops" and stating that all countries should commit "to working closely with the Programme to develop strategies with a view to eliminating or reducing significantly the illicit cultivation of the coca bush, the cannabis plant and the opium poppy by the year 2008.(4)

After having lost the opportunity to use UNGASS to re-assess current anti-drug policies, several countries tried to safeguard the concept of 'shared responsibility' between the North and South, developed in the eighties. They pressed for the elaboration of an Action Plan for demand reduction, which should achieve measurable results by 2003, acknowledging the basic fact that if the world is not able to reduce demand for illicit drugs, it is an illusion to think that supply can be eliminated.

A New Escalation in the US

Around this same period (1997/98), a 're-affirmation' push was taking place in the United States. Pressure increased to intensify the chemical War on Drugs worldwide, while the US Congress allocated resources for the promotion of a biological front. The SCOPE vision and the target date of the year 2008 set by UNGASS blended with the aggressive nature of the Western Hemisphere Drug Elimination Act (approved by US Congress in October 1998) into grand master plans for the Andean region. The offensive focused on Bolivia - the With Dignity! plan - and on Colombia, with massive aerial spraying operations under the aegis of Plan Colombia, the Andean Regional Initiative and recently the inclusion of Colombia in the global war on terrorism. On the consumption side of the drug chain, an escalation also became visible. During the nineties, a record number of people were arrested in the US for consumption (something already decriminalised in many countries around the world) or for possession of small quantities. Human Rights Watch calls for "the need to move beyond the war on drugs and to begin to dismantle the racially unjust `drug gulag' it has spawned.(5) "Human Rights Watch does not challenge the public's decision to use criminal sanctions in its effort to curtail drug abuse and drug trafficking. But the use of the criminal sentences is subject to important human rights constraints. To be consistent with internationally recognized human rights standards, criminal sanctions must be both humane and proportional to the gravity o f the offense.(6) The dramatic prison situation, the rapid spread of HIV in the absence of a clean needle policy, and the effects of the extremely repressive policy approach especially on black communities is contested by broad social sectors.

Europe Takes Distance

In Europe, meanwhile, another approach gained ground. Expected to contribute the alternative development components to accompany the escalation in the Andes, Europe instead took distance from the US-led War on Drugs. The blurring of lines between development and eradication, environmental concerns over chemical spraying, and the over-emphasised military force in the 'carrot and stick' balance, made European donors reluctant. US officials expressed their disappointment: "Everyone was looking for the rest of the world, particularly the Europeans, to do the soft side. We have done the military side. You can't do one without the other.(7) Apart from verbal disagreements and donor reluctance, Europe has been also reluctant to directly challenge the US and has had great difficulty defining an alternative policy framework for the drugs production side.

Domestically, however, the Harm Reduction concept has spread very fast in recent years and has now become the basis for a rational and pragmatic drug policy in almost every European Union country and several others like Australia, New Zealand, Canada and Brazil. Practices like decriminalisation of consumption, leniency in law enforcement towards cannabis and towards possession of other drugs for personal use, and needle exchange programmes are commonplace nowadays. The more controversial steps further along the path of leniency, like the `coffee shops', heroin maintenance programmes, XTC testing, etc, have received acceptance beyond the pioneer countries, Switzerland and the Netherlands, and are under consideration or in preparation in several other countries. Compared with the tense situation at the time of the 1992 Maastricht Treaty, Europe has advanced rapidly on these issues. In several countries, debates are now taking place that openly question the wisdom of prohibition of cannabis products and open up the discussion to look at legal models for the regulation of that illicit market.

Room for Manoeuvre

There is no question that sooner or later the tolerance trend guided by the Harm Reduction philosophy will run into the limitations of the UN conventions. It already touches the very edges of the letter and spirit of some articles. All steps taken thus far are defendable in that they adhere to the 1961 Single Convention as well as most of the stricter obligations agreed to in the 1988 Vienna Convention.(8) Still, the INCB warns in its 2001 report of an increasing tension between expanding tolerance practices and strict adherence.(9) If the countries committed to the search for pragmatic solutions want to advance any further, it is becoming urgent that they begin to question openly the straitjacket of the conventions. The obstacle to considering any changes in that direction is the consensus-driven functioning of the CND. With the current polarisation, it is difficult to imagine that any agreement could be reached. Among the fervent defenders of the prohibitionist regime, too, considerable differences exist as to the cultural and political roots of their zero-tolerance position. In Sweden, for example, it is primarily rooted in a social democratic tradition where the state is supposed to protect its citizenry against any threat perceived to undermine the fabric of society. In predominantly Moslem countries, the rise of Islamic fundamentalism and the accompanying strong religious laws against any drugs, including alcohol, has resulted in stronger opposition from those states to any deviation from zero-tolerance within the CND. Several African cannabis-producing countries are taking strong positions because they aspire to be included in special preferential trade mechanisms and developmental aid schemes tied to drug control objectives already in place for several Latin American and Asian countries. Then there is the United States, the principle force promoting a global prohibitionist regime, which has a zero-tolerance position rooted in Christian fundamentalism and an aspiration to world leadership, leading it to blur the drugs issue with other foreign policy and security agendas.

With this blend of motives dominating the reaffirm camp, there is little possibility of negotiating a new consensus on the basis of rationality and pragmatism. There may still be possibilities, however, to break the impasse at the UN level and expand space for policy diversity while avoiding the necessity to reach a new consensus. The CND practice of proceeding strictly on the basis of consensus was adopted only when the US lost its voting power for not having paid their UN dues. CND resolutions do not necessarily require consensus and can be helpful to clarify the interpretation of provisions of the conventions and to stretch the latitude countries have to develop a different national drug policy. With regard to formal amendments to the conventions themselves, all parties do have to agree. Ultimately, the only formal escape route out of the consensus stalemate here would be for countries to denounce the conventions. Informally, groups of countries can choose to test the boundaries of UN conventions by taking the leniency approach beyond the point where this could be justified under the internationally agreed drug control principles, and then `just take the heat'. Clearly, only some countries can afford politically to play with those margins. The INCB may not have the mandate or power to impose any sanctions, but the US still maintains its disciplinary system of certification and has several instruments of pressure. These obstacles are further explored in the other article in this edition.

The divergent global policy trends are starting to lead to serious inconsistencies. At the CND in March this year, Morocco, for example, raised questions about the possible implications of the lenient cannabis consumption policy trend in Europe for Morocco's policy with regards to its own vast cannabis cultivation. According to the INCB Report 2001: "It is disturbing that, while many developing countries have been devoting resources to the eradication o f cannabis and to fighting illicit trafficking in the drug, certain developed countries have, at the same time, decided to tolerate the cultivation of, trade in and abuse o f cannabis." Indeed, there is a contradiction between liberalisation on the consumption side while maintaining or even increasing international pressure to eradicate drugs crops in traditional production regions of the South. These Southern countries are allowed much less political space to re-assess their own national policy and enter a path towards pragmatic solutions. Moreover, the international conventions allow less flexibility for the production side as compared to the consumption side.

UNDCP Reform

Being the leading multilateral agency for drugs issues, the functioning of UNDCP in all these matters is crucial. The agency not only implements UN programmes and advises many countries on drug policy matters, it also functions as the secretariat for both the INCB and the CND. The agency went through a deep crisis these past years. The UN Office of Internal Oversight Services (OIOS) was called in to investigate mismanagement, donors lost confidence and Executive Director Pino Arlacchi had to step down in December 2001. The combination of the strong zero-tolerance position with bad management has meant that UNDCP has not been able to play a moderating role amidst the growing polarisation. The recommendations of the OIOS triggered a reform process in mid-2001 at UNDCP's Vienna headquarters and several organisational improvements are now well underway. But the question remains as to whether the UNDCP will also be able to grow away from its politicised re-affirm position towards becoming more of a centre of expertise better able to reflect the different views on drug policy and its application nowadays.

One of the OIOS reports concluded: "The role of ODCCP as a centre of expertise cannot be fulfilled without a free exchange of views, discussions and the involvement of staff in decision-making. How ever, at the time of the inspection, corporate mechanisms o f collective advice and guidance and of programme and policy coordination were not functioning. Also lacking was a consistent system for programme oversight in the form of monitoring implementation and assessing results. (.) Thematic evaluations were few and had not led to much-needed substantive discussions or changes in practice. There was no mechanism to formulate lessons learned and to feed them back into programme formulation and delivery.(10)

This goes beyond the mere organisational reform needs that tend to become the focus of attention in addressing the agency's crisis. Mr Arlacchi not only ran the office in a "highly centralized and arbitrary manner," but claimed successes on the drugs front "beyond the limits o f credibility" - concluded the OIOS.(11) He also dragged the agency into highly questionable projects like the aborted SCOPE programme, the Tajik Drug Control Agency, the mycoherbicide projects for Colombia and Afghanistan, and the 'boat project' to which OIOS devoted a special investigation.(12) Those projects have caused considerable damage to the political credibility of the organisation. It was not only his managerial style or the lack of transparency around projects that was problematic, but also the policy content direction in which he took the agency. The much-criticised World Drug Report 2000 was a case in point, demonstrating how out of touch the agency was with shifting opinions on international drug control. All this contributed to the process of erosion of confidence that has taken place among donors, and even more strongly within the NGO and academic communities working on drugs issues.

In May 2002, Antonio Maria Costa arrived in Vienna as the new Executive Director of the UN Office for Drug Control and Crime Prevention (ODCCP) and Director General of the UN Office at Vienna (UNOV). In his very first speech to the staff upon arrival in Vienna in May, Mr Costa mentioned the need to be "tough in imposing upon ourselves the sort of efficient monitoring and evaluation o f our work needed to restore Member States' confidence." He promised to make the values of "fairness, transparency and accountability (.) a fundamental part of our culture.(13) These statements combined with Mr Costa's vast experience in the management of international organisations - his latest position was secretary general of the European Bank for Reconstruction and Development - indicate his commitment to ensure the following through of the OIOS recommendations for organisational restructuring, transparency in decision making about projects, and the strengthening of the functioning of the CND as UNDCP's governing body.

Drugs in the UN System

In his address to the staff, Mr Costa emphasised the connections between "drugs, crime and terrorism, the evils of our time." The 1998 step to merge under one umbrella - ODCCP - the UNDCP and the Centre for International Crime Prevention (CICP) has over-emphasised the drugs-crime connection, however intimate and important that relationship is. As the current discourse adopted by most donors indicates, drugs is a 'cross-cutting issue' covering many policy areas. The drugs issue is as closely interrelated with health or development as it is with crime. Within the UN community, the particular relationship established between UNDCP and the crime department-as compared with the loose collaborative relationships with WHO, UNDP or UNAIDS - runs the risk of leading to an ODCCP drugs policy focus which leans more towards a law enforcement approach than a health or developmental approach. While most countries have established drug policy co-ordinating structures that carefully balance responsibilities between the health, justice, internal and foreign affairs departments, co-ordination on drug-related issues within the UN system is, in this sense, out of kilter.

This has led to conflicting views and policies on the drugs issue within the UN community, and between UNDCP and major donors. The WHO's rational approach from a purely health perspective, which treats licit and illicit substances alike, regularly conflicts with the vision emanating from the UNDCP offices. While UNAIDS is actively promoting needle exchange programmes to prevent the spread of HIV, UNDCP - though a cosponsor of UNAIDS since 1999 - twists and turns to avoid direct involvement with such programmes. While 70% of UNDCP funding comes from European sources, where Harm Reduction has become an accepted pillar of drugs policies (except in Sweden), this is still forbidden territory for UNDCP, which even bans discussion of the concept. An evaluation process is required which addresses such contradictions while also re-examining the organisational embedding of the drugs issue in the UN system.

The UNGASS Mid-term Review

The mid-term UNGASS review could provide a new opportunity to achieve a breakthrough. A two-day ministerial segment will be included in next year's CND session, scheduled for 8-16 April 2003 in Vienna, to evaluate progress made with regard to the goals and targets set out in the Political Declaration of the 1998 UNGASS. The review provides the first global opportunity since the UNGASS to re-assess and adjust the current international drugs policy framework. UNDCP will play a crucial role in preparing for the review. The Executive Director presents biennial reports to the CND on progress of the UNGASS outcomes,(14) which will form the basis for the evaluation in April 2003. The UNGASS mid-term review will present Mr Costa with a high-level political opportunity to convince the world of his commitment to take UNDCP in a more rational direction, to say farewell to the years of crisis, to restore donor confidence and to open up the debate. A necessary pre-condition for a breakthrough, however, will be political will and a concerted effort from those countries interested to pursue the path of pragmatism and conscious of the need to conquer more space on the UN level for national policy differentiation. This includes European countries like the Netherlands, Switzerland, Portugal, Germany, Belgium and the UK alongside like-minded countries like Canada and Australia, possibly with support from members of the GRULAC block of Latin American and Caribbean countries like Mexico, Brazil, Jamaica, Uruguay and Peru. Differences aside, policy developments in these countries demonstrate a common interest in lifting international drug control out of its present stalemate towards policies which offer more room for manoeuvre in the implementation of realistic and pragmatic policies. The time has come for the European countries leading this way to become more assertive about their achievements, to bring this refreshing tone to the UN level and to support - in the spirit of co-responsibility - those Southern countries that are eager to take steps in a similar direction also for the production side.

Mexico has been elected to preside over that mid-term UNGASS review and its preparations. Mexico is the country that originally called for the 1998 UNGASS, aspiring to convene a forum for in-depth evaluation of global drug control policy. In the opening statement for the 46th CND session, Mexico recalled some of its original spirit in saying, in reference to the 2003 and 2008 deadlines, "in this period of sessions we will be very critical about these ambitious goals. [..] Above all, we must be honest and not self-indulgent. To report about achievements where there have been none neutralize those that we have genuinely reached.(15)

A rational guiding principle for the mid-term review can be found, perhaps, in the conclusions reached by the New York County Lawyers' Association: "The appropriate goal of any drug policy must be to decrease the prevalence and spread o f harmful drug use and substance abuse, and to minimize the harms associated with such problems where they are found to exist. Additionally, any policy which creates more harmful results than the societal problems it proposes to solve, must be re-evaluated in terms of the advisability of further pursuit of such policy. Further, to justify continuation of any public policy, the costs incurred must always be weighed against the benefits derived. It is within this context, and with these criteria in mind, that present approaches to drug policy must be objectively assessed and, where appropriate, alternative models for future policy evaluated and considered. (16)

1. Letter of Resignation to Mr Pino Arlacchi, by Michael vd. Schulenberg, Director Division for Operations and Analysis - UNDCP, December 4, 2000.

2. For a detailed critique of SCOPE, see: Tom Blickman, Caught in the Cross-fire: Developing Countries, the UNDCP and the War on Drugs, TNI/CIIR, London, June 1998.

3. CND, An International Strategy to Eliminate the Illicit Cultivation of Coca Bush and Opium Poppy: Progress Report, E/CN.7/ 1998/PC/CRP4, Vienna, March 3, 1998.

4. UNGASS, Political Declaration, 9th Plenary Meeting, À/RES/S-20/2, June 10, 1998.

5. HRW, Punishment and Prejudice: Racial Disparities in the War on Drugs, Human Rights Watch US, May 2000.

6. HRW, Reforming the Rockefeller Drug laws, Website editorial at:www.hrw.org/campaigns/drugs/ "

7. Europe's Aid Plan for Colombia Falls Short of Drug War's Goals," New York Times, VCtober 25, 2000.

8. Nicholas Dorn and Alison Jamieson, Room for Manoeuvre - Overview Report, Drugscope, London, March 2000; and B. De Ruyver, G. Vermeulen, T Vander Beken, F Vander Laenen and K. Geenens, Multidisciplinary Drug Policies and the UN Drug Treaties, IRCR Maklu, Antwerpen/Apeldoorn, 2002.

9. INCB, Report 2001, E/INCB/2001/1, UN, New York, 2002.

10. OIOS, Report on the Inspection of Pro romme Management and Administrative Practices in the Office for Drug Control and Crime Prevention, General Assembly, A/56/83, June 1, 2001 (www.un.org/Depts/oios/reports/a56 83.htm)

11. OIOS, Report on the Triennial Review of the Implementation of the Recommendations Made by the Committee for Programme and Coordination at its Thirty-Eighth Session on the In-depth Evaluation of the United Nations International Drug Control Programme, ECOSOC, E/AC.51/2001/4, May 4, 2001 (www.un.org/Depts/oios/reports/eacSI 2001 4.pdf)

12. OIOS, Report on the Investigation into Allegation of Misconduct and Mismanagement of the "Boat Project" at the United Nations Office for Drug Control and Crime Prevention, General Assembly, A/56/689, December 7 2001 (www.un.?rg/ epis/oios/reports/a56 689.pdI)

13. Address to All ODCCP and UNOV Staff by Antonio Maria Costa Director-General and Executive Director, Vienna, May 7, 2002.

14. CND, Consolidated First Biennial Report of the Executive Director on the Implementation of the Outcome of the Twentieth Special Session of the General Assembly, Devoted to Countering the World Drug Problem Together, E/CN.7/2001 / l 6, Octobr 4, 2001.

15. CND, Statement by Deputy Minister of Foreign Affairs of Mexico Patricia Olamendi, Chairperson of the 46 t h Session of the Commission on Narcotic Drugs, Vienna, March 15, 2002.

16. New York County Lawyers' Association, Report and Recommendations of the Drug Policy Task Force, October, 1996.

 

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