From Punishment to “People-Centered”: A New International Drug Law Treaty
The 26th of June marks the annual International Day against Drug Abuse and Illicit Trafficking, or “World Drug Day” – a day first recognized in 1987 by the United Nations General Assembly to express the international community’s commitment to achieve its goal of “an international society free of drug abuse.” Over the next three decades, “a drug-free world” would be heralded as an attainable goal for the global community to work towards.
The UN Office on Drugs and Crime (UNODC) has also chosen this day to publish its “World Drug Report” which, while informative, mainly serves to highlight how little progress has been made each year towards this goal – the 2021 report shows a 38 percent increase in drug use – and the numbers of death by fatal drug overdose are staggering. If anything, the report itself highlights how far from reality a “drug-free society” actually is.
With mass incarceration is at an all-time high, and Black and Brown communities continuing to be the targets of discrimination under the current drug control system (in New York City it was a recently revealed that a staggering 96% of marijuana possession arrests involved Black or Brown people), many feel that it’s time to re-evaluate.
This year’s World Drug Day comes at a time when communities are still feeling traumatized by a brutal pandemic, which has served to exasperate drug-related harms and shined a light on public health. As a society we have also experienced an international awakening to the need for sweeping racial justice reforms after the death of George Floyd, Brianna Taylor and others at the hands of law enforcement. In short, there has never been a better time to re-evaluate the system from the ground up. It’s time to finally admit that punitive policies are not getting us anywhere – and that the time has come to make that final shift towards building a solid platform for drug policies based on public health and human rights.
The punitive drug control system – a sorted history
For the international community, this means taking a hard look at international drug control system which forms the basis for all national drug laws – the international drug treaties.
Drug use was not always viewed through a criminal lens, and the history of the international drug treaty system bears this out – the focus of the first international treaty on drug control, the Hague International Opium Convention of 1912, was not on criminalization at all, but was concerned with regulating the flow of opium for ‘licit’ (i.e., medicinal and legitimate”) use. It was several more years, with the advent of the Geneva Treaty for the Suppression of Opium Trafficking of 1936, before the international community began to focus its efforts on suppressing the drug trade through the imposition of criminal sanctions. Three additional treaties on various issues followed and then were combined into one comprehensive “single convention” – the 1961 Single Convention on Drugs.
The Single Convention itself has a darker history than current policymakers would have us believe. One of the most dominant influences in its adoption was Harry J. Anslinger, the US’s first commissioner of the then “Federal Bureau of Narcotics”. Anslinger saw drugs – in particular cannabis, but also opioids – as an “evil” perpetrated on society, mostly by people of color, and sought to “remedy” this problem by demonizing drugs and imposing harsh penalties on those who dared to use them. Anslinger’s methods were famously harsh – he was said to have chained the jazz musician Billie Holiday to her deathbed on suspicion of drug use and possession – and he is known for his outrageously racial remarks (once stating that
[t]here are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”)
Whether his motives were purely racial – or if he was simply seeking to keep himself employed after the fall of alcohol prohibition and the end of the Prohibition Bureau (which he also oversaw), Anslinger’s anti-drug campaigns laid the groundwork for anti-drug hysteria that took root in the US in the 1970s. By the time Richard Nixon famously declared the “War on Drugs” punitive measures were widely supported by the public who by and large wanted to rid society of the “scourge” of drug abuse. Anslinger turned his attention to the international community in the 1950s, and in 1961 the Single Convention on Narcotic Drugs was adopted. The treaty was followed by an amendment in 1972, and two additional treaties, the 1971 Convention on Psychotropic Substances (adopted in response to the increase in psychedelics in the 1960s) and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (enacted to combat the rise in organized drug trafficking). And with that, the trifecta was complete.
Although the preamble to the Single Convention expresses “concern” with the “health and welfare of mankind”, central to the treaty is its Article 4 requirement that member states enact domestic legislation to “limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession” of certain drugs such as cannabis, opiates, and cocaine. Article 36 of the Convention goes further to provide that offenses involving cultivation and manufacture of drugs must be punishable offenses, when serious, by “imprisonment or other penalties of deprivation of liberty.” And thus the punitive international drug control system was born.
Once established, the international drug control system became firmly entrenched. Today, although many member states have moved away from strict compliance at a national level, very few member states have dared to call for its reform. For one thing, it’s quite impossible to “amend” the Single Convention, as only one objection would derail the process (Anslinger knew how to build a lasting legacy). And with 193 member state signatories, the pressure to adhere to the system within the international community is solid.
Criticisms of the current system
Yet, there have been many criticisms of the enforcement-based approach that has been built under the Single Convention. First, as is evident by the 2021 World Drug Report, the system does not work for the purpose it was intended. It is simply ineffective in significantly (or at all) reducing drug use and/or drug markets. According to the last two years’ reports, not only has drug use increased, but the range of available drugs has expanded and the drug market itself is “thriving”.
Not only is the system as a whole ineffective, but studies have shown that criminalization has very little deterrent value on an individual level, as harsher penalties do not in themselves discourage people from using or selling drugs. Add to this that drug enforcement is disproportionately directed towards people of color, and the results wreak havoc on communities. Encouraged by the system, countries have historically ramped up their enforcement, imposing lengthy incarcerations and even death on drug users. Even in the US, human rights abuses in the name of drug enforcement are carried out every day -from separation of parents from children, to forced catheterizations to determine whether a person suspected of drug use has substances in his or her system (yes, this happens), to blatant discrimination against people of color.
Moving away from the system
It’s no surprise then, that many countries have been moving away from these measures and towards a more public health and human rights-based approaches in their own countries, using strategies from “harm reduction” measures to decriminalization of drug use and even in some cases lower-level dealing.
As these approaches become more widespread – and no doubt due to diligent efforts by NGOs and activists – they have also become more accepted at the UN itself. Every year, the UN Commission on Narcotic Drugs meets to discuss policies and to adopt a series of resolutions and declarations under the international treaty system (these non-binding documents are known as “soft law” supporting the treaty system). Since the 1998 UNGASS, which for the first time focused on “demand reduction”, resolutions and declarations have addressed such topics and measures as needle-syringe programs, opioid agonist therapy, naloxone distribution to prevent overdose death, and many others.
The dialogue at the UN has changed exponentially over the past decade as well: whereas “harm reduction” and “decriminalization” were considered forbidden phrases in the early 2000s, they are now commonly heard both in official and unofficial statements of member states and UN officials. Member state delegates are much more likely to discuss the need for public health and human rights approaches than every before.
And yet, challenges remain. While many at the UN may have warmed to harm reduction, others have not – the Russian Federation still steadfastedly refuses to permit opioid agonist therapy or other medically-assisted treatment in its country – and human rights abuses in the name of drug control have persisted, despite mountains of non-binding “soft law” urging the opposite. The law of the land – the only “binding” law governing member states – is based in enforcement and restriction.
UN officials are fond of defending the treaties by pointing out that the treaties “do not require” human rights abuses and “do not prevent or prohibit” public health measures.
But is a system that simply “doesn’t mention” public health and human rights-based approaches enough? Can’t we do better?
Stuck in a stalemate: where do we go from here?
The result is system of binding international treaties that rely heavily on enforcement and punitive measures, supported by non-binding resolutions and declarations that increasingly support public health and human rights measures. The result is, ultimately, an upside-down system – one that does not reflect the stated priorities of member states.
Amendment of the treaties is impossible, and countries are loath to consider any alteration of the system that goes against its primary purposes, which is, essentially, to prohibit drug use – an activity in which upwards of 275 million people have now engaged. The international system is therefore seemingly “frozen solid”. The Single Convention’s main purpose is to protect “the health and welfare of mankind.” Yet the system itself does not go far enough to achieve that goal.
A new treaty based on public health and human rights
Against this backdrop, it is time for a group of member states to adopt a supplemental treaty that would provide explicit guidance and support for public health measures – one that would commit the international community to honor human rights obligations specifically with respect to drugs and drug policy-making. This new treaty would make binding those measures that have become priorities under the body of soft law such as harm reduction, decriminalization and others– and would provide a mandate for member states to commit resources to such policies.
Such a treaty would benefit the international community in many ways. It would align the system with the stated priorities of member states, by making such provisions explicit and binding. It would create accountability of member states and the UN to prioritize these goals and to measure progress under them, by shifting the focus of metrics and indicators of success away from number of arrests and seizures and towards public health measures such as decrease in fatal overdose deaths and lower levels of HIV/AIDS transmission, and it would command resources towards such measures. Finally it would provide the ultimate legitimacy to such policies, and operate as “peer pressure” as more countries are convinced to sign on.
Finally, a supplemental treaty is wholly practical as well as achievable. Since many of the provisions have already been agreed in the soft law, there would be no basis for objection. Member states would be free to join the treaty without violating their obligations under the existing system.
A new treaty is supported by precedent
Approaching change through treaty supplementation is hardly a new phenomenon – in fact history is replete with examples of such change, both within and outside the drug control system.
One of the best examples of treaty supplementation is within the drug control treaty system history itself – the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, signed in Geneva in 1936 (the “1936 Trafficking Convention”) mentioned earlier. As discussed, the treaties that preceded the 1936 Convention were primarily focused on regulating the legitimate use of substances. However, member states grew to believe that international traffickers were taking advantage of the permissive laws on a larger scale, and that international cooperation was needed to combat the problem. With the 1936 treaty, countries sought to unify national penal codes around drug trafficking. (Notably, the US, under Anslinger’s direction, did not sign the final version of the treaty as it was seen as too “weak” on crime). Thus the 1936 treaty was adopted to “supplement” the current system in order to strengthen its criminal enforcement provisions.
It is ironic that a convention focusing solely on criminal enforcement of drug offenses should serve as such a strong example of a successive treaty that sought to “round out” the content of an earlier line of treaties – yet, as here, the 1936 Trafficking Convention did mark a turning point in refocusing the system in a different direction, albeit towards heavier criminal punishment, not lighter. A treaty supplementing the current outdated enforcement-based system with human rights and public health measures could similarly refocus the treaty system and offer a desperately needed turning point.
Outside the international drug control regime there are several examples of treaties enacted to supplement current systems, including the Forced Labour Convention of 1930, which was updated and supplemented twice. Similarly, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery was adopted to update and modernize the 1926 Slavery Convention, supplementing the previous treaties by banning certain practices such as debt bondage, serfdom, servile marriage and others. The 1956 Supplementary Convention is a good example of a treaty that “rounded out” or modernized a treaty that had become outdated.
The “Oslo” and the “Ottawa” Processes
Two additional treaties stand out in their potential similarities to the proposed process: the Convention on the Prohibition of the Use, Stockpiling Production and Transfer of Anti-Personnel Mines and on Their Destruction (known as the “Mine Ban Convention”) and the Convention on Cluster Munitions. Each of these was started by a core group of member states to provide needed elements to a line of treaties, in response to a growing movement against the use of destructive explosives such as “anti-personnel landmines” and “cluster bombs”.
The Mine Ban Convention was the result of a process that began with a 1980 conference which resulted in the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, together with additional protocols. Most notable was the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices, “Protocol II”, which, despite its name, stopped short of a ban on anti-personnel mines. The Protocol was amended in 1996, but still did not contain such a ban despite pressure from a growing movement including governments, civil society, and the Secretary-General of the United Nations. At the end of that conference, a presumably fed-up Canadian delegation announced that it would host its own meetings of a “core group” of countries who favored the ban, in order to “develop a strategy to move the international community towards a global ban on anti-personnel mines.” This meeting, held in Ottawa and thus known as the “Ottawa Process”, set in motion a “fast-track negotiation process” for the establishment and adoption of a treaty completely prohibiting the use of anti-personnel mines.
From there the Ottawa “core group” brought the concept of the treaty to the First Committee of the General Assembly, where a resolution was adopted with 84 co-sponsors, which was soon adopted by the General Assembly. At the conclusion of a series of conference ending with one in Oslo, Norway on September 18, 1997 (12 months after the Ottawa process began) the final text of the Mine Ban Treaty was agreed and adopted.
A similar process was commenced by a core group of countries in response to the adoption of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (“CCW”) in October 1980, when Norway, discouraged after a series of conferences which failed to address the humanitarian law implications of the use of cluster munitions in a way that was satisfactory to a growing group of concerned member states, organized a group of member states and embarked on the “Oslo Process” which was led by a core group of member states and supported by UN agencies and civil society, mostly humanitarian organizations. After a series of international conferences, the core group had grown to 107 participating member states and included several notable civil society organizations, and a consolidated draft convention text was introduced and ultimately adopted by all of the 107 countries.
These two examples offer inspiring parallels to the current situation, as in each of these situations a core group of member states, dissatisfied with the progress of a line of treaties and urged on by sustained efforts of civil society, banded together to draft a treaty that would provide needed supplements to each of the relevant treaty systems, thereby updating them and correcting each of their deficiencies.
The international drug control regime has been in existence for over one hundred years. As we have seen, while there are many criticisms of the system, particularly its emphasis on harsh punishments for violations, the regime fulfills some very important public health needs, such as ensuring access to essential medicines and preventing diversion of potentially harmful substances. Tensions around balancing enforcement and protection of public health and human rights, which have always been present, have growing stronger over recent years. Yet we know that while the system may continue to bend and sway under the tensions over the years to come, the system is likely to continue – potentially for another hundred years or more.
Member states are at a crossroads – they can either continue working within the current system, which may be “adequate” but would not push the system to reach its full potential – or they could choose to act in a way that may take a considerable amount of effort but has the potential to usher in a vast new world of possibilities. They could choose this option and make a substantial shift in the direction of international drug policy.
Public opinion on the issue has been changing for some time, especially as a result of the current North American opioid crisis. Many see clearly that these issues must be dealt with through international cooperation and globally integrated public health measures.
Hopefully the discussion above will provide a guide (with some room for flexibility and regrouping), to assist the international community and inspire member states to do the hard work of moving forward with a supplemental treaty – one that is based on human rights- and public health principles, and is truly “people-centered.” The next logical step for the international drug control treaty system awaits.