Transcript 1961 Single Convention on Narcotic Drugs

The UN Drug Control Treaties:
History and Options for Reform
Martin Jelsma – [email protected]
Centrum voor Internationale Verenigingen
Brussels, 26 February 2016
The treaty decades
1961 – 1971 - [1972] - 1988
1. UN Secretary-Generals: Dag Hammarskjöld (Sweden, Apr 1953 – Sep 1961); U Thant (Burma, Nov 1961 – Dec 1971); Kurt
Waldheim (Austria, Jan 1972 – Dec 1981); Javier Pérez de Cuéllar (Peru, Jan 1982 – Dec 1991).
2. US Presidents: John F. Kennedy (20 Jan 1961 – 22 Nov 1963); Lyndon B. Johnson (22 Nov 1963- 20 Jan 1969); Richard Nixon (20
Jan 1969 – 9 Aug 1974); Gerald Ford (9 Aug 1974 – 20 Jan 1977); Jimmy Carter (20 Jan 1977 - 1981); Ronald Reagan (20 Jan 1981 –
20 Jan 1989); George H. W. Bush (20 Jan 1989 - 1993).
The UNGASS decades
1990 – 1998 – [2009]- 2016 – [2019]
1. UN Secretary-Generals: Javier Pérez de Cuéllar (Peru, 1982-1991); Boutros Boutros-Ghali (Egypt,1992-1996); Kofi Annan (Ghana, 19972006); Ban Ki-moon (South Korea, 2007-2016).
2. UN Under-Secretary Generals for drug control: Margaret Anstee coordinated UN drug control activities in her capacity of Director General of the
UN in Vienna (UK, 1987-1992) until UNDCP was established in 1991; Executive Directors of UNDCP and its successor UNODC: Giorgio
Giacomelli (Italy, 1991- 1996); Pino Arlacchi (Italy, 1997-2001); Antonio Maria Costa (Italy, 2002-2010); Yuri Fedotov (Russian Fed., 2011-?).
3. US Presidents: George H. W. Bush (20 Jan 1989 – 20 Jan 1993); Bill Clinton (20 Jan 1993 – 20 Jan 2001); George W. Bush (20 Jan 2001 – 20
Jan 2009); Barack Obama (20 Jan 2009 – 20 Jan 2017);
Prehistory UN Conventions
• 1912 The Hague Opium Convention:
basic principles for regulating the
international trade of opium; gradual
suppression of opium smoking;
limitation of morphine and cocaine
to “medical and legitimate” needs
• 1925 Geneva Convention:
import certificate and export
authorisation
• 1931 Limitation Convention:
estimates and requirements system
Widespread traditional uses
Medicinal use
Ceremonial use
Social use
Pharmaceutical preparations
Recreational & problematic use
Towards a global prohibition regime
• Alcohol prohibition (1920-1933) in the US
• 1936 Trafficking Convention: introducing a punitive
criminal law framework but only 13 countries sign
and World War II interrupts implementation
• United Nations: Post WW-II US hegemony
• 1953 Opium Protocol: restriction of the number of
opium-producing countries
• Draft Single convention: authorised opium
producers Afghanistan, Bulgaria, Burma, India, Iran,
North-Vietnam, Pakistan, Turkey, USSR and
Yugoslavia
1961 Single Convention on
Narcotic Drugs
• incorporates all key features of previous treaties,
including the 1925 export / import certification and
the 1931 estimates / requirements system
• General Obligations: “limit exclusively to medical
and scientific purposes the production, manufacture,
export, import, distribution of, trade in, use and
possession of drugs” [Art. 4]
• Penal provisions: “Subject to constitutional
limitations”, cultivation, sale, possession shall be
punishable offences and “serious offences shall be
liable to adequate punishment particularly
imprisonment” [Art. 36]
1961 Single Convention on
Narcotic Drugs
• Establishes the
International Narcotics
Control Board (INCB)
• Requires the abolition of
‘quasi-medical’ use of
opium in 15 years (1979),
and coca chewing and all
non-medical uses of
cannabis in 25 years (1989)
• Comes into effect in 1964
Schedules 1961 Single Convention
on Narcotic Drugs
1971 Psychotropic Convention
Inconsistencies
• “the international classification into narcotic drugs and
psychotropic substances according to whether the substance
is governed by the 1961 or by the 1971 Convention has no
conceptual basis. The legal definition of many psychotropic
substances is entirely applicable to narcotic drugs, and in
many cases, the reverse is true.” (UNDCP 2000)
• Allows Parties to make reservations regarding plants “which
are traditionally used by certain small, clearly determined
groups in magical or religious rites ... except for the provisions
relating to international trade” [Art. 32, §4]
• Contrary to the logic of the 1961 Convention, the cultivation
of plants containing ‘psychotropic’ substances is not placed
under control of the 1971 Convention; certain alkaloids are
scheduled, while the plants containing them (like khat,
mushrooms and cactii) remain outside the scope of control
Schedules 1971 Convention on
Psychotropic Substances
Market response: illicit production
1988 Trafficking Convention:
obligatory criminalisation
The 1988 Convention annuls the escape clause embedded in the
1961 and 1971 conventions that the obligation of each Party to
impose penal sanctions is “subject to its constitutional limitations”.
• Only the obligation to establish as a criminal offence also “the
possession, purchase or cultivation of narcotic drugs or
psychotropic substances for personal consumption” remains
“subject to the constitutional principles and the basic concepts
of its legal system” [Art. 3 §2]
• The exemption for personal consumption provides the legal
basis for various decriminalisation schemes of possession (f.ex.
Portugal), purchase (f.ex. Dutch coffeeshops) and cultivation
(f.ex. Spanish social clubs) for personal consumption in many
countries
1988 Trafficking Convention:
harsher sentences
Parties shall:
• make drug offences “liable to sanctions which take into account
the grave nature of these offences, such as imprisonment or
other forms of deprivation of liberty” [Art. 3, §4]
• “bear in mind the serious nature ... when considering the
eventuality of early release or parole” [Art. 3, §6]
• ensure that “any discretionary legal powers ... are exercised to
maximize the effectiveness of law enforcement measures in
respect of those offences, and with due regard to the need to
deter the commission of such offences” [Art. 3, §7]
• take measures to “eradicate plants containing narcotic or
psychotropic substances, such as opium poppy, coca bush and
cannabis plants, cultivated illicitly in its territory” [Art. 14, §2]
1988 Trafficking Convention:
alternatives to incarceration
“in appropriate cases of a minor
nature, the Parties may provide,
as alternatives to conviction or
punishment, measures such as
education, rehabilitation or
social reintegration, as well as,
when the offender is a drug
abuser, treatment and aftercare”
[Art. 3, §4c]
Tables 1988 Convention against Illicit
Traffic in Narcotic Drugs and
Psychotropic Substance
Market response: Pharmaceuticals
Market response:
New Psychoactive Substances
Policy response:
Testing the limits of Latitude
Limits of treaty flexibility on cannabis
 Dutch coffeeshops
 US medical marijuana
 Spanish cannabis social clubs
Limits of treaty flexibility on harm reduction
 Drug consumption rooms
 Heroin maintenance
 Pill testing
Medical marihuana
Coca regulation in Bolivia
• 2009: amendment proposal Single Convention
• 2011: withdrawal from the treaty
• 2013: re-adherence with coca reservation
Cannabis regulation in Uruguay
“Someone has
to be first...”
Cannabis regulation in the US
State with legalized cannabis
State with both medical and decriminalization laws
State with legal medical cannabis
State with decriminalized cannabis possession laws
State with total cannabis prohibition
US ‘flexibility’ doctrine
1) Defend the integrity of the
conventions
2) Allow flexibility of interpretation
3) Permit some national
differentiation
4) Continue fight against organised
crime
“As a starting point, it is essential that Member States use the
UNGASS to reaffirm support for the three UN drug-control
conventions” (U.S. non-paper for UNGASS, June 2015)
Treaty flexibility?
• There is an established ground of flexibility of drug
treaty interpretation that has been conquered over
the decades in a responsible manner
• The limits of latitude have been explored, contested
and legally tested around decriminalisation, harm
reduction and cannabis policies
• More recently ‘flexible treaty interpretations’ have
been invented purely for political convenience,
disregarding basic standards of treaty interpretation
and undermining basic principles of international law
Treaty reform?
“Laws -and even the international Conventionsare not written in stone; they can be changed
when the democratic will of nations so wishes it.”
UNODC, World Drug Report, Oxford University Press, 1997.
“There is indeed a spirit of reform in the air, to
make the conventions fit for purpose and adapt
them to a reality on the ground that is
considerably different from the time they were
drafted.”
UNODC, “Making Drug Control ‘Fit for Purpose’: Building on the UNGASS Decade”: Report by the
Executive Director of the United Nations Office on Drugs and Crime as a Contribution to the Review
of the 20th Special Session of the General Assembly, E/CN.7/2008/CRP.17 (May 7, 2008).
Treaty reform?
Amendment: the 1972 Protocol amending the 1961 Single
Convention. The U.S. argued then that it was “time for the
international community to build on the foundation of the Single
Convention, since a decade has given a better perspective of its
strengths and weaknesses.”
E/CONF.63/10, United Nations Conference to Consider Amendments to the Single Convention on
Narcotic Drugs, 1961 (Geneva, 6-24 March 1972): Official Records, vol. 1 (New York: UN, 1974), 3-4.
Most other international treaty regimes have built-in monitoring
and evaluation mechanisms and regular COPs to review
implementation. The drug control conventions lack
mechanisms to enable an evolution of the system over time; it’s
a ‘Jurassic’ system.
Report of the International Law and Drug Policy Reform Expert Seminar
TNI / Swansea University GDPO / ICHRDP / WOLA, July 2015
Treaty reform without consensus



Re-scheduling: WHO review of cannabis and coca leaf
Denunciation and re-adherence with a new reservation
‘Inter se’ modification: “Two or more of the parties to a
multilateral treaty may conclude an agreement to modify the
treaty as between themselves alone”
1969 Vienna Convention on the Law of Treaties, article 41
“Due to the conflicting interests prevailing at an international level,
amendments of multilateral treaties, especially amendments of treaties
with a large number of parties, prove to be an extremely difficult and
cumbersome process; sometimes, an amendment seems even impossible.
It may thus happen that some of the States Parties wish to modify the
treaty as between themselves alone.”
Vienna Convention on the Law of Treaties: A Commentary, Springer Heidelberg , 2012, p. 719.
Post-UNGASS: towards 2019
•
Minister of Justice Mark Golding (May 7th General Assembly
thematic debate): “Jamaica is in favour of the establishment
of an expert advisory group to review the UN drug-policy
control architecture, its system-wide coherence, treaty
inconsistencies and the legal tension of cannabis regulation.”
•
Uruguayan drug coordinator Milton Romani: “We are facing
a structural phenomenon that deserves an Expert Group
composed of several agencies and participation of civil
society to examine in depth these issues and other
mechanisms in order to give coherence to our Conventions
and bring them up to date”
UNGASS outcome document
We underline that there are new and evolving
challenges, threats and realities, specific to every
country, and that these shall be addressed in
compliance with relevant international law, in particular
the international drug control conventions, which
provide to States Parties sufficient flexibility to design
and implement tailored national drug policies according
to their own priorities and needs, without prejudice to
the objectives and purposes of the conventions;
[2nd draft outcome document UNGASS 2016, 9 February 2016, paragraph 9]
Key question:
Is there “sufficient flexibility” or should the international
legal framework of the UN drug control conventions be
reviewed and modernised?
Thanks...
For updates on the preparations for UNGASS 2016:
Official site: www.ungass2016.org
@ungass2016
TNI sites:
www.tni.org/drugs
www.undrugcontrol.info
@DrugLawReform
@MartinJelsmaTNI
International Drug Policy Consortium:
www.idpc.net
@IDPCnet