Drug Control and International Law

Daniel Wisehart

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351047104
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

This book provides for an extensive legal analysis of the international drug control system in light of the growing challenges and criticism that this system faces. In the current debate on global drug policy, the central pillars of the international drug control system – the UN Drug Conventions as well as its institutions – are portrayed as outdated, suppressive and seen as an obstacle to necessary changes. The book's objective is to provide an in-depth and positivist insight into drug control's present legal framework and thus provide for a better understanding of the normative assumptions upon which drug control is currently based. This is attained by clarifying the objectives of the international drug control system and the premises by which these objectives are to be achieved.

The objective of the current global framework of international drug control is the limitation of drugs to medical and scientific purposes. The meaning of this objective and its concrete implications for States' parties as well as its problems from the perspective of other regimes of international law, most notably international human rights law, are extensively analysed. Additionally, the book focuses on how the international drug control system attempts to reach the objective of confining drugs to medical and scientific purposes, i.e. by setting up a universal system that exercises a rigid control on drug supply. The consequences of this heavy focus on the reduction of drug supply are outlined, and the book concludes by making suggestions on how the international drug control system could be reformed in the near future in order to better meet the existing challenges.

The analysis occurs from a general international law perspective. It aims to map the international drug control system within a wider context of international law and to understand whether the problems that the international drug control system faces are exemplary for the difficulties that institutionalized systems of global scope face in the twenty-first century.

1 Introduction

1.1 International drug control after UNGASS 2016: more of the same or towards a fundamental turning point?

Ja; mach nur einen Plan

sei nur ein großes Licht!

Und mach dann noch´ nen zweiten Plan

gehn tun sie beide nicht.¹

For more than a century the international community has tried to resolve the ‘world drug problem’. Thirteen multilateral treaties and protocols on drug control were adopted between 1912 and 1988.² An infamous ‘war on drugs’ has been declared³ and drug abuse has been labelled as ‘public enemy number one’.⁴ Billions of dollars have been spent. Countless resolutions in various international fora have been adopted. Three special sessions of the United Nations General Assembly (UNGA) on the world drug problem have been carried out.

The international community has made specific pledges in order to underline the determination to reduce illicit demand for, and supply of, drugs: In 1990 – at the closure of its first special session on drugs – the UNGA ‘resolve[d] to protect mankind from the scourge of drug abuse and illicit trafficking in narcotic drugs and psychotropic substances’.⁵ Accordingly, a plan of action was adopted, foreseeing prevention and reduction of drug abuse as well as an eradication of illicit drug production and a suppression of the illicit traffic in drugs;⁶ the 1990s were envisioned as the ‘United Nations Decade against Drug Abuse’.⁷

In 1998, the second UNGA special session on drugs assembled. The ‘unwavering determination and commitment to overcoming the world drug problem through domestic and international strategies to reduce both the illicit supply of and the demand for drugs’ was reaffirmed.⁸ The year 2008 was set as a target date ‘with a view to eliminating or reducing significantly the illicit manufacture, marketing and trafficking of psychotropic substances’.⁹ Furthermore, it was decided that in same year ‘measurable results in the field of demand reduction’ should be achieved¹⁰ and that the illicit cultivation of the coca bush, the cannabis plant and the opium poppy should be eliminated or significantly reduced.¹¹

In 2009, the Commission on Narcotic Drugs of the Economic and Social Council (CND) – the primary organ of the United Nations on drug control – carried out an extensive review of the progress made since 1998 on the occasion of a High Level Segment. This time it was

[d]ecide[d] to establish 2019 as a target date for States to eliminate or reduce significantly and measurably: (a) The illicit cultivation of opium poppy, coca bush and cannabis plant; (b) The illicit demand for narcotic drugs and psychotropic substances; and drug related health and social risks; (c) The illicit production, manufacture, marketing and distribution of, and trafficking in, psychotropic substances, including synthetic drugs.¹²

In 2016, the UNGA convened for the third special session on drugs. It included a review of the progress made with the implementation of the 2009 Action Plan.¹³ Albeit the UNGA now refrains from adopting clear target dates, the ‘determination to tackle the world drug problem’ is reaffirmed and a ‘society free of drug abuse’ is promoted.¹⁴ Plus ça change, plus ça reste la même chose?

Not forcibly, looking exclusively at consensus-driven resolutions does not capture the dynamics that have surrounded the international drug control system in the last 20 years, and it seems possible that in the near future different outcomes will be achieved.¹⁵ For the last 20 years, a seemingly growing number of NGOs and elder statesmen have been criticizing the current approaches of the international community with regard to drugs.¹⁶ These critiques do not act as a monolithic bloc, their critique of the international drug control system is not coherent and accordingly they have so far not developed a precise alternative of an international drug control system that they would adhere to.¹⁷

The critique of the international drug control system is often based upon a purported failure of the system to universally reduce drug demand and supply.¹⁸ It is argued that despite all efforts, illicit production and use of drugs remain unabated.¹⁹ Conversely, the United Nations Office on Drugs and Crime (UNODC) claims that the international drug control system is a success story, since only a marginal portion of the world population are problematic drug users.²⁰ These arguments may give the impression that the debate over the international drug control system is a debate of mere effectiveness: is the international drug control system attaining the goals that were set? This impression needs to be rebutted. The fact that the international drug control system fails to reach its goals, in itself is ill-suited in order to explain growing discontent.

International law contains many utopian goals, such as the ‘ideal of free human beings enjoying civil and political freedom and freedom from fear and want’ announced in the preamble of the International Covenant on Civil and Political Rights (ICCPR).²¹ Although frustration is caused by the fact that these goals are very often not attained and the law is neglected, the lack of success in reaching these goals does not lead to an open rejection of the system that has been erected for their protection. Nobody would deny, for instance, that human rights are violated very often. Furthermore, one can very well call into doubt whether international human rights protection effectively prevents international human rights violations from occurring. However, nobody would claim that because human rights are violated, international human rights protection is senseless. To the contrary, many would ask for an even more elaborated and effective system of international human rights protection in order to curb human rights violations.

This example shows that in reality the debate surrounding the international drug control system is not – at least not exclusively – about effectiveness. It is – at least partly – a normative discussion. It is the viability of the goals of the international drug control system themselves that are questioned. Additionally, States are divided by the premises by which these goals are to be attained. This explains why review processes of a more substantial kind are carried out within universal and regional fora. The run-up to the 2016 UNGASS was determinatively influenced by a joint declaration of Uruguay, Guatemala and Colombia, demanding a review of the current approach of the international community towards drugs, where ‘all available options’ – including regulatory market options should be considered.²² By the same token, the Organization of American States (OAS) is currently involved in a process of ‘analysing the results of the current policy on drugs in the Americas and to explore new approaches to strengthen this struggle and to become more effective’.²³

Thus the criticism of the international drug control system has spurred processes, whose outcome can hardly be predicted today.²⁴ The system is under pressure; States have already shown their willingness to unilaterally experiment with new approaches and are starting to consider legalization of certain drugs. In 2012, voters in Colorado and Washington approved the creation of a regulatory market for cannabis on a state level.²⁵ In 2013, Uruguay followed suit on a national level and likewise established a regulated market for cannabis.²⁶

Whether this wind of change will advance the consensus that is necessary to make substantial decisions is far from certain. To the contrary, it seems that States find it increasingly difficult to agree on questions of fundamental importance. As Bewley-Taylor has it, the consensus that once existed between States parties to the UN Drug Conventions, today is ‘fractured’.²⁷

This might be exemplified with regard to two very different issues. First, States parties are unable to reach an agreement on health-oriented approaches for treatment of drug users (harm reduction). It has been impossible until now to adopt a resolution within the United Nations supporting such interventions.²⁸ Second, the events surrounding the Bolivian strive for the traditional use of the coca leaf stand as proof that States will opt for unilateral solutions if they do not achieve the desired results multilaterally.²⁹ In 2008, Bolivia called for an amendment of the Single Convention on Narcotic Drugs, aiming for the removal of traditional coca leaf consumption from the international drug control regime.³⁰ The rejection of the amendment proposal led to a ‘creative step’ by Bolivia. In order to attain the desired result of allowing traditional use of the coca leaf on its territory,³¹ Bolivia denounced the Single Convention on 30 June 2011³² with the intention to re-accede to the instrument subject to the acceptation of a permanent reservation, providing ‘the right [of Bolivia] to allow on its territory: coca leaf chewing; the consumption and use of the coca leaf in its natural state’.³³ The re-accession, including the said reservation, became effective on 11 January 2013.³⁴ Therefore, the international drug control system is currently in a situation of uncertainty.³⁵ Old objectives and approaches are increasingly openly challenged without a consensus on a new direction and goals. This requires a careful analysis of the current status quo, which is the object of this book.

1.2 Objectives and methodology of this book

This book provides an extensive legal analysis of the international drug control system in light of the growing challenges and criticism that the system faces.

First, it lays bare the sources of the international drug control system as well as the role of its central actors (Chapter 2).

Next it outlines the emergence of the international drug control system. Chapter 3 shows how throughout the decades, the limitation of drugs to medical and scientific purposes eventually became the fundamental bedrock of international drug control. Nineteenth-century bilateralism was eventually replaced by today’s objective of confining all psychoactive substances covered to medical and scientific purposes. Additionally, the material scope of the limitation of drugs to medicine and science expanded throughout this period. Drug control has constantly struggled with changing patterns of recreational use of psychoactive substances. Historically, it expanded from opium to opiates and other narcotic drugs – i.e. plant-based drugs – and finally to psychotropic substances.

Chapter 4 lays bare the entire international drug control system’s objective to reduce all drug-related activities – production, trade and use alike – to medical and scientific purposes. The task of the obligation to restrict drugs to medical and scientific purposes can hardly be overestimated. Despite the central function of the limitation of drugs to medical and scientific purposes for the entire drug control system, it will be examined whether exceptions to this rule can be identified. On the one hand, it will be explored whether the international drug control system contains ‘intrinsic exceptions’ to this rule, by allowing States parties to opt out of the requirement to limit substances to medical and scientific purposes. On the other hand, it will be established whether there exist ‘extrinsic exceptions’ to the reduction of drugs to medical and scientific purposes, emanating from international human rights law, i.e. whether human rights law contains norms allowing individuals to use drugs for other than medical or scientific purposes.

Chapter 5, on the scope ratione materiae of the international drug control system, identifies the substances covered. The international drug control system embodies enough flexibility to modify its scope of control, in order to extend to substances previously left unaffected. However, the drug market nowadays is evolving with unprecedented speed and the time-costly mechanisms to enlarge drug control’s scope of application appear to be too slow to react to the plethora of ‘new psychoactive substances’ that flood ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• List of abbreviations
• 1 Introduction
• 2 The sources and actors of the international drug control system
• 3.1 Towards one coherent obligation to confine drugs to medical and scientific purposes
• 4 The objective of the international drug control system: limitation of drugs to medical and scientific purposes
• 5 The material scope of the international drug control system
• 6 Challenges to the implementation of the international drug control system
• 7 Concluding remarks and outlook
• Bibliography
• Index