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09/10/2002 | CONCEPT PAPER FOR CAMPAIGN BY THE TRANSNATIONAL RADICAL PARTY AND THE INTERNATIONAL ANTIPROHIBITIONIST LEAGUE TO REFORM THE UN CONVENTIONS ON DRUGS
By Marco Cappato and Marco Perduca
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Over the last two decades, despite the predominant prohibitionist regime, some countries have abandoned this mainstream approach and have tried to face the drug question reforming their laws and, in several instances, have implemented pilot projects to reduce the harm caused by narcotic substances.
All these attempts to face drug-related questions such as decriminalization, depenalization, and the development of heroin distribution programmes are not only sporadic and weak, but also suffer a major problem which lies in the fact that States have a considerably reduced room for manoeuvre when reforming their drug laws and related policies, because they must abide to the provisions contained in the 1961, 1971 and 1988 UN Conventions on Narcotics.
These UN Drug Conventions prohibit the production, trade and consumption of any substances that are arbitrarily considered narcotic and impose the criminalization of all acts concerning drugs. The only circumscribed exception concerns medical and scientific research and/or projects. The UN Drug Conventions constitute the international prohibitionist architecture.
To follow up to this framework of laws, the international community established the International Narcotics Control Board (INCB) as "an independent and quasi-judicial control organ, established by the treaty, for monitoring the implementation of the international drug control treaties". On several occasions over the last few years, the INCB has gone as far as to criticize States that implement harm-reduction projects or decriminalisation policies, issuing censoring statements alleging drug promotion by countries that are facing the drug question with new approaches and labeling as "dangerous" antiprohibitionist movements as well as Members of the European Parliament that support alternative policies on drugs.
In its 2001 Report, for instance, the INCB presented the Dutch situation regarding "the operation of "coffee-shops" (in the Netherlands), which buy, stock and sell cannabis products for non-medical use, [as] in contravention of the provisions of the 1961 Convention". With regard to the Swiss case, the INCB is of the opinion that the new legislation, if adopted "would not be in conformity with the international drug control treaties [and] it would contravene not only the letter but also the spirit and essential objectives of the international drug control treaties". In other sections of its 2001 Report while reviewing the legislative changes involving the decriminalization of personal use of cannabis and related preparatory acts adopted by Italy, Luxembourg, Portugal, Spain, The Netherlands, Belgium and Switzerland, the ICBN stated that it is "disturbing that, while many developing countries have been devoting resources to fighting illicit trafficking in drugs, certain developed countries have, at the same time, decided to tolerate the cultivation of trade in and abuse of cannabis". The INCB is made of "experts" that are nominated by UN Member States on the basis of their expertise in the field and are elected on a regional basis. No one, but the UN Member States can question their competence and education on the matter.
Another UN body that was set up to implement the programmes adopted by the UN Commission on Narcotics, which is a sub-body of the UN Economic and Social Council (ECOSOC), is the Vienna-based United Nations Drug Control Programme (UNDCP). Under the leadership of his former Executive Director, the UNDCP was responsible for the preparation of the documents that were presented at a Special Session of the UN General Assembly convoked to debate the drug question. That Forum, held at the UN Headquarters in June 1998 in New York was convened under the slogan "A Drug-free World, We Can Do It" and eventually adopted a declaration that set out several programmes of crop eradication, alternative development and judicial cooperation to address issues such as transnational crime and money laundering. It must be noted that in discharging its mandate the UNDCP not only established working relationship with non democratic countries such as China, Viet Nam, Laos, Burma or Taliban ruled Afghanistan without reviewing the implementation of such collaboration on a "cost effective" basis, but it also often praised these regimes for their anti-drug efforts regardless of the means implied in countering the drug-problem, means that did not exclude the death penalty for drug consumers.
In 1994, The Transnational Radical Party (TRP) and an ad hoc organization it co-founded, the International Antiprohibitionist League (IAL), also know as LIA, published an in-depth analysis of all the international drug control treaties. That study demonstrated that no draft laws or pilot projects envisioning the legalization of any drug could be attempted so long as the international legal framework remained unchanged. For instance, to take the Italian example once again for clarity's sake, a referendun - that through a series of amendments was proposing the legalization of cannabis and the medical prescription of heroine - was rejected in 1995 and 1997 by the Constitutional Court on the basis of the UN Conventions. A decision that consolidated a worrying tendency that seems to expand the scope of the prohibitionist regime from drug control to curbing freedom of expression.
Drug laws reforms as well as harm reduction programmes find in the UN drug conventions an insurmountable obstacle. A radical revision of those documents is therefore at the very basis of any alternative approach to any drug-related question.
THE UN CONVENTIONS
Drug policies are governed at the international level by three UN Conventions: the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and the Convention Against the Illicit Traffic of Narcotic Drugs of 1988. The first outlined the international prohibitionist architecture, the others complemented and strengthened all measures to "control" drug-related activities.
In its Preamble and in the body of the Treaty itself, namely Art. 4, the Single Convention on narcotic drugs of 1961 clearly states that "the possession, use, trade in, distribution, import, export, manufacture and the production of drugs is exclusively limited to medical and scientific purposes". In other words, the first international Convention established measures for the prohibition and repression of illicit drugs throughout the entire world. In order to obtain this result, the Parties to the Convention have established guiding principles the implementation of which is entrusted to international control organs. The 1961 Convention includes a classification of narcotic drugs into four Schedules:
- Schedule I includes natural (opium) and semi-synthetic opiates, derivatives of coca and cannabis, as well as numerous synthetic substances.
- Schedule II includes substances used for medical purposes and requiring a less rigid control in view of the lesser risk of abuse. It includes natural opiates and synthetic substances.
- Schedule III includes pharmaceutical preparations made from substances not leading to abuse or ill-effects.
- Schedule IV includes some drugs from schedule I deemed to be particularly dangerous and with extremely limited therapeutic value. It includes semi-synthetic (heroin), or synthetic opiates, as well as cannabis and cannabis resin.
The Single Convention on Narcotic Drugs was eventually integrated by two additional documents: the Vienna Convention of 1971 on Psychotropic Substances and the 1988 Convention of the United Nation Against the Illicit Traffic of Drugs and Psychotropic Substances. The tripartite prohibitionist documents formed the declaration of the international "War on Drugs". The first established a preliminary international control, which was less rigorous for psychotropic substances generally produced by the pharmaceutical companies, while the other two completed the prohibitionist international framework covering all substances arbitrarily considered narcotic.
The above mentioned study prepared by the TRP and the LIA identified in the drafting and adoption of amendments to the UN Conventions the most viable and effective way to modify the international prohibitionist regime. The study pointed out that the amendment procedure of the Single Convention requires a referral to the ECOSOC by a contracting Party, therefore giving a key role to the ECOSOC in this procedure. At the same time there might be other mechanisms that can be triggered by other UN agencies.
As a matter of fact the text of the Convention specifies that the ECOSOC "may decide" either to "call a Conference aimed at revising the Single Convention", or "to submit the amendment for the direct approval of the contracting Parties". The key amendments that were deemed more viable in the TRP/LIA study were compiled in two categories:
- the first comprises amendments aimed at including in the legal market, in addition to the medical and scientific uses narcotics, other eventual uses controlled and/or regulated by the State;
- the second includes amendments aimed at modifying the classification of some of the substances listed in the above mentioned Schedules, such as cannabis, coca leaf or heroin (under medical prescription). For instance, an amendment could exclude cannabis derivatives from schedules I and IV of the '61 Convention and re-classify them under Schedule IV of the `71 Convention together with other minor hypnotics and tranquilizers.
The drafting and proposals of the above-mentioned amendments would trigger a procedure that will end up calling for an international Conference to address the eventual reform of the UN Conventions themselves.
As regards the 1988 Convention, written with the main objective of strengthening all aspects of prohibition (also at the level of consumption, establishing the reversal of the burden of proof for persons suspected of carrying forbidden substances), it was deemed not amendable, therefore, the only possible way to go about it would be its denunciation by a substantial number of contracting Parties.
In order to reach the objective of initiating a process of reforming or denouncing the UN Conventions on Drugs, a coordinated international effort should be launched targeting the general public and decision makers within Governments and Parliaments in selected regions of the world. All activities should be aimed at the preparation of a favorable general political climate and at the drafting of all the necessary documents to initiate the reform process both at a national and international level.
The crucial event to bring to the public such a campaign is April 2003, when the United Nations Commission on Narcotics Drugs will convene an ad hoc segment in Vienna to evaluate the impact of the Action plans adopted by the UN General Assembly Special Session (UNGASS) at its 1998 meeting.
In fact, on 8 June 1998, under the leadership of UNDCP Executive Director Mr. Pino Arlacchi, the UNGASS set the goal of the elimination, or the significant reduction, of drug demand and supply within ten years. The April 2003 "mid-term" evaluation would be the most appropriate occasion to bring to the international attention the failures of the first five years of UNDCP policies and to launch a proposal to reform the UN Conventions along the lines illustrated above.
The current international situation vis ą vis the drug question may suggest that it might be realistic to foresee that a small group of States, starting from a selection of mainly Europeans countries together with Canada, Australia and others, could formally raise the issue in the competent UN fora. It might also be possible that an international debate to reform the UN Conventions could trigger unpredictable consequences in other regions such as Central and Latin America and the Caribbean.
CONCEPT PAPER PER LA CAMPAGNA
DEL PARTITO RADICALE TRANSNAZIONALE E DELLA LEGA ANTIPROIBIZIONISTA INTERNAZIONALE PER UNA RIFORMA DELLE CONVENZIONI DELLE NU SULLE SOSTANZE STUPEFACENTI|
di Marco Cappato e Marco Perduca
PROYECTO DE LA CAMPAŃA PARA REFORMAR LAS CONVENCIONES DE LA ONU SOBRE DROGAS|
Por Marco Cappato y Marco Perduca
CONCEPT PAPER POUR LA CAMPAGNE DU PARTI RADICAL TRANSNATIONAL ET DE LA LIGUE ANTIPROHIBITIONNISTE INTERNATIONALE POUR UNE REFORME DES CONVENTIONS DES NATIONS UNIES SUR LES STUPEFIANTS|
par Marco Cappato et Marco Perduca
MATERIAL MBI FUSHATĖN E PARTISĖ RADIKALE TRANSNAZIONALE DHE LIGĖS ANTIPROIBIZIONISTE NDĖRKOMBĖTARE PĖR REFORMIMIN E KONVENTAVE TĖ KOMBEVE TĖ BASHKUARA MBI DROGAT|
Nga Marco Cappato e Marco Perduca