For more than half a century, the drug policies of nearly every nation in the world have been shaped by their commitment to the three United Nations drug conventions – despite those conventions having long come under fire as outdated and counterproductive.
Together, three the drug control conventions provide the legal structure for a global system of drug control by defining control measures to be maintained and prescribing rules to be obeyed by the parties in their relations with each other. What's happening this week in Vienna will help determine whether the UN's hard line on drugs will change next year.
This week's annual meeting of the UN Commission on Narcotic Drugs will largely be devoted to what happens at the big kahuna: The Special Session of the United Nations General Assembly on The World Drug Problem, in New York in April 2016.
The last such session was in 2009 and the next had not been scheduled until 2019, but in 2012, the presidents of Colombia, Guatemala and Mexico led a move to bring the meeting forward. All three countries have agitated for reform of the conventions' prohibitionist language as a means of addressing their own critical problems with the drug war.
Our own government has not really sent a team commensurate with the importance of this year's meeting, but in a few hours' time, we are – along with the governments of Switzerland, the Netherlands and Guatemala, and the Global Commission on Drug Policy – hosting a side meeting in Vienna. This puts us on the side of real debate on the conventions and Minister Peter Dunne deserves credit for being there.
Since the three Latin American countries won their case to bring the UNGASS forward, something else has happened: the federal government of the United States of America, the progenitor, champion and enforcer of the conventions, acknowledged that it would not move to overrule the US states whose citizens voted to legalise and regulate cannabis.
You might think that the US, in so doing, surrendered its moral right to police other countries' adherence to the conventions, which it now appears to be flouting. But the US has contrived an interesting new stance on global drug law.
Last October, William Brownfield (US ambassador to various South American countries at different times) proposed that there might be some wriggle room in the existing treaties.
In a statement in New York, the ambassador outlined four “pillars” of a revised US position.
Pillar one is to respect the integrity of the existing UN drug control conventions. The second: accept “flexible interpretation” of the conventions. Third: tolerate different national drug policies, from the strict and punitive to the liberal. Fourth: combat and resist criminal organisations rather than punish individuals who use drugs.
Responses to what quickly became known as the Brownfield Doctrine have been polarised – which is perilous, given that any hope of reform in New York next year will rely on unity of purpose in the drug reform community.
I have followed the arguments, both public and private, of many of those in the international drug policy community and they broadly fall into two camps: Embrace the Brownfield Doctrine as an incremental win – or reject it as the wrong kind of reform. I've summarised the arguments here ...
- It’s a tipping point – a significant step in incremental change. And incremental change is probably the only real change possible. Don’t let ‘perfect’ be the enemy of ‘good’. Political change will, and must, precede legal change, and that’s what we’re seeing here. Only when legal tensions increase to an intolerable point will there be enough pressure to engage in the huge challenge of treaty reform. And we’re not there yet.
- It’s the only game in town. However necessary real reform of the conventions might be, it is currently not feasible. There is no real route to reforming the conventions at the UN or in the US legislature – and pursuing reform in the short term would be a waste of energy and even counterproductive. If Brownfield fails because reform is being assailed from all sides, it’s an own goal for reformers.
- It’s the best the US can realistically do. For all the attention on cannabis legalisation in Colorado and Washington State, the votes behind the successful propositions represent a little over 1 percent of the country’s voting-age population. It’s far from demonstrated that there is a mandate for national legalisation or reform of the treaties – the latter isn’t even on the radar. A similar political reality applies in the international community: the leaders of Colombia, Guatemala and Mexico, the three countries that got the UNGASS scheduled, aren’t exactly clamouring to offer leadership now.
- This is a constitutional system without a court. The International Narcotics Control Board and the UN Office on Drugs and Crime may express disagreement with the positions of the US and Uruguay, but they cannot enforce their opinions and they certainly are not constitutional courts. Nation states are free to adapt and evolve within such frameworks.
- Whatever happens, treaty breaches are unavoidable in the short term. The US and Uruguay are both in breach of the conventions – are we really to take the position that these two countries and others should be condemned for actions that breach the letter of the treaties, until the treaties change? If so, we might be waiting a while. Worse, we might provide a rationale for a US federal backlash, reversing the law changes in Colorado and Washington State and blocking reforms in California and elsewhere.
- We may have to take this path in the end anyway. If we discover in three or four years that reform of the conventions is not possible, we’ll only have to recreate Brownfield. So why not embrace this interim measure and keep moving forward?
- This is a meaningful signal to other countries contemplating the scope of reform possible within the conventions. The US could simply have continued to please itself, but making flexibility explicit will strengthen the positions of a number of countries that would otherwise have hesitated. By the same token, a strategy of ‘calling out’ the US on Brownfield’s shortcomings would probably create domestic obstacles to reform in those same countries. Governments need to be aware of how this may appear to the public, and if reform within the conventions exposes them to the accusation that they’re international lawbreakers, that’s a bad, bad look.
- The loosening up embodied in Brownfield cannot be compared with weakening the likes of the UN Convention Against Torture, if only because it has the opposite effect. In this case, flexibility enhances human rights, security and public health, rather than harming them.
- The idea of flexibility within the conventions isn’t actually new. Reformers have long argued that decriminalisation of possession, purchase and cultivation for personal use fits comfortably within the text of the conventions. Brownfield acknowledges that position.
- It’s just theatre. This is simply a way for the US to square its own circle. It’s a way of bowing to domestic political reality by not overruling cannabis legalisation in Colorado and elsewhere, while preserving a system that continues to afford it considerable foreign power. The aim here is not to begin the path to reform but to find a way for the US to permit reforms at state level without the reputational cost of being accused of a treaty breach. In signalling space for reform around cannabis, the US is essentially offering other countries a bribe to maintain its own contradictory position.
- It unquestionably shelves the law reform discussion. And with 2016’s UNGASS offering a once-in-ageneration chance to genuinely address the issue of global drug law, that’s a bad move. No one is pretending that the 2016 UNGASS will be a meeting of countries to negotiate new treaties, but actually taking real treaty reform off the agenda would be disastrous. That’s what Brownfield does – and is arguably what his ‘doctrine’ is designed to do.
- That horse has bolted. The moral rationale for the US bullying neighbours like Jamaica on cannabis reform is already gone. It went along with the Holder memo confirming that the US Federal Government would not intervene in state legalisation. That was the real signal for flexibility. Brownfield is just the damage control.
- It’s limited and self-serving. In tying its new doctrine to state-level cannabis legalisation, the US is really saying that other nations can only break the rules in the same way it is breaking the rules. Brownfield has relatively little sympathy for the other areas where the US had strongly opposed the flexibility it now embraces – general decriminalisation, harm reduction, the legal status of coca.
- Flexibility cuts both ways. If the conventions’ guiding principles are deemed meaningless, won’t regimes like Russia be able to regress even further? Indeed, Brownfield made this explicit in the third pillar’s promise to “tolerate different national drug policies, to accept the fact that some countries will have very strict drug approaches”.
- So the pillars are morally irreconcilable. Can the harm reduction community really declare, “We support the efforts of countries like Uruguay to curb the harms of prohibition – and simultaneously acknowledge that other regimes will continue to apply severe and damaging anti-drug laws and even carry out capital punishment and other human rights violations in enforcing them”?
- What are the broader implications of redefining major United Nations conventions as merely optional? Do we want the same “tolerance” extended to key UN positions on torture and human rights? Remember that the Bush Administration did actually attempt to argue that waterboarding was not a breach of the UN Convention Against Torture and that detainees taken and held in the name of the War on Terror were not covered by the Geneva conventions. Should we really open the door for this?
- The US may be comfortable with a loose interpretation of the conventions, but countries like Germany and the Netherlands take international treaty obligations more seriously. They will be constrained from serious reform until the treaties themselves are reformed.
- The conventions are intrinsically prohibitionist and always have been. It’s wrong to pretend that a shift in interpretation – to the point of interpreting the conventions to say the exact opposite of what they actually say – will change that. The 1961 convention clearly and undoubtedly prohibits regulated markets in cannabis. We would not assume that New Zealand could make significant reforms without touching the Misuse of Drugs Act 1975 – why pretend otherwise at the international level?
- It’s only about demand, not supply. The more flexible interpretation proposed by the US on the demand side is not offered for the more critical area of supply – which is where much of the harm happens. Moreover, the US clearly intends for its new doctrine of flexibility to apply only to cannabis.