FOR A REVISION OF THE UNITED NATIONS CONVENTIONS ON DRUGS
FOR A REVISION OF THE UNITED NATIONS CONVENTIONS ON DRUGS
Gianfranco Dell'Alba, Olivier Dupuis, Jean-Luc Robert
International Antiprohibitionist League
c/o European Parliament
Belliard street 97-113 - Rem. 508
1047 Brussels - Belgium
Tel. 32-2-2842579 / Fax. 32-2-2303670
ABSTRACT: Long document, divided into paragraphs.
A) PREMISE: The war on drugs has been lost, and it has taken a heavy toll. The application of a prohibitionist policy multiplied by 10 (as would be necessary to try to win on this line) would imply the establishment of a police regime...
B) FROM INDIVIDUAL LIBERTIES TO THE SAFEGUARD OF DEMOCRACY
In the early sixties, the use of drugs in Europe was limited. In 1961, with the adoption by the U.N. of the 'Single Convention', the prohibitionist theses obtained a decisive success.
C) CONSEQUENCES OF PROHIBITION. Organized crime practices corruption and destabilization at all levels and in every country, influencing the political life. From a penal stand-point restriction of liberties has been introduced, whereas an uncontrolled and useless "anti-drug bureaucracy" is thriving in every part of the world. Lastly, it is universally acknowledged that the prohibitionist regime is responsible for the high prices of drugs on the market.
An antiprohibitionist alternative has nonetheless been developed, with its own doctrine: the State cannot prohibit a behaviour which does not damage other people. This doctrine has led to various models of a possible legalization regime: "medical model", "passive trade model", "liberal model"; "the entire process should in any case be regulated". Along with a theoretical revision, efforts have also been made to develop a movement that aims at "harm reduction". However, this acquires its full meaning only if it included in a global, legal strategy of controlled legalization of all drugs. These developments are hindered by the U.N. Conventions. These Conventions must therefore be "overcome". SURVEY OF POSSIBLE MODIFICATIONS AND/OR DENUNCIATIONS OF THE U.N. CONVENTIONS.
Three conventions are analysed: Single Convention of 1961, Convention on Psychotropic Substances of 1971, Wien Convention of 1988. In particular the survey will focus on "ways to dismantle the Single Convention" (but also the subsequent two) starting from a number of basic principles.
I - I BASIC PRINCIPLES: a) the principle of "economy of means" (changing the text of the Convention as little as possible); b) the principle of "returning to the sources" (returning, as far as possible, to the international legislation in effect before 1961; c) the principle "of adjustment" (making the current regime flexible with respect to an antiprohibitionist approach).
II - TECHNIQUES FOR CHANGING THE SINGLE CONVENTION
Contains a comprehensive survey of the four possible procedures: "reserves (articles 49 and 50 par. 1), denunciation (art 46 par. 2), downgrading (art. 3 par. 3) and amendment (art. 47 par. 4)".
III - CONTENTS OF THE MODIFICATION OF THE SINGLE CONVENTION
The contents of the amendments considered necessary, "on the basis of the principle of economy of means [see above] on which the present consultation is based on". A) Amendments to the Preamble (presentation and illustration of a draft substitute Preamble); B) Amendments to articles 1, 2, 3, 4, 5-11, 12-13, 14, 14bis-18, 19 e 20, 21, 21bis, 22, 23-25, 26 e 27, 28, 29, 30, 30.b) 31, 32, 33, 34, 35 e 36, 38, 38bis-51.
C) FOR A PARLIAMENTARY DENUNCIATION AND/OR AMENDMENT CAMPAIGN.
Because it is possible for a State or a group pf States to introduce amendments to one or more articles of the U.N. Convention and even to denounce the Conventions, the campaign should include among its objectives that of amending the Single Convention of 1961 and denouncing instead the Wien Convention of 1988. Comprehensive information on the possible techniques are provided.
FOR A REVISION OF THE UNITED NATIONS CONVENTIONS ON DRUGS
The war against drugs has definitely been lost. The failure of the prohibitionist regime is now recognized by many officials as well as by an ever-increasing proportion of public opinion.
The consequences are serious. The police force and customs service only manage to seize between 5 and 10% of the total volume of drugs in circulation, which volume is, moreover, constantly increasing. The price of heroin increases 1700-fold between its production and its retail sale. Currently the price of a gram is worth ten times as much as the price of a gram of gold.
There is no room for doubt. Prohibition has made drug trafficking the most profitable business on the planet and is the major reason for the growth of the phenomenon. Never in peace time has a legal regime been so flouted nor caused such a disaster.
The effectiveness of the protectionist policy has already been considerably strengthened over the last twenty years, but it would probably be necessary to increase it tenfold again in order to strike a blow to the drug traffic which would be, if not fatal, at least significant.
This observation, although brief, is consistent with an approach which has been considerably refined and developed over thirty years, in parallel with the evolution of the phenomenon and the degradation of the situation.
From individual liberties to the protection of democracy
At the beginning of the 1960s, drug use was restricted to a few limited groups, and in Europe, did not represent a problem for society. No more than in the United States, where its spread, although a little wider, was still marginal. It is however in this period, and more precisely in 1961 with the adoption of the Single Convention on Narcotic Drugs (hereafter the Single Convention), that the prohibitionist approach achieved a decisive success, following which the UN has continuously reinforced its pressure and control until it reached the point, with the adoption of the Vienna Convention of 1988 on illicit traffick (hereafter the 1988 Convention), where it sanctioned on a global level the concept of "war against drugs", ultimate stage of prohibitionism.
As the drug market expanded and, above all, as the consumption of heroin exploded, considerations which were essentially criminological, socio-sanitary, economic and institutional in nature revealed the reasons for the failure of the regime. These considerations tended to show that prohibitionism is based not only on highly questionable principles but that, even worse, far from leading to the attainment of the specified objectives, it is at the origin of a whole series of secondary effects which are more numerous and often much more serious than the problem which it is supposed to be addressing.
It is therefore appropriate to briefly review the fundamental criticisms of the prohibitionist regime and its consequences, before proposing an alternative model based on legalization.
Consequences of prohibitionism
In economic terms, with an annual turnover estimated by the UN at 500 billion dollars, the criminal groups which manage the illegal drug traffick, organized on a global scale, infiltrate, corrupt and even destabilize the highest spheres of economic, financial, political and media power of both producer and consumer countries. Such power enables the different cartels, triads, mafias or other organizations to influence political decisions so as to maintain or reinforce the present regime. Furthermore, the enormous profits of drug trafficking lead to massive investments in economic and financial systems, to the point where entire sections of the legal economy are now and henceforth in the hands of organized crime.
In social and economic terms, prohibition and repression, by confining drug consumers to the margins, excludes them from medical or social services. Such a situation encourages unsafe activities and, consequently, the spread of infectious diseases among drug addicts, and from the drug addicts into the non-addicted part of the population. Illegality is also responsible for the poor quality of the substances on the market which, it should be remembered, are not controlled at all, leading to well-known consequences, and in particular overdoses.
In judicial and criminal terms, of the most serious consequences, we may refer in particular to the reversal of the burden of proof, the increase of the length of police custody, searches without warrant, the overloading of the judicial system, telephone tapping, "controlled" deliveries, the extension of preventative detention, the crowding of prisons, etc. Furthermore, prohibitionism has encouraged the development of urban delinquency to such a level that more than two thirds of offences committed in the large agglomerations are linked to drugs or, more precisely, to the drug laws. All citizens, particularly the weakest, then become the potential victims of this micro-criminality.
In terms of human resources finally, one notes the development of an anti-drug bureaucracy which has ever-increasing resources, as well as the development, often free from any control, of a market - and hence of interests - in "disintoxication".
The fundamental criticism of the economic consequences of prohibitionism deserves closer examination because, conceptually, once prohibitionism has shown itself to be the vehicle for the augmentation of trafficking and of the consumption of prohibited drugs, one can no longer claim that these are perverse effects or collateral consequences which must be accept as a necessary evil in order to avoid a worse evil. On the contrary, once it has been established that the prohibitionist system is responsible for the increased spread of drugs, the whole structure collapses, its very foundations undermined.
Nobody disagrees that the drug regime, like any prohibition, is responsible for the very high price of drugs on the "market". This is a result of what is known as the "crime tariff" or the "criminalization tax", a type of risk premium which the trafficker awards himself. Such large profit margins are a sufficient attraction to ensure that there will always be people prepared to brave the risks and ensure the distribution of the prohibited substances. Conversely and paradoxically, at the level of the consumer, the setting of unattainably high prices, far from serving as an obstacle, acts as the very motor for the development of the market. Indeed, the combined operation of the "criminalization tax" and "multi-level marketing" shows itself to be impressively efficient in the drug market because it creates a system where the drug addicts are forced, in order to finance their own consumption, to themselves become resellers and, consequently, to recruit a clientele constantly increasing in number for products whi
ch are more and more adulterated. This is without referring to the "forced" recourse to theft and prostitution.
This is one, and not the least, of the paradoxes of prohibitionism: it creates an artificial scarcity in a very plentiful product whose prohibitive price is the very engine of the increase in clientele. In fact, the drug economy seems to be a very responsive system which combines the positive aspects of monopoly and competition, while rejecting the respective constraints and faults, in order to maximize profits and increase demand endlessly. Such are the principal consequences which militate for one to go beyond the model imposed by the international Conventions of the United Nations.
The anti-prohibitionist option
In the face of a regime which has been in force for thirty years, a school of thought has progressively developed advocating an anti-prohibitionist doctrine in relation to drugs. This doctrine is based on the general principle of law whereby the State may not forbid and repress an activity which does not harm another person (crime without a victim). The anti-prohibitionist school has developed models providing for a regime of legality for drugs, aiming both to change the direction of, and even to restrain the distribution of drugs, and to reduce the perverse effects of the existing regime. Approaches to the possibility of legalization advocate differing degrees of such legalization and may be seen as falling within three principal categories, which are, moreover, not always clearly distinguishable: the medical model, the model of passive trade and the liberal model.
The medical model is certainly the least revolutionary. It is the one which is the closest to the present regime. It consists of entrusting exclusively to doctors the right to prescribe substances which are now prohibited. Drastic limitations are envisaged, such as, in relation to heroin, the delivery to the pharmacy of very small, non injectable quantities which are to be consumed, if needed, on the spot. The critics of this theory claim that it is limited to replacing the criminalization of an activity by its medicalization. It nevertheless has the merit of being reassuring for public opinion.
The model of passive trade recommends the creation, in each country, of a State monopoly responsible for the production, processing, import and marketing of the substances currently prohibited. It aims to ensure the availability of such substances to users while forbidding any form of promotion of the market.
The liberal model leaves to market forces, in particular to those of supply and demand, the responsibility of establishing the availability, price and variety of substances offered.
In fact, the most balanced model seems to be a form of compromise between these different approaches which also develops them further. Indeed, although the antiprohibitionists are largely of one mind in recognizing that the movement from the present regime to a regime of legalization must involve a rupture so as to strike a decisive blow to the black market, drugs must nevertheless undergo a process of domestication. It is for these reasons that it must doubtless not be excluded that a substance may, in the first place, be sold at a pharmacy on medical prescription and then become subject, after several years, to a much more flexible regime. Nevertheless, in relation to cannabis and its derivatives, it seems clear that there already exists a wide consensus for the establishment of regulations similar to those in force for tobacco and alcohol, that is to say, free sale subject to certain restrictions such as the absolute prohibition on advertising and sale to minors.
As for hard drugs, such as heroin and cocaine, they would be able to be sold at a pharmacy by medical prescription. In this event, doctors should of course be authorized to prescribe maintenance programs whilst medico-health organizations should be able to provide the supervision of addicts and consumers. The prices of the substances should fall within the zone of equilibrium between the need to discourage consumption and the need not to induce a parallel market.
The whole process, from the manufacture to the retail sale (and not solely this final stage), should be regulated so as to reduce not only the health and social damage to and by addicts but also the civil damage and the undermining of democracy and its institutions.
Beginning with a fundamental criticism of the principles of prohibitionism and its consequences, the evolution of anti-prohibitionism has lead to the elaboration of alternative models aiming to bring solutions which will be more viable for society and more effective for consumers. In parallel with the theoretical evolution of anti-prohibitionism, there has developed an inductive and pragmatic movement aiming for the reduction of drug related harm (drug related harm reduction). At the conceptual level, this movement asserts that one should no longer consider drugs as an absolute evil which must be eradicated at any price but as a phenomenon which, whether one wishes or not, is part of reality and which must be controlled so as to be as acceptable as possible. In other words, one replaces the goal of abstinence with that of damage reduction.
The harm reduction movement has experienced such popularity that henceforth - and in particular since the sudden awareness by the political class of the explosion of AIDS - this policy extends beyond the context of a few large European cities which conceived it and begins to be the course of conduct of several European governments.
This change has a quite revolutionary character because it is equivalent to a recognition of the failure of the strategy of repression and the abandonment of one of the founding dogmas of prohibition according to which there is no middle road to the goal of severance.
One must not, however, be too optimistic. In the first place this is because the policy of "harm reduction" is necessarily confined within the limits set down by the UN Conventions of 1961, 1971 and 1988. It can therefore bring tangible solutions to the health and social situation of drug addicts, as well as to the reduction of petty crime. It has, however, almost no effect on the clandestine organization of the market and on most of the consequences which such organization brings. Moreover, it may confuse public opinion, which may associate the increase in consumption and criminality which flows from it with a tolerant attitude of the authorities towards drug addicts. Finally, this policy runs the risk of acting as a cover for governments which, faced with the need to demonstrate a certain effectiveness and involvement, do not, however, wish to challenge the prohibitionist regime in force.
The policy of "harm reduction", like the campaign for the decriminalization of cannabis and its derivatives, therefore only achieves its full potential if it is part of a more global strategy of controlled legalization of all drugs. This is a necessity which has recently undergone important and sometimes unexpected developments. For example, one may point to the Appeal to the new Clinton administration to stop the war on drugs, promoted by people such as Milton Friedman and Joseph McNamara, the Manifesto of Garcia Marquez, supported by many Spanish and Latin-American personalities, which appeared in the Spanish weekly Cambio 16, the birth in France of the Mouvement pour la Légalisation Contrôlée (MLC), the ever-increasing number of declarations by men and women at grass roots level such as, for example, those by Raymond Kendall, Secretary General of Interpol who recently announced that he was in favour of the decriminalization of all drugs, without overlooking the many editorials in prestigious magazines suc
h as the Independent or the Economist, or international conferences such as those held in Baltimore and Washington in November 1993.
But in parallel with this broadening of awareness, it appears more and more clearly that it is the UN Conventions that are the major obstacle to the adoption of antiprohibitionist legislation. Indeed, today States are prohibitionist because they gather around the provisions of the UN Conventions on narcotic drugs and, in particular, the Single Convention. The United Nations is prohibitionist ... because it applies the Conventions chosen by the member States.
This is a situation which is paradoxical if not perverted, and one from which the United Nations and the signatory States cannot escape other than by going beyond the present Conventions. The following analysis attempts to provide the first elements in response to this task.
In order to do this, we present in the first place the summary of a report1 developed by the International Antiprohibitionist League, on the possibilities for amending or repealing, through the adoption of adequate legal measures, the Conventions of 1961 and 1988. In a second part, we sketch out, based on these thoughts, some hypotheses for parliamentary and political initiatives.
1 Report on the possibilities for amending or repealing the United Nations Conventions on Narcotic Drugs from an antiprohibitionist perspective, Les Cahiers de la L.I.A., 1994.
B. EXAMINATION OF THE POSSIBILITIES FOR AMENDING AND/OR REPEALING THE UN CONVENTIONS
1. Drug policies are determined at the international level by three United Nations Conventions: the Single Convention on narcotic drugs of 1961, the Convention on psychotropic substances of 1971 and the Vienna Convention against the illicit traffick of narcotic substances of 1988.
The Single Convention on narcotic drugs of 1961 is an international treaty whose purpose is to prevent and combat the scourge of drug addiction by means of coordinated and universal action. It has rendered null and void all the preceding Conventions in the area.
In the Preamble to the Convention, as well as in the actual text of the Treaty (art. 4), it 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 simple terms, the international text is the basis for the prohibition and repression of illicit drugs at the global level.
2. In order to arrive at this result the Parties to the Convention, who state in the Preamble that they are "concerned with the health and welfare of mankind", have established guiding principles, the implementation of which is entrusted to international control organs.
Essentially, the text provides for two complementary forms of intervention and control: the first, which is of a preventative nature concerns the licit, scientific and medical market; the second, of a repressive nature, concerns illicit traffic, drug abuse and drug addiction. Prevention is essentially aimed at avoiding diversions from medical or scientific channels into illicit traffic. Repression consists in establishing an international penal cooperation so as to punish and discourage drug traffickers.
Control of the licit market is based on a set of national and international preventive measures, which apply to substances classified as narcotic drugs (art. 2 and 3). These measures oblige the States to provide to the control organs, the Commission on Narcotic Drugs of the Economic and Social Council and the International Narcotics Control Board (art. 5 to 18), estimates of national drug requirements (art. 19), production statistics (art. 20) and regular reports intended to inform them of the situation in their country. These instruments allow the definition of a policy of manufacture (art. 29), import (art.21), export (art.31) and distribution (art. 30), exclusively limited to medical and scientific requirements. This policy is implemented at the national level by State enterprises for manufactured narcotic drugs as in the retail trade (art. 29). Provisions peculiar to the cultivation of the opium poppy, coca leaf and cannabis (art. 23 to 28) supplement the measures for agricultural raw materials.
Control of illicit traffic should, according to the Convention, begin by controlling cultivation. The illicit production of the opium poppy, coca leaf and cannabis is the major source of drug traffic. Unable to intervene at the source, international law hopes to discourage it by repressive measures aimed at dissuading drug traffickers. Three provisions to this effect are set out in the Single Convention: a recommendation to the States that serious offenses in matters of drug trafficking are liable to "adequate" punishment (art. 36), a measure relating to the confiscation of seized substances (art. 37) and measures for international penal assistance and cooperation, particularly in matters of extradition (art. 35). This cooperation was pushed to an extreme in the Vienna Convention of 1988 against the illicit traffic of narcotic drugs and psychotropic substances. This in fact strengthens the severity of the previous provisions concerning extradition (art. 6), as well as international mutual judicial assista
nce (art. 7), repressive procedures (art. 8) and the provisions relating to illicit cultivation (art. 14), whilst at the same time creating new international crimes (money laundering, incitement, collusion...) and instituting a specific procedure for finding drug traffickers, controlled deliveries (art. 11).
Now one must recognize the historical failure of the Single Convention. Not only has it failed to hold back the increase in drug addiction throughout the world - a comparison of the official figures for consumption and production between 1960 and 1990 is overwhelming in this respect - but furthermore they have brought about a series of perverse effects, referred to above, which are today a source of grave concerns for the society.
I. THE BASIC PRINCIPLES
A) The principle of the economy of means
3. The first principle is the principle of economy of means, which consists in amending the texts of the articles of the Single Convention as little as possible. This principle can be justified for reasons of form, as well as for reasons of substance.
In respect of the form, first of all it is necessary to note that the Single Convention is drafted in a language and by using a technique which is completely anglo-saxon, whose results are not always examples of conciseness and clarity. This fault is taken to an extreme in the Single Convention whereby the concept of "narcotic drug", supposedly at the basis of international control, is not defined by any concept, but solely by reference to a list of more than one hundred substances classified ... as "narcotic drugs"! It is therefore appropriate to restrict oneself to making the minimum necessary amendments in order to redirect it towards an anti-prohibitionist outlook.
In respect of the substance, this modesty is especially necessary since the legal origins of the international control are not limited to the Single Convention of 1961. Not only was the latter amended by a 1972 Protocol, but, in addition, it has been complemented and amended by two international texts of great significance: the 1971 Convention on psychotropic substances, and especially the United Nations Convention against the illicit traffic of drugs and psychotropic substances, signed in Vienna in 1988.
The first, which closely resembles the Single Convention, establishes an international control which is clearly less rigorous for psychotropic substances, generally produced by the pharmaceutical industry. The similarity in the drafting of both texts therefore allows the amendments proposed to the Single Convention on narcotic drugs to be transposed, mutatis mutandis, to the Vienna Convention on psychotropic substances. In the present study, one will only note that any amendment to the first is likely to have repercussions on the second, taking into account the overlapping of both texts, in particular in matters of classification. This is a further justification for the principle of economy of means.
On the other hand, the principle of economy of means could not be applied to the Vienna Convention of 1988, which is essentially repressive in function. Adopted in the name of the "war against drugs", this Convention seems to be completely "irrecoverable" from the perspective of antiprohibitionist reasoning (except for a part of its Preamble). The only solution is to request its abolition pure and simple. Furthermore, it is necessary to note that a certain number of countries have up till now refused to accede to it precisely because of its excessive harshness.
Nevertheless, it came into force at the end of 1990 and, as at 31 December 1993, 92 countries had ratified it. To render it null and void, it would be necessary that the States which adhere to it make use of the procedure of denunciation (article 30). In any event, this convention is the "text to be killed off" for all antiprohibitionists, in the same way as in the past, and in the converse sense, the Geneva Convention of 1925 regarding prepared opium was the "pet hate" of the United States, then desirous of imposing their prohibitionist reasoning.
B) The principle of returning to the origins
4. This historic reminder invites the presentation of a second guiding principle of this study: the principle of returning to the origins of international control. One should in fact remember that this control has not always existed, whereas the most consumed narcotic substances (opium, coca, cannabis) have been known of and used for centuries. Even since the beginning of international control, which began with the Hague Convention of 1912, the measures imposed by international law were far from being entirely prohibitionist.
Thus, for example, the Geneva Convention of 11 February 1925, relating to the abolition of trade in and the use of prepared opium was less prohibitive then its title implies. In fact, it allows for systems of production and distribution controlled by State monopolies, which moreover provided substantial financial resources to certain signatory states. Thus, England and France produced and distributed opium in their Indian and Indo-Chinese colonies until the 1950's. With regard to France, it also operated Moroccan and Tunisian state-owned companies dealing in "kif" and "takouri", traditional names for the mixture of tobacco and hashish. In the case of opium, the co-existence of international control with a national distribution system was made possible by the fact that the first international Conventions do not clearly set out the principle of limitation to exclusively medical or scientific purposes. Thus article 9 of the Hague Convention of 1912 provided that the Parties must limit the use of drugs to medica
l and "legitimate" purposes only; however the meaning of this term leaves a wide latitude for interpretation.
It is only from 193Os that, under pressure from the United States, the Geneva Convention of 1931 clearly established, for the first time, the principle of the limitation of drugs exclusively to medical and scientific purposes (art. 4). We have seen that the prohibitionist and repressive system was as a result of this principle (supra n1). So much so that by forbidding all uses of narcotic substances other than for medical purposes, the 1931 treaty amended in an historic fashion the effect of international control.
Conversely, if one refers back to the origins of international control, it is sufficient, to end this limitation and return to the previous state of law in which this control was compatible with systems for the distribution of drugs, to add the words "or others" to the text which limits this use exclusively to "medical or scientific purposes". The addition of the words "or others" changes everything. The limitation then applies to "medical, scientific or other purposes", which allows recreational purposes, if not drug addiction. However, this does not prevent the fight against drug addiction in accordance with the aims of the Single Convention, by qualifying the importance of the principle of the return to the origins by the idea of the necessity for an international control of drugs.
C) The principle of adaptation
5. A last principle of this study is precisely the principle of adapting the Single Convention to the anti-prohibitionist reasoning. Though this may seem paradoxical, the prohibitionist and antiprohibitionist reasoning, a priori in contradiction, may be complementary. Clearly it would be better to propose a reorientation or an adaptation of international control, whilst maintaining a partial prohibition, rather than proposing a complete revolution aligning the regime of illicit drugs with that of tobacco and alcohol.
Maintaining a partial prohibition can in fact be justified in some circumstances, in particular for substances the mere use of which is especially dangerous to others. Such is the case, for example, of phencyclidine or P.C.P., paradoxically referred to as "angel dust", which leads to violent acts of folly (aggression, self-mutilation...). One has difficulty in seeing the advantage in allowing this substance to pass from a system of prohibition to a system of legalized control, especially since the perverse effects of the prohibition-repression duo do not have a significant impact in this regard.
In fact successful prohibitions do exist, once they are partial. Thus the prohibition of absinthe in France by the law of 1915, which was wise enough to prohibit only one category of alcohol, that which is most dangerous to health, whilst making substitute alcohols, such as aniseed aperitifs, available to the consumer is considered as a health and social success. One could cite other examples such as the prohibition of ether in Ireland or of amphetamines in Japan.
II. TECHNIQUES FOR AMENDING THE SINGLE CONVENTION
6. The techniques for amending the Single Convention are provided for by the actual contractual provisions, which allow one to refer to four procedures of unequal interest: reservations (articles 49 and 50 1), denunciation (article 46 2), reclassification (article 3 3), and amendment (article 47 4).
-1. The technique of reservations from articles 49 and 50
7. The possibility of a State making reservations to certain provisions of the Single Convention is interesting, since its principle allows one to remove the application of these provisions in a uniform manner for all the Parties. However, this is limited by the texts for two reasons. On the one hand, it can in principle only be used for certain provisions exhaustively listed in articles 49 and 50 and, on the other hand, it is only possible at the time of signature, ratification or accession.
The limitation of the provisions affected by reservations varies according to whether they are transitional or definitive reservations. For the former, referred to in Article 49, the Convention provides that:
"A Party may at the time of signature, ratification or accession reserve the right to permit temporarily in any one of its territories:
a)The quasi-medical use of opium;
c)Coca leaf chewing;
d)The use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes; and
e)The production and manufacture of and trade in the drugs referred to under (a) to (d) for the purposes mentioned therein."
Some States have indeed taken advantage of this possibility to permit traditional forms of consumption, such as India and Pakistan for opium smoking and Bolivia and Peru for the coca leaf, as a remarkable exception to the principle of the limitation of drugs exclusively to medical or scientific purposes, which inspires the Single Convention, and at the same time as a recognition of the traditional character of certain plants, cultivated and consumed for centuries by local populations, in particular the farming community.
9. Unfortunately, these transitional reservations are subjected to strict conditions, with regard both to the duration of the reservation, and to the regime accompanying it. Article 49 of the Single Convention in fact continues as follows:
"2)The reservations under paragraph 1 shall be subject to the following restrictions:
a)The activities mentioned in paragraph 1 may be authorized only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961;
b)No export of the drugs referred to in paragraph 1 for the purposes mentioned therein may be permitted to a non-party or to a territory to which this Convention does not apply under article 42;
c)Only such persons may be permitted to smoke opium as were registered by the competent authorities to this effect on 1 January 1964;
d)The quasi-medical use of opium must be abolished within 15 years from the coming into force of this Convention as provided in paragraph 1 of article 41;
e)Coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41;
f)The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41;
g)The production and manufacture of and trade in the drugs referred to in paragraph 1 for any of the uses mentioned therein must be reduced and finally abolished simultaneously with the reduction and abolition of such uses."
As a result, the smoking of opium, progressively reduced, should have disappeared as from 13 December 1979. As for the practice of coca leaf chewing and the consumption of cannabis and its resin, they should have ended by 12 December 1989 at the latest.
These fateful dates have now been passed, but the International Narcotics Board has acknowledged that it was "not possible to abolish the chewing of the coca leaf in 1989". In fact, it has been estimated that there are today approximately eight million "coca chewers" and the difficulty of replacing the nutritional value of the coca leaf in Andean countries is considerable. The United Nations had moreover to recognize that the problem is complicated by the fact that local populations chew the coca leaf in order to avoid the effects of tiredness and hunger.
8. Moreover, let us recall that other possibilities exist for the contracting Parties to make definitive reservations on the basis of article 50. These, however, only apply in the case of the specific articles of the Convention which concern, respectively, the regime for estimates and statistics, the corrective measures to be taken to ensure the execution of the Convention confronted by a recalcitrant State and the settlement of disputes between Parties before the International Court of Justice.
In conclusion, one has to recognize that the use of the technique of reservations is of no great assistance in adapting the Convention to an antiprohibitionist context. The main reason is moreover of a procedural nature. These reservations must be made at the time when a Party signs, ratifies or accedes to the Single Convention. This moment having occurred a long time ago for the seventy three signatory States to the Convention and the fifty others which have since joined it, the time for making reservations is over.
2. The technique of denunciation in article 46.
9. Denunciation of the Single Convention is a procedure which is open to the contracting Parties, the rules of which are defined by article 46, drafted as follows:
"1. After the expiry of two years from the date of the coming into force of this Convention (article 41, paragraph 1) any Party may, on its own behalf or on behalf of a territory for which it has international responsibility, and which has withdrawn its consent given in accordance with article 42, denounce this Convention by an instrument in writing deposited with the Secretary-General.
The denunciation, if received by the Secretary-General on or before the first day of July in any year, shall take effect on the first day of January in the succeeding year, and, if received after the first day of July, shall take effect as if it had been received on or before the first day of July in the succeeding year.
2.This Convention shall be terminated if, as a result of denunciations made in accordance with paragraph 1, the conditions for its coming into force as laid down in article 41, paragraph 1, cease to exist."
Denunciation of the Single Convention may therefore be made by a contracting Party at any time after 13 December 1966. (If such a denunciation occurred it would constitute a historic event, insofar as the number of signatories of the Single Convention has always increased since its entry into force. The seventy three signatory parties to the Convention today number more than one hundred and twenty.)
However, article 46, which refers to article 41 of the same Convention, which latter article defines the conditions for its entry into force, sets forty signatory States as the minimum number of contracting Parties necessary for the Convention to come into effect. Therefore, it is clear that more than eighty of the States which are Parties to the Convention would have to notify the Secretary-General of the United Nations of their denunciations for it to be terminated. In other words, this possibility is, for the time being, purely theoretical.
On the other hand, what is possible is the denunciation of the Convention by a State, or a group of States. In this case, it is necessary to underline that the procedure for denunciation of article 46 is extremely simple. The contracting Party only has to deposit an instrument in writing with the Secretary-General of the United Nations denouncing the Convention. The only restriction on the power of the State to make this denunciation is the requirement of a minimum waiting period of six months between the date of receipt by the Secretary-General and the day when this denunciation becomes effective (article 46 subparagraph 2). The "raison d'être" of this regulation is based on the fact that the Parties must furnish estimates and statistics to the Board for each calendar year and time must be given to the international organs in order to register and check these figures.
In conclusion, the procedure for denunciation is largely open to
States, but its usefulness is limited insofar as it is necessary to create an alternative to the system currently in force. In the absence of such an alternative, a campaign aiming purely to denounce the Convention would risk being counterproductive. With respect to the specific case of the 1988 Convention, which is - as we have seen - unable to be acceptably modified, this technique is in contrast to be resolutely used.
-3. The technique of reclassifications in article 3.
10. The technique of reclassification in article 3 of the Single Convention is interesting since it allows one to change both the list of classified substances and the regime accompanying them. Furthermore, it can be used at any time, at the initiative of any contracting Party, and it has the advantage of attacking one of the most debatable aspects of the international control: the classification of narcotic drugs in the schedules of the Single Convention.
Let us recall that the Convention sets out over a hundred substances classified into four schedules, arranged as follows:
- Schedule I: it includes opiates, both natural (opium) and semi-synthetic (morphine, heroin), derivatives of coca (cocaine) and cannabis (hashish), as well as numerous synthetic substances (pethidine, methadone,...),
- Schedule II: it includes substances used for medical purposes and requiring a less rigid control in view of the lesser risk of abuse. It includes a natural opiate (codeine) and synthetic substances (propiram, dextropropoxyphene).
- Schedule III: it is the schedule of exemptions. It excludes a series of pharmaceutical preparations made from substances not entailing abuse or ill-effects. Such is the case for certain powders and liquids with a low dosage of opium.
- Schedule IV: it includes some drugs from Schedule I which are considered to have particularly dangerous properties and an extremely limited therapeutic value. It includes opiates both semi-synthetic (heroin, desomorphine) or synthetic (Ketobemidone, etorphine), as well as cannabis and cannabis resin.
These schedules show that the main criteria for the classification of a substance is its medical use. In view of the principle according to which the only licit uses is those for medical or scientific purposes (art. 4), plants or substances deprived of this purpose are automatically considered as particularly dangerous. Such is the case for cannabis and cannabis resin which are classified with heroin in group IV for the sole reason that they lack therapeutic value. A reason which is in any event disputable, since cannabis could have numerous medical uses in a system of legalized control. Furthermore, the arbitrary nature of such a classification is denounced by more and more authors.
11. One of the most fundamental challenges to this system of classification concerns the different treatment of narcotic drugs and psychotropic substances. Historically this is a result of the refusal (by almost one vote, during the preparatory discussions of the Single Convention) to classify barbiturates with internationally controlled substances.
This refusal is indeed partially at the origin of the Convention on psychotropic substances adopted in Vienna in 1971. This Convention was requested by developing countries, which did not understand the difference between natural psychotropic substances (opium, coca, cannabis) and synthetic psychotropic substances from the pharmaceutical industry (amphetamines, barbiturates, hallucinogens...). Thus, for example, although barbiturates, amphetamines and synthetic hallucinogens (LSD 25, PHP, MBA, NDMA...) are clearly more powerful and addictive than cannabis or the coca leaf, they were not at that time subject to any international control. The unfairness of the situation therefore lead the UN to bring psychotropic substances within the scope of control.
Psychotropic substances are today classified by the Vienna Convention (art. 1) into four schedules:
- Schedule I: it includes dangerous drugs creating a serious risk to public health, and whose therapeutic value is doubtful or nil. It includes synthetic hallucinogenics (LSD 25, DMT) and tetrahydrocannabinol (THC).
- Schedule II: it includes stimulants of the amphetamine type, of limited therapeutic value, as well as some analgesics such as phencyclidine, which is of no therapeutic value to man.
- Schedule III: it includes barbiturate products with fast or average effects, which have been the object of serious abuse even though useful therapeutically.
- Schedule IV: it includes hypnotics, tranquilizers (benzodiazepine) and analgesics which engender an appreciable dependence, but are mainly used in therapy.
This classification repeats the criteria of therapeutic value, but in fact is more or less based on whether a substance belongs to one of the four pharmacological groups: hallucinogens (Schedule I), amphetamines (Schedule II), barbiturates (Schedule III), tranquilizers (Schedule IV).
It is striking to note that a comparison of the classifications of narcotic drugs and psychotropic substances does not in the least coincide with the health and social danger posed by the products concerned. Substances which only engender a slight dependence are classified amongst narcotic drugs whereas highly addictive substances are classified amongst psychotropic substances. Therefore, one is surprised to learn that in international law, LSD, mescaline, psilocine and other synthetic hallucinogenics DMT, STP... are not narcotic drugs, but psychotropic substances. Better yet, whereas the cannabis plant is classified amongst the most dangerous narcotic drugs, its principal element, tetrahydrocannabinol or THC is only a psychotropic substance. It is difficult to explain how a plant containing at the most 3% of a principal element is dealt with more severely than the pure substance at 100%.
This confusion and others therefore lead one to attempt to reorganize these schedules by using the reclassification procedure for a certain number of narcotic substances. This enables one to transfer them from one schedule to another, if not to make them "disappear" from the schedules either by reclassifying them as a psychotropic substance, or by purely and simply deleting them from the list of internationally controlled substances.
12. The possibility of one contracting Party requesting, within the context of the Single Convention, a reclassification of a substance from one schedule to another, if not the deletion pure and simple of this substance from one of the schedules of the Convention, is provided for in Article 3 which defines the conditions for modifying the scope of international control. This text specifies that:
"1. Where a Party or the World Health Organization has information which in its opinion may require an amendment to any of the Schedules, it shall notify the Secretary-General and furnish him with the information in support of the notification.
2. The Secretary-General shall transmit such notification, and any information which he considered as relevant, to the Parties, to the Commission, and, where the notification is made by a Party, to the World Health Organization.
3. Where a notification relates to a substance not already in Schedule I or in Schedule II,
(i) The Parties shall examine in the light of the available information the possibility of the provisional application to the substance of all measures of control applicable to drugs in Schedule I;
(ii) Pending its decision as provided in subparagraph (iii) of this paragraph, the Commission may decide that the Parties apply provisionally to that substance all measures of control applicable to drugs in Schedule I. The Parties shall apply such measures provisionally to the substance in question;
(iii) If the World Health Organization finds that the substance is liable to similar abuse and productive of similar ill effect as the drugs in Schedule I or Schedule II or is convertible into a drug, it shall communicate that finding to the Commission which may, in accordance with the recommendation of the World Health Organization, decide that the substance shall be added to Schedule I or Schedule II.
4. If the World Health Organization finds that a preparation because of the substances which it contains is not liable to abuse and cannot produce ill effects (paragraph 3) and that the drug therein is nor readily recoverable, the Commission may, in accordance with the recommendation of the World Health Organization, add that preparation to Schedule III.
5. If the World Health Organization finds that a drug in Schedule I is particularly liable to abuse and to produce ill effects (paragraph 3) and that such liability is not offset by substantial therapeutic advantages not possessed by substances other than the drugs in Schedule IV, the Commission may, in accordance with the recommendation of the World Health Organization, place that drug in Schedule IV.
6. Where a notification relates to a drug already in Schedule I or Schedule II or to a preparation in Schedule III, the Commission, apart from the measure provided for in paragraph 5, may, in accordance with the recommendation of the World Health Organization, amend any of the Schedules by:
(a) Transferring a drug from Schedule I to Schedule II or from Schedule II to Schedule I; or
(b) Deleting any drug or a preparation as the case may be, from a Schedule."
Therefore, there is no doubt as to the possibility of transferring a substance from one Schedule to another, or the pure and simple deletion of this substance from all the Schedules. Moreover, it has been done in the past by the United States for dextropropoxyphene. This derivative of methadone, originally classified as the reference substance for Schedule II by the Single Convention, was reclassified the year following its adoption and finally reinserted into Schedule II in 1981. This example of reclassification is not very enlightening, so much does it seem to have been inspired by economic considerations to the detriment of health considerations.
Nevertheless, it is possible to apply the technique for example, to cannabis and cannabis resin which could first of all be deleted from Schedule IV of the most dangerous drugs where it has no place to be and even from Schedule I, where its classification is extremely questionable; it could then be transferred to Schedule IV of the Vienna Convention together with minor hypnotics and tranquilizers.
The Vienna Convention in fact provides for this possibility in article 2, but according to the official Commentary: "cannabis, cannabis resin or the coca leaf could be deleted by the Commission from the Schedules of the Single Convention and indeed be withdrawn from the control instituted by this Convention with respect to drugs, with the exception of the measures of control mentioned in article 26 and article 28, paragraph 1". This sibylline language must be understood to mean that the reclassification of cannabis from the Single Convention and its possible reclassification in the Vienna Convention does not change the provisions and prohibitions concerning its cultivation (art. 26 and 28 of the Single Convention).
The same can be said for the coca leaf and opium. The Commission could not abolish the prohibition of the cultivation of these plants merely by a reclassification. The removal of this control could only be done by amending the treaty. This restriction, peculiar to cultivated plants internationally controlled, somewhat diminishes the interest of the reclassification technique for natural cultivated drugs, particularly in the third world. However, it does not entirely rule it out.
13. In any event, the technique of reclassification is possible without restrictions for the other drugs. It could, for example, be used to transfer a part of the least dangerous drugs to the list of psychotropic substances without any amendment to the Single Convention. For that purpose one only has to follow the procedure stipulated in article 3.
We have seen that this could be achieved on the initiative of one Party or of the World Health Organization (WHO), which must transmit a notification to the Secretary-General accompanied by information justifying its request for reclassification. The Secretary-General transmits this notification to the Parties and the Commission. If the notification has been brought by a Party it transmits it to the World Health Organization.
This international organization plays a central role in matters of reclassification, as a technical expert of the UN in matters of public health. According to article 3-6 it must make a recommendation concerning the Schedule which it is appropriate to modify accompanied by the reasons which justify the reclassification in question. In practice, the World Health Organization is free to make any recommendation which it deems appropriate.
However, its recommendation does not bind the contracting parties, nor the international organs provided for in the Convention. It is only one step in the classification or reclassification procedure. The power to proceed in fact belongs to the Commission on Narcotic Drugs of the Economic and Social Council, alone authorized by article 3 to modify the Schedules.
Furthermore, if one presupposes that the Commission, pursuant to notice from the World Health Organization, accepts, upon the proposal of a contracting Party, to reclassify one of the substances previously listed, this reclassification only takes place if nothing interferes with it. Article 3 of the Single Convention in fact provides for a certain number of blocking possibilities in the following part of the procedure:
"7. Any decision of the commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decisions shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.
8.(a) The decisions of the Commission amending any of the Schedules shall be subject to review by the Council upon the request of any party filed within ninety days from receipt of notification of the decisions. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties, inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration;
(c) The Council may confirm, alter or reverse the decision of the Commission, and the decisions of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization and to the Board;
(d) During pendency of the review the original decisions of the Commission shall remain in effect.
9.Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7."
As a result of this text, if only one State makes the request it is up to the economic and social Council itself to confirm or not the decision of the Commission. Let us recall that the Council is composed of fifty four representatives of the signatory States of the Convention and that it decides on the requests presented to it by a simple majority.
14. In conclusion, one may ask oneself if the technique of reclassification is of real interest to the anti-prohibitionist approach. Certainly, in theory it allows for a softening of the harshness of control, if not its pure and simple abolition, in favour of a system of legalized control. It also allows for a massive transfer of all or some of the drugs to the psychotropic substances, whose regime is clearly less rigorous.
Nevertheless, it is practically forbidden, without amending the Convention, for natural drugs (opium, coca, cannabis), and for all other drugs it remains subject to the decisions of the organs of control (Commission, Council) taken by a majority of the signatory States. Finally, it is almost as difficult to reclassify a substance from one Schedule to another as it is to amend the Single Convention, which reduces the interest of reclassification as opposed to modifying the Convention by means of amendment.
4. The amendment procedure in article 47.
15. Article 47 of the Single Convention provides for the possibility of the contracting Parties requesting that the Convention be modified by way of amendment. The text is drafted as follows:
"1. Any Party may propose an amendment to this Convention. The text of any such amendment and the reasons therefor shall be communicated to the Secretary-General who shall communicate them to the Parties and to the Council. The Council may decide either:
(a) That a conference shall be called in accordance with Article 62, paragraph 4, of the Charter of the United Nations to consider the proposed amendment; or
(b) That the Parties shall be asked whether they accept the proposed amendment and also asked to submit to the Council any comments on the proposal.
2. If a proposed amendment circulated under paragraph 1 (b) of this article has not been rejected by any Party within eighteen months after it has been circulated, it shall thereupon enter into force. If, however, a proposed amendment is rejected by any Party, the Council may decide, in the light of comments received from Parties, whether a conference shall be called to consider such amendment."
The amendment procedure of the Single Convention therefore requires referral to the Economic and Social Council of the UN by a contracting Party. The Council plays a central role in this procedure. It has quasi-discretionary power with respect to the request for amendment submitted to it. In fact the text specifies that "it 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. Finally, by virtue of the powers it holds from the Charter of the United Nations, it may also, with respect to the amendment proposed in accordance with article 30, make a decision other than that provided for in said article: in particular, it could refuse, for istance, to make a decision on the proposed amendment.
In this context, it should be noted that the route of amendment by the individual acceptance of the signatory Parties makes the amendment procedure very uncertain. Indeed, from the time when the Secretary-General has sent the proposed amendment to the different signatory States, they have a period of eighteen months to make known their approval or disapproval. Only one State has to oppose this amendment during this period to end the possibility of using article 46 I, b. It is for this reason that the best solution is that leading to the calling of a conference of the contracting Parties.
16. In the face of this considerations, we can only draw the conclusion that the technique which must be used is that of amendment, in order to set in motion, in any event, the procedure provided for by article 47.
III. THE CONTENT OF THE AMENDMENTS TO THE SINGLE CONVENTION
17. By virtue of the principle of the economy of means (supra n3), the content of the proposed amendments is reduced to the minimum, in such a way as to redirect the course of the Convention without clashing with it head on. Nevertheless, there is no question of maintaining the reasoning of the "war against drugs" which inspired the international texts on narcotic drugs and in particular the Preambles of the UN Conventions.
This is why it is first of all proposed that significant amendments to the Preamble of the Convention be adopted in order to define the new directions of international control (A) before suggesting amendments or additions to the articles of the Convention (B).
A. - Amendments to the Preamble
18. As is the case with numerous multilateral treaties, the international texts relating to narcotic drugs are preceded by a Preamble in the form of a statement of intent. In both the Single Convention and the Vienna Conventions of 1971 and 1988, the contracting Parties have adopted a text setting the aims of the Convention, which text must be reviewed before proposing a new text.
The PREAMBLE of the Single Convention is drafted as follows:
Concerned with the health and welfare of mankind,
Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes,
Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
Conscious of their duty to prevent and combat this evil,
Considering that effective measures against abuse of narcotic drugs require coordinated and universal action,
Understanding that such universal action calls for international co-operation guided by the same principles and aimed at common objectives,
Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned should be within the framework of that Organization,
Desiring to conclude a generally acceptable international convention replacing existing treaties on narcotic drugs, limiting such drugs to medical and scientific use, and providing for continuous international co-operation and control for the achievement of such aims and objectives.
Hereby agree as follows :"
Behind the apparent banality of the language, this text sets three major directions. First of all, it states in principal that the use of narcotic drugs must be limited to medical purposes, then it proposes as its objective to combat the evil of addiction, and finally it asserts the necessity for international control entrusted to the United Nations.
Of these three principles only the first one is truly opposed to the anti-prohibitionist idea. Indeed, we have already described the historical and legal development of the international texts, which have progressively established the principle of the limitation of narcotic drugs to medical and scientific purposes, starting point for the prohibition of narcotic drugs (supra n 4). The possibility of other uses, in particular recreational, must therefore be strongly asserted in the new Preamble to mark the return to the origins of international control. It does not in any event contradict the objective of the fight against addiction. Indeed, if one defines drug addiction as a state caused by the abuse of the substances involved and not by their mere use, the present text is perfectly compatible with a system of legalized control. In fact, its objective is to combat the harmful effects to society or third parties by counterbalancing such effects with health and social measures, of which the first one is inte
It remains that international control must be reduced and must not necessarily lead to the establishment of a uniform policy for the contracting Parties. Each State must be able, taking into account its environment, history and traditions, to adapt its policy on combatting addiction by instituting specific measures of control, not necessarily uniform. It is clear, for example, that the fight against alcoholism in France is not carried out in the same way as in Saudi Arabia. Therefore, it is necessary that the Preamble reserves the possibility to the States of taking into account their cultural and social framework.
19. However, the Preamble of the Single Convention does not sufficiently convey the current course of international control
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