Policy analysis
Rethinking ‘flexibilities’ in the international drug control system—Potential, precedents and models for reforms

https://doi.org/10.1016/j.drugpo.2016.12.014Get rights and content

Abstract

Background

Much international drug policy debate centres on, what policies are permissible under the international drug treaties, whether member states are openly ‘breaching’ these treaties by changing national regulatory frameworks and shifting priorities away from a ‘war on drugs’ approach, and what ‘flexibility’ exists for policy reform and experimentation at national and local levels. Orthodox interpretations hold that the current system is a US-led ‘prohibition regime’ that was constructed in an extremely repressive and restrictive manner with almost no flexibility for significant national deviations. This paper challenges these orthodox interpretive frameworks and suggests no absolute and clear dichotomy between strict adherence and ‘breaches’ of the international treaties.

Methods

This paper uses historical analysis to highlight the flaws in orthodox policy analyses, which assume a uniform interpretation, implementation and set of policy trajectories towards a ‘prohibition regime’ in the 20th century. It challenges some existing legal interpretations of the treaties through recourse to historical precedents of flexible interpretation and policy prioritisation. It then examines the legal justifications currently being formulated by member states to explain a shift towards policies which, until recently, have been viewed as outside the permissible scope of the conventions. It then examines a functionalist framework for understanding the likely contours of drug diplomacy in the post-UN General Assembly Special Session (UNGASS) 2016 era.

Results

The paper highlights that, contrary to current policy discourses, the international control system has always been implemented in a ‘flexible’ manner. It demonstrates that drug control goals were repeatedly subsumed to security, development, political stability and population welfare imperatives, or what we might now refer to under the umbrella of ‘development issues.’ The paper further demonstrates that policy prioritisation, inherent treaty ambiguities and complexities as well as the recognition of broader issues of security and development were just some of the ways in which member states have flexibly implemented the treaties over the last century. This has frequently occurred in spite of apparent contradictions between national policies and reigning interpretations of international drug control obligations.

Conclusion

UNGASS 2016 inaugurated a new era based on an evolving understanding of the UN drug control system. In this ‘post-‘war on drugs’ era’, national and local policy choices will increasingly hold greater relevance than international ones. Further, based on numerous historical precedents, international legal interpretations will likely continue to evolve and serve a reactive functional role in providing the formal scope to justify national and local deviations from past global norms. These shifting interpretations are, and will continue to be, reflected in an interim reliance on treaty ‘flexibilities’ to explain sustained international cooperation, even as that cooperation shifts to an entirely new implementation framework.

Introduction

The failures of the ‘war on drugs’ have been well documented elsewhere (The Global Commission on Drug Policy, 2014). Former and sitting presidents throughout Latin America to past President of the United States, his former Attorney General, and now the Prime Minister of Canada all openly reject the ‘war on drugs’ in favour of new approaches grounded in public health and policy alternatives including legal regulation of cannabis. Director of the US Office of National Drug Control Policy (ONDCP), Michael Botticelli, recently described the war on drugs as ‘all wrong’ (Pelley, 2015).

The UN General Assembly Special Session on Drugs (UNGASS) convened in New York City in April 2016 to consider all aspects of the international drug control strategy. This paper will argue that the meeting inaugurated the end point of the global ‘war on drugs’ era, an and that dates from the declaration of the ‘war on drugs’ in 1971, to the UNGASS in 2016. The key questions remain, how to reform national and international approaches to drugs, where to direct scarce resources, how to translate evidence into policy, and what policies to replace the ‘war on drugs’ strategy with. While a wholesale change in national regulatory structures, let alone international ones, seems far off, incremental shifts have begun and look likely to pick up steam. In this new era, the ‘post-war on drugs era’ national and local spheres increasingly hold greater relevance than international ones in determining policy choices and outcomes.

At the international level this is reflected in greater reliance on treaty ‘flexibilities’ to sustain international cooperation, even if that cooperation occurs on an entirely new implementation framework. The term ‘flexibility’ appeared in the official UNGASS ‘outcome document.’ Some commentators interpret ‘treaty flexibilities’ as public health oriented approaches grudgingly permitted within the treaties but against their prohibitionist intent (Jelsma & Bewley-Taylor, 2016). This paper rejects this reading and construes flexibilities as implementations which were previously viewed as outside mainstream interpretations of the treaties during the ‘war on drugs’ era but are now increasingly accepted, for example the U.S. State Department’s rationale for selective federal enforcement of cannabis prohibitions: see (Brownfield, 2014).

Meanwhile, some reject flexibilities as a ‘cop out’ to avoid rewriting the treaties, or claim flexibilities on drug treaties represent a threat to international law (Reinl, 2016). This paper rejects both of these arguments, highlighting that the history of UN drug control is poorly understood, the certainty and clarity of domestic obligations of the treaties overstated, and the obligation to pursue policies which we equate with the ‘war on drugs’ largely non-existent. This paper argues that selective enforcement, policy prioritisation, wide national regulatory variations, and purposefully undefined criteria for ‘medical and scientific’ use (Thoumi, 2016) all represent ingrained interpretive room within the conventions, magnified by an absence of any tangible treaty enforcement mechanisms.

This paper begins by highlighting that the treaties themselves do not constitute a ‘prohibition regime’ mandating a ‘war on drugs.’ It examines the latest historical research regarding the construction, ‘purpose’ and implementation of the conventions to highlight the inherent ‘flexibilities’ within them. It explains how that the treaties represent a relatively loose international trade regulatory framework and that, like all regulatory frameworks, they suggest permitted and non-permitted (or prohibited) practices. It argues that an extreme focus on tackling certain types of behaviours from the 1970s onwards produced the modern ‘war on drugs’—but it is far from a direct by-product of the UN drug conventions (Collins, 2015).

It then proceeds to offer concrete historical examples from the twentieth century highlighting that drug control goals were repeatedly subsumed to security, development, political stability and population welfare imperatives, or what we might now refer to under the umbrella of ‘development issues.’ Finally, this paper examines new interpretive frameworks that emerged during the UNGASS debates to enable the transition to a ‘post-war on drugs era’ which build on convention ‘flexibilities’ to enable policy experimentation. It suggests that multilateralism will adapt to provide a functional cooperative framework to help member states (the executors of the treaties) to manage this issue, mitigate cross-border spill-overs, forward evidence-based drug policies, and openly challenge practices unjustified by evidence and banned by existing human rights law.

Section snippets

Adding historical texture to interpretive orthodoxy: understanding the ‘purpose’ and implementation of the conventions

In contemporary policy discourse the conventions are frequently described in terms of absolute mandates towards prohibition. Further, they are almost universally viewed as a US policy export. It is, as is often repeated, a ‘prohibition regime’ advocating a clear set of prohibitionist principles originated and driven by US zealotry (Jelsma & Bewley-Taylor, 2012). The treaties are, as some have put it: ‘fundamentally about prohibition’ and the US acted as their enforcer.2

Lessons from the recent history of UNGASS, 2008–2016—the emergence of ‘flexibilities’

In 2008, amidst carnage in Mexico and a recognition of the mass incarceration crisis in the US, a shift in global drug policies became apparent. For the first time in decades, new approaches outside the ‘war on drugs’ strategy were countenanced. Tentative discussions gave way to open debate. By October 2012 President Juan Manuel Santos of Colombia called for a systematic rethink of global drug policies arguing that:

‘The time has come to think outside the box. Our invitation is to dutifully

Policy experimentation in a changed international environment

As US Assistant Secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs, Ambassador William Brownfield stated: ‘things have changed since 1961. We must have enough flexibility to allow us to incorporate those changes into our policies … to tolerate different national drug policies, to accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs’ (Brownfield, 2014).

There is no single mechanism

Resource/capacity limitations: selective enforcement model

This framework derives from legal complications around enforcing the treaties in a federal political system. The U.S. remains the test case. The federal government is the signatory to the UN drug control treaties and is their executor. Individual U.S. states are not. The federal government has no constitutional authority to force states to implement the treaties. The federal government only has the authority to directly enforce the treaties in states via federal resources.

The U.S. State

Conclusion

The history of the international system highlights some key insights for reform debates:

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    The term ‘medical and scientific’ use was the treaty delineator between licit and illicit practices. However, it was a consistently shifting parameter determined by reigning cultural norms. The international control system of was a reflection of these norms, not a determinant. In the Single Convention the definition of ‘medical and scientific’ use was consciously left to member states (United Nations, 1973)

Funding

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

Conflict of interest

There are no conflicts of interest that I am aware of.

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    An early draft of this paper first appeared in the 2016 LSE Expert Group Special Report as (Collins, 2016a). Thanks to A. Zajaczkowska for providing feedback on the first draft on this paper

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    John Collins earned his PhD from the Department of International History at the London School of Economics and Political Science (LSE). He is Executive Director of the LSE IDEAS International Drug Policy Project.

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