War On Drugs: Let's Stop This Insanity! By Gart Valenc

As I wrote in my previous post (Hypocrite, Who? … Moi?), a number of European countries have been adopting more lenient approaches to the problem posed by the consumption of drugs. Instead of declaring all out war on drugs, these countries have softened their stance and have depenalised or decriminalised, de jure or de facto, the personal consumption of drugs, mainly marijuana.^[1]Top of the list with the most liberal legislation is Portugal, which has decriminalised the personal consumption of ALL drugs, including cocaine and heroin. ^[2]

In the same post, I also underscored the fact that even though the scope and level of leniency showed in the legislation varies from country to country, they all have something in common: the production and distribution of drugs remain illegal. Therefore, the prohibition to engage in these activities continues to be enforced via the policies covered under the umbrella of the War on Drugs (WoD).

You would not be alone in feeling that your head wants to explode trying to understand the rationale behind this schizophrenic approach. For, what we are really saying is that we, drug consuming countries in the developed world, are facing a deep rooted drug problem and the prohibition policies we have been supporting and enforcing for decades have taken us nowhere.

So, what do we do? Do we take the sensible route, and legalise and regulate the “illegal drugs” market as a whole? Do we, by so doing, cut the proverbial Gordian knot and solve, if not all, at least the lion’s share of the misery, violence, corruption and social havoc the criminals that control the drugs market have been imposing on us all, producing and consuming countries alike, through so many decades?

Well, not quite. We don’t like radical solutions, you see. So, we “legalise” the demand side of the drugs market by the back door — which is not necessarily a bad thing in and of itself. But what about the supply? What good is it to legalise the demand while the supply, the real villain in this story, as we have been told again and again, is left to continue prospering in its murderous business?

Surely, if we can see the incongruities of the partial legalisation of the “illegal drugs” market, so can those in charge of designing and implementing those policies. It is not as if policymakers have been caught with their trousers down, so to speak, and the realisation of how oxymoronic their policies are, have come to them as an afterthought.

As you may have guessed, the explanations are aplenty: from lack of foresight and sheer stupidity at one end, to all sorts of conspiracy theories imaginable at the other end. The favourite explanation, the one that is always put forward to explain these policies away, the mother of all partial legalisations, if you will, is that a (carefully crafted?) asymmetry is embedded in the international laws that control the production, distribution and consumption of  “illicit drugs”.

This asymmetry is borne out of the fact that countries are given more room for manoeuvre when it comes to dealing with the consumption vis à vis the production and distribution of “illicit” drugs.^[3] Consequently, what the legalisation of the demand for drugs does, we are told, is to take advantage of that asymmetry in an opportunistic and pragmatic fashion.

Where does this bias towards consumption come from? From Article 3, Paragraph 2 of the 1988 UN Convention, which reads:^[4]

«Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.» (my underscore)

I know, it does not look much, but no matter what door you knock on, you will find the same response: this is the weakest link in the international conventions on drugs long chain. Make of it what you will, the fact is that countries seeking to introduce softer policies regarding the personal consumption of “illicit” drugs have used and will continue to use this loophole to their advantage. I do not have any qualms with that. Who can blame them for taking the opportunity with both hands? The question remains, though: what about the supply side of the equation?

To find the answer, it seems, one has to go back once again to the asymmetry mentioned above: countries seeking softer options for managing the consumption can pull the “national interest” card, as it were, to go ahead with their policies, whereas those seeking similar options for policies regarding the supply are denied the same possibility. The reason, they tell us, is that allowing such departures will undermine the legal structure that sustains the fight against drugs policies and by so doing, provoke the inevitable collapse of the whole edifice—the prohibition regime.^[5]

Wait a moment. Surely, the same can be said of each and every policy aimed at “liberalising” personal consumption of drugs, be it harm reduction, depenalisation or decriminalisation. Is it just a case of being cleverly opportunistic or is it that current drug legislation is nothing but a reflection of the balance of power within the UN, an organisation that functions simultaneously as policymaker, adviser and watch dog?^[6]

To see how deeply unfair the current situation is one only needs to recall what happened to the recent attempt by the Bolivian government to have the ban on coca leaf chewing lifted from the list of activities prohibited by the 1961 UN Single Convention on Narcotic Drugs: 18 countries (the US, UK, Sweden, Canada, Denmark, Germany, the Russian Federation, Japan, Singapore, Slovakia, Estonia, France, Italy, Bulgaria, Latvia, Malaysia, Mexico and Ukraine) rejected the amendment.^[7]

I apologise for reproducing a large chunk of Martin Jelsma’s article,^[8]but I do hope its relevance is self-explanatory:

«…the “position of the U.S. government to not support the proposed amendment is based on the importance to maintain the integrity of the 1961 Convention, which constitutes an important tool for the global fight against drug trafficking.”

There is a profoundly disturbing hypocrisy behind this line of reasoning that has now become the main argument for the objection for the U.S. government and its EU allies. Of course they fully respect indigenous rights, they have no problem with coca chewing, they simply want to defend the integrity of the drug control treaty system, and allowing this amendment to be adopted would open a Pandora’s box. The Single Convention is sacrosanct, cast in stone, and allowing any changes would jeopardize the integrity of the control system.

Apparently they forgot that in 1971, a decade after the adoption of the Single Convention, the U.S. itself propose numerous amendments. “The United States believes it is now time for the international community to build on the foundation of the Single Convention, since a decade has given a better perspective of its strengths and weaknesses”, they argued at the time . The UK was the first to support the U.S. call to improve the Convention and to convene a Conference of the Parties to discuss the proposals, adding some amendment proposals themselves, which led to the 1972 Protocol amending the 1961 Convention. At the time, the U.S. did not “regard its proposals as sacrosanct; it welcomed suggestions for new improvements; it hoped also that other countries would come forward with their own proposals, whether or not related to ones the United States had already made. It was pleased to see that the Swedish delegation had already begun that constructive process.” While the U.S. proposals were of course aiming to bolster the control regime and the role of the International Narcotics Control Board (INCB), Sweden used the opportunity to offer other proposals, including positive ones, like deleting references to “addicts” in the treaty and introducing possibilities of alternative sentences for drug-dependent offenders.

So, the three main objectors to the Bolivian amendment proposal now, US, UK and Sweden, arguing the need to protect the integrity of the treaty by not allowing any amendments, were precisely the ones who proposed the first amendments themselves, at which time they argued the need for the control system to develop and improve.»

Perhaps it does not need clarification, but just in case, the amendment (and its rejection) refers specifically to the leaf, not to the alkaloid extracted from it, cocaine. What the amendment seeks is to restore the right to chew coca leaves, something Bolivia’s indigenous people have been doing for centuries, without fear of breaking the law. If that is the case with such a mild, almost symbolic, proposition, what are the chances of making any radical changes to current international legislation? What options do we have to try to overcome this imbalance? Can those changes be made from within, or should we denounce the current conventions and replace them with new ones? Can we, consuming countries, continue hiding behind the current drug conventions to explain our lack of commitment to seek and effect wider changes regarding the supply of drugs? ^[9]

One thing is clear to me. As the Bolivian case so poignantly demonstrates, the power to effect real changes in the current legislation, be it inside or outside the established conventions, does not lie in producing countries. The power, literally and metaphorically, resides in the other end of the illicit drug market, in major consuming countries.

So, I state the question again, do countries that have decriminalised or depenalised the demand have a moral obligation to introduce changes to national and international laws to seek the decriminalisation or depenalisation of the supply, too? My answer is direct and unequivocal: yes. Not doing so is hypocritical, cynical and frankly speaking, criminal.

1. ^[1] In order to understand the difference in scope of the drug legislation among European countries it is important to distinguish between legalisation, decriminalisation and depenalisation. As Greenwald puts it, «… “decriminalization” means either that only noncriminal sanctions (such as fines or treatment requirements) are imposed or that no penal sanctions can be. In a “depenalized” framework, drug usage remains a criminal offense, but imprisonment is no longer imposed for possession or usage even as other criminal sanctions (e.g., fines, police record, probation) remain available. “Legalization”—which no EU state has yet adopted—means that there are no prohibitions of any kind under the law on drug manufacturing, sales, possession, or usage.» See Greenwald, Glenn. Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies, Cato Institute, 2009, p.2 ↩
2. ^[2] An overview of the current legislation on the use and possession of drugs for personal use in the EU Member States can be seen in EMCDDA Illicit Drug Use in the EU: Legislative Approaches, 2005 ↩
3. ^[3] The current international legislation on “illicit drugs” revolves around the following three conventions:
   UN Single Convention on Narcotic Drugs, 1961
   UN Convention on Psychotropic Substances, 1971 and
   UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 ↩
4. ^[4] UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. See also, Article 36 of the 1961 UN Convention ↩
5. ^[5] It is worth bearing in mind that here I am questioning the rationale of policies aimed at “liberalising” the consumption in the context of the current legislation framework. I am, of course, in favour of liberalising the “illicit drugs” market as a whole: production, distribution and consumption. And not only that, the same goes for all drugs, the so-called “soft” and “hard” drugs alike. Therefore, any attempt at undermining Prohibition and the War on Drugs is welcomed with open arms. ↩
6. ^[6] Update: A recent proposal by Uruguay to introduce legislation that would allow the government to sell marijuana has raised the question whether said proposal will violate UN Conventions on Drugs. As far as cannabis is concerned, the Beckley Foundation has carried out a comprehensive analysis of control alternatives under the current conventions. ↩
7. ^[7] This is Bolivia’s original proposal of amendments to article 49, paragraphs 1 (c) and 2 (e). ↩
8. ^[8] Martin Jelsma, ‘D-Day for Bolivia’s Coca Chewing’ ↩
9. ^[9] The literature about the interpretation, scope and limitations of the current legislation and conventions on “illicit” drugs is quite extensive. Those interested in getting a deeper understanding of where current legislation comes from as well as the options available for those wanting to change it from within, I strongly recommend the following papers:

   M. Jelsma, The Development of International Drug Control: Lessons Learned and Strategic Challenges
   The Backley Foundation, The Cannabis Commission Report 2008 and Cannabis Policy: Moving Beyond Stalemate and
   Transform (TDPF), After the War on Drugs: Blueprint for Regulation ↩