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How flexible are UN drug conventions? PDF Print E-mail
Written by Krzysztof Krajewski   
Thursday, 04 December 2008 22:54

How flexible are UN drug conventions?
Krzysztof Krajewski

There are currently three UN conventions on drug matters being in force. Single Convention on Narcotic Drugs of 1961 as amended by the amending protocol of 1972, Convention on Psychotropic Substances of 1971 and finally United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

To start with it is necessary to stress that all mentioned conventions represent clearly prohibitionist approach to the drug problem. As a matter of fact the worldwide introduction of the prohibitionist policies on drug matters started with international conventions, the 1912 Hague opium convention constituting the first example. From this point of wiev current UN conventions constitute only continuation of the approach started before World War I and continued by conventions adopted during the twenties and thirties. All this means that UN conventions are perceived very often as extremely conservative and constituting serious obstacle to rationalization of current drug pollicies, making impossible not only any legalization of drugs, but also making difficult adoption of such solutions as depenalization or decriminalization of consumption or harm reduction strategies. In other words UN conventions impose very serious limitations on the states with respect to developing their national drug policies. All this being to the great extent true it is necessary to stress that chances to change radically this situation, i.e. to repell or to amend substantially UN conventions, are in the near future probably rather small. It does not mean however in my opinion that the situation is absolutely hopeless from the anti prohibitionist point of view. The main problem is, that it is not only that our societies have to learn some sort of cohabitation with drugs, as the very idea of drug free society is completely utopian. They have also to learn - at least for the time being - to cohabitate with some sort of prohibition as the chances for the total abolition of this approach, or at least its substantial limitation, are rather small. because of this it is necessary for the time being first of all to limit the damage resulting from strict prohibitionist policies an to relax this approach as far as possible under the circumstances. I belive that even under current UN conventions, there is some latitude for such approach, even if it is not satisfactorily great enough.

The main problem, but also advantage, by interpreting UN conventions on drugs is the fact that many their provisions are fomulated in a very broad, even vague manner. Such way of formulating them results forn the fact, that provisions of the conventions constitute always some sort of compromise between various approaches to the drug policies represented by the countries negotiating them. It is also always necessary to formulate these provisions, and this regards in particular provisions obliging to criminalize certain behaviours, in a way acceptable from the point of view of various, sometimes very different legal systems. All this makes many different, even contradictory interpretations possible and sometimes it is very difficult to figure out which particular interpretation is the only jight" or ,authentic"' one. Because of this prohibitionists may usually interpret these conventions in a strictly prohibitionist way, and anti-prohibitionists always may try to find some loopholes making possible flexible and liberal solutions. In other words everybody tries to find in conventions confirmation of his/her convictions with respect to drug policies. This is especially true with the 1988 convention. With respect to 1961 and 1971 conventions there are available official commentaries by the UN Secretary General what precludes sometimes interpretative disputes.. Such commentary to the 1988 convention, which is additionally the most controversial one, is unfortunately still being prepared.

Finaly it is necessary to stress one more aspect of the UN conventions. None of them belong to the so called self-executing treaties or treaties of direct applicability. They all constitute the so called executory treaties, or treaties of indirect applicability, what means that their provisions have to be implemented by the parties by in~orporating them into their domestic law. This means that interpretation of the obligations existing under UN drug conventions have to take into accont constitutional and other legal standards existing in other countries. In other words, despite the primacy of international law acknowledged by many constitutions, international law cannot be implemented and applied in an unconstitutional manner or lead to unconstitutional solutions.

From the purely legal point of view there are possible at least three alternatives to full scale prohibition, or alternative legal statuses of drugs. First one is full legalization of drugs. In such situation the use of drugs is not limited any more exclusively to medical and scientific purposes and drugs become legal substances It means that administrative provisions prohibiting any extra-medical uses of drugs are lifted and both supply of drugs and demand for them (consumption) are decriminalized, although no doubt some sort of administrative control and reglementation (for instance similar to the regulations of alcohol in all contemporary societies) remain. Such regulations may be also supported by criminal sanctions. The use of drugs and trade with them are, however, not generally prohibited.

Two other possible approaches are in fact very similar and differ only indetails. Both of them retain the basic principle of prohibition, i.e. illegal status ofdrugs, although it is only supply of drugs which is being criminalized, i.e. everythingwhich constitutes any form of drug trafficking is subject to penal sanctions. Demandor consumption on the other hand, although not necessarily legal is not subject tocriminal sanction. This may be achieved in two ways.

The first one, called depenalization means that such acts related to consumption as possession, acquisition or cultivation of drugs for the purpose of own consumption remaintheoretically criminalized, but such provisions are just not enforced in practice. Criminal justice agencies resort usually in such situations to non-prosecution or expediency principle, considering such acts to be petty offences not worth strict enforcement.

The second one called, decriminalization goes a little bit further and means that such acts do not constitute criminal offences at all. Both solutions do not mean however that consumption itself is legal or drugs are legally accesible in any way. It is usually not the case and drugs possessed without legal grounds may be (at least) theoretically) confiscated. This approach, although not necessarily quite consequent. one is still much better than full scale prohibition. Within such anapproach it is only supply of drugs which constitutes the problem of criminal policy. Demand constitutes only social or medical problem, what makes also possible application of variety of harm reduction strategies. I think that from the antiprohibitionist perspective depenalization or decriminalization of consumption constitute some sort of the minimal requirement of the rational drug policy.

Let me look now which of the mentioned above strategies may be permissible under UN drug conventions. In analyzing this problem I will refer constantly to drugs in general and not specifically to cannabis. The main reason for this is the fact that none of the UN conventions differentiates in any way between soft and hard drugs or cannabis and other drugs. As a matter of fact, single convention of 1961 puts cannabis together with heroin in its schedule IV as drugs of no medical use! Because of this UN conventions treat cannabis as any other drug, heroin and cocaine included.

To start with it is necessary however to say few general words about UNconventions, as there seem to be some conspicuous differences in the prohibitionistapproach represented by them. This difference exists first of all between single
convention and convetion on psychotropic substances on the one hand, and Viennaconvention of 1988 on the other. This difference illustrates also significant change inthe approach to the drug problem which took place between the beginning of theseventies and the end of the eighties. 1961 an 1971 conventions contain namelyprovisions of predominantly administrative character. The main purpose of them is toestablish international system of tontrolling legal production and legal turnover withnarcotic drugs and psychotropis substances. Because of this their penal provisionsare of relatively minor importance. This may be seen in the fact that penal provisionsappear in both conventions rather at their end. For example the scope of therequired criminalization in single convention is regulated in Art.36 (of the total of 51A Artcicles), and in 1971 convention in Art.22 (of the total of 33 Articles). As opposedA to this 1988 convention deals exclusively with the illegal trafic with narcotic drugs if and psychotropic substances and contains almost exclusively provisions related somehow to criminal law matters, such as offences and sanctions, jurisdiction, extradition, confiscation of the proceeds of crime, mutual legal assistance, special investigative techniques, control of the so called precursors and many similar matters. The role assigned by the convention to criminal sanctions ilustrates the fact that offences and sanctions are regulated in one of the first provisions, namely Art.3. This switch to criminal policy measures in fighting the drug problem results no doubt from the general change in drug policies which took place in the seventies andeighties first of all in the USA. Nevertheless, it remains to be the problem of crucial importance whether convention intends to apply these measures to combat drug trafficking sensu stricto, i.e. apply them exclusively to the supply side, or whether it comprehends the term drug trafficking as including also demand side, i.e. consumption and consumers, and requires application of criminal sanctions also in this area. There is plenty of evidence that unfortunately the latter is being true. It seems that convention is based on the assumption that there is no supply of drugs without demand for them, and that the latter should be approached with criminal policy measures as well. The unfortunate provision of Art.3 paragraph 2 of this convention, which will be discussed in more detailed way later, constitutes here the main evidence. It may be worth mentioning, that from this point of view much more rational approach has been adopted by some European countries in the second treaty of Schoengen from 1990. Although its Article 71 paragraph 2 requires application of criminal sanctions on the supply side, paragraph 5 of the same Article does not repeat this demand with respect to the demand side. It requires only from the Parties to apply measures preventing and counteracting demand. The choice of measures is left however explicitly to the Parties.
It is quite clear from the legal point of wiev that any form of legalizing drugs would not be permissible under any of the current UN conventions. Such an approach would just contradict the general prohibitionist spirit of these conventions and the letter of many of their provisions. First to mention here is Art.4 item c. of the single convention, which says, that one of the tasks of the convention is, to limit exclusively to medical and scientific purposes the production, manufacture, import, distribution of, trade in, use and possession of drugs". Formulation ,medical and scientific purposes" is here of crucial importance, as it expresses the essence of the prohibitionist approach to the use of drugs. Against sometimes expressed view, Art.2 paragraph 5 item b of the same convention is not of any help here. This provision is namely interpreted sometimes as making possible even full scale legalization of drugs, as it may suggest that introducing prohibition with respect to heroin and cannabis is something optional to any party to the convention, namely ,if in its opinion the*prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare". Discretion enjoyed on the basis of this provision by the signatories goes in fact just in the opposite direction, i.e. parties may impose on drugs contained in schedule IV (among others heroin and cannabis), regulations more rigorous than these of Art.4 item c, i.e. limit their legal application in a more rigorous way, exclusively to the purposes of medical and scientific research, i.e. exclude their clinical applications. The misunderstandings and problems with interpreting these provisions result by the way from rather strange and complicated systematic of the discussed provisions.
Because of the mentioned provisions countries which experiment with heroin distribution programs (for example recently Switzerland) have to resort usually to the cover of medical and scientific experiments. Only in such situation such programs may be acceptable from the conventions' point of view. However, when the number of participants exceeds certain boundaries problems may start, as suspicions may arise whether it is still experiment only.
Finally it is necessary to stress, that to make possible more flexible approach to some drugs, some forms of legalization included, it is not required necessarily to repell or change entire single convention or convention on psychotropic substances.
It will be enough for example just to take cannabis away from the schedule IV of the
single convention. In such case the way cannabis would not have to remain completely unregulated. One could imagine for example also special convention regulating cannabis only in a different and more liberal way than single convention does with respect to other drugs.
The prohibitionist approach of the 1961 and 1971 conventions does not prejudge however methods of implementing it. Here conventions seems to flexible. First of all they require introduction and implementation of some administrative measures both on international and national level. Secondly, they require also introduction of certain penal law measures on national level. Requirement to criminaiize variety of acts and behaviours related somehow to drugs is contained in Art.36 paragraph 1 of the single convention and Art.22 paragraph 1 of the 1971 convention on psychotropic substances, which have almost identical wording. At the first glance this requirement seems to be quite broad and to include both supply and demand sides. In fact however it is of quite limited character. Despite the fact that these provisions require, among others, criminalization of such activities as possession, purchase and cultivation of drugs, their interpretation established in official commentaries prepared by the UN Secretary General and based on the purpose of conventions and context of their respective Art.36 and Art.22, provided that this requirement does not apply to possession, purchase or cultivation of small amounts of drugs for own consumption. It means that single convention in fact differentiates between supply and demand side of the drug problem and limits criminal policy measures in principle to the former one. This different treatment of drugs' consumers has been strenghtened in 1972 when Art.14 of the mentioned above amending protocol introduced new paragraph 2 to the Art.36 of the single convention, providing for alternative treatment measures, instead of punishment, for drugs abusers commiting criminal offences. Identical provision has been introduced originally as item b. of the paragraph 1 of Art.22 of the 1971 convention on psychotropic substances. All this means that any solutions adopted in national laws is short of legalizing acces to drugs but constituting either depenalization or is decriminalization of consumption and consumers, were and are permissible under 1961 and 1971 conventions. Because of this full scale decriminalization introduced in the seventies and eighties in such countries as Greece, Spain or Italy, or de facto depenalization in a way of nonenfdrcement in Danmark or Holland were perfectly inaccord with both the letter and the spirit of both these conventions.
Serious problems with implementing policies of non-criminalizing of the demand side of the drug problem started with 1988 Vienna convention, in particular because of its Art.3. Paragraph 1 of this provision repeats as a matter of fact, in a little bit different and broader wording, provisions of Art-36 of single convention and Art.22 of the 1971 convention on psychotropic substances. Moreover, is says explicitly (item a.iii) only possession or purchase with the purpose of trafficking shall be established as criminal offences, what may suggest that nothing changed here.
However, paragraph 2 of this article says that subject to its constitutional principlesand the basic concepts of its legal system, each Party shall adopt such measures asmay be necessary to establish as a criminal offence under its domestic law, when
commited intentionally, the possession, purchase or cultivation of narcotic drugs orpsychotropic substances for personal consumption contrary to the provisions of the1961 Convention, the 1961 Convention as amended or the 1971 convention". At thefirst glance this provision is absolutely clear, and closes the Joophole" (from the prohibitionist point of wiev) existing under earlier conventions: consumption and  consumers have to be criminalized. 'This would be quite consistent with the mentioned above change of the approach to drug problem introduced by the 1988 convention.
Such wiew is expressed quite often in the literature with the suggestion that there is nothing to discuss about this provision. It is namely established rule of the lip legal interpretation that one shall not attempt to interpret clear provisions, i.e. when
there is nothing to interpret. In such situations interpretation may serve only somepartisan purposes and not establishing real meaning of the law. In this particular case of Art.3 paragraph 2 of the 1988 convention any attempt to find some latitute in it would amount to ,wishful thinking" on the side of ,drug liberals" and trying to find in it loopholes it does not contain in fact. The problem is however, that against the first impression this provision is by no means absolutely clear and requires some interpretation. The main question is, wheter Art.3 paragraph 2 establishes really the requirement of criminalizing the demand side of the drug problem, equal to the requirement of criminalizing the supply side contained in its paragraph 1. And this question does not amount to see nonexistent loopholes.
The problem is why supply and demand are dealt with in Art.3 in separateparagraphs? As paragraph 1 dealing with the supply side activities refers also to suchactivities as possession, purchase and cultivation, it was possible just to add that
they include also cases of possession, purchase and cultivation for own consumption,and not for distribution only. Paragraph 2 would be absolutely unnecessary in such situation. Additionaly, the requirement of paragraph 2 is of relative character, namely subject to limitations resulting from constitutional principles and basic concepts of the legal system of each party, while the requirement of the paragraph 1 is of absolute character, i.e. is not subject to this limitation. It is established rule of the legal interpretation, that when lawmaker says something twice in different way, the meaning of both provisions has to be different, i.e. the lawmaker never repeats unnecessarily the same. Additionally Art.3 paragraph 4 item d repeats the formula known to earlier conventions, about treatment measures for addicts commiting offences instead or additionally to criminal sanctions. All this justifies the conclusion that despite prima facie impression 1988 convention differentiates somehow between the supply and demand activities and probably applies different requirements with respect to criminalizing each of them. The problem is what is the essence of this difference and what latitude in decriminalizing or depenalizing consumption and consumers have parties to the convention. The answer to the last question is by no means easy, although the existence of the mentioned latitude itself is in my opinion not subject to doubts. Of course, because of this unclear situation the best way do deal with this problem would be for the Parties to ratify this convention with necessary reservations. This would make the situation absolutely clear. As many countries did not do this however, it is necessary to seek other ways out.
To solve this riddle teleological interpretation, i.e. based on the purpose ofentire convention or given provision, is sometimes used. In the first case theargument is, that 1988 convention attempts to deal first of all with the problem ofdrug trafficking, i.e. supply of drugs. Because it cannot be its purpose to criminalizeanything on the demand side. It means that Art.3 paragraph 2 does not demand criminalizing posession, purchase or cultivation of small amounts of drugs for own
consumption. This argument does not seem, however, to be very convincing. First,although it is probably really sAnge to include provisions on demand in the convention devoted exclusively to the problem of supply, authors of the convention
seem to understand the term trafficking very broadly, in a way which treats demand as the constitutive element of suply. Because of this the term trafficking as used in the 1988 convention includes also demand. Second, interpretation of any provision cannot lead to the conclusion that this provision does not bind at all.
The same applies to the argument, that the main purpose of the convention is to limit consumption of drugs. Since criminalization of the demand for drugs, does not serve this purpose, just the opposite is the case and such criminalization increases usually consumption, it could not be the intent of the authors of the convention to introduce provisions which preclude realization of its tasks. This argument seems to be rather very artificial, although it doesn't mean that authors of the convention were right on merits when introducing such provisions. Nevertheless, it seems that it is difficult to find right solutions to the mentioned riddle by interpreting only provisions of the convention. From this point of view of crucial importance are the limitations contained in Art.3 paragraph 2, namely words, subject to constitutional principles and the basic concepts of its legal system". This is crucial formulation for attempts to delimit the latitute for the parties of the 1988 convention in treating demand side, as existing under the provisions of this convention. It means at the same time that any latitute existing eventually under the 1988 convention does not result exclusively forn the convention itself, but rather from the constitutional and other legal principles of each country. It means that for every country this latitude may be a little bit different, depending on particularities of its legal system. Below I will list some possible solutions, without treating them as definitive answers to the problem, and without pretending that this list exhausts allpossibilities.
The first possible argument of constitutional nature which may be used to lift,at least to certain extent requirements of the Art.3 paragraph 2, constitutes the rulewidely accepted now in the legal literature on criminal law, namely the principle that self-destructive behaviours shall not be subject to punishment. Criminal law protects certain so called Jegal values" against encroachments by the third parties, but not against those who have right to dispose with those values. It does not mean
necessarily that such behaviours do not constitute social or other problems requiring some sort intervention. But they.shall not be dealt with the means of criminalpunishment. The best example here constitutes decriminalization, in probably allcontemporary criminal codes in the world, of suicide, although nobody would saythat suicide is no problem. The same applies to consumption of drugs. There may bevarious doubs, justified or not, whether there exists right to use drugs. However,although destroying someone's own health may constitute a social or medicalproblem, shall not be criminalized. There is no duty to be healthy. This argument,although very strong from the point of view of legal theory, has one problematicaspect. Mentioned principle not always has constitutional character. Also, even insuch countries where it has such character, constitutional or other courts interpret itsometimes in a very narrow manner. The best example constitutes Germany, wherethis principle has constitutional character and was acknowledged by theConstitutional Tribunal. However the Tribunal in its 1994 decision confirmed that onthe basis of this principle only consumption itself shall not be punished. Activitiespreparing consumption and making it possible, such as purchase, cultivation or first of all possession, may be criminalized legitimately, as they involve always the possibility of transferring drugs (in that case cannabis) to others and endangering in that way their health. Independently of the evaluation of the position of the GermanConstitutional Tribunal it seems still that the argument discussed may be quite useful and strong one, depending of course on the particularities of the given legal system.
Second possible argument, or rather method of dealing with the Art.3paragraph 2 of the 1988 convention may be to invoke the expediency principle, andpossibilities of non prosecuting certain cases. This argument is being quite often usedfor instance in Holland. From purely legal point of view Dutch system is quiterestrictive one, as it criminalizes also demand side, possession of small amounts ofdrugs for own consumption included. These provisions are however not enforced. In
Dutch literature one may find the argument that this solution complies in full with the 1988 convention, as UN Conventions require only criminalization of certain activities, but they do not say anything on the scope of the required enforcement.
Unfortunately this argument does not seem to be particularly convincing, as in thisway any provision of any convention or any other legal act could be circumvented. Itwould be enough to introduce 3:ertain provisions and at the same time to forget
about them. As a matter of fact the 1988 convention seems to try do deal with this problem and to preclude eventual ,abuses" of this method in Art.3 paragraph 6, although the exact meaning of this provision is not quite clear.
All this does not mean that Dutch approach necessarily violates 1988 convention. It means only that mentioned above argument resorting to nonenforcement goes too far. It seems that despite mentioned problems, some forms of nonprosecution and expediency seem to constitute the best way to deal with Art.3 of the 1988 convention and to make more flexible approach to the demand side of the drug problem possible. They cannot however go too far, making impression that total circumvention of the conventions is being attempted. The essence of this approach consists of the fact that every legal system has certain rules of dealing with the variety of offences of petty character. These rules have usually more or less codified character and are based on some sort of expediency: it does not make too much sense to engage criminal justice agencies in cases of minor character. Because of this such cases are somehow depenalized or decriminalized. Cases of possessing smal quantities of drugs, which indicate that they are posessed solely for the purpose of own consumption and will be not transfered to others may be dealt with in this way as minor offences, which do not endanger in any way anybody but the perpetrator him/herself. The argument may be even stronger, if such depenalization or decriminalization will be limited to certain less dangerous drugs, for example cannabis. As a matter of fact this approach has been chosen by the German Constitutional Tribunal.

Additionally there is one more thing about this approach to mention. Technically it seems better to apply in such cases depenalization rather than full decriminalization. The former approach retains namely criminal character of the activities related to consumption of drugs, but in minor cases they are not enforced.
Decriminalization may be more prone to the charges of violating the 1988 convention, although practical effects of both approaches seem usually to be identical. To sum up, it seems that some, although small lattitude to depenalize consumption-related activities exists even under UN 1988 restrictive convention. The question is, is this latitute satisfactory. From the antiprohibitionist point of view it is certainly very small, much much too small. On the other hand, given the current circumstances and the approach to the drug problem predominating in UN agencies one may be happy that there is still any latitude left at all. Unfortunately, implementation of more rational drug policy, including not only eventual legalization, but also broader decriminalization, would require probably amending 1988 convention, first of all repelling its Art.3 paragraph 2.

Last Updated on Saturday, 25 December 2010 20:33

Our valuable member Krzysztof Krajewski has been with us since Sunday, 19 December 2010.