International law tackles harm reduction
Professor Brice de Ruyver
University of Gand, Belgium
It has emerged from a legal study published by the Pompidou Group (1), some extracts of which are given below, that harm reduction strategies can sometimes be in contradiction with the international drug control laws. Two experimental harm reduction strategies have come up against legal barriers in this way: drug testing at rave parties and the medical prescription of heroin for relapsed drug users.
THE MEDICAL PRESCRIPTION OF HEROIN IN EUROPE
After an early experiment in 1994-1997 in which heroin was prescribed for chronic drug abusers, mainly in the framework of maintenance programmes, Switzerland is still using heroin as an alternative to methadone. The Swiss experiment gave rise to much debate about heroin prescription in all the member countries of the European Union, and although similar experiments have been envisaged in several of these countries, only the Netherlands actually launched a project on these lines in 1997. In Germany, the legal framework for experiments of this kind was approved in 1999. (source EMCDDA)
Heroin prescription is the legally controlled distribution of heroin (for intravenous injection and/or inhalation) (2) to problematic heroin addicts or multi-drug addicts mainly taking heroin, after methadone maintenance or other treatment programmes have failed. The prescription of heroin is just part of a comprehensive program providing these patients with health care, therapy and social assistance (3). Heroin-assisted treatment would therefore be a more appropriate description of risk reduction strategies of this kind, which have been adopted experimentally in a few countries, such as Switzerland and the Netherlands. Several articles in the 1961 and 1971 Conventions oblige governments to ensure that all use and possession of drugs is strictly for medical and scientific purposes only. According to Article 4, subparagraph 1 (c) of the 1961 Convention, along with subparagraph 1 (a) of that same article, it is prohibited to give people free and unrestricted access to narcotic drugs for non-medical purposes. In other words, the Conventions stipulate that narcotic drugs and psychotropic substances are to be used only for strictly "medical and scientific purposes".
Since none of the international drug control conventions contain definitions of either the expression "medical and scientific purposes" or the individual terms "medical" and "scientific", it is necessary to consult the Vienna Convention on the Law of Treaties. In this Convention, customary international law on many issues, including interpretation, is codified. In particular, it is stated in Article 31 that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". However, neither the ordinary contextual meaning of the expression "medical and scientific purposes", nor the specific meaning of the term in the framework of the aims and purposes of the three Conventions throw any light on the proper use and significance of the expression. The Conventions do not impose any restrictions on the signatory Parties as to how their activities in these fields should be regulated. (...) Each State is therefore free to reach its own conclusions as to what "medical and scientific purposes" may consist of.
In conclusion, the United Nations Conventions do not specify very clearly what is meant by "medical and scientific purposes" or what kinds of substances can be used for these purposes. In any case, they do not prohibit the socio-medical delivery of drugs, including heroin. Although it is therefore legally possible to prescribe heroin for opiate abusers, the I NCB (see insert below) does not encourage governments to legalise heroin prescription, since the study carried out in Switzerland yielded no clear-cut answers to the relevant questions raised (5), and because heroin actually has very few medical properties. Heroin is listed after all in Table IV, which contains the most harmful drugs with little medical value. The INCB cannot however prohibit medical experiments involving the prescription of heroine, since this organisation is officially responsible for "making sure that (drugs) are made available for these purposes", as stipulated in article 9 paragraph 4 of the 1961 Convention.
DRUG TESTING AT RAVE PARTIES
On-the-spot toxicological pill tests are sometimes carried out at rave parties, where buyers can obtain personal, tailor-made advice about the safety of the tablets they intend to take: the purity and contents of these tablets are tested prior to their use. This controversial practice is carried out in only a few countries, such as Austria, Germany, Portugal, France and the Netherlands, and mainly targets teenagers attending "raves". On-the-spot drug testing implicitly condones illicit drug use, which is against the international Con ventions, as clearly stated in Article 38 of the 1961 Con vention: "parties should pay special attention to the abuse of drugs and take all practicable measures to prevent it". Article 20 of the 1971 Convention and Article 14 of the 1988 Convention contain similar provisions. Besides, giving information and advice about particular drugs might be felt to amount to inciting or encouraging the public to use illicit drugs. And this practice is prohibited according to the terms of Article 3, paragraph 2, of the 1988 Convention, which requires governments to make this act a criminal offence.
However, countries where the expediency principle is applied may, by virtue of the public prosecutor's discretionary power, decide not to prosecute people for taking drugs. Since the Conventions were set up in order to prevent drug abuse, this can hardly be said to constitute "loyal enforcement" of their provisions, by any stretch of imagination.
On the other hand, since the expression "medical and scientific purposes" has never been exactly defined, drug testing can be said to come within the scope of this term. That is to say, the purpose of pill testing is' to determine the exact composition of the pills, and this activity therefore qualifies as an operation performed for scientific purposes. In addition, pill testing laboratories can be said to be "regional scientific research and educational centres responsible for solving the problems resulting from the illicit use of narcotics", as defined in article 38 (b) of the 1961 Convention.
1 A co-operative group fighting the abuse of narcotics and their illicit trafficking. This was the first co-operative anti-drug network to he ` set up in Europe.
2 Vloemans. F. Medical prescription of heroin in the Netherlands. 1999. Available at the following site:www.admin.cli/bag/sucht
3 SWISS FEDERAL OFFICE OF PUBLIC HEALTH, The Swiss drug policy. A fourfold approach with special consideration of the medical prescription of narcotics, Bern, 1999. (electronic copy: www.admin.ch/bag/sucht/drog pol/drogen/c/dpolitik/drugpol-c.pdf).
4 EUROPEAN MONITORING CENTRE ON DRUGS AND DRUG ADDICTION, Reviewing legal aspects of substitution treatment at international level, s.l., August 2000, p. 1-2.
5 SWISS INSTITUTE OF COMPARATIVE LAW, Gutachten uber medizinische Anwendung von Betaubungsmitteln. (An appraisal of the medical use of narcotics). Lausanne, 1999. (electronic copy: www.admin.cli/bag/sucht/thcrphr/c/expe_e.htm).
90 YEARS OF INTERNATIONAL LEGISLATION
• In 1909, representatives of thirteen countries met in Shanghai and placed opium production under international control.
• In 1912, these countries met in The Hague and extended the control to coca production.
• In 1925, about ten nations signed two Geneva Conventions. The one prohibited the use of opium and trading in prepared opium, and the other placed trading in raw opium, coca leaf, cannabis, and their derivatives under international control.
• The 1931 Geneva Convention laid down the principle that narcotics should be used for medical purposes only. It also placed an embargo on the import and export of narcotics drugs to and from countries that did not keep to their production quotas.
• The 1936 Geneva Convention for the Suppression of the Illicit Traffic in Dangerous Drugs was signed by 26 of the League of Nations members. The Convention set up a system of international co-operation to combat the trade and called on governments to set up a central office specially for this purpose, This is the only international law voted created prior to the 1961 Single Convention on Narcotic Drugs that has been kept in force.
• The 1948 Paris Protocol extended the international control to newly marketed synthetic drugs that had comparable effects to those of opium.
• Three conventions drawn up within the framework of the United Nations finally established the basis of a general ban on narcotic drugs for other than therapeutic or scientific purposes.
-The 1961 Single Convention on Narcotic Drugs, which focused on 99 different plants and substances, was ratified or implemented by most of the governments. Several of its provisions were reinforced by the 1972 Geneva Protocol.
-The 1971 Convention on Psychotropic Substances was ratified by more than half of the world's nations. This Convention applies to 103 hallucinogenic drugs, amphetamines, barbiturates and tranquillisers.
-The 1988 Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances laid down the foundations for controlling drug trafficking and stipulated that 22 specific precursor substances used in the illicit manufacture of drugs were to be placed under control.
THE INTERNATIONAL NARCOTICS CONTROL BOARD
The International Narcotics Control Board (INCB)* set up by the United Nations is an independent body responsible for supervising the implementation of international drug control conventions. As regards the legal manufacture, sale and use of drugs, the Board endeavours to ensure that adequate supplies are available for medical and scientific purposes, and to prevent the occurrence of leakages from licit sources to illicit traffic. As far as illicit drug dealings are concerned, the Board identifies any gaps in the national and international control systems and contributes to correcting them. To this end, the Board maintains close contacts with international organisations and governments in order to make sure that conventions are properly applied and that the information submitted to the Board for analysis is regularly updated. Whenever necessary, the Board negotiates with governments to induce them to fulfill their obligations.
*The INCB publishes an annual report, which is available on the internet at the following address :http://www.incb.org