Habits of a Hegemon
The United States and the future of the global drug prohibition regime
by David Bewley-Taylor
Transnationational Institute July 2002
As dissatisfaction with the prohibition oriented UN drug control system builds, increasing numbers of states are reviewing their stance on the international treaties. The Netherlands is no longer isolated in testing the boundaries of the Conventions. Recent years have seen nations from around the world implement, or seriously discuss, harm reduction measures that work 'within' the legal confines of the global drug prohibition regime. With such a trend, however, comes the realisation that the Conventions still stand as a major obstacle to the introduction of pragmatic policies at a national level. While the tolerant approaches adopted by a number of nations have undoubtedly weakened the current regime, it seems that further progress will only be possible either through some sort of change in or defection from the regime.
Any such move would certainly encounter considerable hostility. As noted in the previous article, a major obstacle to considering any changes in that direction is the consensus-driven functioning of the CND. An important force sustaining such consensus is the United States. As its staunchest defender, it is the US that maintains the regime's disciplinary framework. Pressure from Washington has long supplemented the moral legitimacy bestowed upon the doctrine of prohibition by the UN.(1) This has produced a formidable source of inertia. Through the strategy of issue linkage, the US has certainly exploited its hegemonic status for the defence of the global drug prohibition regime it has worked so hard to construct.(2) This UN-US alliance has made it difficult for nations to deviate significantly, or even to discuss deviation, from the doctrine of prohibition. Since the 1980s, the US has used certification as an important vehicle for economic persuasion. The annual process has also been strengthened in recent years by Washington's efforts to conflate its war on drugs with the transnational fight against organised crime.(3) Such a move increases the reputational implications of deviation. Similarly, US moves to fuse the drug war with the new war on terror makes movement away from the prohibitive regime potentially damaging for a nation's international image.
Clearly, when considering any change at the UN level, it would be unwise for nations to ignore the US's habitual use of hegemonic power to protect global drug prohibition. Beyond proselytization, maintenance of the regime is important because it helps Washington to legitimise both domestic policies and many overseas activities. The aim of this article then is to explore, within the context of possible US reaction, some of the options available to nations wishing to create more policy space at a national level. As I hope to show, moves to initiate regime change with in the confines of international law are prob lematic. A consequence of this may see nations withdrawing, whether legitimately or otherwise in terms of international law, from one or all of the drug control conventions. Like other moves to deviate from prohibition, this would undoubtedly provoke a hostile response from the US. Nonetheless, the recent 'America First' policies of the Bush II administration may offer increased scope for manoeuvre. Washington's abandonment of multilateralism in a number of key international areas has highlighted what Bruce Cronin has called the Paradox of Hegemony: the tension that exists between a hegemon's multilateral responsibilities and a desire and material capability to act unilaterally.(4) As will be argued, while bringing difficulties of its own, such a paradox greatly undermines Washington's capacity to act as the enforcer for the UN drug control apparatus.
Modification of the Treaties
The re-scheduling of substances is one pos sible method parties could use to create more space for movement within the current regime. This is an option often discussed in relation to cannabis. This is especially the case since the WHO recently announced that it would be "very pleased to consider scientific data" on the drug. As the WHO noted, the Single Convention outlines conditions for the changes in the scope of international control. Article 3 allows for amendments to the list of classified substances and the system accom panying them. The WHO or any contracting party can initiate the modification process at any time. This is a legitimate course of action. At the practical level, however, it is far from straightforward.
It can be taken as a given that any move towards modification would provoke US displeasure and attempts to discredit and 'persuade' parties to refrain from such action. Nonetheless, fundamental problems do exist with regard to the legal status of the cultivation of `natural drugs: As the International Anti-Prohibition League noted in 1994, according to the text of the commentary to the 1971 Convention on Psychotropic Substances, cannabis and cannabis resin "...could be deleted by the Commission [on Narcotic Drugs] 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 o f the measures o f control mentioned in article 26 and article 28 paragraph 1" (emphasis added).(5) To be sure, the retention of these unaltered articles means that any changes resulting from the reclassification of cannabis would not include provisions concerning cultivation. The CND, therefore, would be unable to abolish the prohibition of cultivation since it is entrenched in specific articles of the 1961 legislation. Only an amendment to the Single Convention could achieve revision. Such a situation clearly limits the utility of the rescheduling route. While other drugs could theoretically be re-scheduled according to procedures laid out in Article 3 of the Single Convention, changes relating to cannabis (as well as the coca leaf and opium) would be greatly limited.
Concerns surrounding the issue of cultivation may be purely academic considering the considerable systemic obstacles that stand in the way of reclassification. While the WHO plays a central role in the rescheduling process the body can only make non-binding recommendations. The power to make any changes in classification initially belongs to the CND. The current state of the Commission makes it unlikely that sufficient support for rescheduling would be forthcoming. The complex dynamics of the 53-member body creates considerable inertia resisting any significant change within the regime. Additionally, while perhaps not as dominant as in earlier years, the US still plays an important role in influencing the direction taken by the Commission. As a diplomat at the UN in Vienna observed only a few years ago "Wherever a nation seems about to break ranks [with Washington's views on prohibition] the US will be there, cajoling or threatening.(6) Under such circumstances even the necessary majority, rather than a consensus, decision required to approve re-scheduling may prove unobtainable.
And yet, even if the WHO or a party were to make a recommendation concerning reclassification and the CND were to accept it, Article 3 has other means for blocking possibilities. In accordance with paragraph 8 (a) only one party has to make a request for the Commission's decision to be taken to the ECOSOC for review. The Council then has the authority to confirm, alter or reject the decision of the CND. The ECOSOC's decision is final. This clause could easily be invoked by the US or a proxy nation to shift the decision-making process to the 54-member Council. Again, although the judgment is dependent upon a majority rather than a consensus decision, the forum of the ECOSOC would offer the United States further opportunities to create and exploit issue linkage.
In light of both the cultivation issue and the obstacle-strewn route to re-scheduling, parties may feel that the modification game isn't worth the candle. It would seem at first glance that the amendment procedure offered by Article 47 of the Single Convention is a more cost-effective route. As with modification, however, the amending route provides plenty of scope for blocking action by a nation opposed to revision of the regime. The central role played by the ECOSOC in the process would again permit the US to take advantage of issue linkage.
Amending the Single Convention involves parties notifying the Secretary-General of a proposal for an amendment, including the reasoning behind the move. The Secretary-General then communicates the proposed amendment and the reasons for it to the Parties and to the Council. It is then the ECOSOC's decision to either call a conference to consider the amendment, or ask the parties if they accept the amendment. If no party rejects the amendment within 18 months after circulation by the Council, the amendment comes into force. This outcome would appear to be most unlikely with the US stance on the maintenance of the regime beyond doubt. If, as is more probable, one or more parties reject the amendment and submit to the ECOSOC their comments within 18 months, the Council can decide whether or not to convene a conference to consider the amendment. While such a conference, if it were to be held, may be of use in raising the profile of the revision issue, it would still be far from certain that meaningful revisions would be made. It is also worth noting that, by virtue of the powers it holds from the Charter of the United Nations, the Council may simply refuse to make a decision on the proposal.(7) There is consequently no guarantee that an amendment would ever even make it to the conference phase.
Clearly then, difficulties beset the options available to create more room for manoeuvre within the current regime. It is fitting that much like the US legislative process, the UN system is also vulnerable to blocking and often characterised by gridlock. In order to circumvent such stasis, and yet remain within the rules of international law, parties may consider two other options: denunciation of the treaties and the invocation of the principle of primacy of national constitutions with specific regard to human rights. Both would provide nations with legally valid opportunities to withdraw from the treaties altogether.
Withdrawal from the Treaties
Articles within all the treaties allow parties to withdraw consent by depositing in writing a denunciation with the Secretary-General.(8) Although perhaps regarded as an extreme move, action of this type, as the Canadian LeDain Commission noted thirty-years ago, ". . . would not o f course, be in violation of international obligations" since it is written into the treaties.(9) It would undoubtedly, however, draw extreme criticism from the UN and the US. As noted above, a party who chooses to denounce the treaties would have to be prepared to face not only US-UN condemnation but also the threat or application of some form of US sanctions. As Peter Andreas notes, "Open defection from the drug prohibition regime would ... have severe consequences: it would place the defecting country in the category of a pariah 'narcostate,' generate material repercussions in the form of economic sanctions and aid cut offs, and damage the country's moral standing in the international community.(10) This would create different problems for different states. For economic reasons, so-called developed nations are better placed to resist US-UN pressure than those from the so-called developing world.
Denunciation, nonetheless, opens up some
interesting possibilities. If a credible group of parties from Europe,
Australasia and Latin America, for example, were to combine to denounce one or
all of the treaties, the USUN axis may lose much of its potential influence. The
'denouncers' may find safety in numbers. Paradoxically, by moving to leave the
confines of the regime such a group might be able to generate a critical mass
sufficient to initiate regime change and thus create some space for movement at
the national level within the current system. The UN apparatus and the US might
be more open to treaty modification or amendment if it was felt that such a
concession would prevent the destruction of the existing treaty system. This
would differ from the procedures to modify the treaties discussed above since
such a group would not simply be playing the numbers game in an effort to gain
majority decisions in both the Council or the Commission. A sufficiently weighty
'denouncers' group may be able to not only withstand UN-US pressure, but also
apply pressure itself.
Alternatively, in view of the fact that members of the group would have already
broken free from the regime, nations may feel sufficiently confident to simply
walk away from the treaties. While theoretically possible it would be highly
unlikely that the denunciation route could be employed to formally terminate the
treaties. For example, as of January 2002 it would require 138 nations to
denounce the 1961 Convention and reduce the number of ratifications below the 40
required, in accordance with Article 41, to bring it into force. Nonetheless,
depending upon its composition, a group denunciation would greatly weaken the
regime without actually requiring the 'de-ratification' of any of the
conventions.
Should parties prefer not to follow the denunciation route, they could exploit what Peter Webster has called an "important loophole" in the treaties.(11) As Webster notes, the 1997, UNDCP World Drug Report states:
"...[none of the] three international drug Conventions insist on the establishment of drug consumption per se as a punishable offence. Only the 1988 Convention clearly requires parties to establish as criminal offences under law the possession, purchase or cultivation o f controlled drugs for the purpose of non-medical, personal consumption, unless to do so would be contrary to the constitutional principles and basic concepts o f their legal systems.(12) (emphasis added)
Thus, if the highest courts in signatory nations ruled that such prohibitive clauses with regard to a single drug (cannabis for example) or a selection of outlawed substances was unconstitutional, then the parties involved would no longer have to work within the limitations of the Convention with respect to those drugs. Such action would be perfectly legitimate according to the provisions of the treaties themselves. Debate already exists with regard to the value of challenging drug prohibition on the grounds of human rights violations. (14) As with all of the options discussed here, this course of action would undoubtedly attract massive criticism and more from the UN and the US. Yet, as with the denunciation option, a group of nations would more likely be able to withstand pressure. Defection via this route would again severely weaken the treaty system and possibly act as a trigger for regime change.
Disregarding the Treaties
Another strategy, as alluded to above, would be for parties to simply ignore the treaties. In this way, they could institute any policies deemed to be necessary at the national level, including for example the legalisation of cannabis and the introduction of a licensing system for domestic producers. This option has been gaining support amongst many sup porters of harm reduction for some time. Dis regarding the treaties, however, raises serious issues beyond the realm of drug control. The possibility of nations unilaterally ignoring drug control treaty commitments could threaten the stability of the entire treaty system. As a consequence, states may be wary of opting out. Some international lawyers argue that subject to the principle of rebus sic stantibus all treaties can naturally cease to be binding when a fundamental change of circumstances has occurred. This doctrine of changed circumstances can undoubtedly be applied to the drug treaties. Yet, the selective application of such a principle could call into question the validity of many and varied conventions.
This 'collective responsibility for global order' argument would, of course, be more persuasive were it not for the cafeteria approach to international law adopted by world's only Superpower. The US withdrawal from the Kyoto Treaty and repudiation of the ABM treaty had already gone a long way to threaten the treaty system before its recent announcement to 'unsign' itself from the convention to establish an International Criminal Court. In facilitating this unprecedented move, the Bush II administration has asserted that the US is also no longer bound by the Vienna Convention on the Law of Treaties. Under the 1969 convention, a country that has signed a treaty cannot act to defeat the purpose of that treaty, even if it doesn't intend to ratify it.(15) Thus, having set this precedent on the basis of national interest, Washington will surely find itself in an awkward position vis-à-vis its opposition to any defection from the drug control treaties on similar grounds.
Conclusions
Nations wishing to expand national policy space by operating beyond the confines of the current global drug prohibition regime are faced with several possible paths. These all have their own problems and cannot be realistically considered without reference to the us.
The possibility for parties to successfully modify the treaties is limited. Many opportunities exist for nations that favour the status quo, particularly the US, to block any move for re-scheduling or amending. A re-examination of the treaties may also provide prohibition-oriented nations with the opportunity to hijack proceedings and strengthen the current regime. This may lead parties to seriously examine various options for denunciation and withdrawal. As shown, a credible alliance of nations would be better able to withstand UN-US opposition than a lone state. That said, levels of resilience would certainly differ between nations, depending upon their economic status and relationship with the US. The abandonment of many multilateral treaties by the Bush II administration has also re-opened debate on the efficacy of simply ignoring the drug conventions. If faced with censure for defecting from the global prohibition regime, parties will now be able to argue that they are merely emulating the habits of a hegemon.
It is clear that international acceptance of a US-inspired and perpetuated global blueprint for drug prohibition is waning fast. Yet, while becoming increasingly isolated, the US, as hegemon, still chooses to support the global drug prohibition regime. Here, the words of Kettil Bruun, Lynn Pan and Ingemar Rexed are as pertinent as ever. In their 1975, The Gentlemen's Club, they wrote, "The limits o f action in the drug field are, like in many other fields, set by the lines o f political relationships prevailing in the world at large."
David R. Bewley-Taylor lectures at the Department of American Studies of the University of Wales Swansea, UK; he is the author of The United States and International Drug Control, 1909-1997, Continuum, London, 2001.
2. David R. Bewley-Taylor, The United States ... op. cit.
11. Peter Webster, "UN Treaties and the Legalization of Drugs," www.druglibrary.org/