Swiss Institute of
Comparative Law
AVIS 99-121c
january 7 2000
Use of Narcotic
Drugs in Public Injection Rooms
under Public
International Law
1. Relevant legal concepts
State-controlled
public injection rooms are not expressly referred to in any of the relevant
international conventions. It is thus necessary to determine, by way of a
preliminary factual enquiry, the exact characteristics of such institutions
that fall within the ambit of one or more of the conventions. As our Institute
has no special expertise in that field, we rely entirely upon the description
that appears on pages 1, 2 and 3 of the Avis
de droit concernant les "stations pour toxicomanes" prepared by
Professor Hans Schulz in June of 1989. Prof. Schulz describes the Fixer-Stübli as essentially providing
socio-medical care and survival assistance to long-term drug addicts. Such
persons are also permitted, under the supervision of medically trained staff
and in good sanitary conditions, to inject themselves with drugs which they
have brought with them. They cannot obtain drugs on the premises, as all forms
of dealing and trafficking are strictly prohibited, the police being prepared
to repress such activity at any time. There is also no question of the rooms
being used for or in association with the cultivation, manufacture, import,
export, or distribution of narcotic drugs or psychotropic substances or for
managing the proceeds of drug trafficking. We therefore propose to proceed on
the basis that the potentially illegal activities inherent to Fixer-Stübli are the consumption or use
of drugs by long-term drug addicts and their possession of drugs for the
purpose of their own personal use. This is also the basis upon which Prof.
Schulz proceeded in his analysis of the conventions at pages 13 through 16 of
his legal opinion. We will however, begin by examining those treaty provisions
which expressly deal with the treatment of drug addicts and which are
therefore the most specifically relevant to a legal analysis of the legality of
Fixer-Stübli.
2. Provisions
concerning the treatment of drug addiction
All
three of the relevant international conventions contain provisions of an
essentially programmatic nature which specifically refer to "drug
abusers".
Art.
36, subpara. 1(b) and Art. 38 of the 1961 Convention, Art. 20 and Art. 22,
subpara. 1(b) of the 1971 Convention and Art. 3, para. 4 of the 1988 Convention
uniformly refer to the "treatment, education, aftercare, rehabilitation
and social reintegration" of abusers. The obligations of States Parties in
this respect are formulated in very flexible and vague terms. They are required
to "take all practicable measures" for the benefit of abusers, but
such measures are not further specified. Where criminal offences are committed
by drug addicts, States have the option of resorting to these measures instead
of, or in addition to, prosecution and punishment of the offenders. Whereas the
1961 and 1971 Conventions required that offenders be compulsorily subjected to
such measures in default of prosecution, subparas. 4(c) and (d) of Art. 3 of
the 1988 Convention are purely permissive: "... Parties may provide ...
measures for the treatment," etc. The conformity of Fixer-Stübli with the conventions must therefore be considered by
reference to those provisions of the conventions which specifically refer to
drug addicts, independently of whether States Parties are required to
generally criminalise possession of drugs and psychotropic drugs for personal
use.
The
rather superficial provisions concerning drug addicts stand in stark contrast
to the stated primary aims of the conventions, which are formulated in the
preambles as preventing and combatting abuse of narcotic drugs and
psychotropic substances and the public health and social problems which such
abuse engenders. It was recognised, at least since 1971, that the existance of
a demand for drugs among addicts is the root cause of international illicit
traffic in drugs. The seventh paragraph of the 1988 Convention, which by its
title is primarily concerned with illicit traffic, nevertheless accepts that it
is also necessary to directly attack the problem of abuse. An effective
response to the plight of drug addicts is accordingly essential to the
realisation of the object and purpose of the Conventions and that object and
purpose, as will be seen below, is also of importance for the interpretation of
individual provisions in the Conventions.
For
the purposes of this legal opinion, much therefore depends upon the issue of how
best to care for drug abusers and how to induce them into rehabilitation. The
1961 and 1971 Conventions simply ask for the rehabilitation and social
reintegration of addicts, without indicating how these objectives should be
attained. Art. 14 of the 1988 Convention is entitled, "Measures to ...
eliminate illicit demand for narcotic drugs and psychotropic substances"
and might be expected to contain concrete policy choices. Unfortunately, para.
4 simply exhorts States Parties to "adopt appropriate measures aimed at
eliminating or reducing illicit demand for narcotic drugs and psychotropic substances,
with a view to reducing human suffering and eliminating financial incentives
for illicit traffic" and the choice of such measures is left entirely to
the discretion of States Parties. No guidance at all is provided to the persons
who must decide whether or not state-controlled public injection rooms are
conducive to the rehabilitation and social reintegration of addicts, to the
reduction of human suffering and to the elimination of financial incentives for
illicit traffic. This is indeed not a legal question at all, in the sense that
medical experts, social workers and health policy makers are much better
equipped than lawyers to provide reliable responses. Our Institute is certainly
not in any position to provide a concrete response. The recent letter of the
International Narcotics Control Board addressed to the Danish Minister for
Health must be read in the same light. The operative third paragraph, considering
public injection rooms, is an opinion on drug policy, reflecting certain
implicit policy choices as to optimal policing practice and socio-medical
treatment of drug users. It is neither a statement of public international
law, nor, in the quality of an opinion of the INCB, itself legally binding upon
Denmark or any other State.
On the
other hand, a substantive answer might be found in the actual practice of
States in respect of drug addicts. According to subpara. 3(b) of Art. 31 of the
Vienna Convention on the Law of Treaties, the subsequent practice of States in
the application of their treaty obligations should be taken into account when
interpretating the treaty, if that practice shows that the Parties
substantially agree on its meaning. It could therefore be worthwhile to make
enquiries in other European States to determine whether they promote or
tollerate institutions similar to the Swiss Fixer-Stübli
in the context of their drug policies. Para. 4 of Art. 14 of the 1988
Convention specifies that States may rely upon the initiatives of
non-governmental agencies and private efforts in this field and may make
bilateral or regional arrangements with other States. Should it appear that
almost all States in the region are following the same policy, either in favour
of or against the maintenance of public injection rooms, this would provide a
basis for an internationally uniform interpretation of the otherwise ambiguous
terms of the conventions on that subject.
Going
beyond state obligations to provide for drug addicts under public health law,
we will now proceed to consider state obligations concerning possession and use
of drugs under criminal law generally.
3. Possession for personal
use under the 1961 Convention
The concepts of
use and possession of drugs first appear in Art. 4 of the 1961 Convention, as
amended. Paragraph (c) of this provision, headed "General
Obligations", obliges States Parties to limit by law the use and
possession of drugs to medical and scientific purposes exclusively. We draw
attention in this context to our finding, in the chapter headed "UNO
Konventionen" in our Gutachten über
medizinische Anwendung von Betäubungsmitteln of 1 November 1999, that the
definition of "medical and scientific purposes" has not been
determined under public international law, with the result that its
interpretation is left to individual States. Under Art. 4(c), it would
therefore be possible for Switzerland to determine that the possession and
consumption of drugs in Fixer-Stübli
fall within the meaning of "use and possession for a medical purpose"
and to allow possession and consumption to that limited extent. However, the
obligation set out in Art. 4(c) is expressly "[s]ubject to the provisions
of this Convention", so it is necessary to continue our enquiry before
coming to any definite conclusion.
None of the other
articles of the Convention refer to the use or consumption of drugs. Art. 33 of
the 1961 Convention, expressed in very concise terms, is specific to the possession
of drugs. According to this provision, States Parties are obliged to prohibit
possession "except under legal authority". This must logically mean
that States Parties are obliged to pass some legislation dealing with
possession of drugs. However, the scope of the legal authority for possession
which such legislation may confer is not specified. Thus, it is permissible for
States to legalize possession in any circumstances which do not detract from
the object and purpose of the Convention. The only other express reference to
possession of drugs appears in para. 1(a) of Art. 36, where States Parties are
obliged to make it a punishable offence. However, this obligation only applies
in so far as the possession can be characterised as "contrary to the
provisions of this Convention". In the result, this provision simply
refers back to Art. 33 and does not add anything of substance.
We are thus left
with the question of whether legalisation of the simple possession of drugs for
the purpose of personal consumption in an environment of socio-medical care
would contradict the object and purpose of the Convention. This is a question
which Prof. Schulz addressed in the form of a careful study of the travaux préparatoires to the Convention
and we agree with his conclusion: the essential aim of measures to be taken
under both Art. 33 and Art. 36 is to combat illicit drug trafficking.
Nevertheless, attention should also be drawn to the general observations of
States Parties set out in the preamble to the 1961 Convention. The Parties
recognise that drug addiction "constitutes a serious evil for the
individual", feel themselves to be under a "duty to prevent and
combat this evil", desire to "limit ... drugs to medical and
scientific use" and provide for cooperation and controls on drugs at the
international level. These formulations could lead one to argue, contrary to
Prof. Schulz' analysis, that personal possession and use of drugs by final
consumers is the root cause of all illicit traffic and that its legalisation
would therefore necessarily contradict the object and purpose of the
Convention. On the other hand, that argument is of limited relevance to public
injection rooms, which tolerate drug use and associated possession of drugs in
an environment of socio-medical care and only by persons who are already
addicted and would therefore consume drugs in any environment. That drug use is
not generally prohibited by the Convention, reinforces this view. As explained
under point 2, above, none of the operative provisions of the Convention place
restrictions on how individual States choose to combat the evil of addiction,
within a medicalised environment, at the national level. The Convention's
general prohibition of possession of drugs should accordingly be understood as
referring to possession for one of the purposes specifically outlawed by the
Convention, such as exportation, distribution or sale. Possession for the
purpose of personal consumption only is excluded. Whichever view is taken,
States remain free to permit possession of drugs for personal use, either
generally under Art. 33, or at least for medical purposes under Art. 4(c).
It should be
noted that Prof. Schulz' legal opinion relies heavily, in this context, upon
the Commentaries prepared by the United Nations Secretariat, which we have
characterised in our study of 1 November 1999 as having no legal force. The
passages from the Commentaries which Prof. Schulz cited however, refer to the travaux préparatoires, which, under Art.
32 of the Vienna Convention on the Law of Treaties, may be referred to in order
to avoid manifestly absurd or unreasonable interpretations of conventions. To
interpret the 1961 Convention on Narcotic Drugs as prohibiting all possession
of drugs while allowing personal use would be unreasonable, as it is practically
impossible for someone to use drugs without possessing them. In fairness to
Prof. Schulz, it should also be said that his legal opinion was essentially
concerned with questions of Swiss domestic law, referring to and interpreting
the 1961 Convention only because it has overriding force within the domestic
legal system. Our analysis, on the other hand, is concerned purely with public
international law.
4. Possession for personal
use under the 1971 Convention
The 1971
Convention on Psychotropic substances creates two quite distinct regimes of
legal regulation of the use and possession of such substances.
Art. 7 sets out
very strict standards in respect of Schedule I psychotropic substances. States
Parties are obliged to restrict their use to "very limited medical
purposes by duly authorised persons, in medical or scientific establishments
which are directly under the control of their Governments or specifically
approved by them", to quote para. (a) in relevant part. States Parties are
obliged to prohibit their possession unless obtained "under a special
licence or prior autorization", to quote para. (b) in relevant part. It is
very difficult to see how the tolerance of possession and use by drug addicts
in a Fixer-Stübli could be acceptable
under these provisions.
On the other
hand, Arts. 4 and 5 set out standards in respect of Schedule II, III and IV
psychotropic substances which are noticably more relaxed than those appearing
in the 1961 Convention. The basic policy is that States Parties should restrict
possession and use to medical and scientific purposes. However, this
restriction is to be imposed "by such measures as [each State] considers
appropriate". It is further subject to the exceptions set out in Art. 4,
the first of which is relevant here, in that it allows for international
travellers to carry small quantities with them for personal use. It would be
very odd if other persons were to be prohibited from possessing equivalent
quantities just because they do not travel internationally. It is therefore
reasonable to conclude that States are not obliged by the Convention to
prohibit possession for personal use. Para. 3 of Art. 5, which, like Art. 33 of
the 1961 Convention, provides for possession to be governed by law, should be
interpreted as simply observing the desirability of legislative action on this
point, instead of obliging States to pass legislation defining the limits of
authorised possession.
The application
of the 1971 Convention to the maintenance of Fixer-Stübli is thus quite straight-forward: States Parties retain
the power to permit possession and use of most psychotropic substances in such
an environment, but must prohibit possession and use of Schedule I psychotropic
substances there, as these facilities do not meet the strict standards set by
Art. 7.
5. Possession for personal
use under the 1988 Convention
Art. 3 of the
1988 Convention on Illicit Traffic contains very detailed obligations for States
Parties to criminalise, prosecute and punish a wide range of activities
associated with drug trafficking. Subpara. 4(a) requires that the imposable
penalties should be quite severe. Para. 6 concerns the related issue, having
great practical relevance for the present opinion, of discretion in the
prosecution of offences. States Parties are required to introduce measures
which will encourage the relevant officials to exercise their discretionary
powers in favour of prosecution, so as to intensify the enforcement of drug
laws and deter potential offenders.
At the same time,
Art. 3 makes a patently clear distinction between "possession, purchase
or cultivation of narcotic drugs or psychotropic substances for personal
consumption" under para. 2 and the other activities which are to be
criminalised under para. 1. Most State obligations in the field of criminal
law, in particular those appearing in paras. 3, 5, 7, 8 and 9 of Art. 3, extend
only to offences falling within the scope of para. 1. Similarly, the related
obligations of States Parties set out in Arts. 5, 6, 7, 8, 9 and 11 are limited
by express reference to para. 1 of Art. 3. The general intention appearing from
these provisions read together is that States Parties accept strict obligations
in respect of para. 1 offences, but retain much greater discretion in respect
of para. 2 offences.
A similar
intention appears from a careful reading of the terms of para. 2 of Art. 3,
which first obliges States Parties to characterise the acts of possession,
purchase or cultivation for personal consumption as criminal offences, but
then immediately states that this obligation to impose criminal sanctions
exists only in so far as the relevant activities are "contrary to the
provisions of the 1961 Convention, the 1961 Convention as amended or the 1971
Convention". One must conclude that the detailed provisions of the 1988
Convention merely go no further than to specifically identify some of the
measures required of States by the earlier conventions in general terms, so
that our conclusions on the meaning of the earlier conventions, as set out
above, remain valid. This conclusion is strongly reinforced by Art. 25 of the
1988 Convention, stating that it is not intended to derogate from any of the
rights enjoyed by States Parties under the earlier conventions, which includes
the right to individually decide how possession for personal consumption
should be dealt with. Para. 2 of Art. 3 indeed begins by stating that the
requirement which it poses is entirely "[s]ubject to [the] constitutional
principles and the basic concepts of [the] legal system" of each State
Party. Upon ratification of the 1988 Convention, reservations or interpretative
declarations were introduced by Austria, Bolivia (in respect of raw coca leaves
only), Colombia, Germany and the Netherlands to the effect that they therefore
retain the right to decide, as a matter of national policy, whether or not to
implement para. 2 of Art. 3. The Netherlands in addition declared its
understanding that para. 6 allows States a greater degree of discretion on
whether to prosecute offences under para. 2 than in respect of offences under
para. 1. To date, the only objection lodged in respect of any of these
declarations is that of the United States, complaining that Colombia's
declaration attempts to subordinate all of its obligations under the Convention
to its own constitution and domestic laws. Given that the United States had
itself previously declared that its own constitutional requirements take
precedence over its treaty obligations, this objection cannot be taken very
seriously.
In summary, the 1988 Convention does not oblige
States to adopt uniform measures in the criminalisation, prosecution and
punishment of persons found to be in possession of narcotic drugs or
psychotropic substances for personal use. States Parties are obliged by paras.
2 and 4 of Art. 3 to address this matter, but retain the freedom to
individually decide on the exact policies to be adopted. This conclusion
results, in strict law, from a textual analysis of the 1988 Convention and from
consideration of related instruments made by certain States Parties, as
foreseen by para. 1 and subpara. 2(b) respectively of the Vienna Convention on
the Law of Treaties. Prof. Schulz's intuitive explanation, at the very top of
page 16 of his legal opinion, that para. 2 of Art. 3 only indicates the reprehensible
nature of drug use so as to ensure legal consistency, is convincing.
6. Conclusion
The
texts of the relevant international conventions do not provide any guidance on
the essential question of whether or not public injection rooms are in fact
conducive to the rehabilitation and social reintegration of drug addicts in the
short term and to the reduction of human suffering and the elimination of
financial incentives for illicit traffic in the long term. The actual practice
of States Parties in this respect could provide some guidance, if it is
substantially uniform. If not, it must be concluded that States Parties retain
the freedom to make their own policy choices on the tollerance of Fixer-Stübli. States Parties are not
obliged by the conventions to prosecute and punish the possession and
consumption of drugs (other than those psychotropic substances which are listed
in Schedule I to the 1971 Convention) by addicts in Fixer-Stübli. This conclusion is subject only to the caveat that
activities which counteract the object and purpose of the conventions must not
be tollerated, but that is simply to restate the question of the underlying
socio-medical utility of public injection rooms.
We
hope that the above observations will be of assistance to you. We would be very
interested in seeing the results of your enquiries as to the relevant
socio-medical policies adopted in other countries. Should you require any
clarification of the legal aspects of the subject, please do not hesitate to
contact us again.
Please
find enclosed, as requested, a reprint of our Gutachten über medizinische Anwendung von Betäubungsmitteln of 1
November 1999. The chapters have been renumbered so that the document begins
with the chapter entitled, "UNO Konventionen".
Sincerely
yours
Swiss Institute of Comparative Law
Bertil
Cottier Martin
Sychold
Deputy
Director Staff
Legal Advisor