Subject: (1) CONVENTIONS ON DRUGS
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(1) FOR A REVISION OF THE UNITED NATIONS CONVENTIONS ON DRUGS
Gianfranco Dell'Alba, Olivier Dupuis, Jean Luc Robert
Radical Party
Ligue Internationale Antiprohibitionniste
c/o Parlement Europe'en
rue Belliard 97-113 - Rem. 508
1047 Bruxelles - Belgique
Tel. 32-2-2842579 - Fax. 32-2-2303670
A. FORWARD
The war against drugs has definitely been lost. The failure of the
prohibitionist regime is now recognized by many officials as well as by an
ever-increasing proportion of public opinion.
The consequences are serious. The police force and customs service only
manage to seize between 5 and 10% of the total volume of drugs in
circulation, which volume is, moreover, constantly increasing. The price of
heroin increases 1700-fold between its production and its retail sale.
Currently the price of a gram is worth ten times as much as the price of a
gram of gold.
There is no room for doubt. Prohibition has made drug trafficking the most
profitable business on the planet and is the major reason for the growth of
the phenomenon. Never in peace time has a legal regime been so flouted nor
caused such a disaster.
The effectiveness of the protectionist policy has already been considerably
strengthened over the last twenty years, but it would probably be necessary
to increase it tenfold again in order to strike a blow to the drug traffic
which would be, if not fatal, at least significant.
This observation, although brief, is consistent with an approach which has
been considerably refined and developed over thirty years, in parallel with
the evolution of the phenomenon and the degradation of the situation.
>From individual liberties to the protection of democracy
At the beginning of the 1960s, drug use was restricted to a few limited
groups, and in Europe, did not represent a problem for society. No more
than in the United States, where its spread, although a little wider, was
still marginal. It is however in this period, and more precisely in 1961
with the adoption of the Single Convention on Narcotic Drugs (hereafter the
Single Convention), that the prohibitionist approach achieved a decisive
success, following which the UN has continuously reinforced its pressure
and control until it reached the point, with the adoption of the Vienna
Convention of 1988 on illicit traffick (hereafter the 1988 Convention),
where it sanctioned on a global level the concept of "war against drugs",
ultimate stage of prohibitionism.
As the drug market expanded and, above all, as the consumption of heroin
exploded, considerations which were essentially criminological,
socio-sanitary, economic and institutional in nature revealed the reasons
for the failure of the regime. These considerations tended to show that
prohibitionism is based not only on highly questionable principles but
that, even worse, far from leading to the attainment of the specified
objectives, it is at the origin of a whole series of secondary effects
which are more numerous and often much more serious than the problem which
it is supposed to be addressing.
It is therefore appropriate to briefly review the fundamental criticisms of
the prohibitionist regime and its consequences, before proposing an
alternative model based on legalization.
Consequences of prohibitionism
In economic terms, with an annual turnover estimated by the UN at 500
billion dollars, the criminal groups which manage the illegal drug
traffick, organized on a global scale, infiltrate, corrupt and even
destabilize the highest spheres of economic, financial, political and media
power of both producer and consumer countries. Such power enables the
different cartels, triads, mafias or other organizations to influence
political decisions so as to maintain or reinforce the present regime.
Furthermore, the enormous profits of drug trafficking lead to massive
investments in economic and financial systems, to the point where entire
sections of the legal economy are now and henceforth in the hands of
organized crime.
In social and economic terms, prohibition and repression, by confining drug
consumers to the margins, excludes them from medical or social services.
Such a situation encourages unsafe activities and, consequently, the spread
of infectious diseases among drug addicts, and from the drug addicts into
the non-addicted part of the population. Illegality is also responsible for
the poor quality of the substances on the market which, it should be
remembered, are not controlled at all, leading to well-known consequences,
and in particular overdoses.
In judicial and criminal terms, of the most serious consequences, we may
refer in particular to the reversal of the burden of proof, the increase of
the length of police custody, searches without warrant, the overloading of
the judicial system, telephone tapping, "controlled" deliveries, the
extension of preventative detention, the crowding of prisons, etc.
Furthermore, prohibitionism has encouraged the development of urban
delinquency to such a level that more than two thirds of offences committed
in the large agglomerations are linked to drugs or, more precisely, to the
drug laws. All citizens, particularly the weakest, then become the
potential victims of this micro-criminality.
In terms of human resources finally, one notes the development of an
anti-drug bureaucracy which has ever-increasing resources, as well as the
development, often free from any control, of a market - and hence of
interests - in "disintoxication".
The fundamental criticism of the economic consequences of prohibitionism
deserves closer examination because, conceptually, once prohibitionism has
shown itself to be the vehicle for the augmentation of trafficking and of
the consumption of prohibited drugs, one can no longer claim that these are
perverse effects or collateral consequences which must be accept as a
necessary evil in order to avoid a worse evil. On the contrary, once it has
been established that the prohibitionist system is responsible for the
increased spread of drugs, the whole structure collapses, its very
foundations undermined.
Nobody disagrees that the drug regime, like any prohibition, is responsible
for the very high price of drugs on the "market". This is a result of what
is known as the "crime tariff" or the "criminalization tax", a type of risk
premium which the trafficker awards himself. Such large profit margins are
a sufficient attraction to ensure that there will always be people prepared
to brave the risks and ensure the distribution of the prohibited
substances. Conversely and paradoxically, at the level of the consumer, the
setting of unattainably high prices, far from serving as an obstacle, acts
as the very motor for the development of the market. Indeed, the combined
operation of the "criminalization tax" and "multi-level marketing" shows
itself to be impressively efficient in the drug market because it creates a
system where the drug addicts are forced, in order to finance their own
consumption, to themselves become resellers and, consequently, to recruit a
clientele constantly increasing in number for products which are more and
more adulterated. This is without referring to the "forced" recourse to
theft and prostitution.
This is one, and not the least, of the paradoxes of prohibitionism: it
creates an artificial scarcity in a very plentiful product whose
prohibitive price is the very engine of the increase in clientele. In fact,
the drug economy seems to be a very responsive system which combines the
positive aspects of monopoly and competition, while rejecting the
respective constraints and faults, in order to maximize profits and
increase demand endlessly. Such are the principal consequences which
militate for one to go beyond the model imposed by the international
Conventions of the United Nations.
The anti-prohibitionist option
In the face of a regime which has been in force for thirty years, a school
of thought has progressively developed advocating an anti-prohibitionist
doctrine in relation to drugs. This doctrine is based on the general
principle of law whereby the State may not forbid and repress an activity
which does not harm another person (crime without a victim). The
anti-prohibitionist school has developed models providing for a regime of
legality for drugs, aiming both to change the direction of, and even to
restrain the distribution of drugs, and to reduce the perverse effects of
the existing regime. Approaches to the possibility of legalization advocate
differing degrees of such legalization and may be seen as falling within
three principal categories, which are, moreover, not always clearly
distinguishable: the medical model, the model of passive trade and the
liberal model.
The medical model is certainly the least revolutionary. It is the one which
is the closest to the present regime. It consists of entrusting exclusively
to doctors the right to prescribe substances which are now prohibited.
Drastic limitations are envisaged, such as, in relation to heroin, the
delivery to the pharmacy of very small, non injectable quantities which are
to be consumed, if needed, on the spot. The critics of this theory claim
that it is limited to replacing the criminalization of an activity by its
medicalization. It nevertheless has the merit of being reassuring for
public opinion.
The model of passive trade recommends the creation, in each country, of a
State monopoly responsible for the production, processing, import and
marketing of the substances currently prohibited. It aims to ensure the
availability of such substances to users while forbidding any form of
promotion of the market.
The liberal model leaves to market forces, in particular to those of supply
and demand, the responsibility of establishing the availability, price and
variety of substances offered.
In fact, the most balanced model seems to be a form of compromise between
these different approaches which also develops them further. Indeed,
although the anti-prohibitionists are largely of one mind in recognizing
that the movement from the present regime to a regime of legalization must
involve a rupture so as to strike a decisive blow to the black market,
drugs must nevertheless undergo a process of domestication. It is for these
reasons that it must doubtless not be excluded that a substance may, in the
first place, be sold at a pharmacy on medical prescription and then become
subject, after several years, to a much more flexible regime. Nevertheless,
in relation to cannabis and its derivatives, it seems clear that there
already exists a wide consensus for the establishment of regulations
similar to those in force for tobacco and alcohol, that is to say, free
sale subject to certain restrictions such as the absolute prohibition on
advertising and sale to minors.
As for hard drugs, such as heroin and cocaine, they would be able to be
sold at a pharmacy by medical prescription. In this event, doctors should
of course be authorized to prescribe maintenance programs whilst
medico-health organizations should be able to provide the supervision of
addicts and consumers. The prices of the substances should fall within the
zone of equilibrium between the need to discourage consumption and the need
not to induce a parallel market.
The whole process, from the manufacture to the retail sale (and not solely
this final stage), should be regulated so as to reduce not only the health
and social damage to and by addicts but also the civil damage and the
undermining of democracy and its institutions.
Beginning with a fundamental criticism of the principles of prohibitionism
and its consequences, the evolution of anti-prohibitionism has lead to the
elaboration of alternative models aiming to bring solutions which will be
more viable for society and more effective for consumers. In parallel with
the theoretical evolution of anti-prohibitionism, there has developed an
inductive and pragmatic movement aiming for the reduction of drug related
harm (drug related harm reduction). At the conceptual level, this movement
asserts that one should no longer consider drugs as an absolute evil which
must be eradicated at any price but as a phenomenon which, whether one
wishes or not, is part of reality and which must be controlled so as to be
as acceptable as possible. In other words, one replaces the goal of
abstinence with that of damage reduction.
The harm reduction movement has experienced such popularity that henceforth
- and in particular since the sudden awareness by the political class of
the explosion of AIDS - this policy extends beyond the context of a few
large European cities which conceived it and begins to be the course of
conduct of several European governments.
This change has a quite revolutionary character because it is equivalent to
a recognition of the failure of the strategy of repression and the
abandonment of one of the founding dogmas of prohibition according to which
there is no middle road to the goal of severance.
One must not, however, be too optimistic. In the first place this is
because the policy of "harm reduction" is necessarily confined within the
limits set down by the UN Conventions of 1961, 1971 and 1988. It can
therefore bring tangible solutions to the health and social situation of
drug addicts, as well as to the reduction of petty crime. It has, however,
almost no effect on the clandestine organization of the market and on most
of the consequences which such organization brings. Moreover, it may
confuse public opinion, which may associate the increase in consumption and
criminality which flows from it with a tolerant attitude of the authorities
towards drug addicts. Finally, this policy runs the risk of acting as a
cover for governments which, faced with the need to demonstrate a certain
effectiveness and involvement, do not, however, wish to challenge the
prohibitionist regime in force.
The policy of "harm reduction", like the campaign for the decriminalization
of cannabis and its derivatives, therefore only achieves its full potential
if it is part of a more global strategy of controlled legalization of all
drugs. This is a necessity which has recently undergone important and
sometimes unexpected developments. For example, one may point to the Appeal
to the new Clinton administration to stop the war on drugs, promoted by
people such as Milton Friedman and Joseph McNamara, the Manifesto of Garcia
Marquez, supported by many Spanish and Latin-American personalities, which
appeared in the Spanish weekly Cambio 6, the birth in France of the
Mouvement pour la Le'galisation Contrle'e (MLC), the ever-increasing
number of declarations by men and women at grass roots level such as, for
example, those by Raymond Kendall, Secretary General of Interpol who
recently announced that he was in favour of the decriminalization of all
drugs, without overlooking the many editorials in prestigious magazines
such as the Independent or the Economist, nor international conferences
such as those held in Baltimore and Washington in November 1993.
But in parallel with this broadening of awareness, it appears more and more
clearly that it is the UN Conventions that are the major obstacle to the
adoption of antiprohibitionist legislation. Indeed, today States are
prohibitionist because they gather around the provisions of the UN
Conventions on narcotic drugs and, in particular, the Single Convention.
The United Nations is prohibitionist ... because it applies the Conventions
chosen by the member States.
This is a situation which is paradoxical if not perverted, and one from
which the United Nations and the signatory States cannot escape other than
by going beyond the present Conventions. The following analysis attempts to
provide the first elements in response to this task.
In order to do this, we present in the first place the summary of a report
developed by the International Antiprohibitionist League, on the
possibilities for amending or repealing, through the adoption of adequate
legal measures, the Conventions of 1961 and 1988. In a second part, we
sketch out, based on these thoughts, some hypotheses for parliamentary and
political initiatives.
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