Subject: (2) CONVENTIONS ON DRUGS
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(2) 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
B. EXAMINATION OF THE POSSIBILITIES FOR AMENDING
AND/OR REPEALING THE UN CONVENTIONS
Introduction
1. Drug policies are determined at the international level by three United
Nations Conventions: the Single Convention on narcotic drugs of 1961, the
Convention on psychotropic substances of 1971 and the Vienna Convention
against the illicit traffick of narcotic substances of 1988.
The Single Convention on narcotic drugs of 1961 is an international treaty
whose purpose is to prevent and combat the scourge of drug addiction by
means of coordinated and universal action. It has rendered null and void
all the preceding Conventions in the area.
In the Preamble to the Convention, as well as in the actual text of the
Treaty (art. 4), it states that the "possession, use, trade in,
distribution, import, export, manufacture and the production of drugs is
exclusively limited to medical and scientific purposes". In simple terms,
the international text is the basis for the prohibition and repression of
illicit drugs at the global level.
2. In order to arrive at this result the Parties to the Convention, who
state in the Preamble that they are "concerned with the health and welfare
of mankind", have established guiding principles, the implementation of
which is entrusted to international control organs.
Essentially, the text provides for two complementary forms of intervention
and control: the first, which is of a preventative nature concerns the
licit, scientific and medical market; the second, of a repressive nature,
concerns illicit traffic, drug abuse and drug addiction. Prevention is
essentially aimed at avoiding diversions from medical or scientific
channels into illicit traffic. Repression consists in establishing an
international penal cooperation so as to punish and discourage drug
traffickers.
Control of the licit market is based on a set of national and international
preventive measures, which apply to substances classified as narcotic drugs
(art. 2 and 3). These measures oblige the States to provide to the control
organs, the Commission on Narcotic Drugs of the Economic and Social Council
and the International Narcotics Control Board (art. 5 to 18), estimates of
national drug requirements (art. 19), production statistics (art. 20) and
regular reports intended to inform them of the situation in their country.
These instruments allow the definition of a policy of manufacture (art.
29), import (art.21), export (art.31) and distribution (art. 30),
exclusively limited to medical and scientific requirements. This policy is
implemented at the national level by State enterprises for manufactured
narcotic drugs as in the retail trade (art. 29). Provisions peculiar to
the cultivation of the opium poppy, coca leaf and cannabis (art. 23 to 28)
supplement the measures for agricultural raw materials.
Control of illicit traffic should, according to the Convention, begin by
controlling cultivation. The illicit production of the opium poppy, coca
leaf and cannabis is the major source of drug traffic. Unable to intervene
at the source, international law hopes to discourage it by repressive
measures aimed at dissuading drug traffickers. Three provisions to this
effect are set out in the Single Convention: a recommendation to the States
that serious offenses in matters of drug trafficking are liable to
"adequate" punishment (art. 36), a measure relating to the confiscation of
seized substances (art. 37) and measures for international penal assistance
and cooperation, particularly in matters of extradition (art. 35). This
cooperation was pushed to an extreme in the Vienna Convention of 1988
against the illicit traffic of narcotic drugs and psychotropic substances.
This in fact strengthens the severity of the previous provisions concerning
extradition (art. 6), as well as international mutual judicial assistance
(art. 7), repressive procedures (art. 8) and the provisions relating to
illicit cultivation (art. 14), whilst at the same time creating new
international crimes (money laundering, incitement, collusion...) and
instituting a specific procedure for finding drug traffickers, controlled
deliveries (art. 11).
Now one must recognize the historical failure of the Single Convention. Not
only has it failed to hold back the increase in drug addiction throughout
the world - a comparison of the official figures for consumption and
production between 1960 and 1990 is overwhelming in this respect - but
furthermore they have brought about a series of perverse effects, referred
to above, which are today a source of grave concerns for the society.
I. THE BASIC PRINCIPLES
A) The principle of the economy of means
3. The first principle is the principle of economy of means, which consists
in amending the texts of the articles of the Single Convention as little as
possible. This principle can be justified for reasons of form, as well as
for reasons of substance.
In respect of the form, first of all it is necessary to note that the
Single Convention is drafted in a language and by using a technique which
is completely anglo-saxon, whose results are not always examples of
conciseness and clarity. This fault is taken to an extreme in the Single
Convention whereby the concept of "narcotic drug", supposedly at the basis
of international control, is not defined by any concept, but solely by
reference to a list of more than one hundred substances classified ... as
"narcotic drugs"! It is therefore appropriate to restrict oneself to making
the minimum necessary amendments in order to redirect it towards an
anti-prohibitionist outlook.
In respect of the substance, this modesty is especially necessary since the
legal origins of the international control are not limited to the Single
Convention of 1961. Not only was the latter amended by a 1972 Protocol,
but, in addition, it has been complemented and amended by two international
texts of great significance: the 1971 Convention on psychotropic
substances, and especially the United Nations Convention against the
illicit traffic of drugs and psychotropic substances, signed in Vienna in
1988.
The first, which closely resembles the Single Convention, establishes an
international control which is clearly less rigorous for psychotropic
substances, generally produced by the pharmaceutical industry. The
similarity in the drafting of both texts therefore allows the amendments
proposed to the Single Convention on narcotic drugs to be transposed,
mutatis mutandis, to the Vienna Convention on psychotropic substances. In
the present study, one will only note that any amendment to the first is
likely to have repercussions on the second, taking into account the
overlapping of both texts, in particular in matters of classification. This
is a further justification for the principle of economy of means.
On the other hand, the principle of economy of means could not be applied
to the Vienna Convention of 1988, which is essentially repressive in
function. Adopted in the name of the "war against drugs", this Convention
seems to be completely "irrecoverable" from the perspective of
anti-prohibitionist reasoning (except for a part of its Preamble). The
only solution is to request its abolition pure and simple. Furthermore, it
is necessary to note that a certain number of countries have up till now
refused to accede to it precisely because of its excessive harshness.
Nevertheless, it came into force at the end of 1990 and, as at 31 December
1993, 92 countries had ratified it. To render it null and void, it would be
necessary that the States which adhere to it make use of the procedure of
denunciation (article 30). In any event, in the LIA's opinion this
convention is the "text to be killed off" for all prohibitionists, in the
same way as in the past, and in the converse sense, the Geneva Convention
of 1925 regarding prepared opium was the "pet hate" of the United-States,
then desirous of imposing their prohibitionist reasoning.
B) The principle of returning to the origins
4. This historic reminder invites the presentation of a second guiding
principle of this study: the principle of returning to the origins of
international control. One should in fact remember that this control has
not always existed, whereas the most consumed narcotic substances (opium,
coca, cannabis) have been known of and used for centuries. Even since the
beginning of international control, which began with the Hague Convention
of 1912, the measures imposed by international law were far from being
entirely prohibitionist.
Thus, for example, the Geneva Convention of 11 February 1925, relating to
the abolition of trade in and the use of prepared opium was less
prohibitive then its title implies. In fact, it allows for systems of
production and distribution controlled by State monopolies, which moreover
provided substantial financial resources to certain signatory states. Thus,
England and France produced and distributed opium in their Indian and
Indo-Chinese colonies until the 1950's. With regard to France, it also
operated Moroccan and Tunisian state-owned companies dealing in "kif" and
"takouri", traditional names for the mixture of tobacco and hashish. In the
case of opium, the co-existence of international control with a national
distribution system was made possible by the fact that the first
international Conventions do not clearly set out the principle of
limitation to exclusively medical or scientific purposes. Thus article 9 of
the Hague Convention of 1912 provided that the Parties must limit the use
of drugs to medical and "legitimate" purposes only; however the meaning of
this term leaves a wide latitude for interpretation.
It is only from 193Os that, under pressure from the United States, the
Geneva Convention of 1931 clearly established, for the first time, the
principle of the limitation of drugs exclusively to medical and scientific
purposes (art. 4). We have seen that the prohibitionist and repressive
system was as a result of this principle (supra n1). So much so that by
forbidding all uses of narcotic substances other than for medical purposes,
the 1931 treaty amended in an historic fashion the effect of international
control.
Conversely, if one refers back to the origins of international control, it
is sufficient, to end this limitation and return to the previous state of
law in which this control was compatible with systems for the distribution
of drugs, to add the words "or others" to the text which limits this use
exclusively to "medical or scientific purposes". The addition of the words
"or others" changes everything. The limitation then applies to "medical,
scientific or other purposes", which allows recreational purposes, if not
drug addiction. However, this does not prevent the fight against drug
addiction in accordance with the aims of the Single Convention, by
qualifying the importance of the principle of the return to the origins by
the idea of the necessity for an international control of drugs.
C) The principle of adaptation
5. A last principle of this study is precisely the principle of adapting
the Single Convention to the anti-prohibitionist reasoning. Though this may
seem paradoxical, the prohibitionist and anti-prohibitionist reasoning, a
priori in contradiction, may be complementary. Clearly it would be better
to propose a reorientation or an adaptation of international control,
whilst maintaining a partial prohibition, rather than proposing a complete
revolution aligning the regime of illicit drugs with that of tobacco and
alcohol.
Maintaining a partial prohibition can in fact be justified in some
circumstances, in particular for substances the mere use of which is
especially dangerous to others. Such is the case, for example, of
phencyclidine or P.C.P., paradoxically referred to as "angel dust", which
leads to violent acts of folly (aggression, self-mutilation...). One has
difficulty in seeing the advantage in allowing this substance to pass from
a system of prohibition to a system of legalized control, especially since
the perverse effects of the prohibition-repression duo do not have a
significant impact in this regard.
In fact successful prohibitions do exist, once they are partial. Thus the
prohibition of absinthe in France by the law of 1915, which was wise enough
to prohibit only one category of alcohol, that which is most dangerous to
health, whilst making substitute alcohols, such as aniseed aperitifs,
available to the consumer is considered as a health and social success. One
could cite other examples such as the prohibition of ether in Ireland or of
amphetamines in Japan.
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