1. Harm Reduction and the International Drug Control System
Allan Clear, Heather Haase, Anistla Rugama
Harm Reduction Coalition, New York, NY

2. Harm Reduction and the International Drug Control System

3. International Drug Control System
Has its history in the 1912 Hague Opium Convention and the treaties negotiated after that in the League of Nations era
System was initially intended to control the flow of licit medicines but grew to include prohibiting the “illicit” use of substances
Current global drug control system is administered under the United Nations under three international drug control treaties
HEATHER to give Introduction and a brief “why does it all matter?”
ANISTLA then either discuss slide or discuss briefly the history of the drug control system.
HEATHER to then lead on the rest unless otherwise noted and others to jump in whenever they want.

4. What is an international treaty?
Agreement
Multilateral or bilateral
Self-executing vs. non-self-executing
Interpretation and Binding effect
A Treaty is defined by the Vienna Convention on the Law of Treaties of 1969 as “an international agreement concluded between states in written form and governed by international law…”. Also known as an international agreement, protocol, covenant, convention or exchange of letters. Key word here is agreement.
Agreement A treaty can be loosely compared to a contract: it is a means for willing parties to assume obligations amongst themselves. An official, express written agreement that states use to legally bind themselves.
Multilateral or bilateral Can be bilateral or multilateral – between two states or entities. Bilateral doesn’t necessarily mean between two countries but two “groups” (Swiss and the EU are parties to treaties under the European Economic Area agreement). Multilateral treaties are concluded among several countries or regions.
Self-executing vs. non-self-executing self executing means that just being a party puts the treaty and its obligation into action. “non self-executing” means that the treaty requires implementing legislation – a change in domestic law of a state party that will direct or enable it to fulfill treaty obligations.
Binding Effect and interpretation– In addition to the consent of the parties to bind themselves, international treaties are legally binding under the Vienna Convention on the Law of Treaties They must be interpreted “in good faith” according to the “ordinary meanign given to the terms of the treaty in their context and in the light of its object and purpose.” - but no one party to a treaty can impose its particular interpretation of the treaty upon the other parties.
Examples of treaties

5. Three International drug law treaties
1961 Convention on Narcotic Drugs (as amended by the 1972 Protocol)
1971 Convention on Psychotropic Substances
1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
The veggies you have to eat before you can have your ice cream

6. 1961 Single Convention
The “bedrock” of the international drug control system
limits the “production, manufacture, export, import, distribution of, trade in, use and possessions of” opiates, cannabis and cocaine to “medicinal and scientific purposes”
established the International Narcotics Control Board (the “INCB”) as watchdog to monitor compliance
Established the scheduling system
NO RECREATIONAL USE ALLOWED
Schedules – drugs are scheduled from I – IV with I (cannabis, heroin, cocaine) being the most restrictive --- our federal law, the Controlled Substances Act, which was enacted to comply with the ‘61 Convention, also has a scheduling system that corresponds (not exactly, but it mirrors it, and there’s a complex system by which corresponding changes can be made)

7. 1971 Single Convention on Psychotropic Substances
enacted in response to drug use in the 60s
added certain synthetic, prescription, and hallucinogens (LSD) to the list of scheduled substances

8. 1988 Convention Against Illicit Trafficking
adopted in response to the increase in drug trafficking
required member countries, for the first time, to criminalize possession for personal consumption, but does not specify enforcement or punishment measures
specifically states that its implementation should be accompanied by prudence and is subject to the “constitutional principles and basic concepts of [each countries’] legal system”

9. Purpose of the treaties
Concern for the “health and welfare of mankind” in preamble
Dual purpose of the treaties is to reduce the availability of drugs for illicit use, while ensuring adequate availability for medical use
Over time, this balance became distorted as the system evolved based on the principle that reducing availability of drugs for illicit use could only be achieved through penal enforcement of predominantly prohibition-oriented measures

10. The international drug treaties, cont.
Who are the member countries (signatories) to the treaties?
Are the treaties enforceable?
Why do countries adhere to the treaties (and what are the consequences if they don’t)?
Who are member countries? 184 countries – almost all countries – I’ve heard it said that if you don’t become a party to the drug treaties, the US won’t deal with you on any other international matter
Why do countries adhere?
reputational, spirit of cooperation
fear of sanctions (including decertification by the US)
negotiation, bargaining and overlap with other int’l treaties
in the end, it’s a cost and benefits analysis
Enforceable?
remember they are “legally binding’ under the 1969 Vienna Convention on treaties (altho there’s an argument that this doesn’t apply to the ‘61 convention bc of the vienna convention only applies to treaties that were ratified after 1969)
The only real “enforcement” comes from INCB, which as we’ll see later, doesn’t amount to much –the real “enforcement” comes from the US

11. What some people think of the treaties…

12. Criticisms of the treaties
Deaths from violence associated with trafficking
High incarceration rates
Human rights abuses
Lack of health care or intervention measures (such as OD prevention) for drug users
High HIV rates through injection drug use

13. Common Treaty Myths…
There are many treaty “myths” - the biggest one is that marijuana is “legal” in other countries, i.e. The Netherlands. This is not true, the Netherlands follow a policy of non-enforcement.
The Conventions only require that each country has laws on its books that criminalize the possession of certain drugs. It does not specify how (or even if) those laws have to be enforced. That is why you see countries getting around this, like The Netherlands and non-enforcement, and Portugal (and now many Latin American countries) with their policies of decriminalization.

14. What is allowed under the treaties?
Allowed or “gray” area:
Non-enforcement (Netherlands)
Decriminalization (Portugal)
Medicalization (Switzerland, U.S.)
Many harm reduction measures
Not allowed:
Legalization for recreational use

15. UN Resolutions What are Resolutions?
Formal Recommendations of CND to member countries
Binding vs. nonbinding
Interpretive guidance
Act as precedent
Forms “customary” law
Recommendations – Articles 10 and 14 of the UN Charter refer to General Assembly resolutions to be “recommendations” and this has been emphasized by the International Court of Justice.
Non-binding – has no binding force under international law. No legal obligation to follow them.
“precedent” – based on the principle of “stare decisis” which means that judges are obliged to respect the precedent established in prior cass. “Precedent” is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. - in other words, if a resolution is enacted today that is in favor of a certain measure, another one that says the opposite can’t be passed the following year.
“Customary law– An important concept under international law. The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "evidence of a general practice accepted as law." Determined through two factors: the general practice of states and what states have accepted as law. (Resolutions are both evidence of the general practice of states and acceptance by states of law). custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

16. Treatment of harm reduction measures under the treaties
Allowed:
Overdose prevention
Maintenance therapies (Methadone, buprenorphine and heroin prescription)
Syringe Exchange & syringe access
Not allowed (according to INCB):
Safe Injection Spaces
Pill testing

17. UN Drug Control Bodies Commission on Narcotic Drugs (CND)
Delegates from 53 countries
meets every year to review the policies enacted under the treaties and to guide future policy
Adopts “resolutions” and “political declarations” concerning drug policy
UN Office of Drugs and Crime (UNODC)
Implements programs based on policies enacted by CND
Has its own budget for drug-related programs
Int’l Narcotics Control Board (INCB)
Acts as “guardian” or “watchdog” of the treaties
Issues reports on various countries’ compliance (e.g., safe injection sites, “drug tourism” and medical marijuana)

18. What is CND?
The Commission on Narcotic Drugs is the central drug policy-making body within the United Nations system, with important functions under the three international drug law treaties.

19. What is CND?
“CND” also refers to the yearly meeting held in Vienna each year
attended by large group of NGOs and governmental delegates
network, exchange information
influence international law and policy
learn about the UN system and keep up with developments under the treaties

20. Who Attends CND? Government delegations NGOs from around the world
Delegates representing the 53 member countries of the CND attend, based on regions: African countries (11), Asian countries (11), Latin American and Caribbean countries (10), Eastern European countries (6), and Western European/other countries (14).
Within the delegations, members of the ministry (drug, health or criminal) and sometimes an NGO representative
And one seat to rotate between the Asian, and the Latin American and Caribbean States every four years.
Appointed every 4 years
Regions are based on the representation of countries that are important producers of opium or coca leaves, of countries that are important in the field of the manufacture of narcotic drugs, and of countries in which drug addiction or the illicit traffic in narcotic drugs constitutes an important problem; Taking into account the principle of equitable geographical distribution.
Harm Reduction Coalition
International Drug Policy Consortium
Transform
Transnational Institute
Hungarian Civil Liberties Union (HCLU)
Int’l Network of People Who Use Drugs
Harm Reduction International
Human Rights Watch
Virginians Against Drug Violence
Trance Research Institute
LEAP
Students for Sensible Drug Policy

21. What do governmental delegates do at CND?
Introduce resolutions to the CND
Participate in formal policy discussions in session
Side events
Debate resolutions behind closed doors
Argue resolutions on the floor
Diplomacy/alliances

22. What do NGOs do at CND? Influence delegates “in the hallways”
Put on side events on various topics
Distribute literature
Participate in roundtable discussions
Ask public questions during “informal dialogue” sessions
Observe proceedings and report back home through social media, reports, articles, etc.

23. Drug Lords Celebrate the Drug War at the UN

24. What happens at CND? Opening session Statements from leaders
Statements from governmental delegations
Formal Sessions- -
Plenary and the CoW
Debate and adopt resolutions
Roundtable discussions
Informal sessions -- “side events”

25. Gearing up for opening sessions

26. Yury Fedotov, Executive Director of UNODC

27. Evo Morales’ line of coca leaf products

28. Side events Presented by NGOs and governments
Usually discuss some current aspect of drug policy
last year OD prevention, Count the Costs, Bolivian coca leaf
This year Global Commission on Drug Policy, Latin America, 100 Year Anniversary of the 1912 Hague Opium Convention, Future of the International Conventions
Informal “dialogue” with heads of INCB, UNODC and CND

29. Informal Dialogue with former INCB President Hamid Ghodse
Tell the story of the question Allan asked last year about the death penalty:
Allan: “Is there no atrocity too horrific that will make INCB condemn it (or comment on it)?” - something like that
Ghodse: NO, there is [no atrocity too horrific] to cause INCB to step over its mandate.
Ghodse has since been replaced by Raymond Yans, a Belgian who is rumored to be much more of a harm reductionist, so we’ll see.

31. How to create change? Reform of the current system
Modification/amendment
Denunciation/disregard
Withdraw and re-accede with reservation
Reform within the current system
Influence delegations
Push for broader interpretation
Introduce/promote/support UN Resolutions
Modification/amendment - difficult bc it would require a 2/3 vote by CND.
Denunciation/disregard – can do this, but the conventions contain numerous obligations re: illicit and licit drugs, and to disregard a provision would arguably encourage other countries to also disregard provisions as they see fit (Bolivia did this for years re: the coca leaf and suffered few consequences, but if the US did this, the result could be quite different)
Withdraw/re-accede – Bolivia –would be hard for member countries to block, but we believe that the US is working behind the scenes to block it

32. Examples of Recent Progress made in Harm Reduction through Resolutions at CND
HIV resolutions
Political Declaration 2009
Civil Society Resolution 2011
Overdose Resolution 2012

33. Revised Draft Political Declaration
Allan to discuss how this came about, his participation and why it’s so significant

34. Civil Society Resolution
Resolution 54/11 – Improving the participatory role of civil society in addressing the world drug problem
Encourages Member States to ensure that civil society plays a participatory role, where appropriate, through consultation, in the development and implementation of drug control programmes and policies, in particular with regard to aspects of demand reduction;
Also encourages Member States to cultivate an environment that promotes innovation and to take into account promising approaches taken by civil society to assist Governments in their efforts to address the world drug problem,
Further encourages Member States to provide to the United Nations Office on Drugs and Crime, in the context of the fifty-fifth session of the Commission on Narcotic Drugs, their experiences in working with civil society in United Nations forums and to provide suggestions … with a view to improving the participatory role of civil society in addressing the world drug problem,

35. Overdose Resolution Major victory for harm reduction at CND
OD resolution
Encourages member states to effective elements for the prevention and treatment of drug overdose in national drug policies
Requests UNODC and WHO to collect and circulate best practices including the use of naloxone, to provide member states with guidance, and to include initiatives on OD prevention as part of their drug demand reduction programming
Invites member states and donors to provide funding
Process of passing a resolution

36. What does all this mean for Int’l and U.S. Reform?
Political Declaration: created a dialogue about harm reduction and ultimately opened the door for reform
Resolution 54/11: Civil society will have more opportunities to influence the UNODC, INCB and delegates at CND at the international level
Resolution 55/7 OD Prevention:
UNODC can now fund OD programs throughout the world
Member states will have official guidance on OD prevention, especially Naloxone
The White House ONDCP’s changed attitude towards overdose measures including Naloxone can result in more acceptance (and funding) for domestic programs

37. What can you do? Attend CND if you can Develop a presence
Network/collaborate with international organizations
Influence delegations behind the scenes
Distribute literature
Report back home

38. From home Follow CND through social media
Learn about the UN process and write about it
Reach out to international organizations

39. For more information
For more information on the international drug control system:
For podcasts about CND 2012:
For information on overdose prevention:

40. Allan Clear Clear@harmreduction.org
Heather Haase
Anistla Rugama