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

Harm Reduction and the International Drug Control System

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.

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 1969. 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

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

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)

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

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”

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

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

What some people think of the treaties…

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

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.

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

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.

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

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)

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.

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

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

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

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.

Drug Lords Celebrate the Drug War at the UN http://drogriporter.hu/en/celebrate

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”

Gearing up for opening sessions

Yury Fedotov, Executive Director of UNODC

Evo Morales’ line of coca leaf products

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

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.

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

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

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

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,

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

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

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

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

For more information For more information on the international drug control system: http://harmreduction.org/our-work/policy-advocacy/international/ For podcasts about CND 2012: http://harmreduction.org/our-resources/multimedia-resources/podcast-archives/ For information on overdose prevention: http://harmreduction.org/issues/overdose-prevention

Allan Clear Clear@harmreduction.org Heather Haase hhaase@msn.com Anistla Rugama rugama@harmreduction.org