HOW TO END PROHIBITION

1. How does international law impact the drug legalization debate?

If any nation wishes to consider a major liberalization of domestic drug policy, it has to also consider the international context. The reason for this is quite straightforward. Most nations have signed three UN drug control Conventions, including the 1961 Single Convention on Narcotic Drugs which is the bedrock of the current international drug control system.

Among other things the Single Convention obliges signatory nations to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs like heroin, cocaine and cannabis.

Obviously there is a certain degree of “wiggle room” within these Conventions. This allows for practices like “decriminalization” or “depenalization,” depending on the terminology, of the possession of drugs for personal use within nation states.

That said, such flexibility is limited. The centrality of the principle of limiting narcotic and psychotropic drugs for medical and scientific purposes leaves no room for the legal possibility of recreational drug use.

A useful way to understand the impact of the international drug control system is to compare it with the domestic situation in the US between 1919 and 1933. It has been argued that the Single Convention stands in much the same relationship to international drug prohibition that the 18th Amendment and the Volstead Act stood in relation to alcohol prohibition. Just as the 18th Amendment restricted the way US states created alcohol policy, so UN legislation limits the way sovereign states approach drug laws.

2. What’s the history of the international drug control system and who are the key players?

The current system dates back to the early years of the twentieth century. The transnational nature of the drug issue meant that there was general agreement between some nations on the need for some form of regulation of the international drug trade. This consensus led to a series of treaties before and during the life of the League of Nations. In fact, the 1961 UN legislation is got its name from the fact that it tidied up most of these treaties and combined them into a single Convention.

While there was and continues to be a certain level of agreement on drug policy within the international community, it is clear that the United States has long been the key player in shaping and maintaining the current international system. Having decided, in no small part due to reasons of morality, that prohibition was the best approach to drug use within its own borders, the US sought to export this approach to the rest of the world.

For nearly a century then we can see an eclectic mix of US individuals, government agencies and interest groups working to influence the legal approach to drug use adopted within the boundaries of other sovereign states.

Other nations like Japan, Sweden and many Arab and ex-Soviet states hold similar views to the US. But it is difficult to imagine any of these countries having as much influence as the US. This is especially the case during the formative years of the current control system between 1945 and 1961. Then of course the US had gained superpower status and was able to achieve a level of influence unattainable before the Second World War.

3. Why did the UK and so many other nation states sign up to the UN drug control conventions?

When we talk about why nations signed up to the Conventions we have to consider a number of interrelated factors. First, and this is especially relevant to the Single Convention, we have to remember the nature and extent of the so-called drugs problem within many countries at the time.

The Single Convention preceded, admitted only narrowly, an enormous shift in drug use patterns within many Western nations. As a consequence, it is possible to argue that nations were willing to sign the treaty because drug policy in general, even if it meant a shift towards prohibition in particular, was no big deal.

Second, although views on the UN fluctuate, the Organization does retain a benevolent image and this is certainly the case with drug policy. For example, language used to describe the drug issue within UN documents has been peppered with phrases like “danger to mankind” or has portrayed the control of drugs defined as illicit as an issue that transcends “the traditional concerns of the international community.” As a result, governments have usually been reluctant to remain outside the system and by default risk being seen as some sort of “pariah” state.

Third, because the US has been such an energetic supporter of the UN drug control Conventions, nation states have to consider whether it is worth upsetting Washington for the sake of retaining more freedom to develop policy at a national level. In most cases it’s been decided that the national interest will be better served by signing the Conventions.

4. What are the options for a country seriously considering the legalization of a currently prescribed drug or group of drugs?

Mindful of the issues that I have just mentioned, nations considering what is generally called legalization must decide how they want to approach international law. By that I mean choosing to work either inside or outside the parameters of international law.

Working within international law offers a number of options: The UN drug control Conventions do allow countries to move for treaty revision; via modification or amendment. While technically available as options, both routes are severely limited by the convergence of procedures and politics. It is very easy for states opposing any treaty revision to block the move. Consequently, it is very likely that the US and other nations in favour of the current system would do this.

Nations wishing to break free from the confines of the Conventions could also formally denounce them. This wouldn’t lead to the termination of the treaties, but it would allow those countries freedom of action at the domestic level. The downside of this route of course is that it would attract criticism from those within the international community who supported the extant treaty system; especially the US. It also would do little for the international image of a state due to the benevolent appeal of the UN I mentioned earlier.

A final legal option concerns the use of a loophole in the Conventions. The drug control treaties can only operate if their provisions are not contrary to the constitutional principles and basic concepts of a nation’s legal system. As a result if the highest courts in a signatory nation ruled that the prohibition of a single drug (say cannabis) or a selection of outlawed substances was unconstitutional, then the Parties would no longer be bound by the limitations of the Conventions.

Once again, however, a nation choosing to pursue this option would have to be prepared to take a considerable amount of heat from sections of the international community. This is something that a group of “Like Minded Nations” acting with a degree of coordination may help to dissipate.

If those legal options seem unappealing countries could simply disregard the treaties. After all it’s not unusual for the US, from time to time, to do exactly that in other issue areas. This could, however, have wider repercussions for the entire UN treaty system, and I’m not convinced that European nations in particular would be willing to risk weakening the multilateral framework.

5. Under what circumstances is a nation likely to challenge the conventions?

The key issues here I think are national interest, political expediency and what we can call “tipping points.” It seems likely that a “tipping point” exists whereby the costs of adhering to international law shift to outweigh the benefits. These costs could manifest themselves in many forms including the financial and human costs associated with public health and law and order. At this “tipping point” the national interest might be seen to be better served by altering domestic law and accepting the international consequences. On the issue of political pragmatism, a government is also likely to do some sort of cost-benefit analysis if it feels that the electorate favours a dramatic shift in drug policy. At such a point it may be willing to invest energy in challenging the restrictive nature of the current international drug control system.