Why the government can't regulate illegal drugs

Intoxication and drugs

Maximilian Wieczoreck

To person

is a research associate at the chair for comparative policy research and methods of empirical social research at the Institute for Political Science at the Westfälische Wilhelms-Universität Münster. In his PhD he is researching the influence of parties on drug policy in Europe. [email protected]

In almost every country in the world, the availability and demand for illegal drugs is strictly controlled and restricted by bans for scientific or medical purposes. The decisive factor for this is the so-called international drug control regime, which is based on the United Nations standard agreement on narcotics of 1961 and is expanded by the convention on psychotropic substances of 1971 and the convention against the illicit traffic in narcotic drugs and psychotropic substances of 1988. This regime institutionalized prohibition as a global norm and the rhetoric of the "war on drugs" proclaimed by the USA in the early 1970s. The conventions set the model for national drug prohibition, and offenses are sanctioned by criminal law in most states. [1]

However, the consensus on the effectiveness of repression-based drug control has recently been put to the test by the pursuit of divergent approaches. On the one hand, Western European countries in particular have tried pragmatic alternatives to strict prohibition since the late 1980s and implemented so-called damage-reducing measures (harm reduction) such as the provision of sterile needles for intravenous drug use or the availability of substitution therapy for opioid addicts. [2] On the other hand, a growing number of member states have exhausted the international legal scope of the conventions through decriminalizing reforms, particularly with regard to cannabis. For example, the Netherlands have de facto legalized the use of cannabis by tolerating the sale of cannabis in "coffee shops", and countries such as Belgium, Italy, Spain, Portugal and Switzerland have prison sentences for possessing cannabis for personal consumption as Form of sanction abolished. As a result, offenses are mainly only punished by administrative penalties or fines. [3]

While such reforms did not fundamentally call into question the legitimacy of the international drug control regime, the situation is different with regard to the legalization of cannabis beyond medical use. In this way, states like Uruguay or Canada are now openly violating the international legal provisions of the conventions. The disregard of the conventions poses great challenges for the current regime, and the future viability of international drug prohibition appears questionable. [4] Even if the drug control regime has so far shown itself to be largely resistant to reform proposals, these developments have led to a dynamic discourse on the continuation of the previous international drug policy.

Goals and structure of the international drug control regime

An extensive obligation to declare psychoactive substances such as opium, cocaine or cannabis illegal and to prohibit them accordingly first prevailed with the 1961 standard agreement on narcotics. This convention is one of the most influential agreements of the United Nations, today 186 of the 193 member states belong to it. [5] With it, the international treaties that had been concluded since the international opium agreement in 1912 were converted into a uniform convention, whereby the USA asserted itself with a strict stance against the undesirable consumption of certain drugs. [6] The overall aim of the conventions is to drastically reduce the supply of narcotic drugs, which is defined in Article 4 (c) of the convention. In this, the states undertake to limit the cultivation, production, trade, import and export, consumption and possession of the substances covered by the provisions of the Convention to medical and scientific purposes. [7] For this purpose, the substances falling under international control are listed and classified into four categories depending on their potential for health damage and therapeutic benefit. [8] Control mechanisms of varying rigor are used based on the classification in a category.

The uniform legal framework that was actually supposed to be created with the 1961 Convention had to be supplemented a few years later: First, the Convention on Psychotropic Substances was passed in 1971. This takes into account the increased emergence of synthetic drugs such as amphetamines, ecstasy or LSD since the 1960s, which were not subject to any control due to the emphasis at that time on substances obtained from "drug plants". In 1988 the Vienna Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances was passed. This was largely dominated by the one proclaimed by US President Richard Nixon in 1971 was on drugswhich escalated under the administration of President Ronald Reagan until 1989. [9]

In the face of a growing drug black market and an increase in organized crime, the 1988 Convention was intended to address the problem of transnational illicit drug trafficking. With their adoption, the perspective of seeing drugs as an existential threat to national security and peace was institutionalized, and repressive measures increasingly became the method of choice. [10] Accordingly, the convention primarily provided for tougher action against organized drug smuggling, and the member states were now generally obliged to prosecute various aspects of the illegal traffic in narcotics.

The specific measures adopted included the control of the precursor substances necessary for drug production, the punishment of money laundering from the proceeds from trafficking in illegal drugs, and deeper cooperation in international legal assistance in criminal matters. Article 3 (2) also made it mandatory for the first time to restrict the demand for illegal drugs. [11] While the previous conventions had primarily focused on supply control, member states have now been encouraged to also classify the cultivation, purchase and possession of illegal drugs for personal consumption as a criminal offense.

Alternative approaches

The claim to drastically reduce the illegal supply and demand of narcotics was reaffirmed by the international community at the United Nations General Assembly Special Session (UNGASS) on drugs in 1998 in New York. In the resolution passed, the member states committed themselves to far-reaching measures to eliminate - or at least significantly reduce - the illegal cultivation of coca, cannabis plants and opium poppies. This should be achieved by 2008. [12] The revision of the results showed, however, that the goal of "creating a world without drugs" was clearly missed despite the increased efforts against the illegal cultivation and trafficking of drugs - on the contrary, drug consumption reached new highs. [13] As drug users were also increasingly targeted by law enforcement, the downsides of the repression-oriented strategy became increasingly clear. For example, in countries with particularly strict drug legislation, HIV / AIDS spread among users because they took on higher risks when they were illegally and, for example, used syringes several times or together. [14] Given the collateral damage of the "war on drugs" and the ineffectiveness of the measures, a number of Member States have since turned away from repressive drug policies and developed alternative approaches.

Damage reduction
Even if it is not directly reflected in drug policy decisions at the international level: The international consensus on repressive drug policy has been supported by the approach of the harm reduction challenged. In response to the rapid spread of diseases such as HIV / AIDS or hepatitis C through intravenous drug consumption with contaminated syringes, several countries have introduced measures to reduce harm, which in Germany and many other European countries have now established themselves as an additional pillar of addiction and drug policy . These include the distribution of sterile needles for intravenous drug consumption, the approval of substitution treatments for opioid addicts, the prescription of synthetic heroin or the establishment of drug consumption rooms in several major European cities such as Frankfurt am Main or Zurich. Since these measures are primarily aimed at reducing the social and health damage and risks associated with drug consumption and a reduction in drug consumption is not necessarily provided, they have repeatedly led to tensions at the international level about compliance with the requirements of the drug control regime. [ 15]

The approach to reducing damage is correspondingly controversial internationally. So were instruments of the harm reduction rejected by countries such as Russia, Japan or the USA as violating the conventions, and the organizations responsible for monitoring compliance with and implementation of the conventions have repeatedly expressed criticism. The International Narcotic Control Board (INCB), for example, has pointed out in its annual reports that measures such as the establishment of drug consumption rooms or the prescription of synthetic heroin are incompatible with international treaties. [16] The reservations about harm-reducing measures were also reflected in the debates of the Commission on Narcotic Drugs (CND), the central legislative body of the drug control regime of the United Nations. The European Union tried to focus on harm-reducing measures in the political declarations and the action plan of the Narcotics Control Council of 2009, but failed because of the rejection of the countries that support the drug policy status quo. [17] Despite this "resistance" from the international drug control organizations, the measures of the harm reduction more widespread inside and outside Europe, further encouraging policies that address the health and social consequences of drug use.

The tensions in international drug policy can also be demonstrated by the decriminalization of illegal substances, especially cannabis. Decriminalization means that possession for personal consumption of a substance by adults is no longer treated as a criminal offense, which means that there is no possibility of imprisonment for minor violations. While the majority of states continue to prosecute the possession of cannabis for personal consumption, a wave of reforms towards decriminalization has been observed, especially since the early 2000s. [18] In the meantime, more than 30 countries around the world have reformed their laws accordingly. [19]

A much-noticed example in this context is the form of drug law in Portugal, with which an alternative course to the criminalization strategy was taken in 2001. As early as the 1990s, the country was confronted with an escalating drug problem in the form of increasing consumption and the increasing spread of HIV / AIDS among drug users. In response, the Social Democratic government under Prime Minister António Guterres, who is now Secretary General of the United Nations, decided to extensively decriminalize the possession of all illegal drugs for personal consumption. [20] Under the regulations of the reform, the possession of small amounts of illegal drugs is only classified as an administrative offense. In the event of violations, specially created commissions to prevent drug abuse decide on the measures to be taken. To this end, the commission first discusses the reasons for their previous addictive behavior with those affected and, based on this, can only issue a warning, set a fine or impose another administrative sanction (e.g. the imposition of social work). In the case of addictions, however, the penalties are suspended if those affected voluntarily seek therapy. In addition, the reforms were supplemented by a number of measures for prevention, harm reduction and therapy. [21]

At the international level, the efforts of some states to decriminalize drug policy were initially massively criticized. In the Narcotics Commission, countries with a restrictive drug policy - such as Sweden, the USA or Saudi Arabia - expressed their concern about a weakening of the international provisions on drug prohibition. In addition, the reforms were sharply criticized by some "drug-producing countries" as they saw their efforts to reduce illegal drug cultivation thwarted by a decriminalization of demand. The International Narcotics Control Council argued in a similar way, highlighting in its 2001 annual report that decriminalization of cannabis was incompatible with the obligations of the conventions. [22] A year earlier, the Portuguese government had been accused of violating Article 3, Paragraph 2 of the 1988 Convention, in which the states had explicitly committed themselves to treating the possession and use of drugs for personal consumption as a criminal offense. [23]

Over time, however, this negative attitude has weakened significantly. In the meantime, the Narcotics Control Council assesses Portuguese drug policy as conforming to the treaty. [24] This is certainly also due to the fact that Portugal has developed into a model for many internationally for a progressive drug policy and the fears expressed by critics about a rapid increase in drug consumption have not materialized. In fact, most of the studies on the Portuguese drug situation show a positive development since the reforms: the number of consumption-related deaths has fallen significantly, and the drug-induced mortality rate of four deaths per million inhabitants is now well below the European average of 22 deaths per million one million inhabitants: inside. [25] In addition, the proportion of new HIV infections among consumers could be significantly reduced. And the number of drug users in therapy had increased by over 60 percent by 2008, reflecting the expansion of public health services. [26]

Legalization of cannabis

While the states were still on the international legal terrain of the conventions in implementing the alternative approaches described, in the recent past some Latin American countries in particular have openly broken with the conventions due to dissatisfaction with the functioning and results of the drug control regime. [27] This is particularly evident in the legalization of cannabis, as corresponding reforms explicitly contradict the provisions of the 1961 Single Agreement.

Paradoxically, the impetus for legalizing cannabis came from the USA, whose restrictive zero-tolerance policy had shaped drug policy internationally for decades. Since 2012, cannabis has now been legalized in 15 US states. [28] By transferring the cannabis market to state-regulated structures, Uruguay became the first country in the world to follow suit in December 2013 and fully legalized cannabis for adults. Under the liberal government of Justin Trudeau, Canada also implemented similar reforms in 2018, freeing up the purchase and possession of up to 30 grams of cannabis for recreational use by adults. This is the first time that a member of the G7 has openly violated the obligations of the Unity Agreement of 1961. [29]

Although the Narcotics Control Council has repeatedly expressed concern about the legalization of cannabis in its annual reports and unequivocally criticized the violation of the provisions of the conventions, [30] the discourse on the legalization of cannabis has gained momentum worldwide. The legalization of cannabis in New Zealand was only the subject of a referendum in October 2020, in which a narrow majority voted against legalization of possession and use, but acquisition for medical purposes is still permitted. [31] In 2019, Luxembourg was the first European country to announce its intention to legalize cannabis. [32]

The discourse on the decriminalization and legalization of cannabis, which has been going on in Germany since the early 2000s, has also become more topical as a result of developments at the international level [33] - but still without legal consequences: after 2015, a first draft for a cannabis control law was rejected by the Bundestag In September 2020, the Greens introduced a new bill to remove cannabis from the criminal regulations of the Narcotics Act. But even this draft did not find a majority. [34] With a view to the approaches presented, German drug policy is treading a middle path. On the one hand, Germany is one of the pioneers internationally with the extensive implementation of damage reduction measures. On the other hand, when it comes to regulating the demand for the possession of cannabis for personal consumption, Germany tends to lag behind compared to other European countries, as the level of penalties has been significantly reduced in many European countries for several years.

Whether further countries Uruguay and Canada will follow certainly depends on the experiences that have been and will be made there. While it is too early to fully assess the effects of legalization, previous studies show a mixed picture - the exact effect on public health is still unclear. In Uruguay, for example, contacts between users and often other drug dealers who sell hard drugs have been significantly reduced. Since the reforms, consumers have hardly come into conflict with the law enforcement authorities. On the other hand, an increase in cannabis use has been observed since legalization. However, it is still unclear to what extent this can actually be traced back to legalization, since, for example, a similar development can be seen for the use of cocaine, which has not been legalized. [36]

Conclusion and outlook

Even if some alternative approaches to repressive zero tolerance policy have prevailed in a number of countries, a comprehensive change in international drug policy is currently not to be expected. The previous approach was largely confirmed by the states at the most recent United Nations General Assembly on the world drug problem (UNGASS 2016). During the negotiations, there was, above all, considerable dissent about the general direction of drug policy.

Building on experience with harm reduction measures, European countries, for example, advocate policies based on the principles of public health and human rights. [37] These efforts find their counterbalance in a group of states that stick to an authoritarian line and continue to punish drug offenses with the death penalty in some cases. Extrajudicial executions in the Philippines show, for example, that systematic violations of human rights are also becoming more common. [38]

In view of the sometimes very far diverging values ​​of the approach to drug policy, a comprehensive reform of the conventions will therefore be difficult to achieve. In this respect, it is questionable to what extent the current regime is still able to unite the various ideas about the future direction. Renewal or modernization of the international drug control regime will therefore presumably only be possible through the implementation of alternative and progressive strategies in the individual states. The increasing orientation of national drug policies towards health policy principles and the spreading decriminalization and legalization of cannabis are likely. The future status of the drug control regime will crucially depend on how the individual Member States and the relevant international organizations react to recent tensions over the effectiveness of drug prohibition.