06 February 2016

International 'Law' Shaping Domestic Prohibition

Australian states and territories each have their own drug laws and the Commonwealth Criminal Code provides a national framework for regulating drug trafficking and other drug crimes committed across borders. Our local laws and the drug laws of many other countries around the world are shaped by international treaties and conventions and while these treaties are not technically law in Australia, they have had a major influence on laws enacted by our Federal governments.

The pragmatic recommendations of one of the first, and to this day one of the most exhaustive studies about the effects of Cannabis, was the Indian Hemp Drugs Commission Report in 1894. The Commission convened not as the result of any major concerns in India, but because of a question that was raised in the British House of Commons by temperance crusaders. They were concerned about the effects of the production and consumption of 'Indian hemp' and claimed that the “lunatic asylums of India are filled with ganja smokers”. After extensive research into the nature of asylum statistics the majority of the Commission members agreed “that the effect of hemp drugs in this respect had hitherto been greatly exaggerated”. Most medical doctors involved in the study were convinced that Cannabis use did not cause insanity, but rather stimulated a mental illness that “was already lurking in the mind of the individual” and that alcohol played at least an equal if not a more important role. That conclusion seems to summarise current opinions about the relationship between Cannabis and psychosis. Unfortunately, the seven-volume report’s wealth of information was largely ignored in the debates on Cannabis control that were to unfold in the international arena under the auspices of the League of Nations and the United Nations (UN) in the 1920's, 1930's and the 1950's.

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Key Recommendations

1. Total prohibition of the cultivation of the hemp plant for narcotics and of the manufacture, sale, or use of the drugs derived from it, is neither necessary nor expedient in consideration of their ascertained effects, of the prevalence of the habit of using them, of the social and religious feeling on the subject and of the possibility of its driving the consumers to have recourse to other stimulants or narcotics which may be more deleterious (Chapter XIV, paragraphs 553 to 585).

2. The policy advocated is one of control and restriction, aimed at suppressing the excessive use and restraining the moderate use within due limits (Chapter XIV, paragraph 586).

3. The means to be adopted for the attainment of these objects are:
  • adequate taxation, which can be best effected by the combination of a direct duty with the auction of the privilege of vend (Chapter XIV, paragraph 587)
  • prohibiting cultivation, except under licence, and centralising cultivation (Chapter XVI, paragraphs 636 and 677)
  • limiting the number of shops for the retail sale of hemp drugs (Chapter XVI, paragraph 637)
  • limiting the extent of legal possession (Chapter XVI, paragraphs 689 and 690)

The limit of legal possession of ganja or charas or any preparation or mixture thereof would be 5 tola (about 60 grams), bhang or any mixture thereof one quarter of a ser (a quarter of a litre).
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Its absence from international discussions is pertinent today since almost nothing of significance in the conclusions of this landmark report on Cannabis in India has been proven wrong in over a century since its publication. The Commission looked into earlier considerations in India to prohibit Cannabis from 1798 to 1892, concluding those proposals had always been rejected on the grounds the plant grew wild almost everywhere, and attempts to stop consumption could provoke the local population and drive them into using more harmful intoxicants. The report concluded: “In respect to the alleged mental effects of the 'drugs', the Commission have come to the conclusion that the moderate use of hemp 'drugs' produces no injurious effects on the mind … As a rule these 'drugs' do not tend to crime and violence”. The report also noted that, “moderate use of these 'drugs' is the rule and that the excessive use is comparatively exceptional. The moderate use produces practically no ill effects”.

Had the wisdom of the Indian Hemp Commission’s recommendations prevailed, we might now have a system not dissimilar to the legislation on Cannabis regulation adopted recently in Uruguay or the regulation models in Colorado and Washington implemented after the successful ballot initiatives to tax and regulate Cannabis in both US states. Unfortunately, the international community chose to take another course of action and decided to ban Cannabis in the 1961 United Nations Single Convention on Narcotic Drugs. As the name suggests, the Single Convention is a consolidation of a series of multi-lateral drug control treaties negotiated between 1912 and 1953.

There are three key United Nations (UN) treaties which relate to drugs and Australia is a signatory to all of them:

The Single Convention on Narcotic Drugs was passed in 1961 when the UN first sought to play a role in the development of international drug laws. The Single Convention was developed in response to the wide range of new drugs which had come onto the market since the passage of previous treaties, which only regulated commonly known drugs such as morphine, cocaine and heroin. The Single Convention expanded international drug laws to include Cannabis (erroneously as it is a non-toxic, non-addictive, herb) and newly-developed drugs.

The main provision of the Single Convention is Article 36, which requires signatories to enact laws against various drug-related activities, such as cultivation, sale, possession, distribution, importation and exportation, as well as: "intentional participation in, conspiracy to commit and attempts to commit, any of such offences and preparatory acts and financial operations in connexion with the offences referred to in this article". The Single Convention was one of the first attempts to ensure uniformity in drug laws around the world and signatories were required to pass laws in accordance with its provisions. It has had a major impact on the development of drug laws worldwide with many countries passing new or updated drug legislation after signing the Convention. Perhaps most importantly, it was the first piece of international law to prohibit the use of Cannabis.

The next important instrument was The Convention on Psychotropic Substances which was drafted in 1971. Again, this was developed in response to the growing use of drugs such as MDMA, LSD and other newly-discovered hallucinogens, and the drugs contained in plants such as psilocybin mushrooms. Like the Single Convention, the Convention of Psychotropic Substances was passed at a time when governments around the world were becoming concerned at the widespread use of hallucinogens and actively spreading fear that drugs could cause health risks and an increased propensity to engage in ‘anti-social’ conduct.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was passed in 1988, the final major piece of international drug law. This represented yet another attempt to crack down on the use of drugs as the ‘War on Drugs’ waged on, a fact that is noted in the Preamble to the Convention, which discusses the unsuccessful attempts of previous conventions to prevent drug use and the increase in drug usage and trafficking around the world. This Convention went a step further than previous conventions, by requiring signatories to enact laws aimed at preventing organised drug crime and confiscating the proceeds of drug-related activities. It also required signatories to control drug precursors. Significantly, Article 3 states that signatories must take steps to criminalise drug possession, drug purchase and drug cultivation for personal consumption, subject to its constitutional principles and the basic concepts of its legal system.

Before the 1960's in Australia, drug use was not completely unknown, but dependent drug use was typically the result of the use of opiates after first using them for medical reasons. There were drug dependent doctors (and their wives) and a small bohemian subculture that used drugs. Many Australian arrests for drug offences involved visiting jazz musicians. In 1961 Australia signed the International Single Convention on Narcotic Drugs supporting an obligation to make Cannabis available as a medicine. Most current state and federal Cannabis control acts in Australia are in contradiction of this.

It is possible that Australia's purported international obligations could hinder moves to decriminalise or legalise certain drugs in the future. One interpretation is that Article 36 of the Single Convention does not require signatory nations to criminalise drug related activities but simply requires them to impose adequate punishments for ‘serious offences’. Furthermore, each Article of the Single Convention contains a caveat to the effect that, if a signatory state’s Constitution conflicts with the provisions of the Convention, the nation’s Constitution would take precedence and the conflicting provisions would not apply.

In Australia, it is the Federal government which is a signatory to the Conventions, rather than state governments. Although most state law generally follows federal ones, state governments can still enact laws which conflict with the Conventions. The majority of minor drug matters, such as drug possession and supply, are indeed regulated by state laws. At any rate, it seems the UN may one day repeal its instruments with the European Parliament recommending that The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances be done away with, citing the failed ‘War on Drugs’ as evidence that prohibition simply does not work. The three UN Drug Conventions of 1961, 1971 and 1988 impose a ‘one-size-fits-all’ prohibitionist approach to drug policy throughout the world. The conventions could be amended to give countries freedom to adopt drug policies better suited to their particular needs. However, repealing the Conventions may be procedurally difficult because they do not contain a termination clause meaning it might need to remain in force until all signatories formally withdraw.

Theoretically, the Conventions could be changed by modification, such as moving a drug from one schedule to another or simply by removing it from the schedules. However, this cannot be done with Cannabis because it is embedded in the text of the 1961 Convention. Also, modification would need a majority of the Commissions’ 53 members to vote for it. Amendment to the conventions, that is changing an article or part of an article, does not offer a more promising route for the same reason. Even if a majority were gained, then only one state need ask for the decision to go to the Economic and Social Council for further consideration and demand a vote.

The 1971 and 1988 Conventions need a two-thirds majority for change, not just a simple majority. None of this would occur for the simple reason that no votes are taken. All resolutions go through by informal agreement. Also, only those countries up-to-date with the payment of their UN dues are technically allowed to vote, which is one reason why no votes are taken, as many countries rarely are paid-up. Another alternative is state-by-state denunciation, but even then the conventions would remain in effect until the number of signatories fell below 40 in the case of the 1961 convention. 

Moreover, because the 1988 convention has no termination clause, it would remain in effect even if only one signatory remained. Many articles in the conventions are prefaced by the words “subject to its constitutional principles and the basic concepts of its legal system”. This has been used by the US not to implement part of article 3 of the 1988 Convention, which prevents inciting others to use narcotic or psychotropic drugs, on the basis that this would be in contravention of their constitutional amendment guaranteeing freedom of speech.

There appears to be an ever-widening gap between the UN Conventions, UN agencies’ own interpretation of them and the reality of various countries’ responses to the increasing use of illicit drugs for recreational purposes. The 1961 Convention limits the production, manufacture, export, import, distribution of and trade in use and possession of controlled drugs. It also allows the use of controlled drugs for medicinal and scientific purposes, which means that the prescription of heroin, morphine or methadone to heroin addicts is within the conventions. However, the 1988 convention specifically requires the possession of scheduled drugs for personal consumption be made a criminal offence under domestic legislation. Although initially complying, many countries, particularly in Europe, have either introduced administrative sanctions for possession of illicit drugs or have simply decided not to enforce the law in this respect.
A report by The Beckley Foundation in 2012, Roadmaps to Reforming the UN Drug Conventions, highlighted that in principle there are many ways in which countries or groups of countries could change the present system of treaties, or change their status with respect to them. In practice, all the ways pose substantial difficulties, but some seem clearly more feasible than others, in terms of action in the short to medium term. In particular, the report details the treaty amendments that would be necessary if a country (or a group of countries) wished to experiment with either of the following options:
  • clear and explicit decriminalisation of the possession of one or more currently controlled substances for personal use;
  • the creation of a regulated, non-medical market in one or more controlled substances.

Each of the three treaties sets out procedures for amendment. Any Party may propose an amendment to the 1961 treaty (Art. 47). The Economic and Social Council (ECOSOC) of the UN may then ask Parties if there is unanimous support, failing that, may decide to call a conference to discuss the proposed amendment. A similar procedure is provided in the 1971 treaty (Art. 30), but with a little more detail (proposed amendment enters into force if no party rejects within 18 months). ECOSOC has the power to decide whether a conference of Parties should be called, immediately or after 18-months for comment in which one or more Parties reject the change. The 1988 treaty (Art. 31) has a 24-month comment period, with an option for ECOSOC to call a conference thereafter if majority of Parties request it be done. The only successful amendment to the treaties was the 1972 Protocol to the 1961 treaty, agreed on at the adoption of the 1971 convention. The 1972 Protocol strengthened some provisions of the 1961 treaty, though not to the extent hoped for by the US.

Other than this, the only attempt to amend the treaties was in 2009 by Bolivia, which filed a proposal to amend the 1961 treaty by removing coca chewing, a traditional practice, from its scope. The US convened a group of ‘friends of the convention’ to rally against the proposal. In the end 18 countries, mostly from Europe and North America, including all the G-8 (economically most powerful nations), filed objections to the proposal by the deadline of January, 2011. While ECOSOC could have called a conference of Parties to consider the proposal, Bolivia in June 2011, used an alternative procedure, by formally announcing its denunciation of the treaty, to take effect on 1 January 2012, with a plan to re-accede with a reservation concerning coca leaf.

A psychoactive substance could in principle be removed from the scope of the treaties by removing it from any of the schedules of the 1961 and 1971 treaties. This would require the recommendations of a WHO Expert Committee (transmitted through the WHO Director-General) and approval by a majority vote in the Commission on Narcotic Drugs (CND) and then in the ECOSOC, if any Party appealed the CND decision there. In the specific cases of Cannabis, coca and opium, there would still be provisions in force in the 1961 treaty that require state control of licensing and production and a state monopoly wholesaler. The provisions on ‘changes in the scope of control’ in the 1961 treaty allow for the possibility of ‘deleting a drug... from a Schedule’, but this would require that the WHO find that the substance is not ‘liable to similar abuse and productive of similar ill effects’ as the other drugs listed in the schedules accompanying the treaty (Art. 3). Similarly, although the main emphasis in the 1971 treaty is on adding substances to the schedules, there is mention of the possibility to ‘delete’ a substance from the schedules (Art. 2). However, recommendations from WHO are subject to approval by the Commission on Narcotic Drugs under both treaties, and also subject to a possible appeal to ECOSOC under the 1971 treaty.

Periodically, UN member states set out how they'll implement the conventions in the form of a Political Declaration and Plan of Action. In 2009 the UN member states established the Political Declaration and Plan of Action International Cooperation Towards an Integrated and Balanced Strategy to Counter the World Drug Problem. It was due to expire in 2019. Until 2012, at least on paper, all was going to plan. That year representatives from Mexico, Guatemala and Colombia successfully lobbied for an extraordinary Special Session of the UN general Assembly to be held on the world drug problem. Mexico, Guatemala and Colombia argued the current approach to drug control wasn't just failing, it was playing into the hands of criminals. In short, these countries were war-weary from being on the front-line of the 'War on Drugs' for so long, with little sign of peace.

Unfortunately, the story of how the UN General Assembly Special Session on the World Drug Problem 2016 has come about, doesn't provide any further clarity on what changes are needed. Since the announcement in 2012, much of the global public policy debate on the world drug problem has been less than helpful. Discussions seem to have focussed on strategy not policy goals. Civil society's policy discourses have focussed on demanding drug policy reform that stops the harm of the 'War on Drugs'.

The UN University recently argued there is a tension built into global drug policy because narcotics are both a source of social harms and social goods. Some argue the legitimacy of this argument is supported by the positive social goods realised by the decriminalisation of Cannabis possession and consumption. Add to this mix the unintended harm caused by the 'War on Drugs' and you've a nascent argument for a revolution in global drug policy. The current goal of global drug policy clearly relates to illicit narcotics and psychotropics. And, as such, by definition this doesn't include those narcotics and psychotropics that present legal social goods. As has been proven in Portugal, and the US, sovereign states still maintain the capacity to regulate narcotics that provide social goods.

Some experts have been arguing vehemently for decriminalisation or legalisation of drugs, referring to the Portugal experience to support this position. Yes, Portugal has decriminalised drug possession, but the dealing, production or growing of drugs remains a criminal offence. When the Portuguese government decriminalised drug possession it also made substantive investments in social and health programs: including minimum income supplements and addiction treatment. If anything the Portugal experience highlights the need for innovation in drug control policy: not simplistic decriminalisation or legalisation. In contrast, global drug policy needs to be focussed on a realistic goal: reducing drug-related harm experienced by individuals and communities, including the harms of the 'War on Drugs'.

A strategy focussed on a harm reduction goal requires a three-pronged approach: supply and demand reduction strategies, and harm minimisation. At present the global drug policy primarily focusses on supply reduction. Embryonic versions of the three-pronged model for combatting drug problems already exist in Canada and Australia (National Drug Strategy). Supply reduction is sometimes referred to as 'prevention' and has traditionally been seen as a front-line program that targets drug dealers and importers to reduce the availability of drugs. It's believed if the number of dealers and the availability of drugs can be reduced, drug use may be prevented as well. This is not meant to be a blunt instrument targetting drug users, rather strategic interventions that have impacts on supply. In the global context this piece should be focussed on the disruption of global illicit narcotics and psychotropic drug supply chains: in China, Myanmar, Laos, Afghanistan and Mexico.

Its core, a focus on reducing the desire or need for illegal/illicit drugs in our communities. This has many shapes and includes early intervention, education, demand for treatment and measures designed to remove the user's need from the equation of drug trafficking. The harm minimisation or harm reduction strategy should attempt to reduce the drug-related harm experienced by individuals and communities. This is typically seen as the safety net for the other two policies and accepts the reality that the other policies will never be completely successful. Included in this strategy are healthcare programs focussed on the health and safety of those who are engaged in unhealthy and unsafe drug use practices.

The narcotic and psychotropic conventions have been operating for over 50 years, but tangible progress towards minimising and eliminating the availability and use of illicit drugs and psychotropic substances has been marginal at best. Decriminalisation of illicit narcotics and psychoactive substances is unlikely, on its own, to reduce the societal harm created by the use and abuse of narcotic and psychotropic drugs. And as illustrated by the illegal trade in tobacco products, decriminalisation isn't a guarantee that the violence and corruption associated with black markets will be entirely eliminated either. Statistics show reductions in crime in jurisdictions where Cannabis and hemp are legally consumed, Colorado in the US, for example. A 2014 study out of the US concluded there is no indication of a crime exacerbating effect of medical Cannabis legalisation on any Part I offences (defined as, Criminal homicide, murder and non-negligent manslaughter). Alternatively, US state medical Cannabis laws may be correlated with a reduction in homicide and assault rates which runs counter to arguments suggesting legalisation of Cannabis for medical purposes poses a danger to public health in terms of exposure to violent crime and property crimes.
This year's United Nation's General Assembly Special Session on the World Drug Problem (UNGASS 2016) is, by UN standards, set to be controversial. But it is unlikely to be the game changer in global drug policy that some are seeking unless consideration is given to redefining the underlying goal of world drug policies, there will be no change in the prospects for reducing the harmful effects of drug abuse. The one simple truism of the drug policy debate is that there are no simple solutions, nor much consensus. Solutions become even more difficult to find if you're focussed on the wrong goals. The current global drug policy goals - the elimination of the use and trade of illicit narcotics - outlined in the UN's Political Declaration and drug control conventions, don't address the ground truth of the global drug problem. And these goals obfuscate the intent that drove the development of the conventions; reducing the harmful effects of substances that are being, or are likely to be, abused in such a manner as to constitute a public health and social problem. The story of how UNGASS 2016 has come to be, is itself evidence that there might be a problem with global drug policy goals.

In Australia the debate on medicinal Cannabis and its use is deemed controversial by those whom advise policy makers, in the sense that it represents a collision of terms, concepts, legal boundaries and values. The 2015 Drug Policy Modelling Program (DPMP) from the National Drug and Alcohol Research Centre (NDARC) report states any medicinal Cannabis debate in Australia should be informed by the experience of different regulatory regimes abroad. Noting there are a variety of options to consider including several models that involve a higher level of control against net-widening and diversion and some that allow for a greater adherence with standard medical practice, and yet others that are more open to fast introduction of innovative, emerging treatment options.

The report concludes that a key issue for policy makers is the extent to which only pharmaceutical Cannabis products versus herbal products under suitable regulatory control should be introduced. "Policy makers need to determine the extent to which authorisation is strictly limited versus more broadly defined (prescription versus recommendation). Supply options requires decisions about the extent to which the key goal is ensuring a high quality range of product types (pharmaceutical, medical grade herbal, herbal) are available to patients versus minimising the risk of diversion into the recreational market. "The tightness of the model will depend on the extent to which it is desirable to draw clear distinctions between medicinal and recreational use, with the attendant risk of creating a false dichotomy and valorising medicinal use at the expense of marginalising recreational use and non-recognised medical use".

In February 2016, a spokesperson for Australia's Federal Health Minister outlined the Government’s current position regarding the use of medical Cannabis in Australia as "supportive of use for medicinal purposes where it is evidence-based and backed by good science to ensure favourable patient outcomes". However, the Government is concerned about people accessing illicit Cannabis supplies, exposing themselves to risk without medical supervision and increasing adverse results. The Minister announced the Government’s intention to enable cultivation on 17 October 2015 and legislation to enable this is intended to be introduced in the week commencing 8 February 2016. The Office of Drug Control within the Department of Health will be responsible for overseeing the cultivation scheme. Once the Secretary is satisfied there is a lawful use, cultivators will be granted a licence, subject to conditions to ensure Cannabis is not diverted for illicit uses (the Office will monitor compliance).

"There have always been legal pathways to access Cannabis products for medicinal purposes under the Therapeutic Goods Act 1989 ... however, these have been poorly used. In part, this is because of difficulty in getting a supply of products to import", the government spokesperson said. The Government believes by cultivating and manufacturing locally, appropriately manufactured products will be assured. When medical practitioners become aware of the availability of product and evidence is available of its safety and efficacy, they can consider it within their clinical practice. The scheme will facilitate pharmaceutical companies undertaking clinical trials on prospective Cannabis-based products and enable involvement in manufacture of product for supply to clinical trials and other patients with any pharmaceutical company free to bring forward a product for registration by the TGA based on clinical trials conducted overseas. The clinical trials being conducted by Australian states are seen to be necessary to increase the evidence base for Cannabis for medicinal purposes. There is sufficient evidence that Cannabis-based products may have a benefit to patients in certain clinical settings under appropriate medical supervision. The Government is concerned about the health and welfare of all Australians and wishes to ensure that they have access to the most appropriate and safe treatments available. Patients are expected to have access to medicinal Cannabis products manufactured from Cannabis legally cultivated in Australia as soon as the first half of 2017.

Smoking cigarettes, drinking alcohol and gambling are enjoyed by a lot of Australians, but they can be seriously harmful to some, to their families, to others, and can involve a lot of violence. We cannot eliminate smoking, drinking or gambling by making them a crime, so we reduce the harms by regulating sale and other measures, such as public campaigns to persuade people to give up, restrictions on advertising, treatment for addiction and so on. The US tried to ban drinking alcohol, Prohibition, it didn't work. By contrast, the use of what law-makers deem a drug (Cannabis is a non-toxic, therapeutic herb, wrongly proscribed as a drug) is mostly prohibited, by making possession for personal use a crime. Why a different attitude to drugs? The distinction is irrational and has adverse consequences. The futile attempt to prevent drug use by prohibition is hugely expensive and worse, it makes criminals out of ordinary people. Bringing people before the courts, stigmatising them as criminals and punishing them by fines or imprisonment is only justified if the conduct is wrong, and seriously wrong at that. We have eliminated crimes such as vagrancy, blasphemy, adultery, prostitution and homosexual acts because we have come to recognise that these behaviours are not wrong or, as some would say, not sufficiently wrong to justify making them a crime.

There is much that can be done to reduce the harmful effects of drug use and abuse. Such measures should not be hampered by the cry that they condone a crime when use should not even be a crime (a health issue, it should be nothing to do with law enforcement). Drug use should no more be a crime than smoking, drinking or gambling. It is time to give up the futile attempt to prevent drug use by prohibition and to concentrate on rational and achievable measures to minimise harm (supposed to be the over-arching principle adopted by the Australian government and the basis of the National Drug Strategy since 1985). Sales should be a different matter. With decriminalisation the sale of drugs would require a regulatory framework to control. Just as the market for tobacco, alcohol or gambling is regulated, and there might be some drug products so harmful we wouldn't countenance even regulated sale. It would take time to devise a satisfactory regulatory regime for the sale of all currently deemed illicit drugs. That is for tomorrow. Meanwhile, the abolition of the crime of possessing drugs, where possession is for personal use, is something that can be done today.

Dr David Nutt, Professor of Neuropsychopharmacology at the Imperial College London, and on the Scientific Board of the International Centre for Science in Drug Policy (ICSDP), stated, “Governments have yet to systematically measure and evaluate their policies based on health and security outcomes experienced by communities. These outcomes include the numbers of fatal overdose, blood-borne disease transmission rates, or traffic accidents – all of which have a far more meaningful impact on communities than measuring the level of drug use in the general population, or the amount of drugs that have been seized annually. While these may be important statistics, they tell us very little about how drugs are impacting communities”.

1 comment:

  1. Wow! This is amazing for those of us new to the "movement". I now understand what was meant when I was told it was a global issue and it wouldn't happen anytime soon :( I hope to use this to educate people and may even be useful for my court case. If not at least I fully understand the gravity of the situation we face. Thank you and bless you.