UNGASS 2016: What prospect for change?

With the UN’s drug control policy setting bathed in opaque diplomatic light, civil society advocates are left looking for the subtleties of language and tone to spot any sign of change. The NGOs closest to the United Nations General Assembly Special Session (UNGASS) on the world’s drug problem in April aren’t expecting dramatic changes, but they do see things moving in the right direction. Russell Brown canvasses what may happen in New York.

In the words of the Grateful Dead, what a long, strange trip it’s been. Debates at UNGASS 2016, the UN General Assembly’s third grand meeting to discuss and agree policy around drugs, will be inseparable from what happened at the first in 1990 and what took place in the decade that followed, which was characterised by both the UN’s strongest actions to control the supply of and demand for non-medical drugs and growing doubts about the wisdom of the strategy.

That decade was foreshadowed by the 1988 Vienna Convention on Trafficking, which broke new ground in asserting that criminalisation of drug use, and not just trafficking, was also a matter of treaty compliance. It set the stage for UNGASS 1990’s adoption of a Global Programme of Action and the branding of the years 1991–2000 as the United Nations Decade Against Drug Abuse.

The establishment of the United Nations International Drug Control Programme (UNDCP) in 1991 was seen as the beginning of a new era in the fight against drugs. A three-day meeting of the General Assembly in 1993 was intended to foster an unheralded degree of international cooperation in the post-Iron Curtain years. It was to be a new era.

“We have the machinery; we need now to make it work better,” declared the British delegation in 1993.

“In particular, we need a more solid international front in support of the 1988 United Nations Convention. This is an instrument with teeth, and we need to make it bite.”

The confidence in this better engineered project to reduce both the supply and demand for drugs echoed throughout the second grand meeting, UNGASS 1998. “A drug-free world – we can do it!” was the meeting’s slogan – and the concluding line of a UN-funded TV ad featuring helicopters spraying herbicides, fields of burning drug crops, armed soldiers and a farmer processing coffee.

Pino Arlacchi, Executive Director of the UNDCP, even put a deadline on it, writing a special article for the UN Chronicle under the headline ‘Towards a Drug-Free World by 2008 – We Can Do It’.

When 2008 rolled around, the Director of UNDCP’s successor, the UN Office on Drugs and Crime (UNODC), Antonio Maria Da Costa, insisted to the makers of the Irish documentary War Without End that, “I would like to remind you that the United Nations never used the word ‘a drug-free world’. In no official documents of the United Nations you will find reference to ‘a drug-free world’.”

“At the UN today,” intones the documentary’s voiceover, “the ‘drug-free world’ slogan of 1998 appears something of an embarrassment.”

By 2008, the anti-reform struggle had turned to more modest goals – including keeping the phrase ‘harm reduction’ out of any declaration. For the US and its allies, this meant outmanoeuvring European nations pressing for the words to be explicitly included as a reflection of their priorities.

A 2008 US diplomatic cable summarising proceedings of working groups ahead of a 10-year review of progress on the UNGASS 1998 goals to be conducted at the Commission on Narcotic Drugs (CND) early the following year complained of the Europeans’ “hard-line”, “dogmatic” and “bad faith” attempts to press their case.

But it noted with some satisfaction that the 1998 compromise language, which said that demand-reduction programmes “should cover all areas of prevention, from discouraging initial use to reducing the negative health and social consequences of drug abuse” had proven “quite durable, consistently being used as a substitute for any explicit ‘harm reduction’ reference”.

The US and its allies have consistently pressed the point that the primary goal is to reduce demand of drugs, not the harm associated with drug use.

The cable noted the support of delegations from Saudi Arabia, Russia, Japan, Indonesia, Tunisia, Algeria, Iran, Saudi Arabia, Egypt, Cuba and Sweden in rejecting the push by the UK, the Netherlands, Romania and New Zealand to have harm reduction added as a new ‘third pillar’ to the counter-drug paradigm of supply and demand reduction.

(At that point, the dread phrase had slipped through the net just once, in a 2006 UN General Assembly declaration that affirmed that “harm-reduction efforts related to drug use” would play a role in curbing the spread of HIV infection.)

“The US and its allies have consistently pressed the point that the primary goal is to reduce demand of drugs, not the harm associated with drug use,” the cable declared.

The 2008 cable also complained about another development: NGOs were included in government delegations and, in Britain’s case, allowed to speak for the government. It praised the move by the chair of one committee to “shut down” the Bolivian delegate who called for the removal of coca leaf from the list of substances controlled by the UN drug control treaties.

Sanho Tree, Director of the Drug Policy Project at the Institute for Policy Studies in Washington, was present at CND 2009 when, as he puts it, “the term harm reduction threatened the vaunted Vienna Consensus”.

He recalls that Germany, the UK, the Netherlands, Switzerland and others fought to get the term included, while the US, Russia and Japan led the opposition.

“The Germany Ambassador said he regretted very much that it didn’t explicitly mention the term ‘harm reduction’ but its essence was covered by what the Draft Political Declaration called ‘related support services’. At the end of the meeting, Germany issued an ‘interpretive statement’ essentially declaring that they were going to interpret ‘related support services’ as harm reduction, and more than two dozen countries supported that interpretation. Costa tried to minimise the differences in his closing speech as tempest in a teacup, but the writing was on the wall.

“To be fair, the Obama administration had just come into office in 2009, and much of the US delegation was still working off the established script that year in Vienna. The US delegation did agree to meet with a group of us in Vienna. One ONDCP [US Office of National Drug Control Policy] staffer remarked that it was the first time they were allowed to meet with ‘drug legalisers’.”

The failure of harm reduction to make the 2009 political declaration had a particular effect. It meant that, although harm reduction features in the written domestic policy of more than 70 member states and in documents from other UN agencies, there was no precedent for it to feature in subsequent consensus documents. Even the 2014 joint ministerial statement adopted the workaround “measures aimed at minimising the public health and social consequences of drug abuse”.

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So where are we now in 2016? UNGASS has been brought forward two years at the request of the presidents of Colombia, Mexico and Guatemala. Latin American countries as a group – always uneasy about the big-guns approach to supply reduction – also made a joint call to review the current system and “analyse all available options, including regulatory or market measures”. Bolivia, which left the 1961 Single Convention on Narcotic Drugs in 2011 over the coca leaf issue, has won its case and rejoined the treaty in 2013.

As UNGASS approaches, the US Federal Government is declining to interfere with the regulated, non-medical sale of marijuana in several of its states. President Barack Obama has put his weight behind the increased availability of naloxone, which does not stop people from using opioids, only from dying when they overdose – a textbook harm reduction measure.

From some angles, it does look like a new era might be approaching. Will it all result in momentous change? Well, don’t expect the world. Don’t even expect to see a consensus around those two words ‘harm’ and ‘reduction’.

“The phrase ‘harm reduction’ itself is still for many member states a difficult and problematic phrase, unfortunately,” says Ann Fordham, Executive Director of the International Drug Policy Consortium (IDPC), which presents a collective face for a global network of 143 NGOs focused on issues related to drug production, trafficking and use.

“We’re still in the dynamic where the EU countries in particular have no problem, and they push very strongly to support harm reduction. But countries like the US, despite their more progressive approach in recent years, still have quite an allergic reaction to the actual term ‘harm reduction’. And of course Russia and China and many of the Middle Eastern countries don’t accept the term.

“What’s changed is that there’s far less fight around the interventions associated with harm reduction when it comes to injecting drug use. We can now refer to the UN technical documents around HIV prevention, treatment and care for people who take drugs – which obviously means endorsement of needle exchange programmes and substitution treatment. That language is agreed. But the phrase ‘harm reduction’ is not agreed.”

We can now refer to the UN technical documents around HIV prevention, treatment and care for people who take drugs – which obviously means endorsement of needle exchange programmes and substitution treatment. That language is agreed. But the phrase ‘harm reduction’ is not agreed.

Fordham says that, for many countries, acknowledgement of harm reduction does not extend to all types of drug use. Stimulants and crack cocaine fall outside the harm-reduction comfort zone. “And then the real outer limits of harm reduction, what’s still a fight, is around safe injection rooms, drug consumption rooms. That is not accepted at the UN level. It’s seen as too controversial, too much to do with facilitating drug use. And then also heroin-assisted treatment – that’s heroin prescribing for people who are dependent on heroin and finding substitution treatment isn’t working. Those are the outer limits.”

The IDPC has published a list of five UNGASS ‘asks’, which largely concern good faith. But the final one – “commit to the harm reduction approach” – is specific without insisting on a form of words.

“When we say that, we say commit to it in its broadest sense,” says Fordham. “We have this debate with member states about how hard you push for the words ‘harm’ and ‘reduction’ to appear next to each other in a political document. That’s still a difficult fight to win.”

“There will be a fight over it, and it’s a fight worth having,” says Steve Rolles, Senior Policy Analyst at Transform, a British charitable think tank that campaigns for the legalisation and regulation of drugs. “But as long as the principle is captured, I think the semantics may not be the biggest concern.

“The objectors will look increasingly childish and petulant given realities on the ground and in the UN system – harm reduction has a more accepted definition in the UN context, in terms of the UNODC, UNAIDS, World Health Organization (WHO) technical guidelines – so it’s not impossible they will finally cave in, especially if the US changes its position.”

One break from the past is already evident, however. At UNGASS 2016, civil society groups will be more visible and engaged than ever.

“The civil society engagement has been exponentially greater than last time – the reform movement has expanded enormously,” says Rolles.

“It is more sophisticated, more connected and better coordinated. In 1998, there were a few dozen people involved. This time, there are literally thousands. We are working with the UN agencies – you can see our influence across the UN agency submissions – and directly with governments and UN missions, briefing, drafting, coordinating meetings and influencing strategy and language. This UNGASS belongs to civil society as much as it does the member states who called for it.”

Fordham agrees that there has been a breakthrough for civil society groups.

“A good marker for that was last March at the CND of 2015 where they had these roundtables that were part of the UNGASS preparations. Two things that were really great happened in terms of civil society participation. One was that each panel had a civil society speaker formally sitting on the panel. And also for the first time that I’ve seen at the CND – and I think it was unprecedented – civil society speakers were able to put their hands up and make statements from the floor from the beginning and not just at the end. That’s a good barometer of engagement from civil society.

“It’s still a fight for recognition. For UNGASS, we have convened a civil society taskforce, which is a group of civil society representatives nominated from their regions on thematic areas like harm reduction, recovered drug users, active drug users, from the medical profession, from youth, farmers. We’re trying to cover the range of professions affected by drug control policy.

“That’s also a first. I don’t think we’ve had a civil society taskforce in relation to a big UN drugs meeting before. It happens at other UN meetings – for HIV and migration, for example. So I think we’re finally there. Although it’s always a fight for space and to some extent it still is.”

“It will be interesting to see the degree to which civil society will succeed in its effort to formally engage in the debates,” says Kasia Malinowska-Sempruch, Director of the Open Society Global Drug Policy programme.

Drug policy has been stuck in the UN drug agency bunker for far too long given its cross-cutting nature. The UNGASS seems to have uncorked some pent-up frustrations about this from the other agencies, and they haven’t held back in their criticisms of the control system and its disastrous negative impacts.

“In the past, almost all talks happened behind closed doors. In this current, more open environment, people are able to come forward to share successes and failures freely.”

 Another big shift in 2016 is the participation of other UN agencies, which have often been quarantined out of the process in the past.

Fordham says the IDPC called early for “all the UN family” to be able to feed into the UNGASS process in a meaningful way.

“I will say that it was really challenging in the beginning to get the other UN agencies to be engaged and interested in getting involved,” she says.

“There was a lot of work in the background to bring them to the table and say, ‘You guys need to be involved in this process, it’s really important for your mandate’. But they have, and it’s been really positive.”

Like Rolles, she believes the engagement of the UN Development Programme (UNDP), which published a strong paper last year examining the development dimensions of the drug conventions, has been particularly notable.

“UNDP has been one of the best examples of a UN agency really taking up the mantle and looking at the very serious negative consequences on their development mandate of the punitive and repressive approach to drug control. That has an effect on the debate,” she says.

“I think even if nothing else was achieved by the UNGASS, the engagement by the other UN agencies already represents a big win,” says Rolles.

“Drug policy has been stuck in the UN drug agency bunker for far too long given its cross-cutting nature. The UNGASS seems to have uncorked some pent-up frustrations about this from the other agencies, and they haven’t held back in their criticisms of the control system and its disastrous negative impacts.

“The UNDP report was very striking in its comprehensive demolition job on the Drug War, and the submissions from the Office of the High Commissioner for Human Rights and Special Rapporteur on the right to health were equally devastating. Other submissions from UNAIDS and UN Women have also been excellent – and have collectively pushed the UNODC to evolve its own tone and messaging as well. This is the need for what is called UN system-wide coherence on issues like decriminalisation, for example, which is now an established position across the UN family from the Secretary-General down.”

Malinowska-Sempruch also praises the UNDP report as “spectacular” but believes that UNAIDS could have played a more active role.

“They have much at stake here – HIV infections among drug users are increasing, and access to AIDS treatment among this group is lagging behind. The issue clearly requires their leadership in support of harm reduction. UNAIDS has a strong UNGASS experience – it led the 2001 UNGASS on AIDS. Finally, despite access to essential medicines being a core theme of the debates, the WHO has been almost entirely absent.”

But perhaps the most striking contribution so far has been from the lead agency itself. When Richard Branson went public on a UNODC paper on decriminalisation after it was pulled without explanation from the International Harm Reduction Conference in Kuala Lumpur last year, it made international headlines.

Ironically, although it was almost certainly withdrawn under political pressure, the UNODC paper was, says Fordham, “the best synthesis of the issue, explaining to member states very clearly what their obligations are under the treaties in terms of decriminalisation and making a very clear call for decriminalisation.

“This all provides very importantly what we call ‘background mood music’ for the UNGASS debate.”

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New Zealand’s position at UNGASS 2016 will be founded in the National Drug Policy 2015–2020 published last year. As such, says Associate Health Minister Peter Dunne, it is “based on minimising harm and promoting and protecting health and wellbeing and on developing drug policy that is compassionate, innovative and proportionate. We intend to take this position with us into UNGASS.

“We intend to reiterate our support for human rights and our position that the death penalty is unacceptable anywhere, anytime, for any crime. We also intend to emphasise our support for harm-reduction initiatives such as needle exchanges and opioid substitution therapy and for ensuring the availability of controlled substances for medicinal purposes where this is in line with medical evidence.

“The National Drug Policy also recognises that adverse social factors make people more at risk of being affected, directly or indirectly, by drug harm. We believe that an integrated response is needed in which multiple agencies – health departments, Police, correctional services, social services and others – work together alongside families and communities to provide a complete response to the full set of social issues that affect vulnerable people.”

Dunne says the NDP is “quite a significant shift from its predecessors”. And that shift is no more evident than in the policy’s ground-breaking recognition that the harms of illicit drugs may stem from the very laws against them. In launching the policy in September, Dunne said that “the laws we make need to be reasonable, and it is crucial that our enforcement response is proportionate”.

And yet, the policy also says that New Zealand’s Misuse of Drugs Act will not be changed. It’s a political contortion, but one likely to be reflected at UNGASS. Fordham sees a groundswell around the proportionality of drug offence sentences.

“This will be a key debate in the UNGASS process, and for the first time, we’re seeing language coming from member state submissions about the need to address the proportionality of sentences that’s in the submission from the US. Many of the Latin American countries also have a massive incarceration issue.”

She says sentences for low-level drug offences in many countries exceed those for rape, aggravated assault and, in some countries, even murder.

“There’s an acknowledgement that we’ve gone down a route that is far too repressive, and that has created a number of their problems. And has that really made our communities safer? Probably not.”

New Zealand Drug Foundation Executive Director Ross Bell says New Zealand goes into UNGASS in a unique position in that its attempt to find a new way to deal with new drugs, the Psychoactive Substances Act (PSA), has little support at international level. The government would be in an awkward position if a substance that made it through the PSA’s approval process was subsequently scheduled under the UN drug treaties, as mephedrone was last year at Britain’s behest.

“What does New Zealand do? Does it keep that product in the PSA? Or does it say, ‘We’re a good global citizen, and because of our treaty obligations, we’re going to have to put this into our Misuse of Drugs Act’?

“There’s probably enough room that New Zealand could say, ‘Well, the PSA is allowing us to meet our obligations under the treaties because we are controlling these drugs. We’re just controlling them this way rather than another way’.

“That argument hasn’t yet happened. But one of the things we’ve been saying to government, and they’ve picked it up recently in their comments to the various pre-UNGASS meetings, is that countries should continue to be allowed to innovate.

So while the PSA isn’t working as it should, the government has been quite active in trying to protect it from being undermined by any staunch prohibition debates that happen at the UN level.”

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Most observers see little or no chance of the UN drug conventions coming up for grabs at UNGASS 2016.

“It’s getting increasingly difficult for them to completely avoid any mention of treaty reform,” says Fordham.

“But it won’t happen at the UNGASS. Even some of the more progressive governments will still say, as a result of political and diplomatic pressure, that the treaties remain the cornerstone of the international drug control system.

“Our point to them is that there are countries, including the US, that have moved towards cannabis regulation for recreational use. The treaty scholars we’ve spoken to and who are in our network have pointed out that regulated markets for recreational use are beyond the flexibility that exists within the treaties.”

“We think it’s a good thing that governments are moving towards that model and experimenting and being innovative in their policies. But it’s also important to be honest about the challenges this presents for the international treaty system. International law is there for a reason, and for many smaller countries, international law is important to protect them from larger countries.

“So to just ignore the treaties is not really an option. And if member states care about the integrity of the drug control system and care about the treaties being relevant, they should have an honest and open debate about how the policy changes present a challenge to the system and therefore how the treaty system might be modernised.”

So domestically, New Zealand should be asking, ‘Is New Zealand using the flexibility allowed under the treaties in its own drug law?’And we don’t think it is.

“No one is expecting the consensus outcome document to be earth-shattering or for the treaties to be reformed at UNGASS,” Rolles agrees.

“But if the reform position is expressed vocally by a core group of member states, then even that represents a victory. The other outcome will be the summaries of the thematic and plenary debates – and these will reflect the disagreements and tensions. It may seem churlish to hope for a big fight at the UN, but in a way, that’s what’s needed.”

Bell believes countries like New Zealand need to put more thought into an idea that has gained momentum in recent years – that there is flexibility within the UN drug treaties.

“The UN itself now makes the argument that there is enough flexibility within the treaties for countries to decriminalise. The treaties don’t require you to criminalise, but you have to put alternatives into place – which is how Portugal was able to do what it did.

“So if that’s the case, the international community is now saying there’s not enough flexibility for countries to legalise drugs, but there’s certainly enough flexibility to legalise drugs and replace a criminal system with referrals to health services and so on. So domestically, New Zealand should be asking, ‘Is New Zealand using the flexibility allowed under the treaties in its own drug law?’ And we don’t think it is.”

Nonetheless, everyone spoken to by Matters of Substance expressed a degree of optimism about UNGASS 2016. “I am optimistic about UNGASS,” says Dunne.

“I think it will present an opportunity to reinforce the merits of an innovative, proportionate and compassionate drug policy. I am hopeful that we will gain greater high-level agreement on the need to adopt a more health-focused approach to drugs.”

“No one is seriously saying let’s scrap the treaties,” says Bell.

“That’s off the table for now. But there are some basics. The use of the death penalty is one of those New Zealand has been pushing. What this is all about is how do you turn the fine words spoken at these forums now – drugs as a health issue, human rights – into practical changes on the ground? If everyone’s saying at UN level the death penalty shouldn’t be used, why is it that the UN agencies are still working with governments who use the death penalty for drug offences?”

Rolles believes the place to look for a result will not be in the consensus declarations from UNGASS but in the way they and the “cross-cutting engagement” sparked by the build-up to UNGASS will feed into the processes to develop the new global 10-year strategy set for delivery in 2019, “which is the moment when the high-level reform talk will become high-level reform action”.

Bell believes even 2019 is probably too optimistic a date for reform.

“Ultimately, these are all evolutionary steps to a different legal framework. Countries will have to start talking about whether the treaties are fit for purpose – and if they’re not, what would a new treaty look like?”

“I’m optimistic within certain parameters,” says Fordham. “I think we have to look at what’s been gained already in just having this UNGASS happen. You asked me about civil society engagement and visibility – the other side of that coin is not just about process, it’s about the growth of ... a much stronger, more visible and more diverse drug policy reform movement.

“We’re not going to have the end of prohibition in April, the treaties are not going to be torn up and started afresh in April. There are still a lot of repressive voices in there – it’s a consensus-based environment, we’re up against countries like Russia, Saudi Arabia, Iran and China. But it’s about seeing how the tone of the debate shifts. You have to take a long-term view.”

Russell Brown blogs at publicaddress.net