By Jorge Rolón Luna*
According to the United Nations World Drug Report 2022, around 284 million people aged between 15 and 64 used drugs worldwide in 2020 (an increase of 26% compared to the previous decade). Youth drug use also grew, surpassing the previous generation. In Latin America, people under 35 make up the majority of those under treatment for drug use disorders. Worldwide, millions of people inject drugs, contract hepatitis C and HIV, or both diseases at the same time, and suffer psychiatric problems, suicide and hospitalizations.
Drug trafficking violence has increased around the world. It has involved not only the “traditional” countries (Colombia and Mexico, for example), but the reconfiguration of the business has put countries such as Paraguay, Ecuador and even the Netherlands on the map of deaths and attacks.
Never in history have “drugs” been a problem to the extent observable today. When drugs became a business, their deleterious effects did not take long to appear, as was seen in China with opium, whose consumption reached 5 million addicts by 1830 and was the first major epidemic of drug addiction in the history of mankind.
In the past, governments dealt with the issue of “drugs” locally, but since the beginning of the 20th century “the big change” has taken place and the approach has been global, since the world market has become global. This led to the emergence of international regulations aimed at regulating and combating the use of illegalized substances -which were not illegal before-, with the 1961 UN Single Convention on Narcotic Drugs at its core. But this process began earlier, with the 1909 conference of the Shanghai International Opium Commission, which resulted in the first international drug treaty, the International Opium Convention (The Hague, 1912). It is worth noting that since its inception, this global approach has been essentially North American and has responded more than anything else to the vision of religious and essentially prohibitionist sectors of the world’s major power. This, later mixed with geopolitical purposes and objectives, has meant ab initio for the visions and needs of each country a straitjacket that only allowed them to abide by this legal-political order, or to be a pariah in the concert of nations and to bear the sanctions for not complying with these “international” obligations.
This global war on drugs, it is also denounced, has not been sustained on a scientific basis. All kinds of substances, including some less harmful than others, as well as some with medicinal uses, have been lumped together in the same bag of prohibition and repression. It has also been based on the persecution of users of all levels and types. The question that today challenges international agencies, law enforcement agencies, politicians, scientists, civil society groups, various victims and anyone who observes the failure and consequences of the warlike and repressive approach to the drug problem is: what to do then?
First, it is important to point out that there are options other than banning, repressing, warring, focusing on supply and suppliers throughout the chain, and tormenting consumers. But these options run into obstacles in the existing international legal order. Although it is possible to predict that this order will continue to be a hurdle to autonomous initiatives and public policies, certain events taking place in different countries may have a global influence and open the door to progress in different directions. Roughly speaking, since there are many nuances and this does not exhaust the repertoire, some of these major options are outlined below.
First, decriminalization. This means that the possession of small quantities – and therefore use – of illegal substances carries lesser penalties, such as fines or community service, removing these behaviors from the sphere of prison, although not decriminalizing them, much less legalizing them. In other words, “decriminalization generally implies the elimination of custodial sentences”.
Second, decriminalization. As noted by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), this option “implies the removal of a conduct or activity from the sphere of criminal law; prohibition remains the norm, but the sanctions for consumption (and its preparatory acts) no longer fall within the framework of criminal law.”
Finally, legalization, which means eliminating the prohibition of some or all substances, with production, trafficking and consumption being regulated by the legal market and the State, as occurs, for example, with alcohol and tobacco. It is, therefore, the most radical vision to confront the traditional prohibitionist approach.
Advances in the legalization and decriminalization of cannabis and other substances in many countries, but especially in the United States, are in many cases at odds with international agreements. I pointed out in the first article of this series how progress in these directions by the architect country of the repressive approach opened up enormous possibilities for trying different policies from those that have failed. The most recent development in that direction came from U.S. President Joe Biden himself, announcing via Twitter a pardon for all minor federal convictions for marijuana possession. Biden also asked Health Secretary Becerra and Attorney General Garland to begin the administrative process to review the consideration of marijuana under federal law, while he asked the governors of the various states to “do the same for state crimes, because what works for one federal prison, works for the rest of the prisons.”
All this implies an unthinkable shift in the repressive axis against illegal drugs, which is shifting from the world’s major power and the European Union to other countries. In Russia, China, the Arab countries, and the Philippines, for example, not only are prohibitions rigidly maintained, but consumers are persecuted and even “hunted”. Such is the case in the Philippines, where almost 30,000 addicts, consumers and traffickers have been murdered with the active participation of State agents or with their permission, which even led to the intervention of the International Criminal Court.
This global war on drugs, it is also denounced, has not been sustained on a scientific basis. All kinds of substances, including some less harmful than others, as well as some with medicinal uses, have been lumped together in the same bag of prohibition and repression. It has also been based on the persecution of users of all levels and types.
This gradual “disobedience” to existing treaties opens up avenues for countries like ours in addressing the drug problem, if international law is interpreted in a progressive manner. The Vienna Convention on the Law of Treaties establishes that countries are obliged to comply with treaties (pact sunt servanda, art. 26), even if they conflict with their domestic law (art. 27). But, on the other hand, the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances also establishes that the treaty must be implemented “in conformity with the fundamental provisions of their respective legislative systems” (art. 2.1) and “subject to the constitutional principles and basic concepts of their legal systems” (art. 3.2).
Countries that are currently at the forefront on this issue, such as Portugal or the United States itself, have shown that the most important thing is political will, not so much the strict wording of the treaties. The way forward? The key may lie in what Michel Kazatchkine, of the Global Commission on Drug Policy, says: “Governments should be committed to the safe use of these substances. We must face the world as it is, and there is no such thing as a drug-free world.
*Lawyer, researcher, and former director of the Security Observatory of the Ministry of the Interior. Author of the book of short stories “Los sicarios”.
Cover image: El Cronista/Reuters