Contributions to the discussion on drug legalization, and decriminalization (III)

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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