Vol. 37 Articles Editor
Vol. 36 Associate Editor
Global drug regulation dates to the earliest pages in the modern chapter of international law. Long before the Geneva Convention or even the Treaty of Versailles, politicians, medical experts, and religious leaders gathered in Shanghai to address what they called “the opium problem.”[i] 52 years and a half dozen treaties later, the 1961 Single Convention on Narcotic Drugs came into effect, unifying the regulatory threads.[ii] 183 signatories and another 54 years later,[iii] the Convention remains the primary narcotics treaty in effect today.[iv]
As with any multilateral treaty, the Single Convention has faced its share of dissenting voices.[v] Chief among these are accusations that the Convention impedes access to licit analgesics (pain killers) and promotes ineffective methods of combatting drug abuse.[vi] Some critics even blame the Convention for human rights violations.[vii] With the U.N. Special Session on Drugs approaching in 2016, has the time come for an overhaul? Is the Single Convention indeed past its prime?
Not quite. A close evaluation of the Single Convention at fifty-four reveals a still-effective, surprisingly adaptable system of treaty obligations. The main international drug problems, it appears, stem not from the text of the treaty itself, but from errors of implementation.[viii] The Single Convention grants signatories considerable discretion.[ix] When implementing the treaty within their borders, states enjoy the freedom to legislate in a manner that best matches their native needs and preferences.[x] In fact, one of the Single Convention’s greatest strengths is its flexibility. Where drug regulation problems do exist, they can often be traced to state-level legislation, where local governments are failing to live up to their full treaty obligations.[xi] To understand how faulty interpretations are foiling the still-valid goals of the Single Convention, consider two of the most pressing issues in global drug regulation: painkiller access and abuse prevention.
Perhaps the most tragic health crisis in the world today is the prevalence of treatable suffering.[xii] In many countries, patients live in pain simply because they lack access to basic analgesics (most of which are derived relatively cheaply from opium).[xiii] While 80% of the world suffers from a scarcity of painkillers, 54.6% of the world’s morphine is consumed by the 4.7% of the world’s population living in the United States.[xiv]
Economic realities certainly play a role in perpetuating this discrepancy, but unjustified legal barriers are also to blame. Some sovereigns, nervous about the threat of abuse and eager to comply with international obligations, choose to implement the Single Convention through unnecessarily stringent domestic laws.[xv] The Single Convention recognizes that the “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering,” stressing that “adequate provision must be made to ensure the availability of narcotic drugs for such purposes.”[xvi] The failure of many signatories to achieve this goal is a failure of their Single Convention obligations.
Where reform efforts have been most successful, they have operated on the state level. In Uganda, for example, extensive lobbying efforts recently succeeded in improving access to morphine. Previous legislation mandated a doctor’s prescription. This restriction, which is found nowhere in the Single Convention, formed a colossal barrier to pain relief in Uganda, a country with a serious doctor deficiency.[xvii] By changing the law to allow other trained medical professionals, such as nurses, to administer morphine, Uganda took a significant step towards fulfilling its full treaty obligations.[xviii]
Errors of implementation are also at the heart of the second main drug regulation controversy. The debate over abuse reduction strategy, pitting the “criminalization” and “harm reduction” methods against each other, has reached the highest levels of international policymaking.[xix] Some proponents of the harm reduction approach, which encourages states to view drug abuse as a public health issue rather than one of criminal justice,[xx] accuse the Single Convention of perpetuating an archaic, punitive approach to drug abuse and creating a stumbling block to more modern, multifaceted responses.
In reality, the text of the treaty accommodates a wide variety of abuse-prevention methods. Consider, for example, the following passage on marijuana: “[t]he Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”[xxi] The Convention does not require any particular enforcement system, and leaves the door open to medicinal usage as each individual state may find appropriate.[xxii] Nations have taken advantage of this flexibility, employing a variety of different enforcement strategies.[xxiii] While the United States is famous for promoting a criminalization approach, other countries such as Germany and Switzerland have openly embraced harm reduction methods, promoting education and rehabilitation.[xxiv] The same is true for other narcotics. In extreme instances, the treaty framework even allows states to make individual reservations as necessary to address specific cultural needs.[xxv] America’s highly criticized “War on Drugs” may be globally influential,[xxvi] but the U.S. system is far from the only accepted approach to carrying out the goals of the Single Convention.
Before sounding the drug treaty death knell and starting from scratch, it is worth asking why the Single Convention has lasted as long as it has. At its heart, the convention has two basic aims: to combat abuse and to promote medical accessibility.[xxvii] Beyond that two-fold vision, the central theme is discretion, or as one commentator put it, “the thrust of the Single Convention is individual sovereign responsibility.”[xxviii]
The Single Convention is not, as some have suggested, “frozen in place.”[xxix] As a highly malleable document, the treaty has succeeded in allowing nations a high level of individual discretion. The global drug regime is far from perfect, but to the extend that problems persist; they are largely abuses of this discretion, correctible errors of implementation.[xxx] The full vision of the Single Convention will only be accomplished by convincing domestic legislatures to adopt appropriate interpretations. Reform efforts, whether aimed at streamlining access to licit painkillers or reshaping the way governments address drug abuse, have been and will continue to be most effective on the state level.
[i] A.L. Taylor, Addressing the global tragedy of needless pain: rethinking the United Nations Single Convention on Narcotic Drugs, The Journal of Law, Medicine & Ethics, 35(4), 556, 560 (2007).
[ii] Single Convention on Narcotic Drugs, 520 U.N.T.S. 151 (1961) available at https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=vi-15&chapter=6&lang=en; Evan D. Anderson & Corey S. Davis, Breaking the Cycle of Preventable Suffering: Fulfilling the Principle of Balance, 24 Temp. Int’l & Comp. L.J. 329, 337 (2010).
[iii] Taylor, supra note 1, at 560.
[iv] Nations have implemented additional drug treaties, including the 1971 Convention on Psychotropic Substances aimed at synthetic drugs, but the Single Convention remains the primary treaty governing narcotics.
[v] David Bewley-Taylor & Martin Jelsma, Regime Change: Re-visiting the 1961 Single Convention on Narcotic Drugs, International Journal of Drug Policy 23, 72 (2012) (“The time has come to revisit the Single Convention and fundamentally fix it.”).
[vi] Taylor, supra note 1, at 564.
[vii] Daniel Heilmann, The International Control of Illegal Drugs and the U.N. Treaty Regime: Preventing or Causing Human Rights Violations?, 19 Cardozo J. Int’l & Comp. L. 237, 239 (2011).
[viii] Anderson & Davis, supra note 2, at 350.
[ix] M. Wesley Clark, Can State “Medical” Marijuana Statutes Survive the Sovereign’s Federal Drug Laws? A Toke Too Far, 35 U. Balt. L. Rev. 1, 23-24 (2005).
[x] Anderson & Davis, supra note 2, at 350.
[xii] Taylor, supra note 1, at 556.
[xiii] Anderson & Davis, supra note 2, at 335 (“The World Health Organization (WHO) estimates that 80% of the world’s population have no or insufficient access to medically indicated treatment for moderate to severe pain.”).
[xiv] Id. at 356.
[xv] Id. at 350.
[xvi] Id. at 339
[xvii] Id. at 353.
[xix] Taylor, supra note 2, at 561 (“Many of the impediments to access are found in overly restrictive law, policy and regulation at the national level. Although countries are required by international conventions to place certain controls on opioids, many national regulatory regimes far exceed the requirements of international law.”).
[xx] Melissa T. Aoyagi, Beyond Punitive Prohibition: Liberalizing the Dialogue on International Drug Policy, 37 N.Y.U. J. Int’l L. & Pol. 555, 557 (2005).
[xxi] Single Convention 18 U.S.T. at 1421, 520 U.N.T.S. at 206.
[xxii] Aoyagi, supra at 594.
[xxiii] Aoyagi, supra at 580 (“State practice illustrates that member parties have interpreted the treaties differently.”).
[xxiv] Id. at 558.
[xxv] Bolivia Rejoins Narcotics Convention with Reservation Protecting Coca Leaf over U.S. and Others’ Objections, 107 Am. J. Int’l L. 460 (2013) (“In January 2013, Bolivia rejoined the Single Convention on Narcotic Drugs (Single Convention) subject to a reservation allowing coca leaf chewing and limited cultivation within Bolivia.”).
[xxvi] Aoyagi, supra note 20, at 561.
[xxvii] Taylor, supra note 2, at 556.
[xxviii] D. Brian Boggess, Exporting United States Drug Law: An Example of the International Legal Ramifications of the “War on Drugs”, 1992 B.Y.U. L. Rev. 165, 168 (1992).
[xxix] Aoyagi, supra 20, at 605-06.
[xxx] Daniel Heilmann, The International Control of Illegal Drugs and the U.N. Treaty Regime: Preventing or Causing Human Rights Violations?, 19 Cardozo J. Int’l & Comp. L. 237, 239 (2011) (“If construed correctly, the legal framework in place can meet the desired objectives.”).