Feature: UN Anti-Drug Agency Complains Latin American Decriminalization Trend Undermines Prohibition Regime

In its annual report on countries' compliance with the global drug prohibition regime, released Wednesday, the International Narcotics Control Board (INCB) challenged the trend toward the decriminalization of drug possession in Latin America, saying it undermines the three international treaties that define the international framework for drug prohibition. Critics were quick to strike back, saying the INCB was overstepping its boundaries.

Under the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the INCB is charged with being the "nattering nanny" of the global prohibition regime. It "identifies weaknesses in national and international control systems and contributes to correcting such situations."

Its powers are primarily rhetorical, and it used them in the annual report to lash out at creeping decriminalization in the Western Hemisphere:

The Board notes with concern that in countries in South America, such as Argentina, Brazil and Colombia (and in countries in North America, such as Mexico and the United States), there is a growing movement to decriminalize the possession of controlled drugs, in particular cannabis, for personal use. Regrettably, influential personalities, including former high-level politicians in countries in South America, have publicly expressed their support for that movement. The Board is concerned that the movement, if not resolutely countered by the respective Governments, will undermine national and international efforts to combat the abuse of and illicit trafficking in narcotic drugs. In any case, the movement poses a threat to the coherence and effectiveness of the international drug control system and sends the wrong message to the general public.

Brazil quasi-decriminalized drug possession in 2006 (drug users are still charged, but cannot be sentenced to jail terms), a series of Argentine court decisions in recent years culminating in a Supreme Court decision last year has decriminalized marijuana position (and implies the looming decriminalization of the possession of any drug), and Mexico last year decriminalized the possession of small amounts of drug for personal use. In addition, possession of small amounts of marijuana has been decriminalized in 13 US states.

The "influential personalities" to whom the INCB critically referred, include former Brazilian President Fernando Henrique Cardoso, former Colombian President Carlos Gaviria, and former Mexican President Ernesto Zedillo, who, as members of the Latin American Commission on Drugs and Democracy last year issued a report highly critical of the US-led war on drugs in the region. That report called on the US to decriminalize marijuana possession and treat drug use as a public health -- not a criminal -- matter. To that list could be added former Mexican President Vicente Fox, who just this week reiterated his call for a debate on drug legalization (See related story here.)

While the former presidents have yet to respond to the INCB's critique, non-governmental organizations working in the field have come out swinging. They accuse the INCB of overstepping its bounds and attempting to block necessary and desirable drug law reforms.

"There are too many consumers and small-time drug offenders overcrowding Latin American jails. This is not only inhumane, it also means justice systems are diverting their scarce resources and attention away from big traffickers," said Pien Metaal, Drugs and Democracy Program Researcher for the Amsterdam-based Transnational Institute (TNI). "Part of the overcrowding problem stems from disproportionate prison sentences for nonviolent offenders."

Decriminalization has not been shown to increase drug use. Portugal decriminalized the possession of all drugs for personal use nine years ago, and its usage rates are squarely in the middle of European averages. Similarly, the Dutch experience with de facto personal legalization has not led to Dutch usage rates outside the European norm, nor are marijuana usage rates in American states where it is decriminalized substantially different from those where it is not.

John Walsh, head of the Washington Office on Latin America (WOLA), criticized the INCB for "reminding" governments that the treaties require that drug possession be criminalized. "Apparently it's the INCB that needs reminding, both about the limits of its own role and about what the treaties actually require," said Walsh. "Not only does the INCB lack the mandate to raise such issues, the INCB misreads the 1988 Convention itself, asserting an absolute obligation to criminalize drug possession when the Convention explicitly affords some flexibility on this matter."

Walsh noted that while the 1988 Convention requires each party to "establish as a criminal offence [...] the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption," an article within the convention explicitly states that such laws are subject to each country's "constitutional principles and basic concepts of its legal system." Thus, he argued, countries have "a certain latitude" within the global prohibition regime to reform their drug laws.

"In the case of the Argentine Supreme Court ruling, it is arrogant interference by the INCB to question the judgment of the highest judicial authority of a sovereign State. The INCB has neither the mandate nor the expertise to challenge such a decision," said Martin Jelsma, TNI Drugs and Democracy Program Coordinator.

The INCB also expressed its concern about medical marijuana in Canada:

Canada continues to be one of the few countries in the world that allows cannabis to be prescribed by doctors to patients with certain serious illnesses. […] Until 2009, cannabis could be either obtained from a Government supplier or grown in small amounts by the patient, or a person designated by the patient, with the sole limitation that only one patient could be supplied by a licensed supplier. In 2009, following court decisions stipulating that that approach unjustifiably restricted the patient's access to cannabis used for medical purposes, the Government increased the number of cultivation licenses a person could hold from one to two. The Government intends to reassess the program for controlling medical access to cannabis. According to article 23 of the 1961 Convention, a party to the Convention, if it is to allow the licit cultivation of cannabis, must fulfill specific requirements, including the establishment of a national cannabis agency to which all cannabis growers must deliver their crops. […] The Board therefore requests the Government to respect the provisions of article 23.

But as with the case of the decriminalization decision by the Argentine Supreme Court, the Canadian courts were acting within their "constitutional principles and basic concepts of its legal system."

And in the US:

While the consumption and cultivation of cannabis, except for scientific purposes, are illegal activities according to federal law in the United States, several states have enacted laws that provide for the 'medical use' of cannabis. The control measures applied in those states for the cultivation of cannabis plants and the production, distribution and use of cannabis fall short of the control requirements laid down in the 1961 Convention. The Board is deeply concerned that those insufficient control provisions have contributed substantially to the increase in illicit cultivation and abuse of cannabis in the United States. In addition, that development sends a wrong message to other countries.

The INCB also again went after Bolivia, which enshrined the coca leaf in its constitution as part of its cultural heritage in 2008 and which has called for coca to be removed from the 1961 Single Convention. The tone, however, was a bit softer than last year, when it reprimanded Bolivia over coca production, coca chewing, and other traditional uses of the Andean plant:

The Board wishes to remind the Governments of all countries concerned, in particular the Government of the Plurinational State of Bolivia, that unless any further amendments to the 1961 Convention are put into effect, the use or importation of coca leaf from which cocaine has not been extracted, for purposes other than those allowed under the 1961 Convention, constitutes a breach of obligations under the Convention.

"The INCB again shows itself to be out of touch with reality by demanding that Bolivia stamp out coca use, also wrongfully prohibited in the Conventions," said TNI's Pien Metaal. "The controversies around Article 3 of the 1988 Convention and the erroneous treatment of the coca leaf in the 1961 Convention are two examples of why the drug control treaty system, including the role played by the INCB, needs to be revised."

Along with the UN Office on Drugs and Crime, the INCB is the bureaucratic backbone of the global prohibition regime. That it continues to work to uphold the prohibitionist principles of the regime is no surprise. That it is now subject to increasing criticism and attack in the face of the myriad failures of global drug prohibition is no surprise either.