Resolution L2. Application of the principle of proportionality in implementing drug control policies

Netherlands: Ready to take it up now. Version we agreed on yesterday. Two informal sessions on this and we agreed to bring it to the COW.

Greece: Rationale of this resolution is enriching the comprehensive understanding of the opportunities of the three conventions to implement effective drug policies, and focuses on proportionality. Being discussed in parallel in the outcome document. Proportionality is a prominent legal principle in many legal orders and legal systems. Takes different forms of balancing. All restrictions imposed by law need to be necessary (i.e., no other way to achieve the intended aim), and be appropriately proportional so as not to be disproportionate between the measure and the aim in order to avoid excessively burdensome impacts on the party. Offence takes into account criteria when making a ruling. Principle of suitability (i.e., appropriate restriction measures that are suitable to reach the aim). Principle of necessity (i.e., must not exceed the necessary measure). Principle of proportionality (i.e., weighing costs and benefits).

UK: We understand that the title is clearly in bold at the top. The blue highlighted text is an alternative. Delete it and move forward with the bold title.

Egypt: Implementation of sentencing is the issue of the judiciary. So should be “promotion” in the title. “Promotion of proportionate sentencing in drug control policies” as the suggested title.

Italy: We do not support the change in the title. Government has a role to play in application of proportionality. Suggest “Application of proportionate sentencing in implementing drug control policies” as the title.

Chair: All the negotiations here are not in context of the outcome document.

USA: Support the alternative proposal from Italy.  We are giving guidance, so “application” is appropriate in the title.

China: Agree with Egypt. Principle doesn’t apply in all countries, but the concept is universal, so support removal of that word. Necessary to count on judicial authorities, so should say “promotion,” or it will seem like we are being directive.

Egypt: We had this discussion in the negotiations of the outcome document. Judiciary decides what it wants to implement, so our role is promotion.

Pakistan: Support proposal of Egypt.

Indonesia: Support proposal of Egypt.

Colombia: Trying to ensure that proportionality is applied to penalties and sentencing. Shouldn’t just apply to minor offences. Also has an impact on health. Sentences and penalties should be proportionate to the crimes. Broad legal framework. Legislative branch has a lot to do with this branch. Legal systems contain norms and standards that are proportionate in nature. We are more at ease with the title including the word “application” while we would also prefer the word “sanctions” to be used. We are flexible. This depends much on the contents of the resolution.

Uruguay: Guidelines for the state, not a specific branch of government. Applies to the state as a whole. Accordingly, the resolution refers to the proportionality of both sentencing and offences to ensure greater consistency with the contents of the conventions.

Netherlands: We are flexible on promotion or application. Also flexible on dropping the word “principle.” Think “sentencing” is broad, so prefer that over “sanction.” Need the word “implementing” in the title.

Chair: Stick with Egyptian text with an addition of the word “implementing.”

Egypt: No problem with adding it. When we say implementing, it means only in the implementation phase.

Chair: Agreement on the title as “Promotion of proportionate sentencing in implementing drug control policies.”

PP1: 

Egypt: Replace with “Reaffirming the three international drug control conventions, which are concerned with the health and wellbeing of mankind and conscious of their duty to prevent and combat this scourge.”

Russia: Support Egypt.

China: Concern about the balance. 1988 convention not only refers to health and welfare, but also to the harm of the drug problem. Support a balanced text. Support Egyptian proposal, although we have other thoughts on social stability and security. If Egyptian proposal is agreeable, we support it.

Uruguay: Replace “combatting this scourge” with “addressing the problem.” That’s what we use most commonly.

USA: Tried to find a common theme between all three conventions. Victims of the drafters of the conventions, as they are not as clear and concise as we would like. I wonder if it might be better to not try to identify the common theme, and just reaffirm the three drug conventions and then proceed.

Egypt: Support the USA.

China: Go along with US proposal.

Colombia: Would like to leave the reference to “health and welfare of mankind.” We are not repeating what exists in a preambular paragraph. We are referring to the objectives of the conventions. Striking a balance with other paragraphs that reflect that the world drug problem is a scourge.

Chair: Split this into two. First the USA proposal that has support. Second, the health and wellbeing. Reminding everyone that this is about proportionality of sentencing.

Netherlands: Accommodates Colombia. Take USA proposal and add “aims and purposes” before listing the conventions.

Egypt: Can we say “aims, purposes, and provisions”?

Guatemala: We have different visions on the aims and purposes. Like the USA proposal, as it is general, so propose we keep it as it was.

Colombia(?): This paragraph changes the resolution entirely. When we have “health and welfare,” that allows us to ensure proportionality in sentencing. This is core to the resolution. If this isn’t included in this paragraph, it should be included elsewhere.

Netherlands: Drop the whole PP as a last resort.

(…)

Russia: With regard to PP3, I think we should bracket “such as the use of violence of victimization of minors.”

UK: I would like to reinforce the comments made by the United States. These are two separate issues.

Italy: We stand by the UK and USA.

China: We feel that the proposal made by Egypt has a very important value. However, what constitutes a very serious crime? What constitutes minor crimes? This must be subject to judgment by the legal authorities of a country. We suggest giving Egypt’s suggestion fair consideration.

Egypt: I am actually surprised at the comments we are hearing. “Recalling that the three international drug control conventions established, to varying degree and in specific situations, that states may provide, either, as an alternative to conviction or punishment, or in addition to conviction or punishment, that drug using offenders should undergo measure of treatment, education, after care, rehabilitation or social reintegration.”

Chair: Could we approve this PP2, seeing as we deleted the first PP? I can see Egypt is shaking its head.

Egypt: Are we deleting “the use of violence and victimization of minors” too?

Chair: Yes, this was suggested.

Netherlands: We don’t need it. It is in the convention anyway.

UK: I’m lost about where exactly we are.

Chair: We are here with two alternatives. With, or without this addition?

Egypt: To continue “and that parties shall endeavor to ensure that any discretionary legal powers under their domestic law relating to the prosecution of person for drug related offences are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and in regards of the need to detect the commission of such offences.” This is article 6.

Chair: Let’s avoid having lengthy parts of the conventions written down. Regardless, is this correct?

Egypt: We are here to make sure everything is balanced. Yes, this is correct.

USA: What it says in article 5/5: “can take into account factual circumstances.” What is referred to in the second part of article 6 is prosecutorial discretion.

Chair: Listening to you all, it sounds like this resolution is not mature enough for the COW. So far we have only agreed on the title.

Netherlands: I encourage member states to be present at informals. We could have made more progress.

Guatemala: I would like to participate in the informal.

Chair: We will start at 3:15 in the COW. Can we get a time now for the informal?

Indonesia: Grammatical error. Replace “deter” with “detect.”

Netherlands: 6 PM.

Chair: Thanks Indonesia. Good, let’s say 6 PM for now. Have a very good lunch.

Leave a Reply

Your email address will not be published.