Home » Resolution L2. Application of the principle of proportionality in implementing drug control policies (continued)

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

EU. We have had 4 informals this morning, we went through most PPs and OPs, but there is no agreement on 3 PPs and 2 OPs, although maybe OP4 in its alternative form was almost agreed. So we thought it would be good to have the CoW look at it as there were only a few reps from much later groups and didn’t feel they had the space to negotiate on behalf of these larger groups so that everybody can be involved in the negotiations.

Chair. We indeed want to have an inclusive process. Let us start with the PP 1.

Preambular paragraph 1

Chair. This is the version agreed in informals. No one is asking for the floor, so we will move ahead.

Preambular paragraph 2 “Recognising that the 1988 Convention requires state parties…”

Chair. This paragraph was also agreed in informals.

Vietnam. We want to express our strong reservation on this para. We didn’t have the opportunity to present an additional para at informals. I want to know if we could introduce it here: “Reaffirming the principle that it is the responsibility of states to define crimes and determine appropriate punishment with due regard to the need to deter the commission of drug-related offences”.

UK. We welcome this additional language, and definitely support its inclusion in the document as it is an important principle. We believe that there is another PP that goes over similar grounding – 3rd one from the end of the PPs agreed in informals. Whilst we are happy to support this language, I would like to see whether we could combine this language with the other agreed paragraph.

Chair. I leave it to follow up informals to see how this could be merged. PP2 is still open.

China. We believe that the proposal from Vietnam is very valuable. There is one reservation from us on the appropriate punishment – we hope it will be changed to “appropriate sentencing” on the grounds that the title of the resolution has been reviewed and now states “sentencing”. We hope that these elements will be placed at the proper place in the document.

Belgium. I support the proposal from the UK, and the change just suggested by China.

Chair. The change proposed by China is agreed.

Preliminary paragraph 3

Chair. This one has also been agreed in informals. I see no comments.

Preliminary paragraph 4 (currently bracketed)

China. with regard to the reference to resolution 58/5, we believe that this resolution has extensive contents, focusing on public health and criminal justice authorities – it has little to do with appropriate sentencing. It is our belief that the title of this resolution is not part of sentencing. In our understanding, it is related to the punishment. It is something that is outside the courts – therefore we believe that reference to that resolution should be removed.

Germany. At this point we have a different opinion to China. Alternatives to punishment have something to do with proportionate sentencing. It does not reflect the whole idea of it but it is part of it, and we would like to keep references to last year’s resolution.

UK. I want to reiterate the point from Germany. This issue is at the heart of the resolution. It is at the discretion of state parties to define what proportionate sentencing looks like. In our view health is part of proportionate sentencing. It is an important part of the concept and we want to retain this para.

Vietnam. We share China’s proposal. We also think that the resolution has another purpose and we should not link the two.

Uruguay. We want to make it clear that we oppose this change. It is ambitious enough to supplement a resolution agreed last year by all of us. It is more in tone with the actual text. We recall a resolution – agreed language.

Iran. This resolution is not really related to proportionality of sentencing. We still have it agreed, and so we don’t think it is a problem to remove reference to it here.

EU. We want to underline the view of Germany and the UK reflects the view of the entire EU.

France. I don’t have anything to add on what the EU colleague said, we strongly want to retain this para.

Indonesia. We support China, Vietnam and Iran to remove this para as there is no direct link to proportionate sentencing – this is an issue related to the court, it is not before or after the court. So all PPs should have a direct link with the court.

Chair. We are now moving to the next para as there is clear division.

Preambular paragraph 5

Vietnam. My comment is for the previous para, PP5. I know we have a reference to the concept of proportionality in OP1.  We need to be clear whether we talk about proportionality within the three UN drug conventions or whether we are talking about something that is broader. We are here at CND and we would prefer to only refer to the 3 UN conventions, not in general.

Netherlands. Regarding the notion of criminal law, proportionality is critical there. I don’t see why this is a problem here.

Chair. We are talking about proportionality in criminal law here. People are never sentenced based on the conventions but on criminal law. So I want to move forward here.

Vietnam. we want to be more precise here. We want to merge the two PPs here to ensure we are talking about proportionality within the context of the 3 conventions.

Netherlands. To accommodate Vietnam, we could say “Noting that the 3 UN drug conventions presuppose that in criminal law…”.

Italy. I am trying to find a way to incorporate the proposal from Vietnam. As this para reflects something more general in criminal law, I propose: “that the concept of proportionality which is, inter alia, incorporated in the 3 UN drug conventions…”

Vietnam. As we stated, we see that this PP should be merged with OP1. I wonder whether we need OP1 now.

United States. I would like to retain this para.

Preambular paragraph 6 (in brackets)

China. We have a different perspective on this para. We gave a full elaboration of our points in informals. This resolution is about proportionate sentencing, which is done in the legal system, in courts. Those that are not related to this should not be included. These are not related to the title or contents of the resolution as they happen after the courts, in jail. So this para should not be incorporated in this resolution.

Iran. We can agree to this para if we retain “Where appropriate”, otherwise we suggest deleting the reference to the Nelson Mandela Rules.

Uruguay. Just a brief comment to show the flexibility of Uruguay – the Mandela Rules are not binding so states should not consider this para to be a commitment or an obligation. In the spirit of flexibility we have no problems with going forward with Iran’s proposal.

Italy. We have been very supportive of this para as we consider that those non-binding guidelines are helpful in the implementation of the concept of proportionality. For this reason, we support the proposal made by Iran as these rules are of course dealing with many other things. We want to recall here those rules touching upon the contents of this resolution. We only ask to change “where appropriate” with “as appropriate”.

United States. We would have preferred “recalling” instead of “noting”. I would also move “as appropriate” next to the rules, not right after “noting”.

China. On many occasions we have said that the core of this resolution is proportionate sentencing. All sentencing is done through the courts. Here, we see we are dealing with the treatment of prisoners, and proportionate treatment of prisoners. All these rules have no direct connection to sentencing. Our position is as before – the elements here are not directly related to proportionate sentencing and should not be included.

Chair. There is clearly no agreement there and it is quite fundamental.

Netherlands. Can we strike out everything from the words “including…” – recalling only the standards on crime prevention and criminal justice and remove everything else.

United States. I appreciate the attempt from the Netherlands, but these rules are very important for prisoners, right to fair trial, issue of proportionality is explicitly addressed in the Mandela Rules. In the spirit of compromise we could accept the Netherlands’ proposal, but “noting” key documents should not be given a narrow view of the precise topic of the resolution.

Chair. I want to leave this with you, as the Mandela Rules are something many member states have been working on for years.

Preambular paragraph 7

China. During the informals we made our position clear, first in the resolution of CND we cite the INCB report. This is not usual. Secondly, INCB as the body monitoring the implementation of the conventions, we have different views. Especially, in the CND report referring to principles of proportionate sentencing, but here we have turned this into a concept. We still oppose inclusion of the para in this resolution.

United Kingdom. In the interest of continued momentum in this resolution, this is the para we agreed that would have the lowest value. We feel it provides useful context for the reader, but in the interest in making some progress we would support its deletion.

Chair. Can we all agree to delete the paragraph?

United States. Again this is a situation where the INCB report is specifically addressing the situation at hand and how the treaties deal with it. We find this problematic to delete this as we are deleting a lot of things. We want to bring this to informals.

Chair. Ok, let’s move on. This is an interesting exercise to identify who should be included in informals.

Finland. I am grateful to your guidance and leadership on this. But I want to note that it is customary to refer also to INCB reports. Just a quick googling gives you plenty of examples where INCB reports are referred to in resolutions. I want to emphasize that in the PPs you should give some background information. You don’t need to agreed to all the words included in the texts mentioned, but they are important to mention, as the USA stated.

Chair. This is indeed a reader’s guidance for those not in this room.

Vietnam. We want to respond to the previous speaker – we have no objection to the reference to the INCB report. But what we see here is unchartered ways of interpreting the principle of proportionality a different way. As a compromise we would like to have a mere reference to the INCB report, without the reference to the concept of proportionality.

Chair. Let’s see whether this could be a way out in informals.

Uruguay. We are to continue the dialogue in informals. But for the record, we want to state here that Uruguay does not want to remove reference to the INCB report here. It is an independent quasi judicial body.  Member states have the right to express their views, and we want to express our right to keep reference to the INCB document here.

Canada. We want to lend our support to the USA, Uruguay and others that wish to take note of the INCB report.

Preambular paragraph 8

Chair. This para was previously agreed in informals. This para was moved further up.

Iran. We agreed on this one, we are ok to move it up, but don’t want it to be deleted. We can have both paras.

Chair. Thanks, we can move it up and have it agreed by the CoW. This is now agreed.

Vietnam: We want to add the following PP: “Acknowledging that for some member states the application of alternative measures to prosecution and imprisonment of drug using offenders is not provided for in national legislation, and so is not applicable”.

Chair. I leave this to be looked at in informals.

Preambular paragraph 9

Chair. No comments from the floor. We move to OPs.

Vietnam. We have two other proposals for PPs:

1st proposal: “Recognising that drug users who repeatedly commit criminal offences pose challenges and create costs for member states, society and families through the need for effective supervision through imprisonment or other means, as appropriate”.

Chair. Where is appropriate sentencing in this para? The whole discussion here is around having something that is very much focused on sentencing.

Vietnam. Thank you for your guidance, but we don’t think that there should be proportionality in all paras. We believe here that this should be included for non violent offenders.

2nd proposal: “Bearing in mind the importance of maintaining integrity of applicable national legislation, in particular criminal law”.

Explanation: we see this preambular part as a significant safeguard. We want to make sure that any impact we may have with this resolution would not undermine national legislation.

Chair. Thank you, we now move to OP1.

Operative paragraph 1

Chair. Nobody asked for the floor, we move forward.

Operative paragraph 2

Chair. No comment.

Operative paragraph 3

Mexico. We took part in some of the informals and discussions held prior to the discussions. But one of the points we proposed is not reflected here, where we want to take out “non-violent”> Article 3 does not include this and we therefore don’t want to be more prescriptive, this would be more in line with the conventions.

Germany. I cannot agree with that proposal – non-violent is agreed in resolution 58/5. I am happy to use last year’s wording, but here “non-violent” has an added value – we don’t want violent offenders to access alternatives.

Mexico. In understand the point raised by Germany. The reference of resolution 58/5 is included in another PP. But this is also something we discussed in other OPs where my delegation requested removal of that inclusion. We can continue this discussion in informals.

Operative paragraph 4 

Chair. No comment

Operative paragraph 45

China. As mentioned in discussions with the EU, we want to add a full stop after “drug-related offences”. By doing that, it would enlarge the scope of the report. We can delete the part after that.

United States. Our view on this would be different – we ask member states to provide information on measures undertaken around this resolution, and yet have no information on how UNODC would do that. This will raise a financial issue, which is why we need OP6. In our view we should keep this provision in, letting the Secretariat know what to do.

United Kingdom. In trying to find a compromise here, we could not use “progress achieved in the implementation of” – “invites the UNODC in the context of this resolution… drug-related offences”, and finish there.

Iran. We could go along with the UK’s suggestion.

China. I express my appreciation with the last suggestion, we could go along with that.

Indonesia. After the addition by the UK we can accept this para.

United States. I appreciate the UK suggestion but it does not address our concern. The first part deals with technical assistance which is different from receiving information from member states and making it available which is the function of the Secretariat. We could keep this language and request the Secretariat to report on information received from member states.

China. The comments by the USA are something we don’t want to accept. We have already shown our flexibility by going ahead with the UK proposal. We cannot accept the US viewpoint of keeping the rest of the paragraph.

Canada. We would go ahead with the US proposal.

Russia. I share the point of the Chinese colleague.

Chair. We are still in disagreement with this OP.

United Kingdom. To alleviate concerns of some words being used, “to report”, here, if we want to capture the US point, we could perhaps change “to report” with “and also request the Secretariat to disseminate received information”.

China. Thanks to the UK for the recommendation, but we still think that the previous UK proposal is something we can accept. When we are talking about “report” and “disseminate”, we are talking about the same thing. It is not appropriate. Our concern is the source of the information provided by member states. We have made some progress, how about we go ahead with the first UK proposal, and we go along with this?

Chair. I agree that we have made some progress on this resolution and we can now make some progress in informals this afternoon.

United States. I am confused here as we agreed in informals that the information would be requested from the member states to the CND. We need to assess the practical implications of not having any guidance to the Secretariat here. “Report” is best here but “dissemination” could work too.

Secretariat. It is difficult to provide guidance on a text still in negotiations. There is precedence for a resolution calling on member states to provide voluntary information with a request for the Secretariat to share it. If it is not requested by the resolution, the Secretariat would not actively seek information from member states,

Chair. This is providing food for thought, but I would like now to move to OP6.

Operative paragraph 6

Chair. No comments on this one. I ask now the representative from the Netherlands how you intend to proceed in informals to push for this as soon as possible. The scope and interpretation of what should be covered in proportionate sentencing was an issue. We have cleared some paras in the operative part too.

Netherlands. We haven’t scheduled a new meeting but if it is of interest to the CoW we can have a meeting right after the CoW with all interested parties. I call upon everyone who has an interest in this resolution to be present in informals. This will be held in Boardroom A.

Chair. All delegations that have been active now should be present to make progress in this resolution.

Iran. I think we made good progress. Give us a clean text as it is very difficult to know which para remains open.

Chair. It would be helpful for all of us, but there are procedures here that make this impossible – the text should reflect the whole discussions so far. Thank you all and we keep in close contact.

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