Side event: The complexity of the drug problem and the need to update national legislation

Antonio De Leo, UNODC (Chair): The world drug problem is complex, we all know that. It requires a comprehensive approach to tackle its causes and consequences. The Ministerial Segment of CND is a good opportunity to review and evaluate how each country and region can adapt their own drug legislation and frameworks to realities. Implementing the UNGASS outcome document is an opportunity for more common understanding, and leaving no-one behind. The Executive Director of UNODC yesterday spoke of the need to put people first. The speakers today will address different perspectives and will analyse trends and share experiences on updating national legislation.

H.E. Sandra Jovel, Minister of Foreign Affairs, Guatemala: Guatemala is participating in this event because we want to enhance the interaction between different actors to tackle the drug problem. We want a common approach to better understand the complexity of the world drug problem. This meeting will contribute to this from the legislation point of view, and the need to adapt legislation to give better solutions to our people. The world drug problem creates huge costs at all levels, and has a negative impact on health and social structures. The more that drugs grow, we face growing challenges, and we need to adapt our responses. We need to reflect this at the global level. In Guatemala we have an evidence-based approach, and health has to be taken into consideration. The three international drug conventions are the framework within which we have to take further steps to give better answers and enhance our legislation. The consensus reached within the United Nations is the first step towards change and a balanced strategy. It is especially important to apply the best practices in all areas – including public health, security and human rights. We have a national observatory for drugs in Guatemala to synthesize responses and coordinate the work across public health, justice, etc. We want to prevent drug consumption, and we hope that our people can stop using drugs and not enter criminal networks. But we are aware of the offers of drugs and we have legislation to combat this. This is reflected in our new policy, providing different access and tools that allow us to face the drug problem by putting people at the centre. We can all learn from best practices from other countries. This is an orientation to implement our own more efficient policies based on evidence. We must also understand the obstacle that exist – providing training, building capacity, etc. Thank you to Mexico, the Netherlands, civil society and the United Nations for making this event possible and we hope that the presentations will give us good ideas.

H.E. Juan Ramon De La Fuente, Permanent Representative of Mexico to the UN in New York: It is a privilege to share our experiences with countries that have a lot to offer and are good allies. Meetings like this have real relevance when we have the opportunity of sharing points of views, as we have different and complementary views. It is an opportunity to analyse what has worked and recognise what is not working. This is the only way to keep moving forward. We need to know where we have progress, or where we are going backwards. We now have a framework [the 2019 Ministerial Declaration] that allows us to move forward, incorporating complementary issues to drug policies that used to be just punitive. This is a big change to the narrative. Human rights and public health are now part of the narrative and gaining more importance, and we now move into action rather than rhetoric – in line with the Agenda 2030. We can therefore make progress in the coming years, for more harmonious development, peace, dignity for affected populations, etc. Mexico remains very committed to this, and our experience can be valuable for other countries as well. In some areas, we have definitely made progress – our data collection system, the scientific understanding, technical cooperation with other countries for training and information exchange, the national prevention programmes, and social reinsertion. However, we have also paid a very high price for the prohibitionist policies. Mexico’s geographical position places us in a complicated context, and we must look for multilateral solutions as we cannot tackle these problems unless we work together. No single country can do it alone.

We believe that international cooperation should not be a straight-jacket – it should not prevent us from exploring, cautiously, some options that improve the policies that we already have in place. Every country should have a customised suit, so to speak. We have a lot to offer and a lot of experience of what should be avoided by other countries. Our focus on prohibition has created a lot of damage. We have lost a lot of human lives, people have gone missing, and human rights have been violated. People want these problems to be tackled in depth by the new Government, so this is not just a problem for experts in public policy – it has a public mandate. Therefore, we have been reviewing these laws that have resulted in such violence and crime, and we review our drug policies and interact as much as possible with other countries – in and outside of our region. Multilateralism is the only viable option we have, and we are stepping up our commitment. Supply has grown, including new drugs with higher harms, and that worries us. We are seeing new situations that we have not had to consider in the past. We need to address these substances, and see what damage they do – not all of them have the same negative effects. But let there be no doubt, as politicians we cannot deny that drugs cause harm – but we want to tackle the problem in a more efficient way. Prohibition has not given us the results that we are looking for, so we are looking for other legislative reforms that can give us better results than in the past.

We will initiate a gradual process, starting from a public health perspective taking into account human rights. We want to make changes in the few years to move in a responsible manner towards more regulation of drugs. We need more information to remain up to date in this area, especially on new synthetic drugs that are more toxic than those we have seen before. We are a country that grows drugs, which are trafficked, but also a country where drugs are used. We want to share our good and bad experiences.

Victor Sannes, Drug Coordinator, Netherlands Ministry of Health: In the Netherlands we have an integrated, balanced and evidence-based approach on illicit drugs consisting of both health-related measures as well as policy aimed to reduce the supply of drugs. Our system of law and regulations on health related issued is working quite well. But the increase of production and trafficking of drugs by criminal organizations urge the Netherlands to take new legislative measures. In my presentation I will give an overview of this approach and two concrete examples of legislative measures we are working on.

The Netherlands faces an increasing production of and trafficking in illicit drugs, especially synthetic drugs by criminal organizations. We also see, that the production of cannabis and hash is causing more and more problems for public safety, public health and the fight against organized crime. These challenges demand a proper response from the government. A firm policy containing measures aimed at disrupting the illicit drugs market and reducing the supply of illicit drugs is now more necessary than ever. Our approach to this contains innovative, sometimes controversial solutions and the continuation of a broad preventive approach but also new legislative measures.

However rather small, the Netherlands unfortunately plays a big role within the international industry of illegal drugs. Annual figures from Europol or EMCDDA show that the Netherlands has a considerable role in producing, distributing and trafficking of certain types of illegal drugs. Last year in 2018 in the port of Rotterdam Dutch customs and police managed to seize a record amount of 18.947 kilo of cocaine, next to 3.378 kilo of hashish, 241 kilo of marihuana and 58 kilo of heroine. But next to these “traditional” drugs it appears that the Netherlands is more and more a producer of synthetic drugs, such as ecstasy and amphetamine, mainly destined for foreign markets. In 2017, Dutch customs and police had several hundreds of seizures of drug precursors and dismantled increasing numbers of illicit production sites: from 61 to 82. The production of illegal synthetic drugs is also visible a rising number of illegal drug waste disposals. Sometimes this highly toxic waste is found in nature, sometimes it is just left in residential areas.

These figures show the need for a comprehensive strategy to disrupt and dismantle drug-related criminal activities in the Netherlands. It means tackling offenders via criminal law, administrative law and tax measures. To achieve success there is the need of cooperation within these areas between for instance Local government, the Public Prosecution Service, the police or the Tax and Customs Administration. On top of that the Netherlands is further extending the investigative powers of our law enforcement forces as well as of our local authorities. We are also making extra investments in digital law enforcement and the fight against cybercrime.

However, the problems the Netherlands faces, also demand new legislative measures. Let me give two examples. First stricter legislation is being drawn up to better address new psychoactive substances and non-registered drug precursors. Second new experimental legislation addresses the challenges relating to the production and sale of cannabis. I will come back to this second example later.

To effectively counter the illegal drug industry, a review of our legislation on illicit drugs is being conducted. The cornerstone of legislation on illicit drugs is the Opium law. The basic function of the Opium law is to schedule substances after a scientific based risk assessment on health risks. For instance, the risk assessments of the World Health Organization that we use in the Commission on Narcotics and Drugs every year for scheduling substances. Additionally, the Netherlands carries out its own national risk assessments, to see whether there is a need to schedule a particular drug immediately. These assessments are based on the drug use in the Netherlands and the health risks associated with that use. For instance, the government listed a new psychoactive substance like “4 Fluoramphetamine” before it was internationally listed after the CND last year. But if we look at the figures on the use of illicit drugs in the Netherlands, there is not a lot of use of most new psychoactive substances. For some time that didn’t necessitate scheduling a lot of new psycho active substances.

Our neighbouring countries have systems in which it is possible to schedule not only individual substances but also groups of substances that share a common basic chemical structure. This stricter legislation in neighboring countries has made for an increase of the production, distribution and trafficking for foreign use of NPS from, and in, the Netherlands, even though our home market stays negligible. The Netherlands is therefore bringing legislation in line with neighbouring countries so that we have closer cooperation with these countries in prosecuting criminal organizations that produce and traffic new psychoactive substances.

To reduce production of illicit synthetic drugs, we not only take measures on the drugs , but we want to create more possibilities to intervene early in the production process of illicit substances. Therefore, we are preparing a legislative change on non-registered drug precursors. It is our aim to do this at the European level. But as this will take some time, national legislation with a national list of non-registered drug precursors is being prepared. This should enable police, customs and public prosecutors to better intervene at an early stage in the production of illicit substances.

Now let me turn to cannabis, the second example of our new legislative measures. Within current Dutch drugs policy, a distinction is made between so called hard drugs and soft drugs. While synthetic drugs such as ecstasy, crystal meth or cocaine are scheduled as hard drugs, cannabis in the Netherlands is scheduled as a soft drug. This distinction, based on scientific risk assessments, is reflected in the Dutch policy on illicit drugs. Especially local governments signaled in recent years that the current cannabis policy in the Netherlands caused problems for public safety, public health and fostered organized crime. The Association of Municipalities in the Netherlands advised the government to experiment and find, perhaps controversial or innovative, solutions.

In October 2017, the government agreed to conduct experiments with a controlled cannabis supply chain in six to ten large and medium-sized municipalities, the aim being to ascertain whether it is possible to achieve a quality-controlled, decriminalized supply of cannabis to coffee shops and what the effects of this would be. By means of an experiment with a so-called controlled cannabis supply chain, the government wants to measure what the effects will be on crime, public safety, public nuisance, and public health. Within the experiment the participants who will be growing, supplying and selling cannabis within the closed cannabis supply chain are not liable to criminal prosecution, if they operate within the strict boundaries of the experiment. Outside the experiment these acts remain prohibited as laid down in our Opium law.

Part of the agreements is that there is monitoring of the effects of the experiment, resulting in an independent scientific evaluation afterwards. The results of this evaluation will be the basis for the government to decide on the follow-up of the experiment. We want to work with an evidence-based and as scientifically as possible, so the government has installed an independent advisory committee of independent experts, scientists and researchers in the fields of healthcare, the justice system, local government and international law. The committee advice is the basis for the experiment. This has its basis in the legislation – which will define the size and duration of the experiment, the obligations for the sale of cannabis in coffeeshops and the obligations for producers of cannabis. Both coffee shop owners and keepers and producers will be screened for criminal antecedents, to prevent criminal elements from participating in the regulated experiment. The experiment will last 4 years. During the fourth year there will be an evaluation. On the basis of this evaluation the Cabinet can decide whether to continue on this path or to stop.

The Dutch government is aware of the fact that the proposed experiment has a certain degree of tension with international agreements. It also realizes that neighboring countries are concerned about potential cross-border effects. It is therefore important to state that the extent and duration of the experiment will have a legal base in the mentioned bill. The experiment will in no way lead to a point of no return. The experiment has the small scale of six to ten large and medium-sized municipalities, and we have 375 municipalities in total, so the duration and scale is limited. And, as mentioned, there will be a scientific based evaluation. We expect that this experiment will provide new scientific insights. We believe that these will be valuable, and we want to share our conclusions with everyone. In this light, given the serious problems with public safety and crime that local authorities are facing at this moment and given the purpose to find solutions, the Dutch government thinks the experiment is justifiable. It is an adequate and proportionate way to gain new insights.

At this moment, legislation is being prepared and discussed in our parliament. After the legislative process will be finished later this year a preparation phase will start, and will last at least one year. It is good to emphasize that the experiment also provides for the possibility to take extra prevention measures. To give some examples: within the experiment there will be focus on raising awareness on the risks of using cannabis and hash, especially by young people. The sale of cannabis to people younger than 18 is prohibited. The packages that are sold will contain prevention messages comparable to those on packages of cigarettes. Advertising to promote the use of cannabis will be prohibited.

The Netherlands is facing problems with the production and sale of cannabis and we want to find a solution for these problems. We are aware that this solution is not simple – otherwise we would have found it already. So we have to be innovative. But is should be very clear that we are concerned about the effects of this experiment on the recreational use of cannabis. The aim of the experiment is not to increase the use of cannabis. Taking drugs, also soft drugs like cannabis and hash, is always a risk for your health and we do not want to encourage the use of cannabis and hash. Therefore, we will monitor closely the effects of the prevention measures on health and the use of cannabis.

Ann Fordham, International Drug Policy Consortium:  Thank you for the introduction and to the co-organisers, the governments of Mexico, Netherlands and Guatemala. Thank you for demonstrating the true spirt of collaboration with civil society – we greatly appreciate being involved in this event with you today. I want to address the interesting title of this event directly and in two parts:

  1. The complexity of the drug problem
  2. the need to update national legislation

On the first point, the complexity of the drug problem – we have to take into consideration what this really means and what is at stake here. It is clear that the illicit drug market is more robust, more diverse, more complex and more lucrative that it has ever been – and in parallel drug related harms have also increased exponentially in the last 10 years. My fellow panellists have also spoken to this point.

There are many reports – the IDPC civil society shadow report, the UN’s own documents such as the World Drug Report ,as well as the excellent, rather refreshingly honest report from the UN System Coordination Task Team presented yesterday, titled “What we have learned over the last ten years: A summary of knowledge acquired and produced by the UN system on drug-related matters” outlines the scale of the challenge that remains.

The UN task team’s document notes that “Punitive drug policies continue to be used in some communities, despite  being ineffective in reducing drug trafficking or in addressing non-medical drug use and supply, and continue to undermine the human rights and well-being of persons who use drugs, as well as of their families and communities.”

This is the crucially important admission that is missing from the ministerial declaration.

While the document represents some limited progress and some important new commitments, the achievement these commitments to improve access to medicines such as morphine for pain relief, or to reduce incarceration through the use of alternatives, will be hindered by the overarching goal of striving for a drug-free world.

As IDPC we greatly regret that the Ministerial declaration commits member states to once again ‘work towards the elimination’ of cultivation, production, trafficking and use, and reiterates the goal of ‘actively promoting a society free of drug abuse’. We have long stated that these ‘drug-free’ goals are both unrealistic and damaging given that they justify hugely repressive responses that damage communities and violate the human rights of so many around the world. Of course we understand that this is the result of consensus and that approach in here Vienna has once again stifled progress in the UN level debate.

One positive, however, is that by committing to striving towards all ‘aspirational goals’ made in the past decade also means that member states could choose to turn instead towards those goals included in the UNGASS Outcome Document, and indirectly, the Sustainable Development Goals as well as human rights commitments. In the coming decade, therefore, it is our hope that drug policy can prioritise the operationalisation of UNGASS recommendations and the achievement of the 2030 Agenda for Sustainable Development, in close partnership with civil society.

This brings me to the second part of the title of this event: the need to update national legislation.

It is clearer than ever before that the true reforms need to, and will happen at the national level.

National reforms have always been ahead of the UN debate and are also the most critical part in any case. Whatever is agreed here at the global level, must be operationalised at the national level to make a difference to people’s lives.

I will briefly outline the key and most urgent national legislative reforms that are required – especially in light of the UNGASS outcome document:

  1. Decriminalisation of drug and possession for personal use. The flexibility for this has long been established under the drug control treaties. Implementation is everything with respect to removing criminal punishment for drug use. There is overwhelming evidence that criminalising people for using drugs drives stigma and discrimination and impedes their access to health, drug treatment and harm reduction services.

Decriminalisation must be done properly and effectively. We advocate for the gold standard of decriminalisation – no punishment at all – neither criminal or administrative should be given for someone who uses drugs or possesses drugs for their personal use. It is important that threshold quantities are adequate to define personal use and that these thresholds are only used as ‘indicative’ and that for quantities over the threshold – the burden of proof should be on the prosecution to prove intent to supply.

  1. Removal of laws against harm reduction services. Many countries still have legal barriers to important life-saving harm reduction services. Illegality of needle and syringe programmes, opioid substitution treatment limits access to services. UNAIDS’ devasting report from yesterday notes that 99% of all people who use drugs around the world do not have access to adequate coverage of harm reduction services (it also makes an unequivocal for decriminalisation again).
  1. Proportionality of sentences. Most governments have highly disproportionate sentences for drug offences when compared with other crimes. UNGASS Outcome document clearly calls for proportionality in sentencing and this remains unaddressed in many countries which continues to lead to devastatingly high levels of incarceration all over the world.

The impacts of these disproportionate drug sentences fall on specific communities – including women and ethnic minorities which was highlighted yesterday by the UN Working Group on the issue of discrimination against women in law and in practice and the UN Working Group of Experts on People of African Descent.

We know that the burden of these heavy penalties falls on mostly low-level non-violent offenders who are involved in the drug market for reasons of economic vulnerability – and this perspective must be taking into consideration in reviewing sentencing frameworks. Women are the fastest growing prison population in many parts of the world, driven by low-level non-violent offences. They account for 60% to 80% of prisoners in many countries.

  1. Ensuring access to controlled medicines. We know there is a global epidemic of pain which has left 75% of the world’s population without access to pain relief, and access to pain relief is still a major issue (and one fortunate area where there is a consensus on the need to improve). Removal of legislative, technical barriers, mostly those that impose a huge administrative barrier to prescribing or accessing the medicines as well as training to remove the fear of prescribing opioids.
  1. Cannabis reforms. This is perhaps an area that is moving the fastest in terms of national reforms and has been the subject of much debate here in Vienna. For the most part these reforms are welcome and much needed. Governments taking steps toward legal regulation of cannabis have made it clear that they needed to change their approach – and that the prohibition of cannabis has clearly failed to limit access especially for young people. Legal regulation initiatives (learning the lessons from other substances like alcohol and tobacco) are now being implemented in a few countries and a few others are primed to follow suit. In parallel, allowing the medical use of cannabis is going even faster which is important for those patients for whom cannabis and derivative products reduce their pain and suffering.

On this point as national legislation develops we would ask that social justice perspectives are strongly taken into consideration. In particular to ensure that small, traditional famers will be able to participate in these growing licit markets; and also that there is full and proper expungement of criminal records for cannabis offences – as the licit markets (recreational or medical) open up. These reforms will also need to take into consideration proper and robust regulation of corporate interests in the rapidly growing cannabis industry. As Dr De La Fuente says: ‘it is important to consider responsible regulation” in carefully considering the alternatives.

Finally: Clearly a range of national legal reforms are needed. Ending punitive approaches towards those most vulnerable will require that global drug control going forward puts people and communities at the centre, and seeks to improve their living conditions, address their situations of vulnerability and protect their human rights, in line with the SDG vision of ‘leaving no one behind’. Thank you for your consideration!

Questions from Floor:

– [TNI] What should the role of INCB be in relation to these new legislative experiments and reforms?

– [Canada] Our drug strategy has four pillars – including treatment, enforcement and harm reduction. We allowed security services to search packages under the previous size to account for increased fentanyl trafficking. We learned from a lot of partners and have temporary scheduling in place for a maximum of two years. We expanded our pre-cursor listings to keep in line, as well as looking at pre-pre-cursors. We have streamlined the application process for supervised consumption sites, and now have more than 25 of them in place, and built the criteria for these into our legislation. We have removed legislative barriers to community-based medically-assisted treatment programmes, and have allowed public health officers to declare emergencies and import other medicines as required to meet an urgent public health need (rather than this being on an individual patient basis). Finally, we introduced a good Samaritan law to protect individuals seeking help for an overdose – to protect them from legal ramifications themselves, within reason. We recognise that no one solution exists, so are working on a variety of responses together to find the right balance. These changes are new, but we hope to see a curbing of the current crisis in Canada.

– [ATS] It has been a long road to get here and have the conversation about what Mexico can do to tackle the issues we faced. We have 39,000 ‘disappeared’ people. People want to know what we can do to change this, how we can tackle this. After the change in Government, people want to see the solutions. People should move from the informal context into a formal context where they are not criminalised and able to participate in a regulated market whereby they are protected. This is why a social justice perspective is so important. The courts have rules in favour of people who chose to use cannabis or possess cannabis for personal use. We can now learn from other countries to put in place a solution that puts security, human rights and social justice at the centre of our response. This has been carefully thought-through, so we can implement something that can be scientifically monitored. My question is how do you plan for member states to work together to support one-another as we make these changes?

– [Mozambique] We are here to learn, as our law still criminalises drug users and we do not yet have any programme on harm reduction. I am from civil society, from the community level, and we are working now with the government to see how to review the law that criminalises people and to see how to address human rights approaches. So we want to learn from other countries who are implementing these kinds of solutions. We face a big problem, and through the PITCH programme of advocacy in Mozambique, the Government is now open to discuss and review their law.

Mexico: International cooperation is the whole reason that we are here, and we must allow space in which we can share and learn, and listen with other points of view that may not collate with our own. This will help to change our perceptions of the problem. This is the sense of international cooperation, and Mexico does not have any interest in creating tension with the conventions – this is not our goal. On the contrary, in the spirit of the conventions, Mexico wants to share reflections on the policies that have been implemented and their impacts. We must recognise that the public health has not been at the forefront – so we must talk of prevention, treatment, rehabilitation, and access to drugs that are illegal in an unregulated market but are necessary in a regulated market. Once we acknowledge this imbalance, we must then ask if it is possible to find a better harmony and formulate new proposals that do not necessarily lead to a confrontation. Of course, we would never suggest that one legislative model should be imposed on every country. Each country faces different realities and, often grave, consequences. But if we face these questions and refuse to listen to new proposals, then international cooperation will lose its sense.

Netherlands: Like Mexico, we do not want to create tensions, but we want to find evidence-based solutions to the challenges we face. We look at the results and, if these are disappointing, we look for new ways. This side event is an example of how we can support one-another by sharing experiences, as a global community but also as professionals in this field. For UNODC, for INCB, we need to all be open and transparent, share experiences and encourage curiosity and continue our frank dialogue. It is an obligation for us, but also counts for INCB and everyone here – keep the attitude of learning and sharing to make the world more beautiful.

Guatemala: We must continue to fight for prevention, and against trafficking, and ensuring the protection of young people. We work hard in drug seizures – just yesterday drugs were seized worth USD 5.6 million. We were able to do this through cooperation at the international level. To end, although it is true that each of us must stay faithful to the conventions and rules, we do have to share other experiences and open up to other countries to see how they are fighting against drugs. We are a transit country – in both countries, north and south – and a drug use country, and we have a big drug problem, and related problems such as guns and violence. Sharing experiences, especially at a regional level, has helped us a lot.

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