Unable to find the key to exterminate the enemy many countries have ended up questioning the punitive approach and a few have gone ahead to critically review the United Nations framework for drug control based on their own national realities. It has led to slow drift towards harm reduction, decriminalization and in one instance a rights based approach to maintain cultural use. The United Nations General Assembly Special Session (UNGASS) on World Drug Problem, slated for 2016, would probably be the first session where the need for diversity in global drug control policies will be asserted. Against this background, this note tries to look at international governance and drug control, the various approaches that have evolved and its implications for the future.
I. International Governance and Drug Control
Realizing the disconnect between the international treaty for drug control and national or regional realities, countries like Portugal, Germany, Netherlands and United States have opted for the decriminalization of specific mind altering substances in their nations or for specific states within their boundaries. Bolivia has asserted the right of its indigenous population to adhere to their cultural reality and the cultural sanction thereof for the use of coca leaves.
In line with these conflicting views and based on local realities there has been an assertion to reconsider The Single Convention as a dynamic instrument by the United States (2) with a scope for reinterpretation based on changed national and global realities. The presence of such conflicting views raises issues for all nation members states to consider while framing drug control laws and policies for the future.
The Single Convention- A Static Instrument for Drug Control?
There are many countries that are unable to deal with the collateral damages coming off the punitive approach, be it as an increase in the number of individuals incarcerated, with the criminalization of drug use turning him/her felon (or criminal) for life, besides the reality of an increase in discriminatory vulnerability for certain sections of society determined by race, class and place of residence as slums/ghettos. There is additionally the added burden to public health care provisions facing resource constraints, with the spread of HIV and other blood borne infections among injecting drug users; and resource intensive militarized and environmentally lethal interventions (such as fumigation (3)) used to address illicit cultivation and trade.
Against this background there are a few issues that need to be focused on:
1. The evasive Basic Norm for drug use Control
All legal provisions do at some point emerge from social norms that exist for a specific area or a sovereign state. According to Hans Kelsen's(4) theory of positive law there is a hierarchy to law which begins with a Basic Norm and has a hierarchical structure indicating a position in the structure. At the same time political reality dictates that the resultant legal system for a country may not be shaped like a pyramid given the deviation on some aspects of the law, across states within a nation. But, whatever the case, what is relevant here is that no one disputes there exists an hierarchy and structure.
As Hans Kelsen points out a legal instrument does not exist in isolation, there is often a hierarchical formation in the process of legal authorization that puts it in place. This is true of the United Nations Conventions also. The Charter of the United Nations (5), which can be considered to be the base for all other legal instruments that exists within the United Nations, has an assertion acknowledging the sovereignty of all member nations under Article 2 and it goes on to further state that the Charter would not intervene in matters that are under the nation's domestic jurisdiction. The only exception stated to that is under Chapter VII of the Charter, which addresses issues related to the threat to global peace and the actions to be taken against threat to peace that include economic sanctions, severance of diplomatic relations and the use of armed forces against the aggressor nation. Nowhere is there a mention about interference with domestic jurisprudence, especially with regard to a habit, addictive or not, whether perceived to be criminal or evil.
Does then the explanation for course of action adopted by the United Nations with regard to drug control lie in John Austins' concept of the Command Theory (6), where the concept of law is a command by the sovereign backed by threat. Were one to try to conceptually understand this unpalatable explanation there still remains unexplained, queries on the the presence of a basic norm across cultures with regard to drug use and the process of authorization of a Law that ignores ground realities of domestic jurisprudence across nations.
2. Law of Treaties or the craft of diluting sovereignty
According to Article 27, under Section 1- Observance of Treaties, ` A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. Of course there is an option for refiling under Article 46, under Section 2 - Invalidity of Treaties, where a State can invalidate its consent to be bound by a treaty when violation is manifest and it violates a rule of fundamental importance. The violation should be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith'. The tone of these articles is different from that assertion on self determination and sovereignty found in Charter of United Nations. Further, a State that wants to revisit the provisions of any treaty it is bound by, can do so only through the application of the present convention. Which means a State, which is not signatory to The Vienna Convention on Law of Treaties like India, has at the outset to give up its focus on sovereign rights by being part of the Convention on Law Treaties and then file for invalidation or termination (as for example with regard to The Single Convention 1961) and then sit tight and hope for the best.
It states in its preamble that the treaty is based on concern for the health and welfare of mankind, recognises addiction as a serious evil for the individual, fraught with social and economic danger to mankind and considers it a duty to prevent and combat this evil. These words hardly describe the socio-cultural sanction for different kinds of mind altering substances that existed and continues to exist. It is far more in line with a western world view where all forms of MAS, other than alcohol, is viewed with suspicion and considered to be a social evil.
According to Article 49 of the convention there is provision made for a Member State to temporarily allow the use of opium, cannabis, coca leaf for non-medical or quasi medical purposes. It is interesting to note that the treaty expects member states to eradicate cultural use within a maximum period of 25 years, wonder how many years it would take for western culture to get beyond the taste of wine or beer froth. The sad reality is that government representatives from countries with socio-cultural forms of use have signed up to the treaty on behalf of their populace, without people's knowledge. Long live Democracy?
Article 49 does indicate a cultural bias towards traditional systems of medicine or all forms of health care other than western medicine. Otherwise, why should all forms of health care other than the western system be considered quasi medicinal practice? How can a treaty meant for the health and welfare of mankind, with a stroke of pen plan to dismantle entire systems of health care without a viable sustainable replacement? When western health care system still depend on derivatives of poppy plant why should traditional systems of care be denied this opportunity? (8). Besides, can western medicine ever be the solution to health care given the central role of drug patenting and resource intensive manufacturing process.
4. External Institutional Control versus Internal Restrain
According to Hart, it is from the internal sense of a positive association that a populace has towards a law that it acquires its normative quality. He further points out that a law is efficacious only if a majority of the population follow the law. If that be the case, then how did the The Single Convention get to be the base norm with regard to drug control? How can it be a successful tool for control?
If for the populace within many member states the adherence to the drug control law is an external need it would mean the nation having to depend on officials from different institutions to take measures to ensure adherence to the law. Given the ever increasing scope for newer drugs especially new synthetic drugs or other pharmaceutical products to what extent can such an approach be viable.
II. Criminalization - Universal Approach to Drug Control
Under the coercive approach the focus is on ensuring an adherence to drug control laws and an attempt is made to 1) identify the criminal act when enacted or later, 2) get information on all individuals who participated in the criminal act directly and indirectly and 3) make the information public to ensure the individuals are branded as criminals and stigmatized. The media often playing a significant role in this entire process.
In India, the focus on the punitive approach created a dichotomy for there existed social norms related to cultural use management that had been internalized through socialization. The Single Convention 1961 did give India a grace period of 25 years to eradicate its cultural association with mind altering substances. Since the Indian government was aware about the naïve expectations of the punitive approach and harm associated with it they did nothing. Towards the expiry of the grace period provided by the treaty and under international pressure it passed the Narcotics Drugs and Psychotropic Substances Act 1985.
India also initiated the national drug abuse management program, very much in line with the format followed by the west. It basically carried out research, largely quantitative in nature, and put in place prevention, treatment and rehabilitation measures.
a. Prevention of Drug Use (10)
Prevention programs highlight the use of 'MAS' as a criminal act, provide information on various forms of drugs, its use, and highlight how drug users become dysfunctional and addicted. Educational institutions such as school, training institutes inclusive of sports are selected to create awareness. Yet, the best of athletes at the global level are caught for the misuse of drugs.
The oft given explanation is that peer pressure leads to drug use. My personal interaction with drug users, in-depth exploration of what went to create a situation of first time use indicates it is far more complex than peer pressure. There are other aspects to be considered as: wanting to hang out with known drug users or the desire to know them, the desire to experience a high, the fascination with taking a risk or even accidental use. Irrespective of the reason for first use, the decision to continue use is crucial, this is a personal choice and rarely forced. On experiencing a high and enjoying it the individual becomes focused on the substance of choice and he/she disassociates the role of his/her mind in the whole process. We tend to forget our contextual reality, both drug and the mind define what we seek from drugs; for example among the street kids what stands out is the desire to numb the reality of life.
Even if one were to accept peer pressure as the reason for first use, isn't this a fallacy. Who made the drug using peer a drug user?
The emphasis of prevention activities continue to lie on the identification of the drug user through surveillance, human monitoring or testing. Except for detection through the testing of body fluids, in other instances detection often occurs much after users have turned dysfunctional. Among students detection leads to a disruption of education, for upon detection he/she seeks treatment and subsequent rehabilitation ensuring education is discontinued for a long period of time.
b. Treatment Options
Few doctors want to deal with drug users as they are considered to be troublesome and non-compliant. This means though a doctor is mentioned as among the staff of a treatment centre, in reality a nurse or practitioners of traditional system of medicine may be dealing with the actual treatment. One shouldn't be surprised if ex-addicts are the ones actually delivering treatment.
Government funded treatment centres are expected to raise 10% of the funds locally. Most treatment centres do raise funds locally and also charge the drug user under treatment for food and other expenses; monthly charges can vary from Rs.2,000 to Rs.8,000 or more. Since the relapse rate remains high it ensures assured clientèle for a long period of time.
Rehabilitation programmes centre around the concept of one being an addict/ex-addict for life and their activities carried out as part of the recovery process are tailored to the needs of the institution and not that of the client. An amiable ex-drug user is given the option to be ward assistant and work his way through to become a counsellor or the administrator in charge. In case of a relapse he may restart his journey from the beginning.
Under such a limited framework social integration is difficult, and often ex-addicts become a cheap labour force for NGOs or Corporates where tasks have been out sourced.
When India implemented NDPS Act,1985 it led to many users finding themselves behind bars and spending a decade or more as 'under trial'; cases invariably got thrown out as they had mostly served the probable imprisonment period or more as under trial. Through the years we have expanded the scope of the law and refined the probable penalties for various activities in drug cultivation, manufacturing, processing and trade; and even ensured attempts to commit an offence attract the same punishment as the offence itself.
III. Drug Control through Harm Reduction and Decriminalization
b) Decriminalization of drug use
IV. Dependence on Law and Police for Drug Control
The implementation of any law depends on subtle realities in the social context, the profile of the accused and the presence of institutions to carry out the judicial procedures. While the NDPS Act 1985 does make provision for ensuring legal assistance for the poor and indigent accused as per Article 14 and Article 21 of the constitution(ibid), this may but remain a provision in print. For there is scarcity of human resource and voluntary agencies to provide legal aid to those accused across the county. In India the there is but one lawyer for every 1008 (19) (a recent article did indicate that to be at 886) persons, for United States it is 260, for the United Kingdom 525 and Australia 228. How can India really ensure provision of legal aid to the many accused, especially as many lawyers may not be interested in criminal law or in providing legal aid. Making that assertion of human rights for drug users a reality will happen only if alternate community based action exists.
As per Section 36 of the NDPS Act 1985, Special Courts may be constituted for the purpose of providing speedy trials as getting bail is difficult under this Act. It is interesting to note the media reports on the absence of Special Courts in Jammu and Kashmir as late as Aug 2014, this speaks for itself. Besides, one has to consider the inadequate numbers of judges in India, it is 14 per million population, for United States 108, France 109, Australia 40, and U.K 35 (21).
For harm reduction initiatives inclusive of substitution therapy, the availability of health care professionals is crucial to implementation. Portugal has around 4.1 physician per 1000 population and the ratio is not very different in other countries with harm reduction programs. In Belgium it is 3 physicians per 1000 population, for Germany 3.9, Italy 3.8, and Spain 4.9. The number of physicians is lower in United Kingdom at 2.8, Netherlands at 2.9 and United States 2.5. At the same time in India it is 0.7 per 1000, in Colombia 1.5 and in Afghanistan it is 0.2 (23).
Decriminalization requires the identification of users, their referral for assessment and decision on the final course of action, be it penalty in terms of fine or compulsory treatment. For this approach to be effective the concerned target groups (users, youth, adolescents) should sense its relevance. Portugal with 437 police per 100,000 population may be able to implement decriminalization initiatives as would Belgium with 421, Netherlands with 328, United Kingdom with 729, and United States with 373. United Nations has recommended a minimum police strength of 222 per 100,000 population. In addition developed countries have set up extensive systems for monitoring using technology to facilitate delivery of services. India with police strength of 130 per 100,000 is far from equipped to follow this approach (24).
a) Individuals are given space not physical space but mental space which gets translated through rituals, associational relationships be it religious or one of festivity to get imprinted in the community milieu, b) controls the substances available for use, sets boundaries about quantity used and occasions for use, c) Mode of consumption – it evolves it own dynamics be it in terms of paraphernalia associated with drug use, for example the pipes or chillum used to smoke cannabis or opium can be canvas for artistic expression d) with passage of time the setting gets defined, with scope for modification; the setting not just in terms of space of use but also in terms of time, social dynamics that evolve around the use such as songs sung, issues discussed, food consumed.
At present with cyberspace offering a multitude as choice of substances there is a need to rethink the need to differentiate between drugs and also consider drug use as a complex phenomenon requiring diverse approaches. According to Zinberg E. Normanxxv who focused on the role of social controls in regulating drug use in the Western setting, the drug or its pharmacological properties, set and setting all contribute towards the mechanisms of social control that evolve. Set is the attitude of the person at the time of use, inclusive of his personality. Setting refers to influence of physical and social setting within which use occurs.
The Way forward - Local Reality and Drug Laws
The punitive approach towards drug use, has not just given scope to criminalize psychoactive plants, pharmaceutical substances or synthetic drugs and substances needed for manufacturing them but also ensured that a single act of drug use can turn a user a criminal. Yet, the desire to experiment and search for altered states of consciousness or a high persists. The continued prosecution of an inactive substance to address a search for ASC has only increased the fascination for it among some individuals, turning it into a vicious circle where the only option seems to be hidden use, abstinence or substitution therapy. There is need to break this repetitious vicious circle for long term change.
1. United Nations Office of Drugs and Crime. 2013. The International Drug Control Conventions
4. Andrei Marmor . 2010. The Pure Theory of Law http://plato.stanford.edu/entries/lawphil-theory/
11. Lawyers Collective - Facts Sheet Narcotics Drugs and Psychotropic Substances Act 1985 http://www.lawyerscollective.org/files/Fact%20Sheet%20NDPS%20Act%201985.pdf