The 'Annex' to the United Nations Political Declaration on Drugs

Transnational Institute, November 2008

The review of the objectives and action plans agreed at the 1998 UNGASS on Drugs has reached a critical stage. Following the thematic debate at the 2008 Commission on Narcotic Drugs, and the five expert working groups held in Vienna over the summer, the attention now moves to the political process of negotiating the text of a political declaration to be agreed at the high level meeting in March 2009.

THE DRAFT ANNEX

The Chairperson of the CND, Ms. Selma Ashipala (the Ambassador of Namibia in Vienna), has circulated a draft of the annex to the proposed political declaration that will form the basis of discussion between government representatives in a series of negotiating meetings held in Vienna during November and December 2008. Ms Ashipala has indicated that a draft of the main body of the declaration will be presented on December 12 at an Intersessional meeting of the CND, once the contents of the annex have been debated. While it is possible that member states will amend this approach and timetable at the first negotiating meeting on November 3rd, the focus for advocacy for the next two months is likely to be around the issues covered in this annex.

The draft annex has been in large part faithful to the discussions and conclusions of the working groups. It divides the annex into 6 sections that broadly mirror the Action Plans agreed in 1998:

• Drug Use and Dependence Prevention, Treatment, Care, and Rehabilitation.
• Reducing the Illicit Supply of Drugs
• Control of Precursors and Amphetamine Type Stimulants
• International Co-operation on the Eradication of Illicit Drug Crops, and on Alternative Development.
• Countering Money Laundering
• Judicial Co-operation

A more logical approach would be to divide the document into just two sections – supply reduction and demand reduction – and include new and emerging challenges. Indeed, the CND resolution 51/4, that originally set out the call for a political declaration, calls for it to cover "priorities and areas requiring further action, as well as goals and targets to be set in countering the world drug problem beyond 2009."

There are a number of emerging issues and other problems related to themes that do not fit easily into the 1998 UNGASS framework, but have obtained a significant place with drug policy debate in the past decade. They include the need to work within human rights frameworks, the availability of controlled substances for medical uses, the need to improve data collection, and the functioning of UN drug control institutions within the framework of the UN as a whole and to reach system-wide coherence on drug-related issue within the UN. These issues have received some attention in the process so far, but are notoriously absent in the draft as they do not fit comfortably under one of the action plan headings. They need to be addressed more prominently in the next stage of the process.

PARADIGM SHIFT

There is a general disappointment about the Chair’s draft in the sense that it avoids to address new issues and is unhelpful in stimulating forward-looking debate. It lacks any ambition to work towards a paradigm shift as aired in Mr. Costa’s report "Making drug control 'fit for purpose': Building on the UNGASS decade". This contribution to the thematic debate last March aimed to open the discussion about humanising the regime, address its adverse consequences, introduce seriously guiding principles of human rights, proportionality, harm reduction and evidence base. The chair’s draft, however, largely proposes to continue on the same course, simply coordinate better the same things the international community has done the past decade, continue to ‘administer’ the drugs issue rather than genuinely focus on the most problematic aspects of it.  

Besides improving what is already in the draft, it would therefore be important to also think beyond March 2009 and to include some operational paragraphs that open the door for a continued debate aimed at achieving a paradigm shift in the following decade. That could include an assessment of the performance of the UN drug control system as a whole, including the issue of interpretations and inconsistencies in the conventions and the role and functioning of the agencies.

INCONSISTENCIES AND MISSING ISSUES

There are a number of positive positions in the draft that need to be protected, and also several areas where important issues need to be introduced or strengthened. A number of member states have already raised questions and concerns about the proposed structure of the declaration and annex, so it is possible that the eventual approach may be different to the current draft. The most obvious examples of inconsistencies and missing issues are:

1. Human Rights. The draft lacks specific mention of the UN Charter obligations and the Universal Declaration, and does not mention the specialized UN human rights bodies with whom the UN drug control bodies should liaise and coordinate. Human rights is now only mentioned in the demand section (plus a brief reference under Alternative Development), while the main worries about conflicts between human rights obligations and drug control efforts have to do with law enforcement and eradication efforts.
Human rights should be an overarching principle but needs to be enshrined also specifically in the sections dealing with supply reduction, law enforcement and judicial cooperation.

Besides this inconsistency, there are also serious doubts about the language now used in the draft. For example the phrasing (para 23, p 23) that human rights should "be taken into account" is far too soft. Language needs to define that drug control should be "in full conformity with" or that human rights should be "fully respected". The political declaration should have strong and clear language on the need for all drug control activities to comply with human rights obligations, with reference to the UN Charter and, ideally, specific references to the death penalty, proportionality in law enforcement, access to health services, and treatment standards, at the appropriate points in the text.

2. Balanced Approach. The demand section includes several paragraphs and even a special subsection to the need to be “Based on Scientific Evidence”, while no reference at all is made to any evaluation of effectiveness or evidence-base for all the supply and law enforcement efforts. The demand section calls for more priority and resources for demand reduction, but then the same call is made in every other section. How can this lead to a more balanced approach, re-shifting of priorities and re-allocation of resources? The political declaration and its annexes should clearly accept that supply and demand reduction should receive equal attention, and should be integrated and mutually reinforcing.

3. Containment. There needs to be honest acknowledgment that the targets of "eliminating or significantly reducing the illicit cultivation of the coca bush, the cannabis plant and the opium poppy by the year 2008" set at the 1998 UNGASS have not been met. Containment of the world drug problem has not been achieved. Some of the more ambitious targets set at the UNGASS remain elusive.

It is possible, however, that an objective of containment of the market can be a useful concept for future objectives, representing an acknowledgment that illegal markets cannot be eradicated, but that their scale and consequences can be addressed. The issue of ‘containment’ is addressed only in the demand section (where it refers to “only partial containment” in para 1) not in other sections. In fact no appraisal is made at all in other sections about achievements (or absence or them) in view of the UNGASS targets.

4. Harm reduction. The current draft does not include explicit mention of "harm reduction" despite the fact that it is already accepted UN language in the HIV/AIDS UNGASS and General Assembly declarations. The term harm reduction needs to be accepted as a crucial part of a continuum of health protection: prevention, treatment, care, rehabilitation and harm reduction. The current draft even risks to take a step backwards in time in comparison with the approved UNGASS language of "reducing the negative health and social consequences of drug abuse", where it introduces (para 20, p3) the language of "preventing the health and social consequences." The main arguments for the acceptance of explicit harm reduction language are:

• There is already accepted UN language in the two HIV/AIDS UNGASS's of 2001 and 2006 as well as in documents of several other UN agencies;
• This is one of the few areas of drug policy where real and evidence-based progress has been made in the past decade;
• 80 countries use the term in their policy documents, including the EU as a whole;
• It is a matter of UN system-wide coherence, since UNAIDS, WHO and UNDP have accepted the language;
• Now also UNODC and the INCB have taken the step to 'normalise' the terminology;
• The NGO Beyond 2008 Forum has reached consensus about using the term, after a worldwide consultation process involving all sectors of civil society.

5. Civil society. There should be specific commitments to improve the involvement of civil society in the work of the UNODC, INCB and CND, and to ensure that the definition of civil society includes groups that represent drug users and growers.

6. Supply Reduction. There should be recognition of the fact that in particular in this field results have been limited. The UNGASS target to eliminate or significantly reduce supply by 2008 has not been achieved. There is an urgent need to review supply reduction policies and their effectiveness and a need to refocus supply reduction objectives more towards the consequences on drug markets, not just their scale. Supply reduction measures should be carried out in full conformity with the Charter of the United Nations, the Universal Declaration of Human Rights and other international human rights law and supply reduction measured should be based on scientifically sound assessments of the nature and extent of de the drugs problem.

7. Eradication and alternative development. The text already recognizes that poverty and vulnerability are some of the factors behind illicit drug crop cultivation and that poverty eradication is a principal objective of the Millennium Development Goals. However, the lack of understanding of demand-supply drug market dynamics and lack of a long-term balanced approach, combined with ill-sequenced policy interventions and inadequate international development assistance to address the causes driving illicit cultivation, have impeded the ability of governments to sustain the gains achieved locally.

The text should make it clear that forced eradication is not an effective approach, and that emphasis in the future should be on development based approaches. It is of the utmost importance to ensure that development assistance is not made conditional on reductions in illicit crop cultivation. Before even considering taking eradication measures, viable and sustainable livelihoods should be ensured for small-farmer households so that measures will be properly sequenced in a sustainable fashion and appropriately coordinated. Drug control and Alternative Development approaches should be mainstreamed into the broader development agenda. The development community – in particular the international financial institutions – should incorporate drug control approaches into their wider development agendas. The drug control community must include human rights based development approaches in plans and strategies.

8. Emerging issues. There are a number of issues that were not present at the 1998 UNGASS but have obtained a significant place with drug policy debate in the past decade that are notoriously absent in the draft. They somehow need to find their way into the text and into the Political Declaration itself:

• HIV/AIDS. There is only one reference in the draft. Language from the two UNGASS meetings in 2001 and 2006 can be used to highlight the link between injecting drug use, criminalisation of drug users and the HIV epidemic, and the harm reduction programmes developed in response. It would require a separate sub-section to correct this omission.

• Access to essential medicines. The issue of better access to opiate medicines for pain relief, and addiction treatment, should be given prominence in the text, including a specific call for member states to work with INCB and WHO on improving estimates, and removing barriers. Only one cryptic mention (para 55, p 8) is made in the current draft about "noting that there was an issue associated with the adequacy of availability of some of these substances for pain relief in some Member States." A separate sub-section may be required or the existing one on "Availability and Accessibility" could be expanded to include this important issue.

• Unintended consequences. The useful attempt by the UNODC in its ‘Fit for Purpose’ conference room paper that the implementation of the global drug control system has significant unintended consequences has not led to any mention of the existence of such consequences in the draft. Instead of only focussing on reducing the scale of the market, “reducing the negative consequences of drug control” should become a relevant part of supply reduction efforts, in terms of reducing levels of violence, criminalisation, prison overcrowding, human rights violations, the stigmatisation of millions of drug users etc.

• Proportionality of sentences. There is ample evidence from around the world that widespread incarceration of people for drug possession is not effective in deterring use and reducing prevalence, puts a significant burden on public finances, and increases health risks and social exclusion. The political declaration needs to acknowledge these facts, and call on member states to find alternative strategies. The useful attempt by the INCB in their latest report also failed to make it into the draft, apart from some weak references to the usefulness of ‘alternatives to imprisonment for drug users’ in the demand section (para 37, p5). That phrasing is problematic in itself because it fails to emphasize that the conventions do not require criminalization for drug use (let alone apply prison sentences). In the other sections, the used language is to “ensure the criminalization of the offences enumerated in the 1988 Convention” (para 4, p29), “uniform application of policies” (para 44, p14) and “homogenous sentencing guidelines” (para 41, p13). Very worrying as it airs the need to ‘harness’ the regime rather than calling to make full use of the existing treaty flexibility to humanize the system and to apply principles of proportionality.
  

• Data collection. Policies should be based on evidence and best practices. There should be a strong commitment to improving the data collection and analysis to improve assessments. The process oriented Biennial Reports Questionnaires (BRQs) of the current UNGASS review can be improved significantly in that respect. The BRQs provide information on how Member States perceive their own performance concerning the existence of certain structures, programmes and activities. There is no outside evaluation by independent agencies or experts. Every country evaluates itself. They should be replaced with impact oriented questionnaires and a genuine evaluation process to really measure the consequences of the current drug control policies.

• Stigmatisation. Stigmatisation of drug users has to be avoided and the complex factors that lead to drug use and dependence. Stakeholders at the community level should be involved (including affected populations, including young people, drug users, their families, community members, employers, and local organizations) in the planning, delivery, monitoring and evaluation of drug demand reduction measures.

 A restructuring of the draft would be the best options to improve the balance; a possible alternative could be to restructure the document into four main headings:

A. Preamble section of overarching guiding principles:
Respect for human and civil rights, including proportionality of sentencing; evidence base and improved data collection; a balanced approach regarding demand and supply reduction efforts; and reducing the adverse consequences of drug control

B. Demand Reduction: Emerging Issues including HIV/AIDS, Prevention, Treatment, Harm Reduction, Rehabilitation and Reintegration, Access to Essential Medicines

C. Supply Reduction: Emerging issues and unintended consequences, Control of Precursors and ATS, Alternative Development, Countering Money Laundering, Judicial Cooperation

D. Cross cutting themes: (issues that apply to both Demand and Supply Reduction) International coordination and cooperation (including UN system-wide coherence and mandates and functioning of the UN agencies) and Information, Data Collection and Evaluation (improved reporting and analysis)

PREPARATORY MEETINGS AND THE HIGH LEVEL SEGMENT IN MARCH
 
The normal process for negotiating texts in preparation for a UN Commission is to hold what are called ‘intersessional’ meetings of the Commission. In this case, a decision has been taken to designate the next round of meetings as meetings on the preparation of the outcome of the High Level segment. It is unclear why this has been decided, but one implication is that the meetings are clearly not now open to NGO observers. Any NGO experts who wish to be involved must therefore pass their ideas and suggestions through, or seek to be included as a delegate on, their own country delegation to these meetings.

The discussions will focus on detailed drafting, and procedural issues. Most countries rely on their mission representatives who are permanently based in Vienna to actually attend the meetings, working to positions agreed back at the national capitals. Some countries will be taking the negotiations sufficiently seriously to send delegations to the meetings from their capitals.

Currently, the dates set for the series of negotiating meetings up until Christmas 2008 are as follows:

• 3rd and 4th November
• 24th, 25th and 26th November
• 10th, 11th December
• 12th December conclusion of negotiation meetings with a CND Intersessional and the possible presentation of a first draft of the Political Declaration

The negotiating meetings will be the setting where the structure of the political declaration will be agreed, and the precise text of what it contains hammered out paragraph by paragraph. While it is possible for text to be changed up to the last minute, all parties will be working towards finalising the text as quickly as possible – probably by the end of January 2009. While it is likely that the first negotiating meeting (on 3rd/4th November) will be largely taken up with discussions on procedure and the status of documents, it is important that delegations are prepared for this meeting with clear ideas on the issues and text that they wish promote and fight for. In particular, if a delegation wishes to introduce new ideas or text that is not currently part of the draft, they should be seeking to do this at the first meeting.

In December it should also be clear whether the Chair’s proposals to holding a mid-term review of the new political declaration, at an ECOSOC high-level segment in 2014 and another special session of the General Assembly on the world drug problem in 2019 have been adopted.

The dates of the meetings in March are already set – the high level segment will take place on 11th and 12th March, and the normal CND will run through the following week, 16th to 19th March. Not much else is settled at this stage – the agenda and programme for either session is not yet agreed, and the rules governing participation and access are still unclear.

There will be space at the high level segment for member states to make national statements. Difficult issues, or progressive statements can be included in these national presentations.

NGO PARTICIPATION

The process of negotiating the text of the Annex is entirely a governmental one, so the only way to influence the outcome is to persuade those government representatives present at the negotiating meetings to promote ideas and language. Most of the delegates at these negotiations are the foreign affairs representatives of member states, who are permanently based in Vienna, but they will be working with their colleagues in their national capitals to agree their positions. NGOs can therefore promote their issues and positions directly to Vienna representatives, or to government officials in national capitals. It is also possible for governments to include an NGO expert in their delegation to these meetings.

Hopefully, there will be an opportunity for NGOs to hold satellite sessions within the venue of the CND or high-level segment, but even if this is possible, space and time for these sessions will be extremely limited. For example, policy makers attending the high level segment will only potentially be free on the two lunch breaks, and these will be filled with bilateral meetings and government receptions. Any NGO event held on these days will therefore need to compete with these alternatives to attract participants.

If the Bureau agrees to the request from the Vienna NGO Committee for an NGO ‘marketplace’ at the high level segment, then it will be possible for NGOs to construct displays and poster presentations, and distribute written material, within the venue. There is likely to be a wide range of advocacy activities that take place around the March meeting – demonstrations, press conferences, publicity stunts, and workshops. One idea has been for NGOs to reserve space in a building near the CND venue that can function as a centre for advocacy activities.

BEYOND 2008 UPDATE

The global NGO Forum held in Vienna in July was a success, and produced a consensus statement that has been widely distributed around the world. Many of the ideas in this consensus document have been reflected in the draft annex to the political declaration. Although it is unclear how directly the work of the Beyond 2008 participants has directly affected the drafting process, it is safe to say that the general improvement in mechanisms for NGO experts to communicate and advocate with government representatives has led to better official text.

The Beyond 2008 conclusions were formally presented to governments by Michel Perron at the Demand Reduction Working Group, held in Vienna on 15-17 September. His presentation was received with respectful attention, and many delegations stated their support for the process, but the conclusions of that meeting only contained a small reference to the importance of civil society input to the next stages of the process.

Following these exchanges, Perron has written to Ms Ashipala Musavyi on behalf of the Beyond 2008 participants to recommend a number of mechanisms by which civil society could play a constructive role in the March 2009 CND and High-Level Meeting. The ideas put forward can be summarised as:

• The organisation of a ‘civil society hearing’ on the first morning of the high level segment, at which political representatives and government delegations can hear from a small number of civil society speakers, and discuss the issues they raise.
• The allocation of a speaking slot within the plenary session of the high-level segment for the presentation of the Beyond 2008 conclusions.
• The distribution of the Beyond 2008 conclusions as one of the official papers for the high level segment.
• The allocation of an adequate number of NGO places at the panel sessions of the high level segment, with full speaking rights and, where appropriate, the opportunity to make prepared presentations.
• The organisation of a space at the venue for NGO displays and stands, where delegates can interact with civil society organisations.
• Clarification of the access arrangements for NGOs at the CND and high level segment – how will ECOSOC registered NGOs be able to register delegates, and what parts of the venue will they be able to access.
• Clarification of the availability, and procedures for arranging, meeting rooms for the organisation of satellite meetings.
• Clarification of the proposed arrangements for administrative and communication facilities for NGOs during the meeting.

Decisions on the arrangements for the March meeting will be made by the ‘Extended Bureau’ of the CND – a committee consisting of the Bureau (Chair, three Vice-Chairs, Rapporteur) plus representatives of the chairs of the regional groups, the EU Presidency and the Group of 77 and China.

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