Into the breach: Drugs, control, and violating bad laws in good ways

Rick Lines
Thursday, November 27, 2014

An October statement on drug control from the US State Department has prompted much comment and speculation at home and abroad. Delivered by Ambassador William Brownfield, the ‘Brownfield Doctrine’, as it has been named by some commentators, lays out a four pillar approach the United States will follow in matters of international drug control.

In short, these pillars are:

1. Respect the integrity of the existing UN drug control conventions.

2. Accept flexible interpretation of those conventions.

3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.

4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the speech comes in the context of efforts, led primarily by Latin American States, to open discussions on the drug control status quo, and look at alternatives to the current prohibitionist paradigm. Domestically, it comes in the context of successful state-level ballot initiatives to legally regulate cannabis in parts of the US, referenda the Obama Administration has said it will respect and not interfere with. Both of these are welcome developments. The international drug regime is long overdue for reform. The marijuana referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic marijuana law reform places the United States in an awkward and compromised position within broader debates on the future shape of the international drug control regime.

In allowing legally regulated markets in cannabis to operate at state level, the US is in clear breach of core obligations in both the 1961 and 1988 drug conventions. In one sense, the US position of breach is no different than that of Uruguay, which in 2013 also enacted legislation authorising the nationwide legal regulation of cannabis. However, unlike Uruguay, the United States has historically used international drug control – and its self-appointed role as global policeman of the treaties – as tools to advance its economic and military interests at home and abroad. In effect, the new domestic reality in the US has created, to cite a recent commentary, a ‘treaty breach it does not wish to admit within a system it wishes to protect’.

Does Brownfield’s speech then represent a true rethinking and opening up of the US’s position on drug reform, or is it merely a cosmetic exercise to protect its influential role in the international drug control status quo? Responses to this question have been mixed. Some have heralded the statement as a major shift in US drug policy, one that opens the door to deeper and wider international reforms. Others are less convinced, arguing the statement represents ‘nothing of the sort’ and that its ‘attractiveness is superficial’.

There are at least two reasons to approach this ‘doctrine’ with a degree of caution.

The first is that the statement, in fact, offers little that is truly ground-breaking, at least in the context of the Obama Presidency. How different, for example, is the position of ‘accepting flexible interpretation of the conventions’ and ‘tolerating different national drug policies’ from Brownfield’s statement at the 2013 meeting of the UN Commission on Narcotic Drugs:

‘[T]he United States does not claim a monopoly on best practices related to drug control. All countries must consider their own unique circumstances and experiences. There are no simple answers or uniform solutions. Each government must decide its own course for how to best uphold its obligations under international law to protect its citizens against the harms caused by illegal drugs.’

Or his statement at the March 2014 Commission on Narcotic Drugs,

‘The international drug control system is not perfect. Some argue the conventions cannot handle problems this big and complex. I respectfully disagree: over the decades, these conventions have been flexible and resilient, evolving to help member states grapple with these challenges. We believe it is more prudent to advance evidence-based reform within the framework of the conventions than to embrace unproven ideas that undercut the system and risk greater drug abuse.’

In fairness, the significant new element of the October 2014 speech is the explicit acceptance of drug legalisation as part of the legitimate policy debate, which previous statements did not, and the March 2014 statement seems to specifically reject. However, given its new legal domestic marijuana market, the United States could hardly say otherwise with any credibility, given it is now among those countries that, to use its own words, ‘embrace unproven ideas that undercut the system’.

What is notable in all these statements is the reinforcement of the primacy of the three international drug control treaties as the foundations for any way forward. Leaving aside the irony of Brownfield calling upon States to ‘respect the integrity’ of treaties to which the US itself is now in obvious and fundamental breach, his statement does raise important questions about the concept and limits of treaty flexibility.

There are many legitimate reasons why a State may want to adopt domestic laws and policies that break from the punitive prohibitionist norms of the drug conventions, and experiment instead with legally regulated markets (i.e., to undercut criminal markets, to better address health problems related to drugs, etc.). This is what Uruguay and a handful of US states have done, and it is a path others are likely to now follow. However, a State cannot ‘flex’ its way out of a core treaty obligation. There may be perfectly good and defensible reasons for a State to consciously violate a bad or out-dated treaty provision, and drug suppression and control – the core tenets of which date back over 100 years in treaty law – is clearly an area of law long overdue for modernisation. But pretending these actions are not breaches – and failing to explain why the decision to breach was necessary and made in good faith – does nothing to clarify questions or encourage debates about necessary or appropriate law reform. Rather, it further obfuscates international processes that already lack both transparency and consistent application.

For example, despite the calls for ‘flexibility’ and ‘tolerance’ in national policies, the US continues to penalise Bolivia for that government’s recent decision to allow the traditional uses of the coca leaf domestically, particularly among indigenous communities. As described in a recent opinion piece, the official US position is critical ‘that Bolivia tries “to limit, redefine, and circumvent the scope and control” for coca under the 1961 Convention, even though that is precisely what the US is doing in the case of cannabis.’ This conclusion can in fact be taken a step further: the US penalises Bolivia for a non-breach (Bolivia has a reservation on the relevant treaty provision) while avoiding criticism of its own clear breach by embracing ‘flexibility’. This application of flexibility could not be any less consistent, the decision-making any less transparent, and the contribution to progressive international legal development any less useful. As a policy approach, it looks remarkably self-serving. One is left with the conclusion that the only ‘flexibility’ at play is a flexible approach to honest decision-making.

The effect of the so-called ‘Brownfield Doctrine’ is to allow the US to pretend to be in treaty compliance when it is not, a pretence some in the drug reform sector have rushed to embrace. This not only undermines calls for more meaningful discussion of law reform, it also allows the US to continue in its self-appointed role as policeman of the conventions, or in this case arbiter of the limits of flexibility. While this will likely provide welcome ‘wiggle room’ for further domestic reforms in some countries, even if those are likely limited to cannabis, it does little to fundamentally challenge the punitive prohibitionist framework of the international conventions, which is the driver of most of the health and human rights harms of drug control. Indeed, the Brownfield speech actually looks the other way on human rights abuses linked to drug control. As noted above, pillar three specifically ‘accept[s] the fact that some countries will have very strict drug approaches; other countries will legalize entire categories of drugs’. Such a statement sends the tacit message that if you don’t criticise us for our marijuana laws, we won’t criticise you for pursuing the death penalty, corporal punishment, extrajudicial killings, denying HIV prevention measures for people who use drugs, failing to provide access to essential medicines, or any of the litany of other human rights abuses linked to drug control that are increasingly becoming a focus of UN human rights bodies.

Significantly, Brownfield’s statement also does nothing to undermine the US’s own position of power within the regime, and its ability to utilise drug control as a tool to advance its own national interests. As the Bolivia case illustrates, even with these pillars of flexibility and tolerance to the rhetorical fore, the US can and will use drug control as a tool to punish States with which it disagrees on broader geo-political issues, not at all related to drugs.

While observers and advocates in the field of drug policy will likely continue to debate the content and implications of this speech in the months to come, it is worth flagging a second reason for caution, one based not on US drug policy but on the record of the current administration. More than one observer has noted that the Obama Presidency is skilled in its ability to defend the status quo while appearing to promote reform. From the illegal detention of alleged ‘terrorists’ in Guantanamo and elsewhere, to domestic surveillance, to the use of drones to Wall Street reform, the President and his officials have a well-documented history of using the promise of change as a distraction to shield controversial US laws from meaningful reform. Given the 100-year history of the United States using drug control as a basis for pursuing its own international economic and military interests, it is certainly fair to wonder whether or not the ‘Brownfield Doctrine’ is truly ‘change we can believe in’.

Dr Rick Lines is Chair of the International Centre on Human Rights and Drug Policy, and a Visiting Fellow at the Human Rights Centre, University of Essex. You can follow him on twitter: @LinesRick

Disclaimer: The views expressed herein are the author(s) alone.