The big news in drug reform circles this week is the Supreme Court’s decision that there is no "medical necessity" exception to federal prohibition of marijuana distribution or manufacture that can be claimed by the Oakland Cannabis Buyers Cooperative. The court did not overturn California’s law allowing patients with a recommendation from a licensed physician to use, possess and cultivate cannabis, or the similar laws passed by initiative (and by legislative action in Hawaii) in other states, but it does highlight the complex relationships of various levels of government.
It is important for those seeking reform to be aware that interrelationships among various governmental bodies can make reform efforts more complicated than they might otherwise be. And it is not quite enough for the people of a state to pass a medical-marijuana law to get a system to serve patients in place – indeed, as my new book, Waiting to Inhale: The Politics of Medical Marijuana (available here) details, getting enough political support for a reform to have it passed can be only the beginning of a complex and confusing process that is still far from over. And then there’s the federal government with its own attitude and agenda.
In a similar fashion, countries that want to diverge from the chosen path of prohibitionism when it comes to dealing with certain drugs can find that international organizations, international treaties, international conventions and international pressure can have a powerful impact on their desire to explore options other than punishment and imprisonment. It’s becoming a growing problem as an increasing number of countries try to find alternatives to the strict prohibitionism many view as a twisted spawn of American puritanism.
CONVENTIONAL WISDOM
The main international treaty governing drugs policy is the UN Single Convention, ratified in 1961, which binds signatories to have an essentially prohibitory policy toward certain drugs, especially marijuana and heroin. When it was ratified, then-head of the US Bureau of Narcotics Harry Anslinger, the duplicitous father of marijuana prohibition policies, crowed that it meant marijuana could never be legalized, because any country that even thought about doing so would be in violation of a solemn treaty obligation. And, indeed, at various times during the ongoing debate over drug policy, American prohibitionists have cited the treaty as one of the many reasons the United States can’t even think about anything other than strict prohibitionism as an approach to supposedly dangerous drugs.
During those debates there was seldom a realistic likelihood that the United States would actually revise its drug laws in a way that might run afoul of the Single Convention. But of late various governments, especially in Europe, have pursued slightly different policies toward drugs and the harms they can cause in a society.
Most people are aware that cannabis and the refined form called hashish can be purchased openly in Amsterdam, through "coffee shops" that sell small amounts to almost any comer. While the trade is open and openly tolerated, however, the Dutch government has not actually changed its marijuana laws, it has simply chosen to ignore them in certain ways. The results are generally beneficent: marijuana use by teenagers in Holland is lower than it is in the United States, and while the "coffee shops" are associated with certain low-level enforcement and disturbance problems, they are generally operated so as to minimize disturbances and problems for neighbors.
While Dutch government officials are generally pleased with their policies and willing to defend them against falsehoods from such as former U.S. "drug czar" Barry McCaffrey, however, the laws haven’t actually been changed, in large part due to the Single Convention. So Holland is left pursuing a policy its leaders believe to be beneficial, but which is to some extent a lie in that it isn’t formalized in the laws of the country. It’s more that a little Alice-in-Wonderlandish.
DE FACTO BUT NOT DE JURE
Meanwhile other countries are working out different approaches to potentially dangerous, addictive or demonized drugs, but operating under similar legal constraints. Thus Great Britain has at various times operated heroin maintenance or methadone clinics. Switzerland in recent years has virtually legalized marijuana, allowing not just use and sales but also cultivation. Belgium is on the verge of decriminalizing possession and cultivation for personal use. Germany, led by resolutions from various cities, has more tolerant policies in practice, though not in law, than the United States. Italy and Spain have flirted with de facto legalization of marijuana.
All of these countries have been held back from open legalization or full decriminalization by the Single Convention – which means in practice they have been held back by the United States, which turns out to be the only country that cares enough about prohibition to issue veiled threats and subtle reminders whenever some other country threatens to stray from the prohibition reservation.
Until the collapse of the Soviet Union most European countries placed too much value on their relationship with the United States to make a big deal out of something so peripheral as drug policy – or Vietnam, to cite an earlier war most European countries opposed but went along with. But the collapse of the Soviet Union has coincided with economic growth and an increasing sense if independence on the part of European Union countries.
THE CANADIAN CASE
In a fascinating story that has hardly been reported at all in the US press, Canada is on the verge of developing a comprehensive plan to allow and perhaps even to distribute marijuana to patients whose doctors recommend that they use it. This came about because last July the Canadian Supreme Court, hearing a case brought by a medical marijuana patient, looked beyond the words of the laws to the scientific evidence and the many anecdotes about unique relief offered to some patients by cannabis.
The Canadian high court then ruled that by denying Canadian patients the ability to try a medicine that just might relieve some of their pain or suffering with minimal side effects, the Canadian government was denying them fundamental rights guaranteed by the Canadian constitution. It told the government, in effect, that it had a year to come up with a system to authorize the medicinal use of cannabis, or it would invalidate all the anti-marijuana-user laws.
Even so, Canadian officials have expressed concern about whether they might find themselves in violation of international conventions on drug policy. But conditions around the world are changing in ways that might make this argument not only less compelling, but downright irrelevant.
PLAN COLOMBIA MISFIRES
Consider a few developments. The Europeans are talking about a continental defense force independent of NATO, though one wonders if it will ever be much more than just talk. While most Eurocrats supported the Kosovo bombing campaign, some had and expressed reservations, especially the French.
Except for Plan Colombia, which most Europeans find ill-advised or foolish.
During the 1990s differences between the United States and its European "allies" were muted because of the general level of comfort on the part of most Europeans with the Clinton administration. But Bush the Younger is viewed with less tolerance than his old man or even Clinton. Despite some early hopes that his administration might be less intensively globally engaged than previous American administrations, he shows every evidence not only of supporting Plan Colombia but of being prepared to escalate American involvement beyond anything the Clinton administration had in mind.
This is not simply an unfortunate development in some faraway part of the world that the European and Canadian governments can effectively ignore even as they tut-tut about its unwisdom. They are being asked to contribute money and materiel. And for the most part they have much less confidence in the Bush administration to keep matters from surging out of control than they had in Clinton – if only because Clinton was so thoroughly cynical that he would not allow US involvement to expand to the point that a lot of embarrassing body bags started coming home.
KYOTO AND ABM
Meanwhile, the United States under the new administration has changed the climate regarding treaties. It has all but declared the Kyoto treaty on global warming a dead letter, a convention the United States does not feel obligated to honor. And in its eagerness to build an anti-missile defense system it has spoken openly of abrogating or invalidating the 1972 Anti-Ballistic Missile treaty, which seems to forbid the US from building such a system.
For the purposes of this argument, it doesn’t matter whether these decisions are good, bad or indifferent (I happen to think both are eminently defensible, though in the case of Kyoto not necessary since anyone in touch with reality knows it is never going to take full effect and probably was never intended as much more than a symbolic gesture). The important thing is that the United States is publicly criticizing and threatening to abrogate unilaterally a couple of solemn treaties.
The United States is saying that treaties are not necessarily forever, that conditions and circumstances may change in ways that make new arrangements – or the abrogation of old commitments – at least desirable if not absolutely necessary. This isn’t an indefensible position by any means, and in some ways it is a thoroughly healthy attitude.
But with Kyoto and ABM in the background, the United States is not going to have a lot of credibility when it tries to tell Europe and Canada that they can’t change their domestic drug policies because they have solemn treaty obligations to keep waging the Holy War on Drugs.
FED UP WITH UNILATERALISM?
With all this as background, perhaps it is not surprising to find further evidence of exasperation with the US sanctimony surfacing more quickly than some of us had expected. Last week the United States was not voted onto the UN Human Rights Commission. This was hardly a mark of dishonor, given that the seat went to Sudan, one of the world’s more brutal tyrannies.
It was hardly reported at all, however, that during the same UN session the US lost its seat on the 13-member International Narcotics Control Board, the body that supposedly monitors compliance with UN "drug conventions." In practice it has largely been a prohibitionist propaganda outfit largely controlled by the US Drug Enforcement Administration.
Of the seven countries elected to the board, Iran, Brazil, India, Peru, France, the Netherlands and Austria, at least four are openly moving away from strict marijuana prohibition. Their presence and the US absence from this board could actually have the impact of slowing down the US push to create a global police state, ostensibly to fight the war on drugs.
Former Drug Czar Barry McCaffrey called the development "a great loss to the international community to not have us in a leadership position … The assistance that we are able to provide the United Nations, the Europeans and former Soviet Union states could be adversely affected."
Translation? McCaffrey knows this is a major blow to the U.S.-led international war on drugs, but can think of nothing more effective than blustering threats to cut off aid to counter it
A NEW DAWN?
It would hardly be accurate to contend that because of these developments international treaties that support international prohibitionism are likely to be repealed or abrogated. Many of the countries still on the INCB are ardently prohibitionist. The bureaucracies that made their spurs promoting prohibitionist propaganda and resisting or denouncing any hint of reform.
But with the United States, the Vatican of Prohibitionism, no longer on the board, the agency will no longer be a slavish servant of the DEA. Countries that support various reforms might even make their impact felt on the international body.
Richard Cowan, proprietor of the useful Web site marijuananews.com, has written that "prohibitionism is a global ideology, like Communism, and deviation from the party line is a moral threat. Second, if another country develops successful drugs policies that deviate from prohibitionism the prohibitionist paradigm could be shattered. After all, pragmatism is an American philosophy. Prohibitionism is not just morally superior; it is the only possible policy. Anything else would have to be a disaster. That is why the DEA and Drug czar has to lie about the success of Dutch cannabis policies."
Mr. Cowan might be a tad too optimistic. But attitudes toward drug policy are changing, not just in the United States, where the people are years ahead of the politicians, but around the world.
