Decriminalisation of drug use and dissent at the UN

Niamh Eastwood
Friday, 6 May 2016

For all of the glaring omissions in the final outcome document of April’s United Nations General Assembly Special Session (UNGASS) on the ‘World Drug Problem’, one of the more conspicuous was any mention of decriminalising the possession of drugs for personal use.

The 2016 UNGASS – the first in 18 years – was originally scheduled for 2019. It was brought forward thanks to calls from the Colombian, Mexican and Guatemalan governments to explore alternative approaches to the ‘war on drugs’. These countries have been at the forefront of this war for decades, experiencing extreme levels of violence and insecurity as a result.

Unfortunately, their calls for an open debate on the failures of the current approach by and large fell on deaf ears. Indeed, the final outcome document was adopted within just two minutes at the opening of the UNGASS, having already been negotiated at the Commission on Narcotic Drugs in Vienna over the preceding months.

In the outcome document, member states reaffirmed their commitment to the three outdated international conventions on drugs and set the aim of achieving a ‘world free of drug abuse’. Of course, the latter could be seen as a small step forward compared to 1998’s bold and unrealistic aim of a drug-free world within 10 years. But abuse and use can be used interchangeably in UN language at times.

Small victories

That is not to say the outcome was an outright disaster. Small victories were achieved. There was the inclusion of a reasonably robust paragraph on universal access to essential medicines and a section on human rights obligations.

It also made reference to harm reduction interventions such as opiate substitute prescribing and naloxone, albeit without reference to the term ‘harm reduction’ itself, due to push back from hard-line states such as Russia.

Furthermore, the fact that numerous countries and UN agencies openly lamented the document’s shortcomings after its adoption is a positive. It at least highlights discord within the UN and a reluctant acceptance of the principle of consensus that underlies UN drug policy workings.

A common theme in the failings that many delegations addressed was the non-inclusion of a call for the abolition of the death penalty. Several countries additionally called for an end to the criminalisation of people who use drugs – decriminalisation – which the document similarly skirted over. This despite its increasing prevalence around the world and it being adopted in compliance with the international drug control treaties.

Indeed, there are currently over 25 jurisdictions globally that have decriminalisation policies in practice, as highlighted and examined in Release’s paper, A Quiet Revolution: Drug Decriminalisation Across the Globe.

Drug decriminalisation

Decriminalisation of drug use and possession for personal use is the ending of criminal sanctions for such activities, with the optional use of civil penalties for possession. The supply of drugs remains a criminal offence.

The argument often put forward by opponents of drug policy reform is that if we take a different approach to the criminal justice response, drug use will increase. This is simply unfounded.

Release’s research shows that the ending of criminal sanctions for drug use has no impact on the levels of consumption. In fact, even the UK Government has acknowledged this, stating in their 2014 international comparators report, which reviewed the drug policies of thirteen countries who took different approaches to tackling drug use, that there was no relationship between ‘the toughness of a country’s enforcement against drug possession, and levels of drug use in that country’.

When implemented effectively and coupled with investment in public health responses, not only does decriminalisation not lead to increased drug consumption, there are also better health and social outcomes.

Portugal, for example, decriminalised all drugs in 2001 and invested heavily in harm reduction and treatment services. In the last 15 years, they have witnessed significant declines in HIV transmission rates, increased numbers in treatment and have one of the lowest rates of drug-related deaths in Europe.

Compare this to England and Wales, which criminalises in the region of 70,000 people a year. It has one of the highest rates of drug-related deaths in Europe, with last year’s figures on heroin and morphine deaths the highest since records began.

In Australia, three states have decriminalised cannabis possession offences. Research has shown that when comparing outcomes for individuals who were given criminal sanctions as opposed to civil sanctions, they did less well across a range of social areas, including employment, housing and relationships.

The reality is that the criminal law does not have a deterrent effect, but criminalisation can have significant harms for individuals, their families and society as a whole.

Implementing decriminalisation

The success of decriminalisation depends on how well the policy is implemented, though, and many of the countries Release looked at have extremely poor models.

For example, in some countries the thresholds used to determine whether someone is in possession of drugs for their own use are so low that the policy is ineffective. This can lead to extremely harsh sentences for people who use drugs, where they may be charged with a trafficking or supply offence. In Russia, for instance, the threshold for heroin is 0.5 grams, resulting in tens of thousands of people annually being incarcerated.

Decriminalisation is only a solution to part of the problem, however, since it does not tackle the illicit supply of the estimated $320 billion annual trade in illicit drugs and its associated harms.

Currently, inroads are being made into the illicit cannabis market, with four US states and Uruguay having implemented or being on the cusp of implementing the legal supply of recreational cannabis. California is expected to adopt similar measures in November 2016 and Canada announced at the UNGASS that it will be bringing legislation forward for a regulated market in spring 2017.

Beyond cannabis, though, there is little appetite for discussion of regulation at the minute. 

The UNGASS may not have resulted in a shift in policy internationally, but we have to remember that reform often comes at a national level, as demonstrated by those countries that have turned away from the prohibitionist approach domestically.

We should also remember that the UN is not some separate entity. It reflects the position of its member states. As such, and moving forward, we should advocate for reform at a national level. Only then will we start to see a shift in the international regime.

Niamh Eastwood is Executive Director of Release, a national centre of expertise on drugs and drugs law. She is speaking at ‘Responding to drug harms: Can the UK learn from Portugal?’ on 16 May.