Limits to Law: united nations confronting the war on drugs

At the ninth US Democratic Party Presidential Candidacy Debate held in Brooklyn 14th April 2016, Bernie Sanders articulated the limitations of the US justice system: too many people in prison, too many black in prison, and too often the price of criminality is felt by the poorest and most marginalised in society. For Sanders, these social injustices — and the punitive and retributive nature of the system as a whole — is encapsulated by the ‘war on drugs’:

And I’ll tell you what else I think. And that is, we have got — and this is the difference between the secretary and myself as I understand it. We have got to have the guts to rethink the so-called war on drugs. […] Too many lives have been destroyed because people possessed marijuana, millions over a 30-year period. And that is why I believe we should take marijuana out of the federal Controlled Substance Act.

Sanders intervention captures a growing sense -articulated by a coalition of global leaders, media and entertainment figures, human rights activists as well as drugs campaigners — that the established approaches to dealing with criminality around the drugs trade have not worked. A coalition of 1000 individuals — including Warren Buffett, U.S. Sen. Elizabeth Warren and Sting  — have written a letter to UN Secretary General Ban Ki-moon urging a rethink in global drugs policy:

The drug control regime that emerged during the last century has proven disastrous for global health, security and human rights.  Focused overwhelmingly on criminalization and punishment, it created a vast illicit market that has enriched criminal organizations, corrupted governments, triggered explosive violence, distorted economic markets and undermined basic moral values.

The letter is timed to coincide with the United Nations General Assembly Special Session (UNGASS) currently being held in New York and dedicated to debating the world’s drug control policy. As the Open Society Foundation wrote last year Open Society Foundation wrote last year, the last time a UNGASS was held to confer drugs policy (eighteen years ago) it did nothing other than reaffirm the global commitment to the total elimination of drugs use, and in so doing promoted all legal, penal and military mechanisms directed to this end. But the letter’s authors point to the need emerging (and more liberalised) drugs policies emerging across state and sub-state jurisdictions across the world:

A growing number of city, state and national governments no longer treat drug use and possession as crimes.  Some are beginning to legally regulate cannabis for medical and even non-medical purposes. Many more recognize the need to make essential medicines readily available, especially for pain and palliative care in lower income countries.  But far greater and more systemic reforms are essential.

In contrast to human rights discourse, where — to generalise — the enshrinement of rights within global agreements is imagined to project outwards (and downwards) to states and other jurisdictions, the letter’s authors are imagining a very different geography of policy making, where the advances at the local scale can be projected upwards to the United Nations. The Open Society Foundation has pointed to the success of Swiss policies towards illegal drugs, a liberalisation that led to record decreases of new heroin uses and a rapid decrease of new cases of HIV. Fiona McConnell and myself are planning a co-authored piece that thinks about the role of international institutions as resources for social movements and human rights activists: according to the reports cited above the UN has been known to perform a regressive function, criticising states that fail to take a ‘hard line’ on drugs policy.

But perhaps more significantly, the challenge to criminalisation also points to enduring prominence given to ‘legalism’ when dealing with moral or social ills: to emphasise the prominence of legal judgement and the viewpoints of jurists over other forms of expertise (I have written about this in the past in relation to transitional justice, drawing on the work of criminologist Kieran McEvoy). Challenging legalism prompts the question: what are the limits to of legal approaches, and in particular punitive judicial mechanisms, when dealing with the trade and consumption of drugs? And, perhaps more practically, how can success in the ‘war on drugs’ be measured in non-legal terms?

Alex Jeffrey, April 2016



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