Pp. 218-227 in: Rehm, J., Fischer, B. & Haydon, E., eds. Reducing the Risks, Harms and Costs of HIV/AIDS and Injection Drug Use (IDU): A Synthesis of the Evidence Base for Development of Policies and Programs. Toronto: University of Toronto, report to Health Canada, 2003.
Impact and Implications of the International Drug Control Treaties on IDU and HIV/AIDS Prevention and Policy
Centre for Social Research on Alcohol and Drugs
Stockholm University, Sveaplan
106 91 Stockholm, Sweden
The international treaties and agencies charged with their implementation are briefly described, with particular emphasis on the International Narcotics Control Board (INCB), which regards itself as the “guardian” of the conventions. There has been much discussion and controversy about the status under the treaties of two types of harm reduction measures: (1) provision of controlled drugs under medical auspices; (2) measures which make the use of illicit drugs safer. It is argued that it is open to any country to interpret the treaties to allow measures of either type. However, with respect to the first category, the INCB has campaigned against maintenance on heroin, but not on other opiates, and with respect to the second, against safe and sterile injection rooms. Presently, a country must be willing to endure open diplomatic excoriation from the INCB to maintain an interpretation on these measures divergent from the INCB’s. However, there are some signs of change in this international situation.
THE INTERNATIONAL DRUG CONTROL TREATIES AND THEIR IMPLEMENTATION
There are three main international drug control treaties: the 1961 Single Convention on Narcotic Drugs ( as amended in 1972; the 1971 Convention on Psychotropic Substances ( and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (). The treaties have been ratified by an unusually wide diversity of states – as of 1 November 2001, 175 for the 1961 Convention (167 for its 1972 protocol), 169 for the 1972 Convention, and 162 for the 1988 Convention (INCB, 2002). Their application is not quite universal, but it is very wide.
Three specialized international bodies are responsible for the implementation of the treaties (with the World Health Organization also playing a technical role): the Commission on Narcotic Drugs (CND), a political body with states elected as members by the Economic and Social Council of the UN (ECOSOC); the United Nations Drug Control Programme (UNDCP), the administrative body for the UN’s programs in the drug area (now a division of the UN Office for Drug Control and Crime Prevention, UNDCCP); and the International Narcotics Control Board (INCB) (Room & Paglia, 1999).
The INCB consists of 13 members elected by ECOSOC as experts in their personal capacities, rather than as representatives of countries; 3 of these are chosen from a list submitted by WHO. The INCB quite self-consciously regards itself as the “guardian” of the conventions. On its website, it defines its responsibilities as “to promote government compliance with the provisions of the drug control treaties and to assist them in this effort”. This includes both making sure that the licit (medical) market is supplied, and that illicit drug trafficking is suppressed:
“With regard to licit manufacture, commerce and sale of drugs, the Board endeavours to ensure that adequate supplies are available for medical and scientific uses, and that leakages from licit sources to illicit traffic do not occur. To this end, it administers an estimates system for narcotic drugs and a voluntary assessment system for psychotropic substances, and monitors international trade in drugs through the statistical returns system. The Board also monitors government control over chemicals used in the illicit manufacture of drugs, and assists them in preventing diversion of these chemicals into illicit traffic.
“With respect to illicit manufacture and trafficking of drugs, the Board identifies where weaknesses in the national and international control systems exist and contributes to correcting the situation. Further, the Board is responsible for assessing chemicals used to illicitly manufacture drugs, for possible international control.” (http://www.incb.org/e/index.htm -- “Mandate”)
The INCB issues an annual report, in which it regularly scolds governments in diplomatic language for what it views as deficiencies in their actions, and tackles a different special theme each year. For instance, the 2001 report included a discussion of threats to drug control from globalization and the internet (INCB, 2002). In addition, its members undertake about 20 missions a year to assist governments in their duties under the conventions (Emafo, 2002). The secretariat of the INCB, formally a part of the UNDCP, is also involved from time to time in monitoring and monitory activities which the INCB would regard as part of the guardianship. For instance, Herbert Schaepe, the INCB’s Secretary, was widely quoted in the Australian press threatening that the INCB would cut off Australia’s quota for legal production of opiates if drug injection rooms were set up (Mann, 1999), and engaged in correspondence with an Australian priest on the topic (Schaepe, 1999).
As the Australia case shows, for the short list of countries which are licensed to produce opiates, the INCB can threaten action to cut off a legal industry. But otherwise, the INCB has no formal powers of enforcement; its powers are limited to persuasion, exposure and criticism.
HARM REDUCTION MEASURES AND THE TREATIES
The international drug control treaties obviously affect and interact with injection drug use prevention and policy in many ways, and primarily because of this also affect HIV/AIDS prevention and policy. The main points of potential conflict between public health-oriented policies and programs and the treaties, however, have arisen in the area now commonly described under the term “harm reduction” (Riley et al., 1999). The measures about which there has been substantial discussion and controversy fall into two categories:
(1) provision of controlled drugs under medical auspices. The primary flashpoints for this have been medically-supervised opiate maintenance (particularly with heroin or methadone), and medical use of cannabis for a variety of health conditions, including some conditions consequent to AIDS.
(2) measures which make the use of illicit drugs safer. These include the provision of sterile needles through needle exchanges or pharmacies, the provision of safe and sterile place for IDU (injection rooms), and services which test and report back the composition of drugs obtained on the illicit market.
These two categories of measures have somewhat different status under the treaties. The basic distinction in the treaties between permitted and non-permitted use of controlled drugs is that the only legitimate drug use under the treaties is that for “medical and scientific purposes” (Article 4(c) of the 1961 treaty). This phrase is not further defined under the treaties, so that there is considerable scope for differences of opinion about what it covers. De Ruyver (2001) concludes that the interpretation of the phrase “remains at the discretion of individual states”. If this is accepted, then the treaties allow any provision of controlled drugs which is allowed by a nation as a use for medical or scientific purposes. In particular, any medically-supervised or authorized use of opiates or cannabis which is allowed by a country is legitimate under Article 4(c).
The status under the treaties of measures which make the use of illicit drugs safer is more complex. Article 37 of the 1961 treaty, applying to opiates, cocaine and cannabis, states that “any drugs, substances and equipment used in or intended for the commission of the offences referred to in Article 36 shall be liable to seizure and confiscation”, which might be taken to include, for instance, injection equipment. But while Article 36 covers production, distribution, sale and possession of the applicable drugs, it does not cover the use of drugs, and thus Article 37 does not cover the possession of equipment to use drugs. Thus “international law does not prohibit addicts [from obtaining] sterile injection equipment as such” (De Ruyver, 2001).
The 1988 treaty, however, imposes an obligation on its signatories to “establish as a criminal offence under its domestic law ... the possession and purchase ... of narcotic drugs or psychotropic substances for personal consumption” (Article 3, paragraph 2). The INCB has argued that establishing drug injection rooms “facilitates illicit drug trafficking”, which governments have an obligation to combat, and involves acceptance of the fact of illegal drug possession and use in the rooms.
“By permitting drug injection rooms, a Government could be considered to be in contravention of the international drug control treaties by facilitating in, aiding and/or abetting the commission of crimes involving illegal drug possession and use, as well as other criminal offences, including drug trafficking. The international drug control treaties were established many decades ago precisely to eliminate places, such as opium dens, where drugs could be abused with impunity.” (INCB, 2000).
However, Article 3, section 2 of the 1988 Treaty also provides that the obligation to establish drug possession for personal consumption as a criminal offence is subject to a country’s “constitutional principles and the basic concepts of its legal system”. Where a country for these reasons has renounced the prosecution of possession of drugs for personal use, De Ruyver (2001) concludes that this means that the establishment of drug injection rooms would not violate international law.
It would also seem possible to argue that the exclusion from proscription of use for “medical and scientific purposes” could provide a rationale for the establishment of safe and sterile injection rooms. De Ruyver (2001), for instance, regards “drug testing in discotheques” as potentially falling under the exclusion: “pill testing aims at determining the exact composition of the pills, which can be considered a scientific purpose. In addition, pill testing tries to warn people in relation to the possible danger of the pills in order to protect public safety”. By the same logic, the state’s actions in setting up a safe and sterile injection room have a clear public health purpose (Kerr and Palepu, 2001). A second rationale, put forward in Canadian documents, is in terms of “scientific and medical experimentation” (Canadian HIV/AIDS Legal Network, 2002). A third rationale would focus on the provisions of a nation’s constitutional principles or basic requirements of its legal system (Oscapella and Elliott, 1999). National obligations under international human rights treaties have also been raised as an argument in a Canadian context (Elliott, Malkin & Gold, 2002). A further alternative would be for the drugs used in the injection room to be supplied under medical auspices, which would put the room in the same status under the treaties as a methadone maintenance unit.
In terms of the provisions of the treaties themselves, then, there appears to be rather little impediment to using the harm reduction approaches for IDU/HIV prevention which have been commonly discussed. Where it is a matter of the provision of controlled drugs under medical auspices, the treaties themselves do not appear to offer any impediment. Measures which make the use of illicit drugs safer without state involvement in the drug use appear to be allowable. With measures where the state is involved in the drug use, such as injection rooms, there is more scope for argument, but there are defensible rationales by which these strategies, too, would not contravene the treaties.
HARM REDUCTION MEASURES AND THE INCB
Nevertheless, there has been substantial and continuing controversy over the application of many of the harm reduction measures discussed above. At the international level, the focal point of the resistance to these measures has been the INCB. In its role as guardian of the Conventions, the INCB appears also to taken on itself the role of sole interpreter of their meaning and application. After consulting with the INCB Secretariat, for instance, De Ruyver (2001) appears to accept it as a given that “the INCB has the duty to control [national] interpretations of the Conventions”. But while, it is clear that the INCB can make its own interpretation of whether “the aims” of the Conventions are “being met” (1988 Convention, Article 22), with the right to publish its views in case of what it perceives as noncompliance, nothing in the Conventions suggests it has the power to impose its interpretations as binding.
The objections of the INCB have been particularly focused on two of the strategies: heroin maintenance trials, and safe and sterile injection rooms. Heroin maintenance has been accepted since the 1920s on a strictly limited basis in Britain (Fischer et al., 2002), so that this use for “medical purposes” long preceded the renewed discussions of heroin maintenance in the 1990s. The framing of the issue in the 1990s, however, has been more in terms of scientific than of medical purposes: the initial Swiss heroin prescription trial, and the several others which are planned or underway (Fischer et al., 2002), have been presented and justified as controlled clinical trials. This opened the way to long-drawn-out arguments about the adequacy of the Swiss trial, for instance, in terms of the norms of a random-assignment controlled trial (Swiss Physicians..., 1999). In analyzing the Danish debate about a heroin experiment, Jepsen (2001) concludes that behind the “discussion of the appropriate scientific standard to be applied is a less openly verbalized political or policy conflict on the appropriate developments in drug policy; ... what is couched in terms of science is really a conflict between two drug-political camps”. Jepsen concludes that the randomized controlled experimental design which is held up as the gold standard for a heroin trial does not actually ask the most important questions for assessing the usefulness of heroin maintenance as an alternative therapy; in their recent review, Fischer et al. (2002) reach similar conclusions.
In any case, following a referendum in 1997, Switzerland proceeded in February 1998 to provide on a regular basis for the medical prescription of heroin to severely dependent addicts. The INCB reiterated “its previously expressed concerns about the program”, and regretted that the Swiss action had been taken before a WHO review was available (INCB, 1999). But with the 1998 action, the Swiss program had moved onto the solid ground, from the perspective of the treaties, of use for “medical purposes”, beyond the arguments about what is and is not good research.
With regard to safe and sterile injection rooms, we have already referred to the extraordinary pressure the INCB exerted on Australia in 1999. Earlier pressure from the INCB and the U.S. had succeeded in indefinitely delaying a heroin trial in Australia (Marr and Lagan, 1997), and the INCB’s actions in 1999 initially had the same effect for injection rooms. However, against the wishes of the Australian federal government, the state of New South Wales has proceeded with an injection room trial in Sydney, with a positive report on its functioning from the first six months (Kaldor et al., 2002). The INCB noted this development with regret, reiterating its concerns that “the operation of such facilities, where addicts inject themselves with illicit substances, condones illicit use and runs counter to the provisions of the international drug control treaties”. Noting the Australian federal government did not support the establishment of such rooms, the INCB urged it to “ensure that all of its states comply fully with the provisions of the international drug control treaties” (INCB, 2002).
IMPACT AND IMPLICATIONS OF THE INTERNATIONAL DRUG CONTROL SYSTEM
The conclusion to be drawn from this discussion is that the impact and implications of the international drug control system for harm reduction strategies in the context of IDU and HIV/AIDS prevention and policy do not arise primarily from the provisions of the international drug control conventions themselves. The language of the treaties includes enough flexibility that they can credibly be interpreted to allow the measures which have received the most discussion, and there is no impediment under international law to a signatory state making such interpretations for itself.
The impact of the system comes instead from the implementation of the treaties, and with the international politics which surrounds that. In particular, the INCB claims not only to be entitled to interpret the treaties, but also to impose these interpretations on signatory states. The treaty power of the INCB in this circumstance (except perhaps in the special case of licit opiate producers) is limited to exposure – to “call the attention of the Parties, the Council, and the Commission” to a matter where it is not satisfied with a country’s performance (1988 Convention, Article 22). But the INCB’s claim is made in an international environment where states have been reluctant to break openly with a governing orthodoxy describing drug control in terms of a war on drugs (Room, 1999). The experience of recent years is that it takes a strong majority of professionals in the field and a good deal of persistence for a nation (or a subnational province or state, in federal countries) to break through the political barriers that the international drug control system poses or reinforces.
There are, however, some signs of change in the international system. Much of Western Europe has been moving away from the criminalizing regimes required under the drug conventions. The 2001 INCB report called attention to and objected to this trend, and accordingly a resolution was introduced in the March 2002 meeting of the CND calling on member states to criminalize use. Portugal, Spain, Italy and Canada voiced initial objections to the resolution. Eventually in the final resolution, passed by consensus, all mention of criminalization had been dropped (Room, 2002). About 70% of the budget which sustains the system comes from the countries of the European Union (Room, 2002), and the shift in European attitudes is likely in the long run to change the political tenour of the system.
The main international impediment to adopting harm reduction measures for IDU/AIDS prevention has been the sceptical or negative position of the INCB on a few particular measures. With respect to maintenance therapy with heroin or any other controlled substance under medical supervision, a country may clearly maintain the position that such a practice is authorized by the treaties’ acceptance of use of controlled drugs for “medical and scientific purposes”. With respect to safe and sterile injection rooms and similar measures, there are also reasonable interpretations of the treaties, discussed above, which permit such measures. At present, a country engaging in such measures must be prepared to contend with a diplomatic excoriation from the INCB, although there are some signs of change in the system which may mitigate this factor.
Associated Press (2001) U.S. loses seat on U.N. drug policy committee. United Nations (New York) AP dispatch, May 7. (http://www.dutch‑passion.nl/news/2001/May/US‑%20US%20Loses%20Seat%20On%20UN%20Drug%20Policy%20Committee.txt)
Canadian HIV/AIDS Legal Network (2002) Safe injection facilities (fact sheet, second edition). Montréal: Canadian HIV/AIDS Legal Network. http://www.aidslaw.ca/Maincontent/issues/druglaws/e‑info‑dla10.htm
De Ruyver, B. (2001) Legal (pre)conditions and control mechanisms with regard to risk reduction. Presented at a Pompidou Group seminar in Strasbourg, 28 September, P-PG/MIN/CONF (2000) 2. and other end-numbers up to /ruyeng7.htm
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Emafo, P. (2002) [Statement as President of the INCB to the 2002 Substantive Session of ECOSOC], 24 July. – “Speeches”
Fischer, B. Rehm, J., Kirst, M., Casas, M., Hall, W., Krausz, M., Metrebian, N., Reggers, J., Uchtenhagen, A., van den Brink, W. & van Ree, J.M. (2002) Heroin-assisted treatment as a response to the public health problem of opiate dependence. European Journal of Public Health, 12, 228-234.
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Jepsen, J. (2001) What kind of science for what kind of decision? The discourse on a Danish heroin maintenance experiment. Contemporary Drug Problems, 28, 245-275.
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Mann, S. (1999) $150m opiates trade at risk, Melbourne Age, 18 December.
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Schaepe, H. (1999) INCB position on shooting galleries [letter to Father John M. George, Chaplain, CFC Waverley Community, 20 August].
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Despite this formal definition of the situation, it is clear that national interests are seen as involved in the choices. For instance, it was taken as a diplomatic setback for the U.S. when the member from the U.S., a former State Department official, was not re-elected in May 2001. The former U.S. drug czar offered the opinion that "it's a great loss to the international community to not have us in a leadership position.” (Associated Press, 2001).
 We consider here only the issue of the obligation under the 1988 Convention to establish a criminal offence, since it is on this basis that the INCB argues that governments cannot permit injection rooms. It should be noted that the 1988 Convention goes on to provide, in paragraph 4 of the same article, that states “may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment” for possession or purchase for personal consumption, “measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender”. A state might argue that a drug injection room was an “alternative to conviction or punishment”, where the state had announced it would hold in abeyance any enforcement of a formal legal offence of possession. This seems a defensible interpretation of the 1988 Convention, although it is clear that the INCB does not agree with it.