UNGASS 2016: Watershed event or wasted opportunity?
Drug policy changes collide with UN bureaucracy
At about two o'clock in the morning on March 23rd, after tense negotiations in Vienna, the UN Commission on Narcotic Drugs (CND) reached a disappointing compromise. The hard-bargained draft of the outcome document of the UN General Assembly Special Session (UNGASS) on drugs taking place in New York from 19-21 April was adopted by ‘consensus’. Although its key features are by no means a surprise the draft is disappointing nonetheless.
A statement in the name of some 200 civil society organisations on the opening day of the CND warned that “the UNGASS is now perilously close to representing a serious systemic failure of the UN system … an expensive restatement of previous agreements and conventions”. Will the UNGASS 2016 go down in history as another wasted opportunity or have the debates leading to it laid a solid groundwork for systemic changes in the near future?
The preparatory process
The General Assembly decided at the end of 2014 that the UNGASS “shall have an inclusive preparatory process that includes extensive substantive consultations, allowing organs, entities and specialized agencies of the United Nations system, relevant international and regional organizations, civil society and other relevant stakeholders to fully contribute to the process”. The resolution also encouraged “the participation of all Member States and the provision of assistance to the least developed countries in the preparatory work undertaken by the Commission in order to work actively towards the attainment of the objectives and goals of the special session, and invites Member States and other donors to provide extrabudgetary resources for this purpose”.
One year later, after long negotiations in the CND on the modalities for the UNGASS, the decision was made that the CND should “lead the process” while the President of the General Assembly (PGA) was invited “to support, guide and stay involved in the process”. In order to “ensure an adequate, inclusive and effective preparatory process” in December 2014 the CND put an “UNGASS Board” in charge of all preparations, including drafting the UNGASS outcome document. The Board, chaired by the Egyptian Ambassador Shamaa, requested inputs from regional groups for the drafting process, a request that was also used by a number of individual countries to submit position papers. Meanwhile, the Secretary General expanded the mandate of the New York based UN System Task Force on Drug Trafficking and Organized Crime, operating under the joint auspices of the Department of Political Affairs (DPA) and the UN Office on Drugs and Crime (UNODC), to coordinate inputs for the UNGASS from all relevant UN entities. UNODC created a special website to collect all those inputs, plus those coming from civil society.
In the course of the negotiations, however, most of those other inputs have been ignored and the ungass2016.org web depository, rather than serving as a source of inspiration for the drafting of the outcome document, became a sorry substitute for meaningful participation. In fact, the drafting and negotiations process became a rather obscure process tightly controlled by the UNGASS Board, lacking transparency and drawing much criticism from reform-orientated countries and civil society. The Board initially produced an “elements paper” and later several drafts of the outcome document, which were discussed in multiple informal meetings where countries expressed their views, only to be confronted at the next meeting with a new draft where many critical comments had again not been taken into account. The Board applied a strong filter, not allowing any language to enter the draft text that could complicate its main aim to avoid controversy as much as possible and to reach a political consensus well in advance of the UNGASS. Proposals for new paragraphs that were considered too problematic ended up in a “parking lot” that in the end proved to be the burial ground for any contentious language about new challenges, abolishing the death penalty, harm reduction, or the establishment of an expert advisory group.
Political pressure to reach agreement on a draft of the outcome document was very high during the CND session of 14-22 March, where difficult negotiations took place over harm reduction, access to controlled medicines, the death penalty, proportionality of sentences, alternative development, traditional use and indigenous rights, and UN system-wide coherence. When negotiations got stuck, a package had to be bargained in which concessions on certain issues from one side were traded off against concessions from the other side of the drug policy spectrum. In the end that package deal allowed the adoption of a final draft outcome document that has now been “recommended for adoption” at the UNGASS. The adoption will apparently take place immediately after the opening ceremony on the first day out of fear that the fragile consensus could still break apart if its adoption happens only at the end of the three-day session, as would be usual and as scheduled in the provisional agenda.
The “appreciation for the inclusive, transparent and open-ended preparatory process for the special session” expressed in the draft outcome document (§8), is an embarrassing affront to the multiple complaints about how the “UNGASS Board” managed those preparations, coming not only from civil society but also from Caribbean and African countries. The mere fact that the small group of countries dominating the informal negotiations adopted such self-congratulatory language, while being aware of those complaints, is the ultimate proof of the shortcomings and exclusive nature of the preparatory process.
The outcome document
The final draft of the UNGASS outcome document reaffirms “the goals and objectives of the three international drug control conventions”, the commitment to implement the provisions of the 2009 Political Declaration and the determination to “actively promote a society free of drug abuse”. It also underscores that the three drug conventions “and other relevant international instruments” (a long-debated nuance) “constitute the cornerstone of the international drug control system”. It applauds that “tangible progress has been achieved” and that “persistent, new and evolving challenges ... should be addressed in conformity with the three international drug control conventions, which allow for sufficient flexibility for States parties to design and implement national drug policies according to their priorities and needs”.
On the positive side, the issue of access to controlled medicines received significant attention for the first time, and some other more minor steps forward have been made with regard to specific references to naloxone and overdose prevention, “medication-assisted therapy programmes” and “injecting equipment programmes”. The latter two representing compromise language agreed in the last hours for opioid substitution therapy and needle and syringe programmes, which were already at an earlier stage meant to be substitute language for explicit mention of “harm reduction”. Compared to previous declarations, progress has also been made with regard to the mention of “proportional sentencing”. A broad group of countries, however, expressed their disappointment at the end over the omission of any reference to abolishing the death penalty.
Some progress can also be detected in references to the need to address the socio-economic issues behind not only illicit cultivation but also production and trafficking, and that the focus should be on “alleviating poverty and strengthening the rule of law”. Drawing specific attention to the policy objective to counter “drug-related crime and violence” in addition to the traditional target of eliminating drug markets, could even be seen as a first tentative step towards accepting a harm reduction approach to the market as a whole and not just to the consumption side. These were issues that Mexico especially fought hard for during the negotiations. Still, last week, Mexican President Peña Nieto cancelled his scheduled presence at the UNGASS, which could be interpreted as a sign of Mexican dissatisfaction with the outcomes of the negotiations in Vienna.
The draft outcome document fails to acknowledge even the existence of many of the key drug-related challenges of the world today, let alone offer any operational recommendations to address them. The text reaffirms the targets of the 2009 Political Declaration, claiming “tangible progress” in the absence of any evidence or clear indicators for measuring that. Meanwhile, illicit drug markets are flourishing and the Panama Papers have demonstrated once again that countering money laundering requires the identification of the ultimate beneficial owners of anonymous shell companies, an issue the UNGASS outcome document avoids, casting doubt on the political commitment to really address the issue.
The outcome document includes multiple general references to full respect for human rights in implementing drug control, which is of course positive, but it fails to spell out what that really means and to take into account the recommendations coming from the competent UN agencies with regard to the right to health or indigenous rights. The conclusions that full respect for human rights requires, for example, decriminalization of drug use and respecting indigenous practices with psychoactive plants were easily negotiated away in Vienna. The EU, often claiming a moral high ground on human rights when it comes to issues such as the death penalty, then agrees, without blinking an eye, a common EU position to “maintain a strong and unequivocal commitment to the UN conventions”, which require the prohibition of the indigenous practice of coca chewing.
As Lisa Sánchez of México Unido contra la Delincuencia (MUCD) and member of the Mexican delegation at the negotiations in Vienna wrote in Nexos, “unless a miracle happens the sad conclusion of UNGASS 2016 will surely be that the international drug control system will remain for some more years a paradigmatic case of multilateral immobilism” and the outcomes “will demonstrate the inability of the UN to adapt to the current context and give itself consistency”.
The elephant in the room during all these months of negotiations has been the issue of cannabis regulation and the fear that it could blow apart the very foundations of the global drug control system. “As a starting point, it is essential that Member States use the UNGASS to reaffirm support for the three UN drug-control conventions”, was the first point the U.S. put on the table in its non-paper for UNGASS (June 2015) and any discussion about the treaties was blocked early on in the process. Tensions over cannabis regulations and treaty non-compliance are likely to spread quickly and widely, when several other U.S. states, including California, will follow in November this year. At the national level, after Uruguay, Canada’s new government has also pledged to regulate cannabis and, with varying levels of political support, legislative proposals for cannabis regulation are already under consideration in Guatemala, Mexico, Italy and Morocco.
Secretary-General Ban Ki-moon could still show leadership to “conduct a wide-ranging and open debate that considers all options” by announcing at the UNGASS the formation of an independent expert group to advise on system-wide coherence, SDGs, human rights and treaty tensions in the lead-up to 2019, as has been proposed by Colombia, Uruguay, Ecuador, Jamaica and Panama and many civil society organisations, including recent endorsements in The Lancet and by the International Crisis Group.
According to Alex Wodak, president of the Australian Drug Law Reform Foundation, “it’s clear now that international consensus is irretrievably broken and the fractures are multiple, deep, severe and irreparable. We can’t go back to pretending there is some kind of international agreement.” And without doubt, the intensive UNGASS process with its hundreds of events and contributions more than ever before demonstrated and documented the growing doubts and divergence. The outcome document itself may be very disappointing, but the UNGASS process altogether has firmly set the stage for fundamental changes in the years to come.
 Ibid, paragraph 9.
 Ibid, paragraph 7.
 E/CN.7/2014/16/Add.1, Decision 57/2, Preparations for the special session of the General Assembly on the world drug problem to be held in 2016, Commission on Narcotic Drugs, Report on the reconvened fifty-seventh session (3- 5 December 2014).