What Comes after the War on Drugs - Flexibility, Fragmentation or Principled Pluralism?

United Nations University, November 2015. 
James Cockayne and Summer Walker

In April 2016, diplomats, experts and civil society actors from around the world will gather for three days at a rare Special Session of the United Nations General Assembly in New York, called to address the world drug problem (UNGASS 2016). In some quarters, particularly in the Western Hemisphere, UNGASS 2016 is seen as a moment to rethink global drug control strategies. In other regions, UNGASS 2016 is viewed somewhat differently, as a time to build upon and strengthen the current approach to drug policy, as set out in a current Plan of Action adopted in 2009.

Throughout 2015, United Nations University (UNU) – a global think tank established by the UN General Assembly, and charged with contributing, through collaborative research, to collective efforts to resolve pressing global challenges – has been gathering stakeholders in a series of meetings at United Nations (UN) headquarters in New York, aimed at “Identifying Common Ground” ahead of UNGASS 2016. These meetings have addressed the relationship between contemporary global drug policy and public health, human rights, development and criminal justice. These meetings have been attended by delegates from more than 50 UN Member States, as well as representatives of 16 UN entities and 55 civil society and academic organizations.

Drawing on these consultations, this Policy Report outlines how the global drug control system works, including recent trends; describes three major perspectives going into UNGASS 2016: Orthodoxy, Scepticism and Swing Voting; explores the likely outcome of UNGASS 2016; and makes recommendations for strengthening that outcome.
The trend heading into UNGASS 2016 is becoming clear: Member States will largely coalesce around an affirmation of the existing regime, coupled with a call for flexibility in implementation of that regime. The United States and some Latin American countries have called for flexibility as a way to experiment with new approaches to implementing the existing drug control regime. Other states will, however, likely treat an agreement on flexibility as an acceptable response to their calls for respect for state sovereignty in setting domestic drug policy, including the use of strong punitive approaches.
There is consequently a danger that flexibility will lead, in time and after UNGASS 2016 is complete, to policy fragmentation: in practice, flexibility will mean very different things in different parts of the world, including being seen in some countries as lending support to existing, repressive drug control policies. We argue that the key to avoiding this outcome – fragmentation – is to ensure that flexibility is not treated as a code-word for unprincipled laissez faire, but instead is embedded in a process of collective drug policy development at the UN, based on a more detailed and holistic analysis by Member States and other stakeholders of ‘what works’ in drug policy interventions. UNGASS 2016, we argue, should be seen not as the end of a conversation about drug policy, but as an opportunity to set up a structured and inclusive conversation between 2016 and 2019, when the current Political Declaration and Plan of Action comes to an end, and a new one will likely  be adopted. We argue that UNGASS 2016 should initiate a conversation that, though leaving room for states to exercise flexibility and discretion, ensures that their policy choices are guided by three principles: 1) protection of human rights;  2) promotion of human development; and 3) guidance by the best available scientific evidence. We describe this as an approach based not simply on flexibility but on principled pluralism.

The Policy Report explores how four key issues will likely play out at UNGASS 2016 – penal policy, public health, development, and human rights – and identifies five areas of potential common ground that could set the stage for a discussion based on principled pluralism. On penal policy, we argue that while criminal justice and law enforcement-based approaches have been at the centre of global drugs policy for many decades, questions relating to penal policy – the role of capital, custodial and other forms of punishment – are central to drug policy debates in many parts of the world, going into UNGASS 2016. We show that many states are rethinking the role of domestic penal policy in drug control, experimenting with non-criminal penalties for minor drug offences, or diverting drug users into non-custodial intervention programmes encompassing medical, psychological, social services, employment and training, and other types of support and rehabilitation. Yet some states believe that questions of penal policy – including the use of the death penalty – are internal matters, not appropriately discussed in international forums. While we can expect the UNGASS 2016 Outcome Document to emphasize the importance of respect for proportionality, human rights and the rule of law, this will in part be due to the creative ambiguity these broad terms offer. Recognizing these constraints, our recommendation encourages accelerated action to develop a shared evidence base for global policy discussions