Rethinking 'flexibilities' in the international drug control system - Potential, precedents and models for reforms (2018)

Background: Much international drug policy debate centres on, what policies are permissible under the international drug treaties, whether member states are openly 'breaching' these treaties by changing national regulatory frameworks and shifting priorities away from a 'war on drugs' approach, and what 'flexibility' exists for policy reform and experimentation at national and local levels. Orthodox interpretations hold that the current system is a US-led 'prohibition regime' that was constructed in an extremely repressive and restrictive manner with almost no flexibility for significant national deviations. This paper challenges these orthodox interpretive frameworks and suggests no absolute and clear dichotomy between strict adherence and 'breaches' of the international treaties.
Methods: This paper uses historical analysis to highlight the flaws in orthodox policy analyses, which assume a uniform interpretation, implementation and set of policy trajectories towards a 'prohibition regime' in the 20th century. It challenges some existing legal interpretations of the treaties through recourse to historical precedents of flexible interpretation and policy prioritisation. It then examines the legal justifications currently being formulated by member states to explain a shift towards policies which, until recently, have been viewed as outside the permissible scope of the conventions. It then examines a functionalist framework for understanding the likely contours of drug diplomacy in the post-UN General Assembly Special Session (UNGASS) 2016 era.
Results: The paper highlights that, contrary to current policy discourses, the international control system has always been implemented in a 'flexible' manner. It demonstrates that drug control goals were repeatedly subsumed to security, development, political stability and population welfare imperatives, or what we might now refer to under the umbrella of 'development issues.' The paper further demonstrates that policy prioritisation, inherent treaty ambiguities and complexities as well as the recognition of broader issues of security and development were just some of the ways in which member states have flexibly implemented the treaties over the last century. This has frequently occurred in spite of apparent contradictions between national policies and reigning interpretations of international drug control obligations.
Conclusion: UNGASS 2016 inaugurated a new era based on an evolving understanding of the UN drug control system. In this 'post-'war on drugs' era', national and local policy choices will increasingly hold greater relevance than international ones. Further, based on numerous historical precedents, international legal interpretations will likely continue to evolve and serve a reactive functional role in providing the formal scope to justify national and local deviations from past global norms. These shifting interpretations are, and will continue to be, reflected in an interim reliance on treaty 'flexibilities' to explain sustained international cooperation, even as that cooperation shifts to an entirely new implementation framework.