From a legal and political point of view there can be little doubt that the EU and some of its friends have been defecting by stealth from the UN drug conventions for years, thereby creating what is probably one of the most civilised models of drug control in the world.Europe gets away with this because it is one of the UN’s principal bankers. The approach is also symptomatic of the way in which the EU deals with big issues: it compromises until things get too hot, and the really big issue of the day is the economy, not drugs. Nor is drugs policy in any way prominent in the Lisbon Treaty. The EU’s attitude (shared by a number of other Western societies) also reflects the growing realisation that the UN Drug Conventions seemed like a good thing at the time, but that times have changed. At a more fundamental level there is also simply a clear if unspoken consensus that a full-blooded implementation of the Conventions in the EU is socially and politically unacceptable. This is the principal reason why European politicians and civil servants, both in their capitals and in Brussels, share a rare community of purpose on drug policies: “don’t rock the boat”.
The fact that (most of)Europehas effectively demilitarized since the fall of communism is hardly a secret. To most European governments security has moved beyond the logic of keeping large armies. What is less clear though is whether Europe today has the capacity in terms of law enforcement to protect itself against global organised crime in general, and against the way in which organised crime feeds off inconsistent drug policies in particular. The question is relevant because drug consumption, particularly of cannabis, has become a mainstream phenomenon in Europe (lifetime prevalence estimated at around 75 million people) and has proven to be virtually immune to public policy efforts to control, let alone eradicate, it.
The existence of this consumer market has created a political and legal no-man’s land: governments - which are bound by the UN Conventions and their own drug laws - will not and cannot supply drugs to consumers other than through medical treatment schemes. Those who don’t qualify for these schemes – the vast majority of users - will simply have to find the nearest criminal for their supply. In other words, governments have in effect outsourced a major element of social and economic control over society to the very people they claim they want to bring to justice.
For a European Union that preaches sound governance and the rule of law to the world this must become a problem sooner or later. Moreover, the EU’s “balanced approach” (i.e. balanced between reducing the demand and supply of drugs) is aptly named in as much as it achieves neither. In stead, it provides treatment and various harm reduction interventions on the demand side but goes no further, while on the supply side it is hopelessly ineffective and outclassed by organised crime. Perhaps the latter is just as well, because if law enforcement were to be really effective and the supply of drugs were to run dry, who knows what the impact would be on the stability of our societies in terms of health and public order.
There is little danger of a resounding law enforcement success however. So far - political rhetoric notwithstanding - the EU and most of its Member States have failed to take the necessary steps to make adequate resources available to deal with organised crime on a scale that would seriously affect it. The EU has innumerable national law enforcement agencies, some of which do not even coordinate at national, let alone EU level. The agencies that have been set up at EU level, like Europol and Eurojust, are mired in political infighting and paralysing bureaucracy. All this makes Europeone of organised crime’s favorite destinations in the developed world. This is certainly the view held by senior prosecutors, like Italy’s Piero Grasso or Spain’s Jose Ramon Norena Salto, speaking at a security briefing to the European Parliament last January.
The start-up capital of organised crime often comes from drugs, which as a commodity is easy to handle and, as we know, yields spectacular profits. In some EU countries, corruption is already in the bloodstream of public administration and indeed government. The situation in candidate countries is worse. But let us not always point the finger at the usual suspects: it is highly unlikely that west European ports should have become major international distribution hubs for illicit drugs without at least some local assistance. Opaque local rules on banking and taxation do the rest.
The degree of infiltration of the legal economy by the black economy is by its very nature hard to estimate. In Europe figures of up to 20% are mentioned, depending on country and author. The UN estimates that the proceeds from crime that enter the legal economy every year represent between 2% and 5% of global GDP. Once a particular sector of the legal economy is penetrated the logic of money laundering literally swallows up the competition and entire sectors of the economy – and government - fall into criminal hands.
The real dilemma for EU governments is therefore how to preserve their global political position, real or perceived (i.e. by voting with the US to maintain the UN drug conventions in their present form) while at the same time preserving their legitimacy at home in spite of the role they have given to organised crime in managing the drugs market).
Next steps - the case for amending the conventions
Given the dilemma our governments are in, beating up Bolivia in New York and paying it off with economic assistance that it cannot refuse was clearly the easiest option. In any case, it was clear once again at last month's CND in Vienna that European unity on reforming drug policy remains elusive.
It is much easier to leave laws in place than to get rid of them. Bad laws however undermine the rule of law. The European Union is a unique political construct based very firmly on the rule of law. It cannot afford to discredit the legitimacy that it has struggled to build up over more than 50 years. It should therefore be aware of the fact if laws on drugs are made irrelevant by consistently countervailing practice by governments and citizens alike there is no guarantee that other laws might not be equally ignored one day. Place this in the context of the interpenetration between the legal and illegal economies that is taking place on the back of the illicit drug trade and you begin to see the potential for the unraveling of a society based on the rule of law. I believe that this is both a good reason and a starting point for reviewing the UN drug conventions in the light of the lessons learnt since 1961, without getting into the usual legalisation vs. prohibition debate.
The next question of course is how this is to be done, or rather by whom? I am quite sure that it cannot be done without the consent and even leadership of theUS.Americain effect created the current system, and the liveliest debate on changing it is going on there. The EU may have the right kind of experience in humane drug policies but too many of its national governments depend on right-wing electorates at the moment and are unlikely to want to rock the boat by engaging in a fundamental debate on this unless they are firmly encouraged.
What may help both the USand the EU is the growing opposition in Latin Americato the excesses inherent in the system and the recent launch of the Global Commission on Drug Policy, which was inspired by the Latin American Commission convened by former presidents Cardoso of Brazil, Gaviria of Colombia and Zedillo of Mexico in 2009.
The first practical step would be for the US, the Latin Americans, and the EU to get together. All they have to agree on at this stage is to have a real and open debate about the conventions and the institutional machinery that has to implement them rather than the charades that we have witnessed in the CND in recent years. Such a debate should look at the facts only, and steer well clear of the moral fundamentalisms, be they “for” or “against” that have dominated this discussion for a century.
It is crucial that subsequent steps should not be prejudged at this stage. They should emerge from the debate and be in keeping with social and political reality and, to quote the 1961 Convention, with “the health and welfare of mankind”. To do this, our governments may have to take difficult decisions. That is why we voted for them.
The author is the former Head of the Drugs Policy Coordination Unit at the European Commission and a member of the advisory council of LEAP.
Brussels, 4 April 2011