by Bill Bush

30 March is the 40th anniversary of the Single Convention on Narcotic Drugs, a multilateral treaty consolidating drug treaties going back to 1912.

It is part of a prolonged international effort to eliminate the abuse of opium and other drugs.

Seen as the solution, the 1961 convention soon showed itself inadequate. It was supplemented in 1971 by a convention on psychotropic substances, an amending protocol and in 1988 by a Convention against illicit traffic.

The preamble of that last convention is a dismal catalogue of the failure of 76 years of international effort. It acknowledges rising production, demand and crime. It recites that "children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade".

Since 1988, drug use surveys in Australia, overdose deaths, Royal Commissions revealing corruption and growth in burglary and other drug related crime show that things have become more desperate.

The original assumption that underpinned the international regime was that drug abuse would disappear if legal supply was eliminated for non-medical and non-scientific uses. The International Narcotics Control Board boasts the elimination of that supply. In its place is a thriving criminal industry.

30 years ago injecting drug use was a major problem in only 20 to 30 countries. It has now spread to 140. In Australia, the mean age of heroin first use is no more than 18 and falling. Apart from the current heroin drought – probably attributable to poor harvests rather than policing – price has been dropping and purity rising. These are indicators of greater availability.

Just how much worse must things get before we try a different tack?

Those opposed to alternatives like heroin trials and medically supervised injecting rooms insist on advance proof of effectiveness - something that they have never been willing to submit the international prohibition regime to. As with alcohol prohibition in the US in the 1920s, parents in Australia now have more to fear from our drug laws than the drugs themselves.

Having said that, it is often forgotten that the international prohibition regime is far less rigorous than its zealots make out.

For example, it is a basic principle of the 1961 convention that controlled drugs may always be used for "medical purposes" (art. 4(1)(c)). Under this exception countries like the United Kingdom continue to permit the use of heroin for maintenance treatment of addiction. This was also the case in Australia until 1953 when the Commonwealth banned the production and importation of heroin against the advice of the medical profession.

So far as the treaties are concerned, Australia could tomorrow and without a trial, permit the medical prescription of heroin. The International Narcotics Control Board has admitted as much (SMH, 18/12/99, p.3; The Age, 18/12/99, p. 8 & Canberra Times, 12/4/00, p. 4).

The 1961 treaty also permits controlled drugs to be used for "scientific purposes". The Board insists that this does not permit governments to trial medically supervised injecting rooms on the ground that only clinical trials of pharmaceutical grade drugs and not public health interventions are covered by the exception. The Board argues, that rooms are impermissible even if shown they improve health and public order. This is an extraordinary proposition and the four European countries - Germany, The Netherlands, Switzerland and Spain - that currently officially operate such facilities have told the Board to get lost.

Because of the Tasmanian opium poppy industry, Australia is more vulnerable to political pressure than, say, Germany. (Under the 1961 convention the Board is also charged with overseeing the legal supply of drugs.)

Criminal sanctions around personal use is a third example of unexpected flexibility of the treaties. Only when it became apparent that attempts to halt the supply of drugs were utterly failing to stem uptake and addiction were there international moves to make criminals of the very people the conventions were designed to protect - the users. Even so it is clear from the negotiating record that the 1961 convention did not require governments to make possession for personal use a crime. The 1988 convention retained for governments a wide discretion by, for example, making an obligation to establish such actions as crimes subject to each party’s "constitutional principles and the basic concepts of its legal system" (art. 3(2)).

The International Narcotics Control Board does not favour such interpretations. Unquestioning support for prohibition characterises its statements and those of its main financial sponsor, the United States. Even so, it is not for the Board to settle disputes on the interpretation of the treaties.

The challenge of the new United States drug controller in the film Traffic to think "outside the box" is also ours. The international drugs regime as interpreted by the International Control Board has not stopped drugs reaching our children. On the contrary it has made them more available. Moreover, as interpreted by the Board, the international regime is obstructing measures to keep drug users alive, contain disease and limit crime, corruption and other evils of the criminal trade.

A regime that so manifestly fails the public health and social objectives that must underpin it is unsustainable. At the very least, governments have been mistaken about what the treaties can achieve. A party may free itself from the treaties because of this mistake: there has been a fundamental change of circumstances.

[Bill Bush is an international lawyer. He is a member of Families and Friends for Drug Law Reform.]