Friday, October 07, 2011

UNDP Commission on HIV and the law looks at decriminalisation

The Global Commission on HIV and the Law, convened by the United Nations recently concluded the last of 7 regional dialogues, the high income countries' dialogue held in Oakland, California.

The objectives of the Commission are to:
  • Analyse existing evidence and generate new evidence on rights and law in the context of HIV, and develop rights-based and evidence-informed recommendations
  • Increase awareness amongst key constituencies on issues of rights and law in the context of HIV, and engage with civil society and strengthen their ability to campaign, advocate and lobby
Part of the focus of the commission's work has been to look at criminalisation of certain lifestyles and activities - including drug use, sex work, and men who have sex with men - and consider the potential impacts of such legal and policy environments in shaping the HIV epidemic and responses to it. It is notable that the idea of decriminalisation of personal drug use (as well as sex work and MSM) is not taboo and is widely supported within the historically pragmatic HIV policy arena. At UN level a number of agencies have made clear statements supporting decriminalisation in this context, including UNAIDS, and the General Secretary Ban Ki Moon;
“I urge all countries to remove punitive laws, policies and practices that hamper the AIDS response… Successful AIDS responses do not punish people; they protect them… We must ensure that AIDS responses are based on evidence, not ideology, and reach those most in need and most affected.”

Michel Sidibé, UNAIDS Executive Director, Joao Gulao, Gill Greer,
Tim Barnett and Festus Mogae (Former President of Botswana) agreeing 
on an anti-discrimination resolution at the Leaders on Discrimination 
session the 18th International AIDS Conference in Vienna, Austria on 
22 July 2010 (image thanks

Transform's senior policy analyst Steve Rolles was invited to join the expert advisory group for the High Income country dialogue, reviewing the background papers on the drugs issue and abstracts from civil society groups for the high income countries region in the run up to the Oakland dialogue.

Perhaps suprisingly, given the key role of policy and law in shaping risk taking behaviours amongst people who inject drugs (most obviously needle sharing), there were disappointingly few submissions from drug policy or harm reduction organisations. Steve was invited subsequently to attend the dialogue, joining - in the drug section of the dialogue - a drug policy activist from Portugal, representatives of  the Drug Policy Alliance, a harm reduction service provider from North Carolina, and a fomer special adviser from the White House ONDCP. The session video will be available online at some point (we will update this post and tweet when that happens).

Civil society groups were joined by Government representatives for the two day dialogue. Two US members of congress were present as were two of the 15 commissioners. 

 Congressman Jim McDermott (Right) among the participants 

Dialogue moderator, BBC World's Nisha Pillai

 Participant Deon Hayward from US based Women with a Vision

Congresswoman (and HIV and the Law Commissioner) Barnara Lee

Transform had the strong sense that the Commission report - expected early next year - will be based soundly on the voluminous evidence it has gathered from around the world on effective responses to HIV - making clear and unambiguous recommendations free from ideology and historic political taboos that have dogged many of these issues. It should be a strong advocacy tool for drug policy in the future - and a yardstick against which governments' drug policy responses in the context of people who inject drugs and HIV can be measured.

Whilst it will not be venturing into issues of regulated drug markets, it is likely to make a clear call for decriminlisation of drug users - and be very supportive of proven harm reduction interventions including needle and syringe programs, opiate substitution therapy (and hopefully heroin prescribing as an option), harm reduction provision in prisons and supervised injecting facilities. 

From the Commission website:
Global Commission on HIV and the Law
Many of the successes in mitigating the causes and consequences of HIV have taken root where laws have been used to protect the human rights of the marginalized and disempowered. For example, in some countries anti-discrimination laws have helped people living with HIV keep their jobs and their homes and look after their families. Laws to protect confidentiality have contributed to increasing confidence in heath systems, encouraging people to learn their HIV status and to access HIV prevention and treatment. Legal guarantees of property and inheritance rights for women and girls have helped to mitigate the social and economic burdens of AIDS. Still in many places across the globe, the legal environment is presenting significant challenges for sustaining and scaling up effective HIV responses. In many countries, laws and policies continue to prevent access to life-saving HIV treatment. Every day people living with HIV and people most at risk, including sex workers, drug users, prisoners, men who have sex with men, and transgender people, suffer stigma, discrimination and violence. Laws and practices that discriminate against women or fail to protect their rights, including the right to be free from violence, make women particularly vulnerable to HIV.
The Global Commission on HIV and the Law will interrogate the relationship between legal responses, human rights and HIV. The Commission shall also focus on some of the most challenging legal and human rights issues in the context of HIV, including criminalisation of HIV transmission, behaviours and practices such as drug use, sex work, same-sex sexual relations, and issues of prisoners, migrants, children's rights, violence against women and access to treatment. The Global Commission on HIV and the Law will develop actionable, evidence-informed and human rights-based recommendations for effective HIV responses that protect and promote the human rights of people living with and most vulnerable to HIV.


Sunshine Band said...

Why did you not tell them they made a basic error about drug use? They want to look at de-criminalising the use of drugs, There is no crime of using any drug other than opium. You are thus failing this initiative by letting the govt off the hook. You say you want regulation yet you miss the importance of this point, its the administration stupid. It's not an Act of prohibition because it does not ban the use of drugs, you see you are making this current policy to be more entrenched. We should start from the premise that given the Act does not criminalise the use of drugs, what activities ought to be outside the immediate concern of criminal law?

Sunshine Band said...

This subject is about ending stigmatisation of people - don't let drug users become labelled as criminals. Drug use was never a crime, it's that people are being persecuted for their interests making them criminals by association with drugs that you say can be de-criminalised. Well drugs are not subject to law, so we cannot de-criminalise drugs. This is why if we talk about controls over 'illicit' drugs we also let the government off the hook again. It's as if we deny the whole persons rights by shifting the arena of legal status from the person to the drug. A belief in the legitimacy of the expression "illegal drug" is tantamount to making slaves of the very people you represent.

Steve Rolles said...

This event was all about the impact of policy on people - and you are barking up the wrong tree if you think otherwise. There was absolutely none of the confusion you allude to. The discussion - and widespread agreement was about how the law as it exists and is administered impacts on health and wellbeing - specifically in the context of HIV in this case. The discussion went beyond the MDA1971 - it was a discussion between many states with many legal systems - some, like Sweden, do infact criminalise use specifically - and the 1988 UN convention - that we are all signatories to - is also intended to be read with the same intention (the argument that it is not legally binding under UK law is a dangerous misunderstanding of the international legal system).

The fact that people are being criminalised for posession/use - and how that situation can be changed to reduce the harms it causes was what was under discussion. Lets just agree on that and move to discussing what to do about it - as we did in California.

Anonymous said...

@Sunshine Band,
Absolutely no need to go calling people stupid, Steve very obviously is not stupid, as you are not either.
Also, why is it you don't test your theory and walk into a police station with some Cannabis and a few plants, to make the argument that you understand oh so well? You know, instead of sitting at your computer getting others to take your argument forward for you....

Sunshine Band said...

Yes Steve, I can see it's all very person centred in substance and worthy, my point only refers to the language adopted not the mind sets of the persons behind this excellent initiative.

Most perople do seem to think drug use is directly criminalised in the UK, but fortunately Parliament drew the line short of this, I say in order to open up the regulatory apparatus of the Act. I agree the international instruments are important in that they bind government (whilst they choose to be so bound), but my point is that if these provisions conflict with the Act itself, or the principles of administrative law, or the ECHR, then in fact it would be an error of law for a court to find for the govt on the basis of these treaties and conventions as they are, really are, non binding.

My point is not to detract from this, but to avoid entrenching a misconception that the MDA mandates prohibition. An Act that does not forbid use can barely be argued to be such an instrument of outright prohibition, and this is the outcome we all want, it to be used as it can be used (and should be used) as a tool of regulating persons with respect to dangerous drugs. So I say focus the language on decriminalisation of the person with a view to differentiating between peaceful and anti-social drug use, thanks.

Steve Rolles said...

criminalisation of possession is a defacto coriminalisation of use anyway in practical terms. There's little useful distinction. the commentary on article three of the 1988 convention is clear that it 'amounts in fact also to a penalisation of personal consumption'.

Im fine to talk about decriminaling possession, rather tahn decriminalising drugs and usually do when possible. The lack of clarity about what decriminalisation usually means - ie moving from crimianl to civil or administative sanctions for possesion offences - doies not stem from our misrepresentations (quite the opposite) or a misunderstanding of the the MDA. Its mostly down to poor explanation provided in media coverage - somkething we actually tryu hard to counter.

Sunshine Band said...

Anonymous - actually I became a lawyer to help people charged with offences, not to find myself struck off for professional misconduct due to some misconceived act of martyrdom. My circumstances if I was to do this would be no different from the hapless persons who find themselves charged without volunteering.

I wasn't calling Steve stupid - I was playing on the "it's the economy stupid" catchphrase that means that you should never ignore a pervasive point or you will never Win.

Steve you are right when you say "criminalisation of possession is a defacto coriminalisation of use anyway in practical terms" and you are right that the international treaty targets use directly. But you are missing my points; this is a complaint about how govt make policy that is at odds with the primary law / human rights / administrative law to comply with their non-binding international obligations. This is why I am complaining that Transform let govt off the hook for this by frequently referring to policy as if it was somehow entrenched within the Act itself. Yes, of course it's hard to use drugs unless somebody possesses them, but that really truly isn't my point is it? The distinction that the Act is not a tool of prohibition is vital for any critique of policy because it exposes the way we are tricked into accepting these disproportionate measures as somehow being he inevitable consequence of our law, and of the international instruments. Given that I have just explained how both of these are in fact not what they seem to be, what possible justification can there be for repeating that the law forbids the use of drugs?

Im fine to talk about decriminaling possession, rather tahn decriminalising drugs and usually do when possible. The lack of clarity about what decriminalisation usually means - ie moving from crimianl to civil or administative sanctions for possesion offences - doies not stem from our misrepresentations (quite the opposite) or a misunderstanding of the the MDA. Its mostly down to poor explanation provided in media coverage - somkething we actually tryu hard to counter.

Steve Rolles said...

I absolutely understand all that but... the point is that the injustice is happening and it is that reality that needS to be changed. Im sure we can agree on that. Whether it is due to the flawed legislation, the mis-administration of the legislation, or both, is not the primary question. I dont share youre view on the importance of the distinction even if I agree it exists. My concern is with stopping the bad things that are happening now from continuing. The key, in our view, is highlighting that the outcomes are bad and that alternative approaches are better, not focusing on the semantics of the process. Thats a political decision - not a technical one. If you want to run with the technical point go for it but the endless criticism of people who dont is counterproductive. You really dont need to persuade me on technical front. I just dont agree its a useful basis for a political campaign - not for Tranasform anyway. For me its a technical obsercvationm to make in journal or blog. Not a whole campaign. I dont ascribe the same importance to it as you do and I dont think it fits into the popular discourse easily - or is neccassary.

Steve Rolles said...

SB has asked me to remove the final para from his previous post - unfortunately, I cant edit postings.

Frank said...

I always find these occasional exchanges between Sunshine Band and Steve R very interesting. The technical law issues are very real but i, for one, see the role of SB's legal debate as of greater importance further down the road to legal regulation. Right now we are in an information war and Transform's role at this moment in time is to promote the platform for debate and to inform that debate.

And i must say they are doing an excellent job of this.

Im certain, however, that Transform have bigger fish to fry than HIV law, which leads me to my derailing follow-up to a question i asked Danny a couple of months back about the role of banking in the drugs trade.
It has recently come to mainstream attention that the banks play a pivotal, if not primary role in global drug trafficking (see Guardian article on Wachovia's laundering of $380bil. of Mexican drug money).

My question is what are Transform doing right now in order to take the fight to the banks? Thanks to alternative media the tide is rapidly turning against the banks and corporations that exact control on us and dominate all of media and politics (see OccupyWallStreet). This is surely an opportune time to strike a blow of truth against the banks and govt organisations that hold all the cards in this War on Drugs. Transform's progressive logic and leadership has a lot to offer the emerging disgruntled "99%" if for nothing other than that the enemy is a shared one - the Banking elites (F.D.R's "economic royalists")

There is an opportunity here for Transform to reach out to those it represents and deal serious blows to the elites, riding in on the wave of popular uprising. Where is Transform's voice in these times of change? Is it being muted by billionaire hedge-fund managers such as Soros?

Sunshine Band said...

Frank - why is my critique more relevant further down the road? I don't see that at all - it's fundamental now and I am at a lost to understand why Transform insist it's not important - it actually goes to the very core of the current problem and their raison d'etre. We are not regulated as Steve wants us to be, and this is facilitated through treating persons as objects instead of subjects. This is illustrated through the error of law that shifts nouns and verbs in legislation and shifts the focus to drugs not persons. The law is there to regulate persons with respect to drugs, not the other way round, this is why we need to rescue the threshold principle for proportionate interference into liberty. It's not something that is substance led, it is outcome or conduct led. The result of agreeing with the prohibtionist constructs is that drug users are made into no more than slaves, akin to property that is absolutely illegal. Yet many are so entrenched in the propaganda coup that they prefer to stay in it when it would be so simple to expose it as flawed.

How can it also not be a useful point to tell people that the law is something which is being administered by govt, by their policy, and that policy is at odds with the primary law eg does not forbid the use of drugs and does not create a class of illegal, or illicit, or even legal drugs?

Anonymous said...

@Sunshine Band,
But you're not a practising lawyer are you?
Whilst I admire what you do I must say you should be taking you're own arguments forward yourself.
Too many people have taken your arguments forward and failed....

Anonymous said...

The task of a progressive political campaign should be to help find a way for society to consider drug use as a choice that people are free to make in accordance with our fundamental liberties and to show how these rights are being violated by current maladministration of drug law because the persons concerned with certain substances who do not violate the rights of others are being equated with the imagined illegal object and stripped of all fundamental rights. SB has explained how this comes about, through errors in law, although it has been the sentiment of drug activists for ages.

Sunshine Band said...

Anon - I already told you that I am a lawyer although I have not been in legal practice for some time. No, I don't grow cannabis and I am not prepared to construct a prosecution of myself. It's a learning curve and tvery very few people have used any of these arguments and I haven't had a single complaint. Ed Stratton who was really the main user of our argument (albeit in embryonic form) is now taking it to the ECHR and the CCRC - so it's not failed, it's just not been heard properly yet. I am not going to get into the whole explanation about what happened in his court hearing, except to say there is a very serious complaint about judicial misconduct and government lawyer misconduct to be heard by the CCRC. Apart from him, there is Alan Taylor who is going to approach the whole thing again in the light of what we learnt about interference into these cases. I don't think other people have failed as such although some decided to start the process but gave up when the Crown Ct dismissed it (you see the Crown Ct does not carry proper jurisdiction to hear these cases anyway).

By the way, the principle that this is a bona fide argument for a court has been established here very recently:

the prof speaks sh*te said...

I agree very much with Frank that the banks are critical here. Given that the global financial system is currently in a state of flux, I think now is a particularly good time to 'take the fight to the banks', as Frank puts it. Commodity markets (whether in heroin or DVDs or textiles) are inextricably linked with systems for moving money around.

Steve Rolles said...

SB - Nothing we are doing conflicts with anything you say. We have campaigned in front of banners saying the 'war on drugs is a war on people'; Its a core part of our message. I neither disagree with your analysis (well, theres a few issues but generally I agree) nor think it unuseful. I just, as i have endlessly repeated, dont think its apporpriate as the basis for our public engagement. I think 'no such thing as an illegal drug' is not a good campaign slogan - its the subject of an interesting journal piece or essay. I dont think the concept in itself has the transformative power you give ascribe it or that it is the key.

That doesnt indicate a lack of respect for your endeavours - its just a difference of opinion and emphasis. I am personally much more interested in the difference between the way certain drugs are treated in practice (something we highlight *all the time*). That is a much more useful area of work IMHO.

We outline the outcomes of current approaches (in law and in administration of law) and say how we think things should change and the outcomes that would bring. That is absolutely crystal clear to everyone we engage with. I simply dont accept the language constructs are a massive hurdle. In our extensive experience that just isnt the case.

Your analysis - whilst entirely valid - would IMHO not improve our messaging or impact in the vast majority of contexts.

There are many different voices and interests in this debate and they all bring different things to the table and have different perspectives. All are valid, but as an overarching reform group we have to make decisions and judgements as to what will most effectively help lever change in terms of where we put our very limited resources. We have come to a considered judgement about our approaches and that we dont choose to realign our language in all the ways you suggest or might want: that doesnt mean you are wrong or that we havent taken your thinking on board in some of our work, or that its written in stone.

The stuck record nature of the critique honestly doesnt help though. There needs to be an acceptance at some point that different groups will approach this issue in different ways. This is like groundhog day.

Steve Rolles said...

Re Banks - its something we have been considering. There is some discussion of money laundering in the upcoming count the costs crime briefing, and a Transform drugs and organised crime paper due later in the year. There will be more in the Count the Costs economics briefing.

In some ways though I wonder if it isnt possibly the wrong fight for us to proactively lead on. We are primarily concerned with drug law reform, not banking reform. We can highlight the issues with drug money and banking, but I dont think it can be a major front of our work - we just dont have the resources - much as we might like them, and there are numerous areas that we could engage more in. We have to pick our battles/ priorities. Maybe we are better lighting fires for other groups to take an interest.

Up for being persuaded on this ofcourse.

Steve Rolles said...

SB - re the legal cases - thats kind of my point. This sort of analysis may be very useful in a legal/court environment. That doesn't neccassarily translate into a popular campaign position.

Frank said...

SB - like Steve i understand and appreciate your argument but believe there are more important battles to fight first - that is drawing more people into the debate and consistently engaging in the public discourse. Technical legal arguments can be bashed out when the public is on side and ready to seriously challenge the current regime - i honestly don't believe Joe Public is ready to digest what you are talking about SB.

Steve is absolutely right about choosing your battles...

For starters, here is the Guardian article on Wachovia's (now Wells Fargo) laundering of £380bil. of Mexican cartel money:

This is the most important story of the year in my opinion. But the banks relationship with drugs goes far deeper than simply laundering the cash. As Max Keiser points out the big banks are all technically insolvent - ie. the drug cash that arrives in limousines and is delivered to the basements on Wall St on a Friday afternoon is the PRIMARY source of liquidity oiling the international banking machine. Without it, banking is doomed.

Despite the apparent gravity of this monetary issue, it can be considered superficial as compared to the social evils wrought by the banking elites. We think of the War on Drugs as a social problem exacerbated by reactionary law and politics and mired in historical preference, but the reality is it is an important tool for oppressing the 99%.

Anyone could tell you the biggest guzzlers of cocaine are bankers and yet those hardest hit by the drug laws are the very poorest and downtrodden. This is a truth we live with on a daily basis but we forget to ask the question: "why is there one law for THEM and another law for US?". The answer is simple: because they are the elites and we are the 99%. Look at the looters that went to jail for stealing a bottle of milk, and then look at the 'looters' in the city of London who actively attack sovereign economies for profit - the only difference between them is the bankers have a traders license and are rewarded with the title 'market-makers'.

We live today under the thumb of banking, corporate and media oligarchs. Out-right slavery was thought to have been abolished, but it was simply replaced by a system of monetary slavery, the greatest triumph of which being to convince us that we are free and that money works for US. The War on Drugs is simply one of the tentacles of this self-proclaimed "soft-empire" of the elites (see Rockefellers, Rothschilds) which aims to keep us impotent, dumbed-down and servile.

Drugs policy will NEVER be substantially reformed under the current regime. It does too good a job of separating the richest from the poorest and triggering wars, wars which profit the banks as they back BOTH SIDES, as they have been doing for centuries.

It is imperative that Transform keep banking firmly in the crosshairs as the "99%" wake up and demand REAL HISTORICAL change. There is an ocean of young people who are realising that they and their ancestors have been duped and that reform of the system is not enough. These people are thirsty for ammunition against the banks, they know these guys are evil but lack the ability to articulate it properly. The War on Drugs is perhaps the cruelest example of what the 'economic royalists' have done to us and in this respect, it is surely Transform's responsibility to weaponise the debate, to stand with the oppressed and recognize that the US and THEM must stop, that reform is not enough, that rule of law and transparent regulation must exist for all.

Banking is behind the curtain of most socio-economic problems today (and has been for centuries). Nothing serious can be achieved without tackling this.

Frank said...

A new book on the Wachovia laundering story is coming out by Ed Vulliamy (who wrote the Guardian article). 'Amexica: War Along the Borderline':

"Talked to a man called Antonio Maria Costa...[He posits that] laundering of vast quantities of the profits of drugs and, of course, the calamitous violence that is the scourge of Mexico, is basically propping up the banking system. It is a major pillar of the banking system. Without it, it would have collapsed long ago."