Concluding remarks, about the NGO Forum “Beyond 2008”

Vienna 7 – 9 July 2008

by Fredrick Polak, delegate for ENCOD

The NGO Forum Beyond 2008 that took place from 7 – 9 July 2008 (three full days) in Vienna was the first time that a large and diverse selection of NGOs was invited to debate current and future international drug policy.

It took place after complicated preparations which have been described already. For the Regional Consultation in Western Europe, see my report on the meeting in Budapest in Jan. 08.

The objective of this final, global meeting in Vienna was to produce a statement and a number of resolutions, based on consensus, and to be submitted to the CND at its March 2009 meeting, which will be the conclusion of the “Year of Reflection” and of the evaluation of developments since the UNGASS on Illicit Drugs in 1998.

Why is there no voting? Why is decision making only by consensus? The idea is that the impact of an NGO statement will be much stronger when it is based on a consensus of all NGOs present. More about this later.

A number of extensive reports have already been published on the websites of the ACLU, LEAP, IHRA, TNI, HCLU, among others.

First, a short resume of the results. After three days of hard work a text was adopted in consensus by 275 NGOs, ranging from hard core prohibitionists to radical legalizers. This statement means important progress on the following points, which of course I supported during the often laborious and unpleasant discussions:

· recognition of the harmful effects of existing drug control policies;

· a demand for the complete adoption of Harm Reduction and Human Rights (HR2) principles in drug policies;

· a demand not to engage in crop eradication unless there are durable alternative means of existence.

However, much is still to be desired. The core problem is not solved, and not even addressed. Prohibition is still in place, but not on the agenda.

The central issue for ENCOD and its 150 organizations was, and still is, to get alternative drug control policies on the agenda of CND and of individual countries. In the prepared texts for the NGO-meeting, this issue was lacking, and two efforts to get it added failed (more about this later).

Scope of this report

With an eye on future similar meetings, I will focus on how things are being done there, the rules, the language, and then on these questions: was my presence useful? what could I have done better?
Many of the participants were prepared for difficult discussions and negotiations, but I don’t believe many of us expected that we would find ourselves in what turned out to be a copy of the mode of operation of the Commission on Narcotic Drugs. That was at least somewhat familiar to me, because I had attended CND three times already as an observer, but I soon found out that is not the same as participating in it as a delegate.

It is helpful, especially when you are not familiar with this kind of text, to first glance through the full text, as published on the VNGOC website, to get the taste of “CND-speak”

The meeting room is very large. Every NGO had one delegate, and some were accompanied by an observer. Only delegates were allowed to speak, and to announce an intervention each one was given a yellow cardboard with the name of the organization. About a third of the delegates were seated behind a desk, the others only had a chair. All chairs had headphones. They were needed not only for simultaneous translation, but often also for listening to the original speech, because that could otherwise be inaudible.

Often, I did not know who was speaking. The floor of the hall is flat, except for a podium on which the chairman, Dennis Perron (Canada), and a few people from the secretariat of VNGOC were seated. When the chairman spoke, he could be seen by everyone, of course, but so many people were present and sitting at the same level, that when someone from the audience was speaking, I often could not see who it was. The chair addressed everyone not as a person, but by the name of the organization, which was often no more than an abbreviation. We received the list of participants only on the second day, and it took quite a while before I knew who was who.

As a matter of principle, delegates were not supposed to simply make a remark on a specific subject. Of course, many delegates did this anyway, so that a beginning of a discussion could arise. The chairman limited this strictly, and more and more strictly when time started to press.

The procedure consists of meticulously going through the complete text, sentence for sentence, even word for word. It became clear to me that the chair wanted concrete formulations, not arguments. One could propose to delete, change, or add a word, a few words, a sentence, or a paragraph – on the condition that the appropriate language was provided at the same time, so that if there were no objections, the new text was immediately ready. But it didn’t often happen this way. Mostly, one or more people did object, and came up with alternative formulations. That was allowed to go on briefly, but then the chair would ask for “new language”, meaning words that could replace the ones under discussion and function as compromise. Sometimes this approach quickly resulted in a new formulation, but more often a number of people made interventions before somebody came up with new language that was acceptable to everyone.

When that didn’t happen, which was often the case, the chair asked David Turner, one of the VNGOC officials, or a specific person among the audience, to come up with new language. This could lead to repetitive readings of the text, with slight changes, before one version was acceptable. By the way, this provided the audience with a few really agreeable experiences.

Hearing David Turner patiently and beautifully articulate these otherwise not particularly alluring texts over and over again, with slight changes, was a delight in itself.

This all has to do with the special and central feature of this kind of deliberation: the objective is to reach consensus when there is a wide range of opinions. Many of the views were mutually exclusive, leaving little or no room for compromise. A few times, the only available solution for the chair was to simply leave out a whole paragraph or a few disputed words.

Formally, every delegate can say “No, I cannot agree to this, this is of great importance to my organization, etcetera”. First this will lead the chair to try and find concessions, but when that is not reached, the smallest of the contending groups is put under increasing pressure to agree to some compromise. The chair would say something like: “With your indulgence, this formulation seems acceptable to most of us”, and later: “I understand that you are not happy with this, but can you live with it?”.

Chairman Perron impressed most people by the relaxed and friendly way in which he gradually increased this pressure, on all sides, in the many disputes that we had to handle. It must be said here that we had all in all no more than 16 hours for the decisive deliberations during these three days, the rest of the time there were side events on specific subjects, and receptions, and the evenings were free. The secretariat needed a lot of time to revise the texts. At the closing session the final version had to be ready for verification by the whole assembly before the formal adoption.

When two or more positions on a particular issue really seemed irreconcilable, the ultimate method to create consensus was this: the chair asked a few people from the opposing groups to leave the room and get together in the corridors to find a solution. This was sometimes referred to as a “caucus”.

On the morning of the second day, I unexpectedly had to participate in one such small subgroup. We were still at Objective 1, the first “Call” in the draft text:

1. Call upon Member States:

b. to reaffirm their commitment to addressing illicit/harmful drug use as a public health issue requiring expanded responses similar to the commitment to international best practice on HIV and human rights approaches,

Someone, I had no idea who it was or from which organization, suggested to insert “and public safety”, after “public health”. Nobody reacted, and the chair already wanted to accept this and continue, when my suspicion became too strong.

I objected that drug use should not be seen generally and automatically as an issue of public safety. Some people started to think about this and made approving sounds or nodded in assent, whereas the one who came up with this proposal was also supported by a few others.

The chair did not want to lose more time and when he saw that this was not going to be solved quickly, he suggested a small group to come up with “new language”.

So, suddenly I was conversing with some of my most ardent opponents, with the explicit goal of finding a compromise… They were with three men and one woman, and I was alone, because I hadn’t thought of asking someone to join me.

First, we explained our motives, and I must confess that I forgot which motive the others mentioned. I said that I feared that adding this public safety aspect here would be interpreted as a reason for even more law enforcement, or secret service involvement. After a few minutes, they retracted their proposal and said they would write a new, separate paragraph. They quickly came up with new formulations, until they wrote down this one, which I didn’t particularly like, but which seemed treatment as usual to me, so I agreed, and later it was accepted by everyone:

c. to enhance their commitment to address public safety issues resulting from illicit/harmful drug use utilising evidence based responses and in accordance with human rights norms as part of a balanced approach,

An inconvenient consequence of this procedure is that, as long as this went on, I could not participate in the proceedings in the main hall, and
I didn’t know what was happening there, and how long it would take for something important to come up. Since every organization can only be represented there by one person with the right to speak and vote, this means that deciding to play it hard at some point and getting involved in this kind of negotiations in the corridors, one must have close rapport with allies who can take over from you, or come out and warn you if necessary, that something more important is being discussed.

I will not try to describe the whole meeting, but focus on the other instances in which I think my intervention, or refraining from an intervention, was relevant.

I was just back in the room from the negotiation on “is drug use a safety issue” when we were at this point in the draft text:

2. Call upon the CND to:

c. evaluate its own work and identify ways in which its effectiveness might be improved.

Jack Cole of Law Enforcement Against Prohibition came to me, and gave me a slip of paper with a text in which he had replaced the word “ways” by “alternative paradigms”. I said ok.

A few minutes later, Jack got the floor and read his text. This was immediately followed by loud booing and hissing. Nobody raised his yellow carton, and the chair quickly continued. I was too slow and probably intimidated by the sudden furious antagonism, and still somewhat confused by my new experience in the caucus. When I realised that I should have shown support for this proposal, however strong the disagreement had been, it was too late. Jack seemed disappointed. I’ll come back to this painful moment later.

In the following minutes this paragraph was changed as follows:

c. evaluate its own work and policies and identify ways in which its effectiveness and impact might be improved, including decision making by vote in accordance with the rules of procedure of ECOSOC and its functional commissions, as appropriate,

which was explained to me later as meaning that consensus should not always be the one and only acceptable outcome, but that voting could take place.

During the discussion on Objective 3, the following phrase came up in the preliminary statements:

Underscoring that the rapid spread of blood borne infections, including HIV and hepatitis, and the increasing evidence of co-occurring mental health disorders and problematic substance use require greater attention to be given to the health and public health aspects of drug policy.

One of the DF people wanted to delete the word “problematic”. I objected, and said that the original formulation is correct because there is indeed a link with problematic substance use and mental health disorder, but that it is misleading to suggest such a link with substance use in general. It took quite a while to make this clear to the assembly and also, that I was serious about this. My objection was supported by a number of organizations, and in the following discussion the whole formulation was inversed, but the meaning remained acceptable.

Also underscoring that greater attention should be given to the health and public health aspects – in the widest sense – of drug policy, given the rapid spread of blood borne infections, including HIV and hepatitis, and the increasing evidence of co-occurring mental health and substance use disorders,

A little later this draft statement came up:

Recognizing that under the conventions States Parties – either as an alternative to conviction or punishment or in addition to conviction or punishment for a drug law offence – may provide that the offender undergoes measures of treatment, education, after-care, rehabilitation and social reintegration, but noting that this provision is not adequately implemented,

I remarked that all too often so-called treatment is started in situations where somebody is not addicted, but simply in conflict with the law, and that treatment institutions should beware of taking up these cases. Nobody seemed to disagree with me, but it took a while before, again, David Turner came up with the solution: insert the words “or appropriately” before “implemented”.

Then a few words were added that I wasn’t happy with, but this didn’t seem important enough to obstruct:

Recognizing that, consistent with the conventions, States Parties – either as an alternative to conviction or punishment or in addition to conviction or punishment for a drug related offence – may provide that the offender undergoes measures of treatment, education, after-care, rehabilitation and social reintegration, but noting that this provision is not adequately or appropriately implemented and further noting the technical advice available from UNODC on implementation,

These were the points at which I believe that my interventions were substantial (3 – 1 in my favour). Of course, I was also actively involved in a number of the other contentious issues that have been described in the reports that I mentioned already, but then I was one of a group of delegates of like-minded organizations.

Afterthoughts

At times I found it hard to decide which position to take. Refusing to accept a formulation, and thus breaking the consensus is possible, as I said, but that would probably have lead to the exclusion of the group that is seen as responsible, ENCOD. Then, all the others would simply go on and ultimately be in the position to say that they reached consensus, with only one or a small group of extremist organizations disagreeing.

My decision to stay in the consensus was for the following reasons: it would have no beneficial effect, and It would have weakened us in the future. Everyone now knows that we had wanted much more from this meeting but we supported the groups working for HR2. An important issue is how radical and moderate activist groups cooperate and relate during this kind of developments. It works best when both kind of groups can gain from not hurting each other.

I have a lot of admiration for the way in which many of our more diplomatic friends operated. I saw professionals at work, which is almost always a pleasure. I even felt some, begrudging admiration for a few of our DF opponents for their stubbornness and lack of shame, and their competence in misusing all options within the rules.

The tricks of this trade were never spelled out to me, but gradually it became clear how this procedure works, and that it also has advantages. An increasing number of organizations made it clear that they intended to break through the official resistance to Harm Reduction and Human Rights and spoke out along this line a number of times. The groups who objected to HR2, of which the US was the most determined, understood that their view was held only by a minority. That means that if no consensus could be reached, that would be seen as their fault.

I asked myself which system is more democratic, decisions by vote or by consensus, and I realized that this is more complex. More right of veto is not necessarily democratic and neither is more consensus.

The procedure can be subtle but also rough. It demands a long attention span. Not paying attention for a few moments may allow the adoption of a terrible piece of text, whereas being alert and sensing the atmosphere can make it possible to get a controversial proposal accepted, or at least discussed.

The “caucus” system can also be useful. It forces people who would normally refuse to talk with us, as some of the “Drug Free” people do, to get together with us and accept a compromise.

The core issue: the need to replace prohibition by regulation

ENCOD decided at the last General Assembly in June 2008 to do our best to get the issue of alternative drug control policies, or alternative paradigms as LEAP called it, on the agenda.

At the moment of LEAP’s proposal, however, the discussions on HR and HR, which were clearly the priorities for most of the delegates, were still in an early stage. The DF groups made it clear that thinking about alternative paradigms was not acceptable to them, and my hunch is that they would have refused to get together in a caucus, because that would signal a willingness to compromise.

The second consideration for me was that at the end of the first day I had submitted “new text”, to the same effect as LEAP’s proposal. I did not expect at the time that we simply wouldn’t have enough time left to discuss the new text proposals.

The big question, for the next time this kind of meeting will be held, is what will be the result of insisting on our core points, and of not yielding when the opposition is strong. An important factor will be whether we will succeed in framing our demands in such a way that they can be supported by the majority of NGO’s.

It is of course not certain what would have happened, but my feeling was that this time, it was too early. We would have failed, and come out of it in worse shape. This means that we must construct a strategy to get alternative policies on the agenda. It is no longer acceptable that this core issue is simply not discussed by governments, and not at the UN, at least not at the level of policy makers.

I thought I was very radical when during the NGO Forum I submitted the demand on behalf of ENCOD for the study of alternative drug control methods (which wasn’t discussed because of lack of time).

After my return home, by chance I found this text:

“That the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways – including the possibility of legalisation and regulation – to tackle the global drugs dilemma.”

This is Recommendation 24 In the Review of UK drug policy of 2002 of the UK Parliamentary Home Affairs Select Committee (which included David Cameron, then member of parlament, now leader of the Conservative Party). I was amazed when I realised that I had seen this text at the time, and completely forgot it – as if I also consider this a taboo.

It seems strange to me that I thought myself radical at the NGO Forum, in 2008, while the gist of the ENCOD proposal had already been published in 2002 as explicitly as possible, in a recommendation by a committee of the UK Parliament!

To conclude, I want to point out that, for the time being, the NGOs have made their contribution to global drug policy in the form of this consensual statement. Member states will now decide what to do with the statement.

Fredrick Polak, Amsterdam, 3 July 2008

Member of ENCOD steering committee and delegate to NGO Forum

Beyond 2008, member of the board of Stichting Drugsbeleid/Netherlands Drug Policy Foundation

Republish