International Law Drugs, International Regulation, and Criminal Liability
by
Neil Boister
  • LAST REVIEWED: 21 November 2016
  • LAST MODIFIED: 26 April 2018
  • DOI: 10.1093/obo/9780199796953-0104

Introduction

Various standard criminal drug offenses have been enacted into law in most, if not every, state around the world. These offenses include familiar “supply” offenses, such as the agricultural production, manufacture, and traffic of drugs, as well as “demand” offenses, such as use and possession of drugs. National laws criminalize these particular actions in regard to drugs specifically identified as harmful. The particular architecture of these laws varies from state to state, but these national laws conform to structural frameworks agreed to by those states in multilateral treaties adopted for this purpose—the “drug conventions.” Three key elements in the drug conventions determine the scope of national drug offenses. (i) The foundational provision in the drug conventions is Article 4(c) of the 1961 Single Convention on Narcotic Drugs (article 5 of the 1971 Psychotropic Convention in similar terms), in terms of which states’ parties agree “to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.” (ii) The material scope of this limitation (i.e., the drugs or substances or both to which it applies) comprises those drugs listed in the schedules to conventions (the conventions do not spell out the criteria for initial listing but do spell out criteria for adding substances, criteria applied by the Commission on Narcotic Drugs acting on the advice of a WHO Expert Committee on Drug Dependence). (iii) Further provisions contained in Article 36 of the 1961 Single Convention, Article 22 of the 1971 Psychotropic Substances Convention, and Article 3 of the 1988 UN Drug Trafficking Convention, provide for precise obligations to criminalize specific forms of drug-related conduct. These three elements function together to proscribe the supply and use of drugs globally; they are intended to circumscribe the way states are permitted to respond to nonmedical and scientific supply of, and demand for, listed substances, and to lead indirectly to the penalization of individuals who engage in these activities. They are the foundations of global drug prohibition, a product of cooperation among states during the 20th century. However, their precise scope and meaning is a matter of increasingly heated debate, as this system is increasingly subject to criticism based on its failure to achieve its goals and negative impact on individuals and society.

General Overviews

Nadelmann 1990 places the development of the system of drug prohibition in a policy context by labeling the resulting system a “global prohibition regime”, built through interstate cooperation around the suppression of crime, and emphasizes that these regimes reflect not only dominant political and economic interests, but also the moral views of the “transnational moral entrepreneurs” who seek a cosmopolitan consensus for the prohibition of certain activities. Bassiouni 1972 provides an overview of those provisions that control licit supply and use of drugs—the “licit drug control system”—isolating its three main elements: the estimates system in which states are obliged to provide estimates to central authorities of the drug production and needs; the certification system where drug exporting states are required to certify drug exports and the importing states to certify importation; and the provision of statistics of supply and use to the UN supervisory authority, the International Narcotics Control Board (INCB). Chatterjee 1981 is the principal work analyzing the international law regulating licit activities in regard to drugs, providing a chronological examination of the development of the system up to the early 1980s. It can be supplemented by UN sanctioned commentaries, which offer an article-by-article focus on the provisions of the Single Convention on Narcotic Drugs, completed in New York on 30 March 1961; the Convention on Psychotropic Substances, completed in Vienna, 21 February 1971; and the Protocol Amending the 1961 Convention on Narcotic Drugs completed in Geneva, 25 March 1972. Chatterjee analyzes the scheduling of drugs under WHO advice and examines the policy control of the UN’s Commission on Narcotic Drugs (CND) and the technical supervision of the INCB. Boister 2001 also functions as a complementary volume to Chatterjee 1981, as it is entirely concerned with the “illicit drug control system”—both the substantive criminalization provisions and the provisions for international procedural cooperation found mainly in the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988. A more up-to-date but very brief description of the entire system is provided by Leroy 2015, which also attempts to counter attacks on prohibition. For more recent official views of the problem the INCB’s Annual Reports (International Narcotics Control Board 1992–) are a useful guide, as are the United Nations Office on Drugs and Crime’s World Drug Report.

  • Bassiouni, M. Cherif. “The International Narcotics Control Scheme: A Proposal.” St. John’s Law Review 46 (1972): 713–766.

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    A survey of the eleven then extant international instruments devoted to drug control, concluded up to 1972, which identifies its three main features as the estimates system, which controls the quantity of drug production; the certification system, which requires authorization by both exporting and importing state; and the system for information exchange.

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    • Boister, Neil. Penal Aspects of the UN Drug Conventions. The Hague: Kluwer Law International, 2001.

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      Comprehensive review of the substantive crimes in Article 36 of the Single Convention, Article 22 of the 1972 Convention, and Article 3 of the 1988 Convention. It also discusses at length the modes of procedural cooperation in the drug conventions, including provisions for extraterritorial jurisdiction, police cooperation, legal assistance, and extradition.

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      • Chatterjee, S. K. Legal Aspects of International Drug Control. Dordrecht, The Netherlands: Martinus Nijhoff, 1981.

        DOI: 10.1007/978-94-011-9263-7Save Citation »Export Citation »E-mail Citation »

        Chatterjee’s book is an encyclopedic chronology of the development of the licit drug control system. He shows how the international legal response to the Indochinese opium trade shaped the international drug control system. He analyzes organizations such as the UN’s Commission on Narcotic Drugs and the International Narcotics Control Board. The main focus is the Single Convention on Narcotic Drugs and the 1971 Psychotropic Convention.

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        • International Narcotics Control Board. Annual Reports. 1992–.

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          The INCB’s reports comment on the functioning of the international drug control system, analyze the world situation by continent, and pick up on particular thematic issues.

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          • Leroy, Bernard. “Drug Trafficking.” In Routledge Handbook of Transnational Criminal Law. Edited by Neil Boister and Robert J. Currie, 229–246. 1st ed. Abingdon, UK: Routledge, 2015.

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            Leroy’s chapter explores the history of the transfer of drug control from the League to the United Nations, before providing a short tour through the purpose of the drug conventions, the institutionalization of drug control, the classification system, regulation of trade and cultivation, trafficking, and measures relating to use. A significant part of the chapter is devoted to implementation challenges such as legalization and the war on drugs, and to advocate for a balanced but pro-prohibitionist approach.

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            • Nadelmann, Ethan A. “Global Prohibition Regimes: The Evolution of Norms in International Society.” International Organization 44.4 (1990): 479–526.

              DOI: 10.1017/S0020818300035384Save Citation »Export Citation »E-mail Citation »

              Contextualizes the international drug control system as one of a number of “global prohibition regimes” built around the suppression of crime. Argues that these regimes reflect both dominant political and economic interests in international society and cosmopolitan moral views. Identifies “transnational moral entrepreneurs” as significant agents for the construction of these regimes. Available online for purchase or by subscription.

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              • United Nations Office on Drugs and Crime (UNODC). World Drug Report. 1997–.

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                Detailed analysis of the global drug problem accompanied by statistical data.

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                Journals

                Most specialist criminal law journals carry material on the legal aspects of national drug offenses, but there are a few comparative criminal law journals with a broader scope. Some do carry articles looking at narrow legal aspects of drugs enforcement, such as Snider 1995, a study in the Criminal Law Forum on international cooperation in the forfeiture of the proceeds of drug trafficking. Specialist criminological journals such as the British Journal of Criminology carry criminological analyses of drug offending and state responses, such as the groundbreaking study Hughes and Stevens 2010 on the Portuguese decriminalization of drugs, which concluded it did not lead to major increases in drug use. Occasional issues of international law journals carry updates on the development of the international drug control system such as Waddell 1970. However, few journals specialize on international law, drugs, and crime. A number of specialist drug control journals, although they are not wholly dedicated to the penal aspects of drug control, do carry material on drug offenses. Perhaps the most relevant to the international drug control system is the Bulletin on Narcotics. Although publication has been intermittent and the journal has been most concerned with scientific, medical, and licit control issues, it does include studies of a legal and policy nature, such as the Legget 2006 survey of gaps in current knowledge about cannabis production and use. Addiction, published since 1884, is multidisciplinary but does sometimes carry material of a legal nature, such as the MacCoun 2011 study of the lessons to be learned from the Dutch system of legal sale of small amounts of cannabis in “coffee shops.” Other multidisciplinary journals such as the International Journal of Drug Policy Control also occasionally carry legal and criminological pieces, such as the Bewley-Taylor 2012 call for recalibration of the system. Human Rights and Drugs, again sporadic, is the only human rights journal dedicated to human rights and drug issues and carries pieces such as the Bi 2012 human rights critique of the use of capital punishment for drug offenses in China.

                Development of the International Drug Control System

                The international drug control system has developed around the framework of the international drug conventions. These conventions emerged in response to the export of opium into China in the 18th and 19th centuries, and subsequent efforts to try to extinguish the trade. Since the early part of the 20th century the system has been shaped heavily by US influence and US domestic policies. Finally, it has taken on an institutional life of its own, first as an independent system, and then under the auspices of the League of Nations, until the United Nations took over in the immediate postwar period.

                The Roots of Global Drug Prohibition

                The roots of global drug prohibition lie in the response to the 19th-century opium trade to China, and the slow shift from reliance on opium as a valuable product to the prohibition of opium as a valuable method of control in foreign policy. China had not had a significant opium consumption problem until European and North American traders began to sell the drug produced in Malaya and Bengal into China in the second half of the 18th century. The British East India Company, which had a monopoly on production and which grew rich on receipts from opium, was particularly active using both legal and illegal methods to smuggle the drug into China. Chinese official resistance and prohibition of import of the drug was overcome by force through the fighting of the opium wars by European powers from 1839 to 1842 and from 1856 to 1860. Useful texts on these wars include Holt 1964 and Inglis 1976, while Trocki 1999 characterizes the wars as the way in which China encountered the West. The negative public response to these wars, the nadir of Western intervention in the Far East, led to the first international drug control meeting, the Shanghai Opium Commission held in 1909. In time, drug control treaties were concluded, beginning with the International Opium Convention, done at The Hague, 23 January 1912. The League of Nations made some progress when it took over control of the system with the International Opium Convention, done at Geneva, 19 February 1925, but the major step forward was the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, done at Geneva, 13 July 1931. Jennings 1997 is particularly valuable on Japan’s ambiguous experiments with drug markets in the 1920s and 1930s in its colonies and in the parts of China it invaded. After World War II, drug control came under the auspices of the United Nations, which drafted the 1961, 1971, and 1988 Conventions and the 1972 Protocol. An exhaustive account of the early phase of the development of the international system is provided in Bailey 1935, which reaches back as far as the mid-19th century in detailing steps against the trade. Bailey describes how the licit drug control system was developed before any attention was paid to the problems of the illicit drug traffic, which inevitably followed once licit drug control was established. Eisenlohr 1934 is more focused on the international elements of this phase of development. Eisenlohr describes and analyzes the establishment and role of the Opium Advisory Committee to provide policy direction for the system and the Permanent Central Board to provide technical supervision. Lowes 1966 (reprinted in 1981) covers similar territory but looks at how the concept of relying on a commission that met annually was established as the business model for international drug control. Walker 1991 explains how the prohibition of opium became a valuable tool in foreign policy strengthening of national security interests in the period four decades from the signing of the first drug convention at the Hague in 1912. McAllister 2000 provides a comprehensive account of the century-long history of construction of the global drug regime, emphasizing the complex nature of the domestic actors and policies who have had an impact on the development of this policy.

                • Bailey, Stanley Hartnoll. The Anti-Drug Campaign: An Experiment in International Control. London: PS King, 1935.

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                  Tells the early history of the international drug control system from national legislation in France (1845) and the United States (1895) through the development of the international instruments put in place under the auspices of the League of Nations. It reveals that many of the concerns of modern drug control, including control of precursor substances, were apparent even at the early stages of the development of the system.

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                  • Eisenlohr, Louise Elizabeth Sarah. International Narcotics Control. London: George Allen and Unwin, 1934.

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                    A detailed study of the early phase of development of the international drug control system with a mainly institutional focus, particularly on the work of the Opium Advisory Committee and the Permanent Central Board, which controlled the estimates system.

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                    • Holt, Edgar. The Opium Wars in China. London: Putnam, 1964.

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                      A leading work on the Opium Wars in China fought by European powers to force China to accept the traffic in opium.

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                      • Inglis, Brian. The Opium War. London: Hodder and Stoughton, 1976.

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                        Inglis makes the point that international condemnation of these actions lead to the development of the international drug control system.

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                        • Jennings, John M. The Opium Empire: Japanese Imperialism and Drug Trafficking in Asia, 1895–1945. Westport, CT and London: Praeger, 1997.

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                          Jennings charts Japan’s somewhat tortured relationship with opium as it rose to the status of an imperial power in the East Asia. In contrast to the view propagated at the Tokyo International Military Tribunal of its use of opium as a tool to extract value from newly conquered territories, he paints a more shaded picture of an incoherent policy that veered between drug reform and exploitation.

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                          • Lowes, Peter D. The Genesis of International Narcotics Control. Geneva, Switzerland: Librairie Droz, 1966.

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                            Lowes’s focus is on the development of the Opium Advisory Commission, which was established in 1908. He shows that, from the outset, states were concerned about drug control in other states. His view is that this set the model for later developments, proof of which is that the commission approach is still with us. Reprinted in 1981 (New York: Arno).

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                            • McAllister, William. Drug Diplomacy in the Twentieth Century: An International History. New York: Routledge, 2000.

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                              McAllister’s comprehensive work focuses on the disparate forces impacting on global drug policy formulation, and the link between this process and broader processes influencing the negotiation of these treaties, such as trade policy and national security issues.

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                              • Trocki, Carl A. Opium, Empire, and the Global Political Economy: A Study of the Asian Opium Trade 1750–1950. London: Routledge, 1999.

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                                Trocki provides a detailed history of the period in which the foundations of the current relationship with opium were laid down, showing how opium shifted from being a mainstay of imperial economies to a prohibited substance.

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                                • Walker, William O, III. Opium and Foreign Policy: The Anglo-American Search for Order in Asia 1912–1954. Chapel Hill: The University of North Carolina Press, 1991.

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                                  The specific focus of Walker’s outstanding work is the not fully explored diplomatic history of the period from the negotiation of the first drug convention in 1912 until the United States achieved its goal of global prohibition in the immediate postwar period.

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                                  US Influence on the Growth of the System

                                  The United States has been the most active state in engineering the penal aspects of international drug control. The US view that the nation is a victim of illicit drug use has been a powerful influence on the international system’s development. Musto 1999 is perhaps the best single work on the US influence on drug prohibition. Treating the role of US churchmen and congressmen, who acted as normative entrepreneurs both at home and internationally, it is a social history of the prejudice and fear that motivated efforts at drug control. Senior federal officials, such as Harry Anslinger, the first commissioner of narcotics, took a very activist prohibitionist stance both domestically and on the international stage. Anslinger expresses this view in Anslinger and Tompkins 1953, in which he rejects alternative medical solutions to drug use, such as the so-called British system of prescribing drugs to drug users described in detail in Lindesmith 1965. Anslinger is particularly interesting because of the perception that this prohibitionist policy was of global, not just national, relevance. In Anslinger 1959 the author projects this evolving domestic prohibitionist policy into the development of the 1961 Single Convention, then in its draft stages. A number of works critical of prohibition have singled out the dualistic national and international role played by US officials in promoting prohibition. Eldridge 1967 highlights the role of pioneer US legislation, such as the 1914 Harrison Act, as the “forerunner” (i.e., template) legislation of drug control conventions. King 1972 notes the tendency of US officials to cite international obligations to domestic lawmakers and domestic US laws to international lawmakers, with the aim of influencing lawmaking in both arenas. Taylor 1969 provides a comprehensive study of US influence on the international system, revealing that the United States played a sometimes more ambiguous, and less deterministic, role at the international level, particularly when resisting what US officials considered the overdevelopment of the system, which they did not see as practical. Bewley-Taylor 1999 uses Anslinger’s life as a vehicle for a critical appraisal of the US role in the construction of global drug prohibition from its inception to the current state of play.

                                  • Anslinger, Harry. “The Implementation of Treaty Obligations in Regulating the Traffic in Narcotic Drugs.” American University Law Review 8 (1959): 112–116.

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                                    US Narcotics Commissioner Anslinger comments on the application of the early UN drug conventions in US law, and the interpretation of this legislation by the US Supreme Court, in the context of the development through various drafts of what became the Single Convention on Narcotic Drugs in 1961.

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                                    • Anslinger, Harry, and William F. Tompkins. The Traffic in Narcotics. New York: Funk and Wagnalls, 1953.

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                                      A strongly pro-prohibition portrayal of the narcotics traffic and the international system developed to control it written by the first federal commissioner of narcotics in the United States, who also served as US delegate on various UN antidrug bodies. The author records his own role in developing a uniformly severe global drug prohibition system through international diplomacy and legal development.

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                                      • Bewley-Taylor, David. The United States and International Drug Control 1909–1997. New York: Pinter, 1999.

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                                        Bewley-Taylor’s mainly historical study, focused on revelations from extensive archival research around the life and role of Harry Anslinger in the construction of global drug control, reveals the origins, motivation, and methodologies as well as the recurring contradictions and inconsistencies present within the US struggle to convince the rest of the world to treat the production, manufacture, trafficking, and use of drugs in the same way it does.

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                                        • Eldridge, William Butler. Narcotics and the Law. 2d ed. Chicago: University of Chicago Press, 1967.

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                                          Searching examination of the US roots of drug prohibition that highlights how it began as an effort to control the nonmedical use of drugs and ended with the control of medical use and prohibition. Eldridge highlights the interplay between significant US legislative measures, such as the 1914 Harrison Act, and the development of the international drug conventions.

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                                          • King, R. The Drug Hang-Up: Americas Fifty-Year Folly. Springfield, IL: CC Thomas, 1972.

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                                            Much cited detailed account of the US control of drug prohibition that highlights the tendency of US delegates to international bodies to emphasize international pronouncements to achieve domestic change, and domestic pronouncements to achieve international changes, but also has the virtue of impressive analysis of parallel developments in other states, including the United Kingdom, Canada, Italy, Taiwan, and others.

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                                            • Lindesmith, Alfred R. The Addict and the Law. Bloomington: Indiana University Press, 1965.

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                                              Lindesmith’s renowned study highlights the distinctive systems that prevailed before the international drug control system developed fully, focusing on the so-called British system, which approached drug use primarily as a medical and not a criminal law problem.

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                                              • Musto, David F. The American Disease: Origins of Narcotics Control. 3d ed. New York: Oxford University Press, 1999.

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                                                Polemic on the US influence on global drug prohibition that isolates domestic concerns, such as racism and fear of immigration, as important factors in the development of drug prohibition as a control mechanism. He charts the federal government’s assault on treatment measures and the rise of the crime control model as well as the brief spring of a medical approach in the 1970s, which withered in the 1980s. Originally published in 1973.

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                                                • Taylor, Arnold H. American Diplomacy and the Narcotics Traffic, 1900–1939: A Study in International Humanitarian Reform. Durham, NC: Duke University Press, 1969.

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                                                  Comprehensive study of the US influence on the early stage of development of the international drug control system that charts US involvement at every stage from Shanghai to Geneva. What Taylor reveals is that US officials were not always enthusiastic about ever greater international regulation. During the negotiation of the 1937 Convention, Harry Anslinger, for example, opposed the listing of criminal offenses, which he viewed as impractical.

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                                                  The Institutional Development of the System

                                                  The international system originally constituted an enterprise of “civilized nations” that had more in common with a private men’s club than a bureaucratic civil service. Perhaps the most insightful work on the nature of this system is Bruun, et al. 1975, an excellent record of the history of international drug control institutions. The authors highlight forgotten aspects of this development, including the influential role played by the pharmaceutical industry, and the particularly socially and politically homogenous character of organizations such as the Opium Advisory Commission. May 1948 provides an insider’s technical view of the system written by a senior administrator who played a key role in it from the 1920s to the 1940s. May served as president of the Permanent Central Opium Board, the technical supervisory body at the time of writing these articles. He emphasizes the incremental nature of the system’s development in detailing the slow accretion of one set of rules building on earlier rules as international society struggled to find a workable system. May viewed the drug conventions as “restrictive commodity agreements,” not health measures, because drug addiction could have serious negative effects on a nation’s domestic economy and security, and his opinion helps in understanding the roots of the system, which lie in the restriction of the commerce in opium. His view jars somewhat with the crime control model currently associated with drug control. However, more recent literature, such as Rosina and Shaver 2012 on the use of border controls to prevent transit of generic medicines that allegedly violate intellectual property, and Asra, et al. 2014 on the availability of opioids for pain relief under the system, suggests the continuation of a commercial rationale for drug control. Renborg 1947 charts the development of a control system that follows drugs every step of the way from production to consumption and classifies every action taken in regard to drugs outside of this system as illicit. The author takes the system apart element by element establishing general principles for each element but not neglecting the importance of state practice as the domestic component of this system. Division of Narcotic Drugs 1966 gives a review of that body’s own role in the early part of the UN era of drug control. It subsequently evolved into the UN Drug Control Programme (UNDCP), now part of the UN Office on Drugs and Crime (UNODC). Pietschmann 2007 provides a UN perspective of more recent developments, including the later drug conventions and the development of the UNDCP. Fazey 2003 provides a rare critical analysis of the international system from the inside, exposing the tension between developed states, which fund and “push” supply reduction policies, and increasingly vocal developing states, which seek greater emphasis on demand reduction. Finally, the World Drug Report 2008 provides an official UN record of the development of the system on its centenary, focusing in particular on successful institutional development under UN auspices.

                                                  • Asra, Husain, Marty Brown, and Martha A. Maurer. “Do National Drug Control Laws Ensure the Availability of Opioids for Medical and Scientific Purposes.” Bulletin of the World Health Organization 92.2 (2014): 108–113.

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                                                    Explores institutional blockages to the supply of opioids in the drug control system.

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                                                    • Bruun, Kettel, Lynn Pan, and Ingmar Rexed. The Gentlemen’s Club: International Control of Drugs and Alcohol. Chicago: University of Chicago Press, 1975.

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                                                      Many of the insights in this book have informed current critical appreciation of the nature of that system. Charts the important role played by the pharmaceutical industry in the system and the importance of the drug scheduling system for the degree of control imposed, but, most interestingly, it reviews the institutional history and provides an analysis of the role of the various international organs in the control system.

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                                                      • Division of Narcotic Drugs. “Twenty Years of Narcotics Control under the United Nations.” Bulletin on Narcotics 18.1 (1966): 1–65.

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                                                        Overview of the work of the UN’s Commission on Narcotic Drugs (CND) from its first to its twentieth sessions, which also reveals something of the nature and work of the Division of Narcotic Drugs (DND), the secretariat of the CND, and the drug conventions.

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                                                        • Fazey, Cindey S. J. “The Commission on Narcotic Drugs and the United Nations International Drug Control Programme: Politics, Policies and Prospect for Change.” International Journal of Drug Policy 14 (2003): 155–169.

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                                                          Exposé from former UNDCP staffer of the inside workings of the CND and INCB, which reveals the tensions within the system between the seventeen developed states, which fund it largely through “soft” money tied to particular projects directed at supply, and the developing states, which advocate increased emphasis on demand reduction. Available online for purchase or by subscription.

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                                                          • May, Herbert L. “Narcotic Drug Control: Developments in International Action and the Establishment of Supervision under the United Nations.” International Conciliation 441 (1948): 303–380.

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                                                            Hebert May provides an in-depth insider’s view of the control of the licit production, trade, and use of drugs under League and then UN auspices. He emphasizes, through detailed reference to the policy discussions within the international drug-control organs, the incremental nature of change to the system and what he terms its gradualist development. He continued this examination in International Conciliation 485 (1952): 489–536.

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                                                            • Pietschmann, T. “A Century of International Drug Control.” Bulletin on Narcotics 59.1–2 (2007): 1–167.

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                                                              A recent overview of the history of the system from a UN perspective.

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                                                              • Renborg, Bertil A. International Drug Control. Washington, DC: Carnegie Endowment for International Peace, 1947.

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                                                                Renborg’s meticulous work on the development of international drug control in the first half of the 20th century covers all of its features. Renborg is very strong on extraction of basic principles for each treaty and the system as a whole. For example, he emphasizes that the general principles of the system are that drugs may be used only for medical and scientific purposes. Reprinted in 1972 (New York: Kraus).

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                                                                • Rosina, Monica Steffen Guise, and Lea Shaver. “Why Are Generic Drugs Being Held Up in Transit? Intellectual Property Rights, International Trade, and the Right to Health in Brazil and Beyond.” Journal of Law, Medicine & Ethics 40 (2012): 197–205.

                                                                  DOI: 10.1111/j.1748-720X.2012.00658.xSave Citation »Export Citation »E-mail Citation »

                                                                  Argument highlighting the concern about the use of border controls to preserve intellectual property interests in pharmaceuticals. Available online for purchase or by subscription.

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                                                                  • UNODC. World Drug Report 2008. Publications Sales No. E.08.XI.1. 173–224. New York: United Nations, Office on Drugs and Crime.

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                                                                    An official record of institutional development celebrating a century of international drug control.

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                                                                    Specific Drug Conventions

                                                                    The sections outlined here describe the specific conventions adopted between 1936 and 1988.

                                                                    The 1936 Convention

                                                                    The now forgotten Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, created at Geneva, 26 June 1936, failed because of lack of state support occasioned, in part, by the outbreak of World War II but also by the controversial nature of its intervention into the domain reserve in regard to criminal law, which lies at the heart of state sovereignty. The noted British international lawyer J. G. Starke provides a very rare comment on the Convention in Starke 1937, revealing that many of the provisions of the convention were concerned with issues of criminalization, extraterritorial jurisdiction, extradition, and legal assistance, issues that were only successfully revisited in the adoption of the 1988 Drug Trafficking Convention.

                                                                    • Starke, J. G. “The Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs.” American Journal of International Law 31 (1937): 31–43.

                                                                      DOI: 10.2307/2190712Save Citation »Export Citation »E-mail Citation »

                                                                      Noted British international lawyer comments on the failed 1936 Convention, the first attempt at purely penal law treaty in drug control. Available online for purchase or by subscription.

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                                                                      The 1961 Single Convention

                                                                      The Single Convention is the key instrument of the licit drug control system, and Article 4, imposing an obligation on parties “to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs,” is the foundational obligation. While the first paragraph of the preamble acknowledges the overall goal of the health and welfare and mankind, it is this limitation which is the prescribed means to that goal. The actual scope of the substances subject to this limitation is determined by the system for placing drugs in the schedules of the Convention, as described by Danenberg, et al. 2013. The Single Convention does not, however, spell out precisely what is mean by limitation. Gregg 1964 connects the Single Convention’s development to the prewar drug control conventions, particularly through the adoption of the indirect model of control. Lande 1962 focuses on the development of the drafts of the convention itself, and the author identifies the inclusion in Article 36 of specific obligations to criminalize all of the stages of supply and demand as a controversial expansion of international obligation in regard to limitation of production, supply, and use. Henrichs 1960 provides a useful counterpoint because it explores the impact in German national law of the adoption of the obligations in Article 36. It is probably true to say that Article 36 has done more to shape national drug offenses than any other international provision. Today UN Secretariat 1973 constitutes the established authoritative interpretation of the 1961 Single Convention, and helps to shape the implementation of the convention’s obligations by states’ parties. It also expands the scope of the system by suggesting, for example, measures such as a presumption of an intention to supply where individuals are found in possession of more than a specific mass of a drug, measures now common in drug laws around the world.

                                                                      • Danenberg, E., L. A. Sorge, W. Wieniawski, S. Eliott, L. Amato, and W. Scholten. “Modernizing Methodology for the WHO Assessment of Substances for the International Drug Control Conventions”. Drug and Alcohol Dependence 131.3 (2013): 175–181.

                                                                        DOI: 10.1016/j.drugalcdep.2013.02.032Save Citation »Export Citation »E-mail Citation »

                                                                        The authors explain the current system, focusing on the rift between the expert opinions provided by the WHO Expert Committee on Drug Dependence on the decision of the Commission on Narcotic Drugs to actually schedule/de-schedule a substance.

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                                                                        • Gregg, R. W. “The United Nations and the Opium Problem.” International and Comparative Law Quarterly 13 (1964): 96–115.

                                                                          DOI: 10.1093/iclqaj/13.1.96Save Citation »Export Citation »E-mail Citation »

                                                                          Review of the development of the licit control of the agricultural production and trade in drugs with a specific focus on the 1961 Single Convention on Narcotic Drugs, emphasizing its roots in the prewar drug conventions, the rejection of a direct model of control with a clearinghouse for drug trade, and the continuation of the model of indirect control developed in the 1931 Convention. Available online for purchase or by subscription.

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                                                                          • Henrichs, Wilhelm. “Problems of Competence in International Law with Regard to the Punishment of Narcotic Drug Offences and the Extradition of Narcotics Offenders.” Bulletin on Narcotics 12 (1960): 1–7.

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                                                                            A very precise analysis of the impact of the 1961 Convention’s penal provisions on German law.

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                                                                            • Lande, Adolph. “The Single Convention on Narcotic Drugs, 1961.” International Organisation 16 (1962): 776–797.

                                                                              DOI: 10.1017/S0020818300011620Save Citation »Export Citation »E-mail Citation »

                                                                              UN Department of Narcotic Drugs (DND, the forerunner of the UNDCP) staffer Lande provides an insider’s view of the Single Convention, charting its development through three drafts. Instead of an article-by-article analysis, he identifies major changes wrought by the Convention, such as then controversial penal provisions in Article 36. Available online for purchase or by subscription.

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                                                                              • UN Secretariat. Commentary on the Protocol Amending the Single Convention on Narcotic Drugs, 1961. New York: United Nations, 1973.

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                                                                                Article-by-article commentary on the Single Convention, considered an authoritative interpretation of the Single Convention. It clarifies inter alia that personal use is not criminalized.

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                                                                                The 1971 Psychotropic Convention

                                                                                Aimed at the control of organically derived narcotic drugs, the 1961 Single Convention was not a comprehensive instrument for the control of inorganic drugs such as LSD (lysergic acid diethylamide) that began to appear on the illicit market in the 1960s. The 1971 Convention was drafted as a complementary instrument to control these substances. One of the few secondary comments on the Convention made in Comment 1978 in the Iowa Law Review notes that its penal provisions are less detailed than those in the 1961 Convention. Article 22 requires only that the parties treat any intentional violation of the laws adopted by parties to implement the convention as “punishable offenses.” While Article 5(2) is the familiar provision limiting actions in regard to psychotropic substances to “medical and scientific purposes,” the Comment notes the conflict with Article 5(3), which only suggests that it is desirable that possession of Schedule II, III, and IV substances be not permitted except under legal authority (Article 7 blocks any such flexibility in regard to Schedule I substances). The treatment provisions in the 1971 Convention are also more detailed. These provisions reflect something of the liberal shift in emphasis toward drug control that occurred during this period. UN Secretariat 1976 provides the authoritative guide to the interpretation by parties of the provisions of the convention.

                                                                                The 1972 Protocol to the Single Convention

                                                                                Although the 1972 Protocol to the Single Convention applies similar treatment provisions pioneered in the 1971 Psychotropic Convention to narcotic substances, it also amends the extradition provisions of the 1961 Convention to make the terms much more detailed and to put in place clearer obligations to extradite alleged drug traffickers, which signaled a growing emphasis on crime control measures in the drug conventions. Gross and Greenwald 1973 explores these new extradition measures as well as the protocol’s granting of increased powers to the INCB in supervising not only the licit control system, but also the illicit traffic. Again, United Nations Secretariat 1976 provides the comprehensive article-by-article analytical guide to the provisions of the protocol for implementing states parties.

                                                                                • Gross, Nelson G., and G. Jonathan Greenwald. “The 1972 Narcotics Protocol.” Contemporary Drug Problems 2 (1973): 119–163.

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                                                                                  A very thorough analysis of the protocol written by the US delegates to the negotiations that highlights how the protocol strengthens the powers of the INCB over illicit traffic in the collection of information and the ability to ask for explanations from states parties in matters such as alleged overproduction of opium for licit purposes. It also highlights the strengthening of extradition provisions.

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                                                                                  • United Nations. Commentary on the Protocol Amending the Single Convention on Narcotic Drugs, 1961. UN Doc. E/CN.7/588. New York: United Nations, 1976.

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                                                                                    Article-by-article commentary on the 1972 Protocol amending the Single Convention, considered an authoritative interpretation of the protocol.

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                                                                                    The 1988 UN Drug Trafficking Convention

                                                                                    The 1988 Convention marks the apotheosis of the international legal measures that provide the basis for the “illicit drug control system.” Still resting on the provisions of the 1961 and 1971 Conventions for the limitation of drug-related conduct to medical and scientific purposes, it expands significantly on the precise obligations to criminalize in those conventions and introduces new offenses, such as money laundering, and new procedures, such as confiscation of the proceeds of crime. It magnifies jurisdiction provisions and stiffens extradition and mutual legal assistance provisions. The emphasis, as is made plain in Albrecht 1998, is on the suppression of drug supply through a range of measures that expanded on the provisions in Article 36 of the 1961 Convention and Article 22 of the 1971 Convention. Rouchereau 1988 notes that the inclusion of provisions for the suppression of money laundering were not contentious, but those on confiscation proved more controversial and the inclusion of provisions for the control of precursor substances would fall heavily on the responsibility of states engaged in manufacturing these substances. But Rouchereau also points out that the 1988 Convention is also a demand control measure, which evolved in the negotiations because of the split in opinion between supply and demand states about which states should take responsibility for the problem. Sproule and St.-Denis 1989 points to the role of the Mexican delegation in introducing a specific provision to criminalize simple possession in Article 3(2), a matter hitherto ambiguous and considered not a clear obligation by the UN Commentary on the 1961 or 1971 drug conventions. Stewart 1990 identifies the 1988 Convention’s main provisions and notes the increasing role in supervision of the illicit drug control system played by the UN drug control organs. Once more, United Nations Secretariat 1998 provides the authoritative commentary on the convention, and it is very useful given that many of the provisions of the convention, such as that on mutual assistance, are highly detailed self-contained regimes, which can be used to provide such assistance in the absence of any existing bilateral or multilateral treaty between the states parties.

                                                                                    • Albrecht, Hans Jörg. “Internationales Betä übungsmittelrecht und internationale betäubungsmittelkontrolle.” In Handbuch des Betäubungsmittelstrafrecht. Edited by A. Kreuzer, 653–701. Munich: Verlag C.H. Beck, 1998.

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                                                                                      View of the 1988 Convention that constructs it as a drug trafficking convention, when in fact it has both demand and supply control elements.

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                                                                                      • Rouchereau, Francoise. “La convention des Nations Unies contre le traffic illicite de stupéfiants et de substances psychotropes.” Annuaire français de droit international 34 (1988): 601–617.

                                                                                        DOI: 10.3406/afdi.1988.2857Save Citation »Export Citation »E-mail Citation »

                                                                                        Review of the 1988 Convention, which points out that the criminalization of money laundering was not contentious and that heavy emphasis was placed on confiscation as a law enforcement tool. Perhaps most interestingly the author discusses the divide between “producer” and “consumer” states and the tendency of each bloc to exaggerate the responsibility of the other for the problem.

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                                                                                        • Sproule, D. W., and Paul St.-Denis. “The UN Drug Trafficking Convention: An Ambitious Step.” Canadian Yearbook of International Law 27 (1989): 263–293.

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                                                                                          Thorough examination of all of the major elements of the 1988 Convention by two Canadian diplomats who were present at the negotiations in Vienna, which highlights the delicate compromise between the states that wanted only supply offenses criminalized and the Mexican delegation, which insisted on criminalization of simple possession. The latter was adopted in Article 3(2).

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                                                                                          • Stewart, David P. “Internationalizing the War on Drugs: The UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.” Denver Journal of International Law and Policy 18 (1990): 387–404.

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                                                                                            Review of the main provisions of the 1988 Vienna Drug Trafficking Convention from the perspective of international law and from a US perspective. Apart from covering all the main features, it is useful on the background to the instrument and its supervision by UN organs.

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                                                                                            • United Nations Secretariat. Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. UN Doc. E/CN.7/590. New York: United Nations, 1998.

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                                                                                              Article-by-article commentary on the 1988 Vienna Drug Trafficking Convention, considered an authoritative interpretation of the convention.

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                                                                                              Significant National Policies and Laws

                                                                                              Most criminalization of drugs takes place through special legislation, such as the United Kingdom’s Misuse of Drugs Act (1971), which lays out specific crimes and penalties for specific classes of drugs. Sometimes the particular law is consolidated into the Criminal Code, for example, Article 228 Russian Criminal Code, which excludes criminal, though not administrative, responsibility for drug use, possession, or manufacturing in small amounts. These laws generally suppress supply and use and they operate on the premise that more liberal rules in regard to supply and use would, as Hartelius 2008 notes in an examination of Swedish law, lead to greater abuse. A plethora of potentially progressive legislation deals with single issues, such as medical use of marijuana (e.g., California’s Proposition 215 adopted in 1996, permits persons with certain illnesses to, under medical recommendation, obtain or grow and use marijuana for medical purposes). National laws are accompanied by national policy documents, which typically flesh out the particular national drug strategy. Good examples are the United Kingdom’s 2017 Drug Strategy (HM Government 2017), which is typical of a modern multidisciplinary approach to the problem, adjusted periodically to take accounts of changing trends in drug control, and the National Drug Control Strategy 2016 in the United States, published annually, which also seeks to balance supply interdiction with prevention and recovery, although whether this will survive the current administration remains to be seen. The UN institutions tend to follow suit. The CND (United Nations Office on Drugs and Crime (UNODC) 2009) periodically releases a drug strategy that reiterates a commitment to the existing system; however, it is subject to intensive negotiation in order to respond to current pressing issues, such as the easy availability of palliative medicines.

                                                                                              The Principal Offenses

                                                                                              The drug conventions are heavily weighted toward description of provisions that require states parties to criminalize the suppression of the agricultural production, manufacture, and supply of drugs, but they also contain a number of controversial criminalization provisions directed at use of drugs.

                                                                                              Supply Offenses

                                                                                              The UN’s official commentaries provide the most reliable tool for the interpretation of the offense provisions in Article 36 of the 1961 Single Convention, Article 22 of the 1971 Psychotropic Convention and Article 3 of the 1988 Convention. Specialist texts on the national drugs law of states parties provide commentary on the specific national laws implementing these convention provisions and the required mental state and conduct elements as well as analysis of rebuttable presumptions of supply arising from possession of more than stipulated amounts of drugs. Although these are not available for every state, a good example is Fortson 2012, which covers the major offenses in sections 3 and 4 of the United Kingdom’s Misuse of Drugs Act 1971 and is excellent in putting the national drugs law of the United Kingdom into international context. Uelmen and Haddox 2016–2017 provides a highly comprehensive annual treatise on US drug control law. Most of the literature is concerned with the punishment of supply offenses. Comprehensive surveys of drug supply punishment are few in number; Cotic 1988 is a useful but now dated survey. The UN’s World Drug Report (cited under General Overviews) also provides information in this regard. One of the major concerns of the literature is the commonly applied rule that trafficking of a quantity of drugs in greater amounts deserves harsher penalties. Fleetwood 2011 criticizes this rule using empirical research to show that often professional traffickers carry smaller amounts of drugs with them than less culpable drug “mules.” But the main subject of the secondary literature is the application of the death penalty to drug traffickers by some, mainly Asian, states. Harring 1991 surveys the practice in Malaysia and maintains that, while many see this application as an aberration from the principles of international human rights law, the legislation is in line with the principles of international drug control law, which is deliberately draconian. More recently, it has been argued that drug offenses are not among the “most serious crimes” for which Article 6(2) of the ICCPR permits application of capital punishment. This argument was advanced specifically with regard to the so-called Bali nine, Australian nationals convicted of having trafficked heroin through Indonesia, several of whom were sentenced to death. Lynch 2008–2009 notes the context in which the sentences were handed down—serious drug abuse in Southeast Asia—and the absence of a binding interpretation of “most serious crime” on UN member states, which would disallow application of the death penalty unless some form of intentional homicide was involved. Summing up these arguments, Gallahue and Lines 2013 notes that use (rather than simply availability) of the death penalty only occurs in a limited number of states where it serves as a vehicle for symbolic commitment to drug prohibition, and it contradicts the clear guidance from UN human rights bodies that execution solely for drug offenses violates international law.

                                                                                              • Cotic, D. Drugs and Punishment: An Up-to-Date Interregional Survey on Drug Related Offences. UN Sales No. E.88.III.N.I. Rome: UN Social Defence Research Institute, 1988.

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                                                                                                One of very few surveys of comparative law on the punishment of drug offenses.

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                                                                                                • Fleetwood, Jennifer. “Five Kilos: Penalties and Practice in the International Cocaine Trade.” British Journal of Criminology 51.2 (2011): 375–393.

                                                                                                  DOI: 10.1093/bjc/azr006Save Citation »Export Citation »E-mail Citation »

                                                                                                  The paper attacks the commonly implemented principle that trafficking of greater quantities of drugs should be met with harsher sentences in showing that, among traffickers, relatively less heavily implicated mules often carry greater quantities of illicit substances than professional traffickers. Available online for purchase or by subscription.

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                                                                                                  • Fortson, Rudi. Misuse of Drugs and Drug Trafficking Offences. 6th ed. London: Sweet and Maxwell, 2012.

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                                                                                                    Standard reference work on English drug control legislation and a very good example of the kind of commentary on national drug control law that many nations’ criminal legal practitioners might wish they had access to. It covers major offenses and penalties, confiscation legislation, and comments on the general strategy embodied in these provisions.

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                                                                                                    • Gallahue, Patrick, and Rick Lines. “The Death Penalty for Drug Offences: Shared Responsibility and Shared Consequences.” In The International Library of Essays on Capital Punishment. Vol. 3, Policy and Governance. Edited by P. Hodgkinson. Farnham: Ashgate, 2013.

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                                                                                                      A searching survey of current practice by what the authors label “marginal states” which use capital punishment for drug offenses, highlighting the conflict with global human rights norms prohibiting execution for these offenses, and exploring complicity of UN drug control organs in programs which lead to the apprehension and eventual execution of traffickers.

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                                                                                                      • Harring, Sidney L. “Death, Drugs and Development: Malaysia’s Mandatory Death Penalty for Drug Traffickers and the International War on Drugs.” Columbia Journal of Transnational Law 29 (1991): 364–405.

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                                                                                                        An early detailed academic study of the application of the death penalty to drug trafficking offenses, in this case by Malaysia, which first applied the penalty in 1975 and still retains it. Harring’s insight is that these steps, which appear to be out of line with international human rights developments, are consistent with international law as it is applied in the globalized war on drugs.

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                                                                                                        • Lynch, Colman. “Indonesia’s Use of Capital Punishment for Drug-Trafficking Crimes: Legal Obligations, Extralegal Factors, and the Bali Nine Case.” Columbia Human Rights Law Review 40.2 (2008–2009): 523–593.

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                                                                                                          Detailed account of the Bali nine case, in which Australian nationals convicted of drug trafficking in Indonesia were sentenced to death under Indonesian law. Such punishment was found to be applicable as drug trafficking was determined to be among the “most serious crimes” contemplated by Article 6(2) of the ICCPR’s exceptional provision, which permits application of capital punishment as an offense.

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                                                                                                          • Uelmen, Gerald, and Victor G. Haddox. Drug Abuse and the Law Sourcebook. Subsequent ed. New York: Clark Boardman Callaghan, 2016–2017.

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                                                                                                            Annual update on US drug control legislation now in its 2016–2017 edition (in two volumes).

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                                                                                                            Demand Offenses

                                                                                                            Demand offenses should be seen in the context of the object and purpose of the international drug control system, which has been mainly to suppress supply. Noll 1977 provides an “official” review of the demand offenses in Article 36 of the 1961 (as amended) Convention and Article 22 of the 1971 Convention, emphasizing the key provision in Article 4 of the 1961 Convention that limits the use and possession of drugs to medical and scientific purposes, but pointing out that such limitation does not necessarily require the criminalization of use and possession. The position in regard to demand changed under Article 3(2) of the 1988 UN Drug Trafficking Convention, which specifically provides for such criminalization, with a number of “get-outs” that include breach of constitutional or basic rules of the implementing state and the more elaborate provisions for diversion into treatment. Chatterjee 1989 provides some insight into the treatment provisions in the 1988 Convention. Various attempts have been made to deal with the problems of criminal prosecution of users. An example is specialized drug courts, discussed in Armstrong 2003, which sees them as an equivocal commitment to rehabilitation. Harm reduction measures, such as safe injection sites discussed in Lessard 2011, openly challenge the crime control model. At a broader level, Room and Reuter 2012 questions whether current national policies can usefully be aligned at a global level, and call for variable polices dealing with the different cultural positions of different drugs in different societies.

                                                                                                            • Armstrong, Andrew. “Drugs Courts and the De Facto Legalization of Drug Use for Participants in Residential Treatment Facilities.” Journal of Criminal Law and Criminology 94.1 (2003): 133–168.

                                                                                                              DOI: 10.2307/3491306Save Citation »Export Citation »E-mail Citation »

                                                                                                              Examination of the practice of drug courts in the United States, which condemns the practices as illustrative of an equivocal commitment to rehabilitation. Available online for purchase or by subscription.

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                                                                                                              • Chatterjee, S. K. Drug Abuse and Drug-Related Crimes. Dordrecht, The Netherlands: Martinus Nijhoff, 1989.

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                                                                                                                Chatterjee’s supplementary volume on international drug control examines a miscellany of issues from punishment of drug traffickers to the draft 1988 Convention.

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                                                                                                                • Lessard, Hester. “Jurisdictional Justice, Democracy and the Story of Insite.” Constitutional Forum 19.1–3 (2011): 93–112.

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                                                                                                                  Examination of the safe injection site in Vancouver, the first in North America, a harm reduction measure that has been subject to a considerable amount of negative attention from Canadian federal authorities.

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                                                                                                                  • Noll, Alfons. “Drug Abuse and Penal Provisions of the International Drug Control Treaties.” Bulletin on Narcotics 19 (1977): 41–57.

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                                                                                                                    Noll discusses the penal measures relating to demand in the 1961 Convention, 1971 Convention, and 1972 Protocol. He points out that Article 4 of the 1961 Convention, which obliges parties “to limit exclusively to medical and scientific purposes,” inter alia the “use and possession” of drugs, makes legalization of drugs unacceptable. But he notes interpretation of Article 36(1), which criminalizes “possession,” as limited to possession for trafficking purposes.

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                                                                                                                    • Room, Robin, and Peter Reuter. “How Well Do International Drug Conventions Protect Public Health?” The Lancet 379.9810 (2012): 84–91.

                                                                                                                      DOI: 10.1016/S0140-6736(11)61423-2Save Citation »Export Citation »E-mail Citation »

                                                                                                                      Two leading reformers propose a policy more aligned to the risks that different drugs pose to users, which shows an understanding of the effects of different regulatory approaches on drug use and harm.

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                                                                                                                      Ancillary Offenses and Procedures

                                                                                                                      The drug conventions also contain a number of provisions that oblige states parties to criminalize activities beyond the scope of production and supply of drugs. These include involvement with precursor substances and money laundering provisions. The conventions also make provision for various forms of international cooperation in illicit drug control.

                                                                                                                      Precursors

                                                                                                                      The 1988 UN Drug Trafficking Convention introduced specific obligations on states parties to take steps to control the chemical precursors, such as solvents, used in the illicit manufacture of drugs. These measures, which included a system for tabling the substances and subjecting them to different levels of control, were modeled on those in the US Chemical Diversion and Trafficking Act of 1988, as pointed out in Bland 1991. Gilmore 1996 provides an analysis of the criminalization of the traffic in these precursor substances under Article 3(1)(c) of the 1988 Convention.

                                                                                                                      • Bland, Karen L. “The Chemical Diversion and Trafficking Act of 1988: Stopping the Flow of Chemicals to the Andean Drug Cartels.” American University Journal of International Law and Policy 7 (1991): 105–143.

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                                                                                                                        Bland discusses the genesis and content of the Chemical Diversion and Trafficking Act of 1988 (21 USC § 801), the model for much of the precursor legislation adopted by states parties to implement the precursor provisions in Article 12 of the 1988 Vienna Drug Trafficking Convention.

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                                                                                                                        • Gilmore, William C. “Drug Trafficking and the Control of Precursor and Essential Chemicals: The International Dimension.” In Drug Trafficking and the Chemical Industry. Edited by William C. Gilmore, Alastair N. Brown, and David Hume Institute, 1–24. The Hume Papers on Public Policy 4.1. Edinburgh: Edinburgh University Press, 1996.

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                                                                                                                          Discusses the international provisions designed to deny drug traffickers the chemicals they require in order to manufacture illicit synthetic and semi-synthetic drugs; the author analyzes the criminal offenses engaged in the traffic in tabled substances and the provisions to prevent diversion in Article 12 of the 1988 Vienna Drug Trafficking Convention.

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                                                                                                                          Money Laundering and Asset Forfeiture

                                                                                                                          The 1988 UN Drug Trafficking Convention also pioneered the criminalization of money laundering of the proceeds of drug crime in Article 3(1)(b) and 3(1)(c). A collection of relevant documents, Gilmore 1992, provides useful background information. For the current state of affairs, readers should consult the recommendations in Financial Action Task Force 2012, a relatively little-known organization subject to searching examination in Rose 2015. Abrams 1989 provides an insightful view into how money laundering was detached as a separate offense while Alldridge 2001–2002 critiques the moral limits of money laundering. The rationale of criminalizing conduct, which is essentially after the fact of the drug trafficking, is questioned in van Duyne and Levi 2005. The associated procedural step of confiscation on criminal conviction of the proceeds or forfeiture using a civil process against the money itself, also modeled on US law but now popular in many jurisdictions around the globe, is subject to withering criticism in Blumenson and Nilsen 1998, which characterizes it as policing for profit.

                                                                                                                          • Abrams, Norman. “The New Ancillary Offences” Criminal Law Forum 1.1 (1989): 1–39.

                                                                                                                            DOI: 10.1007/BF01096581Save Citation »Export Citation »E-mail Citation »

                                                                                                                            An early but very useful examination of the detachment of money laundering as a separate offense in US law, a concept which has had an enormous impact globally.

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                                                                                                                            • Alldridge, Peter. “The Moral Limits of the Crime of Money Laundering.” Buffalo Criminal Law Review 5 (2001–2002): 286.

                                                                                                                              DOI: 10.1525/nclr.2001.5.1.279Save Citation »Export Citation »E-mail Citation »

                                                                                                                              Alldridge systematically hollows out what little moral argument there is for the offense of money laundering.

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                                                                                                                              • Blumenson, Eric, and Eva Nilsen. “Policing for Profit: The Drug War’s Hidden Economic Agenda.” University of Chicago Law Review 65 (1998): 35–114.

                                                                                                                                DOI: 10.2307/1600184Save Citation »Export Citation »E-mail Citation »

                                                                                                                                A highly critical review of the extension of asset forfeiture to all profits produced by drug trafficking and all property involved in drug trafficking, which the authors suggest illustrates the absurdity of the drug prohibition and the dangers of law enforcement agencies deploying these civil processes for their own benefit.

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                                                                                                                                • Financial Action Task Force. International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation: The FATF Recommendations. Paris: Financial Action Task Force, 2012.

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                                                                                                                                  The most up-to-date iteration of the FATF recommendations, which rest heavily on provisions such as Article 3 of the 1988 UN Drug Trafficking Convention for the purposes of criminalization, which significantly enhances the content of the obligations in Article 3 into a complete set of controls to prevent and combat ‘all-crimes’ money laundering.

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                                                                                                                                  • Gilmore, William C., ed. International Efforts to Combat Money Laundering. Cambridge, UK: Grotius, 1992.

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                                                                                                                                    Collection of documents with useful introduction to the anti-money laundering provisions in international law. It discusses the provisions for criminalization through Article 3(1)(b) and 3(1)(c) of the 1988 Vienna Convention and the measures for prevention that include the institutional development of the Financial Action Task Force, which has become the main international anti–money laundering agency.

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                                                                                                                                    • Rose, Cecily. International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems. Oxford: Oxford University Press, 2015.

                                                                                                                                      DOI: 10.1093/acprof:oso/9780198737216.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                      Rose provides one of the few sources on the structure and methods of the Financial Action Task Force, which has grown much larger in influence than a simple concern with laundering and confiscation of drug proceeds.

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                                                                                                                                      • van Duyne, Petrus C., and Michael Levi. Drugs and Money: Managing the Drug Trade and Crime-Money in Europe. Abingdon, UK: Routledge, 2005.

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                                                                                                                                        Van Duyne and Levi explore a range of questions about the relations between the production of profits from drug trafficking and intriguing motivations for the current focus on money laundering, including the fear of criminal money.

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                                                                                                                                        Enhanced International Enforcement Cooperation

                                                                                                                                        The United States’ experience of extraterritorial law enforcement in Latin America shaped an approach to extraterritorial drug law enforcement that has been influential in provisions in the drug conventions and in national practices globally. Nadelmann 1993, the definitive study of the DEA’s activities in Latin America, provides a bleak picture of an environment plagued by corruption and characterized both by frustration with the lack of effectiveness of international cooperation and by the introduction of increasingly interventionist measures. The 1988 Convention, in particular, introduced a number of novel enforcement measures pioneered by the United States (such as controlled delivery) which, although initially illegal in many countries, are now taken for granted. Andreas and Nadelmann 2006 records the spread of these techniques through Europe and globally. There is now a wealth of literature on cross-border law enforcement although sources on cross-border drug law enforcement are more limited. Zagaris 2011 urges more effective responses to the rapidly changing law enforcement environment. The growth of the illicit drug control system has been marked by a proliferation of international and national measures expanding national criminal jurisdiction in an effort to reach drug traffickers and money launderers operating in other states. The establishment and enforcement of jurisdiction in the global war on drugs has moved beyond strict limits based on territoriality or nationality to encompass extended forms of extraterritorial jurisdiction, including subsidiary forms of universality. The United States has led the way, and Kontorovich 2009 questions recent legal developments with regard to the expansion of US extraterritorial enforcement jurisdiction over drug supply activity on the high seas. Gilmore 1991 examines the introduction of measures through Article 17 of the UN Drug Trafficking Convention to facilitate interdiction at sea. The other major development in law enforcement against drug traffickers has been the attempt to provide more comprehensive, but less heavily conditioned, international provisions for the extradition of drug traffickers. Schutte 1991 provides a close examination of Article 6 of the UN Drug Trafficking Convention, which provides for an extensive extradition regime for drug traffickers. The alternative to international cooperation in this regard, abduction of drug traffickers, is highly controversial, but the argument made in Fletcher 1992 in favor of such measures provides insight into why such measures are contemplated. Extradition has become more common, however, and Morgan 2009 suggests that the goal of the international drug control system to make extradition easier is working as states have moved beyond upholding the principle of nationality in giving up sovereign defense of their nationals in this regard.

                                                                                                                                        • Andreas, Peter, and Ethan Nadelmann. Policing the Globe: Criminalization and Crime Control in International Relations. Oxford: Oxford University Press, 2006.

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                                                                                                                                          The global follow-up to Nadelmann’s pioneering study, Cops without Borders, describes the history of Western states’ efforts to export their drug law enforcement techniques around the world, and how this has accelerated global crime control.

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                                                                                                                                          • Fletcher, Andrew K. “Pirates and Smugglers: An Analysis of the Use of Abductions to Bring Drug Traffickers to Trial.” Virginia Journal of International Law 32 (1992): 233–264.

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                                                                                                                                            A defense of extraterritorial abduction of drug traffickers focusing on the decision of the US Supreme Court in US v. Alvarez Machain, which rests significantly on the view that protection from drug trafficking is a matter of self-defense in international law.

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                                                                                                                                            • Gilmore, William C. “Drug Trafficking by Sea: The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.” Marine Policy 15.3 (1991): 183–192.

                                                                                                                                              DOI: 10.1016/0308-597X(91)90061-FSave Citation »Export Citation »E-mail Citation »

                                                                                                                                              Analyzes the travaux preparatoires, the purpose, and the nature of, the provisions in Article 17 of the 1988 Vienna Convention for international cooperation in the interdiction of drug trafficking on the high seas within the context of the general law of the sea. Available online for purchase or by subscription.

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                                                                                                                                              • Kontorovich, Eugene. “Beyond the Article I Horizon: Enumerated Powers and Universal Jurisdiction over Drug Crimes.” Minnesota Law Review 93 (2009): 1191–1252.

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                                                                                                                                                A critical examination of the judicial expansion of US criminal jurisdiction over drug crimes through a broad interpretation of the Maritime Drug Law Enforcement Act, which questions its constitutional basis.

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                                                                                                                                                • Morgan, Edward M. “Traffic Circles: The Legal Logic of Drug Extraditions.” University of Pennsylvania Journal of International Law 31 (2009): 373–425.

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                                                                                                                                                  Review of some recent cases of extradition of drug traffickers from a range of jurisdictions, which emphasizes that the condemnation by a court of an individual facing a charge of conspiracy to drug trafficking in another state almost always lead to extradition of the individual and, based on examination of the cases, appears to remove any protections afforded them by their state of nationality.

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                                                                                                                                                  • Nadelmann, Ethan A. Cops across Borders: The Internationalization of US Criminal Law Enforcement. University Park: Pennsylvania State University Press, 1993.

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                                                                                                                                                    This benchmark study of extraterritorial drug policing in Latin America by US federal agencies emphasizes the way in which experiences of corruption encountered in the 1970s and 1980s and the difficulty of extraterritorial enforcement jurisdiction and extradition, among other issues, shaped US attitudes to international drug control and spurred provisions for more effective law enforcement in the international drug control system.

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                                                                                                                                                    • Schutte, Julian J. E. “Extradition for Drug Offences: New Developments under the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.” Revue internationale de droit penal 62 (1991): 135–157.

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                                                                                                                                                      Paragraph-by-paragraph analysis of Article 6 of the 1988 Vienna Drug Trafficking Convention, which comments negatively on the inclusion of conditions for extradition in Article 6(6).

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                                                                                                                                                      • Zagaris, Bruce. “International Law Enforcement Trends for 2010 and Beyond: Can the Cops Keep Up with the Criminals?” Suffolk Transnational Law Review 34 (2011): 1–68.

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                                                                                                                                                        Smorgasbord of international law enforcement issues but with useful practical insights from a leading international law enforcement cooperation expert, including examples of transnational law enforcement networks. Available online for purchase or by subscription.

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                                                                                                                                                        Problems and Prospects

                                                                                                                                                        The penal aspects of the international drug control system can be evaluated from a range of different perspectives. Compliance is an issue, with pro-prohibitionists criticizing the weak ability of some states to implement drug interdiction efforts, and critics of the system questioning any claim to effectiveness. Critics challenge the system as a whole, but have an increasing focus on its human rights weaknesses. Finally, there is increasing pressure for reform.

                                                                                                                                                        Implementation and Compliance

                                                                                                                                                        It is one thing to implement the drug convention provisions on paper, another to take the administrative steps to try to ensure compliance, and still another to achieve the limitation goals of the system to medical and scientific purposes. The level at which drug laws are policed varies dramatically among states. The United States has taken on the role of global policeman of the penal aspects of the drug control system, and it does so largely by means of very detailed annual reports on the current status of drug control efforts on a country-by-country basis with comments when the department believes a particular state is noncompliant. The 2017 International Narcotics Control Strategy Report identifies poor compliance by certain states’ parties without examining the reasons for this weakness. Secondary literature in this regard is quite sparse. Bhala 1997 is a rare critique of the US certification process of noncompliant states. Murphy 1983 presages current concerns with drug production in the “Golden Crescent” of major agricultural producers of drugs in Central Asia with a review of the problems of agricultural control of opium crops in Pakistan. Seccombe 1995 is a highly critical review by a former UNDCP official of the same problem. The author argues that success in one area is usually followed by the emergence of the crop elsewhere in a scenario that consists of a push-down pop-up effect. More recent pieces such as Piazza 2012 have tended to focus on the relationship between opium and terrorism in Afghanistan, without examining the normative role of the drug conventions. Ambos 1996–1997 shows that, although legislation in developing states tends to mirror that in developed states in overcriminalizing, such efforts may also be of limited efficacy. Jojarth 2009 provides a detailed study of why states have entered into a drug trafficking control regime that has failed to achieve success. The author blames poor formulation of the problem rather than institutional design.

                                                                                                                                                        • Ambos, Kai. “Attempts at Drug Control in Colombia, Peru and Bolivia.” Crime, Law and Social Change 26 (1996–1997): 125–160.

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                                                                                                                                                          Examination of drug control laws in prominent coca-producing states that shows that the relaxation of procedural controls making for easier prosecution and punishment does not have the desired effect.

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                                                                                                                                                          • Bhala, Raj. “Fighting Bad Guys with International Trade Law.” University of California Davis Law Review 31 (1997): 1–121.

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                                                                                                                                                            A rare and critical piece on the efficacy of the US Department of State’s annual certification process.

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                                                                                                                                                            • Jojarth, Christine. Crime, War, and Global Trafficking: Designing International Cooperation. Cambridge, UK: Cambridge University Press, 2009.

                                                                                                                                                              DOI: 10.1017/CBO9780511576775Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                              Sophisticated policy analysis of the implementation of the 1988 Drug Trafficking Convention in chapter 4, which argues that its questionable effectiveness is due to poor framing of the problem rather than the design of the institutional solution.

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                                                                                                                                                              • Murphy, Jack W. “Implementation of International Narcotics Control: The Struggle against Opium Cultivation in Pakistan.” Boston College International and Comparative Law Review 6 (1983): 199–241.

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                                                                                                                                                                Slightly dated study of implementation of international provisions for the control of agricultural production of drugs, in this case in Pakistan, which has the merit of a very detailed knowledge of local conditions and of the relevant international provisions.

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                                                                                                                                                                • Piazza, James A. “The Opium Trade and Patterns of Terrorism in the Provinces of Afghanistan: An Empirical Analysis.” Terrorism and Political Violence 24 (2012): 213–234.

                                                                                                                                                                  DOI: 10.1080/09546553.2011.648680Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                  One among a number of economics studies showing a causal link between the production of opium and the incidence of terrorism.

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                                                                                                                                                                  • Seccombe, Ralph. “Squeezing the Balloon: International Drugs Policy.” Drug and Alcohol Review 14.3 (1995): 311–316.

                                                                                                                                                                    DOI: 10.1080/09595239500185401Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                    A rare critique of UN supply reduction efforts in Pakistan by a former field adviser to the UN International Drug Control Programme, which argues that successful efforts in projects to suppress production of opium in Pakistan are localized and result in the plant flowering elsewhere. Available online for purchase or by subscription.

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                                                                                                                                                                    • US State Department, 2017 International Narcotics Control Strategy Report. 2 vols. Washington, DC: Bureau for International Narcotics and Law Enforcement Affairs, 2017.

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                                                                                                                                                                      Report focusing on an assessment of compliance of key countries with the international drug control conventions, citing states that appear to be noncompliant with their international obligations.

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                                                                                                                                                                      Questioning the System

                                                                                                                                                                      The system of global drugs prohibition instituted by the drug conventions is under increasing pressure. Works by legal philosophers, such as Husak 1989, have questioned the foundational concepts of the system while those by economists, such as Reuter 1992, have attacked the economics of drug supply interdiction as ultimately pointless because it will not stop the flow to meet the market. Other works, such as Stuntz 1998, have critically examined the race-based thesis for drug control, exposing the class basis of drug control. Alexander 2010 returns to the race-based thesis as underpinning US drug control policy, recording, inter alia, that a combination of poor protection against self-incrimination, unconscionable pressure to plea bargain, racial stereotyping in policing, and the growth of a prisons industry have combined to produce a steadily deepening social fracture in the United States. Many of these criticisms are not unique to the United States. Perhaps the most intractable problem for international drug control, one that undermines the system, has been the North-South divide between consumer and producer states, identified in McAllister 1991, and one that is still significant. Marcy 2010 criticizes the militarization of the enforcement of international drug control through the global “war on drugs” instituted and enforced by the United States. Arguments have long been made, in particular, that cannabis should be treated differently. Room, et al. 2010 constitutes the most comprehensive study on this topic to date, and it is an impressive work in the amount of comparative material it carries.

                                                                                                                                                                      • Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press, 2010.

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                                                                                                                                                                        Alexander explains massive incarceration in the United States as a result of US drug policy, which she critiques as the engine that is producing a new racial underclass in the United States.

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                                                                                                                                                                        • Husak, Douglas N. “Recreational Drugs and Paternalism.” Law and Philosophy 8.3 (1989): 353–381.

                                                                                                                                                                          DOI: 10.1007/BF00172032Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                          Sustained philosophical assault on the use of paternalism to justify criminalization of recreational use of drugs. Available online for purchase or by subscription.

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                                                                                                                                                                          • Marcy, William L. The Politics of Cocaine: How US Foreign Policy Has Created a Thriving Drug Industry in Central and South America. Chicago: Lawrence Hill, 2010.

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                                                                                                                                                                            History of the vicissitudes of the US war on drugs and its unforeseen consequences in Latin America.

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                                                                                                                                                                            • McAllister, William B. “Conflicts of Interest in the International Drug Control System.” Journal of Policy History 3 (1991): 494–517.

                                                                                                                                                                              DOI: 10.1017/S0898030600007466Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                              McAllister identifies various geopolitical divisions on drug control relating to the opposing interests of producer and consumer states, which have yet to be eliminated.

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                                                                                                                                                                              • Reuter, Peter. “The Limits and Consequences of US Foreign Drug Control Efforts.” Annals of the American Academy of Politics and Social Science 521 (1992): 151–162.

                                                                                                                                                                                DOI: 10.1177/0002716292521001009Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                In 1992 Peter Reuter showed that major source country control programs, including crop substitution, refinery destruction, and crop eradication, were unlikely to affect the flow of cocaine into the United States. Available online for purchase or by subscription.

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                                                                                                                                                                                • Room, Robin, Benedikt Fischer, Wayne Hall, Simon Lenton, and Peter Reuter. Cannabis Policy: Moving beyond Stalemate: The Global Cannabis Commission Report. Oxford: Beckley Foundation, 2010.

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                                                                                                                                                                                  A state-of-the-art report on recent global cannabis law reforms when it was published.

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                                                                                                                                                                                  • Stuntz, William J. “Race, Class and Drugs.” Columbia Law Review 98.7 (1998): 1795–1842.

                                                                                                                                                                                    DOI: 10.2307/1123466Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    Leading discussion of race and class in the drug control efforts in the United States, which argues that the control of cocaine is not motivated by race but rather by class because of the ease and accessibility of policing “downscale” markets. Available online for purchase or by subscription.

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                                                                                                                                                                                    Human Rights and International Drug Control

                                                                                                                                                                                    The negative impact of international drug control on human rights has been a growing preoccupation of critics of international drug prohibition. Earlier pieces like Gilmore 1996 focused on the negative impact on drug users’ human rights, noting the absence of literature on human rights in drug control, despite awareness among human rights and health officials that there is a problem. Barrett and Nowak 2009 points out that indicators of law enforcement success against producers, traffickers, and users such as hectares of crops destroyed; numbers of people arrested, prosecuted, and executed; or numbers of people in treatment programs, are all also indicators of human rights risk. This piece’s major contribution is to show the lack of systemic integration between the global drug and global human rights systems. Barrett 2010 pursues the theme of the normative challenge posed by the broader legal, policy, and normative framework of the UN for international drug control, which appears to have been coexisting in another reality, and points out some of drug controls’ weak assumptions such as the poor understanding of the relationship between violence and the international drug trade. Heilmann 2011 attacks the drug enforcement effort because of its failure to comply with basic human rights protections in international instruments. Pfeiffer 2013 focuses specifically of the impact of the international drug control system on the right of indigenous people on Bolivia to chew coca leaf, and the attempts by Bolivia to reform the Single Convention to protect this practice, before discussing the legality of Bolivia’s eventual denunciation and reaccession to the Convention with a relevant reservation, despite the objections of a number of states’ parties. Written by a former UNODC officer, Takahashi 2009 provides something of a counterweight to these arguments; using the right to the highest attainable standard of health as the basic yardstick, he argues that the applicability of this right to drug control is not as straightforward as is often presented, and questions in particular whether mandated drug treatment is really a human rights violation. Lines 2017 examines the history of the interpretation of the drug conventions, and relying heavily on a close study of the object and purpose of the treaties, which reveals a latent humanitarian rather than enforcement purpose, argues for a dynamic evolving interpretation that will take a more full account of international human rights law.

                                                                                                                                                                                    • Barrett, Damon. “Security, Development and Human Rights: Normative, Legal and Policy Challenges for the International Drug Control System.” International Journal of Drug Policy 21.2 (2010): 140–144.

                                                                                                                                                                                      DOI: 10.1016/j.drugpo.2010.01.005Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                      Expanding the arena beyond human rights, Barrett sets out the purposes and principles of the United Nations, and contrasts them with the rhetorical commitment of the international drug control system to respond to threats, before going on to examine the negative consequences of that system. Available by purchase or subscription.

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                                                                                                                                                                                      • Barrett, Damon, and Manfred Nowak. “United Nations and Drug Policy: Towards a Human Rights–Based Approach.” In The Diversity of International Law: Essays in Honour of Kalliopi Koufa. Edited by Aristotle Constantinides and Niko Zaikos, 449–477. Leiden, The Netherlands and Boston: Martinus Nijhoff, 2009.

                                                                                                                                                                                        DOI: 10.1163/ej.9789004180390.i-676.162Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                        In addition to the inherent risks in international drug control, the authors examine the traditional resistance of the drug control system to any kind of normative restriction based on human rights provisions (focusing particularly on the record of institutions such as the INCB), and the insufficiency of the international drug control system to provide internal barriers against human rights violations.

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                                                                                                                                                                                        • Gilmore, Norbert. “Drug Use and Human Rights: Privacy, Vulnerability, Disability and Human Rights Infringements.” Journal of Contemporary Health Law and Policy 12.2 (1996): 355–447.

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                                                                                                                                                                                          Groundbreaking survey of the infringements of the human rights of drug users in the name of adherence to international drug control, including the commemoration of the annual UN Day against Drug Abuse by execution of drug traffickers. Available by purchase or subscription.

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                                                                                                                                                                                          • Heilmann, Daniel. “The International Control of Illegal Drugs and the UN Treaty Regime: Preventing or Causing Human Rights Violations?” Cardozo Journal of International and Comparative Law 19.2 (2011): 237–286.

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                                                                                                                                                                                            Detailed examination of the argument that the current UN system not only fails to prevent human rights violations, but also actually leads to such violations.

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                                                                                                                                                                                            • Lines, Rick. Drug Control and Human Rights in International Law. Cambridge, UK: Cambridge University Press, 2017.

                                                                                                                                                                                              DOI: 10.1017/9781316759707Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                              Drawing on a close examination of the travaux preparatoires of the drug conventions, which, this volume argues, reveal that the telos of the drug conventions is the health and welfare of mankind, this groundbreaking work argues for a movement away from a system that actively nullifies human rights in the name of effective law enforcement.

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                                                                                                                                                                                              • Pfeiffer, Sven. “Rights of Indigenous Peoples and the International Drug Control Regime: The Case for Traditional Coca Leaf Chewing.” Göttingen Journal of International Law 5.1 (2013): 287–324.

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                                                                                                                                                                                                One of the few studies of one of the first major signs of tension within the drug control system, Bolivia’s failed attempt at reform and its resort to the highly undesirable (from the point of the view of the integrity of international law) tactic of denunciation and reaccession with reservations, in order to preserve indigenous rights to chew coca leaf and cultivate for this purpose.

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                                                                                                                                                                                                • Takahashi, Saul. “Drug Control, Human Rights, and the Right to the Highest Attainable Standard of Health: By No Means Straightforward Issues.” Human Rights Quarterly 31.3 (2009) 748–766.

                                                                                                                                                                                                  DOI: 10.1353/hrq.0.0092Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                  Takahashi takes a somewhat more critical view of increasing attention to human rights in the system, exploring the various facets including human rights in law enforcement, the death penalty, mandated treatment, and harm reduction measures, and arguing that the right to the highest sustainable standard of health does not imply a right to use drugs. Available by purchase or subscription.

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                                                                                                                                                                                                  Reform or Rejection

                                                                                                                                                                                                  States have already begun to break with the strict letter of prohibition, apparently without the gross negative consequences that many feared. Hughes and Stevens 2010 suggests that Portugal’s decriminalization of possession of small amounts of drugs has not led to an increase in drug use as feared. This kind of reform has generally been justified by reference to the elastic nature of some of the convention provisions. Krajewski 1999 is an early piece on the “wriggle room” permitted under the convention provisions, room afforded by the fact that provisions are left to states to implement, including provisions that stipulate treatment of offenders as an alternative to, rather than in addition to, punishment. However, this space has not proved sufficient for the kind of root and branch reform that some states would like to make, and pressure for reform of the system has been growing. Global Commission on Drug Policy 2011, a group consisting of nineteen world leaders that includes former UN Secretary General Kofi Annan, recommends ending criminalization, experimenting with legalization to undermine organized crime, making a variety of treatment modalities available, and applying human rights and harm reduction principles. Bewley-Taylor 2012 argues that the global consensus on drug prohibition reflected particularly in the Single Convention, which the author identifies as central to the normative order on drugs and which has prevented any reform until now, is “fractured.” De Ruyver, et al. 2002 maps out the potential for reform of the three main conventions, identifying amendment (the formal alteration of the treaty obligation using the procedures laid out in the conventions), modification of the drug schedules (moving a specific drug to a less severe regime within the schedules to the Single Convention), and reservation and denunciation as possible options with different degrees of potential success. Bewley-Taylor 2003 covers much the same territory but notes that these options are subject to political pressure from states that are supportive of the system and that can take action both within the institutions of the system itself and outside the system. Room 2012 favors the annulment of the treaties and then their reratification with a reservation to objectionable provisions. Don 2014 suggests that the most viable option to take account of growing markets in cannabis is amendment of the conventions. Ghodse 2008 contains material culled from the INCB’s reports (the author was chair of the INCB) in spelling out the case against a major reform of the system, and the author is particularly strong in opposing legalization. Boister 2016 explores the legality of many of these recent strains in the international drug control system, and suggests that there is potential for the fracturing of global drug control into different streams with different levels of commitment to prohibition.

                                                                                                                                                                                                  • Bewley-Taylor, David. “Challenging the UN Drug Control Conventions: Problems and Possibilities.” International Journal of Drug Policy 14.2 (2003): 171–179.

                                                                                                                                                                                                    DOI: 10.1016/S0955-3959(03)00005-7Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                    Bewley-Taylor identifies the international system as a major obstacle to law reform at the national level and examines the potential for changing the regime by modification, amendment, withdrawal, or rejection as a contravention of a constitutional right or basic law. All are vulnerable to either political pressure within the system (through blocking) or political pressure from outside. Available online for purchase or by subscription.

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                                                                                                                                                                                                    • Bewley-Taylor, David. International Drug Control: Consensus Fractured. Cambridge, UK and New York: Cambridge University Press, 2012.

                                                                                                                                                                                                      DOI: 10.1017/CBO9781139057424Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                      A lengthy study of the then state of play in the international drug control system, which identified its cracks and placed much of the responsibility for its ossified nature on the International Narcotics Control Board.

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                                                                                                                                                                                                      • Boister, Neil. “Waltzing on the Vienna Consensus on Drug Control? Tensions in the International System for the Control of Drugs.” Leiden Journal of International Law 29.2 (2016): 389–409.

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                                                                                                                                                                                                        Boister examines a number of different developments including the legalization of coca leaf chewing in Bolivia and cannabis markets in North America, and how these are placing a strain on existing obligations under the drug conventions.

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                                                                                                                                                                                                        • de Ruyver, Brice, Gert Vermeulen, Tom van der Beken, Freya van der Laenen, and Kim Geenens. Multidisciplinary Drug Policies and the UN Drug Treaties. Antwerp, Belgium: Maklu, Institute for International Research on Criminal Policy, Ghent University (IRCP), 2002.

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                                                                                                                                                                                                          A detailed analysis of the provisions of the 1961, 1971, and 1988 drug conventions with regard to their potential for amendments to permit non-prohibitive approaches to drug control and an examination of their amenability to amendment and modification of the schedules, reservations, and denunciation clauses.

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                                                                                                                                                                                                          • Don, Allison E. “Lighten Up: Amending the Single Convention on Narcotic Drugs.” Minnesota Journal of International Law 23.2 (2014): 213–243.

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                                                                                                                                                                                                            Don notes the contradictory behavior of the United States in permitting Colorado and Washington to create legal markets in cannabis, and yet to continue support for the prohibition model in the drug conventions. She proposes that the United States propose amendment of the drug conventions to take cannabis out of the scope of control by the descheduling of cannabis.

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                                                                                                                                                                                                            • Ghodse, Hamed, ed. International Drug Control into the 21st Century. Aldershot, UK: Ashgate, 2008.

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                                                                                                                                                                                                              The longtime chair of the International Narcotics Control Board (INCB) has collected material from the INCB’s annual reports, which highlight what the Board considers to be the major challenges with regard to international drug control. This edited collection touches on various topics of concern to the INCB, including drug legalization, which it does not consider a valid alternative. Indispensable in gaining an understanding of the UN’s mindset concerning drug control.

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                                                                                                                                                                                                              • Global Commission on Drug Policy. War on Drugs: Report of the Global Commission on Drug Policy. Rio de Janeiro, Brazil: Global Commission on Drug Policy, 2011.

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                                                                                                                                                                                                                Recommendation from eminent global leaders for a range of different policies to supplant global drug prohibition, including harm reduction, legalization and treatment, and an end to criminalization.

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                                                                                                                                                                                                                • Hughes, Caitlin Elizabeth, and Alex Stevens. “What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?British Journal of Criminology 50.6 (2010): 999–1022.

                                                                                                                                                                                                                  DOI: 10.1093/bjc/azq038Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                  States parties to the conventions, such as Portugal, are beginning to move away from strict prohibition through decriminalization of use and possession and this research suggests that results have not led to an increase in use.

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                                                                                                                                                                                                                  • Krajewski, Krzysztof. “How Flexible Are the United Nations Drug Conventions?International Journal of Drug Policy 10 (1999): 329–338.

                                                                                                                                                                                                                    DOI: 10.1016/S0955-3959(99)00035-3Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                    Analysis of the wriggle room for reform afforded by the ambiguity of the convention provisions, their non-self-executory nature, and the differences between them. Krajewski examines the provisions for treatment in the 1971 Convention and the 1961 Convention as amended by the 1972 Protocol, but his main contribution is a nuanced contextual interpretation of Article 3(2) of the 1988 Convention’s obligation to criminalize possession.

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                                                                                                                                                                                                                    • Room, Robin. “Reform by Subtraction: The Path of Denunciation of International Drug Treaties and Reaccession with Reservations.” International Journal of Drug Policy 23.5 (2012): 401–406.

                                                                                                                                                                                                                      DOI: 10.1016/j.drugpo.2012.04.001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                      This article analyzes the course taken by Bolivia, namely denunciation of a provision and then reaccession with reservation (in its case to the provision prohibiting agricultural production of coca leaf for chewing), suggesting that, instead of utilizing “wriggle room” within a liberal interpretation of the drug convention’s provisions, this step could be used more generally by other parties that wish to reform the system. Available online for purchase or by subscription.

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