Drugs, International Regulation, and Criminal Liability
- LAST MODIFIED: 24 July 2013
- DOI: 10.1093/obo/9780199796953-0104
- LAST MODIFIED: 24 July 2013
- DOI: 10.1093/obo/9780199796953-0104
Various quite 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 of drugs, manufacture of drugs, and traffic of drugs, as well as “demand” offenses, such as use and possession of drugs. National criminal 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 the structural frameworks agreed to by those states in multilateral treaties adopted for this purpose—the “drug conventions.” The key provision 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.” 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 provisions are intended 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, drugs and to lead indirectly to the penalization of individuals who engage in these activities. While their precise scope and meaning is a matter of increasingly heated debate, these provisions are the foundations of global drug prohibition, a product of cooperation among states during the 20th century.
Nadelmann 1990 places the policy development of the system of drug prohibition in context as a “global prohibition regime” built through interstate cooperation around the suppression of crime. Nadelmann 1990 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 early 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. While Chatterjee 1981 engages in a chronological examination of the development of the system up to the early 1980s, most useful is the article-by-article focus on the provisions of the Single Convention on Narcotic Drugs, done at New York, 30 March 1961; the Convention on Psychotropic Substances, done at Vienna, 21 February 1971; and the Protocol Amending the 1961 Convention on Narcotic Drugs, done at 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 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, done at Vienna, 20 December 1988. A more up-to-date perspective on the penal aspects is provided by Leroy and Thony 2008, but the authors also attempt to counter attacks on prohibition. MacDonald and Zagaris 1992 is dated but points out the “problems” considered to exist in the key period of the late 1980s to early 1990s when the current draconian “drug supply and use as a crime control policy” was shaped. 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 Reports.
Bassiouni, M. Cherif. “The International Narcotics Control Scheme: A Proposal.” St. John’s Law Review 46 (1972): 713–766.
A survey of the eleven international instruments devoted to drug control concluded up until 1972, that 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.
Boister, Neil. Penal Aspects of the UN Drug Conventions. The Hague: Kluwer Law International, 2001.
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.
Chatterjee, S. K. Legal Aspects of International Drug Control. Dordrecht, The Netherlands: Martinus Nijhoff, 1981.
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 Indo-Chinese 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.
International Narcotics Control Board. Annual Reports. 1992–.
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.
Leroy, Bernard, and Jean-Francois Thony. “International Drug Control System.” In Sources, Subjects and Contents. 3d ed. Edited by M. Cherif Bassiouni, 855–906. International Criminal Law. Vol. 1. Leiden, The Netherlands: Martinus Nijhoff, 2008.
The third iteration of the chapter on international drug control in Bassiouni’s third edition of his flagship publication in international criminal law touches upon all of the major legal instruments through which drug prohibition is implemented at an international level. But its main thrust is to examine competing strategies, such as legalization and the war on drugs, and to advocate for a balanced but pro-prohibitionist approach.
Macdonald, Scott B., and Bruce Zagaris, eds. International Handbook on Drug Control. Westport, CT: Greenwood, 1992.
The virtue of this now-dated collection is the comprehensive country reports on the nature of the drug supply and demand, placed in the context of international efforts to control drugs.
Nadelmann, Ethan A. “Global Prohibition Regimes: The Evolution of Norms in International Society.” International Organisation 44.4 (1990): 479–526.
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.
United Nations Office on Drugs and Crime (UNODC). World Drug Report. 1997–.
Detailed analysis of the global drug problem accompanied by statistical data.
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