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.

  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.

• 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.

  DOI: 10.1007/978-94-011-9263-7

  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.

• 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. “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.

  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.

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

  DOI: 10.1017/S0020818300035384

  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.