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International control of the legitimate trade in narcotic drugs

Published online by Cambridge University Press:  07 July 2009

W. Bogaard
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Extract

This article attempts to review the international regulations concerning the control of legitimate trade in narcotic drugs. This necessitates an examination of what narcotic drugs are, their social, medical and economic aspects and whether the control exercised is reasonably proportionate to any dangers the various drugs may present. Up to now eleven multilateral agreements on drugs control have been concluded. It is worth examining whether they show some correlation and, if so, what kind.

Type
Section A: Articles
Information
Netherlands Yearbook of International Law , Volume 3 , December 1972 , pp. 97 - 133
Copyright
Copyright © T.M.C. Asser Press 1972

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References

1. In this article the following terms are used synonimously: drug, narcotic drug, narcotic and psychotropic substance. See at p. 133 a chart showing successive phases from the production of the raw material to the finished consumable substance.

2. Quoted from the Laudrin Report (see n. 3 below) p. 31.

3. Rapport fait au nom de la commission des affaires sociales et de la santé publique sur la nécessité d'une action communautaire dans le domaine de la lutte contre la drogue. European Parliament, Session Documents 1971–1972, Doc. 229/71, of 14 January 1972, French version p. 31. The report is hencetoforth to be referred to as the Laudrin Report after its rapporteur, Hervé Laudrin.

4. These and other pharmacological data are taken from Olthuis, H., “Omgang met psychotrope stoffen”, 4 Geneesmiddelenbulletin (1970) pp. 65–106.Google Scholar

5. Cf. Achtergronden en risico's van druggebruik, Rapport van de Werkgroep Verdovende Middelen (Backgrounds and dangers involved in the use of drugs, Report of the Working Group on Narcotics) (The Hague, 1972) pp. 29–35.Google Scholar

6. In the author's opinion the control should primarily cover the drugs which are most dangerous for the user. Cf. H.J. van der Helm, Analysis of illicit drugs (Stichting Drugs Informatie, no date). This study contains the results of a study of the black market. It shows that out of 308 samples of drugs sold as cannabis, 258 were pure while the remainder was either inpure or consisted of totally different substances.

7. See infra pp. 107–109.

8. These and other data are those returned to the INCB and are taken from the INCB statistics covering the year 1970, E/INCB/15.

9. The published figures do not include the People's Republic of China and the Democratic People's Republic of Korea.

10. No survey is given here of the manufacture of synthetic drugs because of the great variety of the substances involved.

11. See Lowes, Peter D., The Genesis of International Narcotics Control (Geneva, 1966)Google Scholar, and Hamilton, Wright, “The International Opium Commission”, 3 AJIL (1909) pp. 648–673 and 828–868.Google Scholar

12. International Opium Convention, The Hague 23 January 1912, 8 LNTS p. 189.

13. See Hamilton, Wright, “The International Opium Conference, Part I”, 6 AJIL (1912) pp. 865–889Google Scholar, and id. Part. II, 7 AJIL (1913) pp. 108–139.

14. Covenant, Art. 23. Italics added.

15. Annuaire de la Societé des Nations 1920-1927, p. 611 ff.Google Scholar

16. International Opium Covention, Geneva 19 Februari 1925, 81 LNTS p. 318. See on this Convention: van Wettum, W.G., “Les Conférences de l'Opium à Genève (3 novembre 1924 - 19 février 1925) et leurs résultats mis en regard de ceux de la conférence de La Haye (1912)”, Annuaire Grotius 1927 pp. 63–78.Google Scholar

17. Agreement concerning the repression of the manufacture of internal trade in and use of prepared opium, Geneva 11 February 1925, 51 LNTS p. 337.

18. In this article the following abbreviations are used: INCB – International Narcotics Control Board, PCB – Permanent Central Board, SB – Supervisory Body.

19. Agreement concerning the suppression of opium smoking, Bangkok 27 November 1931, 177 LNTS p. 373.

20. Convention for limiting the manufacture and regulating the distribution of narcotic drugs, Geneva 13 July 1931, 139 LNTS p. 301. See on this Convention: Wright, Q., “The Narcotics Covention of 1931”, 28 AJIL (1934) pp. 475–486CrossRefGoogle Scholar, and Baily, S.H., “The convention for limiting the manufacture and regulating the distribution of narcotic drugs”, 14 BYIL (1933) pp. 153–155.Google Scholar

21. In 1936 the Convention for the suppression of the illicit traffic in dangerous drugs, Geneva 26 June 1936, 198 LNTS p. 299 was concluded. See on this Convention: Starke, J.G., “Convention of 1936 for suppression on traffic in dangerous drugs”, 31 AJIL (1973) pp. 31–43.CrossRefGoogle Scholar

22. Protocol signed at Lake Success, New York 11 December 1946, amending the agreements, conventions and protocols on narcotic drugs concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925, and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936, 12 UNTS p. 179.

23. Protocol bringing under international control drugs outside the scope of the Convention of 1931, Paris 19 November 1948, 44 UNTS p. 277.

24. Protocol for limiting and regulating the cultivation of the poppy plant and the production of, trade in and use of opium, New York 23 June 1953, 456 UNTS p. 56.

25. Single Convention on Narcotic Drugs, New York 30 March 1961, 520 UNTS p. 204. The Convention entered into force on 13 December 1964. See on this Convention: Lande, A., “The Single Convention on Narcotic Drugs, 1961”, 16 International Organization (1962) pp. 776–797CrossRefGoogle Scholar; Goodrich, Leland M., “New trends in narcotics control”, 530 International Conciliation (1960) pp. 181–242Google Scholar; Gregg, Robert W., “The United Nations and the Opium problem”, 13 ICLQ (1964) pp. 96–115CrossRefGoogle Scholar; Samuels, J.W., “International control of narcotic drugs and international economic law”, 7 Can. Y.I.L. (1969) pp. 192–223Google Scholar; Waddell, Ian G., “International narcotics control”, 64 AJIL (1970) pp. 310–323CrossRefGoogle Scholar; Leinwand, Mark A., “The international law of treaties and United States legalization of marijuana”, 10 Col.J. Transn.L. (1971) pp. 413–441Google Scholar; and Bassiouni, M.C., “Transnational control of narcotics”, Proc. A.S.I.L. (1972) pp. 227–232.Google Scholar

26. Protocol amending the Single Convention on Narcotic Drugs, 1961, Geneva 25 March 1972, 11 ILM (1972) p. 804 ff.

27. United Nations Convention on Psychotropic Substances, Vienna 21 February 1971, 10 ILM (1971) p. 261 ff. See on this Convention: Claude-Henri, Vignes, “La convention sur les substances psychotropes”, 17 AFDI (1971) pp. 641–656Google Scholar. The Netherlands has not signed this Convention.

28. Cf. for example, the preambles of the 1912 Hague Convention (“suppression of … abuse”), the 1925 Geneva Convention and the 1961 Single Convention.

29. See the preambles of the 1912 Hague Convention and of the 1931 Geneva Convention, and Arts. 21, 22, 24 and 30 of the Single Convention.

30. See the 1912 Hague Convention, Art. 1; 1931 Geneva Convention, Arts. 13 and 14; 1961 Single Convention, Art. 2.

31. See the 1912 Hague Convention, Art. 20; 1925 Geneva Convention, Art. 28; 1936 Convention, Arts. 2 and 5; 1961 Single Convention, Arts. 35 till 39.

32. See the preambles of the 1912 Hague Convention, the 1925 Geneva Convention and the 1961 Single Convention; and the 1936 Convention, Art. 12.

33. See for a similar survey of the measures: Samuels, J.W., op. cit., 7 Can. Y.I.L. (1969) p. 198.Google Scholar

34. 1961 Single Convention, preamble.

35. The international legislation prior to 1961 is still effective in relation to non-Parties to the es 1961 Single Convention. This legislation is dealt with as if no longer effective at all, because er the greater part of all states is Party to the 1961 Single Convention.

36. 1925 Geneva Convention, Art. 4.

37. See, on these institutions, infra p. 107 n. 61.

38. 1925 Geneva Convention, Art. 10.

39. 1925 Geneva Agreement, Art. XI.

40. 1931 Geneva Convention, Art. 13.

41. Id. Art. 11. The provision dealt only with the trade of products obtained from phenanthrene alkaloids of opium or from the ecgonine alkaloids of the coca leaf. The drafters evidently did not foresee the possibility of new psychotropic substances being discovered.

42. 1948 Paris Protocol, preamble.

43. Id., Art. 1.

44. Id., Art. 2.

45. See its full name and its preamble.

46. 1961 Single Convention, Arts. 2 and 3.

47. List IV includes cannabis though this substance does not seem to cause habituation.

48. See infra p. 109 ff.

49. 1961 Single Convention, Art. 2.

50. Id., Art. 2, in conjunction with Arts. 22–28.

51. Id., Art. 3.

52. 1972 Geneva Protocol, Art. 1, amending Art. 2 of the 1961 Single Convention.

53. 1971 Vienna Convention, Arts. 2–4.

54. Covenant, Art. 23. Cf. supra p. 101.

55. 1925 Geneva Convention, Art. 19. On the Permanent Central Board, see also supra p. 102.

56. Id., Art. 20.

57. Id., Arts. 21, 22 and 23.

58. Id., Art. 24.

59. Id., Art. 27.

60. 1931 Geneva Convention, Art. 5 paras 6 and 7. On the Supervisory Body, see also supra p. 102.

61. The Health Committee was the executive organ of the Health Organization, which was an auxiliary organization of the League. The Office International d'Hygiène Publique was established under the Arrangement between the US and other Powers for the establishment of the International Office of Public Health, Rome 9 December 1907, 3 AJIL Supp. (1909) p. 152. The two institutions were the predecessors of the World Health Organization. Cf. Walters, F.P., A history of the League of Nations (London, 1960), p. 180 ff.Google Scholar

62. 1931 Geneva Convention, Art. 2(2).

63. Cf. May, Herbert L., “Narcotic Drug Control”, 485 International Conciliation (1952) pp. 491–536, at pp. 503–508.Google Scholar

64. UN Yearbook 1946/1947, pp. 536–537.

65. 1946 Lake Success Protocol, Art. 2.

66. 1961 Single Convention, Art. 5.

67. Id., Art. 8.

68. Id., Arts. 9 and 10.

69. Id., Arts. 12, 13, 19 and 20.

70. Cf. infra, p. 117 ff.

71. 1961 Single Convention, Art. 14. Cf. infra, p. 120 ff.

72. Id., Art. 15.

73. 1972 Geneva Protocol, Art. 2. The text would constitute a new paragraph (4) of Art. 9 of the 1961 Single Convention.

74. 1972 Geneva Protocol, Art. 2. Under this provision ten instead of eight members are to be elected by the UN Members and Parties which are not UN Members.

75. 1961 Single Convention, Arts. 9 and 10.

76. UN Yearbook 1964, p. 339.

77. UN Yearbook 1968, p. 521.

78. 1961 Single Convention, Art. 45(2). The Convention here replaces old institutions without the consent of those States that are not Parties to the Convention but that did participate in the creation of those institutions.

79. 1925 Geneva Convention, Art. 21.

80. Id., Art. 22.

81. Id., Art. 23.

82. Id., Art. 27.

83. 1931 Geneva Convention, Art. 2.

84. Id., Art. 5. The total of the estimates for each country or territory consisted of the sum of the amounts specified under (a) and (b) with the necessary addition or deduction in order to keep the reserve stocks and the Government stocks at the desired level. These additions or deductions were not to be taken into account except in so far as the State concerned had forwarded in due course the necessary estimates to the PCB.

85. Id., Art. 5(7).

86. Id., Art. 3.

87. 1953 New York Protocol, Arts. 8 and 9.

88. The formula for the calculation of the total of the estimates is identical to that determined by the 1931 Geneva Convention, see n. 84 at p. 110.

89. 1961 Single Convention, Art. 12.

90. 1972 Geneva Protocol, Art. 5., amending Art. 12 of the 1961 Single Convention.

91. 1961 Single Convention, Art. 19. The total of the estimates for each territory and each drug consists of the sum of the amounts specified under (a), (b) and (d), with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated in (c).

92. 1972 Geneva Protocol, Art. 9, amending Art. 19 of the 1961 Single Convention.

93. 1961 Single Convention, Art. 20. The statistical returns, except in respect of (d), must be prepared annually and furnished to the INCB not later than 30 June following the year to which they relate. The statistical returns in respect of (d) are to be prepared quarterly and submitted within one month after the end of the quarter. In addition to the matters mentioned the Parties to the Convention may “as far as possible” also furnish information in respect of areas cultivated for the production of opium. This information is now made compulsory by the 1972 Geneva Protocol: Art. 10, amending Art. 20 of the 1961 Single Convention.

94. 1961 Single Convention, Art. 20(4).

95. Id., Art. 13(4).

96. Under Art. 1 of the 1953 New York Protocol, “production means the cultivation of the poppy with a view to harvesting opium”.

97. 1953 New York Protocol, Art. 3.

98. Id., Art. 4.

99. Id., Art. 8(3).

100. Id., Art. 9(1).

101. 1961 Single Convention, Art. 22.

102. Id., Arts. 26–28.

103. Id., Art. 1(1) (t).

104. 1912 Geneva Convention, Art. 1, and 1925 Geneva Convention, Art. 2.

105. 1953 New York Protocol, Art. 6. Cf. also infra p. 118 and 121 n. 152.

106. 1961 Single Convention, Art. 24(1).

107. 1972 Geneva Protocol, Art. 11, adding a new Art. 21 bis to the 1961 Single Convention.

108. 1912 Hague Convention, Art. 6.

109. Id., Art. 9.

110. Id., Art 10. According to Art. 14, all these measures were to be applied to (a) medicinal opium; (b) all preparations containing more than 0.2 per cent of morphine, or more than 0.1 per cent cocaine; (c) heroin, and its salts and preparations containing more than 0.1 percent of heroin; (d) all (new) derivatives of morphine, of cocaine, or of their respective salts, and every other alkaloid of opium, which “may be shown by scientific research, generally recognised to be liable to similar abuse and productive of like ill-effects”.

111. 1925 Geneva Convention, Arts. 2 and 6.

112. Id., Art. 5.

113. 1925 Geneva Agreement, Art. 1.

114. Id., Art. 11.

115. 1961 Single Convention, Art. 21. From the sum of these quantities must be deducted any quantity seized and released for licit use, as well as any quantity taken from special stocks for the requirements of the civil population. If the actual quantity manufactured and imported exceeds the aforementioned resulting quantity, any such excess which remains at the end of the year will be deducted from the quantities for the following year.

116. 1961 Single Convention, Art. 29 (1) and (2).

117. Id., Art. 34.

118. 1972 Vienna Convention, Art. 8(2) (c).

119. 1912 Hague Convention, Art. 2.

120. Id., Art. 3.

121. Id., Art. 5.

122. Id., Art. 7.

123. Id., Art. 8.

124. Id., Art. 12.

125. Id., Art. 13.

126. 1925 Geneva Convention, Art. 12.

127. Id., Arts. 13, 16 and 17.

128. Id., Art. 15.

129. 1925 Geneva Agreement, Art. VI.

130. 1931 Geneva Convention, Art. 12.

131. Id., Art. 10.

132. 1953 New York Protocol, Art. 6. The States were: Bulgaria, Greece, India, Iran, Turkey, USSR and Yugoslavia. Meanwhile Iran has ceased the export.

133. Compare 1961 Single Convention, Art. 31 (4)-(7), with the almost identical provisions of the 1925 Geneva Convention, Art. 13, see supra p. 117.

134. 1961 Single Convention, Art. 31(19)-(13).

135. 1912 Hague Convention, Art. 9.

136. Id., Art. 11.

137. 1925 Geneva Convention, Art. 6.

138. 1931 Geneva Convention, Art. 16(2).

139. See 1961 Single Convention, Art. 30.

140. 1925 Geneva Convention, Art. 6.

141. 1925 Geneva Agreement, Art. I.

142. Id., Arts. II en III.

143. 1931 Bangkok Agreement, Arts. I and III.

144. Cf. 1961 Single Convention, Art. 30.

145. 51 LNTS p. 345.

146. Protocol, Art. IV.

147. 1925 Geneva Convention, Art. 24.

148. Id., Art. 26.

149. Id. Art. 25.

150. 1931 Geneva Convention, Art. 2. See also supra p. 110.

151. 1953 New York Protocol, Art. 11.

152. The statement could also concern a non-Party State, which had “failed to take the necessary measures to prevent the opium situation in any of its territories from becoming a danger to effective control of narcotic substances in one or several of the territories of other Parties or States”. Cf. also 1953 New York Protocol, Art. 13.

153. The embargo could also be directed against a non-Party State for the two last-mentioned reasons and if the PCB found that the State concerned was “seriously impeding the effective administration” of the Protocol.

154. 1953 New York Protocol, Art. 12(3) (b).

155. 1961 Single Convention, Art. 14.

156. 1972 Geneva Protocol, Art. 6, amending Art. 14 of the 1961 Single Convention.

157. See supra p. 112–113.

158. 1972 Geneva Protocol, Art. 5, amending Art. 12 para. 5 of the 1961 Single Convention.

159. The recommendation was initially directed to the five other original EEC Members, but was subsequently also directed to the United Kingdom and the Scandinavian countries.

160. Bulletin du Service d'Information (Ambassade de France aux Pays-Bas) No. 10, October 1971, p. 1.

161. See supra, n. 3 at p. 98.

162. The 1961 Single Convention has not yet been ratified by the German Federal Republic, Italy, and Luxembourg, while no State has yet ratified the 1971 Vienna Convention.

163. Laudrin Report (French version) p. 18.

164. Laudrin Report (French version) p. 19.

165. Proceedings of the European Parliament, Journal Officiel des Communautés Européennes 5 February 1972, No. C 10, p. 9.

166. The Article reads: “Where action by the Community appears necessary to achieve, in the course of operation of the common market, one of the objectives of the Community, and where this treaty has not provided for the necessary powers of action, the Council shall, by unanimous decision, on a proposal from the Commission and after the Assenbly has been consulted adopt the appropriate provisions”.

167. 1953 New York Protocol, Arts. 11–13.

168. See supra, p. 113–114.

169. 1961 Single Convention, Art. 24(5). See also supra p.

170. Id., Art. 25.

171. Cf. supra, p. 98 ff.

172. At present a substantial part of the available man-power is employed in the control of cannabis. If Indian hemp were no longer forbidden then this man-power could be used intensifying the control of more dangerous drugs, such as morphine, etc.

173. 1961 Single Convention, Art. 21; 1931 Geneva Convention, Arts. 6 and 7.

174. 1971 Vienna Convention, Art. 2(4).

175. See supra p. 117 ff.

176. See supra p. 119.