Part IV

Public Policy Options

Chapter 19

The International Legal Environment

This chapter could begin and end with the same words: The international drug control conventions are, with respect to cannabis at least, an utterly irrational restraint that has nothing to do with scientific or public health considerations.

Very useful restraint, to be sure, if one favours prohibition, for when the advocates of such policy run out of scientific and public health arguments, they can simply fall back on the conventions that Canada has signed. More than signed, in fact: owing to the efforts of certain men, police officers and federal public servants, Canada was a leading proponent of those conventions.

Currently, three conventions govern the entire life cycle of drugs, from cultivation of the plants to their consumption: the Single Convention on Narcotic Drugs, 1961 (Single Convention),[1][1] the 1971 Convention on Psychotropic Substances (Psychotropics Convention)[2][2] and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Trafficking Convention).[3][3] They create not only international law concerning drugs but also control mechanisms and bodies, both political and bureaucratic.

Yet these agreements have a history that began well before the Single Convention, a history that sheds light on the issues that led to their development and on their contemporary significance. That is the subject of the first section. The conventions create obligations, as shown in the second section, detailed obligations that are morally rather than legally binding. And they are a patchwork of compromises that leave states with some leeway, as we shall see in the third section.

 

 

A genealogy

 

The genealogy of the international conventions governing drug production and trade is fascinating and unique. The story begins in the mid-19th century, when Britain and China fought two opium wars, both quickly won by the British. In this era, the roles were reversed: the British owned the lucrative opium monopoly of the East India Company and refused to relinquish it, while the Chinese had been trying for decades to stamp out opium use, not so much for health reasons as for economic ones, since this trade was exacting a heavy toll.

China had long exercised the upper hand in its economic relations with the Occident. Silks, teas, fine pottery, and other items flowed west. Yet the Middle Kingdom desired little from the outside. (…) Encouraging the China opium trade therefore solved several related problems for colonial governments. Opium production provided a living for numerous peasants, merchants, bankers, and governments officials. Exports to China earned hard currency, thereby reducing specie outflow. [4][4]

 

While Britain balked at introducing control mechanisms that would deprive it of hard currency, the United States realized at the turn of the century that this was a perfect opportunity to assert itself on the international scene.

The drug story’s geopolitical ingredients blended with well-known domestic political interests, racist attitudes and economic interests in a complex cocktail. In Chapters 11 and 12, we touched on certain aspects of the anti-Chinese racism that marked the turn of the century in Canada. The same phenomenon existed in the U.S.

 

 [Translation] The United States had a number of reasons for acting on this proposal. The official reason was a moral one: at a time when the temperance leagues and the churches were demanding Prohibition, puritan America decided to take the lead in civilization’s world crusade. It claimed to be protecting uncivilized races from the ravages of opium and alcohol. But it also had some less virtuous reasons. Under pressure from the trade unions, which feared competition from Chinese labour, it passed the Exclusion Laws, openly xenophobic legislation whose purpose was to control the yellow peril. It therefore spread the myth of the ‘unsavoury Chinese opium addict,’ devoted to his habit and ready to contaminate American youth. [5][5]

 

Naturally, the Chinese government vigorously protested against the Exclusion Laws, but the Middle Kingdom, a victim of its conflicts and its internal disorganization, lacked the resources to make an impact on the international scene. While continuing to combat opium use within its own territory, China set about promoting poppy cultivation at the local level.

The pharmaceutical industry, which had been booming since the mid-19^th century, was able to produce more and more low-priced medicines, many of which contained extracts of coca or opium.

 

The mid-1880s euphoric reaction of cocaine set off a chain reaction. Pharmaceutical companies rushed to fill orders, but fresh coca leaf was unavailable in sufficient quantity. Consequently, the price skyrocketed. To meet demand and share in the profit, several imperial powers stepped up efforts to develop commercially saleable coca. (…) Within a few years, coca production increased dramatically, coca paste processing became commonplace, coca leaves became a commodity traded on the international market and pharmaceutical manufacturers competed for business on the basis of price, availability, and quality of product. Hardly available in 1885, cocaine became quickly emblematic of the modern, technological, international, political economy. (…) By the early twentieth century, cocaine ranked third in terms of dollar value among drugs. The popularity of the two drugs superseding cocaine, morphine and quinine, resulted from the same constellation of factors – a burgeoning pharmaco-industrial complex. [6][6]

 

The third factor was the growing professionalism and social power of the medical community. The latter was essentially working against a form of popular medicine, ostensibly because it was a source of abuse and charlatanism, but mostly because it was practised outside the medical establishment and thus was less tightly controlled by scholarly medical “authority”. Certain of its science, the powerful medical lobby would quickly swing into action and demand the regulation of drugs and sole authority to diagnose and prescribe.

Last but not least, there were moral considerations. The temperance movements fighting the moral and social “vices” of alcohol and drugs were growing rapidly and carried substantial political clout, which the prohibitionists wielded brilliantly.

The last piece of the puzzle was the 1906 decision by Britain’s new Liberal government to oppose the forced opium trade between India and China, which made it possible for the Chinese government to launch an extensive campaign against opium consumption and production. In 1907, the British agreed to reduce exports of Indian opium to China by 10 per cent a year, provided that China would permit independent verification of its own production cuts. The accord proved more effective than the two countries expected, until the Manchu (Ch’ing) dynasty fell in 1911. After that, the Chinese warlords began encouraging opium production on a large scale to finance their military spending. Nevertheless, future prohibition advocates would view the 1907 “ten-year agreement” as the first successful opium “treaty”; for the next 60 years. This agreement was to set the tone for international drug control negotiations.[7][7] The stage was now set for the first in a long series of international conferences, treaties and conventions, as shown in the table below.[8][8]

 

Multilateral Agreements on Narcotics and Psychotropic Substances[9][9]

 

¹  This is the only document in the table that is not an enforceable multilateral treaty. It is included because it marks the beginning of substantial international cooperation on drug control.

²  China, the Netherlands, and the U.S. implemented the Convention in 1915 (Honduras and Norway followed suit later that year). It did not come into force globally until it was incorporated into the Treaty of Versailles in 1919.  

³  As amended by the Protocol signed at Lake Success, New York, on 11 December 1946.