Chapter 19 - The International Legal Environment

The three current conventions

The Single Convention on Narcotic Drugs, 1961

The Single Convention has played a central role in the creation of the modern prohibitionist system of international drug control. It is a continuation and expansion of the legal infrastructure developed between 1909 and 1953.

The work of consolidating the existing international drug control treaties into one instrument began in 1948, but it was 1961 before an acceptable third draft was ready to be presented for discussion at a plenipotentiary conference.[1][50] The conference began in New York on 24 January 1961, and was attended by 73 countries, each “with an agenda based on its own domestic priorities.”[2][51]

William B. McAllister has divided the participating states into five distinct categories based on their drug control stance and objectives.

··        Organic states group: As producers of the organic raw materials for most of the global drug supply, these countries had been the traditional focus of international drug control efforts. They were open to socio-cultural drug use, having lived with it for centuries. While India, Turkey, Pakistan and Burma took the lead, the group also included the coca-producing states of Indonesia and the Andean region of South America, the opium- and cannabis-producing countries of South and Southeast Asia, and the cannabis-producing states in the Horn of Africa. They favoured weak controls because existing restrictions on production and export had directly affected large segments of their domestic population and industry. They supported national control efforts based on local conditions and were wary of strong international control bodies under the UN. Although essentially powerless to fight the prohibition philosophy directly, they effectively forced a compromise by working together to dilute the treaty language with exceptions, loopholes and deferrals. They also sought development aid to compensate for losses caused by strict controls.

··        Manufacturing states group: This group included primarily Western industrialized nations, the key players being the U.S., Britain, Canada, Switzerland, the Netherlands, West Germany and Japan. Having no cultural affinity for organic drug use and being faced with the effects that drug abuse was having on their citizens, they advocated very stringent controls on the production of organic raw materials and on illicit trafficking. As the principal manufacturers of synthetic psychotropics, and backed by a determined industry lobby, they forcefully opposed undue restrictions on medical research or the production and distribution of manufactured drugs. They favoured strong supranational control bodies as long as they continued to exercise de facto control over such bodies. Their strategy was essentially to “shift as much of the regulatory burden as possible to the raw-material-producing states while retaining as much of their own freedom as possible.”

··        Strict control group: These were essentially non-producing and non-manufacturing states with no direct economic stake in the drug trade. The key members were France, Sweden, Brazil and Nationalist China. Most of the states in this group were culturally opposed to drug use and suffered from abuse problems. They favoured restricting drug use to medical and scientific purposes and were willing to sacrifice a degree of national sovereignty to ensure the effectiveness of supranational control bodies. They were forced to moderate their demands in order to secure the widest possible agreement.

··        Weak control group: This group was led by the Soviet Union and often included its allies in Europe, Asia and Africa. They considered drug control a purely internal issue and adamantly opposed any intrusion on national sovereignty, such as independent inspections. With little interest in the drug trade and minimal domestic abuse problems, they refused to give any supranational body excessive power, especially over internal decision-making.

··        Neutral group: This was a diverse group including most of the African countries, Central America, sub-Andean South America, Luxembourg and the Vatican. They had no strong interest in the issue apart from ensuring their own access to sufficient drug supplies. Some voted with political blocs, others were willing to trade votes, and others were truly neutral and could go either way on the control issue depending on the persuasive power of the arguments presented. In general, they supported compromise with a view to obtaining the broadest possible agreement.  

The result of all these competing interests was a document that epitomized compromise. The Single Convention clearly upheld and expanded existing controls and in its breadth was the most prohibitionist document yet concluded, though it was not as stringent as it might have been. It was free of the costly features of the 1953 Opium Protocol, such as the provision restricting opium production to the seven specified countries. Sharman no longer negotiated for Canada, and Anslinger had played a minor role in the conference owing to conflicts with the U.S. State Department. The latter was content with the Convention because U.S. influence was assured within the UN supervisory bodies and the prohibitive framework had been expanded to include tight controls over coca and cannabis. Since the U.S. originated the idea of the Single Convention, walking out of the conference would have meant losing face in the UN and given the impression of weakness vis-à-vis the Soviet Union during a tense Cold War period.[3][52]  

The principal foundations of the previous treaties remained in place in the Single Convention.[4][53] Parties were still required to submit estimates of their drug requirements and statistical returns on the production, manufacture, use, consumption, import, export, and stockpiling of drugs.[5][54] The import certification system created by the 1925 Geneva Convention was maintained. Parties were required to license all manufacturers, traders and distributors, and all transactions involving drugs had to be documented.[6][55] The Single Convention built on the trend of requiring Parties to develop increasingly punitive criminal legislation. Subject to their constitutional limitations, Parties were to adopt distinct criminal offences, punishable preferably by imprisonment, for each of the following drug-related activities in contravention of the Convention: cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation.[7][56] Furthermore, the granting of extradition was described as “desirable.”[8][57]  

The Convention assigned substances to one of four schedules based on level of control. Schedules I and IV were the most stringent and covered primarily raw organic materials (opium, coca, cannabis) and their derivatives, such as heroin and cocaine. Schedules II and III were less strict and contained primarily codeine-based synthetic drugs. At the U.S.’s insistence, cannabis was placed under the heaviest control regime in the Convention, Schedule IV. This regime included drugs such as heroin (the WHO considered any medical use of heroin to be “obsolete”). The argument for placing cannabis in this category was that it was widely abused. The WHO later found that cannabis could have medical applications after all, but the structure was already in place and no international action has since been taken to correct this anomaly.

The U.S. was pleased with the Single Convention as it broadened control over cultivation of the opium poppy, coca bush and cannabis plant, though the measures were not as stringent as the ones Anslinger had negotiated in the 1953 Opium Protocol.[9][58] Articles 23 and 24 of the Convention set up national opium monopolies and put very strict limitations on international trade in opium.

Article 49 of the Convention required Parties to completely eliminate all quasi-medical use of opium,[10][59] opium smoking, coca leaf chewing, and non-medical cannabis use within 25 years of the coming into force of the Convention. All production or manufacture of these drugs was also to be eradicated within the same period. Only Parties for which such uses were “traditional” could take advantage of delayed implementation; for others, prohibition was immediate. Since the implementation period ended in 1989, these practices are today fully prohibited, and the drugs may be used only for regulated medical and scientific purposes.

Apart from consolidating the previous treaties and expanding control provisions, the Single Convention also streamlined the UN’s drug-related supervisory bodies. The PCOB and the DSB were merged in a new body, the International Narcotics Control Board (INCB), responsible for monitoring application of the Convention and administering the system of estimates and statistical returns submitted annually by Parties.[11][60] The INCB was to have eleven members, three nominated by the WHO and eight by Parties to the Convention and UN members. The manufacturing lobby’s effectiveness in the negotiations was evident in the knowledge requirement for WHO nominees: “medical, pharmacological or pharmaceutical experience.”[12][61] The INCB was given a limited power of embargo: it could recommend that Parties stop international drug trade with any Party that failed to comply with the provisions of the Convention.[13][62]  

The Convention’s emphasis on prohibition was reflected in the minimal attention paid to drug abuse problems. Only Article 38 touched on the social (demand) side of the drug problem by requiring Parties to “give special attention to the provision of facilities for the medical treatment, care and rehabilitation of drug addicts.” Furthermore, it was considered “desirable” that Parties “establish adequate facilities for the effective treatment of drug addicts,” but only if the country had “a serious problem of drug addiction and its economic resources [would] permit.” The inadequate recognition of demand/harm reduction approaches, such as prevention through education, has been one of the key criticisms of both the Single Convention and international drug control treaties in general.[14][63]  

The Single Convention effectively consolidated several decades’ worth of assorted drug control machinery into one key document administered by one principal body, the United Nations.