The Evolution of the International Control of Narcotic Drugs

Sections

Introduction
Control of Narcotic Drugs Becomes a Matter of International Concern
Control of Narcotic Drugs Becomes a Subject of International Law
The Organized World Society Assumes Jurisdiction
Special Organ Composed of Government Representatives
Independent Organs of Control. Supervision of International Trade
Limitation of Manufacture
International Legislation
Principle of Universality in Penal Law
Post-War Progress
Future Legislative Problems
Applicability of Principles of Control of Narcotic Drugs to Other Fields of International Co-operation
Control of Atomic Energy
Gradualism
Organizational Connexion of the Control Machinery with the League of Nations and with the United Nations
Organizational Flexibility
Due Weight Given to the More Important States
Decisions made by People who can Secure their Execution
Effort to Rule by Consent
Realism in Enforcement Measures
Early Understanding of the Universal Character of the Problem
Allowance for the Co-existence of Different Social and Economic Systems
All Aspects of the Problem taken into Consideration
Indirect Administration
Results Obtained

Details

Author: Herbert L. May
Pages: 1 to 12
Creation Date: 1950/01/01

INTERNATIONAL SECTION

The Evolution of the International Control of Narcotic Drugs

Herbert L. May

Introduction

The international control of narcotic drugs is today accomplished through the functioning of international conventions and agreements requiring national Governments to comply with certain standards of performance, including legislation, regulations and proper administrative units of enforcement, and further requiring full reports to international control bodies. The latter, in effect, supervise the performance by national Governments, give publicity to non-performance, and in certain instances impose sanctions. In the last analysis, successful international control depends upon national Governments, not only in the fulfilment of their obligations but also in the extent to which the authority of these Governments reaches all parts of their domains. As will be seen later, the international control can be exercised even over non-contracting parties, because they need·the substances which only a limited number of other countries, contracting parties, are able to supply. The sanctions provided in the conventions for non-compliance owe their force not only to the moral and social factors, but also partly to this need by the world community for the commodities produced and manufactured in only a limited number of countries.

After this over-condensed picture of international control as it exists today, it is fitting that the problem presented over the years should be examined in a historical sequence.

Control of Narcotic Drugs Becomes a Matter of International Concern

Addiction to narcotic substances was originally considered a domestic problem which could be solved within limits of national jurisdiction and means.[1] It became a matter of international concern by reason of several changes:

( a) The development of modern communications and intensification of international trade facilitated the international distribution of the harmful substances and the spread of addiction; ( b) the conditions of modern industrial society created the psychological atmosphere in which people are more easily tempted to look to drugs for relief from the stresses of modern life; and ( c) the refined active alkaloids and their derivatives were obtained from opium and coca leaves on an increasing scale and, along with their constantly increasing·medical use, alarming tendencies toward their non-medical abuse appeared everywhere.[2] What seemed originally a danger limited to some countries became an increasing threat to the health of the whole world. Attempts at solution by bilateral agreement[3] were followed by multilateral efforts, at first only on a regional basis. Largely on the initiative of President Theodore Roosevelt, the International Opium Commission, composed of Governments having possessions in the Far East, met in Shanghai in 1909. The representatives of the participating countries were not empowered to draw up a convention, but adopted resolutions in which the gradual suppression of opium smoking was recommended, and the danger of addiction to manufactured drugs was for the first time recognized by an international body.

Control of Narcotic Drugs Becomes a Subject of International Law

The International Opium Conference which met at The Hague on 1 December 1911, had been proposed by the United States Government and convoked by the Dutch Government. The Convention adopted by this Conference on 23 January 1912[4] accomplished the following:

  1. It formulated basic principles for the international control of narcotic drugs, which have retained their validity to the present day and which may be summarized as follows:

    Limitation of the manufacture, sale and use of manufactured narcotic drugs to medical and legitimate needs;

    Control of production and distribution of raw opium;

    Gradual suppression of opium smoking; [5]

  2. Raised the obligation to co-operate in the international campaign against the drug evil from a purely moral one to the level of a duty under international law;

  3. Passed from a merely regional to a universal approach to the problem by providing for participation of all European and American States, in addition to China, Japan, Siam, and Persia (Iran), i.e., practically all countries which, in 1912, were considered to be capable of entering into international commitments, in addition to some whose full international personality was at that time considered to be doubtful under international law (China, Siam, Persia); [6]

  4. It provided for the performance of certain limited functions by the Dutch Government as an organ of the international society, and for the exchange of information (of a legal and statistical nature) among the contracting parties through this Government. Similar provisions in many other fields of international administration have indicated the primitive beginnings of a later, more elaborate, system of international control.

Until the conclusion of peace treaties following the First World War, the methods adopted for the international control of narcotic drugs were of a traditional nature. These treaties contained provisions which began to build up the control of narcotics to the exceptional position it now occupies in the sphere of international co-operation.

The Organized World Society Assumes Jurisdiction

This control was made the concern of the international organization which was intended to represent the whole of mankind, the League of Nations. Although Article 23( c) of the Covenant specifically entrusted the League with only general supervision over the execution of agreements dealing with narcotics, the world organization extended its jurisdiction-in spite of initial opposition to this practice-to the whole problem, without particular consideration of limits set to the question by the existing conventions. This was made easier by the wide and rather general character of the provisions of the Hague Opium Convention. The close organizational connexion of international control of narcotic drugs, first with the League of Nations and now with the United Nations, represents one of its most characteristic and-as experience has shown-one of its most valuable features. By this organizational set-up the backing of such powerful organs of international public opinion as the Council and Assembly of the League, and the Economic and Social Council and the General Assembly of the United Nations, was assured. In other fields of international administration of economic matters action is often pushed by powerful economic interests, sometimes even in opposition to wide sections of international public opinion.[7] The international fight against the drug evil cannot equally rely on direct economic interests. Its main source of strength is the interest of mankind as a whole, represented by international public opinion. On the forum of the United Nations pressure can be brought to bear on opposing economic interests. The latter are by no means always of a wanton nature, but are sometimes rooted in the agricultural pattern of a country.[8]

There were other operating functions of the League of a non-political nature, such as those relating to international co-operation in the field of health; but they were finally transferred to specialized agencies. This was facilitated in the field of health by the fact that the medical profession, which in some countries wields important political influence, is often capable of intervening if a national Government does not give reasonable assistance to the work of the World Health Organization. No such organized interest is available to act on behalf of the aims of international control of narcotic drugs. It is necessary to keep in mind the difference between economic control measures motivated by economic interests and such measures motivated by other considerations-in our field, predominantly social-if one is to understand the special methods employed by the international administration of narcotic drugs.[9]

The international control of narcotic drugs is the only operating function exercised at the present time by the United Nations in a non-political field.

The peace treaties ending the First World War contained another somewhat unorthodox measure which contributed to the fact that conventions for the control of narcotic drugs became some of the most widely ratified treaties of a non-political nature. The ratification of the peace treaties was, in the case of Powers which had not yet ratified the Hague Opium Convention, "deemed in all respects equivalent to the ratification of that Convention" (method of simultaneous ratification). The wide acceptance of the international instruments dealing with the narcotics problem is a characteristic feature of this branch of international administration.[10]

Special Organ Composed of Government Representatives

The League of Nations, at the first session of its Assembly, established a specialized machinery to deal with its functions in the field: the Advisory Committee on Traffic in Opium and Other Dangerous Drugs. This Committee, like its successor the Commission on Narcotic Drugs of the Economic and Social Council of the United Nations, performed the functions of a policy-making body for the control system. The voting members have been representatives of Governments. Although this composition of the Committee (now the Commission) has been criticized,[11] it is generally held to have contributed to the fact that proposals of further progress have been considered not only in the light of what was ideal but also in the light of what might be acceptable to those Governments whose co-operation was indispensable. The present Commission on Narcotic Drugs is the only Commission of the Economic and Social Council whose composition is based on straight governmental representation.

It was early realized that it is not irrelevant to take into account which States are in the forefront of the international campaign against the drug evil. Privileged consideration was given to representation on the Committee by those States whose contribution counted most. In this way it was assured that the important producing and manufacturing countries, and those countries in which illicit traffic in narcotic drugs constituted a serious social problem,[12] were represented. By a method specially adapted to the needs of narcotics control, the principle of "weighted" representation was adopted, assuring thereby an equitable proportion of membership seats to all main interests in the field, yet without formally abandoning the principle of legal equality of States. The original Assembly resolution, which established the Advisory Committee, itself provided for representation of "the countries chiefly concerned". The same principles are continued in the existing Commission. The Economic and Social Council of the United Nations, at its eighth session, decided, on 2 March 1949, that ten members of primary importance in the field should be appointed to membership of the Commission for an "indefinite period" while the term of office of the five remaining members should be five years.[13] The principle of permanent membership of the more important countries was in fact adopted, although any reference to this controversial matter was avoided.

Independent Organs of Control. Supervision of International Trade

Under the auspices of the League, the international control of narcotic drugs made continuous progress. The International Convention relating to the Control of Narcotic Drugs, signed at Geneva on 19 February 1925,[14] brought the international trade of narcotic drugs under effective international supervision.

  1. The system of import certificates and export authorizations was introduced to assure that every international transaction in narcotic substances is controlled from both ends, i.e., by the competent authorities of the importing country as well as those of the exportingcountry. The method had been developed by the United Kingdom for other purposes during the First World War and was adopted by the Advisory Committee for the international trade in narcotics.[15] At the time of the conclusion of the Convention the system was already used by many countries. Its inclusion in the Convention was intended to induce those countries which had no adopted the system to do so. This offers an example of one of the most important functions of international legislation, to lift the practices of countries which are lagging in certain fields to the level of those countries that are more advanced as regards the problem in question.

  2. The Permanent Central Board was established to watch continuously the course of the international trade in narcotic drugs. To this end the contracting parties undertook to furnish the Board with detailed annual and quarterly statistical returns.[16] They also obtained "the friendly right ... to draw the attention of the Board to any matter which appears ... to require investigation".[17]

    If the information at its disposal leads the Board to conclude that a country is in possession of excessive quantities of narcotic drugs and (or)[18] is in danger of becoming a centre of the illicit traffic, the Board is authorized to start a procedure in the course of which it can ask the offending country for explanations. In case no explanations are given within a reasonable time, or unsatisfactory ones are given, it can recommend the imposition of an embargo of narcotic drugs. The Convention of 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs[19] extended the right of the Permanent Central Board to recommend the imposition of' an embargo to cases in which a contracting party failed to carry out its obligations under the estimate system of this Convention. The Board was also authorized to impose an import embargo of narcotic drugs, but only for the "currency of the year in question", on any country no matter whether it is a party to the Convention of 1931 or not, whenever it appears from the statistical returns regarding imports and exports made to the Board, or from the notifications made to the Board of exports to territories which are subject neither to the 1925 nor the 1931 Convention, that the estimates of the country or territory in question are being exceeded.[20]

    By these provisions, in accordance with definite rules of procedure, the Board decides on the existence of facts, which if established would constitute a breach of certain international obligations defined by the Conventions of 1925 and 1931. In this respect the Board carries out functions, although in a limited technical field, which are provided for in general terms by the statutes of the former and present world courts.[21] The Board is, however, also authorized to impose sanctions, closely defined by the Conventions, to enforce its legal opinions. Neither the Permanent Court of International Justice was, nor the International Court of Justice is, authorized to enforce its legal decisions. Such enforcement has not been obligatory, and is now left to the Security Council, which, at its discretion, may settle the question in accordance with political considerations.[22] Furthermore the sanctions for given violations of law are not defined. However, in this limited respect the Permanent Central Board may be said to represent a more advanced type of governmental organ of international society than the world court.

  3. The Permanent Central Board was set up by the Convention of 1925 as an impartial body whose members should not be Government representatives but should serve in a personal capacity, not holding any offices which would put them in a position of direct dependence on their Governments. They are to be men who "by their technical competence, impartiality and disinterestedness, will command general confidence".[23]

    States are traditionally very reluctant to grant judicial authority in advance to an international organ on which they are not represented. The proposal of the second International Conference at The Hague to establish a court of arbitral justice failed because many Governments did not want to submit to the authority of a world court on which they were not to be represented, and therefore no satisfactory formula could be found by which the judges would be elected. Even the Statutes of the Permanent Court of International Justice and of the present International Court of Justice provide that "if the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge" and "if the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge".[24] There is not even such a vestige of governmental representation on the Permanent Central Board.

  4. The "embargo" sanctions which can be recommended under the terms of the Convention of 1925 or can be imposed under the provisions of the Convention of 1931 can be directed against parties to these Conventions and also against non-parties who do not comply with the aims of the Conventions.[25] The same principle of universality was adopted by the Covenant of the League [26] and by the Charter, but is unique in a nonpolitical field.

Limitation of Manufacture

The International Convention of 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs introduced the obligatory estimate system [27] to carry out the principle of limiting the manufacture and trade of narcotic drugs to medical and scientific purposes. Each country is to furnish, annually, advance estimates of the narcotic drugs needed for these purposes. These estimates are binding and determine the maximum amounts to be manufactured or imported in any given year. The estimates are examined by the Supervisory Body, an organ composed of four experts on a personal basis, i.e., they are not Government representatives. The Supervisory Body may require further information from Governments on their estimates and may with their consent change the estimates. It publishes an annual statement of estimates for each country or territory and if considered necessary an account of the explanations given by the Government or required from them. Although estimates are made by each individual country which co-operates in this system, the Supervisory Body, by its right to examine the estimates and to demand explanations, has succeeded, with the strength of public opinion at its back, in reducing the manufacture of narcotic drugs to approximately the world's medical and scientific needs.

The Supervisory Body is authorized to establish estimates for those countries which fail to furnish them, no matter whether they are parties to the Convention of 1931 or not. The Permanent Central Board is called upon to request estimates for countries and territories to which the Convention does not apply. This principle of universal application of the Convention found its reflection also in the provision that no export of narcotic drugs exceeding the amount of five kilogrammes, to territories to which neither the 1925 nor the 1931 Conventions apply, should be made until it is ascertained from the Permanent Central Board that the estimates of the importing territory will not be exceeded. Lesser exports to such territories are also notified to the Board.[28]

In a period of transition, characterized by constant tensions in the political sphere of international relations, the feeling for the pioneering and revolutionary character of such provisions may be dulled. States agreed, in effect, under the terms of the Convention of 1931, to determine the amount of imports by all countries of certain commodities on the basis of conditions to which a country whose imports were in question may never have given its consent. It has been stated that "the estimate System introduced for the first time into a general Convention the essential principles of a planned economy on a world scale for a particular industry".[29] The various commodity agreements, although often assuring the co-operation of the more important producers, never succeeded in achieving a similar degree of universality.

International Legislation

The Convention of 1931, also, represents a very interesting attempt at international legislation in the sense given this term in national societies, a sense which is, as a rule, alien to international law. It was provided that the Convention should enter into force as soon as it was ratified by twenty-five countries including five of the ten most important manufacturing countries, there listed.

Once in force [30] the Convention was to apply, in fact, to non-contracting countries. The authors of the Convention applied two methods which underlie all organizedattempts at influencing human behaviour: the consent of those whose co-operation will enable the execution of the rule of social behaviour to be effective; and pressure on possible dissenters. It is quite conceivable that in the beginnings of tribal society similar occurrences (consent and pressure) took place, sanctity, however, being given to the rules of behaviour by reference to a divine authority. Many rules of customary international law also owe their existence to the same factors: concordant practice of the States which are chiefly important in the field in question (e.g., in maritime affairs) and inducing, by various degrees of pressure, the other countries to acquiesce in the matter. It is true that the authors of the 1931 Convention did not claim legalforce for the rules they intended to apply to non-contracting parties, but they-'desired to give these rules the same effect as if they were law, and they were willing to apply appropriate pressure.

The Convention of 1925 had already provided for universal application of some of its provisions.[31] , It was to enter into force when ratified by ten States including seven of the more important ones, which were, however, not necessarily those most important in the drug field.[32] The Protocol of 1948[33] followed the method adopted by the Convention of 1931: ratification of a universally applicable international instrument by a limited number of States including some of the more important ones in the field. [34]

The Convention of 1931 established also a procedure by which new drugs, obtained from the phenanthrene alkaloids of opium or the ecgonine alkaloids of the coca leaf, could be placed under control without requiring consent from the contracting countries.[35] The Protocol of 1948 created a procedure for placing other drugs, whether synthetic or natural, under international control without requiring consent.[36]

The Convention of 1925 provided for recommendations of the Health Committee[37] of the League of Nations in order to place additional drugs under control. These recommendations, however, are binding only on such countries as accept them expressly. The Health Committee was also authorized to exempt certain preparations containing narcotic drugs from control. No con- sent of the contracting parties is required for such a measure, which involves, of course, a decrease in the burdens imposed upon national Governments.[38] By the Convention of 1912 extension of the substantive scope was left to national legislation.[39]

Speed in extending international control to new drugs is essential. Otherwise addiction may be established in various parts of the world and additional stores of dangerous drugs, not accounted for, may be piled up before effective measures of protection can be taken. The procedure by which the World Health Organization (or formerly the Health Committee of the League) examines the properties of a new drug 'which is suggested for international control,[40] is, of necessity, time consuming. Therefore, provisional measures seem necessary. The so-called "May proposal" aimed at preventing manufacture or trade in a new drug (which might be likely to cause addiction), until it should be decided whether to place it under international control.[41] , The Convention of 1931 adopted the idea underlying this proposal, by providing that, pending the decision of the Health Committee of the League of Nations (or, at present, the World Health Organization), control would apply to a new drug obtained from any of the phenanthrene alkaloids of opium or ecgonilie alkaloids of the coca leaf.[42] The new Protocol of 1948 dropped the limitation to certain groups of alkaloids and abandoned the automatic character of these provisional measures. The Commission on Narcotic Drugs is authorized to decide whether such measures should be applied.[43] When the new Protocol enters into force, the Commission will be the only organ of the United Nations, other than the Security Council and the International Court of justice, entitled to adopt decisions that are binding on individual Governments-excepting, of course, "corporate" decisions within the jurisdiction of. the General Assembly, such as allocation of financial contributions.

Principle of Universality in Penal Law

The international campaign against the drug evil re- quires for its effectiveness adequate penal sanctions, not capable of evasion on the basis of legal technicalities. The more important offences in this field are nearly always international in nature involving smuggling between countries and offenders of several nationalities. In this respect the illicit traffic in narcotic drugs offers problems similar to the traffic in women and children and to the counterfeiting of currency.

The most dangerous criminals in the international traffic often do not handle the actual narcotic drugs at all, but instigate, conspire, finance, and direct the operations. Frequently they reside outside the jurisdiction of the country in which the actual operations take place

It is therefore desired that all countries:

  1. Impose penalties which have a deterring effect, particularly prison terms rather than fines;

  2. Punish all kinds of participation in these criminal acts such as conspiracy, attempts and preferably also preparatory" acts;

  3. Apply the principle of universality in their criminal law dealing with narcotic offences, i.e., punish per- sons, whether nationals or foreigners who commit the crimes in any part of the world, and also consider of- fenders as subject to extradition in appropriate cases.

The Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs [44] tried to obligate the contracting parties to adopt these principles in their penal systems. It is, however, extremely difficult to bring about the adoption of uniform penal sanctions and principles of criminal law on an international basis. This is due to differences in national characteristics, in religious, moral, social, and economic circumstances, and also to different criminological theories. A prison term which may be considered harsh by the nationals of one country, and have the desired deterring effect, may prove to be too lenient for nationals of another country. The 1936 Convention had, therefore, to limit itself to the formulation of general principles which may seem vague. It also permitted loopholes in order to secure the adherence of countries which otherwise would not have been willing to become parties. Even so, there are at present no more than fifteen [45] countries which have ratified this Convention. The United States has recently reiterated its decision not to accede.[46] It had refused to sign at the conference itself, considering it ineffective and impracticable in some respects and in other ways inadequate.[47] It must be conceded that this Convention does not yet offer a completely satisfactory solution of the problems with which it deals. Its general acceptance may nevertheless be desirable because it offers an international standard which can be used in the criticism of countries whose penal system is not effective in combating traffickers. The formulation of general though somewhat vague principles as rules of international law is often a very useful beginning in their realization.

Opium-Smoking

The problem of opium-smoking was the starting point of international action in the field of narcotic drugs. The Convention of 1912 established the duty of gradual suppression of this habit as a principle of international law. Two Agreements [48] of the countries having territories in which opium smoking constituted a serious problem attempted to advance the process of suppression by such measures as establishing opium monopolies, providing for government ownership of retail shops selling smoking opium, licensing and rationing of smokers, prohibition of sale to minors, educational measures, etc. Many Governments, including the Government of the United States, considered the progress made in the Far Eastern possessions of European countries too slow and highly unsatisfactory. During the Second World War when these possessions were occupied by the Japanese army, the United States State Department approached the Governments of the United Kingdom, France and the Netherlands to suggest a policy of complete prohibition of opium-smoking. These Governments announced their intention to do so immediately on liberation of these territories from enemy occupation.[49] The Portuguese Government abolished opium-smoking by decreeof 28 May 1946.[50] In general one may state that this policy of complete suppression of opium-smoking has shown some favourable results in several of the Far Eastern territories. Unsettled political conditions andlack of effective governmental authority has prevented effective action in other parts of Asia.

Post-War Progress

The international administration of the post-war period has had to solve problems which resulted from recent ( a) political, ( b) social and ( c) scientific developments.

(a) ADJUSTMENT TO POLITICAL CHANGES

Transfer of functions to the United Nations

The international instruments relating to the Control of narcotic drugs charged the League of Nations and its organs with various tasks. In view of the dissolution of the League it became necessary to adopt legislative steps to transfer these functions to the United Nations and to its appropriate organs. The San Francisco Conference did not include in the Charter an express reference to the jurisdiction of the United Nations relative to the control of narcotic drugs. However, the authors of the Charter left no doubt but that the economic, social, cultural, educational, health and related matters include the problem of international control of narcotic drugs.[51]

The functions of the League and of the Office International d'Hygiène Publique were transferred to the United Nations and to the World Health Organization by the Protocol of 11 December 1946.[52] This instrument provided that the Secretary-General of the United Nations and the Economic and Social Council would fulfil functions formerly exercised by the Secretary-General and Council of the League pending the entry into force of the Protocol. The Permanent Central Board and Supervisory Body were also authorized to continue to perform their functions during this period.[53]

The Economic and Social Council recommended "that the procedure followed in regard to the transfer to the United Nations of the functions formerly exercised by the League of Nations under the Conventions on Narcotic Drugs should be followed" in other fields.[54] This was done.[55]

(b) ADJUSTMENT TO SOCIAL AND ECONOMIC CHANGES

The change in the social and economic structure of many countries, which has been going on since 1925 when the Convention providing for the Permanent Central Board was concluded, necessarily affects the principles on which the international control machinery is built. Persons who are independent of their Governments, in the way considered possible in 1925, have become extremely rare in great parts of the world. The Council of the League which appointed the members of the Board, interpreted the provision that they "shall not hold any office which puts them in a position of direct dependence on their Governments" [56] so as to exclude all government officials from membership. Since service on the Board is honorary (unpaid) although requiring a part of the time of the members, the USSR and China suggested an amendment of the relevant provision, i.e., of article 19 of the 1925 Convention, because the "number of persons who were not dependent on their Governments and who possessed sufficient independent means and leisure" was very limited.[57] The Economic and Social Council of the United Nations, which succeeded the Council of the League in appointing the members of the Board, reinterpreted article 19 of the 1925 Convention to the effect that an active government official can be appointed to the Board provided:

  1. "That following his appointment he ceases temporarily, i.e., for the duration of his membership of the Permanent Central Board, to exercise his functions as an official of the Government (by taking, for instance, leave of absence);" and

  2. "While exercising his powers and functions as a member of the Board he will not act under the instructions of his Government".[58]

The Economic and Social Council expressly stated that a judge, a university professor, a medical practitioner, a lawyer, or specialists of other professions could serve on the Board without being required to give up their position or cease to exercise their professions. It is not unusual for a governmental organ to give a new interpretation to legal provisions by changing its practice. The Council, .it may be argued, went even further; but its interpretation, although from a constitutional viewpoint perhaps unusual, served a very practical purpose: to bring about a quick compromise of conflicting views, and because it succeeded in doing just that, it was not challenged.

(c) ADJUSTMENT TO SCIENTIFIC DEVELOPMENTS

The conventions concluded under the auspices of the League were aimed chiefly at natural plant products and drugs manufactured from them. During the period beginning before the Second World War, the discovery of synthetic drugs of a very dangerous type have added complications to a difficult situation, illustrating once more the fact that in an ever-changing world there does not exist a final solution for the ills that affect mankind.

The Protocol of 1948, when in force, will enable the World Health Organization to place all addiction-forming drugs, and also drugs which are convertible into such products, under international control without consent of the contracting parties.[59] It maintains the already traditional method of the international narcotics administration of enforcing the provisions of an international treaty against all countries whether they are parties to the treaty or not, whenever a limited number of countries, including the more important ones in the field, have ratified it.[60] Finally, it gives the power to an organ of the United Nations, namely the Commission on Narcotic Drugs, to obligate independent countries even against their will although, to be sure, this power is limited to a technical field and is only on a provisional basis.

The importance of such provisions will be realized if one considers, as the characteristic feature of a governmental system, that the governmental organ can obligate against their will those subject to its legal authority, while organs of the traditional international society cannot; however, one must bear in mind the fact that the provisions of the Charter make decisions of the Security Council legally binding on Member States [61] and provide for their enforcement also against non-members.[62]

Future Legislative Problems

The present international legislation relating to the control of narcotic drugs has left two important loopholes:

  1. Opium smoking was to be suppressed gradually. There was no total prohibition;

  2. There was no provision for the strict limitation of the production of raw opium and of the coca leaf to medical and scientific needs. Countries are, however, obligated to ensure the "effective control" of the production of raw opium;.

  3. There was no provision for adequate control of Indian hemp and some of its products, such as, e.g., hashish and marihuana.

It is clear that the solution of these problems offers great difficulties due partly to the ingrained smoking habits of large parts of the population of the affected countries and to the difficulties of control of agricultural pursuits in often remote parts which are sometimes not under effective control of the central government.

Because international legislation in the field developed gradually, there have resulted complexities of the legal provisions and of the organizational machinery, that administers them; this causes difficulties even to the expert. The international control of narcotic drugs shares these disadvantages with other evolutionary types of law. Anglo-Saxon law, reflecting, the gradual evolution of the Anglo-Saxon societies, is, in many respects, more complicated than European continental legal systems developed in societies more often shaken by violent upheavals. Societies that wish to use a minimum of force to secure7 the observation of their laws require the habit of law obedience which is promoted by gradualism. This explanation offers perhaps one of the elements of the better obedience to the provisions of the conventions relating to the control of narcotic drugs than to other provisions of international law.

The complexity of the existing law in the field induced the Economic and Social Council,[63] which acted on the recommendation of its Commission on Narcotic Drugs, to request the Secretariat "to begin work on the drafting of a new single convention". The Secretariat was directed to take into consideration the necessity for simplifying the machinery of international control. While at the present time there are three organs exclusively concerned with the control of narcotic drugs (Commission on Narcotic Drugs, Permanent Central Board, and Supervisory Body) the future convention would provide for only two organs: ( a) one policy body-the functions of which would be entrusted to the Commission on Narcotic Drugs; ( b) one administrative body taking over the judicial and administrative functions of the present Permanent Central Board and Supervisory Body and such other functions of this nature as the future convention may provide for. This convention is also intended to find a solution for one problem which has not yet been provided for by the present Convention, i.e., the limitation of the production of raw materials (raw opium, coca leaf, and resin of Indian hemp) to medical and scientific purposes. It can also be expected that the new convention will totally prohibit the smoking of opium.

The Economic and Social Council also requested the Secretariat to initiate studies into the desirability of an interim agreement, limiting the production and export of opium to medical and scientific needs. This agreement is thought of as a provisional measure to bridge the gap until the new convention, the careful preparation of which will require some time, enters into force.[64]

The Permanent Central Board and Supervisory Body, as well as their secretariat staff, have established close co-operation with the Division of Narcotic Drugs in the undertaking of the necessary preparatory studies.

Applicability of Principles of Control of Narcotic Drugs to Other Fields of International Co-operation

It is understandable that general attention has been called to the marked success which has been achieved in the international campaign against the drug evil and that suggestions have been made to apply some of its principles to other fields of international efforts which have failed as, for instance, the attempts at disarmament undertaken under the auspices of the League of Nations.

In accordance with a decision of the Council of the League of Nations of 28 November 1932, the Secretariatof the League prepared a paper on the "Analogies between the problem of the Traffic in Narcotic Drugs and that of the Trade in and Manufacture of Arms".[65]

Control of Atomic Energy

It is also interesting to note that the establishment of a League drug factory possessing a world monopoly of the manufacture of narcotic substances was proposed by the Chinese Government at the 13th session of the Advisory Committee on the Traffic in Opium and Other Dangerous Drugs.[66] It has been pointed out [67] that certain similarities exist between the problems with which the international narcotics administration is concerned and those which a future control of atomic energy may face.

  1. The control of narcotic drugs is not primarily established for economic reasons as in the case of other commodities (rubber, wheat, sugar, etc.,) but for social considerations. This is also true in the case of atomic energy, where political considerations are, however, also important elements.

  2. In both cases all economic phases require control: the production of raw materials, the processing (manufacture) and the final use.

  3. In both cases national control would not be effective without international control.

  4. Atomic energy, like narcotic drugs, has both dangerous and useful properties.

  5. An eventual convention relating to the control of atomic energy would require, to be of any practical value, universal application, although universal acceptance may not be obtained. The same idea was realized -as has been shown-in the existing narcotics conventions.

  6. The number and identity of the substances which may prove to be addiction-forming cannot be foreseen. For this reason, the international control of narcotic drugs requires a machinery for placing additional drugs under control without consent of the contracting parties. This rather unique conventional feature is also indispensable in the control of atomic energy. Technical progress may add to uranium and thorium other raw materials from which fissionable material can be produced.

  7. Both control systems require a comprehensive penal system which assures that offenders can be apprehended and effectively punished no matter in what country they happen to reside.

These far-reaching similarities should, however, not diminish the understanding for the decisive differences between the problems which both control systems have to face.

  1. Drug control is useful even if it is only corrective. This does not mean, however, that prevention is not preferable to correction of violations of the international law relating to narcotic drugs. Control of atomic energy, however, would be of little value if it could not prevent certain dangerous violations of its provisions. It is, therefore, vital that intended breaches of the convention are discovered at a much earlier stage than is absolutely necessary in the field of narcotic drugs. Control of atomic energy therefore requires for its effectiveness, close and continuous inspection by international officers. Some kind of international inspection would also be useful in the control of narcotic drugs.

  2. The way in which atomic energy is going to be controlled may determine the fate of the world.

In view of the far-reaching similarities between the problem of control of atomic energy and the problem of narcotic drugs, it does not seem surprising that similar ideas were proposed for their solution. The idea of a world factory under the control of the League, possessing a world monopoly of the manufacture of narcotic drugs has been mentioned. The International Conference of 1931 which adopted the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, recommended that Governments should consider the desirability of trade and manufacturing monopolies of narcotic drugs. The original draft of the 1931 Convention was based on a system of national manufacturing quotas.[68] It is understandable that such far-reaching proposals as world monopoly, national monopolies [69] and national quotas faced strong resistance in certain quarters and were dropped, although in the view of some people they might-from a purely theoretical viewpoint-have been more perfect than the solutions which were finally adopted.

The experience gained in the control of narcotic drugs may perhaps also be applied to other fields of international administration which are of lesser popular interest than atomic energy and disarmament.

Gradualism

One of the most striking features of narcotics control is its gradualism. This control has taken into consideration all kinds of obstacles such as ingrained human habits, ignorance, administrative difficulties and strong vested interests, but without ceasing a continuous attack against them.

This gradualism is reflected in the development of: ( a) the rules which are to be enforced; ( b) the organizational structure of the international control machinery; ( c) the methods of control employed.

  1. No rule has been made a provision of international law before it Was generally recognized as just and timely. The history of the anti-opium movement shows that this required a long period of education carried on by organizations (such as the Anti-Opium Society establishedin 1874) by churches and their missionaries, all of which was reflected in lively and at times impassioned discussions in the British Parliament.[70] Many rules assumed first the form of recommendations before they became legal obligations. International legislation itself started with the formulation of principles which were given legal force, followed gradually by measures of execution. Multilateral action was preceded by bilateral steps and these by national measures.

  2. The international administration of narcotic drugs gradually developed from the most primitive type of international organ, i.e., a single national Government charged with functions under a multilateral treaty, to more advanced organizational methods, i.e., organs composed of government representatives, and finally to organs composed of independent experts.

  3. Methods of control used by the international narcotics administration were gradually developed and sometimes incorporated in treaties only after they had been adopted in the practice of many States, e.g., the export and import certificate system, which is the pillar of the control of the international trade, was adopted by the Convention of 1925 only after it had become the practice of many States: The estimate system of the 1931 Convention, by the provisions of which Governments have to furnish legally binding estimates of their medical and scientific needs of narcotic drugs, was preceded by a more limited system of estimates which was not legally binding, under the provisions of the 1925 Convention. The authority of international organs to extend the scope of control was also developed by stages. Closely connected with this gradualism was a considerable degree of personal continuity that proved to be very useful.

Organizational Connexion of the Control Machinery with the League of Nations and with the United Nations

By its close organizational connexion with such international bodies as the Council of the League, the Economic and Social Council of the United Nations and with the Assemblies of both Organizations, all of which are in the centre of public interests, the international narcotics control has obtained and maintained the assistance of strong public opinion. The general supervision of the control by organs of the League and the United Nations facilitated better co-ordination of the activities performed by the various bodies, avoided duplication and helped to achieve a considerable degree of economy.

Organizational Flexibility

In the international administration of narcotic drugs it became necessary to settle certain problems by agreement of mere sub-divisions of international organizations. It9 became necessary, e.g., for the Health Committee of the League, the Office International d'Hygiène Publique, the Permanent Central Board, and the Advisory Committee on Traffic in Opium and other Dangerous Drugs, to agree on a uniform tenure of five years for the members of the Supervisory Body. Again, the amended version of article 20 of the 1925 Convention provides that the Economic and Social Council of the United Nations shall, in consultation with the Permanent Central Board, make the necessary arrangement for the organization and working of the Board. The Economic and Social Council, at its 8th session, approved an arrangement between the Secretary-General and the Permanent Central Board regarding budgetary and staff matters.[71] These relations, which are very close to treaty relations, present a precedent for the capacity of sub-divisions of international organizations to enter into international agreements.

Due Weight Given to the More Important States

The international control of narcotics is based on the recognition of essential inequalities of the States in various fields of international relations. Privileged representation on the policy body has been given to those States which were expected to contribute most to the success of the control of narcotic drugs. These countries are not necessarily the most powerful ones. In this arrangement no attempt was made to introduce methods violative of the formal principle of legal equality of States. In this way problems of national prestige were avoided.

Decisions made by People who can Secure their Execution

The discussion of problems of narcotics control by the policy body-composed as it was, and is, of representatives of Governments which are the most important in the field and directly concerned-gave assurance that the persons who took part in its decisions could often, although not always, ensure the necessary remedial action. On the other hand practical administrative difficulties were taken into consideration. It is perhaps possible that a body composed of independent persons might often have proposed more ideal solutions; but they might have, as often, remained inapplicable. This principle of government representation on the policy body worked so well that the Commission on Narcotic Drugs of the Economic and Social Council continues its work as a functional commission based on straight government representation. It is also the only Commission which is an operating organ of international administration. On the other hand, whenever enforcement measures were involved, the composition of the Permanent Central Board, as a body of independent experts, made certain that only legal considerations and the needs of inte-rnational control, and not national interests, guided its decisions.

Effort to Rule by Consent

The international control of narcotic drugs relies in many instances on the express consent of the States concerned. That does not mean that this consent is always entirely voluntary. Estimates of their medical and scientific needs are generally not established by international organs but by the States themselves. They may be asked for explanations, justifying their requirements, but formally they are the final judges of their medical and scientific needs. Estimates may not be changed without their consent and may not be established by the Supervisory Body unless the States themselves fail to do so.

Realism in Enforcement Measures

The conventions provide also for enforcement measures decided upon by an independent international organ in case of violation of their provisions. These enforcement measures although definitely in need of some reform follow methods appropriate to the violation of the law which they are intended to prevent, i.e., embargoes of imports of narcotic drugs can be imposed. There is a great danger of providing for impressive sanctions which Governments may be reluctant to carry out because their application might outweigh the advantage of redressing a particular violation of the Convention in question. As experience has shown, this danger seems to have been avoided in the control of narcotic drugs.

Early Understanding of the Universal Character of the Problem

The international administration of narcotic substances adopted, from its beginning, the principle of universality which, since 1925, has extended the application of conventional control measures to non-contracting States. In this respect the control of narcotics differed from the inter-governmental control of other commodities. When the need for universality was already fully understood in the control of narcotic drugs, attempts to solve economic difficulties connected, e.g., with the cultivation of rubber, were made on a national [72] basis and later on a regional [73] basis; but the development of synthetic rubber proved the inadequacy of any but the universal approach to this problem. It is not without interest that, in the sphere of narcotic drugs, consumer interests were never disregarded. All conventions relating to the control of narcotic drugs and the recent Protocol of 19 November 1948 are open to the accession (ratification, acceptance) of practically all States. The Havana Charter for an International Trade Organization followed a long established custom of the control of narcotic drugs when it provided for the principle of wide participation in commodity agreements and for sufficient consideration of consumer interests.[74]

Allowance for the Co-existence of Different Social and Economic Systems

The international control of narcotic drugs is consistent with the varying principles governing the different economic and social systems which exist in the world; this was already true when the difference did not yet have the importance it has assumed today. As was shown in the discussion of the personal qualifications of the members of the Permanent Central Board, certain adjustments to the changing economic and social structures of many countries become necessary from time to time. Other cases will have to be considered in the drafting of the new single convention. The character of the control system has resulted in a much closer understanding between representatives of countries with different economic and social structures than has been possible in some other fields of international cooperation. The Havana Charter has made this allowance for different economic systems a general principle of international administration.[75]

All Aspects of the Problem taken into Consideration

In the international control of narcotic drugs the problem of drug addiction is not considered to be an isolated medical, social or psychological problem. Administrative, economic, fiscal, social, educational, legal, medical and pharmaceutical problems are considered in their closely interrelated bearings on the question. This is facilitated by the composition of the control bodies: the Commission on Narcotic Drugs, composed in fair proportion of representatives of manufacturing and producing countries and of the main victims of the illicit traffic; and the Permanent Central Board and the Supervisory Body, composed of persons of the required technical competence (including legal, social, economic and medical skills) and not representing their Governments.

Indirect Administration

The international control of narcotic drugs is mainly a system of indirect administration, i.e., it deals with Governments. It has established, however, numerous relations with non-sovereign political entities. This was facilitated by the stipulations of the conventions prescribing separate estimates and information for such entities.

Results Obtained

The international control of narcotic drugs has brought manufactured drugs under effective control, reducing their non-medical use to minimum amounts. The number of addicts has been reduced. It is estimated that in one large country alone it dropped from 250,000 to 40,000 in the last two decades, i.e., since the Convention of 1925 became operative (1928). The reported manufacture of heroin, which is a particularly dangerous drug, decreased from 1,347 kilogrammes in 1933 to 581 kilogrammes in 1947. Decreases can also be noted in the manufacture of some other dangerous drugs (unconverted morphine, cocaine) although the use of less dangerous opiate drugs in general greatly increased in the course of the development of better medical services ( e.g., codeine). Today the possession of manufactured narcotic drugs is practically everywhere illegal-without licence. All persons involved in their trade, whether importer, exporter, manufacturer, wholesaler or retailer must be licensed. Every individual transaction incoming or outgoing is recorded and reported periodically to the national authorities who inspect and check these records as well as the premises on which manufacture of and trade in the drug is carried on. These authorities transmit periodically summaries of the reports received by them to the international control organs. Each individual international transaction in narcotic drugs requires an export and import authorization.

The suppression of opium-smoking is not an accepted policy of all Governments in the territories of which this habit exists. Progress in this field is being made except in these parts of the world where lack of effective governmental authority is rendering the carrying out of this policy very difficult.

The generally recognized success of the international control of narcotic drugs can be measured not only by the good it has done in the prevention of the spreading of drug addiction, but also by the additional hope it has given to those who believe that organized international co-operation in other fields can best be achieved through the example of a functional success such as this.

REFERENCES

001

As early as in the first half of the eighteenth century the Chinese Emperor Yung Cheng issued an edict, prohibiting the sale of opium and the opening of smoking divans: S. H. Bailey, The Anti-Drug Campaign (London, 1935) p. 1; The Turkish Sultan Murad IV forbade the use of opium on the pain of death: Encyclopaedia Britannica (11th ed.) vol. 19, p. 15.

002

Morphine was first isolated in 1805; but until well into the nineteenth century only crude extracts of opium were used medicinally; Louis Goodman and Alfred Gilman, The Pharmacological Basis of Therapeutics (New York, 1947) p. 186.

003

E. g., Chinese-British Agreement of 1908 reducing opium import from India over an experimental period of three years: L. E. S. Eisenlohr, International Narcotics Control , London (1934) p. 218, and Bailey, op. cit. p. 3.

004

International Opium Convention, signed at The Hague, 23 January 1912, subsequently referred to as 1912 Convention or Hague Opium Convention.

005

Hague Opium Convention, articles 9, 1, 6.

006

L. Oppenheim, International Law , seventh edition; edited by H. Lauterpacht (London, 1948) vol. I, p. 46.

007

One Commodity Agreement which was widely criticized by public opinion in the United States was the "Agreement for the Regulation of Production and Export of Rubber", signed in London 7 May 1934.

008

The Commission of Inquiry (of the League of Nations) into the Production of Opium in Persia confirmed that (in 1926) 8 per cent of Persia&rsquos tax revenues and 16 per cent in value of its gross exports were yielded by its opium crop: League of Nations document C. 580. M.219. 1926.XI. p. 56.

009

See Havana Charter for an International Trade Organization, article 70 (1) ( c).

010

Article 295 of the Treaty of Versailles; art. 247 of the Treaty of St. Germain-en-Laye; art. 230 of the Treaty of Trianon; art. 174 of the Treaty of Neuilly-sur-Seine; see also art. 280 of the unratified Treaty of Sevres.

011

Eisenlohr, op. cit. pp. 148 and 150.

012

Resolution 9 (I) of the Economic and Social Council of the United Nations; resolution of the Assembly of the League of Nations, dated 15 December 1920: Official Journal of the League of Nations, Special Supplement, January 1921, pp. 21, 22.

013

United Nations document E/1205.

014

Subsequently referred to as 1925 Convention.

015

League of Nations document C.28.M.157.1921.XI. p. 19 et seq.; C.L.15.1922.XI.

016

The 1925 Convention: article 22.

017

The 1925 Convention: article 25.

018

1925 Convention: article 24; the English text does not entirely agree with the French text; both texts are "authentic" (art. 33).

019

Subsequently referred to as 1931 Convention.

020

1931 Convention: art. 14.

021

Article 38 of the Statutes of both Courts.

022

Article 94 of the Charter of the United Nations; see also Article 13 of the Covenant of the League of Nations.

023

1925 Convention: art. 19.

024

Article 31 of both Statutes.

025

1925 Convention: art. 26; 1931 Convention: art. 14 (2), but not art. 14 (3).

026

Article 17 of the Covenant of the League; Article 2 (6) of the Charter of the United Nations.

027

Articles 2-9.

028

1931 Convention: art. 14 (1).

029

League of Nations document C.191.M.136.1937.XI. p. 54

030

Article 30.

031

Articles 26 and 18.

032

Article 36.

033

Protocol Bringing under International Control Drugs outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, as amended by the Protocol signed at Lake Success on 11 December 1946; subsequently referred to as Protocol of 1948.

034

Article 6 of the Protocol.

035

Article 11.

036

Articles 1 and 2.

037

Article 10; this function has been transferred to the World Health Organization.

038

1925 Convention: article 8. This function has been transferred to the World Health Organization.

039

Article 14 ( d).

040

1931 Convention: article 11; Protocol of 1948: art. 1; 1925 Convention: art. 10.

041

Bailey, op. cit. p. 133; Records of the Conference for the Limitation of the Manufacture of Narcotic Drugs, vol. 1, p. 301.

042

Article 11 (1).

043

Article 2.

044

Subsequently referred to as 1936 Convention.

045

There are at the present time (10 March 1949) 67 Partiesto the 1912 Convention, 58 Parties to the 1925 Convention and 71 Parties to the 1931 Convention; 46 countries became Parties to the Protocol of 1946 and 17 Parties to the Protocol of 1948; 37 more countries signed this Protocol. Some of the figures given may be subject to controversies in view of the uncertain standing under multilateral treaties of many new States.

046

United Nations document E/CN.7/125, p. 6.

047

Records of the Conference for the Suppression of the Illicit Traffic in Dangerous Drugs, p. 174, et seq.

048

Agreement concerning the Manufacture of, Internal Trade in, and Use of Prepared Opium, signed at Geneva, 11 February 1925; and Agreement for the Control of Opium-smoking in the Far East, signed at Bangkok on 27 November 1931; subsequently referred to as 1925 Agreement and 1931 Agreement.

049

United Nations document E/C.S.7/7.

050

See also Decree No. 908 of 31 December 1945; United Nations document E/C.S.7/7.

051

Fifth report of the Drafting Committee-II/3 of the San Francisco Conference. Document W.D.40/II/3/A/5, 26 May 1945; Summary Record of the 19th Meeting of Committee II/3, 4 June 1945.

052

Full title: Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 January 1917, 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; subsequently referred to as Protocol of 1946.

053

Article II.

054

Resolution 43 (IV): United Nations document E/444.

055

E.g., in the case of the functions of the League under the Conventions of 1921 for the Suppression of the Traffic in Women and Children, of 1933 for the Suppression of the Traffic in Women of Full Age, and of 1923 for the Suppression of the Circulation of and Traffic in Obscene Publications; United Nations document E/540.

056

Article 19 of the 1925 Convention.

057

Report of the Commission on Narcotic Drugs on its first session, p. 7.

058

Resolution of the Economic and Social Council 123 (VI) (D).

059

Article 1.

060

Article 6.

061

Articles 25, 48 of the Charter.

062

Article 2 (6) of the Charter.

063

Resolution of the Economic and Social Council 159 (VII) (D).

064

Resolution 159 (VII) (E).

065

League of Nations document Conf.D.159.

066

League of Nations document O.C./SC.L/I. See also report of the Commission to Study the Organization of Peace, of the American Association for the United Nations on independent sources of revenue for the United Nations, pages 3 and 4.

067

Address of Professor Joseph P. Chamberlain. "Legal Implications of International Control of Atomic Energy" in Proceedings of the American Society of International Law (1946), pp. 89-102; Herbert L. May, Narcotic Drugs and Atomic Energy; Analogy of Controls, published by the Commission to Study the Organization of Peace.

068

League of Nations document C.509.M.214.1931,XI, vol. I, p. 281 and p. 282.

069

Recommendation IV of the Final Act of the International Conference of 1931 for the Limitation of the Manufacture of Narcotic Drugs.

070

See, e.g., Wen-Tsao Wu, The Chinese Opium Question in British Opinion and Action (New York, 1928).

071

United Nations documents E/1202 and E/OB/4.

072

Stevenson Plan of 1921.

073

Rubber Regulation Agreement of 1934.

074

Articles 57 ( c), ( e): 60 (1) ( a); 63 ( a), ( b), ( c).

075

See articles 29, 46.