38 L Sunga,The Emerging System of International Criminal Law,1997, Dordrecht: Kluwer, pp 206–12.
range of resolutions which recommended the gradual suppression of opium smoking
‘with due regard to the circumstances of each country concerned’. Formal treaty measures followed a few years later.39Subsequent multilateral conventions were developed to regulate the production of narcotic drugs for medical and scientific purposes under the League of Nations.40
Following the Second World War and the creation of a new international order under the auspices of the UN, it was apparent that the framework of international instruments relating to drug-trafficking was insufficient to meet the modern scale and nature of the problem. Furthermore, international diplomatic relations had changed greatly after the war and much of the work of the League of Nations had little remaining practical legal value. The control of illicit drugs was an issue of concern to the UN from the outset following the Second World War. In 1946, the UN Economic and Social Council, at its First Session, established the Commission on Narcotic Drugs to work towards effective implementation of measures controlling illicit drugs.41The UN continued to develop legal mechanisms for the control of illicit drugs.42The UN has subsequently created a new framework of provisions relating to illegal drug-trafficking.43Controls were extended to drugs used for illicit purposes by the 1961 Single Convention on Narcotic Drugs (1961 Convention).
Aspects of the 1961 Convention were developed by a protocol in 1972.44During the 1960s, stimulants such as amphetamines, hallucinogens such as LSD and depressant drugs such as barbiturates and tranquillisers became more widely available. These drugs, known as psychotropic drugs, were not controlled by the 1961 Convention and, in 1971, the UN concluded a Convention on Psychotropic Substances (1971 Convention).45These initiatives were strengthened by the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.46It was anticipated that by confiscating the proceeds of crime the incentive for drug- trafficking would be eliminated. Contracting parties are required to criminalise not only the organisation, management and financing of drug-trafficking but also the conversion, transfer and concealment of the proceeds of drug-trafficking.
In addition to drafting international treaties for the control of illegal drug- trafficking, the UN has also created a number of agencies with specific responsibilities
39 Convention Relating to the Suppression of the Abuse of Opium and Other Drugs, 23 January 1912, 38 Stat 1912; 8 LNTS 187.
40 See, eg, Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, Geneva, 13 July 1931.
41 Resolution of the First Session of the Economic and Social Council, Official Records, ECOSOC, First Session, 1946, Vol I, p 168.
42 See, eg, 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, New York on 11 December 1946, signed at Paris, 19 November 1948, 44 UNTS 277; The Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, signed at New York, 23 June 1953, 456 UNTS 56.
43 See generally C Bassiouni, ‘The International Narcotic Control Scheme’, in C Bassiouni (ed), International Criminal Law: Crimes,1986, New York: Transnational, pp 507–24.
44 Protocol Amending the Single Convention on Narcotic Drugs, 25 March 1972, TIAS No 8118, 976 UNTS 3.
45 Convention on Psychotropic Substances, 10 ILM (1971), 261.
46 Reprinted at 28 ILM (1989), 497.
in relation to the control of illicit drugs. The Commission on Narcotic Drugs was established in 1946 as an organ of the Economic and Social Council (ECOSOC). Its task is to consider and report on all aspects of international drug control and it can initiate work and make recommendations to ECOSOC and to national governments.
A particular role of the Commission is to achieve effective implementation of the provisions set out under the 1961 Convention and 1972 Protocol. The International Narcotics Control Board was established by the 1961 Convention and is comprised of members elected by the ECOSOC on the basis of their impartiality. The Board is in charge of controlling the international trade in narcotic drugs and for taking measures to ensure the execution of the provisions of the 1961 Convention. The Board manages the estimates and statistics systems set up under the 1961 and 1971 Conventions.
The UN Fund for Drug Abuse Control was established in 1971 and is funded by State contributions. Its primary function is to provide professional and technical assistance to governments on law enforcement and social measures for drug control.47 3.2.1.1 1961 Single Convention on Narcotic Drugs
The overall effect of the 1961 Convention was to codify and amalgamate previous multilateral drugs conventions.48International measures were extended over the cultivation of plants grown as raw materials for the production of natural narcotic drugs and existing restrictions on the production of opium and its derivatives were continued. The 1961 Convention includes the requirement that State parties should control and license individuals and commercial entities involved in the trade or distribution of licit drugs. Parties are obliged to ‘prevent the accumulation in the possession of traders, distributors, State enterprises or duly authorised persons…of quantities of drugs and poppy straw in excess of those required for the normal conduct of business, having regard to the prevailing market conditions’.49There are provisions in the Convention ensuring that licit drugs are issued under prescription, are properly labelled and that trade in drugs is regulated and conforms with the estimates system, as well as encouraging full legal and administrative co-operation between countries.
3.2.1.2 1972 Protocol Amending the 1961 Single Convention on Narcotic Drugs
Further development of the initiatives set out in the 1961 Convention were brought about through the measures of the 1972 Protocol. The International Narcotics Control Board will seek to limit the cultivation, production, manufacture and use of drugs to amounts necessary for medical and scientific purposes.50Article 12 of the Protocol strengthens measures concerning the illicit cultivation of opium and cannabis under the 1961 Convention, in that parties are not only obliged to take measures prohibiting
47 See generally M Lopez-Ray,A Guide to United Nations Criminal Policy,1985, Aldershot: Gower.
48 Ibid,p 52.
49 1961 Convention, Art 30(2)(a).
50 1972 Protocol, Art 2. The Board is not permitted to interfere with national law, merely give advice to a government. Commentary on the Protocol Amending the Single Convention on Narcotic Drugs 1961 (UN, New York), p 13, para 11.
illicit cultivation, but also to seize and destroy plants used for illicit production. Article 18 of the Protocol widens the duties of the parties to inform and provide information relating to domestic enforcement to the Secretary General of the UN. Article 14 of the Protocol complements Art 36 of the Single Convention in that it provides that parties should, as an alternative, or as an addition to punishment of narcotic drug offences, provide measures of treatment, education, aftercare, rehabilitation and social reintegration. Finally, the Protocol also provides that the offences set out in the 1961 Convention shall be extraditable offences and that the 1972 Protocol may act as a basis for extradition where no other provision exists.
3.2.1.3 1971 UN Convention on Psychotropic Substances
In setting out measures to control the illicit use of what were a ‘new’ range of drugs, the 1971 Convention adopts a range of preventative and prohibitive provisions. Thus, the Convention includes measures under which the parties will adopt strict measures for the control of the trade, manufacture and production of the listed psychotropic substances.51These restrictions also apply to materials used in preparation or manufacture of these drugs. The Convention requires parties to ensure that offences are punishable under domestic law.52
3.2.1.4 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Despite these international agreements being widely ratified, a view emerged during the 1980s that the existing conventions focused primarily on controlling the production of licit drugs and the prevention of their diversion into the illicit market place.53To this end, the UN General Assembly began a process of consultation in 1984 which resulted in the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Vienna Convention)54which had as its stated aim to ‘promote co- operation among the parties so that they may address more effectively the various aspects of illicit traffic…having an international dimension’.55The Vienna Convention is the most comprehensive international agreement on the control of drug-trafficking.
The Convention recognises that, whilst drug-trafficking is an international criminal activity, State parties should develop procedures in domestic law to identify, arrest, prosecute and convict those who traffic drugs across national boundaries. These measures include establishing drug related offences and sanctions under domestic criminal law, providing for extradition in respect of those offences, providing for mutual legal assistance and co-operation on investigating and prosecuting those offences and establishing measures to seize and confiscate the proceeds from illicit drug-trafficking.56 The Convention provides for stringent controls on the international trade of constituent
51 1971 Convention, Art 2.
52 Ibid,Art 22.
53 UN Draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 10th Congress, First Session, Committee Print, S Prt 100–64, p iii.
54 Reprinted at 28 ILM (1989), 497.
55 Vienna Convention, Art 2(1).
56 For further discussion on the measures to prevent money laundering, see below, 3.3.
chemicals and equipment (precursors) used in manufacturing illicit drugs and that State parties take measures to prevent and eradicate the illicit cultivation of plants used to manufacture drugs. The Convention is not only concerned with tightening legal controls on drug-trafficking, but also recognises that measures need to be taken to reduce demand for illicit drugs and thereby introduces provisions to promote treatment, education, aftercare, rehabilitation and social reintegration of drug offenders.57The Vienna Convention was adopted by consensus and entered into force on 11 November 1990. A particularly innovative feature of the Vienna Convention is the introduction of controls set down on precursor chemicals and equipment used to manufacture synthetic drugs:
Chemicals are imperative to the manufacture of illicit drugs. The production of heroin and cocaine relies on essential chemicals, which are used in the processing and refining of the drug. The production of synthetic drugs relies on precursor chemicals that become part of the resulting product.58
Commentators have pointed out that the misuse of precursor chemicals has challenged the traditional perception of the nature and origin of the drug problem.
The common perception is that drugs emanate from producer countries in Asia and South America; however, evidence suggests that, in relation to precursor drugs, the situation is different and that it is ‘the industrialised countries of Europe and the USA and Japan that manufacture the essential and precursor chemicals’.59In discussions prior to the Vienna Convention, an Iranian delegate reported that his country’s experience was that precursors which were essential for drug manufacture were being easily and illegally imported from industrial European countries into countries of the Middle East and the Far East, where raw materials were available for their conversion into heroin and other narcotic drugs by simple chemical processes.60In the light of these developments, the Vienna Convention adopts two main strategies in respect of precursor drugs. The first is to require parties to criminalise the intentional ‘manufacture, transport or distribution of equipment, materials or of substances listed in [two tables annexed to the Convention], knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances’.61The second prong of the Convention’s strategy against precursors is to prevent diversion of these chemicals from legitimate medical, scientific and commercial origins into the illicit production of narcotic drugs, both by way of domestic law and regulation and international co-operation.62 3.2.1.5 Measures preventing the trafficking of illicit drugs at sea and other
initiatives
Due to the problems of establishing an effective framework of jurisdiction over drug- trafficking at sea in international waters, Art 17 of the 1988 Vienna Convention
57 Vienna Convention, Art 14(4).
58 Chemical Action Task Force,Final Report,June 1991, Washington DC.
59 European Parliament,Report on the Spread of Organised Crime Linked to Drugs Trafficking in the Member States of the EC,1992 A3–0358/91, p 26.
60 Official Records: UN Conference for the Adoption of a Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,1991, New York: UN, Vol II, p 248.
61 Vienna Convention, Art 3(1)(a)(iv).
62 Ibid,Art 12.
introduced a scheme whereby a party to the Convention may request from the Flag State of a vessel permission to board, search and take appropriate measures against vessels suspected of trafficking drugs. Such actions should be carried out by military vessels or aircraft or other vessels authorised for the purpose and caution must be taken not to endanger life, the security of the vessel or interests of the Flag State. The measures under Art 17 have been implemented by the Council of Europe in its Agreement on Illicit Traffic by Sea Implementing Art 17 of the UN Convention Against Illicit Drugs and Psychotropic Substances.63