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.

The 1909 Shanghai Conference

U.S. interest in international drug control grew substantially following the Spanish-American War, which led to its acquisition of the Philippines in 1898.[10] The acquisition brought with it what the American administration perceived as a serious problem: a government-run opium supply monopoly. Under the guidance of the new Episcopal Bishop of the Philippines, Charles Henry Brent, the monopoly was shut down. Yet smuggling continued, and Brent, who regarded the opium issue as a moral question and use of the drug as “a social vice … a crime,” persuaded President Theodore Roosevelt to support holding an international meeting in Shanghai to remedy what was clearly a regional problem.[11] 

In February 1909, the International Opium Commission[12] met in Shanghai, with Brent as its president. However, because the participants did not have the necessary plenipotentiary powers to conclude a treaty, the result was simply a collection of facts and a set of non-binding recommendations. In the discussions on the Commission’s terms of reference, one question that arose was whether drug-related medical issues, such as addiction and its treatment, should be considered; the proposal was defeated (by a majority of one) because it was felt that there was insufficient medical expertise present at the meeting.[13] This set a telling precedent: most subsequent drug meetings would be attended predominantly by diplomats and civil servants, with little significant input from medical experts.

The negotiations during the Commission’s meetings laid the groundwork for future conferences. The U.S., aggressively represented by Hamilton Wright, tried to persuade the colonial powers to support a narrow definition of “legitimate use” of opium, under which any non-medical or non-scientific use–by Western medical and scientific standards–would be considered illicit. The colonial powers advocated a softer approach, which would permit “quasi-medical use”. In the final wording of Resolution 3, the Commission concluded “that the use of opium in any form otherwise than for medical purposes is held by almost every participating country to be a matter for prohibition or for careful regulation; and that each country in the administration of its system or regulation purports to be aiming, as opportunity offers, at progressively increasing stringency” (emphasis as in original).

The Commission was, in fact, far from “international”. The focus was on China’s opium problems–five of the nine resolutions mentioned China by name–and the U.S. and Britain dominated the discussions. The U.S. was pushing for prohibition and felt that China needed assistance with its domestic opium problems. Britain worked to protect its lucrative Indian opium trade, arguing that curbing such trade would be useless until China brought its domestic production under control.[14] 

Underlying the U.S. delegation’s hard-line stance at the Shanghai meeting were key domestic political and economic goals that would also colour later negotiations. It was assumed that if other countries controlled their own opium production and exports, the U.S. would not be burdened with the task, because the poppy and the coca leaf had never been grown in appreciable quantities in North America. Furthermore, international agreements calling on countries to take drastic internal measures provided ammunition for Brent and Wright, who were pressuring the U.S. government to develop stringent domestic drug control laws.[15]

The 1912 Hague International Opium Convention

At the Shanghai meeting, the Americans had proposed a future conference to draft an international drug control treaty that would include the Shanghai resolutions in an expanded and more stringent form. This proposal was contested by the other countries and went nowhere. In the years that followed, however, the U.S. lobbied continually and forcefully around the world for a new conference. Addressing the opium problem directly, publicly and internationally was a way for the U.S. to achieve its domestic control objectives, to put an end to the profitable drug trade dominated by the colonial powers, and to curry favour with the Chinese and thereby improve Sino-American economic relations.[16]

Twelve countries agreed to meet at The Hague on 1 December 1911 to draft a treaty.[17] Once again, the meeting was chaired by Brent, and Wright led the U.S. delegation. Most states had demanded amendments to the U.S. draft agenda, which focused on stringent control of opium production, manufacture and distribution in Asia. For example, Britain insisted that manufactured drugs such as morphine, heroin, and cocaine be considered. This was an attempt to dilute the opium agenda and deflect attention from Indian opium production. Britain also hoped that a fair treaty would create a level playing field for British pharmaceutical companies to compete with the dominant German synthetic drug industry.[18]

Chapters I and II of the 1912 International Opium Convention[19] (1912 Hague Convention) dealt with raw and prepared opium. For example, Article 1 required parties to “enact effective laws or regulations for the control of the production and distribution of raw opium” unless such laws were already in place. The Convention also recognized the U.S.-initiated principle of restricting opium use to medical and scientific purposes. Chapter IV was aimed at reducing drug trafficking in China.

Chapter III focused on licensing, manufacturing and distribution controls on synthetic drugs, but Germany ensured that the provisions were weak and vague. Article 10 allowed countries to simply make their “best endeavours” to implement these controls. Furthermore, Germany refused to sign the treaty until it was agreed that all countries would have to ratify[20] the Convention before it came into force. This was an effective tactic for delaying control measures as it took almost a decade for all countries to ratify the agreement. Germany did so only because ratification was a condition of the Treaty of Versailles that ended the First World War in 1919.[21] 

Wright used the 1912 Hague Convention in his campaign for U.S. domestic legislation, arguing that a federal law was necessary for the U.S. to fulfil its obligations under the Convention. In 1916, the U.S. Supreme Court ruled that this was not so, but by then the Harrison Narcotics Act of 1914 had become the first federal drug control law in the U.S.; it would remain a pillar of U.S. drug policy for the next few decades.[22] 

The establishment of the League of Nations in 1919 following the First World War provided the international community with a centralized body for the administration of drug control. In 1920, the League created the Advisory Committee on the Traffic in Opium and other Dangerous Drugs, commonly known as the Opium Advisory Committee (OAC), the precursor to the United Nations (UN) Commission on Narcotic Drugs. The League Health Committee, forerunner of the UN World Health Organization, was also formed. Administration of the 1912 Hague Convention had originally been the responsibility of the Netherlands, but was transferred to the Opium Control Board (OCB) created by the OAC. Enforcement of the Convention was sporadic as the countries on the OCB were the ones profiting most from the drug trade.[23] 

The League began to consider demand-side socio-medical issues such as why individuals use drugs, what constitutes drug abuse, and what social factors affect abuse. However, prohibition and supply-side issues soon regained the ascendancy as preparations began and talks were held, again at the instance of the U.S., for a new treaty in the mid-1920s. In general, the international regime has tended to separate the study of drug-related medical and social problems, including etiological questions, from that of drug control problems.[24]

The 1925 Geneva Opium Conventions

Even though the U.S. had chosen not to join the League of Nations, its influence in international drug control matters remained strong. Worried by the 1912 Hague Convention’s limited effect on the smuggling of opium and, increasingly, drugs manufactured in East Asia, the U.S. pressured the League to convene a new conference. The League feared that if it did not comply, the U.S. might act independently.[25]

Between November 1924 and February 1925, two back-to-back conferences were held, and two separate treaties were concluded. The first Geneva Convention[26] focused on opium-producing nations; signatories were permitted to sell opium only through government-run monopolies and were required to end the trade completely within 15 years. 

The second Geneva Convention, the International Opium Convention[27] (1925 Geneva Convention), was intended to impose global controls over a wider range of drugs, including, for the first time, cannabis, which was referred to as “Indian hemp” (marijuana) in Article 11 of the Convention. Articles 21 to 23 required Parties to provide annual statistics on drug stocks and consumption; the production of raw opium and coca; and the manufacture and distribution of heroin, morphine and cocaine. Chapter VI replaced the OCB with an eight-member Permanent Central Opium Board (PCOB).[28] Chapter V of the second Convention set up a PCOB-monitored import certification system to control the international drug trade by limiting the amount that each country could legally import. 

While the 1912 Hague Convention had focused on domestic controls, the Geneva Conventions were an attempt to improve transnational control. The U.S. had proposed strict adherence to the principle that drugs should be used only for medical and scientific purposes and that there should be stringent controls on drug production at the source. When these proposals were flatly rejected at the second conference, the U.S. delegation walked out of the conference and never signed the treaties. The Chinese delegation withdrew as well, because no agreement could be reached on the suppression of opium smoking.[29] Instead, the two countries concentrated on enforcing the 1912 Hague Convention.

The 1931 Geneva Narcotics Manufacturing and Distribution Limitation Convention / 1931 Bangkok Opium Smoking Agreement

The import control system put in place following the 1925 Geneva Convention was only partially effective, as drugs were simply transhipped through non-signatory countries. In 1931, the League of Nations convened a further conference in Geneva to place limits on the manufacture of cocaine, heroin and morphine, and to control their distribution. The result of the conference was the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs[30] (1931 Limitation Convention).

In 1931, Canada abandoned its policy of simply reacting to international drug control efforts and began playing an active role in supporting U.S. efforts to expand control at the source. Colonel Charles Henry Ludovic Sharman, Chief of the Narcotics Division in the Department of Pensions and National Health, was the principal architect of Canada’s domestic and international drug policy until the 1960s. Canada, through Sharman, was heavily involved in the negotiations leading up to the 1931 Limitation Convention.[31]

A new player also emerged from within the U.S. delegation: Harry J. Anslinger, first Commissioner of the newly created Federal Bureau of Narcotics, a position he would hold for 33 years. A firm believer in prohibition and the control of drug supplies at the source, Anslinger is widely recognized as a prime mover in the development of U.S. drug policy and, by extension, international drug control into the early 1970s.[32]

The centrepiece of the 1931 Limitation Convention was the manufacturing limitation system set out in Chapters II and III. Parties were required to provide the PCOB with estimates of their national drug requirements for medical and scientific purposes, and on the basis of those estimates, the PCOB would calculate manufacturing limits for each signatory. A Drug Supervisory Body (DSB) was created to administer the system. The Convention’s effectiveness was seriously undermined by Article 26, which absolved states of any responsibilities under the Convention for their colonies. Article 15 required states to set up a “special administration” for national drug control, modelled to some extent on the U.S. domestic control apparatus.[33]

The Convention came into force quickly because various countries and the League of Nations thought it might provide a useful model for arms control negotiations. The League even prepared a report explaining how the principles set out in the 1925 Geneva Convention and the Limitation Convention could be applied to disarmament issues.[34] 

In late 1931, another conference was held in Bangkok to address opium smoking in the Far East. The treaty[35] it produced was weak, primarily because the U.S. attended only as an observer and the European colonial powers were unwilling to implement effective controls on opium use while there was significant opium overproduction and smuggling. The fact that the U.S. strategy of absolute prohibition had made little impact on opium trafficking and use in the Philippines did not strengthen the U.S.’s hand in pushing for the elimination of poppy cultivation. The key result of the Bangkok conference was that it convinced the U.S. that a firmer approach was needed to combat raw material production and illicit drug trafficking.[36] 

The 1936 Geneva Convention for the Suppression of the Illicit Traffic in Dangerous Drugs

Based on initiatives of the International Police Commission, forerunner of the International Criminal Police Organization (INTERPOL), negotiations had begun in 1930 to develop a treaty to stem illicit drug trafficking and punish traffickers severely through criminal sanctions.[37]

In 1936, the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs[38] (1936 Trafficking Convention) was concluded in Geneva. The U.S., led by Anslinger, had attempted to include provisions that would criminalize all activities–cultivation, production, manufacture and distribution–related to the use of opium, coca (and its derivatives) and cannabis for non-medical and non-scientific purposes. Many countries objected to this proposal, and the focus remained on illicit trafficking.[39] Article 2 of the Convention called on signatory countries to use their national criminal law systems to “severely” punish, “particularly by imprisonment or other penalties of deprivation of liberty,” acts directly related to drug trafficking. 

The U.S. refused to sign the final version because it considered the Convention too weak, especially in relation to extradition, extraterritoriality and the confiscation of trafficking revenues. The U.S. was also worried that if it signed, it might have to weaken its domestic criminal control system to comply with the Convention. In fact, the Convention never gained widespread acceptance, as most countries interested in targeting traffickers concluded their own bilateral treaties.

Despite its minimal overall effect, the 1936 Trafficking Convention marked a turning point. All the previous treaties had dealt with the regulation of “legitimate” drug activities, whereas the 1936 Trafficking Convention now made such activities an international crime subject to penal sanctions.

The Second World War

In the late 1930s, the Opium Advisory Committee (OAC) of the League of Nations began to question the international drug control regime’s emphasis on prohibition and law enforcement. Some countries proposed combating abuse through public health approaches, including psychological treatment, dispensary clinics and educational programs. Asserting the U.S. belief that addicts could only be cured through institutionalization, Anslinger, supported by Sharman, was able to block all OAC efforts to consider social and etiological approaches to drug problems. Instead, at Anslinger’s insistence, the focus remained on developing a new treaty to impose prohibition and supply control worldwide.[40] 

Ironically, in anticipation of war, many countries (in particular the U.S.) built up stockpiles of opium and opium products intended for medical purposes.[41] The Second World War put further development of the international drug control apparatus on hold.

The 1946 Lake Success Protocol

Following the war, the drug control bodies and functions of the League of Nations were folded into the newly formed United Nations.[42] The UN Economic and Social Council (ECOSOC) took over primary responsibility through its Commission on Narcotic Drugs (CND), which replaced the OAC. Under the CND, the Division of Narcotic Drugs (DND) was charged with the preparatory work for conferences. The PCOB and the DSB continued under the CND in their respective roles of compiling statistics for national estimates and administering previous treaties. Canada’s Sharman became the first Chair of the CND and also held a seat on the DSB.

All these changes in responsibility and organization meant that the existing international drug control treaties had to be amended. The amendments were made in a Protocol[43] signed at Lake Success, New York, on 110 December 1946.

The 1948 Paris Protocol

Anslinger and Sharman campaigned hard to ensure that the CND would report directly to ECOSOC as an independent organization. They were afraid that if the main drug control apparatus was a larger health or social issues organization, such as the World Health Organization (WHO) or the United Nations Educational, Scientific and Cultural Organization (UNESCO), etiology and treatment issues might take precedence over the prohibition focus. In particular, they wanted to ensure that governments would be represented by law enforcement officials rather than physicians or others with sociology or public health backgrounds. Furthermore, the USSR showed interest in considering the social factors underlying drug abuse. For the Western powers to have agreed with the Soviet Union would have undermined their hard-line stance against Moscow and communism in the looming Cold War.

Although control remained principally with ECOSOC, the World Health Organization (WHO), in particular its Drug Dependence Expert Committee, became responsible for deciding what substances should be regulated.[44] This authority was given to the WHO in an international Protocol[45] signed in Paris in 1948. Article 1 stated that if the WHO found a drug to be “capable of producing addiction or of conversion into a product capable of producing addiction,” it would decide how to classify the drug within the international drug control structure. The Protocol also brought under international control specific synthetic opiates not covered by previous treaties.

The 1953 New York Opium Protocol

By the late 1940s, it became clear that the large number of international drug treaties, with their differing types and levels of control, had become confusing and unwieldy. Anslinger, Sharman and their allies had the CND recommend to ECOSOC the idea of consolidating all existing treaties into one document. It would also be an opportunity to bring in more stringent prohibition-based controls.[46] This plan was sidelined for a decade when the Director of the DND, Leon Steinig, proposed the creation of an “International Opium Monopoly” in an attempt to end the illicit trade and guarantee wholesale licit opium supply.

Throughout the 1950s, Cold War tensions pushed Anslinger to rebuild the U.S. stockpile of opium and opium derivatives, often by making large purchases from Iran through U.S. pharmaceutical companies. Many European countries were also stockpiling. The multinational pharmaceutical companies in Europe and the U.S. feared that a monopoly like the one proposed by Steinig would lead to restrictions and higher prices. Anslinger and Sharman along with the British, Dutch and French killed the monopoly discussions in the CND. The French representative on the CND, Charles Vaille, suggested a new opium protocol as an interim solution until the treaties could be consolidated. ECOSOC approved a plenipotentiary conference, and Anslinger seized the new protocol initiative as an opportunity to impose strict global controls on opium production.[47] 

The Protocol[48] (1953 Opium Protocol), finalized in New York in 1953, Article 2 stated bluntly that Parties were required to “limit the use of opium exclusively to medical and scientific needs.” Various provisions were included to control the cultivation of the poppy and the production and distribution of opium. Article 6 restricted opium production to seven states, and Parties could only import or export opium produced in one of those countries.[49] The Protocol comprised the most stringent international drug control provisions yet, but it never gained the support Anslinger had hoped for. It did not receive sufficient ratifications to bring it into force until 1963, and by then it had been superseded by the 1961 Single Convention.

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.[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.”[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.[52] 

The principal foundations of the previous treaties remained in place in the Single Convention.[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.[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.[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.[56] Furthermore, the granting of extradition was described as “desirable.”[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.[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,[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.[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.”[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.[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.[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.

Convention on Psychotropic Substances

In the 1960s, following the signing of the Single Convention, drug use and abuse exploded around the world, especially in developed Western nations.[64] The increase was particularly evident in the pervasive use and availability of synthetic psychotropic substances developed since the Second World War, such as amphetamines, barbiturates and LSD. Most of these drugs were not subject to international control, and because national systems of regulation differed widely, trafficking and smuggling flourished.[65] 

Throughout the 1960s, the CND and the WHO debated the issue of control of psychotropic drugs at regular meetings and made various recommendations to member states concerning the national control of particular substances, including stimulants, sedatives and LSD. In January 1970, the CND discussed a draft treaty prepared by the UN Division of Narcotic Drugs on the international control of psychotropic drugs. Following some modifications by the CND, this document became the basis for negotiations at a plenipotentiary conference convened in Vienna on 11 July 1971; this conference produced the Psychotropics Convention.[66] 

The 1961 Single Convention had been used as a template for the draft Psychotropics Convention, and many of the former’s features are found in the latter: CND/INCB administrative authority, schedules establishing different levels of control for different drugs, mandatory transaction documentation and licensing, an import/export control system, illicit trafficking provisions and criminal sanctions. Though superficially quite similar, the two Conventions are in fact extremely different. The Psychotropics Convention imposes much weaker controls. The reason for this becomes apparent when the positions of the negotiating stakeholders are examined and selected parts of the two treaties are carefully compared.[67] The overwhelming influence of the multinational pharmaceutical industry on the Psychotropics Convention was particularly obvious.[68] 

In contrast to the five negotiating groups identified by McAllister for the Single Convention, there were only two distinct blocs with conflicting positions at the Vienna conference. One group included mostly developed nations with powerful pharmaceutical industries and active psychotropics markets; this was essentially the “manufacturing group.” The other group consisted of developing states, supported by the socialist countries, with few psychotropic manufacturing facilities; this was to a large extent the “organic group.” At the 1971 negotiations, however, the positions of the two groups were completely reversed. The manufacturing group adopted the traditional arguments of the organic group: weak controls, national as opposed to international controls, and national sovereignty taking precedence over any supranational UN body. The rationale for these positions was that strict controls would be difficult to enforce and would cause financial loss. The organic group, on the other hand, pushed hard for strict controls similar to those it had been forced to accept in the Single Convention.[69] 

A comparison of the Preambles of the two Conventions is revealing. Although the Preamble is not legally binding, it encapsulates the spirit of the instrument. In the Single Convention, addiction is described as “a serious evil for the individual … fraught with social and economic danger to mankind.” It is recognized, however, that “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes.” By contrast, the Psychotropics Convention makes no mention of the “serious evil” of “addiction,” but rather notes “with concern the public health and social problems resulting from the abuse of certain psychotropic substances.” As well, it is recognized that “the use of psychotropic substances for medical and scientific purposes is indispensable and that their availability for such purposes should not be unduly restricted.” The overall tone of the Psychotropics Convention Preamble is less harsh, and it implies that “abuse of certain,” not all, psychotropics, is not as serious a problem as “addiction to narcotic drugs” in general.

The approach to categorizing drugs by means of schedules with varying levels of control also differed between the two Conventions. In the 1961 Single Convention negotiations, when the placement of a drug in a particular schedule was disputed, the drug almost always ended up in a schedule not favoured by the organic group – for example, the placement of cannabis in Schedule IV. The manufacturing group’s insistence on this classification method was based on the idea that narcotic drugs should be considered hazardous until proven otherwise. This reasoning did not apply, however, when U.S. economic interests were at stake. In 1971, the U.S. delegation argued forcefully and often successfully that organic raw materials should be assigned to the strictest schedules, while their manufactured derivatives should be placed in the weaker schedules. 

The Psychotropics Convention also contains four schedules of control, but they are substantially different in nature and organization from those of the Single Convention. For example, the most stringent schedule in the Single Convention is Schedule IV,[70] which is equivalent to Schedule I[71] in the Psychotropics Convention. In both cases, the drugs included may be used only by authorized persons in government-operated medical or scientific institutions, and their manufacture, import and export are strictly controlled. The weakest schedule in the Psychotropics Convention is Schedule IV, which contains tranquilizers. Some manufacturing states tried to eliminate Schedule IV by arguing that such drugs were sufficiently regulated by national controls and that international control was therefore unnecessary. In the end, Schedule IV was retained, albeit with a much shorter list of drugs. However, the principle on which drugs were classified was completely reversed, in particular by the U.S.: “unless there was substantial proof that a substance was harmful, it should remain uncontrolled.”[72] 

Another key difference between the two Conventions is revealed by a close comparison of the schedules. Previous treaties, including the Single Convention, not only covered the base substances but also extended control to include their salts, esters, ethers and isomers, i.e., their derivatives. In contrast, derivatives were completely absent from the schedules of the Psychotropics Convention. As a result, every substance to be covered under the treaty regime must be specified by name. In practical terms, that is impossible because new derivatives are constantly being produced, and they comprise 95 per cent of the substances developed by pharmaceutical firms. If a general reference to derivatives had been included, new substances would have been covered automatically. This omission was apparently the result of a deal made between political representatives when the technical experts were not present; the derivatives had to be sacrificed in order to get the manufacturing states to sign the treaty.[73]

The system of estimates set out in Article 19 of the Single Convention requires Parties to report annually to the INCB how much of each controlled substance they will need for the next year. This system is one of the pillars of the international drug control regime and dates back to the second Geneva conference, which led to the 1925 International Opium Convention. It was completely excluded from the Psychotropics Convention. As McAllister has pointed out, “[t]his omission was clearly in the interests of the manufacturing states, because without estimates of need it is impossible to calculate whether more of a substance than can legitimately be put to use is being fabricated.”[74] This allowed multinationals to manufacture unlimited quantities of psychotropic substances without being constrained by annual production limits based on licit need.

These omissions–derivatives and estimates–were largely corrected during the 1970s and 1980s through quiet recourse to customary international law by the DND and the INCB. The latter asked Parties to submit psychotropics information and statistics not required by the Convention. The initial positive responses from various organic group states were then used to persuade others to follow suit. Similarly, the CND and the WHO simply announced that derivatives would be included in the schedules. Some governments complied and others were eventually forced by international pressure to do likewise.

Article 3 of the Single Convention gives the WHO the key role in determining whether, on the basis of a medical or scientific analysis, a new drug should be added to a schedule and thus placed under international control. The WHO’s recommendation is submitted to the CND, which makes the final decision. However, any Party may appeal the CND’s decision to ECOSOC within 90 days. ECOSOC’s decision is final. While a decision is being appealed, the CND may still require Parties to place control measures on the substance in question. 

Under the Psychotropics Convention, the WHO continues to make recommendations based on medical and scientific criteria. However, Article 2(5) explicitly directs the CND to bear in mind “the economic, social, legal, administrative and other factors it may consider relevant” in coming to its decision. Furthermore, Article 17(2) states that the CND’s decision is subject to approval by a two-thirds majority of CND members.[75] The CND’s decision may still be appealed to ECOSOC, and Parties have up to 180 days to do so. In addition, ECOSOC’s decision is not necessarily final; there is the possibility of continual appeals. Lastly, while a decision is being appealed, Article 2(7) allows a Party to take “exceptional action” and exempt itself from certain control measures ordered by the CND pending the outcome of the appeal. The cumulative effect of all of these additions to the Psychotropics Convention is that it can be much harder for the WHO to bring a new psychotropic drug within the control system than to add a new narcotic drug to the Single Convention.

The criteria for placing a new drug under control also differ between the two Conventions. According to Article 3 of the Single Convention, a narcotic drug will come within the control regime if it is “liable to similar abuse and productive of similar ill effects as the drugs” in the relevant schedule. The prerequisites under Article 2(4) of the Psychotropics Convention are significantly more stringent. The WHO must find:

 (a)  that the substance has the capacity to produce

 (i)           (1) a state of dependence, and

                (2) central nervous system stimulation or depression, resulting in hallucinations or disturbances in motor function or thinking or behaviour or perception or mood, or

 (ii)          similar abuse and similar ill effects as a substance in Schedule I, II, III or IV, and

that there is sufficient evidence that the substance is being or is likely to be abused so as to constitute a public health and social problem warranting the placing of the substance under international control. 

Taking the lead for the manufacturing group on this point, the U.S. and Britain were the most adamant about including such highly restrictive criteria.[76] 

The Psychotropics Convention is far ahead of the Single Convention’s superficial attempt to address the demand side of drug problems (Article 38 described above). Article 20 of the 1971 treaty is a milestone in that it introduced the concepts of public education and abuse prevention into the legal infrastructure of international drug control. In particular, it enjoins Parties to “take all practical measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and [to] coordinate their efforts to these ends.” Parties are also required to promote “as far as possible” the training of personnel to carry out these tasks and encouraged to further the study and public awareness of etiological issues related to abuse. Although these provisions leave plenty of room for countries to avoid taking measures, they are a definite improvement over the Single Convention.

The penal provisions in Article 22 of the Psychotropics Convention allow states to use treatment, education, after-care, rehabilitation and social reintegration instead of just conviction or punishment in dealing with abusers who commit offences under the Convention. While the acknowledgement of treatment and rehabilitation is an improvement over previous strictly penal provisions, such measures are intended as a supplement to imprisonment rather than as an alternative.[77] 

On the whole, the 1971 negotiations resulted in a treaty that was significantly weaker than the Single Convention. Furthermore, any possibility of revisiting the provisions of the Psychotropics Convention was not realistic in the early 1970s, as a new chapter in the U.S. “war on drugs” was beginning.[78] 

Protocol amending the Single Convention on Narcotic Drugs, 1961

In the early 1970s, U.S. President Richard Nixon officially declared “war on drugs” in response to the massive drug abuse in the U.S. and the social damage it was causing. This announcement had global repercussions.[79] 

In 1971, as part of the Nixon administration’s international anti-narcotics campaign, U.S. officials suggested creating a government-funded, UN-administered fund to combat drug abuse.[80] The United Nations Fund for Drug Abuse Control (UNFDAC) was launched in 1971 with an initial $2 million donation from the U.S. Other governments were reluctant to contribute because of the motives behind the Fund. This reluctance was well founded as UNFDAC essentially became a U.S. tool. The emphasis was on law enforcement and crop substitution rather than abuse and demand-oriented strategies. Money went primarily to projects that involved U.S. allies and focused on countries where the U.S. had been unable to stop opium production.[81] 

The Fund was also sharply criticized for succumbing to the inefficiency of the UN’s bureaucratic machinery: “A large proportion of the money allocated to the Fund’s various programs is in fact spent on supporting an ever-expanding bureaucracy to administer the programs. Indeed many of the Programs appear to serve no purpose other than to provide occupation for the enlarged secretariats.”[82] It was also argued that the UNFDAC should be transferred from the drug control bodies under ECOSOC to the United Nations Development Program, which was better able to assess the development and aid needs of recipient countries.[83] 

Another key initiative of the Nixon administration was to strengthen the Single Convention. As a result of heavy U.S. lobbying, a UN plenipotentiary conference was convened in March 1972 to amend the Convention.[84] What came out of the conference was the Single Convention Protocol. The main goal of the amendments was to expand the INCB’s role in controlling licit and illicit opium production and illicit drug trafficking in general. The U.S. wanted to revive certain aspects of the 1953 Opium Protocol by attempting to reduce licit opium production. However, in 1972, licit production was just meeting licit demand, and few countries were willing to risk a global shortage of opium for medical use.[85] Consequently, the U.S. proposals were significantly diluted.

The backbone of the Single Convention Protocol consists of provisions that enhance the INCB’s powers, especially in relation to illicit trafficking. In Article 2 of the Single Convention, the definition of the INCB’s functions now includes an explicit reference to the prevention of “illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs.” Article 35 encourages Parties to supply the INCB and the CND with information on the illicit drug activity in their territory; as well, the INCB is empowered to advise Parties on their efforts to reduce illicit drug trafficking. When Parties conclude extradition treaties with one another, such agreements are now deemed to automatically include the drug-related offences set out in the Single Convention, including trafficking.[86] Article 22(2) of the Psychotropics Convention says only that it is “desirable” that such offences be made extraditable.

The Protocol amended the Single Convention’s abuse prevention provisions to bring them into line with Article 20 of the Psychotropics Convention.[87] The amended Single Convention also echoes the Psychotropics Convention by now allowing countries to use “treatment, education, after-care, rehabilitation and social reintegration” either as an alternative to or in addition to conviction or punishment.[88] 

Although not as stringent as originally intended by the U.S., the Single Convention Protocol continued the prohibitive tradition of the international drug control regime, especially against opium, and stepped up the war on illicit trafficking.

Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Numerous national and regional drug control initiatives were launched in the 1970s and 1980s.[89] In Europe, the Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs, also known as the “Pompidou Group,” was created to facilitate discussions between countries. In addition, the Heads of National Law Enforcement Agencies (HONLEA) met regionally - in Asia and the Pacific in the 1970s, and in Africa, Latin America and Europe in the 1980s - to improve police and customs drug enforcement cooperation. INTERPOL expanded its operations and became “an important clearinghouse for information and a sponsor of local, regional, and global drug enforcement meetings.”[90] 

Meanwhile, concerns arose within the UN and among its main control-oriented members that the anti-trafficking efforts of the international drug control system were being compromised by the fact that certain nations were not Parties to the Conventions or did not have domestic law enforcement systems capable of properly combating illicit trafficking.[91] In 1984, the UN General Assembly adopted resolution 39/141, which called on ECOSOC to instruct the CND to prepare “as a matter of priority” a draft convention considering “the various aspects of the problem [of illicit drug trafficking] as a whole and, in particular, those not envisaged in existing international instruments.” Thus, the goal was to add an additional, trafficking-specific layer to the drug control system to complement the two existing Conventions.

The draft treaty was finalized at the 1987 UN Conference on Drug Abuse and Illicit Trafficking. Also at this Conference, a Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control[92] (CMO) was adopted to encourage states to fulfil their existing treaty obligations. The CMO focused on four areas: (1) prevention and reduction of illicit demand; (2) control of supply; (3) suppression of illicit trafficking; and (4) treatment and rehabilitation. Many of the objectives described in the CMO were reflected in the draft treaty. Between 25 November and 20 December 1988, representatives of 106 states met in Vienna to negotiate a final text. The result was the Trafficking Convention.

The Trafficking Convention is essentially an instrument of international criminal law. Its aim is to harmonize criminal legislation and enforcement activities worldwide with a view to curbing illicit drug trafficking through criminalization and punishment. Under the Convention, Parties are required to enact and implement very specific criminal laws aimed at suppressing illicit trafficking. These laws relate to such aspects of the problem as money laundering, confiscation of assets, extradition, mutual legal assistance, illicit cultivation, and trade in chemicals, materials and equipment used in the manufacture of controlled substances. As with the other two Conventions, the CND and the INCB are charged with administration of the Convention. Furthermore, for minor offences, the Trafficking Convention allows demand-side measures to be used as an alternative to conviction or punishment.[93] 

The Preamble describes illicit trafficking as “an international criminal activity” and points out the “links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States.” It also stresses “the importance of strengthening and enhancing effective legal means for international co‑operation in criminal matters for suppressing the international criminal activities of illicit traffic.” Even the single reference in the Preamble to demand-side issues is couched in terms specific to criminal law: “Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic” (emphasis added). The implication is that drug users also are to be considered criminals. The Preamble clearly reflects its prohibitionist roots, even explicitly reaffirming “the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the system of control which they embody.”

Accordingly, the cornerstone of the Trafficking Convention is Article 3: “Offences and Sanctions.” Here the treaty breaks new ground by requiring that Parties “legislate as necessary to establish a modern code of criminal offences relating to the various aspects of illicit trafficking and to ensure that such illicit activities are dealt with as serious offences by each State’s judiciary and prosecutorial authorities.”[94] The mandatory offences, set out in Article 3(1), include the following:

·        The production, manufacture, distribution or sale of any narcotic drug or psychotropic substance in violation of the provisions of the Single Convention or the Psychotropics Convention;

·        The cultivation of the opium poppy, coca bush or cannabis plant in violation of the above Conventions;

·        The possession or purchase of any narcotic drug or psychotropic substance for the purpose of illicit trafficking;

·        The manufacture, transport or distribution of materials, equipment and substances for the purpose of illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

·                      The organization, management or financing of any of the above offences.[95] 

Furthermore, Article 3(2) of the Trafficking Convention requires each Party, subject to its constitutional principles and the fundamental principles of its legal system, to establish criminal offences for the possession, purchase or cultivation of drugs for personal consumption.

Some leeway?

Three points bear making concerning the substance of the current conventions.

The first has to do with the absence of definitions. The terms drugs, narcotics and psychotropics are not defined in any way except as lists of products included in schedules. It follows that any natural or synthetic substance on the list of narcotics is, for the purposes of international law, a narcotic, and that a psychotropic is defined in international law by its inclusion in the list of psychotropics.[96] The only thing that the 1961 Convention tells us about the substances to which it applies is that they can be abused. The 1971 Psychotropics Convention, which, as noted earlier, reversed the roles in that the synthetic drug producing countries wanted narrower criteria, indicates that the substances concerned may cause dependence or central nervous system stimulation or depression and may give rise to such abuse as to “constitute a public health problem or a social problem that warrants international control.”

The second point, following from the first, relates to the arbitrary nature of the classifications. While cannabis is included, along with heroin and cocaine, in Schedules I and IV of the 1961 Convention, which carry the most stringent controls, it is not even mentioned by name in the 1971 Convention, though THC is listed as a Schedule I psychotropic along with mescaline, LSD and so on. The only apparent criterion is medical and scientific use, which explains why barbiturates are in Schedule III of the 1971 Convention and therefore subject to less stringent controls than natural hallucinogens. These classifications are not just arbitrary, but also inconsistent with the substances’ pharmacological classifications and their danger to society.

Third, if there was so much concern about public health based on how dangerous “drugs” are, one has to wonder why tobacco and alcohol are not on the list of controlled substances.

We conclude from these observations that the international regime for the control of psychoactive substances, beyond any moral or even racist roots it may initially have had, is first and foremost a system that reflects the geopolitics of North-South relations in the 20^th century. Indeed, the strictest controls were placed on organic substances - the coca bush, the poppy and the cannabis plant - which are often part of the ancestral traditions of the countries where these plants originate, whereas the North's cultural products, tobacco and alcohol, were ignored and the synthetic substances produced by the North’s pharmaceutical industry were subject to regulation rather than prohibition. It is in this context that the demand made by Mexico, on behalf of a group of Latin American countries, during the negotiations leading up to the 1988 Convention, that their use be banned must be understood. It was a demand that restored the balance to a degree, as the countries of the South had been forced to bear the full brunt of the controls and their effects on their own people since the inception of drug prohibition. The result may be unfortunate, since it reinforces a prohibitionist regime that history has shown to be a failure, but it may have been the only way, given the mood of the major Western powers, to demonstrate the irrationality of the entire system in the longer term. In any case, it is a short step from there to questioning the legitimacy of instruments that help to maintain the North-South disparity yet fail miserably to reduce drug supply and demand.

Putting aside such questions of substance, we will now examine how much leeway countries have within the current conventions to adopt less prohibitionist policies.

Several states have adjusted their criminal enforcement systems to allow de facto possession of small amounts of certain soft drugs, such as cannabis and its derivatives, for personal consumption while remaining within the legal bounds of the Conventions.[97] Although the Conventions do not permit legalization or even decriminalization of possession, those countries have circumvented the limitations by criminalizing possession, as required by the treaties, but not strictly enforcing the legislation, or they have effectively “depenalized” the offences by exempting them from punishment.[98]

According to some observers, such approaches clearly violate the spirit of the Conventions, especially the Trafficking Convention, which seems to use the term “trafficking” very broadly to include demand-side activities within a supply-oriented control regime. Yet there is a legal basis for these “softer” approaches because the treaties do not explicitly forbid them.

The hard-nosed criminal law approach adopted by the international drug control system has drawn criticism from human rights activists. Some maintain that the imprisonment penalties are excessive for soft-drug offences such as possession of a small amount of cannabis for personal consumption.[99] It is argued that imprisonment in such circumstances is disproportionate to the offence and therefore violates the inherent dignity of persons, the right to be free from cruel and degrading punishment, and the right to liberty, as set out in such instruments as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[100] It has also been argued that drug use is a human right and should be recognized as such in the Universal Declaration of Human Rights.[101] 

The Trafficking Convention is the only one of the three Conventions that mentions human rights. Article 14(2) of the Trafficking Convention explicitly requires Parties “to respect fundamental human rights” when they take measures to prevent and eradicate the illicit cultivation of plants containing narcotic or psychotropic substances, such as opium, cannabis and coca. The same provision also requires states to take into account traditional licit uses, where there is historical evidence of such use, and protection of the environment.

There are three factors that provide states, including Canada, with some leeway. The first is the fact that the conventions recognize the primacy of national legal systems. Indeed, the international drug agreements have no direct application in national law. To make them enforceable within its territory, the state must enact a law; in Canada, that law is the Controlled Drugs and Substances Act. Specifically, the conventions variously state that the proposed penalties are to be imposed “subject to [the Parties’] constitutional provisions” or “having due regard to their constitutional, legal and administrative systems.” In Canada, the provisions of the Canadian Charter of Rights and Freedoms and the interpretations given to them by the Supreme Court are the framework for interpreting the international conventions on drugs.

The second, slightly more technical point suggests that sanctions for possession apply only to possession for the purposes of trafficking, especially in view of this provision’s position between two articles on trafficking and of its earlier wording.[102] Failing to punish people for possession for personal use would not be, strictly speaking, prohibited. That is the legal opinion of an expert asked by Switzerland’s Federal Office of Public Health to comment on its draft legislation to legalize cannabis: [Translation] “The statute’s general depenalization of the consumption and small-scale cultivation of cannabis would be compatible with the conventions.”[103] With regard to cannabis trade and supply, the author writes: [Translation] “Even though regulating cannabis trade with a licensing system does not appear to be out of the question, some practical problems remain, partly because of the control mechanisms required by the 1961 Convention, and partly because the international community interprets the 1988 Convention as an obligation to punish the buying and selling of cannabis.”[104]

The third factor is that the conventions impose moral obligations on states and not legal obligations, much less penalties or sanctions for violating them, and that they also include review or amendment mechanisms.

CONCLUSIONS

As we have seen in Chapters 5, 6 and 7, cannabis is widely used in every part of the world, does not have the harmful effects ascribed to it, and poses little risk to public health. Consequently, it in no way deserves to be included in the convention schedules that list what are supposed to be the most dangerous drugs. Cannabis even has therapeutic uses recognized by Canadian courts. For the above reasons, we recommend that Canada notify the international community of its intent to seek the declassification of cannabis as part of a public health approach that would include stringent monitoring and evaluation.