ILLICIT NARCOTICS AND INTERNATIONAL CRIME:

                         THE EFFORT TO INSTITUTIONALIZE CONTROLS

             In November 1993 the General Assembly asked the International Law Commission to draft a statute for an international criminal court.[i]  This action marks another milestone in the efforts of the US throughout the century to build an International Narcotics Regime.[ii]  The progress towards an international criminal court is not likely to be easy, and if past patterns hold it may be US elected leaders who reject ratification of the convention or place reservations on its applicability to the US.  Attempting to explain why the US might easily reject a convention and institution it endeavored mightily to create requires us to step back and examine the politics of building the narcotics regime. 

             First we ask why the US has played the role of policy entrepreneur in Regime-building in narcotics?  What explains the tenacity of US efforts?  How have other states reacted to US leadership?  What is the end result:  what kind of international regime has been developed, on paper and in operation?  In that light, what can be expected in the effort to establish new institutions and functions? 

             We pose the questions in terms of state and system-level perspectives.  On the state level, we ask why the US emphasized enforcement with a supply-side orientation.  The combination required narcotics to be a  foreign policy issue requiring cooperation of other states.  We contrast those factors with experiences of other states, to show logical diversion in national interest and policy orientation. 

             On the system level, we try to discover if the Realist or Neorealist perspectives explain the patterns observed.   According to the Neorealist "hegemony" framework, we should  find the US preferences gaining greater acceptance during the century, and particularly after World War II, as US power increased and was recognized.  A hegemon provides benefits to others, who then are willing to accept hegemonic leadership.  Issues may be linked in patterns of complex interdependence, which enables a benevolent hegemon to build winning coalitions more easily.  We might see greater resistance after the 1970's as the relative power of the US declined.[iii] 

             According to Realism,  states will counter-balance power or threat.  In the Realist view, only when the US advocated policies which supported sovereign independence of member states would there be acceptance.  If the US endeavored to establish norms and rules which would bind states, limit sovereignty or permit an intrusive foreign presence under regime auspices, the response would be opposition.  States should have coalesced to modify and restrain the US in the building of a restrictive or prohibitionist International Regime, particularly after World War II.  States can employ a variety of strategies to register opposition.  Terms accepted in a convention can be successfully vitiated in decisional bodies of the Regime by structure or procedures, just as states can refuse to ratify, or fail to comply.  What does the record show?  Which model seems most applicable to the building and expansion of the Regime?

             An important caveat:  the focus lies on licit narcotic regulation.  We do not cite the enormously profitable illicit industry as evidence Regime failure, which was the subject of an earlier paper.[iv]  Deviant behavior is expected in all social institutions, and is not evidence of breakdown (Young in Krasner 1983, 95).  

                   Why the US Promoted an International Regime in Narcotics

             Several factors have been put forth, singly or in combination to explain the persistence of US narcotics policy characterized by a supply-side orientation focusing on changing other country's policies, and  enforcement rather than prevention or treatment.[v]   Five of the factors are state-level, showing the impact of societal or governmental characteristics  on policy direction and development.  Two are the standard subjects in system-level analysis.

 Ethnic Politics

             According to some analysts, narcotics policy was and still remains a thinly disguised policy targeting ethnic minorities of color.  The Chinese smoked opium, and took the habit with them as they spread across the country mining, building railroads, and setting up small businesses.  Mexicans smoked marijuana, as did African Americans.  Hispanics and African Americans used cocaine.  Anglos could harass and make life difficult for disliked minorities, all the while claiming they were not prejudiced, but just opposed to drugs.[vi]  Since the drugs came from abroad, the best remedy was to keep them out.  Restricting trade, interdicting smugglers, reducing or eliminating production abroad, were logical policies, but required cooperation of other countries.  

 Political Support

             In the United States crime, violence, and drugs have been perennial "hot button issues" for politicians seeking electoral support.[vii]  Because Democrats have their heaviest support among the lower classes, Republicans use drugs/crime/violence as a way to divide the lower class vote.[viii]  Mythical numbers are created and scare tactics are common.[ix]  After election, narcotics justify an enhanced police presence in lower-class neighborhoods and housing developments.  Given the costs of treatment programs, and concerns about their effectiveness, Republican politicians are well advised to  externalize costs.[x]  Democrats meanwhile downplay "drug wars" but shy from any imputation of being "soft on drugs."[xi] 

 Profit-motives of News and Entertainment Industries         

             Newspapers (from tabloids to the New York Times), publishers, radio and television, and cinema exploit "hot button" issues to boost sales, viewership, readership, and profits.  Journalists, writers, and editors  rely heavily on governmental sources for their information.  Political and bureaucratic officials in narcotics have many reasons to justify manipulating the data.[xii]  The symbiotic relationship between press and politicians leads to oft-hysterical campaigns on drugs.  Numbers which shock, articles which alarm, stories which unnerve are standard features in the coverage.[xiii]     

             Since many drugs are smuggled, it is easy for writers, journalists, and governmental officials to direct attention abroad and generate support for a supply-side strategy.  This is especially true when the governmental sources are enforcement-oriented.  Reducing demand is difficult.  Almost every program attempted has been found wanting.  Investigations into treatment and prevention which demonstrate program ineffectiveness then lead to support for a vigorous supply-side strategy.  Reports of activities abroad seem to be an acceptable substitute for results.  Thus most Americans probably regarded the killing of Pablo Escobar and break-up of the Medellin cartel as a victory in the drug war--totally overlooking official statements that no drop in quantities of cocaine smuggled into the US was expected. 

Policy Entrepreneurs

             Three officials guided and dominated US narcotics policy.  The Episcopal Bishop Charles Henry Brent wrote a personal letter to his friend President Theodore Roosevelt on opium addiction in the Philippines, suggested an international conference of major governments to address the general problem, and chaired the Shanghai Conference of 1908.  Dr. Hamilton Wright and later his wife  designed and put forward US positions in international conferences and insisted on national legislation--how could the US be a leader in narcotics control when no federal law existed?  Evidence suggests little deliberation or guidance in development of a series of policy positions.[xiv]   Wright emphasized the "crazed drug fiend" committing unspeakable acts of violence, which became part of American folklore.[xv]

              From 1930 to 1970, Harry Anslinger was the key in designing policy.[xvi]  He headed narcotics bureaus (under different names), represented the US on international narcotics committees, and advised the President, the Congress, and the states on narcotics policy.  According to Becker, Anslinger is an example of a moral entrepreneur.[xvii]  Anslinger held that consumption, production and traffic of narcotics could be eliminated and deterrence achieved by strict enforcement and mandatory prison sentences.  He portrayed drugs as immoral and evil, causing violence and insanity.  He cultivated the press and Congress, lobbied professional and scientific associations, and provided them with illustrations on the hazards of drug use which at the time were not verified.  Subsequent analysis has shown misrepresentation, pure fiction, and suppression of studies which did not support his views.[xviii]

             Anslinger's willingness to adapt narcotics to the political goals of others made him a valuable ally.  He was always willing to see narcotics politicized by politicians who wanted to win elections, just as he was willing to harness narcotics to the Cold War.[xix] 

             Harry Anslinger carved out a policy niche and had his preferences adopted as policy.  Rarely did others have a reason to challenge them, and Anslinger's approach suggested that those advocating alternative policies were disreputable, morally deficient, evil, or at best, naive innocents in a depraved world.  After his retirement, no "moral entrepreneur" appeared, but the Anslinger's organizational ethos continued.[xx]

 Organizational  Politics

             Some question the classification of Anslinger as a moral entrepreneur, and view him as the consummate organizational politico.  He mounted a campaign using morality and frightening examples to gain public and official support, and resulted in an increase in the size of the narcotics bureaus and budgets larger than the amount initially requested.[xxi] 

             Anslinger developed a win/win strategy.  If drug use or trafficking declined, the agency claimed their tactics were successful and needed more funding to "win the war."  If drug use or trafficking increased in magnitude, the agency said they needed more funding, more agents, tougher  laws, and stricter penalties.  An agency staffed with enforcement personnel and with an enforcement mission is not likely to advocate or support non-enforcement policies.[xxii]  Anslinger's view that anti-narcotic education would be dangerous and counter-productive in the US, became the hallmark of agency policy advice. [xxiii] Failure rarely results in re-examination or re-assessment.[xxiv]

Wilsonian Idealism

             The idealism associated with Woodrow Wilson is far more ingrained in US culture and critical to the understanding of American foreign policy.  The US is a beacon of hope and liberty;  its democracy is more "pure at heart."  Policies are based on principles, not interest.  Kissinger's DIPLOMACY catalogs American policies which were advanced in the same of principle.  Presidents Truman and Eisenhower cited the principle of non-aggression (whether indirect or direct aggression) when explaining and defending US policy in the Mediterranean and Asia.  Vietnam was a moral war, because we had no interests to protect in that theater.  President Bush cited principle of non-aggression to justify Desert Storm.  Kissinger claims no policy can long retain support in the US unless it is based on principle.[xxv] 

             The US was one of the very few states to attempt prohibition of alcohol and  in principle oppose other mind-altering substances.  Unwilling to confine our idealism to the domestic scene, and unable to do so because opium poppies and coca bushes grew outside our shores, the US carried the crusade into the international arena.  The principle is so important that intervention in other states is justified.[xxvi]  Year after year the US  endeavors to persuade other states to let the US help them with their domestic problem, simultaneously sending a message that others are not capable of controlling narcotics themselves.[xxvii] The US is unwilling to modify policy even when they fail to work as predicted, or cause even greater problems. 

 Hegemonic Leadership

             A different school of thought sees narcotics policy as an instrument through which the US attempts to project world leadership.  At the end of the 19th century, the US moved to expand its role in the world by taking control of the Philippines, and demanding an Open Door in China.  Opium addiction, especially of the Chinese in the Philippines gave the US the opportunity to  quickly exert its control with a prohibition policy.  The US could gain credence with and support of Chinese officials by supporting their efforts to  halt the opium traffic into their country.  Ever since, the US has deliberately used the narcotics issue to penetrate other countries, their police, their military, criminal justice system, and to develop a network of relationships below that of the top political leadership.  Pressuring leaders to adopt American policy, and criticism of those who do not bend the knee is predictable.  Over the years the US has employed military aid, economic aid, and counter-narcotics assistance to project its power.[xxviii]

Security Needs

             A contrasting view maintains that US narcotic policy has always operated to benefit security, and has not been idealistic.  During World War II and the Cold War, the US played a double game.  One on the one hand, the US talked international regulation.  On the other, the US either looked the other way, accepted, or authorized governmental units to participate in illicit narcotic transactions to further larger security goals, in Italy, France, Burma, Laos, China,  Vietnam, Afghanistan, and in Latin America.[xxix]  Narcotics production and traffic are intertwined with intelligence networks and military priorities.  Kruger has suggested that the basic reason the US pressed Turkey to stop producing poppy in the 1970's to break the connection between Turkish opium, the Corsican Mafia and French intelligence.[xxx]  More recently,  the hemorrhage of narcodollars to other countries has negatively impacted the balance of payments.[xxxi]  The drive to persuade other states to end secret coded bank accounts, limit deposits, regulate electronic transfers, and seize assets of illicit traffickers is the response to the new security need.  Sometimes security calls for us to look the other way, sometimes to help (flying drugs out of other states or into the US, building airfields, providing planes), and sometimes to hinder.[xxxii]   We are not at all Wilsonian, but operate like the realists Richlieu or  William Pitt of Orange.      

 Relative Importance of the Factors

             Organizational-bureaucratic politics is the most critical because it has  become intertwined with all the others.  Much of the time narcotics operates in the "low politics" arena;  as such high political officials given only intermittent direction.[xxxiii]  Agencies with an established ethos and preferred policies are likely to regard survival as basic.  Agency  willingness to accommodate others assists its entrenchment in the body politic.  The very existence of a dedicated bureaucracy necessarily tilts the way problems are analyzed and policies are chosen, and in this case towards law enforcement.   In this issue area, negotiators for international conventions, linked to the agencies in question, can put forth proposals which are not always acceptable or supportable when examined by elective leaders in their own country.  So, while the US has promoted an International Regime, the efforts of US negotiators to shape and operate that regime, has been limited not only by the other states at the bargaining table but also by reservations or "understandings" in the Senate.

                                        Factors Operating in Other States

            Other states have not experienced many of the factors important in the US.  Parssinen points out that in Britain, Chinese sailors enjoyed their opium, but in the dock areas.  They did not penetrate the rest of the country as in the US.[xxxiv]  The British pattern is likely to have held for Western Europe.  However the influx of South Asians involved in narcotics traffic may raise the ethnic question in Britain.   

            Few states have policy entrepreneurs comparable to Wright and Anslinger.  Organizational-bureaucratic politics were and are of a different character.  One, the Europeans were rarely idealists.  They chose to promote moderation in the use of alcohol, and medical treatment for addicts--particularly the veterans of World War I who had "needed a little help" from opiates to cope with trench warfare,  artillery barrages, and influenza.[xxxv]  Most Europeans were spared the prohibition-era gangs, violence, and corruption.  Two, their courts did not have the interpretative scope of the US Supreme Court. 

            Three, policy debates were likely to involve different sets of interests.[xxxvi]  The medical and pharmaceutical communities, played an important role, as did the activities of  anti-opium societies (often including nationalist leaders from the colonies, who mounted educative strategies to reduce usage at home).  Countervailing pressures came from colonial government officials, whose colonies relied on  revenues from their opium monopolies in South and Southeast Asia.  Both colonial and home governments were more likely to scrutinize policies proposed and positions taken by their delegates.[xxxvii]  The "old boy network" of delegates to successive international conferences on narcotics could act in consort to restrain the US.[xxxviii]  Several factors help explain why European countries emphasize "harm reduction" policies  not enforcement.[xxxix] 

                Britain may have been the hegemon at the turn of the century, but not long after.  Together, European states could take joint positions to oppose US policies not considered in their national interest--which included production, traffic, and sale of many drugs.  One example:  the British needed tungsten in World War II.[xl]  The medium of exchange was opium.  To facilitate the transactions  the British arranged that a Pekin Syndicate rent warehouses to store supplies on the grounds of the Ghazipur Opium Factory.[xli]  Ghazipur is off-the-beaten track in terms of transportation facilities, major cities or ports, industrial production, and far away from the bases where flights "over the hump" to China originated.  Transfer of opium was, of course, simple and secure.  Another example was the need to finance French forces in French Indo-China when French government support was insufficient.[xlii]

            The British, French and Dutch had little reason to genuflect to the US before World War II, and every reason to join with others on the continent to restrain an intrusive US, whether realist or idealist, which lay costs on them with few perceptible benefits.    

                    The Making of the Regime in Conferences and Conventions

             US officials turned their attention abroad for many reasons, but they needed cooperation of other governments.  The US played the major role in calling conferences which ended with a convention for ratification. 

             The Shanghai convention in 1908 was the first.  It passed resolutions which had no binding force.  The US resolutions offer an early glimpse of what have become characteristic and perennial positions.  The conference rejected a US resolution that a  "...concerted effort should be made by each government...to assist every other government in the solution of its internal opium problem."[xliii]  It rejected US resolutions calling for immediate opium prohibition, and  of limiting opium use to medical and scientific purposes, but passed resolutions calling for export-import controls, and gradual suppression of opium smoking.[xliv]

                The Dutch offered the Hague for the next venue to draw up a convention, but postponed the conference several times then suggested abandoning the venture.  US officials made extraordinary personal efforts to persuade the Europeans to meet.  The British outmaneuvered the US by insisting that manufactured morphine, codeine, and cocaine be restricted as well as opium, which drew German support away from the US.  The Germans, whose pharmaceutical firms earned significant profits manufacturing the opiate alkaloids and cocaine, countered the British by arguing that the twelve states present could not bind all countries, and demanded universal ratification.  Conferences called to promote ratification in 1913 and 1914 were futile:  in those years Britain, France, Germany, Austria-Hungary, Serbia, Greece, Turkey, Persia, Russia, Norway, Sweden, Switzerland and Peru rejected the convention.  The US with British support obtained ratification of the Hague Treaty only by specifying that acceptance of the Versailles Treaty carried with it simultaneous ratification of the Hague.[xlv] 

             The US proposed a conference in the 1920's in which the US and the League of Nations would each send five delegates.[xlvi]  The League rejected that offer and sponsored conferences in Geneva, where the US was limited to participating observer.  The US could not shape conference agendas or committee membership.   The Europeans excluded the US from the committee to discuss banning opium smoking in Asia.  The US walked out of the 1925 conference when its stringent proposals were rejected, and did not sign the 1928 convention;  the US also walked out of the talks leading to the 1936 convention, again because terms were not sufficiently strong.[xlvii]  

             During World War II, League officials in narcotics moved to and were supported by the US.  Narcotic agencies were among the first to be reinstituted within the United Nations.  The US fought to keep the narcotic control institutions in the US, but they were moved to Vienna. 

             After World War II, the US urged support for the restrictive 1953 Opium Protocol, but few states ratified it in that decade.  The US endeavored to integrate existing conventions in the 1961 Single Convention, but did not like the result.  The General Assembly voted 92:1 to bring the Single Convention of 1961 into force in 1964;  the US cast the negative vote and did not ratify the convention for three more years.  In 1972 a Protocol to the Single Convention gained support.  The US wanted greater emphasis on controlling the illicit traffic and use via enforcement;  other states obtained inclusion of their preferences for prevention, information, and education.[xlviii]  

             The US Senate did not ratify the 1971 convention controlling psychotropic drugs until 1980, some four years after it came into force.  US negotiators mediated between a DEA desirous of strong controls and a pharmaceutical industry which did not, and Third World States who wanted to place controls on manufacturing states similar to those placed on them.  Successive Presidents were unwilling to take the resulting document to the Senate.  Pharmaceutical firms opposed the convention, and Presidents feared the Senate would reject it.  To this day the treaty remains unratified by several European states with important pharmaceutical manufacturing interests.  Yet the treaty is far less restrictive than those regulating organic narcotics.    

             When the 1988 Convention on the Illicit Traffic came to the Senate, the Senate committee insisted on placing reservations on some of the very items the US negotiators had fought very hard  to get.   One example:  the Senate exempted the US from the requirement that disputes pertaining to illicit narcotics, especially in terms of mutual legal assistance, go to the International Court of Justice.  Another example:  extradition.  The Senate insisted on the existence of a bilateral convention, even though US negotiators had fought to have the Convention serve as an extradition treaty for states without bilateral agreements.[xlix]

             Ethan Nadelmann suggests International Prohibition Regimes go through different stages, and plays down the role of any one country as "prime designer."[l]   What this record shows is that the US can persuade other states to participate however reluctantly in international narcotic conferences, but cannot persuade them to support its proposals.  The US has walked out of or delayed ratification a sufficient number of times to question the ability of the US to act as hegemon.   

 Issue:  Control Over International Trade in Narcotic Drugs

             In Shanghai, 1909, the US obtained support for what appeared to be an innocuous provision that opium should not be exported to states forbidding its import.[li]  The principle invoked was sovereignty;  the norm put forth was that states have a right to determine what dangerous drugs will be allowed to enter and circulate in their borders.  The principle of reciprocity founded the norm that states will honor the rights of other states to permit, ban and be notified of drugs being sent to them. 

             Those principles and norms were successively instituted in rules.  The 1925 convention (after the US walked out) provided for a system of export authorizations for opium which could only be granted after import licenses were received.  Multiple offices in each state receive and send copies of licenses and authorizations to multiple other offices, in both states and to an international body.[lii]   The 1931 convention expanded the licensing/authorization system to include morphine, codeine, and other manufactured opiate preparations.  The 1953 Protocol added coca, and the 1988 Convention included precursor chemicals required for making a number of drugs such as heroin.  The control system continues for licit organic drugs (opiates, coca) and their synthetics, but not of course for the illicit.    

             States notify the international control bodies of their exports and imports of organic drugs.  How well does the system work?  Brunn, Pan and Rexed pointed out in the 1970's that the records of exports and imports do not tally, and the size differential is so great that an explanation of exports in one year being received in another is not credible.  That situation continues.  Some states apparently lose the multiple copies which permit checking imports or exports with authorizations, or never take the time to sort out and trace the transactions.[liii]  

            No authorization or licensing mechanism was instituted for chemical psychotropic drugs (amphetamines, barbiturates, and tranquilizers), which were brought under control in the 1971 Vienna Convention.  The industrialized manufacturing states claimed it would be too arduous for them to implement the same reporting rules placed on Third World countries decades earlier.  Furthermore the Convention does not cite the salts  which are the usual items traded, and which are specifically footnoted in the conventions on opium, coca, and cannabis.[liv]   

             The failure to provide a paper trail might  reflect considered assessment that the authorization system doesn't work well between states or in the international control body.  Most analysts have taken the position that the more powerful manufacturing firms and states established policies in their own interest.  It is well and good to regulate the Third World, but not the First.[lv]

 Issue:  Reducing the Consumption of Organic Narcotic Drugs 

             The US stated in communications to different governments in 1908 that one goal of the Shanghai conference would be for each state to "proceed independently and immediately"  to limit the use of opium, and suggest measures to suppress its cultivation and traffic.[lvi]  In Shanghai, 1909, the US proposed that opiates be prohibited, or their use be limited to medical and scientific purposes.  Both proposals were rejected as too narrow at Shanghai and the Hague conference and convention of 1912,   the Geneva conventions of 1925 and 1928, and the 1936 conventions.  Documents available on negotiations, report of participants, and later analyzes show a concerted front against US proposals until 1931.[lvii]   

             The 1931 convention set up mechanisms so that states might try to balance production of manufactured narcotics (morphine, codeine, thebaine) with estimates of medical and scientific use in the world, and represents a break-through for US interests.  What happened?  European and Latin American states had established domestic regulations on sale of narcotic drugs, but had difficulty coping with the extensive diversion of manufactured morphine, et al,  from prominent European pharmaceutical houses.  The US had resolved a similar problem a few years earlier, by placing limits on the narcotics manufactured by chemical and pharmaceutical firms in the US.  By 1931 other states' interests paralleled that of the US, and they adopted similar policies. 

             For controls to work,  data was needed on needs.  For the first time, each state annually provided estimates of its needs for the manufactured opiates to a League Drug Supervisory Body.  Firms provided estimates of production.  With such information in hand, governments were then in a stronger position to limit the manufacture of certain narcotics to prevent gross over-production.  Currently, however, states can change their estimates four times a year, which suggests little control actually exists.[lviii]  

              Not until the Opium Protocol of 1953 was the US was successful in confining use of opium to medical and scientific purposes (with significant reservations and exceptions.)  The powerful US conducted negotiations with  (a) states in Europe and Asia weakened by World War II and  which benefitted from the Marshall Plan and other reconstruction efforts, (b) newly independent states which received foreign aid (India, Pakistan and Southeast Asian states), (c) states threatened by the USSR which received both military and economic support (Greece, Turkey, Iran).  Ratifications were few and slow, raising questions about lip service and "polite opposition." 

             The 1953 Protocol also limited export of organic narcotics to 7 states (India, Turkey, Iran, Yugoslavia, Greece, Bulgaria, and the USSR).  Subsequently Yugoslavia and Greece gave up poppy production unilaterally.  The US  proceeded to pressure other licit producers to cease production--which harks back to the full opium prohibition stance taken in the Shanghai conference.  President Nixon presented a message to Congress in 1971 specifying an international goal of ending all opium production and the growing of poppies.[lix]

             After the Shah was restored to the throne in 1954 by the CIA, the Shah agreed to ban poppy cultivation only to have to rescind it a few years later.  Governments made intermittent efforts to ban opium but the final blow was given by Khoumeini. 

             In the 1970's the US persuaded Turkey to cease production, and when they resumed a few years later persuaded them to adopt a different method of production (poppy straw, where the entire plant is harvested rather than the latex).  The Turkish ban on production occurred with crop failures in other areas of the world and caused a codeine shortage.  Turkey only produced 15% of the world's supply or morphine.  The medical community in the US was   irate because decision-makers ignored legitimate medical needs and concerns.[lx]  Australia, Spain and other countries began to produce opium because of the shortfalls of the 1970's. 

             The Indian Government decided to cut production by one-third in 1994, partly in response to US insistence on tightening controls and partly because of elite disapproval of opium.[lxi]  Narcotic officials also hoped to reduce pressure by the US on India, which they considered due to the position of the US as chief purchaser of Indian opium.  The reduction enables India to "write off" the US as a buyer.[lxii]  The US response was to threaten "decertification" of India because the production cuts make it impossible for them to meet contractual agreements.  The US also threatened revision of laws specifying that 80% of US opium purchases come from Turkey or India.[lxiii]

               Since India produces over half the licit opium for the world, the cuts will result in significant shortages of morphine and codeine, and extraordinary shortages of noscapine and thebaine, which are alkaloids only appearing in the opium latex method used in India.[lxiv]

            The 1961 convention narrowed still further the use of opiates and coca, explicitly banning "opium eating," the smoking of cannabis (hash), and chewing the coca leaf, all of which were traditional uses opposed by the US.  Other states were able to gain inclusion of terms the US did not appreciate, including the expansion of states allowed to export opium and provision that any state could produce opium for its own use export up to 5 tons.  (The US did not  ratify the convention until 1967.)   

            The prohibitions that the US obtained in the 1953 Protocol and 1961 convention were undone in the 1988 convention,  which broadened licit use to "medical, scientific and traditional purposes."  By that time much of the licit opium production had moved from the Third World to the First and Second World.  Illicit production was unaffected by changes in production of licit opium.[lxv]

            From the data available, it is difficult to tell if the US goal now is elimination of opium or restriction to medical and scientific needs.  The shift of production to stronger First World countries suggests they view the US as prohibitionist.  Opium is too important medically to be banned.  An anomaly:  the US did not obtain any advice from health or medical agencies, in or out of government,  to determine US  estimates of medical or scientific need until 1986, when mandated by Congress.[lxvi] 

          Critical to the effort to restrict opium are the control institutions set up, and the data they collect.  Without both, international regulation is a myth.  Different names and powers were given to narcotic agencies under the League and the United Nations.  Both had a policy body, called the Commission on Narcotic Drugs, and a control body, the International Narcotics Control Board, in the UN.  The CND collects final data on production, manufacture and consumption;  the INCB collects the estimates.        

             How good is the data?  The estimates are not comparable from state to state.  Some base their estimates on sales of the previous year, others on quantities manufactured.  Some add a cushion.  Some include an amount for drug-dependency.  Despite the fact that estimates can be revised four times a year, the difference between estimates of consumption and final figures are very large. 

            Data collected on abusive-consumption  is not comparable among states, or within states over time.  The early requests called for information of addiction;  but some states submitted data on addicts receiving maintenance doses, others the numbers who enrolled in programs to end addiction.   Some states cited drug convictions although not all traffickers or users are addicts. 

             The change to "abuse" is a looser term.  One school of thought  claims "any use is abuse."  Some can cite evidence from public opinion polls of the number who have said they have used drugs at sometime in their life; others specify use at least once in the past year; still others confine it to use once in the past month.  Some draw on a tighter definition:   daily use in the past month.  Others don't take or use polls. 

             In collection of data the International Regime appears to be weak.

             The INCB  was given technical powers to question estimates, demand explanations, change estimates, and impose import or export embargoes on states.  How strong is the INCB in practice?  The answer to the question is "we don't know and can't find out."

             The INCB maintains that its deliberations and records are confidential.  Neither its agenda, minutes, correspondence within the body or between the body and member states, nor data provided by member states to the INCB, are open for inspection, now or in the past.  Their information is not shared with other UN agencies.  Presumably exercise of some of the powers would be noticed--the imposition of an embargo,  public declaration of state violation of the rules, a call attention motion (if passed).  No such open actions have been taken.  There is no "30-year" provision for opening files.  They are forever sealed.[lxvii]  The same rule of confidentiality holds for the Commission on Narcotic Drugs.  Only the wording of final resolutions is provided--not the original, for comparison. 

              What seems to exist is a rhetorically  intrusive regime.  Some of the Shanghai Resolutions of 1909 eminently forgettable in content, but established a pattern for states to exhort, warn, and admonish others about their domestic policies and implementation.  That pattern has continued. 

             Examination of the public records seems to show some achievements.  Countries in South and Southeast Asia which used to sell opium in licensed stores, no longer do so.  Patent medicines containing opiates have been removed.  In 1924, using the standards of European use, the League committees said 720 tons of opium would satisfy world needs.[lxviii]  Seven hundred twenty tons of opium translates roughly into 72 tons of morphine equivalent.  The world's population has increased since 1924, but reported use of opiates has held steady for the past 25 years at 200 metric tons of morphine equivalent.[lxix]  Doctors are more reluctant to give opiates to patients, even in cases of terminal cancer.  The World Health Organization has expressed its concern that states and doctors are not providing sufficient pain relief.[lxx]    

             While medical use and licit use of organic opiates are down, synthetic opiate use has greatly increased without much attention from the INCB.  Synthetics are more expensive and have some noxious side-effects;  pharmaceutical firms are more likely to press for sales of their own products.  And illicit production and manufacture are at an all-time-high (4000 mt opium or 400 morphine equivalent, and 1200 mt cocaine).  States have been unable to control use.  

 Issue:  Extraditing Illicit Traffickers

             From the Shanghai conference on, the US has stressed the need to counter and suppress illicit traffic.  The 1936 convention on the Suppression of Illicit Traffic called for stiff criminal penalties, but never came into effect.  The US walked out of the negotiations saying the penalties were insufficient. 

             Although some provisions to control the illicit traffic were included in the 1971 Vienna Convention,  the critical document is the 1988  UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 

             In its terms this convention demonstrates some of the problems the US faced in trying to bring drug king-pins to justice for their activities in the US.  It established narcotic offenses and money laundering as international legal criminal offenses.  The convention explicitly states that narcotic offenses are not to be considered political or politically motivated, nor fiscal, which in the past had limited extradition, asset forfeiture, and implementation of bilateral mutual legal assistance treaties.  It explicitly removes bank secrecy  as grounds for refusing to implement a legal assistance treaty.  The convention specifies that it will serve as an extradition treaty for all cases in which bilateral treaties do not exist.  (The US negotiators gave up a contentious provision requiring states to extradite their own nationals in order to get this provision in, only to have the US Senate balk and insist on a bilateral treaty.)[lxxi] 

             The label "international criminal offense" seemed innocuous at the time, and was accepted.  Almost every other provision of the convention has reservations:  "unless prejudicial to sovereignty, security, public order, other essential interests;" "in accord with domestic law;"  "burden of proof under domestic law;" "disposal of seized assets by domestic law."[lxxii]  Even though the focus of the document was ostensibly illicit traffic, this was the first treaty that placed equal if not greater emphasis on demand-reduction instead of supply-reduction.  The US has always held that supply-reduction was the key, and the wording and emphasis mark defeat for the US. 

            A major problem in targeting drug "king-pins" has been the unwillingness of countries to extradite their own nationals.  The US has not been bothered with such concerns.  The terms of the Siamese-American Treaty of 1833 was repeated in Article 33 of the Treaty of Wanghea with China which came into force in 1846.  It stated that US citizens who attempt to trade in opium "shall be subject to be dealt with by the Chinese Government, without being entitled to any countenance or protection from the United States."[lxxiii]  Many European countries adopted that provision in subsequent treaties with China:  France, Sweden, Norway, Denmark, Belgium, Italy, Spain, Austria-Hungary, etc.[lxxiv]         

             Third world countries have been reluctant to extradite their own nationals, especially now that traffickers bring so much wealth into the country.  Traffickers have become developers.  Their hard currency assists countries in debt crisis.  Most traffickers support the political authorities in power, even as they bribe officials to look the other way.[lxxv]    

                 What seemed to be innocuous--drug trafficking as an international criminal act--turned out to be significant.  A drive came in a different forum to establish an international criminal court to try international crimes.  Once established, the next step might likely be international prisons, along with a move to standardize criminal laws and penalties between and among states. 

                                  Politics of an International Criminal Court

             The analysis presented here suggests that realism, with its emphasis on counter-balancing power or threat, is more applicable in the issue area of narcotics, than Neorealism.  The US has constantly been in the forefront, leading where other states do not wish to go, and insisting on at least its right to help other countries with their own drug problems.   Originally the European states counter-balanced the US.  After World War II, it didn't take very many years before newly independent Third World states began to find ways to counter the US as well. 

             A typical strategy is to give the US some of what it wants, but then to add provisions which the US finds unacceptable.  Another, which comes from study of the discussions and resolutions reported in the UN CHRONICLE and YEARBOOK OF THE UN suggest the outlines of an implicit deal:  in the international narcotic bodies, the US gets to ban the discussion of policies of legalization or harm-reduction,[lxxvi]  and will be given accolades for its domestic policies (even if they be regarded as failures).[lxxvii]  In return, Conventions have caveats and implementation by control bodies in rhetorically intrusive but otherwise weak.

            In a third strategy, seen most recently,  Third World countries have   gained approval of resolutions, without a vote, of policies directed at the United States.  For example, GA 46/10 on December 10, 1961 states that the fight against drug abuse and illicit trafficking should be in full conformity with sovereignty, the non-use of force or threat of force, and non-interference with other states.  Also included is a call for states to cease  using the issue of drugs for political purposes, and to affirm rights of other peoples to pursue their social and cultural development and political status.   Economic  and Social Council resolution 1991/46  urges governments of countries with serious problems of drug misuse to give demand-reduction the same emphasis as illicit traffic, even specifying which groups needed special attention (i.e., inner city youth). 

             A counter-balancing strategy can be seen in the progress of an international criminal court.  The General Assembly asked the International Law Commission to consider an international criminal court for illicit narcotic cases in 1989.[lxxviii] After that, the Assembly created a new UN Crime Commission on Crime Prevention and Criminal Justice.[lxxix]  By the time the Law Commission returned with its analysis, and asked if the General Assembly wished it to draft a Convention, the court had been expanded to cover multiple international crimes, including computer crime, offenses against the environment, offenses against national cultural heritage,  economic crime, terrorism, organized transnational crime, illegal arms trading, money laundering, as well as illicit narcotic traffic.[lxxx]  At the same time, the Eighth Crime Congress took a stance that imprisonment should be considered a "sanction of last resort."[lxxxi] 

             By the time a completed convention comes before the Senate, businessmen and elected politicians will ponder the possibility of US multinational executives  being extradited to stand before an international criminal court charged for damages resulting from an oil spill, for industrial accidents such as Union Carbide's gas leak in Bhopal, for selling inter-uterine devices to prevent contraception.....  Could Canada or Canadians sue the US for its industrial pollution?  Would environmentalists in the US use this court to force policies  in the US?  Museums might blanche at the prospect of being taken before an international criminal court for possessing national treasures of other countries.  Extraditing narcotic traffickers may be acceptable to the US, but not extradition of CEOs of major corporations or museum directors.  Just as the US was unwilling to take narcotic disputes to the International Court of Justice, so the US may be unwilling to support an international criminal court. 

             The International Regime in narcotics, structured in this century, is weak.  The most important principles are state sovereignty, and diffuse reciprocity, in that order.  Rules are accepted which support sovereignty, not dilute it.  Only against weak Third World states have onerous conditions been placed regarding trade, and that at a time when they were weak and dependent.  Given their knowledge of what First World states will not tolerate, it is doubtful that they would agree today to the same set of regulations.

                                                             Notes