Abstract
The UN era has shown a greater concern for the control of trade and traffic in narcotic drugs than ever before, and this may be evidenced in the efforts of the World Organization to operate both curative and preventive methods of eradication of drug abuse.1 In addition to this, this era has witnessed more institutionalization of the anti-narcotic program than before. There may indeed be as many suggestions for improvement of the drug-situation as there are problems. Whatever may be the suggestions for improvement of the situation, the close co-operation of governments is essential. On the other hand, the desired result may not be achieved owing to varying standards of adminstrative and legal machinery. Therefore, the problems of drugs are problems of governments and they are to a certain extent allowed by governments to grow, owing to the lack of effective preventive machinery. It is from this point of view that the drug problems are considered as “domestic-international” and “international-domestic” problems.2 Indeed, national control is complementary to the international control system, and again, the international control system should not prove impossible for national governments to follow, hence the need for an appropriate and acceptable standard of national administration.3
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Notes
For a good survey of the system of international drug-control, see H. L. May, Narcotic Drug Control, 485 International Conciliation 491–536 (1952).
See further B. A. Renborg, International Drug Control, op. cit., see also by the same author, International Control of Narcotics 22 Law and Contemporary Problems 86 (1957).
See also H. L. May, Narcotic Drug Control: Development of International Action and the Establishment of Supervision under the United Nations, 441 International Conciliation 301–380 (1948) at p. 358.
See further F. W. Swacker, Control of Narcotic Drugs and United Nations Technical Assistance 46 ABAJ 182; see also International Control of Narcotic Drugs United Nations, New York 39–41 (1965).
See further J. W. Samuels, International Control of Narcotic Drugs and International Economic Law, 7 Canadian Yearbook of International Law 192–224 (1969) at p. 193; R. W. Gregg, The United Nations and the Opium Problem, 13 International and Comparative Law Quarterly 96; R. W. Gregg, Politics of International Drug Control, 49 ABAJ 176 (1963); N. Ansley, International Efforts to Control Narcotics, 50 Journal of Criminal Law 105, and R. W. Gregg, Single Convention for Narcotic Drugs, 16 Food, Drug and Cosmetic Law Journal 187.
For a very instructive discussion on the obligations of non-members of the United Nations, see H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems, pp. 106–108; see also Goodrich, Hambro and Simmons, Charter of the United Nations: Commentary and Documents, p. 59.
See above, 3rd Edition and pp. 9, 10 and 292–294.
See above, sub. sec. 4.6.4 and sub. sec. 11.2.4.
See further I. G. Waddell, International Narcotics Control, 64/1 American Journal of International Law 310–323 (1970), at p. 321.
See further R. Pound, “The Task of the Law in the Atomic Age,” in Law, State and International Legal Order: Essays in Honour of Hans Kelsen, pp. 233–246, at p. 245.
Ibid., p. 234. Indeed, what Roscoe Pound said in respect of the formative era of American law, is equally true in respect of modern day international law. In his opinion, in the era of “adventurous individual free self-assertion, from the end of the sixteenth to the nineteenth century . . . the problem of the legal order was to make sure the maximum of free individual self-assertion, subject only to the limitations compatible with the same maximum of free individual self-assertion by all other individuals. These limitations were taken to be ascertainable and provable by reason or to discover themselves in experience. So long as there was abundant room in the world and new domains for free self-assertion opened continually, there was no consciousness of a serious problem for the jurist. . . But there is an end of all things mortal; and the days of ample room, adventurous exploration and exploitation seem past.”
Falk rightly observed that the “international lawyers of the period after World War I, dominated by approaches associated with legal positivism or natural law, achieved a different sort of policy irrelevance from the policy justification of recent years. These earlier international lawyers detached law from the political context of world affairs and made very rigid analyses of the regulation of state conduct by invoking supposedly fixed and unambiguous rules of restraint. They relied for a new system of world order upon agreed rules but they failed to develop an adequate appreciation of the social and political difficulties of making these rules into effective behavioural norms.” R. A. Falk, The Status of Law in International Society, p. 448; see also W. C. Schiffer, The Legal Community of Mankind, and Charles de Visscher, Theory and Reality in Public International Law, (translated P. E. Corbett).
M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion, p. 261.
Ibid.
See generally R. A. Falk, op. cit., and International Law and the Civil War, edited by the same author, published under the auspices of the American Society of International Law, see also by the same author, Legal Order in a Violent World.
See further McDougal and Feliciano, op. cit., especially chapters 2 and 3.
Ibid., chapter 1; see also Stein and Shand, Legal Values in Western Society.
See further R. A. Falk, The Status of Law in International Society, op. cit., pp. 242–264. For a study of the various approaches to the Law of the Sea: Western Hemisphere Perspectives, see R. Zacklin (Ed.) The Changing Law of the Sea, published under the auspices of the Carnegie Endowment for International Peace, (Leiden: A. W. Sijthoff, 1974); see also J. Andrassay, International Law and the Resources of the Sea (New York: Columbia University Press, 1970).
R. A. Falk, The Status of Law in the International Society, op. cit., p. 449.
Ibid.
G. Schwarzenberger, International Law and Order, p. 19.
See further “The Theory of Pure Law in Historical Perspective” in S. Engel, ed., Essays in Honour of Hans Kelsen, p. 30; see also H. Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harvard Law Review (No. 1) 44–70 (1941).
See further G. Schwarzenberger, Economic World Order?, pp. 132–134.
E.g., the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, 1936 was denounced by the Netherlands.
See further R. A. Falk, Legal Order in a Violent World.
25a The term “international treaty” should not be used synonymously with the term “universal treaty,” and the pattern of accepting a so-called “international” treaty by states should be carefully considered. Whether or not a treaty will be internationally accepted depends very much upon the following factors: (a) the subject-matter of the treaty itself, and (b) the degree to which the interests, political and/or economic, of nations will be affected by acceptance of a given treaty. In regard to the Genocide Convention of 1948 and the Supplementary Slavery Convention of 1956, for example, despite the fact that both treaties embody humanitarian and moral concepts that are universally recognized and both declare that breach of any obligations under these treaties will be punishable by the national law, the pattern of acceptance of them by the old and new states is remarkably striking. Thirty percent and twenty-eight percent of the new states became parties to the Genocide and Slavery Convention respectively, whereas seventy-seven percent and sixty-three percent of the old states became parties to them respectively (figures are valid until 1971). The new states allege that their general dissatisfaction at the lack of an appropriate international outlook (for instance, the reservations made by various nations in the case of the Genocide Convention) is manifested in their acceptance of such treaties. On the other hand, the drug conventions concluded during the UN period have attained a remarkably high number of ratifications within a relatively short period for the following reasons: (a) that they contain flexible standards of regulations in order that the states faced with special situations may also accept these treaties, and (b) that the importance of the drug-problem has been regarded as a matter of international concern by most old and new states. See further UNITAR, Toward a Wider Acceptance of U.N. Treaties: A UNITAR Study by O. Schachter, M. Nawaz and J. Fried, (Ed.), (New York: Arno Press, 1971), pp. 30–34 and 126–127.
I. MacGibbon, The Scope of Acquiescence in International Law, 31 British Year Book of International Law 143 (1954).
I. MacGibbon, Some Observations on the Part of Protest in International Law, 30 British Year Book of International Law 293 (1953).
D. W. Bowett, Estoppel before International Tribunals and its Relation to Acquiescence, 33 British Year Book of International Law 176 (1957); see also I. MacGibbon, Estoppel in International Law, 1 International and Comparative Law Quarterly (1958).
G. Schwarzenberger, A Manual of International Law (5th Edition), p. 29.
Ibid., p. 28; see further C. W. Jenks, The Common Law of Mankind, p. 98. 30a R. R. Baxter, Treaties and Custom, 129 Recueil des Cours vol. I 31–104 (1970).
Foreword of R. A. Falk on A. D’Amato’s The Concept of Custom in International Law (New York: Cornell University Press, 1971), p. ix.
See further J. E. S. Fawcett, The Function of Law in International Commodity Agreements, 44 British Year Book of International Law 158–176 (1970), and “Commodity Problems and Politics,” UNCTAD, Second Session Report, 1968, vol. II. See also on coffee: R. B. Bilder, The International Coffee Agreement: A Case History in Negotiation, 28 Law and Contemporary Problems 328–377 (1963); see also by the same author, The International Coffee Agreement, 1962, 57 American Journal of Int. Law 888–892 (1963). wheat L. A. Wheeler, Government Intervention in World Trade in Wheat. Journal of World Trade Law 379–398 (1967) and International Grains Agreement, 1968 (cmnd. No. 3840). sugar: J. Southgate, World Trade in Sugar, Journal of World Trade Law 595–631 (1967). coca: U. Wassermann, Towards an International Coca Agreement, Journal of World Trade Law, 521–543 (1968).
32a. Although the General Agreement on Tariffs and Trade has not been accepted by the Soviet bloc, it has been well-accepted by the non-Soviet countries. It is thought that the importance of this Agreement in terms of liberalization of international trade, abolition of tariffs, and avoidance of trade discrimination by the application of most-favored nation treatment has given it more internationality.
The Concept of Jus Cogens in International Law, Paper and Proceedings of the Conference on International Law, organized by the Carnegie Endowment for International Peace, (1967), p. 9.
See further B. Cheng, United Nations Resolutions on Outer Space: “instant” International Customary Law?, Indian Journal of International Law, 23–48 (1965). According to Cheng, “There is no reason why a new opinio juris may not grow overnight between states so that a new rule of international customary law (or unwritten international law) comes into existence instantly.” (p. 46).
L. Oppenheim, International Law: A Treatise, vol. I 8th edition, ed. H. Lauterpacht. Oppenheim observed that “International law in no case imposes a legal duty of ratification,” p. 909; see further McNair (Lord), Law of Treaties. McNair observed that “The law leaves the parties to decide whether or not ratification is required.” p. 133.
J. E. S. Fawcett, “The United Nations and International Law” in The Evolving United Nations: A Prospect for Peace, K. Twitchett ed. (London: Europa, 1971), p. 68.
According to Tunkin, “Completion of the process of concluding an international treaty is completion of the process of forming a norm of international law.” G. I. Tunkin, Theory of International Law, translated by W. E. Butler (London, 1974), p. 101. In his discussion on the basic processes of forming norms of international law, Tunkin observed that “A customary norm of international law arises in consequence of the repeated actions of states. The element of repetition is basic to the formulation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct.” p. 114. Although Tunkin subsequently admitted that time is of no significance in the proof of custom, he failed to clarify what kinds of states, in terms of status, would be necessary for the creation of a customary norm of international law. See also R. R. Baxter, Treaties and Custom, 129 Recueil des Cours 67 (1970). Baxter also stated that “the time factor as a separate legal element in the proof of custom now seems irrelevant.”
One of the reasons for its coming into force within a reasonably short period of time was that most of the parties were parties to the previous drug conventions and protocols. It is rather a “merger treaty.” The Convention on Psychotropic Substances came into force on 16 August 1976.
See above, p. 523.
Even Tunkin believes that “there is no basis for rejecting the possibility of creating a customary norm by the practice of abstaining from actions.” G. I. Tunkin, op. cit., p. 116. See also the opinion of Judge Basdevant in the Lotus case: “The custom observed by states to refrain from prosecuting foreign nationals accused of causing a collision of vessels on the high seas is a customary norm of international law.” P.C.I.J. A69 (1927).
According to Friedmann, “This sense of obligation derives from a variety of motives. A recognition of the predominant common interest in observing a code of conduct, a sense of moral responsibility for the observance of civilised rules of behaviour freely agreed upon, habit, and of course, a fear of the consequences of violation, are all important component factors in the sense of obedience, although their respective weight varies greatly, from nation to nation and from one historical period to another, and although it is greatly influenced by the particular political conditions of any particular state at a given time. The fear of punishment for non-obedience is thus not absent from the sense of obligation. But it is no longer the crucial element in the assessment of the reality of international law both from the presumption of a legal hierarchy, culminating in an international sovereign, and from the requisite of a sanction, e.e., the threat of a punishment inflicted for the violation of the international legal norm as an essential condition of its legal character.” W. Friedmann, The Changing Structure of International Law, p. 82.
McDougal and Feliciano, Law and Minimum World Public Order, op. cit., p. 377.
M. A. Kaplan and N. Katzenbach, The Political Foundations of International Law, p. 345.
C. de Visscher, op. cit., p. 128.
See above, p. 206.
See above, see especially pp. 186 and 193.
The purpose of this Fund is to “develop short and long-term plans and programmes intended to launch a concerted and simultaneous attack on the supply of drugs, the demand for them and the illicit trade through which the drugs flow from the producer to the consumer.” See further “Information Letter,” September 1975, issued by the Division of Narcotic Drugs, p. 5.
Such a program was launched in the Highlands in Northern Island in 1973. See further “Information Letter,” February 1973.
This Unit was established in 1972 with financial aid from the Fund. It is associated with the Division of Narcotic Drugs.
One of such projects is the Narcotics Foundation of the Philippines Inc. (NFPI) (established in 1968) which pursues the prevention of drug abuse and the treatment and rehabilitation of persons dependent on drugs. This Foundation depends on membership fees and voluntary donations for its validity. The Dangerous Drugs Board of the Philippines was established in 1972 (which is composed of six members who are Secretaries of the following Ministries: Health, Justice, National Defence, Education and Culture and Social Welfare) as a policy-making and co-ordinating body to provide supervision and guidance over all governmental and private efforts to solve the problems of drug abuse. See further “Information Letter”(s) of October and November 1975.
The NFPI also operates Treatment and Rehabilitation Centers in the Philippines which are duly accredited by the Dangerous Drugs Board. These Centers principally offer the following services: residential care, counselling and social service, medical and psychiatric guidance.
UNFDAC has recently assisted the Afghan government considerably in the latter’s plan to plough back a higher proportion of profit into improving law enforcement. National laws in Afghanistan have been tightened up, and the farmers who previously relied upon opium production are being helped to find alternative sources of income. The Afghan government, with other international agencies, is organizing special development inputs to remote areas of traditional opium poppy cultivation. The Afghan Ministry of Public Health, with the assistance of the World Health Organization, supported by UNFDAC., is working on plans for treating the relatively few inhabitants of the country who have become opium addicts. This will remove another incentive for illicit production. See further “Information Letter,” October 1975. The Fund has extended its assistance to Pakistan in 1974 in the form of a major pilot project in the Buner sub-division of the North-West Frontier Province for the control of drug abuse. (Information Letter 9 September 1978). The Fund has extended assistance to many countries, notably Bolivia, Burma, Peru, Portugal, Thailand and Turkey in its effort towards treatment and rehabilitation of addicts and preventive education against drug-abuse and crop substitution (see further Information Letter, October-November 1977).
See further W. Friedmann, op. cit., Chapter 17.
C. de Visscher, op. cit., pp. 156–157; see further B. Cheng, “Twenty Years of the International Court of Justice,” Yearbook of World Affairs (1966), 241–256.
See further A. Sheikh, International Law and National Behaviour: A Behavioural Interpretation of Contemporary International Law and Politics, p. 18.
See further Sheikh, op. cit.; see also D. Mitrany, A Working Peace System; E. Haas, Beyond the Nation State; P. E. Corbett, Law in Diplomacy; W. Friedmann, The Changing Structure of International Law; C. Wilfred Jenks, Law, Freedom and Welfare and The Prospects of International Adjudication, and J. Stone, Legal Controls of International Conflict.
W. L. Gould and M. Barkun, International Law and the Social Sciences, at pp. 47 and 48.
See further F. S. C. Northrop, Philosophical Anthropology and Practical Politics, p. 4.
See above, especially at sub. sec. 5.3.1.3.
See further Information Letter of August, 1975, op. cit.
See further D. Mitrany, “The United Nations in Historical Perspective” in, The Evolving United Nations: A Prospect for Peace?’, op. cit., p. 157.
See further the Declaration on the Establishment of a New International Economic Order and the Programme Action on the Establishment of a New International Economic Order, G.A. Resolution 3201 (S-VI), 1 May 1974 and G.A. Resolution 3202 (S-VI) of 1 May 1974 respectively. See also G.A. Resolution 3281 (XXIX) of 12 December 1974, entitled “The Charter of Economic Rights and Duties of States,” and G.A. Resolution 2625 (XXV) of 24 October 1970, entitled “The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations;” see also R. C. A. White, “A New International Economic Order,” International and Comparative Law Quarterly 542 (1975).
See above, pp. 529–530 and footnote 32.
W. Friedmann, op. cit., Chapter 8.
W. Friedmann, op. cit., p. 187.
H. G. Schermers, International Law: Functioning and Legal Order, vol. II, p. 459.
See further K. Skubiszewski, “Enactment of Law by International Organizations,” 41 British Year Book of International Law, 266 (1965–6).
W. Friedmann, op. cit.
C. W. Jenks, The Common Law of Mankind, p. 87.
See Annex (List of Parties to the Single Convention and the 1972 Protocol, and the Convention on Psychotropic Substances, 1971).
R. A. Falk, The Status of Law in International Society, p. 51.
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Chatterjee, S.K. (1981). Conclusions. In: Legal Aspects of International Drug Control. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7066-8_14
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