Why Is Drug Use Forbidden?

If the 20th was the century of the prohibition of drugs, the 21st has every chance to be the century of their liberation. An increasing number of initiatives—state, national, and international—have legalized or are trying to legalize the recreational use of marijuana. Colorado and Washington have, already, authorized its sale in specialized stores, and Alaska, Oregon, and the District of Columbia recently passed initiatives permitting similar actions in 2015.

Internationally, the Global Commission on Drug Policy has issued calls both to end the repression of drug use and for the creation of legal drug markets under the control of individual countries. This group includes former global politicians and heads of state such as Kofi Annan (former secretary general of the UN), Fernando Henrique Cardoso (Brazil) and Ernesto Zedilla (Mexico), as well as distinguished Americans like George Schultz (Reagan’s former secretary of state) and Paul Volcker (former chairman of the Federal Reserve). All condemn the failure of the “War on Drugs,” and emphasize the health risks, such as AIDS and hepatitis, among drug addicts.¹

Drug policy critics from the social sciences, think tanks, and policy worlds point to a host of other problems with the current system. Moral disapproval of drug use legitimates punishing the poor and marginal, and is the foundation of a punishing, overgrown penal system. In 2013, 51 percent of the federal prison population was incarcerated for drug offenses.²

Both the political elite and academics agree that the current system is illogical and unsustainable. Yet both groups ignore a fundamental, structuring part of that system: the longstanding and little-known international agreements on the organization of legal drug markets that have shaped the situation. Those currently engaged in discussion and political action in the United States and elsewhere—especially with regard to marijuana policy—should take note.

The new legalization initiatives bear the risk of unintended consequences. Legalizing the production and consumption of cannabis for nonmedical uses not only frees users from fear of the police and stops the current criminal traffic in the substance, it may, more fundamentally, call into question the basic principles of international drug policy, which focus on limiting all drug use to therapeutic, medically supervised purposes. It may, in other words, unravel the international medical drug supply system.

Behind the principles of “prohibition,” the proscription of illicit uses, there exists a legal, century-old worldwide economy of drug traffic. Resting on a foundation of international treaties and conventions is a monopoly of physicians, dentists, and pharmacists, controlling the legal delivery of drugs for medical purposes, and the oligopoly of the pharmaceutical industry, which, under United Nations surveillance, produces those drugs for medical use. At a time when traditional drug policies are increasingly being questioned, it’s helpful to remember where those policies came from and what their real object was.

How did these policies come to be? And how did they come to be endorsed by the entire planet, while more important problems—nuclear proliferation, child labor, global warming—have never given birth to a similar consensus? Supported with the argument that drugs are dangerous, that they lead to an inevitable deterioration of the health and moral state of users, drugs have become a unique element of global accord. Drugs are (or at least have been until now) controlled everywhere, from the United States to China. Drugs may indeed be bad for their users, but it’s hard to understand how this policy, and only this one, has been so universally adopted.

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Typically, defenders of prohibition invoke international conventions, which have led most nations down their repressive path by outlining steps that countries would probably never have taken without such guidance. In 1970, following the ratification of the Single Convention by the French legislature in 1969, a new law was passed penalizing the use of stupéfiants, notably cannabis. The international agreement also recommended banning the consumption of certain substances, described in its “Table Four,” cannabis included.

But what do these conventions really say? What did their authors intend? For more than a century, international drug policy has pursued a very concrete economic objective: the organization and protection of the legal market in drugs and psychotropic substances for medical purposes.

The battle against illicit practices began only after laws had defined the legal uses of drugs, and designated the actors who could legally provide them. Of course, these documents were written in an opaque bureaucratic style which defied lay attempts to understand their actual purposes. To expose the true stakes, we must see how the details of these texts relate to statistics on the legal production of drugs.³

The preambles of the agreements emphasize the dangers of addiction and the commitment of the signatory states to fight the abuse of addictive drugs. They scarcely mention the organization of the legal
market, which is what these conventions are really designed for. Going back to this little-known aspect of the history of drugs clarifies what is going on today.

Historically speaking (the 18th century in China, the 19th in Europe and the United States) drugs were not considered a public health problem. It was only during the 19th century that modern medicine characterized opium and its derivatives (morphine, heroin), as well as cocaine, as substances capable of creating dependence. Medical practitioners, establishing their professional legitimacy, distinguished “good uses,” those prescribed by physicians, from “bad uses,” those related to a mental illness: addiction to morphine, heroin, or cocaine.

How did these policies come to be? And how did they come to be endorsed by the entire planet?

The movements of anti-opium activists and health professionals imposed this distinction in the West. Both groups saw, in the abuse of drugs, a form of moral and health deterioration from which the larger society had to be protected, and they acted jointly. Mobilized campaigns convinced governments that these substances should be obtainable only from a pharmacy, and then only with a prescription from a doctor. This restriction handed a de facto monopoly over drug distribution—and the profits flowing from it—to health professionals and pharmaceutical industries that prescribed and manufactured them.

At the beginning of the 20th century, most Western countries had begun to establish clear distinctions between medical and nonmedical drug use, although the latter wasn’t necessarily penalized. The sale of drugs other than in pharmacies was de facto prohibited, since pharmacists enjoyed a monopoly on selling drugs. Drawing a line between legal and illegal sales at the pharmacy door created the conditions from which the present illicit traffic developed. In Asia, on the other hand, local governments, usually under the control of European states like the United Kingdom, France, or the Netherlands, continued to authorize the nonmedical consumption of opium, from which they got major revenues by monopolizing its sale.

The world thus found itself in a paradoxical situation: on the one hand, the legitimate use of drugs was increasingly restricted in Western countries to medical uses and, on the other, people in Asia continued to smoke opium recreationally. In another significant paradox, the distribution of drugs in the West was increasingly controlled, limited as it was to doctors, pharmacies, and their patients; pharmaceutical firms, however, were free to manufacture and sell drugs on the international market without any limitations.

The first international conference on opium—the Shanghai Commission—took place in this contradictory context. The conference was convened in 1909 at the request of the American government. A Mr. Brent, the Anglican bishop of the Philippines, had just engineered the abolition of the nonmedical use of opium there. As president of the conference and its main engineer, Brent joined with the new US Opium Commissioner, Dr. Hamilton Wright, to extend his successful campaign against opium at the international level. With Europe’s representatives in the lead, the other states sought to protect their economic interests. The conference produced no concrete action.

Undeterred, Brent and Wright succeeded in organizing a new conference at The Hague in 1912. This time, the assembly took what is often considered the first step toward an international policy on drugs, though it scarcely constrained the actions of the signatory states.

The Hague convention encouraged the progressive eradication of opium smoking, and recognized as legitimate only medical uses, and the physicians’ and pharmacists’ monopoly of the supply. It also committed the signatory states to adopt a series of measures intended to more strictly control drug supplies and combat illicit use. Brent and Wright made use of the convention back home in the US, successfully advocating for adoption of the 1914 Harrison Tax, the first federal law to deal with drugs.

International drug policy development, on hiatus during the First World War, was revived by the League of Nations, which created the Advisory Committee on Traffic in Opium (OAC). Having refused to join the League, the United States was not a member of the OAC. Although a special status was authorized for it, the United States did not send a representative to the OAC until its sixth session. Only Dr. Wright’s widow, Mrs. Hamilton Wright (who attended the meetings as an observer) represented, more or less informally, the country that had initiated the process of creating an international drug policy.

In the end, the Europeans dominated the OAC and moved it in a direction that reflected their interests. The OAC quickly distinguished opium smoking in Asia as separate from the use of “manufactured drugs”—morphine, cocaine, heroin. The problem of opium smoking was addressed only in countries affected by it, therefore excluding nonconcerned countries like the US.

The problem of manufactured drugs, however, was considered a worldwide problem. The root of the issue, the committee believed, was the pharmaceutical industries’ overproduction of morphine, heroin, and cocaine. The committee members were convinced that firms manufacture drugs for illegitimate ends, not only for medical need.

The aim of the Committee was to reach an international agreement that would limit the manufacture of drugs to meet medical needs only, but restricting output could deliver another squeeze to profits. To resolve that conflict, the OAC worked to ensure that no manufacturer felt it financially necessary to furnish drugs to the illicit traffic in the international market. This strategy also served to protect the legitimate market for drugs from firms involved in a non-legitimate supply, which could cause prices levels to fall, and in capacity to cause dumping prices.

Following this principle Sir Malcolm Delevingne, the British representative, proposed, at the second session in 1922, the creation of an international monopoly of drug manufacturers, each of whose members would receive a quota of permitted production. This maneuver was aimed not only at preventing the pharmaceutical companies from feeding the illicit market, but also to save a part of the market for the declining British manufacturers.

The other countries objected to this proposal, but its charismatic promoter, and the power of the British Empire, succeeded in making it the principal agenda item for the “Second Conference on Opium,” held in Geneva in the winter of 1924–25. Another meeting, the “First Conference on Opium,” met there at the same time to deal only with smoked opium. Led by Senator Stephen Porter and the omnipresent drug policy stalwart Mr. Brent, the delegation participated in the discussions on manufactured drugs, but was not invited to the opium smoking conference. Outraged, the American delegation left the conference on manufactured drugs before the end, and never signed the convention produced by the second meeting.

The dissonance between a strictly moral approach to drugs and one we might call “pragmatic” continued. The British proposal was finally rejected. Representatives from France, Switzerland, and the Netherlands played the “free competition” card to try to increase their drug industries’ share in the market for legal drugs. Nevertheless, the conference produced a plan for controlling international traffic: exports and imports of drugs would require a double declaration verifying that no drugs had been diverted into the illicit market. It also created a special organization, the Permanent Central Opium Board (PCOB), ancestor of the International Narcotics Control Board (INCB), tasked with monitoring drug flows around the world.

Despite these actions, the frontier separating licit and illicit use was not sealed. The OAC’s reports quickly revealed that large quantities of drugs had been diverted to the illicit traffic. Package labels of pharmaceutical firms like C. H. Boehringer Sohn (Germany) or T. and H. Smith (UK) were found among seized narcotics, and some firms were explicitly denounced in the OAC reports: N.V. Chemische Fabriek Naarden (The Netherlands) or the Société industrielle de chimie organique (France).⁴ The idea of limiting production surfaced again. For some members of the Committee, including Sir Malcolm Delevingne, the only way to put an end to this diversion was to impose a worldwide limit; without a legal framework, firms seeking to increase their market share and profits would simply produce more drugs.

An oligopoly of producers resurfaced as a possible solution. This time it was tied directly to the pharmaceutical firms. A cartel in cocaine, bringing together most of the European manufacturers, had existed since 1924. Its members agreed on prices and committed themselves not to produce for the illicit traffic. The British representative championed this approach at the OAC meetings, and manufacturers of opiates were encouraged to organize as a cartel on the same model, to get the export market going again.

Two parallel conferences, one involving manufacturers, the other, national governments, convened in London in 1930. The manufacturers reached an agreement, but the countries could not. Turkey and Japan, who were not involved in the discussions, refused to validate it. The question was then sent back to an international conference in June and July 1931, which was organized to create a worldwide quota on production. The OAC found that Turkey was furnishing drugs to the illicit market, and the country abandoned any claim to a share in the global legal drug market. Japan refused to do the same. Other nonmanufacturing countries worried. A handful of states were acquiring a worldwide, legal monopoly.

Gaston Bourgois, the French representative with long-standing contempt for the British delegate, delivered the coup de grâce to the quota idea. The proposal’s second defeat profited from what was called “the Franco-Japanese project.” This alternative regulatory vision foresaw a direct limitation on the manufacture of drugs based not on quotas, but a system of evaluation of worldwide needs.

The convention of 1931 was initially organized to limit production based on a quota system. Instead, it installed a world-wide plan that guaranteed the satisfaction of medical and scientific needs, but favoring the informal oligopolistic organization of the legal drug market. Today, worldwide production of morphine is provided by eleven countries, four of which (the United Kingdom, United States, France, and Australia) provide 70 percent of the total.⁵

It was at the 1931 conference that Harry Anslinger, the new head of the US Federal Bureau of Narcotics, first appeared on the international drug scene. He remained there for nearly 40 years, regularly representing the United States in the OAC (and its successor, the Commission on Narcotic Drugs). Anslinger, a moral entrepreneur at the national level,⁶ did not have the same kind of career in the international arena. On the contrary, the minutes of the meeting on limitation of manufactures show his penchant for pragmatic diplomacy, a trait his predecessors, Brent, Wright, and Porter, with their dug-in prohibitionist positions, lacked. Thus, while he argued militantly to include raw materials (opium and cocoa leaf) under strict control, he accepted without any problem the monopolistic organization of the licit drug market the Europeans were constructing.

Cannabis, however, exposed the limit of Anslinger’s pragmatism. His crusade for the total prohibition of marijuana use doesn’t fit well with his otherwise utilitarian approach to international cooperation. But, in fact, the whole story of cannabis regulation is out of step with the developing picture of international drug regulation.

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Cannabis’s first mention in an international agreement was introduced at the last minute, at the request of the Egyptian representative, and appended to the 1925 convention. Egypt was alarmed by contraband traffic in the Red Sea.⁷ In the 1931 Convention, cannabis wasn’t mentioned at all. Neither was it included in the protocols drafted in 1948 and 1953. It appeared again in the Single Convention (1961), which counted it in the same category as heroin, with the recommendation that all use be prohibited. Many countries, starting with the United Kingdom and Canada, were astonished by this provision. The American delegation, however, led by Anslinger, marshaled all its political resources to classify marijuana as a narcotic drug.

Even with the United States at the helm after World War II, progress on international drug policy moved slowly. In 1953, a protocol aimed at limiting the legal production of opium to a handful of countries was adopted, but this plan was never really implemented.⁸ It was only in 1972 that a new text amending the Single Convention put the production of opium under the system of control originally drafted between the wars, strictly limiting the production of opium to medical and scientific uses.⁹ Another agreement, the Convention on Psychotropic Substances, a year earlier, had also subjected a new range of drugs that had escaped earlier regulation—barbiturates, benzodiazepines, and amphetamines—to international control.

Little by little, the regulation of licit uses became part of a routine understood only by a few insiders.

The international system of drug control we know today came fully into being in the 1970s. But this was also the time when that system gave way as a priority to the “War on Drugs.” Little by little, the regulation of licit uses became part of a routine understood only by a few insiders. People concerned with drug policy today, especially politicians and legislators, are now convinced that international treaties forbid these drugs, which is not the case.

The uneven and limited legalization of marijuana use in the United States has ignited some discussion about these international conventions. Originally, cannabis was not a substance subjected to a regime of international drug control. Political opportunism, rather than medical or economic logic, is responsible for its inclusion in the same category as heroin and other highly dangerous substances. At the beginning of the 20th century, no therapeutic use of cannabis was recognized by Western scientists, and the pharmaceutical industry had no interest in it.

Neither was cannabis at the heart of the development of international drug policy between the two World Wars, except its inclusion into the international trade provisions of the 1925 convention. That policy dealt principally with those substances over which physicians and pharmacists claimed the monopoly of legitimate distribution. The American government had tried to get cannabis forbidden for medical uses in the Single Convention in 1961, but that effort failed. As a result, the plant, like the other drugs mentioned in the document, remained legal to use for medical purposes.

The “discovery,” at the end of the 20th century, of therapeutic uses for cannabis fit the search for a legal framework for its consumption. From 1990 on, many states used this to legitimize the use of marijuana. It was the only way to remain in conformity with the existing international conventions.

On the other hand, the legalization of nonmedical cannabis use in Colorado and Washington, and the possibility of its legalization in Alaska, Oregon, and the District of Columbia, probably in 2015, puts them in a situation of “infraction” vis-à-vis the international conventions. These agreements do not forbid drugs as such, but they strictly limit their consumption to medical and scientific purposes. By authorizing the nonmedical use of cannabis, states weaken the foundations of this international system of control, and thus of the national and international monopolies based on that system.

How will those who profit from these monopolies react? The US debate on the recreational use of marijuana will be crucial for the future of international drug policy. With states’ legalization of nonmedical use, the federal government will be hard pressed to continue to promote a staunchly prohibitionist line. Congress recently decided to stop impeding states that authorize marijuana for medical purposes. Nevertheless, the recognition of medical cannabis is not legalization of all uses. If the federal government eventually legitimizes the nonmedical use of cannabis, it will have to either denounce the international conventions it now supports or work to modify them. In either case, international drug policy will be profoundly shaken. More than at any other moment in the modern history of drugs, US states hold the destiny of international drug policy in their hands.

 

Translated from the French by Howard S. Becker.