Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law
| DOI | http://doi.org/10.1111/jols.12184 |
| Author | Renaud Colson |
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, ISSUE S1, OCTOBER 2019
ISSN: 0263-323X, pp. S73±S94
Fixing Transnational Drug Policy: Drug Prohibition in the
Eyes of Comparative Law
Renaud Colson*
Drug prohibition allows us to study over a significant period of time
how penal provisions framed at a supranational level flow, settle, and
unsettle across different countries. At a time of growing doubt about
the benefit of criminalization of drug use, it also provides a case-study
as to how epistemic communities may rely on comparative research to
identify best practices and promote them as normative alternatives in
the face of a long-entrenched legal dogma. In order to explore these
issues, this article looks at the UN drug control system from the
perspective of comparative law. It shows how the concept of legal
transplant provides a useful tool to understand the limits of
transnational criminal l aw designed on a global scale to t ackle the
`drug problem', and it clarifies the various types of legal comparison
that might contribute to addressing this failed transplant.
INTRODUCTION
Dating back to the first decades of the twentieth century, international drug
control is one of the oldest multilateral treaty-based systems in existence.
One way to characterize its development is to describe it as a collective
effort to draw lessons from the `drug problem' experienced in certain places
in order to design and disseminate a policy to suppress drug abuse
S73
*Faculte
Âde droit et des sciences politiques, Universite
Âde Nantes, Chemin
de la Censive-du-Tertre, BP 81307, 44313 Nantes CEDEX, France
renaud.colson@univ-nantes.fr
This research benefited from the financial support of the Cardiff University International
Visiting Fellow scheme and of the Max-Planck-Institut fu
Èr auslaÈndisches und inter-
nationales Privatrecht in Hamburg. I wish to thank Bhupinder Chimni, Stewart Field, and
GreÂgoire Mallard, who provided valuable insight in the course of the research, and
Monica Roman for her copy-editing.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
throughout the world.
1
Such a narrative can draw on powerful images such
as the development of a Chinese opium epidemic fuelled by colonial powers
in the nineteenth century, the constitution of a long-lasting international
ideological consensus on the `war on drugs', and the development of inter-
national treaties and multilateral bodies to tackle the scourge of drug abuse
and drug trafficking. Compelling as it may be, this official account has
nonetheless serious rivals. The finest historians of drug diplomacy usually
consider the drug control treaties less the rational result of judicious con-
sideration of the `drug problem' than the reflection of a myriad of economic,
political, bureaucratic, and moral considerations.
2
These observations pro-
vide the basis for an alternative description according to which the develop-
ment of the drug control system has been essentially `opportunistic'.
3
Far
from being the product of public health necessity, global prohibition may
reflect the worldwide imposition of Western values and the protection of
(post)colonial industrial interests,
4
both dimensions being reflected in the
decoupling of illicit `drugs' from alcohol and tobacco in the early twentieth
century.
5
This critical account of international drug control substitutes the
official narrative of collective `lesson drawing' for a grimmer version of one-
sided `lesson teaching' in which narcotics prohibition results from a dubious
crusade carried out by a few influential countries, led by the United States.
6
What both stories have in common is their relative lack of concern for the
way legal norms, especially criminal provisions, flow between international
and national legal orders and settle in domestic settings. In their defence,
opening this legal black box may have looked superfluous. Legal scholarship
itself, imbued with a sense of coherence and necessity, often tends to fix the
meaning of rules in an abstract and permanent way, which discourages
enquiry into how they circulate at a global level and are put into effect in
local frameworks. Once in force, legal norms acquire a strong authoritative
value as they give shared meaning and common orientation to people's
understanding of the world. Regardless of their secular character, these rules
S74
1 T. Pietschmann, `A Century of International Drug Control' (2007) LIX Bull. on
Narcotics 1.
2 See, especially, W.B. McAllister, Drug Diplomacy in the Twentieth Century: An
international history (1999).
3 L. Paoli et al., `Change Is Possible: The History of the International Drug Control
Regime and Implications for Future Policymaking' (2012) 47 Substance Use and
Misuse 923.
4 E.A. Nadelmann, `Global prohibition regimes: the evolution of norms in inter-
national society' (1990) 44 International Organization 479. More recently, C.
SancheÂz-AvileÂs and O. Ditrych, `The global drug prohibition regime: prospects for
stability and change in an increasingly less prohibitionist world' (2018) 55
International Politics 463.
5 T. Seddon, `Inventing Drugs: A Genealogy of a Regulatory Concept' (2016) 43 J. of
Law and Society 393.
6 D. Bewley-Taylor, The United States and International Drug Control: 1909±1997
(2001).
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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