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Is a system for licensed opium production in Afghanistan compatible with the UN Drug Conventions regime?
Presented by Laurens van Puyenbroeck,
Researcher at the Institute for International Research on Criminal Policy (IRCP), Ghent University, Belgium
The following presentation will focus on the legal aspects of the ICOS proposal.
Our institute was asked to analyse the system of licensed opium production in Afghanistan in light of the UN Drug Conventions regime. The central question that occupied us was the compatibility of such a system with the UN legal framework.
The study was conducted by Prof. Brice De Ruyver and myself and it is my pleasure to present to you the results of this very interesting and important aspect of the feasibility study.
Why is this aspect that important?
The UN Drug Conventions regime constitutes the basic international legal framework on all drug-related issues. Afghanistan is party to all three Drug Conventions so any proposal for a system of licensed opium production in Afghanistan has to respect the provisions of these Conventions.
The most important Convention for the purpose of our study is the 1961 Single Convention on Narcotic Drugs. It establishes a control regime for the legal production of opium.
I will give a brief overview of the legal conditions for the licensed production of opium. Then I will apply these conditions to the special situation of Afghanistan. By doing this, I will identify and indicate possible obstacles and options.
A distinction must be made between the basic legal conditions that apply for the production of opium, irrespective whether this production is for domestic requirements or for export, and the legal conditions that apply specifically to the export of opium which a country has produced. First, I will discuss the four basic legal conditions that a country has to respect in any case if its wants to produce licensed opium.
The first condition limits the production of opium exclusively to medical and scientific purposes. This condition in fact enshrines the general spirit of the 1961 Convention. Since the ICOS proposal aims to produce opium for the manufacture of morphine or other medicines, this condition is obviously respected.
According to the second condition, a country can only produce licensed opium if it does this while protecting public health and welfare and preventing diversion into illicit traffic. According to the text of the provision, a country is obliged to prohibit the cultivation of opium if the country is of the opinion that this prohibition is the most suitable measure for protecting the public health and welfare and for preventing diversion. It must be noted that the diversion which the Convention talks about is a large one. Only when there is a significant risk for diversion, a country must consider prohibition.
What the Afghan Government has to do, is to make a decision on what it finds “the most suitable measure” for attaining the goals of this provision. It could determine that prohibition is the most suitable measure. However, it could also determine that the current prevailing conditions within the country plead against prohibition and that, instead, a system of licensed opium production is an even more suitable measure for protecting public health and welfare and for preventing diversion.
The essential characteristic of this second condition is that the Government is free to make a decision and that it has a large amount of discretion. The only limitation is that the decision must be made “in good faith”. The Official Commentary to the 1961 Convention notes that this means that the decision must be reasonable. Given the problematic situation in Afghanistan and the social and economic conditions in the country, I think no one could challenge the decision of the Afghan Government not to prohibit cultivation but to start a system of licensed opium production.
So summarising, this second condition would certainly not be a major obstacle for licensed opium production in Afghanistan.
The third condition is a bit more troublesome. According to this condition, any country that wants to produce licensed opium has to establish a governmental agency, the National Opium Agency. This Agency has the exclusive right of organising the legal opium production. It has important functions such as designating the areas and plots of land which can be used for cultivation. It also has to carry out regular inspections in these areas. The Agency furthermore issues the licenses to the farmers and purchases and collects the crops as soon as possible. It is clear that from the ‘enforcement’ point of view, the period between the harvest and the collection of the opium is a critical moment for preventing diversion into illicit channels.
Just as the Government has a monopoly for organising the opium production, it also has a corresponding obligation to control this process if it wants to respect its Treaty obligations. Of course, this does not mean that the Government has to guarantee that it will totally wipe out diversion, but it must be recognised that when the Government is clearly not able to control the opium production, then it will be very hard to conciliate the licensing system with the spirit of the 1961 Convention. This aspect will probably be the main challenge for ensuring compatibility of the licensing system with the UN Drug Conventions.
One possible solution to improve this situation could be the setting up of local opium agencies. The 1961 does not prohibit this option, so these agencies could operate on a local level, complementary to the National Opium Agency. This could be a way for strengthening control on licensed opium production through a bottom-up approach.
The fourth condition is that countries can only start the legal production of opium if this would not contribute to overproduction of opium in the world. This condition is meant to maintain the balance between the supply and demand of opium on the international market. As you will see from the text of this provision, in making this assessment, the Government must base itself on the estimates of the INCB. Although official INCB figures indicate that there is at this moment no shortage of opium in the world, the Feasibility study shows that these figures are in fact incorrect. It will be important to see if the INCB changes its opinion on this matter in the future.
Besides these four basic legal conditions, there are additional conditions if a country wants to export opium it has produced. Different options must be distinguished. If a country wants to export less than five tons annually, then it has to notify this to the INCB. If a country wants to export more than five tons annually, then it needs formal authorization of the ECOSOC. It has to be noted that the decision of ECOSOC is legally binding. If the Council refuses to give its authorization, then the country concerned has to respect this.
The third option is very interesting for Afghanistan. If Afghanistan limited itself to the production of opium for domestic requirements or to the export of morphine or codeine, then the legal restrictions on export would not apply. No authorization from UN bodies would be necessary. This is an important remark because it would allow Afghanistan to initiate a so-called “fast-track procedure”. This procedure would immediately allow the licensed production of opium for domestic requirements or the manufacture of morphine or codeine which could be exported without the requirement of formal approval by the UN.
What I discussed up till now, were the legal conditions for opium licensing under the UN Drug Conventions. It could also be considered to allow the legal cultivation of opium in Afghanistan outside the strict application of the UN Conventions. One way to do this is situated on the international-political level. It could be suggested to draw up a political agreement between Afghanistan and some of its international donor countries that would allow Afghanistan to legally produce its opium by adopting a flexible approach. A possible legal basis for such an agreement could be the so-called “inter-se agreement”. This is a mechanism offered by the Vienna Convention which allows the Parties to a particular Convention (for example the 1961 Single Convention) to make the application of certain aspects of that Convention more flexible between these Parties, without formally amending that particular Convention.
This could allow the creation of an adhoc regime for Afghanistan, taking into account the specific situation of the country. This political agreement could focus on the main challenges for licensed opium production in Afghanistan, such as the enforcement aspect. Another aspect of the agreement could be the recognition of Afghanistan as an official supplier of opium or opium-based medicines to countries with a high need for such products.
As a conclusion, I would like to make three remarks. Firstly, a system of licensed opium production in Afghanistan is not as such incompatible with the UN Drug Conventions regime. Especially the fast-track procedure I talked about, would allow Afghanistan to produce opium for its own requirements of to export morphine or codeine manufactured within Afghanistan, without major obstacles. Secondly, regarding the compatibility of the licensed opium production within Afghanistan with the UN Drug Conventions, the main challenge is definitely the enforcement aspect, namely to ensure effective control on the production. Finally, the special situation of Afghanistan could allow flexible, creative and pragmatic solutions. One example I gave you was the political agreement establishing an adhoc regime for Afghanistan.
Personally, I hope that ICOS will get all the necessary support for their extremely valuable proposal.
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