Breaking bad policy: shifting U.S. counter-drug policy, eliminating safe havens, and facilitating international cooperation.

• Author: Srubar, Brian

1. INTRODUCTION II. INTERNATIONAL DRUG TRAFFICKING A. Historical Background B. The Solutions So Far C. U.S. Policy and Approaches to Combating International Drug Trafficking III. THE IMPORTANCE OF INCENTIVIZING INTERNATIONAL COOPERATION IV. OBSTACLES TO COOPERATION AND THE FAILURES OF THE CURRENT INCENTIVES A. Criminal Law, National Sovereignty, and Political Relations B. Differing Legal Systems and Principles C. Sensitivity and the Perceived Nature of the Threat.. D. Effectiveness and Corruption E. Advantages of Current Policy V. ONE STEP AHEAD: OVERCOMING OBSTACLES AND INCENTIVIZING COOPERATION A. Eliminating Safe Havens: Overcoming Barriers to Extradition Agreements B. A Brief Example of the Operation of the Proposed Framework: Heroin and Afghanistan VI. CONCLUSION I. INTRODUCTION

   Over a period of several decades, drug trafficking has gradually blossomed into a global problem, and has established itself as one of the world's largest grossing enterprises. (1) In response to the illicit activities intertwined with drug trafficking, the international community has attempted to keep up with the pace of the industry's growth through a variety of solutions-with varying success. (2) Commentators have noted that the effectiveness of international narcotics control measures depends on the "political will and good faith efforts of all nations to confront the drug trade." (3) Incentivizing the international community to effectively pursue and prosecute drug traffickers, as well as to implement measures designed to combat production at the source, is a vital step in ensuring the success of an international drug control effort. (4)

   Part II of this Comment provides a brief historical background on the nature of the problem of international drug trafficking, as well as past efforts to remedy the problem both by the international community and U.S. congressional measures, focusing particularly on U.N. treaties and U.S. maritime law. It also addresses the current U.S. policy framework for combating international drug trafficking--a framework which includes incentivizing international cooperation on drug control--and attempts to use portions of this framework both to criticize the flaws of past measures, and to suggest ways in which international cooperation can best be encouraged. Part III briefly discusses the importance of incentivizing international cooperation, and provides a brief overview of extradition and mutual legal assistance as two primary tools for achieving such cooperation. Part IV provides the operational framework for the proposed modification to U.S. policy by way of emphasizing five identified factors that typically serve to inhibit international cooperation, and Part V applies this framework to the examination of barriers to extradition agreements. Part V also includes a brief example of how the proposed approach may operate to enhance cooperation with new states.

2. INTERNATIONAL DRUG TRAFFICKING

   1. Historical Background

      The global market for illicit drugs is pervasive. The U.N. Office on Drugs and Crime ("UNODC") estimates that approximately 155 to 250 million people worldwide consumed illegal substances at least once in 2008. (5) Drug trafficking is more globalized now than it has ever been in the past, and is approximately a $435 billion per year industry. (6) While the threat posed by drug trafficking to a given consumer in the market may be negligible, trafficking raises concerns on a larger level when political stability is examined. (7) One major stability concern is the increasing power and influence of drug traffickers in certain countries to a level at which they acquire the ability to affect political matters through violence and corruption. (8) Cocaine and heroin account for the majority of illicit substances trafficked internationally, with North America and Europe situated as the largest markets for cocaine, and Western Europe and Russia as the largest markets for heroin. (9) The profits from illicit drug trafficking activities are substantial, and can be traced from illegitimate to legitimate enterprises throughout the globe. (10)

   2. The Solutions So Far

      Because drug trafficking poses an international threat, a variety of solutions have been proposed by a number of different nations and organizations seeking to curb the problem. The United Nations, through a series of three treaties, established the framework on which today's international drug control efforts are grounded. (11) In 1961, the United Nations implemented the Single Convention on Narcotic Drugs ("Single Convention"), covering topics such as: "the definition of controlled substances; the framework for operations of the drug control bodies; reporting obligations of Member States regarding manufacture, trade and consumption of controlled substances; and penal provisions and actions to be taken against illicit trafficking." (12) In order to facilitate the international drug control system, the Single Convention was amended in 1972 with provisions relating to technical and financial assistance, as well as the addition of extradition provisions. (13)

      One internationally recognized shortcoming of the Single Convention was its failure to address psychotropic substances such as amphetamines and hallucinogens that became more common in the late 1960s as a result of technical breakthroughs in the drug industry. (14) In response to these growing concerns, the United Nations enacted the Convention on Psychotropic Substances in 1971 with the goal of limiting the manufacture, trade, and use of psychotropic substances to "medical and scientific purposes." (15) Despite the enactment of the Single Convention and the Convention on Psychotropic Substances, the global market for narcotics continued to grow as the supply of substances such as opium and cocaine continued to meet global demand. (16) In 1988, the United Nations addressed these issues in the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("1988 Convention"), which, perhaps most notably, extended drug control to precursors commonly used in the manufacture of illegal substances. (17) Among the many provisions of the 1988 Convention is the requirement for Member States to make possession, purchase, or cultivation of drugs criminal offenses. (18) The 1988 Convention also includes measures related to money laundering, extradition, and profit-seizing capabilities. (19)

      The United States has cultivated its own solutions to the global drug problem, particularly within the area of maritime law. The Marijuana on the High Seas Act ("MHSA"), for example, was passed in 1980, and was implemented as a solution to a drug smuggling strategy by which large, "foreign-flagged" (20) ships wait outside U.S. jurisdiction at sea, and send small vessels that are much more difficult to track to shore to deliver the drug cargo. (21) It became clear by the mid-1980s that the MHSA was somewhat obsolete, in part due to the difficulties in proving that a given vessel was stateless, and in part due to the influx of cocaine into the global drug market. (22) In response to these issues, the United States enacted the Maritime Drug Law Enforcement Act ("MDLEA") in 1986, thereby lowering the burden of proof on the government for making a showing that a vessel is "stateless," and also expanding the jurisdictional provisions of the MHSA. (23)

      Technological innovation on the part of drug traffickers soon began to surpass the limitations of the MDLEA in the 1990s, and Congress was once again presented with the issue of ineffective prosecution. (24) Consequently, Congress enacted the Drug Trafficking Vessel Interdiction Act ("DTVIA") in 2008 with an eye toward criminalizing the operation of a vessel without a national registration while attempting to evade detection on the high seas. (25)

      There is a fair amount of literature examining whether international drug trafficking should be included within the jurisdiction of the International Criminal Court ("ICC"), as it currently is not. (26) Those in favor of expanding the jurisdiction of the ICC to include drug trafficking argue, for example, that inclusion would "reduce the international tensions currently generated when a state refuses to turn over an accused [trafficker] for prosecution by another state"--an argument that highlights the additional hurdle of extradition often faced by countries attempting to prosecute traffickers. (27) Those opposed to the inclusion of drug trafficking in the ICC's jurisdiction cite insufficient resources and variations in culture, including cultural attitudes toward drug use, among Member States that would presumably make determining an appropriate punishment difficult. (28)

      The inclusion of drug trafficking in the ICC's jurisdiction would mean little for the United States, as it has no intention of joining the Court, and has historically refused to support it. (29) Other various solutions have been proposed, (30) but for purposes of this Comment, current U.S. policy approaches will be examined in detail.

   3. U.S. Policy and Approaches to Combating International Drug Trafficking

      With respect to the international component of drug trafficking, the U.S. Office of National Drug Control Policy (the "ONDCP") has identified three major goals of its 2013 National Drug Control Strategy: "(1) collaborate with international partners to disrupt the drug trade; (2) support drug control efforts of major drug source and transit countries; and (3) attack key vulnerabilities of drug trafficking organizations." (31) Current U.S. counterdrug efforts are centralized around four policy strategies: "(1) combating the production of drugs at the source; (2) combating the flow of drugs in transit; (3) dismantling illicit drug networks; and (4) creating incentives for international cooperation on drug control." (32) A fifth strategy prevalent in U.S. efforts, albeit to a lesser degree, involves reducing and preventing drug...