Legal Perspectives on Drug Trafficking

Abstract

The two terms ‘trafficking’ and ‘personal consumption’ provide the conceptual framework for the international drug control regime. Neither term is defined. The principal disagreement behind the consensus reached on drug trafficking in the 1988 Convention was the extent to which conduct related to ‘personal consumption’ should fall within the scope of ‘drug trafficking’. This consensus left the scope of drug trafficking ambiguous and “elastic”, providing states with the freedom to abstain from criminalising acts for personal consumption where to do so would conflict with their constitution or the basic principles of their legal system, and the freedom to abstain from punishing such conduct where it is criminalised. Attempts at harmonisation regarding the notion of drug trafficking within the European Union underline a deep ambiguity regarding the scope of the term ‘personal consumption’, which is evident both within and beyond the European Union. In the law and/or practice of some jurisdictions, the notion of ‘social supply’ is clearly treated as belonging outside the scope of drug trafficking. Having explored the frustration of international and European efforts to clarify the legal parameters of the notion of drug trafficking, this chapter concludes that it is time to consider human rights law as providing a more robust and transparent legal framework for drug policy and outlines the foundations for its application in an emergent body of comparative law recognising recreational drug use as coming within the constitutionally protected realms of privacy, autonomy and free assembly.