International Drug Trafficking: A Global Problem with a Domestic Solution

MATTHEW S. JENNER*

ABSTRACT

Forty years ago, the world declared war on drugs. Today, after decades of failing to adequately control drug consumption, an even graver problem has emerged: violent drug traffickers have taken the industry hostage and will stop at nothing to preserve their power. Governments have instituted dozens of programs to dismantle the illicit drug industry, but they have seen only marginal success. One strategy, however, has yet to be fully tested: universal legalization. Universal legalization of all drugs would attack the illicit drug market head-on, destroying the profit incentive for drug traffickers and placing control of the industry in the hands of national governments. This Note first surveys the history of the illegal drug industry, focusing on the particular problem of violent drug traffickers. Second, this Note examines past attempts to control the drug industry and assesses their strengths and weaknesses. Third, this Note proposes a new scheme to end the violence associated with global drug trafficking universal legalization and assesses its potential efficacy and feasibility. Last, this Note posits a regulatory framework through which national governments can control their own domestic drug problems if drugs became legal, focusing particularly on the United States.

INTRODUCTION

Globalization has transformed the world economy over the past forty years. The spread of ideas and technology across borders has facilitated new avenues of trade, creating new markets and expanding others. In this world of free trade, countries can access goods from around the world. Lines of communication and flows of trade have

* Articles Editor, Indiana Journal of Global Legal Studies; J.D., 2011, Indiana

University Maurer School of Law; B.A. cum laude, 2008, University of Notre Dame.

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opened among the rich, the poor, and everyone in between. We are all connected; we all affect one another.

However, beneath this sanguine exterior lies a dark, bloody underground. The somber side of globalization is a complicated network of illicit markets ranging from drugs and arms trafficking to the smuggling of humans into slavery and prostitution.1 These illicit industries, or black markets, are the product of globalization. They represent some of the gravest problems in all societies spanning the globe, jeopardizing international safety and security.

One of the largest and most profitable of these industries is the market for illicit drugs.2 Estimated at over $500 billion a year,3 the illegal drug trade is an international business that has sustained itself for over forty years. The global market for drugs is comprised of several interconnected stages from cultivation to consumption that attempt to satisfy the insatiable demand of the industry. The most troublesome of these stages is drug trafficking.

Drug trafficking is the most crucial and most dangerous phase of the illicit drug market. Thousands of kilograms of illegal drugs cross international borders daily, leaving the hands of violent traffickers and entering the lives of drug dealers and addicts. Every week, hundreds of people are murdered in incidents directly related to trafficking.4 While several global efforts to end the drug trafficking problem have occurred, they have yielded only marginal success. Still, forty years later, one strategy has yet to be fully tested: universal legalization. Although counterintuitive at first glance, legalization could provide a successful framework for destabilizing the global market and solving the drug trafficking problem.

1. See generally TRANSNATIONAL THREATS: SMUGGLING AND TRAFFICKING IN ARMS,

DRUGS, AND HUMAN LIFE (Kimberley L. Thachuk ed., 2007) (discussing the various illicit industries that threaten our society). 2. In this Note, I interchangeably use the phrases illicit drugs, narcotics, narcotic drugs, illegal drugs, recreational drugs, or simply, drugs. Unless otherwise specified, these phrases all refer to the drugs that are currently illegal in the United States and have global markets (e.g. marijuana, cocaine, and heroin). They do not refer to prescription drugs. 3. ROBERT J. KELLY ET AL., ILLICIT TRAFFICKING: A REFERENCE HANDBOOK 55 (2005). Because of the illicit nature of the market, it is difficult to generate an accurate estimate. Other reports place the market at closer to one trillion dollars a year. Moisés Naím, Illicit: How Smugglers, Traffickers and Copycats are Hijacking the Global Economy, Address Before the Inter-American Development Bank 4 (Dec. 6, 2005), available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1774471. 4. In 2010, 15,273 drug-related murders occurred in Mexico alone, an average of almost 300 deaths per week. Q&A: Mexico’s Drug-related Violence, B.B.C. NEWS (May 4, 2011, 10:25 ET), http://www.bbc.co.uk/news/world-latin-america-10681249.

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Legalizing drugs in the United States is far from an innovative idea. Politicians and scholars have articulated arguments to legalize or decriminalize drugs for decades. However, this Note takes two critical steps beyond the conventional discourse. First, the initial focus of this Note is not a solution to the domestic drug problem. Rather, the key concern is a remedy for the global epidemic of violence associated with drug trafficking. Once drug trafficking is adequately addressed, this Note will posit a government regulatory regime to confront the domestic problem. Second, this Note proposes universal legalization, not merely legalization in the United States. Without cooperation from every nation, drug trafficking will continue to flourish in other regions. Legalization in the United States, however, is the perfect catalyst for a universal movement.

Section I of this Note discusses the global market for illicit drugs and its origins. Section II addresses the problem of drug trafficking and the violence it triggers. Section III discusses the various efforts to curtail drug trafficking by the United Nations, the United States, Colombia, and Mexico and assesses their successes and failures. Section IV proposes universal legalization as a prospective policy that effectively accounts for the weaknesses of past plans and could potentially solve the trafficking problem. Section V examines how government regulation is the next necessary step to combat the drug problem.

Two important nuances of this analysis must be noted. First, it will concentrate exclusively on the illicit drug trade throughout North, South, and Central America, using the infamous experiences of Mexico and Colombia to pave the way. These regions comprise the largest drug trade in the world. However, the analysis could apply equally to all regions and countries of the world because the discussion of the drug trade through the Americas simply provides a lens through which to view the global drug market. Second, while the research will highlight cocaine and marijuana, the world’s two most popular drugs, the analysis could be applied to other illicit drugs with similar global markets (e.g., opium, heroin, amphetamines).

I. THE GLOBAL MARKET FOR DRUGS5

Every market begins with the demand for a good or service. The demand for drugs has existed for thousands of years,6 but the industry

5. For a more extensive history of the global drug industry and its growth over the past century, see generally PAUL B. STARES, GLOBAL HABIT: THE DRUG PROBLEM IN A BORDERLESS WORLD 15-46 (1996).

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did not fully take flight until the 1960s. During the countercultural movements in the United States in the late 1960s, the previous social stigmatizations of drugs began to recede as the use of recreational drugs became more fashionable and representative of social rebellion.7 This change was also felt in Western Europe where demand spread and then continued to steadily rise around the world.8 International “entrepreneurs” seized the opportunity to meet the demand of this growing market, and worldwide drug production skyrocketed.9 Over the next forty years, the illicit drug market embraced economic globalization in the same way legitimate business did.10 The significant reduction in transportation costs and reduced trade barriers enabled the industry to flourish into one of the largest in the world.11

However, one important characteristic of the drug trade distinguishes it from other industries: drugs are illegal. Although this is fairly obvious, it is critical to highlight this aspect because it plays a vital role in the success of the industry. Virtually every country in the world criminalizes the consumption, production, and distribution of drugs like marijuana and cocaine.12 In the United States, cocaine and marijuana were made illegal in 1914 and 1937, respectively.13

The prohibition of drugs causes an underground black market to form. The inherent risk of incarceration from producing drugs effectively increases production costs because producers must take steps to avoid detection.14 This leads to fewer market suppliers than a normal, free market would dictate, creating a monopolistic industry.15 Because drugs are illicit and monopolistic conditions exist, producers can substantially markup the market price of drugs (profit margins are

6. Over 5,000 years ago, ancient Mesopotamians discovered the effects of opium. Drugs continued to be prevalent in ancient Chinese and Greek cultures. See JIM MCGUIGAN, THE DRUG TRADE 6-7 (2005). 7. PBS, Thirty Years of America’s Drug War: A Chronology, FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/shows/drugs/cron/ (last visited Apr. 5, 2011). 8. MATHEA FALCO, COUNCIL ON FOREIGN RELATIONS, RETHINKING INTERNATIONAL DRUG CONTROL: NEW DIRECTIONS FOR U.S. POLICY 12 (1997).

9. Id. 10. CHRISTINE JOJARTH, CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION 7 (2009).

11. Id. 12. Id. at 93.

13. Jeffrey A. Miron & Jeffrey Zwiebel, The Economic Case Against Drug Prohibition, 9 J. ECON. PERSP. 175, 184 (1995). 14. Jeffrey A. Miron, The Economics of Drug Prohibition and Drug Legalization, 68 SOC. RES. 835, 838 (2001).

15. See id.

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estimated at 300%),16 creating an extremely lucrative industry.17 In turn, the prospect of exorbitant profits in illegal industries attracts criminals,18 who are often violent and dangerous. This aspect is discussed further in section II.

Today, the global market for illicit drugs nets over $500 billion annually19 roughly the size of Switzerland’s economy.20 It is one of the top five largest industries in the world after the arms trade,21 accounting for at least one percent of the global economy.22 There are over 200 million drug users worldwide, representing three percent of the world population.23 These statistics are astounding, but they do not necessarily imply that globalization had anything to do with the growth of the industry.

According to the United Nations annual World Drug Report, however, the United States consumes about twenty-five times more cocaine than Colombia, even though Colombia produces about fifty percent of the world’s cocaine.24 It should come as no surprise, then, that the area between North and South America is one of the most heavily trafficked in the world. Ninety percent of all the cocaine that is imported into the United States passes through Mexico.25 One-third of all the marijuana in the United States comes from Mexico.26 It is estimated that anywhere from $8 to $24 billion of illicitly generated cash crosses the border from the United States to Mexico every year as a result of trafficking.27 Nevertheless, at least 104 separate countries are involved in some aspect of the process globally, whether it is production,

16. Drug Trafficking & Interdiction, DRUG POLICY ALLIANCE, http://www.drugpolicy.org/

global/drugtraffick/ (last visited Apr. 5, 2011). 17. JOJARTH, supra note 10, at 97.

18. Id. 19. KELLY ET AL., supra note 3, at 55. 20. WORLD BANK, GROSS DOMESTIC PRODUCT 2009 1 (2010), available at http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf.

21. See Sue Williams & Carlos Milani, The Globalization of the Drug Trade, SOURCES, Apr. 1999 at 4, 4 (1999). 22. The World Bank estimated the World GDP to be about $58 trillion in 2009. WORLD BANK, supra note 20, at 4. 23. Williams & Milani, supra note 21, at 4. 24. In 2008, the UNODC estimated that Colombia cultivates 48% of all coca bush worldwide. U.N. OFFICE ON DRUGS & CRIME [UNODC], WORLD DRUG REPORT 2009, at 68, U.N. Sales No. E.09.XI.12 (2009), available at http://www.unodc.org/unodc/en/data-and- analysis/WDR-2009.html. 25. Jesse Bogan et al., The Drug War, FORBES, Dec. 22, 2008, at 73.

26. Id. 27. Id.

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distribution, or laundering profits.28 The illicit drug market is truly a global industry.

II. DRUG TRAFFICKING AND VIOLENCE

The most integral part of the illicit drug trade is trafficking.29 Without traffickers, the industry would consist of remote suppliers with no means to deliver goods to the consumer; traffickers facilitate the globalization of the drug trade. Each year, over 60 million people enter the United States by air on more than 675,000 flights, 370 million people enter by land in 116 million vehicles, and 6 million people enter by sea on over 90,000 ships, carrying over 400 million tons of cargo.30 Amid this enormous movement of people and products, drug traffickers transport their drugs.

The trafficking process generally consists of three locations: the production state,31 one or more states that serve as transshipment centers, and the consumption state.32 The mission of the traffickers is to get the drugs from the suppliers to the consumer as efficiently as possible without being detected. Their place in the chain is the most important and, therefore, the most lucrative. The implied value added of trafficking is estimated at more than 2,000%.33

Up to this point, the depiction of the illicit drug market has been much like any other: suppliers, consumers, and a means of distribution. Yet, the illegality of the drug business is strongly linked to one serious externality:34 violence. In every market, disputes arise between the seller and the buyer. Courts and other legal mechanisms are in place to help resolve these disputes. However, when an underground black market is created, sellers and distributors do not have legal recourse because a court will not enforce contracts for illegal goods. Accordingly, 28. RON CHEPESIUK, THE WAR ON DRUGS: AN INTERNATIONAL ENCYCLOPEDIA xix (1999). 29. Trafficking refers to “the international movement of goods and services that is deemed illicit for any of three reasons:” the goods are illicit, the trade of the good is illicit, or the goods are being trading for illicit purposes (e.g., terrorism). JOJARTH, supra note 10, at 7-8. All three reasons seem to be present with respect to the drug trade. 30. U.S. Drug Enforcement Agency, Drug Trafficking in the United States, ALMANAC OF POL’Y ISSUES, http://www.policyalmanac.org/crime/archive/drug_trafficking.shtml (last visited Apr. 5, 2011). 31. As this Note discusses global trafficking, “state” refers to countries, not members of the United States. 32. JOJARTH, supra note 10, at 8.

33. Id. at 97 n. 15. 34. “Externality” is defined as “a side effect or consequence of an industrial or commercial activity that affects other parties without this being reflected in the cost of the goods or services involved.” NEW OXFORD AMERICAN DICTIONARY 597 (2d ed. 2005).

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the market participants—many of them seeking profits to support criminal organizations—resort to violence.35 Historical examples of this phenomenon have occurred in the gambling, alcohol, and prostitution industries.36

Violence related to the industry has spiraled out of control over the past forty years. The most famous examples are the Colombian cartels and the Revolutionary Armed Forces of Colombia (FARC).37 In the 1970s, cocaine traffickers in Colombia began combining forces to form loosely associated cartels, such as the Medellin Cartel and the Cali Cartel.38 The cartels were run as efficient business models, which revolutionized the distribution of cocaine in the Americas.39 Violent criminals, like Pablo Escobar, headed these operations, and they would stop at nothing to eliminate threats to their businesses.40 The cartels would kidnap prominent figures, assassinate candidates that vowed to terminate their cartels, and randomly bomb public places.41

The FARC is a Marxist guerilla organization that was founded in Colombia in 1966.42 The FARC paired with Colombian cartels in the 1970s and 1980s as a form of protection for the illegal industry, making profits by taxing drug farmers.43 The organization perpetrates violence in furtherance of its activities similar to the cartels and is still prevalent in Colombia today, having outlasted many of the cartels.44 Since the dismantling of the cartels, the FARC has focused its attention on producing its own cocaine and has engaged in more criminal activities, such as kidnappings.45

In today’s drug market, Mexico makes the most headlines with respect to violent trafficking. Mexican drug lords have formed their own infamous cartels and, like their Colombian predecessors, will do anything it takes to make money. In 2008, an estimated 6,290 drug trafficking–related murders were committed in Mexico.46 For a 35. Miron, supra note 14, at 840. 36. Jeffrey A. Miron, Commentary: Legalize Drugs to Stop Violence, CNN, Mar. 24, 2009, http://www.cnn.com/2009/POLITICS/03/24/miron.legalization.drugs/index.html. 37. FARC is an acronym for “Las Fuerzas Armadas Revolucionarias de Colombia,” which translates from Spanish to “The Revolutionary Armed Forces of Colombia.” CHEPESIUK, supra note 28, at 203; JOJARTH, supra note 10, at 95. 38. CHEPESIUK, supra note 28, at 24, 31, 133.

39. Id. at 134. 40. Id. at 133. 41. Id. at 134. 42. Id. at 203.

43. JOJARTH, supra note 10, at 95; KELLY ET AL., supra note 3, at 122. 44. CHEPESIUK, supra note 28, at 203. 45. JOJARTH, supra note 10, at 95. 46. Debra J. Saunders, A Failed Drug War’s Rising Body Count, S.F. CHRON., Mar. 15, 2009, at H6.

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comparison, that is roughly forty-one percent more deaths than the total number of United States military casualties from the War in Iraq since it began in 2003.47 Between 2006 and 2009, over 13,000 people were murdered in drug-related killings in Mexico.48 Over 800 of those deaths were innocent Mexican police officers.49 In 2009 alone, the drug-related killings in Ciudad Juarez, boasted as Mexico’s third safest city, were upward of 1,800.50 Ciudad Juarez is located directly across the Mexican border from El Paso, Texas,51 a mere 200-foot jump across the Rio Grande.52

Mexico is not the only victim in the illicit drug trade. Stories like Mexico’s are told across the globe: from the Golden Triangle and the Golden Crescent in Asia to the newly emerging markets in West Africa.53 Figure 1 below shows the most popular drug trafficking routes. Frighteningly, the drug trade is, more often than not, closely tied to other illicit markets and crises, namely arms dealing, human trafficking, and even terrorism.54

This violence all stems from the illegality of drugs. Even the United Nations concedes that prohibition has caused violence: “The strongest case against drug control is the violence and corruption associated with the black markets.”55 Something must be done to eradicate this problem.

47. As of April 4, 2011, there have been a total of 4,446 United States military casualties in the War in Iraq since 2003. iCasualities: Operation Iraqi Freedom and Operation Enduring Freedom Casualties, IRAQ COALITION CASUALTY COUNT, http://icasualties.org/ (last visited Apr. 5, 2011).

48. Legalization of Drugs Spreads in Latin America. Will the US Follow?, CHRISTIAN SCI. MONITOR, Sept. 23, 2009, at 6 [hereinafter Legalization of Drugs]. 49. Saunders, supra note 46. 50. John MacCormack, Drug War Under Fire at Policy Summit, SAN ANTONIO EXPRESS-NEWS, Sept. 28, 2009, at 01A. 51. Gilbert Bailon, Former Mexican President Fox Wants to Debate, ST. LOUIS POST- DISPATCH, Sept. 17, 2009, at A14.

52. See MacCormack, supra note 50. 53. See Audra K. Grant, Smuggling and Trafficking in Africa, in TRANSNATIONAL

THREATS: SMUGGLING AND TRAFFICKING IN ARMS, DRUGS, AND HUMAN LIFE, supra note 1, at 113, 117-19; Rollie Lal, South Asian Organized Crime and Linkages to Terrorist Networks, TRANSNATIONAL THREATS: SMUGGLING AND TRAFFICKING IN ARMS, DRUGS, AND HUMAN LIFE, supra note 1, at 150, 157.

54. See generally André D. Hollis, Narcoterrorism: A Definitional and Operational Transitional Challenge, in TRANSNATIONAL THREATS: SMUGGLING AND TRAFFICKING IN ARMS, DRUGS, AND HUMAN LIFE, supra note 1, at 23; Francis T. Miko, International Human Trafficking, in TRANSNATIONAL THREATS: SMUGGLING AND TRAFFICKING IN ARMS, DRUGS, AND HUMAN LIFE, supra note 1, at 36. 55. UNODC, supra note 24, at 163.

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Figure 1. Major Narcotics Trafficking Routes and Crop Areas56

III. PAST STRATEGIES TO COMBAT TRAFFICKING

On June 17, 1971, President Richard Nixon declared war on drugs.57 Although initially targeting domestic drug abuse in the United States, over the next forty years, this “war” would also focus heavily on drug trafficking. In 1982, President Ronald Reagan vowed to establish a foreign policy that “vigorously [sought] to interdict and eradicate illegal drugs, wherever cultivated, processed, and transported.”58 This notion began to spread across the globe, and other countries joined in the global effort to fight drugs.

Today, almost forty years after the war on drugs began, the drug industry is as extensive as ever.59 Many scholars and government officials regard the war on drugs as an epic failure.60 However, when creating policies for the future, it is often helpful to look at the efforts of the past. The remainder of this section examines some of the “failed” drug policies and assesses their effectiveness.

56. PBS, Major Narco Trafficking Routes and Crop Areas, FRONTLINE, http://www.pbs.org/ wgbh/pages/frontline/shows/drugs/business/map.html (last visited Apr. 5, 2011). 57. PBS, supra note 7. 58. CHEPESIUK, supra note 28, at 261. 59. Over the past decade, the war on drugs has lost a lot of its luster to the war on terror. However, it is important to remember how closely knit these two wars really are.

60. See MacCormack, supra note 50.

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A. The United Nations

In 1946, the United Nations established the Commission on Narcotic Drugs (CND) as its central policymaking body in drug-related matters.61 The member states to the CND analyze the global drug situation and advise the U.N. General Assembly on the appropriate measures that should be taken.62 The CND also monitors the implementation of the three international drug control conventions: the Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971), and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (U.N. Convention Against Illicit Trafficking).63

Whereas the first two conventions consider drugs from a health perspective, the U.N. Convention Against Illicit Trafficking deals explicitly with the drug market and distribution.64 Furthermore, this Convention marks the first time that the international community accepted that “illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all levels.”65 The Convention created a framework for member states66 to combat trafficking by improving and strengthening international cooperation among various authorities.67 Provisions of the Convention target the profits of the industry and the legal substances used to manufacture drugs.68

The U.N. Convention Against Illicit Trafficking provides tremendous insight into how to combat drug trafficking. However, the Convention has one inherent downfall: it is merely a framework. It may have shaped much of the antitrafficking efforts in the past two decades, but it is only a set of guidelines; it is only words. While member states

61. The Commission on Drug Narcotics, U.N. OFF. DRUGS & CRIME, http://www.unodc.org/

unodc/en/commissions/CND/index.html (last visited Apr. 6, 2011). 62. In any given year, the CND has fifty-three member states with four-year terms. Id.

63. The Commission on Narcotic Drugs: Its Mandate and Functions, U.N. OFF. DRUGS & CRIME, http://www.unodc.org/unodc/commissions/CND/01-its-mandate-and-functions.html (last visited Apr. 6, 2011).

64. See JOJARTH, supra note 10, at 100. 65. Cindy Fazey, International Policy on Illicit Drug Trafficking: The Formal and Informal Mechanisms, 37 J. DRUG ISSUES 755, 760 (2007). 66. As of January 4, 2011, there are 185 states that have ratified the Convention, including the United States, Colombia, and Mexico. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20, 1988, 1582 U.N.T.S. 95 (entered into force Nov. 11, 1990). 67. JOJARTH, supra note 10, at 100.

68. Id. at 101.

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are obligated to follow the provisions of the Convention,69 ensuring strict compliance is not a simple matter, especially when there are no true, practical enforcement mechanisms.

Some states have more to lose than gain by contributing to the antidrug cause. The cost of compliance is substantially higher for narcotic-producing states.70 For example, in the 1980s, the various stages of the drug industry created profits equal to seven percent of Colombia’s gross domestic product.71 By complying with the norms of the Convention, some states jeopardize their economy and political stability.72

Other nations, like the United States, have much more to gain from strict compliance with the antidrug framework. As the pioneer of the war on drugs, the United States considers drugs to be enemy number one. However, with over 31,000 U.S. deaths from drug-related causes in 2007—about twice the U.S. murder rate—the United States is fueled more by its own domestic problems than the international crisis.73 As the United States has less to lose economically from a dwindling drug business,74 it is not surprising that the United States has spent more money than any other country on antidrug-related efforts.75 If every country spent as much of its resources on the war on drugs as the United States, the war could be more successful. However, because the U.N. Convention Against Illicit Trafficking is only a framework, strict compliance, like that of the United States, has not been prevalent.

69. Members, however, were able to opt out of certain provisions by making reservations and declarations to the Convention. For example, the United States declared, pursuant to a provision, that it would not be bound by Article 32(2), which provides that unresolved issues between parties will be brought before the International Court of Justice. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, supra note 66, art. 32(2).

70. See JOJARTH, supra note 10, at 103. 71. Id. at 104. 72. See id.

73. United Nations Office of Drugs and Crime (UNODC), WORLD DRUG REPORT 2010, at 81, U.N. Sales No. E.10.XI.13 (2010), available at http://www.unodc.org/documents/ wdr/WDR_2010/World_Drug_Report_2010_lo-res.pdf.

74. See …

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