Legislative implementation by vietnam of its obligations under the united nations drug control conventions (luận văn thạc sĩ luật học)

Faculty of Law

Legislative Implementation by Vietnam of Its Obligations under the
United Nations Drug Control Conventions

Hoa Phuong Thi Nguyen

This thesis is presented as full requirements for the award of a
PhD
at the University of Wollongong

August 2007


CERTIFICATION
I, Hoa Phuong Thi Nguyen, declare that this thesis, submitted in fulfilment of the
requirements for the award of Doctor of Philosophy, in the Faculty of Law,
University of Wollongong, is wholly my own work unless otherwise referenced or
acknowledged. The document has not been submitted for qualifications at any other
academic institution.

Hoa Phuong Thi Nguyen
31 July 2007

i


ABSTRACT
Lying across many important traffic routes in South-East Asia and located within the
proximity of the Golden Triangle, Vietnam has become an international transit point
for illicit drugs. The availability of drugs smuggled from its neighbouring countries

has brought about an alarming increase in drug abuse in the whole country, and
especially among the youth. Having a tropical monsoon climate, it has also
traditionally faced the problems of opium poppy cultivation and opium smoking
among the ethnic populations in its mountainous and upland areas. In 1997, with the
1

ratification of the three UN Drug Control Conventions, Vietnam officially stepped
into the international battle against illicit drugs. Becoming a Party to the
Conventions, it came under obligations to bring domestic legislation into line with
international standards. This Thesis examines, in-depth, the legal framework for drug
control in Vietnam adopted in the years since it became a Party to the UN Drug
Control Conventions. The Thesis first defines the obligations of Parties under these
Conventions and then compares and analyzes strengths and weaknesses of
Vietnamese legislation implementing the obligations.
The contributions made by this Thesis to the field of drug control research are twofold. First, it contributes a new understanding of Vietnamese successes and
shortcomings in drug control laws that implement international obligations and
identifies opportunities for improvement of the national drug control legal
framework. Secondly, the success of international drug control mechanisms depends
heavily on implementation by the individual contracting Parties. Yet state
implementation in accordance with national legislation and institution capabilities
varies considerably. This case study of Vietnamese implementation is useful for
furthering understanding of the transformation of drug control international standards
into national law, especially in developing countries having similar legal, social and
economic features, such as are found in Indo-China.

àảÃáạằẳ

ặầẩẫấậè

ẽéẹềểễếệìỉ

ĩíịòỡỏõó

ổỗốộờởỡớợù

ũúụừửữứựỳỷ

ỵ


I.e. Single Convention on Narcotic Drugs, opened for signature 30 March 1961 (entered into force
0 December 1964); Convention on Psychotropic Substances, opened for signature 21 February 1971
(entered into force 16 August 1976) and Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, opened for signature 20 December 1988 (entered into force 11 November
1990).
ii


ACKNOWLEDGEMENTS
Leaving behind a beloved family to travel abroad for fulltime PhD research is truly a
very hard undertaking. I could not have departed on this journey if my husband had not
given me strong encouragement, originating from his profound understanding of my
desire for further study. Therefore, I am deeply in debt to his love.
During the completion of necessary procedures for this travel, I was greatly supported
by a teacher whom I much respect, Mr. Xuan Te, and my kind-hearted managers, Mr.
Quang De and Mrs. Hoang Hoa. Deeply in my heart, I would like them to know that
without their support I could not have continued this further study.
Doing research in Australia – a completely new academic environment – has not been
easy, but everything seemed to be much simpler working with Professor Gregory Rose
who is my principal supervisor. Since our first meeting, I have much admired him for his

critical and logical views. His comments and clear guidelines have led me to stronger
arguments on the subjects studied. From the bottom of my heart, I profoundly appreciate
the supervision of Prof. Rose of my research project.
I am also grateful to have been under the co-supervision of Associate Professor Doug
McKinnon who is a director of the Centre for Transnational Crime Prevention. Although
not focusing in detail upon each issue raised, his overall comments helpfully widened my
views. I am especially grateful for his support in the form of arrangements for various
social activities during the time I studied in Wollongong.
In addition, I greatly appreciate the help of Mr. Peter Moore with editing my Thesis. As
English is not my mother language, I unavoidably made a number of grammatical
mistakes and, in certain cases, did not express my views as well as I might. The edition
of Mr. Moore meaningfully helps me to have a well-written Thesis in English.
Personally, I could not have spent my time fully on my research but for my dear sisters.
While I was away from home, my older and younger sisters kindly looked after our
father so that I was able to concentrate on the research. They have also insistently
encouraged me to keep going with the work. Their selfless devotion to me is always in
my heart. And finally, special thanks are given to some of my friends in Australia: Tracy
Wood, Aladine Magareih, Ong Tom and Ba Francie. Their friendship has been truly
meaningful to me personally.
iii


TABLE OF CONTENTS
ABSTRACT ................................................................................................................. ii
ACKNOWLEDGEMENTS ........................................................................................ iii
TABLE OF CONTENTS ............................................................................................ iv
LIST OF FIGURES ..................................................................................................... x
1.

2

INTRODUCTION ............................................................................................... 1
1.1

Background .................................................................................................. 1

1.2

Statement of the Problem ............................................................................. 2

1.3

Research Questions ...................................................................................... 8

1.4

Scope and Methodology .............................................................................10

1.5

Contributions of the Thesis ........................................................................ 13

1.6

Synopsis of the Thesis ................................................................................ 14

VIETNAMESE CONTEXT FOR DRUG CONTROL...................................... 18
2.1

General Data............................................................................................... 19

2.1.1

Location and Territory ....................................................................... 19

2.1.2

Climate ...............................................................................................22

2.1.3

Population ..........................................................................................23

2.2

Political System .......................................................................................... 27

2.2.1

Communist Party ................................................................................27

2.2.2

Mass Organizations ............................................................................29

2.3

State System ............................................................................................... 30

2.3.1

National Assembly .............................................................................30

2.3.2

President .............................................................................................31

2.3.3

Government ........................................................................................32

2.3.4

Prime Minister ....................................................................................33

2.3.5

People‟s Council and People‟s Committee ........................................ 34

2.3.6

People‟s Courts ..................................................................................35

2.3.7

People‟s Procuracy .............................................................................36

2.4

Vietnamese Legal System .......................................................................... 36

2.4.1

Overview ............................................................................................36

2.4.2

The 1992 Constitution, amended in 2001 .......................................... 39

2.4.3

Sources of Law ...................................................................................39
iv


2.5
Economic and Social Changes over the Country ....................................... 41
2.5.1
Doi Moi Policy - A Turn in the Country‟s Development .................. 42
2.5.2
2.6
0

Remaining Difficulties and Problems ................................................ 46
Conclusion ................................................................................................. 47

DRUG PROBLEMS IN VIETNAM AND VIETNAM‟S RATIFICATION OF

THE UN DRUG CONTROL CONVENTIONS........................................................ 49
3.1 Drug Problems in Vietnam ........................................................................ 50

3.1.1

Historical Overview ........................................................................... 50

3.1.2

Drug Cultivation ................................................................................ 52

3.1.3

Drug Trafficking ................................................................................ 58

3.1.4

Drug Abuse ........................................................................................ 66

3.2
4

Ratification of the Three United Nations Drug Control Conventions ....... 72

CONTROLLED SUBSTANCES ...................................................................... 79
4.1

Controlled Substances under the UN Drug Control Conventions ............. 80

4.1.1

Defining the Controlled Substances: Enumerative Method ............... 80

4.1.2

Narcotic Drugs under the 1961 Convention ...................................... 83

4.1.3

Psychotropic Substances under the 1971 Convention ....................... 86

4.1.4

Substances Frequently Used in the Illicit Manufacture of Narcotic

Drugs and Psychotropic Substances under the 1988 Convention ...................... 91
4.2

Controlled Substances under Vietnamese Legislation ............................... 96

4.2.1

Defining Controlled Substances: A Combination of Enumerative and

Descriptive Methods .......................................................................................... 96
4.2.2

Definition and Schedules of Narcotic Substances ........................... 101

4.2.3

Definition and Schedule of Precursors ............................................. 108

4.3

Conclusion ............................................................................................... 110

5CONTROLS ON LICIT DRUG ACTIVITIES ............................................... 113
5.1
5.1.1

Restrictions on the Cultivation of Drug-Producing Plants ....................... 115
Restrictions on the Cultivation of Drug-Producing Plants under the

1961 Convention .............................................................................................. 115
5.1.2

Prohibition on the Cultivation of Drug-Producing Plants under

Vietnamese Legislation .................................................................................... 117
5.2

Quantitative Restrictions in Licit Drug Activities ................................... 118
v


5.2.1
5.2.2

Quantitative Restrictions under the Drug Control Conventions ...... 118
Quantitative Restrictions in Licit Drug Activities under Vietnamese

Legislation ........................................................................................................ 123

5.3

Control of International Trade in Drugs: Import and Export Authorizations
128

5.3.1

Control of International Trade in Drugs under the Drug Control

Conventions ..................................................................................................... 128
5.3.2

Control of International Trade in Drugs under Vietnamese Legislation
131

5.4

Licensing of Licit Drug Activities and Premises ..................................... 134

5.4.1

Licensing under the Drug Control Conventions .............................. 134

5.4.2

Licensing under Vietnamese Legislation ......................................... 137

5.5

Control on Persons Involved in Licit Drug Activities ............................. 140

5.5.1

Control on Persons under the Drug Control Conventions ............... 140

5.5.2

Control on Persons Involved in Licit Drug Activities under

Vietnamese Legislation .................................................................................... 142
5.6

Medical Prescriptions ............................................................................... 144

5.6.1

Medical Prescriptions under the Drug Control Conventions ........... 144

5.6.2

Medical Prescriptions under Vietnamese Legislation ...................... 146

5.7

Label Warning .......................................................................................... 147

5.7.1

Label Warning under the Drug Control Conventions ...................... 147

5.7.2

Label Warning under Vietnamese Legislation ................................. 148

5.8

Advertisement Limitation ........................................................................ 149

5.8.1

Advertisement Limitation under the Drug Control Conventions ..... 149

5.8.2

Advertisement Limitation under Vietnamese Legislation ............... 150

5.9

Record Keeping ........................................................................................ 150

5.9.1

Record Keeping under the Drug Control Conventions .................... 150

5.9.2

Record Keeping under Vietnamese Legislation ............................... 152

5.10
6

Conclusion ........................................................................................... 154

CRIMINALIZATION OF DRUG-RELATED OFFENSES ........................... 161
6.1
6.1.1

Drug-Related Offenses ............................................................................. 162
Overview .......................................................................................... 162
vi


6.1.2 Supply-Related Offenses ..................................................................
6.1.3 Consumption-Related Offenses .......................................................

165
183

6.1.4 Inchoate and Accessory Offenses ....................................................

189

6.2

Penalties ...................................................................................................

193

6.2.1 Penalties under the UN Drug Control Conventions .........................

193

6.2.2 Penalties under Vietnamese Legislation ..........................................

199

6.3
7

Conclusion ...............................................................................................

207

JURISDICTION AND EXTRADITION .........................................................

216

7.1

Jurisdiction over Drug-Related Offenses .................................................

7.1.1

217

Jurisdiction over Drug-Related Offenses under the UN Drug Control

Conventions .....................................................................................................
7.1.2

Jurisdiction over Drug-Related Offenses under

217
Vietnamese

Legislation ........................................................................................................

224

7.2 Extradition of Drug-Related Offenders ....................................................

228

7.2.1 Extradition under the UN Drug Control Conventions .....................

228

7.2.2 Extradition under Vietnamese Legislation .......................................

235

7.3
8

Conclusion ...............................................................................................

242

LAW ENFORCEMENT COOPERATION .....................................................

244

General Obligations .................................................................................

245

8.1
8.1.1

General Convention Requirements for Law Enforcement Cooperation
245

8.1.2 General Commitments of Vietnam ..................................................
8.2

Mutual Legal Assistance ..........................................................................

8.2.1

247
248

Mutual Legal Assistance in Accordance with Article 7 of the 1988

Convention .......................................................................................................

248

8.2.2 Confiscation .....................................................................................

257

8.2.3 Transfer of Proceedings ...................................................................

267

8.3 Cooperation in Specific Law Enforcement Measures ..............................

268

8.3.1 Controlled Delivery ..........................................................................

268

8.3.2 Prevention of the Use of Mail for Illicit Drug Traffic .....................

272

8.4

Conclusion ...............................................................................................

275

9SPECIAL ADMINISTRATION FOR DRUG CONTROL .............................

277
vii

9. 1
Special Administrative Arrangements under the UN Drug Control
Conventions .........................................................................................................
278
9.1.1 Obligations of Parties under the 1961 Convention ..........................

278

9.1.2 Obligations of Parties under the 1971 Convention ..........................

282

9.1.3 Obligations of Parties under the 1988 Convention ..........................

283

9. 2 Administrative Arrangements for Drug Control in Vietnam ...................

286

9.2.1

National Authorities Engaged in Drug Control ...............................

286

9.2.2

Special Administration for Drug Control .........................................

302

9. 3 Conclusion ...............................................................................................

308

10

OBLIGATIONS TO FURNISH INFORMATION .....................................

314

Overview ..............................................................................................

315

10. 1
10. 2

Estimates and Statistics on Quantities of Drugs for Medical and

Scientific Purposes ...............................................................................................
10.2.1

323

Estimates and Statistics on Quantities under the UN Drug Control

Conventions .....................................................................................................

323

10.2.2 Estimates and Statistics under Vietnamese Legislation ...................

329

10. 3

Furnishing of Other Drug Control Information ...................................

332

10.3.1 Annual Report Questionnaire ...........................................................

332

10.3.2

Responses by Vietnam to the ARQ and Its Legislation on Drug

Statistics 333
10. 4

Conclusion ...........................................................................................

340

CONCLUSION ............................................................................................

342

11. 1

Controlled Substances ..........................................................................

342

11. 2

Controls on Licit Drug Activities .........................................................

343

11. 3

Criminalization of Drug-Related Offenses ..........................................

347

11.3.1 Drug-Related Offenses .....................................................................

347

11.3.2 Penalties ...........................................................................................

350

11

11. 4

Jurisdiction and Extradition .................................................................

351

11.4.1 Jurisdiction .......................................................................................

351

11.4.2 Extradition ........................................................................................

352

11. 5

Law Enforcement Cooperation ............................................................

353

11.5.1 Mutual Legal Assistance ..................................................................

353
viii


11.5.2

Confiscation................................................................................................... 354

11.5.3

Transfer of Proceedings............................................................................... 355

11.5.4

Controlled Delivery...................................................................................... 356

11.5.5

Prevention of the Use of Mail for Illicit Drug Trafficking.................. 356

11. 6

Special Administration for Drug Control..................................................... 357

11. 7

Submission of Drug Control Information.................................................... 360

11. 8

Epilogue............................................................................................................... 362

LIST OF PUBLICATIONS.................................................................................................... 364
BIBLIOGRAPHY.................................................................................................................... 365

ix


LIST OF FIGURES

Figure 2.1 Vietnam‟s Location .................................................................................. 20
Figure 2.2 Vietnam‟s Population Statistics (million persons) ................................... 23
Figure 2.3 Vietnam‟s Population Forecast in Fifteen-Year Period 2005-2020 ......... 24
Figure 2.4 Gross Domestic Product and Gross Domestic Product per Capita from
1995 to 2005 (at present prices) ......................................................................... 43
Figure 3.1 Highest Opium Poppy Cultivation Areas in the Years 1985, 1990 and
1992 ......... ............ ........................ ............ ........................ ............ .......................

54

Figure 3.2 Estimated Cultivation and Production of Opium Poppies in Vietnam
(1993-2006) ........................................................................................................ 57
Figure 3.3 Drug-Related Cases and Arrests in Vietnam (1995-2006) ....................... 59
Figure 3.5 Registered Drug Abusers in Vietnam (1995 - 2006) ................................ 67
Figure 4.1 Controlled Substances under the 1961 Convention .................................. 85
Figure 4.2 Controlled Substances under the 1971 Convention .................................. 90
Figure 4.3 Controlled Substances under the 1988 Convention .................................. 94
Figure 4.4 The List of Vietnamese Legislations Providing Definitions and Schedules
of the Nationally Controlled Substances .......................................................... 100
Figure 4.5

Schedules of Narcotic Substances under Vietnamese Control ............... 104

Figure 4.6 Inconsistency between the Definition and Schedules of Narcotic
Substances ........................................................................................................ 107
Figure 4.7 Substances under the Vietnamese National Control ............................... 111
Figure 5.1 A Brief Summary of the National Controls of Licit Drug Activities ..... 156
Figure 6.1 Supply-Related Offenses under the 1988 Convention............................ 168
Figure 6.2 Drug-Related Crimes and Punishments under the Criminal Code of
Vietnam 1999 ................................................................................................... 201

Figure 6.3 Penalties Applicable to Drug-Related Offenses in Relation to the
Quantities of Drugs .......................................................................................... 204
Figure 6.4 Summary of Drug-Related Offenses under the UN Drug Control
Conventions and Responses by the Criminal Code of Vietnam 1999 ............. 209
Figure 9.1 Organizational Structure of the National Committee for Prevention and

Suppression of AIDS, Drugs and Prostitution ................................................. 303
x


Figure 9.2 Coordination authority structure....................................................................... 306
Figure 9.3 Overall Structure of Vietnam‟s Drug Control Administration..................310
Figure 10.1 A Summary of Information to Be Furnished under the UN Drug Control
Conventions...................................................................................................................... 316

xi


0

INTRODUCTION

1.1 Background
1.2 Statement of the Problem
1.3 Research Questions
1.4 Scope and Methodology
1.5 Contributions of the Thesis
1.6 Synopsis of the Thesis
1. 1 Background
Vietnam lies on the eastern seaboard of the Indochina Peninsula, with a total

landmass of 329,297 square kilometres and coastline of 3260 kilometres. It is
bordered by China to the north, Laos and Cambodia to the west and the South China
Sea to the south. Mountains and hills make up 75% of its total landmass.

1

Enjoying a humid and tropical monsoon climate, Vietnam has abundant rainfall with
the average of 2000 millimetres.

2

The tropical monsoonal climate provides a

favourable natural environment for opium poppy growth at an altitude of over 600
3

metres above sea level. Therefore, Vietnam has long faced a history of opium
cultivation among ethnic minorities in the uplands and mountainous areas. The
origins of the contemporary drug problem in Vietnam are considered to be
4

intermingled with its history of opium cultivation. Opium is thought to have arrived

0

See Tong Cuc Thong Ke, Nien Giam Thong Ke cua Nuoc Cong Hoa Xa Hoi Chu Nghia Vietnam
nam 2003 (2003)12 [trans: General Statistics Office, Statistical Yearbook of the Socialist Republic of
Vietnam in 2003 (2003)].
1
Ngoc Huy Nguyen and Van Tai Ta, The Le Code: Law in Traditional Vietnam: A Comparative SinoVietnamese Legal Study with Historical-Juridical Analysis and Annotations (1987), 2; Tu Lap Vu,

Vietnam: Geographical Data (1979) 51-2 and Duc Ngai Truong and Thang Phan (eds), Viet Nam
Huong Toi The Ky XXI (2000) 15 [trans: Duc Ngai Truong and Thang Phan (eds), Vietnam Towards
the Twenty-First Century (2000)].
2
Van Hoa Do, Xac Dinh Mo Hinh Co Cau Cay Trong Thich Hop Tren Dat Doc Vung Cao Mien Nui
Phia Bac Gop Phan Bo Sung Cac Giai Phap cho Chuong Trinh Thay The Cay Thuoc Phien (D Phil
thesis, Vien Khoa Hoc Ky Thuat Nong Nghiep Vietnam, 1996) 47 and 120 [trans: Van Hoa Do,
Finding a Suitable Cultivation Structure for Northern Mountainous and Upland Areas as a
Contribution to the Opium Poppy Alternatives Program (D Phil Thesis, Technical Agriculture
Institution, 1996)].
3

Ethnic Minorities, Drug Use & Harm in the Highlands of Northern Viet Nam - A Contextual Analysis
of the Situation in Six Communes from Son La, Lai Chau, and Lao Cai, July 2003 (2003) United
Nations Office on Drugs and Crime
<:80/pdf/vietnam/vietnam_ethnic_minorities_report.pdf> at 18 August 2004

1


5

in Vietnam via Laos in between the years 1600 and 1665. The ethnic populations use
opium as an effective medicine against pains and illness, a stimulant in their folk
6

festivals and as a substance to alleviate hunger. The tradition of opium poppy
cultivation and opium smoking has led to a very high rate of abuse in the ethnic
communes.

7

1. 2 Statement of the Problem
Located in close proximity to the Golden Triangle (Myanmar, Laos, Thailand) that is
one of the major opium sources of the world, and being a neighbour of Cambodia
which has become an important source of cannabis for global illicit markets,

8

9

Vietnam has been reported as an important drug transit country. Its common border
with Laos, which stretches 2067 kilometres with many small roads and tracks
running through low hills, has been used as an important gateway for illicit drugs
smuggled into the country.

10

Heroin from the Golden Triangle and other synthetic

and United States Department of State Bureau for International Narcotics and Law Enforcement
Affairs, Excerpt from: International Narcotics Control Strategy Report, March 2004, Vietnam United
Department of State International Information Programs
< at 17 August 2004.
0

Phong Hoa Nguyen and Ngoc Hung Dang, Ma Tuy va nhung Van De ve Cong Tac Kiem Soat Ma
Tuy (1994) 90 [trans: Phong Hoa Nguyen and Ngoc Hung Dang, Narcotics and Matters Concerning
Narcotics Control (1994)].
1

Thi Mai Nga Nguyen and Quoc Huynh Pham, Nhung Van De Co Ban trong Cong Tac Kiem Sat
Dieu Tra va Kiem Sat Xet Xu cac Toi Pham ve Ma Tuy o Viet Nam (2003) 37 [trans: Thi Mai Nga
Nguyen and Quoc Huynh Pham, Basic Issues on Supervision of Investigations and Trials for DrugRelated Crimes (2003)] and Hung Vuong Vu, 'Luc Luong Canh Sat voi Cong Tac Phong, Chong Ma
Tuy o Viet Nam' (Paper presented at the Hoi Thao ve Phong Chong Ma Tuy cua Vietnam va Phap,
Hanoi, Vietnam, 1998) 46 [trans: Hung Vuong Vu, 'Police Force in the Combat against Narcotic
Substances in Vietnam' (Paper presented at the Conference on Narcotics Prevention and Suppression
between Vietnam and France, Hanoi, Vietnam, June 1998)].
2
See Van Du Nguyen, 'Mot So Van De ve Phong Chong Ma Tuy trong Vung Thuoc Nhiem Vu cua Bo
Doi Bien Phong' (Paper presented at the Hoi Thao ve Phong Chong Ma Tuy giua Viet Nam va Phap,
Hanoi, Vietnam, June 1998) 37 [trans: Van Du Nguyen, 'Some Issues on the Prevention and
Suppression of Narcotics in Areas Supervised by Border Guards' (Paper presented at the Conference
on Narcotics Prevention and Suppression between Vietnam and France, Hanoi, Vietnam, June 1998)].
3
International Narcotics Control Board, Report of the International Narcotics Control Board for 1998
(1999) [para 315] < at 18
August 2005.
4
See Richard Clutterbuck, Drugs, Crime and Corruption (1995) 86, Mandy Bentham, The Politics
of Drug Control (1998) 40 and United Nations Office on Drugs and Crimes Vietnam, Vietnam:
Country Profile, 2003 (2003) United Nations Office on Drugs and Crime [9]
< at 18 December 2004.
5

See, eg, United Nations Offices on Drugs and Crime Vietnam, above n 9, 24; United States Department
of Justice, Drug Intelligence Brief - the Drug Situation in Vietnam, November 2001 United States
Department of Justice < at 13 November 2004
and Hoang Tran, 'Bo Doi Bien Phong Ngan Chan "Dong Chay" Ma Tuy qua Bien

2

drugs are also brought to Vietnam overland through different points along its weakly
controlled borders with China and Cambodia

11

and can be further shipped to

12

America, Australia and other European countries. Drug trafficking has significantly
increased in Vietnam since it applied an „Open Door‟ policy, with a greater
international and regional economic integration.

13

The growing availability of drugs smuggled from its neighbours has brought about an
alarming increase in drug abuse in the whole country, and especially among its youth.
Drug abusers under thirty make up 70% of the total, and in some cases drug abusers are
even below the age of ten.
registered drug addicts.

15

14

According to the 2006 statistics, Vietnam has 160,226

The proportion of young people using drugs in

Gioi' (2004) 12 Ban Tin Phong Chong Ma Tuy 19, 19 [trans: Hoang Tran, 'Border Guards in the
Combat against "Drug Flows" across National Borders' (2004) 12 Bulletin on Narcotics Prevention
and Suppression 19].
5888

Quang Vinh Vu, 'Tinh Hinh Chung ve Cong Tac Kiem Soat Ma Tuy va Van De Phong Chong Ma
Tuy o Viet Nam' (Paper presented at the Hoi Thao ve Phong Chong Ma Tuy cua Viet Nam va Phap,
Hanoi, Vietnam, 1998) 3 [trans: Quang Vinh Vu, 'General Situation on Narcotics Control and the Issue of
Narcotics Prevention and Suppression in Vietnam' (Paper presented at the Conference on Narcotics
Prevention and Suppression between Vietnam and France, Hanoi, Vietnam, June 1998)]; Xuan Yem
Nguyen, Luat Phong Chong Ma Tuy va Phong Chong Ma Tuy trong Nha Truong (2004)

23 [trans: Xuan Yem Nguyen, Law on Narcotics Prevention and Suppression and Narcotics
Prevention in Education Institutions (2004)]; Van Luyen Tran, 'Dac Tinh Hinh Su cua Cac Toi Tang
Tru, Van Chuyen, Mua Ban Trai Phep cac Chat Ma Tuy' (1998) 9 Toa An Nhan Dan 5, 8 [trans: Van
Luyen Tran, 'Criminal Characteristics of the Offense of Illegal Stockpiling, Transporting and Trading
of Narcotic Substances' (1998) 9 People's Court 5] and United Nations Offices on Drugs and Crime
Vietnam, above n 9, 24-5.
5888

See, e.g., International Narcotics Control Board, Report of the International Narcotics Control
Board for 2005 (2006) [para 473] < at

23 March 2006 and International Narcotics Control Board, Report of the International Narcotics
Control Board for 2001 (2002) [para 391] < at 18
August 2005.
23

The more detailed picture is provided in Section 3.1.3 of Chapter 3. See also Thi Mai Nga Nguyen and

Quoc Huynh Pham, above n 6, 38 and Cong Son Nguyen, 'Tinh Hinh va Ket Qua Cong Tac Phong Chong
Ma Tuy 6 Thang Dau Nam 2006 va Mot So Nhiem Vu Trong Tam trong Thoi Gian Toi' (2006) 8 Ban Tin
Phong Chong Ma Tuy 2, 5-6 [trans: Cong Son Nguyen, 'The Situation and Results of the Work on Drug
Prevention and Suppression in the First Six Months of 2006 and Main Tasks in the Coming Year' (2006) 8
Bulletin on Narcotics Prevention and Suppression 2].
24
See Huu Lam Nguyen, 'Tinh Trang Nghien Ma Tuy va cac Bien Phap Cai Nghien Ma Tuy o Viet
Nam' (Paper presented at the Hoi Thao ve Phong Chong Ma Tuy cua Viet Nam va Phap, Hanoi,
Vietnam, 1998) 98 [trans: Huu Lam Nguyen, 'The Situation of Drug Abuse and Measures for Drug
Abuse Treatment in Vietnam' (Paper presented at the Conference on Narcotics Prevention and
Suppression between Vietnam and France, Hanoi, Vietnam, June 1998)].
25
Co Quan Thuong Truc Phong Chong Ma Tuy Cua Uy Ban Quoc Gia Phong Chong AIDS, Phong Chong
Ma Tuy va Mai Dam, 'Bao Cao Tinh Hinh va Ket Qua 5 Nam Thi Hanh Luat Phong, Chong Ma Tuy'
(304/2006/BCA(VPU), 2006) 3 [trans: Standing Office for Drug Control of the National Committee for
Prevention and Suppression of AIDS, Drugs and Prostitution, 'Report on the Five-Year Implementation of
the Law on Narcotics Prevention and Suppression' (35/2006/BCA(VPU), 2006)].

3


urban areas has increased significantly.

16

Thus, drug abuse that was mainly a rural

phenomenon relating to opium smoking habits has now spread to urban areas and
poses serious risks to Vietnam‟s younger generation.
Drug cultivation, trafficking and abuse have adverse affects on the country. These

include corruption, damage to social values, threats to the happiness of families and
youth degeneracy.

17

The Government of Vietnam is deeply aware of these impacts

and of the need for international cooperative action to combat illicit drugs.

18

In 1997,

it ratified and became a Party to the three United Nations Drug Control Conventions
(DCCs) that are currently in force, namely the namely the Single Convention on
Narcotic Drugs (amended by the 1972 Protocol), opened for signature 30 March
1961, entered into force 13 December 1964 (hereinafter cited as „1961 Convention‟);
Convention on Psychotropic Substances, opened for signature 21 February 1971,
entered into force 16 August 1976 (hereinafter cited as „1971 Convention‟), and
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
opened for signature 20 December 1988, entered into force 11 November 1990
(hereinafter cited as „1988 Convention‟). Stepping into the international frontline
against illicit drugs, Vietnam has benefited from various types of support, such as
training, technical assistance and other law enforcement cooperation. However, on
becoming a Party to the Conventions, it also undertook numerous international
obligations.
The 1981 and 1982 DCC Working Groups reported that developing countries are
sometimes unable to meet their treaty obligations because they have insufficient

256

United Nations Offices on Drugs and Crime Vietnam, above n 9, 28.

257

See the preamble of the Nghi quyet 06/CP ve tang cuong chi dao cong tac phong, chong va kiem
soat ma tuy 1993 (Chinh Phu) [trans: Directive 06/BCT-TW on Enhancing Directions on Drug Prevention
and Suppression 1996 (Political Bureau, Communist Party)] and Xuan Yem Nguyen and Quang Vinh Vu,
Nhung Van De Co Ban ve Cong Tac Phong Chong Ma Tuy (2002) 22 and 26-7 [trans: Xuan Yem Nguyen
and Quang Vinh Vu, Basic Issues on the Prevention of Drug-Related Crimes (2002)].
258

In the year 1999, the Prime Minister Phan Van Khai elevated counter-narcotics to Vietnam‟s
second highest domestic priority, after poverty reduction. See Minh Huong Le, 'Ket Qua Thuc Hien Chuong
Trinh Hanh Dong Phong Chong Ma Tuy Giai Doan 1998 - 2000 va Phuong Huong Trien Khai Chuong
Trinh Hanh Dong Phong Chong Ma Tuy Giai Doan 2001 - 2005' (2001) 4 Ban Tin Phong Chong Ma Tuy 6,
6 [trans: Minh Huong Le, 'Results of the Action Plans on Narcotics Prevention and Suppression in the
Three-Year Period from 1998 to 2000, and Orientation on the Deployment of the Action Plan in the Next
Five-Year Period from 2001 to 2005' (2001) 4 Bulletin on Narcotics Prevention and Suppression 6].

4


financial resources and few trained personnel.

19

The international drug control

system is apparently predicated on State cooperation and its effectiveness depends

greatly upon the enactment and enforcement of corresponding national legislation.
Thus, the International Narcotic Control Board stated in its report:
It is particularly important for national drug control legislation to be
continuously reviewed and evaluated in a systematic manner in order to
determine whether the provisions of the international drug control treaties are
being implemented by Government.20

After suffering a long war and since gaining reunification in 1975, Vietnam has in
recent decades rebuilt its legal system. Like other developing countries, it continues
to confront shortages in financial and human resources in implementing its national
drug control regime.

21

In addition, being a new-comer to the DCCs, it lacks

experience with DCC provisions. Against such circumstances, an investigation of
how well Vietnamese legislation complies with DCC provisions and how Vietnam
can improve its compliance is important. These questions, however, have not been
previously addressed. There exists a gap in domestic literature studying national drug
control legislation, as none of the Vietnamese literature in this field has explored the
compliance of national legislation with the DCC standards, and a gap exits also in the
international literature.
Existing Literature on Vietnamese Drug Control Regime
Many Vietnamese scholars have made efforts to study different issues of national
drug control. For example, Professor Xuan Yem Nguyen, a leading researcher in this
field, has examined the trends in drug trafficking and abuse in the country over
recent times and has analyzed successes as well as shortcomings in the operation of
different law enforcement authorities involved in combating illicit drugs. He has also

0

See International Working Group on the Single Convention on Narcotic Drugs, Report of the
International Working Group on the Single Convention on Narcotic Drugs, 1961 - September 20 - 24, 1982
(1983), 10 and International Working Group on the Convention on Psychotropic Substances, Report of the
"International Working Group on the Convention on Psychotropic Substances, 1971" - September 8 -12,
1980 (1981), 16.
1
International Narcotics Control Board, Effectiveness of the International Drug Control Treaties:
Supplement to the Report of the International Narcotics Control Board for 1994 (1995), 21.
2
See, eg, National Committee, above n 15, 13 and Standing Office for Drug Control, above n 15, 3.

5


analyzed certain gaps in national drug control in terms of legislative and law
enforcement actions. His related publications include „Organized Crimes, the Mafia
and Globalization of Crimes‟ (2003), „Prostitution, Narcotics and Gambling: Crimes
at the Present Time‟ (2003), „Basic Issues on the Prevention of Drug-Related
Crimes‟ (2002),

22

and „Narcotics in Vietnam at the Present Time: The Current State,

Reasons and Solutions‟ (2002). As a criminologist, in the books entitled „Modern
Criminology and Crime Prevention‟ (2001) and „Law on Narcotics Prevention and
Suppression and Narcotics Prevention in Education Institutions‟ (2004), he has
focused on the characteristics of organized drug-related crimes, and on drug

prevention in general and, especially, in public education units.
Many other scholars, for instance Minh Duc Nguyen, Van Luyen Tran, Van Hien
Nguyen, Minh Tuyen Pham and Phong Hoa Nguyen, have studied in depth the
physical elements (actus reus) and mental elements (mens rea) of drug-related
offenses under Vietnamese criminal law. They have pointed out the existing
shortcomings in the law and provided several solutions. Publications of Minh Duc
Nguyen in this field are „Differentiating between Administrative Violations and
Drug-Related Crimes‟ (2003), „Some Recommendations for Guiding the Application
of the Provisions of Several Articles on Drug-Related Crimes under the Criminal
Code 1999‟ (2000) and „The Need for a New Joint Circular on the Application of
Several Articles in Chapter “Drug-Related Crimes”‟ (2000). Particularly, in his PhD
research on „Improving Criminal Legal Framework Dealing with Drug-Related
Crimes‟ (2003), Minh Duc Nguyen has analyzed national legislation in relation to
drug-related crimes both before and after Vietnam gained its reunification.
Van Luyen Tran has also specialized in drug-related crimes in the book entitled
„Criminal Liability for Drug-Related Crimes‟ (1998) and a paper on „Criminal
Characteristics of the Offense of Illegal Stockpiling, Transporting and Trading of
Narcotic Substances‟ (1998). Hispaper entitled „The Issue of Specifying the Quantity of
Narcotic Substances Involved in Drug-Related Crimes under the Law Amending Some
Articles of the Criminal Code 1985‟ (1998) analyzed shortcomings of the Criminal
Code of Vietnam 1985 in defining the quantities of narcotics proportional to
0

Quang Vinh Vu is a co-author of this paper.

6


sentencing thresholds. Also studying the proportional relationship between the
quantity of narcotics involved and punishment, Minh Tuyen Pham has produced two

papers, namely „The Issue of Specifying the Quantity of Narcotic Substances
Involved in Drug-Related Crimes under the Criminal Code 1999‟ (2003) and
„Criminal Liability for Drug-Related Crimes under the Criminal Code 1999‟ (2003).
Relevant publications of Van Hien Nguyen in this field include papers on „Some
Issues on Criminal Liability for Drug-Related Crimes under Vietnamese Law and
Regulations since 1945 to the Present‟ (1998) and „The Practical Application and the
Need for Amendment of Articles 96a and 203 of the Criminal Code 1985‟ (1995).
In the area of criminal procedure, Phong Hoa Nguyen is known for a book on „DrugRelated Crimes: Criminal Characteristics, Legal Constituents, Measures to Discover
and to Investigate‟ (1998). Focusing on investigations and prosecutions of drugrelated crimes, Thi Nga Mai Nguyen and Quoc Huynh Pham, in their book „Basic
Issues on Supervision over Investigations and Trials for Drug-Related Crimes‟
(2003), have examined general features of drug-related crimes in the country and
have analyzed particular features relating to investigations and prosecutions of drugrelated crimes. Another author, Quang Vinh Vu, has also focused on law enforcement
against drug-related offenses. His PhD research, which is entitled „People's Police
and Drug-Related Crime Prevention‟ (2003), analyzes duties of Anti-Narcotics
Police in the suppression of drug-related crimes and their contributions to this fight.
He has pointed out certain shortcomings in national drug control legislation and
weaknesses in the organization of Anti-Narcotics Police and, then, made a number of
recommendations for enhancements. Ngoc Hung Dang, in his book on „Matters
Concerning Precursor Control‟ (2002) and a paper on „Precursors and Precursor
Control in Vietnam‟ (2004), has studied specific issues relating to national control of
precursors.
The papers and publications mentioned, however, focus principally on national drug
control from a domestic perspective. Innovations in the national legislation are
evident in the attempts of Vietnam to comply with the DCC provisions. However,
there is not yet a comprehensive study of Vietnam‟s compliance of with its
convention obligations. No papers or publications undertake a comparative study of

7

Vietnamese legislation in relation to its DCC obligations. Attempting to cover that
gap and aiming to help to bring national drug control legislation in line with
international standards, this Thesis makes an original contribution to the literature in
this field with an assessment of the „Legislative Implementation by Vietnam of its
Obligations under the United Nations Drug Control Conventions‟.
1. 3 Research Questions
The following question is central to this research project:
How does Vietnamese legislation comply with the DCC provisions and how
can Vietnam improve its compliance in particular and its domestic legal
framework for drug control in general?
Under the DCCs, Parties are required to take appropriate measures to control both
licit and illicit drug activities in their countries for the ultimate purpose of limiting
the availability of drugs of abuse to medical and scientific needs. With respect to licit
drug activities, Parties are obliged first to specify substances to be controlled and,
second, to impose various measures upon licit activities relating to them. With
respect to illicit drug activities, the DCCs oblige Parties to establish unlawful drugrelated conduct as criminal offenses, to enforce their criminal law and to cooperate
with others in law enforcement. Additionally, for the purpose of effective
coordination of national drug control work as well as international cooperation,
Parties are required to establish and to maintain a special administration for drug
control and to furnish drug control information and reports to the international drug
control bodies, i.e. the Commission on Narcotic Drugs and International Narcotics
Control Board.
The DCC obligations can be grouped into seven areas: (1) specifying controlled
substances, (2) controlling licit drug activities, (3) criminalizing drug-related
offenses, (4) establishing jurisdiction over drug-related offenses and cooperating in
extradition, (5) law enforcement cooperation, (6) maintaining special administration
for drug control, and (7) furnishing information and reports to international drug
control bodies.

8

With respect to each of the seven drug control areas of DCC obligations, this Thesis
addresses a number of sub-questions. They are:
1. Specifying Controlled Substances:
How does Vietnamese legislation specify substances prescribed by the DCCs
as under control? Does Vietnam make any reservation or exemption
concerning the whole territory or in one of its regions? Does Vietnam extend
its national control to other substances that are not enumerated under the
DCCs? Is any further enhancement to the domestic law of Vietnam in this
field needed?
2. Controls on Licit Drug Activities:
Does Vietnam apply the DCC-required controls over the cultivation of
narcotics plants in its territory? How does Vietnam regulate the operation of
its licit drug economy, including drug manufacture and trade, including
import and export, distribution and possession? Does it apply control
measures specified under the DCCs? Are there any shortcomings in domestic
drug control laws and regulations in this area?
3. Criminalization of Drug-Related Offenses:
Does Vietnamese law establish unlawful drug-related conduct as criminal
offenses? Is the existing national criminalization in line with the convention
standards? What types and scales of penalties are applicable to drug-related
conduct if they are treated as criminal offenses? Has the domestic law of
Vietnam adequately transformed the DCC provisions on offenses, penalties
and aggravating factors? Could it be enhanced?
0 Establishment of Jurisdiction over Drug-Related Offenses and Extradition of
Drug-Related Offenders:
Does the domestic law of Vietnam provide the necessary legal basis for its
local authorities to assume jurisdiction over drug-related offenses? Which
grounds are invoked for the establishment of its criminal jurisdiction over

those offenses? Is Vietnamese criminal law in this field in line with the
convention standards? Does Vietnam cooperate in the extradition of drug9


related offenders as required by the DCCs? Which grounds, conditions and
processes are applied for granting or refusing extradition? Should any
revision of the national legislation be made to implement the DCC
provisions?
5. Law Enforcement Cooperation:
Does the domestic law of Vietnam provide for the required cooperation with
other countries and international organisations in drug control law
enforcement? Is there any specific legislation to implement the convention
requirements for law enforcement cooperation? What are the strengths and
weakness of the domestic law in this field?
6. Special Drug Control Administration:
How does Vietnamese legislation regulate the national administrative
arrangements for drug control? Which national authorities are charged with
drug control functions? Is the present legal framework adequate in respect of
special administration for drug control as required by the DCCs? Should any
amendments be introduced?
7. Furnishing Information and Reports to the International Drug Control Bodies:
Has the national drug control law of Vietnam regulated the gathering of drug
control statistics to enable it to perform its DCC obligations to furnish
prescribed information? How can the challenges of furnishing information be
solved from the point of legislative actions?
The answers to these sub-questions will, cumulatively, provide an answer to the
central research question of the Thesis, i.e. „How does Vietnamese legislation
comply with the DCC provisions and how can Vietnam improve its compliance in
particular and its domestic legal framework for drug control in general?‟.
1. 4 Scope and Methodology

Drug control is multifaceted. Social, political, financial measures and drug abuse
treatment are important aspects of the capacity to implement effectively international
drug control standards. For example, the DCCs set out certain requirements
10


concerning medical treatment for drug abusers. This Thesis, however, explores only
the legislative implementation by Vietnam of its DCC obligations to establish and
maintain a national mechanism for control of licit and illicit drug activities, i.e. it
examines Vietnamese drug control legislation to implement the DCC obligations,
aiming to limit the availability of drugs of abuse exclusively to medical and scientific
purposes. Some of those obligations entail explicit requirements for national
legislative measures, such as the obligation to criminalize drug-related offenses or to
establish jurisdiction over them. Others, in contrast, do not explicitly require
legislative measures and, therefore, Parties may, at their option, undertake legislative
action. The transformation of the international obligations into legislative provisions
in those cases varies with each different domestic legal culture. Vietnam, with a
culture in which legislative instruments are widely used and have a detailed
hierarchy, has taken numerous legislative actions to perform its DCC obligations.
Therefore, in examining Vietnamese legislative implementation of the DCCs, this
Thesis addresses also those DCC provisions that do not explicitly require legislative
measures but for which Vietnam has created a domestic legal framework. For
example, the DCCs require Parties each to establish a special administration for drug
control. In response, many Vietnamese legal instruments specify the drug control
duties of national authorities and, particularly, of authorities responsible for
coordination duties. Another example is that, in response to the DCC requirement for
Parties to furnish certain information on national drug control, a number of
Vietnamese legal documents regulate the issue of drug statistics. This research
includes the analysis of those national regulations.
Further, while comparing Vietnamese laws with the DCC provisions, this Thesis not

only focuses on national compliance with the international standards but, where
relevant, also points out and analyzes domestic provisions that go beyond the DCC
requirements.
In addition, the DCCs, like a number of other international agreements, contain
certain „soft law rules‟, which aim at encouraging the contracting Parties to take into
account the possibility of implementation. For instance, the 1988 Convention
encourages its Parties to control under licence licit activities relating to precursors

11


and essential chemicals that are frequently used in illicit drug activities.

23

These are

not strict obligations. Nevertheless, where legislative instruments are used, this
Thesis attempts to compare and to analyse Vietnamese responses, otherwise it
principally focuses on strict obligations, in relation to which implementation failure
definitely affects the achievement of the DCC objectives.
To achieve its objectives, this Thesis first studies the DCC requirements for national
drug control and then compares Vietnamese drug control legislation with them. Thus,
the international provisions laid down in the DCCs are used as the benchmarks and
framework for the examination of Vietnamese legislative implementation. The
research, therefore, is composed of two important elements.
First, the Author exhaustively studies the international drug control regime, focusing
on the three DCCs that are currently in force. Related literature in this field is
reviewed, using the content analysis and comparative methods. This stage of study
aims at building a theoretical background, an understanding and critical appreciation

of the existing international drug control regime, with especial focus on obligations
of the contracting Parties under the DCCs.
Second, building on that theoretical base, the research is used to develop a specific
case study of drug control legislation in Vietnam. The following methods are applied:
0

Data analysis is used to interpret statistical information to discover the
pattern and trend of drug abuse in the country, providing a contextual
background for the understanding of legal aspects of drug control.
Statistical information is drawn from official data produced by
Governmental authorities and the international drug control bodies.

1

Content analysis is employed systematically to examine the particular body
of Vietnamese drug control laws and regulations.

0

See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for
signature 20 December 1988, art 12(8)(b)(ii) (entered into force 11 November 1990).

12