Subject: (3) CONVENTIONS ON DRUGS
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(3) FOR A REVISION OF THE UNITED NATIONS CONVENTIONS ON DRUGS
Gianfranco Dell'Alba, Olivier Dupuis, Jean Luc Robert
Radical Party
Ligue Internationale Antiprohibitionniste
c/o Parlement Europe'en
rue Belliard 97-113 - Rem. 508
1047 Bruxelles - Belgique
Tel. 32-2-2842579 - Fax. 32-2-2303670
II. TECHNIQUES FOR AMENDING THE SINGLE CONVENTION
6. The techniques for amending the Single Convention are provided for by
the actual contractual provisions, which allow one to refer to four
procedures of unequal interest: reservations (articles 49 and 50 1),
denunciation (article 46 2), reclassification (article 3 3), and
amendment (article 47 4).
1. The technique of reservations from articles 49 and 50
7. The possibility of a State making reservations to certain provisions of
the Single Convention is interesting, since its principle allows one to
remove the application of these provisions in a uniform manner for all the
Parties. However, this is limited by the texts for two reasons. On the one
hand, it can in principle only be used for certain provisions exhaustively
listed in articles 49 and 50 and, on the other hand, it is only possible at
the time of signature, ratification or accession.
The limitation of the provisions affected by reservations varies according
to whether they are transitional or definitive reservations. For the
former, referred to in Article 49, the Convention provides that:
"A Party may at the time of signature, ratification or accession reserve
the right to permit temporarily in any one of its territories:
a) The quasi-medical use of opium;
b) Opium smoking;
c) Coca leaf chewing;
d) The use of cannabis, cannabis resin, extracts and tinctures of
cannabis for non-medical purposes; and
e) The production and manufacture of and trade in the drugs referred to
under (a) to (d) for the purposes mentioned therein."
Some States have indeed taken advantage of this possibility to permit
traditional forms of consumption, such as India and Pakistan for opium
smoking and Bolivia and Peru for the coca leaf, as a remarkable exception
to the principle of the limitation of drugs exclusively to medical or
scientific purposes, which inspires the Single Convention, and at the same
time as a recognition of the traditional character of certain plants,
cultivated and consumed for centuries by local populations, in particular
the farming community.
9. Unfortunately, these transitional reservations are subjected to strict
conditions, with regard both to the duration of the reservation, and to the
regime accompanying it. Article 49 of the Single Convention in fact
continues as follows:
"2. The reservations under paragraph 1 shall be subject to the following
restrictions:
a) The activities mentioned in paragraph 1 may be authorized only to the
extent that they were traditional in the territories in respect of which
the reservation is made, and were there permitted on 1 January 1961;
b) No export of the drugs referred to in paragraph 1 for the purposes
mentioned therein may be permitted to a non-party or to a territory to
which this Convention does not apply under article 42;
c) Only such persons may be permitted to smoke opium as were registered
by the competent authorities to this effect on 1 January 1964;
d) The quasi-medical use of opium must be abolished within 15 years from
the coming into force of this Convention as provided in paragraph 1 of
article 41;
e) Coca leaf chewing must be abolished within twenty-five years from the
coming into force of this Convention as provided in paragraph 1 of article
41;
f) The use of cannabis for other than medical and scientific purposes
must be discontinued as soon as possible but in any case within twenty-five
years from the coming into force of this Convention as provided in
paragraph 1 of article 41;
g) The production and manufacture of and trade in the drugs referred to
in paragraph 1 for any of the uses mentioned therein must be reduced and
finally abolished simultaneously with the reduction and abolition of such
uses."
As a result, the smoking of opium, progressively reduced, should have
disappeared as from 13 December 1979. As for the practice of coca leaf
chewing and the consumption of cannabis and its resin, they should have
ended by 12 December 1989 at the latest.
These fateful dates have now been passed, but the International Narcotics
Board has acknowledged that it was "not possible to abolish the chewing of
the coca leaf in 1989". In fact, it has been estimated that there are today
approximately eight million "coca chewers" and the difficulty of replacing
the nutritional value of the coca leaf in Andean countries is considerable.
The United Nations had moreover to recognize that the problem is
complicated by the fact that local populations chew the coca leaf in order
to avoid the effects of tiredness and hunger.
10. Moreover, let us recall that other possibilities exist for the
contracting Parties to make definitive reservations on the basis of article
50. These, however, only apply in the case of the specific articles of the
Convention which concern, respectively, the regime for estimates and
statistics, the corrective measures to be taken to ensure the execution of
the Convention confronted by a recalcitrant State and the settlement of
disputes between Parties before the International Court of Justice.
In conclusion, one has to recognize that the use of the technique of
reservations is of no great assistance in adapting the Convention to an
anti-prohibitionist context. The main reason is moreover of a procedural
nature. These reservations must be made at the time when a Party signs,
ratifies or accedes to the Single Convention. This moment having occurred a
long time ago for the seventy three signatory States to the Convention and
the fifty others which have since joined it, the time for making
reservations is over.
2. The technique of denunciation in article 46.
11. Denunciation of the Single Convention is a procedure which is open to
the contracting Parties, the rules of which are defined by article 46,
drafted as follows:
"1. After the expiry of two years from the date of the coming into force
of this Convention (article 41, paragraph 1) any Party may, on its own
behalf or on behalf of a territory for which it has international
responsibility, and which has withdrawn its consent given in accordance
with article 42, denounce this Convention by an instrument in writing
deposited with the Secretary-General.
The denunciation, if received by the Secretary-General on or before
the first day of July in any year, shall take effect on the first day of
January in the succeeding year, and, if received after the first day of
July, shall take effect as if it had been received on or before the first
day of July in the succeeding year.
2. This Convention shall be terminated if, as a result of denunciations
made in accordance with paragraph 1, the conditions for its coming into
force as laid down in article 41, paragraph 1, cease to exist."
Denunciation of the Single Convention may therefore be made by a
contracting Party at any time after 13 December 1966. (If such a
denunciation occurred it would constitute a historic event, insofar as the
number of signatories of the Single Convention has always increased since
its entry into force. The seventy three signatory parties to the
Convention today number more than one hundred and twenty.)
However, article 46, which refers to article 41 of the same Convention,
which latter article defines the conditions for its entry into force, sets
forty signatory States as the minimum number of contracting Parties
necessary for the Convention to come into effect. Therefore, it is clear
that more than eighty of the States which are Parties to the Convention
would have to notify the Secretary-General of the United Nations of their
denunciations for it to be terminated. In other words, this possibility is,
for the time being, purely theoretical.
On the other hand, what is possible is the denunciation of the Convention
by a State, or a group of States. In this case, it is necessary to
underline that the procedure for denunciation of article 46 is extremely
simple. The contracting Party only has to deposit an instrument in writing
with the Secretary-General of the United Nations denouncing the Convention.
The only restriction on the power of the State to make this denunciation is
the requirement of a minimum waiting period of six months between the date
of receipt by the Secretary-General and the day when this denunciation
becomes effective (article 46 subparagraph 2). The "raison d'tre" of this
regulation is based on the fact that the Parties must furnish estimates and
statistics to the Board for each calendar year and time must be given to
the international organs in order to register and check these figures.
In conclusion, the procedure for denunciation is largely open to States,
but its usefulness is limited insofar as it is necessary to create an
alternative to the system currently in force. In the absence of such an
alternative, a campaign aiming purely to denounce the Convention would risk
being counterproductive. With respect to the specific case of the 1988
Convention, which is - as we have seen - unable to be acceptably modified,
this technique is in contrast to be resolutely used.
3. The technique of reclassifications in article 3.
12. The technique of reclassification in article 3 of the Single Convention
is interesting since it allows one to change both the list of classified
substances and the regime accompanying them. Furthermore, it can be used
at any time, at the initiative of any contracting Party, and it has the
advantage of attacking one of the most debatable aspects of the
international control: the classification of narcotic drugs in the
schedules of the Single Convention.
Let us recall that the Convention sets out over a hundred substances
classified into four schedules, arranged as follows:
- Schedule I: it includes opiates, both natural (opium) and semi-synthetic
(morphine, heroin), derivatives of coca (cocaine) and cannabis (hashish),
as well as numerous synthetic substances (pethidine, methadone,...),
- Schedule II: it includes substances used for medical purposes and
requiring a less rigid control in view of the lesser risk of abuse. It
includes a natural opiate (codeine) and synthetic substances (propiram,
dextropropoxyphene).
- Schedule III: it is the schedule of exemptions. It excludes a series of
pharmaceutical preparations made from substances not entailing abuse or
ill-effects. Such is the case for certain powders and liquids with a low
dosage of opium.
- Schedule IV: it includes some drugs from Schedule I which are considered
to have particularly dangerous properties and an extremely limited
therapeutic value. It includes opiates both semi-synthetic (heroin,
desomorphine) or synthetic (Ketobemidone, etorphine), as well as cannabis
and cannabis resin.
These schedules show that the main criteria for the classification of a
substance is its medical use. In view of the principle according to which
the only licit uses is those for medical or scientific purposes (art. 4),
plants or substances deprived of this purpose are automatically considered
as particularly dangerous. Such is the case for cannabis and cannabis resin
which are classified with heroin in group IV for the sole reason that they
lack therapeutic value. A reason which is in any event disputable, since
cannabis could have numerous medical uses in a system of legalized control.
Furthermore, the arbitrary nature of such a classification is denounced by
more and more authors.
13. One of the most fundamental challenges to this system of classification
concerns the different treatment of narcotic drugs and psychotropic
substances. Historically this is a result of the refusal (by almost one
vote, during the preparatory discussions of the Single Convention) to
classify barbiturates with internationally controlled substances.
This refusal is indeed partially at the origin of the Convention on
psychotropic substances adopted in Vienna in 1971. This Convention was
requested by developing countries, which did not understand the difference
between natural psychotropic substances (opium, coca, cannabis) and
synthetic psychotropic substances from the pharmaceutical industry
(amphetamines, barbiturates, hallucinogens...). Thus, for example, although
barbiturates, amphetamines and synthetic hallucinogens (LSD 25, PHP, MBA,
NDMA...) are clearly more powerful and addictive than cannabis or the coca
leaf, they were not at that time subject to any international control. The
unfairness of the situation therefore lead the UN to bring psychotropic
substances within the scope of control.
Psychotropic substances are today classified by the Vienna Convention (art.
1) into four schedules:
- Schedule I: it includes dangerous drugs creating a serious risk to public
health, and whose therapeutic value is doubtful or nil. It includes
synthetic hallucinogenics (LSD 25, DMT) and tetrahydrocannabinol (THC).
- Schedule II: it includes stimulants of the amphetamine type, of limited
therapeutic value, as well as some analgesics such as phencyclidine, which
is of no therapeutic value to man.
- Schedule III: it includes barbiturate products with fast or average
effects, which have been the object of serious abuse even though useful
therapeutically.
- Schedule IV: it includes hypnotics, tranquilizers (benzodiazepine) and
analgesics which engender an appreciable dependence, but are mainly used in
therapy.
This classification repeats the criteria of therapeutic value, but in fact
is more or less based on whether a substance belongs to one of the four
pharmacological groups: hallucinogens (Schedule I), amphetamines (Schedule
II), barbiturates (Schedule III), tranquilizers (Schedule IV).
It is striking to note that a comparison of the classifications of narcotic
drugs and psychotropic substances does not in the least coincide with the
health and social danger posed by the products concerned. Substances which
only engender a slight dependence are classified amongst narcotic drugs
whereas highly addictive substances are classified amongst psychotropic
substances. Therefore, one is surprised to learn that in international law,
LSD, mescaline, psilocine and other synthetic hallucinogenics DMT, STP...
are not narcotic drugs, but psychotropic substances. Better yet, whereas
the cannabis plant is classified amongst the most dangerous narcotic drugs,
its principal element, tetrahydrocannabinol or THC is only a psychotropic
substance. It is difficult to explain how a plant containing at the most 3%
of a principal element is dealt with more severely than the pure substance
at 100
This confusion and others therefore lead one to attempt to reorganize these
schedules by using the reclassification procedure for a certain number of
narcotic substances. This enables one to transfer them from one schedule to
another, if not to make them "disappear" from the schedules either by
reclassifying them as a psychotropic substance, or by purely and simply
deleting them from the list of internationally controlled substances.
14. The possibility of one contracting Party requesting, within the context
of the Single Convention, a reclassification of a substance from one
schedule to another, if not the deletion pure and simple of this substance
from one of the schedules of the Convention, is provided for in Article 3
which defines the conditions for modifying the scope of international
control. This text specifies that:
"1. Where a Party or the World Health Organization has information which
in its opinion may require an amendment to any of the Schedules, it shall
notify the Secretary-General and furnish him with the information in
support of the notification.
2. The Secretary-General shall transmit such notification, and any
information which he considered as relevant, to the Parties, to the
Commission, and, where the notification is made by a Party, to the World
Health Organization.
3. Where a notification relates to a substance not already in Schedule I
or in Schedule II,
(i) The Parties shall examine in the light of the available information the
possibility of the provisional application to the substance of all measures
of control applicable to drugs in Schedule I;
(ii) Pending its decision as provided in subparagraph (iii) of this
paragraph, the Commission may decide that the Parties apply provisionally
to that substance all measures of control applicable to drugs in Schedule
I. The Parties shall apply such measures provisionally to the substance in
question;
(iii) If the World Health Organization finds that the substance is liable
to similar abuse and productive of similar ill effect as the drugs in
Schedule I or Schedule II or is convertible into a drug, it shall
communicate that finding to the Commission which may, in accordance with
the recommendation of the World Health Organization, decide that the
substance shall be added to Schedule I or Schedule II.
4. If the World Health Organization finds that a preparation because of
the substances which it contains is not liable to abuse and cannot produce
ill effects (paragraph 3) and that the drug therein is nor readily
recoverable, the Commission may, in accordance with the recommendation of
the World Health Organization, add that preparation to Schedule III.
5. If the World Health Organization finds that a drug in Schedule I is
particularly liable to abuse and to produce ill effects (paragraph 3) and
that such liability is not offset by substantial therapeutic advantages not
possessed by substances other than the drugs in Schedule IV, the Commission
may, in accordance with the recommendation of the World Health
Organization, place that drug in Schedule IV.
6. Where a notification relates to a drug already in Schedule I or
Schedule II or to a preparation in Schedule III, the Commission, apart from
the measure provided for in paragraph 5, may, in accordance with the
recommendation of the World Health Organization, amend any of the Schedules
by:
(a) Transferring a drug from Schedule I to Schedule II or from Schedule II
to Schedule I; or
(b) Deleting any drug or a preparation as the case may be, from a
Schedule."
Therefore, there is no doubt as to the possibility of transferring a
substance from one Schedule to another, or the pure and simple deletion of
this substance from all the Schedules. Moreover, it has been done in the
past by the United States for dextropropoxyphene. This derivative of
methadone, originally classified as the reference substance for Schedule II
by the Single Convention, was reclassified the year following its adoption
and finally reinserted into Schedule II in 1981. This example of
reclassification is not very enlightening, so much does it seem to have
been inspired by economic considerations to the detriment of health
considerations.
Nevertheless, it is possible to apply the technique for example, to
cannabis and cannabis resin which could first of all be deleted from
Schedule IV of the most dangerous drugs where it has no place to be and
even from Schedule I, where its classification is extremely questionable;
it could then be transferred to Schedule IV of the Vienna Convention
together with minor hypnotics and tranquilizers.
The Vienna Convention in fact provides for this possibility in article 2,
but according to the official Commentary: "cannabis, cannabis resin or the
coca leaf could be deleted by the Commission from the Schedules of the
Single Convention and indeed be withdrawn from the control instituted by
this Convention with respect to drugs, with the exception of the measures
of control mentioned in article 26 and article 28, paragraph 1". This
sibylline language must be understood to mean that the reclassification of
cannabis from the Single Convention and its possible reclassification in
the Vienna Convention does not change the provisions and prohibitions
concerning its cultivation (art. 26 and 28 of the Single Convention).
The same can be said for the coca leaf and opium. The Commission could not
abolish the prohibition of the cultivation of these plants merely by a
reclassification. The removal of this control could only be done by
amending the treaty. This restriction, peculiar to cultivated plants
internationally controlled, somewhat diminishes the interest of the
reclassification technique for natural cultivated drugs, particularly in
the third world. However, it does not entirely rule it out.
15. In any event, the technique of reclassification is possible without
restrictions for the other drugs. It could, for example, be used to
transfer a part of the least dangerous drugs to the list of psychotropic
substances without any amendment to the Single Convention. For that
purpose one only has to follow the procedure stipulated in article 3.
We have seen that this could be achieved on the initiative of one Party or
of the World Health Organization (WHO), which must transmit a notification
to the Secretary-General accompanied by information justifying its request
for reclassification. The Secretary-General transmits this notification to
the Parties and the Commission. If the notification has been brought by a
Party it transmits it to the World Health Organization.
This international organization plays a central role in matters of
reclassification, as a technical expert of the UN in matters of public
health. According to article 3-6 it must make a recommendation concerning
the Schedule which it is appropriate to modify accompanied by the reasons
which justify the reclassification in question. In practice, the World
Health Organization is free to make any recommendation which it deems
appropriate.
However, its recommendation does not bind the contracting parties, nor the
international organs provided for in the Convention. It is only one step in
the classification or reclassification procedure. The power to proceed in
fact belongs to the Commission on Narcotic Drugs of the Economic and Social
Council, alone authorized by article 3 to modify the Schedules.
Furthermore, if one presupposes that the Commission, pursuant to notice
from the World Health Organization, accepts, upon the proposal of a
contracting Party, to reclassify one of the substances previously listed,
this reclassification only takes place if nothing interferes with it.
Article 3 of the Single Convention in fact provides for a certain number of
blocking possibilities in the following part of the procedure:
"7. Any decision of the commission taken pursuant to this article shall be
communicated by the Secretary-General to all States Members of the United
Nations, to non-member States Parties to this Convention, to the World
Health Organization and to the Board. Such decisions shall become
effective with respect to each Party on the date of its receipt of such
communication, and the Parties shall thereupon take such action as may be
required under this Convention.
8.(a) The decisions of the Commission amending any of the Schedules shall
be subject to review by the Council upon the request of any party filed
within ninety days from receipt of notification of the decisions. The
request for review shall be sent to the Secretary-General together with all
relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review
and relevant information to the Commission, the World Health Organization
and to all the Parties, inviting them to submit comments within ninety
days. All comments received shall be submitted to the Council for
consideration;
(c) The Council may confirm, alter or reverse the decision of the
Commission, and the decisions of the Council shall be final. Notification
of the Council's decision shall be transmitted to all States Members of the
United Nations, to non-member States Parties to this Convention, to the
Commission, to the World Health Organization and to the Board;
(d) During pendency of the review the original decisions of the Commission
shall remain in effect.
9. Decisions of the Commission taken in accordance with this article
shall not be subject to the review procedure provided for in article 7."
As a result of this text, if only one State makes the request it is up to
the economic and social Council itself to confirm or not the decision of
the Commission. Let us recall that the Council is composed of fifty four
representatives of the signatory States of the Convention and that it
decides on the requests presented to it by a simple majority.
In conclusion, one may ask oneself if the technique of reclassification is
of real interest to the anti-prohibitionist approach. Certainly, in theory
it allows for a softening of the harshness of control, if not its pure and
simple abolition, in favour of a system of legalized control. It also
allows for a massive transfer of all or some of the drugs to the
psychotropic substances, whose regime is clearly less rigorous.
Nevertheless, it is practically forbidden, without amending the Convention,
for natural drugs (opium, coca, cannabis), and for all other drugs it
remains subject to the decisions of the organs of control (Commission,
Council) taken by a majority of the signatory States. Finally, it is almost
as difficult to reclassify a substance from one Schedule to another as it
is to amend the Single Convention, which reduces the interest of
reclassification as opposed to modifying the Convention by means of
amendment.
4. The amendment procedure in article 47.
16. Article 47 of the Single Convention provides for the possibility of the
contracting Parties requesting that the Convention be modified by way of
amendment. The text is drafted as follows:
"1. Any Party may propose an amendment to this Convention. The text of
any such amendment and the reasons therefor shall be communicated to the
Secretary-General who shall communicate them to the Parties and to the
Council. The Council may decide either:
(a) That a conference shall be called in accordance with Article 62,
paragraph 4, of the Charter of the United Nations to consider the proposed
amendment; or
(b) That the Parties shall be asked whether they accept the proposed
amendment and also asked to submit to the Council any comments on the
proposal.
2. If a proposed amendment circulated under paragraph 1 (b) of this
article has not been rejected by any Party within eighteen months after it
has been circulated, it shall thereupon enter into force. If, however, a
proposed amendment is rejected by any Party, the Council may decide, in the
light of comments received from Parties, whether a conference shall be
called to consider such amendment."
The amendment procedure of the Single Convention therefore requires
referral to the Economic and Social Council of the UN by a contracting
Party. The Council plays a central role in this procedure. It has
quasi-discretionary power with respect to the request for amendment
submitted to it. In fact the text specifies that "it may decide" either to
call a Conference aimed at revising the Single Convention, or to submit the
amendment for the direct approval of the contracting Parties. Finally, by
virtue of the powers it holds from the Charter of the United Nations, it
may also, with respect to the amendment proposed in accordance with article
30, make a decision other than that provided for in said article: in
particular, it could purely and simply refuse to make a decision on the
proposed amendment.
In this context, it should be noted that the route of amendment by the
individual acceptance of the signatory Parties makes the amendment
procedure very uncertain. Indeed, from the time when the Secretary-General
has sent the proposed amendment to the different signatory States, they
have a period of eighteen months to make known their approval or
disapproval. Only one State has to oppose this amendment during this period
to end the possibility of using article 46-I, b. It is for this reason that
the best solution is that leading to the calling of a conference of the
contracting Parties.
In the face of this considerations, we can only draw the conclusion that
the technique which must be used is that of amendment, in order to set in
motion, in any event, the procedure provided for by article 47.
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