Subject: (4) CONVENTIONS ON DRUGS
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(4) 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
III. THE CONTENT OF THE AMENDMENTS TO THE SINGLE CONVENTION
17. By virtue of the principle of the economy of means (supra n3), the
content of the proposed amendments is reduced to the minimum, in such a way
as to redirect the course of the Convention without clashing with it head
on. Nevertheless, there is no question of maintaining the reasoning of the
"war against drugs" which inspired the international texts on narcotic
drugs and in particular the Preambles of the UN Conventions.
This is why it is first of all proposed that significant amendments to the
Preamble of the Convention bee adopted in order to define the new
directions of international control (A) before suggesting amendments or
additions to the articles of the Convention (B).
A. - Amendments to the Preamble
18. As is the case with numerous multilateral treaties, the international
texts relating to narcotic drugs are preceded by a Preamble in the form of
a statement of intent. In both the Single Convention and the Vienna
Conventions of 1971 and 1988, the contracting Parties have adopted a text
setting the aims of the Convention, which text must be reviewed before
proposing a new text.
The Preamble of the Single Convention is drafted as follows:
"The Parties,
Concerned with the health and welfare of mankind,
Recognizing that the medical use of narcotic drugs continues to be
indispensable for the relief of pain and suffering and that adequate
provision must be made to ensure the availability of narcotic drugs for
such purposes,
Recognizing that addiction to narcotic drugs constitutes a serious evil for
the individual and is fraught with social and economic danger to mankind,
Conscious of their duty to prevent and combat this evil,
Considering that effective measures against abuse of narcotic drugs require
coordinated and universal action,
Understanding that such universal action calls for international
co-operation guided by the same principles and aimed at common objectives,
Acknowledging the competence of the United Nations in the field of
narcotics control and desirous that the international organs concerned
should be within the framework of that Organization,
Desiring to conclude a generally acceptable international convention
replacing existing treaties on narcotic drugs, limiting such drugs to
medical and scientific use, and providing for continuous international
co-operation and control for the achievement of such aims and objectives.
Hereby agree as follows :"
Behind the apparent banality of the language, this text sets three major
directions. First of all, it states in principal that the use of narcotic
drugs must be limited to medical purposes, then it proposes as its
objective to combat the evil of addiction, and finally it asserts the
necessity for international control entrusted to the United Nations.
Of these three principles only the first one is truly opposed to the
anti-prohibitionist idea. Indeed, we have already described the historical
and legal development of the international texts, which have progressively
established the principle of the limitation of narcotic drugs to medical
and scientific purposes, starting point for the prohibition of narcotic
drugs (supra n 4). The possibility of other uses, in particular
recreational, must therefore be strongly asserted in the new Preamble to
mark the return to the origins of international control. It does not in any
event contradict the objective of the fight against addiction. Indeed, if
one defines drug addiction as a state caused by the abuse of the substances
involved and not by their mere use, the present text is perfectly
compatible with a system of legalized control. In fact, its objective is
to combat the harmful effects to society or third parties by
counterbalancing such effects with health and social measures, of which the
first one is international control.
It remains that international control must be reduced and must not
necessarily lead to the establishment of a uniform policy for the
contracting Parties. Each State must be able, taking into account its
environment, history and traditions, to adapt its policy on combatting
addiction by instituting specific measures of control, not necessarily
uniform. It is clear, for example, that the fight against alcoholism in
France is not carried out in the same way as in Saudi Arabia. Therefore,
it is necessary that the Preamble reserves the possibility to the States of
taking into account their cultural and social framework.
19. However, the Preamble of the Single Convention does not sufficiently
convey the current course of international control. In fact, while the
Preamble of the Vienna Convention of 1971 resembles practically word for
word that of the Single Convention, the same cannot be said for the Vienna
Convention of 1988. The aim of this Convention is to reinforce the fight
against illicit traffic and it is asserted in a very characteristic manner
in its Preamble. This is drafted as follows:
" The Parties to this Convention,
"Deeply concerned by the magnitude of and rising trend in the illicit
production of, demand for and traffic in narcotic drugs and psychotropic
substances, which pose a serious threat to the health and welfare of human
beings and adversely affect the economic, cultural and political
foundations of society,
Deeply concerned also by the steadily increasing inroads into various
social groups made by illicit traffic in narcotic drugs and psychotropic
substances, and particularly by the fact that children are used in many
parts of the world as an illicit drug consumers market and for purposes of
illicit production, distribution and trade in narcotic drugs and
psychotropic substances, which entails a danger of incalculable gravity,
Recognizing the links between illicit traffic and other related organized
criminal activities which undermine the legitimate economies and threaten
the stability, security and sovereignty of States,
Recognizing also that illicit traffic is an international criminal
activity, the suppression of which demands urgent attention and the highest
priority,
Aware 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 its levels,
Determined to deprive persons engaged in illicit traffic of the proceeds of
their criminal activities and thereby eliminate their main incentive for so
doing,
Desiring to eliminate the root causes of the problem of abuse of narcotic
drugs and psychotropic substances, including the illicit demand for such
drugs and substances and the enormous profits derived from illicit
traffic,..."
The text of this first part of the Preamble affirms the danger of the
illicit traffic in narcotic drugs and states that its objective is to
eliminate it. One will see below that the second part asserts the necessity
of reinforcing international co-operation in criminal matters in order to
attain this objective. But those who drafted the Preamble, carried away by
their prohibitionist reasoning, did not realize the implicit contradiction
between the two parts: in other words, between the goal and the means.
Whereas the aim is the suppression of illicit traffic the means used, i.e.
the prohibition and repression of narcotic drugs, on the contrary results
in this traffic being reinforced. There is no need to make further
reference to this, since it has already been sufficiently demonstrated.
Worse still, those who drafted the Preamble did not realize that by
denouncing the dangers of traffic, they were denouncing the perverse
effects of prohibition.
Thus, they recognize that illicit traffic "generates large financial
profits and wealth... for criminal organizations" which enables them to
"corrupt the structures of government, legitimate commercial and financial
business", that this traffic has links with "other related organized
criminal activities which undermine the legitimate economies", and that it
is making "steadily increasing inroads into various social groups, and
particularly by the fact that children are exploited as consumers and used
for the purposes of the production, distribution of and illicit trade in
narcotic drugs and psychotropic substances". The wealth of organized crime,
the laundering of drug money, the corruption of the police force, the
financing of terrorism and the increase in delinquency, in particular
amongst the young, constitute the main perverse effects condemned by the
adversaries of prohibition and repression.
Thus for example, it is because the repression of drug traffickers is so
extreme in its severity that they make use of children, whose criminal
liability is reduced. While, therefore, the first half of the Preamble of
the 1988 Convention is appropriate to the anti-prohibitionist doctrine
without problem, on the other hand the second half, which aims to broaden
the scope of prohibition and to reinforce its sanctions, goes totally
against the current of its philosophy. The rest of the Preamble is drafted
as follows :
"Considering that measures are necessary to monitor certain substances,
including precursors, chemicals and solvents, which are used in the
manufacture of narcotic drugs and psychotropic substances, the ready
availability of which has led to an increase in the clandestine manufacture
of such drugs and substances,
Determined to improve international co-operation in the suppression of
illicit traffic by sea,
Recognizing that eradication of illicit traffic is a collective
responsibility of all States and that, to that end, coordinated action
within the framework of international co-operation is necessary,
Acknowledging the competence of the United Nations in the field of control
of narcotic drugs and psychotropic substances and desirous that the
international organs concerned with such control should be within the
framework of that Organization,
Reaffirming the guiding principles of existing treaties in the field of
narcotic drugs and psychotropic substances and the system of control which
they embody,
Recognizing the need to reinforce and supplement the measures provided in
the Single Convention on Narcotic Drugs, 1961, that Convention as amended
by the 1972 Protocol Amending the Single Convention on Narcotic Drugs,
1961, and the 1971 Convention on Psychotropic Substances, in order to
counter the magnitude and extent of illicit traffic and its grave
consequences,
Recognizing also the importance of strengthening and enhancing effective
legal means for international co-operation in criminal matters for
suppression the international criminal activities of illicit traffic,
Desiring to conclude a comprehensive, effective and operative international
convention that is directed specifically against illicit traffic and that
considers the various aspects of the problem as a whole, in particular
those aspects not envisaged in the existing treaties in the field of
narcotic drugs and psychotropic substances,
Hereby agree as follows:"
This part of the Preamble claims to reduce the extent of traffic and
alleviate its consequences, while at the same time reinforcing and
increasing the legal means for international co-operation in criminal
matters. The increase in the scope of prohibition goes so far as to
incorporate the precursors, i.e. chemical products which may be used in the
manufacture of narcotic drugs. Thus, products as common as acetone or
anhydride acetic are affected by the prohibitionist reasoning (!).
Moreover, those who drafted the Preamble reaffirm their faith in
international co-operation and in the reinforcement of suppression, even
though it has been shown that an increase in repression only serves to
benefit the most dangerous drug traffickers and sustain the traffic. This
is why, on the contrary, it will here be proposed that this repression be
lessened and adapted to the dangerousness of the products concerned and
restricted to anti-social behavior of the kind which are liable to harm
society or third parties.
A contrario, it is necessary to assert in the new Preamble the fundamental
right of each individual to ingest a psychoactive substance of his choice
in order to experience sensations. This right falls within the ideal
framework of article 4 of the Declaration of the rights of man and the
citizen of 1789, according to which "freedom consists in being able to do
all that which does not harm others". This right has, moreover, been
recognized in our society for a long time for tobacco, alcohol and
tranquilizers. Therefore, to extend it to certain narcotic drugs and
psychotropic substances is normal. On condition, however, that the
limitation stipulated by articles 4 and 5 of the declaration - not to cause
harm to others or to society - is remembered. This is a limit which the
future Preamble will set out as one of the principles around which future
international control would be organized.
20. Finally, it is proposed to draft the future Preamble of the Single
Convention in the following manner :
"The Parties,
Concerned with the physical and mental health of mankind,
Concerned with the problem of public health and the social problem caused
by the abuse of certain narcotic drugs,
Recognizing that the use of these substances for medical or scientific
purposes is indispensable for the relief of pain and that it should not be
subject to any unjustified restrictions,
Recognizing that their use for recreational purposes or others, is part of
the freedom of each individual and the rights of man, subject to the
condition that it does not cause harm to others or society,
Determined to prevent and combat the abuse of these substances and illicit
traffic which it engenders,
Deeply concerned by the magnitude of and the rising trend in the illicit
production of, demand for and traffic in narcotic drugs, which adversely
affect the economic, cultural and legal foundations of society,
Deeply concerned also by the steadily increasing inroads into various
social groups made by illicit traffic in narcotic drugs and in particular
amongst the young exploited by drug traffickers,
Recognizing the links between illicit traffic and other related organized
criminal activities which undermine the legitimate economies and threaten
the stability, security and sovereignty of States,
Aware that illicit traffic generates significant financial profits enabling
criminal organizations to penetrate and corrupt the structures of
government and legitimate commercial and financial business,
Understanding that effective measures against abuse of narcotic drugs
require coordinated and universal action,
Acknowledging the competence of the United Nations in the field of
narcotics control and desirous that the international organs concerned
exercise their activities within the framework of that Organization,
Desiring to conclude a generally acceptable international Convention
replacing all existing treaties, limiting such drugs to medical and
scientific or other uses, whilst ensuring protection against abuse of
society and third parties,
Finally desiring to conclude a worldwide and operational international
Convention aiming to combat illicit traffic effectively by a system of
legalized control in which the health and social risk of the controlled
substances is taken into account and the various cultural, economic and
legal aspects of the problem,
Hereby agree as follows:"
One can see that this text paraphrases and adapts several statements of the
Preambles of the three international Conventions.
With regard to the Single Convention, the terms of the first statement
regarding the "health and welfare of mankind" have been replaced by the
"physical and mental health of mankind". This substitution is due to the
fact the "welfare" is not a very clear concept, whereas "mental health"
could be directly threatened by abuse of psychoactive substances. This
does not however mean that the prohibitionist doctrine is not concerned
with welfare. It merely replaces a welfare of abstinence by a welfare of
moderation.
With regard to the Vienna Convention of 1988, some statements from the
second part of the Preamble have purely and simply been reproduced. In
fact it must be clear that the direction of the future Single Convention
must retain as an objective the combat against illicit traffic in narcotic
drugs and its perverse effects. It only claims that it is better equipped
than the present Convention to do so, since a system of legalized control,
as the history of the prohibition of alcohol has shown, immediately
eliminates organized crime to a large extent.
In conclusion, the new text reconciles both the principle of economy of
means by being closely based on previous texts, and the principle of the
return to origins by specifying that from now on narcotic drugs may be used
for "recreational or other" purposes, as well as the principle of
adaptation by maintaining the overall structure of the Convention with its
two sections: a preventive section involving the organisation of licit
channels for controlled distribution and a repressive section involving the
combat against illicit traffic and contraband.
B. The Amendments to the Articles of the Single Convention
21. Once these principles have been defined, the amendments to the
Convention are relatively straightforward to draft.
Article 1
DEFINITIONS
This article provides definitions of the principal basic terms useful in
understanding the Convention, whether one is dealing with the control
bodies ("Board", "Commission", Council", "General Assembly",
"Secretary-General") or the controlled substances (cannabis plant, cannabis
resin, coca bush, coca leaf, medicinal opium, opium, opium poppy, poppy
straw). It also provides definitions of operations relating to these
substances ("production", "import", "special stocks", "cultivation",
"consumption"), as well as of the term "territory".
There are no particular comments to be made about these definitions which
can hardly be questioned. It is, however, appropriate to consider the
notion of "drug" in more detail because the definition proposed by the
Single Convention is in no way satisfactory. According to Article 1.1.j
"Drug means any of the substances in Schedules I and II, whether natural or
synthetic". Since, as one has seen, the Convention does not specify the
criteria for inclusion in a Schedule, this means that this notion is not
defined at all!
It is therefore appropriate to provide (finally) a definition of the notion
of "drugs".
A drug is therefore a substance capable of engendering drug addiction. This
traditional definition nevertheless requires that the notion of "drug
addiction" first be defined. This notion was officially defined by the
Committee of Experts of the World Health Organization, which characterized
it as follows:
"drug addiction is a state of chronic or periodic intoxication engendered
by the repeated consumption of a natural or synthetic drug. Its
characteristics are in particular:
1. an irresistible desire or need to continue to consume the drug and to
obtain it by any means;
2. a tendency to increase the doses;
3. a psychic and generally physical dependence on the effects of the drug;
4. effects which are harmful to the individual and to society".
This definition has the merit of being relatively clear, even if it
involves some ambiguity. Indeed, it refers to the idea of psychic
dependence at the same time that it refers to that of physical dependence.
The two states of dependence are very different. The former is a simple
habit which leaves the subject free to stop without difficulty; the latter
is characterized by intense physical problems when administration of the
drug is suspended. In good legal logic, international control should only
be applied to drug addiction in the strict sense, that is, only to physical
dependence. This would exclude not only the soft drugs (cannabis, hashish,
coca, khat ...) but also the substances which are very powerful although
not very addictive (LSD, PHP, MDA ...). This is a subject for thought, the
development of which does not fall within the framework of the present
study but which could enable the opening of a breach through which the
"reclassification" of certain substances now classified as narcotic drugs
could be obtained.
In conclusion, it is proposed that Article 1 be retained as it is except
for paragraph 1.1(j), which should be drafted as follows:
"j. "Drug" refers to any substance capable of leading to drug addiction;
whether natural or synthetic; the term "drug addiction" refers to the state
defined in 1957 by the Committee of experts of the World Health
Organization".
Article 2
SUBSTANCES UNDER CONTROL
22. This article defines the different regimes applying to the classified
substances. These regimes, it should be remembered, are intended to
introduce control measures to prevent international trade in (import,
export), production (cultivation, manufacture) of, and national trade in
(distribution, possession), substances classified as drugs. It is basically
a preventative regime which requires the contracting Parties to provide a
certain amount of information to the control bodies (estimates,
statistics), to establish State monopolies to control cultivation and
manufacture (which can also be carried out under license), to require
authorization for exports and imports through a system of permits and
approved operators, to monitor the network of distribution, which can be
carried out under license or by state undertakings, and to require that
drugs only be provided under medical prescription, as needed in the form of
counterfoil books.
Only the last restriction is really inconsistent with anti-prohibitionist
thinking. It is, moreover, in conformity with the stated objective of the
Single Convention to limit the licit trade in drugs to medical or
scientific uses. It is no longer appropriate when the control of
international trade extends to medical, scientific "or other" purposes.
Given the new goals set out in the Preamble, recreational uses will
henceforth come within the provisions of the Single Convention. The forms
of control which it establishes, whether monopolies of cultivation, of
production, or the supervision of trade and of distribution, are completely
conceivable in a system of controlled legalization.
Whilst having the greatest respect for those who advocate a reliance on
private industry in this domain, and even on the laws of the market alone,
the present study retains this hypothesis, based on the principle that the
State is well placed to "take care of the vices of its citizens".
It is therefore proposed that article 2 be retained without alteration.
Article 3
23. ARTICLE 3 CONCERNS THE CHANGES IN THE SCOPE OF CONTROL.
This text has already been discussed during the examination of the
procedure for reclassification (supra n12 and following). Its procedural
aspect will therefore not be discussed again here, except to add, perhaps,
the possibility of transferring a substance from a Schedule of drugs to a
Schedule for psychotropic substances (supra n13). This leads to a proposal
to modify paragraph 6 by adding a sub-paragraph (c) as follows:
"c) Transferring a drug from a Schedule of the Single Convention to a
Schedule of the Vienna Convention on psychotropic substances."
Independently of this modification, which is capable of allowing one to
remedy incoherences in the classification of substances as drugs or
psychotropic substances, it is appropriate to examine whether Schedules I,
II, III and IV, as they are defined by Article 3, should be retained or
redefined. For convenience, it is appropriate to recall the criteria of
classification in each Schedule and to analyze them in light of the logic
of controlled legalization.
Recall that the criterion for classification of Schedule I is not specified
by the Convention itself, which only refers to substances capable of
creating abuses and harmful effects similar to substances classified in
Schedules I and II. This circular criterion is complemented by a criterion,
used by the Technical Committee of the Commission, which consists of
including substances with the following characteristics:
a) Substances having a more marked capacity to support drug addiction than
codeine and more or less comparable with morphine.
b) Those which may be transformed into a substance with the capacity to
engender or maintain drug addiction with a facility and in a proportion
such that they present a greater risk of abuse than codeine.
c) Those which present a risk of abuse comparable to that presented by
cannabis, cannabis resin or cocaine.
d) Those which may be transformed into a substance presenting a risk of
abuse comparable to that presented by cannabis, cannabis resin or cocaine.
Inclusion within Schedule I depends, therefore, on variable criteria of
comparison, starting from three basic substances - morphine, cocaine and
cannabis - which are used as reference substances. The influence of
anglo-saxon law, which prefers lists to concepts, is clear here.
Unfortunately, it does not shine by its clarity or coherence. Sometimes the
risk of abuse must be "more or less comparable" to that posed by a
particular substance (morphine), sometimes it must simply be "comparable"
(cannabis, cocaine). Sometimes the reasoning applies to the substance
itself, sometimes to a product capable of being transformed. Finally,
according to the commentary authorized by the UN, "analogy can present
various degrees, and the Single Convention does not specify which is the
required degree. It is thus left to the judgment of the WHO to decide what
it considers to be an analogy ...". This leaves it the greatest possible
latitude in classifying substances. There is only one limit to its power:
the substance to be classified must be more addictive than codeine. In the
Single Convention, seventy eight substances were thus included in Schedule
I. Today there are almost one hundred.
For Schedule II, the criterion for inclusion defined by the Technical
Committee is as follows:
a) Substances, the capacity of which to engender or maintain drug addiction
are not more marked than that of codeine but are at least as marked as that
of dextropropoxyphene.
b) Those which may be transformed into a substance with the capacity of
engendering or maintaining a drug addiction with a facility and in a
proportion such that the risk of abuse does not exceed that of codeine.
This criterion rests on similar principles to those of Schedule I, except
that there are only two reference substances: codeine and
dextropropoxyphene. Codeine is a derivative of opium which is used as the
threshold between the two Schedules. Dextropropoxyphene is a major
tranquilizer which functions as the lower limit to the notion of drugs. The
United States obtained the reclassification of dextropropoxyphene between
1963 and 1980, with the result that the legal basis of the schedules in
international law purely and simply disappeared from Schedule II for twenty
years. The number of substances included in Schedule II has moreover
changed little since its beginnings, as there were seven at the time of the
vote and nine today.
Schedule III includes preparations excluded from international control
because they cannot in theory "lead to abuses or produce harmful effects".
The Technical Committee has specified that this deals with preparations
which fulfil the double condition of being intended for a legitimate
medical use and containing a drug in quantities difficult to recover. But
these clarifications remain insufficient and the official Commentary of the
Convention provides others. It details, in particular, the factors which
the WHO must take into consideration in including a substance in Schedule
III, viz.:
a) the amount of drug in the preparation;
b) the active strength of the drug;
c) the nature of the ingredients used in the composition of the preparation
and the degree to which these ingredients can counteract the dangerous
properties of the drug;
d) the practical possibility of the drug being recovered by traffickers or
persons wishing to abuse it;
e) the therapeutic value and the importance of the legitimate use of the
preparation.
Independently of the purely pharmacological factors, the WHO must therefore
take into account practical factors such as price and manufacturing
techniques. The fact remains that the number of exempted preparations is
distinctly smaller than in earlier treaties: only a dozen or so substances
are included in Schedule III instead of around forty. These are
preparations with a base of opium, morphine and cocaine and a synthetic
drug, diphenoxylate.
In contrast, the substances in Schedule IV are those drugs considered as
being the most dangerous. The Single Convention defines them as being
"particularly liable to abuse and to produce ill effects, and that such
liability is not offset by substantial therapeutic advantages". The
Technical Committee for its part includes in this schedule those substances
presenting the following characteristics:
a) Those which have strongly addictive properties or which present a risk
of abuse not offset by therapeutic advantages not possessed by another
drug;
b) Those which it is desirable to withdraw from general medical practice
because of the risk they present for public health.
The cumulative effect of these two conditions reduces the number of
substances included in Schedule IV to a few. There were four when the
Convention was adopted: heroin, cannabis, desomorphine and ketobemidone.
There are six today since the classification of acetorphine and etorphine.
The list of substances in Schedule IV is nevertheless open to challenge, as
it puts on the same level cannabis, a soft drug, the danger of which is
questionable, and heroin, an ultra-hard drug, able to be injected, which
present incomparable risks. The classification of cannabis in Schedule IV
is therefore an incoherence and a major injustice of the Single Convention.
The official Commentary accepts, moreover, that if research conducted on
the effects of cannabis justify it, it would be possible to remove cannabis
from this Schedule and transfer it to another one.
24. In the face of this conceptual and regulatory disorder, the principle
of adaptation requires that the four schedules be retained, but that their
limits be redefined in a manner that is more precise and above all
consistent with anti-prohibitionist doctrine.
In relation to Schedule I, a new classification criterion has already been
proposed to replace the absence or incoherence of the former criterion. It
has also been seen that the WHO exercises an extremely broad and
quasi-discretionary power to include any substance within Schedule I.
Frankly, this imprecision in the notion of drug addiction is not very
problematic in anti-prohibitionist logic. One can indeed recall that all
the substances in Schedule I are subject to a controlled legalization, for
purposes other than medical purposes. If the notion of drug addiction is
broad, that only extends the scope of international control, not of
prohibition.
With regard to Schedule II, one can in the first place wonder whether its
retention is necessary in light of the new anti-prohibitionist logic.
Indeed, what is the use of defining substances which are to be used for
medical purposes, when this is no longer the sole criterion of submission
to international control? Moreover, differences between the regimes for the
substances in Schedules I and II respectively only relate to retail trade
and remain marginal in comparison to the problems posed by prohibition and
repression. The small number of substances included in this schedule
further shows its reduced usefulness.
For all that, it has not disappeared, in so far as the idea of including in
Schedule II all the substances of Schedule I which have medical
applications, and subjecting them to special distribution rules, is neither
shocking nor even troubling. Neither is this double system, medical on the
one hand and recreational on the other, incoherent from the pharmaceutical
perspective, in so far as the form of the medical product is not
necessarily the same as that of the recreational product. It is in this
way, for example, that one must distinguish between opium to be smoked and
medicinal opium. The criterion for classification in Schedule II, which we
should remember is not defined in the Single Convention, could therefore be
defined in the following manner by Article 3(iii):
"iii) If the World Health Organization finds that a substance in Schedule I
is capable of being used for medical or scientific purposes, the
Commission, on the recommendation of the WHO, can include the substance in
Schedule II."
In respect of the exempted substances of Schedule III, which schedule
complements in some way Schedule II by excluding from any control
preparations containing a very small amount of drugs and not very dangerous
for the health, the new version of the Single Convention can perfectly well
be identical to the former version. One could even increase the number of
specialties and the threshold of concentration provided for by the Single
Convention which remain low in comparison with earlier treaties. Thus, for
example, of 56 preparations exempted by the 1925 Convention on Opium, the
Single Convention only exempts one: a mixture of opium and ipecacuanha
(Dover powder).
In respect of the drugs in Schedule IV, presumed to be the most dangerous,
it is proposed that a criterion of classification based on the danger for
others be retained, although it should be a little different from the
existing one, and that inclusion in this schedule has an exceptionally
prohibitionist function.
As for the criterion of classification, one has seen that the Single
Convention defines substances falling within Schedule IV as those
particularly liable to abuse and danger and having no therapeutical
advantages. While the criterion of the risk of abuse and danger can be
retained (specifying that it is a matter of danger for society or for
another person), one can not, on the other hand, retain the criterion of
therapeutic utility which no longer has any relevance. Indeed, once one no
longer distinguishes between medical, scientific, or "other" uses, one
cannot draw criminal consequences from the absence of medical usefulness.
Such is indeed the consequence of the classification in Schedule IV in the
Single Convention, which provides that the Parties can adopt prohibitory
measures, linked with criminal sanctions. This rigorous regime can be
perfectly acceptable in the anti-prohibitionist logic as an exception to
the general regime of legalized control. Thus classification in Schedule IV
enables States to subject to a very strict prohibitionist regime substances
whose simple use, not even addictive abuse, presents a danger to society.
The result of all these observations is that the new article 3 could be
drafted as follows:
(more)
