Subject: (5) CONVENTIONS ON DRUGS
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(5) 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
CHANGES IN THE SCOPE OF CONTROL
l. 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 considers 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
1. The Parties shall apply such measures provisionally to the substance in
question;
(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.
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 not 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, by reason of its mere use, even occasional, to lead to
risks of abuse and of activity harmful to society and to others, 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 a drug or a preparation as the case may be, from a Schedule.
(c) Transferring a drug from a Schedule of the Single Convention to a
Schedule of the Vienna Convention on psychotropic substances.
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 decision 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 amen ding 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 decision. 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 decision 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 decision 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."
Article 4
25. Article 4 of the Single Convention concerns the GENERAL OBLIGATIONS of
the contracting Parties. It reads as follows:
"The parties shall take such legislative and administrative measures as may
be necessary:
(a) To give effect to and carry out the provisions of this Convention
within their own territories;
(b) To co-operate with other States in the execution of the provisions of
this Convention; and
(c) Subject to the provisions of this Convention, to limit exclusively to
medical and scientific purposes the production, manufacture, export,
import, distribution of, trade in, use and possession of drugs."
There have already been many commentaries on this text which may be
modified by adding the words "or other" to paragraph (c) which would
therefore be drafted as follows:
"(c) Subject to the provisions of this Convention, to limit exclusively to
medical, scientific or other purposes the production, manufacture, export,
import, distribution of, trade in, use and possession of drugs."
Articles 5 - 11
26. ARTICLES 5 TO 11 OF THE SINGLE CONVENTION CONCERN THE INTERNATIONAL
CONTROL ORGANS.
These articles, which define the roles of the control organs of the Single
Convention, more precisely, the Commission on Narcotic Drugs of the
Economic and Social Council (hereafter the Commission) and the
International Narcotics Control Board (hereafter INCB), are perfectly
neutral with respect to prohibitionist or anti-prohibitionist reasoning.
They are, indeed, responsible for monitoring that the Convention is
properly executed, whatever its content may be. There is therefore no need
to modify on principle the rules pertaining thereto, whether they deal with
the expenses of the international control bodies (art. 6), the functions of
the Commission (art. 8), the composition and functions of the Board (art
9), the terms of office and remuneration of members of the Board (art. 10)
or its rules of procedure (art. 11).
It may nevertheless be noted that article 9(4) gives the Board the role of
limiting the cultivation, production, manufacture and use of drugs solely
to medical and scientific purposes. This provision is of course
incompatible with the new anti-prohibitionist reasoning, and it is
appropriate to modify it in the following way:
"4. Without prejudice to the other provisions of the present Convention,
the Board, acting in co-operation with Governments, and subject to the
terms of this Convention, shall endeavour to limit the cultivation,
production, manufacture and use of drugs to the amounts required for
medical, scientific or other purposes, ..."
Articles 12 and 13
27. ARTICLES 12 AND 13 OF THE SINGLE CONVENTION RELATE TO THE ESTIMATE AND
STATISTICAL RETURNS SYSTEM.
Like article 9, article 12(5) provides that the estimates must be limited
"to an adequate amount required for medical and scientific purposes". Here
again it is appropriate to broaden the scope of application of control by
adding the words "or other" to paragraph 5, which it is therefore proposed
to modify as follows:
"5. The Board, with a view to limiting the use and distribution of drugs to
an adequate amount required for medical, scientific or other purposes and
to ensuring these be satisfied, shall as expeditiously as possible confirm
the estimates, including supplementary estimates, or, with the consent of
the Government concerned, may amend such estimates. In case of a
disagreement between the Government and the Board, the latter shall have
the right to establish, communicate and publish its own estimates,
including supplementary estimates."
No modification is necessary for article 13.
Article 14
28. Article 14 concerns MEASURES BY THE BOARD TO ENSURE THE EXECUTION OF
PROVISIONS OF THE CONVENTION.
This text requires no particular comment, in so far as it only gives to the
Board very limited powers to deal with contracting Parties which refuse to
administer the Convention. The only coercive measure capable of having a
certain effect is paragraph 2 which allows the Board to "recommend to
Parties that they stop the import and export of drugs to or from the
country in contravention".
In a system of controlled legalization, where States have an interest in
exporting rather than in importing, the sanction of prohibiting any import
from other States, which is nevertheless of dubious effectiveness, may seem
unsuitable. Paragraph 2 of article 14 could thus be deleted without major
inconvenience, especially as it seems never to have been used.
Articles 14 bis to 18
29. Articles 14 bis to 18 are of a technical nature and complement the
roles of the Board of the Commission and of the Secretary-General of the
United Nations.
These texts require no particular comment, except that article 18(1)(c),
which refers to "illicit traffic", should also refer to illicit contraband
(smuggling). Indeed, in a system of controlled legalization, traffickers
who illegally sell legalized substances are in reality smugglers
distributing dubious or tax-free products. Traffickers continue to exist,
however, and distribute the products totally prohibited by Schedule IV.
It is therefore proposed to draft article 18(1)(c) as follows:
"(c) Such particulars as the Commission shall determine concerning cases of
illicit traffic, including particulars of each case of illicit traffic or
contraband discovered which may be of importance, because of the light
thrown on the source from which drugs are obtained for illicit traffic or
contraband, or because of the quantities involved or the method employed by
the illicit traffickers or smugglers;"
Articles 19 and 20
30. Articles 19 and 20 of the Single Convention concern ESTIMATES OF DRUG
REQUIREMENTS and STATISTICAL RETURNS TO BE FURNISHED TO THE BOARD.
These articles, which define the administrative obligations of the Parties
with respect to the Board, specify the object of the estimates and
statistical returns to be provided to the Board. Among the estimates of
drug needs, article 19(1)(a) refers to "quantities of drugs to be consumed
for medical and scientific purposes". Here once more it is sufficient to
add to this paragraph the term "or other" to bring it into conformity with
anti-prohibitionist thinking. Article 19(1)(a) should therefore be drafted
as follows:
"1.(a) Quantities of drugs to be consumed for medical, scientific or other
purposes".
Article 21
31. Article 21 of the Single Convention relates to the LIMITATION OF
MANUFACTURE AND IMPORTATION.
As in the case of many other articles of the Single Convention, it is
appropriate to simply add the terms "or other" to paragraph (1)(a) of this
article, in order to adapt it to the anti-prohibitionist approach.
Article 21 would read as follows:
"1.(a) The quantity consumed, within the limit of the relevant estimate,
for medical, scientific or other purposes;"
Article 21 bis
32. Article 21 bis concerns the LIMITATION OF PRODUCTION OF OPIUM.
The drafting of this text, which aims to limit the production of opium to
the needs defined by the estimates, is in no way contrary to
anti-prohibitionist reasoning. The latter may indeed be perfectly satisfied
with the control of the market in opium used for purposes other than
medical or scientific purposes, to avoid smuggling and trafficking. No
change is therefore proposed.
Article 22
33. Article 22 of the Single Convention, concerning the SPECIAL PROVISION
APPLICABLE TO CULTIVATION, is drafted as follows:
"1. Whenever the prevailing conditions in the country or a territory of a
Party render the prohibition of the cultivation of the opium poppy, the
coca bush or the cannabis plant the most suitable measure, in its opinion,
for protecting the public health and welfare and preventing the diversion
of drugs into the illicit traffic, the Party concerned shall prohibit
cultivation.
2. A Party prohibiting cultivation of the opium poppy or the cannabis plant
shall take appropriate measures to seize any plants illicitly cultivated
and to destroy them, except for small quantities required by the Party for
scientific or research purposes."
34. This provision, which allows a contracting Party to prohibit the
cultivation of opium poppies, of the coca bush and of cannabis, is
obviously incompatible with anti-prohibitionist thinking. It injures
farmers of the third world, without really protecting public health. For
this reason it is proposed that the prohibition on cultivation be replaced
by its control. Such a control is, moreover, provided for in respect of
opium by article 23, in respect of the coca bush by article 26, and in
respect of cannabis by article 27. It is appropriate therefore purely and
simply to delete article 22 from the Single Convention.
Articles 23 to 25
35. Articles 23 to 25 concern the CONDITIONS OF CULTIVATION AND PRODUCTION
OF OPIUM AND POPPY STRAW.
These articles, which establish forms of control of cultivation, are
perfectly compatible with an anti-prohibitionist approach.No modification
is necessary. Indeed, it provides for resort to be had to state monopolies
to control areas and plots under cultivation, to grant permits to cultivate
and to buy the complete harvest of opium and poppy straw, all under
conditions designed to prevent diversion into contraband and to ensure an
adequate standard of living for the producers. Such objectives are equally
desirable in a system of controlled legalization, aiming to keep contraband
in check.
Articles 26 and 27
36. Articles 26 and 27 of the Single Convention relate to the regime for
THE COCA BUSH AND COCA LEAVES.
These articles are designed to apply the regime for the cultivation and
production of opium to coca leaf. The assimilation of the treatment of the
coca leaf with that of opium is somewhat debatable, in so far as the coca
leaf does not lead to drug addiction. Nevertheless, it has been seen that,
in a system of controlled legalization, it is perfectly conceivable that
one will resort to production and distribution monopolies in order to
ensure that producers and growers receive a sufficient income and to fight
smuggling. These articles can therefore be retained in their present state.
However, it is not possible to retain article 26(2), which recommends to
the contracting Parties that they proceed with "the uprooting of all coca
bushes which grow wild". This measure, difficult to enforce, is moreover an
attack on the imprescriptible rights of every State to control its own
natural resources. It makes the Single Convention an iniquitous convention.
For all that, in a system of controlled legalization, without the
international community imposing it, the State possessing the monopoly
would have an interest in avoiding competition from wild cultivation and
hence in destroying coca bushes cultivated illegally, that is to say,
plants outside the monopoly.
It is therefore proposed that article 26(2) be drafted in the following
way:
"2. The Parties shall so far as possible enforce the uprooting of all coca
bushes which are illegally cultivated."
Article 28
37. ARTICLE 28 OF THE SINGLE CONVENTION RELATES TO THE CONTROL OF CANNABIS.
This text provides that the regime for the cultivation and production of
opium and the coca leaf be applied to cannabis. On this basis, there is no
need to modify it, as it has already been seen that this regime is
compatible with anti-prohibitionist logic.
Article 29
38. Article 29 of the Single Convention concerns MANUFACTURE.
There is no need to modify this text, which establishes an administrative
control over persons and enterprises which engage in the manufacture of
drugs, because it conforms to the demands of a system of controlled
legalization.
Article 30
39. Article 30 of the Single Convention relates to TRADE AND DISTRIBUTION.
This article provides for the regulation of trade in and distribution of
drugs used for medical or scientific purposes. It provides, therefore, that
the Parties may require "medical prescriptions for the supply or
dispensation of drugs to individuals", and even "officials [sic] forms to
be issued in the form of counterfoil books".
These requirements are obviously only understandable if the substances in
question are consumed for medical or scientific purposes. The supply of
drugs in accordance with prescriptions, or in accordance with counterfoil
books, for purposes other than medical purposes is conceivable, but does
not seem to be an appropriate mode of distribution for recreational
consumption, in essence non-medical. It is thus proposed that these
controls be reserved for medical and scientific uses, and therefore only
for drugs in Schedule II.
Article 30(2)(b) should therefore be drafted as follows:
"b) (i) Require medical prescriptions for the supply or dispensation of
drugs used for medical purposes to individuals. This requirement need not
apply to such drugs as individuals may lawfully obtain, use, dispense or
administer in connexion with their duly authorized therapeutic functions;
and
(ii) If the Parties deem these measures necessary or desirable, require
that prescriptions for drugs in Schedule II should be written on officials
[sic] forms to be issued in the form of counterfoil books by the competent
governmental authorities or by authorized professional associations."
Article 31
40. Article 31 of the Single Convention concerns to SPECIAL PROVISIONS
RELATING TO INTERNATIONAL TRADE.
The text of this article, which is the longest in the Single Convention,
requires no particular comment. It may perfectly well be retained in its
present state in a system of controlled legalization. It allows the
supervision of the international trade in drugs by mechanisms
(authorization, certificates) whose effectiveness has been proven. And what
is effective for the control of trade for medical or scientific purposes
could be equally as effective for the control of trade for recreational or
other purposes.
Article 32
41. ARTICLE 32 OF THE SINGLE CONVENTION RELATES TO FIRST-AID KITS.
No modification of this purely technical text is necessary.
Article 33
42. Article 33 of the Single Convention concerning the POSSESSION OF DRUGS
reads as follows:
"The Parties shall not permit the possession of drugs except under legal
authority."
This text, which, in contrast to Article 31, is the shortest of the
Convention, nevertheless deserves clarification. Controversy has arisen
over it, and in particular over the meaning to be given to the word
"possession". Certain governments consider that the type of possession in
question is only possession for the purposes of distribution and not mere
possession for use. The official Commentary suggests that in any event,
even if possession for use is to be a criminal offense, it only deserves
minor punishment, such as a fine.
Nevertheless, even thus amended, this definition is in contradiction with
anti-prohibitionist thinking, which could not agree to any penalty
whatsoever for the possession of drugs permitted for personal consumption.
One can, on the other hand, quite readily accept that public use or use
while driving might be forbidden in so far as it would be dangerous for
other people. This is particularly the case with respect to the use of
substances in Schedule IV. It is therefore proposed that article 33 be
amended as follows:
"1. The Parties shall not permit the possession or use of drugs included in
Schedule IV except under legal authority.
2. The Parties may prohibit the use of drugs in certain circumstances, but
only where such use degenerates into abuse which is harmful to society or
dangerous for third parties."
Article 34
43. Article 34 of the Single Convention concerns MEASURES OF SUPERVISION
AND INSPECTION.
This text, which is essentially technical in character, requires no
modification. It can therefore be retained in its present state.
Article 35, 36 and 37
44. ARTICLES 35, 36 AND 37 OF THE SINGLE CONVENTION ARE DEVOTED TO
REPRESSIVE PROVISIONS.
The first establishes a system of international cooperation in ACTION
AGAINST THE ILLICIT TRAFFIC, the second invites the contracting Parties to
adopt PENAL PROVISIONS, and the third relates to SEIZURE AND CONFISCATION.
While the first and last of these three articles do not require particular
comment in so far as they are limited to ensuring coordination of
preventative and repressive measures against illicit traffic in drugs and
to providing for the possibility of seizing the drugs which are being
trafficked, the same cannot be said for the second article, concerning
penal provisions (art. 36). Indeed, the inclusion in an international
treaty of penal provisions creates a problem of both competence and
substance.
In relation to the competence to define offences and inflict punishments,
it is a principle of international criminal law that this is a matter
solely within the powers of a State. An international treaty cannot thus
establish any sort of criminal rule, this being reserved to the contracting
Parties. This principle is, moreover, reaffirmed by article 36 of the
Single Convention which provides in its last paragraphs:
"3. The provisions of this article shall be subject to the provisions of
the criminal law of the Party concerned on questions of jurisdiction.
4. Nothing contained in this article shall affect the principle that the
offences to which it refers shall be defined, prosecuted and punished in
conformity with the domestic law of a Party."
This somewhat sibylline language requires further clarification. A
distinction is normally made between treaties of direct applicability,
referred to as "self-executing", and treaties of indirect applicability,
referred to as "executory treaties", the latter of which only impose
obligations on States, but are not directly or immediately enforceable. The
Single Convention is without doubt an executory treaty, even if certain
courts, particularly French ones, have held to the contrary. In spite of
this dissenting case law, the answer to the legal question is in no doubt.
Only the contracting Parties are competent to decree criminal standards on
their own territory.
With respect to the substance, that is to say the very content of the
offences and punishments proposed by the drafters of the Single Convention,
the question is to know whether the contracting Parties are free or not to
adopt provisions less strict than those in the Single Convention. While
there is no doubt that they are able to adopt measures which are stricter
(see article 39 of the Single Convention), the opposite is less clear. The
fact of having ratified the Treaty implies an obligation to define criminal
sanctions which are compatible with the provisions of the Convention.
Article 36(1)(a) provides in this respect that "each Party shall adopt such
measures as will ensure that cultivation, production, manufacture,
extraction, preparation, possession, offering, offering for sale,
distribution, purchase, sale, delivery on any terms whatsoever, brokerage,
dispatch, dispatch in transit, transport, importation and exportation of
drugs contrary to the provisions of this Convention" shall be punishable
offences. This wording therefore obliges the Parties to criminalise the
activities referred to, without requiring that the punishment necessarily
be very strict, as the text only refers to "adequate punishment", which can
"particularly" be "imprisonment".
With respect to offences, the list in paragraph 1(a) is, at one and the
same time, redundant, too long and incomplete. Thus one has difficulty in
seeing the point of criminalising "offering for sale", on the one hand, and
"sale", on the other, "dispatch in transit", on one side and "transport" on
the other. Moreover, the imprecision of the term "possession" has already
been discussed in relation to article 33. This term does not differentiate
between possession for personal consumption or for trafficking (even though
in the context of article 36 the second interpretation appears the most
suitable). Finally, the text criminalises neither conspiracy, nor
laundering, nor incitement to use or to traffic, which are criminalised in
article 3 of the Vienna Convention of 1988.
The latter provides indeed that "Each Party shall adopt such measures as
may be necessary to establish as criminal offences under its domestic law,
when committed intentionally:
(b) (i) The conversion or transfer of property, knowing that such property
is derived from any offence or offences established in accordance with
subparagraph (a) of this paragraph, or from an act of participation in such
offence or offences, for the purpose of concealing or disguising the
illicit origin of the property or of assisting any person who is involved
in the commission of such an offence or offences to evade the legal
consequences of his actions;
(ii) The concealment or disguise of the true nature, source, location,
disposition, movement, rights with respect to, or ownership of property,
knowing that such property is derived from an offence or offences
established in accordance with subparagraph (a) of this paragraph or from
an act of participation in such an offence or offences ...
(c) (iii) Publicly inciting or inducing others, by any means, to commit any
of the offences established in accordance with this article or to use
narcotic drugs or psychotropic substances illicitly;
(iv) Participation in, association or conspiracy to commit, attempts to
commit and aiding, abetting, facilitating and counselling the commission of
any of the offences established in accordance with this article."
It is possible to refer to these activities in a more concise manner by
criminalising "money laundering", "conspiracy" and "incitement to use or to
traffic" in the future Single Convention. One could also add "contraband",
which should gradually replace trafficking in a system of controlled
legalization.
In conclusion, article 36(1) could be drafted as follows:
"1. (a) Subject to its constitutional limitations, each Party shall adopt
such measures as will ensure that cultivation, production, manufacture,
extraction, preparation, offering, incitement to use, distribution,
purchase, sale, delivery on any terms whatsoever, brokerage, dispatch,
transport, contraband, importation and exportation contrary to the
provisions of this Convention, conspiracy to commit an offence and the
"laundering" of the proceeds of an offence or any other action which in the
opinion of such Party may be contrary to the provisions of this Convention,
shall be punishable offences when committed intentionally, and that serious
offences shall be liable to adequate punishment particularly by
imprisonment or other penalties of deprivation of liberty."
Article 38
45. Article 38 of the Single Convention relates to MEASURES AGAINST THE
ABUSE OF DRUGS.
This text relating to the treatment of drug addicts requires no
modification.
Articles 38 bis to 51
46. The provisions from article 38 bis to article 51 of the Single
Convention only set out technical or procedural rules regulating the
TERRITORIAL APPLICATION of the Single Convention (art. 38 bis, 42 and 43),
its TEMPORAL APPLICATION - INCLUDING THE ABROGATION OF EARLIER CONVENTIONS
IN THE FIELD (art. 41, 44 and 45), the possibility of DENUNCIATION (art.
46), of AMENDMENT (art. 47) and of RESERVATIONS (art.49 and 50), as well as
the SETTLEMENT OF DISPUTES BETWEEN PARTIES (art. 48) and the LANGUAGE OF
THE CONVENTION (art. 40). One may recall that in relation to RESERVATIONS,
the deletion of paragraph 2 of article 49 has already been proposed in
order to make definitive the TRANSITIONAL reservations for the benefit of
traditional cultivations definitive.
C. TOWARDS A PARLIAMENTARY CAMPAIGN OF DENUNCIATION
AND AMENDMENT: PROPOSED INITIATIVES
The legal reference framework
47. As we have seen, it is therefore quite possible for a State or a group
of States to deposit amendments to one or another of the articles of the UN
Conventions on narcotic drugs, and even to purely and simply denounce these
Conventions.
Denunciation is a unilateral act whereby a contracting party withdraws from
a Convention intending no longer to be bound by its provisions. It is
therefore an act with strong political overtones but which is not in itself
able to generate a substantive debate on the reasons for the denunciation
of a Convention. This is a purely negative action which lacks a positive
dimension whereby the outlines of an alternative policy in respect of drugs
would be presented.
Certainly, the denunciation of a Convention by a State or by a group of
States would act as an announcement and reinforce the possibility that
other States might adopt a similar attitude. But, for all that, the
Convention itself would not be reexamined, unless the number of signatory
States falls below the minimum threshold necessary for a Convention to
remain in force.
It is for these reasons that it does not seem to us to be suitable to begin
a campaign of denunciation from the 1961 and 1971 Conventions. Indeed,
while, on the one hand, it is objectively difficult to reduce the number of
signatory States to below the threshold provided for, on the other hand,
this strategy would not allow the concurrent presentation of an alternative
international legal framework to the Conventions to be abolished. If these
considerations are correct, then the method of denunciation is to be
excluded with respect to these two Conventions and only the method of
amendment remains practicable.
Denunciation of the 1988 Vienna Convention
48. The situation is quite different with respect to the 1988 Vienna
Convention. This Convention is not capable of being suitably amended from
the antiprohibitionist perspective for the simple reason that, conceived to
combat illicit trafficking, it is based on a strengthening of prohibition,
including prohibition of consumption, even going as far as to recommend the
reversal of the burden of proof for persons suspected of possessing
prohibited substances. This means, therefore, that, as has been described
above, the denunciation of the Convention by the contracting States in
accordance with its article 30 is one of the major objectives of the
campaign.
Amendment of the Single Convention of 1961
49. The technique of amendment is important for two reasons:
a. it is a concrete approach which enables direct modification of the bases
of a policy which has demonstrated its failure;
b. it allows the triggering of the procedures provided for in the
Convention, even if a single amendment is presented by a single State.
These procedures may lead to the calling of an international conference on
the contents of the amendment.
Since it is legitimate to suppose that the competent Bodies provided for by
the Convention will probably not choose the procedure which allows an
amendment to be considered as adopted after an allowed period of 18 months,
one can reasonably expect that the chosen procedure will be the calling of
a Conference charged with examining the proposed amendment.
This method has a triple advantage:
- it opens up the possibility of amending the Convention without the
control bodies being able to vet the amendment in any way;
- it is applicable at any time;
- it allows one to coordinate the deposit of different amendments by
different States, which would at once show the urgency of going ahead with
a global overhaul of the Convention and create the conditions for the
beginning of the substantive debate without which no international
Conference would be able to decide on a substantial change to the
Convention.
Indeed, the central and innovative feature of this approach is to begin
with the method of amendment provided for by the Convention and to end up
with the calling of an international forum having the authority, the powers
and the mandate, on the one hand to draw up the balance sheet for thirty
years of prohibitionist policy and, on the other hand, to define the basic
features of a possible new policy, based on the deposited amendments.
Thus, rather than creating the conditions under which one or another State
would deposit all the amendments set out above, it would be appropriate to
encourage a combined deposit by the greatest possible number of States of
the amendments which best correspond to their specific situation.
The key amendments
50. The key amendments can be grouped in two broad categories.
A. The first includes the amendments which aim to ensure that the licit
market for narcotic drugs covers, in addition to the medical and scientific
uses currently foreseen, "other" uses (recreational).
The introduction, in the central point of the Single Convention, of the
word "other" or "recreational" would automatically and radically modify its
effect because it would legalize the market corresponding to these uses.
This would not affect the provisions in force which deal with international
surveillance, nor with those designed to prevent and combat abuses and
illicit traffic in these substances (contraband or smuggling). Neither
would this broadening of the scope of licit uses include certain drugs
whose mere use may constitute a danger not only for the consumer but also
for third persons. For the latter, the regime of prohibition would remain
in force.
B. The second category of amendments is intended to modify the
classification of one or another substance. Thus, amendments could be
introduced either to move a substance from one Schedule for the
classification of narcotic substances to another Schedule, or to remove it
from the list of controlled substances altogether, or to transfer it from
the 1961 Convention on narcotic drugs to the 1971 Convention on
psychotropic substances.
Thus, for example, in relation to cannabis and the coca leaf, transfer to
another Schedule would enable the reestablishment of a hierarchy of
substances which would be more in accordance with the notion that drugs
should be defined as a function of the strength of the physical dependence
which they engender.
These are in essence the two groups of amendments - modification of the
scope of the markets and redefinition of classifications - which would
allow revision of this Convention in an antiprohibitionist manner.
The characteristics of the campaign
51. An international campaign on this matter should necessarily begin
within the Parliaments. Indeed, since it is the Parliaments which have, in
their time, ratified these Conventions, it is logical that they can demand
their respective governments to reconsider the content of the Conventions.
>From this point of view, the strategy which is adopted should involve the
development of the text for a parliamentary motion which could subsequently
be deposited simultaneously in different parliaments.
The outlines of such a motion could be as follows:
* a statement of motives containing:
- the main arguments showing the failure of the prohibitionist regime;
- a report highlighting how the foundation of the drug policies currently
in force is established in the UN Conventions;
- a conclusion recommending that the UN Conventions be superceded.
* a disposition including:
- a demand that the government deposit one or several amendments to the
Single Convention of 1961;
- a demand that the government denounce the 1988 Vienna Convention;
- the text of the amendment(s) which the Parliament wishes the government
to deposit.
Conclusion
52. As we have seen, the act of depositing amendments and/or denunciation
by a government does not of itself represent the introduction of an
antiprohibitionist system in place of the present regime.
These actions, which identify the failure of the system in force, are
limited to allowing the debate to be opened through the calling of an
international conference.
It is undeniable that, if a parliamentary initiative to this effect was
introduced in several parliaments and reflected in public opinion, it could
quickly lead to the adoption of motions in this direction and thus
represent the first decisive step towards moving beyond the current
situation through the development of new UN Conventions and, consequently,
the adoption of a new international drug policy.
