ABSTRACT: A comment on the relation between the 1961 Single Convention on drugs and the national legislations on the personal use of drugs.

To tackle the problem, it is first of all necessary to analyse the 1961 Convention.

1961 Single Convention

The 1961 Single Convention in Art. 36 (Penal measures) thus formulates the criteria for punishability:

"Par.1 - Subject to its constitutional limitations, each Part will adopt such measures in order to ensure that the cultivation, the production [...], the possession, [...] the purchase, the sale, the importation and the exportation of drugs [...] are punishable offences [...]"

Hence:

a) as a matter of principle, the purchase and the possession of drugs are considered punishable offences;

b) the punishability is subjected to the compatibility with the "constitutional limitations" of the respective states.

A further reference to the compatibility with the national regulations is contained in Par. 4 of the same art. 36:

"Nothing of what is contained in this article can contravene the principle according to which the offences mentioned must be defined, tried and punished in conformity with the national laws of the Parts"

1988 Single Convention

In art. 2 (Purpose of the Convention) the following is prescribed:

"1. [...] the Parts will take the necessary measures, including the legislative and administrative ones, in conformity with the fundamental principles of the respective legislative systems.

2. The Parts will enforce their obligations [...] coherently with the principles of sovereignty and territorial integrity of the States and of non-interference in the domestic affairs of other States".

Art. 3 (Offences and sanctions) prescribes the following:

"Par.1 - Each Part will adopt the measures that can be necessary to consider the following, if committed intentionally, in conformity with its national law, as penal offences:

(a) (i) the production, manufacture, extraction, preparation, offer, sale, distribution, shipping under any circumstance, despatch, despatch in transit, transport, importation or exportation of narcotic drugs or psychotropic substances [...];

(ii) the cultivation of opium poppy, coca plants or cannabis plants aimed at the production of narcotic substances [...];

(iii) the possession or the purchase [...] aimed at any one of the activities listed in point (i)".

(Editor's note: Art.3, Par.1 therefore compels the Parts - albeit with the restrictions listed in Art.2 - to consider the possession and the purchase of drugs as penal offences ONLY IF THEY ARE AIMED AT THE TRAFFIC OR THE SALE)

"Par.2 - Subject to its constitutional limitations and to the fundamental concepts of its legal system, each Part will adopt the necessary measures to consider a penal offence in conformity with its national law [...] the possession, the purchase or the cultivation of narcotic drugs for personal consumption"

(Editor's note: Par.2 specifically concerns the possession, the purchase and the cultivation for PERSONAL USE, CONTRARY TO WHAT HAD BEEN FORMULATED FOR THE OFFENCES LISTED IN THE PREVIOUS SUBPARAGRAPH (a); the fact that the "cultivation" is also included proves that the "cultivation" mentioned in par.1, subpar. (a)(iii) must be intended as "cultivation for non-personal use".

Finally, according to Par.11 of Art.3,

"Nothing of what is contained in this article can contravene the principle according to which the definition of the offences it is referred to is reserved to the national law of the Parts, and that such offences will be tried and punished in conformity with such law".

It is evident that in the 1988 Single Convention the rights of the single states to conform to the national laws are formulated in a broader and more articulated manner with respect to the 1961 Single Convention. It envisages two levels of adapting the penal measures to the national legislations:

1) Art.2 formulate a more generic compulsion - relative to the "fundamental principles of the respective legislative systems" - applicable to all penal sanctions.

2) Art.3, Par.2 formulates a more specific compulsion - the "subjection to the constitutional principles and to the fundamental concepts" of the respective "legal systems" - for offences relative to the possession, the purchase or the cultivation of drugs for personal use.

As for the sanctions relative to the possession, purchase and cultivation aimed at a personal use, the 1988 Single Convention cannot therefore be considered compelling with respect to the national legislations.

The fact that the CULTIVATION FOR PERSONAL USE is considered equivalent to the possession could justify the homologation of the cultivation of cannabis to the possession of the substance with respect to the national legislation.

According to Art.31, the 1988 Single Convention is open to the amendments of the member states. This implicitly means that no one of its part can be considered absolutely compelling.

Secretariat of the CORA (g.a.)