Gianfranco Dell'Alba, Co-ordinator of the International Antiprohibitionist League;

Olivier Dupuis, President of General Council of the Radical Party;

Jean-Luc Robert, Parliamentary Assistant, European Parliament.

Introduction

The war against drugs has definitely been lost. The failure of the prohibitionist regime is now recognized by many officials as well as by an ever-increasing proportion of public opinion.

The consequences are serious. The police force and customs service only manage to seize between 5 and 10% of the total volume of drugs in circulation, volume which is, moreover, constantly increasing. The price of heroin increases 1700-fold between its production and its retail sale. Currently the price of a gram is worth ten times as much as the price of a gram of gold.

There is no room for doubt. Prohibition has made drug trafficking the most profitable business on the planet and is the major reason for the growth of the phenomenon. Never in peace time has a legal regime been so flouted nor caused such a disaster.

The effectiveness of the protectionist policy has already been considerably strengthened over the last twenty years, but it would probably be necessary to increase it tenfold again in order to strike a blow to the drug traffic which would be, if not fatal, at least significant.

This observation, although brief, is consistent with an approach which has been considerably refined and developed over thirty years, in parallel with the evolution of the phenomenon and the degradation of the situation.

From individual liberties to the protection of democracy

At the beginning of the 1960s, drug use was restricted to a few limited groups, and in Europe, did not represent a problem for society. No more than in the United States, where its spread, although a little wider, was still marginal. It is however in this period, and more precisely in 1961 with the adoption of the Single Convention on Narcotic Drugs (hereafter the Single Convention), that the prohibitionist approach achieved a decisive success, following which the UN has continuously reinforced its pressure and control until it reached the point, with the adoption of the Vienna Convention of 1988 on illicit traffick (hereafter the 1988 Convention), where it sanctioned on a global level the concept of "war against drugs", ultimate stage of prohibitionism.

As the drug market expanded and, above all, as the consumption of heroin exploded, considerations which were essentially criminological, socio-sanitary, economic and institutional in nature revealed the reasons for the failure of the regime. These considerations tended to show that prohibitionism is based not only on highly questionable principles but that, even worse, far from leading to the attainment of the specified objectives, it is at the origin of a whole series of secondary effects which are more numerous and often much more serious than the problem which it is supposed to be addressing.

It is therefore appropriate to briefly review the fundamental criticisms of the prohibitionist regime and its consequences, before proposing an alternative model based on legalization.

Consequences of prohibitionism

In economic terms, with an annual turnover estimated by the UN at 500 billion dollars, the criminal groups which manage the illegal drug traffick, organized on a global scale, infiltrate, corrupt and even destabilize the highest spheres of economic, financial, political and media power of both producer and consumer countries. Such power enables the different cartels, triads, mafias or other organizations to influence political decisions so as to maintain or reinforce the present regime. Furthermore, the enormous profits of drug trafficking lead to massive investments in economic and financial systems, to the point where entire sections of the legal economy are now and henceforth in the hands of organized crime.

In social and economic terms, prohibition and repression, by confining drug consumers to the margins, excludes them from medical or social services. Such a situation encourages unsafe activities and, consequently, the spread of infectious diseases among drug addicts, and from the drug addicts into the non-addicted part of the population. Illegality is also responsible for the poor quality of the substances on the market which, it should be remembered, are not controlled at all, leading to well-known consequences, and in particular overdoses.

In judicial and criminal terms, of the most serious consequences, we may refer in particular to the reversal of the burden of proof, the increase of the length of police custody, searches without warrant, the overloading of the judicial system, telephone tapping, "controlled" deliveries, the extension of preventative detention, the crowding of prisons, etc. Furthermore, prohibitionism has encouraged the development of urban delinquency to such a level that more than two thirds of offences committed in the large agglomerations are linked to drugs or, more precisely, to the drug laws. All citizens, particularly the weakest, then become the potential victims of this micro-criminality.

In terms of human resources finally, one notes the development of an anti-drug bureaucracy which has ever-increasing resources, as well as the development, often free from any control, of a market - and hence of interests - in "disintoxication".

The fundamental criticism of the economic consequences of prohibitionism deserves closer examination because, conceptually, once prohibitionism has shown itself to be the vehicle for the augmentation of trafficking and of the consumption of prohibited drugs, one can no longer claim that these are perverse effects or collateral consequences which must be accepted as a necessary evil in order to avoid a worse evil. On the contrary, once it has been established that the prohibitionist system is responsible for the increasing spread of drugs, the whole structure collapses, its very foundations undermined.

Nobody disagrees that the drug regime, like any prohibition, is responsible for the very high price of drugs on the "market". This is a result of what is known as the "crime tariff" or the "criminalization tax", a type of risk premium which the trafficker awards himself. Such large profit margins are a sufficient attraction to ensure that there will always be people prepared to brave the risks and ensure the distribution of the prohibited substances. Conversely and paradoxically, at the level of the consumer, the setting of unattainably high prices, far from serving as an obstacle, acts as the very motor for the development of the market. Indeed, the combined operation of the "criminalization tax" and "multi-level marketing" shows itself to be impressively efficient in the drug market because it creates a system where the drug addicts are forced, in order to finance their own consumption, to themselves become resellers and, consequently, to recruit a clientele constantly increasing in number for products whi

ch are more and more adulterated. This is without referring to the "forced" recourse to theft and prostitution.

This is one, and not the least, of the paradoxes of prohibitionism: it creates an artificial scarcity of a very plentiful product whose prohibitive price is the very engine of the increase in clientele. In fact, the drug economy seems to be a very responsive system which combines the positive aspects of monopoly and competition, while rejecting the respective constraints and faults, in order to maximize profits and increase demand endlessly. Such are the principal consequences which militate for one to go beyond the model imposed by the international Conventions of the United Nations.

The antiprohibitionist option

In the face of a regime which has been in force for thirty years, a school of thought has progressively developed advocating an antiprohibitionist doctrine in relation to drugs. This doctrine is based on the general principle of law whereby the State may not forbid and repress an activity which does not harm another person (crime without a victim). The anti-prohibitionist school has developed models providing for a regime of legality for drugs, aiming both to change the direction of, and even to restrain the distribution of drugs, and to reduce the perverse effects of the existing regime. Approaches to the possibility of legalization advocate differing degrees of such legalization and may be seen as falling within three principal categories, which are, moreover, not always clearly distinguishable: the medical model, the model of passive trade and the liberal model.

The medical model is certainly the least revolutionary. It is the one which is the closest to the present regime. It consists of entrusting exclusively to doctors the right to prescribe substances which are now prohibited. Drastic limitations are envisaged, such as, in relation to heroin, the delivery to the pharmacy of very small, non injectable quantities which are to be consumed, if needed, on the spot. The critics of this theory claim that it is limited to replacing the criminalization of an activity by its medicalization. It nevertheless has the merit of being reassuring for public opinion.

The model of passive trade recommends the creation, in each country, of a State monopoly responsible for the production, processing, import and marketing of the substances currently prohibited. It aims to ensure the availability of such substances to users while forbidding any form of promotion of the market.

The liberal model leaves to market forces, in particular to those of supply and demand, the responsibility of establishing the availability, price and variety of substances offered.

In fact, the most balanced model seems to be a form of compromise between these different approaches which also develops them further. Indeed, although the antiprohibitionists are largely of one mind in recognizing that the movement from the present regime to a regime of legalization must involve a rupture so as to strike a decisive blow to the black market, drugs must nevertheless undergo a process of domestication. It is for these reasons that it must doubtlessly not be excluded that a substance may, in the first place, be sold at a pharmacy on medical prescription and then become subject, after several years, to a much more flexible regime. Nevertheless, in relation to cannabis and its derivatives, it seems clear that there already exists a wide consensus for the establishment of regulations similar to those in force for tobacco and alcohol, that is to say, free sale subject to certain restrictions such as the absolute prohibition of advertising and sale to minors.

As for hard drugs, such as heroin and cocaine, they would be able to be sold at a pharmacy by medical prescription. In this event, doctors should of course be authorized to prescribe maintenance programs whilst medico-health organizations should be able to provide the supervision of addicts and consumers. The prices of the substances should fall within the zone of equilibrium between the need to discourage consumption and the need not to induce a parallel market.

The whole process, from the manufacture to the retail sale (and not solely this final stage), should be regulated so as to reduce not only the health and social damage to and by addicts but also the civil damage and the undermining of democracy and its institutions.

Beginning with a fundamental criticism of the principles of prohibitionism and its consequences, the evolution of antiprohibitionism has lead to the elaboration of alternative models aiming to bring solutions which will be more viable for society and more effective for consumers. In parallel with the theoretical evolution of antiprohibitionism, an inductive and pragmatic movement has developed aiming for the drug-related harm reduction. At the conceptual level, this movement asserts that one should no longer consider drugs as an absolute evil which must be eradicated at any price but as a phenomenon which, whether one wishes or not, is part of reality and which must be controlled so as to be as acceptable as possible. In other words, one replaces the goal of abstinence with that of damage reduction.

The harm reduction movement has experienced such popularity that henceforth - and in particular since the sudden awareness by the political class of the explosion of AIDS - this policy extends beyond the context of a few large European cities which conceived it and begins to be the course of conduct of several European governments.

This change has a quite revolutionary character because it is equivalent to a recognition of the failure of the strategy of repression and the abandonment of one of the founding dogmas of prohibition according to which there is no middle road to the goal of severance.

One must not, however, be too optimistic. In the first place this is because the policy of "harm reduction" is necessarily confined within the limits set down by the UN Conventions of 1961, 1971 and 1988. It can therefore bring tangible solutions to the health and social situation of drug addicts, as well as to the reduction of petty crime. It has, however, almost no effect on the clandestine organization of the market and on most of the consequences which such organization brings. Moreover, it may confuse public opinion, which may associate the increase in consumption and criminality which results from it with a tolerant attitude of the authorities towards drug addicts. Finally, this policy runs the risk of acting as a cover for governments which, faced with the need to demonstrate a certain effectiveness and involvement, do not, however, wish to challenge the prohibitionist regime in force.

The policy of "harm reduction", like the campaign for the decriminalization of cannabis and its derivatives, therefore only achieves its full potential if it is part of a more global strategy of controlled legalization of all drugs. This is a necessity which has recently undergone important and sometimes unexpected developments. For example, one may point to the Appeal to the new Clinton administration to stop the war on drugs, promoted by people such as Milton Friedman and Joseph McNamara, the Manifesto of Garcia Marquez, supported by many Spanish and Latin-American personalities, which appeared in the Spanish weekly Cambio 16, the birth in France of the Mouvement pour la Légalisation Contrôlée (MLC), the ever-increasing number of declarations by men and women at grass roots level such as, for example, those by Raymond Kendall, Secretary General of Interpol who recently announced that he was in favour of the decriminalization of all drugs, without overlooking the many editorials in prestigious magazines suc

h as the Independent or the Economist, or international conferences such as those held in Baltimore and Washington in November 1993.

But in parallel with this broadening of awareness, it appears more and more clearly that it is the UN Conventions that are the major obstacle to the adoption of antiprohibitionist legislation. Indeed, today States are prohibitionist because they gather around the provisions of the UN Conventions on narcotic drugs and, in particular, the Single Convention. The United Nations is prohibitionist ... because it applies the Conventions chosen by the member States.

This is a situation which is paradoxical if not perverted, and one from which the United Nations and the signatory States cannot escape other than by going beyond the present Conventions. The following analysis attempts to provide the first elements in response to this task.

In order to do this, we present in the first place the summary of a report (1) developed by the International Antiprohibitionist League, on the possibilities for amending or repealing, through the adoption of adequate legal measures, the Conventions of 1961 and 1988. In a second part, we sketch out, based on these thoughts, some hypotheses for parliamentary and political initiatives.

Examination of the possibilities for amending and/or repealing the UN Conventions

Introduction

Drug policies are determined at the international level by three United Nations Conventions: the Single Convention on narcotic drugs of 1961, the Convention on psychotropic substances of 1971 and the Vienna Convention against the illicit traffick of narcotic substances of 1988.

The Single Convention on narcotic drugs of 1961 is an international treaty whose purpose is to prevent and combat the scourge of drug addiction by means of coordinated and universal action. It has rendered null and void all the preceding Conventions in the area.

In the Preamble to the Convention, as well as in the actual text of the Treaty (art. 4), it states that the "possession, use, trade in, distribution, import, export, manufacture and the production of drugs is exclusively limited to medical and scientific purposes". In simple terms, the international text is the basis for the prohibition and repression of illicit drugs at the global level.

In order to arrive at this result the Parties to the Convention, who state in the Preamble that they are "concerned with the health and welfare of mankind", have established guiding principles, the implementation of which is entrusted to international control organs.

Essentially, the text provides for two complementary forms of intervention and control: the first, which is of a preventative nature concerns the licit, scientific and medical market; the second, of a repressive nature, concerns illicit traffic, drug abuse and drug addiction. Prevention is essentially aimed at avoiding diversions from medical or scientific channels into illicit traffic. Repression consists in establishing an international penal cooperation so as to punish and discourage drug traffickers.

Control of the licit market is based on a set of national and international preventive measures, which apply to substances classified as narcotic drugs (art. 2 and 3). These measures oblige the States to provide to the control organs, the Commission on Narcotic Drugs of the Economic and Social Council and the International Narcotics Control Board (art. 5 to 18), estimates of national drug requirements (art. 19), production statistics (art. 20) and regular reports intended to inform them of the situation in their country. These instruments allow the definition of a policy of manufacture (art. 29), import (art.21), export (art.31) and distribution (art. 30), exclusively limited to medical and scientific requirements. This policy is implemented at the national level by State enterprises for manufactured narcotic drugs as in the retail trade (art. 29). Provisions peculiar to the cultivation of the opium poppy, coca leaf and cannabis (art. 23 to 28) supplement the measures for agricultural raw materials.

Control of illicit traffic should, according to the Convention, begin by controlling cultivation. The illicit production of the opium poppy, coca leaf and cannabis is the major source of drug traffic. Unable to intervene at the source, international law hopes to discourage it by repressive measures aimed at dissuading drug traffickers. Three provisions to this effect are set out in the Single Convention: a recommendation to the States that serious offenses in matters of drug trafficking are liable to "adequate" punishment (art. 36), a measure relating to the confiscation of seized substances (art. 37) and measures for international penal assistance and cooperation, particularly in matters of extradition (art. 35). This cooperation was pushed to an extreme in the Vienna Convention of 1988 against the illicit traffic of narcotic drugs and psychotropic substances. This in fact strengthens the severity of the previous provisions concerning extradition (art. 6), as well as international mutual judicial assista

nce (art. 7), repressive procedures (art. 8) and the provisions relating to illicit cultivation (art. 14), whilst at the same time creating new international crimes (money laundering, incitement, collusion...) and instituting a specific procedure for finding drug traffickers, controlled deliveries (art. 11).

Now one must recognize the historical failure of the Single Convention. Not only has it failed to hold back the increase in drug addiction throughout the world - a comparison of the official figures for consumption and production between 1960 and 1990 is overwhelming in this respect - but furthermore they have brought about a series of perverse effects, referred to above, which are today a source of serious concern for the society.

The basic principles

* The principle of the economy of means

The first principle is the principle of economy of means, which consists in amending the texts of the articles of the Single Convention as little as possible. This principle can be justified for reasons of form, as well as for reasons of substance.

In respect of the form, first of all it is necessary to note that the Single Convention is drafted in a language and by using a technique which is completely anglo-saxon, whose results are not always examples of conciseness and clarity. This fault is taken to an extreme in the Single Convention whereby the concept of "narcotic drug", supposedly at the basis of international control, is not defined by any concept, but solely by reference to a list of more than one hundred substances classified ... as "narcotic drugs"! It is therefore appropriate to restrict oneself to making the minimum necessary amendments in order to redirect it towards an antiprohibitionist outlook.

In respect of the substance, this modesty is especially necessary since the legal origins of the international control are not limited to the Single Convention of 1961. Not only was the latter amended by a 1972 Protocol, but, in addition, it has been complemented and amended by two international texts of great significance: the 1971 Convention on psychotropic substances, and especially the United Nations Convention against the illicit traffic of drugs and psychotropic substances, signed in Vienna in 1988.

The first, which closely resembles the Single Convention, establishes an international control which is clearly less rigorous for psychotropic substances, generally produced by the pharmaceutical industry. The similarity in the drafting of both texts therefore allows the amendments proposed to the Single Convention on narcotic drugs to be transposed, mutatis mutandis, to the Vienna Convention on psychotropic substances. In the present study, one will only note that any amendment to the first is likely to have repercussions on the second, taking into account the overlapping of both texts, in particular in matters of classification. This is a further justification for the principle of economy of means.

On the other hand, the principle of economy of means could not be applied to the Vienna Convention of 1988, which is essentially repressive in function. Adopted in the name of the "war against drugs", this Convention seems to be completely "irrecoverable" from the perspective of antiprohibitionist reasoning (except for a part of its Preamble). The only solution is to request its abolition pure and simple. Furthermore, it is necessary to note that a certain number of countries have up till now refused to accede to it precisely because of its excessive harshness.

Nevertheless, it came into force at the end of 1990 and, as at 31 December 1993, 92 countries had ratified it. To render it null and void, it would be necessary that the States which adhere to it make use of the procedure of denunciation (article 30). In any event, this convention is the "text to be killed off" for all antiprohibitionists, in the same way as in the past, and in the converse sense, the Geneva Convention of 1925 regarding prepared opium was the "pet hate" of the United States, then desirous of imposing their prohibitionist reasoning.

* The principle of returning to the origins

This historic reminder invites the presentation of a second guiding principle of this study: the principle of returning to the origins of international control. One should in fact remember that this control has not always existed, whereas the most consumed narcotic substances (opium, coca, cannabis) have been known of and used for centuries. Even since the beginning of international control, which began with the Hague Convention of 1912, the measures imposed by international law were far from being entirely prohibitionist.

Thus, for example, the Geneva Convention of 11 February 1925, relating to the abolition of trade in and the use of prepared opium was less prohibitive then its title implies. In fact, it allows for systems of production and distribution controlled by State monopolies, which moreover provided substantial financial resources to certain signatory states. Thus, England and France produced and distributed opium in their Indian and Indo-Chinese colonies until the 1950's. With regard to France, it also operated Moroccan and Tunisian state-owned companies dealing in "kif" and "takouri", traditional names for the mixture of tobacco and hashish. In the case of opium, the co-existence of international control with a national distribution system was made possible by the fact that the first international Conventions do not clearly set out the principle of limitation to exclusively medical or scientific purposes. Thus article 9 of the Hague Convention of 1912 provided that the Parties must limit the use of drugs to medica

l and "legitimate" purposes only; however the meaning of this term leaves a wide latitude for interpretation.

It is only since the 193Os that, under pressure from the United States, the Geneva Convention of 1931 clearly established, for the first time, the principle of the limitation of drugs exclusively to medical and scientific purposes (art. 4). We have seen that the prohibitionist and repressive system was a result of this principle (supra n1). So much so that by forbidding all use of narcotic substances other than for medical purposes, the 1931 treaty amended in an historic fashion the effect of international control.

Conversely, if one refers back to the origins of international control, it is sufficient, to end this limitation and return to the previous state of law in which this control was compatible with systems for the distribution of drugs, to add the words "or others" to the text which limits this use exclusively to "medical or scientific purposes". The addition of the words "or others" changes everything. The limitation then applies to "medical, scientific or other purposes", which allows recreational purposes, if not drug addiction. However, this does not prevent the fight against drug addiction in accordance with the aims of the Single Convention, by qualifying the importance of the principle of the return to the origins by the idea of the necessity for an international control of drugs.

* The principle of adaptation

A last principle of this study is precisely the principle of adapting the Single Convention to the antiprohibitionist reasoning. Though this may seem paradoxical, the prohibitionist and antiprohibitionist reasoning, a priori in contradiction, may be complementary. Clearly it would be better to propose a reorientation or an adaptation of international control, whilst maintaining a partial prohibition, rather than proposing a complete revolution aligning the regime of illicit drugs with that of tobacco and alcohol.

Maintaining a partial prohibition can in fact be justified in some circumstances, in particular for substances the mere use of which is especially dangerous to others. Such is the case, for example, of phencyclidine or P.C.P., paradoxically referred to as "angel dust", which leads to violent acts of folly (aggression, self-mutilation...). One has difficulty in seeing the advantage in allowing this substance to pass from a system of prohibition to a system of legalized control, especially since the perverse effects of the prohibition-repression duo do not have a significant impact in this regard.

In fact successful prohibitions do exist, once they are partial. Thus the prohibition of absinthe in France by the law of 1915, which was wise enough to prohibit only one category of alcohol, that most dangerous to health, whilst making substitute alcohols, such as aniseed aperitifs, available to the consumer is considered as a health and social success. One could cite other examples such as the prohibition of ether in Ireland or of amphetamines in Japan.

Techniques for amending the Single Convention

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).

The technique of reservations from articles 49 and 50

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.

Unfortunately, these transitional reservations are subject 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)C

oca 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 fatigue and hunger.

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 antiprohibitionist 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.

The technique of denunciation in article 46

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, article defining 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 object of this regulation is 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.

The technique of reclassifications in article 3.

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.

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.

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, in that it greatly seems 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 internationally controlled cultivated plants, 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.

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 assumes that the Commission, following advice 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 p

endency 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 antiprohibitionist 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.

The amendment procedure in article 47.

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 refuse, for istance, 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 view of these 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.

The content of the amendments of rhe Single Convention

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 inspires 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 be 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

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 neutrality 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 inte

rnational 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 reserve the possibility to the States of taking into account their cultural and social framework.

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 consumer 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 suppressi

on 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, and 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 the first half of the Preamble of the 1988 Convention is easily appropriate to the antiprohibitionist doctrine, the second half, on the other hand, which aims to broaden the scope of prohibition and to reinforce its sanctions, goes totally against the stream of its proclaimed 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.

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 the 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 t

o 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 that "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 organization 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

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 mea

ns that the notion of drugs 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

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 antiprohibitionist 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

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 n10 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 n12). This leads to a proposal to modify paragraph 6 by adding a sub-paragraph (c) as follows:

"By 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.

We 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 another 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 nor its 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.

By 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.

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 more consistent with antiprohibitionist 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 antiprohibitionist 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."

With respect to the exempted substances of Schedule III, schedule which 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).

With respect to 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 have 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:

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 Member States 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 pend

ency 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

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

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 antiprohibitionist 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

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

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

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

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 antiprohibitionist 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

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."

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 antiprohibitionist 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

CONDITIONS OF CULTIVATION AND PRODUCTION OF OPIUM AND POPPY STRAW

These articles, which establish forms of control of cultivation, are perfectly compatible with an antiprohibitionist 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

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

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 antiprohibitionist logic.

Article 29

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

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 "official 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 forms to be issued in the form of counterfoil books by the competent governmental authorities or by authorized professional associations."

Article 31

Article 31 of the Single Convention concerns 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

Article 32 of the single Convention Relates to first-aid kits.

No modification of this purely technical text is necessary.

Article 33

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

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

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

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 territorrial 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 the transitional reservations for the benefit of traditional cultivations definitive.

Towards a parliamentary campaign of denunciation and amendment: proposal for initiatives

The legal reference framework

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 (2).

It is for these reasons that it does not seem to us to be suitable to begin a campaign of denunciation of 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

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

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, (3) 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 tabled 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

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

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

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.

(1) Report on the possibilities for amending and/or repealing the United Nations Conventions on Narcotic Drugs from an antiprohibitionist perspective, I.A.L. Papers, 1994.

(2) In this connection it is appropriate to underline, however, that while the 1961 Convention sets at 40 the minimum number of States for the Convention to enter into and remain in force, in contrast the 1988 Convention only determines the manner in which the Convention will enter into force (20 States minimum) without specifying the conditions for it to lapse.

(3) However, even if a State were to object to the entry into force of the amendment, the Council could decide to call a Conference to study the amendment.