by Francis CABALLERO
Professor at the University of Paris X
"Avocat" at the Paris bar - LLM Harvard
INTRODUCTION
1. The Single Convention on narcotic drugs of 1961 (Collection of UN treaties, Vol. 520, p.151) is an international treaty concluded within the framework of the United Nations Organization, whose purpose is to prevent and combat the scourge of drug addiction by means of coordinated and universal action (The Single Convention, see BETTATI, International narcotics control, Rev. Gen. Dr. Int. Publ., 1974, p.1; REUTER, the obligations of the States by virtue of the Single Convention, B.S., Vol. XX, 1968 n·4, p.3; LANDE, Codification of the international law on narcotic drugs, A.F.D.I., 1956, p.43; LANDE, The Single Convention on Narcotic drugs, International organization, 1962, p.776; WADDEL, International narcotics control, 64 Am. J. int. L. 310, 1970).
In its Preamble, as well as in the actual text of said Treaty (art. 4), it states that the "holding, use, trade in, distribution, import, export, manufacture and the production of drugs is exclusively limited to medical and scientific purposes" (Commentary on the Single Convention on narcotic drugs, 1961, UN, 1975; Commentary on the Single Convention on narcotic drugs, 1961, UN, 1973, hereinafter Commentary). In simple terms, the international text has established measures for the prohibition and repression of illicit drugs throughout the entire world (CABALLERO, Law on drugs, Dalloz, 1989, n· 32 and following).
The guiding principles of the Single Convention
2. In order to arrive at this result the Parties to the Convention, who have stated 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 supplementary forms of control : "on the one hand, concerning the licit, scientific and medical market it is essentially preventive. On the other hand, concerning illicit traffic, drug abuse and drug addiction it is then essentially repressive" (BETTATI, op. cit, p.17). Prevention is essentially aimed at diverting medical or scientific channels away from illicit traffic. Repression consists in establishing an international penal cooperation in such a manner 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 consist in furnishing 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), statistical returns (art. 20) and regular reports intended to inform them of the situation in their country. These instruments will allow a manufacture (art. 29), import (art.21), export (art.31) and distribution (art. 30) policy to be defined, exclusively limited to medical and scientific requirements. This policy is instituted at a 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 is in fact carried out by controlling cultivation. The illicit production of the opium poppy, coca leaf and cannabis is the major source of drug traffic. Failure to stop the source, international law hopes to discourage it by repressive measures aimed at dissuading drug traffickers. Three provisions are provided for in the Single Convention for this purpose: 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 emphasizes the severity of the previous provisions concerning extradition (art. 6), as well as international mutual legal assistance (art. 7), repres
sive procedures (art. 8) and the provisions relating to illicit cultivation (art. 14), whilst at the same time creating new international implications (money laundering, incitement, collusion...) and instituting a specific procedure for finding drug traffickers, controlled deliveries (art. 11).
However in spite of this international prohibitionist and repressive policy, which over the years has unceasingly increased to take the form of a real "war against drugs", strength lies in recognizing the historical failure of those who drafted the Single Convention. Not only have they failed to hold back the increase in drug addiction throughout the world, - and a comparison of the official figures of consumption and production between 1960 and 1990 is overwhelming in this respect - but furthermore they have brought about perverse effects, which are today very worrying for the community.
The perverse effects of the Single Convention
3. To criticize the perverse effects of the Single Convention and generally the prohibitionist and repressive system has become commonplace, in particular of the anglo-saxon doctrine (NADELMANN, Drug Prohibition in the United States : Costs, Consequences and Alternatives, Science 245, 1989, 939-47; OSTROWSKI, The Moral and Practical Case for Drug Legalization, Hofstra Law Review 18, 1990, 607; Arnold S. TREBACH, The Great Drug War, New-York, Macmillan, 1987; Steven WISOTSKY, Breaking the Impasse in the War on Drugs Westport, Conn. Greenwood Press, 1986; David BOAZ, ed., The Crisis in Drug Prohibition Washington, D.C. CATO Institute, 1990; Ronald HAMOWY, Dealing with Drugs : Consequences of Government Control, Lexington Books, 1987,...) It is also a standard criticism of the French doctrine (CABALLERO, Law on Drugs, op cit, n· 73 and following) on the economic, as well as the social, legal and health level.
- On the economic level, the main perverse effect is due to the fact that prohibition and repression are directly at the origin of the development in drug trafficking, which it is allegedly combatting against. In thirty years, drug trafficking has thus become one of the most lucrative activities on this earth. Estimates of the turnover achieved by this organized crime vary between 150 billion dollars per annum (PLESS and COUVRAT, The hidden side of the world's economy, Hatier, 1988) and 500 billion dollars (Report to the President : America's drug habit, Drug abuse, drug trafficking and Organized crime, US Govt. Printing Office, Washington 1986). The Medelin cartel, the Neapolitan mafia, the Sino-Japanese triads can only rejoice in a continuation of this prohibition policy. In certain countries of the third-world, the power of these organized criminal activities threatens the very stability, security and sovereignty of the States by, in particular, financing terrorism. Finally, it encourages corruption o
f the administration and contaminates the banking system, involved in dubious money laundering operations.
- On the social level, the policy of prohibition and repression leads to an increase in the crime rate and delinquency. By raising the price of the products to significant proportions (cocaine and heroin are worth ten times more than gold) it necessarily causes drug addicts to commit numerous attacks against people and property. Thus, for example in France according to an official report (TRAUTMAN report on the fight against drug addiction, La Doc. Fr., 1988), it costs the community between 30 to 50 million Francs per day. In general, delinquency caused by the prohibition of drugs provides for, according to police statistics, a share of the wilful homicides (one fourth in the United States), more than 80% of bag snatchings, 40% of burglaries and thefts of car radios, not to mention prostitution... and drug dealing. Especially since the number of drug abusers and addicts is only continuing to increase as the years go by and the categories of citizens affected by repression are often the most underprivilege
d.
- On the legal level, prohibition of drugs engenders an increasing repression detrimental to individual liberties and human rights. Incapable of preventing more than 5 to 10 % of the substances on the market, repression is getting "annoyed" and is relying, more and more, on exorbitant measures of common law. Thus for example, the Vienna Convention of 1988 proposes to "shift the burden of proof, with regard to the licit origin of the alleged products or other property which may be subject to confiscation," by presuming that the origin of the drug traffickers entire property is systematically illicit. Indeed, the repressive provisions fall within the internal jurisdiction of the States, but one can note that in general prohibition of drugs is at the origin of a specific law which is becoming widespread throughout the world (See Drugs and Human Rights, the Spoilsports, Paris, 1992). As a result, violations relating to drugs are pointlessly filling the world's prisons and at the same time favouring discrimin
ation, if not racism, in applying the law.
- Finally, on the health level, it would seem that for several years prohibition of drugs has resulted in consequences of the most extreme seriousness for drug abusers and public health. Firstly, in view of the uncertain quality of the products it is one of the main reasons for death by overdose. In fact, these generally occur following the toxicity of blended products (strychnine...), or the difference in the concentrations of drugs supplied to the consumers. Furthermore, in view of the absence of any objective information on the dangers of the substances involved, it is a major obstacle to the effectiveness of an information, prevention and care policy. This leads to disastrous health practices such as the sharing of needles, the propagators of hepatitis and Aids. For this reason, a large number of drug addicts throughout the world are HIV positive and constitute a high risk population liable to infect other categories of people.
For all these reasons and others, a certain number of practitioners, intellectuals and politicians have today declared themselves as openly anti-prohibitionist. Some of them have regrouped into the "Ligue internationaleanti-prohibitionniste" (LIA), whose president is Mrs. Marie-André BERTRAND, criminologist at the University of Montreal and co-editor of the famous Le DAIN report (Report of the Commission of inquiry on the uses of drugs for non-medical purposes, Ottawa, 1972). The purpose of this consultation is to establish certain principles which will permit the Single Convention to be adapted to the future anti-prohibitionist context, without claiming to represent all of the ideas of this non-governmental organization (NGO).
The guiding principles of the consultation
4. The first guiding principle of this consultation is the principle of economy of method, 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.
- On 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, which in the eyes of a French legal expert is not always absolutely succinct and clear. One is aware of the classic example of the anglo-saxon legal expert defining "a force majeure", by listing seventeen constituent events, whereas the French legal expert merely defines it as an "unforeseen and irresistible" event. This difference is taken to an extreme in the Single Convention whereby the concept of narcotic drugs, supposedly at the basis of international control, is not defined by any one concept, but merely makes reference to a list of more than one hundred substances classified as narcotic drugs. The author of this consultation confronted by a text, which upsets his cartesianism and which he would certainly not have drafted himself, intends to remain modest. Therefore, we shall restrict ourselves to making the minimum necessary amendments i
n order to redirect it towards an anti-prohibitionist outlook.
- On the substance, this modesty is especially necessary since the legal origins of international control are not limited to the Single Convention of 1961. Not only was it amended by the 1972 Protocol (Commentary on the Protocol amending the Single Convention on narcotic drugs of 1961, UN, New York, 1977) but, in addition, it was completed and amended by two international texts of great significance : The Vienna Convention of 1971 on psychotropic substances (Commentary on the Convention on psychotropic substances, UN, 1978; VIGNES, Convention on psychotropic substances, AFDI, 1972, 641) and especially the Convention of the United Nations against the illicit traffic of drugs and psychotropic substances, also signed in Vienna in 1988 (ROUCHEREAU, United Nations Convention against the illicit traffic of drugs and psychotropic substances, AFDI 1988, 601).
The first which is like a sister to 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 incorporated into the Vienna Convention on psychotropic substances. However, this transposition requires that the Convention be redrafted a second time, which is impossible given the time period allowed for this consultation. One can 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 (Law on drugs, op cit, n· 19.) A further justification for the principle of economy of method.
On the other hand, the principle of economy of method could not apply to the Vienna Convention of 1988, which is essentially repressive in its outlook. Adopted in the name of the "war against drugs", this Convention seems to be completely "irremediable" in the spirit of an anti-prohibitionist reasoning. The only solution is to purely and simply request its abolition. Furthermore, it is necessary to note that a certain number of countries have up till now refused to accede to it precisely in view of its excessive harshness. Nevertheless, it came into force in 1992 after it was ratified by more than twenty States (art. 29). To decrease this fateful number of twenty signatories the best solution would be for the States, who ratified it, to make use of the procedure of denunciation (article 30). In any event, in the LIA's opinion this convention is the "text to be killed off" in the same way as in the past, and conversely, the Geneva Convention of 1925 regarding prepared opium was the "pet hate" of the Uni
ted-States, then desirous to impose their prohibitionist reasoning.
5. This historic reminder calls for a second guiding principle to be established by this consultation, 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 (LOWES, The genesis of international narcotics control, Droz, Geneva, 1966), 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 (Collection of treaties, SDN, Vol. LI, p. 337) is less prohibitive then its title implies. In fact, it allows for systems of production and distribution controlled by State monopolies, which moreover furnish substantial financial resources to certain signatory states. Thus, England and France produced and distributed opium to their Indian and Indo-china colonies until the 1950's. With regard to France, it also exploited the local Moroccan and Tunisian "kif" and "takouri" names traditionally given to the mixture of tobacco and hashish (On the matter see BISIOU, The monopolies of narcotic drugs, Thesis Paris X, to be published).
In the case of opium, the co-existence of international control with an international distribution system is made possible by the fact that the first international Conventions do not clearly set out the principle of limitation exclusively to medical or scientific purposes. Thus article 9 of the Hague Convention of 1912 provides that the Parties must limit the use of drugs to medical and "legitimate" purposes only, however the sense of this term gives rise to wide interpretations. Similarly, article 9 of the Convention on opium of 1925 only provides that the parties cooperate amongst themselves in order to prevent the use of drugs "for any other purpose" than medical or scientific uses.
It is only from 1931 onwards, under pressure from the United States and their representative at the international conferences, Mr. ANSLINGER, that 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) (Collection of treaties, SDN, Vol. CXXXIX, p. 301; WRIGHT, The Narcotics Convention of 1931, 28, Am. J. Int. L, 475, 1931). However, it has been shown that the prohibitionist and repressive system was as a result of this principle (Supra n·1). By forbidding all uses of narcotic substances other than for medical purposes, the 1931 treaty has amended the scope of international control significantly.
Conversely, if one refers back to the origins of international control, to end this limitation and return to the previous state of law in which this control was compatible with a distribution system of drugs, one only has to add the words "or others" to the text limiting 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 for entertainment 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 reducing the importance of the principle of the return to the origins by the idea of a necessary international control of drugs.
6. The last guiding principle of this consultation is clearly the principle of adapting the Single Convention to the anti-prohibitionist reasoning Though this may seem paradoxical, the prohibitionist and anti-prohibitionist reasoning, a priori a contradiction, may be complementary. The most recent works of the anti-prohibitionist doctrine (NADELMANN, Thinking seriously about alternatives to drug prohibition, Daelalus, 1992, Vol. 121, 3) show that the best control for drug abuse is that which combines the advantages of prohibition whilst endeavoring to eliminate its perverse effects. 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 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 understanding the advantage in allowing this substance to pass from a system of prohibition to a system of legalized control, since the perverse effects of the prohibition-repression duo are of no significance in this regard.
In fact successful prohibition does exist, when it is partial. Thus the prohibition of absinthe in France by the law of 1915, which was wise enough to prohibit only one category of alcohol, the most dangerous to health, whilst making substitute alcohols available to the consumer such as aniseed aperitifs, was a health and social success (On the matter, see CABALLERO, Drug Law, op cit, n· 183). One could cite other examples such as the prohibition of ether in Ireland or amphetamines in Japan.
For the same reasons one can rule out a revolution, which would consist in submitting tobacco and alcohol to future international control. Indeed, these products perfectly fulfill the criteria for being classified as drugs in the Single Convention, as for psychotropic substances in the Vienna Convention. In fact, they present a major health and social risk, risks of physical or psychological dependance and effects on the central nervous system. In addition, the authors of the Vienna Convention have acknowledged it. When the problem for classifying alcohol as a psychotropic substances arose, it was decided that "applying measures of an administrative nature, as prescribed by the Vienna Convention would not resolve the problem of alcohol, nor diminish its seriousness" (Commentary on the Convention of psychotropic substances, UN, 1978, p.54). Clearly the nit-picking constraints imposed on classified substances, for example import or export, would have curbed the trade in alcohol unbearably.
Without entirely sharing this opinion, insofar as it is true that the legal system of tobacco and alcohol is considerably lax, inspired more by economic as opposed to health considerations, in particular in matters of advertizing and sales promotion, the author of this consultation considers that it is inappropriate and certainly unpopular to want to submit these products, consumed by billions of people in millions of places, to the nit-picking regulations of the Single Convention, even if liberally amended.
Therefore, it has been suggested to limit the future field of control to substances already internationally controlled, whether narcotic drugs or psychotropic substances, it being understood that the amendments proposed to the Single Convention may be incorporated into the Vienna Convention. To allow the International anti-prohibitionist league to make use of procedural instrument, as well as one of substance, first of all the techniques for amending the Single Convention (I) should be described before proposing, in the second place, the content of the amendments to this Convention (II).
I. TECHNIQUES FOR AMENDING THE SINGLE CONVENTION
7. 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 : the reservations of articles 49 to 50 ( 1), the denunciation of article 46 ( 2), declassification of article 3 ( 3) and the amendments of article 47 ( 4).
1. The technique of the reservations of articles 49 to 50
8. The possibility for a State to make reservations on certain provisions of the Single Convention is interesting, since in principle it allows one to rule out the application of these so-called "à la carte" provisions. In addition, it is provided for in the Single Convention (article 49 and 50), as well as in the Vienna Convention (article 30). On the other hand, one should note that the 1988 Convention does not provide for this possibility.
However, this is limited by the texts for two reasons. On the one hand, it can in principle only be used for certain provisions restrictively listed in articles 49 and 50 on the other hand, it is only possible at the time of signature, ratification or accession
The limitation of the provisions concerned by the reservations varies according to whether they are transitional or definitive reservations. For the first ones, 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."
These reservations are concerned with the traditional consumption, in certain countries, of cannabis, the coca leaf and opium. Some States have taken advantage of this possibility, such as India and Pakistan for opium smoking and Bolivia and Peru for coca leaf chewing. In this instance it is a remarkable exception to the principle of the limitation of drugs exclusively to medical or scientific purposes, which inspired the Single Convention, at the same time as a recognition of the traditional nature of certain plants, cultivated and consumed for centuries by local populations, in particular the farming community. If this provision had a definitive aspect it would constitute the first infringement to the prohibitionist reasoning for the benefit of countries and populations of the third world.
9. Unfortunately, these transitional reservations are accompanied by strict conditions, with regard to the duration of the reservations, as well as the system accompanying it. Article 49 of the Single Convention in fact continues as follows :
"2. The reservations under paragraph 1 shall be subject to the following restrictions:
a) The activities mentioned in paragraph 1 may be authorized only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961;
b) No export of the drugs referred to in paragraph 1 for the purposes mentioned therein may be permitted to a non-party or to a territory to which this Convention does not apply under article 42;
c) Only such persons may be permitted to smoke opium as were registered by the competent authorities to this effect on 1 January 1964;
d) The quasi-medical use of opium must be abolished within 15 years from the coming into force of this Convention as provided in paragraph 1 of article 41;
e) Coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41;
f) The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41;
g) The production and manufacture of and trade in the drugs referred to in paragraph 1 for any of the uses mentioned therein must be reduced and finally abolished simultaneously with the reduction and abolition of such uses.
As a result of these provisions, in principle the smoking of opium is progressively reduced, to be abolished as of 13 December 1979. As to the practice of coca leaf chewing and the consumption of cannabis and its resin they are to be abolished at the latest on 12 December 1989.
These fateful dates have gone by now, 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 today approximately eight million "coca chewers" still exist and the difficulty in replacing the nutritional value of the coca leaf in Andean countries is considerable. The United Nations Organization must recognize that the problem is complicated by the fact that local populations chew the coca leaf in order to prevent the effects of tiredness and hunger. It is essentially a problem of development (DELPIROU and LABROUSSE, Coca-Coke, Ed. The Discovery, 1986; WOLFF, General Considerations on the problem of coca leaf chewing, B.S., Vol. IV, 1952, n· 2, p.2; GRANIER-DOYEUX, Studies of certain sociological aspects of coca leaf chewing, B.S., Vol. XIV, 1962, n· 4, p.1.).
This is the reason why the Vienna Convention of 1988 provides in article 14, which is moreover aimed at abolishing the illicit cultivation of plants from which drugs are extracted, that :
"The measures adopted must respect the fundamental rights of man and take into account the traditional licit uses, - when such uses are testified by history - as well as protection of the environment".
This provision, even though peculiar to cultivation, obviously contradicts the transitional nature of the reservations of article 49. It seems incomprehensible to want to abolish, purely and simply, all cultivation of the opium poppy, coca bush and the cannabis plant, whilst recognizing that their use and production is based on Human rights, if not rights of the environment. This legal uncertainty is therefore definite as to the outcome of the transitional reservations and in order to rule out this ambiguity it is necessary to cancel paragraph 2 of article 49. In such a way that the provisional reservations would have a definitive nature by moreover being accompanied by strict conditions, defined and sanctioned by paragraphs 3, 4 and 5 of article 49.
10. This text is in fact drafted as follows :
"3. A Party making a reservation under paragraph 1 shall :
a) Include in the annual report to be furnished to the Secretary-General, in accordance with article 18, paragraph 1 (a), an account of the progress made in the preceding year towards the abolition of the use, production, manufacture or trade referred to under paragraph 1; and
b) Furnish to the Board separate estimates (article 19) and statistical returns (article 20) in respect of the reserved activities in the manner and form prescribed by the Board.
4. (a) If a Party which makes a reservation under paragraph 1 fails to furnish:
(i) The report referred to in paragraph 3 (a) within six months after the end of the year to which the information relates;
(ii) The estimates referred to in paragraph 3 (b) within three months after the date fixed for that purpose by the Board in accordance with article 12, paragraph 1;
(iii) The statistics referred to in paragraph 3 (b) within three months after the date on which they are due in accordance with article 20, paragraph 2;
the Board or the Secretary-General, as the case may be, shall send to the Party concerned a notification of the delay, and shall request such information within a period of three months after the receipt of that notification.
b) If the Party fails to comply within this period with the request of the Board or the Secretary-General, the reservation in questions made under paragraph 1 shall cease to be effective.
5. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations."
These provisions do not call for any specific comments, if only the official Commentary (Commentary, p. 469 and following). They illustrate that a State, which would continue to benefit from the reservations, must furnish certain information (estimates, statistics, reports) to the international control organs, which can be perfectly justified even in an anti-prohibitionist context.
11. Moreover, let us recall that other possibilities exist for the contracting Parties to make definitive reservations. Article 50 of the Convention in fact states that :
"1. No reservations other than those made in accordance with Article 49 or with the following paragraphs shall be permitted.
2. Any State may at the time of signature, ratification or accession make reservations in respect of the following provisions of this Convention:
Article 12, paragraphs 2 and 3; article 13, paragraph 2; article 14, paragraphs 1 and 2; article 31, paragraph 1 (b) and article 48.
3. A State which desires to become a Party but wishes to be authorized to make reservations other than those made in accordance with paragraph 2 of this article or with article 49 may inform the Secretary-General of such intention. Unless by the end of twelve months after the date of the Secretary-General's communication of the reservation concerned, this reservation has been objected to by one third of the States that have ratified or acceded to this Convention before the end of that period, it shall be deemed to be permitted, it being understood however that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by this reservation.
4. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations."
In order to understand the text it should be specified that the reservations referred to in articles 12 and 13 are concerned with estimates and statistics, that article 14 is concerned with the corrective measures to be taken by the Board to ensure the execution of the provisions of the Convention confronted by a recalcitrant State and that article 48 is concerned with the settlement of disputes between Parties before the International Court of Justice. Paragraph 1 (b) of article 31 is a technical text of no interest.
In general, the provisions relating to the reservations and which are essentially aimed at reducing the administrative tasks of the State who accedes to the Convention are of no significant interest. They are neither concerned with the prohibition of all trade, all production and all cultivation other than for medical purposes, nor the repressive provisions, nor finally the list of classified substances. Indeed one could contemplate widening the scope of the reservations, but this would again entail an amendment to the Convention and it would not be used in its present state.
In conclusion, one should recognize that the technical use of the reservations is of no great assistance in adapting the Convention to the future anti-prohibitionist context. The main reason is moreover of a procedural nature. Since these reservations must be made at the time when a Party signs, ratifies or accedes to the Single Convention. This period having elapsed a long time ago for the sixty three signatory States of the Convention and the fifty others who have since joined, the time for making reservations is over. Only the possibility for the signatory States, acting alone, to purely and simply denounce the Single Convention remains.
2. The technique of denunciation of article 46.
12. Denunciation of the Single Convention is a procedure which is open to the contracting Parties, the system of which is defined by article 46 thus drafted :
"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 Secretary-General.
2. 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.
3. 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 since 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 not ceased to increase since its coming into force, without ever diminishing. The sixty three signatory parties to the Convention today number more than one hundred and twenty.
However, article 46 which refers to article 41 of said Convention, which defines its conditions for coming into force, sets as the minimum number of contracting Parties in order that it may come into effect, forty signatory States. Therefore, it is clear that more than eighty States, 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 assumption is, for the time being, purely theoretical.
On the other hand, what is possible is the denunciation of the Convention by a State (Holland), or a group of States (the Andean countries). 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 on behalf of his country or one of its territories (Commentary, p.460). The only restriction to 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 will become effective. The "raison d'être"of this regulation is based on the fact that the Parties must furnish estimates and statistics to the Board for each calendar year and time must be given to the international organs in order to register and check these figures.
In conclusion, the procedure for denunciation is largely open to the States, but it is purely a political decision. Furthermore, a difficult decision to make since the main supporter of the Single Convention, i.e. the United States, exercises constant pressure on the other signatory States in order that they take stricter measures. In fact, America's anti-drug policy has always been an instrument of its foreign policy (SIMMONS & SAID, Drugs, politics and diplomacy : the international connection, Sage, London, 1974). Thus, some observers believe that as long as the United States has not changed its position on the national level, as long as the anti-prohibitionist doctrine has not made any really decisive political progress, then no noticeable change will take place on the international level.
In fact nothing is less certain. It is highly likely, on the contrary, that a series of denunciations, by States more and more numerous in rejecting the prohibition and repression policy imposed by America, would at least lead to a softening of the Single Convention; if only to prevent its complete disappearance. One of the softening effects would, for example, consist in declassifying all or a part of the prohibited substances so as to submit them to a less rigorous regime.
3. The technique of declassification of article 3.
13. The technique of declassification of article 3 of the Single Convention is interesting since it allows one to change the list of classified substances and the system accompanying them. Furthermore, it can be used at any time on the initiative of any contracting Party, whilst attacking one of the most arguable points for international control : the classification of narcotic drugs in the schedules of the Single Convention.
Let us recall that it distributes over a hundred substances classified into four schedules, arranged as follows :
- Schedule I: Includes natural (opium) and semi-synthetic (morphine, heroin) opiates, derivatives of coca (cocaine) and cannabis (hashish), as well as numerous synthetic substances (pethidine, methadone,...).
- Schedule II: Includes substances used for medical purposes and requiring a less rigid control in view of the lesser risk of abuse. It includes natural opiates (codeine) and synthetic substances (propiram, dextropropoxyphene).
- Schedule III: Is the schedule of exemptions. It excludes pharmaceutical preparations made from substances not leading to 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 deemed to be particularly dangerous and with an extremely limited therapeutic value. It includes semi-synthetic (heroin, desomorphine), or synthetic opiates (Ketobemidone, etorphine), as well as cannabis and cannabis resin.
These schedules show that the main criteria for the classification of a substance is based on its medical use. In view of the principle according to which the only licit use is the use for medical and 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 classified with heroin in group IV due to the simple reason of their lack of therapeutic value. Notwithstanding a disputable reason, since cannabis could have numerous medical uses in a system of legalized control (HERER, The emperor wears no clothes, Queen of club publishing, 1985). Furthermore, the arbitrary nature of such a classification is denounced by various authors, in addition it is not the only disputed classification (Drug law, op cit, n. 321 and following).
14. One of the most fundamental arguments concerns the difference between the treatment of narcotic drugs and psychotropic substances. Historically this is as a result of a refusal, by one vote, during the preparatory discussions of the Single Convention, to classify barbiturates amongst internationally controlled substances.
This refusal is in part at the origin of the Convention on psychotropic substances adopted in Vienna in 1971. This was asked for by developing countries, who did not understand the difference between natural psychotropic substances (opium, coca, cannabis) and synthetic psychotropic substances of the pharmaceutical industry (amphetamines, barbiturates, hallucinogenics...). Thus, for example, synthetic barbiturates, amphetamines and hallucinogenics (LSD 25, PHP, MBA, NDMA...) are clearly more powerful and addictive than cannabis or the coca leaf. However, they were not subject to any international control. The unfairness of the situation therefore lead the UN to submit psychotropic substances to control, which are today classified by the Vienna Convention (art. 1) into four schedules thus defined:
Schedule I: Includes dangerous drugs causing a serious risk to public health, whose therapeutic value is doubtful or nil. It includes synthetic hallucinogenics (LSD 25, DMT) and tetrahydrocannabinol (THC).
Schedule II: Includes stimulants of the amphetamine type, whose therapeutic value is limited, as well as some analgesics such as phencyclidine, which is of no therapeutic value to man.
Schedule III: Includes barbiturate products with fast or average effects, which were the subject of serious abuse even though useful therapeutically.
Schedule IV: Includes hypnotics, tranquilizers (benzodiazepine) and analgesics which engender a considerable dependence, but are mainly used in therapy.
This classification repeats the criteria of therapeutic value, but in fact it is more or less based on a pharmacological group belonging to one of the following four groups : hallucinogenics (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 of 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 substance. Even better still, whereas the cannabis plant is classified amongst the most dangerous narcotic drugs, it principal agent, tetrahydrocannabinol or THC is only a psychotropic substance. It is difficult to understand that a plant containing at the most 3% of its principal agent is dealt with more severely than the pure substance at 100%.
This confusion and others, therefore leads one to attempt to rearrange these schedules by using a declassification procedure for a certain number of narcotic substances, the possibility of transferring substances from one schedule to another, if not to make them "disappear" from the schedules either by reclassifying them amongst psychotropic substances, or by purely and simply deleting them from the list of internationally controlled substances.
15. The possibility for one contracting Party to request, within the context of the Single Convention, a declassification of a substance from one schedule to another, if not the mere deletion of this substance from one of the schedules of the Convention, is provided for in Article 3 which defines the conditions for the changes in 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 one 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 classified as a reference substance in Schedule II by the Single Convention was declassified following the year of its adoption and finally transferred into Schedule II in 1981. This example of declassification is not very enlightening, since it 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 arguable. For example, it could be transferred to Schedule IV of the Vienna Convention on the side of 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". (Commentary on the Convention on psychotropic substances, UN, 1978, p.43). As a result, the declassification 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. The removal of this control could, therefore, only be done by amending the treaty. This restriction, peculiar to cultivated plants internationally controlled, somewhat diminishes the interest of the declassification technique for drugs naturally cultivated in the third world. However, it does not entirely rule it out.
16. In any event, the technique of declassification is possible without restrictions to other drugs. It could, for example, be used to transfer a part of the less dangerous drugs towards 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 instituted on the initiative of one Party or the World Health Organization (WHO), which must transmit a notification to the Secretary-General accompanied by information justifying its request for declassification. The Secretary-General transmits this notification to the Parties and the Commission. If the notification has been addressed by one Party it transmits it to the World Health Organization.
This international organization plays a central role in matters of declassification, as a technical expert of the UN, as well as in matters of public health. According to article 3-6 it must make a recommendation concerning the Schedule which it wishes to modify accompanied with the reasons which justify its declassification. In practice, the World Health Organization is free to make any recommendation which it deems appropriate.
However, its recommendation provided for by the Convention does not link all the contracting parties, nor the international organs together. It is only one step in the classification or declassification procedure. The power to proceed in fact belongs to the Commission on Narcotic Drugs of the Economic and Social Council, alone authorized by article 3 to modify the Schedules. Furthermore, if one presupposes that the Commission, following notice from the World Health Organization, accepts, upon the proposal of a contracting Party, to declassify one of the previously mentioned substances, this declassification only takes place if nothing interferes with it. Article 3 of the Single Convention in fact provides for a certain number of blocking possibilities throughout the procedure, for which the text is thus drafted :
"7. Any decision of the commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decisions shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.
8. (a) The decisions of the Commission amending any of the Schedules shall be subject to review by the Council upon the request of any party filed within ninety days from receipt of notification of the decisions. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties, inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration;
(c) The Council may confirm, alter or reverse the decision of the Commission, and the decisions of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization and to the Board;
(d) During pendency of the review the original decisions of the Commission shall remain in effect.
9. Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7."
As a result of this text if only one State makes the request it is up to the economic and social Council to confirm or not the decision of the Commission. However, it is highly likely that at least one State, such as the United States, would oppose any type of declassification compelling the Economic and Social Council of the United Nations to make a decision. 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 by a simple majority.
In conclusion, one can ask oneself if the technique of declassification is of real interest to an anti-prohibitionist reasoning. Indeed, in theory it allows for a softening of the harshness of control, if not its pure and simple abolition for the benefit of a system of legalized control. It also allows for a massive transfer of all or a part of the drugs to the psychotropic substances, whose regime is clearly less rigorous.
However, one should note that it is practically forbidden, without amending the Convention, for natural drugs (opium, coca, cannabis) and that for all other drugs it remains subject to the decisions of the organs of control (Commission, Council) made by a majority of the signatory States. Finally, it is nearly as difficult to declassify a substance from one Schedule to another then it is to amend the Single Convention, which reduces the interest of declassification as opposed to modifying the Convention by means of amendments.
4. The amendment procedure of article 47.
17. Article 47 of the Single Convention provides for the possibility of the contracting Parties to request amendments to the Convention. 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 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 of submit the amendment for the direct approval of the contracting Parties. 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, purely and simply refuse to declare itself on the proposed amendment (Commentary, p.462 and following).
One can take it for granted that the Council will usually consult the Commission before making its decision on a proposed amendment, but neither the Single Convention, nor the Charter of the United Nations have made this a legal requirement. In fact, in its resolution 1567 (L) of 20 May 1970, the Council decided, pursuant to the terms of article 42 4 of the Charter of the United Nations, to call a Conference of plenipotentiaries to amend the Single Convention without consulting the Commission. However, it did ask the Commission to review the amendment proposals and to make the appropriate comments to the conference of plenipotentiaries.
Finally, it should be noted that if the Secretary-General chooses the channel for amendment by the individual acceptance of the signatory Parties, the amendment procedure of article 46 is even more risky. In fact, 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 article 46-I, b. Confronted by an anti-prohibitionist amendment it is likely that at least one State, such as the United States, will object to the proposal thus blocking the procedure.
In conclusion, one can note that to modify an international order which took the Community of Nations over half century to institute, a majority of the signatory countries must be in agreement, which one can perfectly understand. This majority has more of a chance of being obtained, when the amendment proposals seem serious and coherent. This is precisely the purpose of this consultation which, after having studied the amendment procedures of an international order, intend to specify the actual content of these amendments.
II. THE CONTENT OF THE AMENDMENTS TO THE SINGLE CONVENTION
18. By virtue of the principle of the economy of method from which this consultation is inspired (supra n·3), the content of the proposed amendments is reduced to a bear minimum, in such a way as to redirect the course of the Convention without clashing with it head on. Nevertheless, there is no question of maintaining the reasoning of the "war against drugs" which inspired the international texts and in particular the Preamble of the Vienna Convention of 1988.
It is why, first of all, significant amendments to the Preamble of the Convention have been proposed in order to define the new course of international control (A) before suggesting amendments or additions to the articles of the Convention (B).
A. - Amendments to the Preamble
19. As for numerous multilateral treaties, international texts relating to narcotic drugs are preceded by a Preamble in the form of a statement of its intention. In the Single Convention, as well as in the Vienna Conventions of 1971 and 1988, the contracting Parties have adopted a text setting the course of the Convention which we must recall 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 appearance of banality, this text has set three major courses. 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, 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. In fact, 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, has previously been shown (supra n· 4). The possibility of other uses, in particular recreational must therefore be strongly asserted in the new Preamble. In addition, it does not contradict the objective of the fight against addiction. In fact, if one defines drug addiction as a state caused by the abuse of the substances involved and not only by the use of these substances, 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 (Law on drugs, op. cit, n·92 and following).
It remains that international control must be reduced and must not necessarily result in establishing a uniform policy for the contracting Parties. Each State must be able, taking into account its environment, history and traditions, to adapt its policy to combat addiction by instituting specific measures of control, not necessarily uniform. It is clear, for example, that the fight against alcoholism in France will not be performed in the same way as in Saudi Arabia. Therefore, it is necessary that the Preamble reserves the possibility for the States to take into account their cultural and social framework.
20. However, the Preamble of the Single Convention does not sufficiently convey the current course of international control. In fact, if the Preamble of the Vienna Convention of 1971 resembles practically word for word that of the Single Convention, the same cannot be said for the Vienna Convention of 1988. The aim of this Convention is to reinforce the fight against illicit traffic and it is asserted in a very characteristic manner in its Preamble. This is drafted as follows :
" The Parties to this Convention,
"Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society,
Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity,
Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States,
Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority,
Aware that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels,
Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing,
Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic,..."
The text of this long Preamble is in fact divided into two parts. The first part affirms the danger of the illicit traffic of narcotic drugs and states that its objective is to eliminate it, 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 take into account the implicit contradiction which exists between both parts of the text. In other words, between the aims 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 (CHOISEUL-PRASLIN, Drugs, an economy energized by repression, CNRS, 1991). Worse still, those who drafted the Preamble did not take into account that by denouncing the dangers of traffic, they were denouncing the perverse effects of prohibition.
Thus, they recognize that illicit traffic "generates large financial profits and wealth... for criminal organizations" which enables them to "corrupt the structures of government, legitimate commercial and financial business" that this traffic has links with "other related organized criminal activities which undermine the legitimate economies" and that is making "steadily increasing inroads into various social groups, and particularly by the fact that children are used in illicit traffic". However, the wealth of organized crime, the laundering of money and drugs, corruption of the police force, financing 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 diminished. Therefore, though there is no problem in applying the first half of the Preamble of the 1988 Convention to the anti-prohibitionist doctrine, on the other hand the second half goes against the tide of its philosophy. In fact, it is aimed at widening the scope of prohibition and reinforcing the sanctions. The rest of the Preamble is in fact 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 the consequences, whilst 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. It has however been shown that an increase in repression only serves to benefit the most dangerous drug traffickers and sustain traffic (CHOISEUL-PRASLIN, Drugs an economy energized by repression, CNRS, 1991). It is why, on the contrary, it will be proposed to lessen this repression, adapt it to the dangerousness of the products concerned and restrict it to anti-social behavior of the kind to harm society or third parties.
A contrario, it is necessary to assert in the new Preamble the fundamental right of each individual to absorb a psychoactive substance of his choice to cause sensations. This right falls within the scope 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 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. Subject to the condition, however, of reaffirming the limitation stipulated by article 4 of the declaration -not to cause harm to others- or society (art.5). A limitation, which the future Preamble will set as its main course for future international control.
21. Finally, it is proposed to draft the future Preamble of the Single Convention in the following manner :
"The Parties,
Concerned with the physical and mental health of mankind,
Concerned with the problem of public health and the social problem caused by the abuse of certain narcotic drugs,
Recognizing that the use of these substances for medical or scientific purposes is indispensable for the relief of pain and that it should not be subject to any unjustified restrictions,
Recognizing that their use for recreational purposes or others, is part of the freedom of each individual and the rights of man, subject to the condition that it does not cause harm to others or society,
Determined to prevent and combat the abuse of these substances and illicit traffic which it engenders,
Deeply concerned by the magnitude of and the rising trend in the illicit production of, demand for and traffic in narcotic drugs, which adversely affect the economic, cultural and legal foundations of society,
Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and in particular amongst the young exploited by drug traffickers,
Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States,
Aware that illicit traffic generates significant financial profits enabling criminal organizations to penetrate and corrupt the structures of government and legitimate commercial and financial business,
Understanding that effective measures against abuse of narcotic drugs require coordinated and universal action,
Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned exercise their activities within the framework of that Organization,
Desiring to conclude a generally acceptable international Convention replacing all existing treaties, limiting such drugs to medical and scientific or other uses, whilst ensuring protection against abuse of society and third parties,
Finally desiring to conclude a worldwide and operational international Convention aiming to combat illicit traffic effectively by a system of legalized control in which the health and social risk of the controlled substances is taken into account and the various cultural, economic and legal aspects of the problem,
Hereby agree as follows:"
One can see that this text paraphrases, whilst adapting several opening statements of the Preambles of all three international Conventions.
- With regard to the Single Convention, the terms of the first opening statement regarding the "health and welfare of mankind" have been replaced by the "physical and mental health of mankind". This substitution is due to the fact the "welfare" is not a very clear concept, whereas "mental health" could be directly threatened by abuse of psychoactive substances. This does not moreover mean that the prohibitionist doctrine is not concerned by welfare. It merely replaces a welfare of abstinence by a welfare of moderation.
- With regard to the Vienna Convention of 1988, some opening statements have purely and simply been reproduced. In fact it must be clear that the future objective of the Single Convention is to combat illicit traffic of narcotic drugs and its perverse effects. It only claims that it is better equipped than prohibition to do so, since a system of legalized control, as the history of the prohibition of alcohol has shown, immediately takes the place of organized crime on the market.
In conclusion, the new text reconciles the principle of economy of method by being closely inspired from previous texts, the principle of the return to origins be specifying that from now on narcotic drugs may be used for "recreational or other" purposes and the principle of adaptation by maintaining the overall structure of the Convention and its two sections : a preventive section by the organisation of licit channels for controlled distribution and a repressive section of combatting illicit traffic and contraband.
B. The Amendments to the Articles of the Single Convention
Article 1
Article 1 of the Single Convention concerning DEFINITIONS reads as follows:
"1. Except where otherwise expressly indicated or where the context otherwise requires, the following definitions shall apply throughout the Convention:
(a) "Board" means the International Narcotics Control Board,
(b) "Cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.
(c) "Cannabis plant" means any plant of the genus Cannabis,
(d) "Cannabis resin" means the separated resin, whether crude or purified, obtained from the cannabis plant.
(e) "Coca bush" means the plant of any species of the genus Erythroxylon.
(f) "Coca leaf" means the leaf of the coca bush except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed.
(g) "Commission" means the Commission on Narcotic Drugs of the Council.
(h) "Council" means the Economic and Social Council of the United Nations.
(i) "Cultivation" means the cultivation of the opium poppy, coca bush or cannabis plant.
(j) "Drug" means any of the substances in Schedules I and II, whether natural or synthetic.
(k) "General Assembly" means the General Assembly of the United Nations.
(l) "Illicit traffic" means cultivation or trafficking in drugs contrary to the provisions of this Convention.
(m) "Import" and "export" mean in their respective connotations the physical transfer of drugs from one State to another State, or from one territory to another territory of the same State.
(n) "Manufacture" means all processes, other than production, by which drugs may be obtained and includes refining as well as the transformation of drugs into other drugs.
(o) "Medicinal opium" means opium which has undergone the processes necessary to adapt it for medicinal use.
(p) "Opium" means the coagulated juice of the opium poppy.
(q) "Opium poppy" means the plant of the species Papaver somniferum L.
(r) "Poppy straw" means all parts (except the seeds) of the opium poppy, after mowing.
(s) "Preparation" means a mixture, solid or liquid, containing a drug.
(t) "Production" means the separation of opium coca leaves, cannabis and cannabis resin from the plants from which they are obtained.
(u) "Schedule I", "Schedule II", "Schedule III" and "Schedule IV" mean the correspondingly numbered list of drugs or preparations annexed to this Convention, as amended from time to time in accordance with article 3.
(v) "Secretary-General" means the Secretary-General of the United Nations.
(w) "Special stocks" means the amounts of drugs held in a country or territory by the Government of such country or territory for special government purposes and to meet exceptional circumstances; and the expression "special purposes" shall be construed accordingly.
(x) "Stocks" means the amounts of drugs held in a country or territory and intended for:
(i) Consumption in the country or territory for medical and scientific purposes,
(ii) Utilization in the country or territory for the manufacture of drugs and other substances, or
(iii) Export;
but does not include the amounts of drugs held in the country or territory,
(iv) By retail pharmacists or other authorized retail distributors and by institutions or qualified persons in the duly authorized exercise of therapeutic or scientific functions, or
(v) As "special stocks".
(y) "Territory" means any part of a State which is treated as a separate entity for the application of the system of import certificates and export authorizations provided for in article 31. This definition shall not apply to the term "territory" as used in articles 42 and 46.
2. For the purposes of this Convention a drug shall be regarded as "consumed" when it has been supplied to any person or enterprise for retail distribution, medical use or scientific research; and "consumption" shall be construed accordingly."
22. 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 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 not in any way satisfactory. According to Article 1.1(b) "Drug means any of the substances in Schedules I and II, whether natural or synthetic". This is a circular definition, as has already been shown (Law on Drugs, N·322 and following). Given that the Convention does not specify the criteria for inclusion in a Schedule, this notion is not defined at all. This creates considerable risk of an arbitrary classification of substances falling under international control.
It is therefore proposed that a definition of the notion of "drugs" be given (at last), by referring to the Preamble and the intention of the contracting Parties. 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 has been officially defined by the Committee of Experts of the World Health Organization (WHO, Committee of Experts on Drugs capable of engendering drug addiction, Technical report series, N·57, 1952; WHO, Ibid., Technical report series, N·116, 1957), 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 includes some ambiguity. It refers to the idea of psychic dependence at the same time that it refers to that of physical dependence. However, 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 choice that is difficult to make and is largely political. It is therefore proposed that the reference to the broad definition of the WHO be retained because of its relative flexibility.
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
Article 2 of the Single Convention relating to SUBSTANCES UNDER CONTROL reads as follows:
1. Except as to measures of control which are limited to specified drugs, the drugs in Schedule I are subject to all measures of control applicable to drugs under this Convention and in particular to those prescribed in article 4(c), 19, 20, 21, 29, 30, 31, 32, 33, 34 and 37.
2. The drugs in Schedule II are subject to the same measures of control as drugs in Schedule I with the exception of the measures prescribed in article 30, paragraphs 2 and 5, in respect of the retail trade.
3. Preparations other than those in Schedule III are subject to the same measures of control as the drugs which they contain, but estimates (article 19) and statistics (article 20) distinct from those dealing with these drugs shall not be required in the case of such preparations, and article 29, paragraph 2 (c) and article 30, paragraph 1 (b) (ii) need not apply.
4. Preparations in Schedule III are subject to the same measures of control as preparations containing drugs in Schedule II except that article 31, paragraphs 1 (b) and 3 to 15 and as regards their acquisition and retail distribution, article 34, paragraph (b), need not apply, and that for the purpose of estimates (article 19) and statistics (article 20) the information required shall be restricted to the quantities of drugs used in the manufacture of such preparations.
5. The drugs in Schedule IV shall also be included in Schedule I and subject to all measures of control applicable to drugs in the latter Schedule, and in addition thereto:
(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and
(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party.
6. In addition to the measures of control applicable to all drugs in Schedule I, opium is subject to the provisions of article 19, paragraph 1, subparagraph (f), and of articles 21 bis, 23 and 24, the coca leaf to those of articles 26 and 27 and cannabis to those of article 28.
7. The opium poppy, the coca bush, the cannabis plant, poppy straw and cannabis leaves are subject to the control measures prescribed in article 19, paragraph 1, subparagraph (e), article 20, paragraph 1, subparagraph (g), article 21 bis and in articles 22 to 24; 22, 26 and 27; 22 and 28; 25; and 28, respectively.
8. The Parties shall use their best endeavours to apply to substances which do not fall under this Convention, but which may be used in the illicit manufacture of drugs, such measures of supervision as may be practicable.
9. Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes, provided that:
(a) They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects (article 3, paragraph 3) and that the harmful substances cannot in practice be recovered; and
(b) They include in the statistical information (article 20) furnished by them the amount of each drugs so used."
23. This text, which is of fundamental importance, defines the different regimes applying to the classified substances. These regimes, it should be remembered, are intended to introduce control measures to prevent international trade in (import, export), production (cultivation, manufacture) of, and national trade in (distribution, possession), substances classified as drugs. It is basically a preventative regime which requires the contracting Parties to provide a certain amount of information to the control bodies (estimates, statistics), to establish State monopolies to control cultivation and manufacture, which can also be carried out under license, to require authorization for exports and imports through a system of permits and approved operators, to monitor the network of distribution, which can be carried out under license or by state undertakings, and to require that drugs only be provided under medical prescription, as needed in the form of counterfoil books.
Only the last restriction is really inconsistent with anti-prohibitionist thinking. It is, moreover, in conformity with the stated objective of the Single Convention to limit the licit trade in drugs to medical or scientific uses. It is no longer appropriate when the control of international trade extends to medical, scientific "or other" purposes. Given the new goals set out in the Preamble, recreational uses will henceforth come within the provisions of the Single Convention. The forms of control which it establishes, whether monopolies of cultivation, of production, or the supervision of trade and of distribution, are completely conceivable in a system of controlled legalization.
Thus the establishment of state monopolies for the production of cannabis, of coca leaf or of opium for purposes other than medical purposes is perfectly legitimate according to anti-prohibitionist logic. Such monopolies enable one to provide an adequate standard of living for the producers, to limit excesses of competition (advertising, sales promotion), to readily inform the international authorities of any increase in demand, and to establish sanitary and social counter-measures (consumer information, taxation of products, medical supervision, risk reduction ...).
It is true that the anglo-saxon anti-prohibitionists are in favor of relying on private industry (perhaps licensed by the State), and certain of them, such as Milton FRIEDMAN, would rely on the laws of the market. This perspective seems a little permissive, in so far as it is clear that public opinion would never accept that drugs formerly prohibited be placed under a regime less strict than that covering tobacco and alcohol, which are themselves the subject of numerous restrictions vis-a-vis the operation of the market, particularly concerning distribution and advertising.
In any case, the author of the present study considers that the State is particularly well placed to "take care of the vices of its citizens", due on the one hand to its neutrality, and on the other to its concern for the common good. The disadvantages of a state monopoly, such as lack of dynamism or imagination, are advantages in a market where the creation of new products is not a priority. It seems even totally contrary to the idea of "passive trade" suggested by certain authors (Law on Drugs, op cit, N·92 and following).
It is therefore proposed that the general regime applicable to drugs included in Schedule I be retained, which regime is the legal regime for all classified substances. This regime provides that these substances be subject to the measures provided for in Articles 4(c) (general obligations), 19 (estimates), 20 (statistics), 21 (limitation on manufacture and import), 31 (international trade), 32 (first-aid kit), 33 (possession), 34 (supervision and inspection) and 37 (seizure and confiscation).
All these provisions could be readily transposed into a system of controlled legalization, on the express condition that the purposes be modified, that is, that they be extended to include not just medical or scientific uses but also "other uses".
24. It is appropriate, however, to emphasize that the text of Article 2 is not limited to the drugs in Schedule I. Schedule I is indeed complemented by three other schedules (Schedules II, III and IV), as well as by the specific regimes which apply to certain preparations or plants covered by particular provisions. In total, the official Commentary lists twenty four different regimes applicable to classified substances (Commentary, op cit, p.49).
- There is even a specific regime applicable only to "cannabis leaves" which is distinct from the regime for the cannabis plant. This is the only regime the abolition of which will be recommended, because it has no use. It is, on the other hand, worth retaining the regimes for controlling the cultivation of the cannabis plant itself, of the coca bush and of the opium poppy, for the reasons discussed above. Control of these cultivations is justified so long as these plants remain classified as substances capable of engendering drug addiction (supra, N·23). It should, however, be noted that while the notion "drug addiction" is appropriate in the case of opium, it is much more dubious in regard to the coca leaf and cannabis. In particular, cannabis, no alcanoid of which is moreover capable of being used as a hard drug, as is the case with coca (cocaine) and opium (heroin), should not really be included in Schedule I. But this is a problem of classification, and not of the regime for the plants and substances cl
assified within this schedule.
- A more delicate question is the specific regimes established for Schedules II, II and IV of the Single Convention. One should remember that Schedule II includes those substances of Schedule I which are judged less dangerous and which are capable of medical application, such as codeine. These substances are submitted to the same regime as those of Schedule I, except that they are exempted from the provisions concerning retail trade (art. 30(2)(5)). Their regime is therefore less strict.
Schedule III for its part includes preparations excluded from international control because they are not capable of having harmful effects due to the weakness of the dosages of drugs contained. Their regime is even easier, since they are excluded not only from the provisions relating to retail trade (art 30 and 31), but also from the obligations concerning the estimates, statistics and information to be furnished to the Board.
In contrast, the substances in Schedule IV are those drugs considered to be the most dangerous and deprived of any medical usefulness. Their regime is therefore more rigorous, since they are subjected not only to the obligations of Schedule I, in which they are included, but also to special measures for control and prohibition (art. 2(5)(a) and (b), see below), if the Parties consider that these measures are, in their country, "the most appropriate way to protect public health".
None of the regimes provided for by Article 2 is truly incompatible with a system of controlled legalization.
One has seen that the regime in Schedule I, which establishes preventative control measures, is perfectly compatible with distribution for non-medical purposes. The same is true for the regimes provided for by Schedules II and III, which are essentially based on medical uses. These latter certainly risk losing some of their importance, since the criterion of medical or scientific use is no longer the exclusive criterion for the authorization of trade by the Convention. Nevertheless, in so far as trade in substances to be used for medical purposes remains in all situations distinct from trade for recreational purposes, the continuance of the regimes in question remains justified.
The same is true for the regime applicable to the most dangerous substances in Schedule IV. Because even in a system of controlled legalization, it has been seen that it is possible to retain an "island of prohibition in an ocean of tolerance" for certain substances particularly dangerous for society or third parties. One should note, moreover that the regime provided for by the Single Convention does not in any way require the Parties to impose a general and absolute prohibition on these substances, but recommends to them, if it is the most appropriate way to protect public health, to forbid their production, trade and possibly use. In brief, the reinforcement of control measures for substances the simple use of which is dangerous for others, by provoking, for example, an uncontrollable aggression in the subject, is legitmate. They can, therefore, in an exceptional case, remain subject to a regime of total prohibition.
In conclusion, the result of this study of Article 3 [sic] is that this article can be completely retained in its present state, except for the reference to regimes for "cannabis leaves", which do not require any particular restriction. It is appropriate, finally, to point out that the maintenance of the general regimes of Schedules I, II, III and IV does not prevent in any way the rearrangement of these schedules, and even a redefinition of their classification criteria, so as to make the control measures provided for by the Convention less incoherent. But this is a problem of classification and not of the regime for the plants and substances classified in this Schedule.
Article 3
Article 3 concerning the CHANGES IN THE SCOPE OF CONTROL reads as follows:
"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 the substance is liable to similar abuse and productive of similar ill effects 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 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 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 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 a drug or a preparation as the case may be, from a Schedule.
7. Any decision of the Commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decision shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.
8. (a) The decisions of the Commission 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 decision. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration;
(c) The Council may confirm, alter or reverse the decision of the Commission, and the decision of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization, and to the Board;
(d) During pendency of the review the original decision of the Commission shall remain in effect.
9. Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7."
25. This text has already been discussed during the examination of the procedure for declassification (supra n·13 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 n·14). This leads to a proposal to modify paragraph 6 by adding a sub-paragraph (c) as follows:
"c) Transferring a drug from a Schedule of the Single Convention to a Schedule of the Vienna Convention on psychotropic substances."
Independently of this modification, capable of allowing the incoherences in the classification of substances as drugs or psychotropic substances to be remedied, it is appropriate to examine whether Schedules I, II, III and IV, as they are defined by Article 3, should be retained or redefined. For convenience, it is appropriate to recall the criteria of classification in each Schedule and to analyze them in light of the logic of controlled legalization.
- Recall that the criterion for classification of Schedule I is not specified by the Convention itself, which only refers to substances capable of creating abuses and harmful effects similar to substances classified in Schedules I and II. This circular criterion is complemented by a criterion, used by the Technical Committee of the Commission, which consists of including substances with the following characteristics:
a) Substances having a more marked capacity to support drug addiction than codeine and more or less comparable with morphine.
b) Those which may be transformed into a substance with the capacity to engender or maintain drug addiction with a facility and in a proportion such that they present a greater risk of abuse than codeine.
c) Those which present a risk of abuse comparable to that presented by cannabis, cannabis resin or cocaine.
d) Those which may be transformed into a substance presenting a risk of abuse comparable to that presented by cannabis, cannabis resin or cocaine.
Inclusion within Schedule I depends, therefore, on variable criteria of comparison, starting from three basic substances - morphine, cocaine and cannabis - used as reference substances. The influence of anglo-saxon law, which prefers lists to concepts, is clear here. Unfortunately, it does not shine with its clarity or coherence. Sometimes the risk of abuse must be "more or less comparable" to that posed by a particular substance (morphine), sometimes it must simply be "comparable" (cannabis, cocaine). Sometimes the reasoning applies to the substance itself, sometimes to a product capable of being transformed. Finally, according to the commentary authorized by the UN, "analogy can present various degrees, and the Single Convention does not specify which is the required degree. It is thus left to the judgment of the WHO to decide what it considers to be an analogy ...". This leaves it the greatest possible latitude in classifying substances. There is only one limit to its power: the substance to be classifie
d 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 declassification of dextropropoxyphene between 1963 and 1980, with the result that the legal basis of the schedules in international law purely and simply disappeared from Schedule II for twenty years. The number of substances included in Schedule II has moreover changed little since its beginnings, as there were seven at the time of the vote and nine today.
- Schedule III includes preparations excluded from international control because they cannot in theory "lead to abuses or produce harmful effects". The Technical Committee has specified that this deals with preparations which fulfil the double condition of being intended for a legitimate medical use and containing a drug in quantities difficult to recover. But these clarifications remain insufficient and the official Commentary of the Convention provides others. It details, in particular, the factors which the WHO must take into consideration in including a substance in Schedule III, viz.:
a) the amount of drug in the preparation;
b) the active strength of the drug;
c) the nature of the ingredients used in the composition of the preparation and the degree to which these ingredients can counteract the dangerous properties of the drug;
d) the practical possibility of the drug being recovered by traffickers or persons wishing to abuse it;
e) the therapeutic value and the importance of the legitimate use of the preparation.
Independently of the purely pharmacological factors, the WHO must therefore take into account practical factors such as price and manufacturing techniques. The fact remains that the number of exempted preparations is distinctly smaller than in earlier treaties: only a dozen or so substances are included in Schedule III instead of around forty. These are preparations with a base of opium, morphine and cocaine and a synthetic drug, diphenoxylate.
- In contrast, the substances in Schedule IV are those drugs considered as 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 (Commentaries, p.81) 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.
26. In the face of this conceptual and regulatory disorder, the principle of adaptation requires that the four schedules be retained, but that their limits be redefined in a manner that is more precise and above all consistent with anti-prohibitionist doctrine.
- In relation to Schedule I, a new classification criterion has already been proposed to replace the lack or incoherence of the former criterion. This criterion consists simply of returning to the sources of the international control by defining the notion of "drug" as "any substance capable of leading to drug addiction". It has also been proposed that the term "drug addiction" be defined by referring to the definition of the Technical Committee of the WHO of 1957. Remember that this definition demands that the substance classified leads to "a dependence that is psychic and generally physical in respect of the effects of the drug" as well as an "irresistible desire to obtain it by any means".
It has been seen that there were two interpretations of the notion of "drug addiction". Either a strict definition according to which it is reduced solely to physical dependence on hard drugs giving rise to withdrawal symptoms, or a broad definition in which the notion extends to psychic dependency, thereby including soft drugs whose privation causes no suffering. It has also been seen that the WHO exercises an extremely broad and quasi-discretionary power to include any substance in Schedule I.
Frankly, this imprecision in the notion of drug addiction is not very problematic in anti-prohibitionist logic. One can indeed recall that all the substances in Schedule I are subject to a controlled legalization, for purposes other than medical purposes. If the notion of drug addiction is broad, that only extends the scope of international control, not of prohibition.
- With regard to Schedule II, one can in the first place wonder whether its retention is necessary in light of the new anti-prohibitionist logic. Indeed, what is the use of defining substances which are to be used for medical purposes, when this is no longer the sole criterion of submission to international control? Moreover, differences between the regimes for the substances in Schedules I and II respectively only relate to retail trade and remain marginal in comparison to the problems posed by prohibition and repression. The small number of substances included in this schedule further shows its reduced usefulness.
For all that, it has not disappeared, in so far as the idea of including in Schedule II all the substances of Schedule I which have medical applications, and subjecting them to special distribution rules, is neither shocking nor even troubling. Neither is this double system, medical on the one hand and recreational on the other, incoherent from the pharmaceutical perspective, in so far as the form of the medical product is not necessarily the same as that of the recreational product. It is in this way, for example, that one must distinguish between opium to be smoked and medicinal opium (BENSOUSSAN, Opium, Vigot, 1946). The criterion for classification in Schedule II, which we should remember is not defined in the Single Convention, could therefore be defined in the following manner by Article 3(iii):
"iii) If the World Health Organization finds that a substance in Schedule I is capable of being used for medical or scientific purposes, the Commission, on the recommendation of the WHO, can include the substance in Schedule II."
- In respect of the exempted substances of Schedule III, which schedule complements in some way Schedule II by excluding from any control preparations containing a very small amount of drugs and not very dangerous for the health, the new version of the Single Convention can perfectly well be identical to the former version. One could even increase the number of specialties and the threshold of concentration provided for by the Single Convention which remain low in comparison with earlier treaties. Thus, for example, of 56 preparations exempted by the 1925 Convention on Opium, the Single Convention only exempts one: a mixture of opium and ipecacuanha (Dover powder).
- In respect of the drugs in Schedule IV, presumed to be the most dangerous, it is proposed that a criterion of classification based on the danger for others be retained, although it should be a little different from the existing one, and that inclusion in this schedule has an exceptionally prohibitionist function.
As for the criterion of classification, one has seen that the Single Convention defines substances falling within Schedule IV as those particularly liable to abuse and danger and having no therapeutical advantages. While the criterion of the risk of abuse and danger can be retained (specifying that it is a matter of danger for society or for another person), one can not, on the other hand, retain the criterion of therapeutic utility which no longer has any usefulness. 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 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.
(iv) If the World Health Organization finds that the substance is liable to similar abuse and productive of similar ill effects 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 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 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 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 a drug or a preparation as the case may be, from a Schedule.
(c) Transferring a drug from a Schedule of the Single Convention to a Schedule of the Vienna Convention on psychotropic substances.
7. Any decision of the Commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decision shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.
8. (a) The decisions of the Commission amen ding any of the Schedules shall be subject to review by the Council upon the request of any Party filed within ninety days from receipt of notification of the decision. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration;
(c) The Council may confirm, alter or reverse the decision of the Commission, and the decision of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization, and to the Board;
(d) During pendency of the review the original decision of the Commission shall remain in effect.
9. Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7."
Article 4
Article 4 of the Single Convention concerning the GENERAL OBLIGATIONS of the contracting Parties 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 to 11 of the Single Convention relating to the INTERNATIONAL CONTROL ORGANS read as follows:
Article 5
INTERNATIONAL CONTROL ORGANS
"The Parties, recognizing the competence of the United Nations with respect to the international control of drugs, agree to entrust to the Commission on Narcotic Drugs of the Economic and Social Council, and to the International Narcotics Control Board, the functions respectively assigned to them under this Convention."
Article 6
EXPENSES OF THE INTERNATIONAL CONTROL ORGANS
"The expenses of the Commission and the Board will be borne by the United Nations in such manner as shall be decided by the General Assembly. The Parties which are not Members of the United Nations shall contribute to these expenses such amounts as the General Assembly finds equitable and assess from time to time after consultation with the Governments of these Parties."
Article 7
REVIEW OF DECISIONS AND RECOMMENDATIONS OF THE COMMISSION
"Except for decisions under article 3, each decision or recommendation adopted by the Commission pursuant to the provisions of this Convention shall be subject to approval or modification by the Council or the General Assembly in the same way as other decisions or recommendations of the Commission."
Article 8
FUNCTIONS OF THE COMMISSION
"The Commission is authorized to consider all matters pertaining to the aims of this Convention, and in particular:
(a) To amend the Schedules in accordance with article 3;
(b) To call the attention of the Board to any matters which may be relevant to the functions of the Board;
(c) To make recommendations for the implementation of the aims and provisions of this Convention, including programmes of scientific research and the exchange of information of a scientific or technical nature; and
(d) To draw the attention of non-parties to decisions and recommendations which it adopts under this Convention, with a view to their considering taking action in accordance therewith."
Article 9
COMPOSITION AND FUNCTIONS OF THE BOARD
"1. The Board shall consist of thirteen members to be elected by the Council as follows:
(a) Three members with medical, pharmacological or pharmaceutical experience from a list of at least five persons nominated by the World Health Organization; and
(b) Ten members from a list of persons nominated by the Members of the United Nations and by Parties which are not Members of the United Nations.
2. Members of the Board shall be persons who, by their competence, impartiality and disinterestedness, will command general confidence. During their term of office they shall not hold any position or engage in any activity which would be liable to impair their impartiality in the exercise of their functions. The Council shall, in consultation with the Board, make all arrangements necessary to ensure the full technical independence of the Board in carrying out its functions.
3. The Council, with due regard to the principle of equitable geographic representation, shall give consideration to the importance of including on the Board, in equitable proportion, persons possessing a knowledge of the drug situation in the producing, manufacturing, and consuming countries, and connected with such countries.
4. The Board, 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 an adequate amount required for medical and scientific purposes, to ensure their availability for such purposes and to prevent illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs.
5. All measures taken by the Board under this Convention shall be those most consistent with the intent to further the co-operation of Governments with the Board and to provide the mechanism for a continuing dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims of this Convention."
Article 10
TERMS OF OFFICE AND REMUNERATION OF MEMBERS OF THE BOARD
"1. The members of the Board shall serve for a period of five years, and may be re-elected.
2. The term of office of each member of the Board shall end on the eve of the first meeting of the Board which his successor shall be entitled to attend.
3. A member of the Board who has failed to attend three consecutive sessions shall be deemed to have resigned.
4. The Council, on the recommendation of the Board, may dismiss a member of the Board who has ceased to fulfil the conditions required for membership by paragraph 2 of article 9. Such recommendation shall be made by an affirmative vote of nine members of the Board.
5. Where a vacancy occurs on the Board during the term of office of a member, the Council shall fill such vacancy as soon as possible and in accordance with the applicable provisions of article 9, by electing another member for the remainder of the term.
6. The members of the Board shall receive an adequate remuneration as determined by the General Assembly."
Article 11
RULES OF PROCEDURE OF THE BOARD
"1. The Board shall elect its own President and such other officers as it may consider necessary and shall adopt its rules of procedure.
2. The Board shall meet as often as, in its opinion, may be necessary for the proper discharge of its functions but shall hold at least two sessions in each calendar year.
3. The quorum necessary at meetings of the Board shall consist of eight members."
27. 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. There is therefore no need to modify on principle the rules pertaining thereto, whether they deal with the expenses of the international control bodies (art. 6), the functions of the Commission (art. 8), the composition and functions of the Board (art 9), the terms of office and remuneration of members of the Board (art. 10) or its rules of procedure (art. 11).
It may nevertheless be noted that article 9(4) gives the Board the role of limiting the cultivation, production, manufacture and use of drugs solely to medical and scientific purposes. This provision is of course incompatible with the new anti-prohibitionist reasoning, and it is appropriate to modify it in the following way:
"4. The Board, in co-operation with Governments, and subject to the terms of this Convention, shall endeavour to limit the cultivation, productions manufacture and use of drugs to an adequate amount required for medical, scientific or other purposes to ensure their availability for such purposes and to prevent illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs."
Articles 12 & 13
Articles 12 and 13 of the Single Convention regarding the ESTIMATE AND STATISTICAL RETURNS SYSTEM are drafted as follows:
Article 12
ADMINISTRATION OF THE ESTIMATE SYSTEM
"1. The Board shall fix the date or dates by which, and the manner in which, the estimates as provided in article 19 shall be furnished and shall prescribe the forms therefor.
2. The Board shall, in respect of countries and territories to which this Convention does not apply, request the Governments concerned to furnish estimates in accordance with the provisions of this Convention.
3. If any State fails to furnish estimates in respect of any of its territories by the date specified, the Board shall, as far as possible, establish the estimates. The Board in establishing such estimates shall to the extent practicable do so in co-operation with the Government concerned.
4. The Board shall examine the estimates, including supplementary estimates, and, except as regards requirements for special purposes, may require such information as it considers necessary in respect of any country or territory on behalf of which an estimate has been furnished in order to complete the estimate or to explain any statement contained therein.
5. The Board, with a view to limiting the use and distribution of drugs to an adequate amount required for medical and scientific purposes and to ensuring their availability for such purposes, 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.
6. In addition to the reports mentioned in article 15, the Board shall, at such times as it shall determine but at least annually, issue such information on the estimates as in its opinion will facilitate the carrying out of this Convention."
Article 13
ADMINISTRATION OF THE STATISTICAL RETURNS SYSTEM
"1. The Board shall determine the manner and form in which statistical returns shall be furnished a [sic] provided in article 20 and shall prescribe the forms therefor.
2. The Board shall examine the returns with a view to determining whether a Party or any other State has complied with the provisions of this Convention.
3. The Board may require such further information as it considers necessary to complete or explain the information contained in such statistical returns.
4. It shall not be within the competence of the Board to question or express an opinion on statistical information respecting drugs required for special purposes."
28. 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 their availability for such purposes, 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."
Article 14
Article 14 concerning MEASURES BY THE BOARD TO ENSURE THE EXECUTION OF PROVISIONS OF THE CONVENTION is drafted as follows:
"1. (a) If, on the basis of its examination of information submitted by Governments to the Board under the provisions of this Convention, or of information communicated by United Nations organs or by specialized agencies or, provided that they are approved by the Commission on the Board's recommendation, by either other intergovernmental organizations or international non-governmental organizations which have direct competence in the subject matter and which are in consultative status with the Economic and Social Council under Article 71 of the Charter of the United Nations or which enjoy a similar status by special agreement with the Council, the Board has objective reasons to believe that the aims of this Convention are being seriously endangered by reason of the failure of any Party, country or territory to carry out the provisions of this Convention, the Board shall have the right to propose to the Government concerned the opening of consultations or to request it to furnish explanations. If, without any
failure in implementing the provisions of the Convention, a Party or a country or territory has become, or if there exists evidence of a serious risk that it may become, or if there exists evidence of a serious risk that it may become [sic], an important centre of illicit cultivation, production or manufacture of, or traffic in or consumption of drugs, the Board has the right to propose to the Government concerned the opening of consultations. Subject to the right of the Board to call the attention of the Parties, the Council and the Commission to the matter referred to in subparagraph (d) below, the Board shall treat as confidential a request for information and an explanation by a Government or a proposal for consultations and the consultations held with a Government under this subparagraph.
(b) After taking action under subparagraph (a) above, the Board, if satisfied that it is necessary to do so, may call upon the Government concerned to adopt such remedial measures as shall seem under the circumstances to be necessary for the execution of the provisions of this Convention.
(c) The Board may, if it thinks such action necessary for the purpose of assessing a matter referred to in subparagraph (a) of this paragraph, propose to the Government concerned that a study of the matter be carried out in its territory by such means as the Government deems appropriate. If the Government concerned decides to undertake this study, it may request the Board to make available the expertise and the services of one or more persons with the requisite competence to assist the officials of the Government in the proposed study. The person or persons whom the Board intends to make available shall be subject to the approval of the Government. The modalities of this study and the time-limit within which the study has to be completed shall be determined by consultation between the Government and the Board. The Government shall communicate to the Board the results of the study and shall indicate the remedial measures that it considers necessary to take.
(d) If the Boards finds that the Government concerned has failed to give satisfactory explanations when called upon to do so under subparagraph (a) above, or has failed to adopt any remedial measures which it has been called upon to take under subparagraph (b) above, or that there is a serious situation that needs co-operative action at the international level with a view to remedying it, it may call the attention of the Parties, the Council and the Commission to the matter. The Board shall so act if the aims of this Convention are being seriously endangered and it has not been possible to resolve the matter satisfactorily in any other way. It shall also so act if it finds that there is a serious situation that needs co-operative action at the international level with a view to remedying it and that bringing such a situation to the notice of the Parties, the Council and the Commission is the most appropriate method of facilitating such co-operative action; after considering the reports of the Board, and of t
he Commission if available on the matter, the Council may draw the attention of the General Assembly to the matter.
2. The Board, when calling the attention of the Parties, the Council and the Commission to a matter in accordance with paragraph 1 (d) above, may, if it is satisfied that such a course is necessary, recommend to Parties that they stop the import of drugs, the export of drugs, or both, from or to the country or territory concerned, either for a designated period or until the Board shall be satisfied as to the situation in that country or territory. The State concerned may bring the matter before the Council.
3. The Board shall have the right to publish a report on any matter dealt with under the provisions of this article, and communicate it to the Council, which shall forward it to all Parties. If the Board publishes in this report a decision taken under this article or any information relating thereto, it shall also publish therein the views of the Government concerned if the latter so requests.
4. If in any case a decision of the Board which is published under this article is not unanimous, the views of the minority shall be stated.
5. Any State shall be invited to be represented at a meeting of the Board at which a question directly interesting it is considered under this article.
6. Decisions of the Board under this article shall be taken by a two-thirds majority of the whole number of the Board."
29. 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 which complement the roles of the Board of the Commission and of the Secretary-General of the United Nations are drafted as follows:
Article 14 bis
TECHNICAL AND FINANCIAL ASSISTANCE
"In cases which it considers appropriate and either in addition or as an alternative to measures set forth in article 14, paragraphs 1 and 2, the Board, with the agreement of the Government concerned, may recommend to the competent United Nations organs and to the specialized agencies that technical or financial assistance, or both, be provided to the Government in support of its efforts to carry out its obligations under this Convention, including those set out or referred to in articles 2, 35, 38 and 38 bis."
Article 15
REPORTS OF THE BOARD
"l. The Board shall prepare an annual report on its work and such additional reports as it considers necessary containing also an analysis of the estimates and statistical information at its disposal and, in appropriate cases, an account of the explanations, if any, given by or required of Governments, together with any observations and recommendations which the Board desires to make. These reports shall be submitted to the Council through the Commission, which may make such comments as it sees fit.
2. The reports shall be communicated to the Parties and subsequently published by the Secretary-General. The Parties shall permit their unrestricted distribution."
Article 16
SECRETARIAT
"The secretariat services of the Commission and the Board shall be furnished by the Secretary-General. In particular, the Secretary of the Board shall be appointed by the Secretary-General in consultation with the Board."
Article 17
SPECIAL ADMINISTRATION
"The Parties shall maintain a special administration for the purpose of applying the provisions of this Convention."
Article 18
INFORMATION TO BE FURNISHED BY PARTIES TO THE SECRETARY-GENERAL
"1. The Parties shall furnish to the Secretary-General such information as the Commission may request as being necessary for the performance of its functions, and in particular:
(a) An annual report on the working of the Convention within each of their territories;
(b) The text of all laws end regulations from time to time promulgated in order to give effect to this Convention;
(c) Such particulars as the Commission shall determine concerning cases of illicit traffic, including particulars of each case of illicit traffic discovered which may be of importance, because of the light thrown on the source from which drugs are obtained for the illicit traffic, or because of quantities involved or the method employed by illicit traffickers: and
(d) The names and addresses of the governmental authorities empowered to issue export and import authorizations or certificates.
2. Parties shall furnish the information referred to in the preceding paragraph in such manner and by such dates and use such forms as the Commission may request."
30. 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;"
Article 19
Articles 19 and 20 of the Single Convention concerning ESTIMATES OF DRUG REQUIREMENTS and STATISTICAL RETURNS TO BE FURNISHED TO THE BOARD read as follows:
Article 19
ESTIMATES OF DRUG REQUIREMENTS
"1. The Parties shall furnish to the Board each year for each of their territories, in the manner and form prescribed by the Board, estimates on forms supplied by it in respect of the following matters:
(a) Quantities of drugs to be consumed for medical and scientific purposes;
(b) Quantities of drugs to be utilized for the manufacture of other drugs, of preparations in Schedule III, and of substances not covered by this Convention;
(c) Stocks of drugs to be held as at 31 December of the year to which the estimates relate;
(d) Quantities of drugs necessary for addition to special stocks;
(e) The area (in hectares) and the geographical location of land to be used for the cultivation of the opium poppy;
(f) Approximate quantity of opium to be produced;
(g) The number of industrial establishments which will manufacture synthetic drugs; and
(h) The quantities of synthetic drugs to be manufactured by each of the establishments referred to in the preceding subparagraph.
2. (a) Subject to the deductions referred to in paragraph 3 of article 21, the total of the estimates for each territory and each drug except opium and synthetic drugs shall consist of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1.
(b) Subject to the deductions referred to in paragraph 3 of article 21 regarding imports and in paragraph 2 of article 21 bis, the total of the estimates for opium for each territory shall consist either of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1, or of the amount specified under subparagraph (f) of paragraph 1 of this article, whichever is higher.
(c) Subject to the deductions referred to in paragraph 3 of article 1, the total of the estimates for each territory for each synthetic drug shall consist either of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1, or of the sum of the amounts specified under subparagraph (h) of paragraph 1 of this article, whichever is higher.
(d) The estimates furnished under the preceding subparagraphs of this paragraph shall be appropriately modified to take into account any quantity seized and thereafter released for licit use as well as any quantity taken from special stocks for the requirements of the civilian population.
3. Any State may during the year furnish supplementary estimates with an explanation of the circumstances necessitating such estimates.
4. The Parties shall inform the Board of the method used for determining quantities shown in the estimates and of any changes in the said method.
5. Subject to the deductions referred to in paragraph 3 of article 21, and account being taken where appropriate of the provisions of article 21 bis, the estimates shall not be exceeded."
Article 20
STATISTICAL RETURNS TO BE FURNISHED TO THE BOARD
"1. The Parties shall furnish to the Board for each of their territories, in the manner and form prescribed by the Board, statistical returns on forms supplied by it in respect of the following matters:
(a) production or manufacture of drugs;
(b) Utilization of drugs for the manufacture of other drugs, of preparations in Schedule III and of substances not covered by this Convention, and utilization of poppy straw for the manufacture of drugs;
(c) Consumption of drugs;
(d) Imports and exports of drugs and poppy straw;
(e) Seizures of drugs and disposal thereof;
(f) Stocks of drugs as at 31 December of the year to which the returns relate; and
(g) Ascertainable area of cultivation of the opium poppy.
2. (a) The statistical returns in respect of the matters referred to in paragraph 1, except subparagraph (d), shall be prepared annually and shall be furnished to the Board not later than 30 June following the year to which they relate.
(b) The statistical returns in respect to the matters referred to in subparagraph (d) of paragraph 1 shall be prepared quarterly and shall be furnished to the Board within one month after the end of the quarter to which they relate.
3. The Parties are not required to furnish statistical returns respecting special stocks, but shall furnish separately returns respecting drugs imported into or procured within the country or territory for special purposes, as well as quantities of drugs withdrawn from special stocks to meet the requirements of the civilian population."
31. 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 concerning the LIMITATION OF MANUFACTURE AND IMPORTATION is drafted as follows:
"1. The total of the quantities of each drug manufactured and imported by any country or territory in any one year shall not exceed the sum of the following:
(a) The quantity consumed, within the limit of the relevant estimate, for medical and scientific purposes;
(b) The quantity used, within the limit of the relevant estimate, for the manufacture of other drugs, of preparations in Schedule III, and of substances not covered by this Convention;
(c) The quantity exported;
(d) The quantity added to the stock for the purpose of bringing that stock up to the level specified in the relevant estimate; and
(e) The quantity acquired within the limit of the relevant estimate for special purposes.
2. From the sum of the quantities specified in paragraph 1 there shall be deducted any quantity that has been seized and released for licit use, as well as any quantity taken from special stocks for the requirements of the civilian population.
3. If the Board finds that the quantity manufactured and imported in any one year exceeds the sum of the quantities specified in paragraph 1, less any deductions required under paragraph 2 of this article, any excess so established and remaining at the end of the year shall, in the following year, be deducted from the quantity to be manufactured or imported and from the total of the estimates as defined in paragraph 2 of article 19.
4. (a) If it appears from the statistical returns on imports or exports (article 20) that the quantity exported to any country or territory exceeds the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts shown to have been exported. and after deduction of any excess as established in paragraph 3 of this article, the Board may notify this fact to States which, in the opinion of the Board, should be so informed;
(b) On receipt of such a notification, Parties shall not during the year in question authorize any further exports of the drug concerned to that country or territory, except:
(i) In the event of a supplementary estimate being furnished for that country or territory in respect both of any quantity over-imported and of the additional quantity required, or
(ii) In exceptional cases where the export, in the opinion of the Government of the exporting country, is essential for the treatment of the sick."
32. As in the case of many other articles of the Single Convention, it is proposed to simply add the term "or other" to paragraph (1)(a) of this article, which should be drafted thus:
"1.(a) The quantity consumed, within the limit of the relevant estimate, for medical, scientific or other purposes;"
Article 21 bis
Article 21 bis concerning the LIMITATION OF PRODUCTION OF OPIUM is drafted as follows:
"l. The production of opium by any country or territory shall be organized and controlled in such manner as to ensure that, as far as possible, the quantity produced in any one year shall not exceed the estimate of opium to be produced as established under paragraph 1 (f) of article 19.
2. If the Board finds on the basis of information at its disposal in accordance with the provisions of this Convention that a Party which has submitted an estimate under paragraph 1 (f) of article 19 has not limited opium produced within its borders to licit purposes in accordance with relevant estimates and that a significant amount of opium produced, whether licitly or illicitly, within the borders of such a Party, has been introduced into the illicit traffic, it may, after studying the explanations of the Party concerned, which shall be submitted to it within one month after notification of the fin ding in question, decide to deduct all, or a portion, of such an amount from the quantity to be produced and from the total of the estimates as defined in paragraph 2 (b) of article 19 for the next year in which such a deduction can be technically accomplished, taking into account the season of the year and contractual commitments to export opium. This decision shall take effect ninety days after the Party conc
erned is notified thereof.
3. After notifying the Party concerned of the decision it has taken under paragraph 2 above with regard to a deduction, the Board shall consult with that Party in order to resolve the situation satisfactorily.
4. If the situation is not satisfactorily resolved, the Board may utilize the provisions of article 14 where appropriate.
5. In taking its decision with regard to a deduction under paragraph 2 above. the Board shall take into account not only all relevant circumstances including those giving rise to the illicit traffic problem referred to in paragraph 2 above, but also any relevant new control measures which may have been adopted by the Party."
33. 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 controlling the opium market for non-medical purposes, to avoid smuggling and trafficking. No change is therefore proposed for this article, other than to alter its numeration to take into account the proposed deletion of the former article 22.
Article 22
Article 22 of the Single Convention concerning the SPECIAL PROVISION APPLICABLE TO CULTIVATION is drafted as follows:
"1. Whenever the prevailing conditions in the country or a territory of a Party render the prohibition of the cultivation of the opium poppy, the coca bush or the cannabis plant the most suitable measure, in its opinion, for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic, the Party concerned shall prohibit cultivation.
2. A Party prohibiting cultivation of the opium poppy or the cannabis plant shall take appropriate measures to seize any plants illicitly cultivated and to destroy them, except for small quantities required by the Party for scientific or research purposes."
34. This provision, which allows a contracting Party to prohibit the cultivation of opium poppies, of the coca bush and of cannabis, is obviously incompatible with anti-prohibitionist thinking. It injures farmers of the third world, without really protecting public health. For this reason it is proposed that the prohibition on cultivation be replaced by its control. Such a control is, moreover, provided for in respect of opium by article 23, in respect of the coca bush by article 26, and in respect of cannabis by article 27. It is appropriate therefore purely and simply to delete article 22 from the Single Convention.
Articles 23 to 25
Articles 23 to 25 concerning the CONDITIONS OF CULTIVATION AND PRODUCTION OF OPIUM AND POPPY STRAW are drafted as follows:
Article 23
NATIONAL OPIUM AGENCIES
"1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article.
2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium;
(a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted.
(b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.
(c) Each licence shall specify the extent of the land on which the cultivation is permitted.
(d) All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.
(e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations.
3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it."
Article 24
LIMITATION ON PRODUCTION OF OPIUM FOR INTERNATIONAL TRADE
"1. (a) If any Party intends to initiate the production of opium or to increase existing production, it shall take account of the prevailing world need for opium in accordance with the estimates thereof published by the Board so that the production of opium by such Party does not result in overproduction of opium in the world.
(b) A Party shall not permit the production of opium or increase the existing production thereof if in its opinion such production or increased production in its territory may result in illicit traffic in opium.
2. (a) Subject to paragraph 1, where a Party which as of 1 January 1961 was not producing opium for export desires to export opium which it produces, in amounts not exceeding five tons annually, it shall notify the Board, furnishing with such notification information regarding:
(i) The controls in force as required by this Convention respecting the opium to be produced and exported; and
(ii) The name of the country or countries to which it expects to export such opium;
and the Board may either approve such notification or may recommend to the Party that it not engage in the production of opium for export.
(b) Where a Party other than a Party referred to in paragraph 3 desires to produce opium for export in amounts exceeding five tons annually, it shall notify the Council, furnishing with such notification relevant information including:
(i) The estimated amounts to be produced for export;
(ii) The controls existing or proposed respecting the opium to be produced;
(iii) The name of the country or countries to which it expects to export such opium;
and the Council shall either approve the notification or may recommend to the Party that it not engage in the production of opium for export.
3. Notwithstanding the provisions of subparagraphs (a) and (b) of paragraph 2, a Party that during ten years immediately prior to 1 January 1961 exported opium which such country produced may continue to export opium which it produces.
4. (a) A Party shall not import opium from any country or territory except opium produced in the territory of:
(i) A Party referred to in paragraph 3;
(ii) A Party that has notified the Board as provided in subparagraph (a) of paragraph 2; or
(iii) A Party that has received the approval of the Council as provided in subparagraph (b) of paragraph 2.
(b) Notwithstanding subparagraph (a) of this paragraph, a Party may import opium produced by any country which produced and exported opium during the ten years prior to 1 January 1961 if such country has established and maintains a national control organ or agency for the purposes set out in article 23 and has in force an effective means of ensuring that the opium it produces is not diverted into the illicit traffic.
5. The provisions of this article do not prevent a Party:
(a) From producing opium sufficient for its own requirements; or
(b) From exporting opium seized in the illicit traffic, to another Party in accordance with the requirements of this Convention."
Article 25
CONTROL OF POPPY STRAW
"1. A Party that permits the cultivation of the opium poppy for purposes other than the production of opium shall take all measures necessary to ensure:
(a) That opium is not produced from such opium poppies; and
(b) That the manufacture of drugs from poppy straw is adequately controlled.
2. The Parties shall apply to poppy straw the system of import certificates and export authorizations as provided in article 31, paragraphs 4 to 15.
3. The Parties shall furnish statistical information on the import and export of poppy straw as required for drugs under article 20, paragraphs 1 (d) and 2 (b)."
35. No change is proposed to these articles, which establish forms of control of cultivation which are perfectly compatible with systems of controlled legalization. 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 concerning the regime for THE COCA BUSH AND COCA LEAVES are drafted as follows:
Article 26
THE COCA BUSH AND COCA LEAVES
"l. If a Party permits the cultivation of the coca bush, it shall apply thereto and to coca leaves the system of controls as provided in article 23 respecting the control of the opium poppy, but as regards paragraph 2 (d) of that article, the requirements imposed on the Agency therein referred to shall be only to take physical possession of the crops as soon as possible after the end of the harvest.
2. The Parties shall so far as possible enforce the uprooting of all coca bushes which grow wild. They shall destroy the coca bushes if illegally cultivated."
Article 27
ADDITIONAL PROVISIONS RELATING TO COCA LEAVES
"1. The Parties may permit the use of coca leaves for the preparation of a flavouring agent, which shall not contain any alkaloids, and, to the extent necessary for such use may permit the production, import, export, trade in and possession of such leaves.
2. The Parties shall furnish separately estimates (article 19) and statistical information (article 20) in respect of coca leaves for preparation of the flavouring agent, except to the extent that the same coca leaves are used for the extraction of alkaloids and the flavouring agent, and so explained in the estimates and statistical information."
36. 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 compatible to resort to production and distribution monopolies in order to ensure that producers and growers receive a sufficient income and to fight smuggling. It is therefore proposed that these articles 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 implement, is moreover a 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 evading 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 concerning the CONTROL OF CANNABIS is drafted as follows:
"1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy.
2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.
3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant."
37. This text provides that the regime for the cultivation and production of opium and the coca leaf be applied to cannabis. There is no need to modify it, as it has already been seen that this regime is compatible with anti-prohibitionist logic. On the other hand, it is appropriate to delete from its third paragraph the reference to cannabis leaves when they do not require any international control (supra n·23).
Article 29
Article 29 of the Single Convention concerning MANUFACTURE is drafted as follows:
"1. The Parties shall require that the manufacture of drugs be under licence except where such manufacture is carried out by a State enterprise or State enterprises.
2. The Parties shall:
(a) Control all persons and enterprises carrying on or engaged in the manufacture of drugs;
(b) Control under licence the establishments and premises in which such manufacture may take place; and
(c) Require that licensed manufacturers of drugs obtain periodical permits specifying the kinds and amounts of drugs which they shall be entitled to manufacture. A periodical permit, however, need not be required for preparations.
3. The Parties shall prevent the accumulation, in the possession of drug manufacturers, of quantities of drugs and poppy straw in excess of those required for the normal conduct of business, having regard to the prevailing market conditions."
38. 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
Article 30 of the Single Convention relating to TRADE AND DISTRIBUTION reads as follows:
"1. (a) The Parties shall require that the trade in and distribution of drugs be under licence except where such trade or distribution is carried out by a State enterprise or State enterprises.
(b) The Parties shall:
(i) Control all persons and enterprises carrying on or engaged in the trade in or distribution of drugs;
(ii) Control under licence the establishments and premises in which such trade or distribution may take place. The requirement of licensing need not apply to preparations.
(c) The provisions of subparagraphs (a) and (b) relating to licensing need not apply to persons duly authorized to perform and while performing therapeutic or scientific functions.
2. The Parties shall also:
(a) Prevent the accumulation in the possession of traders, distributors, State enterprises or duly authorized persons referred to above, of quantities of drugs and poppy straw in excess of those required for the normal conduct of business, having regard to the prevailing market conditions; and
(b) (i) Require medical prescriptions for the supply or dispensation of drugs 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 I should be written on officials [sic] forms to be issued in the form of counterfoil books by the competent governmental authorities or by authorized professional associations.
3. It is desirable that Parties require that written or printed offers of drugs, advertisements of every kind or descriptive literature relating to drugs and used for commercial purposes, interior wrappings of packages containing drugs, and labels under which drugs are offered for sale indicate the international non-proprietary name communicated by the World Health Organization.
4. If a Party considers such measure necessary or desirable, it shall require that the inner package containing a drug or wrapping thereof shall bear a clearly visible double red band. The exterior wrapping of the package in which such drug is contained shall not bear a double red band.
5. A Party shall require that the label under which a drug is offered for sale show the exact drug content by weight or percentage. This requirement of label information need not apply to a drug dispensed to an individual on medical prescription.
6. The provisions of paragraphs 2 and 5 need not apply to the retail trade in or retail distribution of drugs in Schedule II."
39. This text provides for the regulation of trade in and distribution of drugs used for medical or scientific purposes. It provides, therefore, that the Parties may require "medical prescriptions for the supply or dispensation of drugs to individuals", and even "officials [sic] forms to be issued in the form of counterfoil books".
These requirements are obviously only understandable if the substances in question are consumed for medical or scientific purposes. The supply of drugs in accordance with prescriptions, or in accordance with counterfoil books, for purposes other than medical purposes is conceivable, but does not seem to be an appropriate mode of distribution for recreational consumption, in essence non-medical. It is thus proposed that these controls be reserved for medical and scientific uses, and therefore only for drugs in Schedule II.
Article 30(2)(b) should therefore be drafted as follows:
"(b) (i) Require medical prescriptions for the supply or dispensation of drugs used for medical purposes to individuals. This requirement need not apply to such drugs as individuals may lawfully obtain, use, dispense or administer in connexion with their duly authorized therapeutic functions; and
(ii) If the Parties deem these measures necessary or desirable, require that prescriptions for drugs in Schedule II should be written on officials [sic] forms to be issued in the form of counterfoil books by the competent governmental authorities or by authorized professional associations."
Article 31
Article 31 of the Single Convention concerning SPECIAL PROVISIONS RELATING TO INTERNATIONAL TRADE is drafted as follows:
"1. The Parties shall not knowingly permit the export of drugs to any country or territory except:
(a) In accordance with the laws and regulations of that country or territory; and
(b) Within the limits of the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts intended to be re-exported.
2. The Parties shall exercise in free ports and zones the same supervision and control as in other parts of their territories, provided, however, that they may apply more drastic measures.
3. The Parties shall:
(a) Control under licence the import and export of drugs except where such import or export is carried out by a State enterprise or enterprises;
(b) Control all persons and enterprises carrying on or engaged in such import or export.
4. (a) Every Party permitting the import or export of drugs shall require a separate import or export authorization to be obtained for each such import or export whether it consists of one or more drugs.
(b) Such authorization shall state the name of the drug, the international non-proprietary name if any, the quantity to be imported or exported, and the name and address of the importer and exporter, and shall specify the period within which the importation or exportation must be effected.
(c) The export authorization shall also state the number and date of the import certificate (paragraph 5) and the authority by whom it has been issued.
(d) The import authorization may allow an importation in more than one consignment.
5. Before issuing an export authorization the Parties shall require an import certificate, issued by the competent authorities of the importing country or territory and certifying that the importation of the drug or drugs referred to therein, is approved and such certificate shall be produced by the person or establishment applying for the export authorization. The Parties shall follow as closely as may be practicable the form of import certificate approved by the Commission.
6. A copy of the export authorization shall accompany each consignment, and the Government issuing the export authorization shall send a copy to the Government of the importing country or territory.
7. (a) The Government of the importing country or territory, when the importation has been effected or when the period fixed for the importation has expired, shall return the export authorization, with an endorsement to that effect, to the Government of the exporting country or territory.
(b) The endorsement shall specify the amount actually imported.
(c) If a lesser quantity than that specified in the export authorization is actually exported, the quantity actually exported shall be stated by the competent authorities on the export authorization and on any official copy thereof.
8. Exports of consignments to a post office box, or to a bank to the account of a Party other than the Party named in the export authorization, shall be prohibited.
9. Exports of consignments to a bonded warehouse are prohibited unless the Government of the importing country certifies on the import certificate, produced by the person or establishment applying for the export authorization, that it has approved the importation for the purpose of being placed in a bonded warehouse. In such case the export authorization shall specify that the consignment is exported for such purpose. Each withdrawal from the bonded warehouse shall require a permit from the authorities having jurisdiction over the warehouse and, in the case of a foreign destination shall be treated as if it were a new export within the meaning of this Convention.
10. Consignments of drugs entering or leaving the territory of a Party not accompanied by an export authorization shall be detained by the competent authorities.
11. A Party shall not permit any drugs consigned to another country to pass through its territory, whether or not the consignment is removed from the conveyance in which it is carried, unless a copy of the export authorization for such consignment is produced to the competent authorities of such Party.
12. The competent authorities of any country or territory through which a consignment of drugs is permitted to pass shall take all due measures to prevent the diversion of the consignment to a destination other than that named in the accompanying copy of the export authorization unless the Government of that country or territory through which the consignment is passing authorizes the diversion. The Government of the country or territory of transit shall treat any requested diversion as if the diversion were an export from the country or territory of transit to the country or territory of new destination. If the diversion is authorized, the provisions of paragraph 7 (a) and (b) shall also apply between the country or territory of transit and the country or territory which originally exported the consignment.
13. No consignment of drugs while in transit, or whilst being stored in a bonded warehouse, may be subjected to any process which would change the nature of the drugs in question. The packing may not be altered without the permission of the competent authorities.
14. The provisions of paragraphs 11 to 13 relating to the passage of drugs through the territory of a Party do not apply where the consignment in question is transported by aircraft which does not land in the country or territory of transit. If the aircraft lands in any such country or territory, those provisions shall be applied so far as circumstances require.
15. The provisions of this article are without prejudice to the provisions of any international agreements which limit the control which may be exercised by any of the Parties over drugs in transit.
16. Nothing in this article other than paragraphs 1 (a) and 2 need apply in the case of preparations in Schedule III."
40. This text, 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 that which is effective for the control of trade for medical or scientific purposes will be equally as effective for the control of trade for recreational or other purposes.
Article 32
Article 32 of the Single Convention concerning first-aid kits is drafted as follows:
"1. The international carriage by ships or aircraft of such limited amounts of drugs as may be needed during their journey or voyage for first-aid purposes or emergency cases shall not be considered to be import, export or passage through a country within the meaning of this Convention.
2. Appropriate safeguards shall be taken by the country of registry to prevent the improper use of the drugs referred to in paragraph 1 or their diversion for illicit purposes. The Commission, in consultation with the appropriate international organizations, shall recommend such safeguards.
3. Drugs carried by ships or aircraft in accordance with paragraph 1 shall be subject to the laws, regulations, permits and licences of the country of registry, without prejudice to any rights of the competent local authorities to carry out checks, inspections and other control measures on board ships or aircraft. The administration of such drugs in the case of emergency shall not be considered a violation of the requirements of article 30, paragraph 2 (b)."
41. No modification of this purely technical text is proposed.
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."
42. This text, which, in contrast to Article 31, is the shortest of the Convention, nevertheless requires clarification. Controversy has arisen over it, and in particular over the meaning to be given to the word "possession" (Commentary, p.402). 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 (Commentary, op cit).
Even this is too much for anti-prohibitionist thinking, which could not agree to any penalty whatsoever for the possession of drugs for personal consumption. One can, on the other hand, perfectly well accept that public use or use while driving could 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
Article 34 of the Single Convention concerning MEASURES OF SUPERVISION AND INSPECTION is drafted as follows:
The Parties shall require:
(a) That all persons who obtain licences as provided in accordance with this Convention, or who have managerial or supervisory positions in a State enterprise established in accordance with this Convention, shall have adequate qualifications for the effective and faithful execution of the provisions of such laws and regulations as are enacted in pursuance thereof; and
(b) That governmental authorities, manufacturers, traders, scientists, scientific institutions and hospitals keep such records as will show the quantities of each drug manufactured and of each individual acquisition and disposal of drugs. Such records shall respectively be preserved for a period of not less than two years. Where counterfoil books (article 30, paragraph 2 (b)) of official prescriptions are used, such books including the counterfoils shall also be kept for a period of not less than two years."
41. This text, which is essentially technical in character, requires no modification and can be retained in its present state.
Article 35 and 36
Articles 35, 36 and 37 of the Single Convention are devoted to repressive provisions. The first establishes international cooperation in criminal matters involved in ACTION AGAINST THE ILLICIT TRAFFIC, the second invites the contracting Parties to adopt PENAL PROVISIONS, and the third relates to SEIZURE AND CONFISCATION.
Article 35
ACTION AGAINST THE ILLICIT TRAFFIC
"Having due regard to their constitutional, legal and administrative systems, the Parties shall:
(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;
(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;
(c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;
(d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and [sic]
(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;
(f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and
(g) Furnish the information referred to in the preceding paragraph as far as possible in such manner and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party."
Article 36
PENAL PROVISIONS
"1. (a) Subject to its constitutional limitations, 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, and 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.
(b) Notwithstanding the preceding subparagraph, when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 38.
2. Subject to the constitutional limitations of a Party, its legal system and domestic law,
(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;
(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;
(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and
(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.
(b) (i) Each of the offences enumerated in paragraphs l and 2 (a) (ii) of this article shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
(ii) If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested Party.
(iii) Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.
(iv) Extradition shall be granted in conformity with the law of the Party to which application is made, and, notwithstanding subparagraphs (b) (i), (ii) and (iii) of this paragraph, the Party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.
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."
Article 37
SEIZURE AND CONFISCATION
"Any drugs, substances and equipment used in or intended for the commission of any of the offences, referred to in article 36, shall be liable to seizure and confiscation."
43. While the first and last of these three articles do not require particular comment in so far as they are limited to ensuring coordination in 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 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 a 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 made between self-executing treaties and executory treaties, which latter only impose obligations on States, but which are not directly or immediately applicable by courts. The Single Convention is without doubt an executory treaty, even if certain courts, particularly French ones, have held the contrary (Crim., 12 December 1984, B. crim. n·402, p.1077; Crim., 5 February 1990, Thomas et Jezéquel, Dr. pén., June 1990, p.9, in which the decision asserts that the definition of cannabis in the Single Convention takes precedence over the French definition in article R.5166 CSP). 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 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 more strict (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 language 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 is limited to referring 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 in 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 criminalizes neither conspiracy, nor laundering, nor incitement to use or to traffic, which are criminalized 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 designating "money laundering", "conspiracy" and "incitement to use or to traffic" as offences in the next 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
Article 38 of the Single Convention concerning MEASURES AGAINST THE ABUSE OF DRUGS is drafted as follows:
"1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.
2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of drugs.
3. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread."
44. This text relating to the treatment of drug addicts is very clearly drafted and no modification is required.
Articles 38 bis to 51
Article 38 bis
AGREEMENTS ON REGIONAL CENTRES
"If a Party considers it desirable as part of its action against the illicit traffic in drugs, having due regard to its constitutional, legal and administrative systems, and, if it so desires, with the technical advice of the Board or the specialized agencies, it shall promote the establishment, in consultation with other interested Parties in the region, of agreements which contemplate the development of regional centres for scientific research and education to combat the problems resulting from the illicit use of and traffic in drugs."
Article 39
APPLICATION OF STRICTER NATIONAL CONTROL MEASURES THAN THOSE REQUIRED BY THIS CONVENTION
"Notwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention and in particular from requiring that Preparations in Schedule III or drugs in Schedule II be subject to all or such of the measures of control applicable to drugs in Schedule I as in its opinion is necessary or desirable for the protection of the public health or welfare."
Article 40(3)
LANGUAGES OF THE CONVENTION AND PROCEDURE FOR SIGNATURE, RATIFICATION AND ACCESSION
"1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be open for signature until 1 August 1961 on behalf of any Member of the United Nations, of any non-member State which is a Party to the Statute of the International Court of Justice or member of a specialized agency of the United Nations, and also of any other State which the Council may invite to become a Party.
2. This Convention is subject to ratification. The instruments or ratification shall be deposited with the Secretary-General.
3. This Convention shall be open after 1 August 1961 for accession by the States referred to in paragraph 1. The instruments of accession shall be deposited with the Secretary-General."
Article 41
ENTRY INTO FORCE
"1. This Convention shall come into force on the thirtieth day following the date on which the fortieth instrument of ratification or accession is deposited in accordance with article 40.
2. In respect of any other State depositing an instrument of ratification or accession after the date of deposit of the said fortieth instrument, this Convention shall come into force on the thirtieth day after the deposit by that State of its instrument of ratification or accession."
Article 42
TERRITORIAL APPLICATION
"This Convention shall apply to all non-metropolitan territories for the international relations of which any Party is responsible except where the previous consent of such a territory is required by the Constitution of the Party or of the territory concerned or required by custom. In such case the Party shall endeavour to secure the needed consent of the territory within the shortest period possible, and when that consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature ratification or accession, declare the non-metropolitan territory or territories to which this Convention applies."
Article 43
TERRITORIES FOR THE PURPOSES OF ARTICLES 19, 20, 21 AND 31
"1. Any Party may notify the Secretary-General that for the purposes of articles 19, 20, 21 and 31, one of its territories is divided into two or more territories, or that two or more of its territories are consolidated into a single territory.
2. Two or more Parties may notify the Secretary-General that, as the result of the establishment of a customs union between them, those Parties constitute a single territory for the purposes of articles 19, 20, 21 and 31.
3. Any notification under paragraph l or 2 above shall take effect on 1 January of the year following the year in which the notification was made."
Article 44
TERMINATION OF PREVIOUS INTERNATIONAL TREATIES
"l. The provisions of this Convention, upon its coming into force, shall as between Parties hereto, terminate and replace the provisions of the following treaties:
(a) International Opium Convention, signed at The Hague on 23 January 1912;
(b) Agreement concerning the Manufacture of, Internal Trade in and Use of Prepared Opium, signed at Geneva on 11 February 1925;
(c) International Opium Convention, signed at Geneva on 19 February 1925;
(d) Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, signed at Geneva on 13 July 1931;
(e) Agreement for the Control of Opium Smoking in ln the Far East, signed at Bangkok on 27 November 1931;
(f) Protocol signed at Lake Success on 11 December 1946, amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936, except as it affects the last-named Convention;
(g) The Conventions and Agreements referred to in subparagraphs (a) to (e) as amended by the Protocol of 1946 referred to in subparagraph (f);
(h) Protocol signed at Paris on 19 November 1948 Bringing under International Control Drugs outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, as Amended by the Protocol signed at Lake Success on 11 December 1946;
(i) Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, signed at New York on 23 June 1953, should that Protocol have come into force.
2. Upon the coming into force of this Convention, article 9 of the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, signed at Geneva on 26 June 1936, shall, between the Parties thereto which are also Parties to this Convention, be terminated, and shall be replaced by paragraph 2(b) of article 36 of this Convention; provided that such a Party may by notification to the Secretary-General continue in force the said article 9."
Article 45
TRANSITIONAL PROVISIONS
"1. The functions of the Board provided for in article 9 shall, as from the date of the coming into force of this Convention (article 41, paragraph 1), be provisionally carried out by the Permanent Central Board constituted under chapter VI of the Convention referred to in article 44 (c) as amended, and by the Supervisory Body constituted under chapter II of the Convention referred to in article 44 (d) as amended, as such functions may respectively require.
2. The Council shall fix the date on which the new Board referred to in article 9 shall enter upon its duties. As from that date that Board shall, with respect to the States Parties to the treaties enumerated in article 44 which are not Parties to this Convention, undertake the functions of the Permanent Central Board and of the Supervisory Body referred to in paragraph 1."
Article 46
DENUNCIATION
"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.
2. 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.
3. 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."
Article 47
AMENDMENTS
"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."
Article 48
DISPUTES
"1. If there should arise between two or more Parties a dispute relating to the interpretation or application of this Convention, the said Parties shall consult together with a view to the settlement of the dispute by negotiation, investigation, mediation, conciliation, arbitration, recourse to regional bodies, judicial process or other peaceful means of their own choice.
2. Any such dispute which cannot be settled in the manner prescribed shall be referred to the International Court of Justice for decision."
Article 49
TRANSITIONAL RESERVATIONS
"1. 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.
2. The reservations under paragraph 1 shall be subject to the following restrictions:
(a) The activities mentioned in paragraph 1 may be authorized only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961.
(b) No export of the drugs referred to in paragraph 1 for the purposes mentioned therein may be permitted to a non-party or to a territory to which this Convention does not apply under article 42.
(c) Only such persons may be permitted to smoke opium as were registered by the competent authorities to this effect on 1 January 1964.
(d) The quasi-medical use of opium must be abolished within 15 years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(e) Coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(f) The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(g) The production and manufacture of and trade in the drugs referred to in paragraph 1 for any of the uses mentioned therein must be reduced and finally abolished simultaneously with the reduction and abolition of such uses.
3. A Party making a reservation under paragraph 1 shall:
(a) Include in the annual report to be furnished to the Secretary-General, in accordance with article 18, paragraph 1 (a), an account of the progress made in the preceding year towards the abolition of the use, production, manufacture or trade referred to under paragraph l; and
(b) Furnish to the Board separate estimates (article 19) and statistical returns (article 20) in respect of the reserved activities in the manner and form prescribed by the Board.
4. (a) If a Party which makes a reservation under paragraph 1 fails to furnish:
(i) The report referred to in paragraph 3 (a) within six months after the end of the year to which the information relates;
(ii) The estimates referred to in paragraph 3 (b) within three months after the date fixed for that purpose by the Board in accordance with article 12, paragraph 1;
(iii) The statistics referred to in paragraph 3 (b) within three months after the date on which they are due in accordance with article 20, paragraph 2,
the Board or the Secretary-General, as the case may be, shall send to the Party concerned a notification of the delay, and shall request such information within a period of three months after the receipt of that notification.
(b) If the Party fails to comply within this period with the request of the Board or the Secretary-General, the reservation in question made under paragraph 1 shall cease to be effective.
5. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations."
Article 50
OTHER RESERVATIONS
"1. No reservations other than those made in accordance with article 49 or with the following paragraphs shall be permitted.
2. Any State may at the time of signature, ratification or accession make reservations in respect of the following provisions of this Convention: Article 12, paragraphs 2 and 3; article 13, paragraph 2; article 14, paragraphs 1 and 2; article 31, paragraph 1 (b) and article 48.
3. A State which desires to become a Party but wishes to be authorized to make reservations other than those made in accordance with paragraph 2 of this article or with article 49 may inform the Secretary-General of such intention. Unless by the end of twelve months after the date of the Secretary-General's communication of the reservation concerned, this reservation has been objected to by one third of the States that have ratified or acceded to this Convention before the end of that period, it shall be deemed to be permitted, it being understood however that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by the reservation.
4. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations."
Article 51
NOTIFICATIONS
"The Secretary-General shall notify to all the States referred to in paragraph 1 of article 40:
(a) Signatures, ratifications and accessions in accordance with article 40;
(b) The date upon which this Convention enters into force in accordance with article 41;
(c) Denunciations in accordance with article 46; and
(d) Declarations and notifications under articles 42, 43, 47, 49 and 50."
45. The provisions from article 38 bis to article 51 of the Single Convention only set out technical or procedural rules regulating the territorial application of the Single Convention (art. 38 bis, 42 and 43), its temporal application (art. 41, 44 and 45), the possibility of denunciation (art. 46), of amendment (art. 47) and of reservations, 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.
IT IS THEREFORE PROPOSED THAT THE TEXT OF THE SINGLE CONVENTION BE MODIFIED AS SET OUT IN ANNEX 1.
Done at Paris, 16 November 1993
Annex 1
SINGLE CONVENTION ON NARCOTIC DRUGS OF 1961
AS AMENDED BY THE 1972 PROTOCOL AMENDING
THE SINGLE CONVENTION ON NARCOTIC DRUGS OF 1961.
Preamble
The Parties,
Concerned with the physical and mental health of mankind,
Concerned with the problem of public health and the social problem caused by the abuse of certain narcotic drugs,
Recognizing that the use of these substances for medical or scientific purposes is indispensable for the relief of pain and that it should not be subject to any unjustified restrictions,
Recognizing that their use for recreational purposes or others, is part of the freedom of each individual and the rights of man, subject to the condition that it does not cause harm to others or society,
Determined to prevent and combat the abuse of these substances and illicit traffic which it engenders,
Deeply concerned by the magnitude of and the rising trend in the illicit production of, demand for and traffic in narcotic drugs, which adversely affect the economic, cultural and legal foundations of society,
Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and in particular amongst the young exploited by drug traffickers,
Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States,
Aware that illicit traffic generates significant financial profits enabling criminal organizations to penetrate and corrupt the structures of government and legitimate commercial and financial business,
Understanding that effective measures against abuse of narcotic drugs require coordinated and universal action,
Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned exercise their activities within the framework of that Organization,
Desiring to conclude a generally acceptable international Convention replacing all existing treaties, limiting such drugs to medical and scientific or other uses, whilst ensuring protection against abuse of society and third parties,
Finally desiring to conclude a worldwide and operational international Convention aiming to combat illicit traffic effectively by a system of legalized control in which the health and social risk of the controlled substances is taken into account and the various cultural, economic and legal aspects of the problem,
Hereby agree as follows:
Article 1
DEFINITIONS
1. Except where otherwise expressly indicated or where the context otherwise requires, the following definitions shall apply throughout the Convention:
(a) "Board" means the International Narcotics Control Board,
(b) "Cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.
(c) "Cannabis plant" means any plant of the genus Cannabis,
(d) "Cannabis resin" means the separated resin, whether crude or purified, obtained from the cannabis plant.
(e) "Coca bush" means the plant of any species of the genus Erythroxylon.
(f) "Coca leaf" means the leaf of the coca bush except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed.
(g) "Commission" means the Commission on Narcotic Drugs of the Council.
(h) "Council" means the Economic and Social Council of the United Nations.
(i) "Cultivation" means the cultivation of the opium poppy, coca bush or cannabis plant.
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;
(k) "General Assembly" means the General Assembly of the United Nations.
(l) "Illicit traffic" means cultivation or trafficking in drugs contrary to the provisions of this Convention.
(m) "Import" and "export" mean in their respective connotations the physical transfer of drugs from one State to another State, or from one territory to another territory of the same State.
(n) "Manufacture" means all processes, other than production, by which drugs may be obtained and includes refining as well as the transformation of drugs into other drugs.
(o) "Medicinal opium" means opium which has undergone the processes necessary to adapt it for medicinal use.
(p) "Opium" means the coagulated juice of the opium poppy.
(q) "Opium poppy" means the plant of the species Papaver somniferum L.
(r) "Poppy straw" means all parts (except the seeds) of the opium poppy, after mowing.
(s) "Preparation" means a mixture, solid or liquid, containing a drug.
(t) "Production" means the separation of opium coca leaves, cannabis and cannabis resin from the plants from which they are obtained.
(u) "Schedule I", "Schedule II", "Schedule III" and "Schedule IV" mean the correspondingly numbered list of drugs or preparations annexed to this Convention, as amended from time to time in accordance with article 3.
(v) "Secretary-General" means the Secretary-General of the United Nations.
(w) "Special stocks" means the amounts of drugs held in a country or territory by the Government of such country or territory for special government purposes and to meet exceptional circumstances; and the expression "special purposes" shall be construed accordingly.
(x) "Stocks" means the amounts of drugs held in a country or territory and intended for:
(i) Consumption in the country or territory for medical and scientific purposes,
(ii) Utilization in the country or territory for the manufacture of drugs and other substances, or
(iii) Export;
but does not include the amounts of drugs held in the country or territory,
(iv) By retail pharmacists or other authorized retail distributors and by institutions or qualified persons in the duly authorized exercise of therapeutic or scientific functions, or
(v) As "special stocks".
(y) "Territory" means any part of a State which is treated as a separate entity for the application of the system of import certificates and export authorizations provided for in article 31. This definition shall not apply to the term "territory" as used in articles 42 and 46.
2. For the purposes of this Convention a drug shall be regarded as "consumed" when it has been supplied to any person or enterprise for retail distribution, medical use or scientific research; and "consumption" shall be construed accordingly.
Article 2
SUBSTANCES UNDER CONTROL
1. Except as to measures of control which are limited to specified drugs, the drugs in Schedule I are subject to all measures of control applicable to drugs under this Convention and in particular to those prescribed in article 4(c), 19, 20, 21, 29, 30, 31, 32, 33, 34 and 37.
2. The drugs in Schedule II are subject to the same measures of control as drugs in Schedule I with the exception of the measures prescribed in article 30, paragraphs 2 and 5, in respect of the retail trade.
3. Preparations other than those in Schedule III are subject to the same measures of control as the drugs which they contain, but estimates (article 19) and statistics (article 20) distinct from those dealing with these drugs shall not be required in the case of such preparations, and article 29, paragraph 2 (c) and article 30, paragraph 1 (b) (ii) need not apply.
4. Preparations in Schedule III are subject to the same measures of control as preparations containing drugs in Schedule II except that article 31, paragraphs 1 (b) and 3 to 15 and as regards their acquisition and retail distribution, article 34, paragraph (b), need not apply, and that for the purpose of estimates (article 19) and statistics (article 20) the information required shall be restricted to the quantities of drugs used in the manufacture of such preparations.
5. The drugs in Schedule IV shall also be included in Schedule I and subject to all measures of control applicable to drugs in the latter Schedule, and in addition thereto:
(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and
(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party.
6. In addition to the measures of control applicable to all drugs in Schedule I, opium is subject to the provisions of article 19, paragraph 1, subparagraph (f), and of articles 21 bis, 23 and 24, the coca leaf to those of articles 26 and 27 and cannabis to those of article 28.
7. The opium poppy, the coca bush, the cannabis plant and the poppy straw (three words deleted) are subject to the control measures prescribed in article 19, paragraph 1, subparagraph (e), article 20, paragraph 1, subparagraph (g), article 21 bis and in articles 22 to 24; 22, 26 and 27; 22 and 28; 25; and 28, respectively.
8. The Parties shall use their best endeavours to apply to substances which do not fall under this Convention, but which may be used in the illicit manufacture of drugs, such measures of supervision as may be practicable.
9. Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes, provided that:
(a) They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects (article 3, paragraph 3) and that the harmful substances cannot in practice be recovered; and
(b) They include in the statistical information (article 20) furnished by them the amount of each drugs so used.
Article 3
CHANGES IN THE SCOPE OF CONTROL
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 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.
(iv) If the World Health Organization finds that the substance is liable to similar abuse and productive of similar ill effects 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 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, merely by its use, even occasional to create risks of abuse and behaviour dangerous to society or third parties, the Commission may, in accordance with the recommendation of the World Health Organization, place that drug in Schedule IV.
6. Where a notification relates to a drug already in Schedule I or Schedule II or to a preparation in Schedule III, the Commission, apart from the measure provided for in paragraph 5, may, in accordance with the recommendation of the World Health Organization, amend any of the Schedules by:
(a) Transferring a drug from Schedule I to Schedule II or from Schedule II to Schedule I; or
(b) Deleting a drug or a preparation as the case may be, from a Schedule.
(c) Transferring a drug from a Schedule of the Single Convention to a Schedule of the Vienna Convention on psychotropic substances.
7. Any decision of the Commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decision shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.
8. (a) The decisions of the Commission amen ding any of the Schedules shall be subject to review by the Council upon the request of any Party filed within ninety days from receipt of notification of the decision. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;
(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration;
(c) The Council may confirm, alter or reverse the decision of the Commission, and the decision of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization, and to the Board;
(d) During pendency of the review the original decision of the Commission shall remain in effect.
9. Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7.
Article 4
GENERAL OBLIGATIONS
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, scientific or other purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
Article 5
INTERNATIONAL CONTROL ORGANS
The Parties, recognizing the competence of the United Nations with respect to the international control of drugs, agree to entrust to the Commission on Narcotic Drugs of the Economic and Social Council, and to the International Narcotics Control Board, the functions respectively assigned to them under this Convention.
Article 6
EXPENSES OF THE INTERNATIONAL CONTROL ORGANS
The expenses of the Commission and the Board will be borne by the United Nations in such manner as shall be decided by the General Assembly. The Parties which are not Members of the United Nations shall contribute to these expenses such amounts as the General Assembly finds equitable and assess from time to time after consultation with the Governments of these Parties.
Article 7
REVIEW OF DECISIONS AND RECOMMENDATIONS OF THE COMMISSION
Except for decisions under article 3, each decision or recommendation adopted by the Commission pursuant to the provisions of this Convention shall be subject to approval or modification by the Council or the General Assembly in the same way as other decisions or recommendations of the Commission.
Article 8
FUNCTIONS OF THE COMMISSION
The Commission is authorized to consider all matters pertaining to the aims of this Convention, and in particular:
(a) To amend the Schedules in accordance with article 3;
(b) To call the attention of the Board to any matters which may be relevant to the functions of the Board;
(c) To make recommendations for the implementation of the aims and provisions of this Convention, including programmes of scientific research and the exchange of information of a scientific or technical nature; and
(d) To draw the attention of non-parties to decisions and recommendations which it adopts under this Convention, with a view to their considering taking action in accordance therewith.
Article 9
COMPOSITION AND FUNCTIONS OF THE BOARD
1. The Board shall consist of thirteen members to be elected by the Council as follows:
(a) Three members with medical, pharmacological or pharmaceutical experience from a list of at least five persons nominated by the World Health Organization; and
(b) Ten members from a list of persons nominated by the Members of the United Nations and by Parties which are not Members of the United Nations.
2. Members of the Board shall be persons who, by their competence, impartiality and disinterestedness, will command general confidence. During their term of office they shall not hold any position or engage in any activity which would be liable to impair their impartiality in the exercise of their functions. The Council shall, in consultation with the Board, make all arrangements necessary to ensure the full technical independence of the Board in carrying out its functions.
3. The Council, with due regard to the principle of equitable geographic representation, shall give consideration to the importance of including on the Board, in equitable proportion, persons possessing a knowledge of the drug situation in the producing, manufacturing, and consuming countries, and connected with such countries.
4. The Board, in co-operation with Governments, and subject to the terms of this Convention, shall endeavour to limit the cultivation, productions manufacture and use of drugs to an adequate amount required for medical, scientific or other purposes to ensure their availability for such purposes and to prevent illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs.
5. All measures taken by the Board under this Convention shall be those most consistent with the intent to further the co-operation of Governments with the Board and to provide the mechanism for a continuing dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims of this Convention.
Article 10
TERMS OF OFFICE AND REMUNERATION OF MEMBERS OF THE BOARD
1. The members of the Board shall serve for a period of five years, and may be re-elected.
2. The term of office of each member of the Board shall end on the eve of the first meeting of the Board which his successor shall be entitled to attend.
3. A member of the Board who has failed to attend three consecutive sessions shall be deemed to have resigned.
4. The Council, on the recommendation of the Board, may dismiss a member of the Board who has ceased to fulfil the conditions required for membership by paragraph 2 of article 9. Such recommendation shall be made by an affirmative vote of nine members of the Board.
5. Where a vacancy occurs on the Board during the term of office of a member, the Council shall fill such vacancy as soon as possible and in accordance with the applicable provisions of article 9, by electing another member for the remainder of the term.
6. The members of the Board shall receive an adequate remuneration as determined by the General Assembly.
Article 11
RULES OF PROCEDURE OF THE BOARD
1. The Board shall elect its own President and such other officers as it may consider necessary and shall adopt its rules of procedure.
2. The Board shall meet as often as, in its opinion, may be necessary for the proper discharge of its functions but shall hold at least two sessions in each calendar year.
3. The quorum necessary at meetings of the Board shall consist of eight members.
Article 12
ADMINISTRATION OF THE ESTIMATE SYSTEM
1. The Board shall fix the date or dates by which, and the manner in which, the estimates as provided in article 19 shall be furnished and shall prescribe the forms therefor.
2. The Board shall, in respect of countries and territories to which this Convention does not apply, request the Governments concerned to furnish estimates in accordance with the provisions of this Convention.
3. If any State fails to furnish estimates in respect of any of its territories by the date specified, the Board shall, as far as possible, establish the estimates. The Board in establishing such estimates shall to the extent practicable do so in co-operation with the Government concerned.
4. The Board shall examine the estimates, including supplementary estimates, and, except as regards requirements for special purposes, may require such information as it considers necessary in respect of any country or territory on behalf of which an estimate has been furnished in order to complete the estimate or to explain any statement contained therein.
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 their availability for such purposes, 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."
6. In addition to the reports mentioned in article 15, the Board shall, at such times as it shall determine but at least annually, issue such information on the estimates as in its opinion will facilitate the carrying out of this Convention.
Article 13
ADMINISTRATION OF THE STATISTICAL RETURNS SYSTEM
1. The Board shall determine the manner and form in which statistical returns shall be furnished a [sic] provided in article 20 and shall prescribe the forms therefor.
2. The Board shall examine the returns with a view to determining whether a Party or any other State has complied with the provisions of this Convention.
3. The Board may require such further information as it considers necessary to complete or explain the information contained in such statistical returns.
4. It shall not be within the competence of the Board to question or express an opinion on statistical information respecting drugs required for special purposes.
Article 14
MEASURES BY THE BOARD TO ENSURE THE EXECUTION OF PROVISIONS OF THE CONVENTION
1. (a) If, on the basis of its examination of information submitted by Governments to the Board under the provisions of this Convention, or of information communicated by United Nations organs or by specialized agencies or, provided that they are approved by the Commission on the Board's recommendation, by either other intergovernmental organizations or international non-governmental organizations which have direct competence in the subject matter and which are in consultative status with the Economic and Social Council under Article 71 of the Charter of the United Nations or which enjoy a similar status by special agreement with the Council, the Board has objective reasons to believe that the aims of this Convention are being seriously endangered by reason of the failure of any Party, country or territory to carry out the provisions of this Convention, the Board shall have the right to propose to the Government concerned the opening of consultations or to request it to furnish explanations. If, without any
failure in implementing the provisions of the Convention, a Party or a country or territory has become, or if there exists evidence of a serious risk that it may become, or if there exists evidence of a serious risk that it may become [sic], an important centre of illicit cultivation, production or manufacture of, or traffic in or consumption of drugs, the Board has the right to propose to the Government concerned the opening of consultations. Subject to the right of the Board to call the attention of the Parties, the Council and the Commission to the matter referred to in subparagraph (d) below, the Board shall treat as confidential a request for information and an explanation by a Government or a proposal for consultations and the consultations held with a Government under this subparagraph.
(b) After taking action under subparagraph (a) above, the Board, if satisfied that it is necessary to do so, may call upon the Government concerned to adopt such remedial measures as shall seem under the circumstances to be necessary for the execution of the provisions of this Convention.
(c) The Board may, if it thinks such action necessary for the purpose of assessing a matter referred to in subparagraph (a) of this paragraph, propose to the Government concerned that a study of the matter be carried out in its territory by such means as the Government deems appropriate. If the Government concerned decides to undertake this study, it may request the Board to make available the expertise and the services of one or more persons with the requisite competence to assist the officials of the Government in the proposed study. The person or persons whom the Board intends to make available shall be subject to the approval of the Government. The modalities of this study and the time-limit within which the study has to be completed shall be determined by consultation between the Government and the Board. The Government shall communicate to the Board the results of the study and shall indicate the remedial measures that it considers necessary to take.
(d) If the Boards finds that the Government concerned has failed to give satisfactory explanations when called upon to do so under subparagraph (a) above, or has failed to adopt any remedial measures which it has been called upon to take under subparagraph (b) above, or that there is a serious situation that needs co-operative action at the international level with a view to remedying it, it may call the attention of the Parties, the Council and the Commission to the matter. The Board shall so act if the aims of this Convention are being seriously endangered and it has not been possible to resolve the matter satisfactorily in any other way. It shall also so act if it finds that there is a serious situation that needs co-operative action at the international level with a view to remedying it and that bringing such a situation to the notice of the Parties, the Council and the Commission is the most appropriate method of facilitating such co-operative action; after considering the reports of the Board, and of t
he Commission if available on the matter, the Council may draw the attention of the General Assembly to the matter.
2. The Board, when calling the attention of the Parties, the Council and the Commission to a matter in accordance with paragraph 1 (d) above, may, if it is satisfied that such a course is necessary, recommend to Parties that they stop the import of drugs, the export of drugs, or both, from or to the country or territory concerned, either for a designated period or until the Board shall be satisfied as to the situation in that country or territory. The State concerned may bring the matter before the Council (paragraph to be deleted).
3. The Board shall have the right to publish a report on any matter dealt with under the provisions of this article, and communicate it to the Council, which shall forward it to all Parties. If the Board publishes in this report a decision taken under this article or any information relating thereto, it shall also publish therein the views of the Government concerned if the latter so requests.
4. If in any case a decision of the Board which is published under this article is not unanimous, the views of the minority shall be stated.
5. Any State shall be invited to be represented at a meeting of the Board at which a question directly interesting it is considered under this article.
6. Decisions of the Board under this article shall be taken by a two-thirds majority of the whole number of the Board.
Article 14 bis
TECHNICAL AND FINANCIAL ASSISTANCE
In cases which it considers appropriate and either in addition or as an alternative to measures set forth in article 14, paragraphs 1 and 2, the Board, with the agreement of the Government concerned, may recommend to the competent United Nations organs and to the specialized agencies that technical or financial assistance, or both, be provided to the Government in support of its efforts to carry out its obligations under this Convention, including those set out or referred to in articles 2, 35, 38 and 38 bis.
Article 15
REPORTS OF THE BOARD
1. The Board shall prepare an annual report on its work and such additional reports as it considers necessary containing also an analysis of the estimates and statistical information at its disposal and, in appropriate cases, an account of the explanations, if any, given by or required of Governments, together with any observations and recommendations which the Board desires to make. These reports shall be submitted to the Council through the Commission, which may make such comments as it sees fit.
2. The reports shall be communicated to the Parties and subsequently published by the Secretary-General. The Parties shall permit their unrestricted distribution.
Article 16
SECRETARIAT
The secretariat services of the Commission and the Board shall be furnished by the Secretary-General. In particular, the Secretary of the Board shall be appointed by the Secretary-General in consultation with the Board.
Article 17
SPECIAL ADMINISTRATION
The Parties shall maintain a special administration for the purpose of applying the provisions of this Convention.
Article 18
INFORMATION TO BE FURNISHED BY PARTIES TO THE SECRETARY-GENERAL
1. The Parties shall furnish to the Secretary-General such information as the Commission may request as being necessary for the performance of its functions, and in particular:
(a) An annual report on the working of the Convention within each of their territories;
(b) The text of all laws end regulations from time to time promulgated in order to give effect to this Convention;
(c) Such particulars as the Commission shall determine concerning cases of illicit traffic or contraband, 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;
(d) The names and addresses of the governmental authorities empowered to issue export and import authorizations or certificates.
2. Parties shall furnish the information referred to in the preceding paragraph in such manner and by such dates and use such forms as the Commission may request.
Article 19
ESTIMATES OF DRUG REQUIREMENTS
1. The Parties shall furnish to the Board each year for each of their territories, in the manner and form prescribed by the Board, estimates on forms supplied by it in respect of the following matters:
(a) Quantities of drugs to be consumed for medical, scientific or other purposes;
(b) Quantities of drugs to be utilized for the manufacture of other drugs, of preparations in Schedule III, and of substances not covered by this Convention;
(c) Stocks of drugs to be held as at 31 December of the year to which the estimates relate;
(d) Quantities of drugs necessary for addition to special stocks;
(e) The area (in hectares) and the geographical location of land to be used for the cultivation of the opium poppy;
(f) Approximate quantity of opium to be produced;
(g) The number of industrial establishments which will manufacture synthetic drugs; and
(h) The quantities of synthetic drugs to be manufactured by each of the establishments referred to in the preceding subparagraph.
2. (a) Subject to the deductions referred to in paragraph 3 of article 21, the total of the estimates for each territory and each drug except opium and synthetic drugs shall consist of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1.
(b) Subject to the deductions referred to in paragraph 3 of article 21 regarding imports and in paragraph 2 of article 21 bis, the total of the estimates for opium for each territory shall consist either of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1, or of the amount specified under subparagraph (f) of paragraph 1 of this article, whichever is higher.
(c) Subject to the deductions referred to in paragraph 3 of article 1, the total of the estimates for each territory for each synthetic drug shall consist either of the sum of the amounts specified under subparagraphs (a), (b) and (d) of paragraph 1 of this article, with the addition of any amount required to bring the actual stocks on hand at 31 December of the preceding year to the level estimated as provided in subparagraph (c) of paragraph 1, or of the sum of the amounts specified under subparagraph (h) of paragraph 1 of this article, whichever is higher.
(d) The estimates furnished under the preceding subparagraphs of this paragraph shall be appropriately modified to take into account any quantity seized and thereafter released for licit use as well as any quantity taken from special stocks for the requirements of the civilian population.
3. Any State may during the year furnish supplementary estimates with an explanation of the circumstances necessitating such estimates.
4. The Parties shall inform the Board of the method used for determining quantities shown in the estimates and of any changes in the said method.
5. Subject to the deductions referred to in paragraph 3 of article 21, and account being taken where appropriate of the provisions of article 21 bis, the estimates shall not be exceeded.
Article 20
STATISTICAL RETURNS TO BE FURNISHED TO THE BOARD
1. The Parties shall furnish to the Board for each of their territories, in the manner and form prescribed by the Board, statistical returns on forms supplied by it in respect of the following matters:
(a) production or manufacture of drugs;
(b) Utilization of drugs for the manufacture of other drugs, of preparations in Schedule III and of substances not covered by this Convention, and utilization of poppy straw for the manufacture of drugs;
(c) Consumption of drugs;
(d) Imports and exports of drugs and poppy straw;
(e) Seizures of drugs and disposal thereof;
(f) Stocks of drugs as at 31 December of the year to which the returns relate; and
(g) Ascertainable area of cultivation of the opium poppy.
2. (a) The statistical returns in respect of the matters referred to in paragraph 1, except subparagraph (d), shall be prepared annually and shall be furnished to the Board not later than 30 June following the year to which they relate.
(b) The statistical returns in respect to the matters referred to in subparagraph (d) of paragraph 1 shall be prepared quarterly and shall be furnished to the Board within one month after the end of the quarter to which they relate.
3. The Parties are not required to furnish statistical returns respecting special stocks, but shall furnish separately returns respecting drugs imported into or procured within the country or territory for special purposes, as well as quantities of drugs withdrawn from special stocks to meet the requirements of the civilian population.
Article 21
LIMITATION OF MANUFACTURE AND IMPORTATION
1. The total of the quantities of each drug manufactured and imported by any country or territory in any one year shall not exceed the sum of the following:
(a) The quantity consumed, within the limit of the relevant estimate, for medical, scientific or other purposes;
(b) The quantity used, within the limit of the relevant estimate, for the manufacture of other drugs, of preparations in Schedule III, and of substances not covered by this Convention;
(c) The quantity exported;
(d) The quantity added to the stock for the purpose of bringing that stock up to the level specified in the relevant estimate; and
(e) The quantity acquired within the limit of the relevant estimate for special purposes.
2. From the sum of the quantities specified in paragraph 1 there shall be deducted any quantity that has been seized and released for licit use, as well as any quantity taken from special stocks for the requirements of the civilian population.
3. If the Board finds that the quantity manufactured and imported in any one year exceeds the sum of the quantities specified in paragraph 1, less any deductions required under paragraph 2 of this article, any excess so established and remaining at the end of the year shall, in the following year, be deducted from the quantity to be manufactured or imported and from the total of the estimates as defined in paragraph 2 of article 19.
4. (a) If it appears from the statistical returns on imports or exports (article 20) that the quantity exported to any country or territory exceeds the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts shown to have been exported. and after deduction of any excess as established in paragraph 3 of this article, the Board may notify this fact to States which, in the opinion of the Board, should be so informed;
(b) On receipt of such a notification, Parties shall not during the year in question authorize any further exports of the drug concerned to that country or territory, except:
(i) In the event of a supplementary estimate being furnished for that country or territory in respect both of any quantity over-imported and of the additional quantity required, or
(ii) In exceptional cases where the export, in the opinion of the Government of the exporting country, is essential for the treatment of the sick.
Article 22
LIMITATION OF PRODUCTION OF OPIUM
1. The production of opium by any country or territory shall be organized and controlled in such manner as to ensure that, as far as possible, the quantity produced in any one year shall not exceed the estimate of opium to be produced as established under paragraph 1 (f) of article 19.
2. If the Board finds on the basis of information at its disposal in accordance with the provisions of this Convention that a Party which has submitted an estimate under paragraph 1 (f) of article 19 has not limited opium produced within its borders to licit purposes in accordance with relevant estimates and that a significant amount of opium produced, whether licitly or illicitly, within the borders of such a Party, has been introduced into the illicit traffic, it may, after studying the explanations of the Party concerned, which shall be submitted to it within one month after notification of the fin ding in question, decide to deduct all, or a portion, of such an amount from the quantity to be produced and from the total of the estimates as defined in paragraph 2 (b) of article 19 for the next year in which such a deduction can be technically accomplished, taking into account the season of the year and contractual commitments to export opium. This decision shall take effect ninety days after the Party conc
erned is notified thereof.
3. After notifying the Party concerned of the decision it has taken under paragraph 2 above with regard to a deduction, the Board shall consult with that Party in order to resolve the situation satisfactorily.
4. If the situation is not satisfactorily resolved, the Board may utilize the provisions of article 14 where appropriate.
5. In taking its decision with regard to a deduction under paragraph 2 above. the Board shall take into account not only all relevant circumstances including those giving rise to the illicit traffic problem referred to in paragraph 2 above, but also any relevant new control measures which may have been adopted by the Party.
Former Article 22 (deleted)
Article 23
NATIONAL OPIUM AGENCIES
1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article.
2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium;
(a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted.
(b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.
(c) Each licence shall specify the extent of the land on which the cultivation is permitted.
(d) All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.
(e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations.
3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it.
Article 24
LIMITATION ON PRODUCTION OF OPIUM FOR INTERNATIONAL TRADE
1. (a) If any Party intends to initiate the production of opium or to increase existing production, it shall take account of the prevailing world need for opium in accordance with the estimates thereof published by the Board so that the production of opium by such Party does not result in overproduction of opium in the world.
(b) A Party shall not permit the production of opium or increase the existing production thereof if in its opinion such production or increased production in its territory may result in illicit traffic in opium.
2. (a) Subject to paragraph 1, where a Party which as of 1 January 1961 was not producing opium for export desires to export opium which it produces, in amounts not exceeding five tons annually, it shall notify the Board, furnishing with such notification information regarding:
(i) The controls in force as required by this Convention respecting the opium to be produced and exported; and
(ii) The name of the country or countries to which it expects to export such opium;
and the Board may either approve such notification or may recommend to the Party that it not engage in the production of opium for export.
(b) Where a Party other than a Party referred to in paragraph 3 desires to produce opium for export in amounts exceeding five tons annually, it shall notify the Council, furnishing with such notification relevant information including:
(i) The estimated amounts to be produced for export;
(ii) The controls existing or proposed respecting the opium to be produced;
(iii) The name of the country or countries to which it expects to export such opium;
and the Council shall either approve the notification or may recommend to the Party that it not engage in the production of opium for export.
3. Notwithstanding the provisions of subparagraphs (a) and (b) of paragraph 2, a Party that during ten years immediately prior to 1 January 1961 exported opium which such country produced may continue to export opium which it produces.
4. (a) A Party shall not import opium from any country or territory except opium produced in the territory of:
(i) A Party referred to in paragraph 3;
(ii) A Party that has notified the Board as provided in subparagraph (a) of paragraph 2; or
(iii) A Party that has received the approval of the Council as provided in subparagraph (b) of paragraph 2.
(b) Notwithstanding subparagraph (a) of this paragraph, a Party may import opium produced by any country which produced and exported opium during the ten years prior to 1 January 1961 if such country has established and maintains a national control organ or agency for the purposes set out in article 23 and has in force an effective means of ensuring that the opium it produces is not diverted into the illicit traffic.
5. The provisions of this article do not prevent a Party:
(a) From producing opium sufficient for its own requirements; or
(b) From exporting opium seized in the illicit traffic, to another Party in accordance with the requirements of this Convention.
Article 25
CONTROL OF POPPY STRAW
1. A Party that permits the cultivation of the opium poppy for purposes other than the production of opium shall take all measures necessary to ensure:
(a) That opium is not produced from such opium poppies; and
(b) That the manufacture of drugs from poppy straw is adequately controlled.
2. The Parties shall apply to poppy straw the system of import certificates and export authorizations as provided in article 31, paragraphs 4 to 15.
3. The Parties shall furnish statistical information on the import and export of poppy straw as required for drugs under article 20, paragraphs 1 (d) and 2 (b).
Article 26
THE COCA BUSH AND COCA LEAVES
1. If a Party permits the cultivation of the coca bush, it shall apply thereto and to coca leaves the system of controls as provided in article 23 respecting the control of the opium poppy, but as regards paragraph 2 (d) of that article, the requirements imposed on the Agency therein referred to shall be only to take physical possession of the crops as soon as possible after the end of the harvest.
2. The Parties shall so far as possible enforce the uprooting of all coca bushes which are illegally cultivated.
Article 27
ADDITIONAL PROVISIONS RELATING TO COCA LEAVES
1. The Parties may permit the use of coca leaves for the preparation of a flavouring agent, which shall not contain any alkaloids, and, to the extent necessary for such use may permit the production, import, export, trade in and possession of such leaves.
2. The Parties shall furnish separately estimates (article 19) and statistical information (article 20) in respect of coca leaves for preparation of the flavouring agent, except to the extent that the same coca leaves are used for the extraction of alkaloids and the flavouring agent, and so explained in the estimates and statistical information.
Article 28
CONTROL OF CANNABIS
1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy.
2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.
3. (deleted)
Article 29
MANUFACTURE
1. The Parties shall require that the manufacture of drugs be under licence except where such manufacture is carried out by a State enterprise or State enterprises.
2. The Parties shall:
(a) Control all persons and enterprises carrying on or engaged in the manufacture of drugs;
(b) Control under licence the establishments and premises in which such manufacture may take place; and
(c) Require that licensed manufacturers of drugs obtain periodical permits specifying the kinds and amounts of drugs which they shall be entitled to manufacture. A periodical permit, however, need not be required for preparations.
3. The Parties shall prevent the accumulation, in the possession of drug manufacturers, of quantities of drugs and poppy straw in excess of those required for the normal conduct of business, having regard to the prevailing market conditions.
Article 30
TRADE AND DISTRIBUTION
1. (a) The Parties shall require that the trade in and distribution of drugs be under licence except where such trade or distribution is carried out by a State enterprise or State enterprises.
(b) The Parties shall:
(i) Control all persons and enterprises carrying on or engaged in the trade in or distribution of drugs;
(ii) Control under licence the establishments and premises in which such trade or distribution may take place. The requirement of licensing need not apply to preparations.
(c) The provisions of subparagraphs (a) and (b) relating to licensing need not apply to persons duly authorized to perform and while performing therapeutic or scientific functions.
2. The Parties shall also:
(a) Prevent the accumulation in the possession of traders, distributors, State enterprises or duly authorized persons referred to above, of quantities of drugs and poppy straw in excess of those required for the normal conduct of business, having regard to the prevailing market conditions; and
(b) (i) Require medical prescriptions for the supply or dispensation of drugs used for medical purposes to individuals. This requirement need not apply to such drugs as individuals may lawfully obtain, use, dispense or administer in connexion with their duly authorized therapeutic functions; and
(ii) If the Parties deem these measures necessary or desirable, require that prescriptions for drugs in Schedule II should be written on officials [sic] forms to be issued in the form of counterfoil books by the competent governmental authorities or by authorized professional associations.
3. It is desirable that Parties require that written or printed offers of drugs, advertisements of every kind or descriptive literature relating to drugs and used for commercial purposes, interior wrappings of packages containing drugs, and labels under which drugs are offered for sale indicate the international non-proprietary name communicated by the World Health Organization.
4. If a Party considers such measure necessary or desirable, it shall require that the inner package containing a drug or wrapping thereof shall bear a clearly visible double red band. The exterior wrapping of the package in which such drug is contained shall not bear a double red band.
5. A Party shall require that the label under which a drug is offered for sale show the exact drug content by weight or percentage. This requirement of label information need not apply to a drug dispensed to an individual on medical prescription.
6. The provisions of paragraphs 2 and 5 need not apply to the retail trade in or retail distribution of drugs in Schedule II.
Article 31
SPECIAL PROVISIONS RELATING TO INTERNATIONAL TRADE
1. The Parties shall not knowingly permit the export of drugs to any country or territory except:
(a) In accordance with the laws and regulations of that country or territory; and
(b) Within the limits of the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts intended to be re-exported.
2. The Parties shall exercise in free ports and zones the same supervision and control as in other parts of their territories, provided, however, that they may apply more drastic measures.
3. The Parties shall:
(a) Control under licence the import and export of drugs except where such import or export is carried out by a State enterprise or enterprises;
(b) Control all persons and enterprises carrying on or engaged in such import or export.
4. (a) Every Party permitting the import or export of drugs shall require a separate import or export authorization to be obtained for each such import or export whether it consists of one or more drugs.
(b) Such authorization shall state the name of the drug, the international non-proprietary name if any, the quantity to be imported or exported, and the name and address of the importer and exporter, and shall specify the period within which the importation or exportation must be effected.
(c) The export authorization shall also state the number and date of the import certificate (paragraph 5) and the authority by whom it has been issued.
(d) The import authorization may allow an importation in more than one consignment.
5. Before issuing an export authorization the Parties shall require an import certificate, issued by the competent authorities of the importing country or territory and certifying that the importation of the drug or drugs referred to therein, is approved and such certificate shall be produced by the person or establishment applying for the export authorization. The Parties shall follow as closely as may be practicable the form of import certificate approved by the Commission.
6. A copy of the export authorization shall accompany each consignment, and the Government issuing the export authorization shall send a copy to the Government of the importing country or territory.
7. (a) The Government of the importing country or territory, when the importation has been effected or when the period fixed for the importation has expired, shall return the export authorization, with an endorsement to that effect, to the Government of the exporting country or territory.
(b) The endorsement shall specify the amount actually imported.
(c) If a lesser quantity than that specified in the export authorization is actually exported, the quantity actually exported shall be stated by the competent authorities on the export authorization and on any official copy thereof.
8. Exports of consignments to a post office box, or to a bank to the account of a Party other than the Party named in the export authorization, shall be prohibited.
9. Exports of consignments to a bonded warehouse are prohibited unless the Government of the importing country certifies on the import certificate, produced by the person or establishment applying for the export authorization, that it has approved the importation for the purpose of being placed in a bonded warehouse. In such case the export authorization shall specify that the consignment is exported for such purpose. Each withdrawal from the bonded warehouse shall require a permit from the authorities having jurisdiction over the warehouse and, in the case of a foreign destination shall be treated as if it were a new export within the meaning of this Convention.
10. Consignments of drugs entering or leaving the territory of a Party not accompanied by an export authorization shall be detained by the competent authorities.
11. A Party shall not permit any drugs consigned to another country to pass through its territory, whether or not the consignment is removed from the conveyance in which it is carried, unless a copy of the export authorization for such consignment is produced to the competent authorities of such Party.
12. The competent authorities of any country or territory through which a consignment of drugs is permitted to pass shall take all due measures to prevent the diversion of the consignment to a destination other than that named in the accompanying copy of the export authorization unless the Government of that country or territory through which the consignment is passing authorizes the diversion. The Government of the country or territory of transit shall treat any requested diversion as if the diversion were an export from the country or territory of transit to the country or territory of new destination. If the diversion is authorized, the provisions of paragraph 7 (a) and (b) shall also apply between the country or territory of transit and the country or territory which originally exported the consignment.
13. No consignment of drugs while in transit, or whilst being stored in a bonded warehouse, may be subjected to any process which would change the nature of the drugs in question. The packing may not be altered without the permission of the competent authorities.
14. The provisions of paragraphs 11 to 13 relating to the passage of drugs through the territory of a Party do not apply where the consignment in question is transported by aircraft which does not land in the country or territory of transit. If the aircraft lands in any such country or territory, those provisions shall be applied so far as circumstances require.
15. The provisions of this article are without prejudice to the provisions of any international agreements which limit the control which may be exercised by any of the Parties over drugs in transit.
16. Nothing in this article other than paragraphs 1 (a) and 2 need apply in the case of preparations in Schedule III.
Article 32
SPECIAL PROVISIONS CONCERNING THE CARRIAGE OF DRUGS IN FIRST-AID KITS OF SHIPS OR AIRCRAFT ENGAGED IN INTERNATIONAL TRAFFIC
1. The international carriage by ships or aircraft of such limited amounts of drugs as may be needed during their journey or voyage for first-aid purposes or emergency cases shall not be considered to be import, export or passage through a country within the meaning of this Convention.
2. Appropriate safeguards shall be taken by the country of registry to prevent the improper use of the drugs referred to in paragraph 1 or their diversion for illicit purposes. The Commission, in consultation with the appropriate international organizations, shall recommend such safeguards.
3. Drugs carried by ships or aircraft in accordance with paragraph 1 shall be subject to the laws, regulations, permits and licences of the country of registry, without prejudice to any rights of the competent local authorities to carry out checks, inspections and other control measures on board ships or aircraft. The administration of such drugs in the case of emergency shall not be considered a violation of the requirements of article 30, paragraph 2 (b).
Article 33
POSSESSION OF DRUGS
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
The Parties shall require:
(a) That all persons who obtain licences as provided in accordance with this Convention, or who have managerial or supervisory positions in a State enterprise established in accordance with this Convention, shall have adequate qualifications for the effective and faithful execution of the provisions of such laws and regulations as are enacted in pursuance thereof; and
(b) That governmental authorities, manufacturers, traders, scientists, scientific institutions and hospitals keep such records as will show the quantities of each drug manufactured and of each individual acquisition and disposal of drugs. Such records shall respectively be preserved for a period of not less than two years. Where counterfoil books (article 30, paragraph 2 (b)) of official prescriptions are used, such books including the counterfoils shall also be kept for a period of not less than two years.
Article 35
ACTION AGAINST THE ILLICIT TRAFFIC
Having due regard to their constitutional, legal and administrative systems, the Parties shall:
(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;
(b) Assist each other in the campaign against the illicit traffic or contraband in narcotic drugs;
(c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic or contraband;
(d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and [sic]
(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;
(f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on contraband or illicit trafficking in, drugs; and
(g) Furnish the information referred to in the preceding paragraph as far as possible in such manner and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.
Article 36
PENAL PROVISIONS
1. (a) Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, incitement to use, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, transport, importation and exportation contrary to the provisions of this Convention, association or conspiracy to commit an offence and the concealment or 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.
(b) Notwithstanding the preceding subparagraph, when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 38.
2. Subject to the constitutional limitations of a Party, its legal system and domestic law,
(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;
(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;
(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and
(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.
(b) (i) Each of the offences enumerated in paragraphs l and 2 (a) (ii) of this article shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
(ii) If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested Party.
(iii) Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.
(iv) Extradition shall be granted in conformity with the law of the Party to which application is made, and, notwithstanding subparagraphs (b) (i), (ii) and (iii) of this paragraph, the Party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.
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.
Article 37
SEIZURE AND CONFISCATION
Any drugs, substances and equipment used in or intended for the commission of any of the offences, referred to in article 36, shall be liable to seizure and confiscation.
Article 38
MEASURES AGAINST THE ABUSE OF DRUGS
1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.
2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of drugs.
3. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread.
Article 38 bis
AGREEMENTS ON REGIONAL CENTRES
If a Party considers it desirable as part of its action against the illicit traffic in drugs, having due regard to its constitutional, legal and administrative systems, and, if it so desires, with the technical advice of the Board or the specialized agencies, it shall promote the establishment, in consultation with other interested Parties in the region, of agreements which contemplate the development of regional centres for scientific research and education to combat the problems resulting from the illicit use of and traffic in drugs.
Article 39
APPLICATION OF STRICTER NATIONAL CONTROL MEASURES THAN THOSE REQUIRED BY THIS CONVENTION
Notwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention and in particular from requiring that Preparations in Schedule III or drugs in Schedule II be subject to all or such of the measures of control applicable to drugs in Schedule I as in its opinion is necessary or desirable for the protection of the public health or welfare.
Article 40(3)
LANGUAGES OF THE CONVENTION AND PROCEDURE FOR SIGNATURE, RATIFICATION AND ACCESSION
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be open for signature until 1 August 1961 on behalf of any Member of the United Nations, of any non-member State which is a Party to the Statute of the International Court of Justice or member of a specialized agency of the United Nations, and also of any other State which the Council may invite to become a Party.
2. This Convention is subject to ratification. The instruments or ratification shall be deposited with the Secretary-General.
3. This Convention shall be open after 1 August 1961 for accession by the States referred to in paragraph 1. The instruments of accession shall be deposited with the Secretary-General.
Article 41
ENTRY INTO FORCE
1. This Convention shall come into force on the thirtieth day following the date on which the fortieth instrument of ratification or accession is deposited in accordance with article 40.
2. In respect of any other State depositing an instrument of ratification or accession after the date of deposit of the said fortieth instrument, this Convention shall come into force on the thirtieth day after the deposit by that State of its instrument of ratification or accession.
Article 42
TERRITORIAL APPLICATION
This Convention shall apply to all non-metropolitan territories for the international relations of which any Party is responsible except where the previous consent of such a territory is required by the Constitution of the Party or of the territory concerned or required by custom. In such case the Party shall endeavour to secure the needed consent of the territory within the shortest period possible, and when that consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature ratification or accession, declare the non-metropolitan territory or territories to which this Convention applies.
Article 43
TERRITORIES FOR THE PURPOSES OF ARTICLES 19, 20, 21 AND 31
1. Any Party may notify the Secretary-General that for the purposes of articles 19, 20, 21 and 31, one of its territories is divided into two or more territories, or that two or more of its territories are consolidated into a single territory.
2. Two or more Parties may notify the Secretary-General that, as the result of the establishment of a customs union between them, those Parties constitute a single territory for the purposes of articles 19, 20, 21 and 31.
3. Any notification under paragraph l or 2 above shall take effect on 1 January of the year following the year in which the notification was made.
Article 44
TERMINATION OF PREVIOUS INTERNATIONAL TREATIES
1. The provisions of this Convention, upon its coming into force, shall as between Parties hereto, terminate and replace the provisions of the following treaties:
(a) International Opium Convention, signed at The Hague on 23 January 1912;
(b) Agreement concerning the Manufacture of, Internal Trade in and Use of Prepared Opium, signed at Geneva on 11 February 1925;
(c) International Opium Convention, signed at Geneva on 19 February 1925;
(d) Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, signed at Geneva on 13 July 1931;
(e) Agreement for the Control of Opium Smoking in ln the Far East, signed at Bangkok on 27 November 1931;
(f) Protocol signed at Lake Success on 11 December 1946, amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936, except as it affects the last-named Convention;
(g) The Conventions and Agreements referred to in subparagraphs (a) to (e) as amended by the Protocol of 1946 referred to in subparagraph (f);
(h) Protocol signed at Paris on 19 November 1948 Bringing under International Control Drugs outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, as Amended by the Protocol signed at Lake Success on 11 December 1946;
(i) Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, signed at New York on 23 June 1953, should that Protocol have come into force.
2. Upon the coming into force of this Convention, article 9 of the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, signed at Geneva on 26 June 1936, shall, between the Parties thereto which are also Parties to this Convention, be terminated, and shall be replaced by paragraph 2(b) of article 36 of this Convention; provided that such a Party may by notification to the Secretary-General continue in force the said article 9.
Article 45
TRANSITIONAL PROVISIONS
1. The functions of the Board provided for in article 9 shall, as from the date of the coming into force of this Convention (article 41, paragraph 1), be provisionally carried out by the Permanent Central Board constituted under chapter VI of the Convention referred to in article 44 (c) as amended, and by the Supervisory Body constituted under chapter II of the Convention referred to in article 44 (d) as amended, as such functions may respectively require.
2. The Council shall fix the date on which the new Board referred to in article 9 shall enter upon its duties. As from that date that Board shall, with respect to the States Parties to the treaties enumerated in article 44 which are not Parties to this Convention, undertake the functions of the Permanent Central Board and of the Supervisory Body referred to in paragraph 1.
Article 46
DENUNCIATION
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.
2. 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.
3. 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.
Article 47
AMENDMENTS
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.
Article 48
DISPUTES
1. If there should arise between two or more Parties a dispute relating to the interpretation or application of this Convention, the said Parties shall consult together with a view to the settlement of the dispute by negotiation, investigation, mediation, conciliation, arbitration, recourse to regional bodies, judicial process or other peaceful means of their own choice.
2. Any such dispute which cannot be settled in the manner prescribed shall be referred to the International Court of Justice for decision.
Article 49
TRANSITIONAL RESERVATIONS
1. 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.
2. (deleted)
3. A Party making a reservation under paragraph 1 shall:
(a) Include in the annual report to be furnished to the Secretary-General, in accordance with article 18, paragraph 1 (a), an account of the progress made in the preceding year towards the abolition of the use, production, manufacture or trade referred to under paragraph l; and
(b) Furnish to the Board separate estimates (article 19) and statistical returns (article 20) in respect of the reserved activities in the manner and form prescribed by the Board.
4. (a) If a Party which makes a reservation under paragraph 1 fails to furnish:
(i) The report referred to in paragraph 3 (a) within six months after the end of the year to which the information relates;
(ii) The estimates referred to in paragraph 3 (b) within three months after the date fixed for that purpose by the Board in accordance with article 12, paragraph 1;
(iii) The statistics referred to in paragraph 3 (b) within three months after the date on which they are due in accordance with article 20, paragraph 2,
the Board or the Secretary-General, as the case may be, shall send to the Party concerned a notification of the delay, and shall request such information within a period of three months after the receipt of that notification.
(b) If the Party fails to comply within this period with the request of the Board or the Secretary-General, the reservation in question made under paragraph 1 shall cease to be effective.
5. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations.
Article 50
OTHER RESERVATIONS
1. No reservations other than those made in accordance with article 49 or with the following paragraphs shall be permitted.
2. Any State may at the time of signature, ratification or accession make reservations in respect of the following provisions of this Convention: Article 12, paragraphs 2 and 3; article 13, paragraph 2; article 14, paragraphs 1 and 2; article 31, paragraph 1 (b) and article 48.
3. A State which desires to become a Party but wishes to be authorized to make reservations other than those made in accordance with paragraph 2 of this article or with article 49 may inform the Secretary-General of such intention. Unless by the end of twelve months after the date of the Secretary-General's communication of the reservation concerned, this reservation has been objected to by one third of the States that have ratified or acceded to this Convention before the end of that period, it shall be deemed to be permitted, it being understood however that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by the reservation.
4. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations.
Article 51
NOTIFICATIONS
The Secretary-General shall notify to all the States referred to in paragraph 1 of article 40:
(a) Signatures, ratifications and accessions in accordance with article 40;
(b) The date upon which this Convention enters into force in accordance with article 41;
(c) Denunciations in accordance with article 46; and
(d) Declarations and notifications under articles 42, 43, 47, 49 and 50.
