Article 1

AMENDMENTS TO ARTICLE 2, PARAGRAPHS 4,6 AND 7 OF THE SINGLE CONVENTION

Introductory paragraph of article 1 of the 1972 Protocol and paragraph 4 of article 2 of the amended Single Convention

Article 2, paragraphs 4, 6 and 7, of the Single Convention shall be amended to read as follows:

"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 I S 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.

Commentary

1. Article 1 of the 1972 Protocol brings two amendments to article 2, paragraph 4 of the Single Convention, one only to the English version of that provision, and another one to all of its five language versions.

2.   Paragraph 4 presents a synopsis of the provisions of the Single Convention relating to Schedule III. Its unamended English text differs from article 31, paragraph 16 of the Single Convention by excluding preparations in Schedule III from the application of article 31, paragraph 1, subparagraph (b) and paragraphs 4 to 15 while paragraph 16 of that article makes that exclusion in respect of article 31, paragraph 1, subparagraph (b) and paragraphs 3 to 15. The French and Spanish language versions do not show that discrepancy, excluding in both of their provisions in question article 31, paragraph 3 from application to preparations in Schedule III. The 1972 Protocol therefore corrects an error in the English text of article 2, paragraph 4 by substituting the figure 3 for the figure 4 and thus bringing the English text in line with the French and Spanish texts.' There was no need for making corresponding changes in other language versions.

3. The unamended Single Convention, taken literally,2 would obligate Parties to require retail traders to record each individual sale of a preparation in Schedule III. The view has however been expressed in the 1961 Commentary - that a general understanding exists that Parties to the unamended Convention need not require retail traders (pharmacists, chemists, druggists or other retail distributors) to keep such records.3 The 1972 Protocol by expressly exempting the retail distribution of preparations in Schedule III from the scope of article 34, paragraph (b) transforms that understanding into treaty law. It is submitted that the term "retail distribution" as used in the amended paragraph 4 includes also the therapeutic use in hospitals as well as the use for research by hospitals, scientific institutions and scientists. It should however not be concluded from that inclusion in the Single Convention of a rule concerning preparations in Schedule III, formerly accepted only on the basis of a general understanding, that the same understanding concerning drugs in Schedule II and their preparations has lost its validity. Parties to the unamended Single Convention as well as Parties to its amended text need not require . retail traders to keep records of individual sales of drugs in Schedule II or of their preparations.4

4. Sale by a retail trader of a preparation in Schedule III which he compounds himself is to be considered for the purposes of the Single Convention as sale of the drug contained in the preparation and not of the preparation. Each supply or dispensation by a retail trader (pharmacist) to an individual of a preparation listed in Schedule III and containing a drug in Schedule I, which the retail trader has himself compounded, must be recorded under article 2, paragraphs 1 and 3 in connexion with article 34, paragraph (b). s The amendment of article 2, paragraph 4 by the 1972 Protocol does not affect the obligation of Parties to require the keeping of such records.

5.   The English text of article 2, paragraph 4 as amended seems to exclude from the requirement of recording all acquisitions of preparations in Schedule III, not only those by retail traders and other retail distributors (including acquisitions by hospitals for therapeutic use and by scientific institutions or scientists for research), but also acquisitions by wholesalers for the purpose of resale. It appears however to have been the intention of the 1972 Conference to free from the recording requirements only acquisitions of preparations in Schedule III on the retail level and not those of wholesale traders.6 Maintenance of such records would not impose a very onerousburden upon wholesale traders, and would also be in accord with existing business customs.

6.   The French and Spanish texts of the amended paragraph 4 seem to be ambiguous.   Au détail„ may refer to acquisition as well as to "délivrance" or only to "délivrance", and "al por menor" may refer to "adquisición" as well as to "distribución" or only to "distribución". In view of the intention of the 1972 Conference, it may however be assumed that "au détail" was intended to refer also to "acquisition" and "al por menor" to refer also to "adquisición". 7 It is submitted that preference should be given to the French and Spanish texts as interpreted in accord with the intention 'of the 1972 Conference, and that consequently only acquisition for retail purposes of any kind, i.e. that by retail traders, and by hospitals, scientific institutions and scientists for their use, but not acquisition by wholesale traders, may be exempted from the recording requirement of article 34, paragraph (b). The suggested scope of exemption from the recording requirement is also based on the view that the words "au détail" and "al por menor" include any kind of retail purpose, i.e. not only retail trade, but also therapeutic use by hospitals and research by scientific institutions or scientists. It has been suggested in paragraph 3 above that the term "retail distribution" in the English text also covers all those retail purposes. The relevant amendment which was accepted was proposed orally in French .8

7. The 1972 Protocol also adds to the French text of article 2, paragraph 4 the word "nécessairement". It replaces the words "sauf que" by the word "Toutefois" the words "que pour les évaluations" by the words "aux fins des évaluations" and the words "les statistiques" by des statistiques" These changes,. made for reasons of style and clarification, do not affect the accepted meaning of paragraph 4.

1 1961 Commentary, para. 5 of the comments on article 31, para. 3, subpara. (a) on the Single Convention and para. 18 of the comments on article 2, para. 4 (pp. 354-355 and 64 respectively).

2 Article 2, pares 4 in connexion with article 34, pares. (b) of the unamended text.

3 1961 Commentary, para. 13 and 14 of the comments on article 2, para. 4 of the Single Convention (p. 63); see also para. i l of the comments on article 2, para. 2 (pp. 57 to 58).

4 Para. 11 of the comments on article 2, para. 2 referred to in the preceding foot-note (pp. 57-58).

5 Para. 15 of the comments on article 2, para. 4, referred to in foot-note 3 (p. 63).

6 1972    Records,   vol. 1,   Part   Two,   Section D,   document   E/CONF.63/L.2 (pp. 111-112); vol. 11, paras. 29 and 42 of the summary records of the twelfth meeting of Committee 11 (pp. 207 and 208), vol. 1, Part 11, Section F, document E/CONF.63/ L.5/Add.1 (pp. 121 to 122), vol. 11, paras. 73, 74 and 77 of the summary records of the seventh plenary meeting (p. 23) and para. 2 of the summary records of the eighth plenary meeting (pp. 23-24).

7 Article 32, para. (a), article 33, para. 4 and article 31, para. 1 of the Vienna Convention on the Law of Treaties, document A/CONF.39/27.

8 1972 Records, vol. 11, paras. 1 and 3 of the summary records of the eighth plenary meeting (pp. 23-24).

Paragraph 6 of article 2 of the amended Single Convention

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, sub-paragraph (f), and of articles 21 his, 23 and 24, the coca leaf to those of articles 26 and 27 and cannabis to those of article 28.

Commentary

Paragraph 6, being.inter aria a synopsis of the provisions of the Single Convention applicable to opium, was amended to take into account additional provisions introduced by the 1972 Protocol in respect of opium.'

1 Article 49 and article 25, para. 1, subpara. (a) also apply to opium; see 1961 Commentary on article 2, para. 6 (p. 69).

Paragraph 7 of article 2 of the amended Single Convention   

"7.    The opium poppy, the coca bush, the cannabis plant, poppy straw and cannabis leaves are subject to the control measures article 19, paragraph 1, sub paragraph (e), article 20, Paragraph 1, sub-paragraph (g), article 21 bis and in articles 22 to 24; 22, 26 and 27; 22 and 28; 25; and 28, respectively."

Commentary

1.   Paragraph 7, intended to present inter alia a synopsis of the provisions of the Single Convention concerning the opium poppy, was amended to take into account additional provisions introduced by the 1972 Protocol in respect of the opium poppy.

2.   The French text should have a semi-colon after 25.

3.   The Spanish text erroneously refers to the entire articles 19 and 20. The figures "19, 20" between "los articulos" and "21 bis" should not have been included.'

1 As regards omissions, see 1961 Commentary on article 2, para. 7 (p. 70).