Drug Abuse

Article 2

AMENDMENTS TO THE TITLE OF ARTICLE 9 OF THE SINGLE CONVENTION AND ITS PARAGRAPH 1 AND INSERTION OF NEW PARAGRAPHS 4 AND 5

Introductory paragraph of article 2 of the 1972 Protocol, title of article 9 of the amended Single Convention, paragraph of the 1972 Protocol introducing paragraph 1 of article 9 of the amended Single Convention and paragraph 1 of article 9 of the amended Single Convention

The title of article 9 of the Single Convention shall be amended to read as follows:

"Composition and Functions of the Board"

Article 9, paragraph 1, of the Single Convention shall be amended to read as follows:

"l. The Board shall consist of thirteen members to be elected by the Council as follows:

"(u) 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."

Commentary

1.   The unamended text of article 9 together with articles 10 and 11 contains the provisions on the constitution of the Board. These articles do not provide for its functions, which are laid down elsewhere.' The addition of the words "and Functions" to the title of the unamended article 9 is consequential to the addition of paragraphs 4 and 5 to that article providing for functions of the Board.

2.. The increase in the membership of the Board from eleven to thirteen accord with a general tendency in the evolution of "restricted" international organs, i.e. of organs on which not all members of the organization concerned or all Parties to the treaty involved are represented. That tendency is motivated by the growing number of members of many international organizations and of Parties to many, multilateral treaties, that increase being caused by the accession to independence of numerous formerly dependent territories.

3. Amendments consequential to the increase in the membership of the Board were made by article 2 of the 1972 Protocol in article 9, paragraph 1, subparagraph (b) of the Single Convention, by article 3 of that Protocol in article 10, paragraph 4 of the Single Convention and by article. 4 of the Protocol in article 11, paragraph 3 of the Convention.

4.   Only at the first election of the Board constituted under the terms of the 1972 Protocol will that Board's total membership be chosen by the Council at a single session. At the following elections only a part of the Board's membership, six or seven members-as the case may be-will have to be chosen. The total membership of the Board will then be renewed in two partial elections taking place at intervals lasting alternatively three or two years.2

5.   The terms of office of the three members of the Board chosen among the WHO candidates at the first election of that organ as constituted under the 1972 'Protocol would under article 20, paragraph 4 of that Protocol be determined by lot, like those of the other members appointed at that election, and would either be three or five years.

6. If all three WHO-nominated members chosen by the Council at that first election obtain the same terms of office, i.e. either three or five years, the application of article 9, paragraph 1, subparagraph (a) would not give rise to particular problems. The terms of office of all of them, and also of all future WHO-nominated members serving a full term, 3 would in that case expire at the same time. Since all three WHO-nominated members of the Board would be chosen at the same election, they could be taken from the list of at least five persons nominated by the World Health Organization, as required by article 9, paragraph 1, subparagraph (a) of the Single Convention.

7.   However, if as a result of the operation of article 20, paragraphs 3 and 4 of the 1972 Protocol the terms of office of the first three WHO nominated members of the Board as constituted under that Protocol and consequently also of all future WHO-nominated members of that Board do not expire at the same time, the Council would at each of its regular elections4 of themembers of the Board have to elect one or two WHO nominees. The question arises whether WHO would have to supply for each of those elections.a list of at least five candidates for the Council's choice, although not three, but only two or one WHO-nominated members of the Board would have to be chosen.

8.   It is obvious that the influence of WHO on the composition of the Board would not be as great if the Council could elect only two members or one member from a list of at least five WHO candidates, as it would be in the case in which the Council would have to choose three Board members from such a list. It is submitted that the 1972 Conference did not intend to reduce WHO's influence in the process of the Board's election.

9.   It is held that the Council is required to choose three members of the Board from a single list of at least five persons nominated by the World Health Organization, no matter whether it chooses those members at one or at two different elections. A situation may thus occur in which the Council would have to elect two Board members from a list containing only four WHO nominees, or one Board member from a list consisting only of three WHO candidates. WHO should however be entitled at any time to substitute persons for those on the list or to increase their number.

10.   It may be recalled that the 1961 Commentary holds that if a seat on the Board becomes vacant during the term of office of a member who held that seat on the basis of his election as a WHO candidate, WHO should name at least two candidates for the vacancy.5

11.   As regards the authority of the Board as constituted under the 1972 Protocol to exercise the functions of the Board constituted under the unamended text of the Single Convention, and under the earlier drug control treaties those of the Permanent Central Board constituted under chapter VI of the 1925 Convention as amended by the 1946 Protocol, and those of the Supervisory Body constituted under chapter II of the 1931 Convention as amended by that Protocol; see article 20 of the 1972 Protocol and below the comments thereon. As regards the authority of the Board as constituted under the .1972 Protocol, under the Vienna Convention, see also paragraphs 1 to 5 of the comments of the 1971 Commentary on article 1, paragraph (c) of that Convention.

1 Articles 12 to 15, 19, 20, article 21, para 3' and para. 4, subpara. (a), article 24, para. 2, subpara. (a), article 45, para. 2 and article 49, paras. 3 and 4; the 1972 Protocol adds functions of the Board in article 9, new paras. 4 and 5, the revised para. 5 of article 12, in the revised provisions of article 14, the new article 14 bis, the revised article 16, the new article 19, para. 1, subparas. (e) to (h), the new article 20, para. 1, subpara. (g), the new article 21 bis, the new paras. (f) and (g) of article 35, the new article 38 bis of the Single Convention and in article 20 of the 1972 Protocol.

2 Article 20, paras. 3 and 4 of the 1972 Protocol.

3 i.e., excluding WHO-nominated members elected under article 10, para. 5 of the Single Convention for the remainder of the term of a member who left the Board before the expiration of his term.

4 i.e., at the elections, taking place in intervals of three or two years, at which six or seven members would be chosen for full five-years terms. They are referred to as "regular" elections to distinguish them from those at which the Council fills a vacancy occurring during the term of office of a member for the remainder of his term (article 10, para. 5 of the Single Convention).

5 1961 Commentary, para. 2 of the comments on artide 10, para. 5 (pp. 146-147).

Paragraph of article 2 of the 1972 Protocol introducing the new paragraphs 4 and S of article 9 of the amended Single Convention and paragraph 4 of article 9 of the amended Single Convention

The following new paragraphs shall be inserted after paragraph 3 of article 9 of the Single Convention:

"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.

Commentary

1. Paragraph 4 summarizes the basic aims of the Single Convention: To prevent or at least to reduce the misuse of drugs' by limiting the legal supplies of drugs whether obtained by cultivation,2 production,3 or manufacture4 to the quantities required for medical and scientific purposes$ and by preventing illicit supplies whether obtained by illicit cultivation, production, manufacture or illicit trafficking, while at the same time ensuring the availability of drugs for medical and scientific purposes .6

2. It may be noted that paragraph 4 does not explicitly refer to the limitation of drug supplies to be obtained by legal imports,7 but this omission does not affect the important role which the Board is required to play in regard to that limitation under article 21 (and 19) of the Single Convention . 8

3. The paragraph under consideration makes it quite clear that all aspects of the problem of drug abuse should be of concern to the Board; but this is to a very large extent only a confirmation of the practice of the Board under the unamended text of the Single Convention and of its interpretation of its functions under that text in conformity with the views expressed in the 1961 Commentary: Even under the unamended Single Convention the Board has actually been held to be authorized to deal with almost any problem of implementation of that treaty. 9 The Board has in particular taken a very broad view of what it may include in its reports under article 15, paragraph 1.10

4. Paragraph 4 requires the Board to "endeavour", t to achieve the aims of the Single Convention as laid down in that provision, "in co-operation with Governments" and "subject to the terms of this Convention". Since the Board has no power of direct administration on the territory of any country, the actions required to achieve the aims of the Single Convention must of course be taken by the national Governments concerned.

5. The Board therefore has always recognized that in order to be effective it must to the greatest extent possible co-operate with the Governments concerned, and that it has to maintain friendly relations with Governments, guided in carrying out the Convention by a spirit of co-operation rather than by a narrow view of the letter of the law.' 2 When requiring the Board to endeavour to carry out its functions "in co-operation with Governments" paragraph 4 only prescribes what is indispensable for the Board's effectiveness and what has in any event been its practice.

6.   The Board has the right to take some actions which do not require the co-operation or the consent of the Governments concerned;' 3 not only in view of article 9, paragraphs 4 and 5, but also in view of the Board's past practice, it may be assumed that the Board would also in those cases normally seek the co-operation or at least the understanding of the Governments concerned.

7. The provision that the Board should carry out its endeavours under paragraph 4 "subject to the terms of this Convention" appears to restrict the scope of its endeavours to the exercise of its powers granted by the Convention: Those powers are however very wide. It has been submitted earlier in paragraph 3 of the present comments that even under the unamended text of the Single Convention the Board has actually been entitled to deal with almost any problem of implementation of that treaty. Several amendments brought to that treaty by the 1971 Protocol appear explicitly; to authorize the Board not only to deal with problems of execution of specific treaty provisions, but also with any other aspect of the question of drug abuse, at least in discussions or consultations with the Governments concerned. Article 9, paragraph 5 does not limit the dialogue between Governments and the Board to the implementation of provisions of the Single Convention, but envisages as the purpose of that dialogue its possibility of assisting Governments in taking effective national action to attain the aims of the Single Convention. Article 14, paragraph 1, subparagraph (a) provides for consultation of the Board with the Government concerned not only in the case of treaty violations, but also in the event of serious drug control problems not caused by treaty violations. The new subparagraph (c) of that paragraph provides for the possibility of the Board's aid to and consultation with Governments in studying and assessing the nature of certain serious drug problems in their territory, no matter whether those problems are due to non-compliance with provisions of the Single Convention or not. It is also held that the Board's consultations with Governments under article 21 bis, paragraph 3 and its advice to Governments under article 35, paragraph (g) or under article 38 bis need not necessarily be limited to questions of implementing specific provisions of the Single Convention.

8.   The Board, in acting under article 9, paragraph 4, "subject to the terms of this Convention", is of course also subject to the restrictions imposed upon its authority by that treaty. The Board may e g. not recommend remedial measures to an individual Government without its consent, except in accordance with article 14, paragraph 1, subparagraph (b). 14

9. Article 9, paragraph 4 states the general principle of the Board's obligation to "endeavour" to achieve (ix. to strive after achieving) the aims of the Convention in co-operation with Governments. The other provisions referred to in paragraph 7 of these comments refer to particular ways by which or to special situations in which that cooperation should be carried out,15 s but these special provisions are not exhaustive. They do not cover all the possibilities of the Board's cooperation with Governments under the Single Convention.

10.   The Board may raise with any Government, whether that of a Party or non-Party, any question related to the aims of the Single Convention, e.g., it may suggest consultations on any aspect of the drug abuse problem, particularly with a view to its lending assistance to and facilitating that Government's effective national action to attain the aims of that treaty.' e A Party so addressed by the Board would normally not be legally bound to engage in such consultations. It would however, in some cases provided for in specific rules of the Single Convention,' 7 have some very weighty reasons for not refusing to enter into consultations with the Board, and would in all cases have to furnish to the Board information, and explanations which it is bound to supply under specific treaty provisions.

11.   The Board may lend assistance or give advice only to a Government requesting it expressly' 9 or by clear implication. As indicated in paragraph 8 of these comments, the Board may in particular not recommend remedial measures to a Government without its agreement except under article 14, paragraph 1, subparagraph (b). A Government's consultations with the Board may however by themselves aid that Government in taking effective action to attain the aims of the Single Convention, 20 without the Board formally rendering assistance or giving advice.

12. The Board's right to lend requested assistance or give requested advice is not restricted to those cases for which the Single Convention expressly provides.' 9 It has already been recognized under the terms of the unamended Single Convention that the Board is even authorized to render, to a Government requesting it, technical assistance in the improvement of its drug control system. That assistance must however be within the Board's competence, and should not overlap with assistance which might be given by other intergovernmental bodies; both requirements have been made the practice of the Board in the past. 21

13. The Board may normally include in its reports under article 15, paragraph 1 résumés of its consultations with Governments. It may however not do so under the conditions of article 14, paragraph 1, subparagraph ( a ) . 22 It may also not report consultations which the Government concerned has requested to treat as confidential. The Board may report that its proposal to enter into consultations was rejected by a Government, as well as the reasons for its proposal, except under the conditions of article 14, paragraph 1, subparagraph (a), or in cases in which such a report might constitute a circumvention of the requirement of that subparagraph to treat as confidential proposals for consultations to which that provision refers.

1 Article 1, para. 1, subpara. (j) of the Single Convention.

2 Article 1, para. 1, subpara. (t) of that Convention.

3 Article 1, para. 1, subpara. (t) of that Convention.

4 Article 1, para. 1, subpara. (n) of that Convention.

5 Article 4, para. (c) and article 21 of that Convention; see also article 21 bis, para. 2 of the amended text of that Convention.

6 Second considerandum of the Preamble of the Single Convention.

7 Article 21 of the Single Convention. Para. 4 also does not refer to the limitation of exports, imports and trade to medical and scientific purposes (article 4, para. (c) of the Single Convention).

8 And in extreme cases under its article 14; see also article 31, para. l, subpara. (b). The language used in para. 4 as in other amendments introduced by the 1972 Protocol is not always consistent with the usage in the unamended Single Convention or with definitions in its article 1; the word "trafficking" as used in pare. 4 has a narrower meaning than in article 1, para. l, subpara (1); that applies also to the words "traffic" and "trafco" in the French and Spanish texts.

9 1961 Commentary, paras. 6 and 7 of the comments on article 12, para.4 (pp. 163-164), paras. 3 to 7 of the comments on article 13, paras. 2 to 3 (pp. 171 to 173) and para. 6 of the comments on article 14, para. 1, subpara. (a) (pp. 179 and 180).

10 1961 Commentary, para. 6 of the comments on article 15, para. 1 (pp. 199200); a member of one of the 31 delegations to the 1972 Conference which proposed the original version of para. 4 already providing for all the functions of the Board laid down in the final text of that provision actually stated that para. 4 did not attribute any new function to the Board but was confined to a clear statement of its objectives and to a definition of its role in controlling licit production (and manufacture) and in combating illicit traffic. He held that the inclusion in the treaty of such explanations was necessary; 1972 Records, vol. 11, para. 37 of the summary records of the tenth meeting of Committee I (p. 107) and document E/CONP.63/5, 1972 Records, vol. 1, Part Two, Section A (p. 95).

11 The word "endeavour" is used in the sense of "strive after".

12 1961 Commentary, para. 8 of the comments on article 12, para. 4 (p. 164); see also para. 3 of the comments on article 14, para. 1, subpara. (a) (pp. 178-179) and paras. 8 and 9 of the comments on article 14, para. 1, subpara. (b) (pp. 185-186).

13 Article 12, paras. 1, 4, and 6; article 13, paras. 1, 2 and 3, article 14; article 19, para. 1, introductory subpara.; article 20, para. 1, introductory subpara.; article 21, paras. 2 to 4; article 21 bis, paras. 2 and 4; article 24, para. 2, subpara. (a) (recommendation not to engage in the production of opium for export) and article 35, para. (g).

141961 Commentary, para. 8 of the comments on, article 14, para. 1, subpara.(bJ; see also article 14, para. 1 subparas. (c) and (d) as amended; see furthermore article 14, para. 1, subpara. (a) regarding the restriction on the Board's right to publicity.

15 See also article 12, para. 3.

16 Article 9, para. 5.

17 Article 14, para. 1, subpara. (a) and article 21 bis, para. 3.

18 Article 12 (particularly its para. 4), article 13 (particularly its para. 3), article 14, para. 1, subpara. (a), article 19, article 20, article 21 bis, para. 2; see also article 31, paras. (i) and (g); see 1961 Commentary on the unamended versions of those provisions which existed already in the unamended text of the Single Convention.

19 See also article 14, para. 1, new subpara. (c), article 35, para. (g) and article 38 bis.

20 Article 9, para. 5.

21 1961 Commentary, para. 9 of the comments on article 14, para. 1, subpara: (b) (pp. 185-186).

22 See also 1961 Commentary, para. 17 of the comments on article 14, para. 1, subpara. (a) (p. 183).

 

Paragraph 5 of article 9 of the amended Single Convention

"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."

Commentary

1. The Board must in all cases choose those measures which in its view are those most appropriate for the aims of the Convention which it is required to "endeavour" to achieve. Under paragraph 4 it is required to "endeavour" to co-operate in this task with Governments. Paragraph 5 emphasizes this requirement of co-operation with Governments and defines it in somewhat more detail by specifying that all measures taken by the Board under the Single Convention should be those most consistent with the intent to further the Board's co-operation with Governments and to provide the mechanism for a continuing dialogue between Governments and the Board.

2.   It is submitted that paragraph 5 does not affect the requirement that the Board's first consideration in adopting a measure should be its suitability for achieving the aims of the Convention, although, it might in a very few exceptional cases not necessarily appear to be that most consistent with the intent to further the Board's co -operation with a particular Government. There can however be no doubt, that normally those measures of the Board would be most effective which would be most consistent with the intent to promote the Board's co-operation with the Governments concerned.

3. The requirement that all measures taken by the Board under the Single Convention should also be "those, most consistent with the intent ... to provide the mechanism for a continuing dialogue between Governments and the Board" is justified by the experience of the Board and accords with its practice. The Board exchanges annually several thousands of communications with Governments, often transmitting solicited information and giving requested advice. The continuous contact of the Board or its secretariat with Governments, and especially with their competent technical departments, is likely not only to lend them assistance and to facilitate effective national action, but also quite frequently to contribute to such solutions of national questions as would be most in harmony with the interests of the family of nations as a whole.

4.   Since the Board is not in continuous session and in facts meets only a few weeks each year, it has to delegate to its secretariat the required authority in. order to maintain between its sessions "the mechanism for a continuing dialogue" with Governments. Its secretariat must have highly competent experts capable of carrying on a "dialogue" with Governments which would be useful to them. It may be noted in this context that article 16 of the Single Convention as amended by article 8 of the 1972 Protocol requires the Secretary-General to consult the Board on his appointment of its Secretary and thus grants that organ some influence on the quality of its secretariat services.'

1 See also article 9 para. 2 of the Single Convention and Council resolutions 1196 (XLII) and 1755 (LIV) as regards the discussion of the matter at the 1972 Conference, see 1972 Records, vol. I, document E/CONF.63/L.3 (p. 101) and document E/ (p.123); vol.II, paras.44-58 of the summary records of the nineteenth meeting of Committee I (pp. 152-153).

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