Article 20

TRANSITIONAL PROVISIONS

1. The functions of the International Narcotics Control Board provided for in the amendments contained in this Protocol shall, as from the date of the coming into force of this Protocol pursuant to paragraph 1 of article 18 above, be performed by the Board as constituted by the unamended Single Convention.

2. The Economic and Social Council shall fix the date on which the Board as constituted under the amendments contained in this Protocol shall enter upon its duties. As from that date the Board as so constituted shall, with respect to those Parties to the unamended Single Convention and to those Parties to the treaties enumerated in article 44 thereof which are not Parties to this Protocol, undertake the functions of the Board as constituted under the unamended Single Convention.

3.   Of the members elected at the first election after the increase in the membership of the Board from eleven to thirteen members the terms of six members shall expire at the end of three years and the terms of the other seven members shall expire at the end of five years.

4.   The members of the Board whose terms are to expire at the end of the above-mentioned initial period of three years shall be chosen by lot to be drawn by the Secretary-General immediately after the first election has been completed.

Commentary

1.   Paragraphs 1 and 2 are patterned after the transitional provisions of article 45 of the Single Convention.

2.   It is obviously an oversight of the 1972 Conference that paragraph 2 does not entrust the Board, as constituted under the amended Single Convention, with the functions of the Board under the Vienna Convention of 1971, which is not enumerated in article 44 of the Single Convention concluded in 1961. It is submitted that in spite of this omission the Board as constituted under the amended Single Convention will be authorized to perform the Board's functions under the Vienna Convention.

3.   The Vienna Convention, in its article 1, paragraph (c) identifies the Board on which it confers functions as "the International Narcotics Control Board provided for in the Single Convention on Narcotic Drugs, 1961". It is held that this provision is meant to refer to the Single Convention as it may be amended at any relevant time.

4.   The authority of the Board as constituted under the amended Single Convention to perform the functions under the, Vienna Convention could also be justified on reasons given by the International Court of Justice in its Advisory Opinion on the International Status of. South West Africa in 1950. 1 The Court held in this case that international control continued to exist even when the original organs of control had ceased to exist, and control could be exercised by new organs performing similar supervisory functions.

5.   As regards paragraphs 3 and 4 of article 20, see paragraphs 4 to 10 of the above comments on the introduction 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.

1 International Status of South West Africa, Advisory Opinion: LCJ. Reports, 1950, p. 128. On page 136 the Court states: "It cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist, when the United Nations has another international organ performing similar, though not identical supervisory functions"; see also the opinion of the Legal Adviser to the 1961 Conference, 1961 Records, vol. I, p. 174.