Drug Abuse

Article 9

AMENDMENTS TO ARTICLE 19, PARAGRAPHS 1, 2 AND 5 OF THE SINGLE CONVENTION

Introductory paragraph of article 9 of the 1972 Protocol and paragraph 1 of article 19 of the amended Single Convention

Article 19, paragraphs 1, 2 and 5, of the Single Convention shall be amended to read as follows:

"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 sub-paragraph.

Commentary

1. The 1972 Protocol adds to paragraph 1, subparagraphs (e) to (h), leaving that paragraph's text otherwise unchanged.

2. Estimates of the area to be used for the cultivation of the opium poppy "for the purpose of harvesting opium" are required under article 8, paragraph 3 of the 1953 Protocol; but in contradistinction to the estimates to be furnished pursuant to article 19, paragraph 1, subparagraph (e) of the amended Single Convention, the estimates under the 1953 Protocol do not have a binding effect.1

3. Under article 12, paragraph 1 and article 19, paragraph 1, introductory subparagraph, the Board could pursuant to subparagraph (e) require separate estimates in respect of the opium poppy cultivated for the production of opium and in regard to the poppy cultivated for other purposes. The Board would need the separate data on the opium poppy cultivated for the production of opium in order to be able to use the information provided for in subparagraph (e) for the purposes for which it is destined.

4. Knowledge of the geographic location of opium poppy cultivation might be useful to the Board in examining a situation in which opium produced in one country is illicitly imported into a neighbouring country.2 In

such a situation article 22 of the Single Convention might perhaps be applicable to the opium poppy cultivated in border regions for any purpoe.3 5.   The word "approximate" in subparagraph (f) is intended to emphasize the various uncertainties which determine the size of the opiurn harvest;4 but the figures furnished under subparagraph (f), being estimates, can by their very nature be only "approximate".

6.   The same drugs may be either "natural" or "synthetic"; e.g. morphine may be obtained from opium or poppy straw, and thus be a "natural" drug,s or be manufactured by a process of full chemical synthesis; similarly cocaine may be made from coca leaves or by a process of full chemical synthesis; 6 but the manufacture of these drugs by such a process is not yet economical. On practical grounds one may assume for the purposes of subparagraphs (g) and (h) that synthetic drugs are all substances in Schedules I and II except those at present normally obtained from the opium poppy (its opium or straw), the coca bush or cannabis plant.' On the basis of that assumption thebaine obtained from papaver bracteatum and oxycodone, hydrocodone, acetyldihydrocodeine and codeine made therefrom are to be considered to be natural drugs.

7.   The question arises whether the "industrial establishments" manufacturing synthetic drugs have to be identified by name. Subparagraph (g) requires only an estimate of their number. Subparagraph (h) requires an estimate of the quantities of such drugs manufactured by each of the establishments referred to in subparagraph (g).

8. It is submitted that an answer to that question which would be generally acceptable can hardly be given. It is however submitted that it

appears to be the better opinion that the identity of "each of the establishments" need not be indicated in the estimate to be furnished under subparagraph (h). . Governments may under that provision refer to each establishment by a number, with an indication of the quantity of each of the synthetic drugs which it is believed it will manufacture in the calendar year to which the estimate in question relates.

9.   An "establishment" as that word is used in the Single Convention is a place of business with its fixtures and organized staff.7 An individual or corporate drug manufacturer or a State enterprise engaged in drug manufacture may have several "establishments", some of which may not have a special name. The information pursuant to subparagraphs (g) and (h) must be given in respect of each "establishment" and not in respect of each individual, corporate or governmental manufacturer.

10. The Board determines whether a Party has complied with its obligations flowing from its binding estimates,$ by comparing the estimates with related statistical data which it receives under article 20.

11.   In regard to the estimates furnished pursuant to subparagraph (e), the Board should receive the corresponding statistical figures under the new subparagraph (g) of paragraph 1 of the amended article 20.

12.   In regard to the estimates provided for in subparagraph (f), the Board should obtain the related statistics under article 20, paragraph 1, subparagraph (a), which was not changed by the 1972 Protocol.

13.   As regards the estimates to be supplied under subparagraph (g), neither the unamended Single Convention nor its amended version contains a provision requiring Governments to furnish to the Board the related statistical information. The Commission may, under article 18, paragraph 1, introductory subparagraph of the Single Convention, and does under article 20 of the 1931 Convention, obtain the names and addresses of persons or firms authorized to manufacture narcotic drugs, and the names of the drugs each of them is entitled to make. 9 That information does not necessarily include each of the several industrial "establishments" such a drug manufacturer may have, although it may be assumed that he would normally not have more than one "establishment" engaged in the manufacture of a particular synthetic narcotic drug. The Commission under article 18, paragraph 1, introductory subparagraph, could obtain the required separate information on individual "establishments" if it should find such information necessary. The Board could obtain from the Commission' 0 statistical data which it may need in its examination of the compliance of Governments with article 19, paragraph 5 in respect of their estimates furnished under subparagraph (g).

14. The Board receives under article 20, paragraph 1, subparagraph (a) information on the total quantity of each "synthetic" drug' i manufactured in each country and territory, but not on the part of that total made by a particular establishment. The Commission may obtain the additional data by applying article 18, paragraph 1, introductory subparagraph.

15. While the Board is empowered to use information furnished by the Commission for the performance of its functions,' 2 it may be questionable whether it is compatible with its technical independence guaranteed by article 9, paragraph 2 to place the Board in a position in which it has to obtain from the Commission information needed for its work.13 The Commission is under no obligation to furnish the Board with that information. It appears to have been due to an oversight of the 1972 Conference that the 1972 Protocol does not require Parties to furnish to the Board the statistical data necessary for the purpose of examining the compliance of Governments with article 19, paragraph 5 in regard to their estimates furnished under article 19, paragraph 1, subparagraphs (g) and (h). It may be assumed that the Board is under no obligation to make that examination.

16.   In view of the rule of article 2, paragraph 3 that preparations other than those in Schedule III are subject to the same measures of control as the drugs which they contain, the question arises whether subparagraphs (g) and (h) also apply to industrial establishments manufacturing preparations of "synthetic" drugs.

17.   Article 2, paragraph 3 also provides that "estimates (article 19) and statistics (article 20) distinct from those dealing" with the drugs which the preparations contain shall not be required in the case of preparations. That restriction appears to exclude preparations from the scope of subparagraph (h), but not necessarily from that of subparagraph (g). It is however submitted that because of the interdependence of these subparagraphs it would be compatible with their purpose to exclude preparations from the information to be furnished tinder both of them.14

1 Article 8, paras. 10 and 11 of the 1953 Protocol.

21972 Records, vol. 11, paras. 29 and 60 of the summary records of the seventh meeting of Committee 1 (pp. 92-94); see also article 8, para. 3 of the 1953 Protocol.

3 1961 Commentary para. 8 of the comments on article 22 (p. 276).

4 1972 Records, vol. 11, para. 32 of the summary records of the seventh meeting of Committee I (p. 92).

5 Article 1, para. 1, subpara. (j).

6 1931 Commentary, para. 14 (p. 41).

7 1961 Commentary, para. 3 of the comments on article 29, para. 2, subpara. (b) (p. 321).

8 See article 19, para. 5 and article 21 bis, para. 1 of the amended Single Convention; see also article 21 which was not amended by the 1972 Protocol.

9 See documents E/NR.FORM/Rev.2, Annex 11 and E/NF.1973.

10 Article 8, para. (b) of the Single Convention.

11 Or "natural" drug.

12 Article 8, para. (b) and article 14, para. 1, subpara. (a) in its unamended and amended version.

13 Article 12, para. 4 and article 13, para. 2.

14 1972 Records, vol. 11, para. 4 of the summary records of the thirteenth meeting of Committee I (p. 119).

Paragraph 2, subparagraphs (a), (b) and (c)

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 estimates 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 21, 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.

Commentary

1. The unamended paragraph 2 of article 19 provides for a single definition of the notion "the total of the estimates" valid for all narcotic drugs, i.e., for all substances in Schedules I and 11. That paragraph as amended by the 1972 Protocol has three different definitions of that phrase, one in subparagraph (b) for opium, another in subparagraph (c) for "synthetic" drugs, and a third in subparagraph (a) for all other narcotic drugs, that is to say, for all "natural" drugs other than opium. This third group includes all narcotic drugs normally obtained from opium or poppy straw, the coca leaf, drugs normally obtained from coca leaves, cannabis, cannabis resin and drugs normally obtained from cannabis or cannabis resin.'

2.   For a discussion of the term "synthetic drugs", see above, paragraph 6 of the comments on the introductory paragraph of article 9 of the 1972 Protocol and on paragraph 1 of article 19 of the amended Single Convention.

3. The phrase "the total of the estimates" is a device of legislative technique in the field of international drug control law, first used by the 1931 Convention in order to avoid the need for repeating all the addenda and the subtrahends of which that total is composed, in provisions in which all of them form the basis of a computation of legally relevant quantities. It is not literally a total of all the estimates, because the estimates of stocks under article 19, paragraph 1, subparagraph (c) are not included. The Single Convention makes use of that device in two cases: in article 21, paragraph 4, authorizing the Board to require the cessation of exports of a narcotic drug to a country or territory whose imports of that drug exceeded a maximum computed on the basis of "the total of the estimates" of the drug concerned for that country or territory; and in article 31, paragraph 1, subparagraph (b), requiring Parties not knowingly to permit the export of narcotic drugs to any country or territory except within the limits of "the total of the estimates" for that country or territory, with the addition of the amounts intended to be re-exported.2 The notion of "the total of the estimates" is not used for any other purpose either in the unamended or in the amended Single Convention. It is not used for determining the limits of narcotics supplies which a Party may under article 21, paragraphs 1 and 2 obtain by manufacture or import or both, nor for limiting "production "3 including the "production" of opium.

4.   Subparagraph (a) reproduces the definition of "the total of the estimates" as given in article 19, paragraph 2 of the unamended Single Convention. It differs from the earlier text only by excluding from its scope opium and synthetic drugs. As regards natural drugs other than opium, the definition of "the total of estimates" of the unamended text has not been affected by the 1972 Protocol, nor consequently the computation of the legally relevant quantities for the purposes of article 21, paragraph 4 or article 31, paragraph 1, subparagraph (b). The comments of the 1961 Commentary on article 19, paragraph 2 4 of the unamended Single Convention therefore also apply mutatis mutandis to article 19, paragraph 2, subparagraph (a) of its amended text.

5.   The definition of "the total of the estimates" in subparagraph (b) applicable to opium differs from that in subparagraph (a) for natural drugs other than opium in that

(a) The total is not only subject to the deductions referred to in article 21, paragraph 3, but also to those made by the Board according to article 21 bis, paragraph 2, and

(b) always subject to the deductions just mentioned under (a), it is either the amount computed as under article 19, paragraph 2 of the unamended Convention for all drugs, or the figure given by the Government concerned5 under article 19, paragraph 1, subparagraph (f) of the amended text as its estimate of the "approximate quantity of opium to be produced", whichever of these two amounts is higher.

6. The subparagraph (b) "deductions referred to in paragraph 3 of article 21" is modified by the apposition "regarding imports". These deductions include in particular the amounts of narcotic drugs which in the year concerned a country or territory acquired by manufacture or import or both in excess of the quantities authorized pursuant to article 21, paragraph 1. That paragraph however limits only the amounts which a country or territory may obtain by "manufacture" or import; it does not restrict the quantities which it may "produce". 3 Since opium is not manufactured, the deductions under article 21, paragraph 3 therefore can in respect of that drug relate only to excessive imports. A quantity of opium produced licitly or illicitly and diverted into the illicit traffic however may wholly or in part be deducted by the Board from that country's or territory's total of the estimates for that drug according to article 21 bis, paragraph 2.6

7. Of the two alternative computations of the "total of estimates" provided in subparagraph (b) for opium, the first would have to be used in regard to a country or territory whose own estimated opium needs7 exceed its opium production estimated according to article 19, paragraph 1, subparagraph (f);. the second would be used for a country or territory whose estimated opium production exceeds its estimated opium needs.

8. The first method of computation, which is also the one to be applied pursuant to the unamended paragraph 2 of article 19 in regard to all narcotic drugs, therefore applies to the overwhelming majority of countries that do not permit the production of opium and consequently do not have to furnish estimates of opium production under subparagraph (f) of paragraph 1. It applies also to those of them which have a significant problem of illicit opium production which they cannot suppress. The first method of computation would also normally have to be employed for the majority of the countries  legally producing opium, since their estimated opium needs would exceed their estimated opium production under the amended article 19. 8 The method which under the unamended Single Convention would have to be used for computing the total of opium estimates would thus not be affected by the 1972 Protocol in respect of the overwhelming majority of countries, i.e. all which do not permit the production of opium, and even normally for the majority of the few countries which engage in the legal production of that drug.

9. The second method of computation provided for in subparagraph (b) would thus be applicable only in regard to some of the countries permitting the production of opium, in fact under the conditions prevailing at the time of this writing, in all years only for India and in some years also for Iran and Pakistan. 9

10. It will be noted that the Board may make the deduction under article 21 bis, paragraph 2 only from the total opium estimates of a Party to the amended Single Convention which pennits the legal production of opium and consequently "has submitted an estimate under paragraph 1(f) of article 19"? ° The Board does not appear to be authorized to make that deduction in respect of a country not a Party to the amended Single Convention, even if its legal opium production exceeds its estimates furnished under article 19, paragraph 1, subparagraph (f) and a significant amount of opium produced, licitly or illicitly, within its borders has been introduced into the illicit traffic."

11.   A deduction under article 21 bis, paragraph 2 from the total opium estimates of a country or territory would not reduce the amount of opium which that country or territory would be authorized to import, 1 2 but only the quantities whose export to that country or territory other Parties would be authorized to permit13 3 or the Board would be required to tolerate? 4 but those quantities would normally be considerably larger than the amount which the country or territory would be entitled to import.' s The deduction would thus frequently. have no effect on the actual imports of the country or territory in question.

12. The amounts of opium which a country or territory would be authorized to import would under article 21, paragraphs 1 to 3, continue to be based on its needs for opium and not on its "total of the estimates" for opium. 16 Their size would thus not be affected by the method by which "the total of the estimates" would have to be computed. The application of the second method provided for in subparagraph (b) would affect only the quantities of opium whose export to the country or territory involved Parties would be entitled to permit 13 or the Board be required to tolerate. 14 It would thus reduce the capacity of the Board under article 21, paragraph 4 to prevent excessive opium imports to a country or territory whose "total opium estimates" would be calculated by the second method; but it can hardly be imagined that such a country or territory would import excessive amounts of opium, since the second method of calculation is to be applied only in regard to a country or territory whose estimated opium production exceeds its own opium needs. Such a country or territory can be expected to be an exporter of opium rather than an importer of large quantities of that drug. It is submitted that the amendment by the 1972 Protocol of the method of calculating "the total of the estimates" for opium is of very little if any practical importance.

13. Subparagraph (c) provides for two different methods of calculating "the total of the estimates" of a synthetic drug. 17 The first is the same method as the one prescribed in subparagraph (a) for natural drugs , 8 other than opium, or in the unamended paragraph 2 of article 19 for all drugs. The second method, patterned after the second definition in subparagraph (b) of "the total of the estimates" of opium, requires that the total of the estimates of a synthetic drug should, subject to the deductions referred to in article 21, paragraph 3, be equal to the sum of the figures furnished by the Government concerned' 9 under article 19, paragraph 1, subparagraph (h) as the estimated quantities of that synthetic drug to be made by each of the establishments 20 manufacturing it. Like subparagraph (b) for opium, subparagraph (c) provides that the larger amount of the two figures obtained for the synthetic drug involved under the two methods should constitute its "total of the estimates".

14.   The figure obtained by the first of those two methods would be "the total of the estimates" in the case of a country or territory whose estimated needs for the drug involved exceed its estimated manufacture of that drug, and the one obtained by the second method would be "the total of the estimates" in the case of a country or territory whose estimated manufacture of the drug concerned exceeds its estimated needs for it.

15. The amounts of a synthetic drug which a country or territory would under article 21, paragraphs I to 3 be entitled to obtain by manufacture or import or both in a given year would under the amended Single Convention continue to be based on its needs for that drug and not on "the total of the estimates" for it. 21 Their size would therefore not be affected by which of the two methods "the total of the estimates" would be calculated. That amendment of the 1972 Protocol thus does not bring about any change in the quantities of synthetic drugs which a country or territory may manufacture or import. The application of the second method provided for in subparagraph (c) would affect only the amounts of the synthetic drug concerned whose export to the country or territory in question Parties would have the right to permit1 3 or the Board would be bound to tolerate.1 4 The change introduced by the 1972 Protocol in the calculation of "the total of the estimates" of synthetic drugs somewhat weakens the capacity of the Board under article 21, paragraph 4 to prevent excessive imports of a synthetic drug to a country or territory whose "total of the estimates" for that drug would be calculated by the second method for which subparagraph (c) provides; but such a country or territory would hardly import excessive amounts of a synthetic drug which it manufactures in larger amounts than it needs. One can conclude that the change of the 1972 Protocol in the method of computing "the total of the estimates" for synthetic drugs is hardly of any practical importance.22

1 The tetrahydrocannabinols and their isomers are not "drugs" in the meaning of the Single Convention, but "psychotropic substances" included in Schedule I of the Vienna Convention.

2 The phrase "the total of the estimates" defined in article 19, para. 2 also occurs in article 21, para. 3 and in the new article 21 bis, para. 2.

3 Defined in article 1, para. 1, subpara. (t) to mean "the separation of opium, coca leaves, cannabis and cannabis resin from the plants from which they are obtained".

4 1961 Commentary, pp. 234 to 236.

5 Or established by the Board pursuant to article 12, para. 3.

6 Article 21 bis, para. 1 and 2; as regards restrictions of the production of opium for export, see article 24, paras. 2 to 5.

7 i.e., the sum of the quantity needed for domestic consumption for medical and scientific purposes, the quantity needed for the manufacture of other narcotic drugs, the quantity needed for the manufacture of preparations in Schedule 111, the quantity, needed for the making of substances not covered by the Single Convention, the quantity needed for addition to stocks, and the quantity needed for addition to "special stocks" (article 1, para. 1, subparts (w)). Subject to the deductions concerned, that sum of estimated quantities forms "the total of the estimates" as calculated by the first of the two alternative methods provided for in subpara. (b).

8 Document E/INTCB/31, Table I (p. 14) and Table III (p. 31).

9 Other legal opium producers are Bulgaria (in some years), Yugoslavia and Japan, whose totals of estimates of opium would have to be computed by the first method; Burma also produces opium; but the information available to the Board does not permit a conclusion as to the method by which its total of the estimates for opium would have to be determined.

10 Estimates of opium production not furnished by a State could be established by the. Board pursuant to article .12, para. 3.

11 See below, the comments on article 21 bis, para. 2.

12 Article 21, paras 1 to 3.

13 Article 31, para. 1, subpara. (b).

14 Article 21, para. 4.

151961 Commentary, paras. 7 to 12 of the comments on article 21, para.4 (pp. 272-273) and paras 8 and 9 of the comments on article 31, para. 1 (pp. 350-351).

16 See para. 3 above of the present comments

17 Para. 6 of the comments on article 9, introductory paragraph of the 1972 Protocol and on article 19, para. 1 of the amended Single Convention.

18 Para. 1 of the comments on article 19, para. 2, subparas. (a), (b) and (c). 19 Or established by the Board under article 12, para. 3.

20 Para. 9 of the comments referred to in foot-mote 17.

21 The amount to be manufactured would also be subject to a limit under article 19, pare. 1, subpara. (h) and para. 5.

22 It was correctly pointed out by a delegate to the 1972 Conference that the changes in calculating "the total of the estimates" for opium and synthetic drugs do not fit in with other provisions of the Single Convention; 1972 Records, vol. II, para. 38 of the summary records of the thirteenth meeting of Committee I (p. 122),

Paragraph 2, subparagraphs (d)

(d) The estimates furnished under the preceding, subparagraphs of this paragraph shall be appropriately modi f ied 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.

Commentary

1.   The interpretation of the subparagraph under consideration presents considerable difficulties. The provision deals with "estimates furnished under the preceding subparagraphs of this paragraph", i.e. of paragraph 2; estimates are however not furnished under paragraph 2, but under the subparagraphs of paragraph 1. Moreover if it is assumed that the word "estimates" as used in subparagraph (d) is meant to be an abbreviation of the phrase "the totals of the estimates"' with which the preceding subparagraphs of paragraph 2 deal, these totals are not "furnished", but computed in accordance with the terms of those subparagraphs. It must be' admitted that the meaning of subparagraph (d) is rather obscure.

2.   The legislative history of subparagraph (d) reveals that an earlier version of that provision was intended to reduce the amount of opium to be produced in the country or territory concerned, and originally formed paragraph 2 of the draft of article 21 bis from where it was transferred to article 19. The original text was revised in order to be made applicable also to synthetic drugs

3. Paragraphs 1 and 2 of draft article 21 bis, headed "Limitation of opium production", as originally proposed, read as follows:

1. The quantity of opium produced by any country or territory in any one year shall not exceed the estimate of opium produced established under paragraph 1 (f) of article 19.

From the quantity 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.2

4. Committee I of the 1972 Conference decided to transfer the substance of paragraph 2 of draft article 21 bis to article 19. 3 It was proposed to add to the draft of article 19, paragraph 2, subparagraph (b) the following sentence:

The relevant estimates 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. 4

5.   Some of the decisions of the 1972 Conference are explained by the desire that controls equal to those to be implemented by opium producing countries should also be imposed on countries manufacturing synthetic drugs.5 It seems also to have been the mistaken assumption of some delegates that under the amended Single Convention the size of "the total of the estimates" for opium would have some bearing on the amount of opium which may be produced.6 That desire and assumption apparently explain the transfer of the substance of subparagraph (d) from article 21 bis to article 19, paragraph 2 and the extension of the application of the transferred provision originally only governing opium to synthetic and other drugs.

6. The drafters of the subparagraph under consideration did not succeed in expressing very clearly the intention which'the 1972 Conference had in adopting that provision. There appears to have been some error in its drafting.

7. The first question which may be raised is whether subparagraph (d) erroneously refers to paragraph 2 instead of paragraph 1. The substitution of a reference to paragraph 1 for that to paragraph 2 would lend subparagraph (d) some meaning. It would however not be clear which of the estimates furnished under paragraph 1 should be "appropriately modified". The Parties would in particular not be required appropriately to modify specifically their estimates furnished under article 19, paragraph 1; subparagraphs (f) and (h); but only a modification of those estimates would seem to be in accord with the intention of the 1972 Conference, since precisely such modifications would oblige the Parties to reduce their production of opium or manufacture of synthetic drugs,7 as intended. A conclusion that the reference should be to paragraph 1 instead of paragraph 2 therefore does not appear to be appealing in the light of the purposes of the Single Convention and of the intention which the 1972 Conference seems to have had in mind when, adopting the subparagraph under consideration.

8. Another possibility is that the drafters of subparagraph (d) used the words "the estimates" as an abbreviation for the phrase "the totals of the estimates" and that the words. "furnished under" have to be understood to mean "mentioned in". Since the size of the "total of estimates" has'no bearing on the amount of opium which may be produced or on the quantity of a synthetic drug which may be manufactured, 8 that interpretation would also seem not to accord with the intention of the 1972 Conference.

9. It is submitted that it would appear to be preferable to assume that while the words "furnished under" mean in this context "'mentioned in", the word "estimates" is correctly used. The only estimates which are separately mentioned in the preceding subparagraphs of paragraph 2 and not merely as parts of the definitions of the different "totals of the estimates" are: in subparagraph (b), the estimates according to article 19, paragraph 1, subparagraph (f), i.e. the estimate of the "approximate quantity of opium to be produced", and in subparagraph (c) the estimates according to paragraph 1, subparagraph (h) of that article, i.e. the estimates of "the quantities of synthetic drugs to be manufactured by each of the establishments". A modification of these separately-mentioned estimates would affect the size of opium production or of the manufacture of the synthetic drug in question, as the case may be, and this-it is submitted-appears to have been the intention, of the 1972 Conference.

10.   It is admitted that no compelling arguments have been given for any of the corrective interpretations proffered in the preceding paragraphs of the present comments; but whatever view Parties may have of the meaning of subparagraph (d), it would from the viewpoint of the purposes of the Single Convention be of little practical importance. The same would be the case if Parties would consider that subparagraph to be ineffective, as would seem to follow from its literal meaning.

11.   It is suggested that the Board may find it advisable to recommend to Parties in which particular way subparagraph (d) should be implemented, or that they should consider that provision to be ineffective. It might be useful in that case if the Commission would expressly concur with the Board's recommendation and would propose to the Council to adopt a recommendation endorsing the Board's view.

12.   A Party which accepts the view indicated in paragraph 9 of the present comments would have to modify its estimates of opium production for the next year following the release of the seized opium, or following the withdrawal of opium from "special stocks," in which the consequential reduction in the production of opium could technically be accomplished9 A Party which manufactures synthetic drugs could modify its estimate of synthetic drugs to be manufactured by each of its establishments, either for the year in which the transfer or the withdrawal from special stocks took place, by furnishing to the Board appropriate supplementary estimates,' 10 or for the following year.

13.   A Party which adopts the view discussed in paragraph 7 of the    present comments could make the relevant modifications of all estimates, except that of the area to be used for the cultivation of the opium poppy and that of the approximate quantity of opium to be produced, for the year in which the release of the seized drug in question or the withdrawal of the drug involved from special stocks took place, by furnishing supplementary estimates,) 10 or for the following year. It should make the required modification of its estimates of the area to be cultivated with the opium poppy and of opium production for the next year, following the release of , seized opium or the withdrawal of opium from special stocks, in which the consequential reduction in the cultivated area and in opium production could technically be accomplished.9

14.   If the interpretation considered in paragraph 8 of the present comments is adopted, the deductions would have to be made by the Board from "the total of the estimates" for the year following that in which the release of the seized drugs or the withdrawal from special stocks took place. 15.   The date of seizure of the drug concerned is under subparagraph (d) in any event irrelevant.

16.   It will be noted that subparagraph (d) does not require that the quantities in question be deducted, but only that the "estimates" be appropriately modified. That leaves to the Party or the Board-as the case may be-very wide discretion in determining the extent of the required subtractions.

17. Modifications of some of the estimates furnished under paragraph 1 11 or of "the totals of estimates ", 12 to be made pursuant to subparagraph (d), would have the effect of a corresponding duplication of the deductions to be made under article 21, paragraph 2 and this cannot have been the intention of the 1972 Conference. Such modifications would not appear to be "appropriate".

18.   A duplication of the deductions pursuant to article 21, paragraph 2, however, would not result from a modification of the estimates of the "approximate quantity of opium to be produced",1 3 i.e. of the estimates to which alone the sponsors of the original draft of subparagraph (d) intended to apply that provision. 14 Article 21, paragraph 2 has no bearing on opium production.

19.   It was pointed out above 15 that the transfer of the substance of the provision of subparagraph (d) from the original draft of article 21 bis to its present place in article 19 was motivated by the desire to make it applicable to synthetic drugs; but a modification, to be made pursuant to subparagraph (d), of the estimates of "the quantities of synthetic drugs to be manufactured by each of the establishments" (para. 1, subpara. (h))13 s would also result in a corresponding duplication of deductions under article 21, paragraph 2 and therefore would hardly appear to be "appropriate".

1 Article 14, para. 1 of the 1931 Convention uses the words "the estimates" for "the total of the estimates"; 1931 Commentary, para. 144 (p. 183).

2 Document E/CONF.63/5 and addenda 1-7; 1972 Records, vol. I, pp. 96 et seq.

3 1972 Records, vol. 11, paras. 6 and 11 of the summary records of the seventh rneeting of Committee I (p. 91).

4 Document E/CONF/C.1/L.16, 1972 Records, vol. I; p. 105 and vol. II, para. 6 of the summary records referred to in the preceding foot-note; the draft of article 19, para. 2, subpara. (b) as reproduced in document E/CONF.63/5 (see fbot-note 2) reads as follows: (b) Subject to the deductions referred to in para. 3 of article 21 bis, the total of the estimates for each territory and opium shall consist of the sum of the amounts specified under sub-paras. (a), (b) and (d) of para. 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 subpara. (c) of para. 1, or of the amount specified under subpara. (f) of para. 1 of this article, whichever is higher.

5 1972 Records, vol. 11, para. 24 of the summary records of the twelfth meeting of Committee I (p. 117); as regards the meaning of "synthetic drugs", see para. 6 of the above comments on the introductory paragraph of article 9 of the 1972 Protocol and on para. 1 of article 19 of the amended Single Convention.

6 1972 Records, vol. II, paras. 4 to 21 of the summary records of the ninth meeting of Committee I (pp. 100-102); summary records of the thirteenth and fourteenth meeting of that Committee (pp. 119-127) and pares 73 of the summary records of the fifteenth meeting of the same Committee (p. 132).

7 Article 19, para. 5 and article 21 bis, pares. 1 of the Single Convention.

8 See pares 3 of the above comments on article 19, para. 2, subparas. (a), (b) and (c); moreover in view of article 21; para. 3 the modifications under article 19, para. 2, subparts (d) would duplicate deductions which are already taken into account in the calculation of the deductions to be made under article 21, para. 3 from the total of the estimates.

9 See also article 21 bis, para. 2.

10 Article 19, para. 3.

11 Para. 7 of the present comments.

12 Para. 8 of the present comments.

13 Para. 9 of the present comments; see also para. 7 of these comments. No duplication would also be caused by a modification of the estimates pursuant to para. 1. subparas. (e) and (g).

14 Paras. 2 to 6 of the present comments. 15 Paras. 2 and 5 of the present comments.

Paragraph 5

"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."

Commentary

1. In view of the extension of the list of estimates in article 19, paragraph 1, paragraph 5 applies also to estimates of:

(a) The, area to be used for the cultivation of the opium poppy (paragraph 1, subparagraph (e));

(b) The approximate quantity of opium to be produced (paragraph 1, subparagraph (f));

(c) The number of industrial establishments which will manufacture synthetic drugs (paragraph 1, subparagraph (g)); and

(d) The quantities of synthetic drugs to be manufactured by each of the establishments manufacturing them (paragraph 1, subparagraph (h)).

2.   These estimates, except that of the approximate quantity of opium to be produced, relate to activities which, insofar as they are legally carried on, can rather exactly be controlled by Government action.

3. It is, on the other hand, sometimes impossible to avoid that the estimates for which the unamended paragraph 1 of article 19 already provides, i.e., the estimates to be furnished under subparagraphs (a) to (d) of that paragraph, are exceeded.' The 1961 Commentary therefore holds 2 in respect of those estimates that paragraph 5 only requires that a country's or territory's actual consumption, actual utilization for the manufacture of other narcotic drugs, of uncontrolled substances or of preparations in Schedule III, actual stocks held at the end of the year in question and actual additions to "special stocks" should, as far as possible, not exceed their respective estimates, as originally furnished to, or established by the Board, 3 or as modified by supplementary estimates. 4

4.   The text of article 19, paragraph 1, subparagraph (f), requiring only that the estimates of opium production should be "approximate", reveals that the 1972 Conference was well aware of the fact that a Party would quite often not be able to prevent its actual opium harvest from exceeding its estimate of opium production. A Party can in that case not be considered to be in breach of its obligations under paragraph 5; see also below the comments on article 21 bis, paragraph 1.

5.   It has been suggested earlier that the Board is authorized to requires that under article 19, paragraph 1, subparagraph (e) Parties furnish separate estimates of the area to be cultivated with the opium poppy for the production of opium and of the area so cultivated for other purposes. However, what Parties may not "exceed" under paragraph 5 is not these separate figures, but the estimate of the total area to be used for the cultivation of the opium poppy for any purpose.

6. Under article 21, paragraphs 1 to 3 the amount of a drug (whether natural or synthetic) which a Party may acquire by manufacture or import or both in any of its territories in any given year must not exceed a maximum to be computed in accordance with these provisions. A Party is therefore required to see to it that its manufacture of a synthetic drug in any year does not only not exceed the sum of its estimates of the quantities of that drug to be manufactured in each of its establishments, as it is required to do by paragraph 5 in connexion with paragraph 1, subparagraph (h) of the amended article 19, but also does not exceed the maximum which would be authorized under article 21, paragraphs 1 to 3. These two figures can hardly be the same. It follows that the smaller of them would determine the amount which the Party would be entitled to manufacture.

7. It may be noted also that the quantity of a synthetic drug manufactured by a particular industrial establishment should not "exceed" the estimates for that establishment.6

1 1961 Commentary, para. 2 of the comments on article 19; para. 5 (p. 242).

2 Para 1 of the comments mentioned in the preceding foot-note (p. 241).

3 Article 12, para. 3.

4 Article 19, para. 3.

5 Para. 3 of the above comments on the introductory paragraph of article 9 of the 1972 Protocol and on para. 1 of article 19 of the amended Single Convention.

6 Article 19, para. 1, subpara. (h).

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