Article 10

TERMS OF OFFICE AND REMUNERATION OF MEMBERS OF THE BOARD

Paragraphs 1 and 2

1.   The members of the Board shall serve for a period of three years, and shall be eligible for re-election.

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.

Commentary

1.   The members of the former Permanent Central Board were appointed for a term of five years. I   The same period was foreseen for membership on the International Narcotics Control Board, 2 in the Third Draft, which the Plenipotentiary Conference used as working document. A long term of office is often considered to be an important factor in strengthening the independence of office holders, particularly of those who perform judicial functions; but in 1961 when the Plenipotentiary Conference adopted the Single Convention, an accelerating process of emancipation of dependent peoples had already commenced. The Conference found it advisable to reduce the term of office of the members of the new Board from five to three years in order to facilitate the election of nationals of newly independent States to membership. 3   The Single Convention does not impose any restrictions on the re-election of members of the International Narcotics Control Board, and in this respect follows the rule of the 1925 Convention regarding the old Permanent Central Board. 1   Experience in the often highly technical work of the International Narcotics Control Board generally adds to the competence of a candidate.

2.   It is essential for the effective operation of the international narcotics regime that the Board should always be capable of speedy action; for example, if a country submits to the Board a supplementary estimate of its narcotics requirements in order to increase the quantities of drugs which it is authorized to import under the terms of the Single Convention, failure of the Board to consider such an estimate expeditiously may unduly delay the importation of medicines which may be urgently needed. 4 If the need for such urgent action arises at a moment at which the members of the Board have been newly elected but have not yet met, it might be very difficult to convoke a session of members living in different parts of the world with sufficient speed. Therefore in such circumstances it would be desirable to obtain a decision by airmail correspondence or by cable; but it might be very difficult or even impossible to obtain in such a situation a well-considered decision by air correspondence or cable from members who might not even know each other. Paragraph 2 of article 10 is designed to deal with this difficulty. To explain its practical application, an example maybe given.   At its 1677th meeting, on 14 May 1970, the Council elected eleven members of the International Narcotics Control Board for a term of office of three years beginning on 2 March 1971. 5   If on 15 March 1971 urgent action was needed, and the Board consisting of the members elected in May 1970 and beginning their three-year term on 2 March 1971 had not yet met for its first meeting, the members of the preceding Board, elected for a term of office of three years beginning on 2 March 1968, s rather than the new members, would have to take the required decision by cable or airmail.   This Board in its old membership, though it would not be entitled to meet after 1 March 1971, would be able to take decisions by mail or telecommunications after that date, that is, until the eve of the first meeting of the new Board.

3.   Difficulties will arise in applying paragraph 2 if a person leaves the Board before the expiration of his term of office, and is replaced by a new member elected for the remainder of the term of the former in accordance with article 10, paragraph 5.   It is submitted that paragraph 2 should not be applied to situations governed by paragraphs 3 or 4; nor could it be applied to a vacancy due to death.   Paragraph 2 could be applied to a voluntarily resigning member only if he agrees to make his resignation effective on the eve of the first meeting which his successor would be entitled to attend.

4.   The question arises what should be done in all these cases to which paragraph 2 is not applicable.   Should the newly elected member, who under the terms of his election by the Council would already be entitled to participate in the meetings of the Board, be consulted by mail or cable even before the first meeting which he has a right to attend, or should the decision be taken only by the other members? Paragraph 5 of article 10 stipulates that the vacancy be filled for the "remainder of the term" of the member who is to be replaced. Such remainder must be assumed to commence, in all cases to which paragraph 2 does not apply, with the termination of the term of office of the preceding member who on account of his death, his resignation not timed to take effect on the eve of the first meeting which his successor is entitled to attend, or by the operation of paragraphs 2 and 3, ceases to belong to the Board. It is suggested that it would be useful if the Council in its decision filling a vacancy in such a case, would indicate that the newly elected member is entitled to function immediately, and not only from the first meeting of the Board in which he has the right to take part.

1 Article 19, seventh para. of the unamended text and sixth para. of the text as amended by the 1946 Protocol; the terms of office of each member of the (Drug) Supervisory Body, the other predecessor organ of the International Narcotics Control Board was in each case determined by the Organization appointing him.

2 E/CN.7/AC.3/9, article 14, para. 1, Records, vol. 11, p. 6.

3 Records, vol. 1, p. 94 and vol. II, p. 233.

4.Article 12, para. 5, article 19, para. 3, article 21, para. 1 and article 31, para. 1, subpara. (b); see also article 21, para. 4, subpara. (b), clause (i); see also above comments on article 9, para. 2.

5 Official Records of the Economic and Social Council.   Resumed Forty-eighth Session, Supplement No. IA, p. 24.

6 This election took place on 31 May 1967, at the Council's 1472nd meeting; Ibid., Forty-second Session.   Supplement No. I (E/4393), p. 29.

Paragraphs 3 and 4

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 eight members of the Board.

Commentary

1.   The provision of paragraph 3 is not in the nature of a penal sanction imposed on office holders who neglect their duties as members of the Board. It is rather intended to facilitate the proper functioning of the Board. It appears to be highly desirable that all members, and in any event as many members of the Board as possible, participate in its meetings in order to ensure that its actual composition reflects the balance of technical competence, of equitable geographic representation and of familiarity with the varying drug situations in different types of countries required for the Board under the terms of article 9. It is also necessary to avoid a situation in which the Board is incapable of taking any action because of lack of a quorum, 1 or in which, due to insufficient attendance, it cannot adopt those decisions which require a two-thirds majority. 2

2.   Paragraph 3 must be applied no matter how justified may be the reasons for a member's failure to attend three consecutive sessions.   Failure to attend three consecutive sessions is required under paragraph 3. Presence, however short, at every third session would prevent the loss of membership.

3. The Secretary-General must, without any undue delay inform the Council of any vacancy caused by the operation of paragraph 3 in order to enable the Council to fill the vacancy "as soon as possible" as required by article 10, paragraph 5.   He should, at the same time, request Governments or the WHO, as the case may be, 3 to nominate candidates for the vacancy. He should also include the election of the new member in the provisional agenda of the earliest session or resumed session of the Council which he can in due time inform of the nominations received.

4.   A member of the Board may be dismissed under paragraph 4 whatever the reasons for his ceasing to fulfil the conditions for membership under article 9, and whether or not he is personally responsible for those reasons.   If he does not promptly resign, he may be dismissed not only if he accepts a position or commences to engage in any activity which is liable to impair his impartiality, but also if he commits any offence, or performs any other act not subject to penal law, which would undermine the general confidence which he must command.   If a member's mental or physical capacity deteriorates so that his ability to perform efficiently the functions of his office is affected, he obviously ceases to possess the competence required for membership on the Board under article 9, and if he does not resign he may be dismissed pursuant to article 10, paragraph 4.

5.   The question arises whether a member may be dismissed if he changes his nationality or becomes stateless.   It is suggested that paragraph 4 generally does not apply to such a situation unless the equitable geographic representation required by article 9, paragraph 3 for the composition of the Board is thereby seriously affected.   This may in particular be the case if the member changing his nationality acquires the nationality of another member of the Board.   The majority of eight affirmative votes required for a recommendation of the Board to dismiss a member amounts to "a two-thirds majority of the whole number of the Board", that is, to the same majority as that which is required for the Board's decisions in regard to the measures which it may take under article 14 "to ensure the execution of provisions of the [Single] Convention". 4

6.   The Secretary-General must without any delay notify the Council of the Board's recommendation in order to enable the Council to take quick action and, if it concurs with the Board, to proceed with filling the vacancy "as soon as possible". 5   The Council decides on the Board's recommendation by a (simple) majority of its members present and voting. 6

1 Article 11, para. 3.

2 Article 14, para. 6; see also article 10, para. 4.

3. See above comments on article 9, para. 1 and below comments on article 10, para. 5.

4 As regards the majority required for a decision of the Board to delegate its powers to one or several of its members (Committee) or to a member of the Secretariat, see below, comments on article 11, para 3.

5 Article 10, para. 5.

6 Article 67, para. 2 of the Charter of the United Nations.

Paragraph 5

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.

Commentary

1.   The subordinate clause at the beginning of the English text is perhaps not very fortunately formulated. There can however be no doubt that the words "where a vacancy occurs on the Board during the term of office of a member" are intended to mean "where a seat on the Board becomes vacant during the term of office of the member holding it". The French and Spanish versions of this subordinate clause corroborate this understanding. The French text reads: "Lorsque le siege d'un membee de l'Organe devient vacant au tours du mandat de son titulaire". The Spanish version reads: "Cuando durante el mandato de un miembro de la Junta a, cede vacante su cargo".

2.   The Secretary-General should take all measures to enable the Council to fill the vacancy "as soon as possible". He should therefore without any undue delay invite the countries mentioned in article 9, paragraph 1, subparagraph (b) to nominate candidates if the seat of a government nominee has become vacant, or the WHO to make nominations if the seat belonged to a nominee of that Organization. The World Health Organization should name at least two candidates. The Secretary-General should also immediately inform the Council of the occurrence of a vacancy, and should place the election of the new member on the provisional agenda of the earliest session or resumed session of the Council which he can in due time inform of the nominations which he has received. 1

3.   As to the beginning of the exercise of membership functions by the person filling the vacancy, see above, comments on article 10, paragraphs 1 and 2.

1 As regards the procedure for filling vacancies, see also above, comments on article 9, para. 1.

Paragraph 6

6.   The members of the Board shall receive an adequate remuneration as determined by the General Assembly.

Commentary

1. The English phrase "adequate remuneration as determined by the General Assembly" is rendered in the French version by the words: "une remuneration appropriée dont le montant est fixé par l'Assemblée generale", and in the Spanish version by the words: "una remuneration adecuada que fijara la Asamblea General". It must be assumed that the meaning of the French and Spanish texts is the same as that of the English text. There cannot be any doubt that the General Assembly may determine not only the amount of the remuneration, but also the other conditions of its payment. General Assembly resolution 2368 (XXII) paragraph 2 implemented paragraph 6 1 of article 10. It refers to the "remuneration" as "honorarium".

2.   The members of the former Permanent Central Board had no express treaty right to any remuneration. 2

3. The Third Draft, which was used as working document by the Plenipotentiary Conference, contains a provision, 3 formulated in general terms, 4 which would have conferred upon the members of the Board "such privileges and immunities as are necessary for the independent exercise of their functions" under the Single Convention. The Conference was informed 5 that the Office of Legal Affairs of the United Nations Secretariat held that such a provision was unnecessary since the members of the International Narcotics Control Board would be regarded as experts performing missions for the United Nations, and would consequently enjoy the advantages of article VI of the General Convention of 13 February 1946 on the Privileges and Immunities of the United Nations.6

4.   Article VI of the Convention reads as follows: "Article VI-Experts on Missions for the United Nations "Section 22. Experts (other than officials coming within the scope of article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions.   In particular they shall be accorded:
"(a) Immunity from personal arrest or detention and from seizure of their personal baggage;
"(b) In respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations;
"(c) Inviolability for all papers and documents;
"(d) For the purpose of their communications with the United Nations, the right to use codes and to receive papers or correspondence by courier or in sealed bags;
"(e) The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;
"(f) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys.
"Section 23. Privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations."

5.   If it should be held that the right of the Secretary-General under section 23 to waive the immunities of a member of the Board might not be fully compatible with that organ's technical independence, the Council could, if it so desires, after having consulted the Board, invite the Secretary-General under article 9, paragraph 2, last sentence of the Single Convention, to grant such a waiver only with the consent of a majority of the Board members. This agreement could be obtained by mail or telecommunication if necessary.

6. Resolution 1196 (XLII) (operative paragraph 5) of the Council invites Governments "to extend to the members of the International Narcotics Control Board privileges and immunities along the lines laid down in the Convention on the Privileges and Immunities of the United Nations as approved by the General Assembly on 13 February 1946".

7.   The Council had similarly in its resolution 123 E (VI), recommended that Governments should extend to the members of the Permanent Central Board "privileges and immunities on the lines laid down in the Convention on Privileges and Immunities as approved by the General Assembly on 13 February 1946".

1 See also para. 21 of the annex to Economic and Social Council resolution 1196 (XLII).

2 During the period of the League of Nations, the members of the Permanent Central Board never received any remuneration, but only expense allowances; see United Nations Bulletin on Narcotic Drugs, vol. II, No. 1 (January 1950), p. 69.   The authors of the 1925 Convention, which established that Board, seem, however, to have envisaged that the members of the Permanent Central Board would be remunerat ed at a high rate to attract persons of high qualifications; see report of Sub-Committee A of the Second Geneva Opium Conference, Records of the Second Opium Conference, Geneva, Nov. 17, 1924-February 19, 1925, League of Nations, document C.760.M.260. 1924.X1, vol. 1, p. 471 and vol. 2, p. 139. The General Assembly of the United Nations, by its resolution 875 (1X) of 4 December 1954 (para. (c)), decided to pay honoraria to the members of the Permanent Central Board and Supervisory Body; see also Economic and Social Council resolution 123 D (VI).

3 Document E/CN.7/AC.9, article 15, para. 1; Records, vol. 11, p. 6.

4. Patterned after article 105, para 2 of the Charter of the United Nations

5 Document E/Conf.34/1, p. 61; the Legal Adviser of the Conference also presented this view to the Ad Hoc Committee on articles 7, 10, 11, 13-16, 19 and 23 of the Third Draft; Records, vol. 11, p. 225 and to the Plenary, Records, vol. I, p. 96.

6 United Nations Treaty Series, vol. I, p. 15; article VI is headed: "Experts on missions for the United Nations".