Article 11

RULES OF PROCEDURE OF THE BOARD

Paragraph 1

1.   The Board shall elect its own President and such other officers as it may consider necessary and shall adopt its rules of procedure.

Commentary

1.   It may be mentioned here that the Rules of Procedure of the Functional Commissions of the Economic and Social Council are adopted by that Council. 1 These rules are also applied by the Commission on Narcotic Drugs, which is one of the functional Commissions. 2

2.   It was the understanding of the Plenipotentiary Conference that the phrase "other officers" included only vice-presidents and rapporteurs, and did not cover such persons as a secretary or treasurer. 3

3.   Several procedural practices of the International Narcotics Control Board, which follow the practices of its predecessor, the Permanent Central Board, may be indicated.   Its meetings are held in private, but a representative of the Secretary-General of the United Nations and a representative of the World Health Organization can normally participate fully in its discussions. States are sometimes invited to send representatives to meetings of the Board at which questions of particular concern to them are considered.   Any State must be so invited to a meeting at which a question directly interesting it is discussed in the course of the Board's consideration of measures to be taken under article 14 to ensure the execution of provisions of the Single Convention. 4

4.   At occasional meetings of the Board, called "confidential", only its members may be present. This practice has been taken over by the International Narcotics Control Board from the former Permanent Central Board. It has never met any objections from the excluded representatives.   Article 11, paragraph 1 corresponds to a similar provision of article 19 5 of the 1925 Convention concerning the Permanent Central Board.

5. For a few other procedural questions, see below, article 11, paragraph 3.

1 See resolutions 100 (V), 289 (X), 481 (XV), 1231 (XL11) and 1393 (XLVI) of the Economic and Social Council; decisions taken by the Council on 2 August 1968 (1561st meeting), on 3 June 1969 (1596th meeting) and on 17 November 1969 (1647th meeting); and Article 68 of the Charter of the United Nations.

2 See above, comments on article 7.

3 Records, vol. II, pp. 276, 226, 227 and 228, vol. I, p. 144.

4 Article 14, para. 5 of the Single Convention; see also the corresponding provision of article 24, para. 7 of the 1925 Convention relating to the procedure of the former Permanent Central Board.

5 Para. 8 of the unamended text and para. 7 of article 19 as amended by the 1946 Protocol.

Paragraph 2

2. The Board shall meet as often as, in its opinion, may be necessary for the proper discharge of its functions, but shall hold at least two sessions in each calendar year.

Commentary

1.   The authors of the Single Convention assumed that the administration of the Single Convention's estimate system, 1 which is intended to limit the world narcotics supplies and those of each individual country and territory to the quantities needed for medical and scientific purposes, required a minimum of two annual sessions of the International Narcotics Control Board. They drew that conclusion from the long experience of the Permanent Central Board and Drug Supervisory Body, the two predecessors of the International Narcotics Control Board, which were responsible for the administration of the basically similar estimate system of the narcotics regime preceding the Single Convention. The inclusion in the Single Convention of the mandatory requirement of two annual sessions should relieve the International Narcotics Control Board from the annual burden of justifying, and the budget organs of the United Nations (the Secretary-General, the Advisory Committee on Administrative and Budgetary Questions and the General Assembly and its Fifth Committee) from the need for examining, the necessity of these two sessions.

2.   It appears that the Board's technical independence requires it to have the right to convene as often as it considers necessary.   To assure this right, it seems to be necessary that the Board be given some measure of budgetary discretion, 2 of course within limits set by the General Assembly each year. 3 Adequate budgetary principles to be applied to the Board's annual budget are a proper subject for the administrative arrangements which the Council must make, in consultation with the Board under article 9, paragraph 2, to ensure the Board's full technical independence. 4

3.   If the Board decides to convene a session for which the General Assembly has not made the necessary budgetary provisions, the cost should be considered an urgent matter, and it should be financed from contingency funds.

1 Articles 12, 13, 19, 20, 21 and 31, para. 1, subpara. (b) of the Single Convention; see also article 49, paras. 3 and 4.

2 See above comments on article 9, para. 2. a

3. Article 6.

4. The administrative arrangements, at present in force under this provision, contain such budgetary principles; see Economic and Social Council resolution 1196 (XLII), annex; see also comments on article 9, para. 2.

Paragraph 3

3.   The quorum necessary at meetings of the Board shall consist of seven members.

Commentary

1.   The question arises whether a quorum of seven members is sufficient for the consideration of matters whose decision requires an affirmative vote of eight members, that is, for the discussion of a recommendation to dismiss a member under article 10, paragraph 4, or of measures to ensure the execution of provisions of the Convention pursuant to article 14. 1 The text of these provisions permits the conclusion that the discussion can be held with the presence of at least seven members, provided of course that at the time at which the vote is taken at least eight members attend the meeting, and that the recommendation under article 10, paragraph 4 or the decision under article 14 is adopted by the required majority of eight affirmative votes.

2.   The two provisions just mentioned are the only rules of the Single Convention establishing the majority by which the Board can decide the questions concerned. The wording of these two rules is very different, but the meaning is exactly the same. Article 10, paragraph 4 stipulates that a recommendation to dismiss a member of the Board requires "an affirmative vote of eight members of the Board". Article 14, paragraph 6 provides that decisions under this article shall be taken "by a two-thirds majority of the whole number of the Board"; but the number of members being eleven, 2 "a twothirds majority of the whole number of the Board" equals "an affirmative vote of eight members of the Board".

3.   The Single Convention contains no other provision concerning the majority required for decisions of the Board.   The rules of procedure which the Board is required to adopt under article 11, paragraph 1 can therefore regulate the majority needed for all questions other than those referred to in articles 10, paragraph 4, and 14.   These rules can provide-if the Board so desires-that all or certain classes of such questions can be decided by a simple majority of the members present and voting.   Abstaining members may be considered as not voting. Decisions could thus in such cases be adopted even by such a vote as two in favour, one against and 4 abstentions, provided always that a minimum of seven members are present at the moment at which the vote is taken.

4.   For provisions of earlier treaties regarding the quorum and voting of the former Permanent Central Board, see the last two paragraphs of article 19 of the 1925 Convention and article 12, paragraph 4, subparagraph (a) of the 1953 Protocol.3

5.   The Third Draft, 4 which was used as working document by the Plenipotentiary Conference, contains a provision s which would have expressly authorized the Board to delegate its powers, other than those provided in the present article 14 of the Single Convention, to one or more of its members, and, in appropriate cases; to its Secretary. This provision was deleted. s The members of the Conference taking this action did it for different, and sometimes very contradictory, reasons.   Some found the provision unnecessary, and did not wish to restrict unduly the freedom of action of the Board in the matter, while others wanted to limit its authority to delegate its functions. 7 The Single Convention consequently does not contain any provision regarding delegation of powers of the Board, following in this respect the provisions of the earlier treaties regarding the former Permanent Central Board and Drug Supervisory Body.

6.   It is, however, submitted that the Board, for the effective and economic performance of its tasks, needs authority to delegate some of its functions to one or several of its members, and even to its secretariat.   Both of its predecessors, the former Permanent Central Board and the Drug Supervisory Body, which together carried out nearly the same tasks as the present International Narcotics Control Board, used to delegate some of their functions, in particular to their Secretary, s although they had no express treaty authority to do so. The International Narcotics Control Board, like its predecessors, is not permanently in session.   It meets ordinarily only for two annual sessions, but may have to act at any time, often very urgently, throughout the year.   Governments may, by furnishing to the International Narcotics Control Board supplementary estimates of their drug requirements, acquire the right to import some drugs or increased quantities of drugs for which no provision was made in their original annual estimates.9 They may do this at any time of The Board is required to act on such supplementary estimates "as expeditiously as possible" 11 in order to avoid a delay in the importation of needed medicines. When it is not in session, it must often vote by mail or telegraph to prevent such a situation, but consultation by such means of eleven members residing in different parts of the globe would often be too time-consuming. The Board has therefore delegated to a Committee, comprising only a part of its members, the task of examining supplementary estimates of drug requirements. If the supplementary estimates involve only very minor and obviously justified quantities, e.g. a few grammes of codeine, it would clearly be highly uneconomical to carry out a complicated procedure of consultation by mail or telegraph. The Board has therefore authorized its Secretary to approve (but not to amend) such minor supplementary estimates.

7.   Action by the Board to order the discontinuation of the export of drugs to a country or territory which has exceeded its import limits under the terms of the Single Convention 12 is based on the quarterly statistical reports which the Board receives. 13   It is considered to be urgent to prevent an accumulation of excessive quantities of drugs above the maximum limits prescribed by the Single Convention. The Board, however, meets normally only twice a year.   If a vote of the members were to be taken on such an order by correspondence or telegraph, the excessive imports could continue during the time of the voting procedure.   The Board has therefore authorized its Secretary to issue such orders in its name. 14   It can do so since the determination of the conditions of such an order involves only a purely mathematical computation.

8.   It is not necessary to deal in this context with the general legal problem of delegation of powers by an international organ to a committee consisting of less than the full number of its members; but it is submitted that in any event there cannot be any objection to the Board delegating such of its powers as it finds necessary to one of its members, to a committee or even to its Secretary, so long as such delegation has the continued unanimous consent of the Board. Such a committee may be composed of less than seven members of the Board. 15 It is, however, evident that the Board cannot delegate its authority under article 10, paragraph 4, and under article 14.

1 For the voting requirement, see para. 6.

2 Article 9, para. 1, introductory sub-paragraph.

3 Article 19 provided that at meetings of the Permanent Central Board (consisting of 8 members), four should form a quorum, and that decisions of the Board on matters regulated in articles 24 and 26 of the 1925 Convention should be taken by an absolute majority of the whole number of the Board.   Article 12, para. 4 of the 1953 Protocol provided for the same majority for decisions under that article. Articles 24 and 26 of the 1925 Convention and article 12 of the 1953 Protocol provide for measures to ensure the execution of treaty provisions, generally very similar to the measures provided in article 14 of the Single Convention. There are no other treaty provisions on majority requirements for decisions of the former Permanent Central Board.   Thete are no treaty provisions concerning the majority needed for decisions of the Drug Supervisory Body, the other predecessor organ of the present International Narcotics Control Board.

4 Document E/CN.7/AC.3/9, Records, vol. 11, p. 2.

5 Article 17, Records, vol. 11, p. 6.

6 Records, vol. 1, p. 97.

7. Ibid., pp. 91-97.

8 Their joint Secretary was on a permanent basis authorized to impose the "auto matic embargo" provided in article 14, para. 2 of the 1931 Convention and article 8, para. 11 of the 1953 Protocol, and could act on behalf of the Supervisory Body in respect to supplementary estimates under article 5, paras. 6 and 8 of the 1931 Conven tion and under article 8, para. 6 of the 1953 Protocol concerning very small quantities of drugs.

9. 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).

10. Article 19,para. 3.

11. Article 12, para. 5.

12. Article 21, para. 4.

13. Article 20, para. l, subpara. (d) and para. 2, subpara. (b).

14 As regards the same authority of the Secretary of the former Permanent Central Board, see above, foot-note 8.

15 The quorum stated in article 11, para. 3.