Drug Abuse

Article 14
MEASURES TO ENSURE EXECUTION OF CONVENTION PROVISIONS

General comments
1. Article 14 deals with a subject-matter which is also dealt with in earlier multilaterial narcotics treaties. The 1925 and 1931 Conventions and the 1953 Protocol I authorized the former Permanent Central Board 2 to adopt certain measures against Parties and non-Parties which failed to comply with treaty provisions. These measures have often been referred to as "sanctions" or "enforcement measures". Some of the principal differences between the earlier provisions and those of article 14 of the Single Convention may be pointed out.
 

2. The Single Convention does not take over the provision of the 1953 Protocol 3 authorizing the Permanent Central Board to impose, with binding effect on Parties, an embargo of the import of opium or the export of opium, or both, upon any country or territory which has failed in a serious manner to comply with provisions of that Protocol ("Mandatory (opium) embargo").

3. The 1953 Protocol stipulated that the Permanent Central Board could, with the consent of the Government concerned, undertake a "local inquiry" in order to elucidate the opium "situation" in any country or territory. 4 The Single Convention does not provide for "local inquiries"; it does not however, contain any provision which would prevent the International Narcotics Board from engaging in a local inquiry at the request of the Government concerned.

4. Under the earlier treaty provisions, the Permanent Central Board could recommend the discontinuation of opium imports from a country or territory which had failed to comply with treaty provisions. s In respect of other drugs under international control, that Board could recommend only the cessation of exports to such a country or territory, as it was able to do also as regards opium. 6 The Single Convention authorizes the International Narcotics Control Board to recommend an embargo on the import or export, or both, of all drugs which it controls. 7

5. There are also differences between the type of information which may be used by the International Narcotics Control Board in the procedure under article 14 and the sources of information which could be drawn upon under the corresponding provisions $ of the earlier treaties. See below, comments on article 14, paragraph 1, subparagraph (a).

6. The Permanent Central Board was authorized by the 1953 Protocol to call upon Governments to study the possibility of adopting remedial measures in case of substantial failures to carry out important provisions of that treaty, or, more generally, in the case of a "gravely unsatisfactory opium situation". s It did not have such express authority in relation to other drugs under the international narcotics regime as it existed prior to the coming into force of the Single Convention. The International Narcotics Control Board may under article 14 10 call upon Governments to adopt such remedial measures in respect to all controlled drugs as it considers "under the circumstances to be necessary for the execution of the provisions of this (Single) Convention". This provision, however, only incorporates in law what, prior to the Single Convention, was already the practice of the Permanent Central Board in its informal relations with co-operating Governments.
 

1 Articles 24 and 26 of the 1925 Convention; article 13, para. 1 of the 1931 Convention in connexion with articles 24 and 26 of the 1925 Convention; article 14, para. 3 of the 1931 Convention; and articles 11-13 of the 1953 Protocol. Article 14,
para. 3 of the 1931 Convention can, however, be applied only to Parties; the information to which this paragraph refers could, however, also be used in the adoption of measures against non-Parties under article 26 of the 1925 Convention; see Commentary on the 1931 Convention, para. 157, p. 190. As long as these treaties continue to be in force (article 44 of the Single Convention) these "enforcement measures" can be adopted by the International Narcotics Control Board pursuant to article 45, para. 2 of the Single Convention and resolution 1106 (XL) of the Economic and Social Council.

2 See above, comments on article 1, para. 1, subpara. (a).

3 Article 12, para. 3 and article 13.

4 Article 11, para. 1, subpara. (d) of the 1953 Protocol.

5 Article 12, para. 2 of the 1953 Protocol.

6 Articles 24 and 26 of the 1925 Convention; article 13, para. 1 of the 1931 Convention in connexion with those articles of the 1925 Convention; article 14, para. 3 of the 1931 Convention; and article 12, para. 2 of the 1953 Protocol.

7 Article 14, para. 2; see below, comments on that paragraph.

8 Article 24, para. 1 of the 1925 Convention; see also article 25 of that Convention; article 14, para. 3, first and second subpara. of the 1931 Convention; article 12, para. 2, subparas. (a) and (b) of the 1953 Protocol; see also article 11, para. 1, subpara. (b) of that Protocol.

9 Article 11, para. 1, subpara. (e).

10 Para. 1, subpara. (b).

Paragraph 1, subparagraph (a)
1. (a) If, on the basis of its examination of information submitted by Governments to the Board under the provisions of this Convention, or information communicated by United Nations organs and bearing on questions arising under those provisions, the Board has reason to believe that the aims of this Convention are being seriously endangered by reason of the failure of any country or territory to carry out the provisions of this Convention, the Board shall have the right to ask for explanations from the Government of the country or territory in question. Subject to the right of the Board to call the attention of the Parties, the Council and the Commission to the matter referred to in subparagraph (c) below, it shall treat as confidential a request for information or an explanation by a Government under this subparagraph.

Commentary

1. The initiation of a procedure to examine whether a Government of a Party or non-Party has failed to carry out the provisions of the Single Convention is a serious and very delicate matter under the present conditions of inter national relations, particularly since it may lead to a recommendation of an international embargo on the import or export of drugs, or both, against the country or territory involved.' Article 14 therefore not only provides for procedural guarantees, but also imposes several restrictions on the authority of the Board to resort to the measures provided in that article. First of all, the Board may initiate the procedure only if it "has reason to believe that the aims of this Convention are being seriously endangered by reasons of the failure of any country or territory to carry out the provisions of this Convention". The conclusion that a serious situation of this kind exists will be justified if lack of control or defective control in one country or territory appears to endanger the effectiveness of control in another country or territory. If the failure to comply with the treaty provisions has only a domestic impact, the Board will in general hardly be in a position to initiate the procedure of article 14.

2. Failure to furnish the required information by the due date, or to answer fully all questions contained in the forms prescribed respectively by the Board or Commission for the annual reports, seizure reports, estimates and statistical returns which Governments must furnish, 2 will generally not be sufficient cause for commencing the procedure of that article. In cases of this kind, the Board will usually limit itself to requesting additional information and explanations under article 12, paragraph 4 and article 13, paragraph 3, 3 and to including appropriate comments in the reports which it is authorized to make to the Council and to Parties and which are published by the SecretaryGeneral under article 15. A persistent failure of a country or territory to furnish the required information may, however, constitute a sufficient reason for starting the procedure of article 14. Such a failure, as well as failure to observe other important provisions of the Convention, may seriously endanger the effectiveness of control in another country or territory.

3. In any event, the nature of the procedure of article 14, as well as its text, requires the Board to apply the provisions of that article with particular prudence, and the present Board and its predecessor, the Permanent Central Board, have indeed done so in respect to this article and the corresponding provisions of the earlier narcotics treaties. Only in a very few cases has the "enforcement" procedure of the international narcotics regime been initiated since it was first introduced in the 1925 Convention, 4 which entered into force on 25 September 1928, and at the time of this writing no embargo has yet been recommended. Information of a non-official character can in no case justify the initiation of the procedure pursuant to article 14; not even all type of information furnished by Governments or intergovernmental organs is admitted for this purpose, but only that defined in the first sentence of paragraph 1, subparagraph (a).

4. The facts on which the Board may base its action are divided into two groups:
(i) Facts appearing in the course of the Board's examination of information submitted to it by Governments under the provisions of the Single Convention; and
(ii) Facts communicated by United Nations organs and "bearing on questions arising under those provisions".

5. The facts belonging to the group just described under (i) are:
(a) Those contained in the estimates furnished by Governments pursuant to article 19;'
(b) Those included in the statistical returns furnished by Governments pursuant to article 20;
(c) The supplementary information or the explanations which Governments may be required by the Board to submit in respect to their estimates or statistics under article 12, paragraph 4 and article 13, paragraph 3;
(d) A failure to furnish information referred to in (a), (b) or (c).

6. As has been pointed out elsewhere, 6 non-compliance with almost any of the provisions of the Single Convention can be revealed in the data furnished by Governments, or in the additional information or explanations which Governments may be required to supply in the course of the Board's examination of their communications. While the question of non-compliance with such provisions as those of article 38 concerning the treatment of drug addicts will hardly ever arise in this context, it is not impossible that the data will reveal even a failure to carry out the provisions of article 36 regarding the penal measures which Governments must adopt in their campaign against the illicit traffic, for example, in the information furnished by Governments on their seizures of drugs and on their disposal of such drugs, 7 and particularly in their explanations regarding an extensive illicit traffic which may be reflected in such data. Non-compliance with the provisions requiring Governments to limit the amounts of drugs which they manufacture and import to the maximum quantities allowed under the terms of the Convention, s and failure to control production, 9 manufacture, domestic and international trade, 10 will of course more often be disclosed in the Board's examination of the information which it receives under the provisions of the Single Convention than a failure to implement the articles dealing with the illicit traffic.

7. It is suggested that the Board's action can be based not only on information which it receives, but also on the failure by a Government to supply the information which it should furnish to the Board pursuant to provisions of the Single Convention. 11 Such a failure is a fact which may be established by the Board "on the basis of its examination of information submitted by Governments to the Board under the provisions of this Convention". Any other interpretation of article 14, paragraph l, subparagraph (a) would favour those Governments which refuse to furnish the required information over those which do, and this cannot have been the intention of the authors of the Single Convention.

8. The information which may justify the initiation of the procedure of article 14 need not be that supplied by the Government of the country or territory which has failed to carry out provisions of the Single Convention, but can also be that furnished by other Governments; for example, the failure of a country or territory to observe its import limits may be revealed by the export statistics of the Government of another country or territory, 12 or the fact that a country or territory exercises such defective control as to become a centre of the international illicit traffic may be reflected in the data furnished by Governments of other countries or territories on their seizures of drugs.

9. It can be seen that the Board is by no means limited to basing its action on the figures contained in the estimates and statistical returns which it receives. 13 There is a wide range of facts which may evidence a failure to comply with provisions of the Single Convention, and which may be revealed in the explanations received by the Board in the course of its examination of the estimates and statistics. It must, however, be emphasized that under article 14, paragraph 1, subparagraph (a), the Board may not use any information, however authentic, which does not emerge in the course of this examination, or which is not contained in communications which it receives from United Nations organs in accordance with this subparagraph. As regards the Board's use of information which is excluded from the procedure of article 14 as a basis for observations under article 15, see below, comments on that article.

10. As regards the information described under (ii) in paragraph 4 above as facts communicated by United Nations organs, it is submitted that the term "United Nations organs" as used in subparagraph (a) not only covers organs of the United Nations itself, such as the Secretary-General, the Commission on Narcotic Drugs, the Economic and Social Council, the General Assembly or the Trusteeship Council, but also organs of other intergovernmental organizations which are members of the United Nations family. The representative of the United Kingdom of Great Britain and Northern Ireland at the Plenipotentiary Conference, who proposed the text defining the information which the Board may use, stated that organs of the World Health Organization would also be among those referred to as "United Nations organs". 14 The Food and Agriculture Organization of the United Nations may also have relevant information under article 14, paragraph 1, subparagraph (a), i.e. data on opium production.

11. The Board cannot use all data contained in communications which' it receives from "United Nations organs", but only those data which have a "bearing on questions arising" under the provisions of the Single Convention under which it obtains information from Governments. As has been pointed out above, such "questions" may be failures to comply with almost any of the provisions of the Convention; for example if information furnished by Governments to explain defective estimates or statistics reveals that a country or territory has no "special administration" for the purpose of applying the Single Convention as required by article 17, the Secretary-General or the Commission on Narcotic Drugs may communicate to the Board any information obtained from annual reports of Governments 15 or from their laws and regulations is which evidences a failure to carry out this article. Persistent excesses of manufacture of drugs may give the Board reason to believe that the country or territory concerned does not require licensed drug manufacturers to obtain periodical permits specifying the kinds and amounts of drugs which they are entitled to manufacture, as required by article 29, paragraph 2, subparagraph (c). The Commission on Narcotic Drugs or the Secretary-General may communicate to the Board legal texts 18 which evidence such a failure to carry out the Single Convention. Statistical data on the seizure of drugs" from the illicit traffic in connexion with the information furnished by Governments to explain them 18 may justify the Board's belief that a particular country or territory does not comply with some of those provisions of the Single Convention which are intended to prevent the diversion of drugs from legal trade into illicit channels or of those which aim at the suppression of the illicit traffic, and these two groups of provisions cover most of the substantive rules of that treaty. The Commission on Narcotic Drugs or the Secretary-General may in such cases communicate to the Board the often extensive information which they have on the illicit traffic, and on the conditions under which this traffic is carried on. 19 The information communicated by "United Nations organs" need not be limited to that supplementing the particular data in the possession of the Board, but may include all facts relevant to questions of failures to carry out provisions of the Single Convention which arise from such data; for example, statistical data in the hands of the Board indicating excessive drug manufacture may be elucidated by a communication of the Commission or of the Secretary-General pointing to the lack of legal authority of the Government concerned to allocate manufacturing quotas under article 29, paragraph 2, subparagraph (c). 20

12. It may be recalled in this context that under article 8, paragraph (b) the Commission is expressly authorized to call the attention of the Board to any matters which may be relevant to the functions of the Board. The attention of the Board may therefore be drawn not only to facts which have a bearing on a procedure pursuant to article 14, but also to those which may be relevant to the tasks which are conferred upon the Board under article 9, paragraph 2, article 10, paragraph 4, articles 12, 13, 15, 19 and 20, article 21, paragraphs 3 and 4, article 24, article 45, paragraph 2 and article 49, paragraphs 3 and 4.

13. The procedure of article 14 may be initiated not only in respect of a "country", i.e. a State as a whole, but also in respect of a "territory", i.e. of a "part of a State which is treated as a separate entity for the application of the system of import certificates and export authorizations". 21 The Government of a Party may thus be requested, by a recommendation of the Board made pursuant to paragraph 2 of article 14, to discontinue the narcotics trade (import or export, or both, as the case may be) carried on by its other territory or territories with that of its territories which fails in a serious manner to implement provisions of the Single Convention.

14. The procedure of article 14 may be initiated not only in respect of a Party and those of its territories to which the Single Convention applies according to article 42, but also in respect of a non-Party and its territories, and of a "territory" of a Party within the meaning of article 1, paragraph 1, subparagraph (y), to which the Convention does not apply because it is either identical with, or part of, a non-metropolitan territory in the sense of article 42 which has been excluded from the application of the Single Convention in accordance with the terms of this article.

15. It maybe recalled that this treatment of non-Parties does not constitute an innovation introduced by the Single Convention. Provisions of earlier narcotics treaties corresponding to those of article 14 also permitted their application to non-Parties. 22

16. Reference may be made in this context to the comments on article 5 above, in which the view is expressed that Members of the United Nations are bound by the Charter to co-operate in the promotion of solutions of the various problems of drug abuse even if they are not Parties to the Single Convention or other narcotics treaties. Mention may also be made of the view held by some that the basic provisions of the international narcotics regime have become rules of customary general international law. 23 The 1936 Convention and the 1953 Protocol have, however, not been very widely accepted; but it is interesting to note that hardly any Government has relied on the fact that it is not a Party to the treaty in question if its attention is called to its failure to carry out a provision of chapters II-VI of the 1925 Convention, of the 1931 Convention, or of the 1948 Protocol. 24 Most of these treaty provisions have been resumed by the Single Convention.

17. The Board must treat as confidential communications made under the terms of the subparagraph under consideration, including both its own requests for information or explanations and the replies of Governments, as long as it does not decide to call the attention of the Parties, the Council and the Commission to the matter pursuant to article 14, paragraph 1, subparagraph (c), or to publish a report on the situation according to paragraph 3 of this article. The Board is also not precluded from publishing 25 that part of the information contained in replies of Governments under article 14, paragraph 1, subparagraph (a) which has also come to its notice from communications which it has received under articles 12 or 13; but the Board must in such a case avoid any reference to the procedure under article 14.

18. As regards the representation of the Government concerned at the Board's meeting at which the initiation of the procedure pursuant to subparagraph (a) is considered, see below, comments on paragraph 5.
 

1 Article 14, para. 2.

2 Article 18, para. I subparas. (a) and (c) and para. 2, article 12, para. 1, article 13, para. 1, article 19, para. 1, introductory subparagraph and article 20, para. I introductory subparagraph and para. 2.

3 See also article 18, para. 1 introductory subparagraph. 4 Articles 24 and 26.

5 Estimates established by the Board itself pursuant to article 12, para. 3 may as such not be basis of its action under article 14; Records, vol. I p. 137. Excessive manufacture or imports computed on the basis of such estimates and revealed in information furnished by Governments or United Nations organs may, however, be such a failure to carry out provisions of the Single Convention as to justify action under article 14, para. 1, subpara. (a); see article 21.

6 See above, comments on article 12, para. 4 and article 13, paras. 2 and 3.

7 Article 20, para. 1, subpara. (e).

8 Article 21, paras. 1 and 2.

9 Article 1, para. 1, subpara. (t) and articles 22-28.

10 Articles 29 to 34.

11 This applies also to non-parties; see article 12, paras. 2 and 4 and paras. 2 and 3 of article 13 and comments on those paras.

12 See also article 21, para. 4.

13 Records, vol. 1I p. 200.

14 Records, vol. 1I p. 200.

15 Article 18, para. 1, subpara. (a).

16 Article 18, para. 1, subpara. (b).

17 Article 20, para. 1, subpara. (e),

l8 Article 13, para. 3.

19 Article 18, para. 1, subpara. (c).

20 As regards information on the basis of which procedures corresponding to that of article 14 of the Single Convention could be initiated under earlier treaties, see article 24, para. 1 of the 1925 Convention ("information at its (the Permanent Central Board's) disposal"); article 25 of the 1925 Convention ("any matter which appears ... to require investigation" to which a party to that Convention draws the attention of the Permanent Central Board); article 14, para. 3 of the 1931 Convention (the figures contained in the estimates compared with those contained in the statistical returns); article 12, para. 2, subpara. (a) of the 1953 Protocol ("result of its (the Permanent Central Board's) study of the estimates and statistics"); and article 12, para. 2, subpara. (b) of the 1953 Protocol ("information at its (the Permanent Central Board's) disposal").

21 Article 1, para. 1, subpara. (y) and comments thereon.

22 Article 26 of the 1925 Convention and article 13 of the 1953 Protocol.

23 Commentary on the Draft Single Convention (E/CN.7/AC.3/4/Rev.l), para. C.153; United Nations publication, Sales No. 1952.XI.7; Records, vol. I p. 139 (statement of Mr. Bevans).

24 Or of the Single Convention.

25 Article 15, para. 1.

Paragraph 1, subparagraph (b)
(b) After taking action under subparagraph (a) above, the Board, if satisfied that it is necessary to do so, may call upon the Government concerned to adopt such remedial measures as shall seem under the circumstances to be necessary for the execution of the provisions of this Convention.

Commentary

1. The Board may take action pursuant to this subparagraph only after it has asked for explanations in accordance with subparagraph (a). It is submitted that this means that the Board may call upon the Government concerned to adopt the remedial measures only if it does not, within a reasonable period of time, receive a reply to its request for explanations, or if the reply does not satisfy the Board that no serious failure to comply with provisions of the Single Convention as described in Subparagraph (a) in fact exists.

2. It may be noted that the Board may in any event propose the remedial measures referred to in this subparagraph only if it is "satisfied that it is necessary to do so", and may propose only such measures "as shall seem under the circumstances to be necessary for the execution of the provisions of this Convention". This appears to limit considerably the discretion of the Board to propose the remedial measures. It seems that the Board would not be entitled to take action under subparagraph (b) if it finds this not to be necessary, but only advisable, or to propose remedial measures which it considers to be helpful but not really necessary for the implementation of the Convention. The English and French texts agree on this point. The Spanish text also provides that the Board may take the action under subparagraph (b) only if it finds it necessary to do so, but it does not prescribe that the remedial measures which the Board may suggest must under the circumstances seem to be "necessary" for the execution of provisions of the Convention. It is sufficient under the Spanish text that the measures are "advisable" for this purpose.1 It is submitted that, in the light of the drafting conditions of the Plenipotentiary Conference, the English and French texts may be given preference over the Spanish text on this point. The provision in question was originally drafted
in English. 2 In practice, however, there might often be no difference between what is "necessary" and what is only "advisable".

3. The Government of the country or territory in question should be invited to be represented at the meeting at which the Board considers what remedial measures it should suggest. 3 The Government should have this opportunity even if it was represented at the meeting at which the Board decided under subparagraph (a) to ask for the explanations. The Government's participation might be very helpful in the Board's efforts to formulate the remedial measures which would be most adequate under the particular conditions of the country or territory involved.

4. The Board's request may consist of a general appeal to adopt "remedial measures", without specifying them, or may indicate in more or less detail what measures the Board considers necessary.

5. The Board may find, for example, that diversions of drugs into illicit channels are due to the fact that the number of licensed drug manufacturers or importers is too large. It may in such a case propose that the number of manufacturing or import licences should be limited. It may, however, suggest only such measures as may be necessary for the execution or for an improved execution of the provisions of the Single Convention. The Board does not appear to be authorized under subparagraph (b) to request the adoption of measures which are not needed for the implementation of specific provisions of the Convention, however desirable it may find them in the interest of a successful campaign against drug abuse and the illicit traffic. For example, the Convention permits Parties to organize their drug economy either on a private enterprise basis or according to socialist principles, without giving any preference to one or the other of these two systems. 4 The Board, therefore, may not propose the replacement of a socialist system by a private enterprise regime, or vice versa, however advantageous it might find this from the general view point of drug control. Where, however, the Convention prescribes the application of a State enterprise system (as for the cultivation of the opium poppy for the production of opium, of the coca bush, and of the cannabis plant for the production of cannabis or cannabis resin, and for the wholesale and international trade in the drugs so obtained in countries producing 5 them s), the Board may request, to the extent required by the Convention, the introduction of State enterprise institutions to replace a private enterprise organization.

6. The proposed measures need not be in conformity with the national law of the country or territory concerned. 7 The Board may propose any changes in domestic laws and regulations which are required to bring them into accord with provisions of the Single Convention. It may, however, be expected that the Board would in such cases endeavour to limit to a minimum the burden which would be imposed on the legislative or regulatory authorities concerned.

7. The Board is not in all cases required to suggest remedial measures before proceeding to the application of subparagraph (c). It may omit a request for the adoption of such measures if, in the light of the explanations which it has received from the Government in question or of other circumstances, it considers that its request would not be met by a positive response. In fact, the exercise of its power under subparagraph (b) to propose remedial measures appears to be discretionary.

8. The restrictions imposed by subparagraph (b) on the Board's authority to propose remedial measures, however, do not apply to such suggestions as the Board may make outside the procedure of article 14, with the agreement of the Government concerned. The former Permanent Central Board as well as the present International Narcotics Control Board have in fact suggested such remedial measures, without any reference to article 14 or to corresponding provisions of earlier treaties, but with the express or implied consent of the Government concerned. The restrictions of subparagraph (b) also do not apply to those reforms of drug control in general or of specific aspects thereof which the Board may make without reference to specific countries in its reports pursuant to article 15. The International Narcotics Control Board, like its predecessor the Permanent Central Board, has not hesitated to propose such reforms.

9. Subparagraph (b) also does not limit the Board's right to render to a Government requesting it technical assistance in the improvement of its narcotics regime. Such assistance should, however, be within the terms of the Board's treaty functions, and should not overlap with assistance which might be given by other intergovernmental bodies. The Board would, for instance, undoubtedly be entitled to assist a Government in improving its method of preparing its estimates 8 and its statistical returns, 9 as well as its administrative services charged with drafting these documents. The past as well as the present Board have in fact given such aid to Governments requesting it.

10. For remedial measures which the former Permanent Central Board could propose under the 1953 Protocol, and which the International Narcotics Control Board can still propose, see article 11, paragraph 1, subparagraph (c) of the 1953 Protocol, together with article 45, paragraph 2 of the Single Convention; see also article 44 of the Single Convention.

11. It may finally be noted that subparagraph (b) does not expressly require the Board to treat as confidential its calling upon a Government to adopt remedial measures, or the remedial measures themselves which it has suggested. It appears doubtful, however, that the Board could reveal its request, or the requested corrective measures, in any form which would allow the conclusion to be drawn that it has asked for explanations under subparagraph (a), or which would indicate the contents of such explanations, as long as and to the extent to which it is bound to treat as confidential its action under that subparagraph. See above, comments on article 14, paragraph 1, subparagraph (a). Since its action under subparagraph (b) may be taken only after that taken under subparagraph (a), the Board, when referring in one of the reports prepared in pursuance of article 15, to remedial measures which it has proposed, must avoid any reference, either direct or implied, to the procedure under article 14 as long as it has not called the attention of the Parties, the Council and the Commission to the failure of a Government to carry out provisions of the Single Convention, under the conditions of subparagraph (c). The Board may, however, before taking action under that subparagraph, in any event reveal any suggestions of remedial measures which it has made to a particular Government at its request or with its express or implied consent.

1 The relevant part of the Spanish text of subparagraph (b) reads as follows: . . . la Junta, si ha comprobado que es necesario proceder asi, podrd pedir al gobierno interesado que adopte las medidas correctivas que las circunstancias aconsefen, para la ejecucion de las disposiciones de la presente Convention".

2 See article 22, paragraph 1, subparagraph (d) of the third draft of the Single Convention on Narcotic Drugs, Records, vol. II, p. 8 and the British redraft of article 22, paragraph 1, subparagraph (b), Records, vol. II p. 40; see also A.D. McNair, The Law of Treaties, Oxford, Clarendon Press, 1961, pp. 462-463 ("in dubio mitius") and pp. 434-435 (preference given to text of language in which originally drafted); H. Lauterpacht, The Development of International Law by the International Court, Stevens & Son, 1958, pp. 29-30; and Edvard Hambro, The Case Law of the International Court, A. W. Sythoff, Leyden, 1961, paragraphs 71, 74, 78 and 79; see also the cases referred to by these authors in the indicated places.

3 Article 14, para. 5.

4 Article 29, para. 1; article 30, para. 1, subpara. (a); and article 31, para. 3, subpara. (a).

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

6 Articles 23, 26 and 28.

7 See, however, Records, vol. 1, p. 85.

8 Article 19.

9 Article 20.

Paragraph 1, subparagraph (c)
(c) If the Board finds that the Government concerned has failed to give satisfactory explanations when called upon to do so under subparagraph (a) above, or has failed to adopt any remedial measures which it has been called upon to take under subparagraph (b) above, it may call the attention of the Parties, the Council and the Commission to the matter.
 

Commentary
1. While the Board may take action under subparagraph (b) only after it has completed the procedure of subparagraph (a),1 it need not call upon the Government concerned to adopt remedial measures pursuant to subpara graph (b) before proceeding under subparagraph (c). The Board's action under subparagraph (c) may immediately follow its action pursuant to subparagraph (a). It has been pointed out above 1 that the Board is not required to propose remedial measures. It may call the attention of the Parties, the Council and the Commission to the matter if it finds that the Government concerned has failed to give satisfactory explanations under subparagraph (a) or to adopt the required remedial measures under subparagraph (b). The measure provided for in subparagraph (c) may thus follow either the action provided for in subparagraph (a) or that described in subparagraph (b).

2. When acting under subparagraph (c), the Board is no longer obliged to treat as confidential its request for information and the explanations which
it has received in the course of the procedure under subparagraph (a). 2 On the contrary, in its communication calling attention to the matter, the Board may, and if the Government concerned so requests should, include the explanations that it has received, and indicate the remedial measures which it has suggested and which have not been adopted. The Board should accept such a request even though it is not expressly required by subparagraph (c) to do so. Otherwise, the purpose of paragraph 3 of article 14 which incorporates the principle "et altera pars audiatur", 3 could be frustrated, and would certainly be frustrated if the Board failed to publish a report in accordance with paragraph 3. A communication under subparagraph (c) calling attention to the failure of a Government to carry out provisions of the Convention and addressed to the Parties, the Council and the Commission would in fact amount to a publication of the matter.

3. The Board, remains, however, bound not to reveal, without the consent of the Government in question, its request for information and the explanations which it has received if it decides to discontinue the procedure of article 14 after having taken action under subparagraphs (a) or (b), no matter whether this decision is taken because the Board has found that the explanations which it has received are satisfactory or that the remedial measures which it has suggested have in fact been adopted, or for any other reasons. 4

4. The Board is entitled to include in a report made pursuant to article 14, paragraph 3, the fact that it has called the attention of the Parties, the Council and the Commission, under paragraph 1, subparagraph (c), to the failure of a country or territory to carry out provisions of the Single Convention. It is submitted that the Board may also publish its action in one of its reports under article 15; but the mere inclusion in any of these reports of a communication made pursuant to article 14, paragraph 1, subparagraph (c) would not be sufficient for the purpose of that subparagraph. The communication must be made separately. This appears to follow from the provisions requiring different modes of communication of these three kinds of documents.

5. As regards the invitation of the Government concerned to be represented at the meeting of the Board at which action under paragraph 1, subparagraph (c) is considered, see below, comments on paragraph 5.

6. For provisions of earlier treaties corresponding to article 14, paragraph 1, subparagraph (c), see article 24, paragraph 2 of the 1925 Convention, article 14, paragraph 3, second subparagraph of the 1931 Convention, and article 12, paragraph 1, subparagraph (a) of the 1953 Protocol. 5

1 See above, comments on subparagraph (b).

2 Last sentence of subparagraph (a).

3 "The other party should also be heard."

4 As regards the use, in the Board's reports under article 15, of facts included in the confidential material, see above, comments on article 14, para. 1, subpara. (a).

5 There is a minor discrepancy between the English and French texts of subparagraph (c) on the one hand and the Spanish text of that subparagraph on the other. In the English and French version reference is made to the "remedial measures" as steps which the Government concerned has been called upon ("a ete invite") to take while the Spanish text refers to them as steps which that Government should ("debia") have taken, but this difference appears to be of no practical importance in view of the reference in that subparagraph to subparagraph (b).
 

Paragraph 2

2. The Board, when calling the attention of the Parties, the Council and the Commission to a matter in accordance with paragraph 1 (c) above, may, if it is satisfied that such a course is necessary, recommend to Parties that they stop the import of drugs, the export of drugs, or both, from or to the country or territory concerned, either for a designated period or until the Board shall be satisfied as to the situation in that country or territory. The State concerned may bring the matter before the Council.

Commentary

1. The Board may recommend "embargo" measures, described in paragraph 2, only if, pursuant to paragraph 1, subparagraph (c), it calls the attention of the Parties, the Council and the Commission to the failure of the country or territory concerned to carry out provisions of the Single Convention. It may limit itself to taking action under article 14, paragraph 1, subparagraph (c) without making a recommendation under paragraph 2, but it may never recommend an embargo without having called the attention to the matter in accordance with subparagraph (c). It follows also that a request for explanations under article 1, paragraph 1, subparagraph (a) must in any event precede the recommendation of an embargo, but not necessarily a call upon the Government concerned to adopt remedial measures pursuant to article 1, paragraph 1, subparagraph (b). 1

2. The question arises whether the recommendation of an embargo can be made only simultaneously with the action taken pursuant to article 1, para graph 1, subparagraph (c), or may also be made subsequently. Does the word "when" in the first line of paragraph 2 have the meaning of the words "at the time that" or of the phrase "in the event that" ("in the event of")? 2 While the temporal sense of the word "when" may in this context appear to be more probable, both interpretations seem to be possible. It may sometimes appear to the Board to be advantageous not to recommend an embargo simultaneously with its action pursuant to article 1, paragraph 1, subparagraph (c), but rather to do so only after it has called the attention of the Parties, the Council and the Commission to the matter without effect.

3. Under the 1925 and 1931 Conventions, 3 the Permanent Central Board could recommend only the cessation of the export of controlled drugs to the country or territory concerned. 3 The situations which the authors of these treaties had in mind were those in which the offending country or territory accumulated excessive quantities of controlled drugs or became a centre of the illicit traffic on account of diversion of narcotics from the legal trade into illicit channels. Under surplus conditions of this kind, a cessation of imports would not have endangered the supply of the sick and might have contributed to a reduction of the amounts available to illicit traffickers. 4

4. But as a result of the international narcotics treaties, the diversion of manufactured narcotic drugs from legal trade into illicit channels has become insignificant, and smugglers have come to rely for their supplies on clandestine manufacture. Under these conditions, the cessation of drug exports to an offending country or territory could no longer make the direct impact on the illicit traffic which the authors of the 1925 and 1931 Conventions had envisaged. The value of such an embargo measure was questioned because it could endanger the treatment of the sick, 5 and moreover because it favoured those countries which manufactured their own narcotic drugs and therefore did not import them. This kind of embargo appeared to its critics to have become a purely punitive measure without direct effect on the illicit traffic, and moreover to be discriminatory against the non-industrial countries; but some others continued to assert its value, since the threat of such an embargo could have some beneficial effect on Governments whose control regime was defective. s

5. The 1953 Protocol authorized 7 the Permanent Central Board to recommend in respect of opium, not only the discontinuation of exports to, but also of imports from, a country or territory failing to carry out its provisions.
It also empowered that Board to impose in regard to that drug "mandatory" import or export embargoes or both on an offending country or territory, that is, embargoes which Parties to that treaty are legally bound to carry out. 8 As was pointed out above, 9 the Single Convention did not take over this provision, nor does it provide in respect of any other drugs for a mandatory embargo. to

6. Prior to the Single Convention, opium was the only drug in respect to which the former Permanent Central Board could recommend the cessation not only of the export to, but also of the import from a country or territory. The Single Convention authorizes the International Narcotics Control Board 11 to recommend both measures not only in respect of opium, but in respect of all controlled drugs, and thus abolishes a situation of inequality which was widely felt to favour the countries manufacturing narcotic drugs, which are mostly industrial or "developed" countries. If an element of inequality seems still to persist, it appears to be now one in favour of the drug-importing States, which are often "developing" countries. It may be assumed that in some situations of serious failures to comply with provisions of the Single Convention, the Board may more readily be inclined to recommend the cessation of imports from, than of exports to, an offending country or territory, since it would in any event not wish to endanger the supply of useful medicines to the sick.

7. The Board's recommendation to discontinue the import or export or both may cover one, several or all drugs under international narcotics control, including drugs in Schedule I as well as those in Schedule 11.12

8. The embargo may be recommended for a definite period to be designated by the Board, or for an indefinite period until the Board is "satisfied as to the situation in that country or territory". The Board may terminate an embargo either if it finds that the country or territory involved is no longer failing to carry out the provisions of the Single Convention in the serious manner which led to the initiation of the procedure pursuant to article 14, or if it is satisfied that such country or territory has taken steps which are likely to remedy the situation, or has in any event made all efforts which can reasonably be expected, even though because of the retarded stage of its economic and social development, and consequently also of its administrative machinery, it may not be fully capable of full and perfect compliance with all the requirements of the Single Convention. The Board may in these cases, and in particular in the case of an administrative insufficiency, take into account anyrequest from the Government concerned for the needed foreign aid under available multilateral or bilateral programmes. It is submitted that the Board may in fact discontinue the recommended embargo if for any reason it finds such course of action to be advisable. The Board need not recommend an embargo even if it finds that all conditions justifying such action under paragraph 2 exist. Similarly, the Board may at its discretion end any embargo, although the unsatisfactory situation which originally motivated its recommendation does not improve.

9. The question may be raised whether an embargo which has been recommended for a designated period of time can be prolonged by the Board. Since the recommendation of an embargo as a sanction for treaty violations is a very serious matter at the present stage of international relations, and the Single Convention does not provide for such prolongation, it may be assumed that the Board may make the prolongation only after having again followed the procedure and made the findings which are prescribed by article 14 before a recommendation pursuant to paragraph 2 of that article can be made. 13 The prolongation could be effected only by a recommendation which would procedurally be "new", that is, only after the Board has again asked for explanations (as required by paragraph 1, subparagraph (a)) and has, if necessary, again asked the Government concerned to adopt remedial measures (as provided in paragraph 1, subparagraph (b)) and only when the Board is again calling the attention of Parties, the Council and the Commission to the matter pursuant to paragraph 1, subparagraph (c). It is submitted that the Board may initiate and also complete the new procedure under article 14 before the period designated for the original embargo has expired. The Board may again recommend the embargo for a designated period, for example, for a certain time immediately following the end of the original embargo and thus actually effect a prolongation of that embargo, or it may recommend the new action for an indefinite time until it "shall be satisfied as to the situation" in the country or territory involved.

10. The Board may at anytime terminate an embargo, whether it has been recommended for a designated period or for an indefinite time. As to reasons which may move the Board to take such action, see above comments.

11. The Board may recommend an embargo only "if it is satisfied that such a course is necessary". It may be assumed that the Board may consider the recommendation of an embargo to be "necessary" if it holds that such an action would be the best step which it could under the circumstances take to bring about an improvement in the drug situation of the country or territory concerned. Like other steps under article 14, action under paragraph 2 may be taken not only against Parties and those of their territories to which the Single Convention applies under the terms of its article 42, but also against non-Parties and their territories, and against those territories of Parties to which the Single Convention does not apply by the operation of that article. 14 The embargo may be recommended not only against a State as a whole, but also against one particular "territory" only, i.e. a part of a State. This is expressly said in the English text in regard to imports as well as to exports. The French text, however, refers separately to "territoire" only in connexion with exports and not in relation to imports, while the Spanish text omits a separate mention of "territorio" in both cases; but these omissions in the French and Spanish texts are clearly due to oversight. Both of these language versions distinguish between "country" and "territory" when rendering 15 the words "until the Board shall be satisfied as to the situation in that country or territory". Moreover, the English text of paragraph 2 is in harmony with paragraph 1, subparagraph (a), while the French and Spanish texts are not.

12. As regards the theoretical possibility of a recommended cessation of trade in narcotic drugs between territories of the same State, see above, comments on article 14, paragraph 1, subparagraph (a).

13. The State against which an embargo has been recommended-no matter whether against the State as a whole or against one of its territories only-is the "State concerned" which may bring the matter before the Council. 16 This "State concerned" would under paragraph 2 be entitled to take this step even if it was not a Member of the United Nations.

14. Parties invited by the Board's recommendation to apply the embargo would not be "States concerned" within the meaning of this term in paragraph 2. Depending on the nature of the recommended embargo, namely whether it covers imports or exports or both, a Party that has an important economic interest in the export of the drugs involved to the country or territory against which the embargo has been recommended, or which to a significant extent relies on that country or territory for its supply of the drugs in question, may, however, be a State "directly" interested in the matter under the terms of article 14, paragraph 5.17 While such a Party may not bring the matter before the Council under paragraph 2, it may be able to do this under the Council's Rules of Procedure.

15. The "matter" which may be brought before the Council under that paragraph is the recommended embargo. The serious failure to comply with provisions of the Single Convention which has caused the Board to make the recommendation is the "matter" called to the Council's attention, and to that of the Parties and of the Commission, under article 14, paragraph 1, subparagraph (c), and therefore that failure must be brought or have been brought to their attention if the Board recommends an embargo pursuant to paragraph 2.11

16. Since the Board, when applying article 14 and in particular when recommending an embargo under paragraph 2 of that article, is performing "judicial" functions, 19 it cannot be assumed that the Council, when dealing with the matter under that paragraph, may formally confirm, alter or reverse the Board's recommendation of an embargo. There can, however, be no doubt that the Council may consider the merits of the Board's recommendation, may make suggestions to the Board regarding the way in which the matter should be handled in the future, and adopt its own recommendations on the subject. The Council may act in this manner despite the "judicial" character of the Board's recommendation of an embargo. A denial of such a right of the Council could not be reconciled with the treaty provision expressly authorizing the "State concerned" to bring the matter before the Council.

17. There is no provision requiring Parties which are not willing to carry out the Board's recommendation to notify the Board of such unwillingness 2° Such a refusal to accept the Board's recommendation would, however, be brought to the Board's knowledge by the quarterly statistical returns which Parties to the Single Convention must under article 20 of that treaty furnish to the Board on their imports and exports of narcotics drugs.

18. Article 14, paragraph 2, providing for the Board's right to recommend an import or export embargo of narcotic drugs or both, must be distinguished from article 21, paragraph 4, authorizing the Board to order the discontinuation of the exports of narcotic drugs to a country or territory in excess of its import limits. The Board's decision under article 21, paragraph 4 does not have any punitive character, and need not be based on a failure of the country or territory concerned to comply with the provisions of the Single Convention which seriously endangers the aims of the Single Convention, as a recommendation of an embargo pursuant to article 14, paragraph 2 must be. Moreover, the Board's action under article 14 constitutes only a recommendation, while its decision pursuant to article 21, paragraph 4 obligates the Parties to carry it out, that is, to discontinue the exports involved to the country or territory in question.

19. The Board's recommendation under article 14, paragraph 2 may also cover drugs in respect of which the control situation in the country or territory in question is satisfactory. Article 21, paragraph 4, on the other hand, can be applied only to those drugs whose imports exceed the limits computed under the terms of that paragraph for the country or territory concerned.

20. Although article 14, paragraph 2 refers expressly only to recommendations to Parties, there is no provision which prevents the Board from addressing simultaneously to non-Parties a recommendation made pursuant to that paragraph.

21. Non-compliance with a recommended embargo of course does not constitute a violation of a treaty provision and it may even be considered justified on non-legal grounds if it is motivated by the desire to provide for the treatment of the sick. 21

22. See below, comments on article 21, paragraph 4.
 

1 See above, comments on that subparagraph.

2Webster's New International Dictionary of the English Language, Second Edition, Unabridged, G. & C. Merriam Company, Springfield, Massachusetts, 1954, p. 2910, meanings under 1 and 2 of the entry "when" (conj.); The Oxford English Dictionary, Oxford, at the Clarendon Press, vol. XII (1933), p. 24 of the section dealing with "WH", the meanings listed under 4 (a) and 8 of the entry "when"; the corresponding words of the French and Spanish texts "lorsque" and "cuando" also appear to have a temporal as well as a conditional meaning; Sachs-Villatte, Enzyklopdaisches Franzosisch-Deutsches and Deutsch-Franzosisches Wdrterbuch, Berlin, Langenscheidt, 1964, first part, p. 548; and Fernandez Cuesta, Dictionnaire des Langues Espagnole et Francaise, Buenos Aires, Anaconda, vol. Ill, p. 429.

3 See above, general comments on article 14; article 24 and 26 of the 1925 Convention and article 14, para. 3 of the 1931 Convention; see also article 1, para. 4 of the 1948 Protocol and article 13, para. 1 of the 1931 Convention.

4 Records, vol. I p. 84.

5 See also article 14, para. 2 of the 1931 Convention and article 21, para. 4, subpara. (b), clause (ii) of the Single Convention.

6 Records, vol. 1I p. 196.

7 Article 12, para. 2; see also article 45, para. 2 of the Single Convention.

8 Article 12, para. 3.

9 See above, general comments on article 14.

10 See, however, article 21, para. 4, which takes over article 14, para. 2 of the 1931 Convention, and which empowers the Board to order the cessation of exports to a country or territory which exceeds its import limits; but such an order is not meant to be a punitive measure.

11 See article 45 for the transitional period; see also above, comments on article 1, para. I subpara. (a).

12 Articles 24 and 26 of the 1925 Convention can be applied only to drugs in group 1 of the 1931 Convention (or of the 1948 Protocol), but not to those of Group II. This follows from article 13 of the 1931 Convention; article 14, para. 3 of the 1931 Convention can however be applied to drugs in both groups; articles 24 and 26 of the 1925 Convention can of course be applied to any substance covered by that treaty.

13 Reference may be made in this connexion to the literature cited in foot-note 2 of the above comments on article 14, para. 1, subpara. (b).

14 See above, comments on article 14, para. 1, subpara. (a) and on article 1, para. 1, subpara. (y).

15 "Jusqu'd ce que la situation dans ce pays ou territory lui donne satisfaction" in the French text and "hasta que la Junta quede satisfecha con la situacion existente en ese territorio o pals".

16 Records, vol. II pp. 202-203 and 40; see also article 24, paras. 3 and 4 of the 1925 Convention, and article 12, para. 2, subpara. (b) of the 1953 Protocol.

17 See below, comments on that paragraph.

18 See above, comments on article 14, para. 1, subpara. (c).

19 League of Nations, document O.C.669 of 1 October 1927 concerning the Permanent Central Board; as regards "judicial" functions of the International Narcotics Control Board, see Commission on Narcotic Drugs, report on the twenty-first session, Official Records of the Economic and Social Council, Forty-second Session, Supplement No. 2, para. 108.

20 See, however, article 24, para. 4 of the 1925 Convention. Such a Party is also not a "State concerned" which may bring the matter before the Council under article 14, para. 2 of the Single Convention.

21 See also article 21, para. 4, subpara. (b), clause (ii) and article 14, para. 2, subpara. (ii) of the 1931 Convention, Records, vol. 1I pp. 203-204.
 

Paragraph 3

3. The Board shall have the right to publish a report on any matter dealt with under the provisions of this article, and communicate it to the Council, which shall forward it to all Parties. If the Board publishes in this report a decision taken under this article or any information relating thereto, it shall also publish therein the views of the Government concerned if the latter so requests.

Commentary

1. The Board's "right to publish a report on any matter dealt with under the provisions" of article 14 is limited by its obligation to treat as confidential a request for information or an explanation by a Government under paragraph 1, subparagraph (a). As long as the Board does not decide to take action under subparagraph (c), it may therefore not reveal without the consent of the Government concerned its request and the explanations and consequently not publish a report under paragraph 3 on any procedure in which that request has been made. The Board must thus not report on any action under article 14 in the course of which a request for explanations pursuant to paragraph 1, subparagraph (a) has been made and which has been discountinued without calling the attention of the Council, the Commission and the Parties to the matter in accordance with paragraph 1, subparagraph (c). 1

2. Article 14, paragraph 1, subparagraph (a), on the other hand, does not require the Board to treat as confidential its refusal to ask for explanations, or the circumstances motivating such a negative action. The Board therefore does not appear to be prevented from reporting under paragraph 3 the fact that it has decided in a given case not to ask for explanations under paragraph 1, subparagraph (a), and the particulars of the situation on which its decision is based.

3. The Board may include in its report an account of the fact that, in accordance with paragraph 1, subparagraph (c), it has called "the attention of the Parties, the Council and the Commission" to a "matter", and it may cover any other "matter dealt with under the provisions" of article 14. Inclusion of mention of such an action under subparagraph (c) in the Board's report would not, however, be sufficient for the purposes of that subparagraph. If the Board decides to act in accordance with this provision, it must send to this end a separate communication to the Parties, the Council and the Commission.

4. The Board may also include in one of its reports under article 15 the matter with which it may deal or has dealt in a report pursuant to article 14, paragraph 3 ; but the inclusion in a report under article 15 of an account of
a matter dealt with under the provisions of article 14 would, strictly speaking, not constitute a report under paragraph 3. This may be concluded from the fact that reports under article 15 are to be communicated to the Parties by the Secretary-General, while those under paragraph 3 are transmitted by the Council. It is also expressly required for the former, but not for the latter, that they be submitted to the Council through the Commission.

5. But this distinction between the inclusion of an account in a report under article 15 or in a separate document under paragraph 3 is of little practical importance. The Board has the right, but not the obligation, to publish a report under paragraph 3 under the conditions of that provision. It may therefore forego such a report, and choose instead to give an account, in a report pursuant to article 15, of a matter dealt with under the provisions of article 14; but when following such a procedure, the Board must comply with the conditions to which it is subject in reporting under the terms of that article. However, facts which have been communicated to the Board in the course of a procedure under article 14 and may not be reported under paragraph 3 of that article may nevertheless be included in a report prepared pursuant to article 15 if they have also come to the Board's notice outside of that procedure, for example, under articles 12 and 13. The Board must however avoid any reference to article 14 in connexion with its presentation of such information. 3

6. The Board may choose not to limit itself to giving, in a document prepared pursuant to article 15, an account of a matter dealt with under the provisions of article 14, but may also publish a special report in accordance with paragraph 3 of article 14 in order to emphasize the particularly serious character of an unsatisfactory drug situation.

7. The Government of the country or territory whose failure to comply with provisions of the Single Convention has been the object of the procedure under article 14 must be invited to the meeting of the Board at which the adop tion of a report under paragraph 3 of that article is to be considered. If the Board chooses not to publish such a report but to give instead an account of the matter in a report to be issued under article 15, that Government must also be invited to be represented at the meeting at which the relevant section of that document is to be discussed. See below, comments on article 14, paragraph 5.

8. The Board must include in a report published under article 14, paragraph 3, the views of the "Government concerned" if the latter so requests; but it may do this even without such a request. It appears that the Board has the same obligation and right if it decides not to publish a report under paragraph 3, but chooses instead to limit itself to giving an account of the matter in a report issued pursuant to article 15. The "Government concerned" is the Government against which action under article 14 has been taken. 4 For provisions of earlier treaties corresponding to article 14, paragraph 3, see article 24, paragraph 5 of the 1925 Convention.
 

1 See above, comments on article 14, para. 1, subparas. (a), (b) and (c); see in particular comments on subpara. (b) as regards publication by the Board of its suggestions of remedial measures.

2 See above, comments on article 14, para. 1, subpara. (c).

3 See above, comments on article 14, para. 1, subpara. (a).

4 See also article 11, para. 4 and article 12, para. 4, subpara. (c) of the 1953 Protocol.
 

Paragraph 4

4. If in any case a decision of the Board which is published under this article is not unanimous, the views of the minority shall be stated.

Commentary

1. The "minority" may consist of a single member of the Board who participates in the vote on the decision in question.

2. For corresponding provisions of earlier narcotics treaties, see article 24, paragraph 6 of the 1925 Convention and article 12, paragraph 4, subparagraph (c), second sentence, of the 1953 Protocol.

Paragraph 5

5. Any State shall be invited to be represented at a meeting of the Board at which a question directly interesting it is considered under this article.

Commentary

1. The text clearly requires that a State should be given an opportunity to participate in the discussion under article 14 of any question directly interest ing it. Such a question may be action by the Board pursuant to paragraph 1, subparagraphs (a), (b) or (c), paragraph 2 or paragraph 3, but cannot be a procedural problem arising under paragraphs 4, 5 or 6. The fact that a State has participated in an earlier stage of the procedure under article 14 does not deprive it of its right to participate in the discussion of subsequent steps to be taken by the Board in accordance with the sequence prescribed by article 14. This means that the State in question may be entitled to participate in the whole or parts of several meetings, that is, each time the Board deals with requests for information under paragraph 1, subparagraph (a), with suggestions of remedial measures under paragraph 1, subparagraph (b), with the consideration of the satisfactory character of explanations or with that of a failure to adopt proposed remedial measures under paragraph 1, subparagraph (c), with a proposal to call the attention of the Parties, the Council or the Commission to the matter in accordance with the same subparagraph, with a motion to recommend an embargo under paragraph 2 or with a proposal to publish a report pursuant to paragraph 3. If the Board chooses not to make a report under paragraph 3,
but instead decides to deal with the matter in a report issued under article 15, paragraph 1, the State involved must be invited to be represented at the discussion of the relevant part of that document. 1

2. It is, however, submitted that the Board may not find itself required to refrain from discussing any proposal to take any of the actions mentioned in paragraphs I to 3 until the interested State has an opportunity to take part in the debate. A motion to take such a step may be discussed, at least in a preliminary way, without inviting that State to be represented. 2 Any other interpretation may involve the State concerned in unnecessary costs of representation in situations which quite obviously cannot form the basis of any action by the Board. Only if the Board finds that the circumstances are such as to require an examination whether the conditions prescribed for any of its actions under paragraphs 1 to 3 exist, must it give the State concerned an opportunity to participate in the debate; but the text of the treaty does not appear to require that that State be entitled to take part in the whole debate of a question directly interesting it. In any event, none of the steps mentioned in these provisions may be adopted by the Board without previously offering the Government in question a hearing in the matter.
3. Any State-whether the whole State or only one or several of its territories 3-against which any of the actions mentioned in paragraphs 1 to 3 is being considered by the Board is a directly interested State in the sense of paragraph 5. A State whose imports or exports would in a considerable measure be affected by the recommendation of an embargo under paragraph 2 would also be a State "directly" interested in such a recommendation and would have to be invited to be represented at the meeting of the Board at which the embargo would be considered. 4
4. For provisions in earlier narcotic treaties corresponding to that of article 14, paragraph 5, see article 24, paragraph 7 of the 1925 Convention and article 11, paragraph 2 and article 12, paragraph 4, subparagraph (b) of the 1953 Protocol.

1 See above, comments on article 14, para. 3, in particular in regard to reporting the facts without reference to the procedure of article 14.

2 Records, vol. II p. 204.

3 Article 1, para. 1, subpara. (y). Records, vol. 1I p. 204.

Paragraph 6

6. Decisions of the Board under this article shall be taken by a two-thirds majority of the whole number of the Board.

Commentary

It will be noted that a two-thirds majority of the members present and voting is not sufficient under this paragraph but that a two-thirds majority of "the whole number of the Board", i.e. an affirmative vote of at least 8 of the 11 members of the Board, is required for decisions under article 14. The majority required under paragraph 6 is thus identical with that of article 10, paragraph 4, although expressed in different terms. 1 Decisions of the Board under article 10, paragraph 4 and article 14 are the only ones for which the Single Convention requires a two-thirds majority. In respect of all other decisions the rules of procedure which the Board may adopt in accordance with article 11, paragraph 1 may provide for adoption by a simple majority of the members present and voting, provided that at least seven of them (the quorum requirement of article 11, paragraph 3 2) are present at the time of the voting.

1 See above, comments on article 10, para. 4.

2 For the two-thirds majority required for decisions of the Permanent Central Board under earlier narcotics treaties, see article 19, last para. of the 1925 Convention and article 11, para. 3 and article 12, para. 4, subpara. (a) of the 1953 Protocol.

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