Drug Abuse

Article 49

TRANSITIONAL RESERVATIONS

General comments

1. While article 49 regulates those reservations whose maximum duration of validity is determined by the terms of the treaty itself, article 50 deals with those which are not subject to such a time limit. The reservations provided for in article 49 are therefore referred to as "transitional". 1

2. Reservations under article 49 may be made for shorter periods than those provided in the article. Several questions arise, however, namely whether by application of article 50, paragraph 3, Parties can reserve the right to permit:
(a) The non-medical uses to which article 49 refers for longer periods than those determined by article 49;
(b) Other non-medical uses than those mentioned in article 49; and
(c) Non-medical uses of other drugs than those with which this article deals.

3. It is submitted that such reservations would be "reservations other than those made in accordance with paragraph 2 of this article [i.e. article 50] or with article 49" 2 and could therefore be made if authorized by the procedure provided in article 50, paragraph 3. 3

4. It may be pointed out that the only obligation from which a Party can free itself by the application of article 49, and subject to its conditions, is that of limiting pursuant to article 4, paragraph (c), exclusively to medical and scientific purposes the production, manufacture of, trade in, possession 4 and use of the drugs to which article 49 relates. A Party making a reservation pursuant to this article must continue to apply the controls required by the Convention 5 to production, manufacture and trade undertaken for the reserved purposes unless it obtains exemption from such controls in accordance with the procedure of article 50, paragraph 3. It need of course not require medical prescriptions under article 30, paragraph 2, subparagraph (b), clause (i).

5. For a provision in an earlier treaty which in respect of the quasimedical use and smoking of opium is very similar to article 49, see article 19 of the 1953 Protocol.
 

1 Records, vol. I, p. 178.

2 Article 50, para. 3; see also the comments on article 50.

3 Records, vol. 1, pp. 184 and 185. See, among others, statements by the representative of Australia and by the President in reply.

4 "Possession" is not expressly mentioned in para. 1 of article 49, but its inclusion in this exemption must be implied; possession for the reserved purposes may thus also be legally authorized under article 33.

5 In particular articles 29, 30 (excepting its para. 2, subpara. (b)), 31, 33, 34, 35, 36, 23, 24, 26 and 28, para. 1.

Paragraph 1

1. A Party may at the time of signature, ratification or accession reserve the right to permit temporarily in any one of its territories: (a) The quasi-medical use of opium;
(b) Opium smoking; (c) Coca leaf chewing;
(d) The use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes; and
(e) The production and manufacture of and trade in the drugs referred to under (a) to (d) for the purposes mentioned therein.

Commentary

1. The term "territories" as used in the introductory subparagraph covers not only parts of a State treated as separate entities for the application of the import certificate and export authorization system, but also whole States not divided for this purpose. 1 A reservation under article 49 need not be made in respect of a whole State, but may be limited to one or more such parts of the State concerned, i.e. to one or more of its "territories" in the sense of article 1, paragraph 1, subparagraph (y). If the reservation is to apply to a "territory" which is included in the area of a non-metropolitan territory whose consent is pursuant to article 42 required for the application of the Single Convention to it, the agreement of such non-metropolitan territory to the reservation should, in accordance with the spirit of articles 42 and 46, be obtained by the Party which is responsible for the non-metropolitan territory's international relations.

2. A reservation concerning any of the non-medical uses mentioned in paragraph 1 would also cover such use of preparations of the drug concerned, even if its text did not expressly mention preparations. 2 It could, however, exclude by its terms some or all preparations.

3. If the definition of the phrase "use of opium for quasi-medical purposes" by the United Nations Opium Conference of 1953 is accepted, the "quasi-medical use of opium" referred to in subparagraph (a) denotes "the use of opium without medical aid for relief of pain other than that caused by addiction to opium or to other narcotic drugs", but does not include the use of opium preparations included in Schedule III or opium smoking. 3

4. As regards the "medical use" of drugs by addicts, see above, comments on article 4.

5. The term "trade" in subparagraph (e) covers also "distribution", "export" and "import". It is, however, submitted that a Party desiring to export or import drugs mentioned in paragraph 1 for the purposes referred to therein should indicate in its reservation the export or import in which it wishes to engage. Such reserved export or import would also on 1 January 1961 have to have been traditional and permitted in the country or territory in respect of which the reservation is made.

6. "Possession" is not mentioned in subparagraphs (d) and (e); there can, however, be no doubt that these provisions imply that the Party concerned may authorize possession for the reserved use, production, manufacture or trade.

7. Of the drugs mentioned in paragraph 1 opium, coca leaves, cannabis and cannabis resin are "produced", while extracts and tinctures of cannabis are "manufactured". 4 Parties reserving under this paragraph the "manufacture" of drugs are also authorized to permit the compounding of preparations whose making for use or export was on 1 January 1961 5 traditional and permitted in the country or the territory to which the reservation applies, although such compounding is not "manufacture" as defined in article 1, paragraph 1, subparagraph (n). s

8. The phrase "non-medical purposes" in subparagraph (d) means "purposes other than medical and scientific ones". 7

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

2 Article 2, para. 3.

3 See resolution XI included in the Final Act of the United Nations Opium Conference, held at United Nations Headquarters, New York, from 11 May to 18 June 1953, United Nations, Treaty Series, vol. 456, p. 34.

4 Article 1, para. 1, subparas. (n) and (t).

5 Article 49, para. 2, subpara. (a); see also the text of the reservation of India as reproduced on p. 148 of document ST/LEG/SER.D/4, United Nations publication, Sales No. E.71.V.5.

6 See above, comments on that subparagraph.

7 See article 49, para. 2, subpara. (f).

Paragraph 2

2. The reservations under paragraph 1 shall be subject to the following restrictions:

(a) The activities mentioned in paragraph 1 may be authorized only to the extent that they were traditional in the territories in respect of which the reservation is made, and were there permitted on 1 January 1961.
(b) No export of the drugs referred to in paragraph 1 for the purposes mentioned therein may be permitted to a non-party or to a territory to which this Convention does not apply under article 42.
(c) Only such persons may be permitted to smoke opium as were registered by the competent authorities to this effect on 1 January 1964. (d) The quasi-medical use of opium must be abolished within 15 years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(e) Coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(f) The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years from the coming into force of this Convention as provided in paragraph 1 of article 41.
(g) The production and manufacture of and trade in the drugs referred to in paragraph 1 for any of the uses mentioned therein must be reduced and finally abolished simultaneously with the reduction and abolition of such uses.

Commentary
l. The reservations made pursuant to paragraph 1 are not only subject to the restriction provided for in paragraph 2, but also to those provided in paragraphs 3 and 4.

2. The term "territories" in subparagraph (a) covers not only parts of a State treated as separate entities for the purpose of application of the import certificate and export authorization system, but also whole States not divided for this purpose. 1

3. Activities for non-medical purposes which are referred to in paragraph 1 may be made the subject of a reservation pursuant to this paragraph only if they were traditional in the "territory" concerned and were permitted on 1 January 1961; 2 this means that they must have been practiced by a significant portion of the population for a considerable period of time. Traditional activities which were the subject of a legal prohibition for a short time before that date, or were prohibited afterwards, may be reserved under paragraph 1, always provided they were permitted on 1 January 1961. It is, however, suggested that legalization of the prohibited activities and a reservation made under paragraph 1 to make such legislation possible would be compatible with the object and purpose of article 49, as indeed with those of the Single Convention as a whole, only if the prohibition had proved to be ineffective (paragraph 2, subparagraph (a)).

4. A Party may not, on the basis of a reservation made under paragraph 1, export opium for non-medical purposes to its own non-metropolitan territory to which the Single Convention does not apply under article 42 (paragraph 2, subparagraph (b) of article 49). Without such a reservation, it may not do so pursuant to article 4, paragraph (c).

5. The date by which the quasi-medical use of opium must be abolished is 12 December 1979 (paragraph 2, subparagraph (d), 3 coca leaf chewing must be prohibited by 12 December 1989, and the non-medical use of cannabis, cannabis resin, extracts and tinctures of cannabis 4 as soon as possible but in any case by that date (subparagraphs (e) and (f)).

6. The export of drugs to a country or territory for non-medical uses in accordance with a reservation pursuant to paragraph must be reduced and abolished simultaneously with the reduction and abolition of the reserved non-medical uses in question in the importing country or territory. The export also must not anymore be authorized to such a country or territory if it continues to permit the non-medical use concerned after its right to do so has expired under the terms of its reservation made pursuant to paragraph 1 or under those of paragraph 2, subparagraphs (c) to (f). Such an export must in any event cease on the expiration of the validity of the reservation authorizing it.

7. The words "quedara prohibida" in the Spanish version of subparagraph (e) may be somewhat ambiguous. They must of course in this context be understood to mean "shall be prohibited" in accordance with the English text, which uses the phrase "must be abolished", and with the French text, which uses the words "devra etre abolie".

1 permitting such export Article 1, para. 1, subpara. (y) and comments thereon; see also comments on article 49, para. 1.

2 See also comments on article 49, para. 1.

3 The Single Convention came into force on 13 December 1964; see above, comments on articles 40 and 41.

4 The term "cannabis" in subpara. (f) includes also "cannabis resin" and "extracts and tinctures of cannabis"; it cannot be assumed that the authors of the Single Convention wished to provide for a time limit for the non-medical use of cannabis, but not for such use of cannabis resin and of extracts and tinctures of cannabis, particularly since cannabis resin is generally a more potent drug than cannabis.

Paragraph 3

3. A Party making a reservation under paragraph 1 shall:

(a) Include in the annual report to be furnished to the SecretaryGeneral, in accordance with article 18, paragraph 1 (a), an account of the progress made in the preceding year towards the abolition of the use, production, manufacture or trade referred to under paragraph 1; and
(b) Furnish to the Board separate estimates (article 19) and statistical returns (article 20) in respect of the reserved activities in the manner and form prescribed by the Board.

Commentary

1. The Commission on Narcotic Drugs included, in the form which it prepared' for the annual reports which Parties must furnish on the working of the Single Convention, 2 a number of questions 3 designed to facilitate the reporting by Parties pursuant to paragraph 3, subparagraph (a). It may be noted that the Commission, in accordance with article 18, paragraph 2, requests at present that these annual reports should reach the Secretary-General not later than 30 June of the year following the year to which they relate, 4 while article 49, paragraph 4, subparagraph (a), clause (i) requires that the Parties concerned should furnish the information referred to in paragraph 3, subparagraph (a) within six months after the end of the year to which the information relates, in order to avoid the need for the Secretary-General to send them notification of the delay under paragraph 4, subparagraph (a), clause (iii).

2. Form R/S 5 is at the time of this writing prescribed by the Board for use in furnishing statistical returns according to article 49, paragraph 3, subparagraph (b). In accordance with this form, Parties are required to report to the Board the quantities of opium utilized, produced, imported and exported and held in stock for quasi-medical purposes. The same data must be furnished in regard to opium for smoking, coca leaves for chewing and cannabis resin and cannabis for all non-medical purposes. No information on the manufacture of extracts and tinctures of cannabis is required. In fact, no separate figures on these extracts and tinctures are requested; they are to be included in those relating to cannabis. 6

3. The total of the imports and exports of each drug and separate figures on the imports from and exports to each country or territory must be given.

4. The Board's form does not indicate the date by which the statistical information under subparagraph (b) is due. Under article 20, paragraph 2 in connexion with article 49, paragraph 4, subparagraph (a), clause (iii), the export and import figures should be furnished by the Parties to the Board quarterly within one month after the end of the quarter to which they relate, and the other data annually not later than 30 June following the year which they concern. 7 However, the Board requires in the form only annual data on all items including imports and exports.

5. The Board requires at present the use of form E/S s for the estimates which must be furnished under paragraph 3, subparagraph (b). In this form, Parties are requested to give estimates of the quantities of each of the drugs mentioned in paragraph 1 to be consumed and of those to be held in stock on 31 December of the year to which the information relates, for the purposes referred to in this paragraph. The Board does not, however, require separate figures on extracts and tinctures of cannabis. It is provided in its form that these figures should be included in those concerning cannabis. 9

6. The Board could, but for practical reasons does not, require estimates of the quantities of cannabis to be utilized for the manufacture of extracts and tinctures of cannabis. 10

7. The Board requires in the form that the estimates furnished under paragraph 3, subparagraph (b) should reach the Board not later than 1 August of the year to which the information relates, that is, by the same date which
it has fixed pursuant to article 12, paragraph 1 for the estimates under article 19, paragraph 1.11

1 Article 18, para. 2.

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

3 The Form of Annual Reports to be communicated by Governments to the Secretary-General of the United Nations in accordance with article 21 of the 1931 Convention, article 16 of the 1936 Convention, both as amended by the 1946 Protocol, article 10 of the 1953 Protocol and article 18 of the 1961 Convention (i.e. of the Single Convention), which is used at the time of this writing, is reproduced in document E/NR.FORM/Rev.2 (dated 21 March 1966); the relevant questions are included in chapter X of the form and numbered 38 to 41. See also above, comments on art. 18, para. 1, subpara. (a) and para. 2.

4 Para. (b) of the "Note by the Secretary-General", reproduced on p. 1 of the document referred to in the preceding foot-note.

5 Form R/S of 1969.

6 It is provided in the form that the weight of the extracts should for this purpose be multiplied by seven, and that of the tinctures divided by 10; see foot-note (b) of form R/S.

7 See also above, comments on article 20, para. 2: statistical information to be furnished pursuant to article 27, para. 2, is provided for in the Board's form C/S (4th edition, November 1969); no provision has yet been made in the Board's forms for statistical data to be furnished pursuant to article 2, para. 9, subpara. (b), a provision which until now has had no practical importance.

8 Form E/S of 1970.

9 For the purpose of computing the Board requires that the weight of the extracts should be multiplied by seven, and the weight of the tinctures divided by ten, and that the figures so obtained should be included in the figures on cannabis; see foot-note (b) on form E/S; see also foot-note 6 above.

10 See article 19, para. 1, subpara. (b).

11 See above, comments on article 12, para. 1 and article 19, para. 1, introductory subparagraph; see also the general comments on article 19.
 

Paragraph 4

4. (a) If a Party which makes a reservation under paragraph 1 fails to furnish:

(i) The report referred to in paragraph 3 (a) within six months after the end of the year to which the information relates;

(ii) The estimates referred to in paragraph 3 (b) within three months after the date fixed for that purpose by the Board in accordance with article 12, paragraph 1;

(iii) The statistics referred to in paragraph 3 (b) within three months after the date on which they are due in accordance with article 20, paragraph 2,

the Board or the Secretary-General, as the case may be, shall send to the Party concerned a notification of the delay, and shall request such information within a period of three months after the receipt of that notification.

(b) If the Party fails to comply within this period with the request of the Board or the Secretary-General, the reservation in question made under paragraph 1 shall cease to be effective.

Commentary

1. It may be noted that in case of a failure of a Party to furnish any of the reports indicated in clauses (i), (ii) and (iii), the Board, or the SecretaryGeneral, or both, as the case may be, are bound to send a notification of the delay. The notification must indicate which report is missing, and must request its transmission within three months after the receipt of the notification by the Party. It should also point out the possible consequence of a failure to comply with this request, namely that in such a case the reservation in question would cease to be effective pursuant to paragraph 4, subparagraph (b). The Secretary-General and the Board should send their notifications of delay by registered air mail with return receipt, in order to be able to determine with certainty for the purpose of this subparagraph whether and when the period for furnishing the missing document has expired.

2. The Secretary-General and the Board should of course not send notifications of delay in cases in which the information was furnished after the time defined in paragraph 4, subparagraph (a), clauses (i), (ii) or (iii), but nevertheless arrives before the dispatch of the notification in question.

3. In view of the importance of certainty of the relevant dates for the purpose of paragraph 4, it is suggested that Parties should send their reports by registered air mail with return receipt, or hand them over through a mes senger to the Secretariat of the United Nations or of the Board, as the case may be, whether the reports are sent spontaneously or in compliance with a request contained in a notification of delay.

4. It is probably the better view, and it is certainly in conformity with the object and purpose of paragraphs 3 and 4 of article 49, that the procedure of paragraph 4 should also be applied to reports in which essential data to be furnished under paragraph 3 are missing. The Secretary-General or Board, as the case may be, must in such cases point out in their notifications of delay which essential data they consider missing. It might, however, sometimes be very difficult for the Board, and particularly for the Secretary-General, to determine, with the general approval of the Parties to the Single Convention, that the missing data are really so essential as to justify the application of the procedure of paragraph 4. Moreover bringing about the end of the validity of a reservation made by a Party which is not capable of implementing the controls to which the reservation applies would quite frequently serve no useful purpose.

5. The phrase "quedard sin efecto" in the Spanish text of subparagraph (b) may perhaps be considered to be somewhat ambiguous. It must of course in
this context be understood to mean "shall lose its effect". The corresponding phrases in the English and French versions are "shall cease to be effective" and "cessera d'avoir effet".

Paragraph 5

5. A State which has made reservations may at any time by notification in writing withdraw all or part of its reservations.

Commentary

1. The notification mentioned in this paragraph must be addressed to the Secretary-General.

2. A reduction of the time limits stated in paragraph 2, or of the shorter limits stipulated in the reservation itself for the reserved activities for nonmedical purposes mentioned in paragraph 1, could also be the subject of the withdrawal of a "part" of a reservation under paragraph 5.
 

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