the international drug control system, adolphe lande, 1974

8/2/2019 THE INTERNATIONAL DRUG CONTROL SYSTEM, Adolphe Lande, 1974

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THE INTERNATIONAL DRUG CONTROL

SYSTEMby Adolph Lande*

* Attorney, New York, New York

CONTENTSThe National Interest in International Control of Dangerous Drugs

The Gradual Evolution of the International Drug Treaty System

The Situation at the End of World War II

The Single Convention on Narcotic Drugs, 1961

Evaluation of International Drug Control

A Summary Appraisal of the Protocol of 1972 Amending the Single Convention on NarcoticDrugs, 1961

A Summary Appraisal of the Vienna Convention of 1971 on Psychotropic Substances

Further Desirable Amendments of Drug Treaties

Questions of Treaty Provisions Preventing Some Policy Options on Certain ControversialQuestions

Measures Which Would Be Possible Without Treaty Amendment and Which Might beDesirable

THE NATIONAL INTEREST IN INTERNATIONAL CONTROL OF DANGEROUS DRUGS

It was largely due to the initiative of President Theodore Roosevelt that the InternationalOpium Commission met in Shanghai in 1909 and thus set in motion international effortswhich led to the gradual establishment of the present international narcotics regime. Sincethen the United States of America has undoubtedly been the most important protagonist ofinternational action for the control of "narcotic" drugs 1 and has generally favoured thestrictest control measures,' including often some pro-visions which proved to be unacceptableto many other States. For the purpose of determining whether this attitude was justified in thepast and what policies our country should adopt in the future in regard to problems of

international drug control it may first be appropriate to establish the interest which theUnited States has in the international drug treaty system, this is to say what advantages it hasobtained from this system and what additional benefits it could expect from a more effectivefunctioning of the inter-national drug regime in the future.

Probably the most important factor which induced governments to establish a system ofinternational control of narcotic drugs is the ease by which these substances can be smuggledover international bor-ders. This can be illustrated by the fact that one can make from onekilogram 3 of morphine one hundred thousand therapeutic dosages and from one kilogram ofheroin two hundred thousand therapeutic dosages.4 An illicit trafficker who succeeds insmuggling only one kilogram of opium containing about ten percent of morphine is thus ableto manufacture nearly ten thousand dosages of morphine and even much more dosages ofheroin 5 by a relatively simple process, "which can be carried out even within the resources ofa domestic kitchen or bath-room".6 It follows from this situation that a country, which byeffective domestic control measures succeeds in preventing the diversion of narcotic drugs


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from its legal trade into the illicit traffic supplying its addicts, cannot entirely prevent theillegal importation of such drugs. Its task to prevent such an illicit inflow becomes particularlydifficult and virtually impossible if other countries by their lack of or defective controlfacilitate the diversion of narcotics into illicit channels. The situa-tion of the United Stateswhich undoubtedly has a very effective domestic system of control of all phases of its legalnarcotics trade is in a particularly difficult position since its thousands of miles of land frontier

and maritime coast render it very difficult indeed and even impossible to prevent somesmuggling.

If one examines the narcotics treaties one will in fact find that their provisions are actuallyonly in-tended to prevent or at least to reduce, to the greatest extent possible, the availabilityof drugs for abuse. This aim has to some extent been achieved with respect to manufacturednarcotic drugs whether ob-tained from opium or by fully synthetic processes. However, thispicture of partial success of the inter-national narcotics treaties has been obscured by theepidemic-like spread of the abuse of drugs in a num-ber of countries in recent years. It mightbe useful to recall in this connection that this frightening ex-pansion of drug abuse relates in alarge measure to substances other than the internationally controlled manufactured narcotic

drugs, although addiction to some of the latter has without any doubt also grown greatly.Availability or the ease of availability of drugs for abuse is still very widely considered to be anim-portant factor responsible for this social evil; but other causative factors are now generallyrecognized, including: environmental conditions of an economic and social character, whichmay be responsible for psychological defects, particularly personality weak-nesses which leadto antisocial behavior; the effects of quick social change entailing in some countries thedissolution of ancient social ties, such as tribal organization, in the course of rapidurbanization and in some other more developed countries the move-ment of masses of peoplefrom relatively primitive agricultural activities to technologically advanced urban societies;and the possibly favorable attitude of some cultures or subcultures to the drugs which are

abused. The international drug regime does not deal with these other factors responsible fordrug abuse. Apart from requiring administrative and penal measures affecting the availabilityof drugs for abuse to keep the dangerous substances from actual or potential abuserstheinternational treaties do not impose any obligation on governments as to par-ticular methodswhich they should employ in combatting the causes of drug abuse or in treating the personsabusing drugs. It may in particular be pointed out that contrary to a rather widely held but er-roneous view, the treaty provisions in force regarding limitation of the use of drugs exclusivelyto medical and scientific purposes and regarding possession of drugs do not prevent agovernment from adopting any methods of dealing with its abusers of drugs, as long as it actsin accordance with sound principles of medical science and with the requirements of itsparticular society:

The fact that the drug treaties deal only with the problem of availability of drugs for abuse andnot with the other factors responsible for this social evil and do not prescribe specificmethods for the treat-ment of drug abusers is by no means due to lack of knowledge of thesefactors and of the need for treat-ing addicts. It is probably true that in the first years of theevolution of the international drug regime there was very little understanding of the causes ofdrug abuse nor a comprehension of the problem of treatment of drug addicts; but thischanged very early as seen by treaty provisions adopted in 1925 and 1931 8 and from arecommendation passed by an international drug conference in 1931.9

In any event some provisions of the recent treaty instruments, i.e. of the Single Convention onNar-cotic Drugs, 1961," of the Vienna Convention of 1971 on Psychotropic Substances n and ofthe Geneva Protocol of 1972 amending the Single Con-vention on Narcotic Drugs, 1961 12clearly show that their authors were very well aware of the various elements involved in theetiology of drug abuse as a social problem as well as of the need for early iden-tification,


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treatment and after-care (rehabilitation and social integration) of abusers of drugs. Theseearly and recent provisions are however rather gen-eral and vague and point only to the needfor treat-ment and for knowledge of the dangers of'drugs by drug abusers, as well as of acomprehension of the complexity of the problem by persons dealing with drug abusers intheir respective professional or voca-tional capacities. They refer also to the need for trainingof these persons to enable them to acquire the necessary specialized skills. They are, however,

mostly phrased in such a way as to constitute little more than recommendations rather thandefinite legal obligations. In any case they do not stipulate which medical, social, economic orother measures govern-ments must undertake in dealing with their particular drug abuseproblem. They limit themselves to pre-scribing measures to control the legal drug trade and tofight against the illicit traffic. This omission of the drug treaties is due to the fact that thecauses of drug abuse very often differ in different countries and not unfrequently in variousgroups of the pop-ulation of the same country. In view of these varying conditions, it wouldhardly be possible to include in a multilateral treaty, particularly in one which aims atuniversal acceptance, provisions requiring the adoption of the manifold medical, social oreconomic measures which would be needed in the campaign against drug abuse in aparticular country. These measures may vary from country to country and some of thosewhich would be adequate in one coun-try might be unsuitable and even harmful in anothercountry."

Moreover, seen solely from the viewpoint of combatting drug abuse, the existence of suchabuse and the particular medical, social or other approach which a particular country'sgovernment chooses with regard to this problem is often of little inter-national interest aslong as that government succeeds, by exercising effective control, in preventing the illicitmovement of drugs from its territory to other countries. Such abuse becomes, however, animpor-tant international problem, if it existsas it gen-erally doesin locations in whichuncontrolled or illicit production of opium or coca leaves takes place. The existence of such

abuse significantly increases the obstacles to implementation of the economic and socialreforms which are required for eliminating production. Any plan to abolish the cultivation ofthe opium poppy or the coca bush should also in-clude adequate measures for combattingdrug abuse opium smoking, opium eating or coca leaf chew-ingwhich exists in the poppyor coca bush growing districts. But once again the specific measures, which must be taken forthe implementation of the needed economic and social measures as well as those which arerequired for the treatment of drug abusers, may and generally will differ from one country toanother country. Therefore, they can hardly be included in the multilateral drug treaties whichimpose detailed obligations on the countries concerned.14

The existence of drug abuse in a country which is not the source of illicit drugs flowing into

our coun-try nevertheless may be an important American con-cern if looked upon in the lightof more general political considerations. Such abuse may be an im-portant obstacle in the wayof economic and social progress and political stability in a particular country in whose welfarewe might have an important national interest. More generally one may maintain that theelimination of drug abuse in all countries is our concern insofar as we must be morallyinterested in the welfare of all nations:

It may therefore be concluded that the only important advantage which our country can expect

from an effective functioning of the international drug control system is the prevention or

reduction of the illicit flow of dangerous drugs into our territory. To state it in different words.The drug treaties could to a considerable extent assure that the effec-tiveness of our

administrative and penal measures taken to fight the illicit traffic is not impeded by lack ofcontrol or of effective control in other coun-tries. Our drug abuse problem cannot be solved byresort to international treaties alone.


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But even this advantage cannot be obtained in a satisfactory measure as long as a number ofcountries cannot implement the drug treaties by their own unaided efforts. It is in ournational interest that such countries request and obtain the required for-eign assistanceeither from individual states, includ-ing the United States, or under the multilateral aidprogrammes of the international organizations. The importance of such assistance has foundsome recog-nition in a recent treaty provision.15

Reference may also be made in this context to article 4, paragraph (b) and article 35,paragraphs (b) and (c) of the Single Convention which require parties to co-operate with otherstates in the execu-tion of the provisions of this Convention and more specifically to assisteach other and to co-operate closely with each other and with the competent inter-nationalorganizations of which they are members in the campaign against the illicit traffic. While theseprovisions can hardly be interpreted so as to estab-lish a legal obligation of a party to rendertechnical or financial assistance or both to another state need-ing and requesting it for thepurpose of improving its drug control system, it may be held that under the present conditionsit is certainly within the spirit of provisions requiring such co-operation and mutualassistance, to grant, within reasonable limits, such aid if requested.

Here again it may be submitted that it would hardly be feasible to include in a multilateraldrug treaty provisions specifying in detail the extent and forms of aid which governmentswould have to ren-der to other governments needing and requesting it. The type and quantityof aid which different coun-tries may need will differ from country to country, depending onthe particular reasons for its weak-nesses of administration and on the particular politi-cal,economic and social conditions responsible for the unsatisfactory drug control situation in thecoun-try involved. However, a general obligation to render technical assistance in the field ofdrug control could theoretically be included in a multilateral drug treaty; but it is suggestedthat in the present circum-stances it would not be in the interest of our country to undertakesuch a formal legal obligation, which would be accepted by few if any other countries capable

of granting such help.

It may also be pointed out that it is very important to see to it that aid granted byintergovernmental organizations in the sphere of drug control, to which we are and probablywill remain the largest financial contributors, should in a great measure be guided by theneeds of our country in this field, since we are the principal victims of the international drugtraffic.

Attention may finally be drawn to another consideration which cannot be overlooked: anexamina-tion of the role of an effective control of availability of drugs in combatting drugabuse. The view is widely held that many addicts, who are unable to obtain their particular

drug, as a result of effective control, will resort to other drugs, which are not controlled or lessstrictly controlled, including alcohol.16 It is suggested, however, that it would be of great ad-vantage to us if, as a result of a more effective operation of the narcotics treaties, the flow ofheroin into the United States were reduced to a minimum, even though a part of our heroinaddicts would shift to the consumption of other addictive or otherwise harmful drugs.

But what has been just said should not lead to an inclination to underrate the greatimportance of the multilateral drug treaties for the United States. Any program of dealing withthe social problem of drug abuse requires control of the availability of drugs. This applies alsoto those programs which inctude temporary or permanent drug maintenance of ad-dicts.17No domestic control of the availability of drugs and of the fight against the illicit traffic can besuccessful without an effective operation of the multilateral drug treaty system.

It may also be mentioned that the United States has an interest in the measures which othergovern-ments take in combatting drug abuse. Information on those measures, which are


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designed to control the availability of drugs and to fight the illicit traffic, are made available tothe United States and to other countries under the terms of the narcotics treaties, particularlythe Single Convention. Data on the particular methods which governments choose for thetreatment of their addicts may also be learned in the course of the implementation of theinternational reporting system 18 or in the course of discussions of the United NationsCommission on Narcotic Drugs. The information received on such treatment in this way is,

however, often not complete and any-way not sufficient. The relevant data which we canobtain on this point by bilateral relations with other concerned governments are generallymuch more comprehensive. A reasonably complete and accurate knowledge of methodsemployed by other govern-ments, especially of advanced industrial countries, in the treatmentof drug abusers and in fighting the underlying social causes of drug addiction may be ofconsiderable aid in formulating our own policies. The special character of our society, which isdifferent from that of other industrial countries, must of course be taken into consideration injudging the applicability of foreign methods to our own problems.

THE GRADUAL EVOLUTION OF THE INTERNATIONAL DRUG TREATY SYSTEM

The basic motives of President Theodore RooseveIt's initiative in convening the Shanghai

Opium Commission of 1909 was not only a serious domestic narcotics problem 20 and theopium problem in the Philippines, which the United States had acquired as a result of theSpanish-American war; but also the pressures of American missionaries in the Far East, whowere concerned about the opium smoking situation in China and in Europeanpossessions.There cannot be any doubt that the European powers were not very anxious toinstitute effective measures of control or prohibition, because they were under the influenceof their local colonial administrators, who were under pressure from local groups with vestedinterests in continuation of opium smoking. This resistance to reform is reflected in theAgreement of 1925 concerning the Manufacture of, Internal Trade in and Use of PreparedOpium 21 and in the Agreement of 1931 for the Control of Opium Smoking in the Far East,22

whose provisions were very weak and completely inadequate for abolishing opium smokingwithin a reasonable period of time. This resistance is also mirrored in the weak provisions ofthe International Opium Convention of 1925 23 concerning "prepared" or smoking opium.The refusal of the Second Opium Conference of 1924/1925 to adopt stronger provisions wasone of the reasons why the American delegation withdrew from the Conference and why theUnited States never became a party to the Convention.24 It may be noted in this place that itwas one of the important features of American drug policy in the inter-war period to bringpressure to bear on the European powers having Far Eastern possessions to make more rapidprogress in abolish-ing opium smoking in these territories. It was the result of the pressure ofthe U.S. Government that in 1943 the British and Dutch Governments finally undertook toprohibit opium smoking in their Far Eastern possessions, which were then under Japanese

occupation.25 It was also due to the same influence particularly strong during World War IIthat the French Committee of National Liberation decided at the same time to adopt theprinciple of total prohi-bition of opium smoking in its Japanese occupied territories andundertook to carry out to this effect a program of action after liberation of thesepossessions.25

It may however be mentioned in this context that the prohibition of opium smoking adoptedin several territories and countries after the war did not turn out to be a great successeverywhere. While opium smoking greatly decreased, heroin addiction became an importantsocial problem in several places where opium smoking previously had been legal. 27

The present institutions of international drug con-trol evolved gradually. Their history showsthat the first international measures were taken only after it had been demonstrated thatdomestic control had to be supplemented by international action to be effec-tive. It points tothe difficulties in the way of a com-prehensive international regime which could not


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immediately be overcome but had to be solved step by step. These difficulties did not consistonly of the resistance of vested interests, which undoubtedly represented a serious obstacle.There were certainly powerful groups which were interested in the con-tinuation of opiumsmoking and coca leaf chewing and which opposed reform by arguing that these cen-turies oldhabits could not be abolished within a definite period of dine. It is also characteristic thatmisguided by their selfish interests they denied or belittled the harmful nature of these

abuses. It must also be admitted that a system of comprehensive con-trol of agriculturalactivities is much more difficult to implement than one over industrial enterprises; but suchcontrol over the cultivation of the poppy for the production of opium, of the cannabis plant forthe production of cannabis drugs, and of the coca bush is indispensable. The gradualism ofinternational narcotics control and drug control is also to some extent explained by the needto respond to scientific progress in the field of chemistry such as the de-velopment of newnarcotic drugs, the evolution of completely synthetic processes of making narcotic drugs and,in recent years, the growing use of "psy-chotropic" substances.28 Finally, it may also be men-tioned that the nature of international co-operation in the campaign against drug abuse,although not included in the provisions of the multilateral drug treaties, has undergone agradual change in conse-quence of better understanding of the causes of human behavior ofthe economic, social and cultural factors involved in the phenomenon of drug abuse and of theincapacity of a number of countries to make, without foreign aid, a full contribution to theinternational efforts. The various stages in the evolu-tion of international drug control lawprior to World War II follows:

The International Opium Convention of 1912.29

For the first time, narcotics control was made a matter of multilateral treaty law.3 The 1 9 1 2Con-vention introduced:

a system of licenses or permits of the making ("manufacture") of and trade in medicinalopium and those manufactured narcotics which it covered. Governments were, however, en-

titled to require instead only that these manufac-turers and traders make to the competentauthorities an official declaration that they engage in such manufacture or trade as the casemay be;

a system of licensing of the establishments and premises in which the manufacture of thesedrugs takes place. Governments were, how-ever, authorized to limit themselves to obtain-inginformation on these establishments and premises and to keep a register of them, instead ofrequiring the licensing;

the requirement of keeping records of the quantities of these drugs which were manufac-tured and of the various transactions of trade in them. This requirement needed not be ap-plied to the retail sale by authorized pharma-cists;

the prohibition, as regards the internal trade, of the delivery of these drugs to unauthorizedpersons;

the limitation of the manufacture, sale and use of these drugs to medical and legitimatepurposes ;31

a system of international reporting by govern-ments consisting of mutual communication,through the intermediary of the Dutch Ministry of Foreign Affairs, of the laws and regulationsenacted in implementation of the Convention, and of statistical information on trade."

Governments were also required to "use their best endeavours" to exercise some control over

the import and export of the narcotics in (a) above.33It may finally be mentioned that governments were bound to examine the possibility ofmaking the illegal possession qf raw opium, prepared opium, morphine, cocaine *and theirrespective salts a penal offense." As can be seen, the 1912 Convention con-tained many of the


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basic principles of control which are still valid, although its provisions on these mat-ters werenot always binding and in several instances formulated in more general and vague terms thanin the later narcotics treaties. It may also be men-tioned that none of its provisions referred tococa leaves or cannabis drugs.35 The Convention's weak provisions on the control of rawopium and prepared opium are not discussed because they are of no importance for thepurposes of the present paper.3 It may only be recalled that the production of raw opium, the

manufacture of prepared (smoking) opium and the trade in and use of these two kinds ofopium were not limited to medical and legitimate purposes.

The Covenant of the League of Nations

The covenant, which entered into force on 10 January 1920, provides in its article 23,paragraph(c) that, subject to and in accordance with the provisions of international conventions, theMem-bers of the League will entrust this Organization with the general supervision overexecution of agree-ments dealing with traffic in opium and other dan-gerous drugs. Thisprovision was very broadly inter-preted in the League's practice. It represents a veryimportant step in the evolution of international co-operation in the field of drug control

because it entrusted an international worldwide organization of general competence with thisfunction. An organiza-tion of this kind is able to deal with many aspects of the drug problemfalling within the scope of many different disciplines as an organization having spe-cializedfunctions would not be able to do. This consideration is probably the reason why after WorldWar II the family of nations entrusted the United Nations with the principal role of drugcontrol and not a specialized organization, such as the World Health Organization, despite itsimportance in the drug field. The Charter of the United Nations does not expressly refer todrug control. It was, however, made quite clear at the San 'Francisco Conference whichadopted the Charter that the phrase "inter-national economic, social, health and related prob-lems", for which the United Nations was made com-tent," also covered international co-

operation in the suppression of the traffic in, and of the abuse of, opium, other narcotics andother dangerous drugs.38 The parties to the Single Convention on Narcotic Drugs, moreover,have expressly recognized the competence of the United Nations with respect to theinternational control of drugs." It is also im-portant that this kind of organizationalarrangement made it possible that not only organs charged exclu-sively with drug functionscould deal with problems of drug abuse but that also such important bodies as the pastAssembly and Council of the League and the General Assembly, Economic and Social Coun-ciland Trusteeship Council could be called upon to include questions of drug abuse in theiragenda.

The League's Assembly, by a resolution adopted at its first session on 15 December 1920,

established the League's "Advisory Committee on Traffic in Opium and Other DangerousDrugs", a body com-posed of government representatives.4 The Assembly thus created the first internationalorgan of drug control. The Committee is the predecessor of the present United NationsCommission on Narcotic Drugs.

The International Opium Convention of 1925

This convention strengthened some of the control rules established by the Convention of1912. It re-quired Parties to /imit exclusively to medical and scientific purposes themanufacture, import, sale, distribution, export and use of medicinal opium and manufacturednarcotic drugs (but not of raw opium, prepared opium, cannabis, cannabis resin and coca

leaves) .41The system of permits and licenses governing manufacture and all phrases of trade inmanufactured narcotics and the requirement of licensing the estab-lishments and premises in


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which the manufacture takes place was made mandatory. The requirement of keeping recordswas extended to retail traders (or distributors), who were permitted, however, to file andpreserve the medical prescriptions instead.42Parties were not only bound to prohibit, as regards their internal trade, the delivery of thecontrolled manufactured drugs to unauthorized persons but also the possession of thesesubstances by such persons.'"

The obligation of governments to furnish statisti-cal information was defined in detail. Thedata re-quired 44 were basically very similar to those required under the Single Conventionon Narcotic Drugs. They also included information on the production of opium and coca leaves(but nat of cannabis or can-nabis resin), on the confiscation of illicit import and export of allsubstances to which any of the Con-vention's provisions applied, including raw opium,prepared opium, cannabis, cannabis resin and coca leaves, and on the import and export of allthese substances.45

The Convention of 1925 introduced as a legal obligation the application of the importcertificate and export authorization system" which is nearly the same as that incorporated inthe Single Conven-tion.47 Provision was made for authority of an international organ 48 to

place under international control additional drugs, which were "liable to similar abuse andproductive of similar ill-effects"4 as the manufactured drugs already controlled by the Con-vention. These decisions were binding only on those parties which expressly accepted them.The same organ could also exempt from the con-trol of the Convention preparations ofcontrolled manufactured narcotics which "cannot give rise to the drug habit" because of themedicaments with which the narcotic drugs are compounded and which preclude therecovery of these drugs.50

The Convention also established the Permanent Central Board," an organ which was chargedwith some semi-judicial functions and was composed of irulependent experts.51 The Boardwas authorized not only to scrutinize the statistical information which it received from

governments 52 but also to examine any matter which was drawn to its attention by a party tothe Convention and which appeared to re-quire investigation.53 It was charged with watchingcontinuously the international trade in narcotics.54

The Convention also introduced a system of sanc-tions. If information at its disposal led theBoard to conclude that excessive quantities of any substances " covered by the Conventionwere accumulating in any country or that there was danger of that country becoming a centreof the illicit traffic, the Board was authorized to ask for an explanation from that coun-try. If noexplanation were given within a reasonable period or time if it were unsatisfactory, the Boardwas granted the right to call to the attention of the Parties to the 1925 Convention and of theCouncil of the League of Nations that matter and to recom-mend that no further exports of all

or some of the substances covered by the Convention should be made to the offending countryuntil the Board reports its satisfaction with the situation.56 The sanc-tion provisions of theSingle Convention 57 follow in part the rules of the sanction system of the 1925 Convention,particularly by granting the present International Narcotics Control Board the right torecommend inter alia the discontinuation of the ex-port of narcotic drugs to an offendingcountry or tenitory. For the purpose of evaluating such a pro-vision, it may be mentioned thatin the 1920's the illicit traffic was supplied largely with drugs diverted from the legal tradewhile at present there is no significant diversion of manufactured narcotic drugs from thelegal trade into illicit channels. Even opium, after it has been controlled by the national opiumagency, is not diverted in important amounts from the licensed legal trade into the illicittraffic; but rather from the cultivator of the poppy." Therefore, in the 1920's, discontinuation

of legal export of narcotic drugs to a country could be an effective means of curbing the illicittraffic.

The Convention of 1925 also expressly authorizes the application of its sanction provisions to


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non-parties.59 The application of some provisions to non-parties has become an importantfeature of the inter-national narcotics regime.

The authors of the Convention also recognized the need for adequate punishment of illicittraffickers and the desirability of punishing acts committed with-in their jurisdiction for thepurpose of assisting the illicit traffic abroad.6

The Convention of 1931 for Limiting the Manufacture and Regulating the Distributionof Narcotic Drugs.61

This established a system of limiting the amounts of the supplies of manufactured narcoticdrugs 62 to the quantities needed for medical and scientific purposes. This system wasintended to apply to each country and territory and consequently also to the world as a whole.The limits of narcotics supplies which each country or territory 63 was entitled to obtain byboth manufacture and import were com-puted on the basis of estimates of its narcotics re-quirements 64 which it had to furnish for each con-trolled manufactured narcotic drug to thePermanent Central (Opium; Narcotics) Board by 1 August of the year preceding that to whichthe estimates .re-ferred.65 Each country was entitled to revise its own estimates or those of its

territories 63 by supplemen-tary estimates.66A special organ was created for the international administration of this estimate system: the"Super-visory Body" 67 which consisted of four members who were in this capacity notGovernment represen-tatives." This organ was required to establish, as far as possible, theestimates for any country or territory whether bound by the 1931 Convention or not, whosegovernment had not furnished them in time 69. Such estimates established by the SupervisoryBody had the same legal effect as those sent by governments; but they could be changed if thegovernments, which had failed to submit estimates, did so.

The Supervisory Body was charged with examining the estimates with a view toward assuringthat nar-cotics supplies were limited to medical and scientific purposes.7 It had also to keep

in mind that the sup-plies should be sufficient for such needs; this was not expressly stated,but certainly implied, in the Con-vention. The Supervisory Body was also entitled to requiregovernments to furnish further information 7' and explanations and, with a government'sconsent, to amend any estimate.72 The Supervisory Body was required to send togovernments an annual statement containing the estimates for each country or terri-tory, andan account of the explanations given or required and its observations and critical comments.This statement also enabled the governments to ob-serve their manufacturing and importlimits. Supple-mentary statements were also issued quarterly by the Supervisory Body toshow revisions in the estimates.

The Permanent Central Board was given two func-tions intended to assure that countries or

territories 63 do not exceed their narcotics supply limits:(a) It was bound to order the discontinuation of exports of narcotic drugs to a country orterritory, which imported or authorized to import drugs in excess of its import limit.73

(b) It was required to prepare a yearly statement showing each country's estimates, andstatistical figures 74 to show whether any supply limits had been exceeded. If the statementindicated that a Party had or might have failed to carry out its obliga-tions, the Board wasentitled to ask for explanations from such a Party and supply the sanction provisions of article24, paragraphs 2 to 7 of the 1925 Con-vention.75

Since governments were the masters of their esti-mates of drug requirements and since they

could not be changed without their consent, it follows that the regime of limitation based onestimates, which was introduced by the 1931 Convention, was a system of voluntary co-operation subject to suggestions and criticism by the Supervisory Body. In the great ma-jorityof cases, however, governments accepted the Supervisory Body's suggestions.


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This summary of the estimate and limitation sys-tem of the 1931 Convention has been ratherexten-sive because it is basically the same as that incor-porated in the Single Convention onNarcotic Drugs, 1961.76 The latter, however, applies to controlled manufactured narcoticdrugs and also opium, cocoa leaves, cannabis and cannabis resin."

The Convention of 1931 advanced the interna-tional reporting system by requiringgovernments (a) to furnish to the Secretary General of the League of Nations an annual reporton the working of the Con-vention in accordance with a form drawn by the League's AdvisoryCommittee on Traffic in Opium and Other Dangerous Drugs;78 (b) to communicate to eachother, through the Secretary-General of the League, important cases of the illicit traffic;78 and(c) to notify to the Secretary General of the League the names and addresses of persons orfirms authorized to manufacture narcotic drugs and whether the Manufacture was permittedfor domestic needs only or also for exports.80

Furthermore, governments were required to furnish to the Permanent Central Board statisticson the amounts of drugs used by manufacturers and whole-salers for the compounding ofexempted preparations, that is, "preparations for the export of which enport authorizationsare not required." 81

The information mentioned under (a) and (b) and that on compounding exemptedpreparations is also expressly required by the Single Convention.82 The information referredto under (c) is now re-quested by the Commission on Narcotic Drugs under its authoritygranted by the Single Convention to require Parties to furnish to the Secretary General of theUnited Nations such information as it may request as being necessary for the performance ofits functions."

The Convention of 1931 also required governments to apply the provisions of the 1925Convention to drugs they manufactured. In so doing, it distinguished between drugs in Group I84 and Group II." All these provisions applied to Group I, but only some applied to Group 11.86

The retail trade in group II drugs was exempted from the system of licenses and permits,which applied to manufacturers, whole-salers and international traders; but not to retailtraders, who also were not bound to keep records" of their acquisitions and sales and couldsupply or dispense such drugs without medical prescriptions. In fact, such retail trade wasexempted from the sys-tem of international narcotics control 88 andas far as the 1931Convention was concernedanybody could freely engage in the retail sale of Group II drugs. Itmay however be mentioned that governments applied to these drugs a much more strictregime than was prescribed by their treaty obliga-tions. Many Governments exempted them,however, from the requirement of a medical prescription as they also may do under the SingleConvention.89 To some extent, it may be due to this practice that Group Il drugs did notappear in important quan-tities in the international illict traffic, although weak international

control continued until the Single Con-vention introduced a more strict regime for Group IIdrugs and substances of a similar degree of harmful-ness, listing them in Schedule 11.9

In accordance with a generally accepted interpretation of the relevant provision of the 1931Convention,91 preparations 'of Group II drugs "adopted to a normal therapeutic use" wereexempted from the 1925 Convention, that is, from all its administrative controls, including theimport certificate and export authorization system.92

The 1931 Convention represented another ad-vance in our field, since contrary to earliernarcotics treaties, it applied control measures not only to drugs which were dangerous 93 bythemselves, but also to substances which were "convertible" 94 into such drugs. Drugs"capable of producing addiction" were placed in Group I, sub-group (a), while drugs not

"capable of producing addiction," but convertible into such drugs, were placed in Group I, sub-group (b) if they were of no or only of limited medical use, and in Group II if they were widelyused in medi-cine.95 Drugs in sub-group (b) of Group I were sub-jected to the same strict


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regime as drugs in sub-group (a). In providing for a lenient regime for drugs in Group II theauthors of the 193 1 Convention were guided by consideration of the fact that availability ofwidely employed useful drugs of relatively little abuse liability should not be made toodifficult, and that in establishing controls both the need for pre-vention of abuse and forfacilitating legitimate use should be taken into account.

In order to exercise control over the narcotics trade, governments must require participants inthis trade to make periodic reports to their domestic con-trol offices. This obligation wasalready implied in the statistical provisions of the 1912 96 and 1925 97 Conventions becausegovernments would otherwise have not been able to obtain the information. which theyneeded for their international statistical reports. This applies also to the obligation ofgovernments, introduced by the 1931 Convention, to make annual reports on the working ofthis treaty.98 The Convention of 1931 also extended this domestic reporting system byimposing upon governments the obli-gation to require manufacturers of narcotic drugs tosubmit domestic quarterly reports on the movement and stocks of raw materials " and drugsin their factories.100

A very important step forward was taken by the authors of the 1931 Convention when they

author-ized an international organ '9' to place, with binding effect on parties to the treaty,additional drugs under international control. This authority was however limited to twochemical groups, namely to products obtained from any of the phenanthrene alkaloids ofopium or from the ecognine alkaloids of the coca leaf. Such an international authority hassince remained a permanent feature of the international drug regime. The Paris Protocol of1948 '92 extended the right of an international organ, the World Health Organization, to placeunder international control, with obligatory effect upon governments, additional drugs orsubstances to any chemical structure which were "liable to the same kind of abuse andproduc-tive of the same kind of harmful effects as the drugs specified in article 1, paragraph 2"of the 1931 Convention."' In other words, the Protocol authorized the World Health

Organization to place under the regime of the 1931 Convention and thus under pro-visions ofthe 1925 Convention applicable to manufactured drugs,104 any substance which hadmorphine-like or cocaine-like effects or which was "conver-tible"' into such a substance. Thisauthority did not apply, however, to raw opium, medicinal opium, coca leaf, cannabis orcannabis like drugs.'106

The Single Convention on Narcotic Drugs, 1961 'transferred the authority of placing additionaldrugs under international control from the World Health Organization to the Commission onNarcotic Drugs, which in this capacity, however, must either accept or reject, but not modify,the recommendation of the World Health Organization. In placing a drug under internationalcontrol, modifying the regime of a controlled Arug or decontrolling a drug, the Commission

must either act "in accordance with the recommen-dation of the World Health Organization"or not act at all.107 The authority of the Commission to place under international controladditional substances applies to any substance of any chemical structure. The Commissionmay apply this right, however, only to a substance which the World Health Organization hasfound to be "liable to similar abuse and produc-tive of similar ill effects as the drugs inSchedule I or II" or to be "convertible" 94 into an already con-trolled drug.'" Since cannabisand cannabis resin are included in Schedule I,'" the Commission, contrary to the World HealthOrganization's authority under the 1948 Protocol, may also place under international controlcannabis-like drugs of any chemical structure. As understood by the participants of thePlenipotentiary Conference of 1961, which adopted the Single Convention, this treaty did notgrant authority to place under its regime amphetamines, barbiturates and tranquilizers. There

appears, however, to be no obstacle to placing under the Single Convention hallucinogens,such as LSD, mescaline, tetrahydro cannabinols or psilocybine."

The Vienna Convention of 1971 on Psychotropic Substances "1 would when in force also


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provide for authority of the Commission on Narcotic Drugs to place additional "psychotropic"substances under its control. This authority would not be limited to par-ticular chemicalgroups, but would extend to sub-stances of any chemical structure. It would apply to anysubstance which the World Health Organization finds to be capable of producing dependenceand certain types of mind alteration "2 or finds capable of similar abuse and similar ill effectsas a substance already controlled by the Vienna Convention. The authority to extend that

Convention's control would not apply to a substance already under international control, thatis, a substance already controlled by the Single Convention."3 The Commission would have totake into account the findings and views of the World Health Organization; but incontradistinction to the provisions of the Single Convention, its actions would not be limited toacting in accordance with the recommendation of the World Health Organization or of notacting at all. Although the World Health Organization's assessment would be determinative asto medical and scientific matters, the Commission, bearing in mind economic, social, legal,administra-tive and other factors, could place the substance under a regime which might bedifferent from that recommended by the World Health Organization.114

The Commission's decision to place an additional "psychotropic" substance under

international control or under a more onerous regime would also have a more limited bindingeffect on parties than the corresponding decisions of the competent international organs haveunder the 1931 Convention, the 1948 Protocol or the Single Convention. Parties to the ViennaConvention, by a written notice to the Sec-retary General, would be able to free themselvesfrom some of the control provisions.'"

The Convention of 1931 is also the first of the narcotics treaties which provided forprovisional con-trol of a drug pending the final decision on its con-trol status. It was foundthat drugs, particularly those which produced physical dependence,"6 were sometimes widelyabused prior to their international control and that such a situation was very difficult tocorrect once it existed. Therefore, the authors of the 1931 Convention subjected automatically

to mea-sures of prohibition "7 or of strict control "8 all products obtained from any of thephenanthrene alkaloids of opium or from the ecgonine alkaloids of the coca leaf which had notyet been included in Group I (sub-group (a) or (b) ) "9 or in Group II. Provisional controlapplied only to substances of two limited chemical groups, which could possess the dangerousproperties which the 1931 Convention sought to control. It was later found that the chem-icalstructure of possibly dangerous drugs could not be foreseen and it was recognized automaticpro-visional control on the pattern of the 1931 Conven-tion was infeasible. It is superfluous,therefore, to discuss its details in the present paper."2

The protocol of 1948 authorized the Commission on Narcotic Drugs to place, with bindingeffect on governments, provisionally under the regime ap-plicable to drugs in Group I, a

substance whose international control status was pending before the World HealthOrganization."21 Similarly, the Com-mission on Narcotic Drugs, under the Single Con-vention,may decide that the parties must apply provisionally to a substance, which has not yet beensubjected to the Convention's control, all control measures applicable to drugs in Schedule Ipending its decision on the international control status of that substance,122 that is, pendingthe World Health Organization's finding on the properties of the sub-stance and itsrecommendation, which the Commis-sion requires for its final decision.'23 Moreover, theSingle Convention obligates parties to examine in the light of all available information thepossibility of the provisional application of all control measures governing drugs in Schedule Ito a substance whose possible control is the subject of a procedure under article 3 of the

Single Convention.'24The Vienna Convention on Psychotropic Substances, on the other hand, would not provide fora decision of an international organ which would require parties provisionally control a


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substance. How-ever, parties would have to examine, in the light of all information available tothem, the possibility of provisional application of the control regime govern-ing substances inSchedule I or II, pending the procedure determining whether a substance should be controlledor if controlled, under which regime it should be placed. The parties would have thisobligation of examining the possibility of applying such provisional control if the informationtransmitted would indicate that the properties of a substance justify its subjection to one of

the two more strict regimes 125 of the four control systems which would be introduced by theConvention.126 It is also important to note that the Convention of 1931 required governmentsfor the first time to create and maintain a "special administration" for the purpose of applyingits provisions, for regulating, supervising and controlling the trade in the controlled drugs, fororganizing the campaign against drug addiction by taking all useful steps to prevent itsdevelopment and to suppress the illicit traffic.127 It was understood by the participants of theConference which adopted die Convention that the term "special administration" does notnecessarily mean a "single authority".128 'The constitutional, legal and administrativesystems of many countries would not allow the establishment of a single authority for theimplementation of all the provisions of the international narcotics regime. The Conferencerecommended, however, that governments consider the desirability of establishing a singleauthority.129 In implementing their obligations regarding the maintenance of a "specialadministration", governmentsas they still must under the corresponding provision of theSingle Convention 130"had to make some special administrative arrangements to providefor liaison among their various domestic agencies charged with functions of narcotics controlto coordinate the work of these agencies, nationally, and internationally.

The Single Convention also requires governments to maintain a "special administration" forthe purpose of implementing its provisions.130 When including this provision in theConvention the delegates to the Conference made it quite clear that they used the term"special administration" in the same sense as the phrase was used in the 1931 Convention.131

The Vienna Convention on Psychotropic Drugs would not make it mandatory to maintain a"special administration" for the implementation of its provisions. It declares it only to bedesirable to establish and maintain such an administration. It states that this administrationmay be the same as or work closely with the special administration.132 The Conference whichadopted the Convention of 1931 was also fully aware of the particularly dangerous characterof diacetylmorphine (heroin). The Convention placed the international trade in heroin underparticular restrictions 133 which were not taken over, however, by the Single Convention. TheConference also recommended that each government should examine in conjunction with themedical profession the possibility of abolishing or restricting the use of heroin.134 Theprinciple of discouraging the medical use of drugs, which are held to be very dangerous and of

little if any medical value, is found in the Single Convention. This Convention includes suchdrugs in Schedule IV. It requires parties: 135

To adopt any special measures which in their opinion are necessary in view of the particularlydangerous properties of the drugs in this Schedule.

If in their opinion the prevailing conditions in their prespective countries render such ameasure the most appropriate means of protecting public health and welfare to prohibit theproduction,136 manufacture, export and import of, trade in, possession or use of drugs inSchedule IV except for amounts which may be necessary for medical and scientific researchonly.137

The authors of the Vienna Convention on Psychotropic Drugs accepted a similar principle. Itwould prohibit all use of substances in its Schedule I, such as LSD, mescaline or tetrahydrocannabinols except for scientific and very limited medical purpurposes.138 Two other


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provisions of the Convention of 1931 may still be mentioned because they were modified andadopted by the Single Convention: the requirement that the narcotic drug content be shownon the label under which that drug or any of its preparations is offered for sale 139 and theobligation to prevent the accumulation of quantities of raw material, such as opium, cocaleaves and poppy straw, in the possession of manufacturers in excess of those required for theeconomic conduct of business.140 The Single Convention obligates governments to prevent

such an excessive accumulation of narcotic drugs 141 and poppy straw by drugmanufacturers, state enterprises engaged in the drug trade and other drug traders ordistributors. This obligation however does not cover the accumulation of excessive quantitiesof drugs in Schedule II by retail traders or distributors.142

The Single Convention on Narcotic Drugs does not impose specific restrictions on the disposalof seized drugs as article 18 of the 1931 Convention does.143

The 1936 Convention and the Evolution of Penal Law in the Field of International Drug

Law.144

The illicit traffic in narcotic drugs is often international and carried on by internationally

organized groups. This is particularly true in our country where the illicit traffic in narcoticdrugs, other than "marihuana", is nearly exclusively supplied from abroad.

In order to make penal law an effective weapon in the fight against the illicit traffic, severalprinciples must be adopted:

The penalties meted out to illicit traffickers must be adequate 145 sufficiently severe 146 tohave the desired deterrent effect; but a penalty which may be adequate in one country may beeither too severe or too lenient in another country. However, it is suggested that punishmentby imposition of fines would alone never be an adequate punishment for serious crimes ofillicit 'trafficking because the profit which can be derived from it is too great to deter apossible offender by the threat of a fine. Therefore, punishment by imprisonment is

prescribed by the Convention of 1936 for the offenses of the illicit traffic.146 This type ofpunishment is also required by the Single Convention for serious crimes of the illicittraffic."147 The Vienna Convention on Psychotropic Substances would also obligate parties toso punish serious illicit traffickers, except if they were abusers of psychotropic substances,who could be required to undergo measures of treatment, education, aftercare, rehabilitationand social reintegration, instead of punishment. The Protocol of 1972, amending the SingleConvention on Narcotic Drugs, 1961, would also authorize governments to replacepunishment by such measures as treatment and rehabilitation for abusers of narcoticdrugs.148

It is also desirable that all forms of participation in the illicit traffic,. including accessory acts,con-spiracy, preparatory acts and attempts, should be subject to penal sanctions. The 1936Convention requires the punishment of certain acts of the illicit traffic, including conspiracyand attempts, but it leaves the obligation to punish preparatory acts to national law.149 TheSingle Convention is however weaker on this point. It requires each party, subject toconstitutional limitations, to punish intentional participation in any of the acts of the illicittraffic, conspiracy and attempts to commit them and preparatory acts. The Vienna Conventionon Psychotropic Drugs follows the Single Convention. Both of these treaties mention, however,as a form of participation financial operations in connection with the offenses of the illicittraffic. The Parties to the Vienna Convention would however be entitled to substitutemeasures of treatment, education, after-care, rehabilitation and social integration for

punishment of intentional participation, conspiracy, attempts or preparatory acts if theoffenders would be abusers of psychotropic substances.150

It will be noted that illicit "cultivation" and "production" are not included by the 1936


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Convention as punishable offenses, while the Single Convention expressly provides thatgovernments should punish them. This is due to the fact that the narcotics treaties in force in1936 did not yet provide for international control of cultivation and production while theSingle Convention does.151 Article 5 of the 1936 Convention stipulates, however, thatgovernments whose national law regulates cultivation and "production" with a view toobtaining narcotic drugs should severely punish contraventions of such law. The Vienna

Convention does not enumerate the various acts which should be made punishable, but usesinstead a general formula: "any action contrary to a law or regulation adopted in pursuance ofits (i.e. the party's) obligations under this Convention." The Convention also does not controlcultivation of plants for the production of psychotropic substances. It also does not regulatespecifically "production". Such "production" (the separation of controlled psychotropicsubstances from the plants from which they are obtained) would be "manufacture" accordingto the Vienna Convention and if illicit, would be a punishable offense under the generalformula referred to above.

In contradistinction to the 1936 Convention, the Single Convention supplements its list of actswhich a party is required to punish by the following general formula: "and any other action

which in the opinion of such Party may be contrary to the provisions of this Convention."It is also important that heavy crimes of the illicit traffic do not escape prosecution orpunishment or both on the technical ground of lack of local jurisdiction in the country inwhich offenders are found. It is necessary, therefore, that serious crimes of illicit traffic shouldbe extraditable and, although com-mitted abroad should be prosecutable in the country inwhich the offender were found, if extradition could not be accomplished.

The 1936 Convention requires countries which do not extradite their citizens, to prosecuteand punish their nationals who have committed offenses of illicit traffic abroad. It alsorequires countries to prosecute and punish a foreign illicit trafficker, who has committed hisoffense abroad and whom they find in their territory, provided that his extradition has been

requested and could not be granted for a reason independent of the offense itself and that thelaw of the country of refuge considers prosecution for offenses committed abroad byforeigners admissible as a general rule.152 The 1936 Convention also stipulates that theoffenses of the illicit traffic shall be deemed to be included as extradition crimes in anyexisting or future extradition treaty between parties to that Convention.153 It requires, inaddition, that parties, who do not make extradition conditional on ihe existence of a treaty oron reciprocity, shall recognize these offenses as extradition crimes.154

These provisions concerning prosecution and punishment of crimes committed abroad andthe inclusion of the offenses of illicit traffic as extradition crimes in past and future extraditiontreaties are probably among the principal reasons why the 1936 Convention has been

accepted only by a relatively small number of countries. Some countries are not willing andpossibly constitutionally unable to limit in this way their treaty making authorities. More-overa number of states, as a general principle, limit their jurisdiction to crimes committed on theirown territories. They are guided by the consideration that the trial of crimes committedabroad would often not be conducive to good administration of justice because it mightprevent defendants, for financial or other reasons, from obtaining witnesses or other evidenceneeded for their exculpation. These considerations explain why the provisions of the SingleConvention on prosecution of crimes committed abroad and also on extradition are weakerthan those of the 1936 Convention.

The Single Convention requires each party, subject to constitutional limitations and domestic

law, to prosecute serious offenses committed abroad if the offender, whether a national or aforeigner, is found in its territory and if his extradition is not acceptable to a country whichwould have jurisdiction because the offense was committed within its borders or because the


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offender is its national. The party, in whose territory the offender is found, is also not bound toprosecute if the offender has already been prosecuted and judged in another country.155 It issuggested, however, that it would be incompatible with the spirit of the Single Convention if aparty gives refuge to a trafficker who has been convicted abroad but has not yet served hissentence. A party, subject to constitutional limita-tions and domestic law, would have to adoptsuch measures as it could take to prevent such a situation, either by extraditing the fugitive, by

trying him or by expelling him. The Vienna Convention contains the same provision as theSingle Convention with respect to the prosecution of serious offenses committed abroad.156

The provisions of the 1936 Convention regarding extradition were taken over by the SingleConvention, but deprived of their obligatory character. The Single Convention only declares itto be desirable that the offenses whose punishment it requires be included as extraditioncrimes in existing and future extradition treaties between its parties, and also that theseoffenses be recognized as extradition crimes between parties, which do not make extraditionconditional on the existence of a treaty or on reciprocity.157 The Vienna Convention containsthe same non-obligatory provision.158

The Protocol of 1972, amending the Single Convention on Narcotic Drugs, 1961, would correct

this weakness with respect to extradition of illicit traffickers. 159 The Protocol 160 wouldreplace the extradition rules of the Single Convention by stipulating:

that each of the offenses which are punishable under the terms of the Single Conventionshall be deemed to be included as an extraditable offense in any extradition treaty existingbetween parties and that parties undertake to include these offenses as extraditable offensesin every extradition treaty to be concluded between them;

that a party which makes extradition conditional on the existence of a treaty may, at itsoption consider the Single Convention as amended as legal basis for extradition in respect ofthe above mentioned offenses if it receives a request for extradition from another party with

which it has no extradition treaty; and that parties which do not make extradition con-ditional on the existence of a treaty shallrecognize those offenses as extraditable offenses among themselves.161

The Protocol would authorize a party to refuse extradition if it would consider that the offensein question is not sufficiently serious. The 1936 Convention has the same provision.162

It is certainly also of greatest importance that countries make the necessary administrativearrangements to coordinate the activities of their various agencies engaged in the fight againstthe illicit traffic and to facilitate close cooperation and expeditious communications withforeign enforcement authorities. The Convention of 1936 required each party, "within the

framework of its domestic law," to establish a "central office" for domestic coordination andinternational cooperation.163 A country whose government was federal in character, orwhere the executive authority of the government was distributed between central and localgovernments, was expressly authorized to carry out, in conformity with its constitutional oradministrative systems, the task of supervising and coordinating the work of its differentagencies charged with the campaign against illicit traffic.164

Correspondingly, the Single Convention does not specifically require the establishment of a"central office." It requires parties, having due regard to their constitutional, legal andadministrative systems, to make arrangements at the national level for coordination ofpreventive and repressive action against illicit traffic, to assist each other and to co-operate

with each other and with the competent international organizations, in the campaign againstthe illicit drug trade, to assure an expeditious conduct of cooperation with the enforcementagencies of other countries and to provide for an expeditious international transmission of


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legal papers required for the prosecution of traffickers in other countries.165 The Single Con-vention also states that parties "may" usefully designate an appropriate agency responsiblefor co-ordination of preventive and repressive action at the national level.166 One mayconclude that the organizational provisions of the Single Convention con-cerning the fightagainst illicit traffic are much more vague and considerably weaker than those of theConvention of 1936. The provisions of the Vienna Convention are similar to those of the Single

Con-vention.167

The Convention of 1936,168 the Single Conven-tion 169 and the Vienna Convention 170contain very similar provisions requiring the seizure and confiscation of the drugs,(psychotropic substances), substances and equipment (instruments) intended for theCommission of the punishable offenses concerned.171

The United States of America refused to become a party to the 1936 Convention. In astatement 172 of the U.S. delegation to the Conference explaining the American refusal to signthe Convention, reference was made to the failure of the 1936 Convention to provide for thepunishment of "illegal cultivation and gathering of cannabis" 173 and to the fact that theConvention was "inadequate as far as cannabis was concerned" 174

It follows from the preceding comparison of the penal provisions of the 1936 Convention andof the Single Convention that the penal provisions of the former treaty are considerablystronger than the provisions of the Single Convention. This is the reason why the 1936Convention is the only drug treaty preceding the Single Convention which is not replaced bythe latter as between parties thereto.175

THE SITUATION AT THE END OF WORLD WAR II

The evolution of international drug control prior to World War II had led to the establishmentof a comprehensive international regime governing manu-factured narcotic drugs with theresult that illicit traffic in such drugs could not obtain its supplies in significant quantities

from legal sources. Clandestine factories, which could acquire opium or coca leaves withrelative ease, had taken the place of legal manufacturers as suppliers of the illicit traffic.

While the international control of manufactured drugs as it existed on the eve of World War IIis basically the same as it is today, the international efforts prior to the War had not yet beencompleted and had not yet resulted in the conclusion of a treaty.176 The control of theproduction of coca leaves and of cannabis and cannabis resin 177 was considered unrealisticprior to World War II. However, it was generally recognizedas the League's efforts toelaborate a comprehensive system of international control of the production of opium showthat a successful fight against the illicit traffic in opiates, such as morphine and heroin,required an effective control of the production of opium. After World War II the need for the

international control of the cultivation of the coca bush and of the production of cannabis andcannabis resin was also accepted by the family of nations.

Moreover, in the years immediately preceding World War II, scientific progress in the field ofchemistry had created a new problem with which the international society had to deal.Chemists succeeded by a fully synthetic process to manufacture a drug (pethidine) which wascapable of producing addiction, that is, physical as well as psychological dependence, andwhich was not obtained from agricultural raw materials, such as, opium, poppy straw, cocaleaves, cannabis or cannabis resin. Since the late 1930's, a great number of "synthetic" drugshave been developed which are either addiction-producing themselves or readily convertible"into addiction-producing drugs. Prior to World War II, no treaty provisions existed by which

such "synthetic" drugs could be placed under the full international narcotics regime in theConventions of 1925 and 1931.178

The treaties concluded prior to World War II had also not prohibited opium smoking, opium


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eating, coca leaf chewing and the non-medical use of cannabis and cannabis resin.

The disappearance of the League of Nations whose organs exercised the internationalfunctions of narcotic control created another problem.179

Six narcotics treaties had been concluded befor World War II. A codification of the treaty lawthe field of narcotics control and a simplification I the international control machineryappeared to be a desirable aim.

It seems, however, that the weakness of contro of drugs in Group II of the 1931 Convention w.not considered to represent an important problem probably because governments applied amore strie regime to those drugs than would have been r-quired by their treaty obligationsand because thes drugs did not appear in the international illicit traffi in significant quantities.

This situation as it existed at the end of World War II explains the basic features of theprogram of work which the United Nations, either through its organs or throughplenipotentiary conferences meeting under its auspices, carried out from 1946 to 1961, theyear in which the Single Convention on Narcotic Drugs was adopted.180

Some of the tasks which resulted from the post-war situation appeared to be urgent andcapable of immediate implementation, others appeared to be less urgent or in any case torequire more time to carry them out.

The Urgent Tasks Considered Capable of Immediate Implementation:

Transfer of the international functions of narcotics control from the organs of the League of

Nations to the organs of the United Nations and to the World Health Organization

This was accomplished by the Protocol signed at Lake Success on 11 December 1946,amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at TheHague on 23 January 1912, at Geneva on 11 February 1925 and on 19 February 1925 and 13

July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936.181' In particular,the League's Advisory Committee on Traffic in Opium and Other Dangerous Drugs wasreplaced by the United Nations Commission on Narcotic Drugs. The functions of the HealthCommittee of the League of Nations and of the Office international d'hygiene publique 179were transferred to the World Health Organization.182 The Permanent Central Board 183 andSupervisory Body 184 of the League continued to function until March 2, 1968 when bothwere replaced by the present International Narcotics Control Board in accordance with ct:'.,cle45, paragraph 2 of the Single Convention and the resolution 1106 (XL) of the Economic andSocial Council. Their appointive bodies were replaced by United Nations organs and the WorldHealth Organization.

Extension to "Synthetic Drugs" of the International Control Regime of the 1931 Convention andthus of Provisions of the 1925 Convention governing manufactured narcotic' drugs

This was done by the Protocol 195 signed at Paris on 19 November 1948 bringing underinternational control drugs outside the scope of the Convention of 13 July 1931 for Limitingthe Manufacture and Regulating the Distribution of Narcotic Drugs, as amended by theProtocol signed at Lake Success on 11 December 1946.

Establishment of a Comprehensive System of Control of the Cultivation of the Opium Poppy for

the Production of Opium and of the Production of Opium.

The effective control of the production of opium was considered to be extremely urgent in theearly years of the United Nations Commission on Narcotic Drugs. Moreover, in the yearspreceding the out-break of World War II, the League's Advisory Committee on Traffic in Opiumand Other Dangerous Drugs had done a considerable amount of preparatory work. A "Draft ofthe Principal Articles Which Might be Embodied in a Convention for Limiting and Controlling


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the Cultivation of the Opium Poppy and the Production of Raw Opium and Controlling OtherRaw Materials Used in the Manufacture of Opium Alkaloids" had been prepared.186 It wasdecided therefore not to wait to establish control of opium production until it could beincorporated in the planned codification treaty, which would include all drug treaty law andwould fill the gaps in the existing drug control system. It was resolved to conclude an interimagreement for the purpose of introducing this urgent control."187

The Commission first considered the creation of an international opium monopoly which wasfound to be unacceptable to most countries. This plan was ill-conceived because it would haveimposed heavy bureaucratic burdens on the international legal trade, which no longersupplied illicit channels significant amounts of opium while it could not have preventeddiversion by the cultivators of part of their opium crops. The efforts of the Commission onNarcotic Drugs to introduce, as an interim measure, an effective system of internationalcontrol of opium produc-tion finally led to the United Nations Conference of 1953 which wascalled by the Economic and Social Council 188 and which adopted the Protocol of 23 June1953 for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of,international and Wholesale Trade in, and Use of opium.189

This Protocol, whose preparation was carried out in great haste, contains a number of veryuseful provisions, some whose value is controversial, and some omissions,190 which can bedue only to oversight. The following provisions of the Protocol require mentioning eitherbecause they constituted progress in the field of drug control, which in the same or in a verysimilar form were taken over by the Single Convention, or because their critical appraisalmight be useful in order to determine whether they should be taken up again in futureattempts to improve the international drug treaty system.

The Protocol limited the use of opium'190A exclusively to medical and scientific purposes.191Parties could by reservation 192 free themselves from implementation of this provision for alimited period of time to permit opium smoking or non-medical opium-eating 193 which

was.."traditional" in their territories. The Single Convention took over the substance of thisprovision by outlawing the use of any "narcotic" drugs, including opium, coca leaves, cannabisand cannabis resin. The Convention contains exceptions in favor of countries which make therequired reservation, permitting them to continue the non-medical use of opium, coca leaves,cannabis or cannabis resin for a limited period of time. These transitional provisions of theConvention are very similar to those of the 1953 Protocol regarding the temporarycontinuation of the non-medical use of opium.194

The 1953 Protocol, as the Single Convention, does not prevent any party from producingopium for its domestic requirements.195

The Protocol, as well as the Convention, require parties, which permit the cultivation of thepoppy for the production of opium, to establish a particular agency 196 for theimplementation of their treaty obligations regarding such cultivation and production.

The Protocol obligated such parties

not to permit the cultivation of the poppy for the production of opium except in areaswhich it authorized for this purpose. The purpose of this provision was the concentration ofopium produc-tion in some geographic areas in order to facilitate control.197 to permit the production of opium only to licensed cultivators, each license specifying theex-tent of the area on which the cultivation of the poppy was permitted.198 to require the cultivators to deliver their total opium crops to the Agency which was to be

held to purchase and take physical possession of these crops as soon as possible.199' to confer upon the Agency a monopoly of the international and wholesale trade in opiumand of holding opium stocks other than those held by manufacturers licensed to manufacture


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alkaloids from opium.200

The Single Convention imposes the same obligations on opium producing countries with theminor modifications.

Opium becomes available for illicit purposes principally from three basic sources:

From poppies cultivated in areas which are not under effective Government control, 201 no

matter whether their cultivation is theoretically "illegal" or whether no legislation concerningthem exists at all. From poppies legally or illicitly cultivated in areas which are under the control of connivinggovernment authorities. The role of official corruption, even in high places, and the complicityof government officials should in this connection not be underrated.202 In appraising such asituation we must understand that this attitude of government officials which according to ourideas we must refer to as "official corruption" does not necessarily have the same moralconnotation, under the different social and cultural conditions of the areas in question, as inour country. From diversion by the legal cultivator of part of his opium crop into illicit channels. Such a

cultivator does not deliver his whole crop to the national opium agency as he would legally bebound to do, but conceals a part which he sells as a higher than the official price to an illicittrader.

Opium is produced by incising the capsules of poppies while still standing in the field and bycollecting the latex exuding from the incisions. Opium production therefore cannot be hiddenfrom neigh-bors or authorities and illicit opium production is consequently impossible inareas which are under effective government control and whose government authorities arewilling to suppress it. An unwilling-ness to do so may of course be motivated by the desire notto deprive the cultivators of their sole or principal cash crop and thus to create possiblyserious political, economic and social problems.

On the other hand it is hardly possible for even the most competent national opium agency toestab-lish the exact amount of the opium harvest which an individual cultivator has legallycollected and is bound to deliver to the agency. It is only too natural that such a privatecultivator who is often very poor is frequently tempted by the higher prices offered by illicittraffickers. It is inevitable that even in countries, where opium production is governed by anational monopoly system as required by the 1953 Protocol and the Single Convention, somediversion of legally produced opium into illicit channels is bound to occur as long as privateindividuals are permitted to cultivate the poppy for the production of opium. This diversioncan be prevented only if licen.ses to produce opium are granted only to rela-tively largecorporations, co-operatives or state farms. Both the 1953 Protocol and the Single Conventioncontain the basic weakness that they permit the granting of licenses to produce opium toprivate individuals. Whether and when a generally acceptable treaty could be concluded,which would exclude individual private farmers from producing opium, is difficult to estimate,particularly after the intensive treaty making activities in the field of drugs in recent years.The elimination of illicit opium supplies from the sources mentioned above is of course not amat-ter which can be accomplished by the instrumentality of the international drug treatiesalone.

The Protocol does not contain any provision which would require a party to prohibit thecultivation of the opium poppy whenever the prevailing conditions in its territory wouldrender such an action the most suitable measure, in its opinion, for protecting the publichealth and welfare and for preventing the diversion of drugs into the illicit traffic. The Single

Convention has included such a provision not only with respect to the cultivation of the opiumpoppy but also in respect to that of the coca bush and the cannabis plant.203 Such a provisionmust of course be implemented in good faith as all treaty provisions. A country which has an


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efficient administration and which despite adoption of strict controls would be unable toprevent the diversion into the illicit traffic of important quantities of its legally producedopium would hardly act in good faith if it would declare that, in its opinion, the prohibition ofpoppy cultivation would not be the most suitable measure for preventing the diversion ofdrugs into the illicit traffic. The production of opium cannot be concealed from the authoritiesin areas under effective government control nor can the cultivation of the poppy be hidden.

Turkey is undoubtedly a country which is capable of exercising effective government controlover its territory and which, despite its control measures, could not prevent large-scalediversions from its legal opium production. It is therefore suggested that the Turkishgovernments acted in accordance with its obligations under the Single Convention to which itis a party when it recently prohibited the cultivation of the opium poppy with effect from the1972 crop year.

The 1953 Protocol does not permit parties to import or export opium other than opiumproduced in any of the following seven countries which would be parties to the Protocol:204Bulgaria, Greece, India, Iran, Turkey, Union of Soviet Socialist Republics and Yugoslavia.

The Single Convention admits to the international trade in opium:

opium produced in any of the following countries which are parties to the Convention:Afghanistan, Bulgaria, Burma, India, Iran, North Vietnam, Yugoslavia.205 opium produced by any country which produced and exported that drug during ten yearsprior to 1 January 1961 if that country has established and maintains a national controlagency as required by article 23 of the Single Convention and has in force an effective meansof ensuring that the opium which is produces is not diverted into the illicit traffic.206 an annual maximum amount of five tons of opium produced in the territory of any party207 which has notified to the Economic and Social Board its desire to export this opium andfurnishes to that organ information regarding the controls which it has in force in respect ofthe opium to be produced and exported as well as regarding the name of the country or

countries to which it expects to export the opium.208 opium produced in the territory of any party 207 which has notified to the Economical andSocial Council its desire to produce opium for export in amounts exceeding five tons annually,the estimated amounts to be produced for export, the controls existing or proposed regardingthe opium to be produced and the name of the country or countries to which it expects toexport the opium and which has obtained the Council's approval of its intended production forexport.209 and opium seized from the illicit traffic which is exported by one party to another party.210

The failure of the authors of the Single Conven-tion to incorporate the provision of the 1953Pro-tocol limiting the international opium trade to opium produced in the territory of those of

the seven named countries which became parties to the Protocol 204 and the SingleConvention's enlargement of potential sources of opium has been widely criticized,particularly in the United States of America. This restrictive provision of the 1953 Protocol hason the other hand been one of the reasons for which several countries refused to becomeparties to that treaty. In appraising the criticism of the Single Convention on this point, it mustbe realized that it is based on considerations which had more validity under the differentconditions of the past than they have at present. It was held in the past that legal overproduction of opium is one of the principal caus of diversion. Due to the controls required by1953 Protocol and by the Single Convention introduced by the countries now engaged in thlegal production of opium, the only stage of lega trade at which opium is presently divertedinto illicit channels, occurs with the licensed individual farmer who cultivates the poppy forthe production of opium. It is safe to state that opium, once it has been taken over by thenational opium agency, is not diverted into the illicit traffic either by such .211 agency or insignificant quantities from the subse-quent trade in the opium sold by the agency. It is very


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difficult to see how the restrictive provisions of the 1953 Protocol limiting the legalinternational opium trade to opium produced in seven named countries or even the moreliberal provisions in question of the Single Convention can contribute to the prevention ofdiversion of opium by a licensed in-dividual farmer or to the suppression of the il/icit oruncontrolled production of opium. Moreover, less opium is sometimes legally produced than isneeded for medicinal purposes.212 There seems at present to be a greater danger of legal

underproduction than of legal over-production. One must also not overlook that harvesting ofa quantity of opium often requires many more man-hours than that of an amount of manyother agricultural products of the same or even greater value on the legal market. The pastPermanent Central Board 16 found that in one opium-producing country the collection of 7 kg.of opium required about 1280 man-hours.2i2 It follows that even at the present increasedworld market prices of opium 213 legal production of opium can be eco-nomically profitableonly in countries with a very low wage leve1.214 While it cannot be predicted whichadditional country with a low wage level may become capable of exercising effective controland of enter-ing the world market with needed additional legal supplies o

the international drug control system, adolphe lande, 1974

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