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Article 6 AMENDMENTS TO ARTICLE 14, PARAGRAPHS 1 AND 2 OF THE SINGLE CONVENTION PDF Print E-mail
Written by Administrator   
Wednesday, 13 January 2010 16:06

Article 6

AMENDMENTS TO ARTICLE 14, PARAGRAPHS 1 AND 2 OF THE SINGLE CONVENTION

General, comments

1. The unamended text of article 14 applies only to situations in which the aims of the Single Convention are seriously endangered by reason of a country or territory failing to carry out the provisions of that treaty. It provides for several means of persuasion or pressure intended to induce such a country or territory to implement the Single Convention.

2. The amendments of the 1972 Protocol extend the scope of article 14 to cover also situations in which a country or territory, -although not failing to implement the Single Convention, has actually become or presents a serious risk of becoming an important centre of the illicit traffic.

3. The amendments do not affect the possibility of applying the measures of persuasion referred to in paragraph 1 of the present comments to situations mentioned in that paragraph; but they provide in addition for measures applicable to both kinds of situations, those referred to in paragraph 1 as well as those mentioned in paragraph 2 of the present comments, which may assist the Government concerned to assess the problems of their difficult drug situation or to cope with them. That new character of article 14 is supported by the provision of article 14 bis expressly authorizing the Board, to substitute, with the agreement of the Government concerned, for measures which it may take under. article 14, paragraphs 1 and 2, or to add to such measures, recommendations of multilateral technical or financial assistance or of both.

4.   It may be pointed out in this context that under paragraph 5 added by the 1972 Protocol to article 9,.all measures taken by the Board under article 14, as under other provisions of the Single Convention, "shall be those most consistent with the intent to further the co-operation of Governments with the Board and to provide the mechanism for a continuous dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims of this Convention". It is submitted that this has always been the intention of the Board in applying the unamended article 14 as well as that of the Permanent Central (Narcotics) Board in its administration of the corresponding provisions of earlier drug control treaties.1

5. The 1972 Protocol extended the scope of information which the Board may use under article 14 as well as the range of sources from which the Board may obtain information for that purpose.

1 1961 Commentary, para. 3 of the comments on article 14, para. 1, subpara. (a), (pp. 178-179): for corresponding earlier provisions, see articles 24 and 26 of the 1925 Convention, article 14, para. 3, second subpara. of the 1931 Convention and articles 11 to 13 of the 1953 Protocol.

Introductory paragraph of article 6 of the 1972 Protocol and paragraph 1, subparagraph (a) of article 14 of the amended Single Convention

Article 14, paragraphs 1 and 2, of the Single Convention shall. be amended to read as follows:

"1. (a) If, on the basis of its examination of information submitted by Governments to the Board under the provisions of this Convention, or of information communicated by United Nations organs or by specialized agencies or, provided that they are approved by the Commission on the Board's recommendation, by either other intergovernmental organizations or international non governmental organizations which have direct competence in the subject-matter and which are in consultative status with the Economic and Social Council under Article 71 of the Charter of the United Nations or which enjoy a similar status by special agreement with the Council, the Board has objective reasons to believe that the aims of this Convention are being seriously endangered by reason of the failure of any Party, country or territory to carry out the provisions of this Convention, the Board shall have the right to propose to the Government concerned the opening of consultations or to request it to furnish explanations. If, without any failure in implementing the provisions of the Convention, a Party or a country or territory has become, or if there exists evidence of a serious risk that it may become, an important centre of illicit cultivation, production or manufacture of, or traffic in or con sumption of drugs, the Board has the right to propose to the Government concerned the opening of consultations. Subject to the right of the Board to call the attention of the Parties, the Council and the Commission to the matter referred to in subparagraph (d) below, the Board shall treat as confidential a request for information and an explanation by a Government or a proposal for consultations and the consultations held with a Government under this subparagraph.

Commentary

1. The subparagraph under consideration as amended by the. 1972 Protocol, and consequently other provisions of article 14, deal with two different difficult drug situations which may exist in a country or territory:

one due to the failure of the country or territory concerned to carry out the provisions of the Single Convention, and the other existing in a country or territory not failing to implement that treaty.

2. The beginning of subparagraph (a) limits the sources of the information on which the Board may base a decision to initiate a procedure pursuant to article 14 in the case of both kinds of situations referred to in the preceding paragraph of the present comments, although it appears by its terms to apply only where the country or territory concerned has failed to carry out the provisions of the Single Convention.

3. Under the unamended text of article 14, the Board may use only information obtained from Governments or from United Nations organs. The 1972 Protocol adds as sources of information which the Board may use: specialized agencies, and certain other intergovernmental organizations and some international non-governmental organizations which the amended subparagraph describes.

4. The addition of "specialized agencies" does not in fact increase the sources which the Board may use under the unamended text. The term "United Nations organs" was understood by the 1961 Conference which adopted the Single Convention to cover not only organs of the United Nations but also organs of other intergovernmental organizations which are members of the United Nations family.1

5. Only those intergovernmental organizations other than specialized agencies are admitted as sources of information under subparagraph (a) which are approved for that purpose by the Commission on the Board's recommendations.

6. Non-governmental organizations are admitted as sources of information only if they fulfil the following conditions:

(a) They must be "international";

(b) They must have "direct competence in the subject-matter". That requirement does not mean that the international non-governmental organizations concerned must work specifically in the field of narcotic drugs;2 organizations having experience on one or more of the manifold aspects of the problem of drug abuse could be chosen by the Board and the Commission, such as organizations concerned with problems of alcoholism and drug addiction, medicine, chemistry, pharmacy, social defence, international transport by air, sea, railway, motor cars or other vehicles, or customs or other border control;3

(c) They must enjoy consultative status with the Council under Article 71 of the Charter of the United Nations 4 or a similar status by special agreement with the Council 5 and

(d) They must be approved by the Commission on the Board's recommendation.

7. The Board may use not only information submitted by the Government of the country or territory in question, but also data supplied by other Governments . 6 Information furnished by Governments of non-Parties may also be used.

8. The Board may however use only such information obtained from Governments as was submitted under the provisions of the Single Convention, 7 including information received in the course of a procedure pursuant to article 14 itself. The 1961 Commentary points out that non-compliance with almost any of the provisions of the Single Convention can be revealed by the data furnished by Governments under provisions of the (unamended) Single Convention, or by the additional information or explanations which Governments may be required to supply m the course of the Board's examinations of their communications . 8 The 1972 Protocol has extended the scope of the information which the Board may receive from Governments, specifically in regard to the illicit traffic. 9 It may be assumed that information furnished to the Board by Governments under the provisions of the Single Convention will normally yield the data which the Board needs for making the factual determination required for the purposes of the subparagranh under consideration.

9. It will be noted that the information communicated by the other sources mentioned in subparagraph (a) which the Board may use, need not be submitted under the provisions of the Single Convention. With the exception of article 8, paragraph (b) authorizing the Commission to call the attention of the Board to matters relevant to its functions, and of subparagraph (a) itself, the Single Convention does not contain any provision dealing with the transmission to the Board of information by those other sources. The unamended text of that subparagraph restricts the information from United Nations organs' u which the Board may use to that bearing on questions arising under provisions of the Single Convention providing for the supply by Governments of information to the Board. That text does not admit the use of information furnished by intergovernmental organizations other than organs of the United Nations or specialized agencies, nor that supplied by any non-governmental organization. The elimination of that restriction, as well as the increase of the sources authorized to furnish information, may to some extent be explained by the fact that under the amended article 14 the Board not only has to deal with situations of non-compliance with provisions of the Single Convention, but also with dangerous drug situations not caused by a failure to implement those provisions.

10. It is submitted that the Board's action can be based not only on information which it receives, but also on the failure of a Government to furnish information which it is required to supply to the Board.or the Commission under provisions of the Single Convention. , r

11. In regard to the first of the two dangerous drug situations with which the Board has to deal, i.e. the one caused by a failure of a country or territory to carry out the Single Convention, the Board has to determine whether it has "objective reasons to believe that the aims of this Convention are seriously endangered by reason of the failure of any Party, country or territory to carry out the provisions of this Convention".

12. The 1972 Protocol substitutes the words "objective reasons" for the word "reason" in the language of the uriamended text: It is held that the new wording does not change the meaning of subparagraph (a) in this context. The new phrase including the word "objective" was introduced in order to reassure some delegates to the 1972 Conference that the Board would have to base its actions on objective facts and not on purely subjective considerations; but this appears to be the law already under the unamended text. , 2

13. The amended text of subparagraph (a) has the words "any Party" before the phrase "country or territory" and the words "a Party or" before the phrase "a country or territory". The word "country" as used in the unamended text of that subparagraph refers to countries of Parties or non-Parties alike, and the word "territory" to all territories, no matter whether they belong to Parties or non-Parties, or whether they are parts of a non-metropolitan territory to which the Single Convention applies, or to those to which that Convention does not apply pursuant to its article 42 or 46. The addition of the word "Party" in those two phrases would make it appear that the word "country" as used in the amended text refers only to a country of a non-Party, while the meaning of the word "territory" would not be affected by the amendment.

14. In view of some misunderstandings expressed at the 1972 Conference, , 3 it may be useful to state that the word "territory" as used in subparagraph (a) does not mean a non-metropolitan territory, but in accordance with its definition in article 1, paragraph 1, subparagraph (y) is used in the sense of "any part of a State which is treated as a separate entity for the application of the system of import certificates and export authorizations provided for in article 31 ", i.e. any part of a State which forms a separate entity for the application of the administrative controls of the Single Convention.

15. If the Board, on the basis of information admissible under subparagraph (a), has objective reasons to believe that the aims of the Single Convention are seriously endangered by reason of non-compliance with the provisions of that treaty by a country or territory, it may, but is not bound to, adopt either of two measures. It may propose to the Government in question the opening of consultations, or request that Government to furnish explanations. Although the text does not state this, it is submitted that the Board may combine with its request for explanations a proposal of consultations.

16.   In accordance with the understanding of the 1972 Conference,' 4 it is held that a Government is in no event legally bound to accept the Board's proposal of consultations. A Party is however obligated to furnish the requested explanations unless the case of non-compliance with the Single Convention concerns a territory in the sense of article 1, paragraph 1, subparagraph (y) which is or is a part of a non-metropolitan territory to which the Single Convention does not apply pursuant to article 42 or article 46, paragraph 1.1 s

17.   In regard to the second of the dangerous drug situations with which the Board has to deal under subparagraph (a), i.e. one which is not due to a failure of a country or territory to implement the Single Convention, the Board has to determine on the basis of information admissible under that subparagraph whether the country or territory involved has become or according to existing evidence presents a serious risk of becoming an important centre of the illicit traffic or of illicit consumption. of narcotic drugs.' s

18. It is held that this second dangerous drug situation would also be one in .which the aims of the Single Convention would normally be seriously endangered. The facts may in both dangerous drug situations described in subparagraph (a) be the same. It is submitted that the first sentence only defines in general terms what is defined in the second sentence in more detail. What distinguishes both dangerous situations ig not necessarily the facts, but their causation, namely whether they are due to non-compliance with the Single Convention or not. The use of the words "important centre" in the second definition implies that a purely domestic situation not causing significant difficulties to other countries does not justify action of the Board. This may sometimes apply to countries or territories which, although having a high incidence of abuse of narcotic drugs, are neither countries or territories of origin nor of transit of the international illicit traffic. It is submitted that pursuant to the first sentence of subparagraph (a), the aims of the Convention would also not be seriously endangered by such a domestic situation.

19. It is submitted that, while not easily reconcilable with the wording of the second sentence of subparagraph (a), it would be in accordance with the spirit of the amendment of article 14 to assume that the Board could act under that sentence also in cases in which the country or territory fails to implement some provisions of the Single Convention, as long as its difficult drug situation is not due to such a failure.

20. The second sentence does not explicitly provide for the Board's authority to request explanations, but only for its right to propose consultations to the Government concerned. As under the first sentence,''17 the Government is not legally bound to accept such a proposal.

21.   It is held that, in spite of the lack of an express provision authorizing it, the Board would not be barred from asking the Government concerned for an explanation of a situation as defined in the second sentence; but while under the first sentence of subparagraph (a) a Party would be bound, according to the apparent understanding of the 1972 Conference, to supply to the Board the requested explanations, it would not have that legal obligation under the second sentence. 1 7

22.   As long as the Board is not authorized under subparagraph (d) to call the attention of the Parties, the Council and the Commission to the matter and actually does not do so, it is bound to treat as confidential communications made under subparagraph (a), including its own requests for explanations or proposals of consultations, as well as the replies of Governments and the course and contents of consultations. The Board' is however not precluded from publishing in a report made pursuant to article 15, paragraph 1 that part of the information supplied by Governments under subparagraph (a) which has also come to its notice from other communications which it is not required to treat as confidential.

23. The Board is not authorized to withhold from the Government in question the information on which it bases any action under subparagraph (a), nor can it withhold the source of that information.18

24. As regards the replacing or supplementing of the Board's actions under subparagraph (a) by recommendations of multilateral technical or financial assistance, see article 14 bis and the comments thereon. As to the relations between paragraph 1, subparagraph (a) and that paragraph's subparagraph (c), see the comments on subparagraph (c).

1 1961 Commentary, para. 10 of the comments on article 14, para. 1, subpara. (a) (pp. 180-181).

2 1972 Records, vol. 11, paras. 11 and 19 to 38 of the summary records of the sixteenth meeting of Committee I (pp. 134-136).

31972 Records, vol. II, para. 8 of the summary records of the twelfth meeting of Committee I (pp. 115-116).

4 Council resolution 1296 (XLIV), amended by resolution 1391 (XLVI); see also Council resolution 288 B (X).

5 The 1972 Conference appears to have been of the opinion that the International Criminal Police Organization (INTERPOL) is an international non-governmental organization enjoying such a status by special agreement with the Council; see 1972 Records, vol. II, para. 4 of the summary records of the eleventh meeting of Committee I (pp. 109-110) and Council resolution 1579 (L).

61961 Commentary, para. 8 of the comments on article 14, para. 1, subpara. (a) (p. 180).

7 Articles 12, 13, 19, 20, 21 bis, panas. 2 and 3 and new para. (f) of the amended article 35; see also article 21 bb1s, para. 4.

8 Para. 6 of the comments on article 14, para. 1, subpara. (a) (pp. 179-180).

9 Article 13 of the 1972 Protocol, adding paras. (f) and (g) to article 35 of the Single Convention.

10 See para. 4 of the present comments.

11 Para. 7 of the comments referred to in foot-note 1 (p. 180).

12 1972 Records, vol. II, paras. 2, 14, 15, 16 and 44 of the summary records of the sixteenth meeting of Committee I (pp. 133-134 and 136).

13 1972 Records, vol. II, para. 39 of the summary records of the eleventh meeting of Committee I (p. 112).

14 1972 Records, vol. II, para 10 of the summary records of the twelfth meeting of Committee I and paras. 3 and 58 of the summary records of the sixteenth meeting of that Committee (pp. 116, 134 and 137).

15 As regards the obligation of Members of the United Nations, which are not Parties to the Single Convention to co-operate with the Board in a procedure, pursuant to article 14, para. 1, subpara. (a), see 1961 Commentary, para. 16 of the comments on that subpara. (pp. 182-183).

16 According to article 1, para. 1, subpara. (1) "illicit traffic" means cultivation or trafficking in narcotic drugs contrary to the provisions of the Single Convention. The term "trafficking" not only includes all forms of illegal trade and distribution but also illegal manufacture and production, 1961 Commentary, para. 1 of the comments on that subpara. (1) (p. 11).

17 See para. 16 of the present comments.

18 1972 Records, vol. 11, paras. 24, 25 and 28 of the summary records of the tenth plenary meeting (pp. 39-40).

Paragraph l, subparagraph (b)

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

Commentary

1.. That subparagraph was not amended by the 1972 Protocol; but by referring to subparagraph (a) it refers under the amended Convention to a provision which is different from what it was in the unamended Convention, and this may-require some consideration.

2. It will be noted that the remedial measures which a Government may be called upon to adopt are those which "seem under the circumstances to be necessary for the execution of the provisions of this Convention". It appears to follow that the Board can call for remedial measures only in the case of a serious drug situation as defined in the first sentence of subparagraph (a), but not in the case of a situation described in the second sentence of that subparagraph, because the second case relates to a situation which was not caused by a failure of the Government concerned to implement, the provisions of the Single Convention.

3. While it is suggested that the view profferred in the preceding paragraph of the present comments represents the better opinion, it is admitted that it might not be impossible to understand the words "necessary for the execution of the provisions of this Convention" as including measures necessary for a different and better implementation of those provisions. If that view were accepted, the Board could, in the case of a situation referred to in the second sentence of subparagraph (a), call upon the Government concerned complying with the provisions of the Convention to adopt such other methods of compliance as in its view would be necessary for a better execution of that treaty, i.e. for the purpose of achieving better results therefrom.

4.   The Board may of course suggest remedial measures at any time to a Government which expressly or impliedly agrees to its doing so.

5. See also the comments of the 1961 Commentary on article 14, paragraph 1, subparagraph (b), and in particular paragraph 11 of these comments relating to the Board's right to publish suggested remedial measures. When referring in a report pursuant to article 15, paragraph 1, to remedial measures which it has suggested under the subparagraph under consideration, the Board must avoid any reference, either direct or implied, to the procedure under article 14 as long as it has not called the attention of the Parties, the Council and the Commission to the matter according to article 14, paragraph 1, subparagraph (d).

Paragraph 1, subparagraph (c)

(c) The Board may, if it thinks such action necessary for the purpose of assessing a matter referred to in subparagraph (a) of this paragraph, propose to the Government concerned that a study of the matter be carried out in its territory by such means as the Government deems appropriate. If the Government concerned decides to undertake this study, if may request the Board to make available the expertise and the services of one or more persons with the requisite competence to assist the officials of the Government in the proposed study. The person or persons whom the Board intends to make available shall be subject to the approval of the Government. The modalities of this study and the time-limit within which the study has to be completed shall be determined by consultation between the Government and the Board. The Government shall communicate to the Board the results of the study and shall indicate the remedial measures that it considers necessary to take.

Commentary

1.   Subparagraph (c) is entirely new. It was added by the 1972 Protocol.

2.   The   phrase   "a matter   referred   to in subparagraph (a) of this paragraph" includes the dangerous drug situations referred to in the first and second sentence of that subparagraph, as well as any other question which may be relevant to carrying on consultations or requesting explanations under that provision. The Board may propose the study referred to in the subparagraph under consideration either before or after requesting explanations or proposing consultations under subparagraph (a) or during such consultations.

3. The question arises whether the Board can propose a study under subparagraph (c) only if on the basis of information admissible under subparagraph (a) it has reasons for taking any of the actions for which subparagraph (a) provides. Despite the fact that article 14, paragraphs 1 to 3 provides for a sequence of actions, it is submitted that the Board may propose the study even at a time when it does not yet have sufficient reasons for , taking action under subparagraph (a). This opinion is based on the consideration that the Government is not bound to accept the Board's proposal, and that there also does not appear to be any legal objection to the Board's proposing to a Government a study of its drug problems even outside a procedure under article 14.

4. The   Board is bound to give the assistance requested by the Government under the second sentence of subparagraph (c) if its costs are borne by that Government, are contributed from other sources or are provided for in the Board's budget.'

5. The study with which subparagraph (c) deals is undertaken under the authority and direction of the Government on whose territory it is carried out.

6. The Board may nominate the person or persons whose "expertise" and "services" it is ready to make available to the Government requesting its assistance. It may nominate its own members, members of its own secretariat or of other units of the United Nations Secretariat, or other experts. The persons nominated by the Board are subject to the approval of the Government, which is not required to give any reasons for its rejection of persons proposed by the Board. The Board is however not obligated to substitute candidates for those rejected by the Government. It may be assumed that in practice the person or persons to be made available by the Board for assistance in the Government's study will be chosen in informal and confidential consultations between the Government and the Board.

7. Only the modalities and the time-limits of studies undertaken with the assistance of experts made available by the Board must be determined by consultation between the Government and that organ. It may however often be advisable that this be done also in the case of studies under subparagraph (c) carried out without assistance of persons placed by the Board at the disposal of the Government.

8. If a Government has accepted a proposal of the Board to undertake a study under subparagraph (c), it is bound to report to the Board the results of its study and the remedial measures, if any, which it considers necessary to take. If it reconsiders the matter and decides not to. carry out the study, it must also report that decision to the Board.

9. There is no express provision requiring the Board to treat as confidential its proposal of a study, its negotiations with the Government on such a proposal, the results of the study or the Government's report.. The Government may however make it a condition of its acceptance of the Board's proposal that the study and its results be kept confidential; but even in cases in which the Government has not made such a condition, the Board, when referring to the study in a report under article 15, should avoid any reference, either direct or implied, to the fact that the study was undertaken in the course of a procedure under article 14, as long as it has not called the attention of the Parties, the Council and the Commission to the matter pursuant to subparagraph (d).

1 Article 6.

Paragraph 1, subparagraph (d)

(d) If the Board finds that the Government concerned has failed to give satisfactory explanations when called upon to do so under subparagraph (a) above,. or has failed to adopt any remedial measures which it has been called upon to take under subparagraph (b) above, or that there is a serious situation that needs co-operative action at the international level with a view to remedying it, it may call the attention of the Parties, the Council and the Commission to the matter. The Board shall so act if the aims of this Convention are being seriously endangered and it has not been possible to resolve the matter satisfactorily in any other way. It shall also so act if it finds that there is a serious situation that needs co-operative action at the international level with a view to remedying it and that bringing such a situation to. the notice of the Parties, the Council and the Commission is the most appropriate method of facilitating such co-operative action; after considering the reports of the Board, and of the Commission if available on the matter, the Council may draw the attention of the General Assembly to the matter.

Commentary

1.   The subparagraph under consideration in its unamended form , -like the whole unamended article 14--deals with situations in which, by failure of a country or territory to carry out the provisions of the Single Convention, the aims of that treaty are being seriously endangered. It provides for the possibility of the Board's calling the attention of the Parties, the Council and the Commission to such a situation, as a means of persuading the Government involved to abide by the rules of the Single Convention, i.e., as a kind of sanction which the Board may adopt with or without recommending under paragraph 2 an embargo on the import and export of narcotic drugs, or of both, against the country or territory concerned.

2.   Article 14 as amended by the 1972 Protocol deals not only with cases of non-compliance with the Single Convention, but also with situations in which, without any failure in implementing the Single Convention, a country or territory gravely endangers or presents a serious risk of gravely endangering the aims of that Convention, by becoming or presenting a serious risk of becoming an important centre of the illicit traffic in narcotic drugs or of their illicit consumption. It deals thus also with situations which may be beyond the control of the Governments concerned. Subparagraph (d) provides also for the Board's calling the attention of the Parties, 'the Council and the Commission to situations of that nature; but in such cases the Board's action would not be a "sanction", but would be intended to assist the Government involved in its difficulties. 2

3. Subparagraph (d) indicates for both types of dangerous situations with which it deals the conditions under which the Board's action is discretionary and those under which it is mandatory,

4. In regard to dangerous drug situations due to a Government's non-compliance with the Single Convention, subparagraph (d) explicitly requires the existence of conditions endangering the aims of the Convention only for the Board's mandatory action. It is however submitted that in the absence of such conditions, the Board has under subparagraph (d) also no discretionary authority to call the attention of the Parties, the Council and the Commission to a country's or territory's failure to implement the Single Convention. This follows from the provision that the Board may take that action only if. the Government concerned has failed to give satisfactory explanations under subparagraph (a), or to adopt the suggested remedial measures under subparagraph (b). A Government can be called upon to give explanations under subparagraph (a) only if objective reasons exist for the Board to believe that the aims of the Single Convention are being seriously endangered; and this is, according to the better view, also the condition for the Board's right under subparagraph (b) to call upon the Government to adopt remedial measures.3

5.   But even if one holds that the Board has under subparagraph (b) authority to request a Government to adopt remedial measures even in cases in which the serious drug situation in its territory-is not due to the Government's failure to carry out the provisions of the Single Convention, the Board's discretionary authority to take action under subparagraph (d) would still be limited to those cases of non-compliance with the Single Convention in which that treaty's aims are being seriously endangered. Paragraph 2 authorizes the Board, when calling the attention of the Parties, the Council and the Commission to a Government's non-compliance with the Single Convention as being responsible for such a drug situation, to recommend an embargo of the import or export of narcotic drugs, or of both, against the country or territory concerned. This is a very serious measure, and it cannot be assumed that the Board has that authority except in very grave situations.

6.   The difference between a situation of non-compliance with the Single Convention in which the Board may act under subparagraph (d) and another such situation in which the Board must take that action is, therefore, not that in the latter case it would be a condition of its action that "the aims of the Convention are being seriously endangered" while in the former case this would not necessarily have to be the situation. The Board is under subparagraph (d) not only not bound to act on the basis of a Government's non-compliance with the Single Convention, but also has no right to take that action if the resulting situation does not seriously endanger the aims of the Single Convention. It may however be assumed that the Board would be more readily inclined to feel bound to act if the situation is particularly serious.

7. The only difference between the two serious cases or non-compliance with the Single Convention falling within the scope of subparagraph (d) therefore is that the Board's action becomes mandatory only if it has come to the conclusion that "it has not been possible to resolve the matter satisfactorily in any other way". As long as the Board has not come to that conclusion, it has discretion to choose not to act and to discontinue its procedure under article 14 in regard to the case in question. It is submitted that it may normally not be very easy to arrive at such a conclusion, and that the Board would in the cases of serious non-compliance with the Single Convention covered by subparagraph (d) generally retain its discretionary power to act or not to act under that subparagraph.

8. In regard to serious drug situations not caused by the failure of a Government to carry out the provisions of the Single Convention, subparagraph (d) also deals with a situation in which the Board is bound to call the attention of the Parties, the Council and the Commission to the matter, and with another one in which the Board has only the right, but not the obligation, to do so. In both cases it is a condition for the Board's action that the Board should find that "there is a serious situation that needs co-operative action at the international level with a view to remedying it". It is submitted that the Board can make that finding only if the country or territory involved has become or presents a serious risk of becoming an important centre of the illicit traffic or of the illicit consumption of narcotic drugs. This follows from subparagraph (a), which authorizes the Board to initiate the procedure under article 14 in cases of serious drug situations not due to non-compliance of a Government with the Single Convention only if the country or territory involved has become such a centre or presents a serious risk of becoming one.

9.   In the case of such serious drug situations not caused by the failure of a Government to carry out the Single Convention, the Board's action under subparagraph (d) is mandatory only if "bringing such a situation to the notice of the Parties, the Council and the Commission is the most appropriate method of facilitating" "co-operative action at the international level with a view to remedying" the situation. Otherwise the Board may choose to act under subparagraph (d), or not to act and discontinue the procedure under article 14 in regard to the country or territory involved.

10. When calling the attention of the Parties, the Council and the Commission to a serious drug situation caused by a Government's noncompliance with the Single Convention, the Board may also indicate the

advisability of co-operative international action with a view to assisting the Government in improving that situation.

11.   In the case of a serious drug situation not due to the failure of a Government in implementing the Single Convention the Board is not precluded from acting under subparagraph (d), by reason of the fact that the Government concerned does not fully implement the Single Convention. The Board may in such a case apply those provisions of that paragraph which relate to serious drug situations not caused by non-compliance with the Single Convention. It cannot be assumed that serious drug situations, though excluded from the scope of the sanctions of subparagraph (d) because they are not caused by a Government's failure to implement the Single Convention, are also excluded from the remedial provisions of that subparagraph because the Government in question does not fully comply with the provisions of that treaty.

12.   When acting under subparagraph (b), the Board must also be guided by the general principle laid down in paragraph 5 of the amended text of article 9. Actions taken by the Board under that subparagraph should therefore be those which under the conditions in question would be "most consistent with the intent to further the co-operation of Governments with the Board and to provide the mechanism for a continuing dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims" of the Single Convention.4

13.   In all cases in which subparagraph (d) provides for the Board's calling the attention of the Parties, the Council and the Commission to the matter the Board, in agreement with the Government concerned, may in lieu of or in addition to its action under that subparagraph recommend according to article 14 bis technical or financial assistance, or both.

1 Being article 14, para. 1, subpara. (c) of the unamended Convention.

2 1972 Records, vol. II, para. 89 of the sixteenth meeting of Committee I (p. 139) and paras. 5 and 18 of the summary records of the seventeenth session of Committee I (pp. 140-141).

3 Paras. 2 and 3 of the above comments on article 14, para. 1, subpara. (b).

4 1972 Records, vol. II, para. 86 of the summary records of the sixteenth meeting of Committee I (p. 139).

Paragraph 2

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

Commentary

1.   The 1972 Protocol made only a very minor change in paragraph 2. It replaced the reference to "paragraph 1 (c)" by one to "paragraph 1 (d)" since subparagraph (c) in the unamended version of the Single Convention became subparagraph (d) in its amended text.

2. No changes were made in paragraph 2 to take into account the fact that the provision to which it refers is under the 1972 Protocol very different from what it is under the unamended text of the Single Convention. The unamended subparagraph provides for the Board's calling the attention of the Parties, the Council and the Commission to a serious drug situation only in cases in which that situation is due to the failure of a Government to carry out the provisions of the Single Convention, while its amended text provides for such an action by the Board also in cases in which the serious drug situation is not due to such a failure and may even be beyond the control of the Government involved.'

3.   The question arises whether under article 14, paragraph 2 of the amended Single Convention the Board may recommend a narcotic drug embargo in all cases in which it calls the attention of the Parties, the Council or the Commission to the matter, as it may do under that provision in the unamended Convention.

4. An affirmative reply to that question would mean that under the amended Single Convention the Board would have authority to recommend a drug embargo against a country or territory which has a serious drug situation even though it is making all possible efforts to enforce the provisions of the Single Convention. It is submitted that such an interpretation would be manifestly unreasonable,2 and also obviously contrary to the intentions of the 1972 Conference.

5. One will note that under the amended as well as under the unamended text of paragraph 2, the Board may recommend an embargo only "if it is satisfied that such a course is necessary". It is hardly imaginable that the Board would ever be justified in fording it "necessary" to recommend a drug embargo against a country or territory whose Government complies with the provisions of the Single Convention. One may therefore conclude that despite the fact that the 1972 Conference did not appropriately amend paragraph 2, the Board is authorized to recommend a drug embargo only in those cases in which under paragraph 1, subparagraph (d) it calls the attention of the Parties, the Council and the Commission to a dangerous drug situation caused by non-compliance by the Government concerned with the provisions of the Single Convention.

6. When considering whether it should recommend an embargo pursuant to paragraph 2, the Board must also be guided by the general principle laid down in paragraph 5 of the amended article 9.

7. In agreement with the Government concerned, the Board may under article 14 bis add to or substitute for the recommendations of an embargo recommendations of technical or financial assistance, or both.

1 1972 Records, vol. II, para. 89 of the summary records of the sixteenth meeting of Committee I (p. 139).

2 Article 32, para. (b) of the Vienna Convention on the Law of Treaties, document A/CONF.39/ 17.

 

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