Article 10 of the 1931 Convention

Sections

ARTICLE 10.
§102. "SHALL PROHIBIT".
ARTICLE 10, PARAGRAPH 2.
§103. "ON THE RECEIPT OF A REQUEST".
§104. "FROM THE GOVERNMENT OF ANY COUNTRY IN WHICH DIACETYLMORPHINE IS NOT MANUFACTURED".
§105. "AS ARE NECESSARY FOR THE MEDICAL AND SCIENTIFIC NEEDS OF THAT COUNTRY".
§106. "PROVIDED THAT THE REQUEST IS AC-COMPANIED BY AN IMPORT CERTIFICATE AND IS CONSIGNED TO THE GOVERNMENT DEPARTMENT".
ARTICLE 10, PARAGRAPH 3.
§107. "BY AND ON THE RESPONSIBILITY OF THE GOVERNMENT OF THE IMPORTING COUNTRY".

Details

Pages: 59 to 61
Creation Date: 1953/01/01

OFFICIAL

Article 10 of the 1931 Convention

In connexion with a special issue of the Bulletin on Heroin, the editors deem it useful to give an extract of the historical and technical study prepared by the Secretariat of the League of Nations on the Convention for limiting the manufacture and regulating the distribution of narcotic drugs of July 13th, 1931, relating to Article 10 of this Convention.

ARTICLE 10.

  1. The high Contracting Parties shall prohibit the export from their territories of diacetylmorphine, its salts and preparations containing diacetylmorphine or its salts.

(For the discussions in the Conference on Article 10, see Conference, Vol. I, pages 86-95, 139-143, 241-243; Vol. II, pages 79-80 and 93-105).

General and historical Note

By Article 10, the Convention provides a special regime for the export and import of diacetylmorphine.

Under the convention, the degree of limitation and regulation varies according to two criteria: the first is the degree of danger presented by a particular drug, and the second is the extent to which the drug is used by the medical profession. From these points of view, the drugs covered by the Convention fall into three groups:

  1. Drugs in Group II, codeine and dionine, are subjected to the least stringent measures, their manufacture being limited less strictly and their distribution being somewhat freer than in the case of the other drugs;

  2. The main body of drugs are subjected to the general scheme of limitation of manufacture and regulation of distribution;

  3. Diacetylmorphine, on the other hand, whilst treated like the main body of drugs as regards limitation of manufacture, is subjected to a specially stringent regime as regards its exports to and distribution in countries which do not themselves manufacture the drug.

The reason for subjecting diacetylmorphine to the most stringent regime provided by the Convention is that it is generally regarded as the most dangerous of the opium derivatives. It is the only derivative of morphine which is known to be absorbed by sniffing and it is extremely toxic as compared with other opium derivatives. Its therapeutic value, moreover, was re- garded by a number of delegations represented at the Conference as doubtful.[1]

It was for this reason that a proposal for the total abolition of heroin was made as early as 1923 in the Opium Advisory Committee, which in its fifth session asked "the Council to request the Governments to communicate their views as to the possibility of a total suppression of the manufacture of heroin or of its limitation to the minimum required."[2] The replies received from Governments indicated a division of opinion, which continues to the present day, between Governments which were willing to consider the possibility of abolition and those which took the view that heroin is indispensable in certain cases in medical practice. A definite proposal for the abolition of the use of the drug was made and rejected at the Second Opium Conference in 1925,[3] but the Conference agreed to abolish the exemption in the Hague Convention 1912 for preparations containing not more than 0.1% of the drug.

In the Limitation Conference, a proposal was first moved to abolish the use of heroin completely. This was objected to on the grounds that the drug was of medical value; that, of the supplies which were being exported from the manufacturing countries on the basis of import certificates, practically nothing was now escaping into the illicit traffic, and that even if heroin were abolished it could be manufactured from morphine by any trafficker without special difficulty.

In view of these objections, the proposal contained in Article 10 was moved as a compromise.

§102. "SHALL PROHIBIT".

The general effect of the article as a whole is that the export of heroin is prohibited in all cases except as follows: a country which manufactures heroin may export to a non-manufacturing country, under the conditions specified in paragraph 2, the quantities required in that country for its medical and scientific needs. It follows from this that a non-manufacturing country or territory cannot export heroin to any other country or territory, as it can only obtain the supplies of heroin necessary for its own medical and scientific needs, and these supplies, as indicated in paragraph 3, are for distribution in the country itself. The prohibition even applies as between territories belonging to the same country or between one manufacturing country and another manufacturing country.

1. For the views of the experts attached to the Conference on the medical value of diacetylmorphine, see Conference, Vol. II, page 129.

2. Document A. 13.1923.XI.

3. Records of the Second Opium Conference, Vol. I, page 496.

ARTICLE 10, PARAGRAPH 2.

  1. Nevertheless, on the receipt of a request from the Government of any country in which diacetylmorphine is not manufactured, any High Contracting Party may authorize the export to that country of such quantities of diacetylmorphine, its salts, and preparations containing diacetylmorphine or its salts, as are necessary for the medical and scientific needs o f that country, provided that the request is accompanied by an import certificate and is consigned to the Government Department indicated in the certificate.

§103. "ON THE RECEIPT OF A REQUEST".

It was clearly understood at first that a special request from the Government of the importing country had to be addressed to the Government of the exporting country. The matter came before the Advisory Committee at its twentieth session, which referred to the matter in the following passage in its report:[4]

"The main question submitted to the Committee was whether the provisions of paragraph 2 of Article 10, in accordance with which no contracting party may authorize the export of diacetylmorphine except on the receipt of a request from the Government of any country in which diacetylmorphine is not manufactured,' necessarily involved a special request from one Government to another, and whether, for instance, the import certificate furnished by the Government could not take its place.

"The Advisory Committee considers that, if the stipulations of the Model Code[5] are strictly observed, the question settles itself. This is in accordance with the text of the Conventions, which provides that the contracting party, before authorizing export, shall receive a request to that effect, from the Government of the importing country and that this request must be accompanied by an import certificate. Moreover, the drug must be consigned to the Government Department indicated in the certificate; it cannot be consigned to a private firm.

4. See document C. 253.M. 125.1935.XI, page 11. See also, for previous references to the matter, Report of the Committee on the Work of its Nineteenth Session, document C.530. M.241.1934.XI, pages 8-9, and Minutes of the Nineteenth Session, document C.33.M.14.1935.XI, pages 82, 85-86.

5. The reference is to the following paragraph from the Model Code, adArticle 10, page 6:

"Under the terms of paragraph 2 of this article, export authorisations are to be issued only against import certificates authorizing import by a Government Department. Moreover, such import certificate is required to be accompanied by a formal request from the Government of the importing country, asking that the export should be permitted. The drug, when exported, is required to be consigned to the Government Department of the importing country indicated in the import certificate."

It should be noted that the article itself and the above passage from the report of the Advisory Committee say that the request must be accompanied by an import certificate.

"The Committee finally adopted the following resolution:

"'The Advisory Committee:

"'Notes the efforts made by the countries which export diacetylmorphine to apply the provisions of Article 10 of the Limitation Convention of 1931:

"'Observes that an exporting country cannot carry out the provisions of paragraph 2 of Article 10 of the Convention unless the Government of the importing country carries out its obligation under that article of making a formal request asking that the export should be permitted, and of forwarding to the Government of the exporting country this request, together with an import certificate in which the Government Department to which the drugs should be consigned is clearly designated;

"'Requests the Secretariat to write to the Governments of all countries importing or exporting diacetylmorphine, drawing their attention to the terms of the above-mentioned article.'"[6]

§104. "FROM THE GOVERNMENT OF ANY COUNTRY IN WHICH DIACETYLMORPHINE IS NOT MANUFACTURED".

This rules out any export to or import by a country which manufactures diacetylmorphine - in other words, no export or import of diacetylmorphine is possible between manufacturing countries.

The Government of the exporting country must, as the Model Code ( ad Article 10) indicates,[7] take the necessary precautions to satisfy itself that the importing country which makes the request is, in fact, a country which does not manufacture the drug. For this purpose, as the Code points out, it may consult the information received by the Secretary-General under Article 20 and the reports to the Council of the Permanent Central Board. It should also consult the list of licenced factories periodically issued by the Secretariat of the League of Nations.

Moreover, the conditions under which diacetylmorphine can be received and utilised by the importing country would even seem to preclude imports in a case where the country, whilst not manufacturing diacetylmorphine, proposed to use the imported drug for the purpose of conversion into some other drug, such as morphine or codeine. This interpretation is in accordance with the whole purpose of the article, which was to restrict export and import to the narrowest limits - i.e., to forbid all export or import of diacetylmorphine, except export by a manufacturing country to a non-manufacturing country for use as such for medical or scientific purposes in the latter country under the stringent conditions specified in the article, and those supplies as indicated in paragraph 3 are for distribution in the country of import itself.

6. A circular letter to this effect was sent to Governments.

7. Model Code, page 6.

It follows that the use of any part of the supplies so imported for re-export[8] is precluded.

In practice, non-parties must comply too with the provisions of paragraph 2 of the article, if they wish to import diacetylmorphine from a contracting party.

§105. "AS ARE NECESSARY FOR THE MEDICAL AND SCIENTIFIC NEEDS OF THAT COUNTRY".

(Compare the wording used in paragraph 1 of Article 4 and paragraph 2(a) of Article 5).

Amounts which may be imported are determined by the estimates of the importing country, subject to the provisions of paragraph 2 of Article 12 and of paragraphs 1 and 2 of Article 14.

§106. "PROVIDED THAT THE REQUEST IS AC-COMPANIED BY AN IMPORT CERTIFICATE AND IS CONSIGNED TO THE GOVERNMENT DEPARTMENT".

The drafting of this clause is defective, the words "the quantity so exported" having been inadvertently omitted before the words "is consigned.''[9] The attention of Governments was drawn to the matter by circular letter, and they were asked to state whether they agreed with interpretation. Governments have since accepted the interpretation.

8. See also, as to re-.export, Conference, Vol. I, pages 141, 143 and 173.

9. See Report of the Opium Advisory Committee to the Council on the Work of the Seventeenth Session (document C. 642.M.305.1933.XI, page 4). The replies received from Governments accepting this interpretation are contained in the progress report annexed to the Minutes of the Twentieth Session of the Advisory Committee (document C.277.M.144. 1935.XI, pages 107-108). That this interpretation corresponds to the intention of the Conference is shown by the original text of the article as proposed by the Technical Committee of the Conference (Conference, Vol. I, page 336).

The stipulation that the export must be consigned to a Government Department is absolute. It cannot be made, for example, to a private firm designated by the Government.[10]

ARTICLE 10, PARAGRAPH 3.

  1. Any quantities so imported shall be distributed by and on the responsibility of the Government of the importing country.

§107. "BY AND ON THE RESPONSIBILITY OF THE GOVERNMENT OF THE IMPORTING COUNTRY".

The Model Code ad Article 10 contains the following comment on this paragraph: [11]

"Under the terms of paragraph 3 of this article, the drug imported by the Government Department concerned may be distributed by that Department, on its responsibility, either directly to doctors or pharmacists, or through authorised wholesalers."

As the Records of the Conference show, there can be no doubt that this interpretation, whereby distribution may take place by the Government Department either directly to doctors or pharmacists, or through authorised wholesalers, is in accordance with the intention of the Conference. The paragraph was, in fact, only adopted on the express understanding - as authoritatively stated by the President himself on behalf of the Conference - that the paragraph meant "that the State would be responsible for designating a Competent authority to receive supplies of the drug and to distribute them, but that it would not necessarily undertake the commercial operations of selling and buying."[12]

10. See also Conference, Vol. I, pages 139-140.

11. Page 6.

12. Conference, Vol. I, page 141; see also Vol. I, pages 139, 140, 142, 241, and 242.