Analysis of the Preamble to the Protocoland of the Recommendations Embodied in the Final Act

Sections

I. THE PREAMBLE
II. THE RESOLUTIONS OF THE FINAL ACT

Details

Author: Bertil A. Renborg
Pages: 30 to 39
Creation Date: 1953/01/01

Analysis of the Preamble to the Protocoland of the Recommendations Embodied in the Final Act

Bertil A. Renborg Former Chief of the Opium Section of the League of Nations, Observer of Sweden at the United Nations Opium Conference

The task assigned to me is to make a study and analysis of the Preamble to the Protocol of 23 June 1953 and of the Final Act adopted by the Opium Conference held at the United Nations Headquarters, New York, in May and June of this year.

The Preamble, which forms part of the Protocol, is a sort of introduction which states the purposes of the Protocol, the circumstances which justify its drafting and adoption, and the main subjects covered by it. The Preamble is an essential element in any international instrument and gives in a few words the principles which have been incorporated in the instrument itself.

The Final Act, on the other hand, is a record of the main events of the Conference, lists those who participated, outlines the organization of the work and finally states the fact that the Conference adopted the Protocol and the Final Act. Furthermore, the Final Act contains a number of recommendations on various questions connected with the subject matter of the Conference and adopted by the Conference. The Protocol itself forms an annex to the Final Act. It will thus be seen that the Final Act is an important, formal, legal document quite apart from the resolutions.

The Protocol is subject to ratification or accession by States and does not come into force until the special provisions on that subject have been fulfilled. In regard to the Final Act, the situation is quite different: although it is signed by the States which participated in the Conference and wish to do so, it is not subject to ratification or accession. This is a consequence of the nature of the document as a simple record of the work of the Conference and of its results. It follows that the resolutions annexed to the Final Act can never bind any State which may ratify or accede to the Protocol. These resolutions have thus more the character of recommendations subscribed to by the Conference and by those representatives of States who signed the Final Act. At the most, the resolutions constitute a moral obligation for the States concerned. There were quite long discussions during the Conference in regard to the legal character of the Final Act which is as outlined above.

I. THE PREAMBLE

The Preamble reads as follows:

Determined to continue their efforts to combat drug addiction and illicit traffic in narcotic substances and aware that these efforts can only achieve the desired results by close collaboration between all States,

Recallingthat through a series of international instruments, efforts have been directed to the development of an effective system of narcotics control and desiring to strengthen such control at both the national and international level,

Considering, however, that it is essential to limit to medical and scientific needs and regulate the production of the raw materials from which natural narcotic drugs are obtained and realizing that the most urgent problems are those of the control of the cultivation of the poppy and of the production of opium,

The Contracting Parties have resolved to conclude a Protocol for these purposes, and have agreed as follows...

At the outset, it might be well to recall that international efforts to combat the drug evil date back to 1909 when the first International Opium Commission was held in Shanghai. The intervening 44 years have been a succession of efforts to cope with the drug menace through international co-operation. However, in spite of all these efforts, the illicit traffic is rampant and drug addiction still spreading. New approaches have been found necessary and one of them is the limitation to the world's medical and scientific needs of the raw materials from which narcotic drugs are obtained and, in the first place, raw opium.

The Preamble in its first paragraph emphasizes the necessity of continuing the efforts to cope with the drug menace and underlines that the desired results can only be obtained by close collaboration between all States. There is nothing new in this. It has been said many times before but cannot be repeated too often. Reduced to its simplest terms, one might say that illicit traffic-and this is the main problem - is organized on an international scale and knows or respects no international frontiers. There are powerful international organizations which engage in this nefarious trade. The forces which are endeavouring to eliminate illicit traffic and the drug evil as a whole must also organize themselves on an international basis. No country can alone protect itself against drug smuggling. It is most important to stop illicit traffic by all means and at all places, at the point of origin and place of transit and in the country of destination. If it were not for the close collaboration between all States, the campaign against the illicit traffic would be almost futile and hopeless.

In its second paragraph, the Preamble recognizes the efforts made during nearly half a century, resulting in a series of international instruments and the development of an effective system of control, but gives expression to the desire of strengthening this control at both national and international levels.

Having thus recalled the past and emphasized the necessity for improved control and further measures, the Preamble in its third paragraph deals with the most important, yet unsolved, problem in the narcotics field, namely: the limitation of the production of raw materials for the manufacture of narcotic drugs. Experience during the past 44 years has shown abundantly that as long as raw materials are produced or available in quantities in excess of the world's medical and scientific needs, the surplus will inevitably "disappear" into the illicit traffic. The limitation of the production of raw materials is, therefore, a "must" in drug control. Discussions of this question and efforts to find a satisfactory solution have been on the international agenda for many years without success. The League of Nations had begun to deal with both opium and the coca leaf but abandoned the latter in order to concentrate on raw opium. In 1939, there was an almost complete draft for a limitation convention dealing with raw opium but the Second World War stopped further work by the League of Nations. The matter was taken up at an early stage by the United Nations and its Commission on Narcotic Drugs; this body, after several years of discussion, and after having abandoned a more ambitious scheme based on an international opium monopoly, proposed the Protocol which was placed before the United Nations Opium Conference.

The Preamble now states in unequivocal terms that the limitation to medical and scientific needs and the regulation of the production of narcotic raw materials is essential, and goes on to say that the most urgent problem is that of the control of the cultivation of the opium poppy and of the production of opium. The other raw materials are the coca leaf and the Indian hemp (marihuana, hashish, Cannabis indica). Opium is the most important because drugs derived from opium are those which are used by addicts to the greatest extent. In one sense, opium offers better possibilities for an effective limitation because it can only be obtained through a complicated process of cultivation and harvesting. Cultivation of the coca bush is not as complicated as the cultivation of the opium poppy, but addiction to cocaine (derivative of the coca leaves) is a less serious problem. There is, of course, the eating of coca leaves by the natives in certain countries in South America. This constitutes a milder form of addiction and the United Nations are dealing with this question in a different connexion. Indian hemp addiction is a wide-spread and a dreadful evil but the international authorities are not yet in a position to deal with a limitation of Indian hemp production. As everybody knows, Indian hemp is the mother plant for hemp rope and other textiles, is grown in very large quantities in many parts of the world and is found abundantly in the wild stage. Its seeds are also a commercial product. The limitation of the production of coca leaf and of Indian hemp offers quite specific problems which have been referred to above and which require a different approach than that for the limitation of opium production.

The Preamble speaks not only of limitation but also of regulation, which in addition to quantitative limitation means government control over cultivation, production, trade in and use of opium. Many articles of the Protocol deal with the regulation of opium production. It is the first time in the history of international drug control that States have been willing or required to limit poppy cultivation and this is a great step forward.

It should be noted that the Preamble refers to raw materials from which natural narcotic drugs are obtained. The explanation is that there are now on the market a great number of synthetic narcotics. These are obtained by the use of substances which are indispensable to human life and in very wide use (for instance, coal). A limitation of such substances is out of the question and, in addition, they are not dangerous in themselves. They cannot as such be abused for narcotic addiction which is the case of opium, as well as the coca leaf and the Indian hemp.

When the Preamble speaks of "poppy" cultivation, the word poppy must be taken in the sense given to it by the definition in article 1 of the Protocol, i. e., it means not only the common opium poppy ( Papaver somniferurn L.) but also any other species of Papaver which may be used for the production of opium. This fact should be stressed as it is the first time that the control provisions of an international drug instrument extend beyond the ordinary opium poppy. Illicit traffickers are often a step ahead of the governments but by this definition of poppy, governments have effectively closed any loop-hole which traffickers might want to take advantage of in the future.

In a way of speaking, the Preamble constitutes a programme for the future. The Protocol itself deals with only one, and the most dangerous of the raw materials - opium - but the Conference has clearly stated that the limitation of all raw materials in this field is essential. Essential in the sense that the world will never succeed wholly in its campaign against the drug evil unless and until all raw materials from which narcotics may be obtained have been brought under effective international limitation or control as the case may be.

II. THE RESOLUTIONS OF THE FINAL ACT

There are in all 17 resolutions annexed to the Final Act. The Conference showed a tendency to relegate to the Final Act certain matters which were controversal and on which unanimity could not be reached. In general the Final Act of an international conference does not contain matters which really belong to the instrument drawn up by the conference and which should be part of the obligations which States undertake by becoming parties to the instrument. In some cases the resolutions in this Final Act furnish explanations, or what might be called interpretations of the provisions of the Protocol; in other cases, the resolutions consist of clarification of such provisions. There is, however, another group of resolutions which are of a more general character, only indirectly related to the provisions of the Protocol. For the purposes of this article, it seems best to deal with these two groups separately, i.e., not following the numerical order in the Final Act. The first group may be termed resolutions of a technical character and the second, resolutions of a general character.

A. Technical resolutions

1. Quasi-definition of "narcotics"

The first of these resolutions is No. II which attempts to define the scope of various expressions used in the Protocol to denote narcotics. There was a suggestion at the Conference that a definition of the term narcotic drugs or similar expressions should be included among the definitions in chapter I of the Protocol. It was discovered, however, that it was very difficult to find or agree on a satisfactory definition. Besides the Conference rather indiscriminately used a number of different terms to denote narcotics in different connexions. Efforts were made to arrive at the use of one common term throughout the Protocol but these efforts were unsuccessful and it was decided to insert an explanation in the Final Act.

Resolution II simply states that whatever terms are used (narcotic substances, narcotic drugs, narcotic alkaloids or other similar expressions) they shall denote the drugs derived from opium which come within the provisions of the 1931 Convention.

It is desirable and even necessary to examine this matter closely and to begin by analysing those provisions of the 1931 Convention which are of interest. Article 1, paragraph 2, contains the definition of substances covered by the Convention and says that the term "the drugs" denotes the drugs enumerated in the paragraph whether partly manufactured or completely refined. The enumeration lists exclusively what is called manufactured drugs, their derivatives and certain preparations. In other words, neither raw opium nor medicinal opium are included in this list and are therefore not "drugs" in the sense of the definition in the 1931 Convention. It is true that both raw opium and medicinal opium are defined in the Convention but only in paragraph 3 of article 1, which means that these substances are not falling within the term "the drugs". And all provisions of the Convention apply only to "the drugs" except in article 16 which requires the contracting parties to exercise supervision over raw materials in the possession of drug manufacturers and article 17 under which manufacturers are obliged to submit quarterly reports of their business including the amount of raw materials. However, in neither of these two articles are raw and medicinal opium mentioned by name. It is thus established that these two substances are not "drugs derived from opium which come within the provisions of the 1931 Convention". In fact the terms raw opium and medicinal opium do not occur in any of the articles of the 1931 Convention except in article 1 of chapter I - Definitions. Apart from their own definitions, these terms are only found in paragraph 2 of article 1 where they are used in order to identify certain preparations made directly from raw or medicinal opium.

The following are the expressions used in the Protocol to denote narcotics: narcotic substances, narcotics, natural narcotic drugs, alkaloids, alkaloids from opium, opium alkaloids, and drugs containing opium alkaloids. As already explained the interpretation given here is that in the light of resolution II and the definitions of drugs in the 1931 Convention, none of these terms can include raw or medicinal opium or even opium prepared for smoking purposes. On the other hand opium is defined in article 1 of the Protocol as including all these three substances. The expressions alkaloids from opium, alkaloids and opium alkaloids could not in any case cover raw opium, medicinal opium, or prepared opium. Opium is composed of many different substances including various alkaloids. In order to obtain alkaloids from opium substances, they must be extracted by a chemical process.

Furthermore, the context in which these expressions are used make it quite clear that raw opium, etc.,... cannot be included in them. It remains now to see whether the other terms (narcotic substances, narcotic drugs, natural narcotic drugs, etc.,...) in the context should or should not include the opium substances. When the Preamble uses the expression "illicit traffic" in narcotic substances and speaks of narcotics control, the reference is and must be to narcotic substances including raw, medicinal and prepared opium. The terms natural narcotic drugs in the Preamble evidently refers to manufactured drugs ("raw materials from which natural narcotic drugs are obtained"). The term "drugs containing opium alkaloids or alkaloids thereof" occurs in article 7, paragraph 5, which concerns the disposal of seized opium and this provision can only refer to manufactured drugs. There is, in this paragraph, a special reference to medicinal opium in relation to a certain country's requirements of narcotic substances for consumption purposes.

The draft for what became resolution II submitted by the author as Rapporteur for the Final Act was much more explicit and stated that these expressions denoted substances and drugs falling under the provisions of all previous international instruments dealing with narcotics. However, the Conference thought that an enumeration of all these instruments was unnecessary and too cumbersome.

2. Cultivation and growing

In resolution III, there is a reference to the word "cultivate" as used in the Protocol, which should be understood to include the meaning of the term "grow", etc., ... This resolution was proposed by the United states delegation and seemed only of importance to that┬Ědelegation, from a legal point of view and taking into account the United. States legislation dealing with poppy cultivation.

3. Ornamental poppies

Article 4 of the Protocol contains certain provisions for the control of the poppy plant cultivated for purposes Other than the production of opium, and requires, inter alia, that laws or regulations be enacted to ensure that opium is not produced from such poppy. The poppy is sometimes grown for ornamental purposes, either commercially by gar-deners for sale or in private gardens. Article 4 might have been interpreted as requiring certain State control over such kind of "poppy cultivation" and this would have been very unpopular and, difficult to apply. Some delegations┬Ěhesitated in accepting article 4 for this very reason and the Conference, therefore, decided to include in the Final Act, as resolution IV, a declaration to. the effect that the provisions of article of the Protocol do not apply to poppy grown exclusively for ornamental purposes. This is an illustration of how necessary it is, sometimes, to temper the strictness of international law by the use of common sense.

4. Case of permitted export of seized opium

The fifth resolution refers to a special case dealt with in paragraph 5 of article 7 of the Protocol. The article concerns the disposal of seized opium. The general principle of the article is that seized opium should be destroyed but it admits certain exceptions. One is the following: There are some countries, and Egypt is one, which do not manufacture drugs themselves and which seize large quantities of narcotic substances in the illicit traffic. As article 7 permits the conversion of seized opium into non- narcotic or, under certain conditions, into narcotic substances, the Conference, on the request of the Egyptian delegation, agreed that countries in the position of Egypt may export certain quantities of seized opium in exchange for manufactured drugs or for the purpose of extraction of the alkaloids and their return to the country in question subject to the consent of the Permanent Central Opium Board.

The provisions of paragraph 5 of article 7 of the Protocol are amplified in resolution V, in two ways: firstly, it is suggested that the Permanent Central Opium Board should ordinarily permit such export if the conditions outlined in the article are fulfilled. Secondly, the resolution declares that such export may not be made or authorized until permission has been obtained from the Permanent Central Opium Board.

5. Moisture and morphine content

One of the most difficult problems for the international control authorities in obtaining an accurate statistical account of the production, of stocks, of commerce, and of international trade in opium, has been the absence of any international standards as regards the moisture and morphine content of opium. Due to climatic and other conditions, opium is subject to great variations in these respects. The moisture content may be as low as 10 per cent or as high as 50 per cent. In fact, when opium is harvested, it has the form of a heavy liquid. Water is evaporated at various times by drying in the sun or otherwise. However, and subsequently, the opium may absorb or give away water when transported or even when in storage. Unless opium is shipped in hermetically sealed tin-lined cases, there may be a difference in net weight of as much as 10 percent between the loading point and the point of destination overseas. As to morphine content, due to soil and other conditions at the time of cultivation, it may vary from 7 to 8 per cent to as much as 16 or 18 per cent, or even higher. Morphine is the narcotic alkaloid contained in opium, which is the mother substance of most drugs of addiction, including the very dangerous heroin. It is clear that any national and international control becomes illusory unless there is an exact knowledge of both moisture and morphine content and unless all statistical figures are reported with an indication of these two factors. For the Permanent Central Opium Board, which has the duty of keeping track of all opium produced and the object of international trade, the moisture content of opium is of primary importance. These matters were brought up for discussion several times, both in the Main Committee and in the Drafting Committee of the Conference. It was stated by several delegations that the international control would be almost useless unless all statistical figures were reported with an indication of the moisture content, and this was confirmed by the Chairman of the Permanent Central Opium Board who stated that for all 25 years of the Board's activities it had been conscious of the futility of its statistical control of world trade because of the absence of a knowledge of the moisture content.

The representatives of some of the producing countries maintained that it was not feasible or practical for them to repot opium with a fixed moisture content. They did not themselves know it and they were not willing to resort to guess work. India, on the other hand, standardizes its opium and always gives the statistics with a determined percentage of moisture. The other producing countries declared that to them standardization of opium was both a practical and a financial impossibility. It was pointed out during the discussions that the P.C.O.B., which under articles 8 and 9 of the Protocol has the duty of prescribing the forms to be used by governments when furnishing estimates and statistics, had the possibility of requesting that estimates and statistics be given with an indication of the moisture content. In the end all the Conference was able to do was to adopt resolution VIII which states exactly that position and which emphasizes that international control of production and trade in opium based on statistics supplied by governments is an essential element of the limitation and regulation of opium in accordance with the Protocol.

This is no real solution of the problem but this resolution has strengthened the hands of the P.C.O.B. in its efforts to obtain accurate and comparable statistics. It also places upon the Board the duty in collaboration especially with the producing countries to leave no stone unturned in finding a satisfactory solution

The Conference did not get anywhere with the problem of the morphine content which was raised several times. It was pointed out that drug manufacturers handling raw opium under articles 16 and 17 of the 1931 Convention are obliged to give full account for the raw opium received in their factories including the proportion of morphine contained in or producible from the opium in accordance with directions of the governments. There are large quantities of opium that never reach a drug factory which is the only place where this obligation exists. Raw opium is used both as such and in the form of medicinal opium and preparations of different kinds. It is true that under the 1925 and the 1931 Conventions governments must report to the P.C.O.B. the quantities of raw opium used for such purposes but this obligation does not extend to an accounting for the morphine content. Where the government is alert and runs an effective drug control there will not seem to be very great risks of morphine disappearing but, alas, this is not the situation everywhere. The traffickers are always ready to take advantage of any weaknesses or loop-holes in the control system. The producing countries in this connexion recalled that opium sold by them for export is paid on the basis of percentage of morphine per weight unit and that this percentage is always ascertained by analysis by recognized firms of chemical analysts with world-wide reputation for honesty and integrity. This is all very well but the problems of morphine and moisture content are so important for the effectiveness of national and international control that no effort, no expense should be spared to arrive at some satisfactory solution. Seven producing countries are obtaining a virtual monopoly for the export trade in opium through the Protocol but only four of them are actually engaged in such trade. Is it too much to ask them in their own interests as well as in the interest of humanity to take steps themselves to solve these problems as far as they are concerned ? One may ask how they can conduct an important economic activity without an accurate knowledge of the quality of the product they are handling. Perhaps they would require technical and financial assistance. If so, it should be provided through the United Nations. Any such assistance would be a cheap price to pay for preventing dangerous Substances from getting into the hands of illicit traffic; thus thousands of human beings would be saved from suffering untold misery and worse. The United Nations is now preparing a single convention on narcotics to replace all previous instruments in the field including the new Protocol and should use this opportunity for solving these two difficult and embarrassing questions. The international drug monopoly which was the basis of the now discarded so-called interim agreement on raw opium would probably have eliminated these obstacles to an effective control. The Narcotics Division of the United Nations Secretariat might do worse than to attack these problems. A careful study of the past will probably reveal possibilities for a good solution. The suggestion may be made that in the Single Convention Parties should undertake to analyse all opium, be they producers or consumers, for moisture and morphine content, keep opium in moisture, and temperature controlled storage and report statistically to P.C.O.B. with moisture and morphine content. Modern techniques make this a very real possibility and opium is a delicate and expensive product which ought to be able to support the expenses involved. National and international control would cease to be an illusion and the opium itself would obtain a more stable position in the world markets.

6. Local inquiries by the P.C.O.B.

Resolution IX deals with local inquiries by the P.C.O.B. under paragraph 1 ( d) of article 11 of the Protocol. This article is found in chapter IV which concerns international supervision and enforcement measures relating to the application of the Protocol and to the opium situation in any country or territory. Local inquiry is one of the administrative measures which also include requests for information, requests for explanations and proposals of remedial measures. The local inquiry can only be made with the express consent of the government concerned. Resolution IX says that it is understood that the P.C.O.B. will resort to a local inquiry only as it may appear necessary for the elucidation of the situation as regards the observance of important provisions of the Protocol or where there is reason to believe that a gravely unsatisfactory opium situation exists. It is the opinion of the author that this resolution is not necessary but it was inserted by the Conference on the insistence of the representative of one of the producing countries. Already under article 11 of the Protocol a local inquiry may be proposed only if there is a failure to carry out substantially any important provision of the Protocol or if a gravely unsatisfactory opium situation exists. The resolution more or less repeats what is already in the text of theProtocol. Furthermore a decision to undertake a local inquiry requires a majority of all the members of the Central Board whether they are present at the session or not. The Board will normally exhaust the other administrative measures under article 11 before contemplating a local inquiry which, as already mentioned, can only be made with the express consent of the government concerned. Finally the Board consists of serious-minded experienced persons who under no circumstances would go to the length of proposing a local inquiry unless there was a very serious situation indeed.

7. Definition of "year"

There is one more technical resolution to be dealt with, namely No. VII, which states that wherever the term "year" is used it means twelve months from 1 January to 31 December, in other words, the Gregorian calendar year. The reason for this resolution is the fact that all estimates, statistics, etc., to be furnished under the provisions of the Protocol, must cover exactly, the same period independently of from which country they emanate; otherwise the application of the Protocol would be very difficult and statistics would not becomparable. The latter is very important as the P.C.O.B. has the task of seeing to it that no opium disappears from legitimate channels into the illicit traffic. Some countries would have found it easier to use the fiscal year or their own years which do not coincide with the Gregorian calendar year. There are, for instance, different years in use in some countries such as Iran and Thailand.

B. General resolutions

Among the resolutions to be treated under this heading there are four which deal with prepared opium and quasi-medical use of opium and which may be considered as borderline cases between the technical and the general resolutions. They are related to the provisions of the Protocol (definition of opium in article 1, article 2 concerning medical and scientific use, and the transitional measures in article 19) but they do not affect the main provisions of the Protocol except indirectly. The Protocol states in article 2 that the Parties shall limit the use of opium exclusively to medical and scientific needs. The transitional measures in article 19 permit certain temporary exceptions from this very important principle in "favour of" opium-smoking and quasi-medical use of opium. The problems involved are so all-important for the campaign against the abuse of narcotics that it seems preferable to deal with these resolutions in some detail in connexion with the general resolutions.

1. Opium-smoking

Resolution X is the one that deals with opium-smoking or the use of prepared opium.

Opium-smoking has for many centuries been practised by the Chinese people. Wherever the Chinese have gone they carried their habit with them and spread it among the people in whose midst they settled. Opium-smoking became gradually a wide-spread habit not only among the Chinese but also among the Malays, the Indonesians, the Burmese, the Thais, the Filipinos, the Koreans, the Formosans, the various races in Indochina and, to a lesser extent, among the people of India. Up to the end of the Second World War there were in most countries and territories of the Far East (with exception of the Philippines) government opium monopolies which manufactured prepared opium and sold it to smokers. The administrations derived important revenues from these monopolies. There was strong opposition to and criticism of this state of affairs. That governments for profit should allow their peoples to smoke opium, to poison themselves, to ruin their health and impoverish their families was considered immoral and indecent. From the other side the defence was that opium-smoking was deeply rooted and could not be abolished overnight; in any ease illicit traffic in opium was so wide-spread that the results of prohibiting opium-smoking would simply tend to deliver the smokers into the hands of traffickers. The result would be worse than legalized and State-controlled opium-smoking which would ultimately lead to the suppression of the habit.

The abolition of opium-smoking for a long time has been one of the objectives of the campaign against narcotics. There were provisions on the subject already in The Hague Convention of 1912 which in article 6 laid down the obligation of the contracting Parties to take measures for the gradual and effective suppression of opium-smoking. There were two special conferences in Geneva in 1924-1925 and in Bangkok in 1931 which dealt specifically with opium-smoking. Between these there was the League of Nations Commission of Enquiry into the control of opium-smoking in the Far East, 1929 to 1930. In addition to the provisions of The Hague Convention further measures towards the suppression of opium-smoking were embodied in the Geneva agreement of 1925 and the Bangkok agreement of 1931. Towards the end of World War II a number of governments concerned in the Far East or with possessions there-while these countries or territories were still under Japanese domination or occupation-announced that on retaking possession of their territories they would abolish government opium monopolies and suppress opium-smoking. Today the general situation is that opium-smoking is still permitted but only to registered smokers who are allowed only annually reduced rations.

When the United Nations Opium Conference of 1953 adopted the principle that opium may only be used for medical and scientific purposes it had to deal also with opium-smoking which is not medical or scientific use of opium, hence the transitional measures in article 19 of the Protocol. These are not dealt with in this study, which concerns only the Final Act, except incidentally, and in order to explain or clarify the relevant resolutions of the Final Act. The Conference also found it necessary, when defining opium, to include prepared opium. Otherwise there might have been loop-holes in the main provisions of the Protocol. Once prepared opium was mentioned in the Protocol some delegates at the Conference were afraid-perhaps with justification - lest this fact be used as an excuse for delaying the final suppression of opium-smoking, and they, therefore, proposed and the Conference accepted to cover this aspect of the matter in resolution X of the Final Act. The resolution in question recalls the contractual obligation of the States concerned to suppress opium-smoking and declares that nothing in the Protocol and particularly neither the inclusion of prepared opium in the definition of opium nor the presence of transitional measures may be interpreted as affecting their obligation to suppress opium-smoking finally and completely and with the least possible delay. Under the transitional measures legal opium-smoking will disappear with the death of the opium-smokers which have been registered as such on or before 30 September 1953. No person under 21 years of age may be registered as smoker.

2. Quasi-medical use ( eating)

While the abolition of opium-smoking has been the subject of international measures ever since 1912 it is now the first time that an international instrument deals with the use of opium for quasi-medical purposes. In popular words, this is the problem of eating opium which has been a custom for centuries on the sub-continent of Asia, i. e., what is now India and Pakistan. The habit has also existed to some extent in Burma. The eating of opium to cure disease or to relieve pain has been part and parcel of the native "medical" practice from time immemorial. It may be compared with so-called household remedies which were popular in the Western countries before the development of modern medicine.

The abolition of this use of opium, which, in fact, is a form of addiction, has been under discussion and attack for many years on the international level but no headway has been made as the answer always was that this was a deeply-rooted habit which could not be interfered with without serious consequences and which in any case was considered more or less harmless. In fact the eating of opium is just as harmful as opium-smoking, perhaps even more so as the eater absorbs in his body all the morphine and other alkaloids contained in opium whereas the smoker of opium, according to chemical analysis, absorbs only a part of the morphine and other alkaloids contained in prepared opium. In this connexion it should be mentioned that the governments concerned have already taken steps towards the abolition of quasi-medical use of opium without waiting for any internationally assumed obligations.

As was the case for prepared opium it was necessary for the 1953 Opium Conference to deal with the eating of opium once it accepted the principle that opium may be used only for medical and scientific purposes.

The principal provision of article 19 of the Protocol is that States concerned undertake to abolish the quasi-medical use of opium within a period which in no case may exceed fifteen years after the coming into force of the Protocol.

As the Conference decided to deal with the quasi-medical use of opium it was necessary to provide a definition which should have been inserted in the Protocol itself. However this was not done and the most plausible reason is that the Conference was not prepared at this stage to accept a legally binding definition. The draft Protocol which was before the Conference had the definition in the body of section 17 which dealt with reservations and which later became the transitional measures in article 19. The Conference lifted this definition from the draft Protocol and put it into the Final Act as resolution XI. The text of the definition had been proposed by the Chairman of the P.C.O.B. in the course of the 1951 session of the Narcotics Commission (sixth session). It is important to examine this definition carefully and it is therefore reproduced here in extenso:

"XI. The Conference,

" Recalling the transitional measures under article 19 of the Protocol regarding the use of opium for quasi-medical purposes,

" Declares that the use of opium for quasi-medical purposes shall, for the application of the Protocol, denote the use of opium without medical aid for relief of pain other than that caused by addiction to opium or to other narcotic drugs, but shall not include:

"( a) The use of opium dispensed in accordance with the provisions of article 9 of the 1925 Convention;

"( b) The use of drugs containing opium and exempted under article 8 of the 1925 Convention; and

"( c) Opium-smoking."

This definition may go further than at the time the Conference realized. The use of opium must be without medical aid and this is obvious. Otherwise it would be a fully legal medical use. However, medical aid must be taken in the western, modern sense. Further, the use must be for the relief of pain. The eating of opium for pure pleasure or because the eater is addicted should no longer be permitted and would in fact be outlawed if the definition had been put in the Protocol itself.

Pain is further qualified by the statement that it must not be pain caused by addiction to opium or other narcotic drugs. In other words, eating of opium because of a craving for it or because of abstinence symptoms due to habituation to opium or drugs is not the authorized quasi-medical use of opium. What remains then as permitted during the period prior to suppression ? Only the use for relief of pain caused by any other reason than addiction. It is to be supposed that the use of opium for the relief of pain in native medicine will be authorized during the transitional period but also the taking of opium by an individual who has a pain but not even native medical attention. It is certainly going to be a problem for the authorities to decide whether or not to authorize an individual to take opium for the relief of pain. It is not to be expected that licensed vendors of opium will be able to exercise any discretion and decide whether the person who wants to buy opium is suffering from a pain which would allow him to get it. However, these matters are not too important; the main fact is that after the transitional period the quasi-medical use of opium shall disappear. Quasi-medical use by definition doe; not include opium-smoking. This is of course essential because the governments concerned have already an obligation to suppress opium-smoking and furthermore, in article 19 of the Protocol, there is no provision for a transitional period for final suppression. The exeptions in ( a) and ( b) of resolution XI are in fact medical use in accordance with the provisions of earlier drug conventions.

The Conference, having admitted transitional measures relating to quasi-medical use decided, however, at the same time to appeal to the governments concerned to make every effort to suppress such use as soon as possible and notwithstanding the maximum period allowed for in article 19 of the Protocol. The Conference also decided that these transitional measures should not be regarded as implying permission to relax any restrictions already imposed. This is the sense of resolution XII.

The fourth resolution dealing with quasi-medical use of opium is resolution XIII - a simple one relating to stocks of opium in the hands of licensed vendors who dispense opium for quasi-medical use. Stocks of opium are subject to limitation and regulation under the provisions of the Protocol. In fact, stock limitation is the central point of the whole Protocol as far as production, trade and use of opium are concerned. By definition in article 1, opium held by retail pharmacists and certain institutions and professional persons is not to be included in the stocks subject to limitation. The Conference agreed that stocks held by licensed vendors for sale for quasi-medical purposes were to be assimilated with stocks held by retail pharmacists and exempted from the provisions of the Protocol relating to the limitation of stocks. It would have been more logical to put this into the definition in article 1 of the Protocol, but the Conference preferred to include it in the Final Act. It seems that the Conference felt disinclined to refer in the Protocol to quasi-medical use of opium anywhere except in the transitional measures.

3. Freedom of trade

Two of the resolutions of a general character concern the international trade and have at their origin two facts, the first being that the number of countries authorized to produce opium for export has been limited to seven and the second being the fact that the international trade in opium had to be subjected to special restrictions. The Conference, which was well aware of the trend of the times towards greater freedom in international trade, generally speaking, was anxious to emphasize that restrictions on the freedom of activity of States in the opium trade are necessary in order to combat illicit traffic and protect humanity against the danger of addiction. On the other hand, the Conference found it desirable to state expressly that such restrictions should not be considered as a precedent, for restrictions on the freedom of activity in international trade in general. This is the purpose and contents of resolution XVI.

4. Cartels and other combines

The most important restriction in international trade is the monopoly to produce opium for export given to seven countries under article 6, paragraph 2 of the Protocol. This restriction carries a danger of the formation of cartels or other combines by producers or consumers, or both. This problem has been the object of international discussions for approximately fifteen years. The League of Nations considered the problem in its proposed convention on limitation of opium production. At the time, approximately during 1936-1939, there was a question of applying a limitation system, which in practice would have given a monopoly to four countries only. To avoid the danger of cartels or similar arrangements, the League proposed that prices of raw opium in the international market should be fixed by international agreement. The Opium Advisory Committee of the League stated in 1939 that whatever system for the limitation of opium production and of opium trade was adopted ("quota" or "free order" system), regulation of prices was essential in the interests both of producing and consuming countries, and it also stated that a regulation of prices would have only "avery slight repercussion" on the retail prices paid by the consumer for medicaments containing drugs.

The so-called Interim Agreement for the limitation of raw opium production with its international opium monopoly would have solved all problems concerning price wars and would have done away with all possibilities of cartels, but, as already mentioned, the Interim Agreement was abandoned in 1951. The draft of the Protocol approved by the Commission on Narcotic Drugs contained a whole series of provisions on cartels, etc., in section 4, dealing with international trade in opium. The Conference would have nothing of these detailed provisions and in fact did not wish to see the word "cartel" appear anywhere in the Protocol or in the Final Act. The matter was discussed thoroughly after the Conference had been informed in some detail of the work of the United Nations Committee on Restrictive Business Practices. In the end the Conference decided to deal with the matter in a resolution in the Final Act (XV). The gist of this resolution is a recommendation to Parties to take all appropriate steps to prevent restrictive business practices to interfere with the normal international trade in opium for medical and scientific purposes at fair and reasonable prices, terms and conditions. As possible restrictive business practices are mentioned: price-fixing, allocation or limitation of production or markets, and price discrimination. Naturally, this recommendation is addressed equally to producing and consuming countries. The resolution further states that any matter involving restrictive business practices should be referred by the Parties to any future inter-governmental body or agency which might be established to deal with such questions.

During the discussions on this problem, it was pointed out that in fact there was no great danger of producing countries holding out for unreasonable prices. In the past, there had been the Turko-Yugoslav Sales Agreement, but there had also been the drug manufacturers cartel. In the future if there were a combine on one side there would quickly be formed a combine by the opposite interests. Further-more, any country which so wished could produce opium for its own needs or obtain morphine by extraction from poppy straw or by import. There were also the possibilities in the future of replacing natural alkaloids by synthetic drugs as soon as the manufacture had been rationalized to produce synthetic drugs at competitive prices. It is a fact that opium does no longer occupy a privileged or exclusive position as a raw material for narcotic drugs. According to figures submitted by the Secretariat to the Conference there is enough poppy straw available in the world to produce more than twice the world's medical and scientific requirements of morphine and its derivatives. Cartels could, of course, temporarily upset the markets and cause inconveniences and injuries but in the long run they would be ineffective if the purpose were to interfere with normal legitimate trade in opium.

5. Model administrative code

Resolution XIV, recalling the so-called model codes prepared by the League of Nations for the application of the 1925 and 1931 Conventions, contains a recommendation that a similar code should be prepared and circulated to governments for their guidance in implementing and applying the Protocol. In pursuance of this resolution the Economic and Social Council on 28 July 1953 requested the Commission on Narcotic Drugs to draw up a model code and commentary for the application of the Protocol. The question of the model code is being dealt with in more detail in a separate article [1] .

6. Measures for speeding universal application

It has already been mentioned that success in the campaign against the drug evil depends altogether on close and universal international co-operation. In fact, no general drug convention can obtain the desired and necessary results unless it is universally applied. This is also the case for the Protocol which aims at the limitation and regulation of the opium production, the international trade in, and the use of opium. Unless the main producing-exporting countries and the main drug-manufacturing countries become Parties to the Protocol, the Protocol could not operate. Any of these countries remaining outside could completely upset the limitation scheme. Realizing the importance of as universal an application as possible, the Conference, in article 21 of the Protocol, has inserted certain provisions to the effect that the Protocol will not come into force until at least 25 States have become Parties, including not less than 3 of the producing-exporting countries and at least 3 of 9 manufacturing countries listed in the article. Furthermore, the Conference emphasized the need for the Protocol becoming applicable with the least possible delay and, in resolution I of the Final Act, it addressed a request to the Economic and Social Council and to the Secretary-General of the United Nations to use their best endeavours to ensure: ( a) that the Protocol comes into force as soon as possible, and ( b) that it be ratified or adhered to by as many States as possible. The Conference went even further by the request to the Economic and Social Council and to the Secretary-General to make every effort to ensure the implementation of the Protocol so far as may be practicable by States which do not become Parties.

1. See p. 40.

By this resolution, both the Economic and Social Council and the Secretary-General have been given very important and difficult tasks. The Economic and Social Council, as a regular procedure, reviews the state of ratification of international instruments concluded under the auspices of the United Nations and, from time to time, adopts resolutions urging ratification and accession. The most active work, without doubt, falls upon the Secretariat. Ratification and adhesion, as the case may be, are at best very slow in forthcoming and have to follow sometimes lengthy constitutional procedures. Many States require that the implementing legislation be enacted before the question of ratification or accession is even submitted to the constitutional bodies involved.

There is a very interesting precedent in regard to the coming into force of the Limitation Convention of 1931, which also required 25 ratifications or adhesions. The Conference, which drew up this Convention, was very conscious of the urgency of its coming into force and included in the Protocol of Signature a prevision to the effect that, if the Convention had not come into force within two years (i.e., July 13th, 1933), the Secretary-General of the League of Nations should bring the matter before the Council of the League. The Council would either convene a new Conference of all States which had signed, ratified or adhered to the Convention, in order to consider the situation or take such other measures as it deemed necessary. The States concerned agreed in advance to be present at such a Conference. The Secretariat of the League developed an intense activity, and individual States, particularly the United States of America, made diplomatic demarches in the capitals of many Countries. A most valuable contribution was made by a number of international and national private organizations which pushed action by governments through various means. Fortunately, these activities proved effective and the Limitation Convention came into force a few days before the time limit, mentioned above. The task, this time, is probably more difficult for various reasons. Although the Protocol deals with a very important matter, it has a limited scope (opium alone). The countries which are materially affected by the Protocol are relatively few. Countries which are neither producing-exporting or drug-manufacturing countries may hesitate to become parties fearing a great deal of additional administrative work and expense. For these countries, it is well to remember that universal application of a narcotic drugs instrument is essential. Every country, however small and however unaffected and unconcerned, may need protection and must help to protect other countries against the drug evil. The strength of a chain is only the strength of its weakest link.

It is important that the Secretariat of the United Nations should at once plan its campaign to speed up the coming into force of the Protocol and it may do well in enlisting the assistance df influential private organizations which made such a successful contribution during the years 1931 to 1933.

7. Assumption of functions by the United Nations

The last of the resolutions of the Final Act (XVII) is of a formal and legal character. In it, the Conference requests the directing organs of the United Nations (Economic and Social Council a.nd the General Assembly) to approve the acceptation of the functions and responsibilities attributed by the Protocol to organs of the United Nations and to take steps to assess to non-members of the United Nations their fair share of the expenses borne by the United Nations on account of the application of the Protocol.

It will be seen from the above that the resolutions contained in the Final Act are on the whole of great importance and essential for an effective application of the Protocol. As already mentioned, some of these resolutions ought to have had their place among the provisions of the Protocol itself rather than those of the Final Act. As it is, they are in the Final Act and it is well to keep in mind always that these resolutions, by this fact, do not constitute any binding obligations for governments which become Parties to the protocol. However, as already mentioned, there is a moral -obligation and the greatest incentive for governments to observe the resolutions lies in the fact that the Conference, at which over 40 States were represented, unanimously adopted the Final Act with its resolutions.