Model Administrative Codes to and Commentaries on International Narcotics Instruments

Abstract

The International Opium Conference, which was held at United Nations Headquarters, New York, in May and June of this year, adopted a Protocol for limiting and regulating the cultivation of the poppy plant, the production of, international and wholesale trade in, and use of opium. In the Final Act of the Conference, a recommendation was included to the effect that the Commission on Narcotic Drugs of the United Nations should elaborate a model administrative code which would guide governments as far as possible in framing necessary legislative and administrative measures for the application in their territories of the Protocol. The recommendation recalled the model codes for the application of the 1925 and 1931 drug Conventions which had been drawn up by the Opium Advisory Committee of the League of Nations and which had been of considerable value to a number of governments.

Details

Author: Bertil A. Renborg
Pages: 40 to 45
Creation Date: 1953/01/01

Model Administrative Codes to and Commentaries on International Narcotics Instruments

Bertil A. Renborg

The International Opium Conference, which was held at United Nations Headquarters, New York, in May and June of this year, adopted a Protocol for limiting and regulating the cultivation of the poppy plant, the production of, international and wholesale trade in, and use of opium. In the Final Act of the Conference, a recommendation was included to the effect that the Commission on Narcotic Drugs of the United Nations should elaborate a model administrative code which would guide governments as far as possible in framing necessary legislative and administrative measures for the application in their territories of the Protocol. The recommendation recalled the model codes for the application of the 1925 and 1931 drug Conventions which had been drawn up by the Opium Advisory Committee of the League of Nations and which had been of considerable value to a number of governments.

The origin of the model code to the 1925 Convention was a suggestion made at the tenth session of the Opium Advisory Committee (1927) by the representative of Italy, Senator Cavazzoni, who submitted to the Committee a memorandum formulating a number of rules in accordance with which he thought that the administrative control of the drug traffic should be organized.

A sub-committee was appointed to study the matter and the result was the model administrative code which was adopted by the Opium Advisory Committee at its eleventh session (1928).

The Conference which met in 1931 and which drew up the Convention for the limitation of the manufacture of narcotic drugs found that the model administrative code to the 1925 Convention had been of considerable value to a number of governments and recommended that a similar code should be drawn up by the Opium Advisory Committee before the coming into force of the new Convention. This code was also prepared by a sub-committee and approved by the Committee itself. The two codes were issued together in the League of Nations document No. C.774.M.365.1932.XI., dated Geneva, 17 November 1932, and entitled: " Model administrative code to the International Opium Conventions of 1925 and 1931".

There are two other documents which should be mentioned here. One is the historical and technical study of the Limitation Convention of 1931 prepared by the Opium Traffic Section of the Secretariat of the League of Nations in accordance with a decision taken by the 1931 Conference at its closing meeting. This document bears League of Nations number C.191.M.136.1937.XI., dated October 1937. The other document is entitled: "Notes on the preparation of estimates (Form B (L))" and was elaborated by the Drug Supervisory Body to facilitate the work of governments in submitting estimates of drugs requirements in accordance with the provisions of the 1931 Convention. This document was issued by the Secretariat of the League of Nations on 15 November 1937 and carried League of Nations document No. C.521.M.362.1937.XI.

When the Economic and Social Council, at its session in Geneva in the summer of 1953, considered the results of the United Nations Opium Conference of the same year, it approved the recommendation that a model code to the Opium Limitation Protocol should be prepared by the Commission on Narcotic Drugs. But the Council went further and requested the Commission to draw up a model code and commentary to be circulated to governments. The Council had probably in mind a document similar to the historical and technical study to the 1931 Convention.

The United Nations Narcotics Commission and the Secretariat hence have the duty of preparing material which could be used both in a model administrative code and in a commentary to the Protocol of 1953. Both kinds of material are important and will greatly facilitate to governments the implementation of the Protocol. They will be of the greatest utility in ensuring an effective and also somewhat uniform application in the various countries. The preparation of this draft is very urgent. Governments should have it at their disposal, as soon as possible, so that they may be guided by it in preparing their legislative and administrative measures. The model code to the 1925 Convention was first issued in 1928 almost simultaneously with the coming into force of the Convention. The model code for the Limitation Convention came out in 1932 well ahead of the coming into force of the Convention itself (10 July 1933).

The model codes to the 1925 and 1931 Conventions contained general interpretation of the articles of the Convention, amplification of certain texts and practical recommendations or suggestions of how the provisions should be applied.

The Code to the 1925 Convention has four different chapters: I. General Provisions, Licences, Guaranties; II. Manufacture; III. Import and Export; IV. Internal Trade. It should be remembered that the 1925 Convention was the first drug instrument which contained specific and detailed provisions on how drug control should be organized and, as a consequence, the model Code dealt in great detail with the practical application of the articles of the Convention. In a general sense, the Code may be said to have spelt out in a language easy to read and to understand the legal texts of the Convention. This Code does not follow the various articles themselves but deals with the provisions in a running text under appropriate headings.

In some cases, the model Code went further than the Convention itself. For instance, under concentration and unification of supervision the Code suggests that wherever possible the supervision of the trade in narcotics as a whole should be in the hands of a single authority or that, in any case, steps should be taken to establish co-ordination when several authorities were involved. This is not based on any specific provision in the Convention and could have been only considered as a recommendation. A specific obligation in this respect was, in fact, introduced in the Limitation Convention of 1931. Similarly, in dealing with licences for manufacturers and dealers in drugs, the Code makes very detailed suggestions which have no counterpart in the Convention itself.

The Convention gives the principles and general rules while the Code carries them out in more detail and adapts them to practical use.

The Code to the 1931 Convention follows the same lines except that the comments are attached to the articles to which they refer. Not all articles are mentioned because it was decided not to include in the Code any provisions which were already clearly indicated in the Convention itself. Instead of going into great detail with regard to the contents of the Code, it is enough to say that it is, on the whole, similar to the Code of the 1925 Convention. Further, this Code does not repeat the contents of the previous Code.

The two codes are valid together for the two Conventions, which complete each other and remain in full force. The Code to the Limitation Convention concentrates on such matters as stocks, estimates, limitation of manufacture, special restrictions and the new control measures. Again the objective was to give practical suggestions, clarify and to some extent interpret the legal texts in view of their practical application. This Code has an important annex, composed of two parts: firstly, suggestions as to suitable methods on preparing drug estimates, and, secondly, examples of methods used in some countries (Netherlands, Switzerland, United Kingdom and United States) for compiling consumption statistics.

After the coming into force of the 1931 Convention and after the Supervisory Body had had some years of experience in applying the estimates system, the need was felt for a practical guide to be used by officials who had to deal with estimates. The Supervisory Body had noticed many erroneous interpretations of the legal texts and differences in application by various governments; these matters caused difficulties to the working of the estimates system. The "Notes on the preparation of the Estimates" were therefore prepared and issued in 1937. They are in two parts, one for countries which manufacture or convert drugs, and the other for countries which import their drug requirements.

The document follows closely the special form on which estimates are to be furnished and explains how each heading should be filled in and how the amounts are to be calculated. Of special interest is the suggestion made by the Supervisory Body that estimates of quantities required to bring or reduce reserve stocks or government stocks to the desired levels should not be sent in together with the ordinary annual estimates, but as supplementary estimates after the end of the year. The reason for this suggestion was a simple, practical one. Additions to stocks or deductions from them are to be calculated on the stocks existing at the end of a certain year, but naturally refer to the following year. Annual estimates are prepared in the summer, at which time it is impossible for governments to estimate with any accuracy how much additional or less stock they would require. This can only be done once the actual levels of stocks as per 31 December have been ascertained.

In its comparative shortness and simplicity, this document greatly facilitated an effective application of the estimates system both for governments and for the Supervisory Body.

The Historical and Technical Study of the 1931 Convention (here called the Commentary) is a much more ambitious and important document than the model codes. It took the League of Nations over six years to prepare it. It is a commentary in the true sense of the word, inasmuch as it explains, amplifies and discusses every article and every paragraph of the Convention which is not altogether self-explanatory.

The commentary has a very important introduction which passes in review the previous conventions, points to their interrelation to the new convention and outlines its mechanism. The commentary then takes up each article by itself and, where necessary, comments on the whole text or on any particular word or set of words. The commentary draws very largely from the discussions which were held at the Conference and from the experience of the application of earlier conventions in appropriate cases.

The document is a very detailed technical one which can be readily understood only by those who have an intimate knowledge of drug control and practical experience in its application both on national and international levels. The commentary is in daily use everywhere by those officials who have to administer the Conventions and the national drug laws and regulations.

Following these short descriptions of the various documents which were used to facilitate the application of the 1925 and 1931 Conventions, it seems appropriate to give some attention to the model administrative code and the proposed commentary to the 1953 Protocol which are to be prepared in accordance with the wish of the Conference and the decision of the Economic and Social Council.

The first question to be studied is the timing of the issue of this material. It seems that it should be issued as soon as possible so as to be available to governments when they prepare the legislative and administrative measures for the application of the Protocol. This is the direct and first objective and is expressly mentioned with regard to the Protocol in resolution XIV of the Final Act adopted by the Conference. The crucial point in the application of an international instrument is naturally the laws and regulations which have to be issued to give effect to it. They guide the administrative practice and in fact are decisive for the effectiveness of the control. If the laws and regulations are poor, the application will be poor and amendments or improvements have to be considered after a little while. It is therefore of the greatest importance that the initial measures are as good and as complete as possible. It is here that the contents of both the code and the commentary would have the greatest importance. It might be said that it would probably be better if the draft were prepared after there has been some experience of the application of the Protocol. On balance, however, the preference must be to get it out without delay and then to revise it later if found necessary.

Furthermore, there are now available persons with expert knowledge and long experience of drug control in general and opium control in particular. Such experts would have no difficulty in drawing up such a draft, even in the absence of any experience of the working of the new Protocol. It can only be repeated that the quicker the draft is available (the summer of 1954 would be a desirable target), the more effect it will have on the implementation of the Protocol in the various countries. The Protocol itself is somewhat complicated and does not provide by itself a complete solution of the problem of the limitation of world production of raw opium to the world's medical and scientific needs. The success or failure of the Protocol will very largely depend on the application measures taken by the Parties.

The ideal solution would probably be to issue all the material together. However, the fact that the commentary might require much more time than the model code militates against this solution. The Commentary to the 1931 Convention did not appear until the Autumn of 1937 but this delay was not altogether necessary and was due to special circumstances. With consistent and persistent work by experts, the draft of the commentary could be completed by the Secretariat in time for the next session of the Commission on Narcotic Drugs (May 1954). The first draft of the model code could be prepared in a month or two. In any case its contents will have to be discussed and approved by the Commission in May next if it is available then. It is to be hoped that it will not be necessary for the Secretariat to wait for formal instructions by the Commission before it begins its preparation of the draft. If the Secretariat had to wait for such instructions it might be years before the work could be done.

The suggestion of a commentary to the Protocol was made at the recent session of the Economic and Social Council by the representative of China and from the discussions in the Social Committee of the Council it appears that the intention was to leave it to the Narcotics Commission to decide whether to prepare both a model code and a commentary, or either, or a combination of the two.

The draft ought to have a fairly full introduction or a first chapter which would contain a general analysis of the principles underlining the Protocol, the main provisions through which it is intended to achieve the aims of the Protocol and the mechanism itself. Special attention is drawn to the desirability of including a study of the effects on world production of raw opium of the provisions concerning limitation of stocks; these provisions form perhaps the most important piece of mechanism of the Protocol. By using statistical information of the past it would be possible to work out a fairly accurate approximation of the total amount of world stocks which producing, manufacturing and consuming countries will be authorized to keep each year. Such a study would make it possible to compare stocks held by pro-ducing-exporting countries and stocks held by the two groups of consuming countries. Even more interesting and illuminating for an appreciation of the effectiveness of the limitation scheme of the Protocol would be a comparison between authorized amounts of total world stocks and world requirements for medical and scientific needs. Allowances could easily be made for the quantity of raw opium which still temporarily would be used for the manufacture of smoking-opium and for quasi-medical purposes (eating).

The model administrative code, it is suggested, might follow the text of the Protocol article by article and wherever necessary give explanations of the text, outline what the provisions are intended to achieve and how that purpose will be achieved. In appropriate places the code should refer to the resolutions of the Final Act and explain their effects on the application and interpretation of the legal text of the Protocol. It would seem that the main attention should be given to the following subjects: Definitions (article 1), Control in producing countries (article 3), Control of the poppy plant (article 4), Limitation of stocks (article 5), International trade in opium (article 6) and Disposal of seized opium (article 7). These are the principal operative articles affecting the implementation and the application of the Protocol and this is where practical advice is most necessary already at the outset. The provisions dealing with estimates and statistics will be dealt with by the Permanent Central Opium Board when it prepares the forms for the use of governments. Furthermore for a long term already administrations have acquired experience in furnishing such information. It does not seem necessary, therefore, to devote much space to explain the estimates and statistics system under the Protocol. Chapter IV, which concerns international supervision and enforcement measures, does not at this juncture require a detailed study and explanation and the interpretation and application of these provisions can safely be left in the capable and experienced hands of the Central Board. In regard to article 14 (Measures of Implementation) some suggestions may be made regarding matters to be covered by laws and regulations if not already in existence. The transitional measures in article 19 (Opium-Smoking and Quasi-Medical Use) should be studied in some detail and this ought to expedite the final suppression of these two forms of addiction.

A very useful contribution to the successful application of the Protocol would be a somewhat detailed treatment of the system of control in opium-producing countries and of the government opium monopolies which the Protocol has in mind although the word monopoly is not used. In the past a great deal of the opium which has passed into the illicit traffic has been diverted from some of the producing countries. It is, therefore, of the utmost importance that control in producing countries becomes as effective as possible. This will depend on the functions, organization and administration of the government agencies which, under the Protocol, will be solely responsible for organizing and controlling cultivation, for acquiring the opium produced, for keeping the opium stocks and for engaging in wholesale trade, import and export of opium.

It may not be amiss to draw attention to some of the more important points which might be dealt with in the model code.

For instance, in regard to article 2, it is desirable to note the transitional provisions in article 19 which temporarily modify the principle expressed in article 2 that opium may be used exclusively for medical and scientific needs. Most countries no doubt al- ready have legislation which assures this but it would be necessary that all countries review their legislation on this point. Naturally, the countries which still permit opium-smoking and the quasi-medical use of opium should make sure that their laws are adapted to the principle in article 2 at least when final suppression of all non-medical use of opium is being achieved. The Conventions of 1925 and 1931 and the model codes to them furnish ample help in preparing national and international control in application of article 2.

As already has been mentioned, control in producing countries is of vital importance in order to prevent escape of opium into the illicit traffic and the provisions concerning control in producing States in article 3, therefore, should be given full explanations with practical suggestions for their application. The first point to be made is that all provisions of article 3 apply ,to every producing country which cultivates the poppy for the production of raw opium and not only to the seven producing-exporting States mentioned in article 6. Licensing and control of cultivation are the fundamental factors to ensure that no opium disappears from producing countries into illicit channels. Licence to cultivate should be issued only to individuals, be non-transferable, issued annually, be revocable at the discretion of the issuing authority and, of course, state that the whole crop must be delivered to the competent authorities. There must be provided severe penalties for violations of the licence conditions. The licence should also indicate as exactly as possible the number of hectares on which the poppy may be cultivated and this area should as far as possible be identifiable (cadastral survey). Some suggestions should be made as regards the inspection which must be continuous from sowing until the government takes over the crop. Inspectors having the position of State officials should be stationed permanently in sufficient numbers in the regions where poppy cultivation is authorized (article 3, paragraph 2).

It is desirable to mention that the government agency or agencies responsible for cultivation and handling of the crop should be established by law and have their functions, prerogatives and responsibilities clearly defined in such law.

The model code might very well devote some space to the problem of stocks to be maintained by the competent agency. Such problems as method of collecting opium from cultivators, temporary storage in producing regions, transfer to government's central warehouse and protection for the crop during all these operations should be dealt with. Another important point is conditions of storage in the central warehouse, recording and book-keeping and also, of course, the problem of control of the moisture content. Practical suggestions on all these matters will be helpful to governments and will contribute to the establishment of an effective control system.

Article 5 which is the central point in the whole limitation scheme and which concerns the limitation of stocks in all countries, requires a full treatment in the model code. In the first place, attention should be drawn to the preamble of the article which indicates that the purpose of the limitation of stocks is to limit to medical and scientific needs the quantity of opium produced in the world. Paragraph 1 states that for that purpose, production, export and import of opium shall be regulated so as to ensure that stocks in any country shall, on the last day of any year, not exceed the limits indicated in the subsequent paragraphs of the article. It may be pointed out that these provisions tie in with article 2 and article 6 which require that opium be used, imported and exported for medical and scientific purposes only.

As regards the methods of calculating the maximum stocks it is important to note that as far as producing-exporting countries are concerned, only exports in the past for medical and scientific purposes may be taken into account. This is expressly said and is further confirmed by the fact that the basis of calculation shall be the statistics examined and published by the Permanent Central Board. Only exports which have been made after 1 January 1946 may be included. If a producing country should have exported opium for use as prepared opium, or for quasi-medical use, such exports may not be taken into account and, naturally, the same applies to exports which have not reached their legitimate destinations.

The methods for calculating maximum stocks for drug manufacturing countries and for purely consuming countries are fairly well defined. For the former group, however, it would seem logical to include only opium used for the manufacture of alkaloids, although the wording is somewhat ambiguous and although a case might be made for including also quantities of opium consumed as such. It might be recalled that by definition in chapter I, opium includes both raw, medicinal, and prepared opium. A reference should be made here to the transitional measures in article 19 which permits a State making the required declaration to include in its maximum stocks the amount of raw opium consumed for quasi-medical purposes in the two preceding years. There is no corresponding provision for countries which temporarily permit the smoking of opium.

As regards article 6 which deals with the international trade in opium the model code should draw attention to the fact that only opium produced in any of the seven States mentioned in paragraph 2 ( a) may be imported and exported but it is not necessary that exports should come directly from these countries. In other words re-export trade is permitted. Furthermore, paragraph 3 of article 6 permits a country to import and export exclusively for its own domestic consumption opium produced in any of its territories but only in quantities not exceeding the needs for one year. Such opium may not be exported outside the territorial limits of the country and such possessions as it may have.

Paragraph 4 of article 6 deals with the application of the system of import certificates and export authorizations under the Geneva Convention of 1925. Article 18 of that Convention stipulates that a party should apply the system vis-a-vis a country not Party, as far as circumstances permit. This exception has been abolished by the Protocol as far as opium is concerned and Parties to the Protocol must apply integrally all the relevant provisions of the Geneva Convention even in relation to a non-party.

The above points are some of those which might be covered in the model administrative code to the Protocol. They have been chosen more or less at random, but as representing essential matters. It is of course not the purpose of this article to do more than point to the general nature of the model code and as an exemplification make reference to some of the most important questions which the code might deal with.

As regards the material pertaining to the commentary, the corresponding document prepared for the 1931 Convention may well serve as a useful model. The space available here does not permit a detailed analysis of its possible contents. It is important that it should be concise, easy to understand by the use of simple and, as far as possible, non-technical language. Whatever suggestions or explanations are given should as far as possible be justified by reference to the discussions at the 1953 Conference, to previous conventions and to established precedents and practices.

Both the model code and the commentary, it is suggested, should emphasize the urgent necessity of a universal application of the Protocol and of its coming into force with the least possible delay. After many years of discussions, attempts and efforts, the international bodies dealing with narcotic drugs have finally reached the first step in dealing with the paramount question of limitation of raw materials (in this case opium). The Single Convention which is under preparation and which will include limitation of raw opium should, it is understood, outline a more effective limitation scheme.

Pending this, however, it is absolutely essential that the Protocol should be given a fair chance of achieving the best possible results.

In conclusion, it seems desirable again to emphasize two points. First, that the model code and the commentary in combination will be of the greatest help to the administrations and will greatly contribute to a correct and effective implementation of the Protocol; if effectively applied, the Protocol will also result in a good and easy international super vision. The second point is that there is a great urgency to get the work out in as many languages as may be found desirable and possible. There should be no unnecessary delays and the information and directions ought to be in the hands of the Parties to the Protocol at the time they are preparing their legislative and administrative measures.