Drug abuse and penal provisions of the international drug control treaties

Sections

A. The Single Convention on Narcotic Drugs, 1961
B. The 1971 Convention on Psychotropic Substances
C. The 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961
ANNEX I
ANNEX II

Details

Author: Alfons NOLL, LL.M.,
Pages: 41 to 57
Creation Date: 1977/01/01

Drug abuse and penal provisions of the international drug control treaties

Alfons NOLL, LL.M.,* United Nations Division of Narcotic Drugs

All relevant aspects of drug control are covered by the three most recent and important treaties in the field of drug control: ( a) the Single Convention on Narcotic Drugs, 1961, 1 which as of the beginning of August 1977 had 109 States Parties to it; ( b) the 1971 Convention on Psychotropic Substances, 2 which as of the same date had 47 States Parties to it; and ( c) the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, 3 to which as of the same date 58 States had adhered. Whereas these treaties provide a general control system on narcotic drugs and psychotropic substances, only one specific relationship has deliberately been singled out for the purpose of this article, i.e. the relationship between drug abuse and penal measures, as stipulated in the penal and other relevant provisions of these three treaties. For ease of reference the full text of these provisions is reproduced in annex I.

It will be seen that the approach of these three treaties to the problem and the contents of their relevant provisions are, with few exceptions, very similar, if not identical. Without intending to go into every detail, the emphasis of this paper is placed on the most important rules governing the relations between drug abuse and penal measures, as stipulated by these treaties, which should form the basis of any pertinent national laws and regulations enacted or to be enacted by States Parties to them.

A. The Single Convention on Narcotic Drugs, 1961

Article 36 of the Single Convention on Narcotic Drugs, 1961 (hereinafter referred to as "the Single Convention") contains elaborate penal provisions dealing with various substantive and procedural aspects of the penal law and its role with regard to drug control.

*

Paper presented by the author to the International Conference on Alcoholism and Drug Dependence, held in Bagdad, Iraq, from 20-25 November 1976 at the invitation of the organizers of that Conference: The Ministry of the Interior of the Republic of Iraq, the Pan-Arab Organizations for Social Defence and the International Arab Bureau for Prevention of Crime, in co-operation with the Ministry of Health of the Republic of Iraq, the International Council on Alcoholism and Addiction and the Iraqi Society of Neurologists and Psychiatrists. It has been updated and slightly revised by the author for publication.

1

See United Nations, Treaty Series, vol. 520, pp. 151 et seq.

2

See E/CONF.58/6.

3

See E/CONF.63/9.

ACTIVITIES TO BE CONSIDERED PUNISHABLE OFFENCES

The most important of these provisions is paragraph 1 of Article 36 which contains an enumeration of all the activities which, "subject to its constitutional limitations" each Party shall make punishable offences when "committed intentionally" and "contrary to the provisions of this Convention". In addition to the activities specifically enumerated in this paragraph (e.g. "cultivation, production, manufacture..."), it is also stipulated that "any other action which in the opinion of such Party may be contrary to the provisions of this Convention" shall be a punishable offence when committed intentionally. Without going into the details of the precise penal measures to be stipulated by the Parties to it, the Single Convention simply states that "serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalties of deprivation of liberty". It is, however, quite clear, from the context of paragraph 1 of Article 36 that the Single Convention itself differentiates indeed between minor and serious offences. Thus it should be kept in mind that, according to the Single Convention, Parties to it are obliged to make only serious drug offences liable to adequate punishment, particularly by imprisonment or other penalties of deprivation of liberty. It follows therefrom that by no means all the activities envisaged by this provision have to be made the subject of punishment by imprisonment or other penalties of deprivation of liberty. The Single Convention itself, in making the differentiation, leaves it to the Parties to enact appropriate legislation which should reflect in its provisions the differentiation made by the Convention itself. In this context, reference will later be made to one problem of particular importance and at present under discussion in many countries.

Paragraph 2 of Article 36 requires, "subject to the constitutional limitations of a Party, its legal system and domestic law," that a number of measures shall be taken by the Parties implementing the penal provisions of this Convention. First of all, it stipulates in its sub-paragraph ( a) (ii) that "intentional participation in, conspiracy to commit and attempts to commit any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided for in paragraph 1". In this context, reference is made to a most recent resolution, adopted on the recommendation of the Commission on Narcotic Drugs by the Economic and Social Council, dealing specifically with "Financial transactions related to illicit trafficking in narcotics" (E/RES/2002 (LX)). In line with the provision outlined above, the Economic and Social Council, through this resolution, urges governments which have not already done so to enact such legislation as may be necessary to make financial support provided knowingly, by whatever means, in furtherance of offences enumerated in Article 36, paragraph 1 of the Single Convention a punishable offence, and to co-operate with one another in exchanging information to identify drug traffickers committing such an offence. The importance of this resolution cannot be over-emphasized, as the Economic and Social Council adopted it with a view to improving international co-operation by all available means in order to combat more efficiently illicit trafficking in drugs of abuse in consideration of the fact that such illicit trafficking requires large sums of money and involves financial transactions of a significant size, and that the leaders of illicit drug trafficking organizations, although they may not take part in the actual movement of the drug contraband, are heavily involved in these transactions. Close attention by government authorities to financial transactions initiated by persons suspected of involvement in illicit drug trafficking is therefore considered most valuable in apprehending and convicting major drug traffickers.

OTHER MEASURES TO BE TAKEN WITH REGARD TO PUNISHABLE OFFENCES

Turning back to paragraph 2 ( a) of Article 36, it is further to be noted that each of the offences enumerated in paragraph 1 of Article 36, if committed in different countries, shall be considered as a distinct offence and that foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism (sub-paragraphs (i) and (iii) of that paragraph). Lastly, this paragraph stipulates that serious offences committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed or by the Party in whose territory an offender is found, if extradition is not acceptable in conformity with the law of the Party to which application is made, and provided such offender has not already been prosecuted and judgment given (sub-paragraph iv of that paragraph).

It is understood that the provisions of Article 36 shall be subject to the provisions of the criminal law of the Party concerned on questions of jurisdiction, and that nothing contained in Article 36 shall affect the principle that the offence to which it refers will be defined, prosecuted and punished in conformity with the domestic law of any Party (paragraphs 3 and 4 of Article 36). In connexion with penal measures one should also bear in mind Article 37 which provides that "any drugs, substances and equipment used in or intended for the commission of any of the offences referred to in Article 36, shall be liable to seizure and confiscation."

EXTRADITION IN CASES OF DRUG OFFENCES

Contrary to most of the earlier treaties on narcotic drugs preceding the Single Convention, the latter contains in its Article 36, paragraph 2 ( b), a special provision on extradition in case of drug offences. By including that provision, the United Nations Plenipotentiary Conference in 1961 took up, in essence, a similar provision which was contained in the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs; but it could not agree to give this provision an obligatory character and adopted it only in the form of a recommendation. The provision states that it is desirable that the offences referred to in paragraph 1 and paragraph 2 ( a) (ii) of Article 36 (see above) should be included as extradition crimes in any extradition treaty which has been, or may hereafter be concluded between any of the Parties. With regard to Parties which do not make extradition conditional on the existence of a treaty or on reciprocity, it provides that such offences shall be recognized as extradition crimes. Finally, it states that extradition shall be granted in conformity with the law of the Party to which application is made and that the Party shall have the right to refuse to effect the arrest or grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.

In respect of extradition in case of drug offences the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in 1975, recommended the improvement of existing extradition procedures by recognizing drug offences as extraditable offences; it went even beyond extradition as such in recommending to consider the drafting of an international convention on judicial assistance in this field and to include illicit drug traffic as a transnational crime in a list, to be prepared by the United Nations, of transnational crimes. 4 As far as extradition is concerned more will be said below under the 1972 Protocol Amending the Single Convention, 1961.

THE PROBLEM OF PENAL MEASURES AGAINST ABUSERS AND POSSESSORS OF DRUGS FOR PERSONAL CONSUMPTION

Since some confusion and misunderstanding had existed in the past and some instances still persist in respect of the legal position laid down in the international treaties concerning the relationship between penal sanctions and drug abuse, some clarifying remarks are called for. These were already offered at the XIth International Congress on Penal Law. 5 They were reiterated at the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 6 The international treaties in no way insist on harsh penal sanctions with regard to drug abuse, as is sometimes alleged by persons criticising the international drug control system; the treaties are much more subtle and flexible than sometimes interpreted.

First of all, Article 4 of the Single Convention contains the general obligations for Parties to this Convention to "take such legislative and administrative measures as may be necessary, subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs." From the contents of this provision it is clear that use of drugs and their possession for personal consumption has also to be limited by legislation and administrative measures exclusively to medical and scientific purposes. Consequently, "legalization" of drugs in the sense of making them freely available for non-medical and non-scientific purposes-as it is sometimes demanded by public mass media and even experts in discussions on the subject-is without any doubt excluded and unacceptable under the present international drug control system as established by the international treaties. The question, however, remains whether Parties are obliged by the international treaties to apply penal sanctions for unauthorized use and unauthorized possession of drugs for personal consumption. It is on this point that confusion still exists and clarification is needed.

It is a fact that "use" (or "personal consumption") is not enumerated amongst the punishable offences in accordance with paragraph 1 of Article 36 of the Single Convention. Although, as mentioned above, Parties are required to limit the use of drugs exclusively to medical and scientific purposes, the Single Convention does not require them to attain the goal by providing penal sanctions for unauthorized "use" or "personal consumption" of drugs.

Unauthorized "possession" of drugs is mentioned in paragraph 1 of Article 36, but from the context it is clear that, as stated in the Official Commentary by the Secretary-General of the United Nations, "possession" of drugs for personal con-sumption is not to be considered a "punishable offence" by a Party to the Single Convention. The whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this also holds true for the 1972 Protocol Amending the Single Convention and for the 1971 Convention on Psychotropic Substances. As there is no obligation to provide penal sanctions for "use" in the sense of personal consumption and "possession" of drugs for personal consumption, any criticism levelled against the international drug control system by protagonists in favour of the so-called "liberalization" or decriminalization or "de-penalization" of use and possession of drugs for personal consumption is quite beside the point.

4

See Report prepared by the Secretariat on the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (A/CONF.56/10, paras. 65-77, in particular para. 73. Because of the relevance of the recommendations of that Congress they are reproduced as annex II.

5

See A. Noll, "Drug abuse and its prevention" as seen by the international legal profession-"Report on the XIth International Congress on Penal Law", Budapest, 9-15 September 1974, in: (United Nations) Bulletin on Narcotics, XXVII: 1, pp. 37-47.

6

See annex II, and in particular para. 70 thereof.

It should be borne in mind that the control measures required by the provisions of the international treaties represent minimum requirements, agreed upon by governments having adhered to these treaties. Any Party may adopt stricter and more severe measures of control than those provided by the treaties if, in its opinion, such measures are desirable or necessary for the protection of the public health and welfare. (Cf. Article 39 of the Single Convention and Article 23 of the 1971 Convention on Psychotropic Substances.) Governments may therefore certainly go beyond what the treaties require and may punish for "possession" and even "use" in the sense of personal consumption, but this is then not done under a treaty obligation. However, even if Parties in their national laws consider these activities to be punishable offences, they need not consider them to be "serious offences" punishable by imprisonment or other penalties of deprivation of liberty. They could and in most of the cases preferably should provide for instance only censures, fines or other equivalent measures, with regard to these activities.

7

Bearing in mind the spirit of the international treaties, the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders also made the recommendation "to consider whether it is not desirable to increase penalties for illicit traffickers and to decrease penalties for users or possessors of small quantities of drugs for personal use, if a government considers use and/or possession as punishable offences." 8 The Congress in its recommendations furthermore required that "as drug abuse forms part of the general public health problem, preference should be given to measures of treatment and social reintegration of drug abusers and addicts" and that "penal measures, if not excluded, should in no way prevent the application of these measures, and should be restricted to ensuring their application, if appropriate." 9

TREATMENT OF DRUG ADDICTS

Article 38 of the Single Convention on "Treatment of drug addicts" has to be mentioned in the context of drug abuse and penal law, in view of developments since 1961, which will be described later. At this point suffice it to state that, according to article 38 of the Single Convention, Parties shall give special attention to provide facilities for medical treatment, care and rehabilitation of drug addicts. No specific link, however, has been made, in the provisions of the Single Convention as originally adopted in 1961 between penal measures to be taken in the drug control area and other measures to be applied in order to tackle the drug abuse problem, such as treatment, care and rehabilitation. The link was made only later by the 1971 Convention on Psychotropic Substances and the 1972 Protocol Amending the Single Convention.

7

See "Commentary on the Single Convention on Narcotic Drugs, 1961" (United Nations publication Sales, No. 73.XI.1), United Nations, New York, 1973, comments 15-25 on Article 4 and comments 7 and 8 on para. 1 of Article 36.

8

See annex II of this article, and in particular para. 73 ( h) reproduced therein.

9

Ibid., para. 74.

B. The 1971 Convention on Psychotropic Substances

MEASURES AGAINST THE ABUSE OF PSYCHOTROPIC SUBSTANCES

It was the 1971 UN Plenipotentiary Conference in Vienna which for the first time included in the Convention on Psychotropic Substances it adopted a detailed article on "Measures against the abuse of psychotropic substances". Article 20 thereof provides that Parties shall take all practicable measures for the prevention of drug abuse and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of persons involved, and that Parties shall co-ordinate their efforts to these ends. They shall also, as far as possible, promote the training of personnel for treatment, education, after-care, rehabilitation and social reintegration of drug abusers and shall assist persons whose work so requires to gain an understanding of the problems of drug abuse and of its prevention, and shall also promote such understanding among the general public, if there is a risk that drug abuse might become widespread.

At present efforts are being undertaken at the national as well as at the international levels to establish the best ways and means of implementing these provisions. Generally it can be said that at the international level the necessity of coping with drug abuse as such has been emphasized and studies have been made over the past two years to elaborate appropriate measures aimed at reducing illicit demand for drugs. On the recommendation of the Commission on Narcotic Drugs, the Economic and Social Council of the United Nations adopted resolution E/RES/1934 (LVIII) on "Measures to reduce illicit demand for drugs". The Council, convinced that measures to reduce the illicit supply of drugs could not be effective in the long run unless measures were also taken concurrently to reduce the illicit demand for drugs, recommends in this resolution that governments take all appropriate measures to prevent drug abuse and to provide treatment facilities for addicts. It requests the World Health Organization-with the help of the United Nations Fund for Drug Abuse Control and other appropriate sources-to assist governments which so desire financially or technically within the limits of available resources, to provide treatment and rehabilitation measures. It also recommends that governments incorporate measures for the prevention and treatment into their integrated public health programmes and that the appropriate international bodies provide a world-wide exchange of information and experience on prevention and treatment and on research. The Council finally recommends that, in view of the need for new measures for prevention and treatment and the need for additional knowledge concerning the processes of prevention and treatment, governments pursue further their research in these fields.

At its fourth special session in February 1976 the Commission on Narcotic Drugs followed up this work by taking three decisions concerning (i) technical assistance in drug abuse assessment to be given to governments at their request for the formulation of meaningful policy guidelines in their countries and for improving their reporting on drug abuse to the United Nations; (ii) the improvement of information on drug abuse and measures to reduce demand; and (iii) a special study to be undertaken by the Division of Narcotic Drugs for the Commission's consideration at its 27th regular session in 1977 on measures to reduce illicit demand for drugs. 10

In line with the Commission's decisions the Division of Narcotic Drugs elaborated a first draft of a "Manual on Drug Abuse Assessment" which is presently circulated to experts all over the world for comments before its final issuance. The Director of the Division also submitted a report on the special study on measures to reduce illicit demand for drugs to the Commission at its 27th session, which decided that the work in this field should be continued and extended. 11

LINK BETWEEN PENAL AND OTHER MEASURES AGAINST DRUG ABUSE

Once again, it was the 1971 United Nations Plenipotentiary Conference in Vienna which, by adopting the Convention on Psychotropic Substances, established for the first time the link between penal and other measures against drug abuse referred to above.

Article 22 of the 1971 Convention on Psychotropic Substances (hereinafter referred to as "the 1971 Convention") contains, in essence, penal provisions concerning psychotropic substances which are more or less similar, and mostly identical, to those contained in Article 36 of the Single Convention dealing with narcotic drugs. Thus, paragraph 1 ( a) of Article 22 of the 1971 Convention stipulates that "subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to law or regulation adopted in pursuance of its obligation under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty." Although the wording of this paragraph differs somewhat from the corresponding paragraph 1 of Article 36 of the Single Convention, and in particular does not enumerate activities to be considered punishable offences but describes what should be considered a punishable offence in a more general way, the essence of this paragraph is the same as in Paragraph 1 of Article 36 of the Single Convention.

There is, however, one important and new element incorporated in the penal provisions of the 1971 Convention: its Article 22 stipulates in sub-paragraph ( b) of its paragraph 1 that, "notwithstanding the preceding sub-paragraph [paragraph 1 ( a) of Article 22], when abusers of psychotropic substances have committed such offences the Parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of Article 20". The provision clearly establishes the link between penal and other measures against the abuse of psychotropic substances. It is to be noted that it is not of an obligatory character and leaves it to States Parties to that Convention to provide for the course of action envisaged in that provision. It should be kept in mind that these other measures against drug abuse should be applied as an alternative to conviction or punishment or in addition to punishment, only in cases concerning "abusers of psychotropic substances" for whom those measures might be considered more appropriate than punishment. It is certainly not intended to apply them to persons having committed offences connected with the illicit trafficking in psychotropic substances. The measures envisaged in paragraph 1 ( b) of Article 22 in conjunction with Article 20 of the 1971 Convention are therefore intended to apply to the abusers of psychotropic substances and persons possessing such substances for personal consumption. In addition to what has been said under A above on the "problem of penal measures against abusers and possessors of drugs for personal consumption", the measures provided for in paragraph 1 ( b) of Article 22 of the 1971 Convention deal precisely with that category of persons involved in drug abuse.

10

See "Report of the Commission on Narcotic Drugs on its fourth special session" (E/5771, paras. 260-305), and in particular the Commission's decisions 7, 8 and 9 (S-IV) in chapter XV of that report.

11

See "Report of the Commission on Narcotic Drugs on its twenty-seventh session" (E/5933, paras. 48-57), in particular its resolution 1 (XXVII) in chapter XVI, A and B of that report as well as resolution 2064 (LXII) entitled "Reduction of illicit demand for narcotic drugs and psychotropic substances" and adopted by the Economic and Social Council in May 1977.

In this context reference should again be made to the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders which also invited governments to follow the spirit of the new provision introduced for the first time by the 1971 Convention and dealing with measures of treatment etc. for drug addicts and drug abusers, as an alternative or in addition to conviction or punishment. 12

C. The 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961

The new elements introduced into the international drug control system by the 1971 Convention described above have, in essence, also been taken over for the control of narcotic drugs by the 1972 Protocol Amending the Single Convention. The 1972 Protocol amended Article 38 of the Single Convention as originally adopted, by including therein provisions on "measures against the abuse of drugs", which are similar to the provisions contained in Article 20 of the 1971 Convention.

The 1972 Protocol also took over the link between penal and other measures against drug abuse by including in paragraph 1 of Article 36 of the Single Convention a new sub-paragraph ( b), which is again similar to paragraph 1 ( b) of Article 22 of the 1971 Convention on Psychotropic Substances. Thus, the international drug control system has now placed, in the context of our objective, narcotic drugs and psychotropic substances on the same footing.

NEW EXTRADITION PROVISIONS

Equal treatment of narcotic drugs and psychotropic substances in the context of penal provisions, however, no longer exists with regard to the extradition provisions, since the 1972 Protocol introduced new extradition provisions for narcotic drugs which do not correspond to the extradition provisions contained in the 1971 Convention on Psychotropic Substances; these have the same recommendatory character as originally adopted in 1961 for the Single Convention (see p. 43 above).

The new provisions concerning extradition in cases of drug offences, as introduced by the 1972 Protocol Amending the Single Convention, have partly acquired an obligatory character and have certainly strengthened the extradition procedures for cases of narcotic drug offences.

This is, in particular, true for the first provision (i) of sub-paragraph (b) of paragraph 2 of Article 36, which states that each of the offences enumerated in paragraphs 1 and 2 ( a) (ii) of Article 36 "shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties", and this provision continues to provide that "Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them." The first of these provisions in fact means that any extradition treaty already existing between Parties to the 1972 Protocol is, by virtue of the adherence by these Parties to the 1972 Protocol, automatically amended in the sense that narcotic drug offences are to be considered as extraditable offences covered by those extradition treaties, without any further formal amendment of such treaties. The second provision contains the obligation on any Party to the 1972 Protocol to include such narcotic drug offences as extraditable offences in extradition treaties which will be concluded in the future with another Party to the 1972 Protocol.

12

See annex II, in particular paragraph 74.

Whereas the provisions dealt with in the preceding paragraph concern countries which require the existence of an extradition treaty with the requesting government, provision (iii) of sub-paragraph ( b) of paragraph 2 of Article 36, as amended, refers to Parties which do not make the same requirement. Those Parties, which do not make extradition conditional on the existence of a treaty, shall recognize the offences enumerated in paragraphs 1 and 2 ( a) (ii) of Article 36 as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.

Besides provisions (i) and (iii) which are of an obligatory character, subparagraph ( b) of paragraph 2 of Article 36, as amended, contains in its provision (ii) another stipulation which, although only of an optional character, is nevertheless most important and contributes to the strengthening of the extradition procedures in cases of narcotic drug offences as a whole. The text of provision (ii) reads as follows: "If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2 ( a) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested Party." The essence of this provision, in fact, is that such Parties as described therein may at their option consider amongst themselves the Single Convention, as amended by the 1972 Protocol, as "the legal basis for extradition" in respect of narcotic drug offences and thus as an extradition treaty between themselves. By virtue of this optional provision in the 1972 Protocol, a number of legal obstacles otherwise preventing extradition of drug offenders can be overcome and extradition of narcotic drug offenders as one of the tools with which to fight the illicit traffic in narcotic drugs can be made possible.

The 1972 Protocol, however, retained the principle that extradition shall be granted in conformity with the law of the Party to which application is made and that the Party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious (see paragraph 2 ( b) (iv) of Article 36 of the Single Convention, as amended).

What has been outlined above with regard to the extradition procedures does, however, only apply in cases of narcotic drug offences and not to offences involving illicit trafficking in psychotropic substances, as already mentioned earlier (see p. 48 above). Besides that latter point which, judged from the result is to be considered as regrettable, the extradition provisions of the Single Convention, as amended by the 1972 Protocol correspond in fact to the recommendations and the call of the Fifth United Nations Congress referred to on page 48 above. In view of these provisions, the recommendation of the Congress that "consideration might also be given to the elaboration of an international convention"- i.e. on extradition in cases of drug offences-"by the United Nations Secretariat" 13 appears-without going here into further detail-not to be of justified validity or urgency at least for offences concerned with narcotic drugs, since the deficiencies felt by the Congress have to a large extent become obsolete by virtue of these provisions.

CONCLUDING REMARKS

The purpose of this article was to present an over-all view and analysis of the relationship between drug abuse and the relevant and related penal provisions in the international drug control treaties. It was certainly not intended to go into each minor detail of what the international drug control system stipulates in the various treaties on the subject; but it is hoped that the most important elements, as contained in the international treaties on the subject, have emerged clearly enough, and that an outline has been offered which permits to appreciate the developments which have taken place since the adoption of the original Single Convention in 1961.

Readers certainly realize that the new provisions introduced by the 1971 Convention and the 1972 Protocol reflect very well the new tendencies and approaches under consideration or already in operation, both at the international and national levels. The international drug control system, as established by the treaties in our field of concern, is constantly followed up by the competent organs of the United Nations at the international level. Much more would have to be said if all the other follow-up work done at the international level in respect of other aspects of the drug abuse problem-which is indeed a multi-faceted one which requires multidisciplinary action and close co-operation at the international and national levels and between both levels-were to be covered.

In conclusion it is essential to state that the international treaties form only the basis upon which appropriate action is to be taken by States Parties to these Conventions, precisely in the field of drug control by penal and other measures against drug abuse. The governments of those States are called upon to implement the provisions and the spirit of these treaties. Parties must take all appropriate legislative and administrative measures necessary to comply with the provisions of the international treaties in this field. In as far as the latter are of an obligatory character such measures must be in conformity with the provisions of the international treaties. Those provisions of the treaties containing recommendations only must be adjusted by the national authorities to the conditions and circumstances prevailing at the national level. It should always be kept in mind that the international drug control system provides, by its international treaties, only the minimum requirements considered necessary by the international community and that it is left to the Parties to the Conventions to ensure that those measures are adopted and applied which guarantee the achievement of the basic goal of these conventions, namely, to limit exclusively to medical and scientific purposes all activities related to narcotic drugs and psychotropic substances. Only when the various national control systems are in this sense well conceived and operate smoothly can the international drug control system as such cope efficiently with the drug abuse problem which, by its very nature, is by no means confined to the territory of any nation, but is truly an international one.

13

See annex II, para. 73 ( a).

It is in this sense that in the field of drug abuse and penal provisions the utmost co-operation and co-ordination have to be aimed at, although, owing to cultural, religious, traditional and, last but not least, socio-economic differences in the various societies and countries of the world, this might sometimes appear a very difficult task to accomplish. As we are all aware, there still exist tremendous differences in the approaches taken by penal and other measures on the various national levels to cope with the drug problem. We have certainly to live with these differences but every effort should be made to bring as much as possible of a common rationale into this area, so that existing gaps or inconsistencies may gradually be filled or reconciled.

ANNEX I

EXTRACTS from 1. Single Convention on Narcotic Drugs, 1961

Article 36 PENAL PROVISIONS
  1. Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

  2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

    1. (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

      (ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

      (iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

      (iv)Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

    2. It is desirable that the offences referred to in paragraph 1 and paragraph 2 ( a) (ii) be included as extradition crimes in any extradition treaty which has been or may hereafter be concluded between any of the Parties, and, as between any of the Parties which do not make extradition conditional on the existence of a treaty or on reciprocity, be recognized as extradition crimes; provided that extradition shall be granted in conformity with the law of the Party to which application is made, and that the Party shall have the right to refuse to effect the arrest or grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.

  3. The provisions of this article shall be subject to the provisions of the criminal law of the Party concerned on questions of jurisdiction.

  4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.

Article 37 SEIZURE AND CONFISCATION

Any drugs, substances and equipment used in or intended for the commission of any of the offences, referred to in article 36, shall be liable to seizure and confiscation.

Article 38 TREATMENT OF DRUG ADDICTS
  1. The Parties shall give special attention to the provision of facilities for the medical treatment, care and rehabilitation of drug addicts.

  2. If a Party has a serious problem of drug addiction and its economic resources permit, it is desirable that it establish adequate facilities for the effective treatment of drug addicts.

2. 1971 Convention on Psychotropic Substances

Article 20 MEASURES AGAINST THE ABUSE OF PSYCHOTROPIC SUBSTANCES
  1. The Parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends.

  2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of psychotropic substances.

  3. The Parties shall assist persons whose work so requires to gain an understanding of the problems of abuse of psychotropic substances and of its prevention and shall also promote such understanding among the general public if there is a risk that abuse of such substances will become widespread.

Article 22 PENAL PROVISIONS
  1. ( a) Subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty.

    ( b) Notwithstanding the preceding sub-paragraph, when abusers of psychotropic substances have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 20.

  2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

    1. (i) if a series of related actions constituting offences under paragraph 1 has been committed in different countries, each of them shall be treated as a distinct offence;

      (ii) intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

      (iii) foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

      (iv) serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

    2. It is desirable that the offences referred to in paragraph 1 and paragraph 2 ( a) (ii) be included as extradition crimes in any extradition treaty which has been or may hereafter be concluded between any of the Parties, and, as between any of the Parties which do not make extradition conditional on the existence of a treaty or on reciprocity, be recognized as extradition crimes; provided that extradition shall be granted in conformity with the law of the Party to which application is made, and that the Party shall have the right to refuse to effect the arrest or grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.

  1. Any psychotropic substance or other substance, as well as any equipment used in or intended for the commission of any of the offences referred to in paragraphs 1 and 2 shall be liable to seizure and confiscation.

  2. The provision of this article shall be subject to the provisions of the domestic law of the Party concerned on questions of jurisdiction.

  3. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.

3. 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961

Article 14 AMENDMENTS TO ARTICLE 36, PARAGRAPHS 1 AND 2, OF THE SINGLE CONVENTION

Article 36, paragraphs 1 and 2, of the Single Convention shall be amended to read as follows:

"1. ( a) Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

"(b) Notwithstanding the preceding sub-paragraph, when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 38.

"2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

"( a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

"(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

"(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

"(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

"(b) (i) Each of the offences enumerated in paragraphs 1 and 2 (a ) (ii) of this article shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

"(ii) If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2 (a ) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested Party.

"(iii) Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.

"(iv) Extradition shall be granted in conformity with the law of the Party to which application is made, and, notwithstanding sub-paragraphs (b) (i), (ii) and (iii) of this paragraph, the Party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious."

Article 15 AMENDMENTS TO ARTICLE 38 OF THE SINGLE CONVENTION AND ITS TITLE

Article 38 of the Single Convention and its title shall be amended to read as follows:

"Measures against the Abuse of Drugs

"1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.

"2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of drugs.

"3. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread."

ANNEX II

EXTRACTS from Report prepared by the Secretariat on FIFTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS (A/CONF.56/10)

CRIMINALITY ASSOCIATED WITH ALCOHOLISM AND DRUG ABUSE
  1. It was agreed that alcohol was a drug and that alcoholism was a major aspect of drug abuse. Although the criminality associated with those two factors might involve many common characteristics, there were other and perhaps more significant aspects which separated them.

  2. First, the use of alcohol was institutionalized, and its problems had long been known, although they might be increasing, whereas the introduction of narcotics and psychotropics into many countries represented a relatively new intrusion into and disruption of their cultures.

  3. Secondly, because alcohol was usually legitimately available, criminality in the main occurred because of the effect of consumption, in that it lowered self-control and a sense of responsibility and led to accidents. Only rarely did alcoholics commit crimes in order to obtain alcohol or money to buy it, and such criminality was of a low level. The possession of narcotics and psychotropic substances, however, was usually illicit and the trafficking in them was nearly always so. Therefore, the criminality associated with those substances was concerned more with their transportation and with attempts to obtain them than with acts committed under their influence.

  4. Thus, criminality connected with alcoholism was different from that connected with most drug abuse. In its violent manifestation, such criminality was a result of the depressant effect of the drug on the normal mechanism of self-control. It was generally agreed that alcoholism was an increasing problem but that in order to achieve anything more than a superficial change in the situation, action had to be taken by agencies operating within a framework of social policy rather by those of the criminal justice system.

  5. It was noted that the international control system of narcotic drugs was predominantly based on the Single Convention of Narcotic Drugs, 1961, to which most Governments represented at the Congress were parties. It had been amended by the 1972 Protocol that had come into force recently. The Convention on Psychotropic Substances of 1971, which provided a similar international control system, had as yet not entered into force. The goals of those treaties had to be implemented by national Governments that were parties to them, and the current international control system was functioning well and had achieved considerable results in controlling the drug problem by its obligatory control provisions. It was also the legal basis for all forms of international co-operation, particularly for the fight against illicit traffic in drugs. That system thus contributed to the prevention of and fight against crimes related to drugs-especially recently, by the highly improved extradition provisions in the 1972 Protocol-and to coping with the drug abuse problem.

  1. Those treaties in no way insisted exclusively on harsh national sanctions and were much more subtle and flexible than the interpretations and applications that were sometimes given to them; the penal provisions of the treaties distinguished between simple offences and serious offences and provided that only the latter should be liable to stringent punishment, particularly to penalties of deprivation of liberty. They envisaged, primarily, all activities as forming part of the illicit traffic in drugs. Illicit personal "use" was not included in the penal provisions, so that parties did not need to consider it a punishable offence. Similarly, illicit "possession" of drugs for personal consumption did not need to be considered a punishable offence. Governments that went beyond the requirements of the treaties and considered illicit possession and even use as punishable offences could provide fines, censure or other measures. At any rate, a distinction should be made between legal intervention against illicit producers, manufacturers and traffickers, on the one hand, and illicit possessor-consumers, on the other, for whom non-penal forms of social control might sometimes be more appropriate and effective.

  2. The primary goal of international drug control, which was to limit all activities in that field exclusively to medical and scientific purposes, could be fully achieved within the current framework of drug treaties, if properly implemented at the national level and in co-operation with Governments and with the international organs, particularly the United Nations Commission on Narcotic Drugs and the International Narcotics Control Board. Increased efforts in all sectors were needed, however, both on the national and international levels.

  3. From the discussion it became apparent that the most important areas in which action should be considered were illicit traffic, drug abuse, preventive measures, distinctions in the approaches taken by different countries, and international drug control.

Illicit traffic
  1. Concerning the control of illicit traffic in drugs, the following measures were recommended:

    1. The drafting of an international convention on judicial assistance should be considered and extradition procedures improved on both the bilateral and multilateral levels by reviewing and amending existing extradition treaties or concluding new ones to include drug offences as extraditable offences; drug offences should be recognized by all Governments as extraditable offences, and consideration might also be given to the elaboration of an international convention by the United Nations Secretariat;

    2. Illicit traffic in drugs should be considered as a transnational crime to be included in a list of transnational crimes to be prepared by the United Nations;

    3. Measures should be taken to ensure, in conformity with national legislation, that drug offenders who had been convicted in one country but had escaped served the sentence in the country in which they had taken refuge or were found, if extradition was not feasible;

    4. All knowledge in the law enforcement field should be shared, and relevant information, in particular concerning new methods and routes used by illicit traffickers, should be constantly exchanged;

    5. The mechanisms for expeditiously disseminating and receiving evidence concerning drug offenders should be improved;

    6. All forms of border control should be strengthened;

    7. Measures should be taken to ensure, by whatever means possible, that convicted traffickers could not take refuge in other countries;

    8. Consideration should be given to the question of whether it was desirable to increase penalties for illicit traffickers and to decrease penalties for users or possessors of small quantities of drugs for personal use if a Government considered use and/or possession as punishable offences;

    9. Seized drugs and relevant materials which were connected with illicit activities and were not needed for legitimate purposes under strict supervision should be destroyed if possible;

    10. Measures should be taken to ensure that any national drug policy-for example, decriminalization of activities concerning cannabis sativa-would not affect adversely the drug control situation in neighbouring countries and at the international level.

Drug abuse

74. As drug abuse formed part of the general public health problem, preference should be given to measures of treatment and social reintegration of drug abusers and addicts. Penal measures, if they were not to be excluded, should in no way prevent the application of those measures and should be restricted to ensuring their application, if appropriate. Governments should follow the provisions of the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 and of the Convention on Psychotropic Substances of 1971 and should provide for effective treatment measures. They should also provide, either as an alternative or in addition to conviction or punishment, that drug addicts and drug abusers, where appropriate, undergo measures of treatment. It was generally accepted, however, that as yet very little evidence of the success of treatment was available.

Preventive measures

75. In general, preference should be given to preventive measures, in particular, by providing meaningful and appropriate information to those responsible for dealing with population groups most at risk. All educational programmes should include some information on the drug problem and the dangers of drug abuse. It was noted, however, that the experience of some countries had shown some of these programmes to be counter-productive. Special leisure time programmes for juveniles should be encouraged.

Distinctions in the approaches taken by different countries

76. Because of the differences which necessarily stemmed from the social economic and political situations in different countries, distinctions had to be made in the approaches to the drug and drug control situations in the various countries, taking into account their stages of development and their political systems. A similar distinction appeared to be valid with regard to the relation between drug abuse and criminality. A policy of decriminalization of consumption and possession of certain substances in highly industrialized countries, for example, could affect or have side effects on aspects of the economic, social or cultural relation between developed and developing countries. Moreover, it was not easy to distinguish between drug abusers and traffickers. Combating drug abuse itself might sometimes require changes in the social, economic and cultural structure of a country in order to remove abuses and reasons for abusing drugs. The responsibilities in the fight against drug abuse, including the financial costs involved, should be shared by all Governments concerned.

International drug control

77. Governments were called upon, if they had not yet done so, to adhere to the Single Convention on Narcotic Drugs, 1961, and the 1972 Protocol amending that Convention, and to the Convention on Psychotropic Substances of 1971; they were also called upon to co-operate with the United Nations Fund for Drug Abuse Control, in order to enable the United Nations to provide technical and financial assistance to Governments requiring such assistance, in particular, to Governments of those countries in which raw materials for narcotic drugs were produced, in order to enable them to carry out the provisions of the international drug control treaties and to fight effectively against the drug abuse problem and related criminality.