roadmaps to reforming the un drug conventions - Beckley Foundation

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4.5.2 Option 1 – changes to Article 9(4)Article 9(4) does not give the INCB any direct powers to limit non-medical and nonscientificcultivation, production, manufacture and use of drugs within the territories ofcountries, but it provides for the INCB to endeavour to do this in cooperation withParties. This would be counter to allowing Parties to permit non-commercial domesticactions in relation to small quantities of drugs for other than medical or scientificpurposes under Option 1. It would also be inconsistent with allowing Parties to permitnon-medical and non-scientific domestic markets in drugs under Option 2. Therefore,the scope of the INCB’s functions under Article 9(4) in relation to domestic drug controlwould need to be limited to commercial and/or larger than small-scale actions underOption 1. The nature of the INCB’s functions under Article 9(4) would need tosubstantially change under Option 2.The proposed new Article 3 bis would exempt non-commercial actions in relation tosmall quantities of drugs from the scope of the Convention. Since Article 9(4) isexpressed to be ‘subject to the terms of this Convention’, the technical effect of the newarticle would be to confine the first of the INCB’s functions set out in Article 9(4) − thatis, limiting cultivation, production, manufacture and use of drugs to an amount requiredfor medical and scientific purposes − only to the extent that these actions are undertakencommercially and/or involve more than a small quantity of drugs. In addition, the thirdof the INCB’s functions under paragraph 4 is to prevent ‘illicit cultivation, productionand manufacture of drugs, and illicit trafficking in and use of drugs’. The effect of thenew provision would be that cultivation, production, manufacture of, and trade in,small quantities of drugs for non-commercial purposes would no longer be governed bythe provisions of the Convention, and accordingly, would no longer be ‘illicit’. (Thedefinition of ‘illicit traffic’ in Article 1 of the Convention – ‘cultivation or trafficking indrugs contrary to the provisions of this Convention’ – indicates that ‘illicit’ is intended tomean contrary to the provisions of the Convention.) Therefore, technically, the INCB’sfunctions under the Convention would no longer include endeavouring to prevent noncommercialactions in relation to small quantities of drugs, and there would be no needfor direct amendment of Article 9(4) for the purposes of Option 1.However, relying on the new provision alone may not sufficiently signal that theintention is to limit the INCB’s functions in this way, and may not affect how the INCBoperates in practice. A specific amendment to Article 9, paragraph 4 may be needed tomake it clear that the INCB is no longer intended to have functions or powers to preventor limit non-commercial actions in relation to drugs. Therefore, it is proposed thatArticle 9(4) should be amended directly to restrict the INCB’s functions to endeavouringto limit commercial production, manufacture and use of drugs to an adequate amountrequired for medical and scientific purposes.4.5.3 Option 1 – amendment of Article 9(4)In Article 9(4), after ‘limit’, insert ‘commercial’.91
Article 9. Composition and Functions of the Board4. The Board, in co-operation with Governments, and subject to the terms of thisConvention, shall endeavour to limit the commercial cultivation, production,manufacture and use of drugs to an adequate amount required for medical and scientificpurposes, to ensure their availability for such purposes and to prevent illicit cultivation,production and manufacture of, and illicit trafficking in and use of, drugs.4.5.4 Option 2 – changes to Article 9(4)The functions of the INCB would need to be changed such that it would no longer haveany role in limiting the creation (cultivation, production, or manufacture), import,export, supply or use of drugs to medical and scientific purposes, because the purposeof Option 2 is to allow Parties to permit non-medical and non-scientific markets indrugs. The INCB would continue to have the function of endeavouring to prevent illicitinternational trade in drugs. However, ‘illicit' international trade would no longer meanany non-medical and non-scientific import or export of drugs. Instead, it would becomeinternational import or export of drugs in breach of applicable control measures, orexport of drugs for non-medical and non-scientific use to countries that do not havelegal domestic non-medical/non-scientific markets.Parties would be subject to obligations to apply the control measures in the Conventionto the creation, supply and use of drugs for non-medical and non-scientific purposes, aswell as for medical and scientific purposes, for example, controls on the production ofopium, the cultivation of the opium poppy, coca bush and cannabis plant, and themanufacture of drugs. Accordingly, it seems reasonable that the INCB should have arole in monitoring non-medical and non-scientific domestic markets in drugs, andParties’ implementation of these control measures. This monitoring would be consistentwith the INCB’s continued role in administering the estimates system, and would allowit to assess Parties’ adherence to their Convention obligations. It would also help theINCB to perform its function of endeavouring to prevent illicit international trade indrugs, by assisting it to prevent over-supply of drugs and diversion to illicitinternational markets.As noted, the INCB would continue to be responsible for administering the estimatessystem, though the aim of this would become to ensure the availability of adequatequantities of drugs for medical and scientific purposes, and to monitor the cultivation,production, manufacture, use and distribution of drugs, rather than to limit the use anddistribution of drugs to medical and scientific purposes.To bring about this shift in functions of the INCB, Article 9(4) would need to beamended to remove the requirements for the INCB to endeavour to limit the cultivation,production, manufacture and use of drugs to an adequate amount required for medicaland scientific purposes, and to prevent the illicit cultivation, production, manufacture92
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ROADMAPS TO REFORMINGTHE UN DRUG CO
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ContentsPreface ...................
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PrefaceTHE IDEA FOR this Report cam
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PART I. POSSIBLE ROADMAPS
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hope for serious progress, but we c
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We do not underestimate the difficu
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also imposes requirements concernin
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domestic market, just as producers
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Protocol strengthened some provisio
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ut considerably less potency than s
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has announced its intention to reac
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objected to. Concerning the 1971 tr
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Table 2. Summary of reservations to
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Reservations about traditional use
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As Swaine notes, ‘the Vienna Conv
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unhappy about a country implementin
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Preemption by a new ‘single conve
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and their effort was rejected by a
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national or subnational level. Proh
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Chapter 5. Proposed treaty amendmen
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Article 1. DefinitionsExcept where
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Article 36 - penal provisionsIn Art
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Article 7. Special Provisions regar
Page 50 and 51: and to ensure adequate supplies of
Page 52 and 53: Article 1 − definition of ‘cons
Page 54 and 55: Article 19 - estimates of drug requ
Page 56 and 57: Article 21. Limitation of Manufactu
Page 58 and 59: contrary to a law or regulation ado
Page 60 and 61: 1. in subparagraph (a):a) after ‘
Page 62 and 63: ) for ‘in accordance with paragra
Page 64 and 65: include a number of general stateme
Page 66 and 67: the legality of drug possession. A
Page 68 and 69: Chapter 7. Conforming the 1961 Conv
Page 70 and 71: solely by Article 30, which require
Page 72 and 73: on trade activities referred to in
Page 74 and 75: (c) Require that licensed manufactu
Page 76 and 77: issued in the form of counterfoil b
Page 78: APPENDIXDETAILED COMMENTARY ON AMEN
Page 81 and 82: Articles 21-34 of the Convention im
Page 83 and 84: dispatch, transport, supply, purcha
Page 85 and 86: actions involving commercial quanti
Page 87 and 88: In the 1971 Convention the followin
Page 89 and 90: 4.1.3 Option 2 - changes to Preambl
Page 91 and 92: separate estimates and statistical
Page 93 and 94: After ‘scientific research’, in
Page 95 and 96: would also include transforming a d
Page 97 and 98: (c) subject to the provisions of th
Page 99: endangered’ by a Party’s failur
Page 103 and 104: 2. The Board shall, in respect of c
Page 105 and 106: for the right of the INCB to establ
Page 107 and 108: ) Subject to the deductions referre
Page 109 and 110: excess quantity must be deducted fr
Page 111 and 112: prohibition in Article 31(1)(b) aga
Page 113 and 114: 4.8 Article 20 - statistical return
Page 115 and 116: separate returns would be required
Page 117 and 118: 4.9.1 General comments on Article 2
Page 119 and 120: distributors), and any quantity tak
Page 121 and 122: a) The quantity consumed, within th
Page 123 and 124: Article 21 bis. Limitation of Produ
Page 125 and 126: to engage in cultivation; and culti
Page 127 and 128: the purposes of Option 2. However,
Page 129 and 130: in Article 29 to manufacture of mor
Page 131 and 132: ) (i) Require medical prescriptions
Page 133 and 134: 4.15 Article 31(1) - international
Page 135 and 136: commercial use. Export to a state o
Page 137 and 138: would automatically mean that posse
Page 139 and 140: preparatory acts, conspiracy and at
Page 141 and 142: offering for sale, distribution, 17
Page 143 and 144: Article 36. Penal Provisions1. a) S
Page 145 and 146: Article 36. Penal Provisions1. a) S
Page 147 and 148: Conference would have intended to a
Page 149 and 150: drugs (in more than small quantitie
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substances into its country or one
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apply to Schedule 1 substances. In
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substances (of more than a small qu
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1. The Parties shall require that t
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individuals may lawfully obtain, us
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4. The Parties shall furnish to the
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2. In subparagraph (b):a) after ‘
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obligations on Parties in respect o
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penalise preparatory acts in connec
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accordance with subparagraph (a) of
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Article 3(1)(c)(iii) warrants speci
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6.1.2. Option 1 - changes to the 19
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uncertainty. Accordingly, Article 3
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Consequently, Parties would also no
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…4. d) The Parties may provide, e
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