roadmaps to reforming the un drug conventions - Beckley Foundation

preparatory acts, conspiracy and attempts. Article 36(1)(a) specifically enumerates anumber of actions which Parties must make punishable offences if they are contrary tothe provisions of the 1961 Convention. It also provides a general formula – ‘any otheraction which in the opinion of such Party may be contrary to the provisions of thisConvention’ – to cover any actions contrary to the Convention that are not specificallylisted. Article 36(1)(b), inserted by the 1972 Protocol, allows Parties to provide for‘abusers’ of drugs to undergo measures of treatment, education, after-care, rehabilitationand social integration as an alternative or in addition to punishment for the offencesdescribed in Article 36(1)(a).The 1961 Convention is not self-executing and its provisions do not in themselvesprohibit any conduct. 171 Therefore, it seems clear that the reference in Article 36(1) toactivities which are, or which in the opinion of a Party may be, ‘contrary to theprovisions of this Convention’ should be read as activities that would be contrary todomestic laws which must be adopted by Parties in accordance with their obligationsunder other provisions of the Convention. 172This interpretation is explicit in Article 22 of the 1971 Convention (the equivalent ofArticle 36 in relation to psychotropic substances), which requires Parties to establish ascriminal offences any action ‘contrary to a law or regulation adopted in pursuance of itsobligations under this Convention’. According to the United Nations Commentary onthe Convention on Psychotropic Substances (‘1971 Commentary’), the Legal Adviser tothe 1971 Conference explained that Article 22 was drafted in this way because non-selfexecuting treaties, such as the 1961 Convention and the 1971 Convention, may onlyrequire the punishment of offences which are contrary to the domestic law of Parties. 173In relation to the 1961 Convention, the effect of this is that Parties are obliged to makethe enumerated activities punishable offences where they are, and other activities whereParties judge that they may be, contrary to domestic laws adopted to fulfil Parties’obligations under the Convention. By virtue of Parties’ general obligations under Article4(c), therefore, the activities enumerated in Article 36 must generally be madepunishable offences where they are undertaken for non-medical and non-scientificpurposes. Under Article 2(5), Parties must prohibit activities with respect to Schedule IVdrugs ‘except for amounts which may be necessary for medical and scientific researchonly’, if they judge this to be the most appropriate means of protecting the public healthand welfare. Therefore, Parties would also be obliged under Article 36 to make activitieswith respect to Schedule IV drugs punishable offences if they elect to prohibit themunder Article 2(5).171Article 4(4) of the 1961 Convention; United Nations. Commentary on the Convention onPsychotropic Substances, New York: United Nations, 1976, (‘1971 Commentary’), p. 348.172Boister N. Penal Aspects of the UN Drug Conventions. The Hague/London/Boston: Kluwer LawInternational, 2001, p. 76.1731971 Commentary, p. 348.130