roadmaps to reforming the un drug conventions - Beckley Foundation

offering for sale, distribution, 179 purchase, sale, delivery on any terms whatsoever,brokerage, dispatch, dispatch in transit, transport, and importation and exportation.Article 36 specifies both ‘offering’ and ‘offering for sale’, indicating that ‘offering’ mustmean offering to provide drugs without consideration (i.e. offering drugs as gifts).‘Purchase’ obviously means the buying of drugs, but for the same reasons as discussedbelow in relation to the meaning of ‘possession’, it is not entirely clear whether‘purchase’ as used in Article 36(1) is limited to buying drugs for re-sale or extends tobuying drugs for personal use. 180 It is likely that ‘delivery’ would include the provisionof drugs to another as the result of a sale or agreement, or without consideration. 181It is important to note that ‘use’ of drugs is not listed in Article 36(1)(a), and, althoughParties are required to limit use of drugs to medical and scientific purposes underArticle 4(c), they are not required to make use a punishable offence under Article36(1)(a). However, it is uncertain whether Article 36(1) requires Parties to makepossession of drugs for personal consumption a punishable offence, or only possessionfor illicit distribution. Possession in Article 36(1) must be read in conjunction withArticle 33, which provides that Parties must not permit the possession of drugs exceptunder legal authority, and Article 4(c), which requires Parties to limit possession ofdrugs to medical and scientific purposes. According to the 1961 Commentary, Article4(c) clearly refers to possession for both personal use and possession for trafficking, butit is not clear whether the provision must be implemented by imposing penal sanctionson possession for personal use. There is a view that Article 36(1) was only ever intendedto deal with illicit trafficking, 182 and that Parties are free to interpret possessionrestrictively as meaning possession in the context of supply or with intent to supply. 183This is based on the fact that an identical provision in a previous draft of the Conventionwas included in a chapter headed: ‘Measures against illicit traffickers’. The final versionof the Single Convention was not divided into chapters, so the chapter headings in thedraft were deleted; however, Article 36 is still in the part of the Single Conventiondealing with illicit traffic. 184 The use of terms relating to illicit trafficking surrounding‘possession’ in Article 36 also suggests that illicit trafficking was the intended subject ofthe provision, and that ‘possession’ was intended to refer only to possession for179See discussion of the meaning of ‘distribution’ in relation to Article 4(c) above.180Boister N. Penal Aspects of the UN Drug Conventions. The Hague/London/Boston: Kluwer LawInternational, 2001, p. 83.181Boister, 2001, p. 83.1821961 Commentary, p. 112.183Dorn N, and Jamieson A. Room for Manoeuvre: Overview of comparative legal research into national druglaws of France, Germany, Italy, Spain, the Netherlands and Sweden and their relation to three internationaldrugs conventions. London: Drugscope (for The Independent Inquiry on The Misuse of Drugs Act1971, London), 2000.1841961 Commentary, p. 112.132