roadmaps to reforming the un drug conventions - Beckley Foundation

substances’, as well as the ‘making of preparations other than those made inprescriptions in pharmacies.’According to the 1971 Commentary, the phrase ‘by such measures as it considersappropriate’ gives Parties broad discretion to decide upon the measures by which theywill ensure that the specified activities are limited to medical and scientific purposes,except that they must include among those measures all the controls required by theConvention. Under Article 22, Parties must treat as punishable offences manufacture,export, import, distribution, holding stocks and trade in Schedule II, III and IVsubstances contrary to a law or regulation adopted to implement controls required bythe Convention. The Commentary asserts that Parties need not apply penal sanctions topersonal use or possession of these substances under Article 22, but must limit theseactions to medical and scientific purposes by the administrative controls in theConvention (e.g. licensing of trade, requiring medical prescriptions, etc), and by takingaction against illicit traffic. 194 (Whether or not Parties are obliged to penalise personaluse and possession of psychotropic substances under Article 22 is discussed furtherbelow in relation to Article 22.)5.1.2. Option 1 – changes to Article 5The addition of the proposed new Article 2 bis to the Convention would exempt noncommercialactions involving small quantities of drugs from Article 5, such that Parties’obligations under paragraphs 2 and 3 would be confined to limiting the specified actionsto medical and scientific purposes only where they are undertaken commercially orinvolve more than a small quantity of substances.If the interpretations of ‘use’ in paragraph 2, and ‘possession’ in paragraphs 2 and 3discussed above are correct, the new Article 2 bis would make the references to use andpossession in paragraph 2, and the whole of paragraph 3, effectively redundant, andmay lead to uncertainty.Even if ‘use’ in Article 5(2) and ‘possession’ in Articles 5(2) and 5(3) were intended toinclude commercial use and possession, there would not appear to be any need to retainArticle 5(3), or the references to use and possession in Article 5(2). This is because Article22(2)(a)(ii) of the 1971 Convention (like Article 36(2(a)(ii) of the 1961 Convention)requires Parties to establish as punishable offences intentional participation in,conspiracy and attempts to commit, and preparatory acts in connection with the offencesreferred to in Article 22. As discussed further below, Article 22 requires Parties to makeany intentional action contrary to a law or regulation adopted in accordance withParties’ obligations under the Convention a punishable offence. This means that nonmedicaland non-scientific manufacture, distribution, import, export of, and trade in1941971 Commentary, p. 144. Boister also argues that interpreting ‘appropriate measures’ to limitpossession and to include non-penal measures is necessary in order to reconcile article 5(2) witharticle 5(3): Boister N. Penal Aspects of the UN Drug Conventions. The Hague/London/Boston: KluwerLaw International, 2001, p. 94.139