roadmaps to reforming the un drug conventions - Beckley Foundation

Article 5(2) to limit by appropriate measures the use and possession of Schedule II, III orIV substances to medical and scientific purposes causes uncertainty, but argues thatParties must be allowed to use non-penal measures to limit these actions in order toreconcile Article 5(2) with Article 5(3). 209It is uncertain, however, whether personal use or simple possession of Schedule Isubstances must be penalised. As noted above, the ordinary meaning of Article 7(a) of theConvention indicates that all use of Schedule I substances, other than scientific or verylimited medical use in the circumstances defined in that article, must be prohibited. Thiswould include personal non-medical use of the substances. The 1971 Commentary statesthat Article 22 was intended to deal with illicit traffic in psychotropic substances ratherthan to require punishment of the users of such substances, but it notes that the ordinarymeaning of Article 22(a) does not indicate that actions that are not part of illicit traffic inthe substances are intended to be excluded from its operation. 210Under Article 7(b), Parties must require a ‘special licence or prior authorisation’ forpossession of Schedule I substances. Boister notes on the one hand that this suggestsParties are obliged to prohibit possession other than under such authorisation, but onthe other that it is arguable that the whole tenor of Article 7 indicates that it is directed topossession for the purpose of trafficking. 211It is also unclear whether ‘possession’ is an ‘action’ for the purposes of Article 22(1)(a).The 1971 Commentary acknowledges that the ordinary meaning of possession maysuggest that it is not. It argues, however, that ‘possession’ as used in the 1971Convention means having actual control or power over the substances, including thewhole process of holding the substance, and would therefore include such actions aspreserving, hiding or moving the substance from place to place. 212 On this basis, theCommentary argues that possession of Schedule I substances for personal use is anaction that must be made a punishable offence under Article 22(1)(a). 213Whether or not possession of Schedule 1 substances is an action, the Commentarysuggests that possession of such substances for the purposes of trade would in all casesinvolve acquisition of the substances. Such acquisition would be an action in ‘trade’ inthe substances, and therefore an action under Article 22(1)(a), or at least an act inpreparation for trade for the purposes of Article 22(2)(a)(ii) (which requires Parties toSee also Boister N. Penal Aspects of the UN Drug Conventions. The Hague/London/Boston: Kluwer LawInternational, 2001, p. 93, footnote 97.209Boister, 2001, p. 94.2101971 Commentary, p. 350.211Boister N. Penal Aspects of the UN Drug Conventions. The Hague/London/Boston: Kluwer LawInternational, 2001, p. 94.2121971 Commentary, p. 351.213United Nations. Commentary on the Protocol Amending the Single Convention on Narcotic Drugs,1961, New York: United Nations, 1976, p. 58.157