roadmaps to reforming the un drug conventions - Beckley Foundation

6.1.2. Option 1 – changes to the 1988 ConventionIf non-commercial domestic actions in relation to narcotic drugs and psychotropicsubstances were removed from the scope of the 1961 Convention and 1971 Convention(respectively) as discussed above, there would not be any need for similar generalrestriction of the scope of the 1988 Convention for the purposes of Option 1. This isbecause Article 3 of the 1988 Convention only requires criminalisation of theenumerated actions where they are contrary to laws or regulations adopted to fulfil aParty’s obligations under the provisions of the 1961 Convention, the 1961 Convention asamended and/or the 1971 Convention. The effect of the proposed new articles in the1961 Convention as amended and the 1971 Convention would be that actions taken forother than commercial purposes and involving only small quantities of drugs orsubstances would no longer be contrary to those Conventions.All the provisions of Article 3 are expressed to apply where actions are contrary to theprovisions of the earlier conventions, or where they relate to or involve the illicitcultivation, production, manufacture or use of narcotic drugs or psychotropicsubstances, or the commission of offences established in accordance with Article 3(1) or(2). ‘Illicit traffic’ is defined in Article 1(m) as the offences in Article 3(1) and (2), and itseems clear that other uses of ‘illicit’ were intended to refer to actions contrary to laws orregulations adopted in accordance with the 1988 Convention or the earlier conventions.Therefore, it seems clear that by virtue of the new provisions in the 1961 and 1971Conventions, Parties to the 1988 Convention (with the possible exception of Afghanistanand Chad 227 ) would no longer be required to criminalise actions taken for other thancommercial purposes in relation to small quantities of drugs under Article 3 of the 1988Convention.A summary of the basic aims of the remaining obligations in the 1988 Convention is setout below.• Establishment of extra-territorial jurisdiction over Article 3(1) offences – Article 4.• Confiscation of processed derived from, and equipment, material or substances usedin, Article 3(1) offences – Article 5.of the European Convention of Human Rights (which protects the right to respect for private andfamily life).227It should be noted that the new Article 3 bis would be added to the 1961 Convention as amendedby the 1972 Protocol, and not the unamended 1961 Convention. Afghanistan and Chad are the onlytwo states that are Parties to the 1961 Convention and not the 1972 Protocol amending the 1961Convention. Accordingly, they may not be subject to the exemption created by the new Article 3 bis ofthe 1961 Convention as amended, unless they specifically accede to the proposed changes. However,as noted, the 1988 Commentary states that Article 3(1)(a) must be interpreted by reference to theearlier conventions, including by Parties that are not signatories to the earlier conventions. Therefore,arguably Afghanistan and Chad would still be entitled to interpret Article 3(1)(a) by reference to the1961 Convention as amended, even though they have not acceded to that Convention, and would nolonger be required under Article 3(1)(a) to criminalise non-commercial domestic actions with respectto small quantities of drugs.164