“The union of such an army might excite our surprise, but the causes of separation are obvious and forcible: the pride of birth, the insolence of valour, the jealousy of command, the impatience of subordination, and the obstinate conflict of opinions, of interests, and of passions among so many kings and warriors who were untaught to yield or to obey.”

Edward GIBBON, The Decline and Fall of the Roman Empire, An Abridged Version, Penguin Classics, 1985, p. 573

Introduction

Is the American drug policy the only possible one that would comply with international drug law ? The point here, is not to describe in details what is the American drug policy. It is enough to state that it is a repressive policy, and even an increasing repressive policy. This simple statement is in opposition with another way of dealing with the use of drugs: the “legalization policy”. The question is then: is it possible to legalize drugs within the frame of the current International Conventions on Drugs ?

From the first Convention of 1912 to the last one of 1988, there have been huge changes in the way we consider drugs. First, in relation with the toxicological and medical knowledge of the products : the irrational fears of satanized substances turned into a reasonable management of well known risks. Secondly, our society had racist or at least ethno centrist fears towards the use of non occidental products causing pleasure or inebriation. Nowadays we can see that these fears turned into a cultural understanding or even, they have vanished in favour of a massive use of those “exotic drugs”, so that they have become one of the scheme of states, driven by worldwide or continental dynamics. Last but not least, drug use is, has been and will be a part of human life. The religious mastication of coca leaves by Andean people, the psychological use of Prozac by the North American nations, as well as the drunk parties where Gauls absorb hydromel, all these uses of psychoactive products are a part of mankind. On top of all this, once we accept that a drug free world is not possible, we have to deal with the use of our time and the drugs people use, how they use it. The universal society now understands and accepts its contemporaneous way of life characterized by flash information, chemical and electronic post-industrialization, global interactivity, urban and fast human activities.

The ideology of drug policies has evolved from a survival instinct guided by imperialistic and moral goals, to a more reasonable attitude driven by equality, equity and dignity. The international laws moved in their norms and ideas, the sovereign states decided to face the International Conventions, and slowly but surely an universal debate on drug policy have been created. The international vigils striving for the respect of the ideology contained in the International Covenants had to accept state practices and realize their lack of ideological and juridical power to stop and challenge this worldwide movement of opinion.

At length, verging towards old age, and sometimes conquering by the terror only of her name, she sought the blessings of ease and tranquillity. The Venerable City, which had trampled on the necks of the fiercest nations and established a system of laws, the perpetual guardians of justice and freedom, was content, like a wise and wealthy parent, to devolve on the Caesars, her favourite sons, the care of governing her ample patrimony. (...)But this native splendour is degraded and sullied by the conduct of some nobles who, unmindfully of their own dignity and of that of their country, assume an unbounded licence of vice and folly.”

Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., p. 593.

World Repression Wanted ?

1. International Narcotics Treaties

The Definition of Narcotic Drugs

Drugs can be[1] either recreative (tobacco, alcohol, cocaine,…), either have a medical utility (chemical and pharmaceutical products,…) or serve both purposes (heroine[2], opium[3],...). Opioids and cannabis products are a kind of drugs. As a reference, we use the « summa divisio » of the three major international conventions in the field of drugs, that differenciate between « narcotics » on the one hand and « psychotropic substances » on the other hand. In international law, « narcotics » are not clearly defined[4]. « Narcotics » are the substances enumerated by the Single Convention of 1961[BM1] [5], as mentioned in article 1.1.j[6]. These narcotics[7] are the opioids, cocaine and cannabis products. Opioids are all the narcotics obtained from the poppy (Papaver Somniferum L.) and listed in Schedules I, II and IV of the Single Convention. Cannabis products are the narcotics proceeded from the cannabis plant (Cannabis Indica L.), and listed in the same schedules as opioids.

From 1909 to 1988: Few Historical Elements

It has been said that narcotics international law started with the war[8]. In fact, the two opium wars of 1839 and 1856 are at the roots of the first international drug convention. China wanted to ban, for public health reasons, the opium imported from India by the British Empire. In the name of the free enterprise, Great Britain wanted the market to be free. Under the influence of the United States, the Shanghai Convention of 1909 established the first international regulation on trade of opium[9]. Since 1909, nine other conventions[10] have been signed, including the Single Convention of 1961.

Today there are three major international conventions in force in the field of international drug law. The first one is the Single Convention of 1961[11], as amended by the Protocol of the 25^th march 1972. As we have seen the convention regulates the three « natural »[12] drugs. Apart from establishing an international control on the licit traffic in drugs, the Single Convention requires Parties to the convention to take all necessary legal and administrative measures to limit exclusively the production, manufacture, export, import, distribution, trade, use and possession to medical and scientific goals (article 4 of the Single Convention). The second Convention is the Convention on Psychotropic substances, signed in Vienna in February 1971[13]. The 1971 Convention is drafted on the model of the Single Convention but regulates other types of drugs : the « psychotropic substances » (hallucinogens, amphetamines, barbiturics and tranquillisers), i.e. all drugs of industrial or synthetic origin[14]. As its model, the 1971 Convention does not define the drugs it regulates. It enumerates in lists the drugs it controls[15]. The third convention is the United Nations Convention Against the Illicit Trade in Narcotics and Psychotropic Substances signed in Vienna in December 1988[16]. The aim of this convention is to strengthen and complete the fight against illicit traffic and abuse of drugs and not to regulate the licit trade [17]. The 1988 Convention requires measures against money laundering, measures in favour the improvement of international cooperation, extradition and mutual judicial assistance.

Aims of the Single Convention

The Single Convention is the most important treaty since it lays the grounds for control of licit trade and defines what is licit and what is not. The general principle enunciated in the Single Convention is the organisation of all activities related to drug trade: culture, fabrication, importation, exportation, sale, distribution and use. Parties undertake to limit the use of drugs to medical and scientific needs, in view of protecting public health.

The Convention establishes a worldwide control system on the licit traffic in narcotics. This business is limited principally to the pharmaceutical purposes : the narcotics necessary in medicine as said in the Preamble. Regarding this framework, does the treaties authorize a state to pursue a goal that would not be the criminalization of users and the prohibition of the use of some « evil » narcotics for medical use ? In other words, can a state legalize and organise the use of cannabis for recreational (and medical) purposes or the distribution of heroine to compulsive heroine users ?

2. ”Use Of Drugs” in the Conventions

Between Public Health and Repression

If we refer to the aim of the International Conventions, as it appears from the Preambles, there are two main goals. On the one hand, the fight against illicit drug trafficking and on the other hand, the protection of the health and welfare of human beings[18]. Moreover, the words “scientific and medical purposes » are not to be understood in a stringent fashion[19]. Some exceptions can be found, i.e., industrial, culinary or veterinary use of narcotics[20]. But, the wordings was chosen in order to emphasize the final aim of the Convention: “ It is therefore proposed that the general purpose of international control should be defined in terms of its final aims and not in terms of intermediary objectives. Consequently, the Preamble will emphasize the positive aspect of any control of drugs, i.e., to ensure sufficient supplies for medical and scientific requirements ”[21]. We can also refer to the first words of article 4.c that establishes a prohibition “subject to the provisions of this convention”[22]. This means that exceptions to the principle can be found in other articles of the Single Convention that are serving other purposes than medical and scientific ones.

“Use” Versus “Abuse”

This could obviously mean that the Convention does not only aim at promoting the scientific and medical use of narcotic drugs but basically, its objective would be to prohibit the use of narcotics for the pleasure. The “recreational use” of narcotics would then be an unknown but clearly forbidden concept in these conventions. Well, what we can be found in opposition to the general obligation of article 4.c in order to limit the use of drugs to the scientific and to the medical purposes, is the hypothesis of drug abuse. Again in the third sentence of the Preamble of the Single Convention, the Parties are « recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind »[23]. Every non-medical or scientific use would be an « abuse », by « addicts ». But the Single Convention does not oblige a state to convict or punish a drug abuser as a Party to the Single Convention can provide for medical or social care as alternative to penalties. It could mean that the repression or prohibition of use by a « non addict drug user », if it ever exists, was not foreseen by the Single Convention. But there is more. As “ the “use” of drugs is not specifically listed in article 36, par. 1. among the actions which, subject to its constitutional limitations, a Party must treat as punishable offences. It appears that it is left to the discretion of each Party to decide whether it wishes to penalize the non-medical consumption of narcotic drugs by addicts “[24]. It is as though the Single Convention meant to leave the drug abuser immune, as opposed to the illicit producer or seller that should be convicted. It is quite ambiguous : on the one hand, it is forbidden to use drugs other than for medical and scientific purposes but on the other hand, there are no penalties on the illicit user…

“Use” in the 1988 Convention: the End of a Loophole ?

The 1988 Convention would go further since it obliges the states to regard as a criminal offence the possession, purchase or cultivation of narcotics for « personal consumption » (article 3.2). It is a switch in the International Treaties. The aim of the Single Convention, apart from the objectives we have seen below, was to provide a worldwide control system on the production and trade in narcotics and to impose criminal offences for those who would not respect the rules. The 1988 Convention obliges the Member States to criminalize the personal consumption of drugs through the wordings “possession for personal use”. It is a significant switch, as a possible root of the Single Convention (to prohibit the habit of smoking opium or to use Indian hemp[25]) was not expressed openly. Using the words “personal consumption”, the 1988 Convention would express something that was obvious in 1961. The need to say it was drafted in the context of the arising debate on legalization of the recreational use of drugs[26]. It is interesting to note that the debate would find its expression in the words used in the Convention. Would this mean that the Single Convention is not clear enough ? Would it mean so far that drug abuse only is regarded as forbidden ? Would this mean that personal consumption must be totally forbidden ?

Textual Exceptions to Prohibition in the 1988 Convention

It is controversial. In the 1988 Convention the possession, purchase or cultivation of narcotics for personal consumption is forbidden if « contrary to the provisions of the 1961 Convention » as mentioned in article 3.2, in fine. Would that mean that possession, purchase and cultivation for personal consumption can be licit ? Of course, the medical and scientific purposes are licit. Several authors[27] already pointed out that the interpretation of the Conventions is possible. LAP and POLAK analyse three articles of the Single Convention. They interpret in a large sense article 4.c and the words “medical and scientific purposes”. They understand those words as containing the concept of “protection of the public health”, as we can find it in the article 22 of the Convention and in the Preamble. On the other hand reading the regulatory provisions of the Single Convention, they see that licit culture, fabrication, sale, import, purchase and possession of narcotics are regulated in the Convention. As far as cannabis is concerned, they emphasise article 28.1 of the Convention: “if a Party permits the cultivation of the cannabis plant for the production of cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy”. This article explicitly mentions the possibility of a government agency regulating production and distribution of cannabis, as article 23 regulates in connection with opium. They propose that the governments that are willing to decriminalize the use of cannabis put that article into force. We can see it as an example of an interpretation of the Single Convention. On top of this, article 3.2 of the 1988 Convention limits the obligation to a State to criminalize the possession for personal consumption by the « constitutional principles » and the « basic concepts of its legal system ». It means that some national legal principle can exclude the criminalization of the cultivation, purchase and possession of narcotics. It could be, for example, the right to health, or the right to freedom of behaviour, or the disproportion between the means used to fight illicit drug business and consume, and the ineffectiveness to reach the desired goal, or even the right to pleasure as a part of the right to the Privacy.

About the “Wrong Message”

Furthermore, the 1988 Convention did not banish the ambiguity contained in the principle “prohibition without sanction”. The Conventions would oblige the Parties to provide for a penalty on drug consumers. Even if it is not put into force. It is the “tolerance policy”, the « de facto legalization ». Tolerance in the sense that the Criminal Law of a country must establish that consuming drugs is prohibited by the Criminal Code. « De facto » in the sense that the Criminal Law still exists and that the legalization is not « de jure », by a reform of the Criminal Code. But, in the application of the law, a State is not obliged to convict or punish: an “expiation fee” can be enough. Using drugs for pleasure is a taboo and it would be a « wrong message » to authorize their recreational use. The problem is that a “de facto” legalization of the use of narcotics is unfair: as the law remains, as its application or non-application will depend on the will of the people in charge of the enforcement of the law. This is unfair as the people with a good social and family situation, and well-educated could escape from penalties while the others could not. It is unfair as the policy will not be the same from one place to the other in a same state. It can be seen as a violation of the basic and constitutional concept of equality towards law, thus also as a violation of a human right.

Intermediary Conclusion

As a first conclusion we can say that the Conventions does not obviously prohibit the decriminalization of the culture, purchase, possession of narcotics for personal consumption. The treaties leave room for a formal legalization (« de iure ») of recreational use of drugs even though it is controversial. On the one hand we have seen that the “constitutional exception” can be put into force. This means that a government could reasonably defend the point of view that some of its constitutional principles hamper the criminalization of the recreational use of drugs. On the other hand, a government can also declare that the Convention needs to be interpreted in the sense that the protection of public health requires a regulation of the use of narcotics for pleasure, in conformity with the international and national administrative control system of the 1961 Convention.

3. Prohibition of the use of cannabis

The Preparatory Works of the Single Convention

Now I wish to discuss a special issue related to the use of cannabis. If we look at the official record [28]of the discussions held prior to the conference that was to create the Single Convention, we find that the “cannabis question” has been a controversial item. In fact, there were disagreements between the delegates. On the one hand, some of them considered that the use of cannabis was not dangerous and on the other hand, some considered that cannabis could be used as a medical drug. First, I shall consider the recreational drug use. When I wrote above that “recreational use” is unknown in the Convention, I must confess that it was not entirely true. In fact, article 49 of the Single Convention contains the transitional reservations to the Convention. It permits one State to tolerate the traditional use of opium smoking, cannabis using and coca leaves chewing during 25 years. Besides, what is specific to cannabis, is that the Indian representative said during the discussions that using the leaves of cannabis is not harmful and that: “India could not afford the expense of combating a relatively harmless habit”[29]. Furthermore, the Canadian representative said that it was necessary to find “a formula which could cover that social but legitimate use of the leaves”[30]. “Social but legitimate use”. As far as I know, it is the first and last time that this expression was used. Consumption of cannabis leaves for pleasure is not prohibited by the Single Convention as the Representatives found it was not a dangerous drug. It is very important though to note that the authors of the Single Convention did not excluded every single recreational use of drugs. The Indian Representative really had to convince the other Representatives, and he did succeed. The discussion was so controversial, that the item was sent to an “ad hoc committee” that would try to conciliate the points of view. The Indian Representative fiercely kept his point of view, so that the definition of cannabis as drafted, was changed to exclude the leaves. The definition of cannabis is now (article 1.1.b): “”Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated”. The leaves of cannabis are therefore not in any Schedule of the Single Convention. But it does not mean that the cannabis leaves are a totally free drug in the International Law: “The leaves of the cannabis plant (…) are not “drugs” in the sense of the Single Convention.(…). Parties are not bound to prohibit the consumption of the leaves for non-medical purposes, but only to take the necessary measures to prevent their misuse. (…). The conditions under which non-medical consumption might be permitted might also depend on the outcome of the studies which at the time of this writing are being carried out concerning the effects of the use of the leaves”[31]. Now, we don’t know what happened to those studies, …

Is Cannabis Always Harmful for Health ?

Nevertheless, the problem of medical use is related to that of social use since at the time the Convention was drafted, it was not sure whether cannabis was harmful or could be used as a medical drug. Cannabis as a medical drug… Some representatives indeed (such as the representative of the Byelorussian Soviet Socialist Republic) claimed that cannabis and cannabis resin were being used in indigenous medicine, and that it could not be prohibited. On the other hand, other representatives (such as the representative of France) claimed that some therapeutic use could possibly be found in the future for cannabis, so that it should not be simply and purely prohibited. A third position was that of the USA, in favour of a complete prohibition of cannabis as a “stepping stone” to heroine. In fact, the value of cannabis as an antibiotic or as a sedative, was pointed out by the Secretary-General of the United Nations in a note (“Medical use of cannabis”) published a few months before the Conference started[32]. Attached to this note was the report by the WHO over “The merits of antibiotic substances obtainable from cannabis sativa”[33]. The Secretary General concluded that the Conference must consider the “possible modification of the provisions of the Single Convention in order to permit the use of cannabis for the extraction of useful drugs”.

Intermediary Conclusion

Cannabis is now listed in schedules I and IV of the Single Convention. Just like heroine. Schedule IV is supposed to be the more stringent one. It recommends to the Parties a total ban on any drug it mentions. Yet it is only a recommendation and a state may still consider that this drug may be used as a medicine. As far as the recreational use of narcotics is concerned, we have seen that the textual approach provides for exceptions to the prohibition of the possession, purchase and culture of narcotic drugs for personal consumption. Furthermore, cannabis has a special statute as we can find it in the preparatory works of the single convention. This contextual approach confirms the textual one and at this stage, we can draw the following conclusions. First, we can say that cannabis leaves are not a drug and dealing with it does not oblige the state to use article 28: a state can authorize the recreational use of it without violating the Single Convention. Secondly we must note that cannabis resin or the flowering tops and fruiting tops of it are drugs, even though their medical use is not excluded by the Single Convention but, article 28 must in this case be put into force. Thirdly, it is obvious that if a state decides to legalize cannabis, for medical or recreational use, it will have to comply with the administrative provisions of the Single Convention and to explain its legal arguments, as well as to deal with the International Narcotics Control Board, such as it has been the case for Switzerland with respect to the heroine trial and for The Netherlands to the coffee shops. Fourthly, we cannot say that the goal of the Single Convention (and of the 1988 Convention) is clearly and obviously the prohibition of all the recreational use of narcotics and it is then necessary to interpret those international treaties.

“The political and secret transactions of two statesmen who laboured to deceive each other and the world must forever have been concealed in the impenetrable darkness of the cabinet if the debates of a popular assembly had not thrown some rays of light on the correspondence of Alaric and Stilicho. The necessity of finding some artificial support for a government which, from a principle not of moderation but of weakness, was reduced to negotiate with its own subjects had insensibly revived the authority of the roman senate; and the minister of Honorius respectfully consulted the legislative council of the republic.”

Edward GIBBON, The Decline and Fall of the Roman Empire, op.cit., pp. 577-578.

II. About Interpretation in International Law

Small bibliography

- Michel VIRALLY, Le droit international en devenir, Presses universitaires de France, Paris, 1990.

- Jean J.A. SALMON, Droit des Gens, 12^th edition, Presses Universitaires de Bruxelles, Bruxelles, 1994, 777 pages.

- Ian BROWNLIE, Principles of Public International Law, 5^th edition, Clarendon Press, Oxford, 1998, 743 pages.

- Nguyen QUOC DINH, Patrick DAILLIER and Alain PELLET, Droit International Public, 6^th edition, L.G.D.J., Paris, 1999, 1.455 pages.

- Jan KLABBERS, The Concept of Treaty in International Law, Kluwer Law International, The Hague-London-Boston, 1996, 307 pages.

- Oscar SCHACHTER, International Law in Theory and Practice, Martinus Nijhof Publishers-Kluwer Academic Publishers, Dordrecht-Boston-London, 1991, 431 pages.

- Antonio CASSESE, International Law in a Divided World, Clarendon Press, Oxford, 1986, 429 pages.

- Myres S. McDOUGAL, Harold D. LASSWELL and James C. MILLER, The Interpretation of Agreements and World Public Order, Principles of Content and Procedure, Yale University Press, New Haven and London, 1967, 410 pages.

- Nancy KONTOU, The Termination and Revision of Treaties in the Light of New Customary International Law, Clarendon Press, Oxford, 1994, 169 pages.

- Bin CHENG, « La jurimétrie : sens et mesure de la souveraineté juridique et de la compétence nationale », Journal du Doit International, 1991, pp. 579-599.

- J.P COT and A. PELLET, La Charte des Nations-Unies, Commentaire article par article, Edition Economica, Paris, 1991.

- Jean COMBACAU and Serge SUR, Droit International Public, Edition Montchrestien, 1993.

- Fernando R. TESON, « Le Peuple, c’est moi ! The World Court and Human Rights », The American Journal of International Law (Vol.81 1987), pp. 173-183.

- Mohamed BEDJAOUI, Droit International, Bilan et Perspectives, Edition Pedone, Paris.

1. Are the Parties Bound by the Narcotics Conventions ?

Are the Narcotics Conventions Binding ?

In a recent book over the concept of treaty in international law, KLABBERS writes : «any study dealing with the concept of treaty will sooner or later have to come to terms with wider notions as to what is meant by law in general, and by international law in particular »[34]. In fact, we can recall the theory saying that a law without a sanction (this means enforced in a court of law) is not binding. Do the Narcotics Conventions build a system of norms providing with sanctions in the event their provisions would not be respected ? The answer is obviously negative. To the best of my knowledge, no case was ever dealt with by the International Court although it has jurisdiction over the settlement of these disputes according to the Single Convention (article 48) and the 1988 Convention (article 32). We might think that the international organisations or bodies operating in the field of control and enforcement of the Narcotics Treaties[35] have the possibility to sanction an offender. We face here the concept of « sanction » in international law… Should a moderate condemnation in appropriate wordings in the yearly report of the International Narcotics Control Board be regarded as a proper sanction ? Does a visit in a country by a delegation of the INCB amount to a punishment ? Well, to my point of view, it is not, and these actions are the only ones the INCB ever permitted to undertake. Although, the Single Convention empowers the INCB to impose an embargo on all narcotic products against an alleged offender of the treaty. Although the Board can draw the attention of United Nations Bodies on the behaviour of a state…

« Pacta Sunt Servanda »

We must depart from this rather unrealistic view : international drug law does exist even if no sanction but for a moral condemnation is provided. And this is the point : international (drug) law is of course binding[36], even without sanctions. It is far out of my intellectual reach to theorize on the existence of law, but I can see that states respect, more or less, international treaties. It is rather a matter of « credit, confidence, consideration and compromise »[37] than a matter of sanction. The treaty, according article 26 of the Vienna Convention on Treaties must be performed by the parties in good faith, it is the adagio « pacta sunt servanda »[38].

Self-Executing Provisions of the Narcotics Treaties

Furthermore, international treaties can be a direct source of internal or municipal law for the provisions that are self-executing, i.e. sufficiently clear in order to be directly used in municipal law without any legislative or administrative intervention of the state. Most provisions of the Narcotics Conventions are not self-executing. This means that the state party must take legislative measure in order to respect it. Furthermore, it certainly gives a greater power of interpretation to the states in the application of the treaty and it permits a reform of the « application law » if the state thinks a new one would better fit the goals and obligations of the Narcotics Treaties. Only very few provisions of the treaties could be self-executing : for example, part of article 36 of the Single Convention on criminal provisions and the « non bis in idem » principle, article 7 on mutual legal assistance[39] in the 1988 Convention and article 11 on controlled deliveries[40] in the same convention. One pitiful example of direct application of article 36 of the Single Convention can be found in Belgian Law.

Misunderstanding a Self-Executing Provision of the Single Convention

Illicit importation or illicit exportation of narcotics can be one same behaviour : a trafficker going from France to Belgium, carrying drugs. This person is trialed twice for the same facts : once in Belgium for importation and once in France for exportation : two trials, two sentences, two jails, one French and one Belgian. The Belgian « Cour de Cassation »[41] referred in 1989, in a classical fashion, to the different goals that are protected under Belgian and French Law with respect to the second trial of a drug trafficker. But there is more : the Court also referred to the Single Convention. In its article 36.2.a..i, the convention asks that : « each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence ». We find in paragraph 1, the two offences we are tackling with : illicit importation and illicit exportation of narcotics. Since the goals of both the Belgian and French Criminal Law are becoming identical i.e. « the protection of the interests of the European people »[42], the Court had to refer to the Single Convention in order to be able to conclude that the second trial, even though obviously relating to the same facts, was legal. I would like to evidence the real significance of article 36.2.a.i of the Single Convention. Does it aim at putting someone on trial twice in a row ? We will analyse the preparatory works of the Single Convention and the Commentary on the Single Convention, drafted by the UN Secretary General. Did the Single Convention really mean to have a drug trafficker judged twice ? Is the Single Convention as repressive as the « Cour de Cassation » wanted it to be ? I believe not : the aim of this article was only to make sure that the drug trafficker would not escape to any trial, and not to have him condemned twice or more because of his so called particularly bad behaviour. First of all, article 36.2.a.iv of the Single Convention puts a condition precedent to the application of article 36.2.a.i : the offender shall be prosecuted by the Party on whose territory the offence was committed if such offender has not been prosecuted and if no judgement has been rendered. It is worth mentioning the Single Convention Comment[43] relating to article 36.2.a.i : « it (clause (i)) is not intended to violate the principle « non bis in idem » (prohibition of double jeopardy)( ...) ». This article only aims at avoiding that a country provides for a shelter to a trafficker[44] : the extensive descriptions of the offences aims at giving jurisdiction to the largest possible number of States. We can find the same opinion in the discussions that took place during the Conference held prior to the Single Convention : the members emphasized that this article 36.2.a.i was not intended to violate the « non bis in idem » principle[45]. That is the reason why a special clause was added in the article 36 : it is the constitutional exception that permits one State not to apply a rule if it is contrary to its constitutional and legal system. It seems that pursuant the Belgian « Cour de Cassation » case law the principle « non bis idem » was none of these exceptions. Some of the members of the Conference feared exactly what happened in Belgium during the last thirty years : that someone would be trialed twice for the same facts, in a clear breach of a human right.