Article 11

NEW ARTICLE 21 BIS

Introductory paragraph of article 11 of the 1972 Protocol and paragraph 1 of article 21 bis of the amended Single Convention

The following new article shall be inserted after article 21 of the Single Convention:

"Article 21 bis "Limitation of Production of Opium

"1.   The production of opium by any country or territory shall be organized and controlled in such manner as to ensure that, as far as possible, the quantity produced in any one year shall not exceed the estimate of opium to be produced as established under paragraph 1 (f) of article 19."

Commentary

1. The 1972 Conference recognized that advance estimates of opium production, i.e. of a harvest of an agricultural product, cannot be exact. Article 19, paragraph 1, subparagraph (f) therefore only requires that Parties should furnish estimates of "the approximate quantity of opium to be produced". In view of this understanding of the problem the Conference amended the draft of the paragraph under consideration to provide that the quantity produced shall "as far as possible" not exceed the estimate.'

2. A country or territory which in good faith implements the controls required by article 23, and, pursuant to paragraph 2 of that article, authorizes opium poppy cultivation only on an area of such size as according to past experience can be expected approximately to yield the estimated opium harvest, would have to be considered to have complied with article 21 bis, paragraph 1 (or article 19, paragraph 5) even though its opium production greatly exceeds its estimates for the year in question. It is submitted that such a country or territory would have to be held to have "organized and controlled" opium production "in such a manner as to ensure that, as far as possible" its opium production does not exceed its estimates for the year in question. This would in particular have to be recognized if the extent of the area authorized for opium poppy cultivation for opium production has been determined on the basis of the average yield of opium per unit of land (acre or hectare) in the opium producing district or districts concerned in the preceding five years.2

3. A country or territory would in no case be required to destroy legally cultivated opium poppies or not to collect part of the opium harvest in order to reduce its opium production to the amount of its estimate.'

4. The estimates which should "as far as possible" not be exceeded by actual opium production are either those furnished by the Governments concerned under article 19, paragraph 1, subparagraph (f), or those established by the Board pursuant to article 12, paragraph 3, or those revised by supplementary estimates under article 19, paragraph 3. They are not those established by the Board in accordance with the amended paragraph 5 of article 12. 4

5. Under article 19, paragraph 3 a Government may furnish to the Board supplementary estimates during the year to which the original 5 estimates relate. The 1972 Protocol does not exclude the estimates of opium production from the application of that provision. 6 A Government therefore could by a supplementary estimate avoid an excess under article 21 bis, paragraph 1 and thus its consequences under paragraph 2 of that article. It could furnish a supplementary estimate even after the produced opium has been collected, so long as it does so during the calendar year to which the original estimate relates. It is however suggested that such a supplementary estimate furnished to the Board after the opium harvest, although not incompatible with the letter of article 19, paragraph 3 and article 21 bis, paragraph 1, would not be in accord with the intention which the authors of article 21 bis had in mind when adopting this article.7

6.   Article 21 bis, paragraph 1 is intended to cover Parties and non-Parties to the amended Single Convention alike, and also territories of such Parties to which the Single Convention does not apply according to article 42 or 46. The Board may however apply paragraph 2 of article 21 bis only in the case of an excess occurring in a country which is a Party to the amended Single Convention or in those of its non-metropolitan territories to which the Single Convention applies according to article 42. It may however proceed under article 14 in regard to an excess under article 21 bis, paragraph 1 occurring in a country which is not a Party to the amended Single Convention, or in a non-metropolitan territory to which the Single Convention does not apply pursuant to article 42 or 46 if it finds that the conditions for proceeding under article 14 exist.

1 Document E/CONF.63/5, 1972 Records, vol. I, pp. 95 et seq., and vol. II, paras. 32, 53 and 61 of the summary records of the sixth meeting of Committee I (pp. 88 and 90); see also 1961 Commentary, paras. 1 and 2 of the comments on article 19, para. 5 (pp. 241-242).

2 Article 8, para. 3 of the 1953 Protocol.

3 See however para. 2 of the amended article 22.

4 Para. 6 of the above comments on the introductory paragraph of article 5 of the 1972 Protocol and on para. 5 of article 12 of the amended Single Convention.

5 Or earlier supplementary estimates. Supplementary estimates may also be furnished prior to that year. 1961 Commentary, paras. 3 and 5 of the comments on article°19, para. 3 (pp. 237-238).

6 1972 Records, vol. 11, para. 10 of the summary records of the fifth meeting of Committee I (p. 82).

7 The estimate system as originally adopted by the 1931 Convention and taken over by the Single Convention was intended to apply to the requirements of narcotic drugs for different purposes as a basis for computing manufacturing and import limits. Its extension to opium production by the 1972 Protocol, i.e. to an agricultural process, has caused some incongruities. The extension of the estimate system under article 19, paragraph 1, subparagraphs (e), (g) and (h) may also not be in full harmony with its rules. The 1972 Protocol did not make such adjustments in that system as would be necessary to avoid those incongruities. The estimates of opium production and of the area used for such production under article 8, paragraph 3 of the 1953 Protocol do not have a binding character, and are therefore basically different from those of the 1972 Protocol.

Paragraphs 2 and 5

"2. If the Board finds on the basis of information at its disposal in accordance with the provisions of this Convention that a Party which has submitted an estimate under paragraph 1 (f) of article 19 has not limited opium produced within its borders to licit purposes in accordance with relevant estimates and that a significant amount of opium produced, whether licitly or illicitly, within the borders of such a Party, has been introduced into the illicit traffic, it may, after studying the explanations of the Party concerned, which shall be submitted to it within one month after notification of the finding in question, decide to deduct all, or a portion, of such an amount from the quantity to be produced and from the total of the estimates as defined in paragraph 2 (b) of article 19 for the next year in which such a deduction can be technically accomplished, taking into account the season of the year and contractual commitments to export opium. This decision shall take effect ninety days after the Party concerned is notified thereof.

"5. In taking its decision with regard to a deduction under paragraph 2 above, the Board shall take into account not only all relevant circumstances including those giving rise to the illicit traffic problem referred to in paragraph 2 above, but also any relevant new control measures which may have been adopted by the Party. "

Commentary

1. The Board may act under paragraph 2 only on the basis of information which it received pursuant to (explicit) provisions of the Single Convention. Those provisions are: article 8, paragraph (b), article 12, article 13, article 14, article 19, article 20, article 21 bis, paragraph 2. article 24 paragraph 2, subparagraph (a), article 35, paragraphs (f) and (g) and article 49, paragraph 3 subparagraph (b).1

2. In order to be authorized to decide `on a deduction with which, paragraph 2 deals the Board must

(a) find that an excess of opium production pursuant to paragraph 1 has occurred in a country which has accepted the 1972 Protocol (or the amended Single Convention) or in a non metropolitan territory of such á Party to which the Single Convention applies according to article 42;

(b) find that a significant amount of opium produced, whether licitly or illicitly, in such a country or territory has flowed into the illicit traffic;

(c) notify those findings to the Party concerned and request explanations of the excess of opium production and of the flow of opium into the illicit traffic; and

(d) study and find unsatisfactory such explanations as it may receive.

3. . Under the text of paragraph 2 it would appear that the Board may. apply that, provision only to those countries Parties to the amended Single Convention or to those of their non-metropolitan territories subject to the Single Convention for which the Governments concerned have furnished the estimates under article 19, paragraph 1, subparagraph (f) that were exceeded in accordance with the conditions of article 21 bis, paragraph, 1. It is however suggested that it was obviously not the intention of the 1972 Conference to exclude from the scope of article 21 bis, paragraph 2 a country or. territory for which the Board under article 12, paragraph 3 has established an estimate of opium production because the Government in question failed to furnish it.

4. As regards the question whether a Party can by a supplementary estimate prevent the determination by the Board of excessive opium production in the sense of article. 21 bis, paragraph 1, see paragraph 5 of the above comments on the introductory paragraph of article. 11 of the 1972 Protocol and on article 21 bis, paragraph 1 of the. amended Single Convention.

5. The phrase "licit purposes" covers not only medical and scientific purposes, but also the quasi-medical use of opium and opium smoking in cases in which by virtue of an appropriate, reservation pursuant to article 49 opium production for such a non-medical use is authorized.

6. The plural "relevant estimates" may be explained by the consideration that a Party may under article 49, paragraph 3, subparagraph (b) have furnished to the Board a separate estimate of opium production for quasi-medical purposes or opium smoking or both, in addition to an estimate of such production for medical and scientific purposes.

7.   The Board may apply paragraph 2 not only in a case in which a significant amount of ' licitly" produced opium has been diverted into illicit channels, but also in one in which such diversion has not taken place, but opium is produced not only "licitly" but also "illicitly". The words "licitly" and "illicitly" are in this context synonymous with "legally" and "illegally". The applicability of paragraph 2 to a Party which has an excessive legal opium production which nevertheless that Party seems effectively to control, though it cannot prevent a significant illegal opium production, may perhaps be motivated by the assumption that a Party which is unable to prevent illegal opium production is also unable to prevent diversion from its legal production, although that diversion cannot be proven for the purposes of that paragraph 2

8.   It must be admitted that in practice it may often be very difficult for the Board to determine with certainty that a "significant" quantity of opium has been diverted from legal production into illicit channels or was illegally produced in the country or territory in question. It may in particular be difficult to determine with certainty that opium appearing in the illicit traffic originated in the country or territory involved 3 But past experience has proven that in some situations the Board would be able to make such determinations beyond any reasonable doubt.

9.   It is sufficient for the purpose of paragraph 2 that the Board finds that an important quantity of opium was diverted from legal production or illegally produced. It is not necessary for the Board to be able to establish, even approximately, the quantity of opium involved, but it must be in a position to determine the minimum amount which has been introduced into the illicit traffic from legal or illegal production of opium in order to be able to decide what amount should be deducted from the quantity of opium to be produced in the country or territory in question, and from its "total of estimates" for opium. Although it will in many cases be nearly impossible for the Board to establish that minimum with certainty, there have been some situations in the past in which the Board could do so.

10. It is suggested that the Board should normally transmit its findings and request for explanation to the Party concerned by registered air mail with a request for a postal return receipt. Paragraph 2 provides that the Party concerned should submit its explanations to the Board "within one month after" that notification. This means that the Party is required to mail or hand by messenger its explanations to the secretariat of the Board within one month from receipt of that organ's notification .4 The Board may however allow a longer period, but not less than one month, for submission of the explanations. If the explanations are mailed, they should be sent by registered mail and normally by air mail.

11. The Board cannot refuse to consider explanations which were not sent within the time limit mentioned in the preceding paragraph, but have arrived in time for its examination.

12. It may be noted that under article 13, paragraph 3 the Board may request explanations not only from a Party to the amended Single Convention but also from a Government which has not accepted that amended treaty (or the 1972 Protocol) if on the basis of information received under article 19, paragraph 1, subparagraph (f) and article 20, paragraph 1, subparagraphs (a) and (e) it finds that in the territory of that Party or non-Party legal opium production has exceeded the related estimates, or illicit opium production took place. Since the conditions under which the Board, may act under article 21 bis, paragraph 2 are very stringent, it may be assumed that the Board will very often ask for explanations of excessive legal opium production or of illicit opium production under its authority pursuant to article 13, paragraph 3, rather than under article 21 bis.

13.   As regards the right of the Board to ask for explanationss in the case of excessive legal opium production or illegal opium production caused by the failure of a Government to carry out, the provisions of the Single Convention, or in the case of situations of that kind not due to such a failure, its right to propose to the Government involved the opening of consultations, see article 14, paragraph 1, subparagraph (a) of the amended Single Convention and the above comments on the introductory paragraph of article 6 of the 1972 Protocol and paragraph 1, subparagraph (a) of article 14 of the amended Single- Convention. The Board may receive the required explanations in the course of such consultations.

14.   A request for explanations made under article 13, paragraph 3 or under article 14, paragraph 1, subparagraph (a) of the amended Single Convention would not be sufficient for the purposes of article 21 bis, paragraph 2. The Board can make a decision on a deduction pursuant to article 21 bis, paragraph 2 only after having requested explanations under the conditions of that provision.

15. The amount which under paragraph 2 the Board may wholly or partially deduct is the amount of opium diverted from legal production into illicit channels and that of opium illicitly produced and consequently appearing in the illicit traffic. It is not the quantity of legal opium production exceeding the related estimates . 6

16. As has been said above, it is virtually impossible for the Board to determine with certainty the actual amount of opium flowing into the illicit traffic from legal or illegal production, although it may sometimes be able to make a rather accurate estimate. However, what the Board may deduct wholly or partially is not. that estimated amount; but only that portion of it in respect of which the Board finds beyond a reasonable doubt that it went into the illicit traffic. That part may be only a relatively minor portion of the estimated quantity or of the quantity which actually appeared in the illicit traffic. However, there have been in the past, though infrequently, some occasions in which the Board could find that a particular quantity of opium had without any doubt been diverted from legal production into illicit channels or was illegally produced.

17. The Board may refuse to decide to make a deduction, although all conditions required by paragraph 2 for such a measure have occurred. It is suggested that the Board would refuse to take that action whenever this would be incompatible with its obligation under article 9, paragraph 4 of the amended Single Convention to endeavour to ensure the availability of narcotic drugs for medical and scientific purposes. It may therefore be assumed that the Board would decline to make the deduction if it would thereby create a risk of a shortage of opium on the legal market.

18. It is also submitted that the Board would refuse to make the deduction if such a measure would in its opinion not be likely to contribute to an improvement of. the opium situation in the country or territory in question.. The Board would also abstain from making the deduction if it appears probable that new control measures adopted by the Party concerned will lead to such an improvement.7

19. If the Board decides to make a deduction, it is required to deduct the same amount from the opium to be produced and from the total of the estimates . 8

20. The Board determines the year for which the deductions are to be made. That year must be the same for both deductions.

21. To determine the year for which the deduction could be made from "the total of the estimates" does not present any particular technical problems; 9 but the deduction from the opium to be produced in a given year can be accomplished only if the Party concerned is notified of the prescribed deduction an adequate time before it makes the arrangements required by the Single Convention for the organization and control' ° of that production. The Party must therefore be notified of the deduction a sufficiently long time before the opium poppies in question are sown.' 1

22.   The Board may under article 12, paragraph 1 prescribe the date by which the Parties have to furnish their estimates under article 19, paragraph 1, subparagraph (f) of the approximate quantities of opium which they plan to produce, i.e., the figures which they are bound not to exceed.' 2 The Board may fix different dates for different Parties.' 3 That date must be early enough to enable the Board to examine the estimates and, if necessary, to suggest under article 12, paragraph 5 to the Government concerned a reduction of, or increase in, the estimate in time for the Government to be able to make the necessary changes in its production plan and to carry them out; but if the date fixed for furnishing the estimates is too early, some Governments might have to supply them at a time when they would not yet be able to know all the factors which they would have to take into account in planning their opium production.

23. Moreover, under article 20, paragraph 2, subparagraph (a), Parties are bound to furnish to the Board statistical data on their production and seizure of opium (which are very important figures for the purposes of article 21 bis, paragraph 2) only by 30 June following the year to which they relate. The Board would hardly be in a position to make the findings under article 21 bis without that information. Consequently, if the Board were to determine an early date for the furnishing of the opium production estimates in order to be able to examine them early and to enable Governments to make advisable reductions in their planned opium production in the following year, i.e. in the year to which the estimates relate, it would be in a position to suggest reductions under article 12, paragraph 5, but normally would not yet be able to require deductions under article 21 bis, paragraph 2 for that year, because it would not yet have the information on which it could base that decision.

24. It follows that the Board would generally be able to require deductions pursuant to article 21 bis, paragraph 2 only for the third year. following that in which the excessive opium production and diversion from legal production or illegal production took place, or even only for a later year if it has to take into account relevant contractual export commitments of the opium-producing Party in question. So long an interval between the time when, according to the Board's finding, control of opium production was defective in a country or territory and the time at which that country or territory has consequently to reduce production, might sometimes not be very desirable.

25. The question arises whether the Board should consider as the beginning of the time needed by the Government concerned for making the arrangements required to carry out its decision the date on which the Government receives the Board's notification, or the date ninety days after such receipt, i.e., the date on which the Board's decision takes effect. It is submitted that there can be no objection to the Board accepting for that purpose the earlier date in timing its deductions pursuant to article 21 bis, paragraph 2.14

26.   It cannot be excluded that the Party involved, aware of a deduction or of the possibility of a deduction by the Board from its planned opium production, might furnish an excessive estimate for the year in question, particularly if it considered the Board's action or pending action not to be justified. Such an excessive estimate or the furnishing pursuant to article 19, paragraph 3 of supplementary estimates' 1 5 prior to or during the year whose opium production was involved, could make ineffective deductions made by the Board under article 21 bis, paragraph 2.

27.   It may also by recalled in this context that a country's or territory's "total of the estimates" for opium, whether reduced by a deduction pursuant to article 21 bis, paragraph 2 or not, has no bearing on the amount of opium which the country or territory may produce.' 6

28. The Board may at any time rescind its decision to make a deduction under the paragraph under consideration.

29.   It may be concluded that the Board will not frequently find that the stringent conditions for making a deduction pursuant to paragraph 2 exist. Moreover, since such a deduction might have no effect on the amount of opium which a Party could legally produce and would not directly influence its illegal opium production, it may perhaps also be assumed that the Board would find it only rarely advisable to decide to make such a deduction even in cases in which the conditions required for such a measure exist. The procedure of paragraph 2 may however provide the Board with an additional useful mechanism' 17 for engaging in a dialogue with an opium producing Party which has a serious problem of diversion from its legal opium production or of illicit opium production. It must however be admitted that the value of that mechanism is considerably affected by the limitation of the application of paragraph 2 to Parties.18

1 See paras. & and 9 of the comments on the introductory paragraph of article b of the 1972 Protocol and para. 1, subpara. (a) of article 14 of the amended Single Convention.

2 It cannot be excluded that a country controls effectively legal opium production in that part of its territory which is under effective control of its Government, but cannot prevent illegal opium production in a part of its territory over which its authorities cannot exercise full control.

3 1972 Records, vol. II, para. 26 of the summary records of the fifth meeting of Committee I (p. 83) and para. 4 of the summary records of the sixth meeting of that Committee (p. 86).

4 There can be no objection to a Party's submitting its explanation to a member of the United Nations Secretariat stationed in New York and authorized by the Board for that purpose.

5 Or to propose the opening of consultations.

6 As regards the deduction of excessive manufacture or import, see article 21, para. 3.

7 Article 21 bis, para. 5.

8 The deductions could be larger than the amount to be produced or the total or both, and thus reduce that amount or total or both to zero.

9 If that year did not have to be the same as the year for which the deduction would have to be made from the quantity of opium to be produced, the deduction from "the total of the estimates" could be made for the year following that in which the excessive opium production and the significant diversion from legal production or the illegal production took place, i.e., for the year in which the Board becomes aware of those conditions, or for the following year if in the earlier year the Board could not make the required findings in time.

10 Article 23.

11 Document E/CONF.14/12, paras. 24 to 26.

12 Article 19, para. 5 and article 21 bis, para. 1.

13 The Board has fixed as the date for the annual estimates of opium production to be furnished under article 8, para. 3 of the 1953 Protocol, 30 June of the year preceding that to which they refer. That date may sometimes or even often be too late for the purposes of article 21 bis, para. 2; see form B/4 (twelfth edition, November 1974) of the International Narcotics Control Board.

14 The purpose of the delay of 90 days does not seem to be quite clear.

15 Para. 5 of the comments on the introductory paragraph of article 11 of the 1972 Protocol and article 21 bis, para. 1 of the amended Single Convention.

16 Paras. 3, 10 and 11 of the comments on article 19, para. 2, subparas. (a), (b) and (c) of the amended Single Convention and para.5 of the comments on para.2, subpara. (d) of that article.

17 Article 9, para. 5 of the amended Single Convention; see also article 21 bis, para. 3.

18 Para. 6 of the comments on the introductory paragraph of article 11 of the 1972 Protocol and on para. 1 of article 21 bis of the amended Single Convention; see also para. 3 of the present comments.

Paragraph 3

3. After notifying the Party concerned of the decision it has taken under paragraph 2 above with regard to a deduction, the Board shall consult with that Party in order to resolve the situation satisfactorily.

Commentary

1. The purpose of the consultations in which the Board should engage under paragraph 3 is that of resolving "the situation satisfactorily": This means only that the Board should endeavour to induce the Party concerned to take measures which appear to be likely to improve its control of opium production or its arrangements for preventing illicit opium production, as the case may be. If the Board finds that such corrective measures are not within the capacity of the Party concerned, the possibility of international assistance would be an appropriate topic of the consultations. Paragraph 3' appears to apply to a specific situation the general policy which the Board is required to follow under article 9, paragraph 5 of the amended Single Convention.

2.   The application of paragraph 3, like that of paragraph 2, is limited to Parties.' The Board is however not prevented from seeking consultations on a difficult or defective control situation of the kind with which paragraph 2 deals, in countries which have not accepted the amended Single Convention and in respect of which it is not authorized to decide on deductions pursuant to that paragraph.

3. The Board is also not precluded from seeking consultations with a Party on problems mentioned in paragraph 2, prior to taking a decision to make a deduction pursuant to that provision, or even without taking such a decision .2

4. If feasible, the Board should seek the consultations for which paragraph 3 provides early enough in order to be able; if desirable, to rescind    its decision to make a deduction under paragraph 2 at a time when the Party concerned can still take into account that rescission in its arrangements for the organization and control of opium production in the year in question.

1 Para. 6 of the comments on the introductory paragraph of article 11 of the 1972 Protocol and on paragraph 1 of article 21 bis of the amended Single Convention and para. 3 of the comments on article 21 bis, para. 2.

2 Article 9, para. 5 of the amended Single Convention.

Paragraph 4

4.. If the situation is not satisfactorily resolved, the Board may utilize the provisions of article 14 where appropriate.

Commentary

1. The Board is not prevented from utilizing article 14 under the conditions of that provision without first applying article 21 bis, paragraph 2 and without a previous finding that "the situation is not satisfactorily resolved". Paragraph 4 of article 21 bis, like paragraphs 2 and 3 of--that article, applies in any event only to countries which are Parties to the amended Single, Convention and to those of their non-metropolitan territories to which the Single Convention applies according to article 42.

2.   It is submitted that in fact paragraph 4 only refers to what the Board could in any case do if it finds that the conditions for proceeding under article 14 exist.