Article 13
AMENDMENT TO ARTICLE 35 OF THE SINGLE CONVENTION
Article 35 of the Single Convention shall be amended to read as follows
"Having due regard to their constitutional, legal and administrative systems, the Parties shall:
"(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination;
"(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;
"(c) Cooperate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;
"(d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner;
"(e) Ensure that where legal papers are transmitted internaonally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel; "
(f) Furnish, if they deem it appropriate, to the Board and the Commission through, the Secretary-General, in addition to informa tion required by article 18, information relating to illicit drug activity within their borders, Including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and
"(g) Furnish the information referred to in the preceding paragraph as far as possible in such manner and by such dates as' the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the Information and in endeavouring to reduce the illicit drug activity within the borders of that Party."
Commentary
1. The 1972 Protocol amends article 35 by adding two paragraphs: paragraphs (f) and (g).
2. Parties are required under article 18, paragraph 1, introductory subparagraph and subparagraph (c) and paragraph 2 to furnish to the Secretary-General for the Commission information on the matters to which paragraph (f) refers. That mandatory information is that defined by the Commission in accordance with the special provision of article 18, paragraph 1, subparagraph (c), and that required by that organ under its more general powers pursuant to paragraph 1, introductory subparagraph and subparagraph (a) and paragraph 2 of that article.
3. The information which under paragraph (f) Parties may find it appropriate to supply to the Commission and the Board would be additional to the mandatory information required by article 18, as that paragraph expressly states. That additional information would consist of those details regarding the illicit traffic in,1 or illicit use of, narcotic drugs which is not mandatory under article 18, but which the Government concerned considers useful for the work of the Commission or the Board, or both. As intended by its authors and expressly indicated by its text, paragraph (f) does not provide for the furnishing of information which would duplicate the information furnished under article 18. 2
4. It is also held that Governments would, under the unamended Single Convention, not be precluded from supplying'the additional information to which paragraph (f) refers. Nevertheless the addition of that provision to article 35 is not without effect on the working of the Single Convention. 3 Under the unamended treaty, the Board would, outside the procedure pursuant to article 14, receive such information on the illicit traffic and the illicit use of narcotic drugs as the Commission may wish to call to its attention under article 8, paragraph (b) , 4 or as Governments would have to furnish under article 20, paragraph 1, subparagraph (e) or in explanation of their estimates or statistical data pursuant to article 12, paragraph 4 or article 13, paragraph 3. Information on the illicit traffic or on the illicit use of narcotic drugs supplied by Governments but not under those provisions would not be "information submitted by Governments to the Board under the provisions of this Convention" as defined in article 14, paragraph 1, subparagraph (a) and therefore under the unamended as well as under the amended Single Convention could not be used by the Board for the purposes of that subparagraph. Information furnished under the new paragraph (f) would be such information, and consequently could be the basis for the Board's initiation of a procedure pursuant to article 14. Paragraph (f) thus increases the Board's power to proceed under that article.
5. Moreover, paragraph (f) emphasizes the Board's authority to exercise its functions not only in respect of the control of all phases of the legal trade in narcotic drugs (including production and manufacture) but also in respect of problems of the illicit traffic in and the illicit use of such drugs.
6. Paragraph (f) refers to conditions within the borders of the reporting Party; but references to the foreign origin of the drugs found in the illicit traffic and to the lack of control or defective control in a foreign country, causing or rendering more difficult a domestic problem, may be included in the Party's report.
7. There is no provision in the unamended Single Convention or in the 1972 Protocol which would prevent non-Parties to the Single Convention or Parties to that treaty which did not accept the 1972 Protocol from furnishing the additional information to which paragraph (f) refers; but such information would not be "information submitted by Governments to the Board under the provisions of this Convention", i.e. of the Single Convention in the sense of article 14; paragraph 1, subparagraph (a).
8. A report under paragraph (f) cannot be submitted only to the Commission or only to the Board, but if made, it must be made to both. It should be addressed in at least two copies to the Secretary-General, who would in each case forward the required copies to the Commission and to the Board
9. The spokesman of the sponsors of paragraphs (f) and (g) at the 1972 Conference emphasized the discretionary character of paragraph (f).6 However, the text of paragraph (f) in connexion with the introductory paragraph of article 35 seems to leave it to the judgement of each Party only to decide whether furnishing the additional information involved would be "appropriate". Its opinion in this matter cannot be challenged by another Party; but paragraph (f) like all the other provisions of the Single Convention, has to be implemented in good faith. If a Party believed in reality that it would be appropriate to furnish the additional information in question; it would have an obligation to do SO )although it may claim to have a different opinion; but this would of course be a highly improbable situation. In practice, supplying additional information under paragraph (f) would be voluntary.
10. The words in paragraph (f) "information relating to illicit drug activity ... including information on illicit cultivation, production, manufacture and use of, and illicit trafficking in, drugs" could have been more briefly expressed by the words "information relating to illicit traffic and illicit use of drugs",$ since the definition of illicit traffic in article 1, paragraph 1, subparagraph (1) reads: "Illicit traffic means cultivation or trafficking in,drugs contrary to the provisions of this Convention"; 9 the phrase "illicit drug activity" in paragraph (g) is also used to cover "illicit traffic" and illicit use of drugs.
11. The Commission may solicit information under paragraph (f). It may wish to do so when it considers such information only useful but not "necessary" for the performance of its functonal10 This power of the Commission can certainly be assumed in view of its right under the Charter as a functional Commission of the Council to invite Governments to furnish information, and particularly also in view of its authority under article 18, paragraph 1, introductory subparagraph, to require Parties to the Single Convention to supply information necessary for the performance of its functions.
12. It is admitted that it is not equally certain that the Board may invite Parties to furnish information under paragraph (f). It is however suggested that it would be the better opinion that the Board has that right. This view seems to be in accord with the authority conferred by paragraph (g) upon the Board to indicate the manner in which and the dates by which Parties should furnish information pursuant to paragraph (f).
13. The right of the Board to determine the "manner" includes the right of the Board to request the use of a form which it may wish to prepare, and to indicate the mode of transmission, e.g., that reports which are not delivered to the Secretary-General by a member of the delegation of the Party concerned or by messenger should be forwarded by air mail. The Board may, e.g., also request that the communication containing the report should be typewritten.
14. The Board may determine the date by which such periodical reports as may be solicited under paragraph (f) should be furnished. It may determine a particular date by which a special report which it may solicit should be supplied, provided of course that the view indicated in paragraph 12 of the present comments is accepted that the Board is authorized to solicit information under paragraph (f).
15. While, as indicated in paragraph 9 of the present comments, supply of information under paragraph (f) is practically voluntary, Parties which decide to furnish such information are bound to do so "as far as possible" in the manner and by the date determined by the Board.
16. The second sentence of paragraph (g) does not grant the Board new powers which it does not already have under the unamended Single Convention. There is no provision in that unamended text which would preclude the Board from offering a Government, at its request, advice in furnishing information to international organs and in endeavouring to combat the illicit traffic within its borders, but this explicit recognition of the Board's right to give such advice if requested again stresses the Board's function not only in relation to the control of the legal trade in narcotic drugs, but also in regard to problems of the illicit traffic. , 1
17. Paragraphs (f) and (g) appears to be provisions introduced by the 1972 Protocol in order to promote a "continuing dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims of this Convention." 1 z That promotion appears to be one of the principal aims of the 1972 Protocol.
18. The last word of the French text in paragraph (g) should correctly be "celle-ci "and not "ceux-ci "
1 Article 1,para.1, subpara. (1).
2 For a different view, see 1972 Records, vol. II, paras.18, 18,37 and 40 of the summary records of the twentieth meeting of Committee I (pp. 157 and 159). For information requested by the Commission under article 18 at the time of this writing, see document E/NR.FORM/Rev.3, chaps. VII and VIII.
3 For a different opinion, see 1972 Records, vol. II, paras. 13 and 54 of the summary records of the twenty-first meeting of Committee I (pp. 162 and 165).
4 As regards information supplied by other organs of organizations belonging to the United Nations family, see 1961 Commentary , para. 10 of the comments on article 14, para. 1, subpara. (a) (pp. 180-181).
5 1972 Records, vol. II, paras, 46 and 47 of the summary records of the twenty-first meeting of Committee I (p. 165).
61972 Records, vol. II, para. I of the summary records of the twenty-first meeting of Committee I (p. 161); see also para. 23 of the summary records of the twentieth meeting of that Committee (p.15&).
7 This follows from the text of the introductory paragraph: "shall ... furnish. . ."
8 Article 1, para. 1, subpara. (1).
9 The term "trafficking" not only includes all forms of trade and distribution, but also manufacture and production; 1961 Commentary, para. 1 of the comments on article 1, para. 1, subpara. (1) (p. 11).
10 Article 18, para. 1, introductory subpara.
11 See also para. 5 of the present comments.
12 Article 9, para. 5 of the amended Single Convention; see also article 14, para. 1, subparas. (a) and (c), article 14 bis and article 21 bis, paras. 2 and 3 of that amended text; see also para. 29 of the above comments on article 21 bis; paras. 2 and 5.