Article 16
NEW ARTICLE 38 BIS
The following new article shall be inserted after article 38 of the Single Convention:
"Article 38 his "Agreements on Regional Centres
"If a Party considers it desirable as part of its action against the illicit traffic in drugs, having due regard to its constitutional, legal and administrative systems, and, if it so desires, with the technical advice of the Board or the specialized agencies, it shall promote the establishment, in consultation with other interested Parties in the region, of agreements which contemplate the development of regional centres for. scientific research and education to combat the problems resulting from the illicit use of and traf fic in drugs. "
Commentary
1. The new article 38 bis does not impose any legal obligations on Parties, nor does it provide for any actions which Governments, the Board or the specialized agencies could not take even if the article had not been included in the Single Convention. The. 1972 Conference appears to have preferred the inclusion of the non-mandatory article 38 bis in the treaty to the adoption of a resolution recommending the actions with which that article deals because, it seems to have held that an article in the Convention would carry greater weight even if it was not mandatory .l
2. Article 38 bis does not directly recommend the promotion of the establishment of agreements contemplating the development of the regional centres which it defines, but only provides that Parties should engage in such a. promotion if they consider it desirable as part of their action against the illicit traffic. Nevertheless, it is submitted that it was the opinion of the 1972 Conference that such centres were indeed desirable in some regions. 2
3. The promotion with which article 38 bis deals will be undertaken only, first, if the Party so desires, secondly, with due regard to its constitutional, legal and administrative system, and thirdly, again only if it so desires, with the technical advice of the Board or the specialized agencies.
4. It will be noted that the formula does not read "subject to its constitutional, legal and administrative systems" but only "with due regard" to such systems. The same formula is used as in the introductory paragraph of article 35. It differs from similar limiting phrases at the beginning of paragraphs 1 and 2 of article 36 which commence with the words "subject to". The words "due regard to" are employed instead of the words "subject to" because it is hardly imaginable that the promotion which article 38 bis describes in very general and perhaps somewhat vague terms could be incompatible with the constitutional, legal or administrative systems of any State .3
5. The specific reference to "the technical advice of the Board or the specialized agencies" of course does not preclude a Party from seeking the technical advice of such other intergovernmental organs as the Commission or the Secretariat of the United Nations, or indeed of any intergovernmental or non-governmental organization or any individual.
6. The phrase "other interested Parties in the region" covers all Parties in the region which can make a useful contribution to the work of the centre, and not only those which might benefit from such work. It does not exclude Parties whose direct participation in the centre may for any reason whatsoever not be contemplated. The special reference to "other interested Parties" of course does not exclude consultation with interested States which are not Parties to the amended Single Convention, as may frequently be advisable.
7. The very general and perhaps somewhat vague expression 4 "shall promotes the establishment . . . of agreements which contemplate the development of regional centres" indicates that the authors of article 38 bis considered that the immediate setting up of such a centre might sometimes not be possible or even advisable, although it might be a desirable aim of institutionalization of regional co-operation.
8. The phrase "problems resulting from the illicit use of and traffic6 in drugs" covers all aspects of the problem of drug abuse no matter what discipline may be involved (sociology, economics, medicine (including pharmacology and psychiatry), psychology, chemistry, law, government administration (including police), etc.).
9. The functions of the regional centres to which the article under consideration refers are specifically those of scientific research and education. There can however be no objection to charging such centres also with such operational activities as the development of regional policies for the campaign against drug abuse, the exchange of police information, or more generally the co-ordination of the illicit traffic work of the enforcement services of the States of the region and forming a centre of international information on problems of drug abuse.
10. The term "scientific research" not only includes research in the natural sciences, but also that in social sciences, including applied sciences such as educational or police methods. The importance which the authors of the 1972 Protocol attached to education is also shown by the text of the new subparagraph (b) of paragraph 1 of article 36 and by the provisions of the new article 38.
1 1972 Records, vol. II, para.121 of the twelfth plenary meeting (pp. 56-57); see also article 2, para. 5, article 20, para. 3, article 30, para. 2, subpara. (b), clause (ii), paras. 3 and 4, article 35, para. (a), article 36, para. 2, subpara. (b), article 38, para. 2 and article 39, of the unamended Single Convention, and article 35, para. (f); article 36, para.2, subpara. (b), clause (ii) and article 38 bis of the amended Single Convention.
2 The usefulness of one regional centre, Le. of the Anti-Narcotics Bureau of the League of Arab States was mentioned at the 1972 Conference. The functions of that Bureau do not seem to be those of the definition of the centres in article 38 bis: they appear in some respects to be larger, 1972 Records, vol. II, para. 46 of the summary records of the twentieth meeting of Committee I (p. 160).
3 That applies also to the provisions of article 35; see also 1961 Commentary, comments on the introductory paragraph of article 35 (pp. 416-417).
4 See also para.
4 of the present comments.
5 í,e-encourage, help forward or support.
6 The phrase "illicit traffic" covers illicit cultivation of the opium poppy for the production of opium, of the coca bush or the cannabis plant for the production of cannabis; the illicit "production" or manufacture of, wholesale or retail trade in, or distribution of narcotic drugs; article 1, para. 1, subpara. (1) and 1961 Commentary, comments on that provision (p. 11).