Article 23

NATIONAL OPIUM AGENCIES

General comments

1. Governments of countries or territories which do not produce 1 opium, coca leaves, cannabis and cannabis resin, but import them, can establish rather exactly the quantities of these drugs which enter their legal drug economy (manufacturing and distribution processes). From import on they can control the movements of the known quantities of these drugs, whether in their original form or transformed into other substances, in particular by requiring enterprises in the drug trade to keep detailed records of each acquisition, transformation and disposal, and by being able to compare the relevant entries in the books of both parties to each transaction in narcotic drugs.

2. Countries or territories which produce opium, coca leaves, cannabis or cannabis resin are in a different position. In so far as they permit private farmers to cultivate the plants from which these drugs are obtained, they cannot establish with sufficient exactitude the quantities harvested by individual producers. If they allowed the sale of the crops to private traders, they would not be in a position to ascertain with reasonable exactitude the amounts which enter their controlled trade. The effectiveness of their control regime would thus be considerably weakened. In fact, experience has shown that permitting licensed private traders to purchase the crops results in diversion of large quantities of drugs into illicit channels. Those who, under the auspices of the League of Nations and of the United Nations, planned the control regime for the production of opium, coca leaves, cannabis and cannabis resin, as well as the authors of the 1953 Protocol 2 and of the Single Convention, 3 therefore came to the conclusion that the acquisition of the crops and the wholesale and international trade in these agricultural products cannot be entrusted to private traders, but must be undertaken by governmental authorities in the producing countries. Article 23, article 26, paragraph I and article 28, paragraph 1 therefore require a government monopoly of the wholesale and international trade in the agricultural product in question in the country which authorizes its production.

3. For corresponding provisions of earlier treaties, see article 3 of the 1953 Protocol; see also article 1 of the 1912 Convention and article 2 of the 1925 Convention.

1 Article 1, para. 1, subpara. (t).

2 In regard to opium (article 3).

3 In regard to opium, coca leaves, cannabis and cannabis resin.

Paragraph 1

1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article.

Commentary

1. The question arises whether a Party which permits the production of opium only in one or several of its territories,) but not in all of them, must apply the provisions of article 23 regarding the wholesale and international trade and the maintenance of stocks even in those territories in which the cultivation of the poppy for opium is prohibited. It is of course true that, generally speaking, Parties may apply the provisions of the Single Convention separately to their different territories; 1 this follows either from the text or the nature of the provisions in question. Article 23, however, nowhere uses the term "territory", nor does its text in any way imply that it may be applied only to one or some of the territories of the same Party. Moreover, if such separate implementation were permitted, the provision expressly allowing Parties to entrust more than one government agency with the execution of the functions of article 23 would appear to be superfluous. The possibility of more than one national opium agency would be the natural consequence of the right to apply article 23 separately to different territories of the same State. A Party could always set up as "territory", that is, as "separate entity for the application of the system of import certificates and export authorizations", any of its political subdivisions for which its constitution might require a separate "national opium agency". It is therefore submitted that a Party which permits the cultivation of the poppy for the production of opium in any of its territories must apply in all of its territories the provisions of article 23 regarding the wholesale and international trade and the maintenance of stocks. Only a part of the national area which, as "non-metropolitan territory" within the meaning of article 42, is excluded under the terms of that article from the obligation of a Party to apply the Single Convention, would also be exempted from the requirement to apply article 23; but such a territory would have to be treated as if it were a foreign country for the purposes of article 23, as indeed for those of other provisions of the Single Convention regulating the narcotics trade.

2. A Party which, in accordance with a reservation made pursuant to article 49, temporarily permits the production of opium for quasi-medical use or smoking must apply the provisions of article 23 to poppies cultivated for such purposes and to opium.

3. A number of countries permit the cultivation of the poppy for seeds used for industrial purposes (the extraction of oil) or culinary purposes, while prohibiting the production of opium by law or by administrative means (refusal to issue the required licence). A Party whose laws authorize the production of opium on licence need not establish a national opium agency and apply article 23 as long as it does not issue such a licence. 2 A country which permits the cultivation of the poppy for the production of opium need not apply article 23 to the cultivation of this plant when it is authorized exclusively for the seeds and for the straw as a possible by-product, but only to the poppy grown for opium and to the trade in, and stocks of, that drug, however obtained (whether by domestic production, importation or seizure from the illicit traffic). It is, however, suggested that countries authorizing opium production should also apply article 23 to the cultivation of the plant when it is permitted only for the seeds, particularly in those areas in which opium production takes place, because the purpose of article 23 might otherwise be frustrated. It would even be advisable not to permit the cultivation of the poppy only for the seeds in areas designated for the production of opium. It has been submitted elsewhere that, under the conditions of article 22, not only the cultivation of the poppy for opium but also that authorized exclusively for seeds and straw must be prohibited. 3

4. As regards the need for a single government agency, see below, comments on article 23, paragraph 3.

1 Article 1, para. 1, subpara. (y).

2 Records, vol. II, p. 158..

3 See above, comments on article 22.

Paragraph 2 and subparagraph (a)

2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium:
(a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted.

Commentary

1. The provisions of paragraph 2 must be applied to opium however obtained, whether by domestic production, importation or seizure from the illicit traffic. 1

2. The "areas" to be designated by the Agency are to be understood in the geographic sense, as the French text, which uses the word regions, and the Spanish text, which employs the term zonas, more clearly show. It seems advisable that the areas in which the production of opium is permitted should be definite administrative units. It is also suggested that they should to the greatest extent possible be located in the same part of the country, and be contiguous in order to facilitate more effective control. A location distant from the borders of the country may generally also be in the international interest. It would be useful if areas which do not have land registers or real estate cadastres are not chosen for opium production. If a Government designates an area for opium production which does not have such registers, it should as soon as possible undertake a cadastral survey to establish them.

3. It would also be advantageous to concentrate in each area concerned
the plots of land on which opium production is authorized. 2 They should be clearly identified in the licences issued to cultivators, either by reference to the relevant entries in the cadastre or by a detailed description, so as to leave no doubt as regards the location, extent and exact demarcation of each of them.

4. It has been recommended 3 that the Agency should take the measures described below to carry out its functions in respect of the control of the cultivation of the poppy for the production of opium. 3

5. The Agency should first estimate the size of the opium crop which it wishes to obtain in accordance with the Single Convention, which requires the limitation of the production of opium to the quantities required for medical and scientific purposes. 4 It should then, in the light of past statistics on the average yield per hectare, 5 determine the extent of land which is required to obtain this crop, and allocate portions of this extent to each of the various "areas" (i.e. administrative units) which it has designated for the production of opium. The total extent of all the plots of land which the Agency designates for the production of opium in all the licences issued to farmers in an area should be equal to the extent of land allocated to that area.

6. The plots sown with the poppy should be inspected from time to
time by officials of the Agency. The first such inspection should take place when the plants have reached a stage of growth permitting effective control. The inspectors should, when possible, estimate the amount of the prospective opium crop, and should make a note of this estimate and of other results of their inspections both on the licence of the cultivator concerned and in a file kept by the Agency. Such a file should be maintained for each farmer licensed to produce opium.

7. The Agency should also carry out inspections in areas in which the cultivation of the poppy for the production of opium is not permitted in order to verify that there is no such production. 6

1 See above, comments on para. 1.

2 Document E/NT/9 (November 1955), United Nations publication, Sales No. 1956.X1.1, para. 25.

3 Ibid., para. 35. The recommendation was made for the work of the Agency to be set up pursuant to art. 3 of the 1953 Protocol; it is, however, suggested that it is equally valid for the Agency governed by art. 23 of the Single Convention, since these treaty provisions are substantially alike.

4 Art. 4, para. (c) and art. 24; for production for other legitimate purposes see art. 49, para. 1.

5 Or in acres or any other unit of measuring land.

6 See para. 34 of the document referred to in foot-note 2.

Paragraph 2, subparagraphs (b) and (c)

(b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.
(c) Each licence shall specify the extent of the land on which the cultivation is permitted.

Commentary

1. Licences to grow the poppy for the production of opium may be issued to individual farmers or to corporate bodies. An application for
a licence may be made orally or in writing. The applicant should exactly indicate the plot or plots on which he intends to grow the poppy for opium. Persons convicted of an offence against laws or regulations governing narcotics control should not be granted a licence, nor should licensed cultivators be permitted to employ them in the cultivation of the poppy and in the harvesting of the opium. 1

2. Each licence should contain, inter alia, the particulars of the identity of the licensee and an exact indication of the plots on which opium production is authorized. The latter indication should be given either by reference to entries in the cadastre or by a detailed description of the situation, size and demarcation of the plots. z The licence should also indicate the conditions of the delivery of the crop to the Agency (including in particular, the final date) and should give its duration. It should be valid only for a single crop period. An official of the Agency should, on the occasion of his inspections, enter on the document the area actually sown and an estimate of the prospective crop. s The amount of the opium harvested should also be noted.

3. If a licence is granted to a corporate body (a corporation or co-operative, including a collective farm), the document should name an individual responsible for the observance of the laws and regulations governing opium production, and for compliance with the conditions imposed by the licence. Such a person should under the statute or by-laws of the corporate body concerned have real control over the cultivation of the poppy and the collection of the opium harvest.

4. Licences should not be transferable. Their issue and revocation should be at the discretion of the authorities. 3 It appears to be advisable that cultivators who, according to their opium deliveries to the Agency, have obtained a high yield per unit of measurement of land in earlier years should in the issue of licences be given preference over those who had a low yield.

5. It may be mentioned here that article 34, paragraph (a) also applies to cultivators of the poppy for the production of opium. Natural persons engaged in such cultivation should therefore have "adequate qualifications for the effective and faithful execution" of those rules of the narcotics regime which concern them. State enterprises or corporate bodies engaged in the cultivation should have a managerial or supervisory personnel which has such qualifications. 4

6. The authorization of a state farm to cultivate the poppy for opium would be a "licence" within the meaning of the subparagraphs under consideration.

1 See also article 34, para. (a).

2 See above, comments on article 23, para. 2, introductory part and subpara. (a).

3 Document E/NT/9 (November 1955), United Nations publication, Sales No. 1956.X1.1, paras. 26, 27 and 29. See also para. 35, subparas. (b) and (c).

4 See below, comments on article 34, para. (a) which also applies to the cultivators of the cannabis plant for the production of cannabis and cannabis resin, and to the cultivators of the coca bush.

Paragraph 2, subparagraph (d)

(d) All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.

Commentary

1. The time during which the opium crop is in the hands of the individual farmer is the most critical period from the view point of narcotics control. It is during this period that diversion of legally harvested opium into illicit channels usually takes place. It is often quite impossible to estimate with exactitude the amount of opium actually harvested by the farmers, who are often very poor and are attracted by the relatively high prices offered by illicit traffickers. For this reason it is important that the time between the harvest and the delivery of the crop should be as short as possible. The Convention therefore requires that the Agency should take "physical possession" of the opium crop "as soon as possible". 1 It prescribes for this purpose a maximum period of four months after the end of the harvest. 2 The Convention cannot fix a definite day of the year, since the harvesting periods are not the same in different opium producing countries. National laws or regulations should, however, set a final date after which possession of harvested opium by a private cultivator is in any event illegal and the opium subject to confiscation.

2. It may be pointed out that the time of four months constitutes the maximum period within which the Agency must collect the total opium crop. It should not be concluded from this provision that it is advisable to allow cultivators to keep their crops for so long a time. Farmers should be required to deliver the opium as soon as the Agency requests it, that is, is in a position to take physical possession of the crops of the cultivator concerned. Opium retained after such a request should be considered illegal, and should be confiscated whatever the final date stated in the licence.

3. The Convention not only requires that the Agency should take physical possession of the opium, but also that it should "purchase" it as soon as possible, but not later than four months after the end of the harvest. Prompt payment, a good price and other favourable conditions of purchase may be incentives to producers to deliver speedily their total opium crop, particularly in countries in which legal opium production is still profitable (that is, where its profitability does not depend on the diversion of a part of the harvest into illicit channels).

4. Opium production under conditions of share-cropping appears to be incompatible with the requirements of the Single Convention. The cultivator, being bound to hand over the total harvest to the Agency, must of course not deliver part of its crop to his landlord. Opium must also not be used to pay
part of the wages of farm hands. a Adequate penal sanctions may also be instrumental in securing the prompt delivery of the total opium crop. 4

1 As does article 3, para. 5 of the 1953 Protocol.

2 The 1953 Protocol did not provide for such a maximum; ibid.

3 Document E/NT/9 (November 1955), United Nations publication, Sales No. 56.XL1, paras. 30 and 31.

4 Article 36, para. 1.

Paragraph 2, subparagraph (e)

(e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations.

Commentary

1. Paragraph (e) requires the maintenance of a Government monopoly for the import and export of, and wholesale trade in, opium as well as for the maintenance of opium stocks.'

2. From this obligatory Government monopoly medicinal opium 2
and opium preparations may be excluded. The last sentence of the subpara graph under consideration contains an express provision to this effect. Medicinal opium and opium preparations would otherwise be subject to the same measures of control as opium. 3 Opium-producing countries may thus authorize private manufacture of, and private international and domestic wholesale trade in, medicinal opium and opium preparations. 4 The opium other than medicinal opium needed for such manufacture must however be procured from the national opium agency.

3. Stocks of opium held by manufacturers of opium alkaloids, medicinal opium and opium preparations are excluded from the obligatory monopoly by the terms of the Convention. This opium must, however, be obtained from the national Agency.

4. "Special stocks" s and likewise retail "stocks" (i.e. opium held in stock by retail pharmacists or other authorized retail distributors and by institutions or qualified persons in the duly authorized exercise of therapeutic or scientific functions) are both excluded from the scope of the obligatory Government monopoly. Such special stocks and retail stocks are not "stocks" within the meaning of the Single Convention.'

5. The retail trade in, and other retail distribution of, opium (including medicinal opium and opium preparations), need not be in the hands of the monopoly. Retail traders or distributors must, however, acquire their opium from the Agency. They may of course obtain medicinal opium and opium preparations from domestic private sources and from foreign sources.

6. It is submitted that the provision of article 30, paragraph 2, subparagraph (a) does not apply to stocks of opium held by national opium agencies. This provision requires Parties to prevent the accumulation in the possession of traders, distributors, State enterprises or persons duly authorized to perform therapeutic or scientific functions, of quantities of drugs and poppy straw in excess of those required for the normal conduct of business. National opium agencies do not appear to be traders, distributors or state enterprises within the meaning of this provision. Moreover, it is one of the essential purposes of article 23 to ensure that national opium agencies purchase the whole opium crop, no matter how big the harvest and whether or not they can dispose of purchased opium in the reasonably near future, that is, under conditions which may be termed "normal conduct of business".

7. The provisions of article 5 of the 1953 Protocol, requiring that the opium stocks of Parties should not exceed certain limits, were not taken over by the Single Convention.
 

1 Article 1, para. 1, subpara. (x).

2 Article 1, para. 1, subpara. (o); medicinal opium is in fact a kind of opium preparation (article 1, para. 1, subpara. (s)); see also form C/S of the Board (4th edition, November 1969), instruction 4 and form A/S (5th edition, November 1969), instruction 4.

3 Article 2, para. 3.

4 Under article 3 of the 1953 Protocol opium producing countries may however not permit the private manufacture of or wholesale trade in medicinal opium; see document E/NT/9 (November 1955), United Nations publication, Sales No. 56.X1.1, para. 38.

5 Article 1, para. 1, subpara. (w).

Paragraph 3

3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it.

Commentary

The implementation of the provisions of article 23 requires planning on a national scale in order to limit production of opium to the quantities needed for domestic and foreign medical and scientific purposes' and to prevent diversion of a part of the authorized opium harvest into illicit channels. In order to facilitate such planning and a co-ordinated management of the various tasks imposed upon an opium-producing country by article 23, paragraph 3 thereof requires the maintenance of a single government agency for the discharge of these functions if the constitution of the Party concerned permits it. If the establishment of more than one agency is needed on constitutional grounds, administrative arrangements should be made to ensure the required co-ordination of their work. 2

1 Article 4, para. (c).

2 Document E/NT/9 (November 1955), United Nations publication, Sales No. 56.X1.1, para. 24.