article 24

Article 24

LIMITATION ON PRODUCTION OF OPIUM FOR INTERNATIONAL TRADE

General comments

1. Four basic provisions of the Single Convention are intended to ensure the limitation of opium production' to medical and scientific needs: (i) article 4, subparagraph (c), establishing this general aim of the treaty; 2 (ii) arti cle 22, providing under certain conditions for the prohibition of the cultivation of the opium poppy in order to prevent diversion of opium into illicit channels; (iii) article 23, requiring that opium-producing countries establish adequate machinery for the control of opium production and that they make the international and wholesale trade in opium a government monopoly, and finally (iv) article 24, which as a general principle obligates Parties not to contribute to overproduction of opium, and more specifically establishes rules by which the number of countries producing opium for exports should be reduced in order to contribute to the achievement of this aim. Only countries which in the recent past before the adoption of the Single Convention have exported opium which they produced, or which obtain the authorization of the Economic and Social Council to engage in such export, are free to export opium which they produce. Other countries may, however, annually export a maximum of five tons of opium of their own production, provided they comply with the procedure provided in article 24.3 The provision of article 6, paragraph 2, subparagraph (a) of the 1953 Protocol, limiting the international trade in opium to that produced in expressly named countries, 4 was not taken over by the Single Convention.

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

2 See, however, article 49.

3 Para. 2, subpara. (a) and para. 4, subpara. (a), clause (ii).

4 Le. Bulgaria, Greece, India, Iran, Turkey, Union of Soviet Socialist Republics and Yugoslavia.

Paragraph l, subparagraph (a)

1. (a) If any Party intends to initiate the production of opium or to increase existing production, it shall take account of the prevailing world need for opium in accordance with the estimates thereof published by the Board so that the production of opium by such Party does not result in over-production of opium in the world.

Commentary

1. A Party which permits the cultivation of the poppy for the production of opium can carry out its treaty obligations relating thereto only if it deter-
mines in advance the size of the opium crop which it desires to harvest and establishes the extent of land which should be cultivated with the poppy for this purpose. 1 In making these calculations, it must take account of the prevailing legitimate world need for opium if part of the crop is intended for export, and of its own legitimate domestic requirements; in making the plans for the initiation of opium production or its expansion, it is moreover expressly required by subparagraph (a) to ensure that its new or increased production does not result in overproduction of opium in the world. A Party may therefore not authorize the commencement of opium production, or its expansion, if such action can be expected to have such a result; furthermore, planning opium production even at the level existing in preceding years would be incompatible with the spirit of the Single Convention if experience has proven that a crop of that size cannot be disposed of for the purposes authorized by the treaty. The Government's plan should in such a case provide for measures
to bring about an appropriate reduction of the opium harvest. This appears to follow from the general obligation of Parties to limit exclusively to medical and scientific purposes 2 the production of opium, 3 and to take such legislative and administrative measures as may be necessary to co-operate with other States in the execution of that treaty obligation, as well as of other provisions of the Single Convention. 4

2. A Party would not, however, be prevented by article 24, paragraph 1, subparagraph (a) alone from initiating or increasing opium production to the extent that such action is needed for its own requirements. 5

3. In determining whether its action would result in overproduction, the Party concerned must take as a basis the estimates of the world need for opium published by the International Narcotics Control Board. The Board publishes s such estimates in accordance with the figures that it receives from Governments 7 or that it establishes itself for countries or territories in respect of which the Governments concerned fail to furnish the required data. 9 It publishes at the time of this writing estimates of opium requirements of each country or territory and of the world as a whole, as well as estimates of the requirements of other drugs, 9 in an annual document which is supplemented by four quarterly addenda each year. 10

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

2 See however article 49, para. 1.

3 Article 4, para. (c).

4 Article 4, introductory part and para. (b).

5 Article 24, para. 5, subpara. (a).

6 Article 12, para. 6; see also article 15, para. 1.

7 Article 19, para. 1.

8 Article 12, para. 3.

9 Article 1, para. 1, subpara. (j).

10 See Estimated World Requirements of Narcotic Drugs and Estimates of World Production of Opium in 1971; document E/INCB/10, United Nations publication, Sales No. 71.XI.1, and addenda.

Paragraph 1, subparagraph (b)

(b) A Party shall not permit the production of opium or increase the existing production thereof if in its opinion such production or increased production in its territory may result in illicit traffic in opium.

Commentary

1. This provision should be read in connexion with article 22, which inter alia requires a Party to prohibit the cultivation of the opium poppy for any purpose, and not only for the production of opium, if the prevailing condi tions in its country or territory render such prohibition "the most suitable measure" in its opinion for protecting the public health and welfare, and for preventing the diversion of opium into the illicit traffic. 1

2. Under the conditions of article 24, paragraph 1, subparagraph (b), a Party is not required to prohibit the cultivation of the opium poppy, but only not to permit the production of opium (i.e. the separation of opium from the poppy) 3 or an increase in such production. It could continue to permit the cultivation of the plant for its seeds.

3. The illicit traffic in opium must be significant if the risk thereof is
to call for the measures of prohibition provided in subparagraph (b). The possibility of diversion of very minor quantities of opium would not require
a Party to apply this subparagraph. If the probability of insignificant illicit traffic were sufficient to obligate the Government concerned to take the measures provided for in this subparagraph, no opium production or increase in opium production by individual farmers could be permitted, since experience has shown that opium production by private cultivators is always accompanied by some diversion, however minor this may be and no matter how effectively the national control authorities may operate.

4. Whether the risk of illicit traffic calling for the application of sub paragraph (b) exists is left to the determination of the Party concerned. A Party is required not to permit opium production or its increase only if this may in its opinion result in illicit traffic in opium; but the real opinion of the Party, and not what it might allege to be its opinion, is what is relevant. Subparagraph (b), like all other provisions of the Single Convention, must be carried out in good faith. Here again, the determination of the existence of a risk of illicit traffic is left to the judgement of the Party involved, but not to its arbitrary discretion. 3

5. The term "territory" as used in this subparagraph means "geographic area", and is not employed in the sense of article 1, paragraph 1, subparagraph (y) or article 42.

6. It appears to follow from article 24, paragraph 5, subparagraph (a) that article 24, paragraph 1, subparagraph (b) does not apply to production of opium exclusively for domestic requirements. Article 22, however, governs cultivation of the poppy for any purpose, including production of opium for domestic needs. 1

1 See above, comments on article 22.

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

3 See above, comments on article 2, para. 5 and on article 22.

Paragraph 2, subparagraph (a)

2. (a) Subject to paragraph 1, where a Party which as of 1 January 1961 was not producing opium for export desires to export opium which it produces, in amounts not exceeding five tons annually, it shall notify the Board, furnishing with such notification information regarding:
(i) The controls in force as required by this Convention respecting the opium to be produced and exported; and
(ii) The name of the country or countries to which it expects to export such opium;
and the Board may either approve such notification or may recommend to the Party that it not engage in the production of opium for export.

Commentary

1. It will be noted that the description of a Party as mentioned in subparagraph (a) differs from that of a Party as referred to in subparagraph (b). The former provision refers to "a Party which as of 1 January 1961 was not producing opium for export", while the latter refers to "a Party other than a Party referred to in paragraph 3" (of article 24). The only countries which produced opium for export as of 1 January 1961 seem to have been India, North Viet-Nam, Turkey, the Union of Soviet Socialist Republics and Yugoslavia, 1 while the countries described in paragraph 3, i.e. those which during ten years immediately prior to 1 January 1961 exported opium which they produced, 2 comprise Afghanistan, Bulgaria, Burma, India, Iran, North VietNam, Pakistan, Turkey, the Union of Soviet Socialist Republics and Yugoslavia. 3 These different definitions of the Parties to which subparagraphs (a) and (b) respectively apply must be read in connexion with paragraph 3, which authorizes the Parties that it describes to export opium of their own production without following the procedures of paragraph 2. Subparagraph (a)-like subparagraph (b)-therefore does not apply to the Parties mentioned in paragraph 3.

2. Subparagraph (a) appears to exclude from its scope Parties which, although during ten years prior to 1 January 1961 they did not export opium of their own production, nevertheless harvested this drug for export as of that date. This exclusion would, however, be without any practical importance, since all Parties which produced opium for export as of that day also exported opium of their own harvest in the preceding ten years. 4

3. Paragraph 2, subparagraph (a) thus applies in fact only to those Parties which during ten years prior to 1 January 1961 did not export opium which they produced-as does its subparagraph (b). Both subparagraphs, however, do not apply to non-Parties, nor to opium produced in those nonmetropolitan territories of Parties to which the Single Convention does not apply. 5

4. The question arises whether the subparagraph under consideration imposes upon the Parties to which it applies a legal obligation not to export opium of their own harvest, even in quantities not exceeding five tons annually, without the notification to the Board for which the subparagraph provides, or whether failure of a Party to make such a notification only obligates the other Parties not to import opium produced in the territory of such a Party under paragraph 4, subparagraph (a), clause (ii). In the latter case the Party which has neglected to make the notification would be in a position to export its opium to a non-Party. While the wording of paragraph 4 imposes only on importing Parties an obligation not to engage in the international transactions concerned, the text of paragraph 3 and paragraph 5, subparagraph (b) justifies the conclusion that exporting Parties are also bound to abide by the prohibitions of article 24, s as accords with the object and purpose of this article.

5. In view of article 2, paragraph 3, the subparagraph under consideration, like the other restrictions imposed by article 24 on the international trade in opium, applies not only to opium as base drug, but also to preparations of opium, including medicinal opium, but not to other drugs made from opium, e.g. morphine or codeine. The application of article 24 to opium preparations and medicinal opium may, however, cause considerable difficulties in practice.

6. The notification under paragraph 2, subparagraph (a), need not be repeated for each year in which a Party desires to export up to five tons of opium which it produces. Once made, it enables the Parties to import continuously such opium pursuant to paragraph 4, subparagraph (a), clause (ii). s

7. The "controls in force" on which the notifying Party must furnish information to the Board are in any event those required by the provision of article 23 and article 31, paragraphs 4-15. This information has to be given to the Board even if it duplicates information already sent to the SecretaryGeneral under article 18, and in particular under paragraph 1, subparagraphs (a) and (b) of that article.

8. When considering whether to approve the notification or to recommend to the notifying Party not to engage in the production of opium for export, the Board should take into account not only whether the Party has enacted satisfactory laws and regulations for the control of opium production and of the domestic and international trade in opium as required by the Single Convention, but also, inter alia, whether the Party under its particular conditions would be able to exercise effective control, and whether there is any potential need for the additional opium, especially in the country or countries which are indicated as destination of the new exports. The Board will especially have to keep in mind that the application of article 24, paragraph 2, subparagraph (a) is "subject" to the provisions of paragraph 1 of that article, which are intended to prevent new or increased opium production from resulting in overproduction of opium in the world or in illicit traffic in opium. s

9. A Party may not in any event initiate the production of opium even for the limited export allowed by paragraph 2, subparagraph (a), or increase its production for this purpose, if this action would be incompatible with the provisions of paragraph 1.

10. In view of the fact that the Party making a notification under subparagraph (a) must furnish information on "the controls in force", it must be concluded that the Board may in no case give its approval before the required laws and regulations have entered into force, and before the administrative machinery established pursuant to article 23 has actually been set up and is capable of operation. 10

11. The Board's disapproval of the Party's notification and its recommendation to the Party not to engage in the production of opium for export do not create any legal obligation for that Party or for other Parties. 11 Whatever the Board's decision the Party's notification has the effect of admitting annually five tons of opium produced in its territory to the international trade authorized under article 24. 12

12. It may finally be mentioned that the opinion was expressed in the discussion at the Plenipotentiary Conference. of subparagraph (a), that in view of the expenses of the required controls, it was not very likely that a Party would wish to enter the world market of opium with such limited quantities as would be authorized under this subparagraph. 12

1 Reports of the Permanent Central Board E/OB/17, table I, pp. 12-13 and table IX1, pp. 44-45, and E/OB/18, table I, pp. 12-13 and table IX1, pp. 44-45; and information furnished by the Secretariat of the International Narcotics Control Board.

2 See below comments on paragraph 3.

3 Information furnished by the Secretariat of the International Narcotics Control Board; see also the statistical data published in the Reports of the Permanent Central Board, E/OB/8-E/OB/17; see also Records, vol. II, p. 162.

4 See the above enumeration of countries and foot-note 3. Governments may, however, for the purposes of article 24, resort to other means of evidence than the statistical data received by the former Permanent Central Board and now in the possession of the International Narcotics Control Board.

5 Articles 42 and 46; see on the other hand article 24, para. 4, subpara. (b).

6 See also article 6; para. 2, subpara. (a) of the 1953 Protocol.

7 See below, comments on para. 4; as regards the calculation of the amount of opium in preparations, see form C/S (4th edition, November 1969) of the Board, instruction 4 and form A/S (5th edition, November 1969), instruction 4.

8 Records, vol. 11, p. 162.

9 See above, comments on para. 1, subpara. (a) and subpara. (b) respectively.

10 See however below, subpara. (b). clause (ii).

11 Para. 4, subpara. (a), clause (ii).

12 Records, vol. IT, pp. 161-163.

Paragraph 2, subparagraph (b)

(b) Where a Party other than a Party referred to in paragraph 3 desires to produce opium for export in amounts exceeding five tons annually, it shall notify the Council, furnishing with such notification relevant information including:
(i) The estimated amounts to be produced for export;
(ii) The controls existing or proposed respecting the opium to be produced;
(iii) The name of the country or countries to which it expects to export such opium; and the Council shall either approve the notification or may recommend to the Party that it not engage in the production of opium for export.

Commentary

1. The Parties referred to in paragraph 31 are those whose opium harvest is automatically admitted to the international trade in opium authorized under article 24. Any other Party may, under paragraph 2, subpara graph (a), 2 unilaterally enter the world market with a maximum annual amount of five tons of its own opium production. If it desires to do so, however, with a larger quantity, it must obtain the approval of the Council in accordance with the procedure of paragraph 2, subparagraph (b).

2. Such a Party must notify to the Council its desire by a communication sent to the Secretary-General of the United Nations, furnishing such information as may be relevant to the Council's decision in the light of the provisions of the Convention governing opium production and trade, and in particular of that treaty's aim to limit the world's supplies of opium to those needed for medical and scientific purposes. 3 The subparagraph under consideration indicates in its clauses (i)-(iii) several items which the Party must in any event include in that information.

3. The Party's estimate 4 of the amount of opium which it intends to produce for export and the names of the countries to which it expects to sell the drug s represent important factors for the Council's consideration; but these data do not legally obligate the Party after it has obtained the Council's approval of its notification. Under the provisions of the Single Convention governing all opium-producing Parties, either it may be entitled to produce more, or it may be bound to produce less; it may also export to other countries than those named in the notification.

4. The Party's information on controls should cover not only those respecting the opium to be produced, 6 but also those which would govern the export of the drug, 7 and in any event all those required by the provisions of articles 23 and 31, paragraphs 4-15. The controls need not already exist at the time of the Party's notification. They may be established after the Council's approval. 3 They must, however, in any event be already in operation when the activities to be governed by them commence.

5. The information which the Party must supply under subparagraph (b) has to be given even if it duplicates information already furnished to the Secretary-General in accordance with article 18.

6. Whether the controls existing or proposed by the Party are satisfactory under the terms of the Single Convention, whether there is any need for the additional opium particularly in the countries indicated by the Party as poten tial importers, and especially whether the Party would in fact be able to exercise effective controls to prevent the diversion of significant quantities of opium into the illicit traffic, will be relevant questions in the Council's consideration of the Party's notification. It can be assumed that the Council will not give its approval if the Party's production for export would result in overproduction of opium in the world, or if conditions exist in its territory which would require measures of prohibition under the terms of article 22 or of article 24, paragraph 1, subparagraph (b).

7. The Plenipotentiary Conference rejected a motion that the Council should be required to consult the Board before taking a decision on the Party's notification under the subparagraph under consideration. It seems, however, that the Council may find it necessary to undertake such a consultation in order to obtain all the technical data that it requires for its decision. 9

8. The use of the word "recommend" causes some difficulties of inter pretation. The question may be raised whether the notifying Party is bound by the Council's recommendation, or whether the recommendation has only the legal effect of preventing other Parties from importing the opium concerned under paragraph 4, subparagraph (a), clause (iii). A Party which does not wish to accept the Council's recommendation would in the latter case be in a position to export its opium to non-Parties. While the use of the word "recommend" may suggest that the Council's decision is not binding upon the notifying Party, the text of paragraph 3 must lead to another conclusion. This paragraph authorizes the Parties described therein to export opium which they produce "notwithstanding the provisions of subparagraphs (a) and (b) of paragraph 2". It appears to follow a contrario that other Parties are entitled to do so only in accordance with these provisions, and that consequently the Council's recommendation under paragraph 2, subparagraph (b) not to engage in the production of opium for export is legally binding upon the notifying Party involved. This interpretation seems also to be justified because it accords with the object and purpose of the Single Convention, which in regard to opium are those of regulating and limiting to medical and scientific purposes the production of and trade in opium in the whole world, and not only in the territory of Parties. 10

9. The Council's approval of a Party's production of opium for export does not and cannot cover opium produced in a non-metropolitan territory to which the Single Convention does not apply under article 42.11

10. It seems to follow from article 2, paragraph 3 that article 24, paragraph 2, subparagraph (b) also applies to preparations of opium. 12 This may, however, create considerable difficulties in practice. 13 The subparagraph under consideration does not, however, apply to opium alkaloids.

11. The Council's approval of a Party's production of opium for export does not relieve that Party from adopting measures of prohibition which may be required under the conditions of article 22 of or article 24, paragraph 1, subparagraph (b).

1 For a list of the countries which, if they are Parties, enjoy this privilege, see above, comments on paragraph 2, subpara. (a); see also below, comments on para. 3.

2 And para. 4, subpara. (a), clause (ii); see also comments on para. 2, subpara. (a).

3 See however art. 49.

4 Clause (i).

5 Clause (iii).

6 Clause (ii).

7 See above, para. 2, subpara. (a), clause (i).

8 See, however, the provision cited in the preceding foot-note.

9 Records, vol. Il, p. 167.

10 See also above, comments on para. 2, subpara. (a); this interpretation is also supported by the provision of para. 5, subpara. (b).

11 Or art. 46.

12 Including medicinal opium.

13 See above, comments on para. 2, subpara. (a) and below comments on para. 4. As regards the computation of the quantity of opium contained in the preparations, see instruction 4 of the Board's forms C/S (4th edition) and A/S (5th edition).

Paragraph 3

3. Notwithstanding the provisions of subparagraphs (a) and (b) of paragraph 2, a Party that during ten years immediately prior to I January 1961 exported opium which such country produced may continue to export opium which it produces.

Commentary

1. The question arises whether, in order to qualify under paragraph 3, a Party must have been an exporter of opium of its own harvest throughout the whole period defined in that provision, or whether it is sufficient that it exported such opium in any one of the ten years involved. Does the word "during" have in this context the meaning of "throughout", or that of "at some point in"? r According to the records of the International Narcotics Control Board, only India and Turkey would in the former case be authorized by paragraph 3 to export opium which they produced, 2 while in the latter case Afghanistan, Bulgaria, Burma, India, Iran, North Vietnam, Pakistan, Turkey, Union of Soviet Socialist Republics and Yugoslavia would have that right. 3 It appears from the Records of the Plenipotentiary Conference that the second of these two interpretations was the view held by the authors of the Single Convention. 4 This interpretation is also confirmed by the practice of the Parties following the coming into force of the Convention. 5

2. The second question which may require clarification is whether the export of any amount, however small, in the ten years in question would be sufficient for the purpose of paragraph 3. It is submitted that in the light of the Records of the Plenipotentiary Conference a and of the subsequent practice of Parties, 5 this question must be answered in the affirmative.

3. Only the export of opium which the Party itself produced is relevant under the terms of the provision under consideration. The re-export by an opium-producing Party of opium which it did not harvest, but imported itself, cannot be taken into account for the purposes of this paragraph. It may be very difficult to establish the relevant facts in the case of opium-producing countries which during the ten years concerned not only exported but also imported opium, particularly if the exports were small. Even the Government of the exporting country may in such circumstances find it difficult to determine whether it exported opium of its own harvest or re-exported foreign opium.

4. Paragraph 3 not only establishes the right of the Parties referred to therein, but also formulates corresponding obligations of importing and re-exporting Parties. 6

5. In view of article 2, paragraph 3, article 24, paragraph 3 applies also to opium preparations, including medicinal opium, but not to opium alkaloids. c This may cause considerable difficulties in practice. c Parties may, for the purpose of applying paragraph 3, rely on other evidence than the statistical data received by the former Permanent Central Board and now in the possession of the International Narcotics Control Board.

6. A non-metropolitan territory which after becoming independent becomes a Party may also qualify under paragraph 3 if opium which was produced in its area was exported in the ten years in question.

1 The Concise Oxford Dictionary of Current English, fifth edition, Oxford, at the Clarendon Press, 1964, p. 381.

2 Documents E/OB 12, 14 and 17.

3 See above, comments on art. 24, para. 2, subpara. (a).

4 Records, vol. II, pp. 162-163.

5 E.g. document E/INCB/11, United Nations publication, Sales No. 70.XI.7, table I, pp. 14-15; see also table VIII, 1, foot-note a, p. 57.

6 See above, comments on para. 2, subparas. (a) and (b) and below, comments on para. 4.

7 This may perhaps be necessary if, e.g. a State becomes a Party which for other than technical reasons was not in communication with the former Permanent Central Board in the period concerned.

Paragraph 4

4. (a) A Party shall not import opium from any country or territory except opium produced in the territory of:
(i) A Party referred to in paragraph 3;
(ii) A Party that has notified the Board as provided in subparagraph (a) of paragraph 2; or
(iii) A Party that has received the approval of the Council as provided in subparagraph (b) of paragraph 2.
(b) Notwithstanding subparagraph (a) of this paragraph, a Party may import opium produced by any country which produced and exported opium during the ten years prior to 1 January 1961 if such country has established and maintains a national control organ or agency for the purposes set out in article 23 and has in force an effective means of ensuring that the opium it produces is not diverted into the illicit traffic.

Commentary

1. The provisions of this paragraph must be read in connexion with paragraph 5, subparagraph (b). Parties may therefore import not only the opium produced in the territory of Parties mentioned in subparagraph (a),
clauses (i) to (iii), and of non-Parties covered by the terms of subparagraph (b) of paragraph 4, but also seized opium wherever produced, if obtained from a Party. If paragraph 4 were interpreted so as to exclude the importation of such seized opium by Parties, it would be incompatible with paragraph 5, subparagraph (b) because it would prevent Parties from exporting seized opium to other Parties.

2. It has already been mentioned above 1 that the restriction of the international trade in opium to that produced in the territory of these Parties or non-Parties not only obligates importing Parties, but also exporting Parties. Apart from the admission of seized opium to international trade under the conditions of paragraph 5, subparagraph (b), the question whether a Party may import opium from, or export opium to, a Party or a non-Party does not depend on who the importer or exporter is, but on where the opium was produced, that is, whether it was produced in the territory of those Parties or of those non-Parties mentioned in paragraph 4. Any Party may therefore re-export opium to any Party or non-Party, and import opium re-exported by any Party or non-Party, as long as the opium involved was produced in such a territory.

3. The view that exporting Parties have obligations corresponding to those of importing Parties under paragraph 4 is also corroborated by the provision of paragraph 5, subparagraph (b), since if exporting Parties were not bound to limit their exports to opium privileged under the terms of paragraph 4, there would be no need for an express provision authorizing them to export seized opium no matter where produced. 2

4. As regards opium produced in the territory of a Party referred to in paragraph 4, subparagraph (a), clause (ii), the amount of it admitted to international trade each year must not exceed five tons. It appears that the implementation of this restriction by importing Parties may cause some difficulties in practice. The importing Parties will normally have to rely on the Parties mentioned in clause (ii) to be faithful to their treaty obligation. Excessive exports of the latter would be revealed in the statistical information received by the Board, which could take any of the actions provided for in the Single Convention in cases of non-compliance with its provisions. 3

5. More generally, it would be very difficult, and very often impossible, for the importing Parties to determine whether the opium they buy was really produced in any of the countries mentioned in paragraph 4. It cannot be assumed that the authors of the Single Convention intended to require them to determine by scientific tests 4 the geographic origin of each shipment of opium which they intend to import. This would render the international opium trade very cumbersome indeed. Moreover, the existing methods may in a general way be rather reliable in the determination of the region in which the opium was harvested, but not necessarily in that of the particular country in which it was produced. Two neighbouring countries may produce the same kind of opium, one of them entitled to export it under article 24, and the other one not. It is, however, suggested that it might be advisable that Parties, when buying opium from a non-Party, request from the competent authorities of the exporting country an assurance that the opium in question was produced in the territory of one of the Parties or non-Parties mentioned in paragraph 4, and an indication of where the opium was produced.

6. In view of article 2, paragraph 3, it must be assumed that paragraph 4 applies also to opium preparations including medicinal opium, but not to opium alkaloids. Parties may therefore not import opium preparations made from opium which under the terms of article 24 they would not be authorized to obtain. 5 They may export only such opium preparations as are made from opium which would be admitted to international trade under this article. They are, however, authorized to export opium alkaloids made from opium which they would not be allowed to export. The practical difficulties of determining the geographic origin of opium contained in opium preparations are obviously even greater than those of determining the origin of raw opium. Here again, it may be suggested that Parties must rely on the loyal execution of the Convention by the other Parties, or on assurances of non-Parties.

7. Subparagraph (b) of paragraph 4 describes the non-Parties which it authorizes as sources of opium in terms which seem to be somewhat different from those of paragraph 3 dealing with Parties. Under subparagraph (b), the countries concerned must have produced and exported opium during the ten years prior to 1 January 1961, while under paragraph 3 the Parties must during the same period have exported opium which they produced. If the text of subparagraph (b) is interpreted literally, a Party could import opium harvested in the territory of a non-Party which, during the period in question, produced opium of its own and exported any opium, whether of its own or foreign production; while it would be authorized to import opium produced by a Party only if that Party exported opium of its own harvest during that period. Such an interpretation would, however, place non-Parties in a better legal position than Parties. It is submitted that this was undoubtedly not the purpose of the authors of the Single Convention. To qualify under the provisions of subparagraph (b), it is not required that the country concerned should have produced and exported opium during the whole time in question. A single export of opium of its own production, however small, would suffice. What has been said on this point in the comments on paragraph 3, applies also to subparagraph (b) of paragraph 4.

8. Opium produced in the territory of a non-Party referred to in subparagraph (b) may moreover be imported by Parties only if the non-Party concerned has the control machinery which the Single Convention requires opium-producing Parties to maintain, and if the non-Party has in force effective means of preventing diversion of a significant part of its opium crop into the illicit traffic. Insignificant diversions which may occur would not be relevant in this context. As has been stated above, they are unavoidable in the event of opium production by private farmers. 6 In any event, opium should not be imported if it was produced in countries not Parties to the Single Convention which produce opium under such conditions as would require Parties to prohibit opium production, or even the cultivation of the opium poppy, for any purpose under article 24, paragraph 1, subparagraph (b) or article 22 respectively.

9. It may be noted that the introductory paragraph of subparagraph (a) of paragraph 4 uses the term "territory" in two different meanings, first in the sense of article 1, paragraph 1, subparagraph (y), and then in the sense of geographic area. 7 The first use of this word seems, however, to be in this context superabundant since, like article 23, s article 24 requires the application of its provisions to the total area of a Party or non-Party covered by its conditions. Article 24 does not provide for a separate territorial application (i.e. for separate territorial entities of the same State) for the purpose of its implementation. This is also corroborated by the text of subparagraph (b), which does not add the words "or territory" to the word "country", which it uses twice. Shipments of opium between "territories" as defined in article 1, paragraph 1, subparagraph (y), of the same State are consequently not imports or exports for the purposes of article 24, paragraphs 2 to 4, although they are such transactions for the purpose of article 31, paragraphs 4-15, and are subject to the import certificate and export authorization system regulated by those paragraphs. A non-metropolitan territory of a Party to which the Single Convention does not apply under article 42 or 46 is, however, to be considered to be a non-Party for the application of article 24, and in particular of its paragraphs 4 and 5. 9

1 See above, comments on article 24, para. 2, subparas. (a) and (b) and para. 3.

2 See also article 6, para. 2, subpara. (a) of the 1953 Protocol.

3 See article 13, paras. 2 and 3, article 14 and article 15, para. 1 and Comments on these provisions.

4 See Council resolutions 159 C (VII) 11 and 246 F (IX).

5 See also above, comments on para. 2, subparas (a) and (b) and on para. 3.

6 See above, comments on article 24, para. 1, subpara. (b), and on article 22.

7 See also above, comments on article 1, para. 1, subpara. (y).

8 See above, comments on article 23, para. 1.

9 See also comments on article 23, para. 1.

Paragraph 5

5. The provisions of this article do not prevent a Party:
(a) From producing opium sufficient for its own requirements;
or
(b) From exporting opium seized in the illicit traffic, to another Party in accordance with the requirements of this Convention.

Commentary

1. It appears to follow from paragraph 5, subparagraph (a) that paragraph 1 does not apply to a Party's production of opium for its own requirements. A Party may therefore commence, continue and increase its opium production to the extent needed for its own requirements, even if it may thereby contribute to overproduction of opium in the world; but in so doing it is not relieved from the obligation of all Parties to limit the production of opium to medical and scientific requirements and to co-operate with other States to this end pursuant to article 4, subparagraphs (b) and (c). The exemption of a Party's opium production for its own requirements from the provision of article 24, paragraph 1, subparagraph (a) therefore does not mean
that the Party concerned, in making its production plans, need not give due weight to the problem of overproduction of opium. How this freedom to act can be reconciled with this obligation to co-operate will depend on the differing circumstances of each case. 1

2. Subparagraph (a) also seems to free a Party, in regard to opium production for its own requirements, from the obligation of paragraph 1, subparagraph (b) not to permit such production or an increase in production if, in its opinion, this may result in illicit traffic in opium; z but this seems to be of little, if any, practical importance, since paragraph 5, subparagraph (a) does not affect the application of article 22, which under the conditions stated therein would require a Party to prohibit the cultivation of the poppy not only for opium production for either domestic or foreign needs, but also for any purpose whatever (including that of obtaining the seeds of the plant for culinary purposes). 3

3. The Party's own requirements include the needs of opium and opium preparations (including medicinal opium) for domestic consumption, and also the quantities of opium required for domestic manufacture of alkaloids, whether for domestic use or export. They comprise the needs of the whole area of the Party, whether undivided or divided into "territories", 4 for the application of the system of import certificates and export authorizations provided for in article 31. They do not, however, cover the needs of a nonmetropolitan territory of a Party to which the Single Convention does not apply under article 42 or article 46.

4. Under subparagraph (b), the limitation of the international trade in opium to opium produced in the territory of a Party or of a non-Party referred to in paragraph 4, does not apply to the international trade between Parties in opium seized from the illicit traffic. Seized opium may be exported
only to Parties and imported only from Parties. It may not be exported to or imported from a non-metropolitan territory of a Party to which the Single Convention does not apply. The obligation of the importing Parties may be inferred from article 4, paragraph (b), requiring them to co-operate in the execution of the provisions of the Single Convention. But seized opium is not excluded from the privileged position which paragraph 4 confers on opium produced in the territory of any of the Parties or non-Parties referred to in that paragraph. It may therefore be assumed that Parties are authorized to import seized opium from a non-Party if it can be made certain that it was legally produced in such a territory. It will, however, generally be very difficult indeed, and often impossible, to establish this certainty except in some cases of opium seized by the authorities of the country which produced it.

5. Apart from its regulation of the trade in seized opium just discussed, the Single Convention does not restrict the free use of seized drugs, including opium, for medical or scientific purposes. 5 It did not take over the provision of article 7 of the 1953 Protocol or of article 18 of the 1931 Convention.

6. The words in subparagraph (b) "in accordance with the requirements of this Convention" only state what would have been the position in any case. The import and export of seized opium is of course governed by the provisions of the Single Convention concerning the international trade in drugs. Parties must therefore apply the import certificate and export authorization system of article 31, paragraphs 4-15 to the import and export of seized opium; they must not knowingly permit the export of seized opium except in accordance with the laws and regulations and within the limits of the total of the estimates of the importing country or territory pursuant to article 31, paragraph 1; and they must generally 5 limit such imports and exports exclusively to medical and scientific purposes according to article 4, paragraph (c). They must not authorize the import of seized opium if their supply limit under article 21, paragraphs 1 to 3 would thereby be exceeded, etc. 6
7. From article 2, paragraph 3, it follows that subparagraph (b) of article 24 paragraph 5, also applies to seized opium preparations (including seized medicinal opium), and to opium preparations (including medicinal opium) made from seized raw opium.