Article 31

SPECIAL PROVISIONS RELATING TO INTERNATIONAL TRADE

General comments

1. As mentioned elsewhere, 1 the international trade in drugs is controlled not only by the special provisions of article 31, but also by those of article 30 which can be applied to it. The provisions of article 30, para graph 1, subparagraph (b), clause (ii), paragraph 2, subparagraph (a) and paragraphs 3, 4 and 5, although not repeated in article 31, thus govern also the international trade; see therefore the above comments on those provisions.

2. As regards the relationship between article 30, paragraph 1, subparagraph (a) and article 31, paragraph 3, subparagraph (a), see below, comments on that subparagraph of article 31.

3. The provisions of paragraphs 4 to 16 reproduce in substance, and often in very similar language, the system of import certificates and export authorizations introduced by chapter V of the 1925 Convention.

1 See above, general comments on article 30, see also Records, vol. 1, p. 72 and vol. II, p. 135.

Paragraph 1

1. The Parties shall not knowingly permit the export of drugs to any country or territory except:
(a) In accordance with the laws and regulations of that country or territory; and
(b) Within the limits of the total of the estimates for that country or territory, as defined in paragraph 2 of article 19, with the addition of the amounts intended to be re-exported.

Commentary

1. The paragraph under consideration establishes two legal obligations of Parties: (1) not knowingly to permit the export of drugs except in accordance with the laws and regulations of the importing country or territory (sub paragraph (a)); and (2) not knowingly to permit exports of drugs which would exceed the import limits of the importing country or territory as defined in subparagraph (b).

2. As regards the first of these obligations, the implementation of subparagraph (a) will generally not cause any practical difficulties. The exporting Parties will normally be in a position to know the relevant laws and regulations of the importing countries and territories, since they should receive them from the other Parties to the Single Convention through the intermediary of the Secretary-General of the United Nations pursuant to article 18, paragraph 1, subparagraph (b). 1 But there is of course an interval between the time at which the laws and regulations are promulgated and the moment at which they reach the authorities of the exporting Parties; moreover, the Government of the importing country or territory concerned may not have forwarded the legislative texts involved to the Secretary-General as provided in the subparagraph just mentioned.

3. The task of exporting Parties under article 31, paragraph 1, subparagraph (a) is generally made very easy by the rules of the import certificate and export authorization system. 2 Under this system, the export of drugs and their preparations (other than preparations in Schedule 111) may not be authorized unless the person or the establishment applying for such an authorization produces an import certificate, issued by the authorities of the importing country or territory concerned and confirming that the importation of the drugs in question has been approved. An exporting Party is of course in principle entitled to assume that the import certificate of the competent authorities was granted in full compliance with their own laws and regulations. Such a Party, when relying on an import certificate, will hardly ever be held to have acted contrary to the requirement of subparagraph (a). Hypothetically, however, there might occasionally be some exceptions. The conditions surrounding a particular case of application for an export authorization may be such as to make it quite obvious that the import certificate, although issued by the competent authorities, was nevertheless granted in clear violation of the laws and regulations of the importing country or territory involved. Such a case may arise, for example, if the shipment would be sent to a notorious illicit trafficker.

4. Two special cases may, however, be mentioned in which difficulties may arise. The first may arise from the facts that the Single Convention does not provide for import and export authorizations of international shipments of preparations in Schedule 111; s but that some Governments require such authorizations for all or some of these preparations. 4 The national laws prescribing them must of course be respected by the exporting Parties under article 31, paragraph 1, subparagraph (a) if they are aware of them. The Parties must not "knowingly" act contrary to the provision of this subparagraph. It is therefore suggested that the Governments of the importing countries or territories concerned should specially call the attention of those Parties from which they normally import preparations in Schedule III to their requirement of import authorizations in order to ensure international respect for their legislation. It will be noted that article 31, paragraph 1, subparagraph (a) applies to preparations in Schedule 111, since neither article 2, paragraph 4, nor article 31, paragraph 16 exempts them from this provision.

5. Another case which may cause difficulties in implementing subparagraph (a) is that in which Governments require that international shipments of drugs should be accompanied not only by a copy of the export authorization-as provided by article 31, paragraph 6-but also by a copy of the import certificate or authorization. It is suggested that such Governments indicate their special requirement in the import certificates or authorizations that they issue.

6. The international narcotics regime preceding the Single Convention did not contain a provision corresponding to that of article 31, paragraph 1, subparagraph (a). It is, however, evident that the authorization of exports of drugs and their preparations in conscious violation of the legislation of the importing country or territory would in any case hardly be compatible with the principles which should govern friendly international relations, whatever may be its formal legal position.

7. As regards the obligation of subparagraph (b), the Board requires that in computing "the total of the estimates" referred to in article 31, paragraph 1, subparagraph (b), not only the elements mentioned in article 19, paragraph 2, 5 which are added into this total, but also the deductions referred to in paragraph 3 of article 21, must be taken into account. 6

8. There is also the deduction required under article 21, paragraph 2, that is, the deduction of the quantity that has been seized and has been released for licit use in the year to which the estimates refer, and of the amount taken in that year from "special stocks" for the requirements of the civilian population; but the statistical data on seized drugs released for licit use, and on the drugs withdrawn from "special stocks" for normal civilian use, are required to be furnished to the Board by Governments only by 30 June of the year following that to which the estimates relate. 7 The deductions required by article 21, paragraph 2 are therefore normally not known to the exporting Parties, and therefore cannot be taken into account by them in computing the import limits in accordance with article 31, paragraph 1, subparagraph (b).

9. Article 21, paragraph 3 also requires the deduction from the total of the estimates of the quantities which the countries or territories concerned have acquired by manufacture or import, or both, in excess of their supply limits, as defined in article 21, paragraphs 1 and 2, in the year preceding that to which this total relates; but an exporting Party can make the required deduction for the purposes of the subparagraph under consideration only if it knows its amount, that is, only after it has learned the figure in question from the publications of the Board. This organ publishes s in its four quarterly addenda to its annual document entitled "Estimated World Requirements of Narcotic Drugs and Estimates of World Production of Opium" 6 the amounts to be subtracted and the "total of the estimates" as reduced by the deductions; it needs for this computation most of the statistical data s to be furnished by Parties pursuant to article 20 concerning the year preceding that to which the totals of the estimates relate. In view of the dates by which these figures are due to be furnished to the Board under the terms of the Single Convention, 10 and of the tardiness of a number of Governments in furnishing this information, the Board is able in respect of many countries and territories to make and publish the required deductions only late in the year for which the reduced totals are to be calculated, and sometimes even only after the end of that year. The exporting Parties are therefore very often not in a position to take these deductions into consideration for the purpose of implementing article 31, paragraph 1, subparagraph (b).

10. Considerable difficulties may also arise from applying the provision of this subparagraph which requires that "the amounts intended to be reexported" should be added. It will very often be extremely difficult for an exporting Party to know what amounts the importing country or territory intends to re-export. It would therefore be very helpful in this connexion if the authorities of the importing country or territory indicated in the import certificates that they issue the quantities that they intend to re-export.

11. While subparagraph (b) expressly permits the addition only of those amounts which are intended for re-export, it is suggested that it would be compatible with the spirit and the aims of the Single Convention to allow the addition not only of those quantities, but more generally of all amounts which are to be exported. This consideration is based on those provisions of the Single Convention which for the purpose of calculating the supply limits of a country or territory provide for the addition of all amounts actually exported, and not only of those which were re-exported. 11 It may moreover be mentioned that when considering article 31, paragraph 1, subparagraph (b), the Plenipotentiary Conference had in mind article 12, paragraph 2 of the 1931 Convention. 12 This provision of the Convention provides for the addition of all amounts exported, and not only of those re-exported, in the calculation of the import limits of each country and territory. 13

12. The value of article 31, paragraph 1, subparagraph (b) as a means for ensuring the limitation of the narcotics supplies of an importing country or territory to the quantities allowed under the terms of the Single Convention 14 is also affected by the fact that an exporting Party will generally not know the quantities which other exporting Parties may have shipped to the importing country or territory in the year to which the total of the estimates and more generally the limits provided in this subparagraph relate. The relevant data on the international trade are published by the Board only after the end of that year, and cannot therefore be taken into account in time by exporting Parties for the purposes of the subparagraph under consideration. The Board, however, by resorting to the provisions of article 21, paragraph 4, can take measures by which the export of all countries or territories can be taken into account in ensuring the observance of the import limits of an importing country or territory. See above, comments on that paragraph.

13. The narcotics regime preceding the Single Convention did not impose on exporting Parties an express obligation to respect the import limits of an importing country or territory, except when required to do so by the Per manent Central Board pursuant to article 14, paragraph 2 of the 1931 Convention. 15 Only the importing Parties were bound by an explicit legal obligation to observe their own import limits. 16 The Permanent Central Board, however, expressed the view that it would be in accordance with the spirit of the 1931 Convention if each exporting Party would give heed to the import limits of the importing countries or territories. 17

14. The term "territory" is used as defined in article 1, paragraph 1, subparagraph (y).18 It may be noted that while article 31, paragraph 1, subparagraph (a) applies to exports of preparations in Schedule III, subparagraph (b) does not. 19

15. See also above, comments on article 19, paragraph 2 and on article 21, paragraphs 2 and 3.

1 See also the references to other treaty provisions in foot-note 1 to the comments on that subparagraph.

2 Laid down in article 31, paras. 4-16.

3 Article 31, para. 16; see also article 2, para. 4

4 Article 39.

5 Le., the estimated quantities of drugs to be consumed domestically for medical and scientific purposes, the estimated quantities of drugs to be utilized for the manufacture of other drugs, of preparations in Schedule III, and of substances not covered by the Single Convention, the estimated amounts required for bringing the actual stocks at hand at 31 December of the preceding year to the level to be held as at 31 December of the year to which the estimates relate and the estimated quantities necessary for addition to "special stocks".

6 See e.g., table 1 in Estimated World Requirements of Narcotic Drugs and Estimates of World Production of Opium in 1970, document E/INCB/6, United Nations publication, Sales No. 70.XI.1 and in the four addenda to this document.

7 Article 20, para. 2, subpara. (a) and comments on article 20, para. 4.

8 At the time of this writing; see article 12, para. 6 and article 15, para. 1 and the comments on these provisions.

9 I.e. on manufacture, utilization of drugs for the manufacture of other drugs, preparations in Schedule III and substances not covered by the Single Convention, consumption, import and export, seized drugs released for licit use, stocks and drugs withdrawn from "special stocks" for the requirements of the civilian population.

10 Article 20, para. 2.

11 Article 21, para. 1, subpara. (c) and para. 4, subpara. (a).

12 Records, vol. I, page 34 and vol. II, p. 135.

13 See also article 14, para. 2 of the 1931 Convention.

14 Article 4, para. (c); article 21, paras. 1-3.

15 Article 14, para. 2 of the 1931 Convention corresponds to article 24, para. 4 of the Single Convention.

16 Article 12, para. 2 of the 1931 Convention; as regards the observation of the manufacturing limit, see article 6, para. 1 of that Convention.

17 Commentary on the 1931 Convention, para. 122, p. 164; League of Nations document C.364.M.185.X1, p. 3.

18 See above, comments on that subparagraph.

19 Article 2, para. 4 and article 31, para. 16.

Paragraph 2

2. The Parties shall exercise in free ports and zones the same supervision and control as in other parts of their territories, provided, however, that they may apply more drastic measures.

Commentary

1. This paragraph reproduces the substance of article 14 of the 1925 Convention. The control of shipments of narcotic drugs over borders is generally entrusted to the organs of the customs administration. Only a very limited supervision, if any, is normally exercised over shipments of goods from abroad into free ports and free zones, or from such ports or zones to foreign countries. Such limited control or lack of control would make it possible for illicit traffickers to use free zones or free ports as convenient places of depot of their contraband goods, and to smuggle drugs over uncontrolled
or insufficiently controlled border lines. In fact, the conditions normally existing in free zones and free ports not only require the application of those measures which Governments generally adopt for the control of narcotic drugs, but might even call for more drastic arrangements. It is this possible need for increased watchfulness which caused the authors of the Single Convention 1 to include a specific provision that the Parties "may apply more drastic measures" in free ports and free zones, although Governments could of course do this even without such an express treaty provision and although article 39 generally provides that nothing contained in the Single Convention should preclude a Party from adopting more strict or more severe control measures than those required by that treaty.

2. The term "their territories" as used in the context of paragraph 2 may also mean "the areas under their control". 2

1 Like the authors of the second para. of article 14 of the 1925 Convention.

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

Paragraph 3, subparagraph (a)

3. The Parties shall:
(a) Control under licence the import and export of drugs except where such import or export is carried out by a State enterprise or enterprises.

Commentary

1. It has been stated above that article 30 governs not only domestic trade, but trade in general, and that those of its provisions which can be applied to the international trade apply to that trade. 1 If article 31 did not contain paragraph 3, subparagraph (a), then article 30, paragraph 1, subparagraph (a) would govern international as well as domestic trade. The inclusion in article 31 of a specific provision requiring the licensing of the international trade in drugs except when carried on by a State enterprise or State enterprises must, however, lead to the conclusion that a licence to trade in or distribute drugs, under the terms of the Single Convention as stated in article 30, does not include the right to engage in the international trade. Under the Convention, the only traders in drugs other than State enterprises who are authorized to carry on the international trade in drugs are those who have obtained from their Governments a special licence to that effect. 2 Such a licence need not be a separate document, and may be included in the text of the licence to engage in the trade in drugs. It need not be called "licence" in the municipal legislation concerned, nor be designated by any corresponding term in other languages. It must, however, in any case be a written or printed authorization to carry on the international trade in drugs. 3

2. Moreover, there will be hardly any cases in which an importer does not sell at least a part of his imported drugs on the domestic market, or in which an exporter does not obtain from domestic sources at least a portion of the goods which he needs for his export shipments. International traders will thus generally also be engaged in domestic trade, and unless they are State enterprises, will require an authorization to trade in drugs, including expressly the right to carry on the international trade.

3. A State enterprise does not need a "licence" to engage in the international trade in drugs; but it is submitted that it would be wrong to conclude that under the terms of subparagraph (a) any State enterprise, whatever its nature, is entitled to carry on the business of importing and exporting drugs. Only those State enterprises or divisions of State enterprises would be entitled to do so which are given this task by the national authorities concerned. It is suggested that State enterprises or their divisions should be granted this function only if they are also entitled to engage in the domestic trade in or distribution of drugs. In selecting State enterprises or their divisions for the function of international trade in drugs, the national Government concerned must of course take into account considerations of control similar to those which must guide Governments in issuing to private businesses licences to carry on the international trade in drugs. 4

4. In order to be able to fulfil their obligation to limit to the quantities prescribed by the Single Convention the narcotics supplies which they may obtain by manufacture or import or both, 5 Governments must be in a position to determine the amount of each drug which may be imported in a given year, and if they obtain part or all of their supplies by import, they must allocate to individual authorized importers quotas from the total quantities to be imported. Such allocations may also quite frequently have to be modified during the course of the year in question. It is suggested that it would facilitate this task of the Governments if the number of enterprises engaged in the international trade in drugs was reduced to a minimum, or at least was rather small. The requirement of the subparagraph under consideration that the international trade in drugs should be restricted only to State enterprises or businesses specially licensed to that effect makes it possible for Governments to follow such a policy of numerical limitation. The national authorities should to this end also have a considerable degree of discretion in issuing, refusing, modifying and revoking international trade licences or-as the case may be-assignments of the function of international trade to State enterprises. Such licences or assignments should also specifically indicate the drugs in which the international trade is authorized, since separate supply limits have to be computed for each drug under the terms of the Single Convention. 5

5. Paragraph 3, subparagraph (a) applies to drugs and their preparations other than preparations in Schedule IIl. Paragraph 16 of article 31 exempts preparations in that Schedule from the obligatory application of paragraph 3. s Unfortunately, however, the English version of article 2, paragraph 4, which summarizes the regime to be applied to such preparations, does not exempt them from article 31, paragraph 3, and is therefore on this point inconsistent with paragraph 16 of article 31 of the English text. The French and Spanish texts of article 2, paragraph 4, on the other hand, are in accord with article 31, paragraph 16 in those languages, and exempt these preparations from article 31, paragraph 3. It is submitted that the omission of article 31, paragraph 3 from the English version of article 2, paragraph 4 was made in error, and that the authors of the Single Convention did not wish to subject preparations in Schedule 3 to the provision of article 31, paragraph 3. Article 2 is intended to give a synopsis of the various regimes applicable to different groups of drugs and preparations. 7 Where a difference exists between this synopsis and the articles describing the regime in question, preference must be given to those latter articles. There are also other divergences between article 2 and the regimes defined in other articles. s The suggested preference given to article 31, paragraph 16 is also supported by the fact that the omission from article 2, paragraph 4 occurs only in the English and not in the French and Spanish versions. In fact, article 2 as prepared by the Drafting Committee of the Plenipotentiary Conference left blank the spaces for the numbers of the provisions to which reference was made. 9 The blank spaces were to be filled later in accordance with the decisions of the Conference on provisions to be laid down in other articles.

6. While article 31, paragraph 3, subparagraph (a) thus does not apply to the international trade in preparations listed in Schedule III, article 30, paragraph 1, subparagraph (a) does apply to the trade in such prepara tions. 10 Only State enterprises made responsible by their Governments for the trade in drugs, and private businesses licensed to engage in the trade in drugs, may therefore carry on the international trade in preparations in Schedule 111.

7. The international trade in "preparations for the export of which export authorizations are not required" under the international regime preceding the Single Convention did not under that regime require any licence, even if carried on by a private business and not by a State enterprise. These preparations correspond to those listed in Schedule III of the Single Convention. 11

8. Only imports and exports carried out in the course of "trade", whether carried out by State enterprises or private businesses, are subject to article 31, paragraph 3, subparagraph (a). It is submitted that medical practitioners or scientists who import small quantities of drugs for therapeutic or scientific purposes, or patients who import minor amounts for their own medically prescribed use do not need a licence pursuant to subparagraph (a), and neither do scientists who supply fellow scientists in other countries with drugs needed for research purposes. Such non-commercial imports and exports remain, of course, under the effective control of the import certificate and export authorization system laid down in paragraphs 4-15 of article 31.12

9. Article 30, paragraph 1, subparagraph (b), clause (ii) also applies to the international trade in drugs, but not to that in preparations. 10 Establishments and premises in which the international trade in drugs, carried on by State enterprises or private businesses takes place, therefore require a licence, that is, must be controlled "under licence". 13
 

1 See above, general comments on article 30 and on article 31.

2 The "rule of effectiveness" is one of the considerations which has led to this conclusion; A. McNair, The Law of Treaties, Oxford, Clarendon Press, 1961, pp. 383392.

3 See also above, comments on article 29, para. 1 and on article 30, para. 1, subpara. (a).

4 See above comments on article 29, para. 1 and on article 30, para. 1 subpara. (a).,

5 Article 21, paras. 1-3.

6 The English, French and Spanish texts of paragraph 16 agree on this point.

7 Records, vol. I, pp. 16 and 17.

8 See above, comments on article 2, paras. 6 and 7.

9 See e.g. Conference document E/CONF.34/15, Records, vol. II, p. 279. The same document containing the blanks in the draft of article 2, provides in its draft of article 42, para. 16 (corresponding to article 31, para. 16 of the Single Convention as finally adopted) for the exemption of preparations in Schedule III from the licensing requirement of para. 3, subpara. (a); Records, vol. II, p. 282. See also the draft provisions of Conference document E/CONF.34/21, vol. II, pp. 284 and 288; see also Records, vol. I, p. 188.

10 See above, general comments on article 30 and on article 31.

11 See above, comments on article 2, para. 4 of the Single Convention; see also article 8 in connexion with article 6, second para., subpara. (b) of the 1925 Convention.

12 See also article 30, para. 1, subpara. (c).

13 See above, comments on article 30, para. 1, subpara. (b), clause (ii).

Paragraph 3, subparagraph (b)

(b) Control all persons and enterprises carrying on or engaged in such import or export.

Commentary

1. The subparagraph under consideration describes the control which Governments must exercise over the international trade in drugs in the same general terms as those used in article 30, paragraph 1, subparagraph (b), clause (i) in respect of the trade in drugs in general. Its inclusion in article 31 would thus appear to be superabundant. If it had not been included, the equivalent provision of article 30, subparagraph (b), clause (i) would apply to the domestic as well as to the international trade. 1

2. Preparations in Schedule III are excluded from the application of article 31, paragraph 3, subparagraph (b). 2 It is, however, submitted that this is without practical importance, since article 30, paragraph 1, subpara graph (b), clause (i), which makes the same requirement, must be applied to the international trade in such preparations,' and since that requirement would also apply because international trade would normally involve some domestic trade. 3

3. For the nature of control to be exercised under article 31, paragraph 3, subparagraph (b), see above, comments on article 30, paragraph 1, subparagraph (b), clause (i).

1 See above, general comments on article 30 and article 31.
2 Article 31; para. 16; see also above comments on article 31, para. 3, subpara. (a).

3 See comments on article 31, para. 3, subpara. (a).

Paragraph 4, subparagraph (a)

4. (a) Every Party permitting the import or export of drugs shall require a separate import or export authorization to be obtained for each such import or export whether it consists of one or more drugs.

Subparagraph (d)

(d) The import authorization may allow an importation in more than one consignment.

Commentary

1. It will be noted that each exported consignment requires a separate export authorization, while an import authorization may allow an importation in more than one consignment. An importer may find that his supplier does not have in stock the whole quantities of drugs which his Government has authorized him to import, and that he must consequently acquire the drugs from his supplier in more than one consignment. Since such a situation occurs not infrequently, the Single Convention, like the 1925 Convention 1 provides that an import authorization may permit an importation in more than one consignment.

2. It follows that in some cases the amount allowed by one import authorization is covered by two or more corresponding export authorizations relating to portions of the authorized import; but a Government issuing an export authorization, which must relate to a single consignment, has to know the quantity which should be permitted to be exported in the particular shipment, and that quantity may be smaller than the total amount whose import is permitted if the corresponding import authorization allows import in more than one consignment. For this purpose the import certificate is used; it is the document which inter alia indicates to the Government of the exporting Party the amounts of drugs which it may permit to be exported in a particular consignment. While the import authorization is a document indicating the total amounts of drugs which an individual person, business or State enterprise may import, the import certificate is a document certifying to the Government of the exporting country or territory that a particular person, business or State enterprise is authorized to import given quantities of drugs. 2 The sues of the quantities of drugs whose approval for importation has been confirmed by two or more import "certificates" relating to the same import "authorization" must not exceed the totals allowed by that authorization.

3. Since a particular import authorization cannot allow importation from more than one exporter, 3 all the import certificates relating to the same import authorization may name as exporter only the one designated in the import authorization.

4. Where the importation is authorized only in one consignment, an authenticated copy of the import authorization can undoubtedly take the place of an import certificate. It is, moreover, submitted that, even when the import authorization permits import in more than one consignment, such copies of the import authorization may also be used as "import certificates" in the procedure under article 31, paragraph 5 in order to obtain the two or more export authorizations required for shipments of portions of the totals permitted. A Government authorizing an importation in more than one consignment may for this purpose issue to the importer an appropriate number of copies of the import authorization involved.

5. In order to be able to regulate the quantities of their narcotics supplies as they are required to do by article 21, paragraphs 1 to 3, Governments may find it advisable to require their importers actually to import the total quantities of drugs that they are permitted to import.

6. Export and import authorizations and import certificates must not be transferable.

7. It may be noted that the Single Convention does not contain a provision corresponding to that of article 18 of the 1925 Convention. It will be recalled that this article provided that if a Party to the 1925 Convention -which introduced the import certificate and export authorization system as an institution of multilateral treaty law-found it impossible to apply any rule of that system to trade with another country by reason of the fact that such country was not a Party to that Convention, such a Party was only bound to apply the provisions of this system so far as circumstances permitted. It has been mentioned elsewhere that Members of the United Nations are bound by the provisions of the Charter to co-operate in the promotion of solutions of problems of drug abuse, even if they have not accepted the relevant provisions of the narcotics treaties, and that the view has been maintained that the basic rules of the international narcotics regime have become rules of customary general international law. The import certificate and export authorization system undoubtedly constitutes one of the basic parts of the international narcotics regime. 4 If this view is accepted, there remains no reason for any exception from the application of the import certificate and export authorization system like that laid down in article 18 of the 1925 Convention; and the Single Convention, in fact, does not provide for such an exception. 5

8. The import certificate and export authorization system must also be applied to consignments of drugs which are shipped from one area of a State to another area of the same State but which must cross the territory of another State, unless the drugs are transported by aircraft which does not land in the foreign State. c This follows from paragraphs 5, 6, 10 and 11 of article 31, which require that each export consignment should be accompanied by a copy of the export authorization, that this authorization should be granted to the exporter only if he produces a corresponding import certificate confirming the approval of the importation of the drug or drugs in question, and that the transit of drugs not accompanied by a copy of the export authorization should not be permitted. A State authorizing such consignments shipped through the territory of a foreign country must therefore treat the two areas in question as different territories or as parts of different territories in the sense of article 1, paragraph 1, subparagraph (y). 7 It must however be admitted that the formal application of the import certificate and export authorization system to consignments of drugs sent from the main territory of a State to one of its enclaves which is surrounded by another State and located in the border region of the two States may not always be considered to be very practical and that other controls of such movements of drugs may appear to be sufficient, particularly where international agreements limit the control which the foreign State may exercise over the transit of goods shipped from the State to its enclave or vice versa. s

9. The two subparagraphs under consideration, like the other provisions of article 31, paragraphs 4 to 15, apply to all drugs 9 and their preparations to other than preparations in Schedule III. The Single Convention follows in this the preceding treaties, which exempted from the application of the import certificate and export authorization system certain preparations corresponding to the preparations in Schedule 111, which were referred to as "preparations for the export of which export authorizations are not required". 11

10. Export and import authorizations may be granted not only to State enterprises and licensed traders (article 31, paragraph 3, subparagraph (a)), but also to non-licensed scientists for research purposes, to physicians for therapeutic purposes and to individual patients for medically authorized personal use. The quantities involved in such authorizations will, however, be minor. 12

11. For earlier provisions corresponding to those of article 31, paragraph 4, subparagraphs (a) and (d), see article 12 and article 13, paragraph 1 of the 1925 Convention; see also article 13, paragraph 2 of the 1912 Conven tion, which however is obsolete and in any event ceased to be in force as between Parties to the 1925 Convention (see article 31 of that Convention).

1 Second para. of article 12.

2 League of Nations, records of the second Opium Conference held in Geneva, 17 November 1924 to 19 February 1925, League of Nations document C.760.M.260. 1924M. vol. II, p. 254 and vol. I, p. 291; see also above, comments on article 18, para. 1, subpara. (d).

3 Article 31, para. 4 (b) describing the required contents of an import authorization prescribes the inclusion of the name and address of the "exporter" and not of "exporters".

4 See above, comments on article 14, para. 1, subpara. (a) and the references in foot-note 23 to those comments; see also article 5, article 8, para. (d), article 12, para. 3 and article 13, paras. 2 and 3 and comments on these provisions; see also comments on article 3, para. 7.

5 The exception of article 18 of the 1925 Convention was abrogated by article 6, para. 4 of the 1953 Protocol in regard to the international trade in opium.

6 Article 31, para. 14 and comments on that paragraph.

7 See above, comments on that subparagraph.

8 See below, comments on article 31, para. 15.

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

10 Article 2, para. 3.

11 Article 2, para. 4 and comments thereon; article 31, para. 16.

12 See above, comments on article 31, para. 3, subpara. (a).

Paragraph 4 (b) and (c)

(b) Such authorization shall state the name of the drug, the international non-proprietary name if any, the quantity to be imported or exported, and the name and address of the importer and exporter, and shall specify the period within which the importation or exportation must be effected.
(c) The export authorization shall also state the number and date of the import certificate (paragraph 5) and the authority by whom it has been issued.

Commentary

1. It is suggested that, in addition to the information explicitly required by the Convention, the import authorizations and export authorizations should contain such other data as might be useful for:

(a) Achieving the principal aims of the import certificate and export authorization system, which are (i) to prevent diversion of international shipments into illicit channels, and, if necessary, to trace diverted or lost consignments, and (ii) to regulate the quantities of imports and exports as required by the provisions of article 21, paragraphs 1 to 4 and article 31, paragraph 1, subparagraph (b); 1

(b) Facilitating the task of the national control organs in respect to the supervision of the international trade in drugs.

2. In view of the numerous trade names under which drugs and particularly their preparations are offered for sale, it is essential that they should be designated by names by which they can be easily identified by the authorities of the exporting countries and particularly by those of the importing countries. The use of such names might moreover be of considerable convenience to the importers. If an international non-proprietary name exists, its use in the import and export authorizations is therefore mandatory. It must be assumed that it has also to be used in the "import certificate" referred to in paragraph 5. 2

3. It appears that the Plenipotentiary Conference was of the opinion that the mandatory use of non-proprietary names in Government documents, which would not be published, would not give rise to the legal difficulties which might result, as a consequence of possible conflicts with national laws for the protection of trade names, 3 from an obligatory use of such names in advertisements and the commercial literature and on the interior wrappings and labels referred to in article 30, paragraph 3.

4. The Single Convention does not state by whom and by what method international non-proprietary names are to be determined for the purposes of article 31, paragraph 4, subparagraph (b). With reference to article 30, paragraph 3 it is, however, submitted that the non-proprietary names "com nmunicated by the World Health Organization" pursuant to that provision are also the ones to be used under article 31, paragraph 4, subparagraph (b). It has been suggested in the comments on that paragraph of article 30 that the World Health Organization should communicate to the Secretary-General of the United Nations the international non-proprietary names of drugs which it selects. 5 As has also been proposed in these comments, the Secretary-General should in his turn forward this information to all Parties to the Single Convention and to all non-Parties whose co-operation in this matter he might find desirable, in order to enable those Governments to carry out the provisions of the Single Convention concerning non-proprietary names. 6

5. It is suggested that if the drug in question has no "international non-proprietary name" its generic name (common or chemical) should be given, preferably the one used in the national legislations of the importing and exporting countries, and if this legal name differs in those two countries, the designations used in the laws of both countries should be indicated. There is of course no objection to using trade names in addition.

6. Subparagraph (b) describes the mandatory data which must be included in import and export authorizations as well as in "import certificates". Subparagraph (c) states the information which an export authorization must contain in addition to that provided for in subparagraph (b). 7

7. While a single document (import or export authorization or import certificate) may relate to more than one drug, it may list only one exporter and only one importer, whether a State enterprise, private trader, physician, scientist or patient. 8 The corresponding import and export authorizations must name the same importer and exporter. An import certificate must always indicate the same importer and exporter as the import authorization to which it relates. 8

8. All these documents must of course name the authorities by which they were issued. The export authorization must in addition identify the authority which issued the import certificate on which the authorization is based pursuant to article 31, paragraph 5. It must indicate the number and date of the certificate in order to facilitate the identification of that document. Parties must furnish to the Secretary-General of the United Nations the names and addresses of the Government authorities which are empowered to issue import and export authorizations and import certificates. The Secretary-General forwards this information to Governments. 9 The quantities should be given in terms of the decimal system (metric tons, kilograms and grams), because other units of weight used in one of the two countries engaged in an international transaction may not be widely known, or may sometimes have a different meaning in the other country.

9. It would facilitate the tasks of the control authorities if the period during which the importation or exportation must be effected is not too long. It was suggested in the League of Nations Model Code that it would generally be appropriate to limit the time for importation to three months, and the time for exportation to two months. A number of countries, however, issue export and import authorizations which are valid for a period of six months, and have adopted the practice of prolonging this period if required for the execution of the authorized transactions. When determining the duration of the validity of an export authorization or prolongation of that duration, the Government must be guided by the consideration that the drugs in question should not be permitted to be exported at such a late time as to arrive in the importing country or territory after the end of the duration of the validity of the corresponding import certificate (import authorization). 10 An exporter asking for extension of the time of validity of an export authorization must be required to produce to his competent authorities a revised import certificate (or a copy of the revised import authorization) or other official documentary evidence showing a corresponding prolongation of the validity of the import authorization involved.

10. Other data which have been suggested for inclusion in the documents involved are: the profession, business or status 11 of the importer and exporter, the numbering and marks of the packages containing the exported drugs, the customs office through which the goods are to enter or leave the country, the means of transportation and the route to be followed. 12 Import and export authorizations may also impose special conditions. 13 Those prescribed by the export authorization may be in addition to these contained in the corresponding import certificate or import authorization, but should not be incompatible with the latter.

11. It has also been suggested 12 that a duplicate of the export authorization should be sent to the customs house through which the drugs are to be exported, and a duplicate of the import certificate (or of the import authoriza tion used as "import certificate") 14 to the customs house through which the importation is to pass. This is in fact the practice of a number of countries.

12. As regards the indication in the import certificate (import authorization) and in the export authorization of an export to a bonded warehouse, see below, article 31, paragraph 9.

13. For earlier treaty provisions regarding the contents of the export authorization and of the import authorization ("import certificate"), see article 12 and article 13, paragraphs 1, 3 and 7 of the 1925 Convention.

1 See also article 14, paragraph 2 and article 31, paragraph 1, subparagraph (a).

2 See above, comments on paragraph 4, subparagraphs (a) and (d).

3 See above, comments on article 30, paragraph 3.

4 Article 1, paragraph 1, subparagraph (j).

5 As regards the procedure of the World Health Organization for the selection of non-proprietary names of drugs, see above, comments on article 30, para. 3.

6 Le. article 30, para. 3 and article 31, para. 4, subpara. (b).

7 For additional information to be included in an "import certificate" and in an export authorization, see also article 31, para. 9.

8 See above, comments on article 31, para. 4, subparas. (a) and (d) and on para. 3, subpara. (a).

9 Article 18, para. 1, subpara. (d) and comments thereon.

10 Part II, chapter 111, para. 11. The import certificate and export authorization system of the 1925 Convention is substantially the same as that laid down in article 31, paras. 415 of the Single Convention.

11 E.g. whether a "State enterprise".

12 Model Code, part II, chapter 111, para. 12.

13 See Model Form of Import Certificate approved by the Commission on Narcotic Drugs, pursuant to article 31, para. 5, item 1 (d); document E/NR.FORM/ Rev.2, annex 111.

14 See above, comments on para. 4, subparas. (a) and (d).

Paragraph 5

5. Before issuing an export authorization the Parties shall require an import certificate, issued by the competent authorities of the importing country or territory and certifying that the importation of the drug or drugs referred to therein, is approved and such certificate shall be produced by the person or establishment applying for the export authorization. The Parties shall follow as closely as may be practicable the form of import certificate approved by the Commission.

Commentary

1. Paragraph 5 contains two different provisions, one-in the first sentence-to ensure that only such exports are authorized as are approved by the importing country or territory' involved, and another-in the second sentence-to ensure that the authorities of the exporting country or territory learn from the authorities of the importing country the data which are required for their decision on applications for the authorization of exports of drugs.

2. It is essential for the effective functioning of a national narcotics regime that it should not be impeded by lack of control or defective control in other countries, or by actions of those countries which would interfere with its arrangements. It is because of this basic requirement of international narcotics control that paragraph 5 authorizes only such exports of drugs as are approved by the importing countries or territories involved. 2 The exporter applying for an export authorization must therefore produce to the competent department of his Government an "import certificate" issued by the authorities of the importing country or territory, which certifies that the import of the drug or drugs referred to in that document has been approved. The authorities of an exporting country or territory must not authorize any export of drugs unless such a certificate is produced to them. The exporter must receive from the importer this certificate, or a duplicate of the import authorization which may be used as an "import certificate" for the purpose of paragraph 5. 3 The importer must therefore obtain from his authorities not only an "import authorization", but also an "import certificate", or in its place an additional copy of the import authorization which can be used by the exporter as "import certificate" in the sense of this term in paragraph 5. 3 The word "person", as employed in the paragraph under consideration, refers to individuals such as individual businessmen or scientists who may wish to export drugs, and the term "establishment" refers to state enterprises, divisions of State enterprises, corporate bodies including co-operatives, or partnerships. 4

3. It will be noted that article 31, paragraph 9 also employs the term "import certificate". 5

4. The "import certificate" as approved by the Commission on Narcotic Drugs at the time of this writing is reproduced in United Nations document E/NR.FORM/Rev. 2. 6 The use of the form ensures that the Government of the exporter will obtain the essential data which it needs for its consideration of an application for an export authorization. The form, as in force at present, requires an indication of the name, address and business of the importer and of the name and address of the firm in the exporting country from which the drugs are to be obtained, an exact description and an indication of the amounts of the drugs to be imported, including their international non-proprietary names if any, an indication of special conditions whose observation may be required by the authorities of the importing country or territory, an indication of the purposes other than medical or scientific purposes for which the importation is to be made, an indication of the duration of validity of the document and a certification by the competent authority that the importation has been approved. In the case of poppy straw 7 to be imported for other than medical or scientific purposes, the authorities of the importing country or territory are required by the terms of the form to confirm that the importation is to be made "for legitimate purposes". 8

5. The English words "shall follow as closely as may be practicable the form" are unfortunately rendered in the French and Spanish texts by words which have a somewhat different meaning, namely in French by "se confor meront autant que faire se pourra au modele" and in Spanish by "se ajustaran en la medida de to posible al modelo". This difference may however in practice be of very little importance. There may be, in the matter of using the form of import certificate approved by the Commission, very little difference between what is not possible and what is only not practicable. '

6. See also above, comments on article 31, paragraph 1, subparagraph (a). For an earlier provision corresponding to article 31, paragraph 5, see article 13, paragraph 2 of the 1925 Convention; see also article 13, paragraph 7 of and the Annex to that Convention.
 

1 For the meaning of "country or territory" see above comments on article 1, para. 1, subpara. (y).

2 See also article 31, para. 1.

3 As regards the use of an authenticated copy of the import authorization as "import certificate" for the purposes of para. 5, see above, comments on article 31, para. 4, subparas. (a) and (d).

4 See also comments on article 31, para. 3, subpara. (a) and para. 4, subparas.(a) and (d).

5 See below, comments on that paragraph.

6 As annex III; the form is also reproduced in annex I to United Nations document E/CN.7/484/Rev.l. Document E/NR.FORM/Rev.2 also containing the Form of Annual Reports, the Form of Reports on Illicit Narcotics Transactions and Seizures, and a Questionnaire on the Manufacture of Narcotic Drugs is at the time of this writing annually communicated to Governments by the Secretary-General of the United Nations; a "Model Form of Import Certificate" is also annexed to the 1925 Convention.

7 Article 25, para. 2.

8 A "Model of Export Authorization" has also been drafted and approved by the Commission on Narcotic Drugs; see annex II of document E/CN.7/484/Rev. l. This form provides, however, for a possible authorization of an export in two or more consignments, contrary to the provisions of the Single Convention (and of the 1925 Convention).

9 The first line of the Spanish text of para. 5 also uses somewhat inconsistently the words "un permiso" for "una autoriaacion"; see para. 4.

Paragraph 6

6. A copy of the export authorization shall accompany each consignment and the Government issuing the export authorization shall send a copy to the Government of the importing country or territory. Paragraph 7, subparagraph (c)
(c) If a lesser quantity than that specified in the export authorization is actually exported, the quantity actually exported shall be stated by the competent authorities on the export authorization and on any official copy thereof.

Commentary

1. These provisions reproduce in substance those of article 13, para graphs 4 and 6 of the 1925 Convention. They are intended to guard against diversion of international shipments of drugs into illicit channels. The accompanying export authorization should enable the control officers concerned (customs officers and others) to ascertain the legitimacy of the shipment, and to give particular attention to protecting the shipment against pilferage during its transportation. The Single Convention does not prescribe the particular mode in which the copy of the export authorization should accompany the consignment. The Plenipotentiary Conference which adopted the 1925 Convention containing the same provision appears to have understood that "the usual procedure would be, in the case of consignments sent by sea, that the copy should be handed to the captain or other responsible officer of the ship, and in the case of goods sent overland by train, to the responsible railway official in charge of the goods." 1 If this strict view were followed, the copy of the export authorization would have to be handed to the pilot in the case of shipments by air. It is, however, submitted that it might often be difficult
in practice to carry out these ideas of the Conference of 1925. It will be sufficient under paragraph 6 to enclose in or attach to the consignment the copy of the export authorization in the same way as other documents required for customs clearance.

2. The copy of the export authorization, which must be sent by the Government of the exporter to the Government of the importer, enables the latter Government to verify whether the total quantities of drugs included in the consignment involved have arrived at the authorized address. Since under the Single Convention and under corresponding national legislations the quantities of drugs actually exported must never be larger, but may be smaller, than those permitted by the export authorization concerned, paragraph 7, subparagraph (c) requires the authorities of the exporting country or territory to state on the export authorization, and on all official copies of the authorization, the amounts actually exported if lesser quantities than those authorized are in fact exported. If the Government of the exporter has already sent to the Government of the importer a copy of the authorization which does not indicate the reduced quantities, it must without undue delay dispatch to the latter Government a revised copy stating the quantities actually exported.

3. The competent authorities of the exporting country or territory should send the copy of the export authorization direct to those of the importing country or territory. They should if possible avoid diplomatic channels for this purpose, so as to speed up the receipt of the copy by the technical officials directly concerned, and thus to make easier any required investigation of an eventual loss or diversion of the consignment or of parts of its contents. While paragraph 6 requires only that "a copy of the export authorization shall accompany" an international consignment of drugs, a number of Governments require that two copies should be attached to the shipment. One copy is in such cases retained by the customs office of the place of exit, which records on this document relevant information such as the fact that the export has actually taken place, or that a smaller quantity than that permitted by the export authorization was included in the shipment. The customs office returns this copy to its national authorities concerned with the control of the international trade in narcotic drugs, while the other copy continues to accompany the shipment as required by paragraph 6. It is suggested that a third copy accompanying the shipment could in such a case be retained by the customs office of the place of entry into the importing country or territory, used for recording the fact of importation, the quantities of drugs contained in the shipment and other relevant data, and then transmitted to its competent supervisory authorities.

4. As has been mentioned elsewhere, 2 some Governments send in advance a duplicate of the export authorization to the customs office of the place of exit, which may use this document for recording the relevant data and send it back to its narcotics control office.

5. In accordance with practices such as those just mentioned or under other procedures, the customs bureau of the place of export will have a record of the essential circumstances of the exit of drugs, and in particular also will have a record showing cases when a lesser quantity than that permitted by the export authorization involved has left its country or territory, and will accordingly inform the supervisory office concerned. The Government of the exporter will thus in any event be in a position to carry out its obligation under paragraph 7, subparagraph (c). But if the Government learns only from its customs authorities that lesser amounts than those authorized have in fact been exported, it may quite often obtain this information rather late in the procedure. It may at this time actually already have sent to the Government of the importer a copy of the export authorization without a statement of the reduced export. As stated above, it would in such a case have to send another copy of the export authorization revised to include the required statement. It would therefore be helpful if the exporter is obligated to inform his competent supervisory authorities without delay of the fact that he has despatched smaller quantities than he was permitted to do, and to have those authorities enter on his export authorization and on all official copies, if any, of the authorization in his possession the amounts actually exported.

6. As regards compliance of exporters with the law of an importing country or territory requiring that international shipments of drugs should also be accompanied by copies of the import certificates (import authoriza tions), 3 see above, comments on article 31, paragraph 1, subparagraph (a). 7. For other references to the requirement that international consignments of narcotic drugs should be accompanied by a copy of the export authorization, see below, article 31, paragraphs 10 and 11. 4

1 Report of Sub-Committee E of the Second Opium Conference held in Geneva November 17, 1924 to February 19, 1925, records of the Conference, vol. 1, p. 484, League of Nations, document C.760.M.260.1924.XI. It has also been suggested that if consignments are sent by post, the postal authorities should place the papers accompanying the shipments (including the copy of the export authorization) at the disposal of the customs office of export; Model Code, part II, chapter 111, para. 16.

2 See above, comments on article 31, para. 4, subparas. (b) and (e).

3 See above, comments on article 31, para. 4, subparas. (a) and (d).

4 The use of the word "permiso" for the word "autorizacion" in the Spanish text of para. 6 and para. 7, subpara. (c) may be noted; see also para. 4 ("autorizacion") and para. 5, para. 7, subpara. (a) and paras. 8, 9, 10, 11 and 12 ("permiso").

Paragraph 7, subparagraphs (a) 1 and (b)

(a) The Government of the importing country or territory, when the importation has been effected or when the period fixed for the importation has expired, shall return the export authorization with an en dorsement to that effect, to the Government of the exporting country or territory.
(b) The endorsement shall specify the amount actually imported.

Commentary

1. The two subparagraphs under consideration reproduce the provisions
of article 13, paragraph 5 of the 1925 Convention. They require the authorities of the importing country or territory to verify whether the consignment has arrived, to determine the quantities which have actually been imported and to state the results of this examination in an endorsement of the copy of the export authorization which they have received from the authorities of the exporting country or territory pursuant to paragraph 6, and which, with such endorsement, they must return to those authorities. They must also in the same way inform the Government of the exporter that the period fixed for the importation has expired without arrival of the consignment involved. It is submitted that the Government of the importer should not only comply with these express provisions of subparagraphs (a) and (b), but also more generally verify whether the shipment was carried out in accordance with the terms of the documents authorizing it. It has been mentioned above that the terms of the export authorization must not be incompatible with those of the import certificate (import authorization) 2 although the former may contain conditions in addition to those imposed by the document authorizing the importation. 3

2. It is suggested that the endorsed copy of the export authorization should without any undue delay be returned to the Government of the exporting country. It should be sent by the competent authorities of the importer direct
to those of the exporter. If possible, diplomatic channels should not be used
for this transmission. 4 Quick information of the authorities of the exporting country or territory under the terms of the two subparagraphs under consideration is important, because inter alia it facilitates their co-operation in the investigation of possible illicit diversion of all or part of the international consignment concerned.

3. The Convention does not indicate the manner in which the Government should obtain the information which it requires for its endorsement of the export authorization. The practice of Governments differs on this point. They can and do obtain the required data from the customs bureaux of the places of entry. The implementation of the import certificate and export authorization system, particularly the requirement of an accompanying copy of the export authorization, enables the customs offices concerned to verify in each case whether an entry or exit of a consignment is in accord with the conditions under which it has been authorized. The task of a customs office is made easier if-as is the practice in a number of countries-it receives information of forthcoming shipments from copies of the export authorizations and import certificates (import authorizations) sent to it in advance by its central supervisory authorities. A customs bureau which receives in advance a copy of the import certificate (or import authorization) will also easily be able to inform its central supervisory authorities that a particular shipment has not arrived within the period fixed for its importation. 5 It may also be mentioned in this connexion that it is the practice of a number of Governments to retain imported narcotic drugs in their customs offices until they are claimed by the importers, who are informed of the arrival of their goods. The importers must in such cases produce their import authorizations, and confirm in writing the receipt of the drugs. It is submitted that it would in any event be essential for purposes of control to require the importer to confirm in writing to the customs bureau concerned, or to the competent supervisory authorities, the receipt of the imported drugs with an indication of their quantities and a description of them. This may be done on a copy of the import authorization on which the importer certifies that he has received the drugs as described in this document. s

4. As regards the use of the words "country or territory", see above, comments on article 1, paragraph 1, subparagraph (y).
 

1 As regards the Russian text of subpara. (a) see United Nations, Treaty Series, vol. 557, p. 280, corrigendum.

2 See above, comments on article 31, para. 4, subparas. (a) and (d).

3 See comments on article 31, para. 4, subparas. (b) and (c).

4 See above, comments on article 31, paras. 6 and 7, subpara. (c); the endorsed copies of the export authorizations should also not be sent through the intermediary of the Secretary-General of the United Nations or through that of the Board, as some Governments have occasionally done.

5 The Model Code states in part II, chapter III, para. 14 that "On the arrival of the consignment, the Customs must inspect it to see that it corresponds to the particulars given in the import permit and that the address shown is actually the address of the consignee".

6 As regards the use of a third copy of the export authorization by the customs office of entry for purposes of recording and informing the competent narcotics authorities, see above, comments on article 31, para. 6 and para. 7, subpara. (c).

Paragraph 8

8. Exports of consignments to a post office box, or to a bank to the account of a party other than the party named in the export authorization, shall be prohibited.

Commentary

1. It will be noted that all international consignments to a post office box are prohibited, while as regards those addressed to a bank, only consignments to the account of a party other than the party named in the export authorization are forbidden. The narcotics regime preceding the Single Convention did not contain a corresponding provision; but the League of Nations Model Code recommends' the same prohibitions as those laid down at present in article 31, paragraph 8 of the Single Convention. The conditions under which goods can be sent to and withdrawn from post office boxes are not such as to offer satisfactory safeguards against diversion of drugs into illicit channels. The same applies to a considerable degree to banks. The relevant rules governing the receipt, custody and delivery of goods through post office boxes or banks can hardly be modified in regard to drugs so as to create the required safeguards without unfavourably affecting their usefulness for numerous other functions.

2. In fact, the consignment of narcotic drugs to post office boxes and banks cannot easily be reconciled with some of the basic ideas of the Single Convention. That treaty contains provisions intended to ensure that drugs held for trade or distribution are stored only in places which are equipped with the necessary protective arrangements to prevent loss or theft. Establishments and premises in which the manufacture of narcotic drugs or their preparations takes place, 2 or which serve as places of trade in, or of distribution of narcotic drugs, a must therefore be controlled under licence. The supervisory authorities can refuse the required licences to those establishments and premises which do not have the needed equipment for protection.

3. It would hardly be feasible, however, to subject to the licensing provision of the narcotics laws, rooms in which post office boxes containing narcotic drugs are located, or premises in which banks may store narcotic drugs. Moreover, receiving and releasing drugs are activities at least very similar to those referred to by the Single Convention as "distribution", which under the terms of that treaty can be carried on only by chosen State enterprises or by enterprises or persons licensed for that purpose. 4

4. It has been asserted that the possibility of consignments to post office boxes may aid trade in narcotic drugs. 5 There can be no doubt that the procedure of sending international shipments to banks facilitates international commerce. As regards consignments to post office boxes, this argument did not persuade the Plenipotentiary Conference, but commercial considerations led the Conference to permit international shipments to banks, subject, however, to the precaution that shipments to banks are permitted only if sent to the account of the party named in the export authorization, who is of course identical with the importer indicated in the corresponding import authorization (or import certificate). 6

5. It may be noted that the restrictions of paragraph 8 apply only to international and not to domestic consignments. It is, however, suggested that it might be desirable to prohibit all shipments of drugs to post offices or banks, no matter whether domestic or international.

6. Attention may be drawn in this connexion to those provisions of the Universal Postal Convention, of the Agreement concerning Insured Letters and Boxes and of the Agreement concerning Postal Parcels-as they are revised from time to time-which impose restrictions on international shipments of narcotic drugs by mail. Under these provisions the forwarding of narcotic drugs by letter post is prohibited. Items so sent must not be returned to the sender nor forwarded to the addressee; the postal administration of origin must, however, be informed of the way in which these drugs have been dealt with. 7 International shipments of narcotic drugs by insured letters or insured boxes are also forbidden; an exemption from this prohibition is, however, granted to narcotic drugs sent in insured boxes for medical and scientific purposes to countries which admit them for such purposes. s Similarly, consignments of narcotic drugs by postal parcels are permitted only for medical and scientific purposes to those countries which admit them on this condition. 9

7. As can be seen, international shipment of narcotic drugs by mail is not favoured by the family of nations. The present form of import certificate approved by the Commission on Narcotic Drugs in accordance with article 31, paragraph 5 of the Single Convention mentions, as an example of the special conditions which the Government of the importing country or territory may impose on the exporter, the requirement that the drugs should not be imported through the post. 10

8. It may finally be mentioned that the Single Convention does not contain any provision exempting postal consignments of drugs from its rules governing transit through a third country 11 or territory.

1 Part II, chapter III, para. 21, second subparagraph. The recommendation of the Model Code also appears to apply only to international shipments; but its language is not quite clear on this point.

2 Article 29, para. 2, subpara. (b).

3 Article 30, para. 1, subpara. (b), clause (ii); this provision need not apply to preparations.

4 See above, comments on article 30, para. 1, subpara. (a).

5 Records, vol. II, p. 144.

6 See above, comments on article 31, para. 4, subparas. (b) and (c); as regards the term "import certificate", see above, comments on article 31, para. 4, subparas. (a) and (d).

7 See e.g. Universal Postal Convention, signed at Vienna on 10 July 1964, article 28, para. 1, subpara. (c) and para. 3; see also article 52; United Nations, Treaty Series, vol. 611, pp. 251, 252 and 261; article 29, para. 1, subpara. (c), para. 3 and para. 4 of the Universal Postal Convention, done at Tokyo on 14 November 1969, Universal Postal Union, Documents of the 1969 Tokyo Congress, London, 1971, vol. 111, pp. 100-101.

8 See e.g. Agreement concerning Insured Letters and Boxes, signed at Vienna on 10 July 1964, article 5, para. 1, subpara. (b), United Nations, Treaty Series, vol. 611, p. 422; see also Insured Letters and Boxes Agreement, signed at Tokyo on 14 Novem ber 1969, article 5, para. 1, subpara. (b), Universal Postal Union, Documents of the 1969 Tokyo Congress, London, 1971, vol. 111, p. 279.

9 See e.g. Agreement concerning Postal Parcels, signed at Vienna on 10 July 1964, article 24, para. (a) United Nations, Treaty Series, vol. 612, p. 127; see also Postal Parcels Agreement signed at Tokyo on 14 November 1969, article 19, para. (a), sub para. (ii), Universal Postal Union, Documents of the 1969 Tokyo Congress, London 1971, vol. III, p. 300.

10 Document E/NR.FORM/Rev. 2.

11 See article 31, paras. 11-15 of the Single Convention and article 15, para. 5 of the 1925 Convention; see also article 17 of the 1925 Convention (corresponding to paragraph 13 of article 31 of the Single Convention) from which postal consignments are not exempted under the earlier treaty.

Paragraph 9

9. Exports of consignments to a bonded warehouse are prohibited unless the Government of the importing country certifies on the import certificate, produced by the person or establishment applying for the export authorization, that it has approved the importation for the purpose of being placed in a bonded warehouse. In such case the export authorization shall specify that the consignment is exported for such purpose. Each withdrawal from the bonded warehouse shall require a permit from the authorities having jurisdiction over the warehouse and, in the case of a foreign destination shall be treated as if it were a new export within the meaning of this Convention.

Commentary

1. "Bonded warehouses" are storage facilities established or authorized by law in which an importer may, under the control of the customs authorities, deposit imported goods. The importer must pay a storage fee, but is not required to pay the customs duties until the goods are finally removed from the warehouse for domestic sale or consumption. The importer has also the right to withdraw his goods from storage for the purpose of re-exportation without paying duties. The removal from the warehouse is supervised by customs officers. The receipt 1 issued by the warehouse is evidence of title to the deposited goods. By endorsement of this receipt, the title can in a number of countries be transferred to another person. These arrangements, and particularly the right to delay the payment of often considerable customs duties, are very helpful to importers, particularly to those of commodities such as tobacco, which are subject to heavy customs duties. 2 They may also be of some value to enterprises engaged in the international trade in narcotic drugs.

2. Commercial considerations of this nature obviously moved the Plenipotentiary Conference to permit international consignments of narcotics to bonded warehouses under stated conditions.

3. The control arrangements adopted for bonded warehouses are of course primarily made for the purpose of preventing the evasion of customs duties. They may very often be less than perfect for purposes of narcotics control. In fact, consignment of narcotic drugs to bonded warehouses may be inconsistent with basic ideas of the provisions of the Single Convention which relate to the control of premises in which narcotic drugs or their preparations are manufactured, 3 or in which narcotic drugs are held for trade or distribu tion. 4 Parties are required to "control under licence" establishments and premises in which such manufacture, trade or distribution takes place. They must refuse such a licence to establishments or premises which are not equipped with the required special safeguards to prevent theft or loss of narcotic drugs. Bonded warehouses are of course not subject to the licensing system of the narcotics regime. s Storing narcotic drugs may also generally not be a sufficiently extensive business to justify financially the installation of those safeguards in a part of the warehouse to be used for the storage of narcotic drugs; it may also be mentioned that receiving and removing narcotic drugs are activities which closely resemble those which are called "distribution" by the Single Convention, and which are permitted only to chosen State enterprises or private enterprises or persons furnished with the required narcotics licence. 6

4. Nevertheless, bonded warehouses may have special rooms which are equipped with all safeguards required to prevent the diversion of stored narcotic drugs. The paragraph under consideration allows an export of a narcotics consignment to a bonded warehouse if the Government of the importing country confirms on the import certificate 7 that it has approved the importation of the drugs involved for the purpose of being placed in a bonded warehouse. This warehouse must be named in the certificate. The exporter must produce this document to the governmental unit in charge of issuing export authorizations. 8 An authorization to export drugs to a bonded warehouse may be granted only to an exporter who produces such a certificate. The export authorization must name the same bonded warehouse as the import certificate on the basis of which it has been granted.

5. It may of course be assumed that the Government of an importing country will not approve an import of drugs to a bonded warehouse which is not equipped with proper safeguards to prevent diversion.

6. The requirement of a permit for each withdrawal of drugs from the bonded warehouse enables the authorities concerned to ensure that the removed goods do not come into the hands of persons not authorized under the narcotics regime to acquire them. When called upon to grant the permit, the authorities may also be in a position to determine whether drugs have been diverted, replaced by other substances or subjected to any process which has changed their nature. They may on this occasion also establish whether the packing has been altered without their permission. 9

7. A person or enterprise applying for an authorization to export drugs, stored in a bonded warehouse must comply with all the requirements of the import certificate and export authorization system laid down in article 31, paragraphs 4-6. The exporter should, however, also indicate in his application for the authorization that the drugs to be exported are stored in a bonded warehouse, which he should name. The authorities may either include in their export authorization the permit to withdraw from the warehouse the drugs concerned, or may issue two separate documents, the one being the export authorization and the other being the permit for the withdrawal of the drugs in question. 10

8. Bonded warehouses may be "public", i.e. Government-owned or "private", i.e. a private enterprise licensed by the Government for this purpose. There is no provision in the Single Convention which would exclude exports to such licensed private warehouses if undertaken under the conditions of paragraph 9. The view has, however, been expressed that export of drugs to private bonded warehouses should not be permitted. The League of Nations Model Code states that "in general, narcotics may not be placed in a private warehouse" (i.e. in a private bonded warehouse). 11 It is submitted that paragraph 9 applies not only to exports from one State to another State, but also to consignments from one territory to another territory 12 of the same State. 13

9. It is suggested that because of the risks of diversion involved, exports to bonded warehouses should be permitted, if at all, only in exceptional cases. It is also advisable that the transfer of title to drugs which are stored in a bonded warehouse simply by endorsement of the warehouse receipt (warehouse warrant), which may be evidence of title to the deposited goods, should not be permitted. Such a method of transfer could hardly be reconciled with the rules of the narcotics regime governing trade in drugs.

10. It will be noted that the English words "the export authorization shall specify that the consignment is exported for such purpose" are rendered in the Spanish text by the words "el permiso 14 de exportacion deberd especificar que la importation se hate con ese destino". The word "exportacion" should have been used in the place of "importation", but this incongruity does not change the meaning of the provision. 15 For provisions in the 1925 Convention corresponding to article 31, paragraph 9 of the Single Convention, see article 13, paragraph 7 and article 16 of the 1925 Convention.

 

1 Called "warehouse receipt" or "warehouse warrant".

2 H. C. Black, Black's Law Dictionary, revised fourth edition, St. Paul, Minnesota, West Publishing Company, 1968, pp. 1,755-1,756; J. L. Hanson, A Dictionary of Economics and Commerce, third edition, London, Macdonald & Evans, Ltd, 1969, p. 49.

3 Article 29, para. 2, subpara. (b).

4 Article 30, para. 1, subpara. (b), clause (ii); this provision need not apply to preparations.

5 See also above, comments on article 31, para. 8.

6 Article 30, para. 1, subpara. (a).

7 Or on the copy of the import authorization used as "import certificate"; see above, comments on article 31, para. 4, subparas. (a) and (d).

8 See also article 31, para. 5.

9 See below, article 31, para. 13 and comments thereto.

10 The Government of the exporter and that of the importer must of course make the communications required by article 31, paras. 6 and 7.

11 Part II, chapter III, para. 20, League of Nations, document C.774.M.365. 1932.XI.

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

13 Article 1, para. 1, subpara. (m); the phrase "unless the Government of the importing country certifies" could better include the words "or territory" after the word "country".

14 As regards the use of the word "permiso" in the Spanish text, see foot-note 4 to the comments on para. 6 and para. 7, subpara. (c).

15 The French text uses the words "!'envoi" which covers "importation" as well as "exportation".

Paragraph 10

10. Consignments of drugs entering or leaving the territory of a Party not accompanied by an export authorization shall be detained by the competent authorities.

Commentary

1. Paragraph 10 must be read together with paragraph 6, which prescribes that a copy of the export authorization should accompany each inter national consignment of drugs. Parties must "detain" shipments which, when entering or leaving their territory, are not accompanied by such copy, no matter what may be the reason for the lack of the document. They will generally not be able to determine whether the absence of the copy is due to a violation of the provision of paragraph 6, or to loss of the document during the transportation of the consignment. In a few cases the authorities may, however, be in a position to establish from other accompanying papers-for example, from an accompanying copy of the import certificate, 1 which may refer to the fact that the shipment has been properly accompanied by a copy of the export authorization-that the required paper has in fact been lost in the course of transportation; but even in such cases the Parties are not released from their obligation to detain the consignment.

2. Paragraph 10 refers only to consignments entering or leaving the territory of the Party. This restriction can be explained by two considerations. First, international 2 shipments are normally checked only at the place of entry and at the place of exit. Secondly, domestic 3 consignments need not be accompanied by a copy of the export authorization. It is, however, suggested that international shipments 4 found by control officers in the interior of a country or territory 5 without an accompanying copy of the export authorization should also be detained.

3. The Plenipotentiary Conference substituted the words "shall be detained" for the words "shall be seized" in the corresponding provision of article 42, paragraph 10 of the Third Draft of the Single Convention, 6 which
it used as working document. The Conference wanted to make it quite clear that the measure which it wished Governments to take was only a provisional one 7 pending the outcome of the inquiry as regards the legitimacy of the shipment, and pending the eventual arrival of a copy of the export authorization in question. If such an investigation leads to the conclusion that the shipment is illegitimate, i.e. has been "used in" or has been "intended for the commission of any of the offences, referred to in article 36", the Party, pursuant to article 37, is bound to seize and confiscate the detained drugs. Otherwise the Convention does not state what should be done with the detained drugs. It is suggested that if the Government of the country or territory of origin confirms the legitimacy of the consignment and furnishes the required copy of the export authorization, the detained drugs should be forwarded to the addressee indicated in that document. It would be advisable that the detaining Party should insist in any event that the Government of the exporter should furnish a copy of the original export authorization. The Party should do this even if it is requested to return the drugs to the exporter, to hand them over to one of its own drug firms or to send them to another consignee than the one to whom the drugs have originally been addressed. The provisions of paragraph 12 concerning diversion of international shipments of drugs must of course in such cases be observed.

4. If the origin of the shipment cannot be determined-for example, as a result of damage caused to the package--it is suggested that the Party should wait an appropriate time before it makes a final decision on the disposal of the detained drugs. The owner of the consignment should have an opportunity to claim the drugs, to prove the legitimacy of the shipment and to furnish the required copy of the export authorization.

5. Drugs which are only "detained" pursuant to paragraph 10 should not be taken into account in computing the statistical figures pursuant to article 20, paragraph 1, subparagraph (e).

6. The term "the territory" appears to mean "area". The text of paragraph 10 does not make it clear whether it applies only to shipments from one State to another State, or also to those sent from one "territory" to another "territory" of the same State. It is, however, submitted that the paragraph under consideration governs both kinds of imports and exports. A Party must therefore detain also those consignments which are sent from one to another of its territories and which are not accompanied by a copy of the export authorization involved. It must also detain shipments sent from one of its territories to another State which, upon entering or leaving another of its territories which they cross in transit, are not accompanied by the required document.

7. It is submitted that the term "international trade" as used in the heading of article 31 covers "imports" and "exports" as defined in article 1, paragraph 1, subparagraph (m), and therefore includes shipments from one territory to another territory of the same State. Paragraph 10 is one of the special provisions relating to "international trade" to which the heading of article 31 refers. 8

8. The narcotics regime preceding the Single Convention did not contain a provision corresponding to paragraph 10. The League of Nations Model Code, however, contains a provision which reads: "Consignments of narcotics unaccompanied by an import or export permit will be seized by the Customs office and placed at the disposal of the supervisory authority"; s see also article 15, paragraph 1 of the 1925 Convention.
 

1 Or a copy of the import authorization; see above, comments on para. 4, subparas. (a) and (d).

2 Or shipments between two "territories" of the same State; article 1, para. 1, subparas. (m) and (y).

3 Consignments sent from one "territory" to another "territory" of the same State are, however, not "domestic" in the sense in which this word is used here.

4 I.e. shipments sent from one State to another State or from one territory to another territory of the same State; article 1, para. 1, subpara. (m).

5 Article 1, para. 1, subpara. (y); see also article 31, para. 11.

6 Records, vol. 11, p. 16.

7 Records, vol. 11, p. 142 and vol. 1, p. 72.

8 Article 1, para. 1, subparas. (m) and (y) and comments on those subparas. Part 11, chapter 111, para. 22.

Paragraph 11

11. A Party shall not permit any drugs consigned to another country to pass through its territory, whether or not the consignment is removed from the conveyance in which it is carried, unless a copy of the export authorization for such consignment is produced to the competent authorities of such Party.

Commentary

1. Paragraph 11 must be read together with paragraphs 6 and 10. Paragraph 10, which requires the detention of consignments not accompanied by a copy of the export authorization as required by paragraph 6, indicates a measure which a Party must also take in implementing paragraph 11.

2. Paragraph 11 corresponds to article 15, paragraph 1 of the 1925 Convention, and reproduces a part of its text. The words of paragraph 1 "is produced to the competent authorities" are literally taken from the earlier treaty. It will, however, be recalled that the authors of the 1925 Convention considered that "the usual procedure would be, in the case of consignments sent by sea, that the copy [of the export authorization] should be handed to the captain or other responsible officer of the ship, and in the case of goods sent overland by train, to the responsible railway official in charge of the goods". 1 If this procedure had been followed, there would be a person who could "produce" to the competent authorities the copy of the export authorization; but the practice of Governments, under the 1925 Convention as well as under Single Convention, has been different. It is considered sufficient if a copy of the export authorization is enclosed in or attached to the consignment, like other commercial papers required for customs clearance. 1 Consequently there is normally no person available who could "produce" to the authorities the copy of the export authorization when the consignment enters, crosses or leaves a country or territory. As far as the Secretariat of the United Nations is aware, no Party to the 1925 or to the Single Convention has objected to this practice of Governments. It may be assumed that there is a general understanding that a Party may permit drugs consigned to another country to pass through its territory if they are accompanied by a copy of the export authorization, and need not require that this copy be "produced" to its competent authorities, although this practice may not be fully in accord with the text of article 15, paragraph 1 of the 1925 Convention or of article 31, paragraph 11 of the Single Convention.

3. When including the words "whether or not the consignment is removed from the conveyance in which it is carried", the authors of the Single Convention were also obviously guided by the text of article 15, paragraph 1 of the 1925 Convention, which-as has been submitted-is based on quite different assumptions. 2 While it may have been useful in 1925 to point out that production of the copy of the export authorization is required even if the goods are not trans-shipped at the border, such a reminder appears to have lost its value under the conditions of the present practice.

4. The phrase "its territory" obviously means "its area" in this context. 3

5. It is submitted that paragraph 11 must also be applied not only to consignments from one State to another State, but also to those sent from one territory to another territory of the same State. This view follows from the title of article 31, in which the term "international trade" covers "exports" and "imports" as those words are defined in article 1. 4 Paragraph 11 should be applied as if the words "or from one to another of its territories" followed the words "another country".

6. Detention of the drugs in question-as provided in paragraph 10appears to be the principal means of implementing paragraph 11.

7. There is some discrepancy between the English and French texts on one hand and the Spanish text on the other. The English words "whether or not the consignment is removed from the conveyance in which it is carried" and the equivalent French words "que cet envoi soit ou non decharge du vehicule qui le transporte" are rendered in Spanish by "aunque sean descargados del vehiculo que los 5 transporta"; but despite this difference the meaning of para graph 11 is the same in the three languages. Moreover, as has been pointed out above, the words in question are, in the light of the practice of Governments under paragraph 11 and the consequential interpretation of this provision, not needed in either of these three language versions.

1 See above comments on article 31, para. 6 and para. 7, subpara. (c).

2 Article 15, para. 1 of the 1925 Convention reads as follows:
"1. No consignment of any of the substances covered by the present Convention which is exported from one country to another country shall be permitted to pass through a third country, whether or not it is removed from the ship or conveyance in which it is being conveyed, unless a copy of the export authorization (or the diversion certificate, if such a certificate has been issued in pursuance of the following paragraph) which accompanies the consignment is produced to the competent authorities of that country."

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

4 Article 1, para. 1, subparas. (m) and (y); see above comments on para. 10.

5 I.e. "los estupefacientes".

Paragraph 12

12. The competent authorities of any country or territory through which a consignment of drugs is permitted to pass shall take all due measures to prevent the diversion of the consignment to a destination other than that named in the accompanying copy of the export authorization unless the Government of that country or territory through which the consignment is passing authorizes the diversion. The Government of the country or territory of transit shall treat any requested diversion as if the diversion were an export from the country or territory of transit to the country or territory of new destination. If the diversion is authorized, the provisions of paragraph 7 (a) and (b) shall also apply between the country or territory of transit and the country or territory which originally exported the consignment.

Commentary

1. The narcotics regime imposes upon the country or territory of origin and on that of destination of an international or interterritorial 1 consignment of narcotic drugs several obligations intended to prevent the diversion of the drugs into the illicit traffic. The authorities of such a country or territory are informed in advance of such a shipment and are in a position to notify in advance the consignment to the customs authorities of the border towns through which the drugs will pass. 2 A country or territory of transit, however, will have no such advance information of a narcotics shipment. It will normally learn of the passing of a narcotics consignment through its area only from the accompanying copy of the export authorization. s The risk of diversion into illicit channels is particularly great in the course of the transportation of the drugs through a country or territory of transit. Several provisions of article 31 therefore deal with this problem of drug consignments in transit. Paragraph 10 requires the detention of drugs not accompanied by a copy of the export authorization; paragraph 11 obligates Parties not to permit the transit of drugs not accompanied by such a copy; paragraph 13 prohibits the subjection of drugs in transit to any process which would change their nature; 4 and paragraph 12 more generally stipulates that a country or territory through which drugs pass in transit shall take all "due" 4a measures to prevent their diversion to a destination other than that named in the accompanying copy of the export authorization unless its own competent authorities authorize the diversion. This paragraph reproduces the similar provision of article 15, paragraph 2 of the 1925 Convention.

2. The authorities of the country or territory of transit must take action under this provision if, for example, the address on the package differs from that given in the export authorization as that of the consignee. The same obligation applies if the route by which the consignment is shipped is on the one hand obviously very uneconomical and gives on the other hand justified reasons for suspecting that it was chosen with the aim of transporting the drugs through areas which are not under effective narcotics control. Governments through whose area the drugs pass are bound to take only all "due" measures, that is, those which under the circumstances can in practice be expected from them. In the light of the conditions prevailing at the time of this writing, it may be said that there is at present normally no need for changes in the practice of Governments in their control of the transit of narcotics consignments. What they have generally been doing in this connexion since 1928, i.e. since the 1925 Convention entered into force, may be considered to be satisfactory, since the diversion of legal international or interterritorial consignments of drugs contributes at present only to a very insignificant degree to supplying the illicit traffic.

3. It may be emphasized that only the competent authorities of the country or territory through which the drugs pass in transit may authorize their diversion under paragraph 12. The Convention does not, however, indicate who may apply for authorization of the diversion. The applicant must of course under civil law be entitled to dispose of the drugs. Otherwise he cannot be permitted to divert them. Very often the exporter named in the export authorization may have retained the right of disposing of the goods in transit. Sometimes, however, the importer indicated in the authorization, or even a third person or establishment, may have acquired this right. Who has the title to the drugs and the right of disposing of them under civil law will depend on the mode of transportation chosen, on the type and contents of the commercial papers employed in the transaction and on the particular municipal law to be applied. It would be beyond the scope of a commentary to the Single Convention on Narcotic Drugs to deal with this problem of civil law in the field of the international transportation of goods.

4. It must, however, be kept in mind that the person or enterprise having title under civil law to the drugs must in addition also be authorized, under the administrative rules governing narcotics control, to engage in the transaction in question. It is suggested that it would be incompatible with these rules to consider a request for diversion made by a person or establishment which has acquired a title to the drugs but is not the individual or enterprise named as importer or exporter in the copy of the export authorization accompanying the drugs in transit. The importer would not have obtained the import authorization and been able to obtain the import certificate 5 which he must have sent to the exporter, s unless he was entitled to receive the drugs under the rules of his domestic narcotics regime. The exporter would not have been granted his export authorization unless he had produced to his competent authorities the import certificate confirming that the import had been approved 5 and unless he was entitled under his national narcotics law to engage in the export. The authorities of the country or territory of transit are entitled to assume that the national narcotics regimes in question are in accordance with the requirements of the Single Convention, and that consequently the importer and exporter named in the copy of the export authorization are-as far as narcotics control is concerned-entitled to dispose of the drugs. They could normally not have the same assurance about any person and enterprise not named as importer or exporter in the copy of the export document. Such person or enterprise would, under the rules of paragraph 12 concerning diversion, have to obtain the character of an "importer" in order to get the control of the drugs, even though he had already acquired title to the goods in transit under national law.

5. Perhaps in most cases it will be the exporter who is entitled to request the diversion of the drugs. It is suggested that the exporter or importer named in the copy of the export authorization who applies for diversion would have to produce to the competent authorities of the country or territory of transit the relevant transportation document proving his right to dispose of the goods in transit, the exporter in order to show that he has retained this right, or the importer in order to produce evidence that he has acquired this right even before the arrival of the drugs at the place of destination.

6. Paragraph 12 requires that the Government of the country or territory of transit should treat a requested diversion as if it were an export from its country or territory to the country or territory of new destination. It must therefore apply to the diversion the rules of paragraphs 4 to 9 relating to the import certificate and export authorization system. It must not authorize the export of the drugs in question to the country or territory of the new address unless it is shown by the applicant for the diversion an import certificate 5 of the authorities of that country or territory indicating that they have approved the import. It must send to those authorities a copy of the export authorization which it has granted to the applicant for diversion. Another copy must accompany the shipment to the new address. 7 The Government granting the diversion is required to exchange with the Government of the country or territory of the new destination the communications provided for in paragraphs 6 and 7 of article 31.

7. Moreover paragraphs 7 (a) and (b) must also be applied between the country or territory which originally exported the consignment and that of transit which authorized the diversion; that is, the shipment from the country or territory of origin to that of diversion must for the purposes of these paragraphs be considered as if it were a completed export from the former to the latter.

8. In computing the statistical figures under article 20, paragraph 1, subparagraph (d), the drugs involved must be considered as "exports" by the country or territory which originally exported them and by that of transit which diverted them, and as "imports" by the country or territory of diversion as well as by that of the new destination.

9. The question arises how a requested diversion to an address in the country or territory of transit itself should be treated. It appears rather difficult to assume that such a diversion should be treated as if it were an "export" from the country or territory of transit to the country or territory of new destination, i.e. to itself, as a literal interpretation of paragraph 12 might suggest. This paragraph requires that "any requested diversion" should be treated as such an export; it does not exclude diversions to destinations in the country or territory of transit itself. It is, however, suggested that it would not be very meaningful-as such an interpretation would require to obligate the authorities of the country or territory of transit to issue an import certificate to a person or enterprise established in their own area, 5 to require the production of this certificate, and on the basis of this document to grant an export authorization to such person or enterprise in order to authorize him or it to receive the diverted drugs. It is submitted that in this case such a complex procedure would not make sense and cannot possibly have been intended by the authors of the Single Convention. A single document authorizing the diversion appears to be sufficient in a situation of this kind. The Government authorizing the diversion would, however, have to take into account all the elements which it has to consider in examining an application for an import authorization. s It might also in some cases be advisable to consult the Government of the country or territory which originally exported the drugs, to ascertain whether it knows any reasons why the requested diversion should not be authorized.

10. As the text clearly shows, paragraph 12 applies not only to shipments from one State to another State, but also to consignments from one "territory" to another "territory" of the same State. 9

1 See above, comments on article 31, paras. 10 and 11.

2 See above, comments on article 31, para. 4, subparas. (b) and (c), para. 6 and para. 7, subpara. (c).

3 Para. 6.

4 See below, comments on that paragraph.

4a The word "due" is rendered in the French version by "necessaires" and in the Spanish version by "necesarias".

5  As regards the use of a copy of the import authorization as "import certificate", see comments on para. 4, subparas. (a) and (d).

6 Para. 5.

7 The copy of the original export authorization which accompanies the drugs to be diverted should be retained by the authorities of the country or territory of transit and sent to the Government of the original exporter, endorsed as required by para. 7, subparas. (a) and (b). See also article 15, para. 2, second subparagraph of the 1925 Convention. It is moreover suggested that the authorities of the diverting country or territory should also inform of the diversion those of the country or territory of original destination of the consignment involved.

8 See article 21, paras. 1 to 3, article 30, para. 1 and para. 2, subpara. (a) and article 31, para. 3.

9 See also above comments on paras. 10 and 11.

Paragraph 13

13. No consignment of drugs while in transit, or whilst being stored in a bonded warehouse, may be subjected to any process which would change the nature of the drugs in question. The packing may not be altered without the permission of the competent authorities.

Commentary

1. The difficulties of exercising adequate control over narcotic drugs in bonded warehouses have been indicated in the above comments on paragraph 9; some of those relating to the control of drugs passing in transit through
a country or territory from the place from which they are exported to the country or territory to which they are consigned have been referred to in the comments on paragraphs 10 and 11, and particularly in those on paragraph 12. Paragraph 13 represents another provision intended to cope with the risk of diversion of drugs placed in a bonded warehouse or of international or interterritorial' consignments in transit. It may be mentioned in this context that not only drugs placed in a bonded warehouse or in transit, but any drugs in the course of being transported from a seller to a buyer, are normally not in the hands of persons or an enterprise, whether manufacturers of drugs or traders in drugs, whose activities are subject to the rules of the strict narcotics regime, and are therefore in particular danger of escaping control.

2. Sub-Committee E of the Second Geneva Opium Conference, which adopted the 1925 Convention, article 17 of which contains the substance of the paragraph under consideration, accordingly stated: "Any interference with the drugs while in transit may make it easy for illicit traffickers to evade control. Many cases have come to light in which the drugs have been abstracted from the package while in transit and replaced by other goods." 2

3. The question arises whether "while in transit" means "while in the condition of transportation from the exporter to the importer", or rather "while in a country or territory which is located between the country or terri tory of exportation and that of importation and through which the drugs involved pass in order to arrive at their destination". It is submitted that in this context "while in transit" must be understood to have the second of those two meanings. This interpretation is also corroborated by the text of article 17 of the 1925 Convention, the substance of which article 31, paragraph 13, reproduces .3

4. It is submitted that transformation of drugs into other drugs, into substances not covered by the Single Convention, into their salts or isomers or even into preparations, would constitute a process changing the nature of the drugs in question. In fact, it is suggested that any process by which products are obtained which cannot easily be identified as the drugs whose consignment has been authorized by the export and import authorization concerned, and which would thus render difficult the function of the supervisory authorities, is prohibited under the terms of paragraph 13.

5. Generally speaking, the "process" to which the paragraph under consideration refers would be very difficult to carry out in a bonded warehouse or in the course of the transportation of the drugs. It may also be noted that such a process could generally be carried out legally only by licensed manufacturers or State enterprises chosen for this purpose 4 and in licensed premises or establishments, 5 that is, generally not while the drugs are stored in the warehouse or in transit. Such a process would therefore be excluded by the provisions of the Single Convention even if paragraph 13 did not specifically prohibit it.

6. Changes in the packing may facilitate the theft of the drugs or their replacement by other goods. They may make it also possible to alter the address so as to effect the forwarding of the consignment to another destination than that indicated in the export authorization concerned. Such a diversion may be comparatively easy if the new destination is located in the country or territory in which the packing is altered, that is, if the consignment concerned does not have to cross a border at which the false address can be compared by the control authorities with that given in the export authorization. The authorities permitting a change in the packing must ensure that the new packing offers a satisfactory protection against the diversion of the contents, and that the address is not changed into one differing from the designation indicated in the accompanying export authorization. It is moreover suggested that an alteration of the packing of a consignment in transit should not be allowed except where damage to the wrapping requires this, or exceptionally if a consignment has to be divided into two or more parts to be diverted to different new destinations in accordance with paragraph 12.

7. It would also be advisable that any authorized change in the packing of drugs stored in a bonded warehouse should take place under the supervision of officers of the narcotics control service.

8. The "competent authorities" mentioned in the second sentence of paragraph 13 are those of the country or territory of transit in which the warehouse is located or through which the drugs are passing in transit.

9. It may be emphasized that paragraph 13 governs not only shipments from one State to another State, but also those from one territory to another territory of the same State. 6

10. While paragraph 13 applies only to international or interterritorial consignments in transit in a country or territory through which they pass in their transportation from the place of export to that of destination, it is suggested that its provisions might usefully be applied to all international or interterritorial consignments in the course of transportation, including those sent to a neighbouring country or territory and even to "domestic" shipments, that is, to shipments which do not have to cross the border of a country or territory in order to reach the consignee. It would be advisable from the viewpoint of narcotics control if processes altering the nature of drugs while being transported to any destination are under all circumstances prohibited. 7
 

1 See above, comments on paras. 10, 11 and 12.

2 League of Nations. Records of the Second Opium Conference, held at Geneva, 17 November 1924 to 19 February 1925, vol. 1, p. 485, League of Nations, document C.700. M.200.1924.XI.

3 Article 17 reads as follows: "No consignment of the substances covered by the present Convention while passing in transit through the territories of any Contracting Party or whilst being stored there in a bonded warehouse may be subjected to any process which would alter the nature of the substances in question or, without the permission of the competent authorities, the packing".

4 Article 29, para. 1 and comments thereon; see also article 1, para. 1, subpara. (n) and article 2, para. 3 and comments on those provisions.

5 Article 29, para. 2, subpara. (b).

6 See above, comments on paras. 10, 11 and 12.
As they would normally be under rules governing manufacture and use of premises and establishments for this purpose; see above, foot-notes 4 and 5.

Paragraph 14

14. The provisions of paragraphs 11 to 13 relating to the passage of drugs through the territory of a Party do not apply where the consignment in question is transported by aircraft which does not land in the country or territory of transit. If the aircraft lands in any such country or territory, those provisions shall be applied so far as circumstances require.

Commentary

1. Paragraph 14 is intended to reconcile the needs of air transport, which must be rapid and should therefore not be delayed by formalities which are not essential, with the requirements of narcotics control. 1 It would obviously seriously encumber international and interterritorial air navigation if Governments were required to force every aircraft which crosses their territory without any intention to land, to come down in order to be subjected to the controls provided in paragraphs 11 and 12. Such a requirement would also hardly be of much value from the viewpoint of narcotics control, since the cargo of the airplane is controlled in the country or territory of its origin, in that of its destination and sometimes also in countries or territories of transit in which the airplane makes a landing. While airplanes are quite frequently used to drop narcotics in places in which the drugs can be picked up by members of international traffic gangs, an aircraft of a legitimate scheduled or unscheduled line is hardly a place where diversions of this kind can be carried out during the flight without discovery by a member of the crew. Diversion is a greater risk when the aircraft is on the ground, where outside persons often have access to the ship, passengers may disembark, cargo may be unloaded and passengers who continue the voyage may temporarily leave the airplane and be admitted to "transit" rooms. The controls prescribed by paragraphs 11 and 12 may in such a situation in some cases be usefully applied to drug consignments in transit which are carried by the airplane on the ground.

2. The authors of the Single Convention were guided in drafting paragraph 14 by the text of the similar provision of article 15, paragraph 3 of the 1925 Convention; but while that paragraph of the earlier convention does not apply to article 17 of that treaty, which is in substance identical with article 31, paragraph 13 of the Single Convention, the paragraph of the Single Convention under consideration also governs the measures provided in that paragraph 13. This gives rise to some questions: why should processes which would change the nature of drugs in transit normally be prohibited, but be authorized while the drugs are carried by an airplane crossing a country or territory without landing, and even remain permitted, so far as circumstances do not otherwise require, even if the aircraft makes a landing in the course of its voyage? Similarly, why, although it is normally forbidden to change the packing of drugs in transit without permission of the competent authorities, should such permission not be needed for the alteration of the packing while the drugs concerned are in an aircraft which crosses a country or territory without landing? Why should such an authorization also not be necessary, so far as the circumstances do not otherwise require, even if the airplane makes a landing? These incongruities can hardly have been the intention of the authors of the Single Convention; they must be based on an oversight.

3. Fortunately, however, processes changing the nature of the drugs in transit would normally not be permitted under other provisions of the Single Convention 2 whose application is not affected by article 31, paragraph 14. They would normally constitute "manufacture" of drugs or preparations, and could therefore be carried out only by State enterprises selected for that task or by licensed manufacturers, and only in places licensed for that purpose, in any event not in airplanes crossing in transit a country or territory without or with landing. It is also suggested that it would be in accordance with the aims of the Single Convention if Governments would outlaw changes in the packing of drugs carried in an airplane crossing a country or territory with or without landing, or at least exclude the last sentence of paragraph 13 from the application of paragraph 14. They are of course entitled to do so under article 39 which expressly authorizes stricter control measures than those required by the Single Convention.

4. It has been mentioned elsewhere 3 that the 1925 Convention does not contain a provision corresponding to that of article 31, paragraph 10. Article 15, paragraph 3 of the earlier treaty, which-as has been stated above is similar to article 31, paragraph 14, could therefore not exclude from its application a provision which it does not contain. It may be due to the fact that the authors of article 31, paragraph 14 of the Single Convention were guided by the text of article 15, paragraph 3 of the 1925 Convention that they may have overlooked the need to apply the exception in paragraph 14 of article 31 also to the requirement of paragraph 10 of that article. It is suggested that without seriously impeding air transportation, it would hardly be possible to apply paragraph 10 to consignments carried in airplanes crossing a country or territory without landing, and in many cases even if the passing aircraft makes a landing. It would really not be practical to force every airplane in transit to land in order to examine whether it carries drug consignments which are not accompanied by a copy of the export authorization, and should therefore be detained. Such an examination of the aircraft in transit which makes a landing would also often unnecessarily impede air traffic unless circumstances require such an action. It would also not be very meaningful to apply paragraph 14 to paragraph 11 without applying it also to paragraph 10.

5. In fact, it appears to be the general practice of Governments to apply the exception in paragraph 14 also to paragraph 10, and there has been no objection from any Party to such a course of action. It is suggested that there seems to be an understanding of the Parties to the Single Convention to apply paragraph 14 also to paragraph 10. This may hardly be in agreement with the letter of the law, but is undoubtedly in accordance with the aims of the provisions of article 31 governing drugs in transit carried by aircraft.

6. It has been mentioned above that the risk of diversion of drug consignments carried in transit by an airplane is much greater if the plane lands in the country or territory which it crosses than in the case in which it does not do so. The authors of paragraph 14 therefore provided that in some cases certain controls, which they did not require for drugs carried in transit by an airplane crossing a country or territory without landing, should be applied to such air consignments if the airplane makes a landing in the course of its crossing. The nature of the landing is in this connexion legally irrelevant. The last sentence of paragraph 14 applies to any landing, whether made for traffic purposes or not, whether scheduled or unscheduled, and even if forced by an emergency situation.

7. In accordance with what has been stated above, it is suggested that the provisions which should be applied under the conditions of the last sentence of paragraph 14 should include those of paragraph 10 and not those of paragraph 13. The Government of the country or territory of transit should in particular apply the controls 4 involved if it has sufficient reasons for suspecting that a drug consignment carried by the aircraft is being shipped in violation of the rules of the Single Convention governing the international and interterritorial trade in drugs, and particularly if it has good reasons to assume that its action might lead to the discovery of a case of illicit traffic in drugs. It is also submitted that the authorities must carry out the controls in question if the drugs in transit are transferred to another airplane or to another type of vehicle for their transportation to their final destination.

8. It may be noted that even if the suggestion to exclude paragraph 13 from the scope of paragraph 14 is not accepted, the authorities of the country or territory in which the airplane has landed would be in a position to authorize
a change in the packing of the drugs in transit if the damaged state of the package requires the alteration.

9. It is also considered that a Government could very rarely, under the conditions of the last sentence of paragraph 14, permit a diversion of the drugs to a new destination, if for no other reason than that the procedure required by paragraph 12 for the authorization of a diversion could generally hardly be completed in time; 5 but it is moreover suggested that it would normally be ill-advised to authorize a diversion in such a situation.

10. It may also be noted that some airports located in a border region are totally or partially under the control of another Government than that, which is the local sovereign. 5 The authorities in actual control and not those of the State to which the territory of the airport or of the part of the airport belongs, are empowered to take action under the last sentence of paragraph 14.

11. Attention may also be called to the provision of article 29, paragraph (g) of the Chicago Convention of 1944 7 on International Civil Aviation, which requires that aircraft engaged in international navigation should carry a manifest and detailed declaration of the cargo which it carries. These papers will indicate the presence of narcotics consignments in the airplane's freight.

12. It will be noted that paragraph 14 applies not only to consignments carried from one State to another State through a third State, but also to those which are shipped from one territory to another territory of the same State and cross a third territory of that State.

13. The word "territory" in the phrase "through the territory of a Party" means "area", while the same word used subsequently twice in paragraph 14 in the phrase "country or territory" is employed in the sense of its definition in article 1, paragraph 1, subparagraph (y). 8

1 See comments of the International Civil Aviation Organization on article 42, para. 14 of the Third Draft which corresponds to the paragraph under consideration; document E/CONF.34/1, comments on para. 317 and foot-note 31 to those comments; see also Records, vol. II, p. 133.

2 Article 29, para. 1 and para. 2, subpara. (b) together with article 2, paras. 3 and 4 and comments on these provisions; see also the comments on article 31, para. 13. It may be mentioned that if it is assumed that airplanes are subject to the laws of the country or territory over which they fly or in which they land the State enterprises and required licences would have to be those of that country or territory.

3 See above, comments on para. 10.

4 I.e. those of paras. 10-12 of article 31 as suggested above.

5 It is of course possible that the applicant for the diversion has obtained from the Government of the place of new destination the required import certificate, and from the authorities of the country or territory of transit the new export authorization before the aircraft lands; but an application for diversion to the Government which has jurisdiction over the consignment only during the short time in which the airplane remains on the ground would generally be suspect.

6 Records, vol. lI, p. 143.

7 United Nations, Treaty Series, vol. 15, p. 316.

8 See above, comments on that subparagraph.

Paragraph 15

15. The provisions of this article are without prejudice to the provisions of any international agreements which limit the control which may be exercised by any of the Parties over drugs in transit.

Commentary

1. Paragraph 15 reproduces the substance of article 15, paragraph 4 of the 1925 Convention. It frees the Parties from those obligations under article 31 concerning the control of the transit of international drug consignments through their territory which are incompatible with their obligations under other treaties which limit their rights of control over goods, including drugs, in transit. Provisions whose application by transit States may be affected by paragraph 15 are: paragraph 10, requiring the detention of consignments which enter or leave the territory of the transit State without an accompanying copy of the export authorization; paragraph 11, requiring Parties not to permit the passage through their territories of shipments of drugs which are consigned to another country and which are not accompanied by a copy of the export authorization; the first sentence of paragraph 12, requiring Parties through whose territories a consignment of drugs is permitted to pass to take all due measures to prevent the diversion of the consignment to a destination other than that named in the accompanying copy of the export authorization; the right of the State of transit under paragraph 12 to authorize a diversion of the consignment to another destination; the second sentence of paragraph 13, authorizing the country of transit to permit changes in the packing of the consignment; and the second sentence of paragraph 14, requiring Parties to apply "so far as circumstances require" the controls provided by articles 10, 11 and 12 1 to consignments of drugs carried in transit by an aircraft which makes a landing in the course of its passage.

2. Paragraph 15 seems primarily intended to cover a situation in which by an inter-State agreement the transit traffic between a country and its enclave located in the border region of the territory of a neighbouring country is fully or partially exempted from the control of the authorities of the foreign country which it crosses. 2

3. It has also been stated above that an enclave of a State that under the terms of an international arrangement has been placed within the customs boundaries of a foreign State surrounding it might for the purposes of the Single Convention have to be administered as part of the environing State or of one of its "territories". 3

4. It is submitted that paragraph 15 applies only to shipments from one State traversing the territory of another State, and not to the transit of a consignment from one territory through another territory of the same State, whether it is travelling to a territory of the same State or to a foreign country. Only limitations of control over goods in transit which are provided for in "international" agreements, i.e. in interstate agreements, may be taken into account for the purpose of paragraph 15.

5. Such international agreements may free Parties only from the application of those provisions of article 31 regarding the transit of shipments of drugs through their territory to the territory of other States which are incompatible with these agreements. The terms of paragraph 15 cannot authorize Parties to fail to carry out other provisions of the Single Convention which relate to drugs in transit, in particular those requiring them to prosecute and punish acts of the illicit traffic in accordance with articles 35 and 36. A Party whose control over drugs in transit is limited under article 31, paragraph 15 by an international agreement would nevertheless be bound, for example, under article 37 to seize and confiscate such drugs if it has evidence that they are intended for the illicit traffic, or more specifically for the commission of any of the offences referred to in article 36.

6. It is submitted that in applying paragraphs 10 to 12 of article 31 the Parties, in their capacity as coastal States, should not hamper the innocent passage of ships through their territorial waters, over which according to present international law they exercise the right of sovereignty. 4 Ships exercising the right of innocent passage must, however, observe the rules of international law which--it is submitted-also include the rules of the Single Convention which govern the international trade in drugs and their transit through third countries, whose territorial waters are to be considered to be part of their national area. The responsible officers of the passing ships must therefore, inter alia, take all practical measures to prevent their vessels from carrying consignments of drugs which are not duly accompanied by a copy of the export authorization. More generally, they must take all steps which can reasonably be expected from them to make it as difficult as possible for their ships to be used by illicit traffickers for the transportation of contraband. 5

7. It may in particular be noted that among the cases where the coastal State may exercise its criminal jurisdiction on board a foreign merchant ship in the course of its innocent passage through its territorial sea in order to arrest any person or to conduct any investigation in connexion with any crime committed on board the ship during its passage, there is that in which such action is necessary to suppress the illicit traffic in narcotic drugs. 6
 

1 See above, comments on para. 14.

2 Records, vol. II, pp. 133-134 and 143; see also vol. 1, pp. 167 and 170.

3 Within the meaning of article 1, para. 1, subpara. (y); see above, comments on that subparagraph; such an enclave could theoretically also form "a territory" of the surrounding State.

4 See also article 1 and article 15, para. 1 of the Convention on the Territorial Sea and the Contiguous Zone, done at Geneva on 29 April 1958; United Nations, Treaty Series, vol. 516 pp. 205 et seq., in particular pp. 206, 207 and 214. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress; article 14, para. 3 of the Convention, op. cit., p. 214.
See however article 17, third para. of the Statute annexed to the Convention on the International Regime of Maritime Ports, signed at Geneva on 9 December, 1923, League of Nations, Treaty Series, vol. 58, pp. 285 et seq. This paragraph reads in part as follows: "Nothing in this Statute shall affect the measures which one of the Contracting States is or may feel called upon to take in pursuance of general international conventions to which it is a party, or which may be concluded hereafter, particularly conventions concluded under the auspices of the League of Nations, relating to ... the transit, export or import of particular kinds of articles such as opium or other dangerous drugs . . ."; see also Records, vol. II, pp. 133 and 137, referring to opposing practices of Governments on this matter; ports and harbours are, however, considered part of the "inland" ("interior", "national") waters which lie within the base line of the territorial waters; C. J. Colombos, The International Law of the Sea, 4th revised edition, London, Longmans, 1959, pp. 74 and 148.

5 Article 17 of the Convention referred to in foot-note 4; United Nations, Treaty Series, vol. 516, p. 216.

6 Article 19, para. (d) of the Convention on the Territorial Sea and Contiguous Zone referred to in foot-note 4; United Nations, Treaty Series, vol. 516, pp. 216-218; as regards the exercise of civil jurisdiction see article 20 of that Convention, op. cit., p. 218.

Paragraph 16

16. Nothing in this article other than paragraphs 1 (a) and 2 need apply in the case of preparations in Schedule III.

Commentary

For the regime governing preparations in Schedule III, see above, comments on article 2, paragraph 4 and article 31, paragraph 3, subparagraph (a) and subparagraph (b). See also comments on article 19, paragraph 1, sub paragraph (b), article 20, paragraph 1, subparagraph (b) and article 31, paragraph 1. Article 39 refers also to preparations in Schedule III.