Article 35

ACTION AGAINST THE ILLICIT TRAFFIC

General comments

1. In the fight against the illicit traffic, the organs of sovereign nations, which are independent from each other and which often have police services composed of different units of limited local or substantive competence without being subject to the direction of a common central national organ, are frequently facing well-organized international rings of smugglers which have vast financial resources, dispose of rapid and effective means of communication and transportation, have no respect for national borders and are not hampered by legal problems of limited jurisdiction of a particular unit. 1 In order to cope effectively with their tasks, the various government units engaged in the campaign against the international illicit traffic must make arrangements for co-ordination of their activities on the national and international levels and for international co-operation in an expeditious manner. There is moreover need for expeditious international legal assistance in the prosecution of illicit traffickers.

2. The 1936 Convention attempted to provide for these basic conditions of a successful campaign against the illicit traffic by requiring each Party to set up, within the framework of its domestic law, a "central office" which would supervise and co-ordinate all operations necessary to prevent the illicit traffic, would ensure that steps were taken to prosecute the traffickers, and in particular would also be in close contact with other domestic official bodies concerned with narcotic drugs, would centralize all relevant information needed in the campaign against the drug traffic and would be in close contact and correspond directly with the "central offices" of other countries. 2 The Convention also indicated in some detail how the central offices should implement their tasks of international co-operation and mutual information, 3 and how requests for international judicial assistance should be transmitted. 4 Although this Convention permitted Parties which had a federal constitution or a decentralized form of government administration to implement these supervisory and co-ordinating tasks in conformity with their constitutional or administrative systems, 5 a number of Governments were of the opinion that they could not accept these provisions because they could not be reconciled with their own constitutional, legal or administrative principles. This is one of the reasons why the 1936 Convention was accepted only by a relatively small number of countries.

3. The authors of the Single Convention realized that the regime of the 1936 Convention was unacceptable to a good many countries, and that they had to devise a more flexible system of domestic and international co-ordination and of co-operation in the fight against the illicit traffic in order to ensure its general acceptance. They did not, however, wish to deprive the Parties to the 1936 Convention of the advantages which that treaty offered them. That Convention is therefore the only multilateral narcotics treaty preceding the conclusion of the Single Convention which-with the exception of its article 9-is not terminated by the Single Convention as between Parties thereto. 7 The more flexible and general rules of article 35 represent an endeavour to make it possible for all States to accept treaty obligations which are intended to achieve the aims which the 1936 Convention sought to reach in regard to domestic and international co-ordination and co-operation of the governmental units entrusted with the fight against the illicit traffic.

1 Records, vol. I, p. 121.

2 Article 11, paras. 2 and 3 of the 1936 Convention.

3 Article 12 of the 1936 Convention.

4 Article 13 of the 1936 Convention.

5 Article 11, para. 3.

6 There are several others, such as articles 7 and 8 concerning prosecution of crimes committed by nationals or foreigners abroad.

7 Article 44, para. 1 and 2; even article 9 may be continued in force by such Parties as may make a notification to this effect to the Secretary-General of the United Nations.

Introductory paragraph

Having due regard to their constitutional, legal and administrative systems, the Parties shall:

Commentary

1. It will be noted that this provision is introduced by the words "having due regard to", while similar limiting phrases at the beginning of paragraphs 1 and 2 of article 36 commence with the words "subject to". 1 It is submitted that it must be concluded from the clear meaning of these different expressions that they have a different sense. 2 A Party does not have to carry out an obligation under article 36, paragraph 1 or 2 if it is precluded by its Constitution from doing so, and is moreover not bound to take an action required under article 36, paragraph 2 if such action is not compatible "with its legal system and domestic law". 3 It is, on the other hand, hardly imaginable that the implementation of any of the provisions of article 35, paragraphs (a) to (e), defined as they are in very general terms, could be incompatible with the constitutional, legal or administrative system of any State. Freeing Parties from carrying out those provisions of this article which would be inconsistent with such a system would therefore not serve any purpose, and the introductory paragraph of article 35 does not do this. What this paragraph is intended to indicate is the freedom of Parties to choose for the execution of the provisions of article 35 such administrative arrangements, procedures and methods as are in conformity with their constitutional, legal or administrative systems, i.e. "having due regard" to these systems. They are, however, in any event bound to carry out paragraphs (a) to (e).

1 See also the phrase "subject to the provisions of the criminal law" in article 36, para. 3.

2 The Chairman of the Drafting Committee of the Plenipotentiary Conference asked in the Joint Ad Hoc Committee on articles 25 and 44 of the Third Draft (of the Single Convention) whether there was intended to be a difference of meaning between the two expressions. The Joint Committee referred the matter to the Drafting Committee, which did not have any records of its meetings (Records, vol II, p. 259). The Official Records of the Plenipotentiary Conference do not give any indication as to any reply which the Conference may have given to this query of the Chairman of the Drafting Committee.

3 See below, comments on the introductory part of article 36, para. 2.

Paragraph (a)

(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;

Commentary

1. The obligation of Parties to make arrangements on the national level for co-ordination of preventive and repressive action against the illicit traffic is in fact only a special application of their more general obligation under article 17 to maintain a special administration for the purpose of applying the provisions of the Single Convention. Article 15 of the 1931 Convention, whose substance article 17 of the Single Convention is intended to reproduce, 1 expressly assigned to the "special administration" the task of taking all useful steps to suppress the illicit traffic. 2 This close relationship between article 17 and article 35 was fully realized by the Plenipotentiary Conference, which attempted to combine those two provisions in a single article, but finally abandoned that idea. 3

2. The police in a number of countries is not organized on a national level, but functions within the competence of subordinate local governmental entities (provinces, towns, etc.). Even where a national police force is established for the fight against the illicit traffic, local police services which are not subject to the authority of such a national force may have to deal with cases or parts of cases of illicit traffickers. Some arrangements for co-ordination of this police work on the national level is therefore indispensable in both instances, where a central national police force exists for suppression of the illicit traffic as well as where this is not the case. Since the "special administration" required by article 17 is also concerned with coordinating the work of the various national agencies concerned with the functions of narcotics control, both on the national and international levels, the implementation of the co-ordination required by article 35, paragraph (a) may, but need not necessarily, be entrusted to the "special administration".

3. Co-ordination on the national level is essential to co-ordination on the international level. 4 Without it, communications of the international organizations concerned with functions in the field of the illicit traffic or of services of foreign Governments may not, or may only with great delay, reach the proper governmental unit whose assistance is requested or from which information is needed.

4. The arrangements at the national level, whether for co-ordination of all functions of narcotics control or only for that of "preventive and repressive action against the illicit traffic", may take on different forms in different countries, depending on their constitutional, legal and administrative systems. As the "special administration" under article 17, they need not assume the shape of a single governmental authority. They may consist of some system of liaison among the various governmental units concerned, or of periodical joint meetings of the different departments of which the governmental units charged with functions in the field are parts. Permanent interministerial committees may be entrusted with holding such meetings. This task of liaison and co-ordination is, however, performed in many countries by a special unit in one of the national ministries. 5 Such a unit would be an "appropriate agency", 6 whose designation for this task of co-ordination
is recommended by the paragraph under consideration. It is suggested that, where there is no objection to such a measure on constitutional, legal or administrative grounds, this appropriate agency might usefully be a "central office" such as that provided for in the 1936 Convention and responsible for the functions provided for it in that treaty. 7

5. As regards the campaign against the illicit traffic, the required arrangements, whether of an administrative or of a regulatory nature, must ensure the continuous co-operation and exchange of information among the police units concerned in order to facilitate the effective handling of individual criminal cases.

6. All rules of the Single Convention providing for control of production, manufacture and trade are intended to prevent the diversion of drugs into illicit channels, and their implementation therefore represents "preventive" action against the illicit traffic. The treatment of addicts also constitutes "preventive action" in the broad sense of that phrase. The term "preventive action" as used in the paragraph under consideration appears, however, to have a narrower meaning, and to be limited to those measures which are directly concerned with the illicit traffic. Examples of "preventive action" in the sense of paragraph (a) would be the maintenance of lists of suspected traffickers, the communication of information regarding the methods used by traffickers to conceal and to transport drugs, the purchase of police equipment needed for the campaign against the illicit traffic, arrangements to facilitate the common use of such equipment by different police units and the training of enforcement officers.

1 See above, comments on article 17.

2 Article 15, second paragraph, subpara. (c) of the 1931 Convention. Under article 11, paragraph 5 of the 1936 Convention the powers and functions of the "central office" may be delegated to the "special administration" provided for in article 15 of the 1931 Convention. The task provided for in article 35, para. (a) is under the 1936 Convention (article 11, para. 1 and para. 2, subpara. (a) and (b)) entrusted to the central office; see above general comments on article 35.

3 See Records, vol. 1, p. 122; vol. II, p. 40 (United Kingdom amendment, document E/CONF.34/C.4/L.4 and Rev. 1), p. 41 (amendments to the United Kingdom amendment and French draft of a combined article, document E/CONF.34/C.13/L.1/ Rev.l), pp. 249-252 and 253 (decision to separate the two provisions); article 17 of the Single Convention corresponds to article 25 of the Third Draft and article 35 of the Single Convention to article 44 of the Third Draft; Records, vol. II, pp. 10 and 17.

4 Records, vol. II, p. 255.

5 See above, comments on article 17.

6 The Plenipotentiary Conference substituted the words "appropriate agency" for "enforcement agency" contained in the draft which it considered (document E/CONF.34/C.13/L.1/Rev.l, para. 3 (a), Records, vol. II, p. 41), because the agency may have other than enforcement functions; Records, vol. II pp. 254 and 255. This may be the case where the agency is entrusted with other functions of co-ordination in the field of narcotics control than those relating to the illicit traffic. The word "service" in the French text and the term "servicio" in the Spanish text have in this context the same meanings as the English "agency".

7 Articles 11 and 12 of the 1936 Convention; see also above general comments on article 35; see above, foot-note 2, regarding the possibility, under the 1936 Convention, of entrusting the "special administration" with the functions of the "central office".

Paragraphs (b), (c) and (d)

(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;

(c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;

(d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and

Commentary

1. The provisions of paragraphs (b), (c) and (d) requiring Parties to assist each other and to co-operate closely with each other in the fight against the illicit traffic present special cases of the general rule laid down in para graph (b) of article 4, which provides that Parties should "co-operate with other States in the execution of the provisions" of the Single Convention. 1

2. Paragraph (b) provides for mutual assistance of Parties, while paragraph (c) requires inter alia their co-operation. It is not easy to find in this context a difference of meaning between the expressions "assist each other" and "co-operate" .2 Paragraph (b) formulates the general obligation of Parties to "assist each other", i.e. to co-operate in the fight against the illicit traffic, while paragraph (c), in the part which deals with co-operation among Parties, applies this general obligation to a special facet of that fight, namely to the need of maintaining "a co-ordinated campaign against the illicit traffic". As became evident under the regime of the earlier narcotics treaties, such a campaign needs a structure of permanent international organization. In order to enable them to wage a co-ordinated campaign, paragraph (c) requires Parties not only to co-operate for this purpose closely with each other, but also with the competent international organizations of which they are members.

3. The term "international organizations" covers intergovernmental as well as non-governmental bodies. When using this term, the Plenipotentiary Conference had certainly in mind the International Criminal Police Organization (INTERPOL). 3

4. It was clearly the intention of the Plenipotentiary Conference that Parties which are not Members of the United Nations should be bound to co-operate with this Organization, which is the principal competent inter national body in this field. Several representatives therefore expressed the opinion that the term "competent international organizations" as used in paragraph (c) did not refer to the United Nations, but only to "specialized agencies" 4 and to non-governmental organizations and the International Criminal Police Organization. The Executive Secretary of the Conference pointed out, however, that in the context of this paragraph this term did include the United Nations. 5

5. It is submitted that the opinion of the Executive Secretary is correct, since the United Nations is undoubtedly "a competent international organi zation" in the field of the international fight against the illicit traffic. It is, however, apparent that under article 5, by which the Parties recognize the competence of the United Nations with respect to the international control of drugs, all Parties, whether Members of the United Nations or not, are bound to co-operate with that Organization for all purposes of the Single Convention, including that of "maintaining a co-ordinated campaign against the illicit traffic" pursuant to article 35, paragraph (c). It follows that whatever may be the correct interpretation of the term "competent international organizations" in this paragraph, Parties may never refuse the co-operation provided for in this provision with the United Nations, but only with other "competent international organizations" of which they are not members.

6. The text of the paragraphs under consideration refers only to cooperation of Parties. s In view of article 4, paragraph (b), requiring the Parties to co-operate with other "States", whether Parties or not, in the execution of the provisions of the Single Convention, it is, however, evident that Parties must be ready to give the assistance and co-operation mentioned in article 35, paragraphs (b), (c) and (d) not only to other Parties, but also to non-Parties.

7. As under article 4, paragraph (b), the question arises also under paragraphs (b) and (c), and in particular under paragraph (b) of article 35, whether granting technical aid to countries which need it in order to be able to participate effectively in the international campaign against the illicit traffic constitutes a legal obligation. Whatever the answer to this question may be, there cannot be any doubt that rendering such technical assistance would be in the spirit of paragraphs (b) and (c) of article 35. 7

8. It follows in particular from the obligation to assist each other and to co-operate in the fight against the illicit traffic that Parties are bound to make all efforts within their power to prevent their territory from becoming
a base of operation of the illicit traffic in other countries, or a place of refuge of drug smugglers. 7

9. The term "appropriate agencies" in paragraph (d) does not have the same meaning as the same expression used in the singular in paragraph (a). It cannot be assumed that the authors of the Single Convention intended to impose the obligation provided in paragraph (d) only on those Parties which have chosen to designate "an appropriate agency", within the meaning of that term in paragraph (a), s for co-ordinating on the national level preventive and repressive action against the illicit traffic. It will be recalled that such designation is not mandatory. s It is therefore submitted that all Parties, whether or not they have made the designation pursuant to paragraph (a), are bound under paragraph (d) to ensure that international co-operation between their services in question-whatever may be their form-shall be conducted in an expeditious manner, and that the expression "appropriate agencies" as used in this paragraph covers not only the special Government unit designated for the purpose of domestic co-ordination pursuant to paragraph (a) but also any Government service which deals with the particular problem or case of illicit traffic which forms the object of the required international co-operation.

10. The expression "in an expeditious manner" used in paragraphs (d) and (e) is rendered in the French text by the phrase "par des voles rapides"; s but what is required under paragraph (d) is not only the choice of an expedi tious means of communication between the co-operating services of different countries, but also-whatever means of communications may be employedthat the question which requires international co-operation should be "expeditiously" handled, i.e. be given urgent attention by the Government services concerned. The method of communication which would have to be chosen by a Government as "expeditious" for the purposes of assistance and co-operation pursuant to paragraphs (b), (c) and (d) depends, in accordance with the introductory paragraph, on its constitutional, legal and administrative systems. It is, however, suggested that where such a course of action is compatible with these systems of the Parties concerned, direct correspondence between the enforcement services of the co-operating countries in a particular matter of the illicit traffic would very often be an "expeditious manner" of co-operation. In a country which has designated an "appropriate agency" in the sense of paragraph (a), this Government unit should be the agent of such correspondence. Personal contacts between officers of the co-operating services may also quite frequently serve the same purpose of expeditious action, 10

11. Provision for direct correspondence and such personal contacts would contribute to making the co-operation "close" as required by paragraph (c).

12. Where the enforcement services are not familiar with the organizational structure of a foreign country whose co-operation they need, or have not had earlier contacts with the services of that country with which they have to communicate, requesting the International Criminal Police Organization to act as intermediary may sometimes be an "expeditious manner" of handling a case of illicit traffic. It is finally suggested that, wherever possible, diplomatic channels should be avoided for transmission to foreign enforcement services of communications concerning cases of illicit traffic.

 

1 See above, comments on article 4. It will be noted that the text of article 4, para. (b) covers also co-operation with non-parties, while that of article 35 refers only to Parties.

2 It does not seem that the Plenipotentiary Conference intended such a difference. It is not true that the phrase "assist each other" covers unilateral as well as common actions, while the phrase "co-operate" refers only to common actions. Both expressions may be used to refer to unilateral as well as common actions taken in the course of mutual assistance or co-operation.

3 Records, vol. II, p. 254; see also above, comments on article 32, para. 2; and Council resolution 1579 (L).

4 A "specialized agency" which may be "a competent international organization" within the meaning of para. (c) may include the Universal Postal Union; see above, comments on article 31, para. 8.

5 Records, vol. II, p. 254.

6 See also above foot-note 1.

7 See above, comments on article 4.

8 See above, comments on article 35, para. (a).

9 In the Spanish text by the phrase "en forma expedita".

10 See also article 11, para. 2, subpara. (c) of the 1936 Convention, which provides that the "central office" of a Party should be in close contact with, and be authorized to correspond directly with, the central offices of other countries; see also article 12 of that Convention.

Paragraph (e)

(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel.

Commentary

1. Paragraph (e) does not by itself establish a legal obligation for a Party to render international judicial assistance which may be requested in regard to a legal paper by another Party. It requires only that where legal papers relating to cases of illicit traffic are transmitted from one Party to another in accordance with the rules regulating their relations in matters of legal assistance, the transmission should be done in an expeditious manner. Such relations may be based on treaties, or on the law of the Parties giving each other judicial assistance in criminal cases. It is suggested that it would accord with the obligation of Parties to co-operate pursuant to paragraphs (b), (c) and (d) for them to make provision for such assistance in cases of the illicit traffic, either by conclusion of treaties, or by making where necessary the required revisions in existing treaties concerning international legal assistance, or by enacting the laws necessary for this purpose.

2. The term "legal papers" covers not only requests for judicial assistance, 1 but also documents in which the authorities of the country which has been asked for aid report on the results of the international judicial assistance which has been rendered, e.g. records of the requested evidence which has been taken. The term appears also to refer to requests for the arrest of a person whose extradition is demanded, 2 and to replies to such requests.

3. The expression "for the purposes of a prosecution" is to be understood in a broad sense, and as including any judicial action in matters of the illicit traffic, no matter whether such action has been initiated by a public prosecutor or a court. 3 It also includes cases in which the illicit traffickers cannot be prosecuted, 4 and in which the court is called upon to decide only on the seizure and confiscation of drugs or of other substances or equipment used in or intended for the commission of offences of the illicit traffic. 5

4. The obligation to transmit legal papers "in an expeditious manner" requires Parties not only to choose an expeditious method of transmission, but also, whatever way of transmission is adopted, to act promptly. In providing for methods of transmission Parties may have due regard to their constitutional, legal and administrative systems, in accordance with the introductory paragraph of article 35. 6 It may be mentioned in this connexion that the method of transmission may be regulated in treaties in force between the Parties concerned in regard to international legal assistance.
It is suggested that it would be in accordance with paragraph (e) if Parties, in respect of legal papers regarding cases of illicit traffic, provide in such treaties for the most expeditious mode of transmission which is compatible with their respective constitutional, legal and administrative systems.

5. Parties must communicate to each other which "bodies" they have designated for the receipt of foreign legal papers. Knowledge of the foreign authority to which the documents should be addressed will also contribute to the speed of transmission.

6. Treaties on international legal assistance sometimes provide that the competent public prosecutors or courts of Parties may communicate directly with the competent prosecutors or courts of other Parties on matters of international legal assistance. Channelling the legal papers through "appropriate agencies" designated pursuant to paragraph (a) of article 35 may be another expeditious way of transmitting legal papers. 8 It may also be useful in this connexion if the prosecutor or court concerned is authorized to correspond directly with the Minister of Justice of the country whose legal assistance is needed. Providing for direct communication between the Ministers of Justice of the two countries concerned may also quite frequently present a quicker way of transmitting legal papers than the use of diplomatic channels; 9 but paragraph (e) expressly states that it does not affect the right of a Party to require that these documents be addressed to it through such channels. 10

7. In view of the provision of article 4, paragraph (b) requiring Parties to co-operate also with non-parties in the implementation of the Single Convention, it is submitted that Parties should apply article 35, paragraph (e) also to the transmission of legal papers to non-parties.

8. For a provision in an earlier narcotics treaty dealing with the subjectmatter of paragraph (e), though in much more detail and differently but for the same purpose of achieving as far as possible an expeditious transmission of legal papers, see article 13 of the 1936 Convention.

1 "Lettres rogatoires"; commissions rogatoires; "letters of request"; see article 13 of the 1936 Convention.

2 See also article 36, para. 2, subpara. (b).

3 The French text renders this expression by the phrase "pour la poursuite d'une action judiciaire", and the Spanish text by the phrase "para una accion judicial"; both the prosecutor and the court may of course also act on the basis of a motion of the defendant.

4 E.g. because they or their residence are not known or because they are not criminally responsible on grounds of insanity.

5 This procedure is sometimes called "objective procedure"; see also article 37.

6 See also above, comments on para. (d).

7 In regard to requests for extradition in extradition treaties.

8 See also article 13, para. 1, subpara. (a) of the 1936 Convention.

9 See also article 13, para. 1, subpara. (b) of the 1936 Convention.

10 See also article 13, para. 2 of the 1936 Convention; see also para. 1, subpara. (c) and para. 3 of the same article; see also Records, vol. II, pp. 249-250.