Article 36

PENAL PROVISIONS

General comments

1. Widely different moral, religious and cultural traditions are reflected in the differences which distinguish the systems of substantive and procedural penal law of individual nations and of groups of culturally related nations. It is therefore extremely difficult, and in some respects even impossible, to establish universally acceptable international rules to be implemented in the national penal systems. Attempts to overcome these difficulties have been made by adopting international provisions which are broad enough to leave room for national differences and are therefore rather vague, and by admitting escape clauses for the benefit of those Governments to which even such vague norms would be unacceptable. This was done in the 1936 Convention as well as in article 36 of the Single Convention. 1 This article even contains a provision which is not obligatory, but has only the character of a recommendation. 2

2. Some of the difficulties which arise in connexion with the establishment of general international rules concerning national penal laws may be mentioned. The definitions of crimes differ in different national penal systems. What is considered to be a punishable offence in one country may cover activities which are elsewhere the substance of two or more definitions of crimes, or may even include some behaviour which is not subject to penal sanction in other countries. The various forms of participation in crimes (instigation (incitement), organization, actual execution, 3 counselling, abetting, etc .) 4 are also included in different categories in different countries. Divergent views are also held in different countries as regards the stage at which the preparation or commencement of an uncompleted offence should generally become punishable. "Preparatory acts", "attempts" and "conspiracy" therefore assume a different position in different legal systems. Moreover, the degree of severity of penal sanctions required to achieve their socially desirable effect is also not the same in different national societies.

3. The grounds on which countries assume jurisdiction in penal matters are also not uniform. The principle of territoriality, according to which States assume jurisdiction over crimes committed on their territories, is universally applied. A great number of countries also prosecute all, or only major, crimes committed by their nationals abroad (principle of nationality). Nations attempt to protect some of their major interests by trying a few crimes (e.g. forgery of their currency) committed abroad by their nationals or by foreigners (principle of protection). All countries prosecute piracy wherever committed, without regard to the nationality of the pirates (principle of universality). A considerable number of States also assume jurisdiction over some crimes committed abroad by foreigners who are found on their territories and who cannot be extradited to a country having jurisdiction (subsidiary application of the principle of universality); but a number of States, as general principle, limit their jurisdiction to crimes committed on their own territories, and with very few exceptions do not prosecute offences perpetrated abroad, whether by their own nationals or by foreigners. They are guided in this by the consideration that the trial of crimes committed abroad would generally not be conducive to the best administration of justice, and might prevent the defendants, for financial or other reasons, from obtaining witnesses or other evidence needed for their exculpation. 5 This divergence of views concerning the grounds on which criminal jurisdiction may be exercised in various countries has the result that offenders who happen to be in countries other than in those in which they carried out their misdeeds quite often escape prosecution and punishment.

4. It may finally be mentioned that some countries, i.e. those which generally limit their jurisdiction to crimes perpetrated on their territories, are willing to extradite on a reciprocal basis their own nationals to countries in which the offences in question were committed, while many others as a matter of strict principle, and often of their constitutional law, never extradite their own citizens.

5. Article 36 deals with the subject-matter covered in articles 2, 4, 5,
6, 7, 8, 9, 14 and 15 of the 1936 Convention. 6 Since that Convention was accepted only by a relatively small number of countries, article 36 takes into account the divergent positions of different countries on matters of penal law to an even greater extent than the provisions of the earlier treaty. Its terms are therefore broader and more flexible, and their binding character even weaker.

6. As far as possible under the complex conditions of different national views on principles of criminal law and jurisdiction, article 36, like the above mentioned provisions of the 1936 Convention, tries to ensure that all activities of the illicit traffic and all forms of participation in such activities not only the' principal offenders but also their accomplices, will be prosecuted, that activities of the illicit traffic will be subject to penal sanctions even if they have not been completed 7 (preparatory acts, conspiracy and attempts), that criminals will not escape prosecution and punishment on the technical ground of lack of local jurisdiction in the country in which they are found, and that the penal sanctions will be adequate for the purpose for which they are imposed by society, i.e. in particular for a deterring effect.

7. Article 36 is not one of the provisions which do not apply to preparations in Schedule 111. Illicit traffic in such preparations is therefore governed by the terms of this article. 3 "Illicit traffic" in leaves of the cannabis plant when not accompanied by the tops is, however, not subject to article 36 because the leaves are not drugs. 9

8. No provision of article 36 is self-executing in countries where constitutions provide for that effect of treaty provisions. 10

1 This has also been done in other treaties dealing with penal law; document E/CN.7/AC.3/4/Rev.l, paras. C 415-C 417.

2 Para. 2, subpara. (b).

3 Records, vol. II, p. 238, statement of the representative of the USSR.

4 Document E/CN.7/AC.3/3, para. 291.

5 Records, vol. I, p. 123.

6 As regards the continued application of the 1936 Convention between States which are simultaneously Parties to that Convention and to the Single Convention, see above, general comments on article 35 and article 44, para. 2.

7 "Uncompleted forms" of offences of the illicit traffic; see amendment proposed by the Netherlands to article 45 of the Third Draft, document E/CONF.34/L.5; Records, vol. II, p. 46.

8 Article 2, para. 4.

9 Article 1, para. 1, subpara. (b) and comments on article 28, para. 3. 10 Article 36, para. 4.

Paragraph 1

1. Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

Commentary

1. The enumeration in paragraph 1 of the activities which should be penalized very closely follows that of article 2, paragraph (a) of the 1936 Con vention. 1 In order to make sure that all activities coming under the general heading "illicit traffic" 2 would be covered by paragraph 1 and that any gap which may exist in the list in that provision, 3 not only the actions specifically mentioned but "any other action which in the opinion of `a Party' may be contrary to the provisions" of the Single Convention must be treated by that Party as a punishable offence in accordance with the terms of article 36. While it is left to the judgement of each Party to determine what action not specifically mentioned in paragraph 1 is contrary to the provisions of the Single Convention, it may be noted that this paragraph, like the other provisions of the Single Convention, must be implemented in good faith. 4

2. Only those of the activities mentioned in paragraph 1 which are "committed intentionally" fall within the scope of this paragraph, and conse quently within that of the other provisions of article 36. This limitation applies to the activities specifically listed in paragraph 1 as well as to those which are included by the general definition. Actions which are not taken wilfully or knowingly, but only as a result of "negligence", are therefore not subject to the provisions of article 36. 5 Governments will, however, find it necessary to punish unintentional violations of their narcotics laws and regulations if due to culpable negligence.

3. Some of the activities mentioned in paragraph 1 may not be considered to be those of "principal actors" as this term is understood in some penal codes, but only as forms of "participation" as defined in paragraph 2, subpara graph (a), clause (ii), and would therefore also be punishable under the terms of that clause.

4. The activities mentioned in paragraph 1 must also be made punishable offences if they deal with preparations including preparations in Schedule III. c

5. The term "manufacture" as used in the paragraph under consideration also covers activities referred to as "extraction" 7 or "preparation". The inclusion of all three of these terms is obviously due to the fact that the authors of paragraph 1 followed closely the text of article 2, paragraph (a) of the 1936 Convention.

6. The transformation of drugs into substances not covered by the Single Convention does not appear to be "manufacture" as this term is used in this context. s

7. It will be noted that paragraph 1 does not refer to "use". As has been pointed out elsewhere, ° article 36 is intended to fight the illicit traffic, and unauthorized consumption of drugs by addicts does not constitute "illicit traffic". 10

8. As regards the view that the term "possession" in the context of paragraph 1 does not include possession for personal consumption, and that in any event Parties which do not share that view need not consider possession for personal consumption to be a "serious" offence punishable by imprisonment or other penalties of deprivation of liberty, see comments on article 4, paragraph (c). 11

9. Paragraph 1 requires "adequate" punishment of the offences which it covers if they are serious. The Plenipotentiary Conference did not accept by the required two-thirds majority a proposal to require "severe" punish ment. 12 The opponents of the word "severe" invoked the considerations that the degree of severity of a penal sanction required in different countries to achieve its social purpose might differ widely; that what could be an adequate penalty in one State might not be considered to be severe in another State; and that the word "severe" carried overtones of "retribution", which was one of the purposes of penal law which should not be emphasized. 13 It is, however, submitted that in order to be "adequate" for the fight against serious offences of the illicit traffic, the penalties must be sufficiently severe to have the desired deterring effect under the special conditions of the country in which they are imposed. This idea is also embodied in the requirement that the "adequate punishment" should be meted out "particularly by imprisonment or other penalties of deprivation of liberty". The imposition of fines alone would in no case constitute an "adequate" punishment for serious offences of the illicit traffic.

10. The term "imprisonment" in its broad sense covers all penalties of deprivation of liberty. By following the introductory paragraph of article 2 of the 1936 Convention in including the whole phrase "by imprisonment or other penalties of deprivation of liberty", the Conference appears to have made it clearer that not only confinement in an institution which is technically a prison, but also that in other places such as labour or "re-education" camps, constitutes an "adequate" penalty as required by paragraph 1 of article 36.

11. It will be noted that the obligations of Parties under paragraph 1 are subject only to their "constitutional limitations", while those under paragraph 2 are subject to their constitutional limitations, their legal system and domestic law. 14

12. The question arises whether a federal State is relieved from obligations under paragraph 1 if it is unable to enact the required penal legislation on account of lack of authority under its federal constitution to do so. This question should be answered in the negative. A Party is in such a case bound to obtain the necessary action by the legislatures of its component states or provinces which have jurisdiction in matters of penal law.

13. The Secretariat of the United Nations is not aware of any constitutional limitations which would prevent a Party to the Single Convention from implementing article 36, paragraph 1, by national or local legislative actions.

14. For a corresponding provision in the narcotics regime preceding the Single Convention, see introductory paragraph and paragraph (a) of article 2 of the 1936 Convention.


 

1 The list of 1936 does not include "cultivation" and "production", which at the time of the conclusion of the 1936 Convention were not yet subject to a comprehensive regime of international control. See, however, article 5 of that Convention relating to Parties which have such a national regime; this list includes "conversion", which in so far as it relates to the transformation of drugs into other drugs, is covered by the term "manufacture" as defined in article 1, para. 1, subpara. (n) of the Single Convention. See also above, comments on that provision.

2 Records, vol. 11, p. 236.

3 Records, vol. 11, p. 238.

4 See also above, comments on article 2, para. 5, article 22 and article 24, para. 1, subpara. (b).

5 Records, vol. II, p. 235.

6 Article 2, paras. 3 and 4. The terms "cultivation" and "production" of course cannot refer to preparations; article 1, para. 1, subparas. (i), (s) and (t).

7 The extraction of cannabis resin from the cannabis plant may, however, also be "production"; article 1, para. 1, subparas. (d) and (t).

8 Article 1, para. 1, subpara. (n) and comments on that subparagraph.

9 See above, comments on article 4, para. (c).

10 Article 1, para. 1, subpara. (1). 11 See also comments on article 33.

12 Records, vol. I, p. 147; see also vol. II, p. 239. The introductory paragraph of article 2 of the 1936 Convention requires "severely punishing".

13 Records, vol. II, pp. 234-239; see also above general comments on article 36.

14 As regards this difference in the "escape clauses" of the two paragraphs, see Records, vol. II, pp. 236-237 (statement of the representative of Canada who was Chairman of the Drafting Committee of the Plenipotentiary Conference).

Paragraph 2, introductory subparagraph

2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

Commentary

1. The introductory subparagraph appears to apply to subparagraph (b) as well as to subparagraph (a). It is, however, suggested that its application
to subparagraph (b) is hardly meaningful. This subparagraph is only a recommendation, and the treatment of the problem of extradition suggested in it would in any event be "desirable" whatever may be the constitutional limitations and the objections based on grounds of the "legal system" and the "domestic law" in question. The phrase "it is desirable that" was proposed in a text of paragraph 2 which already contained the introductory subparagraph in its present form, and the need to restrict the application of this subparagraph to subparagraph (a) was obviously overlooked. 1

2. As regards the meaning of the term "constitutional limitations", see above comments on article 36, paragraph 1, in which it is submitted that lack of authority under a federal constitution would not free a Party from the obligation to adopt the required measures if the States or provinces composing the federal State in question have the necessary powers.

3. The term "domestic law" needs some consideration. It can obviously not have been the intention of the authors of the Single Convention to require the Parties to implement only those provisions of subparagraph (a) which are already provided for in their respective domestic laws. The Parties are not exempted from the obligation to take any legislative action by this subparagraph. What seems to have been the purpose of subjecting subparagraph (a) to the "domestic law" of each Party is that Parties need not change their legal notions of intentional participation, conspiracy, attempts or preparatory acts in implementing this subparagraph. A Party need not take into account foreign convictions for the purpose of establishing recidivism if its penal law does not provide for doing so in respect of other crimes. It also need not prosecute pursuant to subparagraph (a), clause (iv) actions of illicit traffic committed abroad if its law generally limits its criminal jurisdiction to offences committed in its own territory, although it may provide for some exceptions. Moreover, it is not required by subparagraph (a), clause (i) to consider offences enumerated in paragraph 1 as distinct crimes if committed in different countries to the extent that doing so would be incompatible with the prohibition of double jeopardy in its domestic law. 2

4. It is admitted that if the subjection of the obligations of Parties under paragraph 2 to their "domestic law" is understood as here suggested, the term "domestic law" would in this context not have a very different meaning from the phrase "legal system", which is a broader term 3 which may be understood to refer to the basic principles governing the law of the Party concerned. It may be assumed that by using both terms the authors of the Single Convention intended to grant the Parties a somewhat greater freedom of action than would be the case if the implementation of paragraph 2 were subjected only to the "legal system" of each Party concerned. It appears therefore that Parties need implement provisions of paragraph (a) only to the extent and in the manner that such implementation is compatible not only with their basic legal principles, but also with widely applied concepts of their domestic law. The exact dividing line between these two limitations of the obligations of Parties may, however, very often be difficult to draw.

5. The subjection to the domestic law of the Parties means of course also that the provisions of paragraph 2 need not be directly implemented, but only in accordance with the domestic laws and regulations enacted to carry them out. 4 This is more specifically laid down in paragraph 4 of article 36.
 

1 Document E/CONF.34/C.12/L.1/Rev. 1, Records, vol. II, pp. 48, 236, 242, 243 and 244.

2 Records, vol. II, p. 240.

3 Records, vol. I, p. 146 (statement of the Legal Adviser).

4 Article 4, introductory paragraph.

Paragraph 2, subparagraph (a), clause (i)

(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

Commentary

1. Two or more of the actions referred to in paragraph 1 as offences may be elements of a single crime as defined in the penal law of a Party; for example, purchase, possession, transportation and sale of narcotic drugs may constitute a single crime of illicit traffic in narcotic drugs. Dispatch of such drugs by another person than the buyer and seller of the drugs, or serving as middlemar in such a transaction (brokerage), may be considered in national penal laws to be acts accessory to the principal crime of illicit trade in drugs. The jurisdiction in respect to accessory acts may, however, in some cases belong only to the court which is competent in regard to the principal act. If the above-mentioned acts are committed in different countries and are consequently considered as distinct offences, each of these countries would have jurisdiction, on the basis of the universally accepted principle of territoriality,) over those of the acts which were committed on their respective territories. The middleman who did not handle the drugs himself could be prosecuted and punished in the country in which he acted as broker, even though the drugs were neither purchased nor sold in that country nor transported through it. He could not escape prosecution by claiming that his action was accessory to the crime of purchase or sale of the drug, which was subject only to the jurisdiction of the countries in which these principal acts took place.

2. The purpose of clause (i) is not to ensure the cumulative punishment of offences mentioned in paragraph 1 which form elements of a single crime of illicit traffic and are committed by the same person in different countries. It is not intended to violate the principle non bis in idem (prohibition of double jeopardy), 2 or to interfere with the different rules existing in different countries on the subject of punishment of "ideal" or "real" cumulation or concurrence of crimes. 3 Such an interpretation is excluded by the provision of the introductory subparagraph of paragraph 2, subjecting this paragraph to the "domestic law" of each Party. The purpose of clause (i) is to give the courts of a country the necessary territorial jurisdiction in cases where they might not otherwise possess it, and in particular to ensure that a country shall have territorial jurisdiction over accessory acts even though the principal acts were not committed in its territory and even though it in general assigns jurisdiction over accessory acts to the courts in whose districts the principal acts were committed. 3

3. Clause (i) reproduces the subject matter and follows closely the text of article 4 of the 1936 Convention.

1 See above, general comments on article 36.

2 See above, comments on article 36, para. 2, introductory paragraph. Some countries prosecute crimes which their nationals committed abroad and for which they already have been convicted by foreign courts. In meting out the punishment,
such countries however take into account the prison terms actually served by those nationals in accordance with their foreign convictions.

3 Records, vol. II, p. 241.

Paragraph 2, subparagraph (a), clause (ii)

(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

Commentary

1. The term "intentional participation" covers all kinds of complicity and accessory acts, which may in different countries be divided into different categories. 1

2. "Attempts" at crimes are generally recognized as constituting a punishable form of uncompleted crimes. A crime is very often considered to have been "attempted" only after its execution has actually commenced. Purchase of a gun with the intention of committing a murder would on this view not yet constitute "attempted murder". Equally, inquiries about prices of drugs on the illicit market with the intention of buying them for illegal trade would not yet represent an "attempt" at illicit drug traffic. But some countries' penal law makes a broader definition of "attempt", and actions such as those just mentioned would there constitute an attempted crime. 2 Since the obligations under clause (ii) are subject to "domestic law", Parties are not required to change their legal definition of "attempt" at crime in order to carry out their commitment under this provision.

3. In some legal systems not all attempts at offences are punishable, but
only those at the more serious ones. 3 Parties in this position would-it is submitted-have to treat as punishable crimes, attempts at all the serious offences which under paragraph 1 would be liable to "adequate punishment".

4. "Preparatory acts" are steps which are taken for the purpose of committing a crime, but which do not yet constitute the commencement of the actual execution of the intended crime, and consequently are not "attempts" as defined in the penal law of many countries. They are generally not subject
to penal sanctions. Some countries, however, punish preparatory acts under taken with the intention of committing a few of the most serious crimes. It is suggested that the serious offences referred to in paragraph 1 should under present conditions be considered to be among the gravest crimes.]

5. "Conspiracy" is in many countries not a general category of punishable behaviour, 4 but is only considered to be a "preparatory act", and is subject to penal sanctions only in the case of the few grave crimes of which the preparatory acts are punished;,' the penal laws of some of these countries while generally considering conspiracy to be a preparatory act, also specifically provide for the punishment of conspiracy if entered into to commit a few expressly indicated very serious offences. 6

6. Parties whose "domestic law" provides in general for the punishment of "conspiracy" to commit crimes would also have to subject to penal sanctions a "conspiracy" i.e. a "combination or confederacy (or agreement) between two or more persons formed for the purpose of committing by their joint efforts" any of the offences referred to in paragraph 1. 7

7. It is suggested that if their domestic law provides penalties for conspiracy either as a separate category of criminal behaviour or as a form of "preparatory act" only in respect of some serious crimes, Parties should also punish conspiracy to commit any of the offences mentioned in paragraph 1, if serious, since-as has been indicated above-such serious offences must at present be considered to be very grave crimes. It would, however, in such cases be within the discretion of Parties to subject to penal sanctions either expressly "conspiracy" or "preparatory acts" which would have to include what is meant by the technical term "conspiracy".

8. "Financial operations in connexion with the offences referred to in this article" are punishable only if they are intentional, 8 i.e. if the operators are aware of the relation of their actions to these offences. They constitute either intentional participation, conspiracy or preparatory acts, and would under the conditions of the introductory subparagraph of paragraph 2 be punishable as such participation, conspiracy or preparatory acts even if they were not specifically mentioned in clause (ii). s The express reference to "financial operations" serves, however, the useful purpose of calling the attention of the Parties to the fact that this kind of operation may constitute such forms of criminal behaviour.

9. All forms of criminal behaviour referred to in clause (ii), if they are punishable under the introductory subparagraph of paragraph 2 and if they relate to serious offences, must be made liable "to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty". 10

10. To sum up the contents of clause (ii), it may be said that it covers all kinds of instigation and incitement (incitation), accessory acts and forms of uncompleted crimes.

11. Clause (ii) covers the subject matter dealt with in article 2, paragraphs (b), (c) and (d) of the 1936 Convention.

1 See also above, general comments on article 36.

2 Many countries have adopted an "objective" theory of attempt and some a "subjective" theory.

3 Records, vol. 1, p. 123.

4 It may be for this reason that the French text does not use the term "conspiration", but the phrase "1'association ou l'entente en vue de la commettre" (i.e. 'Tune quelconque desdites infractions") and that the Spanish text does not employ the words "conspiracion" or "complot" but the phrase "la confabulacion para cometer cualquiera de esos delitos".

5 "Conspiracy" may also be a principal criminal act if it is entered to commit an act which is innocent in itself, but which to conspire to do is unlawful.

6 Records, vol. 1, p. 123.

7 Black's Law Dictionary, Revised Fourth Edition, West Publishing Co, St. Paul, Minnesota, 1968, pp. 382-383.

8 Records, vol. 11, p. 235.

9 Records, vol. II, p. 236.

10 Article 36, para. 1 and comments thereon; the Spanish text does not expressly state that the actions referred to in clause (ii) shall be "punishable" offences as do the English and French versions. It uses the phrase "se consideran como delitos, tal como se dispone en el inciso 1". It follows, however, from the context that it has the same meaning as the two other language versions.

Paragraph 2, subparagraph (a), clause (iii)

(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

Commentary

1. "Recidivism" is considered in national penal laws an aggravating circumstance, and quite often a condition for applying measures of social defence specifically provided for habitual criminals. Where the "domestic law" 1 does not permit the taking into account of foreign convictions in formally establishing "recidivism", its provisions concerning aggravating circumstances would often be broad enough to cover such conviction.

2. See article 6 of the 1936 Convention for a corresponding provision of the narcotics regime preceding the Single Convention.

1 Para. 2, introductory subparagraph.

Paragraph 2, subparagraph (a), clause (iv)

(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

Commentary

1. In a number of countries whose penal law limits, as a matter of general principle, the jurisdiction of their courts to crimes committed within their national boundaries, there are particularly strong feelings against the prosecu tion of crimes committed abroad, no matter whether by foreigners or nationals. 1 These countries consider that the trial of such crimes is incompatible with sound principles of administration of justice because the accused may in such cases have considerable difficulties in defending themselves. 2 It was certainly the understanding of the Plenipotentiary Conference that countries whose domestic law places a strong emphasis on the value of the principle of territorial jurisdiction would in view of the introductory paragraph of paragraph 2 not be legally bound by clause (iv) to prosecute offences committed abroad.

2. But all countries which adhere strongly to the maxim that in general crimes committed abroad should not be tried by their courts make an exception in the case of piracy, which they prosecute no matter where the crime was committed. As far as the United Nations secretariat is aware, all of these countries also make an exception in certain other cases, and prosecute a few crimes which they consider particularly harmful to their national interest such as forgery of currency or public bonds, 3 even if the offences in question were committed outside of their national boundaries.

3. It is suggested that, in view of the deterioration of the international drug situation since 1961 when the Single Convention was concluded, the Governments concerned may at present find the prosecution of serious offences of illicit traffic committed abroad much less objectionable on grounds of principle than they did then, and therefore may consider it justified to include these offences among their exceptions to the principle of territorial jurisdiction in criminal matters. The view may also no longer be generally accepted that the subjection of the application of clause (iv) to the "domestic law" pursuant to the introductory subparagraph of paragraph 2 still justifies a refusal to prosecute, under the conditions of clause (iv), serious offences of the illicit traffic committed abroad, since the domestic law of the countries involved-like that of all countries-permits the trial of particularly dangerous crimes committed abroad, and a serious offence of illicit traffic in narcotics must now be considered to be such a crime.

4. Clause (iv) gives some preference to the jurisdiction of the country in which the crime is committed, and also to that of the nationality of the offender if it is ready to prosecute crimes wherever committed by its nationals, since it provides that serious offences of illicit traffic committed abroad should be prosecuted "if extradition is not acceptable in conformity with the law of the Party to which application is made". 4 The text does not appear to cover cases in which application is made to a non-Party, or in which the country to which application is made refuses to accept the extradition of the offender although extradition is acceptable in conformity with its law, or finally those cases in which the Party in whose territory the offender is found does not, for whatever reasons, offer other countries the extradition of the offender, e.g. because the offender is its national and it does not, on constitutional or other grounds, extradite its own citizens. It is, however, suggested that it would hardly be in accordance with the object and purpose of clause (iv) to exclude these cases from its scope. What seems to have been intended is to free a Party from an obligation to prosecute illicit traffickers under the conditions of the introductory subparagraph of paragraph 2 and of clause (iv) if it is able to hand them over to a country which is willing to receive them for prosecution and if it actually carries out the extradition.

5. The Party in whose territory the offender is found is also not required to prosecute him if he has already been prosecuted and judged (i.e. sentenced or acquitted) in another country. 5 Clause (iv) so provides in order not to require Parties to violate their prohibition of double jeopardy (non bis in idem). It is, however, evident that it would hardly be in accordance with the spirit of clause (iv) if a Party gives refuge to a trafficker who has been convicted abroad but has not yet been punished, i.e. served his sentence. c It is suggested that the Party involved, subject to the provision of the introductory subparagraph of paragraph 2, should in such a case either extradite the trafficker or try him.

6. More generally, it is also apparent that it would be incompatible with with the spirit of clause (iv) if a Party allowed a trafficker to take refuge in its territory even though it could not extradite him or try him in its own courts. It has been stated elsewhere that it follows from the general obligation of Parties to co-operate with other States in the execution of the provisions of the Single Convention and to assist each other and to collaborate in the fight against the illicit traffic pursuant to article 4, paragraph (b), and article 35, paragraphs (b) and (c), that they are bound not to allow their territory to be used as a base of operation of the illicit traffic in other countries, or to become a place of refuge for international illicit traffickers. Where prosecution or extradition may not be possible, such measures may be required as expulsion or deportation of alien traffickers. 7

7. For provisions corresponding to clause (iv) see articles 7 and 8 of the 1936 Convention.

1 Records, vol. 1, pp. 123 and 126.

2 See above, general comments on article 36; the objections to prosecution of crimes committed abroad by nationals are less strong in some of these countries.

3 Jurisdiction based on the principle of "protection"; see above, general comments on article 36.

4 It will also be noted that clause (iv) refers first to the jurisdiction of the Party in whose territory the offence was committed, and only in the second place to that of the Party in whose territory the offender is found.

5 The English phrase "judgement given", the French word " juge" and the Spanish word "sentenciado" can refer to both conviction and acquittal.

6 This opinion may not be justified in cases in which the trafficker was pardoned. See above, comments on article 4 and article 35, paras. (b), (c) and (d).

Paragraph 2, subparagraph (b)

(b) It is desirable that the offences referred to in paragraph 1 and paragraph 2 (a) (ii) be included as extradition crimes in any extradition treaty which has been or may hereafter be concluded between any of the Parties, and, as between any of the Parties which do not make extradition conditional on the existence of a treaty or on reciprocity, be recognized as extradition crimes; provided that extradition shall be granted in conformity with the law of the Party to which application is made, and that the Party shall have the right to refuse to effect the arrest or grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.

Commentary

1. The implementation of subparagraph (b) is not a legal obligation. The introductory words "it is desirable that" make this provision a simple recommendation. 1

2. As regards the application of the introductory subparagraph of paragraph 2 to subparagraph (b), see above, comments on the introductory subparagraph.

3. It is recommended that the offences of illicit traffic referred to be (a) Included as extradition crimes in extradition treaties which may already have been or may later be concluded between any of the Parties, i.e. in bilataral or multilateral extradition treaties between Parties; and
(b) Recognized as extradition crimes between any of the Parties which do not make extradition conditional on the existence of a treaty or on reciprocity.

4. The text of this recommendation does not cover the case of Parties which, although not requiring a treaty, make extradition conditional on the existence of reciprocity, nor does it appear to refer to the possible uni-lateral willingness of a Party which does not make extradition conditional on the existence of a treaty or of reciprocity, to grant extradition to other Parties which do not comply with the recommendation. This second lacuna is due to the fact that the subparagraph under consideration recommends that the offences of the illicit traffic be recognized as extradition crimes "as between any of the Parties". The recommendation also does not cover the extradition to nonParties. It is, however, suggested that it is desirable that all Parties (and nonParties) should grant extradition to Parties and non-Parties alike in all cases in which this is required in order to make possible the prosecution or punishment 2 of major illicit traffickers.

5. The implementation of the recommendation to include the offences concerned in extradition treaties which have already been concluded requires special treaty amendments. Such revisions can also be carried out by exchange of notes to this effect. In the case of multilateral treaties, such an exchange would of course have effect only as between the Parties exchanging the notes. In the binding form which this provision would have had in its version in the Third Draft, a the amendment would have been effected by the Single Convention itself as between Parties to the Convention, subject of course to their constitutional limitations, legal system and domestic law as provided for in the introductory subparagraph of paragraph 2.4 No additional action would have been required to include the offences of the illicit traffic in the extradition treaties of the past. 5

6. The recommendation to include offences of the illicit traffic among extradition crimes is not limited only to serious cases. It is provided, however, that a Party should "have the right to refuse to effect the arrest or grant the extradition in cases where the competent authorities [i.e. its competent authorities] consider that the offence is not sufficiently serious". It is also provided that extradition should be granted "in conformity with the law of the Party to which application is made".

7. The words in the English text "the Parties which do not make extradition conditional ... on reciprocity" is rendered in the Spanish version by the words "las Partes que no subordinen la extradition a la existencia de un ... acuerdo de reciprocidad". Preference should be given to the English text, with
which the French text agrees. B The provision was originally drafted in
English. 7 The Spanish text presents in this case a somewhat inexact transla tion. The reciprocity need not be the result of an international agreement, but may be provided for unilaterally in the law of a State, as it is in fact in some countries.

8. Subparagraph (b) covers the subject-matter of article 9 of the 1936 Convention. It will be noted that this article is the only provision of the 1936 Convention which is terminated as between Parties to this Convention which become Parties to the Single Convention. The article continues, however, to be in force in respect of those of such Parties which notify the SecretaryGeneral that they wish to continue to be bound by it. As regards Parties which do not make such notification, article 9 of the 1936 Convention is replaced by article 36, paragraph 2, subparagraph (b) of the Single Convention. 8

1 Records, vol. II, p. 242; see the criticism of these words by the representative of Mexico; see also vol. I, p. 146.

2 I.e., of fugitive traffickers who were already convicted.

3 Article 45, para. 3 of the Third Draft, Records, vol. II, p. 17; see also document E/CONF.34/C.12/L.1/Rev.l, Records, vol. II, p. 48.

4 The provision in question of the Third Draft (article 45, para. 3) made its binding character, subject to "domestic law" and "constitutional limitations".

5 Statement of the Legal Adviser to the Plenipotentiary Conference, Records, vol. II, p. 241.

6 The corresponding words of the French version are: "les Parties qui ne subordonnent pas l'extradition ... d la reciprocity ".

7 Records, vol. II, pp. 1, 17 and 48.

8 Article 44 of the Single Convention and comments on paragraph 2 of that article.

Paragraph 3

The provisions of this article shall be subject to the provisions of the criminal law of the Party concerned on questions of jurisdiction.

Commentary

1. The representative of Chile, who proposed a draft of paragraph 3 1 in a form which was substantially the same as the text which was finally adopted, stated that "it would make it quite clear that the provisions of the criminal law of the Parties would prevail on points of jurisdiction". 2

2. It is submitted that paragraph 3 does not mean that Parties are in no case required to change their law in order to carry out the rules of article 36 3 regarding jurisdiction in criminal matters, nor that they have to implement these rules only to the extent to which provision has already been made for it in their existing criminal law. This would make entirely ineffective paragraph 2, subparagraph (a), clause (iv) regarding the prosecution of offences committed abroad, and this cannot have been the intention of the authors of the Single Convention. 4 It is held that paragraph 3 limits the obligation of Parties to carry out this clause, requiring them to do so only in so far as would be compatible with the principles of their criminal law. Understood in this way, paragraph 3 merely emphasizes the limitation of the obligation of Parties to implement clause (iv), provided for in the introductory paragraph of paragraph 2, which subjects this implementation to the "domestic law" of each Party. It is therefore suggested that the above comments on the introductory subparagraph of paragraph 2 and on clause (iv) regarding the limitation of the obligation of Parties to carry out this clause apply also to paragraph 3.

3. Paragraph 3 also means that article 36 does not affect the attitude of a Party towards the question of limitation of national criminal jurisdiction in international law, as reflected in the provisions of its criminal law. This was expressly laid down in article 45, paragraph 4 of the Third Draft, 5 which was replaced by the Chilean amendment adopted as paragraph 3 of article 36. 6

1 The Chilean draft reads: "Todas las disposiciones del presente articulo se entenderdn limitadas par las disposiciones penales de cada uno de los Estados participantes, en materia de jurisdiction"; document E/CONF.34/L.13; Records (Spanish), vol. II, p. 48.

2 Records, vol. 11, p. 244.

3 Le., para. 2, subpara. (a), clause (iv).

4 As to the rule of "effectiveness" (ut res magis valeat quam pereat ), see H. Lauterpacht, The Development of International Law by the International Court, London, Stevens and Sons, 1958, pp. 227-230; and McNair, The Law of Treaties, Oxford, at the Clarendon Press, 1961, pp. 384-385.

5 Records, vol. II, p. 17; see also article 14 of the 1936 Convention.

6 The Chilean representative when explaining his amendment did not oppose the substance of article 45, para. 4. He only declared that his text was "clearer and more precise", and "largely a matter of drafting". Records, vol. II, pp. 244 and 245; see also vol. 1, p. 125; see also the statement of the Legal Adviser comparing the two texts; Records, vol. 1, p. 211.

Paragraph 4

4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.

Commentary

1. Attention may first be drawn to the fact that the French text of paragraph 4 is entirely different from the English and Spanish texts, which are in accord. In fact, the French text, although having a different wording, represents a repetition of the substance of paragraph 3. A French text of paragraph 4 fully in accord with its English and Spanish texts was, however, adopted by the Ad Hoc Committee on articles 44-46 of the Third Draft 1 and by the Plenary. 2

2. While the English and Spanish texts of paragraph 3, as adopted by the Plenary in its final reading s and thus incorporated in the Convention, are fully identical with the text as adopted by the Ad Hoc Committee on articles 44-46 4 and in the earlier reading by the Plenary, 5 the French adopted in the final reading differs from that of the Ad Hoc Committee and from that approved earlier by the Plenary. c It appears to be quite obvious that a mistake was made in the compilation of the French text adopted by the Plenary, which was prepared by the Drafting Committee for the Plenary's final reading. 7 This compilation incorporated erroneously in slightly modified form the French text of the Chilean redraft of article 45, paragraph 4 of the Third Draft of the Single Convention, 8 which corresponds to article 36, paragraph 3 of the final text of the Single Convention. It should instead have included the text adopted earlier by the Plenary for the provision which became article 36, paragraph 4 of the Single Convention, as the Drafting Committee's compilations of the English and Spanish texts correctly did. The Chilean amendment was intended to revise the provision which finally became article 36, paragraph 3 and actually became paragraph 3 with a somewhat modified wording. This explains why the French text of article 36, paragraph 4 repeats
the substance of paragraph 3 of this article. The mistake in the Drafting Committee's compilation of the French texts adopted earlier by the Plenary was overlooked in the Conference's final reading.

3. It is therefore submitted that preference must be given to the concordant English and Spanish versions of article 36, paragraph 4. The inclusion of this paragraph ensures that no provision of article 36 is considered to be self-executing in a country whose constitution provides for the self-executing effect of international treaties. Provisions of article 36 must therefore be transformed into national law by appropriate legislative action of the Party involved in order to become effective under its domestic penal law.

4. See article 15 of the 1936 Convention for an earlier provision corresponding to that of article 36, paragraph 4. 9

1 Records (French), vol. II, pp. 267 and 279, document E/CONF.34/C.12/L.1/ Rev. 1, Records (French), vol. II, p. 56.

2 Records (French), vol. I, pp. 150 and 154, document E/CONF.34/19 (Report of the Ad Hoc Committee on articles 44-46 of the Third Draft), Records (French), vol. II, p. 317.

3 Document E/CONF.34/21/Add.2 and Corr.l, Records (English), vol. II, p. 290; and Records (English), vol. 1, pp. 207 and 210.

4 Records (English), vol. II, pp. 234 and 245; document E/CONF.34/C.12/L.1, Records (English), vol. II, p. 48.

5 Records (English), vol. 1, pp. 145 and 148; document E/CONF.34/19, Records (English), vol. II, p. 278.

6 Document E/CONF.34/21/Add.2 and Corr.l, Records (French), vol. II, p. 333, and Records (French), vol. I, pp. 215 and 219.

7 Document E/CONF.34/21, Add. 2 and Corr. 1, Records (French), vol. II, p. 333.

8 The French text of the Chilean redraft reads: "4. Toutes les dispositions du present article seront considerees comme limitees, en matiere de competence, par la legislation penale de chacune des Parties". Document E/CONF.34/L.13, Records (French), vol. II, p. 54; for the Spanish text, see foot-note 1 to the comments on article 36, para. 3.

9 The Protocol of Signature of the 1936 Convention, section 1, para. 2 reads: "Article 15 is to be interpreted in the sense that the Convention does not in particular affect the liberty of the High Contracting Parties to regulate the principles under which mitigating circumstances may be taken into account", League of Nations, document C.286 (1), M.174 (1).1936.X1, p. 25.