Article 39

APPLICATION OF STRICTER NATIONAL CONTROL MEASURES THAN THOSE REQUIRED BY THIS CONVENTION

Article 39

Notwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention and in particular from requiring that preparations in Schedule III or drugs in Schedule II be subject to all or such of the measures of control applicable to drugs in Schedule I as in its opinion is necessary or desirable for the protection of the public health or welfare.

Commentary

1. Article 39 contains a rule which has also been applied under the earlier narcotics treaties, though they did not contain any such express provision.

2. Parties which apply "more strict or severe" control measures may do this by imposing controls in addition to those required by the Single Convention, or by replacing measures provided for in that treaty by "more strict or severe" ones. While the application of additional controls will hardly give rise to legal problems under the terms of the Convention, the replacement of a measure required by the treaty by another may occasionally lead to doubts whether the substitute control is really "more strict or severe" than the one which it replaces. 2 It is suggested that substitute measures should clearly be "more strict or severe" to prevent any such doubts. Permissible substitute controls would be, for example, the prohibition of manufacture of and trade in certain drugs instead of subjecting them to a system of  licensing, or the imposition of the death penalty in place of "imprisonment or other penalties of deprivation of liberty". 3

3. It will generally be difficult to distinguish between what would be more strict" and what would be more "severe". It appears that both of these words were used because the authors of the text of article 39 considered that in a few of the cases covered in this provision one or the other of these two words might be more appropriate.

4. The special reference to the imposition on drugs in Schedule II or preparations in Schedule III of some or all of the controls which must be applied to drugs in Schedule I, but from which drugs in Schedule II and those preparations are exempted by the Convention, 4 appears to be due to the fact that the Conference wished to give some recognition to the position of those countries which consider that some or all of these exemptions are not justified on grounds of drug control. 5 Parties may of course apply to drugs in Schedule 11 and to preparations in Schedule III an even more strict or severe regime than that governing drugs in Schedule I, e.g., measures of prohibition. 6

5. It may be noted that the Spanish text uses for the English phrase "the public health and welfare" the words "la salud publica", as it does in article 22, while in article 2, paragraph 5, subparagraph (b) it renders the same English phrase by the words "la salud y el bienestar publicos". The French
text uses in all three of these cases the words "la sante publique". It is suggested that these divergencies are of no legal importance.

1 As regards the 1931 Convention, see on this point the declaration of the President of the Conference of 1931 for the Limitation of the Manufacture of Narcotic Drugs. He stated that nothing contained in this Convention would prevent a Party from adopting a more rigorous system of control than that provided in it. The Conference which adopted the 1931 Convention endorsed this declaration of its President; League of Nations document C.509.M.214.193.XI, p. 269; the representative of Canada who introduced the provision (Records, vol. I, p. 153 and document E/CONF.34/L.3 (proposed by Canada and the United States of America), Records, vol. II, p. 37) which became article 39. explained that it would make it clear to manufacturers who might seek lessening of national controls more strict than the rules of the Single Convention that acceptance of these rules should "not be construed as weakening national regulations"; Records, vol. I, p. 17.

2 E.g. a provision which would authorize every farmer in a defined district to cultivate the opium poppy for the production of opium if he makes to this effect a declaration to the authorities, in substitution for the requirement of licensing cultivators under article 23, para. 2, subpara. (b).

3 Article 36, para. 1. The reference to the "death penalty" is made in the light
of the provisions of the Single Convention. It does not imply any position as to the admissibility of this penalty on moral or other legal grounds.

4 Article 2, paras. 2 and 4.

5 See also the statement of the representative of Canada referred to in footnote 1 above.

6 The regime applicable to drugs in Schedule IV would also be a more strict or severe regime; see article 2, para. 5.