Article 3

CHANGES IN THE SCOPE OF CONTROL


General comments

1. The need for extending international control to additional drugs, without the delay which would be caused by the need to conclude a new treaty each time the occasion arises, was already felt at an early stage of the evolution of the international narcotics regime. The first narcotics treaty which has a procedure for placing additional drugs under control is the 1925 Convention. Two other treaties preceding the Single Convention, namely, the 1931 Convention and the 1948 Protocol, also had provisions to this effect.

2. The 1925 Convention as amended by the 1946 Protocol authorized the World Health Organization' to extend its application to "any narcotic drug" which it found to be "liable to similar abuse and productive of similar ill effects as the substances" 2 to which Chapter Ill of the Convention applied (i.e., similar to those of medicinal opium, cocaine, ecgonine, morphine, heroin and galenical preparations (extracts and tinctures) of Indian hemp (cannabis)). 3 The control regime of the Convention could thus be extended to morphine-like, cocaine-like and cannabis-like drugs, whatever may be their chemical structure, but the World Health Organization's action was only a "recommendation" which became binding solely upon those Parties to the 1925 Convention which expressly accepted it.

3. The World Health Organization was also empowered 4 to exempt from the application of the 1925 Convention a preparation of a drug controlled by Chapter III of that Treaty if it found that the preparation "cannot give rise to the drug habit" on account of the medicament or medicaments with which the drug was compounded and which in practice precluded the recovery of the drug. 5

4. The 1925 Convention did not provide for revision of these two kinds of decisions.

5. The 1931 Convention provided 6 for extension of control to additional drugs by decisions of international organs which did not require acceptance by the Parties but were automatically binding upon them. This authority was however, limited to two narrowly defined chemical groups, namely to products "obtained from any of the phenanthrene alkaloids of opium or from the ecgonine alkaloids of the coca leaf". A finding by the World Health Organization 7 that such a product was "capable of producing addiction" obliged Governments to place the drug under the regime applicable to drugs in Group I of the 1931 Convention. 8 If the World Health Organization I found however, that the produce was "not itself a drug capable of producing addiction, but is convertible into such a drug", the decision whether the regime for drugs in Group I or that for drugs in Group II should be applied was taken by an ad hoc Expert Committee of three members, of whom one member was selected by the Government "concerned" (i.e. which initiated the procedure by its notification to the Secretary-General of the United Nations), 9 one by the Commission on Narcotic Drugs 10 and the third member by the two members so selected. Parties to the 1931 Convention were bound by the Expert Commission's decision, but could, of course, apply the stricter regime of drugs in Group I if the Expert Committee had decided for the regime of drugs in Group 11. Any decision taken by this procedure could be revised by the same procedure.

6. The 1931 Convention also provided for a system of provisional control pending completion of the procedure just outlined. No trade in or manufacture for trade of any product obtained from the two chemical groups in question, which was not in use on 13 July 1931 11 for medical or scientific purposes and had not yet been placed under the regime of the 1931 Convention either directly by its article I or by the procedure of its article 11, could take place unless and until the Government concerned was satisfied that the product in question was of medical or scientific value. If such a Government permitted trade or manufacture, it was obliged, pending the World Health Organization's or Expert Committee's action, to apply to the product involved the regime of the 1931 Convention regarding drugs in Group I unless it determined that the drug was not capable of producing addiction or of conversion into a product capable of producing addiction. The Government was obliged in any event to notify the SecretaryGeneral of the United Nations 9 of its authorization of trade or manufacture. The Secretary-General, 9 on his part, informed the World Health Organization 12 and the other Parties to the 1931 Convention. It may be noted that the World Health Organization 12 could not act unless the procedure had been initiated by a Government's notification. 13

7. Notification by any Government permitting trade or manufacture and the decisions of the World Health Organization 12 and Expert Committee were mandatory under this procedure.

8. Chemical progress since the conclusion of the 1931 Convention has led to the discovery of an increasing number of drugs which are "addictionproducing" or "convertible into addiction-producing drugs", but which are not obtained "from any of the phenanthrene alkaloids of opium or from the ecgonine alkaloids of the coca leaf", and therefore cannot be placed under international control by the procedure of article It of the 1931 Convention. Governments reacted to this development by adopting the 1948 Protocol, which created a machinery for extending the controls of the 1931 Convention 14 to synthetically manufactured drugs. Under the provisions of this treaty, if a Party considered that a drug "which is or may be used for medical or scientific purposes" and to which the 1931 Convention did not apply 1-1 "is liable to the same kind of abuse and productive of the same kind of harmful effects as the drugs" under the regime of the 1931 Convention, i.e. had morphine-like or cocaine-like effects or was convertible into drugs having these effects, 16 that Party was bound to notify the Secretary-General of the United Nations accordingly and to send to him "all material information in its possession" relating to the matter. The Secretary-General, on his part, was required "immediately" to transmit the notification and information to the other Parties, to the Commission on Narcotic Drugs and to the World Health Organization. 11 If that Organization found that the drug involved was "capable of producing addiction or of conversion into a product capable of producing addiction", it had to decide whether the regime of the 1931 Convention governing drugs in Group I or that governing drugs in Group 11 should apply. I'll The World Health Organization's decision bound the Parties to the Protocol, 19 which might, however, apply the stricter regime applicable to drugs in Group I to a substance placed by the World Health Organization under the regime governing drugs in Group II. The Commission on Narcotic Drugs was empowered pending the procedure before the World Health Organization, to place the drug in question under provisional control. The Parties to the Protocol were bound by this decision of the Commission, and were obligated to apply provisionally to the substance involved the regime of the 1931 Convention governing drugs in Group 1. 10 It may be noted that under the 1948 Protocol the procedure could be initiated only by a Party, and that the notifications of Parties as well as the decisions of the World Health Organization to place drugs under control were, under the conditions of that treaty, mandatory. A Party which considered that a drug had the harmful effects envisaged by the Protocol had an obligation to make the notification which initiated the procedure, and the World Health Organization had an obligation to decide to place the drug under international control if it found that it had such properties. Its discretion was restricted to choosing between two regimes, the one applicable to drugs in Group I and the other governing drugs in Group 11. The chemical structure of the drug was irrelevant for the World Health Organization's decision. According to the letter of the Protocol, a Party would have to make the notification even in the case of a drug which was still in the laboratory stage, and which was thus neither manufactured for trade nor admitted in trade nor likely to appear in the illicit traffic. Parties, however, very often failed to make notifications concerning drugs which were addiction-producing or convertible into addictionproducing drugs, but which existed only in the laboratory stage and were thus unlikely to be made by clandestine manufactures or to be traded illicitly. They did this without any objection raised by other Parties. The number of drugs which have the dangerous properties envisaged by the 1948 Protocol, but which exist only at the laboratory stage and which, since their chemical and pharmacological properties are known only to the manufacturers and scientists concerned, are not likely to be abused is very great indeed, and continuously increasing. To place all of them under control, without any consideration of such practical factors, would unduly encumber the procedures and administrative machinery of the international narcotics regime.

9. The decisions taken under the terms of the 1948 Protocol could be revised in the light of subsequent experience by the same procedure as that by which they were taken. 11

10. The procedure of the Single Convention 21 for placing additional drugs under control, changing their regime, freeing drugs from control, exempting preparations from measures of control and abolishing such exemptions took over several features from the preceding narcotics treaties; it differs, however, from each of the earlier procedures in some respects.

11. As under all three of the preceding treaties, control under the Single Convention can be extended only to substances which have similar dangerous properties to those of drugs already under control . 21

12. As under the 1925 Convention and the 1948 Protocol, but unlike the 1931 Convention, the control of the Single Convention may be extended to a substance of any chemical structure whatsoever. Unlike the 1931 Convention and the 1948 Protocol, but similarly to the 1925 Convention, 24 the procedure of the Single Convention may be initiated not only by a Party, but also by the World Health Organization.

13. The 1925 Convention did not require Governments to notify an international organ of the need for control of additional drugs 21, or of the desirability of exempting preparations, 26 although it did not prevent a State from making such a notification in order to set in motion the required procedure. The 1931 Convention and 1948 Protocol required Parties, under the conditions specified therein, 27 to notify to the Secretary-General 21 the drug involved. This notification initiating the procedure was thus "mandatory". Under the Single Convention, Parties are obliged to furnish to the Secretary-General only such information as in their opinion may require changes in control, i.e. changes in the Convention's "Schedules". 29 Onerous decisions taken under article 3 of the Single Convention are automatically binding upon Parties, as were the corresponding decisions under the 1931 Convention and the 1948 Protocol, but not under the 1925 Convention. The Single Convention expressly authorizes 10 Parties to apply stricter controls than those which it requires, but this is undoubtedly also the case under the earlier treaties, although they do not contain such an express provision.

14. The Single Convention authorizes the Commission on Narcotic Drugs to order, pending the outcome of the procedure on the control status of the drug involved, the provisional application of control. 31 The 1948 Protocol contained the same provision, 112 while the 1925 Convention did not provide for provisional control and the 1931 Convention defines the drugs to which provisional control had automatically to be applied. 33

15. Decisions under article 3 of the Single Convention can subsequently be revised. Provision for revision of the corresponding decisions existed in the 1931 Convention 34 and in the 1948 Protocol, 35 but not in the 1925 Convention. Like the 1925 Convention, 31 the Single Convention permits decisions 37 exempting preparations from measures of control, which are however not so far reaching 38 as those of the older treaty.

16. The Commission on Narcotic Drugs takes the final as well as the provisional decisions under article 3 of the Single Convention while under the earlier treaties the only decisions of this kind it could take were the provisions under the 1948 Protocol. 39 The decisions under the 1925 Convention were taken by the World Health Organization, and under the 1931 Convention by that Organization 41 and by the ad hoe Expert Committees 42 respectively. The 1948 Protocol makes the World Health Organization responsible for final decisions 43 and the Commission on Narcotic Drugs 44 for those regarding provisional control.

17. The Commission can make changes in the Schedules of the Single Convention only in accordance with recommendations of the World Health Organization, but it can refuse to make changes recommended by that Organization; see below comments on article 3, paragraph 3, subparagraph (iii); and paragraphs 4, 5 and 6.

18. An appeals procedure is provided only in the Single Convention . 4" Decisions of the Commission on Narcotic Drugs amending any of the Schedules of the Convention are subject to review by the Economic and Social Council upon the request of any Party. Decisions of the Commission to place a drug under provisional control are, however, not subject to this review. 41

19. The Commission at its twentieth session adopted a resolution 41 providing that if a recommendation is made by the World Health Organization f or the control of a new narcotic substance, and the Commission is not in session and will not within a period of three months be in session, a decision should be taken by the Commission before its next session . 41, The resolution requests the Secretary-General 49 for that purpose to arrange in those exceptional circumstances for a decision of the Commission to be taken by a vote by mail or telegram. Each member of the Commission, on being consulted, may indicate his agreement or disagreement or propose that the decision be deferred pending full discussion of the matter at the Commission's next session.

20. It is submitted that if a member "proposes" that the decision be deferred until the next session, no action can be taken on the matter involved before that session. This view accords with the practice of the Commission. 60

21. It is obvious that the application of this procedure is generally feasible only in respect to non-controversial questions.

22. The Commission's resolution does not appear to apply to action on provisional control pursuant to article 3, paragraph 3, subparagraph (ii) prior to the recommendation of the World Health Organization. 51

 

1. Article 10; the unamended text gave this authority to the Health Committee of the League of Nations.

2 As to the language describing the additional drugs see also the wording of article 14, para. (d) of the 1912 Convention; article 1, para. I of the 1948 Protocol and also article 3, para. 3, subpara. (iii) of the Single Convention.

3. Article 4 of the 1925 Convention.

4. Article 8 as amended by the 1946 Protocol; the unamended article gave this power to the Health Committee of the League of Nations.

5 For substantially the same conditions for placing a preparation in Schedule III of the Single Convention, see article 3, para. 4.

6 Article 11.

7 Under article I I as amended by the 1946 Protocol; the finding was made under the amended text by the Health Committee of the League of Nations.

8 Regarding Groups I and 11 of the 1931 Convention and the division of Group I into subgroup (a) and (b) see above comments on article 2, paras. I and 2.

9 Prior to the 1946 Protocol, the notification was addressed to the Secretary General of the League of Nations.

10 Prior to the 1946 Protocol, by the League's Advisory Committee on Traffic in Opium and Other Dangerous Drugs.

11 I.e. date of conclusion of the 1931 Convention.

12 Prior to the 1946 Protocol the Health Committee of the League of Nations.

13 Under articles 8 and 10 of the 1925 Convention, the procedure could be initiated the World Health Organization itself (and could be so initiated ' - - ''

Committee of the League of Nations prior to the 1946 Protocol); the World Health Organization also could not act under the 1948 Protocol without a notification by a Party, but it may itself initiate the procedure of article 3 of the Single Convention.

14 And thus also of the 1925 Convention; see article 13 of the 1931 Convention.

15 And cannot be extended by the procedure of article 11 of that Convention.

16 Opium, coca leaf and cannabis (Indian hemp) are expressly excluded from the scope of the 1948 Protocol; see article 4 of that Protocol.

17 Article 1, para. 1 of the 1948 Protocol.

18 Article 1, para. 2. The application of the regime of the 1931 Convention includes the application of provisions of the 1925 Convention; see article 13 of the 1931 Convention.

19 Article 1, paras. 3 and 4 of the 1948 Protocol.

20 Article 2 of the 1948 Protocol; see also above, foot-note 18.

21 Article 3 of the 1948 Protocol.

22 Article 3.

23 Under article 1, para. I of the 1949 Protocol the additional drugs must be liable to the same kind of abuse and productive of the same kind of harmful effects the drugs already under control.

24 Under articles 8 and 10 as amended by the 1946 Protocol; under the unamended version the initiative could be taken by the Health Committee

25 Article 10. 

26 Article 8.

27 Article 11, para. 2 of the 1931 Convention; article 1, para. I of the 1948 Protocol.

28 Under the text of the 1931 Convention as amended by the 1946 Protocol. to the Secretary-General of the United Nations, under the original text to the SecretaryGeneral of the League of Nations.

29 Article 3, para. 1.

30 Article 39.

31 Article 3, para. 3, subpara. (ii); see also subpara. (i).

32 Article 2.

33 Article 11, para. 1.

34 Article 11, para. 7.

35 Article 3.

36 Article 8.

37 Article 3, para. 4.

38 Article 2, para. 4; see above, comments on that paragraph.

39 Article 2.

40 Articles 8 and 10 as amended; prior to the 1946 Protocol, the decisions were taken by the Health Committee of the League of Nations.

41 Article 11, paras. 3 and 4 as amended by the 1946 Protocol; prior to this Protocol the decisions were taken by the Health Committee of the League of Nations and ad hoc Expert Committee).

42 Article 11, para. 4. 

43 Article 1, paras. 2-4. 

44 Article 2.

45, Article 3, para. 8; see however, article 12, para. 3, subpara. (b) of the 1953 Protocol for a different appeals procedure, i.e. for appeal against the imposition of a mandatory opium embargo by the Permanent Central Board. This mandatory e ,,,)4Ygo can now be imposed by the International Narcotics Control Board; see article 45, para. 2 of the Single Convention.

46 Article 3, para. 3, subpara. (ii) of the Single Convention.

47 Resolution I (XX), Commission on Narcotic Drugs, report on the twentieth
session. Official Records of the Economic and Social Council, Fortieth Session, Supplement No. 2, paras. 60 and 61; see also below comments on article 7.

48 Operative para. I of the resolution.

49 Operative para. 2 of the resolution.

50 Commission on Narcotic Drugs, report on the twenty-first session (1966), Official Records of the Economic and Social Council, Forty-Second Session, Supplement No. 2, paras. 61 and 62

51 See below comments on article 3, para. 3, subparas. (i) and (ii).

 


Paragraph I

1. Where a Party or the World Health Organization has information which in Its opinion may require an amendment to any of the Schedules, It shall notify the Secretary-General and furnish him with the information in support of the notification.


Commentary

1. The procedure under article 3 for a change in a schedule requires a notification either by a Party to the Convention or by the World Health Organization to the Secretary-General of the United Nations that such a change is in its opinion needed. The procedure cannot be set in motion without such a notification.

2. The amendment which may be required in the opinion of the Party or the World Health Organization, and consequently is made the subject of a notification to the Secretary General, may involve:

Placing an uncontrolled substance under international control by inserting it in Schedule I or 11 or by inserting it simultaneously in Schedules I and IV and thus subjecting it to the stricter regime applicable to drugs in Schedule IV; Changing the regime applicable to a drug by:

Transferring a drug from Schedule I to Schedule 11 or vice-versa, Placing in Schedule IV a drug already in Schedule 1, Deleting a drug listed in Schedules I and IV from the latter Schedule; Exempting, a prescription from certain controls by including it in Schedule 111; Cancelling such an exemption by deleting from Schedule III a preparation listed therein;

Freeing a drug from international control by deleting it from Schedule I or 11 and, if the action concerns a drug which is in Schedule I as well as in Schedule IV, by removing it from both these Schedules.

3. It is left to the judgement of the Party or World Health Organization to decide whether such an amendment is required; but if either is of the opinion that an amendment is required, it is bound to make the notification mentioned in the paragraph. This provision, like all the other provisions of the Single Convention, must of course be carried out in good faith.

4. An amendment to a Schedule is "required" if it is needed to combat the abuse of "narcotic" drugs, or to facilitate the availability of the drugs for the relief of pain and suffering without endangering the basic aim of the Single Convention, i.e. that of fighting drug abuse. 1

5, Not every newly discovered "narcotic" 2 drug needs to be placed under international control. If a Government does not intend to permit the commercial manufacture of, or trade in, such a drug, if it is highly improbable that any other Government would do so and if there is moreover no danger that the drug could be made by clandestine manufacturers, the opinion might be justified that the discovery does not "require an amendment to any of the Schedules". The Government concerned would in such a case be justified in not making the notification mentioned in the paragraph. In fact, numerous "narcotic drugs" existing only in laboratories are not subject to international control, and, not being in trade, do not present a significant risk of abuse or of illicit traffic . 3

6. The notification should contain the exact chemical structure (formula) of the substance and all its names known to the Party or to the World Health Organization, as the case may be.

7. The information which must be furnished "in support of the notification" should include all the data which could assist the Commission on Narcotic Drugs, and if furnished by a Government, also the World Health Organization, in performing its functions under article 3. The information should also enable the Parties to the Convention, other than the Government furnishing it, to take a position on the control problem involved, and to send to the World Health Organization or to the Commission or to both such comments as they consider useful. It should include data on relevant research, and in particular on clinical experiments. The texts or adequate summaries of useful publications dealing with the matter should be enclosed, and exact bibliographical references should be given. The notification should be furnished in one of the official languages of the United Nations. Speedy action to extend the narcotics regime to the uncontrolled substance involved of ten being very important, it would be helpful if Governments would supply the notification and at least the most essential parts of the supporting information in all languages which at that particular moment are the working languages of the United Nations Secretariat for documents of this kind.

1 See preamble of the Single Convention.

2. I.e. having harmful properties of the kind of those justifying international
control (article 3, para. 3, subpara. (iii)).

3. See above the general comments on article 3.

 

Paragraph 2

2. The Secretary-General shall transmit such notification, and any information which he considers relevant, to the Parties, to the Commission, and, where the notification is made by a Party, to the World Health Organization.

Commentary

1 . The Secretary-General must forward the full text of the notification. He may add such explanatory comments as he considers fit. He may suggest to the Party concerned or to the World Health Organization revisions which, if accepted, he may incorporate in the document which he dispatches. He may himself correct obvious typing mistakes to avoid delay which an inquiry may cause in a procedure which should be expeditious.

2. The notification must be sent by the Secretary-General to all Parties, to the Commission on Narcotic Drugs and, if it is made by a Party, to the World Health Organization. It would, however, be useful to send it also to the International Narcotics Control Board, which would thus be enabled to take all preparatory steps necessary to put its control of the drug involved immediately into effect if the Commission takes a decision to control.

3. The supporting information which Governments furnish is sometimes very bulky and contains repetitions or irrelevant data or both. The Single Convention authorizes therefore the Secretary-General to forward only information which he considers relevant,' to avoid the unnecessary burden of bulky reproductions and heavy costs of translation. He may transmit excerpts or summaries. He may choose to transmit only a part of the information to Governments, but the whole or a larger part to the World Health Organization, since the latter transmission may not require any work of translation. The Secretary-General may also choose to forward in the original language, without translation, the whole or parts of the supporting information, in particular that of a scientific nature such as scientific articles, on the assumption that the scientific advisers of the Governments are able to read in the foreign language involved, the technical literature in their special field.

4. The question arises whether the Secretary-General can reject a limine a notification by a Government of a State which is not a Party and inform the notifying Government that he will not take action under article 3, paragraph 2, since only Parties to the Single Convention or the World Health Organization may make notifications pursuant to article 3, paragraph 1. The text of paragraph 2 appears to justify such action by the Secretary-General since he is required only to transmit to the adressees mentioned in that paragraph "such notification", which clearly refers to a notification made under paragraph 1, i.e. a notification by a Party or the World Health Organization.

Under article 1, para. I of the 1948 Protocol the Party concerned had to send the notification "with all material information in its possession" to the SecretaryGeneral of the United Nations, who must "transmit it immediately" to the other Parties, to the Commission on Narcotic Drugs and to the World Health Organization Although he had no express treaty authority to do so, the Secretary-General has in fact under this provision sometimes transmitted only a part of the bulky information received, ommitting what he considered irrelevant.

It is, however, suggested that it would be preferable if he would forward the notification of a State not a Party to the Governments and organizations mentioned in paragraph 2, and thus leave it to the Commission to refuse to take action. By such a course of action the Secretary-General might bring to the attention of the Parties and the World Health Organization information w hich may in fact "require an amendment to any of the Schedules", 2 and thus cnable a Party or that Organization to make the formal step which would be needed to commence the procedure. It may, moreover, sometimes be difficult to decide whether the notifying country is a Party or not. This may be a controversial question which the Secretary-General may wish to avoid. 5. It would not, however, be appropriate for the Secretary-General to circulate any notification emanating from a private person, firm or society. If the information transmitted appeared to have any value, it could be informally communicated to the World Health Organization.

2 Article 3, para. 1.

 

Paragraph 3, subparagraphs (i) and (ii)

3. Where a notification relates to a substance not already in Schedule I or in Schedule II,

(i) The Parties shall examine in the light of the available information the possibility of the provisional application to the substance of all measures of control applicable to drugs in Schedule 1;

(ii) Pending its decision as provided in subparagraph (iii) of this paragraph, the Commission may decide that the Parties apply provisionally to that substance all measures of control applicable to drugs in Schedule 1. The Parties shall apply such measures provisionally to the substance in question.


Commentary

Provisional control

1
. Placing an uncontrolled dangerous substance under the international narcotics regime may sometimes be very urgent in order to prevent a wide spread of abuse before it is brought under control. The procedure of article 3 of tile Single Convention, requiring action by the World Health Organization as well as by the Commission, may, however, be too time-consuming to prevent extensive addiction to an uncontrolled substance. I It is for this reason that the Single Convention, following the example of earlier narcotics treaties , 2 provides for provisional control measures pending the procedure for placing substance under the international regime.

2. The Convention has two different provisions dealing with this subject; a discretionary one by which the application of provisional control measures is left to the judgement of each Party (article 3, paragraph 3, subparagraph (i)), and a mandatory one which binds the Parties to carry out a decision of the Commission on Narcotic Drugs to place a substance under provisional control (article 3, paragraph 3, subparagraph (ii)).

3. The provisional control in question is in both cases the regime applicable to drugs in Schedule 1, i.e. the standard regime of the Single Convention. 3

4. The discretionary rule requires the Parties to "examine in the light of the available information the possibility" of applying this provisional control to a substance respecting which the procedure has begun under article 3 of the Single Convention to apply the international narcotics regime. The 11 available information" which should be the basis of a Government's examination consists not only of the notification and supporting data which it receives from the Secretary-General of the United Nations in accordance with article 3, paragraphs I and 2, but also of such data which it already possesses or may obtain from other sources. 4

5. Under the mandatory 5 rule, the Commission on Narcotic Drugs may require that, pending its final decision which it can take only after it has received a recommendation of the World Health Organization on the matter , 6 the Parties place the substance in question under provisional control. This rule is substantially the same as that of the corresponding provision of the 1948 Protocol. 1 1

6. The Commission can take the decision on provisional control on the basis of notification and supporting data which it receives from the Secretary-General of the United Nations under article 3, paragraph 2, but also in the light of such other information as may be put at its disposal by the Secretariat of the United Nations, by the World Health Organization whose representative regularly attends the sessions of the Commission, by Governments which as Commission members 11 or observers participate in the deliberations of the Commission, or by the representatives of these Governments in their capacity as experts in the field.

7. By a resolution 11 of the Commission in force at the time of this writing, the Commission under certain circumstances may vote by mail or telegraph regarding the extension of international control to an- additional drug. Though the resolution does not apply to decisions on provisional control, in any event, prior to the World Health Organization's recommendation, there seems to be no legal obstacle to adopting, by such voting, decisions on provisional control, provided always that the right of members of the Commission to participate fully in the decision-making process is not thereby impaired, and in particular provided that they are not prevented from bringing, if they so wish, their views on the question to the attention of the other members before the vote is taken. Voting by mail or telegraph on provisional control would, however, generally be feasible only in regard to non-controversial matters,

8. The Commission's decision on provisional control must be communicated by the Secretary General to all Members of the United Nations, to other States Parties to the Single Convention, to the World Health Organization and to the International Narcotics Control Board, as provided for in ,paragraph 7 of article 3.

9. Decisions pursuant to article 3, paragraph 3, subparagraph (ii) are not subject to review under article 3, paragraph 8 nor under article 7.

1. Under the earlier narcotics treaties, the functions of the World Health Organization regarding the control status of a drug have been delegated by the World Health Assembly to the Director General of the Organization to facilitate speedy action; resolution of the World Health Assembly WHA 7.6 (May 1954).

2 Le. the 1931 Convention (article 11, para. 1) and the 1948 Protocol (article 2); above the general comments on article 3.

3 See above comments on article 2, para. 1; similarly the provisional regime of the 1931 Convention and of the 1948 Protocol is that applicable to drugs in Group 1; see article 2 of the 1948 Protocol and the Commentary on the 1931 Convention, para. 114 (p. 156); see also above the general comments on article 3.

4 See also resolution 730 D (XXVIII) of the Economic and Social Council.

5 Article 3, para. 3, subpara. (ii).

6 Article 3, para. 3, subpara. (iii); see also para. 5.

7 Article 2 of that Protocol; the provisional control decreed by the Commission under this provision must be applied pending the procedure on the control status of the substance involved, before the World Health Organization, which takes the final decision under that treaty, and not the Commission.

8 The Commission is at present composed of Governments; see resolution 9 (1) of the Economic and Social Council, as amended up to and including the Council resolution 1147 (XLI); see also below comments on articles 5 and 7 and foot-note 3 to the comments on article 8.

9 Resolution I (XX) adopted during the twentieth session of the Commission; Official Records of the Economic and Social Council, Fortieth Session, Supplement No. 2, para. 60; see also above general comments on article 3.

 


Paragraph 3, subparagraph (iii)

(iii) If the World Health Organization finds that the substance is liable to similar abuse and productive of similar ill effects as the drugs in Schedule I or Schedule 11 or is convertible into a drug, it shall communicate that finding to the Commission which may, in accordance with the recommendation of the World Health Organization, decide that the substance shall be added to Schedule I or Schedule II.


Commentary

Placing uncontrolled substances under the international narcotics regime

1 - Two bodies must act under subparagraph (iii) to submit an uncontrolled substance to the controls of the Single Convention: the World Health Organization and the Commission on Narcotic Drugs of the Economic and Social Council of the United Nations.

2. It is left to the World Health Organization to determine which of its organs should exercise the functions with which it is entrusted under the Single Convention. At the time of this writing, it is the Director General of the Organization who is authorized to perform the functions under article 3.1 He may act on the advice of such bodies or experts as he chooses to consult. As a rule he acts at present on the recommendation of the WHO Expert Committee on Drug Dependence. 1

3. The action of the World Health Organization under subparagraph (iii) consists of two parts, both of which are mandatory. It must first make a finding whether the substance in question has harmful effects which justify its subjection to international control. It must determine whether the substance is "liable to similar abuse and productive of similar ill effects as the drugs in Schedule I or 11", i.e. as substances already subject to the narcotics regime of the Single Convention, or whether it "is convertible into a drug", i.e. into such a controlled substance. Secondly, if its finding is affirmative, the World Health Organization must make a recommendation as to the regime, i.e. whether the rules applicable to drugs in Schedule I or those applicable to drugs in Schedule 11 should be applied. If it recommends the regime governing drugs in Schedule 1, it may, under the conditions set out in article 3, paragraph 5, also make a recommendation to place the substance in Schedule IV. See below, comments on that paragraph.

4. The Technical Committee of the Plenipotentiary Conference applied two general criteria in preparing the lists of substances in the Schedules of the Single Convention: the substance's "degree of liability to abuse", and its "risk to public health and social welfare". The Committee stated also more specifically that the substances which it listed for Schedule I were those:

"(a) Having addiction-producing or addiction-sustaining properties greater than those of codeine and more or less comparable to those of morphine;

"(b) Convertible into substances having addiction-producing or addiction sustaining properties with an ease or yield such as to constitute a risk of abuse greater than codeine; or

"(c) Having a liability to abuse comparable to that of cannabis, cannabis resin or cocaine; or

"(d) Convertible into substances having a liability to abuse comparable to that of cannabis, cannabis resin or cocaine".

The Committee also reported that it listed for inclusion in Schedule Il substances:

" (a) Having addiction-producing or addiction-sustaining properties not greater than those of codeine but at least as great as those of dextropropoxy
phene;
3 or

"(b) Convertible into a substance having addiction-producing or addiction sustaining properties with an ease and yield such as to constitute a risk of abuse not greater than that of codeine". 4

5. To sum up, it results that the substances in these two Schedules, i.e. the drugs under the narcotics regime, have morphine-like, cocaine-like or cannabis-like effects or are convertible into "drugs" having such effects.

6. The similarity of abuse and ill-effects which the World Health Organization must determine is therefore the similarity to those of morphinetype, cocaine-type or cannabistype drugs; but there may be varying degrees of "similarity", and the Single Convention does not indicate what degree is required. It is therefore generally left to the judgement of the World Health organization to decide what it considers as "similarity" for the purposes of article 3, paragraph 3, subparagraph (iii). It will be guided in this evaluation by the risk which in its opinion the substance involved presents for "public health and social welfare"; but it follows from the history of the drafting of the Single Convention that a very important restriction is imposed on this discretion of the World Health Organization. The Office of Legal Affairs of the United Nations ruled, in an opinion given to the Commission on Narcotic Drugs at its twenty-third session, that barbiturates, tranquillizers and amphetamines were outside the scope of the Single Convention. It pointed out that there was an understanding at all stages of the drafting of the Single Convention, in particular at the Plenipotentiary Conference of 1961 which adopted that treaty, that the Convention was not applicable to these three types of substances, although the effects of amphetamines have some degree of similarity to cocaine, and those of barbiturates and tranquillizers to morphine. The Legal Office also mentioned that this obstacle to extending the application of the Single Convention to these drugs could informally be removed by agreement of the Parties on the matter, but no such agreement existed. 5

7. Hallucinogenic drugs such as mescaline, psilocine, tetrahydrocannabir )Is, or LSD-25 are, however, not excluded from the scope of article 3, paragraph 3, subparagraph (iii) if the World Health Organization should find that they present the "similarity" to cannabis and cannabis resin required under that subparagraph. The fact that a substance considered for international control under the procedure of subparagraph (iii) is much more potent than the already controlled drug with which it is compared does not affect the "similarity" required for its placement under the narcotics regime. Etorphine and acetorphine, which are many times more potent than morphine, have been placed in Schedule I by the Commission on Narcotic Drugs in accordance with the recommendation of the World Health Organization, because they were found to have morphine-like effects. 6 Being particularly harmful and not having any known value in the treatment of human beings, they have also been included in Schedule IV. 7 It appears that the fact that the potent hallucinogenics whose abuse has spread in recent years have not been brought under international narcotics control does not result from legal reasons, but rather from the view of Governments that a regime different from that offered by the Single Convention would be more adequate. 8

8. The character of the Schedules may be gradually changed, since the substances which may be included in them need not have the same, 9 but only "similar" dangerous properties to those of substances already listed. As a consequence, the range of different substances which could be brought under the narcotic regime by the operation of subparagraph (iii) would correspondingly be increased. Some adjustment to changing conditions might be brought about by this gradual process.

9. Not only substances which have harmful effects themselves, but also those which are "convertible" into such dangerous substances, were included by the Plenipotentiary Conference in the Schedules of the Single Convention and can be added to them by the procedure of subparagraph (iii). The 1931 Convention and 1948 Protocol already provided for the control of such "convertible" substances; 10 but when the 1931 Convention introduced in the international field the idea of controlling "convertible" substances, the possibilities of chemical synthesis were not as advanced as they were in 1948, nor particularly as advanced as they are today. Moreover, the "convertible" substances which could be placed under international control under article 11 of the 1931 Convention had to be products "obtained from any of the phenanthrene alkaloids of opium or from the ecgonine alkaloids of the coca leaf". The range of substances which could be controlled as "convertible" was therefore narrowly circumscribed in the 1931 Convention.

10. Neither the 1948 Protocol nor the Single Convention requires that "convertible" substances which may be brought under their control belong to certain chemical groups. The chemical formula of the substances is irrelevant, and the range of chemical classes to which they may belong is thus theoretically unlimited. Moreover, such substances as byproducts of petrol or coal tar can be "converted" into narcotic drugs, and actually are. It cannot have been the intention of the authors of the 1948 Protocol and of the Single Convention to place under international narcotics control anything which may theoretically be "convertible" into narcotic drugs. The purpose of the provisions regarding "convertible" substances is to make it as difficult as practicable for illicit traffickers to obtain material which they could in practice, i.e. with relative ease, transform into controlled dangerous drugs.

11. It can be seen from the discussions of the Plenipotentiary Conference that what the delegates had in mind when they used the term "convertible" was "easily" or "readily" convertible. 11 This has in fact been the tradition meaning of the words 11 convertible" and "conversion" in the field of inter national narcotics treaties. 12 Moreover, the representatives at the Conference were very often technical experts in the field of international narcotics control or had such experts as advisers. Most of them must therefore have been aware of the resolution adopted by the World Health Assembly in 1954 an dealing with the matter. 11 In this resolution the Assembly declared that under the 1931 Convention "a substance will be considered by the World Health Organization as 'convertible' where the ease of conversion and the yield obtained constitute a risk to public health and that in cases where there is uncertainty whether a substance will fall under this definition, the substance will be considered as 'convertible' rather than as 'not convertible' ".

12. When including "convertible" substances in Schedules I and 11 of the Single Convention, the Technical Committee of the Plenipotentiary Conference, in fact accepted this definition of the World Health Organization as can be seen from the criteria quoted above which it used in preparing the Schedules. 11

13. It may be concluded that the "convertibility" required by article 3, paragraph 3, subparagraph (iii) must be of such a kind as to make it, by the case of the process and by the yield, practicable and profitable for a clandestine manufacturer to transform the substance in question into controlled drugs.

14. A substance which is not by itself "liable to similar abuse and production of similar ill effects as the drugs in Schedules I or 11" must be convertible into a "drug", i.e. into a controlled substance listed in either of those Schedules, if it is to be brought under control by operation of subparagraph (iii). This is quite clear under the English and French texts, which respectively use the phrases "convertible into a drug" 15 and "transformable en un stupefiant". 15 The Spanish text describes however the convertible substance as "sustancia ... que puede ser transformada en un producto que se preste a un uso indebido .~ii)iiiaroquepuedeproducirefectosnocivossemejantes". This means that under the Spanish text the dangerous product into which the substance concerned must be "convertible" under subparagraph (iii) need not be in Schedule I or if, i.e. need not itself be controlled. It is suggested that preference must in this case be given to the English and French texts. It cannot be assumed that the authors of the Single Convention intended to control a substance which by itself is not harmful because it is convertible into another substance which, however dangerous, is not itself under the international narcotics regime. There can, however, be no objection under subparagraph (iii) to Placing simultaneously under international control both the harmless substance as well as the dangerous substance into which the harmless one is convertible.

15. The World Health Organization may recommend for inclusion in schedule Il not only substances which are by themselves not dangerous in the meaning of subparagraph (iii), but only convertible into "drugs", 1-1 i.e. into products already under the narcotics regime, but also those substances which have the dangerous properties themselves. "I

16. The WHO has very wide discretion in selecting the Schedule. It may choose either Schedule, both for substances which are themselves dangerous and for those which are not dangerous in themselves, but are convertible into drugs. 116 It will be guided in this choice by the interest of public health in each case, as it appears not only from the degree of danger which the substance in question presents but also from the need to make useful medicines as easily available as may be compatible with the requirements of their control. Substances which are comparatively less dangerous and widely used in medical practice may therefore often be proposed for inclusion in Schedule 11. The criteria which the technical Committee of the Plenipotentiary Conference used in establishing the Schedules and which are quoted above may offer a useful guide in the selection of the Schedule for a substance to be recommended for international control under subparagraph (iii).

17. The Commission on Narcotic Drugs decides whether a substance is to be placed under international control. It can take a positive decision only in accordance with the recommendation of the World Health Organization. It can include the substance only in that Schedule which is recommended by the Organization. If the World Health Organization recommends Schedule I, the Commission cannot decide to add the substance to Schedule 11, or vice versa. The Commission must either accept the Schedule recommended by the World Health Organization or abstain from extending control at all. It may, however, decide to place a drug only in Schedule I and not in Schedule IV if the World Health Organization has recommended simultaneously inclusion in both these Schedules. In no case ran the Commission decide to extend control to a substance if the World Health Organization has not recommended to do it.

18. It is suggested that the Commission should in principle accept the pharmacological and chemical 17 findings of the World Health Organization. When it does not accept the recommendation of the World Health Organization, it should be guided by other considerations such as those of an administrative or social nature. 18

1. Resolution WHA 18.46 (May 1965) of the World Health Assembly; see also the Assembly's resolution WHA 7.6 (May 1954).

2 Formerly called successively WHO Expert Committee on Habit-Forming Drugs, WHO Expert Committee on Drugs Liable to Produce Addiction and WHO Expert Committee on Dependence-Producing Drugs.

3 Dextropropoxyphene was freed from control by the Commission on Narcotic Drugs. It had been inserted in Schedule 11 by the Plenipotentiary Conference; Commission on Narcotic Drugs, report on the nineteenth session, Official Records of the Economic and Social Council, Thirty-seventh Session, Supplement No. 9, para. 157. 

4Records. vol. IL p. 263-264. see also --I T pp I OQ- 19 1

5 Commission on Narcotic Drugs, report on the twenty-third session, Official Records of the Economic and Social Council, Forty-sixth Session, paras. 351-357; -ine members of the Commission disagreed with the opinion of the Legal Office. See also the final report of the Permanent Central Board and Drug Supervisory Body I OB/23-E/DSB/25) paras. 131-142; these two organs had the same opinion as the I Legal Office; for the full text of opinion of the Legal Office see United Nations document E/CN.7/L.306.

6 WHO Expert Committee on Dependence-Producing Drugs, 15th Report, -Sections 1.1 and 1.3, WHO Technical Report Series No. 343; Commission on Narcotic Drugs report of the twenty-first session, paras. 61-64, Official Records of the Economic and Social Council, Forty-second Session, Supplement No. 2.

7 Commission on Narcotic Drugs, report on the twenty-second session, Official Records of the Economic and Social Council, Forty-fourth Session, Supplement No. 2, para Al

8 Control of the hallucinogenics as well as of amphetamines, barbiturates and tranquillizers is provided for in the Convention of 21 February 1971 on Psychotropic Substances which also provides for a procedure, similar to that of the Single Convention, for placing additional substances under its regime document E/CONF.58/6 and E/CONF.58/6/Corr.1 (the latter document only in English).

9 Which-strictly speaking-would hardly be possible; see however article 1, para. 1 of the 1948 Protocol.

10 Article 11, paras. 3, 4 and 6 of the 1931 Convention; article 1, para. 2 of the

11 Records, vol. 1, p. 66, vol. 11, pp. 90-91.

12 Le. the sense in which these terms are used in the 1931 Convention and 1948 Protocol.

13 Resolution WHA 7.7. (May 1954).

14 Records, vol. 11, pp. 263-264.

15 Article I ---- ' - ' ra- 

16 Under article 11 of the 1931 Convention substances which were "addiction producing" could not be included in Group 11, but only those which were not "addiction producing" themselves but merely convertible into addiction-producing drugs. 

17 Le. as regards "convertibility". 

18 Records, vol. 1; pp. 66 and 68; vol. II, pp. 92 and 93.

 

Paragraph 4

4. If the World Health Organization finds that a preparation because of the substances which it contains is not liable to abuse and cannot produce III effects (paragraph 3) and that the drug therein is not readily recoverable, the Commission may, in accordance with the recommendation of the World Health Organization, add that preparation to Schedule 111.


Commentary

Exemption of preparations from certain measures of control

1. Preparations in Schedule III are subject to considerably more extensive controls than those "for the export of which export authorizations are not required", i.e. which were "exempted" under the earlier narcotics treaties.
For the controls under the Single Convention and under the earlier treaties, see above, comments on article 2, paragraph 4.

2. As in the case of all changes in the Schedules of the Single Convention, action of both the World Health Organization and of the Commission on Narcotic Drugs is required to add a preparation to Schedule 111. The Commission cannot do this unless it is recommended by the World Health Organization, and cannot change the definition of the preparation given by the World Health Organization. If deciding to add a preparation to Schedule III, it must act fully in accordance with the recommendation of the World Health Organization. It may, however, refuse to make an addition to Schedule III recommended by that Organization.

3. The Director-General of the World Health Organization is at the time of this writing the organ authorized to act on behalf of the Organization under paragraph 4, as in respect to all other findings and recommendations under article 3. See above, comments on article 3, paragraph 3, subparagraph (iii).

4. If the World Health Organization receives through the SecretaryGeneral a notification from a Party stating that Party's opinion that the addition of a given preparation to Schedule III may be required, it must examine whether the preparation has the pharmacological and chemical properties which under paragraph 4 justify exemption. It is, however, suggested that even if its examination results in an affirmative finding, the World Health Organization need not in all cases recommend the preparation's addition to Schedule Ill. It may hold that a wide consumption of the preparation involved, without medical supervision, is not advisable, that exemption is not Justified in the light of sound principles of public health, and that consequently an amendment to Schedule Ill is not "required". I The World Health Organization may in particular arrive at this opinion in the case of a preparation which, although fulfilling the conditions of paragraph 4, is only of very little or questionable therapeutic value. It must not be overlooked that a preparation whose harmful drug content is not "readily" recoverable may nevertheless represent some limited risk to public health. Acceptance of this risk should he justified by some therapeutic advantages which would be offered by an exemption, making a useful preparation very easily available for wide consumption without requiring a medical prescription. Inclusion of a preparation in Schedule 1-11 is not favoured by the spirit of the Single Convention. 2

5. The Single Convention, however, does not contain any provision excluding from Schedule III preparations of drugs in Schedule IV. Since drugs in Schedule IV have no substantial therapeutic value not possessed by other less dangerous drugs 3 and are therefore not really needed in the treatment of the sick, it is not very probable that a preparation of such a drug might be so widely needed for legitimate purposes as to justify, under the conditions of paragraph 4, exemption in order to facilitate widespread consumption without medical supervision. It cannot, however, be excluded from a theoretical view point that a combination containing a drug in Schedule IV may in the future be found to have such important and widely needed therapeutic properties as to justify exemption if the conditions of paragraph 4 are met.

6. The Technical Committee of the Plenipotentiary Conference which adopted the Single Convention, listed in Schedule III preparations which

"(a) Are intended for legitimate medical use; and

"(b) Have a specified drug content and are compounded with one or more ingredients in such a way that the preparation has no, or a negligible risk of abuse, and in such a way that the drug cannot be recovered by readily applicable means or in yield which would constitute a risk to public health 11.4

7. The criteria mentioned under (b), although described in more detail, are those incorporated in paragraph 4 of article 3. The 1925 Convention provided for substantially the same conditions for exemption of preparations from its controls. 5 It has been suggested above that the criterion indicated under (a) might also be taken into account by the World Health Organization when considering the recommendation which it should make under article 3, paragraph 4. The factors which may be relevant in the procedure for including a preparation in Schedule III may be summed up as follows:

(a) Drug content of the preparation;

(b) Potency of the drug;

(c) Nature of the admixtures, their degree of effectiveness in counteracting 6 the dangerous properties of the drug;

(d) Practicability of recovery of the drug by illicit traffickers or persons desiring to abuse it;

(e) Therapeutic value and extent of the legitimate use of the preparation.

8. In arriving at its decision as to the control status of the preparation involved the Commission will, of course, be guided by the pharmacological and chemical findings of the World Health Organization; but the question of the practicability of the recovery of a drug is not only a matter of chemical evaluation. The conditions under which illicit traffickers may be able to engage in the extraction of the drug in different countries, e.g. what type of machinery or solvents may in practice be available to them, and the price which the drug may fetch in the contraband trade may be very important factors among the questions on which the members of the Commission will have special expert knowledge.

9. It has been noted above that the number of preparations which are included in Schedule III of the Single Convention is much smaller than that of the preparations "exempted" under earlier narcotics treaties. I

10. The procedure of article 3, paragraph 4 can also be initiated by the World Health Organization.

2 See article 39.

3 Article 3, para. 5.

4 Records, vol. 11, p. 264.

5 Article 8; see above, comments on article 2, para. 4 and the general comments on article 3.

6 E.g. by emetic action.

7 See above comments on article 2, para. 4.

Paragraph 5

5. If the World Health Organization finds that a drug in Schedule I is particularly liable to abuse and to produce ill effects (paragraph 3) and that such liability is not offset by substantial therapeutic advantages not possessed by substances other than drugs in Schedule IV, the Commission may, in accordance with the recommendation of the World Health Organization, place that drug in Schedule IV.


Commentary

Insertion in Schedule IV

1. As in the case of all other changes in the Schedules, action of both the World Health Organization and of the Commission on Narcotic Drugs is required to bring about a new listing in Schedule IV. See above, comments on article 3, paragraph 3, subparagraph (iii) and paragraph 4.

2. For the authority of the Director-General of the World Health Organization to act on behalf of that Organization, see above, comments on article 3, paragraph 3, subparagraph (iii).

3. The question arises whether the World Health Organization can make a finding that a substance has dangerous properties as defined in paragraph 5 only if it is a drug already placed in Schedule I by the Plenipotentiary Conference or by the Commission on Narcotic Drugs, or whether the Organization has the power to make simultaneous findings that a substance should be placed both in Schedules I and IV. The latter appears preferable from a practical view point, and also seems to agree with the opinion of the World Health Organization on this matter. I To require the World Health Organization to delay its recommendation to place a substance in Schedule IV until the Commission has decided to accept the Organization's recommendation to include the same substance in Schedule I does not seem to be a desirable procedure it might delay the expeditious adoption of necessary international control measures. As can be seen from the text of article 3, paragraph 3, subparagraphs (i) and (ii) regarding provisional control, provision for the quick extension of controls was considered by the authors of the Convention to be necessary in order to prevent the spread of the abuse of uncontrolled subtances. No Party has objected to the World Health Organization's recommendation to place substances simultaneously in Schedules I and IV, 11 and can be assumed that it is generally acceptable to interpret the phrase "a drug in Schedule I" in the conditional clause of paragraph 5 to mean "a drug listed in Schedule I or recommended for inclusion in Schedule 1". 2

4. It will be recalled that drugs in Schedule IV must also be included in Schedule 1. 1 As the WHO can recommend for inclusion in Schedule IV only drugs already in Schedule I or substances which it recommends simultaneously to place in Schedule I, so can the Commission on Narcotic Drugs lace in Schedule IV only drugs in Schedule I or substances which it decides simultaneously to place in Schedule 1.

5. As in the drawing up of all Schedules of the Single Convention, the technical Committee of the Plenipotentiary Conference which adopted that eaty was guided by the "degree of liability to abuse" and the "risk to public health and social welfare" 4 of the substances which it considered for inclusion Schedule IV. It described the substances which it listed in this Schedule those:

"(a) Having strong addiction-producing properties or a liability to abuse not offset by therapeutic advantages which cannot be afforded by some other drug; and/or

"(b) For which deletion from general medical practice is desirable because of the risk to public health"."

6. The standards set out by the Technical Committee under (a) are substantially the same as the criteria of article 3, paragraph 5, justifying the conclusion of a drug in Schedule IV; the criterion mentioned under (b) was not corporated in the text of the Single Convention. The standards of (a) and were formulated by the Technical Committee as cumulative or alternative conditions. Since the desirability of deleting a drug from general medical practice must under (b) be due to its "risk to public health", cases covered the definition of (b) will generally if not always also fall under (a). There therefore, hardly any difference between the standards used by the Technical committee when composing Schedule IV and those which were incorporated paragraph 5 of article 3.

7. If it is found that a drug has particularly dangerous properties and lacks therapeutic value, as paragraph 5 requires for inclusion in Schedule IV, its deletion from general medical practice will usually be desirable from the view point of public health. The recommendation of the World Health organization and the decision of the Commission on Narcotic Drugs to place a drug in Schedule IV will in fact largely be motivated by such a desire. 6

8. It may, however, also be desirable to remove from general medical practice a drug which does not have the particularly harmful effects defined in paragraph 5, but is nevertheless of no therapeutic value. However appropriate such an action might be from a more general view point of public health, a drug of this kind could not be placed in Schedule IV.

9. As the reference to paragraph 3 makes quite clear, the dangerous properties required by paragraph 5 are of the same types as those defined in paragraph 3, subparagraph (iii), i.e. in view of the present composition of Schedules I or 11 they must be morphine-like, cocaine-like or cannabis-like. I The difference between the harmful effects required by paragraph 5 and those defined in paragraph 3, subparagraph (iii) is one of degree and not of kind.

10. Those who question the particularly harmful character of cannabis and cannabis resin may hold that the Technical Committee of the Plenipotentiary Conference was under its own criteria not justified in placing these drugs in Schedule IV; but the approval of the Committee's action by the Plenipotentiary Conference places this inclusion beyond any legal doubt. Should the results of the intensive research which is at the time of this writing being undertaken on the effects of these two drugs so warrant, they could be deleted from Schedule IV, and these two drugs, as well as extracts and tinctures of cannabis, could be transferred from Schedule I to Schedule 11. 11

11. While the Commission on Narcotic Drugs will accept the findings of the World Health Organization made under paragraph 5 on the harmful properties and lack of therapeutic value of a drug, it need not implement the organization's recommendation to place the drug in Schedule IV. The Commission may in particular accept a recommendation of the World Health Organization to include a substance in Schedule 1, while refusing a simultaneous recommendation to add the substance also to Schedule IV. When failing to make a recommended insertion in Schedule IV, it may act on the basis of a great variety of considerations other than those of a pharmacological character, as accords with the competence of its members in administrative and social matters. The Commission may, however, in no case place a drug in Schedule IV without a recommendation of the World Health Organization to do so. It must in this case act "in accordance with the recommendation of the World Health Organization".

12. As regards the possibility of placing in Schedule III preparations of drugs in Schedule IV, see above, comments on article 3, paragraph 4; for the regime governing drugs in Schedule IV and for the historical background of this regime, see comments on article 2, paragraph 5.

1. The World Health Organization recommended to place simultaneously in Schedules I and IV acetorphine and etorphine, both substances notified by the Government of the United Kingdom of Great Britain and Northern Ireland under article 3, para. 1; WHO Expert Committee on Dependence-Producing Drugs, 15th Report, Sections 1.1 and 1.3, WHO Technical Report Series 343. The Commission on Narcotic Drugs did not object to this simultaneous recommendation when acting on these two drugs; Commission on Narcotic Drugs, reports on the twenty-first session and on the twenty-second session, Official Records of the Economic and Social Council Forty-second Session, Supplement No. 2, paras. 61-64 and Ibid., Forty-fourth Session Supplement No. 2, para. 43. 

2 See also above comments on article 3, para. 3, subpara. (iii). 

3 Article 2, para. 5, introductory subparagraph.

4. records vol II p 263

5 records vol II p 264

6 Prohibition of the production or manufacture of, trade in or use of the drugs involved may be one of the measures which a Party to the Single Convention may have to adopt in respect of drugs in Schedule IV; article 2, para. 5; see above, comments on that paragraph.

7 See above, comments on article 3, para. 3, subpara. (iii), particularly as regards the possible gradual change in the character of drugs included in the Schedules. The comments on para. 5 refer to Schedules I and 11 because it cannot be excluded that a drug having properties similar in kind to those of a drug in Schedule 11 may be so much more potent as to require its inclusion not only in Schedule I but also in Schedule IV. As regards the relevance of potency to inclusion in a Schedule, see also above, comments on article 3, para. 3, subpara. (iii).

8 It is submitted that after the Vienna Convention of 21 February 1971 has come into force, cannabis, cannabis resin and extracts and tinctures of cannabis could be placed under its regime if they are removed from the Schedules of the Single Conven. tion. Article 28, para. 1 of the Single Convention would, however, continue to apply unless this treaty is revised to prevent this. (The same must also be stated in respect to article 22.) The effect of reservations under article 49 concerning these cannabis drugs would be restricted to the application of article 28, para. 1. It is however admitted that this legal possibility of transferring cannabis and cannabis resin from the scope of the Single Convention to the regime of the new treaty may be disputed. Some may hold that in view of the continued application of article 28, para. 1, cannabis and cannabis resin are not substances "not yet under international control" within the meaning of article 2, para. I of the Vienna Convention; the Vienna Convention is reproduced in document E/CONF.58/6.

 


Paragraph 6

6. Where a notification relates to a drug already in Schedule I or Schedule II or to a preparation in Schedule III, the Commission, apart from the measure provided for in paragraph 5, may, in accordance with the recommendation of the World Health Organization, amend any of the Schedules by:

(a) Transferring a drug from Schedule I to Schedule 11 or from Schedule II to Schedule 1; or

(b) Deleting a drug or a preparation as the case may be, from a Schedule.


Commentary

Other changes in the Schedules

1. Paragraph 6 deals with all changes in the Schedules of the Single Convention other than those with which paragraph 3, subparagraph (iii) and paragraphs 4 and 5 are concerned. It does not deal with the insertion of an uncontrolled substance either in Schedule I or 11, and with any additions to Schedule III or IV.

2. Some of the changes with which paragraph 6 deals must be accompanied by other consequential changes: A drug which is listed in Schedules I and IV, if transferred from Schedule I to Schedule 11, must be deleted from Schedule IV. This must also be done if the drug is deleted from Schedule I without being transferred to Schedule 11. 1 Preparations listed in Schedule III of drugs which are deleted from Schedule I or II without being transferred to the other Schedule, i.e. are freed from international control, must be deleted from Schedule 111, 2 The Commission must make these consequential obligatory changes even if the World Health Organization has failed to recommend them, while it may effect all the other changes in the Schedules only "in accordance with the recommendation of the World Health Organization", i.e. if they are recommended by that Organization.

3. The procedure to be applied in changing the Schedules under paragraph 6 is the same as that to be followed in the changes under the preceding paragraphs. The criteria to be employed under these paragraphs in the inclusions in Schedules 1, 11, 111 and IV are also those which must be taken into account in the transfers and deletions of paragraph 6. Regarding these criteria and this procedure, and in particular the initiation of the procedure by notifications, the role of the World Health Organization and the Commission on Narcotic Drugs, the relation between recommendations of the World Health Organization and the decisions of the Commission on changes in the Schedules, and the authority of the Director-General of the World Health Organization to act under article 3, see the comments on the preceding paragraphs of this article.

1 Article 2, para. 5, introductory subparagraph.

2 Article 1, para. 1, subpara. (s) in connection with subpara. (j).


Paragraph 7

7. Any decision of the Commission taken pursuant to this article shall be communicated by the Secretary-General to all States Members of the United Nations, to non-member States Parties to this Convention, to the World Health Organization and to the Board. Such decision shall become effective with respect to each Party on the date of its receipt of such communication, and the Parties shall thereupon take such action as may be required under this Convention.

Commentary

Communication of decisions of the Commission on Narcotic Drugs effecting changes in the Schedules of the Single Convention

1. The Secretary-General of the United Nations is required to communicate the decisions of the Commission taken pursuant to article 3 1 to all States which have treaty obligations to cooperate in international narcotics control, i.e. to the Parties to the Single Convention, which are bound to carry out those of the Commission's decisions under article 3 which are onerous, and to the Members of the United Nations, which under the terms of the Charter of the United Nations have undertaken to co-operate in the fight against drug abuse as well as in other social matters. 2 It will, on the other hand, be noted that the notifications initiating the procedure for changes in the Schedules of the Single Convention are communicated only to Parties to that treaty, and not to those Members of the United Nations which are not Parties. a It is thus only the former that are enabled to participate in the procedure by submitting comments addressed to the World Health Organization, or to the Commission, or both.

2. It may also be noted that provision is made for communication to the Board of the Commission's decisions, but not of the notifications. The Board must take steps to implement the decisions, but plays no role in the procedure by which they are adopted. 11 It has, however, been suggested above that, although not required by any provision of the Single Convention, it would be useful to communicate the notifications also to the Board in order to enable that organ to take such preparatory measures as may be necessary to ensure the quick execution of the Commission's decisions when taken.

3. Governments should carry out the onerous decisions of the Commission as expeditiously as practicable. National narcotics laws normally provide for changes, by decree, in the lists of drugs subject to control; but the procedure for issuing such a decree requires some time. A Party is certainly allowed a reasonable interval between the receipt of the communication of the Commission's decision and the issue of its decree implementing the decision.

4. Paragraph 7 provides that the decision of the Commission becomes effective in respect to each Party on the date of its receipt of the communication of that decision. Fixing these dates exactly may be of minor importance for determining whether the lapse of time between the receipt of the decision by a Party and its enactment of the decree implementing it has not been too long, since it must be assumed that Governments will act in good faith and will not deny the receipt of the communication, so that a few days' difference will not be relevant; but under article 3, paragraph 8, subparagraph (a), the period of ninety days within which a Party may lodge an appeal against a decision of the Commission begins to run on the date of its receipt of the notification of the decision. It is therefore suggested that the SecretaryGeneral of the United Nations could determine these dates and record them if he communicated the decisions of the Commission by registered mail with requests for postal return receipts.

5. It might also be helpful if Governments would notify the SecretaryGeneral of the office to which the Commission's decisions should be addressed in order to ensure speedy follow-up action on the national level. Use of crowded normal diplomatic channels or other channels used for numerous United Nations communications may sometimes cause an undue delay.

1. Le. pursuant to para. 3, subparas. (ii) and (iii) and paras. 4 to 6 of this article. 

2 Articles 55 and 56 of the Charter being understood by the founding San Francisco Conference to cover international narcotics control. Fifth report of the Drafting Committee of Committee 11/3 of the San Francisco Conference, document WD 40 11/3/A/5 26 May 1945; statements of the representatives of Canada, China, India and the United States in Committee 11/3; verbatim minutes of the 19th meeting,

3 Article 3, para. 2.

4 By its regular representation at sessions of the WHO Expert Committee on Drug Dependence and of the Commission on Narcotic Drugs, the Board may, however, exercise some influence in the procedure under article 3; but this representation is not based on provisions of the Single Convention.


Paragraph 8, subparagraph (a)

8. (a) The decisions of the Commission amending any of the Schedules shall be subject to review by the Council upon the request of any Party filed within ninety days from receipt of notification of the decision. The request for review shall be sent to the Secretary-General together with all relevant information upon which the request for review is based;


Commentary

Filing an appeal I or "request" for "review"

1. Only Parties, and not other States whether Members of the United Nations or not, are authorized to make a request for review under paragraph 8. Parties can choose two different ways to bring about a revision of decisions which the Commission has taken under article 3 and with which they are not satisfied. They may make a notification under article 3, paragraph 1, to obtain a reconsideration of the matter by the Commission itself under paragraphs 3 to 6, or they may file an appeal to the Economic and Social Council. By the first method a Party may obtain remedial action even in cases in which the Commission has failed to make a change in a Schedule desired by that Party, whether in so doing the Commission rejected or followed a recommendation of the World Health Organization. The Party may put forward any relevant argument, including those relating to the pharmacological and chemical properties of the drug involved, because the World Health Organization would again be called upon to make its findings and recommendations.

2. By the appeals procedure of paragraph 8, only those decisions of the Commission which alter the Schedules can be contested by a dissatisfied Party. Failures of the Commission to effect revisions are not subject to the Council's review. As just stated, a remedy for such refusals of the Commission can be secured only by a new procedure before the Commission. A Party may, on the other hand, obtain by the appeals procedure a listing in a Schedule other than that recommended by the World Health Organization. It cannot achieve this result by a new procedure before the Commission unless the World Health Organization changes the view which it held earlier. The Single Convention does not require that the Council's decision be "in accordance with the recommendation of the World Health Organization". 2

3. A Party can thus accomplish by an appeal the following changes in the Commission's decisions:

(a) Cancellation of a decision to place an uncontrolled substance under the narcotics regime by entering it either in Schedule I or II;

(b) Revision of such a decision by transferring it from Schedule I chosen by the Commission to Schedule 11 or vice versa;

(c) Cancellation of a decision to free from control a drug by deleting it from Schedule I or II in which it is entered;

(d) Altering a decision to free from control a drug listed in Schedule 1, with the effect that the drug in question is merely transferred to Schedule II;

(e) Addition to Schedule IV of a drug which either the Commission or the Council itself, in the course of the review procedure, has placed in schedule I;

(f) Cancellation of a transfer from Schedule I to Schedule 11 or vice versa;

(g) Cancellation of a decision to make or delete an entry in Schedule III or IV.

4. It is, however, suggested that the Council could hardly list in Schedule I a drug which, having been in Schedule II, was completely freed by the Commission from control. There is no express provision in the Single Convention which would impose a restriction on the Council's authority to ter or reverse decisions of the Commission. 3 It is, however, hardly possible imagine a situation in which the Council could justify the strict control 'Schedule I for a drug in Schedule 11, whose complete freedom from control considered appropriate by the Commission, by the World Health Organization I and by the Party which, by its notification, 5 has initiated the procedure for the Commission.

5. It will be recalled 6 that the Commission must delete from Schedule IV drugs which it removes from Schedule 1, and from Schedule III preparations drugs which it completely frees from control. Such obligatory decisions in be rescinded by the Council only if it simultaneously changes the Commission's decisions whose consequences they are.

6. Parties can be dissatisfied with a decision of the Commission on administrative or social grounds, or also because they disagree with the pharmacological and chemical findings of the World Health Organization on which the decision in question was based. During the consideration by the Plenipotentiary Conference of a procedure for reviewing the Commission's decisions, a number of speakers held that medical or scientific grounds should not form the basis of an appeal to, or request for review by, another organ.
They mentioned that such grounds were within the competence of the World Health Organization, on whose recommendation the Commission would act, and that the reviewing body should be guided only by the administrative aspects of the question.
I The Economic and Social Council is, however, not excluded by the Single Convention from taking into account medical and scientific arguments when deciding on an appeal. Such comments as
the World Health Organization may wish to make on the appeal are in fact made available to the Council;
I but unless they differ from the views which the Organization held in the procedure before the Commission, it is difficult to conceive a situation in which the Council would reject the pharmacological and chemical findings which the Organization had presented to the Commission. It is therefore assumed that Parties will base their appeals on administrative and social arguments rather than on those of a medical or scientific nature. It is suggested that they would find it to be more advantageous to use the latter in a new procedure before the Commission, which they could at any time initiate by a new notification under paragraph 1.

7. The appeal must be filed in one of the official languages of the United Nations. It would be helpful if the appellant Government would furnish the appeal and the supporting documentation in as many working languages of the Council as feasible. The member of the delegation who hands the appeal to the Secretary-General of the United Nations or to an authorized member of the United Nations Secretariat could ask for a receipt in order to have evidence that the document has been filed in time, i.e. within ninety days from receipt by his Government of the decision involved. If the appeal is mailed, it should be registered for the same reason. For a suggestion that the SecretaryGeneral should communicate the Commission's decisions to Governments by registered mail with requests for return receipts and keep a record of the dates on which each Government received the communication, see comments on paragraph 7 above.

3 Article 3, para. 8, subpara. (c).

4 Without whose concurrence the Commission could not have acted; see article 3, para. 6, introductory subparagraph and subparagraph (b).

5 Article 3, para. 1.

6 See above, comments on article 3, para. 6.

8 Para. 8, subpara. (b).

 


Paragraph 8, subparagraph (b)

(b) The Secretary-General shall transmit copies of the request for review and relevant information to the Commission, the World Health Organization and to all the Parties inviting them to submit comments within ninety days. All comments received shall be submitted to the Council for consideration.

Commentary

Communication of copies of the request for review (appeal) to the Parties and organs participating in the procedure.

1. It will be noted that copies of the request for review (appeal) and supporting documentation must be sent by the Secretary-General of the United Nations to the same organs and Governments as those to which he communicates the notification with supporting information by which the procedure before the Commission is initiated. I Communications which are intended to enable the addressees to participate in the procedure, in that of first instance as well as in that of appeal, must be sent to all Parties, but need not be furnished to Members of the United Nations which are not Parties to the Single Convention. Communications under paragraph 2 and paragraph 8 (b) are of this nature. Notifications of decisions which may have to be implemented by Governments are, on the other hand, also communicated to all non-Parties which are Members of the United Nations 2 and to the International Narcotics Control Board. Decisions of this kind are those to be notified under paragraph 7 and paragraph 8, subparagraph (c). No provision is made for furnishing to the Board a copy of the request for review or an invitation to submit comments, since the Board is not given a formal role under the procedure of article 3. It is, however, suggested that it would be useful if copies of the request for review and of the invitation" to make comments were also sent to the Board, which is regularly represented at those sessions of the Economic and Social Council and of its Social Committee which deal with narcotic drugs. 4

2. It may be noted that the Secretary-General need not forward to the addressees mentioned in subparagraph (b) all the supporting information which he receives from the Party requesting the review, but only that part of it which he considers "relevant". What is "relevant" is left to his judgement. He is granted this discretionary power for reasons of economy, since the supporting documentation may be very bulky. 5

3. It is suggested that the World Health Organization should submit its comments in all languages which are at that moment working languages of the Economic and Social Council. This would not only be of help in expediting the procedure, but would also ensure that the Organization's views, which might be of a highly technical nature, were accurately presented in all those languages.

4. Parties are required to make their comments in one of the official languages of the United Nations. It is, however, suggested that it would be very useful if they could furnish translations into as many working languages of the Council as possible. Despite the fact that, pending the review, the decision of the Commission remains in effect, 6 anything which could be done to expedite the Council's action would be important in order to shorten the period of uncertainty about the international control status of the drug in question, and to alleviate the eventual legislative or administrative difficulties which might result therefrom in a number of countries.

5. The Commission, the World Health Organization and the Parties are "invited" to furnish their comments "within ninety days", i.e. within ninety days from receipt of their respective invitations. I The text using the word "inviting" permits also the conclusion that comments received after this period need not be excluded from consideration. Those of them would in any event be taken in account, according to the present practices of the Economic and Social Council which are received in time to be circulated to members of the Council within six weeks" before the beginning of the session which is called upon to deal with the review.

6. The Provision requiring the Secretary-General to transmit to the Commission on Narcotic Drugs a copy of the request for review and an invitation to submit comments within ninety days may give rise to some questions. If, at the time at which the Secretary General issues the invitations under paragraph 8, subparagraph (b), the Commission happens to be in session or is scheduled to meet so as to be able to make the comments pursuant to this subparagraph in time, i.e. "within ninety days", the Secretary-General may carry out his task by making the necessary arrangements to enable the Commission to deal with the matter. Such arrangements would include placing the item on the provisional agenda 9 of the Commission, or if the invitation is made during a session, transmitting it to the assembled Commission, and in both cases submitting to the members of the Commission, in form of United Nations documententation, a copy of the request for review, the supporting relevant information and the invitation to make comments. It is perhaps difficult to say when the period of ninety days would commence to run in these cases. It is submitted that it would be within the spirit of subparagraph (b) to assume that the "ninety days" may be counted from the day on which the invitation is addressed to the assembled Commission, or if this organ is not in session at the time of the communication, from the date at which the last of its members has received the invitation.

7. It is, however, suggested that if the Secretary-General issues the invitations to make comments at a time at which the Commission is not scheduled to meet early enough to be able to make its comments in time, it would be in accordance with the spirit of subparagraph (b) not to solicit the comments of the Commission as a whole, but those of its individual members. To adopt this suggested procedure would be more in accordance with the objec tives of article 3, paragraph 8 than to delay unduly the decision of the Council, and thus to cause to a number of national administrations the above-mentioned legislative or administrative inconveniences which would result from a prolonged uncertainty about the international control status of the drug involved. I he SecretaryGeneral could in such a case address to the members of the Commission the invitation to make comments at the same time as to the Parties and to the World Health Organization. The members should be asked to furnish their comments within ninety days from the dates on which they receive their respective invitations.

8. The invitations to make comments, as well as comments other than those handed to the United Nations Secretariat by members of delegations, should be sent by registered mail. 10 The Secretary-General should request postal return receipts for his communications, and should keep a record of the dates on which the invitations were received by each addressee. 11 The DirectorGeneral of the World Health Organization is at the time of this writing authorized to make comments on behalf of his Organization pursuant to subparagraph (b). 11

9. The question arises whether the Secretary-General should reject a limine a request for review by a non-Party, i.e. whether he should inform the requesting Government that only Parties to the Single Convention are authorized to ask for a review by the Council, and that he consequently could not forward the request pursuant to article 8, subparagraph (b). The wording of this subparagraph does not appear to exclude such a course of action. It might, however, be preferable if the Secretary-General brought the legal problem to the attention of the Government concerned with the informal suggestion of withdrawal of the request for review; but if the Government maintained its appeal, it might be advisable to deal with the request under subparagraph (b) as if it had emanated from a Party, and thus to leave it to the Council to refuse the review, as it would be required to do under paragraph 8, subparagraph (a). Since the character of the requesting State as a Party may sometimes be disputed, the Secretary-General could by this procedure also avoid taking a position on a controversial question with possibly difficult political implications.

10. The same kind of procedure is also suggested if a request is made for review of a decision of the Commission refusing to amend any of the Schedules, such a refusal not being subject to review under paragraph 8.

 

11 Comments of the Commission in session need of course not be sent by mail; the comments can also be handed over to the Secretary-General or his representative by a messenger.


12See above comments on article 3, para. 7.

13 Resolution WHA 18.46 of the World Health Assembly; see also above, comments on article 3, para. 3, subpara. (iii).

 


Paragraph 8, subparagraph (c)

(c)
The Council may confirm, alter or reverse the decision of the Commission, and the decision of the Council shall be final. Notification of the Council's decision shall be transmitted to all States Members of the United Nations, to non-member States Parties to this Convention, to the Commission, to the World Health Organization and to the Board.


Commentary

The decision of the Economic and Social Council

1. Requests for review of decisions of the Commission refusing to amend any of the Schedules must be rejected by the Council, and so must requests for review by nonParties. I As regards the question of the Secretary-General  rejecting such requests a limine, see above comments on the preceding subparagraph.

2. The Council "may confirm , 2 alter or reverse" a decision of the commission which has amended any of the Schedules and whose review has been requested by a Party. It may be noted that the Council is in no case required to act in accordance with a recommendation of the World Health organization, I which may, however, comment on the matter under review 4 No restriction is imposed on the Council's discretion to base its decision on Such reasons as it may consider relevant. For the role of pharmacological and chemical properties of the drug involved in the Council deliberation, see above, comments on subparagraph (a).

3. As regards the various alterations and reversals which may be effected by the Council's decision, see above, comments on paragraph 8, subparagraph (a). The Council's decision is said to be "final". This means that no appeal against the decision to a higher instance was intended to be admitted.

4. Chapter IX of the United Nations Charter, on international economic and social cooperation, provides in Article 55 that "the United Nations shall promote ... b. solutions of international economic, social, health and related problems . . .", and in Article 60 that

"Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X."

If decisions of the Council reviewing decisions of the Commission under paragraph 8 of article 3 of the Convention were to be regarded as in performance of functions under the Charter, they would be, by the terms of the Charter under the authority of the General Assembly, and hence subject to reversal or modification by it. If, however, these decisions of the Council are regarded as separate from the functions conferred by the Charter and as being based solely on the Single Convention, then only the provisions of the Convention and the General Assembly is not competent to modify Council decisions which are stated to be "final". The latter view seems the more persuasive, in view of the nature of the decisions here involved. Under the Charter, neither the Commission nor the Council has the authority to make decisions which impose obligations on States, or alter such obligations; the binding character decisions by those organs under the Single Convention proceeds exclusively from the terms of the Convention. Therefore, even though decisions under the Convention are related to the Charter function of promoting "solutions of international economic, social, health and related problems", it seems preferable to regard them as a separate matter, and hence not subject to reversal or modification by the General Assembly. To the extent that the decisions in question notwithstanding their special character, could be regarded as falling within the Charter functions of the Council, they would of course theoretically be subject to discussion and review by the General Assembly, but the outcome of such review could only have a recommendatory character, and would not alter the binding legal force of the Council's decision.

5. The Council acts as last instance in the process which was initiated by a particular notification in question under article 3, paragraph 1. The French text makes quite clear what is meant by the English words: "the decision of the Council shall be final". The French version reads: "il (le Conseil) statuera en dernier ressort". The Council's decision is not "final" in the sense that the international control status of a drug which it has determined cannot later be changed by a new procedure under article 3, paragraphs 3 to 6 if a Party or the World Health Organization makes the required notification under paragraph 1. It may, however, be assumed that the Commission, being a functional Commission of the Council, would not decide to make such a change on grounds which had been rejected by the Council. It may, on the other hand, take such a decision if new scientific findings, later experience, other new factors or other arguments not put forth in the earlier procedure warrant it; for example, the Commission may in the new procedure transfer to Schedule 11 a relatively less dangerous drug which was placed by the Council in Schedule 1, and which only after the Council's decision has come in widespread use in medical practice. 5

6. As in the case of the other decisions which may have to be implemented by Governments under article 3, 0 notifications of the Council's decisions are transmitted by the Secretary-General not only to Parties to the Single Convention, but also to nonParties which are Members of the United Nations . 7 The notification must also be sent to the Commission and the World Health Organization, which take part in the procedure of first instance and in that of review, and to the Board, which must give effect to the Council's decisions in the performance of its treaty functions. 11 The Commission can thus take note of the limits which it should observe in future proceedings on the control status of a drug which the Council has determined in a review proceeding.

1. see above comments on article 3 para 8 subparas 1 and b

2 the obligatory refusal to review a decision of the commission denying any change in any of the Schedules amounts of course in fact to a confirmation of the commission's action

3 see comments on article 3 para 8 subpara a

4 article 3 para 8 sub[para b asnd comments on subpara a

5 For the inclusion in Schedule 11 of drugs which are relatively harmless and widely used in medical practice, see above, comments on article 3, para. 3, subpara. (air).

6 see para 7

7 As regards the obligation of Members of the United Nations to co-operate in the international fight against drug abuse see above comments on article 3, para. 7 and footnote 2 relating to these comments.

8For differences in the addressees of different communications under article 3, see paras. 2, 7 and 8, subpara. (b) and the comments on these provisions.


Paragraph 8, subparagraph (d)

(d) During pendency of the review the original decision of the Commission shall remain in effect.


Commentary

Non-suspensive effect of a request for review


The provision of this paragraph is based on the consideration that delay in the application of controls might lead to widespread dependence on the
drug involved, I and that-as experience has shown-it is very difficult indeed to repair such a situation once it exists. It may cause some Governments considerable legislative or administrative inconveniences if the review decision differs from that of the Commission; but it can be expected that this would only he very rarely the case. As of the time of this writing no request for review has yet been filed under paragraph 8.

1. The provisions of article 3, para. 3, subparas. (i) and (ii) regarding provisional controls are based on similar considerations; see comments on these provisions.


Paragraph 9

9
. Decisions of the Commission taken in accordance with this article shall not be subject to the review procedure provided for in article 7.

Commentary

In article 7 the single Convention confers upon the Economic and Social Council and the General Assembly the same authority to change decisions or recommendations adopted by the Commission under the terms of the Convention as these two principal organs of the United Nations have in respect of decisions and recommendations of the Commission adopted under the United Nations Charter. Paragraph 9 exempts decisions of the Commission taken Linder paragraphs 3 to 6 of article 3 from the ordinary authority of the Council and General Assembly to review actions of the Commission. Such decisions seem not to be subject to change by the General Assembly,
I and can be Modified by the Council only in accordance with the procedure of article 3, paragraph They may, however, be revised by the Commission itself pursuant to paragraphs I to 6 of that article. See below, comments on article 7.

1. See above, comments on article 3, para. 8, regarding the authority of the General Assembly to change decisions by the Council on review.