Article 33: Protection from Narcotic Drugs and Psychotropic Substances

Convention on the Rights of the Child
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Article 5 Limitation of use to medical and scientific purposes. Each Party shall, except as provided in article 4, limit by such measures as it considers appropriate the manufacture, export, import, distribution and stocks of, trade in, and use and possession of, substances in Schedules II, III and IV to medical and scientific purposes. Article 7 Special provisions regarding substances in Schedule I. The Parties shall require that substances in Schedules II, III and IV be supplied or dispensed for use by individuals pursuant to medical prescription only, except when individuals may lawfully obtain, use, dispense or administer such substances in the duly authorized exercise of therapeutic or scientific functions.

Notwithstanding paragraph 1, a Party may, if in its opinion local circumstances so require and under such conditions, including record keeping, as it may prescribe, authorize licensed pharmacists or other licensed retail distributors designated by the authorities responsible for public health in its country or part thereof to supply, at their discretion and without prescription, for use for medical purposes by individuals in exceptional cases , small quantities, within limits to be defined by the Parties, of substances in Schedules III and IV.

The Parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends.

Convention Against Illicit Traffic, Article 3 Offences and sanctions. Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession , purchase or cultivation of narcotic drugs or psychotropic substances for personal use contrary to the provisions of the Convention, the Convention as amended or the Convention.

The Parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.

Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law. Article 14 Measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances.

Any measures taken pursuant to this Convention by Parties shall not be less stringent than the provisions applicable to the eradication of illicit cultivation of plants containing narcotic and psychotropic substances and to the elimination of illicit demand for narcotic drugs and psychotropic substances under the provisions of the Convention, the Convention as amended and the Convention. Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants , cultivated illicitly in its territory.

The measures adopted shall respect fundamental human rights and shall take due account of traditional licit uses where there is historic evidence of such use as well as the protection of the environment. Possession of Cannabis. To justify the legalization of possession of cannabis, some authors have defended the interpretation that it was the intention of the Parties for the prohibition on possession to be limited to possession for the purposes of trafficking.

To determine whether their interpretation is appropriate, the details of the interpretation must be considered. Briefly, to justify possession of cannabis under the Conventions, these authors assert that article 36 of the Single Convention, , which creates the penal offence of possession of cannabis, covers only possession for the purposes of trafficking. All grounds for the offences to which article 36 refers are directly related to the illicit drug traffic. It also refers to cultivation, production, manufacture, extraction, preparation, offering, offering for sale, distribution, purchase, delivery, brokerage, dispatch, dispatch in transit, transportation, importation and exportation of drugs contrary to the provisions of the Convention.

In arguing this interpretation, these authors also refer to the fact that the third version of the draft Convention, i. Other authors take the position that possession of cannabis, like that of any other drug or psychotropic substance, must be made an offence by the Parties to the Conventions. The Commission stated:. In New Zealand, the Drug Policy Forum Trust — which argues for greater liberalization in the use of cannabis — acknowledges that the Single Convention, and the Convention against Illicit Traffic require that legislative provisions be enacted prohibiting the possession of cannabis for personal use.

Article 33 of the Single Convention, seems clear. It prohibits the possession of drugs. It remains to be determined whether this interpretation of the Convention is justified. For that purpose, a few comments must be made on the principles of the interpretation of treaties in international law. Article 31 General rule of interpretation. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:.

A special meaning shall be given to a term if it is established that the parties so intended. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to section Article 31 of the Vienna Convention on the Law of Treaties establishes the basic principle that applies to the interpretation of treaties. The terms of a treaty must be understood according to their ordinary meaning, in light of its object and purpose.

Agreements entered into in connection with the conclusion of the treaty paragraph 31 2 and subsequent legal instruments relating to the interpretation of the treaty or the application of its provisions paragraph 31 3 should also be considered. On the other hand, a term will be given a special meaning if it is established that this is what the parties intended paragraph 31 4.

Because there seem to have been no supplementary agreements made when the Conventions were concluded, or any subsequent agreements regarding the interpretation or application of the Conventions, any reference to paragraphs 31 2 and 3 in consideration of how to interpret the terms of the treaties can be eliminated. Lastly, it should not be forgotten that under the Single Convention, , cannabis is a narcotic drug on the same footing as opium, heroin or morphine, and is intended to be treated in the same manner. The Commentary of the Secretary-General is a publication that comments on each of the articles of the Single Convention, The Commentary was prepared in response to a request from the Economic and Social Council.

First, the ordinary meaning of the provisions of the treaty is to be applied; if there are difficulties, recourse may be had to supplementary means. Moreover, the Commentary has no legal weight. It was not adopted by the Parties to the Convention nor was it the subject of a resolution of the United Nations or of any of its organs, such as the Economic and Social Council. An international court or arbitration tribunal could well interpret a provision of the Convention in a way contrary to the Commentary. That being said, one item in the Commentary mentioned earlier must be clarified.

The Commentary points out that the Single Convention, is not divided into chapters like the third version of the Convention on which the Parties worked; the justification given for the disappearance of the chapters, however, seems quite weak. If the legislature amends a provision, it means that it wants the amendment to have a meaning. Applying this principle to the disappearance of the chapter divisions between the third and final versions of the Single Convention, implies that disappearance must mean something.

One possible interpretation is that the Parties had agreed on this step in order to ensure that the Convention could not be interpreted on the basis of those divisions, and so that the prohibition on possession in article 36 could not be limited to possession for the purposes of trafficking alone. The only way to settle the debate definitively, as to whether possession of cannabis or another drug must be made an offence by virtue of one of the three Conventions, would be to obtain a decision on the matter from the International Court of Justice.

Articles from each of the three Conventions — article 48 of the Single Convention, ; article 31 of the Convention on Psychotropic Substances ; and article 32 of the Convention against Illicit Traffic — provide that any dispute relating to the interpretation of these Conventions should be settled by agreement between the Parties and, failing agreement, by the International Court of Justice.

Even if the Single Convention, requires that possession of cannabis be made an offence, it still allows the Parties latitude as to the sanctions or penalties they impose. The sanctions imposed must have a deterrent effect on the offender or any other individual who might be tempted to commit the same offence. The sanction must be determined on the basis of the seriousness of the offence. The Conventions recognize, implicitly and explicitly, [] that imposing sanctions is a matter within the domestic law of the Parties. Each Party may choose the approach that it considers most appropriate to deal with the various situations that may arise.

Contrary to what some commentators believe, the possession or use of cannabis in the Netherlands and Belgium has not been decriminalized; it is still an offence. On the other hand, the authorities of those countries have chosen to take a lax approach to such offences; the use of cannabis is tolerated in clearly identified places.

The administration of justice within the territory of a Party is a matter within its exclusive jurisdiction. The state need account to no one. No international organization has any right to scrutinize the manner in which the Parties apply the legislative provisions they have enacted pursuant to the Conventions. They do not have to justify their decisions. At most, they could be criticized if their conduct were injurious to other Parties or harmful to the mutual cooperation in which they must engage.

The tolerance exhibited by the Netherlands and Belgium may be criticized, but no other state or international body may interfere. The authorities of those two countries seem to have chosen, for their own reasons, not to enforce their legislation prohibiting the possession and use of cannabis. In accordance with the drug Conventions, Canada has enacted a legislative measure prohibiting the possession of cannabis. For people who favour the decriminalization of possession of cannabis for personal use, none of this is an acceptable position. As long as the drug Conventions are worded as they currently are, the Parties will have to maintain legislative provisions prohibiting the possession of cannabis for personal use.

The Parties could choose to change this situation by adopting amendments to the Conventions to that effect. Each of the three Conventions has provisions whereby they can be amended. Briefly, the Parties may choose to accept the proposed amendments and ratify them, the effect of which would be to bring them into force within such time as the Conventions provide. If only one Party chooses not to ratify the proposed amendments, the Secretary-General could convene a conference on the subject.

If this led to an agreement among the Parties to amend the Conventions to permit possession of cannabis, the amendment would be in the form of a protocol which, in order to come into force, would have to follow the process for implementation and ratification described earlier, with respect to the coming into force of an international treaty.

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It must be noted that in one very specific case, the Convention against Illicit Traffic authorizes the cultivation and use of narcotic drugs or psychotropic substances apart from medical and scientific uses: traditional licit use of these substances, where there is historic evidence of such use. The fact that the addition of this kind of use must be supported by historic evidence avoids the creation of new religions that could incorporate the use of these substances in their rites, solely in order to circumvent the general prohibition.

Rehabilitation programs in which addicts receive doses of the drugs on which they are dependent, or substitutes, are usually established and carried out under medical supervision. Compliance with this one formality medical supervision brings the use of drugs under the heading of use for medical purposes, and should therefore bring these programs into compliance with the undertakings given under the three Conventions.

Although it may be surprising, a program that prescribes heroin for a heroin addict is easier to justify under the three Conventions than is simple possession of cannabis. The reason is straightforward. Prescribing heroin is a medical act, and the program that authorizes it is in fact a treatment whose purpose is rehabilitation. It should not be forgotten that medical or scientific supervision would be an essential requirement the condition sine qua non for the program in question to be legal.

As mentioned earlier, the Commentary of the Secretary-General has no legal weight in international law. This assertion requires some explanation. To have legal weight, the rules must have been accepted by the international community. Acceptance of rules is formal express when it is done by means of a treaty. The Parties to a treaty agree on the rules that they intend to apply among themselves.

Those rules are then set out in a document. It is not the existence of the treaty that establishes the rule, but the voluntary agreement of the Parties to accept it.

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International organizations are bodies that are independent of their members, although the members participate in their activities and decisions. An international organization does not have the power to establish rules through resolutions and decisions. The decision-making assemblies of those organizations are independent of the member states.

The resolutions they adopt and decisions they make are theirs alone.

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Those resolutions and decisions do not carry the weight of a treaty among the Parties, because the formal procedure required for concluding a treaty is lacking. For example, the participants in a decision have not been given the mandate to enter into a treaty by their own countries. The resolutions and decisions are non-obligatory declarations for the members of the organization, and at best may give them guidelines for their conduct.

Any measures taken by the members on the basis of the resolutions or decisions are purely voluntary. A resolution of an international organization may become an international treaty if there are provisions for this. Articles 26 and 27 of the Covenant on Economic Rights and articles 48 and 49 of the Covenant on Civil Rights provide for procedures for ratification by the members of the United Nations and for the formalities for coming into force.

When these procedures and formalities were completed, the two protocols became international treaties that are binding on the states that ratified them. Similarly, declarations by the participants at an international conference are merely statements of principle that have no legal weight.

They serve only to guide the future work of the conference or international organization under whose aegis they were adopted. Accordingly, the resolutions and declarations adopted at the United Nations Conference on Drugs in June are merely statements of principle. They have no legal weight and serve only to guide the future work of the participants in the conference. Lastly, the Commentary of the Secretary-General, referred to above, was probably written by staff at the United Nations Secretariat.

It was likely never submitted to the members for adoption or comment before being published. Accordingly, it carries even less weight than the resolutions and decisions of international organizations. As might be expected, the negotiation of international treaties is not an easy task. In addition to establishing means of attacking a common problem, it is necessary to take into account the concerns of the various parties with respect to the subject at issue.

The Conventions on drugs seem to blend national interests harmoniously with the need for cooperation in the fight against illegal trafficking. States continue to be free to impose sanctions on those who break their laws, and cooperation mechanisms judicial cooperation, extradition, etc. There is still room for improvement and modifications. To effect any necessary changes, however, each Party must give evidence of being in favour of them. Some states are more reluctant than others to soften the laws dealing with personal drug consumption. Those in favour of more relaxed measures must arm themselves with patience and with evidence from numerous studies in order to convince the more reluctant states of their point of view.

If, in the face of the problem of drug use, these shifts in attitude are possible in Canadian society, it seems likely that similar changes could come about in other societies. Laws evolve to reflect changes in the society that adopts them. International standards will evolve as the international community evolves, but time and effort must go into the process. To sort out the complex process of concluding and implementing treaties in Canada, this Appendix explains the various steps that must be taken in order for an international treaty to come into force in Canada.

The three international Conventions on drugs examined in this paper are the product of three conferences held under the aegis of the United Nations. The conclusion of an international treaty is normally the result of an international conference at which the signatory countries are represented by officials of the relevant government departments, selected by the executive branch of the government.

For instance, it would be logical to assume that in matters relating to drugs, Health Canada and Justice Canada, in addition to Foreign Affairs, would be involved and send representatives. In order for there to be a treaty, there must be agreement an expression of intention by the states to that effect. To express its agreement, each state must delegate its duly instructed representative its plenipotentiary to the conference and give that representative powers to make binding commitments, to make agreements on its behalf.

As mentioned above, in practice, when negotiations take place with a view to concluding a treaty, a team of people will be working for Canada. The Governor in Council receives periodic reports concerning the progress of the negotiations and the likely content of the treaty. When it is apparent that the treaty will be concluded, and the Governor in Council is satisfied with the content of the treaty, the Governor in Council will give the representative full powers. The representative thereby acquires authority to sign the treaty on behalf of Canada.

Merely signing the treaty, however, does not operate to bring the treaty into force, let alone to bring it into force in Canada. For that to occur, it must be ratified and implemented, if implementation is required. Ratification takes the form of an order of the Governor in Council stating that Canada has completed the formalities of implementing the treaty in Canada and that it intends to be bound by the terms of the treaty.

However, before the order is made, it must be ascertained that Canada is in compliance with the obligations it undertook in the treaty. The terms of a treaty do not apply directly in Canada. The only body that is competent to make rules is the legislative branch. If a treaty were to be allowed to apply directly, this would amount to giving the executive the power to make rules, by entering into a treaty, that would apply throughout the territory of Canada. This is not the case. Also under the Convention, states must estimate their needs for narcotics and inform the INCB of these.

States that permit the cultivation of opium or cannabis must maintain national agencies to supervise their cultivation. Provisions regarding the criminal nature of any form of transaction with respect to prohibited substances form much of the Single Convention, The Convention deals with controlling the manufacture of drugs, [36] trade and distribution, [37] international trade, [38] possession, [39] measures of supervision and inspection, [40] action against illicit traffic, [41] the enactment of penal provisions, [42] seizure and confiscation [43] and the treatment of addicts.

The Convention on Psychotropic Substances supplements the Single Convention, in that it deals with substances that were not covered by the earlier Convention. Like the Single Convention, , whose objective is to put controls on the manufacture and use of, and trade in, drugs, the objective of the Convention on Psychotropic Substances is to place equally stiff controls on these substances. In addition, it recognizes the roles of the existing institutions the Council, the Commission and the INCB as forums for discussion and decision-making or as supervisory bodies.

The following is a summary of the main provisions of the Convention on Psychotropic Substances:. The main objective of the Convention against Illicit Traffic is to promote cooperation among the Parties for eliminating the illicit traffic in narcotic drugs, psychotropic substances and their precursors. Like the other two Conventions, it refers to the international institutions that have already been established as bodies for discussion, and which exercise control.

The main provisions of this Convention are as follows:. As mentioned earlier, the Controlled Drugs and Substances Act covers the most important of the legislative provisions that Canada is required to enact under the three Conventions cited earlier. These Schedules contain the same substances as are described in the Schedules to the three Conventions, divided into different groups. Part I of the Act creates offences associated with illicit transactions involving controlled substances possession, possession for the purpose of trafficking, exporting and importing, production, etc.

Part II of the Act provides for enforcement and coercion measures such as the issuance of warrants, searches, restraining orders, seizures, confiscations, etc. Part V gives the Minister of Health, who is the Minister responsible for the administration of the Act, the power to make orders for contraventions of regulations made under the Act and provides for the procedures that follow on the making of such orders. Part VI sets out certain rules of evidence and procedure that apply to the offences created by the Act. For example, the following matters are determined by regulation:.

To date October , the Governor in Council has made three sets of regulations pursuant to the powers conferred by the Act. The Narcotic Control Regulations deal with the possession of narcotics by authorized persons, permits and authorized distributors, pharmacists, practitioners and hospitals.

Those regulations also prescribe the formalities for exemption and the reports that must be filed by the police forces. As noted earlier, it would be too time-consuming to comment on all aspects of these Conventions and to examine how they are implemented in Canada or in other countries. Accordingly, comments are limited to three particular topics:.

Each state has its own legal and judicial system, and each of those systems has its own characteristics. For example, in Canada there is a presumption of innocence in criminal cases; a person is presumed to be innocent until he or she is found guilty following a judicial process. The consequence of this principle is that investigators are required to collect all the evidence that is needed for an accused to be charged and convicted. The accused may refuse to participate in the investigation, by remaining silent, and cannot be compelled to testify at his or her trial.

In other countries, the rules may be different. As well, each country has its own approach to the penalties and sentences imposed. Some countries place greater emphasis on punishing the crime, while others prefer the approach of rehabilitating criminals. The three Conventions recognize these particular features of national legal and judicial systems and specify that the measures adopted by the states will respect them.

The words used are different from one Convention to another, but the intention seems to be the same. In Canada, these particular features may be identified as being all the elements of constitutional law to which each level of government in the Canadian federation the federal government and the provinces , and each branch of that government legislative, executive and judicial , is subject.

The three Conventions recognize that implementation is subject to the particular legal features of the states that become Parties. In fact, the substance of these clauses is implied in all international treaties. The division of legislative powers between the federal and provincial governments means that the federal government must not infringe the jurisdictions of the provinces in implementing and ratifying a treaty. If the subject matter of the treaty requires legislative action in a field within provincial jurisdiction, the federal government — before ratifying a treaty — will have to secure the cooperation of the provinces in ensuring that their legislation is in conformity with its terms.

With respect to the three drug Conventions, the legislative measures needed to implement the aspects of the Conventions making the illicit traffic of drugs an offence all fall under the criminal law. Criminal law is within federal jurisdiction, so Parliament could act alone to implement those aspects of the treaties. There could be a federation in which criminal law is within the jurisdiction of its provinces or states; in that case, the provinces or states would have to take action to implement the drug treaties before the federal state in question could ratify them.

On the other hand, health falls within provincial jurisdiction; as a result, it is the provinces that set up rehabilitation programs for addicts. This division of powers within the Canadian federation does not seem to create any difficulties in terms of the implementation of the three Conventions. Parliament and the legislatures may not disregard the Charter, and the numerous judgements of the Supreme Court of Canada act as a reminder of this fact. This means that all the provisions of the Charter dealing with individual rights in the judicial system are basic elements of the Canadian legal system and may not be disregarded.

Accordingly, it would be undesirable to infringe the following legal guarantees with the excuse of combatting the scourge of drugs:. Normally, a statement of that nature expresses the policy of the government on a particular subject, and the process that it intends to follow to implement that policy. Neither the government policy nor the process should be considered as part of those basic concepts. As explained above, the Conventions require states to adopt measures for the control of narcotic drugs and psychotropic substances within their territories.

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Those measures must be very restrictive, and the only authorizations permitted are limited to medical and scientific use. On the other hand, despite these Conventions, some countries have adopted measures that permit simple possession of cannabis, while others have chosen to take a tolerant attitude toward simple possession. Still other countries have adopted rehabilitation programs for addicts that allow them to continue to consume the drugs on which they are dependent, or substitutes for those drugs, during their period of rehabilitation.

Opinion is divided as to whether such countries are free to adopt measures of this nature and still be in compliance with their obligations under the three Conventions. The question remains as to whether these countries, which have in fact ratified the three Conventions, are free to permit the use of cannabis and to establish rehabilitation programs that use prohibited drugs or substitutes.

The following provisions of the three Conventions are those considered to be the most relevant for the purposes of this paper emphasis is added :. Single Convention , Article 4 General obligations.

The Parties shall take such legislative and administrative measures as may be necessary:. Article 33 Possession of drugs. The Parties shall not permit the possession of drugs except under legal authority. Convention on Psychotropic Substances, Article 5 Limitation of use to medical and scientific purposes. Each Party shall, except as provided in article 4, limit by such measures as it considers appropriate the manufacture, export, import, distribution and stocks of, trade in, and use and possession of, substances in Schedules II, III and IV to medical and scientific purposes.

Article 7 Special provisions regarding substances in Schedule I. The Parties shall require that substances in Schedules II, III and IV be supplied or dispensed for use by individuals pursuant to medical prescription only, except when individuals may lawfully obtain, use, dispense or administer such substances in the duly authorized exercise of therapeutic or scientific functions. Notwithstanding paragraph 1, a Party may, if in its opinion local circumstances so require and under such conditions, including record keeping, as it may prescribe, authorize licensed pharmacists or other licensed retail distributors designated by the authorities responsible for public health in its country or part thereof to supply, at their discretion and without prescription, for use for medical purposes by individuals in exceptional cases , small quantities, within limits to be defined by the Parties, of substances in Schedules III and IV.

The Parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends. Convention Against Illicit Traffic, Article 3 Offences and sanctions. Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession , purchase or cultivation of narcotic drugs or psychotropic substances for personal use contrary to the provisions of the Convention, the Convention as amended or the Convention.

The Parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law.

Article 14 Measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances. Any measures taken pursuant to this Convention by Parties shall not be less stringent than the provisions applicable to the eradication of illicit cultivation of plants containing narcotic and psychotropic substances and to the elimination of illicit demand for narcotic drugs and psychotropic substances under the provisions of the Convention, the Convention as amended and the Convention.

Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants , cultivated illicitly in its territory. The measures adopted shall respect fundamental human rights and shall take due account of traditional licit uses where there is historic evidence of such use as well as the protection of the environment. Possession of Cannabis. To justify the legalization of possession of cannabis, some authors have defended the interpretation that it was the intention of the Parties for the prohibition on possession to be limited to possession for the purposes of trafficking.

To determine whether their interpretation is appropriate, the details of the interpretation must be considered. Briefly, to justify possession of cannabis under the Conventions, these authors assert that article 36 of the Single Convention, , which creates the penal offence of possession of cannabis, covers only possession for the purposes of trafficking. All grounds for the offences to which article 36 refers are directly related to the illicit drug traffic. It also refers to cultivation, production, manufacture, extraction, preparation, offering, offering for sale, distribution, purchase, delivery, brokerage, dispatch, dispatch in transit, transportation, importation and exportation of drugs contrary to the provisions of the Convention.

In arguing this interpretation, these authors also refer to the fact that the third version of the draft Convention, i.

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And second, the CRC is connected via Article 33 to the three UN drug control in Narcotic Drugs and Psychotropic Substances (“Vienna Convention”) This chapter explores the meaning of a child's right to protection from narcotic drugs and pyschotropic substances under article 33 of the UN.

Other authors take the position that possession of cannabis, like that of any other drug or psychotropic substance, must be made an offence by the Parties to the Conventions. The Commission stated:. In New Zealand, the Drug Policy Forum Trust — which argues for greater liberalization in the use of cannabis — acknowledges that the Single Convention, and the Convention against Illicit Traffic require that legislative provisions be enacted prohibiting the possession of cannabis for personal use.

Article 33 of the Single Convention, seems clear. It prohibits the possession of drugs. It remains to be determined whether this interpretation of the Convention is justified. For that purpose, a few comments must be made on the principles of the interpretation of treaties in international law. Article 31 General rule of interpretation.

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:. A special meaning shall be given to a term if it is established that the parties so intended. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to section Article 31 of the Vienna Convention on the Law of Treaties establishes the basic principle that applies to the interpretation of treaties.

The terms of a treaty must be understood according to their ordinary meaning, in light of its object and purpose. Agreements entered into in connection with the conclusion of the treaty paragraph 31 2 and subsequent legal instruments relating to the interpretation of the treaty or the application of its provisions paragraph 31 3 should also be considered. On the other hand, a term will be given a special meaning if it is established that this is what the parties intended paragraph 31 4. Because there seem to have been no supplementary agreements made when the Conventions were concluded, or any subsequent agreements regarding the interpretation or application of the Conventions, any reference to paragraphs 31 2 and 3 in consideration of how to interpret the terms of the treaties can be eliminated.

Lastly, it should not be forgotten that under the Single Convention, , cannabis is a narcotic drug on the same footing as opium, heroin or morphine, and is intended to be treated in the same manner. The Commentary of the Secretary-General is a publication that comments on each of the articles of the Single Convention, The Commentary was prepared in response to a request from the Economic and Social Council.

First, the ordinary meaning of the provisions of the treaty is to be applied; if there are difficulties, recourse may be had to supplementary means. Moreover, the Commentary has no legal weight. It was not adopted by the Parties to the Convention nor was it the subject of a resolution of the United Nations or of any of its organs, such as the Economic and Social Council. An international court or arbitration tribunal could well interpret a provision of the Convention in a way contrary to the Commentary. That being said, one item in the Commentary mentioned earlier must be clarified.

The Commentary points out that the Single Convention, is not divided into chapters like the third version of the Convention on which the Parties worked; the justification given for the disappearance of the chapters, however, seems quite weak. If the legislature amends a provision, it means that it wants the amendment to have a meaning. Applying this principle to the disappearance of the chapter divisions between the third and final versions of the Single Convention, implies that disappearance must mean something.

One possible interpretation is that the Parties had agreed on this step in order to ensure that the Convention could not be interpreted on the basis of those divisions, and so that the prohibition on possession in article 36 could not be limited to possession for the purposes of trafficking alone. The only way to settle the debate definitively, as to whether possession of cannabis or another drug must be made an offence by virtue of one of the three Conventions, would be to obtain a decision on the matter from the International Court of Justice. Articles from each of the three Conventions — article 48 of the Single Convention, ; article 31 of the Convention on Psychotropic Substances ; and article 32 of the Convention against Illicit Traffic — provide that any dispute relating to the interpretation of these Conventions should be settled by agreement between the Parties and, failing agreement, by the International Court of Justice.

Even if the Single Convention, requires that possession of cannabis be made an offence, it still allows the Parties latitude as to the sanctions or penalties they impose. The sanctions imposed must have a deterrent effect on the offender or any other individual who might be tempted to commit the same offence. The sanction must be determined on the basis of the seriousness of the offence. The Conventions recognize, implicitly and explicitly, [] that imposing sanctions is a matter within the domestic law of the Parties. Each Party may choose the approach that it considers most appropriate to deal with the various situations that may arise.

Contrary to what some commentators believe, the possession or use of cannabis in the Netherlands and Belgium has not been decriminalized; it is still an offence. On the other hand, the authorities of those countries have chosen to take a lax approach to such offences; the use of cannabis is tolerated in clearly identified places.

The administration of justice within the territory of a Party is a matter within its exclusive jurisdiction. The state need account to no one. No international organization has any right to scrutinize the manner in which the Parties apply the legislative provisions they have enacted pursuant to the Conventions. They do not have to justify their decisions. At most, they could be criticized if their conduct were injurious to other Parties or harmful to the mutual cooperation in which they must engage. The tolerance exhibited by the Netherlands and Belgium may be criticized, but no other state or international body may interfere.

The authorities of those two countries seem to have chosen, for their own reasons, not to enforce their legislation prohibiting the possession and use of cannabis. In accordance with the drug Conventions, Canada has enacted a legislative measure prohibiting the possession of cannabis. For people who favour the decriminalization of possession of cannabis for personal use, none of this is an acceptable position.

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As long as the drug Conventions are worded as they currently are, the Parties will have to maintain legislative provisions prohibiting the possession of cannabis for personal use. The Parties could choose to change this situation by adopting amendments to the Conventions to that effect. Each of the three Conventions has provisions whereby they can be amended. Briefly, the Parties may choose to accept the proposed amendments and ratify them, the effect of which would be to bring them into force within such time as the Conventions provide.

If only one Party chooses not to ratify the proposed amendments, the Secretary-General could convene a conference on the subject. If this led to an agreement among the Parties to amend the Conventions to permit possession of cannabis, the amendment would be in the form of a protocol which, in order to come into force, would have to follow the process for implementation and ratification described earlier, with respect to the coming into force of an international treaty. It must be noted that in one very specific case, the Convention against Illicit Traffic authorizes the cultivation and use of narcotic drugs or psychotropic substances apart from medical and scientific uses: traditional licit use of these substances, where there is historic evidence of such use.

The fact that the addition of this kind of use must be supported by historic evidence avoids the creation of new religions that could incorporate the use of these substances in their rites, solely in order to circumvent the general prohibition.