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COMMENTARY O N THE UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES 1988 Done at Vienna on 20 December 1988 UNITED NATIONS COMMENTARY ON THE UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES 1988 Done at Vienna on 20 December 1988 UNITED NATIONS New York, 1998 NOTE Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. E/CN.7/590 UNITED NATIONS PUBLICATION Sales No. E.98.XI.5 ISBN 92-1-148106-6 PREFACE The present Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, was prepared at the request of the Economic and Social Council and comes at a most appropriate time. The tenth anniversary of the adoption of the Convention—the latest in a continuum of drug abuse control treaties—falls in the same year as the General Assembly's special session devoted to international efforts to fight drug abuse and drug trafficking. This work is one of a long and distinguished series of commentaries on international drug control conventions dating back to the time of the League of Nations. While the States parties to any treaty may be its final authoritative interpreters, it would be fair to say that these commentaries have been well received as helpful in furthering a mutual understanding of the contents and objectives of the conventions. They have certainly added an international perspective to what might otherwise have represented a more restricted and parochial—not to say partisan—vision. In the case of this Commentary, at the request of the Commission on Narcotic Drugs and the Economic and Social Council the usual legal exegesis of the text has been supplemented by a section on the practical implementation of the Convention, I hope this additional feature will make the Commentary particularly useful. The twentieth special session of the General Assembly, held in New York from 8 to 10 June 1998, provided a welcome opportunity for the international community to review the harmful effects of drug abuse and trafficking on the individual, on society, on the economy and on the body politic. It also gave all nations an opportunity to reaffirm their commitment to confronting those problems and to identify measures and priorities at the community, national, regional and global levels. It is my hope that this Commentary will be a useful tool in helping us rise to that challenge. New York, June 1998 Kofi A. Annan Secretary-General of the United Nations iii FOREWORD Origin of the Commentary Recalling that the earlier commentaries—on the Single Convention on Narcotic Drugs of 1961, on the 1972 Protocol amending that Convention and on the Convention on Psychotropic Substances of 1971—were of considerable value to a number of Governments as a guide in framing legislative and administrative measures for the application of those conventions, the Economic and Social Council, in its resolution 1993/42 requested the Secretary-General to prepare a commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, which had then been in force for almost three years. In similar requests for the earlier commentaries, the Council had underlined their potential usefulness in ensuring a more uniform interpretation of the treaties. In its request for the present Commentary, the Council specified that the work should be of assistance to States not only in their interpretation of the 1988 Convention but also in their effective implementation of it. The present Commentary, therefore, has been organized along somewhat different lines than its predecessors, and the drafting procedure also called for a different approach. The body of most of the text was first prepared by four principal drafters: Henri Mazaud, former Assistant Director of the Division of Human Rights of the United Nations Secretariat in charge of international instruments and procedures, and John F. Scott, former Director of the Office of Legal Counsel and Deputy Director to the Under-Secretary-General for Legal Affairs of the United Nations Secretariat, both of whom had acted as legal consultants to the plenipotentiary conference that adopted the Convention, William C. Gilmore, Professor of International Criminal Law at the University of Edinburgh, and David McClean, Q.C. Professor, Department of Law of the University of Sheffield. Their invaluable contribution to this Commentary is hereby acknowledged with thanks. The evolving texts on various technical articles were routinely submitted for comment and evaluation to a broad cross-section of government experts from all geographical regions, many of whom had participated in the drafting process of the Convention and had attended the plenipotentiary conference. In addition, particularly with regard to the comments on articles 12, 13 and 16, the views of the secretariat of the International Narcotics Control Board were greatly appreciated. iv The multidisciplinary approach adopted, required by the very nature of the contents of the Convention, was further enhanced at a number of expert review groups that were convened by the Legal Affairs Section of the United Nations International Drug Control Programme, which constantly revised and completed the manuscript. The Legal Affairs Section also liaised throughout the drafting process with the Treaty Section of the Office of Legal Affairs of the United Nations Secretariat. Overall coordination of the project and supervision of the manuscript was ensured by Paulsen K. Bailey, the former Secretary of the Commission on Narcotic Drugs for many years who had served as Secretary of the Conference and of its General Committee and Committee I. Lastly, thanks are due to all others—too numerous to mention individually—who contributed in various ways to the successful completion of the long and meticulous task of drafting and reviewing the Commentary and preparing it for publication. Structure of the Commentary The Commentary is divided into five functional parts in addition to the "Introduction", which gives an overview of the genesis of the 1988 Convention from its conception by the General Assembly in December of 1984 to its adoption at the plenipotentiary conference in December of 1988. "Part One", entitled "General Provisions", covers the Preamble, article 1 ("Definitions") and article 2 ("Scope of the Convention"). Although the Preamble of the Convention is not of the same legal significance as one of its articles, its perusal, together with that of article 2, provides a sound background for an understanding of the objectives of the Convention and, with article 1, a general introduction to its subject matter. The titles of the remaining four parts are self-explanatory. Thus, "Part Two", entitled "Substantive Provisions", covers articles 3-19, the substantive or technical articles, many of which are self-contained mini-treaties on particular topics. The roles of the Commission on Narcotic Drugs and the International Narcotics Control Board and the reporting requirements of parties, to ensure proper implementation of the Convention, are the subjects of "Part Three", entitled "Implementation Provisions". "Part Four", entitled "Final Clauses", explains the standard provisions included in many multilateral conventions to regulate such technicalities as becoming a party to or amending the Convention. v The annex to the Convention, which lists the substances governed by the provisions of article 12, is the subject of "Part Five". Background information on the "final clauses" as adopted and on the matter of reservations to and territorial application of the Convention (issues not explicitly dealt with) is included in two annexes to the Commentary. A particular and distinctive feature of the present Commentary arises from the request of the Economic and Social Council that it should be directly useful to parties in their effective implementation of the provisions of the Convention. This has led, in addition to the exegesis of the final text as adopted, a standard feature in legal commentaries, to the inclusion, where appropriate, of a section or sections entitled "Implementation considerations". These considerations reflect government practices with respect to the matter under examination or examples of practical application measures in use or recommended by various government agencies or authoritative international bodies. Because of the nature of the contents of the articles, such considerations are limited to articles 3-19, i.e. "Part Two", on "Substantive Provisions". Depending on the internal content of each article, the consideration may apply to an article as a whole or to various subsections. Finally, the paragraph numbering system used in this Commentary calls for a brief explanation. Each chapter begins with a new series of paragraph numbers, the first digit or digits of which reflect the article number (for example, the chapter on article 7 begins with paragraphs 7.1, 7.2 etc. and the chapter on article 19 runs from paragraph 19.1 to paragraph 19.24). This facilitates reference to any given paragraph by obviating the need to refer to a section or chapter and immediately identifies the article in question. To accommodate this general system, some exceptions needed to be made: the paragraphs in the "Introduction" are numbered 1, 2 etc.; the paragraphs in the "Preamble" are numbered 0.1, 0.2 etc.; and the section entitled "Attestation clause and concluding paragraph" and "Part Five", on Table I and Table II, annexed to the Convention, use, respectively, 35 and 36 as prefix digits in the paragraph numbers (since the last numbered article is article 34). The annexes follow a similar system. It is hoped that the reader and those reviewing or commenting on the content matter of the Commentary will find the system helpful and easy to use. vi CONTENTS Page Preface iii Foreword iv Explanatory notes ix Introduction 1 Part One: General Provisions Preamble 12 Article No. 1. Definitions 26 2. Scope of the Convention 40 Part Two: Substantive Provisions 3. Offences and sanctions 48 4. Jurisdiction 100 5. Confiscation 117 6. Extradition 152 7. Mutual legal assistance 176 8. Transfer of proceedings 212 9. Other forms of co-operation and training 216 10. International co-operation and assistance for transit States .. . 231 11. Controlled delivery 235 12. Substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances 251 13. Materials and equipment 289 14. Measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances 294 15. Commercial carriers 311 16. Commercial documents and labelling of exports 319 17. Illicit traffic by sea 323 18. Free trade zones and free ports 346 19. The use of the mails 351 vii Article No. Page Part Three: Implementation Provisions 20. Information to be furnished by the Parties 360 21. Functions of the Commission 368 22. Functions of the Board 374 23. Reports of the Board 386 Part Four: Final Clauses 24. Application of stricter measures than those required by this Convention 390 25. Non-derogation from earlier treaty rights and obligations .. . 393 26. Signature 397 27. Ratification, acceptance, approval or act of formal confirmation 401 28. Accession 404 29. Entry into force 406 30. Denunciation 409 31. Amendments 411 32. Settlement of disputes 416 33. Authentic texts 421 34. Depositary 422 Attestation clause and concluding paragraph 425 Part Five: Tables Annexed to the Convention Annex to the Convention 426 Annexes I. Legislative history of the final clauses 434 II. Subjects not included in the Convention 436 A. Reservations 436 B. Territorial application 441 viii EXPLANATORY NOTES The following acronyms are used in this publication: OAS UPU WHO Interpol International Criminal Police Organization Organization of American States Universal Postal Union World Health Organization The following short titles are used in this publication: "Assembly" for the General Assembly of the United Nations. "Board" for the International Narcotics Control Board. "Commission" for the Commission on Narcotic Drugs of the Economic and Social Council. "Conference" for the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, held at Vienna from 25 November to 20 December 1988. "Council" for the Economic and Social Council of the United Nations. "Schengen Convention" for the Convention applying the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the gradual abolition of checks at their common borders. "Secretary-General" for the Secretary-General of the United Nations. ix The following abbreviated forms have been used for publications and other references occurring frequently in the text: "1912 Convention" for the International Opium Convention, signed at The Hague on 23 January 1912, reproduced in League of Nations, Treaty Series, vol. VIII, p. 187. "1925 Convention", for the International Opium Convention signed at Geneva on 19 February, reproduced in League of Nations, Treaty Series, vol. LXXXI, p. 317. "1931 Convention" for the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, signed at Geneva on 13 July 1931, reproduced in League of Nations, Treaty Series, vol. CXXXIX, p. 301. "1936 Convention" for the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, signed at Geneva on 26 June 1936, reproduced in League of Nations, Treaty Series, vol. CXCVIII, p. 299. "1948 Protocol" for the Protocol Bringing under International Control Drugs Outside the Scope of the Conventions of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs as Amended by the Protocol signed at Lake Success, New York, on 11 December 1946, signed in Paris on 19 November 1948, reproduced in United Nations, Treaty Series, vol. 44, p. 277. "1953 Protocol", for the Protocol Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, signed at New York on 23 June 1953, reproduced in United Nations, Treaty Series, vol. 456, p. 3. "1961 Convention" for the Single Convention on Narcotic Drugs, 1961, done at New York on 3 0 March 1961, reproduced in United Nations, Treaty Series, vol. 520, No. 7515, p. 204. "1961 Convention as amended" for the Single Convention on Narcotic Drugs, 1961, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961, done at New York on 8 August 1975, reproduced in United Nations, Treaty Series, vol. 976, No. 14152, p. 105. x "1971 Convention" for the Convention on Psychotropic Substances, Done at Vienna on 21 February 1971, reproduced in United Nations, Treaty Series,v ol. 1019, No. 14956, p. 175. "1972 Protocol" for the Protocol amending the single Convention on Narcotic Drugs, 1961, done at Geneva on 25 March 1972, reproduced in United Nations, Treaty Series, vol. 976, No. 14151, p. 3. "1988 Convention" for the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988. "Commentary on the 1961 Convention" for Commentary on the Single Convention on Narcotic Drugs, 1961 (Prepared by the Secretary-General in accordance with paragraph 1 of Economic and Social Council resolution 914 D (XXXIV) of 3 August 1962) (United Nations publication, Sales No. E.73.XI.1). "Commentary on the 1971 Convention" for Commentary on the Convention on Psychotropic Substances, Done at Vienna on 21 February 1971 (United Nations publication, Sales No. E.76.XI.5). "Commentary on the 1972 Protocol" for Commentary on the Protocol Amending the Single Convention on Narcotic Drugs, 1961, Done at Geneva on 25 March 1972 (United Nations publication, Sales No. E.76.XI.6). "Official Records, vol. I ..." for Official Records of the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 25 November20 December 1988, vol. I (United Nations publication, Sales No. E.94.XI.5). "Official Records, vol. II..." for Official Records of the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 25 November20 December 1988, vol. II (United Nations publication, Sales No. E.91.XI.1). * * * xi Countries are referred to by the names that were in official use at the time. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. * * * xii INTRODUCTION Origin of the Convention 1. In reviewing the situation and trends in drug abuse and illicit trafficking since the entry into force of the 1961 Convention, the 1961 Convention as amended and the 1971 Convention, 1 both the Commission on Narcotic Drugs, in its deliberations and resolutions, and the International Narcotics Control Board, in its annual reports, noted with deep concern that the situation was steadily and rapidly deteriorating. On the basis of information available from States Members of the United Nations during the early 1980s, it was becoming evident that drug abuse and illicit traffic had reached unprecedented dimensions. The General Assembly, in its resolution 36/168, by which it adopted the International Drug Abuse Control Strategy in 1981, also noted that "the scourge of drug abuse" had reached "epidemic proportions in many parts of the world". 2. Illicit drug traffic menaced the health and well-being of individuals, spread corruption, abetted criminal conspiracy, and subverted public order. It threatened the sovereignty and security of States and disrupted the economic, social and cultural structures of society. In particular circumstances, it generated or supported other serious forms of organized crime. 3. Faced with a problem of this magnitude, Governments, acting in isolation, could not be expected to counter and suppress the consequences of widespread and highly organized drug trafficking. The existing drug control treaties, which continued to provide a sound international legal framework for the regulation of a number of specific narcotic drugs and psychotropic substances, were no longer alone adequate because they had been devised to respond to a situation that had since changed dramatically. Moreover, their criminal law provisions for suppressing the illicit traffic were limited in scope. 4. In the 1980s, the international community at large and specifically States parties to the international drug control treaties were more convinced than ever that the time had come to move forward and take new initiatives not only to intensify efforts and coordinate strategies within the existing framework, but also to conceive and elaborate another instrument, which would enable them to 'The names of these and other conventions and publications mentioned frequently in the present Commentary are listed in full in the explanatory notes at the beginning of this publication. 1 2 Introduction attack more forcefully, through cooperation and concerted action, the complex problem of drug trafficking and all its implications. 5. Several aspects of the problem of the illicit traffic had attracted the attention of the relevant United Nations bodies and consideration had been given to the development of possible countermeasures. Two expert groups met in 1982 to study the functioning, adequacy and enhancement of the 1961 Convention and the 1971 Convention. Their reports (E/CN.7/1983/2/Add.l and 2) touched upon such topics as the possibility of merging the two conventions or introducing new provisions concerning extradition procedures or measures aimed at depriving drug traffickers of the proceeds of their illicit activities. An expert group meeting on the forfeiture of the proceeds of drug crimes, convened by the Commission on Narcotic Drags, met twice in 1983 and 1984. At its second meeting, it produced a set of suggestions (MNAR/1984/13) for including, in a relevant international instrument, elements or clauses that would supplement the sanctions concerning deprivation of liberty following conviction for serious drug-related offences that already existed in the conventions in force. At the Eleventh Meeting of the Operational Heads of National Narcotics Law Enforcement Agencies, Far East Region, 2 in November 1984, the opinion was expressed that any new convention "might very usefully address means of streamlining mutual judicial and other assistance in order to facilitate the tracing, freezing and forfeiture of the proceeds of drug crimes at the international level" (E/CN.7/1985/9). Attention was also directed to extradition procedures, with a view to including appropriate provisions in any future convention. A major study was undertaken by the Division of Narcotic Drugs; it examined existing extradition practices for drug-related offences, suggested guidelines for use in concluding extradition treaties, and identified areas for possible concrete action. 3 Consideration was also given to related topics, such as the establishment of closer control measures over some chemicals that are essential for the manufacture of illicit drags and are readily available on the licit market, as well as the interdiction of drug smuggling in aircraft and vessels, the use of the law enforcement technique of controlled delivery, and cooperation across frontiers to enable drag law enforcement agencies to collect and exchange information and evidence on identified drug trafficking groups and operations. 2 The name was changed in 1986 to Heads of National Drug Law Enforcement Agencies, Asia and the Pacific. 3 The study was later issued as Extradition for Drug-Related Offences (United Nations publication, Sales No. E.85.XI.6). 3 Introduction 6. The urgent need for decisive action and for a comprehensive approach that would embrace all aspects of the traffic prompted several Governments of Latin American countries to adopt two solemn declarations, which were transmitted in 1984 to the General Assembly for consideration at its thirty-ninth session. The Quito Declaration against Traffic in Narcotic Drugs (A/39/407, annex) 4 called for international legislative action that would be capable of directing an effective campaign against the illicit traffic beyond national frontiers and would impose penalties on offenders, wherever they might be, and proposed that drug trafficking should be considered a crime against humanity, with all the implicit legal consequences. In the New York Declaration against Drug Trafficking and the Illicit Use of Drugs (A/39/55 and Corr.l and 2, annex), 5 the United Nations was urged to convene as soon as possible a special conference to consider the legal and institutional problems involved, adopt an international plan of action against drug trafficking, and consider declaring drug trafficking to be a crime against humanity. 7. At its thirty-ninth session, the General Assembly had on its agenda an item entitled "International campaign against traffic in drugs". The discussions on that item led to the adoption of three significant resolutions. First, in its resolution 39/142, the Assembly adopted a Declaration on the Control of Drug Trafficking and Drug Abuse, in which it declared, inter alia, that drug trafficking had become "an international criminal activity demanding urgent attention and maximum priority". Secondly, in its resolution 39/143, the Assembly requested the Economic and Social Council, through the Commission on Narcotic Drugs, "to consider the legal, institutional and social elements relevant to all aspects of combating drug trafficking, including the possibility of convening a specialized conference". 8. Thirdly, in its resolution 39/141, the Assembly, bearing in mind the Quito Declaration and the New York Declaration, expressed its conviction that the wide scope of the illicit drug traffic and its consequences made it necessary to prepare a convention which would consider the various aspects of the problem as a whole and, in particular, those not envisaged in existing international instruments. It accordingly requested that the preparation of such a convention should be initiated, as a matter of priority, by the Commission on Narcotic 4 Signed on behalf of Bolivia, Colombia, Ecuador, Nicaragua, Panama, Peru and Venezuela. 5 Signed on behalf of Argentina, Bolivia, Brazil, Ecuador, Peru and Venezuela. 4 Introduction Drugs and, to that end, transmitted to it, as a working paper, the text of a draft convention annexed to the resolution. Preliminary elaboration of the draft Convention 9. The draft Convention transmitted to the Commission as a working paper covered, in 18 articles, a wide range of issues. It specified, in particular, that illicit trafficking constituted "a grave international crime against humanity", that the offences enumerated in the Convention would not be subject to any statute of limitations and that they should not be considered as political crimes for the purpose of extradition. Stringent criminal penalties should be meted out to individuals responsible for the illicit activities enumerated in the Convention. Trial of offenders by a competent international tribunal was also envisaged, and disputes relating to the interpretation, application or fulfilment of the Convention would be submitted to the International Court of Justice. A fund would be established to assist developing countries affected by the illicit traffic. 10. At its thirty-first session, the Commission responded to the request of the General Assembly and its members exchanged preliminary views on what the substantive content of the new instrument should be and on how it should be produced. It was generally recognized that the new instrument should not duplicate the provisions of, or derogate from the obligations in, the conventions already in force, but should concentrate on concrete and innovative elements complementary in substance and closely linked to the existing drug control treaties. To make it really effective, it should be formulated in such a way that its provisions would be acceptable to the greatest possible number of States, thus facilitating universal adherence. To that end, and to accommodate the interests of all countries, its provisions should, as far as possible, be compatible with the various constitutional and legal systems and consistent with the generally accepted principles of criminal law. Respect for the sovereignty of States should be ensured. 11. With respect to the procedure to be followed to carry out its mandate, the Commission, realizing that the drafting of the new instrument would represent a complex undertaking requiring high-level expertise, decided that the first step would be to seek from Governments comments and proposals on the elements they would like to see incorporated in the draft Convention. 5 Introduction 12. In its resolution 1 (XXXI), 6 the Commission therefore requested the Secretary-General to circulate for that purpose, to Member States and States parties to the existing drug control treaties, a set of 17 documents comprising the text of the draft Convention annexed to General Assembly resolution 39/141 and of the Quito and New York Declarations and other relevant reports and notes. The Secretary-General was asked to compile and consolidate the comments received from Governments, as well as other relevant studies, and to prepare a report that would identify elements to be considered for inclusion in the draft Convention. In his report (E/CN.7/1986/2 and Corr.l and 2 and Add.1-3), which contained a systematic analysis of the replies from Governments and of other relevant material, the Secretary-General identified the elements that were generally considered to be worth including in the draft Convention, as well as other elements that needed more consideration before a decision could be reached on whether or not to include them. A series of other elements, namely the qualification of drug trafficking as a crime against humanity, the exclusion of drug trafficking from any statute of limitations, the creation of an international criminal tribunal, the establishment of a new assistance fund 7 and compulsory jurisdiction of the International Court of Justice, set out in the draft Convention transmitted to the Commission as a working paper, met with strong opposition from many of the Governments that replied. Their inclusion did not seem to meet the standard of acceptability considered essential if the Convention was to become an effective instrument. 13. Governments did not dispute in their replies the need for, or the desirability of, the proposed new instrument but they did emphasize that, since it would be limited to only one aspect of drug control, namely illicit traffic, it would be important to ensure that States not already parties to the existing conventions would accede to those instruments. As to the form of the proposed instrument, some Governments expressed a definite preference for the adoption of a protocol or additional instrument amending and supplementing the existing conventions. In view, however, of the legal difficulties that such a formula would involve, the idea was not pursued and the proposal to draft a distinct instrument prevailed. 6 Official Records of the Economic and Social Council, 1985, Supplement No. 3 (E/l 985/23), chap. IX, sect. A. 7 There was already a United Nations Fund for Drug Abuse Control, established by the Economic and Social Council in its resolution 1559 (XLIX) of 11 November 1970 with a view to assisting Governments and international organizations in their efforts to reduce drug abuse and suppress illicit trafficking. With the creation of the United Nations International Drug Control Programme in 1990, the Fund and the Programme were merged. 6 Introduction 14. At the fortieth session of the General Assembly, satisfaction was expressed with the support that the Assembly's initiative had encountered worldwide, not only from Governments but also from international, regional and nongovernmental organizations concerned with the drug problem. In particular, it was noted with appreciation that the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders had recommended in its resolution 2 8 that the preparation of a new international instrument against illicit traffic should be considered an absolute priority. In its resolution 40/122, the Assembly, after referring to the common concern regarding the "awesome and vicious effects of drug abuse and illicit trafficking", in pursuance of a proposal made by the Secretary-General earlier in the year, decided to convene at Vienna, in 1987, an International Conference on Drug Abuse and Illicit Trafficking at the ministerial level. The Conference was given the mandate to adopt a comprehensive multidisciplinary outline of future activities in drug abuse control, 9 which would focus on concrete and substantive issues directly relevant to the problems of drug abuse and illicit traffic and, inter alia, support the elaboration of a convention against illicit traffic. 15. In its resolution 40/120, the Assembly expressed its appreciation to Member States for their response to the request of the Secretary-General for their comments on the proposed draft instrument and requested the Economic and Social Council to instruct the Commission on Narcotic Drugs, following consideration at its ninth special session of the report of the Secretary-General, to decide on the elements that could be included in the Convention, and to request the Secretary-General to prepare a draft on the basis of those elements. 16. At its ninth special session, in February 1986, on the basis of its consideration of the report of the Secretary-General, the Commission adopted resolution 1 (S-IX), entitled "Guidance on the drafting of an international 8 Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August-6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. E. 9 The Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control ultimately adopted by the Conference (Report of the International Conference on Drug Abuse and Illicit Trafficking, Vienna, 17-26 June 1987 (United Nations publication, Sales No. E.87.1.18), chap. I, sect. A) is referred to in article 14, paragraph 4, of the Convention as one of the bases on which parties might be ready to adopt appropriate measures aimed at eliminating or reducing illicit demand for narcotic drugs and psychotropic substances. 20 Introduction convention to combat drug trafficking". 1 0 In that resolution, the Commission recommended 14 elements for inclusion in an initial draft Convention, namely: definitions, as required for the purpose of the Convention; identification, tracing, freezing and forfeiture of the proceeds of drug trafficking; strengthening of the obligations concerning extradition for offences relating to drug trafficking; measures to monitor or control specific chemicals, solvents and precursors used in the illegal processing or manufacture of controlled drugs; measures to ensure that commercial carriers are not used to transport illicit narcotic drugs and psychotropic substances, including the development of a system of sanctions; means of cooperation among countries, particularly among law enforcement agencies, for the exchange of information, as well as the establishment of joint communications links, training assistance and the exchange of expertise, including the posting of drug liaison officers as needed, taking into consideration the special problems of transit States; strengthening of cooperation among countries to provide mutual legal and judicial assistance in cases relating to drug trafficking, and promotion of mutual legal assistance in investigative and prosecutorial matters; controlled delivery; adequacy of sanctions for offences relating to drug trafficking; strengthening of mutual cooperation among States in the suppression of illicit drug trafficking on the high seas; measures to curtail the illicit and uncontrolled cultivation of narcotic plants, including prevention, crop substitution and eradication; extension of controls in free trade zones and free ports; prevention of the receipt, possession and transfer of equipment for the purpose of illegal manufacturing, compounding or processing of narcotic drugs and psychotropic substances; and prevention of the use of the mails for the illegal transport of narcotic drugs and psychotropic substances. The Commission also requested the Secretary-General to prepare a preliminary draft of a convention containing those specified elements and to circulate the draft to members of the Commission and other interested Governments for their comments or proposed textual changes. 17. In pursuance of the request by the Commission, the Secretary-General prepared a draft text consisting of 14 articles corresponding to the elements recommended for inclusion by the Commission and elaborating their substantive contents. 11 This preliminary draft text, as well as a compilation of the comments or textual changes submitted by Governments (E/CN.7/1987/2/Add. 1), were considered by the Commission at its thirty-second session. The draft did not 10 Official Records of the Economic and Social Council, 1986, Supplement No. 3 (E/l 986/23), chap. X, sect. A. 11 Official Records, vol. I... document E/CN.7/1987/2. 8 Introduction contain any preambular provisions or articles dealing with implementation measures and mechanisms or final clauses, the formulation of which was considered to be premature at that stage and to require further guidance from the Commission. Work of the open-ended intergovernmental expert group 18. After a general debate on the approach and content of the draft and a discussion of it article by article, the Commission came to the conclusion that, in order to expedite the elaboration of the Convention so that it might enter into force as soon as possible, as the General Assembly had requested in its resolution 41/26, it was necessary to establish an open-ended intergovernmental expert group whose sole task would be to review a working document to be prepared for that purpose by the Secretary-General. The document in question would consolidate the draft prepared by the Secretary-General, the comments made by the Governments and members of the Commission participating in the thirty-second session, in February 1987, and the results of discussions at that session, as well as those of the informal working group that had examined the article on definitions during the session. It would also contain a draft preambular part, a section on the implementation mechanisms, and draft final clauses. States were invited to submit comments for consideration by the expert group. The Economic and Social Council endorsed the decisions of the Commission in its resolution 1987/27 and confirmed that the established expert group should meet, if necessary, twice during 1987. 19. The expert group accordingly held two sessions in 1987, the first from 29 June to 10 July, the second from 5 to 16 October. It had before it a working document (DND/DCIT/WP.l) prepared by the Secretary-General. Over a total of 39 plenary meetings, the expert group covered all 14 articles included in the draft and held a preliminary exchange of views on the preamble, implementation measures and final clauses. 20. At its forty-second session, the General Assembly gave further instructions for speeding up the preparation of the draft Convention. 12 In its resolution 42/111, the Assembly, noting that the time available to the expert 1 2 In the Declaration adopted on 26 June 1987 by the International Conference on Drug Abuse and Illicit Trafficking (Report of the International Conference on Drug Abuse and Illicit Trafficking, Vienna, 17-26 June 1987 (United Nations publication, Sales No. E.87.I.18), chap. I, sect. B), the Conference had called for urgent finalization of the draft Convention to ensure its entry into force at the earliest possible date and to complement existing international instruments. 9 Introduction group had not permitted thorough consideration of all articles, requested the Secretary-General to consider convening a third session of the intergovernmental expert group to continue the work on the draft Convention prior to the tenth special session of the Commission in February 1988. It also requested the Commission to consider and, if possible, approve the draft Convention at its tenth special session and to prepare recommendations on measures to be taken with a view to concluding the preparation of the draft Convention, including the possibility of convening a plenipotentiary conference in 1988 for its adoption. 21. A third session of the open-ended intergovernmental expert group was convened from 25 January to 5 February 1988, at which 15 plenary meetings were held. The expert group continued to base its discussions on the working document it had had before it at its first and second sessions. The expert group completed its discussion of a number of articles, approved some revised texts and indicated variants when complete agreement could not be reached. It did not have time to deal with definitions, preambular provisions, implementation articles and final clauses. Work of the review group 22. The reports of the three sessions of the intergovernmental expert group 1 3 were before the Commission at its tenth special session, held from 8 to 19 February 1988. The Commission conducted a detailed review of the draft articles emerging from the expert group and of the other drafts made available to it and decided that certain articles on which a large measure of agreement had been reached should be transmitted to the projected Conference. Other articles, however, the substance of which constituted the core of the instrument, required further examination. They concerned definitions; penal provisions and adequacy of sanctions; identification, tracing, freezing, seizure and forfeiture of the proceeds of illicit traffic; extradition; mutual legal assistance; and law enforcement cooperation and training. On the recommendation of the Commission, the Council, in its resolution 1988/8, therefore decided to convene a group to review the draft texts of those articles, with a view to submitting them to the Conference; in addition, the review group might review the draft Convention as a whole, in order to achieve consistency. The review group was also to consider organizational matters relating to the Conference and the draft provisional rules of procedure to be prepared by the Secretary-General. 13 Official Records, vol. I... documents E/CN.7/1988/2 (Part II) and (Part IV). 10 Introduction 23. The review group met from 27 June to 8 July 1988 and held 19 plenary meetings, in the course of which it discussed the articles of the draft referred to it for consideration and organizational matters relating to the Conference. 14 The review group agreed to transmit to the Conference the text of those articles on which a consensus had emerged and, for those articles where no agreement could be reached, their text with variants. These texts, together with the texts approved for transmittal to the Conference by the Commission at its tenth special session, were submitted to the Conference as the basic proposal. 15 A number of further proposals put forward by the review group, relating to the text of the draft Convention, were also forwarded for consideration by the Conference. 1 6 The Conference 24. Acting on the recommendation of the Commission, the Council, by its resolution 1988/8, decided "to convene, in accordance with article 62, paragraph 4, of the Charter of the United Nations and within the provisions of General Assembly resolution 366 (IV) of 3 December 1949, a conference of plenipotentiaries for the adoption of a convention against illicit traffic in narcotic drugs and psychotropic substances". 25. In accordance with Council resolution 1988/8, the Conference was held at Vienna from 25 November to 20 December 1988. Representatives from 106 States participated in the Conference. It was also attended by representatives of national liberation movements, specialized agencies of the United Nations system, intergovernmental organizations and interested United Nations organs and related bodies, and by observers from non-governmental organizations. The Conference set up a General Committee, a Credentials Committee and a Drafting Committee. It established two Committees of the Whole (Committee I and Committee II) and divided between them the articles contained in the draft Convention. The preamble and articles 1-5 in the text originally submitted to the Conference 1 7 were referred to Committee I and the remaining articles to Committee II. It was decided that the Conference would work by consensus. For each article, the relevant committee had before it the 1 4 Ibid. document E/CONF.82/3. 1 5 Ibid. annex II. 1 6 Ibid. annex IV. 1 7 These later became articles 1-8 in the final text. 11 Introduction basic proposal submitted to the Conference and the amendments to that proposal submitted on behalf of Governments. When discussion on specific provisions ended in a deadlock, informal consultations were held to find a compromise between conflicting views and propose a new draft. In some instances, informal working groups were set up, in particular to reach an agreement on the drafting of the complex provisions of article 3, on offences and sanctions, or to elaborate the set of final clauses. Informal consultations and the proceedings of informal working groups, although not reflected in detail in the official records, played a crucial role in advancing consensus on the draft provisions. The Committees of the Whole, after agreeing upon a text for a particular article, referred it to the Drafting Committee. The Committees of the Whole reported to the Conference on the outcome of their work and the Drafting Committee submitted to the Conference a complete text of the draft Convention. That text was adopted by the Conference on 19 December 1988 as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Convention consists of a preamble and 34 articles, together with an annex containing two lists of substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances, which are amended from time to time by the Commission on Narcotic Drugs in accordance with article 12. The Convention was opened for signature on 20 December 1988 and, in accordance with the provisions of article 26, remained open for signature until 20 December 1989. The necessary number of ratifications and accessions having been reached as provided for in article 29, the Convention entered into force on 11 November 1990. PART ONE GENERAL PROVISIONS PREAMBLE AND ARTICLES 1-2 PREAMBLE General comments 0.1 The preamble of a treaty does not, in itself, have a binding force; it nevertheless has a recognized legal significance and constitutes, in accordance with article 31 of the Vienna Convention on the Law of Treaties, 18 one of the elements to be taken into consideration for the purpose of interpretation. 0.2 The preamble of the 1988 Convention is longer and more wide-ranging than the preambular parts of the previous drug control treaties. It not only sets out the intentions of the parties and the purpose of the instrument they agreed to conclude but also expounds general guidelines underlying, if not all, at least several provisions of the Convention. Although selective in this respect and somewhat unsystematic, inasmuch as it does not follow the sequence of the articles in the Convention, it provides a useful insight into some of those articles and throws light on their meaning in the overall context of the Convention. 1 8 United Nations, Treaty Series, vol. 1155, p. 331. 12 Preamble 13 0.3 It should be noted that the draft preamble forwarded to the Conference by the Commission on Narcotic Drugs 1 9 did not give rise to any major objections or divergent opinions when it was considered by Committee I. It was subject only to a limited number of amendments, largely of an editorial nature, and to a few additions. 20 The draft, which had been prepared by the Secretary-General at the request of the Commission, was based essentially on language used in preambular parts of resolutions adopted earlier by United Nations organs dealing with the drug problem, namely the General Assembly, the Economic and Social Council and the Commission, and was therefore not open to controversy. Opening The Parties to this Convention, Commentary 0.4 The "Parties" referred to in the opening of the preamble include the entities specifically designated in articles 26 and 27 of the Convention as having competence to sign and ratify, accept, approve or formally confirm the Convention, or accede thereto. 21 They comprise not only States formally recognized at the time and Namibia, 2 2 but also regional economic integration organizations with competence to negotiate, conclude and apply international agreements in matters covered by the Convention. 23 19 Official Records, vol. I... document E/CONF.82/3, annex II, pp. 74-75. 20 Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee I, 33rd meeting, paras. 22-168. 2 1 See below, comments on articles 26-28. 2 2 For the special status of Namibia at the time of the Conference, see paragraphs 26.3, 26.6 and 26.9 below. 2 3 Regional economic integration organizations are specifically referred to in articles 26-29. 14 Preamble First paragraph Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society, Commentary 0.5 The concern expressed in the first preambular paragraph reflects the very considerations that had led the General Assembly to initiate the preparation of a draft convention against illicit traffic. In its resolution 39/141, the Assembly voiced its concern "at the increasing damage which the illicit drug traffic causes to public health, the economic and social development of peoples, and young people in particular". The magnitude and extent of the drug problem worldwide and its harmful consequences had been noted in the Quito Declaration against Narcotic Drugs and the New York Declaration against Drug Trafficking and the Illicit Use of Drugs, which prompted the Assembly to take its decision. 24 Similar concerns regarding the human suffering, loss of life and social disruption brought about by drug abuse and its effects on the economic, social, political and cultural structures of States were expressed in the Declaration adopted in 1987 by the International Conference on Drug Abuse and Illicit Trafficking. 2 5 The annual reports of the International Narcotics Control Board, as well as the resolutions adopted over the years by the Commission on Narcotic Drugs, abounded in similar findings and expressions of concern. 0.6 In its preamble, the 1961 Convention recognized that "addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind", while in the 1971 Convention the parties noted "with concern the public health and social problems resulting from the use of certain psychotropic substances". The language used in the 1988 Convention embraces the entire range of the drug problem; it covers narcotic drugs and psychotropic substances and targets illicit traffic as well as illicit production and demand. As regards the meaning to be attributed to "illicit 2 4 See "Introduction", paragraphs 6 and 8. 25 Report of the International Conference on Drug Abuse and Illicit Trafficking, Vienna, 17-26 June 1987 (United Nations publication, Sales No. E.87.1.18), chap. I. Preamble 15 traffic", reference must be made to the definition given in article 1, namely "the offences set forth in article 3, paragraphs 1 and 2, of this Convention". Second paragraph Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity, Commentary 0.7 The text of the second preambular paragraph did not appear in the basic proposal before Committee I. It was introduced during the discussion of the preamble and was sponsored by 18 delegations. In view of the importance attached to its content, it was decided to place it towards the beginning of the preamble. The subject of the paragraph, namely the involvement of children in drug trafficking, was considered to be a matter of the gravest concern. 2 6 0.8 This concern for children finds substantive expression in article 3, paragraph 5, which provides that certain factual circumstances, such as the victimization or use of minors, or the fact that an offence established in accordance with paragraph 1 of that article is committed in an educational institution or in its immediate vicinity or in other places to which schoolchildren resort for educational, sports and social activities, make the commission of the offence particularly serious. Moreover, in paragraph 7, it is stipulated that parties should ensure that their courts or other competent authorities bear in mind the serious nature of these offences and of such factual circumstances "when considering the eventuality of early release or parole of persons convicted of such offences". 2 6 See the detailed statement by the representative of Peru (Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee I, 33rd meeting, paras. 151 and 152). 16 Preamble Third paragraph Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States, Commentary 0.9 The need to recognize the links between illicit traffic and. other forms of organized criminal activities and the disrupting and destabilizing effect of those activities was emphasized at an early stage of the preparatory work. 2 7 It was later suggested that appropriate reference to that problem should also find a place in the preamble of the Convention. 0.10 There was some discussion on whether the third preambular paragraph should be couched in general terms or should enumerate the related criminal activities that were being targeted. It was finally agreed that it should be as general as possible and should not single out specific criminal activities. Drawing from other authoritative sources, 28 it may be inferred that illegal smuggling and traffic in firearms, subversion and international terrorism fall in the category of the activities in question. Economic and commercial frauds may also be considered relevant. The use of the word "international" to qualify these activities was deliberately avoided in order to indicate that they were very often of a local nature, especially in their initial stages. It was understood, however, and put on record 29 that the expression "organized criminal activities" covers "all forms of criminal activities including international criminal activities". 0.11 Two articles in the Convention require parties to consider taking specific action in relation to other criminal activities. Under article 3, paragraph 5, subparagraphs (a) and (b), the involvement in an offence established under paragraph 1 of the article of an organized criminal group to which the offender belongs, or the involvement of the offender in other international 2 7 These links were recognized in paragraph 5 of the Declaration of the International Conference on Drug Abuse and Illicit Trafficking (see footnote 25 above). 2 8 See, for instance, Commission on Narcotic Drugs resolution 3 (S-VIII) and General Assembly resolution 40/121. 29 Official Records, vol. I... document E/CONF.82/11, "Preamble" (E/CONF.82/C.1/ L.18/Add.8), para. 8. Preamble 17 organized criminal activities, may constitute aggravating circumstances. Under article 9, paragraph 1, subparagraph (a), "the secure and rapid exchange of information concerning all aspects of offences established in accordance with article 3, paragraph 1, including, if the Parties concerned deem it appropriate, links with other criminal activities", is to be facilitated. Fourth paragraph Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority, Commentary 0.12 The fourth paragraph uses very general wording to characterize illicit traffic as an "international criminal activity". The General Assembly, in its resolution 39/42, had used the same expression in the Declaration on the Control of Drug Trafficking and Drug Abuse, adopted in 1984. More precise wording was purposely avoided in the Convention. The expression "crime against humanity", which had been used in the first draft of the proposed Convention, annexed to the General Assembly resolution, 30 was considered objectionable by many States and not suitable in the context of an instrument aimed specifically at the suppression of illicit drug trafficking. 0.13 Although the criminal activity of illicit traffic has a recognized international dimension, it is left to each party to decide what type of offence it may constitute under that party's criminal law. In article 3, paragraph 11, it is clearly stated that nothing in the article shall affect the principle that the "description" of the offences to which it refers is reserved to the domestic law of each party. Fifth and sixth paragraphs Aware that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels, 3 0 See "Introduction", paragraphs 9 and 12. 18 Preamble Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing, Commentary 0.14 The fifth and sixth paragraphs are closely related and should be read as an introduction to article 5, on confiscation, and article 3, as it relates to moneylaundering. 31 The factual observations in the fifth paragraph are the basis for the determination expressed in the sixth paragraph to deprive persons engaged in illicit traffic of the proceeds of their activities, leading in turn to the adoption of the measures set out in article 5. The confiscation of proceeds derived from the commission of offences established in accordance with article 3, paragraph 1, is also one of the sanctions envisaged in article 3, paragraph 4, subparagraph (a). Seventh paragraph Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic, Commentary 0.15 Although the subject of the Convention is illicit traffic, it was considered necessary to introduce in the preamble a paragraph pointing to the connection between drug abuse and illicit traffic. As there was no such provision in the original draft, a proposal to that effect was made in Committee I. The paragraph serves as an introduction to article 14, paragraph 4, in which parties are required to adopt appropriate measures "aimed at eliminating or reducing illicit demand for narcotic drugs and psychotropic substances, with a view to reducing human suffering and eliminating financial incentives for illicit traffic". 0.16 The reference to the "root causes" of drug abuse gave rise to some discussion in view of the divergent views held by States on the subject. It is, however, generally accepted that social, economic and cultural factors must be taken into account, particularly lack of education, unemployment and poor 3 , Se e also the comments on article 3, paragraph 1, subparagraphs (a), clause (v), and (b). Preamble 19 housing. In many resolutions adopted by the General Assembly, the Economic and Social Council and the Commission, States have been requested to inquire into the many possible causes of drug abuse and to take appropriate action to eliminate them or at least the most serious of them. The two causes specifically referred to in the paragraph, namely illicit demand and profits derived from illicit traffic for which measures of confiscation are provided, are dealt with respectively in article 14, paragraph 4, and article 5. Eighth paragraph Considering that measures are necessary to monitor certain substances, including precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs and psychotropic substances, the ready availability of which has led to an increase in the clandestine manufacture of such drugs and substances, Commentary 0.17 The eighth paragraph serves as an introduction to article 12. It lists some categories of substances frequently used in the illicit manufacture of narcotic drugs and psychotropic substances and which are regulated by that article: precursors, 32 chemicals and solvents. 0.18 The proposed addition of a new paragraph "recognizing the necessity to avoid any adverse effect on the legitimate activities of chemical and pharmaceutical industries" was not accepted. 33 It was considered that the restrictive import of the sentence would have introduced a kind of safeguard clause out of place in the preamble and without equivalent in any other preambular paragraph. 3 2 See paragraph 12.8 below. 33 Official Records, vol. I ... document E/CONF.82/11, "Preamble" (E/CONF.82/ C.l/L.18/Add.8), sect. II, pp. 94-95, para. 3 ("Seventhparagraph"). 20 Preamble Ninth paragraph Determined to improve international co-operation in the suppression of illicit traffic by sea, Commentary 0.19 The ninth paragraph constitutes a recognition of the need to improve international cooperation in the suppression of illicit traffic by sea. While article 108 of the 1982 United Nations Convention on the Law of the Sea 3 4 imposed a general obligation on States to cooperate in this area, it was considered necessary to elaborate more detailed provisions in the specific context of the 1988 Convention. This concern is dealt with primarily in article 17. 3 5 Tenth paragraph Recognizing that eradication of illicit traffic is a collective responsibility of all States and that, to that end, co-ordinated action within the framework of international co-operation is necessary, Commentary 0.20 The fact that eradication of illicit traffic is "the collective responsibility of all States" was expressly stated in the Declaration on the Control of Drug Trafficking and Drug Abuse, adopted by the General Assembly in its resolution 39/142. In the Declaration, States were also called upon to coordinate strategies to achieve that objective. Coordinated action within the framework of international cooperation is the essential ingredient of the Convention. It finds formal expression and confirmation in article 2 and permeates all subsequent substantive articles. 36 34 Official Records of the Third United Nations Conference on the Law of the Sea, vol. XVII (United Nations publication, Sales No. E.84.V.3), document A/CONF.62/121, annex I. 3 5 See also comments on article 4, paragraph 1, subparagraphs (a), clause (ii), and (b), clause (ii). 3 6 See below, comments on article 2. Preamble 21 0.21 In affirming in this regard the collective responsibility of all States and not only, or even especially, those affected by problems relating to illicit production, traffic or abuse, the preamble places the Convention in the category of multilateral treaties responding to general concerns or interests affecting all States within the international community in a similar manner. The General Assembly repeatedly invites States, to the extent they are able to do so, to apply provisionally the measures set forth in the Convention, pending its entry into force for each of them. 3 7 Moreover, article 21, subparagraph (/), of the Convention enables the Commission to draw the attention of non-parties to decisions and recommendations which it adopts under the Convention, with a view to their considering taking action in accordance therewith. Eleventh paragraph Acknowledging the competence of the United Nations in the field of control of narcotic drugs and psychotropic substances and desirous that the international organs concerned with such control should be within the framework of that Organization, Commentary 0.22 The 1961 Convention, the 1961 Convention as amended, and the 1971 Convention contain a similar preambular paragraph. 0.23 The competence of the United Nations in the field of drug control originates in the 1946 Protocol, which transferred to the United Nations the functions previously exercised in that field by the League of Nations. 0.24 The international drug control organs within the framework of the United Nations include, under the authority of the General Assembly, the Economic and Social Council, which is responsible for coordinating drug control activities and preparing draft international conventions for submission to the Assembly; it supervises their implementation and makes relevant recommendations to Governments. The Council is assisted and advised in its task by the Commission on Narcotic Drugs as the principal United Nations policy-making body on drug control issues. The International Narcotics Control Board carries out the functions assigned to it by the drug control treaties in force 3 7 See, for example, General Assembly resolutions 44/140, S-17/2, annex, and 45/146. 22 Preamble and promotes compliance with their provisions. The Secretary-General also fulfils the treaty functions entrusted to him under the various instruments. He is assisted in this capacity by the United Nations International Drug Control Programme, established pursuant to General Assembly resolution 45/179. 0.25 The 1988 Convention assigns specific functions to the Economic and Social Council, in article 22; the Commission on Narcotic Drugs, in articles 12, 20, and 21; the International Narcotics Control Board, in articles 12,22,23 and 32; the Secretary-General, in articles 5, 7,12,17, 20,23,27 to 31 and 34; and the International Court of Justice, in article 32. Twelfth paragraph Reaffirming the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the system of control which they embody, Commentary 0.26 The guiding principles of the existing treaties in the field of narcotic drugs and psychotropic substances reaffirmed in the twelfth paragraph are outlined in the preambles of the 1961 Convention, the 1961 Convention as amended, and the 1971 Convention. The system of control established under their substantive articles to put these principles into effect is analysed in detail and clarified in the commentaries on these conventions. In the course of the preparatory work on the 1988 Convention, it was repeatedly stressed that formal acknowledgement of those guiding principles should be made in the new instrument. It was also emphasized that the 1988 Convention should in no way derogate from the provisions of the previous treaties. The clear intent of the parties was that, taken together, the four instruments would form an integral system based on common concepts and principles and would constitute a comprehensive legal framework for international action. The 1988 Convention does not modify the provisions or affect the operation of the pre-existing conventions. 38 3 8 See below, comments on article 25. Preamble 23 Thirteenth paragraph Recognizing the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and its grave consequences, Commentary 0.27 Articles 35 and 36 of the 1961 Convention and the 1961 Convention as amended, and articles 21 and 22 of the 1971 Convention, provide for action to be taken to combat illicit traffic and contain penal provisions to punish drug offences. The view was taken that these provisions were no longer sufficient to tackle effectively illicit traffic as it had developed and diversified since those conventions had been adopted. It was therefore found necessary to expand those provisions and to adjust them to the distinct requirements of an instrument directed specifically against illicit traffic. Fourteenth paragraph Recognizing also the importance of strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic, Commentary 0.28 The fourteenth paragraph was proposed in Committee I as an additional paragraph. It originally described in detail the legal means of cooperation that were envisaged, enumerating, as examples, the areas in which international cooperation in criminal matters for suppressing illicit traffic should be strengthened, namely confiscation, extradition, mutual legal assistance and controlled delivery. It was, however, considered inappropriate in a preamble to be too specific about the forms that such cooperation might take. Moreover, a list of specific forms of cooperation might have been called into question as being incomplete. As indicated below, several articles, including articles 5, 6, 7 and 11, respond to the considerations expressed in this paragraph. 24 Preamble Fifteenth paragraph Desiring to conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances, Commentary 0.29 The wording of the fifteenth paragraph is borrowed from General Assembly resolution 39/141, in which the Assembly initiated the preparation of the Convention. As reflected below in the comments on each article, the Convention satisfies the criteria set forth in this preambular paragraph. It is specific in the sense that the objective of combating illicit traffic and its adverse consequences is central to its substantive content in accord with its title. It is comprehensive in that it covers the various aspects of the problem of illicit traffic as defined in article 1, subparagraph (m), and in particular, as mentioned above in the comments on the thirteenth paragraph, those aspects not envisaged in the existing treaties. It is designed to be effective and operative inasmuch as it sets out in detail the obligations of parties to take concrete and appropriate measures to achieve its purposes and institutes procedures for monitoring the proper implementation of its provisions. Preamble 25 Close Hereby agree as follows: Commentary 0.30 The Convention was adopted by the Conference on 19 December 1988 and opened for signature the following day. 3 9 Of the 106 States 4 0 participating in the Conference, 43 signed the Convention on 20 December 1988. 41 39 Official Records, vol. I ... document E/CONF.82/14, para. 21; see also "Introduction", para. 25. 4 0 For the complete list, see the Final Act (Official Records, vol. I ... document E/CONF.82/14, para. 7). 4 1 Afghanistan, Algeria, Argentina, Bahamas, Bolivia, Brazil, Canada, Chile, China, Colombia, Cote d'lvoire, Cyprus, Denmark, Egypt, Ghana, Guatemala, Holy See, Honduras, Iran (Islamic Republic of), Israel, Italy, Jordan, Malaysia, Mauritania, Mauritius, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Senegal, Spain, Suriname, Sweden, Turkey, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Venezuela, Yemen, Yugoslavia, Zaire. ARTICLE 1 Definitions General Comments 1.1 Some of the terms listed under article 1 of the 1988 Convention had already been defined under the 1961 Convention or the 1971 Convention. Such definitions were usually carried over verbatim in article 1 of the 1988 Convention, except when the Conference agreed that there was a specific reason not to do so, as, for example, in the case of the definition of "illicit traffic" (see paragraph 1.14 below). 1.2 Other terms defined under the earlier conventions, although used in the 1988 Convention, are not covered in article 1. This is, for instance, the case with the terms "cultivation", "exportation", 42 "importation", 43 "manufacture", and "production" which appear in article 3, paragraph 1, subparagraph (a), of the 1988 Convention, listing acts which should be established as criminal offences. 4 4 In such cases, definitions in the earlier conventions apply to the terms used in the 1988 Convention, all the more so since article 3, paragraph 1, subparagraph (a), clause (i), establishes an explicit link with the provisions of the 1961 and 1971 Conventions. 1.3 It should be noted that the present Commentary elaborates on the definition of terms listed in article 1 when analysing certain substantive articles. Thus, for example, a further examination of the meaning of "Confiscation" will be found in the section on article 5, "Controlled delivery" under article 11, and "Transit State" under article 10. Moreover, the Commentary proposes definitions of terms used in the Convention but not defined under article 1 or under the previous conventions. These include, for instance, the terms "brokerage" (paragraph 3.25), "chemicals" (paragraph 12.1), "conversion or transfer of property" (paragraphs 3.47-3.49), "delivery" (paragraph 3.24), "dispatch" (paragraph 3.26), "distribution" (paragraph 3.22), "extraction" (paragraph 3.16), "equipment" (paragraph 5.11 and 13.1), "free ports" and "free trade zones" 4 2 The 1961 and 1971 Conventions used the term "export". 4 3 The 1961 and 1971 Conventions used the term "import". 4 4 These terms are examined in paragraphs 3.14, 3.15, 3.28 and 3.29 below. 26 Art. 1 - Definitions 27 (paragraph 18.1), "incitement" and "inducement" (paragraphs 3.72-3.75), "instrumentalities" (paragraph 5.11), "management" (paragraph 3.33), "materials" (paragraphs 5.11 and 13.1), "offering" and "offering for sale" (paragraphs 3.19-3.21), "organization" (paragraph 3.33), "ordre public" (paragraph 7.50), "precursors" (paragraph 12.1), "preparations" (paragraphs 3.17-3.18 and 12.43-12.45), "solvents" (paragraph 12.1) and "transport" (paragraph 3.27). Introductory part and subparagraph (a) Except where otherwise expressly indicated or where the context otherwise requires, the following definitions shall apply throughout this Convention: (a) "Board" means the International Narcotics Control Board established by the Single Convention on Narcotic Drugs, 1961, and that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; Commentary 1.4 The International Narcotics Control Board was established 45 by the 1961 Convention, which contains detailed provisions regarding the composition and functions of the Board, 4 6 the terms of office and remuneration of its members, 4 7 its rules of procedure, 48 steps the Board is required to take in administering the control systems established by that Convention, 49 and reports to be prepared by the Board. 5 0 These provisions were considerably amended by the 1972 Protocol, 4 5 The International Narcotics Control Board replaced two organs established by earlier treaties in the narcotics field: the Permanent Central Board and the Drug Supervisory Body. 4 6 1961 Convention, art. 9. 4 7 Ibid„ art. 10. 4 8 Ibid. art. 11. 4 9 Ibid„ arts. 12-14. 5 0 Ibid„ art. 15. 28 Art. 1 - Definitions 28 notably by increasing the size of the Board from 11 to 13 members, 5 1 lengthening the term of office from three to five years, 5 2 and adding and amending provisions as to the Board's functions. 53 The 1988 Convention makes further provisions regarding the functions 5 4 and reports 5 5 of the Board. Subparagraph (ib) (b) "Cannabis plant" means any plant of the genus Cannabis; Commentary 1.5 The definition of "cannabis plant", in common with the definitions of narcotic drugs and psychotropic substances, was determined by the Drafting Committee of the Conference on the advice of the chairman of Committee II. 5 6 The definition is the same as in the 1961 Convention, 57 in which "cannabis" 5 8 and "cannabis resin" 5 9 are also defined. The latter definitions are not repeated in the text of the 1988 Convention the relevant provisions of which 6 0 are concerned with the cultivation of the plant as a whole. The genus Cannabis 5 1 1961 Convention as amended, art. 9, para. 1. 5 2 1 961 Convention as amended, art. 10, para. 1. 5 3 1 961 Convention as amended, art. 9, paras. 4 and 5, and arts. 12, 14 and 14 bis. 5 4 1988 Convention, art. 22. 5 5 Ibid. art. 23. 56 Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee II, 34th meeting, para. 89. 5 7 1961 Convention, art. 1, subpara. (c). 5 8 Defined as the "flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated" (1961 Convention, art. 1, subpara. (b)). The 1925 Convention used the term "Indian hemp". 5 9 Defined as "the separated resin, whether crude or purified, obtained from the cannabis plant" (1961 Convention, art. 1, subpara. (d)). 6 0 See article 3, paragraph 1, subparagraph (a), clause (ii), and article 14, paragraph 2. Art. 1 - Definitions 29 consists of the single species Cannabis saliva L. the scientific name used in the 1925 Convention for the Indian hemp plant. Subparagraph (c) (c) "Coca bush" means the plant of any species of the genus Erythroxylon; Commentary 1.6 This definition again reproduces that of the 1961 Convention, 61 where a definition of "coca leaf", not required for the 1988 Convention, is also provided. 6 2 There are some 200 species of the genus Erythroxylon, of which two, Erythroxylon coca Lamarck and Erythroxylon novaranatense (Morris) Hieronymus, are of importance for present purposes as their leaves contain cocaine and other ecgonine derivatives. Subparagraph (d) (d) "Commercial carrier" means any person or any public, private or other entity engaged in transporting persons, goods or mails for remuneration, hire or any other benefit; Commentary 1.7 The definition of "commercial carrier" is above all relevant to article 15, since commercial carriers are the subject of the article. The definition covers natural and legal persons, and entities under both public and private law, whatever legal form the relevant business association may take. 6 3 Similarly the concluding reference to "remuneration, hire or any other benefit" is intended to cover every form of reward, whether pecuniary or not. The provisions of article 15, which cover, inter alia, a commercial carrier's principal place of business and personnel, make it clear that the article is concerned with entities 6 1 1961 Convention, art. 1, subpara. (e). 6 2 1961 Convention, art. 1, subpara. (/) . 6 3 For the discussion of this definition in Committee II, see Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee II, 3rd meeting, paras. 56-91. 30 Art. 1 - Definitions 30 regularly involved in transport, as opposed to a person carrying goods for reward on an isolated occasion; the words "engaged in transporting" convey this meaning. Subparagraph (e) (e) "Commission" means the Commission on Narcotic Drugs of the Economic and Social Council of the United Nations; Commentary 1.8 In pursuance of Article 68 of the Charter of the United Nations, the Commission is a functional commission of the Economic and Social Council established in 1946 by its resolution 9 (I) which also sets out the mandate of the Commission. That mandate was later enlarged in 1991 by Economic and Social Council resolution 1991/38 and General Assembly resolution 46/185 C, section XVI. The 1961, 1971 and 1988 Conventions also confer functions on the Commission 6 4 but contain no provisions relating to its membership or procedure; these are governed by the Economic and Social Council or the General Assembly. Subparagraph (f ) (f ) "Confiscation", which includes forfeiture where applicable, means the permanent deprivation of property by order of a court or other competent authority; Commentary 1.9 This definition is primarily of importance in relation to article 5, which deals with confiscation. 65 Reference is made to "forfeiture" in order to meet the needs of some national legal systems, in which this was a more appropriate term than "confiscation". The French and Spanish versions do not have the phrase "which includes forfeiture where applicable", since the terms "confiscation" in French and "decomiso" in Spanish were deemed to be the only appropriate ones. It was stressed, in particular, that in Spanish the use of the term "confiscation" M I n the 1988 Convention, for example, see articles 12, 20, 21 and 23. 6 5 See also article 3, paragraph 4, subparagraph (a). Art. 1 - Definitions 31 should be avoided in the context of article 5. Committee I placed on record its understanding that the word "property" as used in this definition also included "proceeds" and that the word "permanent" indicated that confiscation, being the end result of a legal process, was distinct from provisional measures. 6 6 Subparagraph (g) (g) "Controlled delivery" means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, substances in Table I and Table II annexed to this Convention, or substances substituted for them, to pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences established in accordance with article 3, paragraph 1 of the Convention; Commentary 1.10 The substantive provisions regarding controlled delivery are in article 11, the text of which makes it clear that decisions to use the technique are to be made on a case-by-case basis. 67 For that reason, it was possible to agree on a broad definition in article 1. It was thought that some States might be reluctant to agree to use controlled delivery in respect of substances used in the illicit manufacture of narcotic drugs and psychotropic substances despite the usefulness of the technique, inter alia, in discovering clandestine laboratories. Therefore, the substantive provisions as adopted ensure that no State is obliged to agree to the use of controlled delivery in cases where its use is judged inappropriate for any reason. The reference to "suspect" consignments ensures that the technique can also be used in the case of consignments of substances that are only suspected of being intended for illicit use. 6 8 The technique, under this definition, does not apply to consignments of currency or equipment (see paragraph 11. 28 below). ^Official Records, vol. I... document E/CONF.82/11, "Article 3" (E/CONF.82/C.1/ L. 18/Add.2), sect. Ill, p. 116, para. 50. 6 7 Art . 11, para. 2. 6 8 See Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee II, 10th meeting, paras. 1-7. 32 Art. 1 - Definitions 32 Subparagraphs (h), (i) and (j) (h) "1961 Convention" means the Single Convention on Narcotic Drugs, 1961; (0 "1961 Convention as amended" means the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; (j) "1971 Convention" means the Convention on Psychotropic Substances, 1971; Commentary 1.11 These definitions provide useful short titles for the earlier texts. 69 Short titles of earlier conventions do not appear in the 1961 and 1971 Conventions. Subparagraph (k) (k) "Council" means the Economic and Social Council of the United Nations; Commentary 1.12 The Economic and Social Council was constituted under Article 61 of the Charter of the United Nations. The Council has a number of functions under the Convention; for example, it receives the reports of the International Narcotics Control Board 7 0 and, at the request of a party, it reviews any decision of the Commission under article 12 amending the contents of Table I or Table II. 7 1 In the latter case, the Council may confirm or reverse any such decision. 6 9 See the explanatory notes at the beginning of this Commentary. 7 0 Art . 23, para. 7. 7 'Art . 12, para. 7. Art. 1 - Definitions 33 Subparagraph (I) (0 "Freezing" or "seizure" means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or a competent authority; Commentary 1.13 In the draft text submitted to the Conference, separate definitions (each with two variants) were given for the terms "freezing" and "seizure". 72 Different national legal systems may use one or both of these terms, which in the provisions of article 5 are used as alternatives. 73 It was therefore decided to combine the definitions, including for both terms reference to the temporary nature of the action taken. This decision was also seen as helping reduce the translation difficulties presented by each term standing alone. Similarly, "custody" and "control" are both used, as they may have different connotations in the legal usage of different States. Subparagraph (m) (m) "Illicit traffic" means the offences set forth in article 3, paragraphs 1 and 2, of this Convention; 7 2 Freezing (variant A) means prohibiting the transfer, conversion, disposition or movement of proceeds by order of a court or other appropriate authority; freezing (variant B) means temporarily prohibiting the transfer, conversion disposition or movement of property. Seizure (variant A) means assuming custody or control of proceeds as directed by order of a court or other appropriate authority; seizure (variant B) means assuming custody or control of property by a competent authority (Official Records, vol. I... document E/CONF.82/3, annex, pp. 75-76). 7 3 An exception is in article 5, paragraph 3, where only "seized" is used; the context, however, is that of bank, financial or commercial records rather than of property or proceeds. In article 7, paragraph 2, subparagraph (c), in the context of mutual legal assistance, "seizure" alone is used in the familiar term "searches and seizures". 34 Art. 1 - Definitions 34 Commentary 1.14 The term "illicit traffic" 7 4 features in the title of the Convention, in the great majority of the preambular paragraphs, and in several articles throughout the Convention. In the draft submitted to the Conference it was a key term in the substantive provisions, with a lengthy definition. 75 The Conference finally decided to define "illicit traffic" by reference to offences under article 3, paragraphs 1 and 2. Many of the detailed provisions of the Convention, however, do not use the term "illicit traffic" with its broad definition but refer instead to "offences established in accordance with article 3, paragraph 1". This formulation was used to limit obligations arising under those provisions to more serious offences, as opposed to offences of possession, purchase or cultivation for personal consumption, which were recognized as less serious in nature. The term "illicit traffic" is found in article 10 (International co-operation and assistance for transit States), article 17 (Illicit traffic by sea), article 18 (Free trade zones and free ports), article 19 (The use of the mails), article 20 (Information to be furnished by the Parties), and article 24 (Application of stricter measures than those required by this Convention). In the last of these, it would seem that the term must be given a wider meaning than that specified in the definition, for the stricter measures may well go beyond the limits set in article 3, paragraphs 1 and 2. The expression "illicit traffic in and abuse of 7 4 The term "illicit traffic" was included among the definitions of article 1 of the 1961 Convention (subpara. 1 (/)) and of article 1 of the 1971 Convention (subpara. (/)). It was defined under the 1961 Convention as "cultivation or trafficking in drugs contrary to the provisions of this Convention" and under the 1971 Convention as "manufacture of or trafficking in psychotropic substances contrary to the provisions of this Convention". 7 S " 'Illicit traffic' means [includes] [inter alia] the [sowing] cultivation, [harvesting] production, [fabrication] manufacture, extraction, preparation, [conditioning] offering, offering for sale, distribution, [possession] [supply] [storage] purchase, [acquisition] sale, [prescription] delivery on any terms whatsoever, brokerage, dispatch, dispatch through the mails, dispatch in transit, transport, importation and exportation [and the traffic in any other form] of any narcotic drugs or psychotropic substances contrary to the provisions of the Single Convention on Narcotic Drugs, 1961, of that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and of the Convention on Psychotropic Substances, 1971. [Illicit traffic also includes the possession of any narcotic drugs or psychotropic substances for the purpose of any of the foregoing activities] [as well as the consumption or improper use of such substances], [It also includes traffic in substances in List A and List B contrary to article 8 of the present Convention]. The organization, management, financing or facilitating of the aforementioned operations or activities are also considered as illicit traffic for the purposes of this Convention" (Official Records, vol. I... document E/CONF.82/3, annex, p. 75). List A and List B in the basic proposal before the Conference correspond to Table I and Table II of the Convention as later adopted. Art. 1 - Definitions 35 narcotic drugs and psychotropic substances" occurs in article 5, paragraph 5, subparagraph (b), clause (i), but in the context of identifying intergovernmental bodies which might receive a share in the value of confiscated property. Subparagraph (n) («) "Narcotic drug" means any of the substances, natural or synthetic, in Schedules I and II of the Single Convention on Narcotic Drugs, 1961, and that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 ; Commentary 1.15 This definition reproduces in substance that of the 961 Convention. The text of the 1961 Convention, as opposed to its title, did not use the term "narcotic drug" but contained a definition of the term "drug" having the same import as the one now used in the 1988 Convention. It should be noted that the opium poppy, coca bush and cannabis plant are not within the definition, although they are identified in article 14, paragraph 2, of the 1988 Convention as examples of the category of "plants containing narcotic or psychotropic substances". Although certain provisions of the 1961 Convention apply only to natural as opposed to synthetic drugs, this distinction, while repeated in the definition in the 1988 Convention, is not material for the purposes of the latter. Subparagraph (o) (o) "Opium poppy" means the plant of the species Papaver somniferum L; Commentary 1.16 The definition "opium poppy" follows that given in the 1961 Convention, rather than that given in the 1953 Protocol, which also includes any other species of Papaver which may be used for the production of opium. The position under the 1988 Convention is that the offence established in accordance with article 3, paragraph 1, subparagraph (a) (ii), is limited to the opium poppy as defined in article 1. The obligation created under article 14, paragraph 2, however, is to "take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic [...] substances, such as opium poppy". If a plant considered not to be a variety of the species Papaver somniferum L. but 36 Art. 1 - Definitions 36 of another species of the genus Papaver were found to yield narcotic substances, it would then also fall within the category of plants subject to that obligation. Subparagraph (p) (p) "Proceeds" means any property derived from or obtained, directly or indirectly, through the commission of an offence established in accordance with article 3, paragraph 1; Commentary 1.17 In the text submitted to the Conference, the proposed definition of "proceeds" was in fact a variant of the definition of "property", both being listed under the common heading "Property". 76 Neither draft definition contained any reference to the source or derivation of the property. The decision to include such a reference made it important that "proceeds" and "property" should be separately defined. 1.18 The inclusion of the words "directly or indirectly" proved controversial. A number of representatives registered their doubts on this point, 7 7 and the inclusion of those words may have contributed to what one representative described as a "logical incoherence" between the definition and the substantive text. 7 8 In two instances the wording of the Convention fails to relate clearly to the definition set out in article 1, subparagraph (p). The first is found in article 3, where, at a number of points, 7 9 the text uses the phrase "property [...] derived from" an offence; the second occurs in the text of article 5, paragraph 1, subparagraph (a), which requires each party to adopt such measures as may be necessary to enable confiscation of "proceeds derived from offences established in accordance with article 3, paragraph 1". It appears that the words "derived from" in article 5, paragraph 1, incorporate the sense of the definition of ^Official Records, vol. I ... document E/CONF.82/3, annex II, p. 76. The only difference between the two variants was that the definition of "property" also contained a reference to "assets". ^Official Records, vol. I... document E/CONF.82/11, "Article 3" (E/CONF.82/C.1/ L.18/Add.2), sect. Ill, para. 50; and Official Records, vol. II... Summary records of plenary meetings, 6th plenary meeting, paras. 64-66. 78 Official Records, vol. II ... Summary records of plenary meetings, 6th plenary meeting, para. 66. 7 9 Art . 3, para. 1, subparas. (b), clauses (i) and (ii), and (c), clause (i). Art. 1 - Definitions 37 proceeds and so mean "derived from or obtained, directly or indirectly, through". In the context of article 3, where the word "proceeds" as such is not used, the position is less clear (see paragraph 3.46 below). Subparagraph (q) (iq) "Property" means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to, or interest in, such assets; Commentary 1.19 In the earliest drafts of the Convention, this was the definition of the term "proceeds", 8 0 but it became clear that two definitions were needed, one (that of "property") serving to emphasize that assets of every possible kind were included and the second (that of "proceeds") referring to the derivation of the property. The language used is apt for the various classifications of property to be found in national legal systems. In some systems the legal documents of title to property are not merely evidence but have value in themselves, and this is catered for in the definition. Subparagraph (r) (r) "Psychotropic substance" means any substance, natural or synthetic, or any natural material in Schedules I, II, III and IV of the Convention on Psychotropic Substances, 1971; Commentary 1.20 This reproduces the definition used in the 1971 Convention. The categorization of the relevant substances as natural or synthetic substances or as natural material has no legal significance in the context of the present Convention. 81 8 0 See Official Records, vol. I... document E/CN.7/1987/2, sect. II. 8 'i t had virtually none in the 1971 text (see Commentary on the 1971 Convention, comments on article 1, subparagraph (e)). 38 Art. 1 - Definitions 38 Subparagraph (s) (s) "Secretary-General" means the Secretary-General of the United Nations; Commentary 1.21 As in the 1961 and 1971 Conventions, the Secretary-General of the United Nations has two types of function under the 1988 Convention. The first concerns the operation of the substantive provisions of the Convention, as in article 5 (reception of texts of laws and regulations, which implies a duty to make the information available as appropriate), 82 article 7 (reception of various types of information needed in the practical working of mutual legal assistance), 83 article 12 (duties relating to the work of the Board, the Commission and the Council in relation to Table I and Table II 8 4 and also in the activation of provisions regarding information on exports), 85 article 17 (reception of designations of authorities to respond to requests relating to steps to be taken in cases of illicit traffic by sea), 8 6 article 20 (reception of various types of information furnished by the parties) 87 and article 23 (distribution of the reports of the Board). 88 The second type of function relates to the duties as depositary of the Convention. The Secretary-General is given this role by article 34 and has related duties under other final clauses. 89 82 Art. 5, para. 4, subpara. (e). 8 3 Art . 7, para. 8 (designated authorities) and para. 9 (translation requirements). 84 Art. 12, paras. 3, 6 and 7. 8 5 Art. 12, para. 10. 86 Art. 17, para. 7. 8 7 Art . 20, para. 1. 8 8 Art . 23, para. 2. 8 9 See articles 27-32. Art. 1 - Definitions 39 Subparagraph (t) (t) "Table I" and "Table II" mean the correspondingly numbered lists of substances annexed to this Convention, as amended from time to time in accordance with article 12; Commentary 1.22 The draft before the Conference referred to "List A" and "List B". These terms were altered to "Schedule I" and "Schedule II" in the course of the negotiations, using the terms consecrated in the 1961 and 1971 Conventions, and in the end became "Table I" and "Table II" on the suggestion of the Drafting Committee. (See comments on article 12 in paragraph 12.8 below for details on the type of substances listed in Table I and Table II and the use of the term "precursor".) Subparagraph (u) («) "Transit State" means a State through the territory of which illicit narcotic drugs, psychotropic substances and substances in Table I and Table II are being moved, which is neither the place of origin nor the place of ultimate destination thereof. Commentary 1.23 The background to the provisions in the 1988 Convention regarding transit States, and some discussion of the appropriateness of the definition is to be found in the commentary on article 10 below (see in particular paragraphs 10.3 and 10.4). ARTICLE 2 Scope of the Convention General comments 2.1 In the course of the discussions at various stages of the preparatory work, the point was made that, in order to produce an instrument that could prove acceptable to as many States as possible, it would be advisable to include in several articles, if not in all of them, appropriate safeguard clauses, taking into account the existence of the different national legal systems and the domestic laws of the States concerned. The idea was also put forward that, in addition to including such safeguard clauses, it would be desirable to devise a separate article of general application, covering the whole Convention, which would ensure that the obligations assumed by parties would in no way infringe universally recognized legal principles such as the sovereign equality and territorial integrity of States. This was considered particularly important in view of the far-reaching and, in many instances, innovative character of the penal provisions of the Convention. 2.2 A formal proposal to introduce a new article in that sense was made by the representative of Mexico in the review group on the draft Convention. 90 The proposed text was submitted for consideration to Committee I as article 1 bis. 91 In view of the strong objections that some representatives had expressed informally, however, it was not discussed in its original form. A revised, more concise and less controversial formulation was presented after consultations among delegations. 92 The revised formulation became the framework of the final text of article 2 as later adopted. 90 Official Records, vol. I... document E/CONF.82/3, chap. Ill, para. 120. 9 1 Ibid. , document E/CONF.82/11, "Article 1 bis" (E/CONF.82/C.l/L.18/Add.6), sect. Ill, para. 3, p. 97. 9 2 The revised proposal (Official Records, vol. I ... document E/CONF.82/11 "Article 1 bis" (E/CONF.82/C.l/L.18/Add.6), sect. Ill, para. 3, p. 98) was sponsored by 42 delegations. 40 Art. 2 - Scope of the Convention 41 2.3 In order to dispel doubts about the need for such an article in view of the numerous safeguard clauses included throughout the Convention 93 and to answer possible fears that it might be interpreted as a sweeping escape clause enabling parties to evade their obligations, the representative of Canada, as one of the sponsors, explained the rationale for the revised proposal. 9 4 He pointed out that none of the principles enunciated in the proposed article went beyond those contained in the other articles of the draft Convention and that it was useful to emphasize such general principles at the beginning of the instrument so that there could be no misunderstanding. If such an article, which had no equivalent in the 1961 and 1971 Conventions, was considered necessary, it was because the present instrument was significantly broader in scope, particularly with regard to its penal provisions. It had to be clearly understood, however, that the article "was not intended to derogate from obligations assumed pursuant to the Convention and was not meant to go beyond those principles of international law that were well established and universally accepted". 95 2.4 The revised proposal was further amended to give a more positive tone to the wording. A redraft 9 6 emphasizing the obligations of the parties under the Convention was ultimately adopted without objection or reservation on the part of any delegation. It now constitutes article 2. 2.5 Article 2 is a distinctive feature of the 1988 Convention. Although not conceived as an overriding safeguard clause governing all the articles of the Convention, whether or not they themselves contain a safeguard clause, article 2 has the import of a statement of guiding principles for a correct interpretation and proper implementation of the substantive articles of the Convention. The choice of the word "Scope" for its title is in itself an indication of its role. It suggests that its purport is to define the object and ultimate design of the 9 3 The 1988 Convention stipulates a variety of safeguard or qualifying clauses (see article 3, paragraphs 1, 2, 5 and 10; article 5, paragraph 7; article 6, paragraphs 8 and 10; article 7, paragraph 4; article 9, paragraph 1, subparagraph (c); article 11, paragraph 1; and the comments below on these articles). By comparison, the 1961 Convention as amended and the 1971 Convention contained safeguard clauses in three articles (articles 35, 36 and 38 bis) and two articles (articles 21 and 22), respectively. 94 Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee I, 24th meeting, paras. 86-93. 9 5 Ibid. para. 93. 96 Official Records, vol. I... document E/CONF.82/11, "Article 1 bis" (E/CONF.82/ C.l/L.18/Add.6), sect. II, para. 3, and sect. IV, para. 13. 42 Art. 2 - Scope of the Convention 42 Convention while indicating the legal context within which parties are to fulfil their obligations. Paragraph 1 1. The purpose of this Convention is to promote cooperation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems. Commentary 2.6 In choosing to enunciate the "purpose" of the Convention in article 2, the parties have elevated to the level of a binding article a statement that it would be more customary to find in the preambular part of a treaty. In substance and language, it sums up the intentions of the parties as stated in the preamble, more specifically in the tenth paragraph, where it is recognized that eradication of illicit traffic requires "co-ordinated action within the framework of international co-operation", and in the fourteenth paragraph, where "the importance of strengthening and enhancing effective legal means for international cooperation in criminal matters for suppressing the international criminal activities of illicit traffic" is also recognized. 2.7 The key word in the first sentence is "co-operation". The whole Convention is framed with this purpose in view. It may be noted that the words "co-operation" or "co-operate" appear in a number of articles. Even where they are not expressly used, they may be considered implicit; there is hardly any article that could be effectively and fully implemented without some form of international cooperation at the bilateral or multilateral level. In the original draft of the proposed article, the Convention was said to constitute "an instrument of international co-operation". Although the formula was not retained in the final text of the article, the characterization remains valid, and parties are expressly invited, in several articles, to conclude bilateral and multilateral agreements to Art. 2 - Scope of the Convention 43 enhance the effectiveness of the international cooperation called for pursuant to those articles. 97 2.8 It may be inferred from the preparatory work that the language used in the second sentence does not mean that obligations assumed by parties under the Convention are subject to domestic law. It was emphasized on behalf of the sponsors of the text originally considered in Committee I, which was not substantially different from the adopted draft, that "the sentence was not in any way to be interpreted as a derogation from specific obligations assumed by Parties. Rather, it was to clarify that while Parties assumed obligations, it was up to each of them to decide what laws they would require and what institutions they would need to establish to meet such obligations". 98 2.9 The sentence is a factual statement to the effect that parties are bound to take measures in order to introduce in the form they deem appropriate the kind of legislation that will satisfy the exigencies of the Convention. Such measures, whatever their nature or designation may be in the respective legal systems of the parties (they may consist of statutes, regulations or other formal enactments), are to be taken "in conformity with the fundamental provisions of [the Parties'] respective domestic legislative systems". 9 9 This formula is to be understood as referring to the legislative organs and law-making process established in each State by the basic law of the land. It covers institutions as well as procedure. 2.10 Other provisions of the Convention contain similar phrases, to the effect that the measures that parties are required to adopt will assume various forms according to those parties' legal systems and that parties are free to exercise discretion regarding the implementation modalities of those measures. Such phrases can be found, for instance, in article 3, paragraph 9, concerning the cautious use by a party of bail or pre-trial release "consistent with its legal system"; in article 3, paragraph 11, regarding the prosecution or punishment of offences "in conformity with [each Party's domestic] law"; or in article 9, 9 7 See articles 5, 6, 7, 9, 11,14 and 17. 98 Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee I, 24th meeting, para. 88. 9 9 The wording in the French text,"compatibles avec", might seem more restrictive than "in conformity with", used in the English text. There was, however, no indication during the discussion of any intention to that effect. In other parts of the Convention, it appears that the terms "in conformity with" and "consistent with" were interchangeable. 44 Art. 2 - Scope of the Convention 44 paragraph 1, on close international cooperation "consistent with [the Parties'] respective domestic legal and administrative systems". These formulas should be distinguished from the safeguard clauses, 10 0 which limit the obligations of parties in case of conflicting constitutional or legislative domestic rules by stipulating that the parties shall adopt certain measures "subject to", "to the extent permitted by", or "without prejudice to" the basic principles of their domestic legal systems. In some cases, both types of clauses are combined when a measure is required "if [the Party's] law so permits and in conformity with the requirements of such law". 10 1 2.11 The second sentence of paragraph 1 would suggest that no provision in the Convention is considered self-executing. In order to carry out their obligations under the Convention, Parties must incorporate in their domestic law, through appropriate legislative and administrative action, the relevant substantive elements of its provisions. Paragraph 2 2. The Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. Commentary 2.12 Paragraph 2 reiterates universally accepted and well-established principles of international law concerning the sovereign equality and territorial integrity of States and non-intervention in the domestic affairs of States. These closely related principles, enshrined in the Charter of the United Nations (Article 2, paragraphs 1 and 7), have been reaffirmed and elaborated upon in subsequent authoritative documents, in particular the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly in its resolution 2625 (XXV). 2.13 The rationale for restating these principles in article 2 lies in the fact that the Convention, as already noted above, goes much further than previous drug control treaties in matters of law enforcement and mutual legal assistance. 10 0 See footnote 93 above. 10 1 See article 6, paragraph 10, and article 5, paragraphs 4 a-.d 9. Art. 2 - Scope of the Convention 45 2.14 As will be shown in greater detail in the comments on the respective articles, care has been taken throughout the Convention to ensure that disputes or friction between parties do not arise because of a failure to comply strictly with the said principles. Formal requests have to be made, and authorizations granted, for putting in motion certain procedures or operations requiring the express prior consent of parties. 2.15 Special attention has been paid to this problem in a number of articles. Article 9 (Other forms of co-operation and training) requires that parties exercise caution in applying the forms of cooperation that are envisaged. It provides, for instance, for the establishment of joint teams "in appropriate cases and if not contrary to domestic law". It stresses that officials of any party taking part in such teams "shall act as authorized by the appropriate authorities of the Party in whose territory the action is to take place; in all such cases, the Parties involved shall ensure that the sovereignty of the Party on whose territory the operation is to take place is fully respected". In all cases, cooperation shall be initiated and conducted "on the basis of bilateral or multilateral agreements or arrangements". The use of controlled delivery at the international level contemplated in article 11 is also subject to prior agreement or arrangement between the parties. 2.16 The conclusion of formal or informal agreements or arrangements between parties, recommended in several articles as a means of giving practical effect to certain provisions of the Convention and enhancing cooperation, should contribute to fostering respect for the principles of sovereign equality and territorial integrity referred to in paragraph 2. 2.17 Generally speaking, a party has no right to undertake law enforcement action in the territory of another party without the prior consent of that party. The principle of non-intervention excludes all kinds of territorial encroachment, including temporary or limited operations (so-called "in-and-out operations"). It also prohibits the exertion of pressure in a manner inconsistent with international law in order to obtain from a party "the subordination of the exercise of its sovereign rights". 10 2 Thus, for instance, the unauthorized undertaking by a party, within the territory of another party, of surveys to detect areas of illicit cultivation of narcotic plants, or the spraying of such areas for purpose of eradication, would not be in order. 10 2 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV), annex), " Principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter", para. 2. 46 Art. 2 - Scope of the Convention 46 2.18 It would be futile to attempt to draw up a comprehensive catalogue of possible violations of those principles that might result from an arbitrary, indiscriminate application of specific provisions of the Convention. Occurrences that are open to dispute will have to be approached and resolved on a case-bycase basis in the light of the development of international law, taking into account the particular circumstances of each incident. 10 3 2.19 It was emphasized by the sponsors of the proposed text that the reference to the "territorial integrity of States" could in no way be interpreted by parties as a springboard to assert particular claims of rights to lands and waters. 10 4 Paragraph 3 3. A Party shall not undertake in the territory of another Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other Party by its domestic law. Commentary 2.20 Paragraph 3 is conceptually linked to the preceding paragraph and is complementary to it insofar as practical implications are concerned. Whereas paragraph 2 lays down, in affirmative language, a code of conduct to which parties should conform in fulfilling their obligations under the Convention, paragraph 3 sets out, in negative language, what parties should not do if they are to comply with the accepted customary norms of international law. Exclusive exercise of territorial jurisdiction is a corollary of sovereignty and has the same function as the prohibition of intervention in the domestic affairs of other States and due respect for territorial integrity. Compliance with these principles constitutes in fact a guarantee of the independent exercise of jurisdiction and performance of functions that a State considers to be within its own domaine reserve. 2.21 Nevertheless, by agreeing to be bound by the obligations imposed by the Convention in matters that otherwise might be considered to pertain to its domaine reserve, a party is precluded, in the absence of a specific safeguard 10 3 See article 32 and the comments thereon below. 104 Official Records, vol. II... Summary records of meetings of the Committees of the Whole, Committee I, 24th meeting, para. 89. Art. 2 - Scope of the Convention 47 clause, from invoking an exception of exclusive jurisdiction in connection with the implementation of one of its provisions. A broad interpretation that domestic law should prevail in all cases would defeat the object and purpose of the Convention. 2.22 The conditions governing the establishment by parties of prescriptive jurisdiction are regulated in detail in article 4, which envisages the establishment of such jurisdiction on either a territorial or an extraterritorial basis. The establishment of prescriptive extraterritorial jurisdiction, widely accepted under international law, must be distinguished from the power to exercise jurisdiction and take enforcement action abroad, which, as emphasized by article 2, paragraph 3, is prohibited under international law save when undertaken with the consent of the State concerned. 2.23 The conduct of inquiries or investigations, including covert operations, on the territory of another State without its consent, in relation to criminal offences established in accordance with article 3, is not permissible. The conditions for taking action on the basis of cooperation are clearly set out in articles 7 (Mutual legal assistance), 9 (Other forms of co-operation and training) and 17 (Illicit traffic by sea). 2.24 Similarly, there is no general right of hot pursuit across land boundaries. Such a right may be the object of specific agreements between neighbouring States, as for instance between the Benelux countries since 1962, and between the parties to the Schengen agreements since 1990. It should be noted that in these instances an offender arrested following the exercise of the right to hot pursuit will have to be handed over to the competent local authorities, which may keep him under arrest pending the initiation of extradition procedures. It should also be borne in mind that, as affirmed by international case law, the generality and exclusivity that characterize territorial sovereignty and its implications as regards jurisdiction and functions, have a counterpart in the obligation for a State to protect within its territory the rights of other States and, more specifically, the "duty not to allow knowingly its territory to be used for acts contrary to the rights of other States". 10 5 ' "international Court of Justice reports, 1949, p. 18. PART TWO SUBSTANTIVE PROVISIONS ARTICLES 3-19 ARTICLE 3 Offences and sanctions General comments 3.1 Article 3 is central to the promotion of the goals of the Convention as set out in the preamble 10 6 and to the achievement of its primary purpose, stated in article 2, paragraph 1, "to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension". 10 7 Towards that end, it requires parties to legislate as necessary to establish a modern code of criminal offences relating to the various aspects of illicit trafficking and to ensure that such illicit activities are dealt with as serious offences by each State's judiciary and prosecutorial authorities. 3.2 The underlying philosophy embodied in article 3 is that improving the effectiveness of domestic criminal justice systems in relation to drug trafficking is a precondition for enhanced international cooperation. While, however, the decision was taken to deal in article 3, paragraph 2, with offences of possession, purchase and cultivation aimed at personal consumption, it was recognized that for various reasons, including considerations of expense and administrative practicality, the obligations imposed in certain key areas such as extradition ,0 6 Se e above, comments on the preamble. 10 7 See also above, comments on article 2, paragraph 1. 48 Art. 3 - Offences and sanctions 49 (article 6), confiscation (article 5) and mutual legal assistance (article 7) would be restricted to the more serious trafficking offences established in accordance with paragraph 1. As has been pointed out elsewhere: "The article focuses and imposes the greatest international obligations on those offences which have the most international impact". 10 8 3.3 At a practical level it was appreciated that, given the scope and ambition of article 3 and the nature of the obligations imposed, especially in respect of offences, many States wishing to become parties to the Convention would be faced with the need to enact complex implementing legislation in order to be in a position to comply fully with its terms. While it is important to stress that the Convention seeks to establish a common minimum standard for implementation, there is nothing to prevent parties from adopting stricter measures than those mandated by the text should they think fit to do so, 10 9 subject always to the requirement that such initiatives are consistent with applicable norms of public international law, in particular norms protecting human rights. Furthermore, it is important not to lose sight of the fact that those involved in trafficking activity frequently breach laws other than those directly related to drugs. As was noted in the 1987 Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control: "The illicit traffic in drugs not only violates national drug laws and international conventions, but may in many cases also involve other antisocial activities, such as organized crime, conspiracy, bribery, corruption and intimidation of public officials, tax evasion, banking law violations, illegal money transfers, criminal violations of import or export regulations, crimes involving firearms, and crimes of violence." 11 0 Thus the adequacy of other relevant parts of the criminal justice system may have an important bearing on the effectiveness of drug law enforcement efforts. 10 8 "Report of the United States Delegation to the United Nations Conference for the adoption of a Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances", 101st Congress, Senate, Exec. Rept. 101-15, p. 26. 10 9 See below, comments on article 24; see also article 39 of the 1961 Convention and article 23 of the 1971 Convention, both of which adopt a similar approach to this issue. ' ^Report of the International Conference on Drug Abuse and Illicit Trafficking, Vienna, 17-26 June 1987 (United Nations publication, Sales No. E.87.I.18), chap. I, sect. A, para. 223. 50 Art. 3 - Offences and sanctions 50 Paragraph 1, introductory part 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: Commentary 3.4 The criminalization and punishment of illicit traffic is one of the basic features of the Convention, and action under paragraph 1 is mandatory on all parties. 3.5 The corresponding provisions in the articles of the 1961 Convention, the 1961 Convention as amended, and the 1971 Convention dealing with penal provisions 11 1 contain the safeguard clause "Subject to its constitutional limitations". This clause was judged inappropriate in the 1988 Convention, although a similar phrase is used in the particular context of article 3, paragraph 1, subparagraph (c), as the authors of the Convention were anxious to make the present text fully mandatory, allowing parties no loopholes. In the context of the 1961 Convention, the United Nations Secretariat had placed on record the fact that it was not aware of any constitutional limitations which would have the effect of preventing a party to that Convention from implementing the relevant provisions of the Convention, 11 2 so the safeguard clause was almost certainly unnecessary. 3.6 The obligation of a party is to take the necessary measures to establish certain "criminal offences under its domestic law". This phrase, which makes no reference to any categorization of offences (for example as "felonies") which may be found in a particular legal system, was chosen in order to accommodate the various approaches found in domestic laws on illicit traffic and drug offences. Where a distinction is drawn in a particular legal system between criminal offences and regulatory infractions, 11 3 the Convention refers to the former category. U 1 1961 Convention, art. 36, para. 1; 1961 Convention as amended, art. 36, para. 1, subpara. (a); 1971 Convention, art. 22, para. 1, subpara. (a). 11 2 Commentary on the 1961 Convention, paragraph 13 of the comments on article 36. 11 3 For example, the German Ordnungswidrigkeiten. 50 Art. 3 - Offences and sanctions 51 3.7 The various types of conduct listed in article 3, paragraph 1, are required to be established as criminal offences only "when committed intentionally"; unintentional conduct is not included. It accords with the general principles of criminal law that the element of intention is required to be proved in respect of every factual element of the proscribed conduct. It will not be necessary to prove that the actor knew that the conduct was contrary to law. Proof of the element of intention is the subject of a specific provision in article 3, paragraph 3. It is, of course, open to individual parties to provide in their domestic law that reckless or negligent conduct should be punishable, or indeed to impose strict liability without proof of any fault element. Paragraph 1, subparagraph (a), clause (i) (a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; Commentary 3.8 In paragraph 1, subparagraph (a), clause (i), as in some other parts of article 3, 11 4 express reference is made to the provisions of the earlier conventions. It was argued by some that the text of the 1988 Convention should in this respect be self-contained and independent of the earlier treaties, a point seen as of special relevance to States which might become parties to the 1988 Convention without ever having been parties to the earlier ones. The majority view, however, favoured an explicit linkage: the earlier conventions, in setting up the international drug control system, provided standards against which the illicit nature of the activities listed in the new convention could be gauged, and a consistent treatment was considered highly desirable. 11 5 The resulting reference in the text serves to identify the relevant categories of 11 4 Art . 3 , para. 1, subpara. (a), clause (ii), and para. 2. 115 Official Records, vol. I... document E/CONF.82/3, chap. Ill, para. 35. 50 Art. 3 - Offences and sanctions 52 narcotic drugs and psychotropic substances and to distinguish between licit and illicit uses. 3.9 Regarding the description of certain types of conduct as "contrary to the provisions of " the earlier conventions, it should be noted that those conventions, operating necessarily at the level of public international law, do not in themselves prohibit any conduct by an individual or group of individuals. The 1961 Convention requires parties to adopt measures rendering certain types of conduct punishable offences 11 6 and so could not be a self-executing treaty. As explained by the Legal Adviser to the 1971 Conference, it was in recognition of this fact 11 7 that the language of the 1971 Convention was even less direct: a party is to treat as a punishable offence "any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention". 11 8 3.10 It seems clear, however, that the reference to the provisions of the earlier conventions was intended to reduce the scope of the otherwise very broad language of the subparagraph. A fair interpretation would seem to be that the types of conduct listed are to be criminalized in the circumstances which would attract the obligations of parties to the earlier conventions. For example, drugs listed in Schedule II of the 1961 Convention are subject to a less demanding regime, which takes account of the existence of a substantial legitimate retail trade in such drugs. 11 9 It was plainly not intended that article 3 of the 1988 Convention should impose any additional requirement that parties make the offering for sale of such drugs a criminal offence. Similarly, under the 1971 Convention a party may give notice prohibiting the import of certain substances from among those listed in Schedule II, Schedule III or Schedule IV of that Convention, and other parties must take measures to ensure that none of the notified substances is exported to the country concerned. 12 0 It follows that 11 6 In article 36, paragraph 1, of the 1961 Convention, the relevant types of activity are described as being "contrary to the provisions of this Convention". 117 Official Records of the United Nations Conference on the Adoption of a Protocol on Psychotropic Substances, Vienna, 11 January 1971-21 February 1971, vol. II (United Nations publication, Sales No. E.73.XI.4), Summary records of the plenary meetings, 12th plenary meeting, para. 10; and Commentary on the 1971 Convention, paragraph 2 of the comments on article 22, paragraph 1, subparagraph (a). 11 8 1971 Convention, art. 22, para. 1, subpara. (a). 11 9 1961 Convention, art. 2, para. 2, and art. 30, para. 6. 12 0 1971 Convention, art. 13. 50 Art. 3 - Offences and sanctions 53 "exportation" of substances in clause (i) must be interpreted by reference to the provision of article 13 of the 1971 Convention. 3.11 In short, the effect of the references to the earlier conventions is to incorporate by reference the regimes applicable to particular categories of narcotic drugs and psychotropic substances. For this purpose, a party to the 1988 Convention, in implementing its obligation to render prescribed conduct a criminal offence, must have regard to the provisions of the earlier conventions even if it is not a party to them. 3.12 The text of paragraph 1, subparagraph (a), clause (i), is closely modelled upon article 36, paragraph 1, of the 1961 Convention. Of the types of activity listed in that provision, "cultivation", "possession" and "purchase" are dealt with separately, in paragraph 1, subparagraph (a), clauses (ii) and (iii), and paragraph 2. This presentation facilitates the reference, in the case of cultivation, possession and purchase, to the purpose of these activities and to the specific treatment of such offences for the personal consumption referred to in paragraph 2. 3.13 Some of the types of activity listed in clause (i) are defined in the 1961 Convention; it will be convenient to examine each one in turn. "Production " 3.14 "Production" is defined in the 1961 Convention 121 as "the separation of opium, coca leaves, cannabis and cannabis resin from the plants from which they are obtained". The definition is specific as to the products and the plants from which they are obtained and it cannot be generalized because in other international instruments, as well as in many national laws and in the pharmaceutical industry, "production" is usually a synonym for "manufacture". The term "production" is not used in the 1971 Convention. "Manufacture" 3.15 "Manufacture" is defined in both the 1961 and 1971 Conventions. The 1961 definition is "all processes, other than production, by which drugs may be obtained and includes refining as well as the transformation of drugs into other drugs". 12 2 In the 1971 Convention, "manufacture" means "all processes by which psychotropic substances may be obtained, and includes refining as well as the 12 1 1961 Convention, art. 1, para. 1, subpara. (t). 12 2 1961 Convention, art. 1, para.l, subpara. (n). 50 Art. 3 - Offences and sanctions 54 transformation of psychotropic substances into other psychotropic substances ... [and] also ... the making of preparations other than those made on prescription in pharmacies". 123 These definitions are fully discussed in the commentaries on the earlier conventions. 12 4 "Extraction " 3.16 The term "extraction" was used in the 1961 Convention without definition. Extraction is the separation and collection of one or more substances from a mixture by whatever means: physical, chemical or a combination thereof. "Preparation " 3.17 The 1961 Convention contains a definition of the word "preparation", 125 but the definition refers to the noun (used in a number of articles of the 1961 Convention) 126 denoting the result of a process rather than the process itself of preparing something. Accordingly, the definition in the 1961 Convention can be ignored for present purposes. 3.18 "Preparation", also referred to as "compounding", denotes the mixing of a given quantity of a drug with one or more other substances (buffers, diluents), subsequently divided into units or packaged for therapeutic or scientific use. This understanding is supported by the sequence of words used: "preparation" comes immediately before "offering" and "offering for sale". "Offering " and "Offering for sale " 3.19 The similarity of the terms "offering" and "offering for sale", which makes it convenient to examine them together, may be misleading. In the French text no such similarity appears, and I 'offre can be contrasted with la mise en vente. 3.20 "To offer" something is to hold it out, or make it available, so that another may receive it. Although providing a person with narcotic drugs or 12 3 1971 Convention, art. 1, subpara. (i). "Preparation" is defined in article 1, subparagraph (/); but see the discussion of that word in paragraphs 3.17 and 3.18 below. 12 4 Commentary on the 1961 Convention, comments on article 1, paragraph 1, subparagraph («); and Commentary on the 1971 Convention, comments on article 1, subparagraph (/) 12 5 "A mixture, solid or liquid, containing a drug" (1961 Convention, art. 1, para. 1, subpara. (s)). 12 6 For example, article 2, paragraphs 3 and 4. 50 Art. 3 - Offences and sanctions 55 psychotropic substances as a gift is not expressly mentioned in the subparagraph, the process of making the gift will commonly involve "offering" or, if the donee is given no opportunity to refuse, "delivery". 3.21 "Offering for sale" includes any displaying of goods or other indication that they are available for purchase. It would seem to include any solicitation, for example the question "Would you be interested in buying X?". "Distribution " 3.22 Although the term "distribution" can be used when anything is shared out between a number of people, a more apt reference may be to the notion of "distributorship", the commercial role for ensuring that goods pass from manufacturer or importer to wholesaler or retailer. In other words, it refers to the movement of goods through the chain of supply. 12 7 "Sale " 3.23 The word "sale" requires no elaboration. It will be noted, however, that "purchase" is not included in this subparagraph. 12 8 "Delivery on any terms whatever" 3.24 The term "delivery" clearly covers the physical delivery of goods to a person or a destination, and it is immaterial whether this is as a result of a sale, a gift, or an arrangement under which the recipient is to carry or transmit the goods to some other place. In some legal systems the transfer of documents of title relating to goods, or of the keys to storage facilities in which the goods are kept, may amount to the "delivery" of the goods themselves. The inclusion of the words "on any terms whatever" suggests that these extended understandings of delivery may properly be included. "Brokerage" 3.25 A "broker" is an agent employed to make bargains or contracts on behalf of another. He or she acts as a middleman, a negotiator or a "fixer". In some legal systems, the term is limited to persons who are not themselves in possession of the relevant goods: an agent in possession is a "factor" rather than a "broker". In other legal systems, a broker will be regarded as having participated in the main offence. 12 7 Compare the heading of article 30 of the 1961 Convention, "Trade and distribution". 12 8 See below, comments on article 3, paragraph 1, subparagraph (a), clause (iii). 50 Art. 3 - Offences and sanctions 56 "Dispatch" and "dispatch in transit" 3.26 The terms "dispatch" and "dispatch in transit" both cover the activity of sending goods on their way, either to a fixed destination known to the sender or to a carrier who will take the goods to a destination of which the sender may be ignorant. "Transport" 3.27 "Transport" covers carriage by any mode (land, sea or air). It would seem that a contract of carriage is not required; merely gratuitous carriage is within the scope of the paragraph. "Importation or exportation " 3.28 The terms "importation" and "exportation" are not defined in the 1988 Convention, but the words "import" and "export" were defined in the 1961 Convention. 12 9 There they mean "the physical transfer of drugs from one State to another State, or from one territory to another territory of the same State", the latter part of the definition referring to territories identified as separate entities for the system of certificates and authorizations under article 31 of the 1961 Convention. Paragraph 1, subparagraph (a), clause (ii) (ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended; Commentary 3.29 Subparagraph (a), clause (ii), covers the actual cultivation of the specified plants 13 0 for the purpose of the production of narcotic drugs. The subject of cultivation for personal consumption was dealt with in article 3, paragraph 2. The reference in the present subparagraph to the provisions of the 1961 Convention and of that Convention as amended is important; under those texts some cultivation is licit. Article 22 of the 1961 Convention enables parties to prohibit the cultivation of the opium poppy, the coca bush or the cannabis 12 9 1961 Convention, art. 1, para. 1, subpara. (m). i3 0 For definitions of "opium poppy", "coca bush" and "cannabis plant", see the 1961 Convention, article 1. 50 Art. 3 - Offences and sanctions 57 plant, but does not require such action in every case. Where cultivation is permitted for licit purposes, a system of controls must be applied. 13 1 Provision is made under the 1961 Convention for the destruction of illicitly cultivated coca bushes and under the 1961 Convention as amended for the destruction of illicitly cultivated opium poppies and cannabis plants. 13 2 Paragraph 1, subparagraph (a), clause (iii) (iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above; Commentary 3.30 Under subparagraph (a), clause (iii), a party must criminalize the possession of narcotic drugs or psychotropic substances, or their purchase, whether or not the purchaser actually takes possession, where the possession or purchase is for the purpose of an activity established as a criminal offence under article 3, paragraph 1, subparagraph (a), clause (i). This provision does not cover possession or purchase for personal consumption, which is dealt with in article 3, paragraph 2. Paragraph 1, subparagraph (a), clause (iv) (iv) The manufacture, transport or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; Commentary 3.31 The provision in subparagraph (a), clause (iv), requires the creation of criminal offences and forms a counterpart to the regulatory provisions of 13 1 See the 1961 Convention, article 23 (opium poppy, as to which see also article 25), article 26 (coca bush and coca leaves, as to which see also article 27) and article 28 (cannabis). 13 2 See article 26, paragraph 2, of the 1961 Convention and article 22, paragraph 2, of the 1961 Convention as amended; for a synopsis of the control measures applicable to the opium poppy, the coca bush and the cannabis plant, see article 2, paragraph 7, of the 1961 Convention as amended. 50 Art. 3 - Offences and sanctions 58 articles 12 and 13. Article 12 provides that parties must take such measures as they deem appropriate to prevent diversion of substances in Table I and Table II for illicit production or manufacture of narcotic drugs and psychotropic substances. Article 13 deals with trade in and diversion of materials and equipment used in the illicit production of narcotic drugs and psychotropic substances. The present subparagraph makes use of a number of terms, the meaning of which has already been examined. 13 3 It should be compared with article 3, paragraph 1, subparagraph (c), clause (ii), which deals with the possession of equipment, materials and substances as opposed to their manufacture, transport or distribution. The "possession" provision is subject to the safeguard clause in subparagraph (c), but the establishment of offences of manufacture, transport and distribution is mandatory on all parties. Paragraph 1, subparagraph (a), clause (v) (v) The organization, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above; Commentary 3.32 The focus of the present provision is the leadership of drug trafficking groups and it was regarded as being of great importance in efforts to disrupt major trafficking networks. Its value was seen to flow from the potential to reach those at the highest levels of the illicit drug trade. This provision, it should be noted, constitutes a strengthening and expansion of the scope of article 36, paragraph 2, subparagraph (a), clause (ii), of the 1961 Convention, which was confined to financial operations in relation to trafficking and where this obligation was also subject to the operation of a limiting chapeau, namely that it was "subject to the constitutional limitations of a Party, its legal system and domestic law". 13 4 A later provision of the Convention, article 3, paragraph 1, subparagraph (c), clause (iv), which is prefaced by a safeguard clause, deals in more general terms with various types of participation in offences, including conspiracy and the facilitation of offences. The present subparagraph makes it mandatory, without any safeguard clause, for parties to create offences 13 3 For "cultivation", see paragraph 3.29 above; for "distribution", see paragraph 3.22 above; for "manufacture", see paragraph 3.15 above; for "production", see paragraph 3.14 above; and for "transport", see paragraph 3.27 above. 13 4 See Commentary on the 1961 Convention, comments on article 36, paragraph 2, subparagraph (a), clause (i), and paragraphs 6-8 of the comments on article 36, paragraph 2, subparagraph (a), clause (ii). 50 Art. 3 - Offences and sanctions 59 covering particular types of conduct, some of which might otherwise be considered to fall within the provision of subparagraph (c), clause (iv). 3.33 "Organization" and "management" are not defined, but are apt to describe the activities of those actors in organized crime who keep themselves well away from direct involvement in illicit traffic but who direct the activities of subordinates. "Financing" covers the provision of capital needed for illicit operations and would seem to be narrower than the term "financial operations", used in the 1961 Convention; 13 5 other types of conduct covered by that latter expression will be dealt with under the money-laundering provisions of article 3, paragraph 1, subparagraph (b). Implementation considerations: paragraph 1, subparagraph (a) 3.34 As was noted above, under paragraph 1, subparagraph (a), each party shall "establish as criminal offences under its domestic law, when committed intentionally", a fairly comprehensive list of activities that have a major international impact. This subparagraph seeks to reinforce and to supplement the penal measures contained in pre-existing multilateral instruments negotiated under the auspices of the United Nations. Article 36 of the 1961 Convention and of that Convention as amended, and article 22 of the 1971 Convention are particularly relevant in this context. The closeness of the relationship with these instruments is especially evident in the first two subparagraphs, which define the prohibited activities in question by referring to them as being "contrary to the provisions of" the relevant conventions. 3.35 This drafting method ensures that the many States that have become parties to the 1961 Convention as amended and to the 1971 Convention and have effectively implemented them in their domestic legal systems will have in place the basic framework for compliance, including the necessary system to establish which substances are subject to control and for what licit purposes such substances can be manufactured, possessed and transferred. Even for such States, however, it will be necessary to examine closely pre-existing laws in order to ensure full compliance with the obligations contained in subparagraph (a), clauses (i) and (ii). This flows from the fact that those obligations are absolute and, unlike the previous penal provisions, not subject to the limiting effect of safeguard clauses. 13 5 1961 Convention, art. 36, para. 2, subpara. (a), clause (ii). 50 Art. 3 - Offences and sanctions 60 3.36 Becoming a party to, and effectively implementing, the 1961 Convention as amended and the 1971 Convention is a highly desirable step for any State about to become or that has become a party to the 1988 Convention. In the present context the task faced by any State that is not a party to all of the other relevant drug control conventions will be a more complex and demanding one. A close examination of the adequacy of existing domestic laws in relation to the classification and regulation of the licit cultivation, production, manufacture and trading of narcotic drugs, psychotropic substances and the chemical substances used in their manufacture will be required. For any State that determines that its current position is inadequate in this regard, appropriate action will have to be taken. For those contemplating major legislative changes, consideration might be given to the drafting of a single national law in respect of these matters. 13 6 3.37 In seeking to ascertain the extent to which existing domestic criminal law complies with the requirements of paragraph 1, subparagraph (a), it should be borne in mind that, following previous practice, the obligations are stated with a deliberate degree of generality. Consequently, each party is left with considerable flexibility in determining how best, in the light of its moral, cultural and legal traditions, to secure the required goal. This important factor is further emphasized in paragraph ll. 13 7 Consequently it is not necessary for relevant domestic criminal laws to make specific mention of each distinct category and element mentioned in paragraph 1, subparagraph {a). What is required is that the criminal law of each party, when taken as a whole, should provide comprehensive coverage. The requirement is for the establishment of criminal offences. Resort to the creation of administrative offences in this context would therefore not satisfy the requirements of the Convention. 3.38 One area in which existing law may well be found wanting is that covered by paragraph 1, subparagraph (a), clause (iv). It will be recalled that this new provision requires the criminalization of the intentional manufacture, transport or distribution of equipment, materials and substances listed in Table I and Table II (substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances) knowing that they are to be used in or for the illicit cultivation, production or manufacture of substances controlled under the 13 6 See, for example, United Nations International Drug Control Programme, "Model Law on the Classification and Regulation of the Licit Cultivation, Production, Manufacture and Trading of Narcotic Drugs, Psychotropic Substances and Precursors", Model Legislation (June 1992), vol. I. 13 7 See below, comments on article 3, paragraph 11. 50 Art. 3 - Offences and sanctions 61 1961 or 1971 Convention. The inclusion here of a specific requirement that the ultimate use of the substances be known in addition to the requirement that the offences be committed intentionally, contained in the preambular wording for subparagraph (a) as a whole, underlines the difficulty of projecting the criminal law into areas in which lawful commercial activity predominates. It is important in developing an appropriate national approach to this subject to note the close relationship with the criminal law measures envisaged in article 3, paragraph 1, subparagraph (c), clause (ii), as well as the regulatory and other measures to be taken by the parties pursuant to the terms of articles 12 and 13. 13 8 3.39 A further area that has been the source of difficulty in terms of effective implementation is that covered by subparagraph (a), clause (v), namely the organization, management or financing of any of the serious offences mentioned elsewhere in subparagraph (a). 3.40 In dealing with these matters, some States have been able to rely heavily or exclusively on widely drawn legislative provisions, often in conjunction with the inchoate offence of conspiracy. 139 In other instances, traditional mechanisms of the criminal law have been supplemented or substituted by new legislative strategies designed specifically to attack the financial and managerial dimensions of drug trafficking or organized crime more generally. 14 0 Paragraph 1, subparagraph (b) (b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the ,3 8 Se e below, comments on articles 12 and 13. 13 9 See below, comment on article 3, paragraph 1, subparagraph (c) (see also Italy, Decree No. 309 of 9 October 1990). 14 0 United States law has created special criminal offences for such activities. The criminal law categories of the continuing criminal enterprise, 21 USC s.848, and racketeer influenced and corrupt organizations, 18 USC s.1961-1964, have been particularly significant. Article 222.34 of the French Penal Code of 1994 has created a specific criminal offence in this regard. 50 Art. 3 - Offences and sanctions 62 commission of such an offence or offences to evade the legal consequences of his actions; (ii) The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such an offence or offences; Commentary 3.41 The provisions of paragraph 1, subparagraph (b), strike at moneylaundering and, like those in subparagraph (a), make the creation of offences mandatory for all parties. Their content and drafting style owe much to the then current legislation of the United States in this area. 14 1 In all cases covered by these provisions, the offence covers only conduct "committed intentionally". 142 Subparagraph (b) falls into two parts, the first dealing specifically with acts of conversion or transfer of property and the second dealing more broadly with steps taken to conceal or disguise the property and rights and interest in it. 3.42 The text is silent on an issue which in the period after 1988 gave some difficulty to legislators. The language, and particularly the reference to "transfer", can be applied to the person who commits the original (predicate) offence. Some take the view, however, that money-laundering is distinct from the predicate offence and that the money-laundering offence is essentially committed by another person in aid of the predicate offence. The Convention appears not to bind parties to one view of this matter. 3.43 In all cases the offender must have known that the relevant property was derived either from an offence established in accordance with paragraph 1, subparagraph {a) (or from more than one such offence) or from an act of participation in such an offence (or offences). The interpretation of the references to "an act of participation" in an offence or offences is not free from difficulty. The Convention, in paragraph 1, subparagraph (c), clause (iv), of this article, provides for the creation of offences of participation, but that provision 14 1 18 USC 1956-57, subsequently repealed and replaced. 14 2 Art . 3, para. 1, introductory paragraph. 50 Art. 3 - Offences and sanctions 63 is subject to a safeguard clause so that there may be parties under whose law an act of participation is not itself an offence. The text of the present provision, however, refers to "an act" of participation and not to "an offence" of participation. It appears that a party must create the money-laundering offence in the terms of subparagraph (b), whatever limitations may exist within its own legal system on the creation of offences of participation. 3.44 The offender's knowledge must relate to an offence (the predicate offence) or an act of participation in an offence. The issue of the location of the predicate offence, or the act of participation, does not seem to have been considered in the course of the negotiations. The issue arises where a person makes a transfer of property in one State, knowing that the property was derived from an offence in another State. Examples of greater complexity can be devised, such as where the transfer of property was between two States or where the predicate offence was in one State but there was also an act of participation in another State. There is no territorial limitation expressed in the text of the provision, and it would accord with recent practice if implementing legislation were to reflect the possibility that the predicate offence was located in a State other than the enacting State. 3.45 The offender's knowledge must be that the property is derived from "any" of the specified offences. This suggests that he need not be shown to have been aware of the precise offence which had been committed. Knowledge that the property was derived from some ill-defined organized crime or racketeering activity would, however, not suffice. It is, of course, open to parties to define money-laundering as broadly as they choose, for example by extending it beyond the cases in which the predicate offence is one of drug trafficking. 3.46 Most modern legislation in this area uses the term "proceeds" to describe property derived, directly or indirectly, from criminal activity. The word "proceeds" is defined in the 1988 Convention in just this sense, as "any property derived from or obtained, directly or indirectly, through the commission of an offence established in accordance with article 3, paragraph l". 14 3 The decision not to make use of the term "proceeds" in article 3, paragraph 1, subparagraph (b), may well have been in error, but it does raise the question whether the reference to property being "derived from" certain offences can be taken to cover property "obtained directly or indirectly" from those offences. On a broad understanding of "derivation" it would seem possible to include also certain cases of "indirect derivation". 14 3 Art.l , subpara. (p)\ see also comments in paragraphs 1.17-1.18 above. 50 Art. 3 - Offences and sanctions 64 3.47 Subparagraph (&), clause (i), deals with the "conversion or transfer" of property. In the case of a tangible asset, these terms may be used to cover the transfer of the asset to another person in an unchanged state and the conversion of the asset into another form (for example its sale or exchange, so that the property's value is represented by the money or other asset received). Frequently the property will take the form of money, which may be converted either into another currency or into some other form of property, for example by deposit in a bank or the purchase of shares or bonds. It may, in its new form, be transferred, perhaps electronically, to another jurisdiction. 3.48 The "transfer" of property is commonly thought of as the act of the transferor rather than the transferee, the recipient. In the case of the "conversion" of property (for example by exchange), both parties may be regarded as acting. It would seem, however, from the separate treatment of "acquisition" of property that the recipient is not covered by the present provision. 3.49 An act of conversion or transfer must not only be committed intentionally (see paragraphs 3.7 and 3.41 above) and with the prescribed knowledge (see paragraphs 3.44 and 3.45 above); the act must also be done for one of two purposes set out in the text. It is clear that those purposes overlap to a considerable extent. One is expressed in terms of the property: the purpose of concealing or disguising the illicit origin of the property. Any conversion or transfer of property may have the effect of concealing or disguising the origins of the property; what is required is that it be done for that purpose, with that motivation. The other purpose is expressed in terms of assisting "any person" (and as the text does not speak of "any other person" it is apt to include the offender himself) to evade the legal consequences of his involvement in the commission of the offence or offences. In many cases, both purposes will be evident: the illicit origins of the property will be disguised so that the chances of its confiscation and the offender's conviction are reduced. 3.50 Subparagraph (b), clause (ii), is more widely drafted, no element of "purpose" being expressly mentioned although it seems implicit in the language used. It covers any intentional acts, done with knowledge of the illicit derivation of the property, which amount to the concealment or disguise of "the true nature, source, location, disposition, movement, rights with respect to, or ownership of" the property. The "source" of property could include its physical origin (for example, the country from which it was imported) as well as its derivation. Some of the other terms plainly overlap in meaning; the movement of goods will commonly involve their location. 50 Art. 3 - Offences and sanctions 65 Implementation considerations: paragraph 1, subparagraph (b) 3.51 As has been seen, paragraph 1, subparagraph (a), clause (v), of article 3 gives expression to the concept that one of the principal requirements of an effective strategy to counter modern international drug trafficking is the need to provide the law enforcement community with the necessary tools to undermine the financial power of the criminal groups and networks involved. In the late 1980s, a broad consensus emerged within the international community that the criminalization of money-laundering was an essential component of such a strategy. Paragraph 1, subparagraph (b), when viewed in conjunction with paragraph 1, subparagraph (c), clause (i), was designed to satisfy this need, although the term "money-laundering" itself, owing to its relative novelty and problems of translation, was not used in the text. Given the fact that no previous multilateral instrument had dealt with this matter, the concept itself was expressed in some detail. 14 4 Notwithstanding this fact, parties to the 1988 Convention have considerable flexibility in determining the most appropriate manner through which to satisfy the obligations in question. In practice some have enacted legislation which uses language similar to that found in article 3, paragraph 1, subparagraph (b), while others have found it convenient to use alternative strategies such as the modification of the scope of pre-existing criminal offences. Either approach is acceptable so long as the full range of conduct is criminalized. 3.52 Since the 1988 Convention was formulated, significant advances have been recorded in furthering an understanding of the nature and extent of the money-laundering process and of the threat it poses. In addition, valuable experience has been gained from the practical operation of relevant domestic legislation and from the refinement and further development of countermeasures against money-laundering in a variety of forums. 14 5 It may be of particular value, therefore, for those charged with the implementation of this significant provision to familiarize themselves with such developments in order to determine whether or not it would be appropriate to take advantage of the flexibility accorded by article 24 in order to adopt more ambitious measures than those strictly required by the Convention. 14 4 See above, comments on article 3, paragraph 1, subparagraph (b). 14 5 See W. Gilmore, Dirty Money: the Evolution of Money Laundering CounterMeasures (Strasbourg, Council of Europe Press, 1995); and R. Parlour, ed. Butterworths Guide to Money Laundering Law and Practice (London, Butterworths, 1995). 50 Art. 3 - Offences and sanctions 66 3.53 One such issue is the scope to be given to the offence of moneylaundering in the implementing legislation. While the obligation contained in paragraph 1, subparagraph (b), is restricted to the criminalization of the laundering of property derived from serious drug trafficking offences, recent years have witnessed the emergence of a trend which favours the extension of the criminal offence beyond the narcotics predicate. Such an approach is, for example, embodied in article 6 of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and encouraged by the fifth of the 40 recommendations adopted by the Financial Action Task Force on Money Laundering in 1990. These international precedents have been increasingly reflected in the content of the criminal law of individual States, some of which have extended the offence on an all-crimes basis while others have elected to do so only in respect of certain specified offences of a serious nature. 14 6 These domestic and international developments mirror the perception of a number of commentators and law enforcement and other officials that a drug specific approach brings with it a number of disadvantages. For instance, there may be difficulties in proving that particular proceeds are attributable to drug trafficking activities especially when the persons in question are involved in abroad range of criminal activities. 14 7 3.54 A further question to be considered is whether corporations, as distinct from their employees, should be subject to criminal liability for moneylaundering. This is a matter on which both the 1988 Convention and the Council of Europe Convention of 1990 remain silent. There has, however, been some discussion of it at an international level. In 1990, the Financial Action Task 14 6 For example, as at 28 June 1996, of the 26 member States of the Financial Action Task Force, 25 had legislated to criminalize drug money-laundering and 19 had enacted the offence beyond the drugs predicate (see Financial Action Task Force on Money Laundering, "Annual report, 1995-1996", Paris, 28 June 1996, p. 11). In the light of this trend and other factors, the Financial Action Task Force, as part of a review of its original 40 recommendations, reformulated its position. The new wording, now contained in recommendation 4, reads: "Each country should take such measures as may be necessary, including legislative ones, to enable it to criminalize money-laundering as set forth in the Vienna Convention. Each country should extend the offence of drug money-laundering to one based on serious offences. Each country would determine which serious crimes would be designated as money-laundering predicate offences" (Financial Action Task Force on Money Laundering, "Annual report, 1995-1996", Paris, 28 June 1996, annex I, p. 3). 14 7 See, for example, "Money-laundering and associated issues: the need for international cooperation" (E/CN.15/1992/4/Add.5) and "Report and recommendations of the International Conference on Preventing and Controlling Money Laundering and the Use of the Proceeds of Crime: A Global Approach" (E/CONF.88/7). 50 Art. 3 - Offences and sanctions 67 Force, in the seventh of its recommendations, adopted the view that "where possible" such liability should be imposed. 14 8 A further useful precedent is to be found in article 14 of the Model Regulations concerning Laundering Offences Connected to Illicit Trafficking and Related Offences, which were approved by the General Assembly of the Organization of American States (OAS) in 1992. The creation of a system of corporate criminal liability helps to resolve a number of difficulties that can arise when money-laundering is pursued through legal persons. For example, complex management structures can render the identification of the person or persons responsible for the commission of the offence difficult or impossible. In such cases the imposition of liability on the legal person may be the only option if the activity in question is not to go unpunished. Similarly a sanction imposed on an institution rather than an individual can act as a catalyst for the reorganization of management and supervisory structures to ensure that similar conduct is deterred. 3.55 Given the widely acknowledged fact that many sophisticated moneylaundering operations contain conspicuous transnational features, it is generally regarded as being significant for a State to be in a position to prosecute an individual for involvement in such activities even when the underlying criminal activity that generated the proceeds in question took place elsewhere. While the 1988 Convention does not specifically address itself to this issue, it has since become commonplace in international practice to do so. For instance, the definition of money-laundering given in article 1 of the Directive on Prevention of the Use of the Financial System for the Purpose of Money Laundering, issued by the Council of Ministers of the European Communities on 10 June 1991, which draws heavily on the approach taken by the 1988 Convention, also provides that money-laundering "shall be regarded as such even when the activities which generated the property to be laundered were perpetrated in the territory of another Member State or in that of a third country". 14 9 14 8 In Iceland, for example, financial institutions are subject to corporate criminal liability for money-laundering (see Financial Action Task Force on Money Laundering, "Annual report, 1994-1995", Paris, 8 June 1995, p. 9, footnote 3; and Liability of Enterprises for Offences: Recommendation No. R(88) adopted by the Committee of Ministers of the Council of Europe on 20 October 1988 and Explanatory Memorandum (Strasbourg, Council of Europe, 1990)). 14 9 See also article 3 of OAS Model Regulations concerning Laundering Offences Connected to Illicit Trafficking and Related Offences and article 6, paragraph 2, subparagraph (a), of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg, 1990). 50 Art. 3 - Offences and sanctions 68 3.56 The money-laundering provisions of the 1988 Convention are confined to securing improvements in national criminal law systems with consequential benefits for the scope and effectiveness of international cooperation. They are not addressed to those elements of the strategy designed to counter moneylaundering, which embrace a preventive philosophy. This dimension of the wider international strategy is reflected in a number of international and regional precedents, including the Basle Statement of Principles on prevention of criminal use of the banking system for the purpose of money-laundering, issued in December 1988 by the Basle Committee on Banking Regulations and Supervisory Practices, the 1991 European Communities Directive and the 1992 OAS Model Regulations. The utility of enhancing the role of the financial system in an attempt to create an inhospitable and hostile environment for the money-launderers is also central to the programme elaborated by the Financial Action Task Force. While there are a number of important differences in the scope and ambition of these various initiatives, they reveal the emergence of important common principles. They also underline the extent to which a shared belief has evolved that effective efforts to counter money-laundering require the collective will and commitment of the public and private sectors working together. Given these developments, it would be prudent for those responsible for implementing paragraph 1, subparagraph (b), to consider the extent to which this dimension of modern international practice is acceptable in terms of national policy and appropriate to local circumstances. 3.57. At the heart of the preventive strategy there has been a general acknowledgement of the value of requiring institutions brought within its ambit to take appropriate steps to identify their customers 15 0 and to retain records of both identity and specific categories of transactions for set periods of time. 15 1 The requirement of customer identification, which is frequently associated with the identification of beneficial owners, gives expression to the belief that the credit, financial or other institution concerned is better placed than law enforcement or other authorities to judge whether a customer or a particular transaction is bona fide. 152 The retention of records is seen as an important complement to the "know your customer" principle in that it ensures that an audit trail exists to assist the authorities in identifying money-launderers and 15 0 See, for example, article 3 of the European Communities Directive and article 10 of the OAS Model Regulations. 15 1 See, for example, article 4 of the European Communities Directive. 15 2 See, for example, J. C. Westerweel and J. L. Hillen, Measures to Combat Money Laundering in the Netherlands (The Hague, Ministry of Finance, 1995), p. 4. 50 Art. 3 - Offences and sanctions 69 tracing the movement of illicit proceeds with a view to their eventual confiscation. 15 3 3.58 A second critical element of this approach is to ensure full cooperation between the institutions concerned and the relevant supervisory bodies 15 4 and those charged with the responsibility of combating money-laundering operations. This philosophy of cooperation frequently extends to informing the latter, on their own initiative, of any fact which might be an indication of money-laundering. All States wishing to give expression to this approach will have to determine the functions and powers of the money-laundering control service that will be authorized to receive such reports. Many States have charged an appropriate law enforcement agency with this task while others have elected to create the national service elsewhere, for example in the ministry of finance. Where the latter practice is followed, those charged with the introduction of this strategy will have to pay particular attention to the establishment of effective links between the reporting service and the relevant national law enforcement authorities. It is common to buttress a system for reporting "suspicious transactions" with a requirement, designed to safeguard the integrity of any subsequent investigation, that the fact that such information has been transmitted to the competent authorities must not be brought to the attention of the customer concerned or to any third party. 15 5 Frequently, breach of such an obligation attracts criminal sanctions. 3.59 It is appreciated that, in reaching out to and involving credit, financial and other institutions in this way, it is necessary to ensure that they are, in fact, in a position to play this role in a frill and effective manner. To this end they are frequently provided with an element of legal immunity from suit for breach of contract or other legal obligations such as those relating to customer confidentiality. 15 6 3.60 Some countries have taken the view that the law enforcement efforts to combat money-laundering would be enhanced if the appropriate national authority were in a position to be informed of all large cash transactions taking place within their national territory. To that end a minority of States that have 15 3 See also below, comments on article 5. 15 4 See, for example, article 10 of the European Communities Directive. 15 5 See, for example, article 13, paragraph 3, of the OAS Model Regulations. 15 6 See, for example, article 8 of the European Communities Directive. 50 Art. 3 - Offences and sanctions 70 embraced the preventive approach have introduced a system of mandatory and routine reporting of certain transactions above a fixed threshold. 157 No consensus has yet emerged, however, as to the utility and practicality of this approach. 15 8 More commonly, States have elected to require financial institutions to report suspicious or unusual transactions. 3.61 By way of contrast it has been widely accepted that, if the preventive approach is to be effective, the institutions concerned should establish adequate internal control and communication systems. In addition, it has become a common practice to call upon the institutions concerned to initiate training programmes for their employees in order to make them aware of legal requirements and to help them to recognize transactions that may be related to money-laundering and to instruct them on how best to proceed in such cases. 15 9 3.62 Given the highly intrusive nature of this dimension to the growing international effort to combat money-laundering, it would be prudent to ensure, as far as possible, that the strategy adopted is sensitive to the commercial realities of the sectors of the economy that are affected. Consequently, it is highly desirable to engage in dialogue and enter into close cooperation with the economic sectors concerned in order to reduce to a minimum any adverse impact on the conduct of legitimate commercial activities. 3.63 In introducing a comprehensive strategy to counter money-laundering, it is to be anticipated that one consequence will be to increase the attractiveness of less regulated jurisdictions. Criminal money managers may, for example, seek to undertake the initial or placement stage of a money-laundering operation in just such a jurisdiction. Resort to such a strategy of geographical displacement creates, in turn, an element of vulnerability, which can be exploited by law enforcement authorities. A growing number of countries have elected to put in place legal structures which permit action to be taken to interdict certain categories of cross-border cash shipments. Some have imposed mandatory reporting of the export or import (or both) of currency above a stipulated threshold. Failure to comply can result in the imposition of penalties and the forfeiture of the currency. In other jurisdictions the relevant law enforcement authorities have been given the right to seize large sums of cash which are being 1 "Australia and the United States have adopted this approach. 15 8 See, for example, "Financial Action Task Force on Money Laundering: report" Paris, 7 February 1990, recommendation No. 24. 15 9 See, for example, article 11 of the European Communities Directive. 50 Art. 3 - Offences and sanctions 71 imported or exported in circumstances that give reasonable grounds to believe that the cash represents the proceeds of drug trafficking. Yet others are able to invoke provisions of their exchange control or other similar legislation. In order to limit further the options available to money-launderers, consideration might be given to extending the scope of such measures to include cash-equivalent monetary instruments, precious metals, gems, and other highly liquid valuables. 16 0 3.64 Irrespective of the outcome of domestic consideration of the nature and scope of the money-laundering offences to be introduced and related matters, many States will face a significant challenge in securing their effective implementation. The law enforcement community will have to consider the adequacy of traditional training methods in the light of what will be, in many countries, a new mandate. 161 The development and retention of skills in financial investigation, asset management and international cooperation and coordination of money-laundering investigations are among the many issues that will have to be tackled. In doing so some will wish to obtain training and technical assistance elsewhere. Within the United Nations system of organizations, the task of providing coordinated leadership in this area has been given to the United Nations International Drug Control Programme (see General Assembly resolution 45/179). Acting on its own or in conjunction with other organizations, as appropriate, it responds to requests for various forms of assistance, ranging from the organization of awareness training programmes to the dissemination of manuals and other useful working tools prepared for the use of law enforcement officials (see Economic and Social Council resolution 1991/41). 16 2 Paragraph 1, subparagraph (c), introductory part (c) Subject to its constitutional principles and the basic concepts of its legal system: 16 0 See, for example, Financial Action Task Force on Money Laundering, "Annual report, 1991-1992", p. 17; and the text of recommendation No. 22 of the Financial Action Task Force on Money Laundering and the interpretative note adopted in respect of the same (Financial Action Task Force on Money Laundering, "Annual report, 1995-1996", Paris, 28 June 1996, annex 1, p. 6, and annex 2, p. 4). 16 1 See below, comments on article 9, paragraph 2. 16 2 See also United Nations Drug Law Enforcement Training Manual: A Guide for Law Enforcement Officials (Vienna, 1991). 50 Art. 3 - Offences and sanctions 72 Commentary 3.65 The obligation of parties to create the offences listed in paragraph 1, subparagraphs (a) and (b), is unqualified, but subparagraph (c) opens with this "safeguard clause". This particular clause represents a narrowing of a similar clause used in article 36, paragraph 2, of the 1961 Convention, which refers to "the constitutional limitations of a Party, its legal system and domestic law". That phrase was not easy to interpret and the official commentary suggested that it referred to a State's basic legal principles and the widely applied concepts of its domestic law. 16 3 Although some delegations at the Conference expressed dissatisfaction with the new language of the safeguard clause, the text commanded general acceptance. 3.66 The aim of the Conference in including the safeguard clause was to recognize the difficulties some States had with the potential scope of the offences specified in paragraph 1, subparagraph (c). In certain countries, some of these offences, if widely defined, might offend against constitutional guarantees of freedom of expression. It was necessary to go beyond a reference to "constitutional principles" to include a reference to "basic concepts" of the party's legal system. Those concepts, whether embodied in statute law, judicial decisions or ingrained practice, may be irreconcilable with the approach taken in subparagraph (c) in respect of specific offences. This is particularly the case in respect of conspiracy and related crimes, which are quite unknown in some systems; where they consist of mere agreement to act rather than action, they may be regarded in some States as offending against a fundamental freedom. In some countries, there is an established practice of prosecutorial discretion, which serves to protect those whose innocent conduct might be judged to fall within the scope of a generally worded offence; where such discretion is not allowed, the definitions of offences may need to be more tightly drawn. Paragraph 1, subparagraph (c), clause (i) (i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph (a) of this paragraph 16 3 Commentary on the 1961 Convention, paragraph 5 of the comments on article 36, introductory subparagraph to paragraph 2. It should be remembered that constitutional principles and basic concepts can change. The German Government made a declaration to that effect on ratifying the 1988 Convention. 50 Art. 3 - Offences and sanctions 73 or from an act of participation in such offence or offences; Commentary 3.67 Reference is made here to the earlier examination of the knowledge which the offender must be shown to possess (see paragraphs 3.43 - 3.45 above). 3.68. In the present context, the specified knowledge must exist "at the time of receipt". There is no offence in the case of a person who receives goods, whether as a gift or for value, and who continues to use those goods having later come to suspect or know that they were derived from drug offences. 3.69 Although the prohibited conduct is defined as including "acquisition", "possession" and "use", it is essential (because of the way in which the knowledge element is defined) that the offender should have received the goods; there must be a "receipt". If acquisition is to be understood, as it seems it must, as referring to taking possession (as opposed to acquiring ownership of or some other interest in the goods), the references to "possession" and "use" may be, strictly speaking, unnecessary. The offence may come to light because the offender is to be found in possession of, or to be using, the goods; but proof that he or she acquired the goods with the relevant knowledge will itself be sufficient to establish an offence. Paragraph 1, subparagraph (c), clause (ii) (ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; Commentary 3.70 As has already been noted (see para. 3.31 above), the criminalization of the manufacture, transport or distribution of the equipment, materials or substances specified in this provision is mandatory under article 3, paragraph 1, subparagraph (a), clause (iv). The mere possession of those things is dealt with in subparagraph (c), with its safeguard clause. 50 Art. 3 - Offences and sanctions 74 3.71 The acquisition or receipt of goods takes place on a single occasion; possession is a continuing relationship to the goods. It is important, therefore, that in this provision it is not essential that the prescribed knowledge should exist at the moment of first acquisition. Someone who receives equipment innocently, but who later acquires the knowledge that it is intended for use in the production of drugs and remains thereafter in possession of the goods, will commit the offence. In such circumstances, bona fide purchasers of goods may find themselves facing criminal charges; anxiety about such cases was part of the reasoning in support of the safeguard clause in subparagraph (c). Paragraph 1, subparagraph (c), clause (iii) (iii) Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly; Commentary 3.72 This widely drawn provision covers a number of different types of activity; it originated in concerns about magazines and films glorifying drug use and promoting a drug culture. 16 4 Although the English text is not entirely free from ambiguity, it appears that the adverb "publicly" governs both "inciting" and "inducing". Similar conduct where the public factor is missing might well constitute "counselling" and in some contexts could be subject to criminalization under the terms of paragraph 1, subparagraph (c), clause (iv). 3.73 It is far from clear what the word "publicly" is intended to signify. There may be situations in which the incitement or inducement is addressed to identified persons (though they might be overheard by others); in other cases, as with a radio broadcast or a loudspeaker announcement, the category of hearers is not determined in advance. Another approach would be to ask whether the occasion was a "public" one, distinguishing between a private meeting or gathering and one open to the public. In practice, the word will have to be interpreted in the light both of the particular circumstances of the conduct in question and the analogies to be found in the relevant legal system. 16 4 Subsequent developments related to use of electronic media, in particular the Internet, to advertise drugs and promote their abuse were not envisaged at the time of the adoption of the Convention, but are covered by the words "by any means". 50 Art. 3 - Offences and sanctions 75 3.74 A much-cited South African definition of an inciter is "one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". 16 5 Inducement is that form of incitement which involves the offering of money or money's worth. The presence of the words "by any means" indicates that the terms are to be broadly interpreted. In some legal systems, it may be appropriate to specify the means of incitement in the relevant legislation. 3.75 The conduct incited or induced is either: (a) the commission of any of the offences established in accordance with article 3; or (b) the illicit use of narcotic drugs or psychotropic substances. Illicit use itself is not required to be criminalized under the Convention, but the conduct of the inciter is. Paragraph 1, subparagraph (c), clause (iv) (iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article. Commentary 3.76 This provision deals with various forms of participation or involvement in criminal activity, specifically the commission of any offence established in accordance with article 3. 3.77 The various ways in which individuals may involve themselves in criminal activity are classified differently in different national legal systems. Apart from the principal offender, there may be secondary parties or accomplices. They may have a degree of actual participation in the criminal activity (for example, by being present); they may provide some degree of assistance ("aiding and abetting" or "facilitating"); they may join in the devising and planning of the crime (in "association" or "conspiracy"); they may encourage its commission or provide technical advice ("counselling" or "facilitating"); they may actually join in an attempt to carry out the prohibited conduct. 16 5 J . A. Holmes, Nkosiyana, 1966 (4) S.A. 655 at p. 658, A.D. 50 Art. 3 - Offences and sanctions 76 3.78 Not only are these forms of involvement the subject of different systems of classification, but there is also disagreement among national legal systems as to the appropriate boundary for criminal liability. One illustration of this is in the field of attempts. Many legal systems draw a distinction (necessarily imprecise) between "acts of mere preparation", which are not punishable, and "attempts" (where outside interference, independent of the will of the actor, prevents the completion of the offence), which do attract criminal liability. Making inquiries about the price of drugs on the illicit market with the intention of making a purchase if the price is acceptable would be an act of mere preparation rather than an attempt to purchase. Making an unsuccessful offer might be regarded as an attempt. 16 6 The language of the present provision is fuller than that in the corresponding provision of the 1961 Convention, which includes a reference to "preparatory acts". 16 7 3.79 As has been noted, these variations in approach were felt to require the inclusion of the safeguard clause in the introduction to subparagraph (c), enabling parties to reconcile the aims of the present provision with the particular approach adopted by their own criminal law. Implementation considerations: paragraph 1, subparagraph (c) 3.80 Clauses (i) and (ii) of paragraph 1, subparagraph (c), both complement in important ways earlier obligations contained in article 3, paragraph 1. The former treats an economic aspect of crime that should be covered in any comprehensive scheme to combat money-laundering through the use of criminal justice measures. 16 8 The latter is intended to complete the comprehensive treatment of efforts to prevent the use of equipment, materials and substances in the illicit production of narcotic drugs and psychotropic substances. 16 9 In framing appropriate legislation or other measures in this sphere, parties have a wide measure of discretion. For instance, through the use of the authority 16 6 Commentary on the 1961 Convention, paragraph 2 of the general comments on article 36 and paragraphs 2-4 of the comments on article 36, paragraph 2, subparagraph (a), clause (ii). 16 7 1961 Convention, art. 36, para. 2, subpara. (a), clause (ii). l6 8 See, for example, "Financial Action Task Force on Money Laundering: report", Paris, 7 February 1990, sect. II.B; see also Canadian Criminal Code, sect. 354, and French Penal Code, art. 321.1; see also above, comments on article 3, paragraph 1, subparagraph (b). 16 9 See above, comments on article 3, paragraph 1, subparagraph (a), clause (iv), and below, comments on article 12. 50 Art. 3 - Offences and sanctions 77 conferred in article 24, those who so wish can consider extending the coverage of subparagraph (c), clause (i), to include treatment of post-acquisition knowledge. 3.81 Clauses (iii) and (iv) of paragraph 1, subparagraph (c), while dealing with very different areas of concern, do have in common the fact that the qualified obligation on parties extends to any of the offences established in accordance with article 3 and not merely to the relatively more serious illicit trafficking offences enumerated in paragraph 1. It therefore includes offences aimed at personal use falling within the scope of paragraph 2. This is a fact of particular importance for those charged with drafting appropriate legislation to ensure compliance with the requirements of the 1988 Convention. 3.82 Paragraph 1, subparagraph (c), clause (iv), deals with various forms of participation or involvement in illicit trafficking, ranging from conspiracy to facilitation. While national legal systems were found to differ so significantly in relation to these matters as to warrant subjecting the obligation to criminalize them to a "safeguard clause", law enforcement practice has demonstrated the particular utility of such offences in penetrating complex drug trafficking networks. This assists the prosecution of drug kingpins who rarely come into contact with the actual narcotic drugs and psychotropic substances themselves. Subparagraph (c) thus complements subparagraphs (a), clause (v), and (b), which also focus on efforts to disrupt trafficking organizations. 3.83 There is a pressing practical need to ensure as comprehensive a coverage of these preparatory acts as possible, given the constitutional principles and basic concepts of the legal system in question. Those responsible for implementation in States which possess the necessary flexibility, in whole or in part, to address these offences, but where familiarity with concepts such as "attempts" 17 0 or "conspiracy" 171 is not well established, can profitably draw upon the experiences of others where drug-specific approaches to these matters have been adopted. 3.84 All States that are parties to the 1988 Convention must, in any event, treat this issue at least in part. This arises from the nature of the unqualified obligation, contained in paragraph 1, subparagraph (b), to criminalize drugrelated money-laundering. The description of that offence uses the wording "or 17 0 See, for example, Thailand, Act B.E. 2534, 1991, sect. 7. 17 1 See, for example, Italy, Decree No. 309 of 9 October 1990, sect. 74. 50 Art. 3 - Offences and sanctions 78 from an act of participation in such offence or offences". Parties must create the offence of money-laundering in these terms irrespective of the limitations that may exist in their own legal systems on the creation of offences of participation. 172 It may be, of course, that the commission of a money-laundering offence will itself be deemed to be participation in the commission of the predicate offence. Paragraph 2 2. 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 consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention. Commentary 3.85 Paragraph 2 deals with the controversial matter of possession, purchase or cultivation for personal consumption. It is necessary to give at this point some account of the position under the earlier conventions to which the paragraph refers. 3.86 Under the 1961 Convention, a party must, "subject to its constitutional limitations", criminalize the cultivation, possession and purchase of drugs. 17 3 A number of States have taken the view that "possession" in that paragraph does not include possession for personal consumption; although the issue is usually discussed in the context of "possession", those States adopt a similar interpretation of the term "cultivation". Two other provisions of the 1961 Convention are relevant: article 4, paragraph 1, under which parties "shall take such legislative and administrative measures as may be necessary: ...(c) subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the ... use and possession of drugs"; and article 33, under which parties "shall not permit the possession of drugs except under legal authority" (an article which does not, however, require penal sanctions). 17 2 See above, comments on article 3, paragraph 1, subparagraph (b). 17 3 1961 Convention, art. 36, para. 1. 50 Art. 3 - Offences and sanctions 79 3.87 The arguments advanced regarding the position under the 1961 Convention are summarized in the commentary on article 4 of that Convention. The relevant paragraphs, omitting footnotes, are as follows: "17. The question arises how far and in what way these provisions govern the possession of controlled drugs; do they apply without regard to whether the drugs are held for illegal distribution or only for personal consumption, or do they apply solely to the possession of drugs intended for distribution? "18. Article 4, paragraph (c), undoubtedly refers to both kinds of possession; but whether that provision must be implemented by imposing penal sanctions on possession for personal consumption is a question which may be answered differently in different countries. Some Governments seem to hold that they are not bound to punish addicts who illegally possess drugs for their personal use. This view appears to be based on the consideration that the provisions of article 36, which in its paragraph 1 requires Parties, subject to their constitutional limitations, to penalize the possession of drugs held contrary to the provisions of the Single Convention, are intended to fight the illicit traffic, and not to require the punishment of addicts not participating in that traffic. Article 45 of the Third Draft, which served as working document of the Plenipotentiary Conference, enumerated in its paragraph 1, subparagraph (a), 'possession' among the actions for which punishment would be required. This paragraph is identical with the first part of paragraph 1 of article 36 of the Single Convention, dealing with 'possession' as one of the punishable offences. Article 45 of the Third Draft is included in chapter IX, headed 'Measures against illicit traffickers'. This would appear to support the opinion of those who believe that only possession for distribution, and not that for personal consumption, is a punishable offence under article 36 of the Single Convention. The Draft's division into chapters was not taken over by the Single Convention, and this was the only reason why the chapter heading just mentioned was deleted, as were all the other chapter headings. Article 36 is still in that part of the Single Convention which deals with the illicit traffic. It is preceded by article 35, entitled 'Action against the illicit traffic', and followed by article 37, entitled 'Seizure and confiscation'. "19. Parties which do not share this view, and which hold that possession of drugs for personal consumption must be punished under article 36, paragraph 1, may undoubtedly choose not to provide for imprisonment of persons found in such possession, but to impose only 50 Art. 3 - Offences and sanctions 80 minor penalties such as fines or even censure. Possession of a small quantity of drugs for personal consumption may be held not to be a 'serious' offence under article 36, paragraph 1, and only a 'serious' offence is liable to 'adequate punishment particularly by imprisonment or other penalties of deprivation of liberty'. "20. Penalization of the possession of drugs for personal consumption amounts in fact also to a penalization of personal consumption. "21. It has, on the other hand, been pointed out, particularly by enforcement officers, that the penalization of all unauthorized possession of drugs, including that for personal use, facilitates the prosecution and conviction of traffickers, since it is very difficult to prove the intention for which the drugs are held. If Governments choose not to punish possession for personal consumption or to impose only minor penalties on it, their legislation could very usefully provide for a legal presumption that any quantity exceeding a specified small amount is intended for distribution. It could also be stipulated that this presumption becomes irrebuttable if the amount in the possession of the offender is in excess of certain limits. It may also be remarked that constitutional limitations, which can free a Party from all obligation to punish an action mentioned in article 36, paragraph 1, will generally not prevent the penalization of the unauthorized possession of drugs.'" 7 4 3.88 There is a similar uncertainty as to the effect of the relevant provisions of the 1971 Convention. Article 22, which deals with penal provisions, provides in paragraph 1, subparagraph (a), that "subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention". 3.89 It has been argued that the effect is not to render possession for personal consumption an offence. Apart from the general consideration, also advanced in respect of the 1961 Convention, that the object was to fight illicit traffic and not to require the punishment of abusers of the controlled substances, it has been 17 4 Commentary on the 1961 Convention, paragraphs 17-21 of the comments on article 4, paragraph 1. 50 Art. 3 - Offences and sanctions 81 suggested that "possession" is not an "action" and is thus not affected by article 22, paragraph 1, subparagraph (a). 17 5 3.90 It was against this background that the negotiators of the 1988 Convention tackled the question, and the resulting text reflects compromises on a number of points. 3.91 First, it was agreed to include in article 3, paragraph 2, the safeguard clause referring to constitutional principles and the basic concepts of a party's legal system. 3.92 Secondly, it was agreed to include the final words requiring the conduct to be "contrary to the provisions of" the earlier conventions. This could be interpreted as enabling the parties to retain the stance that they had adopted regarding the interpretation of those earlier texts. 17 6 This needs, however, to be balanced by the weight to be given to the express inclusion of the reference to "personal consumption" in the text of paragraph 2. A more consistent reading is that the words "contrary to the provisions" of the earlier conventions incorporate the schedules of controlled substances as well as the distinction under those conventions between licit and illicit consumption. 3.93 Thirdly, the provisions in paragraph 2 were kept separate from those in paragraph 1. The effect is that the references in later provisions of the Convention to the nature of the sanctions to be imposed in respect of offences 17 7 can readily distinguish offences established in accordance with paragraph 2 from the graver offences created in pursuance of paragraph 1; and the provisions regarding the establishment of extraterritorial jurisdiction, 17 8 confiscation, 17 9 17 5 Commentary on the 1971 Convention, paragraphs 9-16 of the comments on article 22, paragraph 1, subparagraph (a). 17 6 Se e the statement by the representative of Bolivia (Official Records, vol. II ... Summary records of meetings of the Committees of the Whole, Committee I, 24th meeting, para. 65), who stated that if the 1988 Convention were to go beyond that of 1961 in respect of coca leaf cultivation "whole batches of the population would be in jeopardy and the prisons would be full to overflowing". 17 7 Art . 3, para. 4. 17 8 Art . 4, paras. 1 and 2. 17 9 Art . 5, para. 1. 50 Art. 3 - Offences and sanctions 82 extradition 18 0 and mutual legal assistance 181 are limited to offences created in pursuance of paragraph 1. These latter measures of cooperation, expensive and sometimes cumbersome, were judged inappropriate to the relatively minor but very numerous offences established in accordance with paragraph 2. Implementation considerations: paragraph 2 3.94 As noted above, the view that the Convention should not neglect the issue of personal-use offences prevailed and is reflected in article 3, paragraph 2. 18 2 Although the definition of illicit traffic contained in article 1 extends to such offences in addition to those established in paragraph 1, there are significant differences in the treatment afforded to the former in the framework of the Convention as a whole. In particular, it was recognized that, in the context of international cooperation, considerations of both expense and administrative practicality required a distinction to be drawn between the two categories. In addition, the division of offences into these two categories facilitated a differentiation in the approach to the closely associated issue of sanctions. Thus, article 3, paragraph 4, subparagraph (d), affords parties a somewhat greater degree of latitude in approaching personal-use offences in this context. 18 3 Either in addition or, importantly, as an alternative to conviction or punishment for offences established in accordance with paragraph 2, it provides for the imposition of measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. 3.95 It will be noted that, as with the 1961 and 1971 Conventions, paragraph 2 does not require drug consumption as such to be established as a punishable offence. 18 4 Rather, it approaches the issue of non-medical consumption indirectly by referring to the intentional possession, purchase or cultivation of controlled substances for personal consumption. In contrast to the position under the 1961 and 1971 Conventions, however, paragraph 2 clearly 18 0 Art . 6, para. 1. 18 1 Art . 7, para. 1. 18 2 See also below, paragraph 14.32, regarding the closely associated issue of the elimination of demand for narcotic drugs and psychotropic substances. 18 3 A similar approach is adopted in article 3, paragraph 4, subparagraph (c), to the treatment of offences of a minor nature established in accordance with paragraph 1. 18 4 Se e articles 4 and 36 of the 1961 Convention and articles 5 and 22 of the 1971 Convention. 50 Art. 3 - Offences and sanctions 83 requires parties to criminalize such acts unless it would be contrary to the constitutional principles and basic concepts of their legal systems to do so. 18 5 3.96 In determining an implementation strategy in respect of the range of offences relating to personal use enumerated in paragraph 2, it may be worth examining the practice followed by many States, in which such offences are distinguished from those of a more serious nature by reference to stipulated threshold requirements in terms, for example, of weight. This could be particularly useful in the context of possession for personal consumption. Paragraph 3 3. Knowledge, intent or purpose required as an element of an offence set forth in paragraph 1 of this article may be inferred from objective factual circumstances. Commentary 3.97 Offences under article 3 require mens rea\ that is, the Convention does not require the criminalization of acts of negligence. Proof of knowledge or of mens rea can present difficulties, whatever system of evidence is adopted in a particular national legal system; in practice a defendant will commonly deny the requisite degree of knowledge, and the tribunal must be satisfied as to the existence of that knowledge by admissible evidence. A rigorous analysis of "knowledge", for example, has to address circumstances of "wilful blindness", where the actor "closes his eyes to the obvious"; cases of dolus eventualis, where the offender takes an obvious risk; and circumstances in which any person in the actor's position would have had the requisite knowledge. 3.98 Paragraph 3 does not attempt an exhaustive examination of such issues. It does, however, make it clear that direct proof in the form, typically, of a confession is not essential. The relevant mental element may be inferred from the circumstances surrounding the alleged offender's conduct. Differences in national law and practice are not, however, eliminated. 3.99 The paragraph deals with the inferences that may be drawn by the court or other trier of factual issues. It does not address, and so requires no changes in, the evidential procedures adopted in national legal systems. It will be noted that paragraph 3 refers to offences established in accordance with article 3, 18 5 See above, comments on article 3, paragraph 2; see also Report of the International Narcotics Control Board for 1992 (United Nations publication, Sales No. E.93.XI.1), chap. I. 50 Art. 3 - Offences and sanctions 84 paragraph 1, and omits reference to paragraph 2 of that article, but triers of fact will commonly draw such inferences in any case where that seems justifiable. Implementation considerations: paragraph 3 3.100 Paragraph 3 is permissive rather than mandatory. It is intended to clarify the point that the requisite elements of knowledge, intent or purpose contained in the description of the various offences established in accordance with paragraph 1 may be proved circumstantially; that is, they "may be inferred from objective factual circumstances". This wording, which has been reproduced verbatim in a number of subsequent international texts and treaty instruments, 186 must be read in conjunction with paragraph 11, which provides, inter alia, that nothing contained in article 3 "shall affect the principle that the description of the offences to which it refers and of the legal defences thereto is reserved to the domestic law of a Party". 3.101 In spite of the flexibility provided by paragraph 3, particular problems have been encountered in practice in satisfying the knowledge requirement in cases of money-laundering. This has, in turn, resulted in various discussions at the international level of alternative ways in which to approach the concept of mens rea in this context. 18 7 For example, the definition of laundering in article 2 of the OAS Model Regulations uses the formula "knows, should have known, or is intentionally ignorant" in its treatment of the substantive offences. Article 6, paragraph 3, subparagraph {a), of the 1990 Council of Europe Convention permits, but does not require, the criminalization of negligent laundering. Such concerns now find expression in the relevant domestic laws of a number of jurisdictions. 188 Consequently those charged with drafting enabling legislation with regard to paragraph 1 may wish to consider the desirability and acceptability of using these or other methods to secure the maximum possible effectiveness of national legislative initiatives. 189 In doing so, it is important to 18 6 See, for example, article 6, paragraph 2, subparagraph (c), of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg, 18 November 1990). 18 7 Se e Financial Action Task Force on Money Laundering, "Report, 1996", annex, recommendation No. 5. 18 8 See, for example, General Civil Penal Code of Norway, sect. 317. 18 9 The Australian approach extends to a person who knows "or ought reasonably to know" that the money or property in question was tainted (see Proceeds of Crime Act, 1987, Act No. 87 (1987), 81(3)). 50 Art. 3 - Offences and sanctions 85 ensure, to the greatest extent possible, that the use of different standards of knowledge does not adversely affect a party's ability or willingness to seek or receive international cooperation and legal assistance. 19 0 Paragraph 4, subparagraph (a) 4. (a) Each Party shall make the commission of the offences established in accordance with paragraph 1 of this article liable to sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation. Commentary 3.102 In the 1961 and 1971 Conventions, the corresponding provisions specify that "serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty". 19 1 The negotiators of the 1988 Convention were determined to strengthen these provisions, going beyond the earlier texts. The structure of paragraph 4 gives priority to the heavier penalties, in subparagraph (a), and, by way of exception or qualification, allows in subparagraph (c) for lesser penalties in "cases of a minor nature". 3.103 In paragraph 4, subparagraph (a), sanctions are required which adequately reflect the "grave nature" of the offences specified in article 3, paragraph 1. The list of types of sanctions is intended to be neither exclusive nor necessarily cumulative. These sanctions, singly or in combination, are among those that should be deployed. 3.104 Under "other forms of deprivation of liberty" are included sentences such as "penal servitude" or confinement in a labour camp as provided for under some legal systems. The phrase may also include some non-custodial measures, 19 0 Se e Financial Action Task Force on Money Laundering, "Report, 1996", annex, recommendation No. 33, and the interpretative note on this subject contained in annex 2. 19 1 1961 Convention, art. 36, para. 1; and 1971 Convention, art. 22, para. 1, subpara. (a). 50 Art. 3 - Offences and sanctions 86 such as house arrest or curfew, which may be combined with other forms of supervision such as electronic monitoring. 19 2 3.105 In some national legal systems and in some circumstances, an offender is deprived of the benefit of the proceeds of crime by the imposition of a fine or other pecuniary penalty rather than by the confiscation of specific assets. The drafting is broad enough to cover these varying arrangements. Paragraph 4, subparagraphs (b), (c) and (d) (b) The Parties may provide, in addition to conviction or punishment, for an offence established in accordance with paragraph 1 of this article, that the offender shall undergo measures such as treatment, education, aftercare, rehabilitation or social reintegration. (c) Notwithstanding the preceding subparagraphs, in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare. (d) The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence established in accordance with paragraph 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. Commentary 3.106 The 1971 Convention and the 1961 Convention as amended by the 1972 Protocol 19 3 include a provision (in identical terms in the two texts) to'the effect that when drug abusers have committed offences under the Convention, the parties may provide, either as an alternative to conviction or punishment or 19 2 See also General Assembly resolution 45/110, containing the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules). 19 3 1971 Convention, art. 22, para. 1, subpara. (b); and 1961 Convention as amended, art. 36, para. 1, subpara. (b). Note that the provisions regarding alternative measures were introduced into the 1961 Convention by the 1972 Protocol. 50 Art. 3 - Offences and sanctions 87 in addition to conviction or punishment, that such abusers undergo measures of treatment, education, aftercare, rehabilitation or social reintegration. Paragraph 4, subparagraphs (b), (c) and (d), of the 1988 Convention, while drawing on that earlier provision, widen the scope of application to drug offenders in general, whether drug abusers or not. They also introduce distinctions based on the seriousness of the offence committed: for offences of a grave nature under article 3, paragraph 1, measures of treatment, education etc. may be prescribed only in addition to conviction or punishment; for offences of a minor nature under article 3, paragraph l, 19 4 and offences aimed at personal consumption under article 3, paragraph 2, such measures may be prescribed as an alternative to conviction or punishment. 19 5 3.107 The fact that subparagraphs (b), (c) and (d) do not limit the application of additional or alternative treatment and care measures to drug abusers suggests that such measures may go beyond the context of medical and social problems of drug abusers and may be seen in the wider context of measures for the treatment of offenders in general, designed to reduce the likelihood of their offending again. Drug abusers will, however, in practice naturally constitute the main target group of those measures in the context of drug offences. 3.108 Subparagraphs (b), (c) and (d) refer to "conviction or punishment" as the stages at which additional or alternative measures may be provided for. It should, however, be noted that bridges between the criminal justice system and the treatment system might also be envisaged at other stages of the criminal process, including the prosecution stage (for example, conditional discontinuation of criminal proceedings under condition of attending a treatment programme; treatment order pronounced by a prosecuting magistrate in France) or at the stage of enforcement of a prison sentence (transfer from prison to a treatment institution or therapeutic community in certain circumstances). 3.109 "Treatment" will typically include individual counselling, group counselling or referral to a support group, which may involve out-patient day care, day support, in-patient care or therapeutic community support. A number of treatment facilities may prescribe pharmacological treatment such as methadone maintenance, but treatment referrals are most frequently to drug-free programmes. Further treatment services may include drug education, training in 19 4 Offences which are "particularly serious" having regard to the factors listed in paragraph 5 will, by definition, not fall within the "minor" category. 19 5 See the United Nations standards and norms in crime prevention and criminal justice. 50 Art. 3 - Offences and sanctions 88 behaviour modification, acupuncture, family therapy, relapse prevention training and the development of coping and interpersonal skills. The ability to remain drug-free may also be fostered by rehabilitation and reintegration programmes, such as the provision of further education, job placement and skill training. Therefore measures of treatment, aftercare, rehabilitation, social reintegration and education will in practice often be linked and overlapping. As an alternative measure, treatment is sometimes made a condition for the avoidance of imprisonment. The aim is to take into account the medical condition of the offender while keeping him or her away from an environment where treatment would be minimal and the opportunity for further drug abuse great. Such measures are therefore not necessarily more lenient than imprisonment or much different in concept from punishment. It should be noted that the use of drug treatment as an alternative to punishment and a condition of avoiding a custodial sentence raises controversial issues: questions of whether compulsory treatment may achieve lasting results or whether some amount of willingness and cooperation from the abuser are essential; the relationship between medical practitioners in charge of treatment and judicial authorities; the combination of care and law enforcement roles; and civil rights issues raised by internment for indefinite periods. 3.110 The term "aftercare" is commonly used by penologists to describe the phase of supervision and counselling which follows discharge (especially conditional or early discharge) from a custodial sentence, as the ex-prisoner readjusts to the conditions of normal society. In the present context, this remains a possible interpretation, but it is equally proper to accept the submission made in the commentaries on the earlier texts that it is a stage "which consists mainly of such psychiatric, psychoanalytical or psychological measures as may be necessary after [the abuser] has been withdrawn from the substances that he abused or, in the case of a maintenance programme, 19 6 after he has been induced to restrict the intake of such substances as required by the programme". 19 7 3.111 It is suggested that the word "rehabilitation" covers such measures as may be required to make the former abuser physically, vocationally, mentally and otherwise fit for living a normal life as a useful member of society (cure of 19 6 That is, programmes under which the abuser's intake of the relevant substances is reduced to such minimum quantities as are medically justified in the light of his or her personal condition. 19 7 Commentary on the 1971 Convention, paragraph 4 of the comments on article 20, paragraph 1; and Commentary on the 1972 Protocol, paragraph 4 of the comments on article 38, paragraph 16. 50 Art. 3 - Offences and sanctions 89 diseases, physical rehabilitation in case of disability, vocational training, supervision accompanied by advice and encouragement, measures of gradual progress to a normal self-reliant life etc.). 3.112 It is particularly difficult to draw a dividing line between "rehabilitation" and "social reintegration". It is suggested that the term "rehabilitation" mainly refers to measures intended to improve the personal qualities of the abuser (health, mental stability, moral standards, vocational skills), while the term "social reintegration" includes measures intended to make it possible for the abuser to live in an environment that is more favourable to him or her. The term "social reintegration" may thus cover measures such as providing job placement or transitional housing and perhaps also enabling the former abuser to leave his or her former environment and to move to a social atmosphere less likely to foster drug abuse. A change of environment may also be advisable in order to reduce the harm that the social stigma attached to drug abuse may cause the former abuser. Community service, in the form of an obligation to perform a certain number of hours of unpaid work for the good of the community, may be considered as a valid measure of social reintegration, as well as an educational measure, which can be envisaged for minor offences instead of imprisonment. 3.113 "Education" may refer to general education or to specific teaching regarding the harmful consequences of the abuse of narcotic drugs and psychotropic substances. Such education may occur during a period of treatment or during imprisonment and may equally be part of a programme of aftercare, rehabilitation or social reintegration. 3.114 The list of additional measures in subparagraphs (b), (c) and (d) is not exclusive. A party is not precluded from ordering whatever measures are judged, in the context of its national legal system, appropriate to the particular circumstances of the offender. Paragraph 5, introductory part 5. The Parties shall ensure that their courts and other competent authorities having jurisdiction can take into account factual circumstances which make the commission of the offences established in accordance with paragraph 1 of this article particularly serious, such as: 50 Art. 3 - Offences and sanctions 90 Commentary 3.115 Although the earlier conventions had made use of the notion of "serious offences", 19 8 no attempt was made to identify the aggravating circumstances which pointed to the seriousness of an offence. Paragraph 5 provides such guidance by presenting a non-exhaustive list of relevant factual circumstances. The obligation on parties is to ensure that their courts or other competent authorities (for example, special tribunals used in some States to deal with cases involving drug-related offences) are able to take these circumstances into account in sentencing. Specific legislation will, of course, not be required if the practice of the courts already meets this condition. A party is not required to ensure that the courts or other authorities do in practice avail themselves of this power, nor is there any attempt to state the effect that those circumstances should have on the sanction imposed. Paragraph 5, subparagraph (a) (a) The involvement in the offence of an organized criminal group to which the offender belongs; Commentary 3.116 The important circumstance is that the offence is not committed by an individual acting alone. The text requires not only that the offender should belong to an organized criminal group, but also that the group was actively involved in the offence. As the circumstances listed in paragraph 5 are aggravating circumstances rather than elements in the definition of an offence, it was unnecessary to be more specific regarding the nature of the group's involvement. Paragraph 5, subparagraph (b) (b) The involvement of the offender in other international organized criminal activities; 19 8 1961 Convention, art. 36, para. 1; and 1971 Convention, art. 22, para. 1, subpara. (a). 50 Art. 3 - Offences and sanctions 91 Commentary 3.117 The focus here is not upon the relationship of an organized criminal group with the offence that has been committed, but rather upon the fact that the offender is involved in other international organized criminal activities. Those activities must have an international dimension. Although they must be "other" activities, this need not exclude other activities related in some way to illicit traffic in narcotic drugs or psychotropic substances. Two examples given in the course of the negotiations were arms smuggling and international terrorism. Paragraph 5, subparagraph (c) (c) The involvement of the offender in other illegal activities facilitated by commission of the offence; Commentary 3.118 There are many cases in which the profits derived from illicit traffic or other drug-related offences are used to fund other types of criminal or illegal activities. These may include activities involving gambling or prostitution, which in some legal systems may be regarded as illegal (for example, if not subject to official control or supervision) but not criminal; hence the use of the wider adjective "illegal". Paragraph 5, subparagraph (d) (d) The use of violence or arms by the offender; Commentary 3.119 Although the text of subparagraph (d) does not spell this out, what is plainly meant is that the offender used violence or arms in the commission of the offence itself. It is submitted that "arms" should be understood in the broadest sense although there is reason to assume the authors originally intended that it refer to firearms. The broader interpretation is also supported by the use of the sole term "armes" in the French text (instead of the more specific "armes a feu"). 50 Art. 3 - Offences and sanctions 92 Paragraph 5, subparagraph (e) (e) The fact that the offender holds a public office and that the offence is connected with the office in question; Commentary 3.120 No definition is given of "public office", the scope of which must be ascertained by reference to the concepts used in a State's national legal system. There must be a connection between the office held and the offence; it is not sufficient that the offender holds a public office (though a court is not precluded from treating that as a material consideration, independently of the guidelines laid down in the Convention). The link will commonly take the form of misuse of the powers or influence of the office, but the text does not specify any particular form of connection. Paragraph 5, subparagraph (f ) (f ) The victimization or use of minors; Commentary 3.121 The intention of subparagraph (/) is clear, and it will be for parties, by reference to the concepts of their national legal system, to define the category of "minors". "Use" includes, but is not limited to, exploitation of minors. For example, the use of a minor in the role of a messenger might be sufficient for the subparagraph to apply. Paragraph 5, subparagraph (g) (g) The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational, sports and social activities; Commentary 3.122 Subparagraph (g) reflects a number of concerns. One is the fact that drug abuse is a problem in many penal institutions, and this is seen as an obstacle to the rehabilitation of offenders who may leave prison with problems 50 Art. 3 - Offences and sanctions 93 they did not have at the start of their sentence. The other concern is a wish to give the maximum possible protection to children and other groups especially at risk. For that reason, the subparagraph will be properly invoked when the circumstances are such that children, students or persons attending a social service facility are likely to become involved. There is no reference in the text to the possibility that an offence may be committed close to one of the specified institutions but at a time when the institution is closed and no other persons are present; however, it is difficult to see that such geographical proximity alone would be given much weight. The concept of "immediate vicinity" is, in any case, not clearly defined. Paragraph 5, subparagraph (h) (/«) Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a Party. Commentary 3.123 Many national legal systems expect those imposing penal sanctions to take into account recidivism and other aspects of a convicted person's record. A notable feature of subparagraph (h) is the express reference to convictions recorded in a foreign country. As there is considerable variation between national legal systems in the way these matters are handled, it was thought essential to include what amounts to an additional safeguard clause in the concluding words of the subparagraph. Paragraph 6 6. 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. Commentary 3.124 The origins of what became paragraph 6 lay in a proposal that would require parties to ensure that their prosecution authorities strictly enforced the 50 Art. 3 - Offences and sanctions 94 law on matters covered by article 3. In some States the absence of discretion produces this effect: prosecution is mandatory. Where discretion does exist, the withdrawal of charges, "plea-bargaining" as to the level of the offence or the likely sanction, or other concessions could be secured by improper means, and prosecution authorities might in some States need a measure of protection from the powerful interests associated with organized crime. 3.125 There are, however, some countervailing considerations. Discretion is commonly given to prosecution authorities in order to facilitate a rational prosecution policy and in recognition of an entirely proper concern to identify priorities in the use of resources. There may well be situations in which the promise of reduced penalties may persuade an accused person to provide information implicating others; an accused person who agreed to be a prosecution witness could be of the greatest value in securing effective law enforcement. Concessions to those involved in the lower echelons of organized crime could enable investigative agencies to identify and prosecute those in the higher echelons. 3.126 The final text reflects a compromise between these two positions. Its inclusion in the Convention points to the dangers inherent in too generous a use of prosecutorial discretion and underlines the fact that due regard must be given to the need to deter the commission of offences. The touchstone, however, is the need to secure what the text refers to as "the effectiveness of law enforcement measures" and this enables the considerations summarized in paragraph 3.125 above to be given appropriate weight. Paragraph 7 7. The Parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences. Commentary 3.127. Paragraphs 4 and 5 are concerned with the sanctions that should be imposed on conviction. In paragraph 7, it is recognized that the sanction initially imposed, where that takes the form of imprisonment or other deprivation of liberty, may be substantially affected by a later decision to permit the early 50 Art. 3 - Offences and sanctions 95 release or parole of the convicted person. Such decisions are common in many States and constitute an integral part of their sentencing practices and policies, though totally prohibited in others. The paragraph exhorts parties to ensure that, where such decisions are to be made within their national legal system, those responsible for making the decision bear in mind the gravity of the relevant offences, and the presence of any of the aggravating circumstances listed in paragraph 5. Paragraph 8 8. Each Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offence established in accordance with paragraph 1 of this article, and a longer period where the alleged offender has evaded the administration of justice. Commentary 3.128 Many States have no statute of limitations in criminal cases; in many others, a limitations period is prescribed and applied either universally or with strictly limited exceptions. Paragraph 8 has no relevance to parties without such a statute of limitations; hence the phrase "where appropriate". Parties that do have a statute of limitations are required to establish a "long" period in respect of offences established in accordance with paragraph 1; the word "long" is not further defined. In addition, they must provide for the period to be extended where the alleged offender has evaded the administration of justice. This latter point was introduced having in mind the case of a suspect who had fled the territory of a party, but in the final text this particular case is subsumed in more general language. The result is not easy to interpret: it appears that some positive act by the alleged offender to "evade" prosecution is required, for a statute of limitations becomes meaningless if the mere non-prosecution of the alleged offender (who thus escapes the administration of justice) becomes a ground for extending the limitation period. It needs to be borne in mind that international conventions establishing human rights norms require that, for criminal procedures to be fair, charges must be pressed without undue delay. Paragraph 9 9. Each Party shall take appropriate measures, consistent with its legal system, to ensure that a person charged 50 Art. 3 - Offences and sanctions 96 with or convicted of an offence established in accordance with paragraph 1 of this article, who is found within its territory, is present at the necessary criminal proceedings. Commentary 3.129 An earlier draft of paragraph 9 made particular reference to the grant of bail, drawing attention to the large sums of money commonly available to traffickers. This material was deleted, but the paragraph is, none the less, concerned with just these issues. It does not deal with extradition, the subject of article 6; nor does it preclude trials in absentia where the alleged offender is not "found within [a Party's] territory" and where such trials are permitted in relevant legal systems. Rather, it is designed, as with the preceding paragraphs, to encourage effective law enforcement. Given the sums of money involved and the international dimension of much drug-related crime, incautious use of pretrial release could seriously jeopardize effective law enforcement. Paragraph 10 10. For the purpose of co-operation among the Parties under this Convention, including, in particular, co-operation under articles 5,6,7 and 9, offences established in accordance with this article shall not be considered as fiscal offences or as political offences or regarded as politically motivated, without prejudice to the constitutional limitations and the fundamental domestic law of the Parties. Commentary 3.130 Paragraph 10 is concerned with the sensitive issue of the political and fiscal offences exception, most familiar in the field of extradition. It is a common feature of State practice that assistance is refused where the offence is characterized as political or fiscal in nature. The categories are not self-defining; for example an act carried out in a political context (such as an armed uprising) may not be regarded as political if done for a private or personal reason. In the present context, if parties were allowed to categorize offences established in accordance with article 3 as fiscal or political offences or as politically motivated, there would be an obstacle to the provision of the measures of international cooperation provided for in articles 5 (Confiscation), 6 (Extradition), 7 (Mutual legal assistance) and 9 (Other forms of co-operation and training). This listing of modes of cooperation is not exhaustive. The 50 Art. 3 - Offences and sanctions 97 safeguard clause in paragraph 10, which uses the term "constitutional limitations and the fundamental domestic law" rather than "basic concepts of [a] legal system" (a drafting difference which does not appear to affect the meaning), is designed to protect, in particular, constitutionally guaranteed rights requiring refusal of extradition requests. The present provision can be compared with article 6, paragraph 6, which expresses a related notion in the extradition context. Paragraph 11 11. 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. Commentary 3.131 Paragraph 11 is drawn from article 36, paragraph 4, of the 1961 Convention. It is not intended as an additional safeguard clause. It ensures that no provision in article 3 is considered self-executing. Although it requires parties to create offences, these offences and the sanctions attached to them will be creatures of the national legal system and will use the framework and terminology of that system. This is perhaps of even greater importance in the case of "legal defences", to which the paragraph also refers. Implementation considerations: paragraphs 4-11 3.132 Paragraphs 4-11 of article 3 are, for the most part, designed to ensure that illicit trafficking offences, especially those set out in paragraph 1, are treated with appropriate seriousness by the judiciary and prosecutorial authorities of each party. The drafting style used for that purpose leaves to the appropriate authorities of each State considerable scope for the exercise of judgement in determining how best to achieve the relevant goals in the light of different legal, moral and cultural traditions. This inherent flexibility is, in turn, extended by the terms of article 24, which permits the taking of stricter or more severe measures than those mandated by the Convention if deemed desirable or necessary for the prevention or suppression of illicit traffic. This may prove to be of value, for example, in considering the list of aggravating factors contained in paragraph 5. Some parties may wish to supplement it to make reference to such matters as the involvement in relevant offences of certain categories of professional persons 50 Art. 3 - Offences and sanctions 98 or employees 1 "or to the adulteration of the drugs in question with toxic substances. 20 0 3.133 Article 3, paragraph 10, constitutes something of an exception in that it introduces a qualified obligation in relation to matters of both legal substance and political delicacy. It provides that for the purposes of international cooperation under the 1988 Convention "offences established in accordance with this article shall not be considered as fiscal offences or as political offences or regarded as politically motivated ..." Insofar as political and politically motivated offences are concerned, it will suffice to point to the concern expressed in the Political Declaration adopted by the General Assembly at its seventeenth special session (General Assembly resolution S-17/2, annex) to the growing link between illicit trafficking and terrorist activities. This provision is intended to restrict the possibility of an individual invoking the protection of the so-called political offence exception in these and other like circumstances. 201 The reference to categorization as a fiscal offence has a somewhat similar purpose. As has been stated elsewhere: "Traditionally several States have not extradited offenders or provided mutual legal assistance for fiscal offences. Thus, by increasing the availability of cooperation in drug money-laundering investigations, this provision is extremely important." 20 2 3.134 There is a further connection between the provision of international cooperation and the subject matter of these paragraphs of article 3 that should also be considered by those responsible for implementation. In some countries the decision has been taken to underline the severity of drug trafficking offences by applying to them the ultimate sanction, namely, the death penalty. Many 19 9 Article 14, paragraph 1, of the OAS Model Regulations reads: "Financial institutions, or their employees, staff, directors, owners or other authorized representatives who, acting as such, participate in illicit traffic or related offences, shall be subject to more severe sanctions." 20 0 In Italy, Decree No. 309 of 9 October 1990, section 80, paragraph 1 (e), provides for penalties to be increased by between one third and one half "if the narcotic and psychotropic substances are adulterated or mixed with others in order to increase the potential hazard". 20 1 For example, article 3, subparagraph (a), of the 1990 Model Treaty on Extradition, adopted by the General Assembly in its resolution 45/116; see also, for example, article 3 of the 1957 European Convention on Extradition. 20 2 "Report of the United States Delegation to the United Nations Conference for the adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances", 101st Congress, 1st Session, Senate, Exec. Rept. 101-15, p. 32. 50 Art. 3 - Offences and sanctions 99 other States, however, have adopted the position that they will not provide certain forms of international cooperation in cases involving the death penalty. This practice is particularly well established in relation to extradition 203 and may also be applied in other spheres of cooperative activity such as mutual legal assistance. The difficulty, or impossibility, of obtaining the extradition of fugitives or otherwise using established procedures of international cooperation in the administration of justice in such cases should be weighed in the balance when articulating a sanctions policy in this sphere. 20 4 20 3 See, for example, article 4, paragraph (d), of the 1990 Model Treaty on Extradition (General Assembly resolution 45/116, annex); see also G. Gilbert, Aspects of Extradition Law (London, Martinus Nijhoff, 1991), pp. 99-100. 20 4 Also of relevance are resolutions of the General Assembly and Economic and Social Council concerning safeguards relating to capital punishment (General Assembly resolution 2857 (XXVI)) and Economic and Social Council resolution 1990/29). ARTICLE 4 Jurisdiction General comments 4.1 Following the general approach adopted in earlier multilateral conventions dealing with crimes of international concern, it was not judged sufficient merely to require States, in article 3, to criminalize drug trafficking activity. Given the uncertainty and controversy surrounding the issue of the limits imposed by rules of customary international law on the right of States to legislate with extraterritorial effect, 20 5 it was felt that it would be appropriate to regulate the issue of prescriptive jurisdiction in a specific treaty provision. This is the function of article 4. 4.2 Article 4, the reach of which is confined to the most serious international drug trafficking offences enumerated in article 3, paragraph 1, establishes two types of jurisdiction: obligatory and discretionary. It is concerned only with the establishment of jurisdiction and does not impose obligations as to its exercise. The latter issue, that of enforcement jurisdiction, is treated elsewhere in the Convention. 20 6 4.3 A number of bases of jurisdiction have become well recognized in the doctrine of public international law. They include "territorial" jurisdiction, the principle that a State has jurisdiction over crimes committed on its territory; extended "quasi-territorial" jurisdiction over crimes committed on ships or aircraft registered in the State; and "personal" jurisdiction, typically over a State's nationals. In the earlier conventions dealing with narcotic drugs and psychotropic substances, there was also provision for the trial of serious offences by a party in whose territory the offender was found, in cases in which 20 5 See, for example, M. N. Shaw, International Law, 3rd ed. (Cambridge, Grotius Publications, 1991), pp. 400-419. 20 6 See, for example, below, comments on article 6, paragraph 9. But see also above, comments on article 3, paragraph 11, in which it is affirmed that nothing contained in article 3 "shall affect the principle ... that such offences shall be prosecuted and punished in conformity" with domestic law. 100 Art. 4 - Jurisdiction 101 extradition was not available. 20 7 It was against this background that the Conference addressed the issue. 4.4 The recognition of the validity of multiple grounds for the establishment of jurisdiction raises the possibility of the conduct in question being subject to the criminal law of two or more States. This is particularly likely in the area of drug trafficking, which is inherently transnational in nature. While concurrent claims to jurisdiction will inevitably arise within the context of the 1988 Convention, the text does not seek to solve the problem of what priority to give to such competing assertions. Similarly, there is no adequate solution to this matter in the corpus of existing norms of customary international law. Partial coverage is often provided in relation to the principle of ne bis in idem (or the prevention or prohibition of double jeopardy), albeit normally in the negative sense of constituting a ground for refusing to grant various forms of legal assistance. 20 8 Paragraph 1, subparagraph (a) 1. Each Party: (a) Shall take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: (i) The offence is committed in its territory; 20 7 1961 Convention, art. 36, para. 2, subpara. (a), clause (iv), and 1971 Convention, art. 22, para. 2, subpara. (a), clause (iv). 20 8 See, for example, paragraph 10(4) of the Commonwealth Scheme for the Rendition of Fugitive Offenders (Commonwealth Schemes of Mutual Assistance in the Administration of Justice (London, Commonwealth Secretariat, 1991)); and article 3, subparagraph (d), of the 1990 Model Treaty on Extradition, adopted by the General Assembly in its resolution 45/116. Article 16 of the latter deals with the issue of concurrent requests for extradition (see also European Committee on Crime Problems, Extraterritorial Criminal Jurisdiction (Strasbourg, Council of Europe, 1990), pp. 33-35; andR. S. Clark, The United Nations Crime Prevention and Criminal Justice Program: Formulation of Standards and Efforts at their Implementation (Philadelphia, University of Philadelphia Press, 1994), p. 208, footnote 52). A treaty on the application of the principle of ne bis in idem has been produced by the Judicial Co-operation Group working under the auspices of the Ministers of Foreign Affairs of Member States of the European Communities. 102 Art. 4 - Jurisdiction 102 (ii) The offence is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed; Commentary 4.5 Paragraph 1, subparagraph (a), which is mandatory on parties, deals with jurisdiction on a "territorial" or "quasi-territorial" basis. In the practice of States, such jurisdiction is virtually universally established, but it was judged appropriate to include it specifically so that article 4 could contain a comprehensive set of provisions. 4.6 In common with other international treaties and conventions, the text requires jurisdiction to be "established". It is not necessarily the case that it will always be "exercised", and the latter word was deliberately omitted from article 4. For example, there may be cases where it is more appropriate for an alleged offender, the major part of whose criminal activities have been carried out in another State, to be extradited to stand trial in that State. 4.7 The text does not attempt to deal with the well-known problem of deciding in which State an offence, elements of which are located in more than one State, should be deemed to have been committed. It will be for each national legal system to determine whether what occurred on its territory satisfies the definition of the relevant offence created by its own law. 4.8 It should be noted that the 1988 Convention does not contain a provision equivalent to that found in article 36, paragraph 2, subparagraph (a), clause (i), of the 1961 Convention, whereby each of the offences mandated by paragraph 1 thereof, if committed in different countries, "shall be considered as a distinct offence". This provision, which was heavily influenced by the terms of article 4 of the 1936 Convention, is intended "to give to the courts of a country the necessary territorial jurisdiction in cases where they might not otherwise possess it, and in particular to ensure that a country shall have territorial jurisdiction over accessory acts even though the principal acts were not committed in its territory and even though it in general assigns jurisdiction over accessory acts in the courts in whose districts the principal acts were committed". 20 9 The provision of the 1961 Convention, as with article 22, paragraph 2, subparagraph (a), clause (i), of the 1971 Convention, which is to like effect, is made subject to a 20 9 Commentary on the 1961 Convention, paragraph 2 of the comments on article 36, paragraph 2, subparagraph (a) (see also paragraph 4.7, above). Art. 4 - Jurisdiction 103 safeguard clause; namely "subject to the constitutional limitations of a Party, its legal system and domestic law". 4.9 The word "vessel" was preferred in the English text of the 1988 Convention to the word "ship"; there seems to be no significant difference between these terms, even in the context of such vehicles as hovercraft. The expression "flying its flag" is the customary one and is, of course, not to be taken literally; the absence of the flag from its accustomed pole does not extinguish the jurisdiction of the State of registry. 21 0 In a few national legal systems, however, a ship registered in a State may be permitted, for a limited period, to fly the flag of another State; in such a case, the text gives jurisdiction to the latter State. 4.10 Aircraft are registered in a similar way, but the language of the "flag" is not used. There is a growing number of aircraft owned by a group of airlines established in different countries, 21 1 but the practice is that each individual aircraft is on the register of only one of the States involved. The Council of the International Civil Aviation Organization, in a controversial resolution, 21 2 allowed for the establishment of joint or international registration, the effect of which would be to give the aircraft dual or multiple nationality, and for present purposes to give jurisdiction to several States. 4.11 The reference to the time of the offence can be critical in some aviation contexts. Interchange agreements between airlines sometimes provide for the temporary transfer of an aircraft from the register of one State to that of another for a part of an international flight. In such cases, care would need to be taken to identify the actual time of the offence so as to discover the State of registration at that time. Implementation considerations: paragraph 1, subparagraph (a) 4.12 Paragraph 1, subparagraph (a), deals with the mandatory establishment of prescriptive jurisdiction by parties. 21 0 Se e article 91 of the United Nations Convention on the Law of the Sea (The Law of the Sea: United Nations Convention on the Law of the Sea (United Nations publication, Sales No. E.83.V.5)). 2 1 'Examples are the Scandinavian Airlines System and Air Afrique. 2 1 international Civil Aviation Organization document 8743-C/978, p. 26. 104 Art. 4 - Jurisdiction 104 4.13 The authority of a State to establish jurisdiction over acts which take place within its own territory is an uncontested norm of public international law of long standing. Indeed, all members of the international community afford the territorial principle of jurisdiction a central position in their legal systems. Thus, compliance with this obligation will be automatic. 4.14 Notwithstanding this fact, many jurisdictions do not always take full advantage of the flexibility of the rule of international law in the drafting of their criminal law statutes. That rule encompasses both the subjective and objective principles of territoriality: that is, where the act was commenced and where it was completed. This flexibility can be particularly valuable in relation to drug trafficking and other transnational offences where the constituent elements of the crime are frequently committed in more than one jurisdiction. In some commonlaw countries, for example, it has been traditional to assume jurisdiction only when the final element of the offence was committed within national territory. 213 The resulting gap in coverage is not the result of any limitation imposed by international law and could thus be remedied by appropriate legislative action. An obvious focus for consideration is presented by the offences enumerated in article 3, paragraph 1, subparagraph (c), clause (iv), when they are committed in another State. 4.15 It should be recalled that, in addition to its land territory, each coastal State possesses sovereignty over its territorial sea and supeijacent airspace by virtue of rules of international law, both customary and conventional. 214 In order to eliminate possible loopholes that could be used by traffickers, and given the practical importance of eliminating trafficking by sea, 21 5 parties should consider whether existing legislation adequately covers offences committed upon vessels 21 3 See, for example, G. Williams, "Venue and the ambit of the criminal law" (Part 3), Law Quarterly Review, No. 81, 1965, p. 158. 21 4 See, for example, article 2 of the United Nations Convention on the Law of the Sea 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