Commentary on the 1961 Single Convention on Narcotic Drugs

15. It appears that it is left to the discretion of each Party to decide whether it wishes to penalize  the non-medical consumption of narcotic drugs by addicts, or whether it prefers to prevent such abuse solely by administrative and penal measures by which the production, manufacture and distribution of drugs must be controlled under the terms of the Single Convention.

18. Article 4, paragraph (c), undoubtedly refers to both kinds of possession [for illegal distribution or only for personal consumption – NR]; 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 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 particpating in that traffic.

19. Parties […] 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 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”.

23. There can be no doubt that Governments may refrain from imposing imprisonment in cases of possession of drugs held for personal consumption without legal authority.

1. Widely different moral, religious and cultural traditions are reflected in the differences which distinguish the systems of substantive and procedural penal law of individual nations and of groups of culturally related nations. It is therefore extremely difficult, and in some respects even impossible, to establish universally acceptable international rules to be implemented in the national penal systems. Attempts to overcome these difficulties have been made by adopting international provisions which are broad enough to leave room for national differences and are therefore rather vague, and by admitting escape clauses for the benefit of those Governments to which even such vague norms would be unacceptable.

7. It will be noted that paragraph 1 does not refer to “use”. As has been pointed out elsewhere [comments on article 4, para (c) – NR], article 36 is intended to fight illicit traffic, and unauthorized consumption of drugs by addicts does not constitute “illicit traffic”.

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

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