E/CN.7/1988/2 (Part II) page 12
62. Several representatives suggested that the proposal should not be restricted to drug abusers but should be applicable as well to other offenders in appropriate cases. One representative indicated that existing national legislation in that sense had yielded tangible results in his country.
63.
Several representatives objected to these proposals on the grounds that the purpose of the new convention was to criminalize illicit traffic and not to deal with all aspects of drug abuse; the inclusion of such provisions would weaken the substantive content of article 2. It was stressed that as far as major traffickers were concerned, treatment and rehabilitation could only be considered as an addition and not as an alternative to conviction or punishment. It was the common understanding of representatives that the special measures that States may wish to provide in addition to conviction or punishment, should be included in provisions distinct from those in paragraph 2 which established the obligation for States to take into account the grave nature of the offences set forth in paragraph 1 in setting applicable sanctions.
64.
Following informal consultations, the Group proposed two additional, distinct subparagraphs covering respectively special measures that, irrespective of the nature and seriousness of the offence, may be applied to offenders, in addition to conviction or punishment, and special measures applicable in appropriate cases of a minor nature as alternative to conviction or punishment, including some measures specifically applicable when the offender is a drug abuser. It was indicated that the measures mentioned were only indicative of those which States may provide.
65.
Commenting on paragraph 3 of article 2 in the original draft, several representatives observed that whereas in common law countries the determination of aggravating circumstances was within the purview of the courts, in countries with civil law tradition the courts, while competent to apply extenuating circumstances, could not pronounce aggravating circumstances without legislative authority.
66.
One representative suggested that the nature of the obligation placed on States Parties by paragraph 3 should be made clear by stating that the circumstances of aggravation may be treated as matters relevant to the sentence to be imposed on a person and need not be regarded as additional elements of the offences enumerated in paragraph 1.
67. As regards the qualifying words "where possible" used in the introductory sentence, several representatives proposed their deletion to make the provisions of the paragraph more binding on Parties. Some other representatives were in favour of making the paragraph less rigid by inserting as an additional clause the words "where desirable" after the words "where possible". It was suggested that a solution might consist in introducing an appropriate limitation clause at the beginning of the sentence.
68.
Following informal consultations, the Group considered and approved a revised formulation of the introductory sentence which instead of referring to "aggravating circumstances" spoke of "factual circumstances which may make the commission of the offences set forth in paragraph 1 particularly serious", specifying that Parties shall ensure that their courts can take such circumstances into account.