Mixed thoughts about the INCB's latest report
The International Narcotics Control Board (INCB) just released its annual report. Martin Jelsma - who has followed the Board's policy for many years now with a critical eye - examines its negative stance towards harm reduction and decriminalization, and questions the Board's tendency to overstep its mandate.
See also: Observations on the International Narcotics Control Board (INCB) Report for 2010, by Martin Jelsma, Transnational Institute, & John Walsh, Washington Office on Latin America.
Today the International Narcotics Control Board (INCB) released its annual report. I’ve been following the Board for many, many years now, have often criticized its narrow interpretation of the treaties, have questioned the validity of its usually negative comments about any policy changes in the direction of harm reduction or decriminalization, and have warned repeatedly about its tendency to overstep its clearly defined mandate.
This year the INCB highlights the theme of ‘drugs and corruption’ and no doubt most of the media coverage will follow their choice. I’ve decided to not comment on the contents of that chapter mainly because it just raises again my longstanding doubts about the role and mandate of the INCB within the UN drug control system. To be frank, I’m not really that interested what they think about corruption, I don’t consider them to be experts on the matter and I truly wonder who does. There are other UN agencies that have addressed the issue of corruption with more authority, including the UNODC, UNDP and the Worldbank, and there is a special UN Convention against Corruption that entered into force in December 2005 with regular conferences to discuss its implementation.
The INCB has an important and clearly defined – and restricted – mandate to monitor compliance of the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances, primarily to maintain the administrative system to secure availability of drugs controlled under those treaties for medical use and prevent their diversion for illicit purposes. Apart from the control on precursors, the INCB has no mandate to monitor the implementation of the 1988 Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, dealing as it does with matters of criminal law and its enforcement that go beyond the scope of the earlier conventions into areas touching more closely on the jurisdiction of States. While the Board frequently oversteps its limitations related to the 1988 Convention, they now seem to be even expanding their reach to the UN Convention against Corruption and the UN Convention against Transnational Organized Crime, for which they have no mandate at all.
Probably I would have had much less difficulty with the fact that the INCB reflects on drug-related policy issues beyond their immediate remit if they had shown in the past that they are capable of doing so from an independent perspective, pointing out policy dilemmas around the drugs issue within the broader UN context with the aim to stimulate debate. The reality, unfortunately, is that the INCB has the reputation of being a key obstacle to that kind of debate about UN system-wide coherence.
Challenges to the current drug control system posed by human rights, the right to health, indigenous rights, the Millennium Development Goals, all pointed out by the WHO, UNAIDS and several UN special rapporteurs, have mostly been met from INCB side by rebuttals based on a narrow interpretation of the drug control treaties. In the past decade the INCB has been the most vocal opposition within the UN system against drug policy improvements that tried to reconcile drug control and human rights. Every year the INCB report contained negative comments or outright condemnations of policy changes in the sphere of harm reduction and decriminalization, up to simply outraging and arrogant statements against sovereign constitutional courts that ruled in favour of such policy changes.
As long as the INCB hasn’t shown convincingly that they can contribute in a useful manner to the wider UN debate, including the existing tensions between drug control, human rights, right to health, HIV prevention, indigenous rights, etc, they better restrict themselves to the treaty mandate given to them and any ‘mission creep’, including towards the issue of corruption, should better be avoided. For that reason I abstain from commenting on the Board’s analysis of the main theme in the opening chapter. There are, however, some points to be made about the regular sections in this year’s report.
Coca chewing (see paragraphs 90, 137 and 141)
The Board again stresses the need to comply with the obligation under the 1961 Single Convention to abolish coca leaf chewing, castigating Bolivia, Peru and (for the first time) Argentina for failing to ensure full compliance with this treaty obligation. There is no doubt that the 1961 Convention requires countries to abolish coca leaf chewing, so in strictly legal terms the INCB is correct to remind countries of that obligation. However, the 1988 Convention subsequently created some legal ambiguity by saying in article 14.2 that any measures adopted “shall respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use.” Moreover, Bolivia made a formal reservation to the 1988 Convention, stressing that its “legal system recognizes the ancestral nature of the licit use of the coca leaf.”
The Board fails to make any reference to Bolivia’s proposed amendment to delete the obligation to abolish coca leaf chewing, even though Bolivia’s proposal is currently pending a decision of the UN Economic and Social Council (ECOSOC) and is an issue of heated debate in the international drug policy arena. The Board could have chosen to not simply remind countries of their obligation regarding coca chewing, but also point out the longstanding ambiguities about it and commend Bolivia for initiating the legitimate amendment procedure established under the Convention to bring this dilemma to the attention of the appropriate UN body (ECOSOC) and the Parties to the Convention.
In any case, the insistence of the Board to call on countries to abolish coca leaf chewing serves to underline the importance of the proposed amendment, because it is clear to everyone – including the Board – that traditional use of coca leaf will simply never be abolished. And the UN Declaration on the Rights of Indigenous Peoples that recently entered into force adds legitimacy to the claim that coca chewing is an essential element of Andean/Amazon indigenous culture.
Interference with the World Health Organization (WHO) mandate
(see “special topics” 3 and 6, paragraphs 273-274 and 284-287)
The 1961 and 1971 Conventions explicitly mandate only the WHO to make recommendations about the scheduling of substances. In recent years the INCB has repeatedly interfered with that mandate by proposing to impose stricter controls on a number of substances currently not included in the UN drug control convention schedules, sometimes directly contradicting the recommendations coming from the WHO Expert Committee.
This year’s INCB report includes a section under “special topics” about “Plant material containing psychoactive substances” where a number of inconsistencies are outlined with regard to the treatment of plants and their alkaloids under the current treaty system. While it is useful that the Board points out such inconsistencies, its recommendation that Governments should consider controlling such plant material is beyond the Board’s mandate.
In the case of khat, for example, it directly contradicts previous WHO findings concluding that stricter controls were not necessary. Similarly, under a section on recently identified “designer drugs,” the Board draws attention to mephedrone, suggesting countries to take action “with a view to adding the substance to any of the Schedules of the 1971 Convention.” In this case the Board does refer to the problem that for some time the WHO has not been able to convene its Expert Committee, but the Board does not call explicitly on countries to provide funding to the WHO to enable it to fulfill its treaty mandate. Indeed, lack of adequate funding is the main obstacle to the WHO’s consideration of these issues, and the INCB seems to try to fill that void by providing recommendations of its own, without the proper treaty mandate to do so.
Decriminalization and harm reduction
On the positive side, this year’s INCB report for the first time does not include any wording to criticize countries for decriminalizing possession of drugs for personal use. Last year the Board strongly criticized Argentina, Brazil and Mexico (see TNI/WOLA press release, “UN’s International Narcotics Control Board’s Annual Report oversteps mandate and interferes with countries’ sovereignty.”) The Board appears to have finally recognized that such policy changes are in fact allowed under the treaties.
In reference to the Czech Republic, for example, the Board simply mentions in a neutral way the introduction of quantity thresholds for possession for personal use below which possession is no longer considered a criminal offence (see paragraph 699). Also on the harm reduction issue, the report is much less aggressive than previous years. Only in the case of Spain the Board still expresses concern over the existence of drug consumption rooms, but the issue is not highlighted as it was in previous years and the same is true for heroin prescription programmes. Negative comments about decriminalization or harm reduction are fully absent from the concluding recommendations section of the report.
So perhaps these are positive signs that the INCB is starting to move away from its ideological past towards a more evidence-based and constructive role in the future. A trend that hopefully will be confirmed with the upcoming election in ECOSOC of new Board members, if countries are willing to vote on the basis of relevant expertise instead of just horse trading their votes for INCB members in return for support for other UN positions. Then, who knows, maybe next year I’ll be less critical if the INCB in its report goes beyond its mandate again, by commenting on for example the Declaration of the Rights of Indigenous Peoples or by expressing concern about other psychoactive substances not currently controlled under the 1961 or 1971 Convention. Alcohol perhaps?