Scheduling in the international drug control system
Scheduling is mostly prioritised in its repressive pole, though present debates are increasingly highlighting the need to modify the balance of the system in order to affirm the importance of the principle of health.
While often viewed as an obscure technical issue, the problem of scheduling lies at the core of the functioning of the international drug control system. Scheduling – the classification of a substance within a graded system of controls and restrictions, or 'schedules' – must take place in order for a substance to be included in the international control framework, and determines the type and intensity of controls to be applied. For this reason, the topic is of central importance.
In addition, the issue has become a contemporary flashpoint for strains and tensions surrounding the general orientation of the present regime of drug control and the international Conventions which reside at its heart. These Conventions are organised around two core imperatives – one that is restrictive in nature, and aims to limit access to controlled drugs and to prevent their manufacture, distribution and possession for pleasure, recreation and entertainment; the other is enabling in nature, and aims to ensure the availability of controlled drugs for medical and scientific purposes. The art of good drug control, within the parameters set by the Conventions, is to find an appropriate, humane and effective balance between these twin objectives.
Historically, however, it has been the repressive pole that has been prioritised, though present debates are increasingly highlighting the need to modify the balance of the system in order to affirm the importance of the principle of health. The scheduling of new substances and proposed changes to the classification of others already scheduled are, in addition to the technical issues involved, providing new contexts for the airing of these wider issues.
Moreover, the emergence of multiple new forms of drugs and intoxicants in the shape of New Psychoactive Substances (NPS) has introduced an unprecedented urgency into the problems of scheduling, with many states parties perceiving themselves to be under siege, and finding the current process too slow and too cumbersome to respond to a fast-moving recreational drugs market and the technological developments underpinning it. The Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the Convention on Psychotropic Substances of 1971 both possess provisional scheduling measures, which can in theory be initiated in order to meet urgent problems, and which permit controls to be applied pending assessment by the World Health Organisation (WHO). The Single Convention allows for both discretionary and mandatory provisional controls to be applied, while the Psychotropics Convention allows only discretionary scheduling, which countries can decide not to apply. At the 2014 Commission on Narcotic Drugs (CND or Commission), the UK initiated provisional controls under the Psychotropics Convention in respect of mephedrone, citing widespread illicit use and the success of its domestic controls as the primary reasons for doing so.
However, a major problem with provisional scheduling in general is that substances are subjected to controls prior to a thorough scientific, medical and public health examination by the WHO’s Expert Committee on Drug Dependence (ECDD), a body composed of specialists in these fields. Such circumstances may pose a potentially serious set of challenges for the health-related pole of the system should substances be inappropriately classified, playing into the sense of regulatory panic that threatens the re-balancing of the UN drug control system. This was much in evidence at the 57th CND. The question of provisional controls is further discussed in the following pages.
The approaching United Nations General Assembly Special Session (UNGASS) on 'the world drug problem' of 2016 may provide an opportunity for the re-examination of current theory and practice in relation to scheduling, and to the elaboration of improved arrangements. Amongst the most prominent of present stresses are disputes surrounding the proper role of UN drug control bodies in the scheduling process – especially those of the International Narcotics Control Board (INCB) and the WHO. However, we will suggest that the part played by the CND and states parties is also fraught with difficulties.
• Scheduling has become a flashpoint for tensions within the UN drug control regime.
• The WHO, mandated to make scheduling recommendations under the 1961 and 1971 treaties, has been marginalised. This conflicts with the intended re-balancing of the system towards health and human rights.
• Restrictive interpretations of treaty provisions have resulted in poor access to essential medicines. The WHO therefore has advised against scheduling ketamine, in developing countries often the sole anaesthetic available.
• The rapid expansion of NPS has generated a 'regulatory panic', and, for the first time, the provisional controls provided by the conventions have been invoked – these controls should be used with caution since they bypass the scientific review process.
• The role of the WHO's Expert Committee on Drug Dependence in scientifically reviewing substances for scheduling must be respected and adequately funded.
• The INCB oversteps its mandate by recommending controls for essential medicines and other substances like khat that contravene the WHO expert advice. This risks creating a parallel regime with the INCB and the CND calling on governments to schedule substances at national level.
• The broad discretion of the CND to reject the WHO recommendations should either be removed, or the CND should have to justify its decision under explicit and transparent criteria.
• The scheduling of cannabis in the UN system represents a historical anomaly, and should be reviewed at the earliest opportunity.
• The 2016 UNGASS on drugs provides an opportunity to re-examine this issue.