The INCB, rather than making harsh judgements based on a selective choice of outdated treaty articles, should use its mandate more constructively and help draw attention to the inherent contradictions in the current treaty system with regard to how plants, plant-based raw materials and traditional uses are treated.
The International Narcotics Control Board (INCB) remains one of the least transparent and most secretive of UN bodies. It meets in secret, and while agendas can now be found on the INCB’s website, no minutes of its meetings are published, nor are the analyses by which it arrives at its positions on policy issues.
The Report of the International Narcotics Control Board (INCB) for 2010 reveals not only the INCB’s continuing habit of exceeding its mandate, but also an enthusiasm for censuring what it regards as moves towards the liberalization of policy practice while preferring to remain silent on other areas that are within its purview and merit attention. This IDPC report concludes that this year’s Report does reflect some positive changes in the INCB’s outlook, but these are still outweighed by familiar negative practices and positions.
On several recent occasions, the International Narcotics Control Board (INCB) has refused to offer an opinion on sanctions that violate international law – even if those sanctions are imposed in order to comply with the drug control treaties. This struck many as odd. As a quasi-judicial entity, one would have expected the INCB to know that the death penalty for drug offences is not permitted in international law. Or that the UN Human Rights Committee, another UN quasi-judicial mechanism which oversees the International Covenant on Civil and Political Rights, had already called for its abolition in Thailand. Apparently not. In response to emails and letters of concern, the INCB said that criminal sanctions are the 'exclusive prerogative' of States.
The response to the Board’s Annual Report for 2011 is organised under 5 inter-related headings: issues surrounding the Board’s homage to the Hague Opium Convention; the flaws within its thematic chapter on ‘social cohesion, social disorganization and illegal drugs’; the INCB’s hostility towards the endeavours of Bolivia to adjust its position towards the Single Convention on Narcotic Drugs and coca; the continuation of mission creep and a proclivity of the Board to operate beyond its mandate and the reoccurrence of selective reticence, specifically the lack of comment on issues relating to human rights and harm reduction.
Recent years have seen a growing unwillingness among increasing numbers of States parties to fully adhere to a strictly prohibitionist reading of the UN drug control conventions; the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), the 1971 Convention on Psychotropic Substances; and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
In a new report released in February 2008 by the International Harm Reduction Association (IHRA), the INCB comes in for some heavy criticism for being overly secretive, closed to external dialogue with civil society, and out of kilter with similar agencies in other UN programmes. IHRA also debunks the INCB’s defence that it is ‘unique in international relations’.
Reflections upon this year’s CND are mixed. On the one hand, some states went further than ever before in openly challenging the current regime on the grounds that, after a century, it needs modernising. That the government of Uruguay is currently considering a domestic policy on cannabis that would put it in breach of the Single Convention shows that, in one instance at least, we have moved beyond rhetoric and posturing.
This briefing paper brings together material and analysis from a number of recent reports that raise questions about the role and functioning of the INCB. The IDPC analysis is that the Board mixes a rigid and overzealous approach to some aspects of its mandate, while showing a selective reticence in others. These inconsistencies do not arise automatically from the structure or role of the Board, but from the operational and policy decisions of its officers and members.
Despite its unprecedented nature within the history of the international drug control regime, and regardless of warnings to the contrary, the Plurinational State of Bolivia’s withdrawal from the 1961 Single Convention on Narcotic Drugs on 1 January 2012 did not result in a collapse of the United Nations (UN) based control system. That said, there is a strong case that, although marking the centenary of the regime, 2012 will be seen as the beginning of the end of the treaty system in its present form and the re-structuring of a policy world apparently so cherished by many members of the International Narcotics Control Board.
As jurisdictions enact reforms creating legal access to cannabis for purposes other than exclusively “medical and scientific,” tensions surrounding the existing UN drug treaties and evolving law and practice in Member States continue to grow. How might governments and the UN system address these growing tensions in ways that acknowledge the policy shifts underway and help to modernize the drug treaty regime itself, and thereby reinforce the UN pillars of human rights, development, peace and security, and the rule of law?
Drug policy reform is currently higher on the international agenda than it has been in recent memory. With a United Nations General Assembly Special Session (UNGASS) on drugs set for 19-21 April 2016, the prominence of this issue will further increase. Significant legal and policy reforms at the national level have taken place in recent years that pose considerable challenges to the international legal framework for drug control, and beg important questions regarding states’ international legal obligations.
A growing number of nations are developing policies that shift away from the prohibition-oriented failed approach to drugs control. Ultimately however nations will need to reform the overall UN based global drug control framework of which practically all nations are a part.
A report published in March 2007 by the Canadian HIV/AIDS Legal Network and the Open Society Institute Public Health Program, strongly criticises the INCB. It accuses the Board of becoming 'an obstacle to effective programs to prevent and treat HIV and chemical dependence'. “Nearly one in three HIV infections outside Africa is among people who inject drugs. The International Narcotics Control Board could and should be playing a key role in stopping this injection-driven HIV epidemic — but it’s not,” said Joanne Csete, Executive Director of the Canadian HIV/AIDS Legal Network and co-author of the report.
On 29 June 2011, the Bolivian government denounced the 1961 Single Convention on Narcotic Drugs as amended by the 1972 Protocol, indicating its intention to re-accede with a reservation allowing for the traditional use of the coca leaf. This decision was triggered by Bolivia’s need to balance its obligations under the international drug control system with its constitutional and other international legal commitments. The move follows the rejection of Bolivia’s proposal to amend the Single Convention by deleting the obligation to abolish coca leaf chewing (Article 49) earlier this year.
The international drug control regime is facing the most profound challenge of its existence. Member states have for some time been experimenting with new responses to the ‘world drug problem’; however, the advent of legally regulated cannabis markets has resulted in a ratcheting up of these challenges to expose the system to new levels of strain. With the 2016 UN General Assembly Special Session (UNGASS) on the world drug problem fast approaching, how will the international community make use of the opportunity it provides for a free and open debate?
David Bewley-Taylor, Martin Jelsma, Christopher Hallam
16 June 2014
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.
Since 1909 the international community has worked to eradicate the abuse of narcotics. A century on, the efforts are widely acknowledged to have failed, and worse, have spurred black market violence and human rights abuses. How did this drug control system arise, why has it proven so durable in the face of failure, and is there hope for reform?