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.
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.
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.
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.
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?
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.
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.
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.
This note provides an overview of human rights and international law concerns raised by the 2011 Annual Report of the International Narcotics Control Board. These include questionable legal reasoning by the Board; the absence of broader human rights norms; problematic statements on specific issues; unqualified comments and support for policies despite human rights risks; and stigmatising language unbecoming a UN entity. These are patterns that are evident in previous Annual Reports.
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.
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 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.
Peter Reuter (RAND), Franz Trautmann (Trimbos Institute) (eds.)
15 March 2009
This report commissioned by the European Commission, found no evidence that the global drug problem has been reduced during the period from 1998 to 2007 – the primary target of the 1998 UNGASS, which aimed to significantly reduce the global illicit drugs problem by 2008 through international cooperation and measures in the field of drug supply and drug demand reduction. Broadly speaking the situation has improved a little in some of the richer countries, while for others it worsened, and for some of those it worsened sharply and substantially', among which are a few large developing or transitional countries. Given the limitations of the data, a fair judgment is that the problem became somewhat more severe.
At the Commission on Narcotic Drugs (CND) in March 2008 in Vienna three resolutions on cannabis were tabled. They were all clearly against 'lenient policies' in some countries depenalising or decriminalizing the use of cannabis. One of the resolutions called for the criminalization of drug abuse that would have significantly expanded the UN drug conventions.
The 2007 INCB Annual Report shows some signs of a more balanced approach by the INCB to the policy dilemmas around proportionality of sentences and harm reduction. While this is welcome, the Board still falls a long way short of what is necessary for it to play a positive and objective role in helping governments to find the right balance between their drug control obligations, and wider policy objectives related to social development, public health, and human rights protections. On the issue of the coca leaf especially, the INCB shows complete intransigence towards the issue of indigenous uses in the Andean region.
Where legal ambiguities and disagreement persist around cannabis policies, the INCB continues to make narrow legal interpretations of what is allowed under the UN drug conventions and repeatedly expresses its strong objection to any move towards decriminalization of possession for personal use, lowering law enforcement priorities for cannabis or reclassification.
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.