The INCB and cannabis
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.
From: The International Narcotics Control Board: Current Tensions and Options for Reform, IDPC Briefing Paper 7, February 2008
In 2003 the INCB was highly critical of UK government’s decision to re-classify cannabis from a Class B to a Class C drug. This means that possession of the drug remains illegal but, unless there are aggravating factors, is not automatically an arrestable offence.
In a letter to Board, Secretary Herbert Schaepe, UK Under Secretary of State for Anti-Drugs Co-ordination and Organized Crime, Bob Ainsworth, noted that the Board had used alarmist language, omitted any reference to scientific evidence on which the decision to reclassify was based and presented the decision in a misleading way to the media. (1) During questioning on the issue by a House of Commons Select Committee, Ainsworth commented that the Home Office was "…astonished at what was said in that regard. I do not know what legal basis there was for the comments that were made or what research was put into the announcement that was made... I do not know what legal advice they have taken with regard to our changes of classification on cannabis…I think UN bodies ought to base their pronouncements on evidence, fact and legal basis, and not on reaction and kneejerk comment. It certainly seemed to me that that was exactly what they were doing. If they have some evidence that anything we have done is in any way in contravention of international Conventions, they had better let us know. I do not believe they have, and I do not believe there is any justification for the comments that they made." (2)
The Board, in its 2001 report, dedicated a special section to 'Control of Cannabis' warning of an increased tension between expanding tolerance practices and strict treaty adherence. The INCB noted "some shifting towards a more liberal cannabis policy in several developed countries," specifying that in Italy, Luxembourg, Portugal and Spain, "possession of cannabis for personal consumption is not considered a criminal offence, and acts preparatory to personal consumption, such as acquisition,
transportation and possession of cannabis are not penalized. Only administrative sanctions apply to those acts." (3) The report also worried about legislative changes then under consideration in Belgium, the United Kingdom and Switzerland.
INCB criticism of domestic cannabis policies deemed by national authorities to be in line with the UN Conventions has been something that the Dutch have long lived with. Indeed, despite the flexibility and interpretative variation within the treaties the Board regularly criticizes the Dutch coffee shop system. In its Annual Report for 1997 it went so far as to say that it constituted "an activity that might be described as indirect incitement." (4) Under the present arrangement in the Netherlands the possession of cannabis remains a statutory offence, but the government employs the "expediency principle" and has issued guidelines on the use of discretionary powers that assign the "lowest judicial priority" to the investigation and prosecution of cannabis for personal use (up to 5 grams). The guidelines further specify the terms and conditions for the sale of cannabis in authorized coffee shops, whereby the sale of up to 5 grams of cannabis per transaction is tolerated and a coffee shop is permitted to hold up to 500 grams of the drug. The result is de facto decriminalization of personal use.
Dutch authorities contend that the policy operates within the letter of the conventions. For example, a good legal case can be made that the law and implementation strategy are permitted under Article 36 of the Single Convention concerning penal provisions. As one expert notes "The Single Convention… [does] demand criminalization of possession, trafficking, dealing, cultivating, and producing soft drugs as well as hard drugs. This obligation is met in Dutch legislation in the Opium Act." "But," he continues, "there are no clauses in the relevant UN conventions that concern the actual enforcement of the legislation" (Original emphasis.) (5)
Furthermore, the Dutch assert that they are in compliance with the 1988 Convention’s requirement that parties make the possession of drugs for personal consumption a criminal offence under domestic law because it says nothing about the scope of the required enforcement. (6) Article 3 of the 1988 Convention also contains an escape clause allowing states to apply constitutional principles and basic concepts of their legal system; a position that was highlighted in a reservation made by the Netherlands at the time of signing. (7)
Despite the continuing legal dispute regarding the latitude within the conventions and the Board’s own lack of mandate to monitor the implementation of the 1988 Convention, the INCB has for many years pursued a narrow legal interpretation of the conventions and repeatedly expressed its strong objection to any move towards decriminalization of possession for personal use, lowering law enforcement priorities for cannabis or reclassification (placing cannabis under a lighter control regime than heroin under domestic legislation).
 Full account of the Select Committee on Home Affairs, 20 March 2003.
 Report of the International Narcotics Control Board for 2001, para 214.
 Report of the International Narcotics Control Board for 1997, United Nations, para 28. In other reports the INCB limited itself to buying, stocking and selling cannabis products for non-medical use does not conform with the provisions of the 1961 Convention." (1996 and 2001 annual reports).
 Jos Silvas, "Enforcing Drug Laws in the Netherlands," in Ed Leuw and Ineke Haen Marshall (Eds) Between Prohibition and Legalization: The Dutch Experiment in Drug Policy, Kluger Publishers, 1994, p. 49.
6 Neil Boister, Penal Aspects of the UN Drug Conventions, Kluwer Law International, 2001, p. 130, note 241.
7 See: United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988: Treaty adherence as of 13 July 2007
From: The International Narcotics Control Board: Current Tensions and Options for Reform, IDPC Briefing Paper 7