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2/3 The IDCR - The International Narcotic Control Board (INCB)

  • Benjamin-Alexandre Jeanroy
  • May 20, 2016
  • 18 min read

In the essence of its creation by the 1961 Single Convention on Narcotic Drugs, the functions of the INCB “were intended to be the monitoring and control of the import and export of narcotic drugs (plus cannabis and cocaine) through a system of individual governments estimating their need for these drugs for ‘scientific and medical’ reasons and the Board authorizing the growing of the plants in particular countries to supply this need.” (Fazey, 2003) At the time, its primary purpose was indeed limited to “license the legal production of opium around the world for medicinal purposes.” (Ibid.)

However, under the 1971 and 1988 Conventions the mandate of the Board was significantly enlarged. Nowadays, its current operational outtake include “reporting on trends in drug trafficking and use, monitoring precursor chemicals, as well as commenting on policy development among UN Member States, particularly if INCB members consider there has been a deviation from the treaties and Conventions.” (Ibid.)

In this regard, the Board can “request explanations” and “call upon governments to adopt remedial measures.” (Bewley-Taylor & Fazey, 2003) Perhaps, the most significant instrument remains the ability of the Board to “to call attention of the Parties, the Council and the Commission’ to any actions which they think are undermining the 1961 single convention.” (Fazey, 2003) For decades the members of the INCB have therefore served as the “guardians” of the respect of the U.N. drug control conventions, at least in the way the members of the Board envision and understand them (1).

The historical 'hard-line' position of the Board was well stated and demonstrated for example when Portugal, amid a terrible HIV epidemic, decided in 2001 to decriminalize all drugs while drastically shifting domestic drug control policies from a law-enforcement to a public health oriented approach. A move, subsequently over the years widely recognized as successful (2). However, shortly after the change in policy from the South European country, “members of the INCB flew to Lisbon to confront the Portuguese.” (Redmond, 2014) While the Board recognized “that the acquisition, possession and abuse of drugs had remained prohibited” (INCB, 2004) in the country, the INCB insisted that “the objective of the treaties is to prevent drug abuse and to limit the use of controlled substances to medical and scientific purposes.” (Ibid.) Another way of declaring that the Portuguese alternative policy did not meet these requirements. Further examples of the INCB dedication to uphold a very orthodox view (3) of the conventions will be detailed in further articles in relation with Uruguay and U.S. States shifting polices on cannabis market regulation systems and the difference of response by the Board in between the two countries.

Only recently, at the reconvened CND 58th Session, held on December 9, 2015, the INCB, through the voice - and probably the influence - of its current President Werner Sipp started to actually present a more balanced view and approach to the Portuguese drug control policy. At the CND session side event, “Public health as a basis for drug policy in Portugal”, President Sipp declared that the Portuguese initiatives - more than 15 years after its implementation - was to be considered as “a model of best practice as the UNGASS approaches.” (IDPC, 2016) Arguably, the INCB is starting to understand that it was in its best interest to recognize that the Portuguese policy was “fully committed to the principles of the conventions, having health and welfare at its core and applying a balanced, comprehensive and integrated approach.” (IDPC, 2016)

We can only imagine the possible urgent need felt by some members of the INCB, in the face of growing un-satisfaction and domestic alternative drug policy experimentations which clearly start to bypass the limits allowed by the current international framework (4), to become somehow more flexible towards policies that are still actually legally containable within the conventions. We would argue here that, although much welcomed, these comments come quite, perhaps, too late, as the inflexibility of the INCB over the years have resulted exactly to what most of its members probably dreadfully feared for so long: the truly tangible risk of seeing the current IDCR being systematically compromised.

We must understand however that such recognition from the Board, more than a decade after the implementation of a truly successful, international law abiding and humanly descent policy, does not equate to a paradigm shift. While facing increased debate and shifting new policies towards drug policy reforms which have “put the INCB on the defensive” (Lolmuller, 2015), the Board still intends to remind the international community, as in its latest report to date (2014), that portraying the international drug control conventions as “instruments of prohibition and punishment (is still a) misguided" interpretation. Feeling the wind blowing and changing, the INCB can only show slight retraction in regard to past attitude and policy view, still very much within the limits of the treaties it has fought to protect. The real question being if it is not already too late to save such an outdated regime.

Lately therefore, the Board has found itself in a binding position as it remains steadily decided to uphold and enforced the drug conventions while powerlessly witnessing clear breaches in spirit and its practice, which are testing worldwide the resistance of the IDCR. But one could argue that in regard to its mandate, to the composition of its members, and to its functioning, the INCB has not much choice in this regard, as we will demonstrate in the analysis of its published yearly reports.

  • Mandate

The Board is the self-described “independent and quasi-judicial monitoring body for the implementation of the UN international drug control convention.” (5) Such proclamation is rather emblematic of the way the Board considers its mission, as it often intends to enlarge the perimeter of its mandate. The later is defined by the 1961 Convention as “to limit the cultivation, production, manufacture and use of drugs to an adequate amount required for medical and scientific purposes, to ensure their availability for such purposes and to prevent illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs” and “to provide the mechanism for a continuing dialogue between Governments and the Board which will lend assistance to and facilitate effective national action to attain the aims of this Convention.” (UN Convention, 1961, Art. 9.4 & .5) The King County Bar Association (2005), rather rightfully described the INCB as serving “more as a panel to monitor adherence to the U.N. conventions rather than as an enforcement agency, but it often voices support for or objection to drug policy developments around the world”, although often with a distinct unequal reach to whom it cares for (6).

In parallel, a very important part of the mandate (7) of the Board is the necessity to ensure global access to essential medicine issued from currently illicit drugs. Despite this obligation, it is fundamental to highlight the dramatic failure in this regard due to the current “lack of access for 5.5 billion people to medicines containing drugs such as codeine and morphine, which means that 75% of the world’s population do not have access to proper pain-relief treatment.” (Travis, 2015)

  • Functioning

One way to understand how the INCB is able to function and work is to observe the Board funding mechanisms, as well as the behavior of its civil servants personnel corps. Contrary to UNODC, of which only about 10% of its precarious funding come from the U.N. central budget, the INCB is almost entirely provided by the U.N. Secretariat regular funds. It is entitled as such, , contrary to UNODC, because it is an institution created permanently by the state members through the drug control conventions. In this aspect, professional careers are much more secured in this institution than in many others in the U.N., especially UNODC, which could partly explain, the dedication, and long-serving terms of the Board personnel.

Researchers Damon Barrett and Manfred Nowak (2009) have noted that “independent oversight is (theoretically) an important aspect of a treaty-based system.” In this respect, several civil society organizations, such as the IDPC, have called several times over the years the INCB to remain within the perimeters of its mandate (8). Such calls are notably made in relation to “the Board’s questionable approach to drug policy.” (Ibid.) What is argued here is that the Board's argument in regard to its own importance would be perhaps more convincing if it decided to leave behind ideological views and care to ensure the compliance of national drug policies with international law, including human rights obligations. This, would actually make a valid case for the possibility of an extension “of the Board’s mandate, rather than limiting it, (coupled with) an invigorated Board membership.” (Ibid.)

This call from the IDPC came because during the course of its history, the INCB has several times stated that it will not work with civil society organizations. Most of its work is being done behind closed doors “despite the fact that it is not required to do so in the drug conventions.” (Barret & Nowak, 2009) As such, negotiations with country members and other U.N. agencies remain strictly private and important information is scarcely shared with the general public. We will further examine the lack of transparency and democratic accountability within the U.N. in later articles. However, in regard to the INCB case, we could argue here that the U.N. system runs on global taxpayers money and that decisions taken by the Board and country members should, to the very least, be transparently disclosed. The INCB demonstrates here, a fundamental flaw of the U.N. system operational practices, namely a cruel lack of transparency, accountability and inclusivity, most notably in the choice of its officer members.

  • The members

The INCB succeeded to the first drug control body set up by the League of Nations in 1929, and although created under the 1961 Single Convention, it only started its operations in 1968. Theoretically autonomous from national governments and other U.N. agencies, it is composed of 13 individual members. Among the members, 3 are chosen from a pool of candidates proposed by WHO and the remaining 10 are selected among a list proposed by signatory country members. The 'Officers' of the INCB are elected for a one year term (9) by the ECOSOC member states. They are usually mainly composed of “pharmacologists, pharmacists, lawyers, police officers and medical doctors” (Fazey, 2003) and for the year 2015/2016 its members are: Wei Hao (China), David T. Johnson (U.S.), Bernard Leroy (France), Richard P. Mattick (Australia), Alejandro Mohar Betancourt (Mexico), Jagjit Pavadia (India), Ahmed Kamal Eldin Samak (Egypt), Werner Sipp (Germany), Viroj Sumyait (Thailand), Sri Suryawati (Indonesia) Francisco E. Thoumi (Colombia) Jallal Toufiq (Morocco), Raymond Yans (Belgium) (10).

The IDPC, notes that “in addition to producing a stream of correspondence and detailed technical assessments arising from its country visits (all of which, like the minutes of INCB meetings, are never made publicly available)” (IDPC, 2012b) the INCB produces a yearly report which summarize its views and assessment on drug control domestic policies.

  • Annual Reports

The INCB (2014) defines one of its missions as to “regularly review the drug control situation in different countries and overall compliance by Governments with the provisions of the international drug control treaties.” As such, the INCB Reports, review every year such adherence - or lack of - from the conventions signatory member states. Paid on the UN central funds and therefore considered as 'independent' from national pressures, the INCB's annual Reports are published to "identify and predict dangerous trends” (INCB, 2014) when it comes to drug control. The Board has the possibility to call upon the WHO when expertise and scientifically grounded advice are deemed needed by the Board. It further produces an annual report listing its public activities and views on rising trends.

The Annual Reports form “a prominent part of the UN drug control system’s evaluation and reporting mechanisms alongside the WDR.” (Transform, 2012) As such, Transform explains that “the annual report is even more narrowly focused on process measures than the WDR" (Ibid.), reflecting the INCB’s historically inflexible interpretation of the drug treaties and views on member states’ compliance. In this regard, it is both arguably less objective and more politically constrained. These problems, combined with a relative lack of methodological rigour and expertise compared to the UNODC, "render it of negligible value in terms of evaluating the wider costs of international drug control.” (Ibid.) Which is a polite way to describe the reports as close to being useless.

Since 1998, with metronomic regularities (11) - some would say as a mantra - the Reports assert that member states need to have “a comprehensive, integrated and balanced approach to addressing the world drug problem” (INCB, 2014), which makes the sentence “resembles more of an incantation than a process of analysis.” (IDPC, 2014a) In this regard, one could argue that several policy experimentations that have notably taken place in Europe these past years could fit within that definition, while they have been systematically criticized by the INCB.

In regard to harm reduction services, and excepting this year recognition of the 'best practices' of the Portuguese drug control set of policies, “the INCB has always had a hostile, or at best uneasy, relationship with” (IDPC, 2014b) the concept. For example, in the 2014 Annual Report, the noticeable absence of needle and syringe programs (NSPs), only highlighted the little focus dedicated to Opioid Substitution Therapy (OST) and the complete absence of mention of the “Russian Federation’s ban on OST” (IDPC, 2014b) and of its disastrous health related consequences. This is arguably uneasily understandable as it as been demonstrated by countless researchers that the principle of harm reduction could legally find its places within the limits of the conventions.

In its 2014 Report, the Board also stated that “the United Nations drug control conventions (…) are the product of discussion and compromise and reflect a widespread consensus among States which today is evidenced by the fact that nearly every country on Earth is party to them.” (INCB, 2014) As such, we could argue here that the evidence we deem important to our point of view, is often the one we choose to look at. First, these conventions could be read in a more flexible manner than the INCB chose to, but perhaps more importantly, the consensus upon which the Board based its argument, is steadily desegregating, not solely in spirit, but also in practice throughout the world.

For the IDPC’s response to the 2014 INCB report, “the advent of regulated cannabis markets in Uruguay and some US states over the past few years has constituted a profound shock to the international drug control regime, with the differing views representing a fragmentation of the drug control regime. This has been largely met with a collective denial, not only in relation to cannabis but to Novel Psychoactive Substances (NPS), the internet, access to essential medicines, the centrality of health and human rights in drug control, and the fast-approaching 2016 United Nations General Assembly Special Session (UNGASS) on drugs.” (IDPC, 2014a) As such, while the INCB is capable of accounting for growing alternative experimentation policies and new drug trends, it is virtually incapable of doing anything about it.

In regard to this powerless feature and growing un-synchronicity with reality, reactions on the 2015 INCB Report (12), by researcher Daniel Wolfe (2013) pointed out four major “failures” of the last publication of the Board:

  • “No criticism on bans on essential medicines.” The author is notably referring here to the mention by the Board of the case of methadone, produced by Baltic countries laboratories and illegally exported to Russia. But what the Board neglects to note in its report is that this product, remains banned in Russia despite a Russian HIV epidemic, as-well as the global and widespread use of the substance to lower health related risk among injecting substance users. Recognized by the WHO on their list for essential medicines (13), and UNODC (2012e) as “an efficacious, safe and cost-effective modality for the management of opioid dependence”, international civil servants unanimously acknowledged the critical need for such substances for the treatment of heroine dependent users;

  • “Groundless criticism of medical marijuana.” The Board, has arguably legally unrightfully, criticised on several occasions cannabis medical application, including in Canada, Holland and several U.S. states, providing no scientifically grounded nor rational counter-arguments to these health related practices;

  • “No scrutiny of what countries mean by drug treatment.” The author is referring here to the 220 000 people placed worldwide, but in the overall majority in Asia, within compulsory drug 'treatment' centers. Indeed, the Board does neither question the involuntary principle of entry point, the lack of individual treatment on which the centres are based, nor does it mention the numerous human rights violations occurring within these centers (HRW, 2012). Here again, the INCB finds itself isolated from the rest of the U.N. system as UNODC and other agencies have published in 2012, a call “to close compulsory drug detention and rehabilitation centres without delay.” (UNODC, 2012b)

  • Finally, “No criticism of executions in the name of drug control.” After a visit to the Saudi Kingdom, the Board congratulated the country for its “commitment” to the fight against drugs. Forgotten to be mentioned by the INCB is the Saudi Arabia record of use of capital punishment for drug offenders. According to the 2013 Human Rights Watch report, the Wahhabi country has publicly executed 16 persons in 2012, including citizens condemned for drug offenses.

Perhaps what strikes the biggest blow in the legitimacy of the Reports was reported during the 2015 CND 58th Session. participants noted that “there continues to be an overall low rate of response to the annual report questionnaire.” (58th Session, Item 4, 2015) This actually reflects a 45% response rate among member states. Additionally, of the returned questionnaires, 33% were only “partially” filled in, while the remaining were filled in “substantially.” This causes trouble if, correctly stated, the actual response rate on which is based the entire Annual Report, amount to less that 35% of countries, which themselves have filled at least only half of the questionnaire.

This obvious bias could not be even more distorted, if within this 35% of countries a majority of them were not almost exclusively coming from the Global North. As such, the CND itself recognized that “the lack of objective information from many parts of the world remains a major challenge to ascertaining the extent of illicit drug use, monitoring trends and adequately responding to the world drug problem with evidence-based strategies and interventions”. In the words of the CND itself, “global and regional information on the extent of drug use (…) remains sketchy.” (CND, 2015, 58th session, Item 4)

Finally, not all seems lost as 2015 showed for the first time the start of a more reality-based view from the Board. At the occasion of the 2015 Board 114th Session, current President Werner Sipp declared that: “the treaties do not require the incarceration of drug users, but rather provide for alternatives to conviction or punishment for those affected by drug abuse, including treatment, education, after-care, rehabilitation and social reintegration. That some countries have chosen incarceration rather than treatment has been a denial by Governments of the flexibility that the treaties provide.” (IDPC, 2015i) This declaration, can sound astonishing to many, coming from the very organization that in its annual reports has been widely critical of the principle of decriminalization, or any-non punitive measures towards people who consume illicit drugs for that matter. Joining the call of other implicated U.N. agencies, this statement is therefore a very positive step, which could help pave the way towards global recognition of the principle of decriminalization at the upcoming 2019 U.N. Review.

Ultimately, the INCB, seems to however remain a “bastion of certainty in an increasingly relativised world.” (IDPC, 2014b) Continuously, the Board has “often increase(d) tensions around interpretations instead of resolving them.” (14) (Bewley-Taylor & Jelsma, 2012) However, one could hope that the recent declaration of INCB current President will show a long-awaited more flexible shift in regard to domestic policies that take into account the negative consequences of the current IDCR and intend to remedy to them. The Board should be guided "by a spirit of co-operation rather than by a narrow view of the letter of the law.” (Ibid.)

 

(1) The INCB notably states that “security and stability are basic requirements for solving national and international problems that are of an economic, social, cultural or humanitarian nature and in promoting and encouraging respect for human rights.” (INCB, 2014) The Board, while draping itself within the classic empty argumentation of the IDCR, did not precise of which “security” it refers, what it means by “stability”, nor how it intends to promote and encourage respect for human rights when its written contribution have so little mentioned them in the past.

(2) See: Greenwald, 2009; Transform, 2014.

(3) For the Board, “reducing or eliminating the violence and corruption associated with the illicit drug economy must be achieved through the proper and full implementation of the international drug control conventions” (INCB, 2014), but it could, again, be argued in depth that the interpretation and the implementation of the Conventions, is itself responsible with the violence created by the criminalization of the trade of specific substances.

(4) The INCB President further stated that the Portugal legislation of decriminalization was “Based on the principle of proportionality and respect for human rights” and that it showed “positive results without going outside the present drug control system or legalising the use of drugs.” (IDPC, 2016)

(5) See: INCB website, ‘Mandate and Functions”, https://www.incb.org/incb/en/about/mandate-functions.html

(6) For example, the INCB warned in 2005 of “threats to middle-class Americans” by drug traffickers of a new, inhalable form of heroin coming from Colombia. (Kirk, 2004) Such illicit mean having yet to surface - the principle in itself, would sound quite preposterous for anyone which understand that such form of consumption defeats all purpose in regard to the way heroin users are keen on not wasting any of their precious substance - this does not make the Board carrying for other forms of potentially very harmful forms of consumption that have been rising in the Global South, such as the ‘paco' in Argentina. Such forms arguably existing because of the prohibition of other substances and forms of consumption.

(7) “One of the most fundamental principles underpinning the international drug control framework, (…) is the limitation of use of narcotic drugs and psychotropic substances to medical and scientific purposes. This legal obligation is absolute and leaves no room for interpretation.” (INCB, 2014)

(8) In reference to the INCB’s “mission creep”, see: IDPC, 2008. p. 8.

(9) See INCB website, INCB Membership, https://www.incb.org/incb/en/about/membership.html

(10) Ibid.

(11) Similarly seemingly unsynchronized with reality, the fore-note of the 2014 INCB Annual Report by President Lochan Naidoo stated: “as reflected in the preamble to the Single Convention on Narcotic Drugs of 1961, the goal of the United Nations legal framework on drugs is the safe-guarding of the health and welfare of humankind.” (INCB, 2014)

(14) In this regard the INCB has often triggered and increased tensions instead of facilitating a constructive dialogue to try to ease or resolve them, contradicting its remit “to maintain friendly relations with Governments, guided in carrying out the Conventions by a spirit of co-operation rather than by a narrow view of the letter of the law” See: Commentary on the Protocol amending the Single Convention on Narcotic Drugs (UN Convention, 1973, p. 11)


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