Informal NGO dialogue with the President of the INCB at the 59th Session of the CND

March 18, 2016

Werner Sipp, President of INCB: Thank you VNGOC for this meeting and I look forward to this dialogue and to continue our cooperation – both here in Vienna and in our country missions. Your inputs and insights have always been valuable, and we appreciate them in various contexts in all regions of the world. NGOs have been instrumental in implementing drug policies in many countries, especially in the areas of awareness raising, treatment and rehabilitation at the grass roots level. As new challenges have emerged, the international community must seek new ways of cooperation, including with civil society and the NGO community. In recent years, the NGO forums during CND have provided a platform for shared understanding. The drug problem is complex and multi-faceted, involving different social, cultural and political environments. Limited access to employment, violence, etc, are factors that impact the drug problem. INCB has underlined that a comprehensive and balanced approach must take into account all of these factors. Like to acknowledge the work of a number of pioneering NGOs who work on the topic of access to medicines, something which the INCB has been advocating for many years.

Questions:

Katherine Pettus, IAHPC (and VNGOC Vice-Chair): What specific recommendations are INCB making to improve the situation with regards to access to medicines? What is the role of WHO?

Werner Sipp: In our reports, we have identified that there is a major imbalance in the availability around the world. We then sought to identify the impediments behind this problem – we found that they had shifted since our last reports in 1995 and 2010. There is a shift in the perception of governments. We received answers from more than 100 governments. A major problem is the lack of training and awareness of people working in the health field, while other legislative barriers are no longer seen as such a big problem. We are calling upon governments to change their systems and legislation to reduce these impediments. These medicines must not be unduly restricted, so we are focusing on these impediments. We feel that our recommendations, in our report, are practical ones – yet we acknowledge that they are difficult to implement for many countries, especially ones which have a lack of personnel, institutions and knowledge. This is why it is a matter for the international community to help these countries. The main call on the international community is to help those countries who are in need.

WHO has an important role to play, and we are in constant dialogue with them and encouraging them to engage. For example, they can organise training seminars in countries in need. What we can do as INCB is show a country how to better assess their needs and estimate – but the medical training is not our capacity, so in this case we must call on WHO to help. I had several meetings with WHO and they are ready to work together with us. For example, we plan to deliver a programme of trainings – including regional workshops in East Africa (next month) and in South East Asia. INCB reports draw attention to these issues, but this is also one of the first issues we discuss with partners during country visits as well. In each country, the reasons and impediments are different. This must be assessed by the respective governments, with our assistance. We show them that they need to look at their own capacities, systems and legislation. The result is different in each country, so we must be modest – we cannot change the situation immediately, but we can help.

Ross Bell, IDPC: What are the activities or circumstances for which the INCB is recommending alternatives to incarceration?

Werner Sipp: The views of INCB start from the conventions themselves: these do not require a state party to convict or punish drug users. In all three conventions, there are articles and provisions which give rooms for alternatives. So these are not the conditions of INCB, but the conditions of the conventions: it must be a minor offence, and they must be a drug user. In this case, there is in all three conventions a possibility to refrain from punishment, not just from incarceration – all kinds of punishment, including administrative punishment. This is all part of proportionality. The conventions also say that serious offences must be punished more seriously – but that minor offences do not need to be punished in this way. So this balance exists in the meaning of the conventions, which give discretion for governments to determine the nature and gravity of the response, and to refrain from any punishment or conviction in favour of alternative measures: education, treatment, rehabilitation, early intervention, and a whole range of different measures which can be taken instead of punishment. This is not the position of INCB, it is the text of the conventions. We therefore are encouraging governments to use these flexibilities which, in our view, are not being sufficiently utilised. Last year, in a CND side event organised by Portugal, they asked our position on the Portuguese model. I argued the same way, that their ‘dissuasion commissions’ are perfectly in line with what the conventions are allowed to do. We encourage governments to make more use of these flexibilities.

Deborah Small, National Advocates for Pregnant Women (USA): How would you categorise minor offences among women?

Werner Sipp: Our recommendation would be exactly the same. Governments have to apply the principle of proportionality, and must consider the gravity of the offence caused. If these offences are of minor gravity, then they have the option not to apply harsh punishments. But this is a general problem. We acknowledge that within drug policy there are very specific gender problems, and Chapter 1 of our next report will be dedicated to drugs and women – both drug use among women but also the policy response of governments to the specific situations of women. We recognise that this is a topic of interest for the current debate, and this is why we will take this up.

Arthur Dean, USA: We have seen several countries breach the conventions beyond the flexibilities that you have described. What are you or the member of the Board planning to do about these countries that are definitely in violation?

Werner Sipp: I presume you are thinking of some states in the USA and also Uruguay, which have regulated cannabis markets. This is a matter of great concern for INCB, as our role is to look at the national drug policy and to decide whether or not it is in compliance with the treaties. Our position is clear: there is the fundamental obligation of states to limit the use of drugs exclusively to medical and scientific purposes, and to establish the non-medical use as a punishable offence. This is very clear, there is no flexibility. Flexibility exists later when it comes to the reaction and response to non-medical use – there we have several levels of flexibility. States are not obliged to penalise people and they can refrain from punishing. But besides that there are many aspects and obligations that are subject to the constitutional principles of the country. Other obligations, such as for punishing possession for personal consumption, are subject to the general principle of legislation of the country. This therefore gives a large room for manoeuvre for the country, and there are many different possibilities. But the basic obligation is to limit the use to medical and scientific purposes. In Uruguay, I had a very good dialogue with the government. The first statement was always that what they are doing is outside of the conventions, by regulating and permitting the non-medical use. The conventions do not allow for an escape clause, i.e. for experimentation. But, at the same time, the conventions are in the hands of governments. The states are the owners of the conventions and in principle they can change them. But as they stand, this is a very clear statement.

Richard Elliott, Canadian HIV Legal Network: I appreciate your comments on the limits of the flexibilities in the treaties for regulation and legalisation, and I think this is correct as a matter of law. For those countries who are in breach or may soon be, what role do you see for the INCB in a discussion of proposals to amend the treaties?

Werner Sipp: Our role in this case is rather difficult. On the one hand we have the mandate and obligation to say what is and isn’t in the conventions, but we also have a mandate to assist governments to comply with the conventions. So we must work with governments to see if there was a way that they could come back. But this is a political issue. But our mandate it to assist governments to comply. If they continue to be in breach, we have the obligation to keep the dialogue open. When I visited Uruguay, I asked them how they implement their models, what are the problems and what is the impact on consumption, on criminality, on health systems? These are all things, independently of the fact that they are not in line with the conventions, that are of interest to us and we continue to enquire as part of our continuous dialogue with these countries.

David Borden, Stop the Drug War (USA): Many UN agencies, including INCB previously, have supported the idea that the conventions should not be changed. Why is this, when there are provisions that the conventions can be revised or updated? Also, what is your reaction to the idea of irreconcilable conflicts between the drug conventions and human rights obligations – do you agree that the human rights obligations come first? Finally, the conventions never define medical and scientific purposes, so these terms are open and could experiments in terms of new policies be allowable?

Werner Sipp: The drug control treaties have as their ultimate objective to promote the health and welfare of mankind, which is a human right. So there is no contradiction. The international community, in drafting these conventions, said that health and welfare was best ensured by limiting drug use to medical and scientific purposes. So in our eyes there is no contradiction between drug control and human rights. But in implementation, there can be of course. There are some forms of treatment that we are very skeptical that they are in line with human rights. It is a very difficult question.

Regarding changing the conventions, we are modest and this is not our business. This is the task and responsibility of the states. We will then be bound to monitor the changed conventions, as they are drafted and signed by the states. So we cannot tell states not to change the conventions. It is possible that states may come up with other options. If the international community makes another convention, or changes the existing ones, we would still work with these. So we would not promote nor object to this.

On the concept of scientific experimentation in policies, this recent article by a member of the INCB was written in his personal capacity, and has not been discussed by the Board yet. I personally think that the concept of science is not defined in all its extent. You cannot, as a legislator, define what is science in a way that will not change. Science changes, and it is different now from in 1961. Medical methods have changed. So these are open concepts and they must be open and must be adapted. You cannot define what is scientific or medical use – it depends on what the medical community tells us is an accepted method. We will discuss it further at the INCB meeting in May.

Michael Kravitz, Veterans for Medical Cannabis Access (USA): Considering that cannabis is currently scheduled similarly to heroin, based on evidence from 1935, does this therefore prevent INCB from promoting cannabis as a medicine? What can or can’t they do?

Werner Sipp: We do not use the work ‘promote’, we just explain our views. If a substance is scheduled in the conventions, it can still be used for medical purposes. So this is OK. If this use is recognised, then it should be used. Whether cannabis can be used medically or has a medical, therapeutic impact, this is something we cannot decide. One mechanism is WHO, and we have urged them for a long time to make an assessment and tell governments what they think is the therapeutic usefulness of cannabis. Another mechanism is the respective governments say that this has therapeutic impact, then it can be used for medical use. This is also OK, provided that this happens in a certain framework given in the conventions. If it is prescribed, there must be a certain agency and certain regulations followed (which are not always followed in countries that have medical cannabis). So this is OK provided it is done in the framework and procedures in the conventions – we do not encourage nor prohibit it, we just explain that this is the meaning of the conventions.

Thanasis Apostolou, Diogenis Association: This is important information for states to see, so it needs to be published. The recent non-paper from UNODC was withdrawn, but this should become a real paper in order to make this position clear.

Werner Sipp: The UNODC paper was not made in conjunction with us, and is vague. I do not like the term ‘decriminalisation’, it is not well enough defined. The response to unlawful behaviour requires that the act is a criminal one, but the response does not need to be criminal. Our role in the lead up to UNGASS is to explain what I have said today in many fora, and what I will also say in the UNGASS itself. We try to show and explain to the governments the possibilities within the conventions.

End of meeting.

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