A ten-year review of INCB positions on drug policy

The INCB Watch is running a short series of posts to explore how the Board has changed – or remained the same – over the past decade or so. This post gives an overview of the areas we will analyse in the course of this project.

As recently as 2013 to 2014, during the Presidency of Mr. Raymond Yans, it was customary amongst the reform-minded elements of civil society to refer to the INCB as ‘the dinosaur of the international drug control regime’. This was owing to the Board’s obstinate refusal to countenance any form of change, or to engage meaningfully with civil society or human rights.

As Mr Philip Emafo, INCB President, declared in 2007: ‘Our mandate is not with civil society…We have a mandate to discuss with governments. We do not go about seeking information from outside.’ Over the ensuing ten years, much has changed at the INCB, most of it for the better. The Board now undertakes a dialogue with civil society at each CND. In addition, the Board met with civil society delegates in May 2018, in order to discuss the medical and non-medical uses of cannabis. This increased involvement with critical civil society appears to have influenced the Board’s approach to its mandate, which had long been interpreted in the most conservative of ways.

One of the most important progressive developments is INCB’s move from a ‘neutral’ stance on the use of the death penalty for drugs-related offences to a position in which it advocates for State Parties to abandon the use of this practice. More recently, the INCB has also condemned extrajudicial killings of suspected drug offenders – although after intense pressure from civil society – as ‘a serious breach of the legal obligations to which the Philippines is held by the three UN drug control conventions and by the corpus of international legal instruments to which the country has adhered’.

Another major change relates to the INCB’s position on decriminalisation. In 2015, the Board concluded 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… That some countries have chosen incarceration rather than treatment has been a denial by governments of the flexibility that the treaties provide’. Going a step further in supporting the decriminalisation policy, the INCB spoke at a side event at the 58th session of the CND on decriminalisation in Portugal.

Similarly, there has been a noticeable difference of tone on medicinal cannabis. In 2013, the INCB President had pronounced: ‘If such “medical” schemes are not well managed and supervised, they could be seen as “backdoor legalisation” of cannabis for recreational use’. Recent publications by the Board have openly acknowledged the legality of medicinal cannabis use under the 1961 convention, and focused instead on the technical, administrative and legal factors involved.

On harm reduction, the INCB has remained timid on drug consumption rooms. The Board was highly critical of this intervention in the past, declaring that ‘Drug injection rooms contravene the major principle of the treaties’. In 2016, the Board’s stance softened somewhat, at least in terms of the tone of its remarks, limiting its comments to technical and legal questions, implying that when certain conditions are fulfilled, these facilities do operate in line with the drug control treaties. In 2017, however, the Board again expressed reservations concerning the fact that users of the facilities acquired their drugs prior to entering the drug consumption rooms, and utilising stigmatising language such as ‘drug abusers’ – representing subtle indications of a retraction of the 2016 position.

All of these changes are linked to a broader support for drug policies based on human rights, about which the Board has been increasingly vocal in its recent annual reports. Nonetheless, the rhetorical support for human rights, while welcome, is at times highly limited in its practical application. The human rights of people who use drugs are routinely abrogated in the violence to which they are subjected by both police and traffickers. Moreover, traditional populations cultivating psychoactive crops such as cannabis, opium and coca often suffer internal displacement as a consequences of drug policies, and crop-eradication measures which generate impacts on human and animal health and the environment. The failure of the Board to come to grips with these measures, as well as with the gap between high level principles negotiated at UN meetings and the practices on the ground, represent considerable shortcomings in the performance of the INCB.

The organisation has come a long way since the days of Emafo and Yans and a refusal to discuss the topic of human rights, but there remains some way to go before the Board can become the champion of human rights and public health it appears as in its rhetoric.

Stay tuned to read the next posts within this blog series!