The Board has an important role in overseeing the system for the licit production and distribution of controlled substances for medical and scientific use, and ensuring that countries comply with their obligations under the treaties to prohibit the illicit market. The INCB mandate recognises that this role requires the Board to achieve a balance between these two primary functions, and other considerations such as the cultural and judicial norms of member states, the right to health, or proportionality in sentencing offenders. All too often, the Board has failed to ensure such balance in its activities and statements, bringing it into disrepute with many member states. This inflexible approach can be observed in four areas:
• Treaty interpretation
The INCB currently holds very rigid legal, and non-universal, interpretations of the conventions (in at least one case, in direct contradiction to the legal advice it has received). This fre¬quently results in problematic statements and positions within INCB annual reports and in private letters to national Governments. In acting as an inflexible guardian rather than a watchdog of the conventions, the INCB generates tensions with some member states and other parts of the international drug control system. Read more.
• Conflict between the INCB and WHO on scheduling decisions
Recent years have seen the INCB overstepping its mandate to provide unsolicited scheduling advice to member states. This is particularly problematic because in all such cases the Board’s recommendations contradict those coming from the WHO, the UN body responsible for providing technical advice to member states on scheduling issues.
• Mission Creep
While the INCB mandate is clearly laid out within the conventions, it is currently ex¬ceeding its authority and has over recent years illegitimately extended its role within the international drug control system. Among other places, evidence of this can be found in the current attitude of the Board towards member states, with whom it apparently sees itself as at least an equal, and other parts of the UN system (for example, WHO) of which it apparently regards itself as superior.
• Culture of secrecy
An issue that complicates all the above mentioned matters is the cloud of secrecy under which the Board operates. For instance, all the Board’s missions, communications and letters (thousands each year) are confidential. Furthermore, there are no observers allowed at the INCB ses¬sions and no minutes are available, even to member states. The result of such a culture of secrecy is that the INCB lacks any accountability procedure and has arguably become the least transparent and most secretive body within the UN. The secretariat of the INCB has often argued that its unique status within the UN system empowers it to operate this way. In fact, there are many UN mandated bodies with similar roles, that manage to operate more openly, and in closer co-operation with member states. The INCB needs to become a more transparent body, responsive to the concerns of member states, that contributes in a balanced way to helping policymakers navigate a course through the complex policy challenges that they face.
While some INCB activities – for example the promotion of access to essential medicines, and the call for proportionality in law enforcement – are very welcome, IDPC and its members have repeatedly expressed concern at the lack of transparency and balance in much of the work of the Board. We will continue to call for better and more open working methods for the Board, and for it to take a more balanced view of what constitutes a threat to the observance of the conventions. In particular, we will be calling on the newly elected members to demand that the Board secretariat is open to new methods of working, and a more constructive engagement with civil society and national governments.
