As drug war dissent mounts, U.N. agency rails against reforms it cannot stop

Although marijuana remains illegal in the Netherlands, in 1976 the Dutch government began tolerating retail sales of small amounts by so-called coffee shops. Thirty-eight years later, the International Narcotics Control Board (INCB), a U.N. agency that describes its mission as “monitoring and supporting Governments’ compliance with the international drug control treaties,” is still complaining about that policy. In its latest annual report, issued this week, the INCB notes that the Dutch “tolerance policy” (gedoogbeleid) “allows small amounts of cannabis to be sold and abused.” (INCB officials, like hardline drug warriors everywhere, define all recreational consumption of marijuana as abuse.) According to the INCB, such tolerance is intolerable: “The Board reiterates its position that such ‘coffee shops’ are in contravention of the provisions of the international drug control conventions.”

If the INCB does not like Amsterdam’s cannabis cafés, which are technically illegal, you can imagine how it feels about Denver’s state-licensed pot shops. Actually, you don’t have to imagine. INCB President Raymond Yans, never one to hold back criticism of governments he deems insufficiently zealous in suppressing the consumption of arbitrarily proscribed intoxicants, spells it out in black and white. “We deeply regret the developments at the state level in Colorado and Washington, in the United States, regarding the legalization of the recreational use of cannabis,” he writes. “INCB reiterates that these developments contravene the provisions of the drug control conventions, which limit the use of cannabis to medical and scientific use only.”

The “developments” to which Yans refers involved the elimination of certain criminal penalties by ballot initiative, which he says the U.S. government should not allow. Yet under our federalist system, states have no obligation to punish everything Congress decides to treat as a crime, and the drug control treaties say compliance is subject to “constitutional limitations.” So Yans is blowing smoke when he says the U.S. government is legally required to impose marijuana prohibition on recalcitrant states, something it has no power to do under our Constitution.

More generally, observes Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, “The INCB’s claim that its narrow, restrictive interpretations of the [drug control] conventions override domestic constitutional law cannot stand in light of the actual wording of the conventions.” The board’s insistence that all countries conform to its reading of the anti-drug treaties, regardless of what their own laws say, is of a piece with the INCB’s zero-tolerance scolding, the escalation of which may signal a worldwide re-evaluation of the never-ending, always failing war on drugs.

Although the INCB seems to see its role as whipping countries into line when they stray too far from the proper prohibitionist path, that function was not part of its mandate when it was created by the Single Convention on Narcotic Drugs in 1961. “The INCB was created to oversee the flow of narcotics internationally, making sure that countries can meet their licit requirements for essential pain medicines while monitoring to ensure that licit supplies don’t seep into the illicit market,” says John Collins, coordinator of the International Drug Policy Project at the London School of Economics. “The INCB fundamentally was created as a number-crunching and technocratic body that is supposed to provide technical assistance for international control efforts in a cooperative way. Its current role as global enforcer or ‘guardian’ of the treaties, as they like to call themselves, is not mentioned in any treaty.” Beginning in the 1970s, Collins says, the United States and other “ideologically prohibitionist states” transformed the INCB into a bully pulpit dedicated to promoting their agenda. As a result, he says, the board “is consistently willing to overstep its treaty mandate and advocate a set of policies that have no basis in either science or treaty law.”

A recent INCB position paper, for example, criticizes the Supreme Court of Canada for “permitting a ‘drug injection room’ to continue to operate in Vancouver.” The INCB is referring to Insite, a nonprofit, government-subsidized clinic where addicts inject drugs under medical supervision. Insite, which does not supply drugs and offers addiction treatment along with health care, aims to reduce overdose deaths, the transmission of blood-borne diseases such as AIDS and hepatitis, and other medical problems associated with unsafe injection practices. A 2011 study published by The Lancet found that overdose deaths had fallen by 35 percent in the neighborhood near Insite since the clinic opened, compared to 9 percent in Vancouver as a whole. “Insite saves lives,” the Canadian Supreme Court declared that year. “Its benefits have been proven.” The court ordered the federal health minister to continue granting Insite an exemption under Canada’s Controlled Drugs and Substances Act so that addicts could use it without fear of arrest.

That ruling was based on the court’s interpretation of the Canadian Charter of Rights and Freedoms. “The court said that the government had violated [drug users’] constitutional rights to security of the person, to liberty, and to life by denying [the] exemption,” Elliott says. “In other words, to extend a blanket criminal prohibition on drug possession so far as to even criminalize people using a health facility such as Insite is to violate human rights and is unconstitutional because it is overly broad and because it has a grossly disproportionate impact on the health of people needing such a service. These are fundamental principles of justice that form part of Canada’s constitutional law, and therefore any obligation alleged to exist under the drug control conventions is subject to them.”

The Single Convention on Narcotic Drugs says compliance is subject to “constitutional limitations” and undertaken with “due regard to [signatories’] constitutional, legal and administrative systems.” The 1971 Convention on Psychotropic Substances and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances contain similar provisions. The 1988 treaty says a country’s criminalization of possession for personal use is “subject to its constitutional principles and the basic concepts of its legal system.”

Furthermore, as noted in a 2002 memo from lawyers at the U.N. Drug Control Program (now subsumed by the U.N. Office on Drugs and Crime), harm reduction programs like Insite can be defended as fulfilling the treaty obligation to “treat, rehabilitate and reintegrate drug addicts.” Such efforts, the memo says, also would be consistent with a U.N. resolution calling for policies aimed at “reducing the adverse consequences of drug abuse.” Yet the INCB insists there is no such leeway, because safe injection sites “promote social and legal tolerance of drug abuse.”

The INCB takes the same stance regarding “safer crack kits,” which typically include a glass stem, a rubber mouthpiece, and brass screens; they sometimes also come with hand wipes, alcohol swabs, and lip balm. Richard Elliott’s organization explains that the kits are intended to “reduce the risk of burned or cracked lips and the associated risk of becoming infected with blood-borne viruses such as HCV or HIV.” But according to the INCB, governments that allow the distribution of such kits, like governments that tolerate safe injection sites, are failing to meet their treaty obligations.

“There is no legal basis for that position,” says Kasia Malinowska-Sempruch, director of the Open Society Global Drug Policy Program. “The drug control treaties limit certain drug-related activities to medical and scientific purposes. Public health is the driving ethos behind heroin-assisted therapy and supervised consumption rooms. This organization’s discomfort with harm reduction is ideologically driven, and it has nothing to do with the drug control treaties.”

If harm reduction is apt to irk the INCB, how can a country win the board’s praise? Ask the Saudis. In last year’s annual report, the INCB saluted “the commitment of the Government of Saudi Arabia to comply with its obligations under the three international drug control conventions to which it is a party” and commended “the country’s government agencies involved in drug control for their commitment and efforts in the fight against drug abuse and drug trafficking.” Those efforts include cutting off the heads of drug traffickers, which the Saudi government did at least 82 times in 2011, according to a 2012 report from Harm Reduction International.

When that organization asked about the INCB’s position on the death penalty for drug offenses, the board was suddenly keen to respect “internal law,” which it deems irrelevant in the context of harm reduction and marijuana decriminalization. “The determination of sanctions applicable to drug-related offences,” the INCB said, “remains the exclusive prerogative of each State and therefore lie[s] beyond the mandate and powers which have been conferred upon the Board by the international community.”

About those powers: Does it really matter what the board says? Maybe not, says Alex Kreit, a professor at Thomas Jefferson School of Law who specializes in drug policy. “I think it’s telling,” he says, that the INCB “references decades-old policies in the examples of things it dislikes: coffee shops, safe injection sites, medical marijuana laws. The INCB has complained for years about these things, but at the end of the day, that’s really all it can do. It doesn’t have any direct enforcement authority over parties to the Single Convention. All it can do is say ‘you’re out of compliance’ and, at worst, recommend that other treaty parties stop the import/export of drugs to the countries it doesn’t like. As a result, I believe the more statements like this that the INCB puts out, the sillier it makes itself look.”