The International Narcotics Control Board on human rights: A critique of the report for 2019

Recent years have seen the issue of human rights become an increasingly prominent feature of UN deliberations on drug-related matters. Much has changed since 2008, when the former United Nations Special Rapporteur on the right to the highest attainable standard of health described the disconnect between human rights and drug control within the UN system. In what has become the go-to phrase for any discussion of the issue, Paul Hunt stressed that it was ‘imperative that the international drug control system…and the complex international human rights system that has evolved since 1948, cease to behave as though they exist in parallel universes’. A cursory glance at a range of outputs from both the drug policy apparatus in Vienna and parts of the human rights system in Geneva reveals the extent to which these universes have been shifting to align. Recognition of the need to better integrate drug policy and ensure system-wide coherence can be identified in the positions of a range of bodies, including crucially the Secretary General’s Chief Executives Board, the highest level forum for coordination in the UN system, and the associated ‘United Nations system common position supporting the implementation of the international drug control policy through effective inter-agency collaboration’. As described by António Guterres, in November 2018 ‘the heads of the UN system came together to forge a common position on the question of global drug policy to advance security, development and human rights’.

Today the international Narcotics Control Board (INCB or Board, see Box 1) plays an ever more important role in this integrative process. In performing its treaty mandated function as a monitoring body for the implementation of the UN drug control conventions, the Board occupies a critical vantagepoint within the UN system from which to observe and comment upon the often fraught interface between the United Nations based international regimes for drug control and human rights. As with a variety of monitoring bodies across the UN system, it possesses limited power to sanction what it perceives to be errant states. Yet, the INCB does have a noteworthy ability to ‘name and shame’; a process to which its annual report is key. These documents contain ‘an analysis of the drug control situation world-wide so that Governments are kept aware of existing and potential situations that may endanger the objectives of the international drug control treaties’ and ‘draws the attention of Governments to gaps and weakness in national control and treaty compliance’.Pursuing a narrow interpretation of its remit as laid out within the Single Convention, for many years the Board’s position on human rights could be described as a prominent example of selective reticence. In this way, and epitomizing Hunt’s parallel universes, the INCB typically displayed an unwillingness to comment on important issues that appeared to be within its purview and thus warranted its attention. As is evident from the first few pages of the Report for 2019, however, its outlook has to some degree changed with the Board now choosing to highlight a range of human rights considerations within its annual publication.

Within this context, this IDPC-GDPO critique uses the Board’s most recent Report as an entry point to better understand the body’s current stance on human rights as they pertain to drug-related matters. Such an approach is underpinned by the view that the Reports can be seen to provide ‘valuable insight into the values and beliefs which underlie the Board’s approach to the problems with which it deals’. In order to appreciate the broader institutional environment within which the INCB’s evolving position must be located, discussion begins with a brief overview of the origins and advancement of human rights within the UN system. A more detailed account can be found in the annex. It then moves onto an exploration of the structural determinants underpinning the often problematic relationship between the two regimes, associated norms, and obligations. With the aim of charting the Board’s evolutionary – if not always linear – journey, detailed content analysis of the Report for 2019 is complemented by a lighter touch examination of reports dating back to 2007. The critique concludes that although progress has certainly been made, examples of selective reticence remain. Moreover, it is argued, while welcoming a positive shift in stance it must be acknowledged how inherent conflicts between drug policy and human rights within the UN system put very firm limits on the Board’s capacity for change.

Previous reports in this series:

• The INCB on cannabis: A critique of the report for 2018
• IDPC response to the 2017 INCB Annual Report
• IDPC response to the 2016 INCB Annual Report
• IDPC response to the 2015 INCB Annual Report
• IDPC response to the 2014 INCB Annual Report
• IDPC response to the 2013 INCB Annual Report
• IDPC response to the 2012 INCB Annual Report
• IDPC response to the 2011 INCB Annual Report
• IDPC response to the 2010 INCB Annual Report
• IDPC response to the 2009 INCB Annual Report
• IDPC response to the 2008 INCB Annual Report
• IDPC response to the 2007 INCB Annual Report