Treaty guardians in distress
The inquisitorial nature of the INCB response to Bolivia

Martin Jelsma
Monday, July 11, 2011
TransNational Institute
Drugs and Democracy

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Just when you start to see glimmers of hope that the troubled UN drug control system is opening up for a change process, its principal guardian the International Narcotics Control Board (INCB) does it again… In a press release on July 5, the INCB secretariat condemned Bolivia’s decision to denounce the 1961 Single Convention on Narcotic Drugs and re-accede with a reservation on the coca leaf:

“The international community should not accept any approach whereby Governments use the mechanism of denunciation and re-accession with reservation, in order to free themselves from the obligation to implement certain treaty provisions. Such approach would undermine the integrity of the global drug control system” according to the INCB, warning Bolivia “to consider very seriously all the implications of its actions in this regard”.

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… quoniam punitio non refertur primo & per se in correctionem & bonum eius qui punitur, sed in bonum publicum ut alij terreantur, & a malis committendis avocentur.

… for punishment does not take place primarily and per se for the correction and good of the person punished, but for the public good in order that others may become terrified and weaned away from the evils they would commit.

The 1578 Inquisition handbook explaining the purpose of inquisitorial penalties

Past years have brought about some positive steps forward in the way the UN system struggles with drug policy dilemmas. The UN Office on Drugs and Crime (UNODC) took up a more pro-active role in the policy debate with papers such as “fit for purpose” and its World Drug Report has started to become more evidence-based. The tension between human rights and drug control has appeared – with difficulty – on the agenda, and other UN agencies and Special Rapporteurs have started to pay more attention to what is going on within the secluded drug control corner of the UN system dominated by the Commission on Narcotic Drugs (CND), UNODC and INCB. Last but not least, the UN Department of Political Affairs (DPA) initiated talks to improve the consistency of the system-wide approach to drug trafficking and organized crime, an initiative recently approved and formalized by the Secretary General in the form of a task force jointly coordinated with UNODC and in collaboration with a range of other agencies.

The INCB have also showed positive signs of responding to mounting criticism about its performance being out of step with basic UN principles on transparency and civil society involvement. The chair of the Board agreed to incidental moments of dialogue in Vienna with NGOs and an INCB newsletter was launched to improve communication about its activities. The tone in the INCB Annual Report also seemed to be more balanced, with this year being the first where direct criticism of decriminalization and harm reduction policies was almost absent from the report. The INCB has often been criticized for its narrow-minded interpretation of the treaties on these issues and its opinion was contested by many governments and by the Legal Affairs Section of UNODC.

On the coca issue, the Board has frequently revealed itself to be biased, inflexible and out of touch. The Board pointed out this year that Bolivia “addresses the coca-chewing issue in a manner that is not in line with that country’s obligations under the international drug control treaties” and similarly Peru and Argentina were urged to ban all non-medical uses of coca leaf. At least this year it was not made a ‘special topic’ of concern like in 2006 and the issue did not appear in the list of INCB recommendations where the key worries of the Board are summarised. The 2007 report called on countries to “consider amending their national legislation so as to abolish or prohibit activities that are contrary to the 1961 Convention, such as coca leaf chewing and the manufacture of mate de coca (coca tea)” and – under key recommendations – “to initiate action without delay with a view to eliminating uses of coca leaf, including coca leaf chewing, that are contrary to the 1961 Convention”. This is a clear example of a UN treaty organ instigating a member state to directly violate other UN treaties and declarations that provide protections for cultural and indigenous rights.

The Board is factually correct to state that the domestic legislation of Bolivia, Peru, Argentina and – though not mentioned – Colombia, where coca use is allowed in indigenous territories, is not in accordance with the requirement of the 1961 Convention to abolish traditional uses of coca leaf. Openly acknowledging that contradiction, one might expect that the Board would applaud Bolivia’s efforts to devote so much time, energy and resources in trying to find a solution and reconcile its international treaty obligations with the millennia-old coca tradition.

The damage done to Andean culture by the inclusion of the coca leaf in the control schedule of the Single Convention and its obligation to abolish traditional uses of coca, and the various attempts to repair it, is a long story that is well recorded in other writings. In short, it was already contested at the time of negotiating the 1961 Convention and a partially successful attempt was undertaken by Bolivia and Peru to correct it with the 1988 Convention but that was effectively neutralized by US manoeuvres, as Bolivia was subtly reminded of in the INCB report on 2007. The Board spelled out that the reference in the 1988 Convention that any measures “shall respect fundamental human rights and shall take due account of traditional licit uses” or the reservation that Bolivia submitted in 1988, offered no escape because the “provisions of the 1988 Convention, including reservations made under that Convention, do not absolve a party of its rights and obligations under the other international drug control treaties”. Thereby practically forcing Bolivia to do exactly as it has now done and add a similar reservation for the 1961 Convention.

The WHO tried to clarify the coca issue with an extensive study in the early 1990s that was buried under US political pressure because of its conclusion that coca leaf consumption had no negative health effects. The INCB itself tried to put it on the policy agenda in 1994 pointing out treaty inconsistencies with regard to coca leaf, but never came back to it afterwards. And Bolivia proposed to amend the Single Convention to resolve it in an attempt that was blocked earlier this year by the G8 countries, again under US leadership. All that frustrating history has led Bolivia to opt for the path of denunciation and re-accession with reservation, a perfectly understandable and legitimate response given the earlier thwarted attempts to rectify this situaton. The unexpectedly harsh INCB response raises many questions seen in the context of this history and of recent developments within the wider UN system.

Firstly, it displays the infinite arrogance that has characterized the INCB for so many years. The treaty-based organ operates under a completely misplaced and self-inflated sense of papal infallibility  that supposedly relieves them of any requirement to base their judgements on arguments rooted in a rational analysis of different opinions on the matter. They do not feel obliged to at least make an effort to contest the explanations put forward by those they condemn, or to call on existing scientific and international law literature to substantiate their opinions. The Board undertakes no responsibility in offering other options towards solving the complex policy choices governments are faced with. Towards that end, this ‘INCB’ statement is nothing more than an inquisitorial judgement calling on the international community to punish Bolivia for sins committed against the sacred convention without any explanation, argumentation or solution offered. Its primary purpose is not for the correction and good of the country punished, but for the public good to terrify others and wean them away from the evils they might commit to further undermine the integrity of the global drug control system.

Secondly, it demonstrates once again the lack of transparency surrounding the Board’s functioning. In whose name is this ‘INCB’ statement exactly? It was released by its secretariat and not signed by the President, although it’s hard to image that the secretariat can release such a controversial statement without his agreement. But who asked the secretariat to take the initiative, who drafted it and who agreed to the text? Was it approved by the Board itself, have the thirteen supposedly independent members been consulted? Or was it just a solo-action of President Hamid Ghodse? Minutes of Board meetings are shrouded in utmost secrecy, considered more security sensitive and confidential than the Security Council. There is no compliance whatsoever with generally accepted norms for how a UN agency is supposed to operate and there is no mechanism to appeal, to hold them accountable or a freedom of information act to get access to documents.

Thirdly, it raises fundamental questions again about the precise nature of the Board’s mandate. The INCB justifies its warning to the international community about Bolivia by referring to its mandate to alert state parties to developments that it considers to be a “threat to the international drug control system”. The 1961 Single Convention and its 1972 amendment protocol describe the Board’s mandate and the “restrictions imposed upon its authority” in quite some detail. The main guideline given is that the Board must always operate in a “spirit of dialogue” and “in particular not recommend remedial measures to an individual government without its agreement”. The exceptional case the Board refers to in order to justify its press release, according to the Commentary on the 1972 protocol, only applies to a situation where “the Board has objective reasons to believe that the aims of this Convention are being seriously endangered”. The Commentary explains that “including the word ‘objective’ was introduced in order to reassure some delegates … that the Board would have to base its actions on objective facts and not on purely subjective considerations” and that the “conclusion that a serious situation of this kind exists will be justified if lack of control or defective control in one country or territory appears to endanger the effectiveness of control in another country or territory”. This “serious and delicate matter”, according to the Commentary, “requires the Board to apply the provisions of that article with particular prudence”.

So, where are the “objective reasons to believe that the aims of this Convention are being seriously endangered” in this case of Bolivia denouncing and re-acceding the Single Convention with a reservation similar to the one they already have under the 1988 Convention? The Andean-Amazon culture of coca chewing has continued regardless and no amount of INCB pressure can force countries to abolish it, even less so now that the tradition has a firm legal basis in international law with the progress made in acceptance of cultural and indigenous rights. And how would it “endanger the effectiveness of control in another country” if Bolivia resolves the legal contradiction between a ridiculous 50-year old obligation to ban coca leaf chewing and its new Constitution and now internationally recognized indigenous rights, by submitting a reservation that will only apply to Bolivia itself? There are good reasons why the INCB doesn’t even try to bring forward any arguments, because there are none. The only substantial point they try to make is to question the procedure of denouncing and re-acceding with a new reservation.  It is true that this process is a  contested mechanism and it is the first instance within the drug control treaties, but it is considered to be legitimate procedure in exceptional cases. Sweden, for example, did exactly the same in 2002 with another Convention and international legal experts recognize the usefulness of the procedure under specific circumstances. It is clear that this mechanism is appropriate in Bolivia’s case, given the long history of controversy around the coca leaf and the deadlock situation Bolivia is confronted with after their failed attempt to first try to amend the treaty.

In conclusion, this is not about the legitimacy of the procedure Bolivia has chosen, it is not even really about coca chewing because everybody knows that the practice will continue whatever is said in Vienna. What this really is about is the fear of acknowledging that the current treaty framework is out-of-date and needs reform. The truth that the system has errors and inconsistencies is simply unacceptable. Allowing any doubt or hesitation would undermine unreserved commitment to a noble and inflexible goal. In the bigger picture the INCB response is a clear sign that the UN drug control regime is under mortal strain, that the cracks in the Vienna consensus are approaching a breaking point and its principal guardians are in distress and no longer capable to respond to the challenges and pressures in a rational manner. Historians later on will interpret it that way, no doubt about it.

This may still be exposed to have been an ill-advised solitary action not sanctioned by the Board itself, but otherwise we may have to give up all hope that the INCB can play a useful role in the overdue reform process of the UN drug control system. Until the Board members demonstrate their capacity to contribute in a useful way to a more sophisticated analysis of the complex drug policy dilemmas of today, this will be my advice: ignore them and find a way to restrict their mandate to an administrative function. Until proven otherwise, the Board’s mandate should better be limited to its principal –and important- administrative task of monitoring the estimates and requirements system to assure adequate availability for medical purposes of drugs controlled under the 1961 and 1971 Conventions. Any mandate in terms of monitoring compliance of the treaties beyond that should be taken away from them. For good reasons the Board’s authority was placed under clearly defined restrictions, and for the 1988 Convention their mandate was confined to a regulatory role only to prevent the diversion of precursors. With this blunt response to Bolivia, once again the INCB has shown that it is not capable of performing the broader role given to them under the Single Convention, respecting the imposed restrictions and acting with the required responsibility, discretion, prudence and wisdom.
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