International Narcotics Control Board’s Use of “May” in 2023 Report Hints at Evolving Global Cannabis Stance

By Jason Adelstone

Mar 21, 2024

Earlier this week, the International Narcotics Control Board (“INCB”) released its 2023 annual report (“Report”) on the three international drug treaties (“Treaties”) and Member State compliance under those treaties. While most of this report reiterated concerns discussed by INCB every year, there was one nugget, specifically one word, in the Report that struck me as significant. In fact, if the word was used intentionally, then it could show a dramatic shift in how the INCB views its role and perceived non-compliance by the Member States under the Treaties. On page 38 of the Report, when discussing US states that have legalized non-medical and non-scientific cannabis, the INCB states that “[t]he Board has repeatedly expressed its concern that these developments may be inconsistent with the country’s legal obligations as a party to the [Treaties].” While INCB has made this sentiment for years, the use of the word “may” when addressing potential inconsistencies in US policy and obligations under the Treaties is new and potentially quite telling.

INCB's Language Shift on US Cannabis Policy

For years, and most recently in its 2022 Annual Report, the INCB was quite critical of the US, stating that “the fact that a [Member] State has a federal structure does not release it from international obligations to which it had consented to be bound, including those arising from the [Treaties].” Since the first US state legalized for non-medical and non-scientific purposes, the INCB has taken the position that “[t]he regulation in North American jurisdictions of cannabis use for non-medical purposes continues to evolve in a manner inconsistent with provisions of the [Treaties].” Now, I don’t want to make it seem like the Report left the US’ cannabis and drug policies completely unscathed because it didn’t. However, to my knowledge, the INCB has not used the word “may” when asserting that US state legalization is inconsistent with the treaties. Instead, INCB generally uses forceful terms when discussing that a Member States federalist system, legalizing state-level commercial cannabis, operates in violation of the Treaties.

INCB President Defers to Member States on Treaty Compliance

The use of the word “may” could simply be an oversight, but I am not so sure. This year’s Report doesn’t even mention Federalism and the INCB President’s responses to media questions on the Report echo a softening position. When reporters asked about Germany’s legalization, President Toufiq didn’t fall back on the INCB’s normal position that such legalization certainly violates the treaties. Rather, he explained that Member States should determine such a violation and not the INCB, adding that a specific Member State’s strategy and reasons for legalizing cannabis are outside of the INCB’s purview and would better be addressed by the German Government.

Modernizing International Drug Control for the 21st Century

I have been following the INCB’s cannabis position for years, and I believe that we could be witnessing a shift in INCB’s cannabis position to align more closely to its limited mandate under the Treaties. At a time when opponents of US rescheduling incorrectly state that moving “marihuana” to schedule III would violate the Treaties, this potential softening of position (along with the actual reality that schedule III would not violate the Treaties) reinforces the need for Member States to update the Treaties and bring them into the 21st Century. Strict prohibition, especially for substances like cannabis, doesn’t make sense in a world that is clearly moving in the opposite direction. I am glad to see that the INCB may finally understand this and be looking to work with Member States rather than simply admonishing them for their cannabis policies. I guess we may just have to wait and see.

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