The Duality of Cannabis Regulation According to the International Narcotics Control Board: A Response to the Report of the INCB for 2022
By Jason Adelstone
Mar 15, 2023
The Duality of Cannabis Regulation According to INCB: How INCB Concludes that Cannabis Legalization Has Not Achieved Intended Objectives While Providing Evidence to the Contrary
A response to the annual report of the International Narcotics Control Board
The International Narcotics Control Board (“INCB”) released its “Report of the International Narcotics Control Board for 2022 (E/INCB/2022/1)” (the “Report”), which dedicates an entire section to discussing the “Analysis of the trend to legalize the non-medical use of cannabis. In the report, the INCB argues that legalizing the non-medical and non-scientific use of cannabis (“Regulation”) has failed to achieve the benefits to society that were intended through such legalization. In its attempt to deliver evidence of this failure, INCB instead provides ample evidence to the contrary—that legalization and regulation work. Accordingly, INCB‘s conclusion that Regulation has failed to achieve the intended societal benefits is irrational, illogical, and an abuse of INCB’s authority to remain a disinterested and impartial mediator of the Conventions.
The International control of narcotic drugs and psychotropic substances is coordinated between Member States pursuant to a framework established by three international treaties: the Single Convention on Narcotic Drugs of 1961 (the “Single Convention”); the Convention on Psychotropic Substances of 1971 (the “’71 Convention”); and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (referred to hereinafter together with the Single Convention and ’71 Convention as the “Conventions”). INCB is the “independent and quasi-judicial expert body” tasked with monitoring compliance with Conventions and “facilitat[ing] effective national action to attain the aims of [the Conventions].” With specific exceptions not relevant to this article, the Conventions prohibit the non-medical, non-scientific regulation of commercialized cannabis. Therefore, Member States must find internationally recognized alternatives to Regulate cannabis.
INCB, as the “independent and quasi-judicial monitoring body,” has a mandate to work with Member States to achieve greater uniformity under the Conventions. In circumstances where INCB’s interpretation is at odds with that of Member States, INCB’s role as a monitoring body is to work to reconcile such differences, to review the best approaches that arise from the debate, and assess the options that emerge as the debate progresses. In cases where Member States appear to be violating the Conventions (in furtherance of promoting the health, safety, and welfare of society) INCB is tasked with assisting such governments in overcoming their apparent violations. Here, where Member States interpret the Conventions to support legal cannabis frameworks (because such frameworks are more effective than prohibition in promoting public health and welfare), INCB must be grounded in its obligation to work with Member States to harmonize Regulated markets with the Conventions, using other internationally recognized approaches. Namely, INCB should promote two alternatives to prohibition: (1) Inter Se Modification (“Inter Se”); and (2) Withdrawal and Recession, with Reservations for marijuana and THC (“Re-accession”). Unfortunately, the Report fails to seek such harmonization, further deteriorating compliance under the Conventions, which will lead to greater diversion, youth access, and harms for society.
Prohibition is a failed policy. As such, many Member States are intent on liberalizing their positions on cannabis through Regulation because it is more effective at promoting the health, safety, and welfare of mankind. In the Report, however, INCB illogically concludes that Regulation is failing society—despite the evidence cited by INCB—which clearly supports that Regulation has had undeniable success in: (1) substantially reducing the illicit market (60% reduction in Canada, 50% reduction in Uruguay, and 25% reduction in California); (2) successfully prohibiting sales and marketing to minors; (3) not leading to an increase in youth access, and reducing such access and use in most, if not all, Regulated markets; (4) ensuring that better medical care is available in markets that have Regulated, most likely due to the de-stigmatization of cannabis in Regulated markets; and (5) reducing burdens on the criminal justice system, lowering costs associated with prohibition, and allowing law enforcement to focus on more pressing issues.
INCB’s conclusion appears to be fabricated on nothing more than a desire to eliminate Regulated markets, rather than reaching a conclusion based on the evidence cited. For example, the INCB's official overview of its Regulation section of the Report, states that “Legalized non-medical use of cannabis . . . does not reduce criminal activity,” but within the Report, INCB provides clear evidence (as stated above) that Regulation decimates (but does not eliminate) black market participation. INCB tries, but fails, to thread a needle between lacking sufficient evidence to conclude whether Regulated markets harm or promote the health, safety, and welfare of mankind, and concluding “in general terms, that Regulation has not achieved the objectives pursued by its proponents.” As discussed in this article, instead of presenting objective facts for Member States to review and reconcile differences, INCB inserts its opinion as fact, misrepresenting the true effects of Regulation. INCB once again exceeds its obligation to remain impartial and disinterested by pushing a false narrative that lacks a coherent analysis or support for its conclusion.
INCB’s conclusion not only lacks factual support, and is contrary to the evidence it cites, but also promotes unlawful requirements on Member States. INCB believes that countries can, and should, ignore Constitutional restrictions to ensure compliance with the Conventions. It notes that if a Member State has a Constitution that prohibits the Federal Government from forcing local jurisdictions, or its citizens, to implement Drug Convention requirements, it must do so anyway. This position is unworkable, incompatible with law and practicality, and dangerous. If a Member State’s Constitution prohibits the Federal Government from enforcing requirements on local jurisdictions, or its citizens, then the Federal Government will not, and should not, enforce such requirements. Pushing any other narrative is dangerous, risking the stability of Constitutional Governments.
INCB’s mandate is to work with Member States to reconcile differences between Member States’ positions, assessing the options that emerge as the debate progresses. Accordingly, INCB must recognize the reality and unambiguous evidence that Regulated markets benefit the health, safety, and welfare of society. As such, INCB must recognize this reasonable Regulation strategy being implemented, or discussed, by Member States and work with those governments to reconcile violations under the Conventions. Simply stating that such Regulation must cease is unworkable and INCB should, instead, provide an unbiased assessment that includes reasonable approaches under International law. Regulated markets are only going to expand, and a strict interpretation of the Conventions that ignores the evidence and the continued growth of robust public health and safety requirements inherent in every Regulated system, is no longer a realistic option. Such a strict interpretation is incompatible with both the regimes of Member States’ and the INCB’s obligation to be an objective and independent monitoring body of the Conventions.