Voluntary Contribution to INCB Guidelines on Medical Cannabis – Due Diligence, Good Faith, & Technical Concerns
Vienna: FAAAT editions. (2021) ISBN ebook: 979-10-97087-09-8
36 Pages Posted: 20 Apr 2021 Last revised: 18 Jan 2022
Date Written: February 24, 2021
In March 2020, the International Narcotics Control Board (INCB) launched a “Cannabis Initiative” with the purpose of issuing “guidelines/manual of good practices on the international drug control requirements for the cultivation, manufacture and utilization of cannabis for medical and scientific purposes” and to “support Member States in complying with the 1961 Single Convention on Narcotic Drugs as amended by the 1972 Protocol, on requirements for cultivation, manufacture and utilization of cannabis for medical and scientific purposes.”
The INCB states: “Objective of the Guidelines: 1. Improve implementation of the international drug conventions, 2. Comply with the regulatory control and monitoring requirements of the licit trade, 3. Monitor cannabis-related activities in national settings, 4. Meet reporting obligations in accurate and timely manner.”
The development of the guidelines has flown under the radar (Chapter 5). A consultant was hired, and a series of stakeholders meetings held, during a pandemic. The important discussions on the WHO’s recommendations for changes in the scope of control of cannabis and cannabis-related substances eclipsed INCB’s work in 2020. In 2021 the agenda of Member States’ Vienna delegations will be centered around two major upcoming events (UN Crime Congress in March, and General Assembly special session on corruption, in April).
The draft Guidelines raise a series of questions: they contain a number of issues (Chapter 6) among which an overlap the mandate of the World Health Organization (WHO) and that of State Parties (Chapters 3 & 4) they favour certain formulations against others, they disregard the latest developments in scientific research and clinical applications taking place in Member States, they ignore the hundreds of years of history of use in medicine and the particularities that this entails, compared to other medications (Chapter 2).
The drug control conventions do not operate in a vacuum: They operate within the rule of law that is framed, internationally, by the UN Charter and human rights instruments. INCB’s Guidelines on medical cannabis must acknowledge this and invite governments to ensure full compliance with international law not only within drug control (Chapter 1).
Inter-governmental organizations (IGOs), in performing their mandate, have the duty to show “due diligence” with respect to the full international legal order, not just the treaty under which they are mandated. Omission or failure to do so can mislead countries to breach their compliance with other instruments of international law, particularly those which supersede certain dispositions of drug control, such as international human rights law (IHRL).
For Cannabis sativa, this is true for fundamental human rights (right to health, to science, to privacy), but also for unforeseen economic, social and cultural rights (related to indigenous peoples and local communities, the environment, the trade in biological, genetic material, and plant resources, the involvement of traditional medical knowledge, etc.) (Chapter 2). The areas of work the INCB disregards are primarily those that concern developing countries, and in particular indigenous peoples, rural, and other vulnerable communities.
The paper calls on the INCB to exercise due diligence –just like it has done with regards to death penalty. The Board should also be open to inputs from civil society and academics, and not only government officials and the largest private sector companies –similar to the consultations organized by the INCB on a number of other subjects during the previous years.
Note: Erratum: On pages 8 and 9, "ICEAR" should read "ICERD"
Keywords: International Narcotics Control Board, United Nations, Cannabis, Drug Control, Due Diligence, International Law, International Organizations, Human Rights, Indigenous Peoples, Traditional Medicine, Medicinal Plants, Phytotherapy, Herbal Drugs
JEL Classification: Z13, Z18, R11, Q01, Q17, Q18, Q19, Q26, Q27, Q28, Q29, Q56, Q57, Q58, I18, I30, F18, F23, F52, F53
Suggested Citation: Suggested Citation