Responsibilities under the 1961 and 1971 Conventions

The INCB has a role generally similar under the 1961 and 1971 Conventions. The substances under scrutiny differ.

The 1961 Single Convention, Article 9 provides that the Board shall endeavour to:

• Limit the cultivation, production, manufacture and use of drugs to an adequate amount required for medical and scientific purposes;
• Ensure their availability for such purposes; and
• Prevent illicit cultivation, production and manufacture of, and illicit trafficking in and use of, drugs.

But these refer to monitoring and advice, rather than enforcement. The INCB has no direct enforcement powers.

Articles 12 and 19^[2] of the same Convention give the Board the responsibility of reviewing, confirming, or requesting changes to the annual estimates of needs for narcotic drugs among Parties concerning licit cultivation, production, manufacture, export, import, distribution and trade, with the objective of preventing diversion of drugs from licit sources into the illicit traffic. The estimates do not represent quotas in the strict sense, because the Parties may at any time request changes to their annual estimates, subject to providing the Board with the explanation of the circumstances necessitating such changes. The Board establishes estimates for all nations, including non-Parties to the Single Convention.

Under the 1971 Convention on Psychotropic Substances, similar powers are given to the Board, in regards to psychotropic substances. In addition, Article 18 of the 1971 Convention requires the Board to issue annual reports on its work.

Responsibilities under the 1988 Convention

Article 12^[2] of the 1988 Convention Against Illicit Traffic requires the Board to report annually to the Commission on Narcotic Drugs on the implementation of the convention's restrictions on chemical precursors in Table I and Table II, the treaty's two categories of precursor substances in illicit drug manufacture. The INCB "Red List" lists precursors and chemicals frequently used in illicitly manufacturing narcotics and psychotropic substances under international control.^[13]

In the case of a precursor substance not yet regulated, the convention also requires the Board to communicate to the Commission on Narcotic Drugs an assessment of the substance if it finds that:

• The substance is frequently used in the illicit manufacture of a narcotic drug or psychotropic substance; and
• The volume and extent of the illicit manufacture of a narcotic drug or psychotropic substance creates serious public health or social problems, so as to warrant international action.

The Convention requires the Board to notify the United Nations Secretary-General whenever it has information which, in its opinion, may justify adding a substance to, deleting a substance from, or transferring a substance between, the Tables. The Secretary-General then transmits that information to the Parties and the commission, and the Commission makes the decision, "taking into account the comments submitted by the Parties and the comments and recommendations of the Board, whose assessment shall be determinative as to scientific matters, and also taking into due consideration any other relevant factors".

This role of assessment given to the INCB under the 1988 Convention was, under the 1961 and 1971 Convention, was reserved to the World Health Organization.

Notably, this Convention explicitly preludes the INCB from playing any role in the settlement of disputes between two or more Parties relating to the interpretation or application of the convention, instead leaving the resolution of these disputes to the Parties concerned through peaceful means of their own choice.

Responsibilities under ECOSOC resolutions

Membership of the Board

Article 9 of the Single Convention specifies that the Board shall be made up of thirteen members elected by the UN Economic and Social Council (ECOSOC), including:^[2]

• Three members with medical, pharmacological or pharmaceutical experience from a list of at least five persons nominated by the World Health Organization; and
• Ten members from a list of persons nominated by the Members of the United Nations and by Parties which are not Members of the United Nations.

The Article requires the council to make arrangements to ensure the Board's independence. Article 10^[2] specifies that "[t]he members of the Board shall serve for a period of five years, and may be re-elected."

The lengthy terms, and the fact that the Board is made up of individuals rather than nation-states, help buffer the Board from political pressure. Historians have argued that the requirement that members with "medical, pharmacological or pharmaceutical experience" be placed on the Board was the result of lobbying by the pharmaceuticals industry.^[4]

The provision that three members would be WHO nominees is similar to provision in previous treaties, which had two of the four members of the Drug Supervisory Body to be appointed by the Office International d'Hygiène Publique (OIHP), the predecessor of WHO. The requirement that INCB nominees be appointed by ECOSOC in the Single Convention is inherited from the previous treaty provision.^[6]

Secretariat

Although the 13 Members of the Board are independent, the Secretariat, officers, and staff of the INCB are entrusted to the United Nations. States parties to the 1961 Convention already expressed their desire to see INCB Secretariat integrated within the United Nations system under Secretary-General:

That secretariat is an integral part of the Secretariat of the United Nations; while under the full administrative control of the Secretary-General, it is bound to carry out the decisions of the Board; The members of the secretariat are appointed or assigned by the Secretary-General; the head of that secretariat is appointed or assigned in consultation with the Board.^[14]

The Commentary to the Convention on Psychotropic Substances notes, "Since the Board is not in continuous session and in fact meets only a few weeks each year, it has to delegate to its secretariat the required authority in order to maintain between its sessions 'the mechanism for a continuing dialogue' with Governments".^[15] Additionally, in 1990, the Board noted that "by decision of the Secretary-General, the Director-General of the United Nations Office at Vienna serves as Coordinator of all United Nations drug control-related activities."^[16] Resolution 1991/46 of the United Nations Economic and Social Council entrusted the management of INCB Secretariat to the agency known today as United Nations Office on Drugs and Crime.

International Import and Export Authorization System (I2ES)

The International Import and Export Authorization System (I2ES)^[19] is an international import and export authorization system that uses an online platform developed in 2015 by the International Narcotic Control Board (INCB) with the support of the United Nations Office on Drugs and Crime (UNODC). I2ES is an online platform developed to facilitate and speed up the process of issuing import and export authorizations for narcotic drugs and psychotropic substances by competent national authorities (CNAs) of importing and exporting countries in compliance with the international drug control treaties. I2ES will allow CNAs to verify the authenticity of such authorizations and to issue endorsements of export authorizations in a secure way and in real time.

INCB Learning

Launched in 2016, INCB Learning^[20] is one of the Board's initiatives to assist Member States in implementing the recommendations of the UNGASS outcome document^[21] and the INCB Availability Report (2015).^[22] INCB Learning addresses the barriers to adequate availability of indispensable narcotic and psychotropic substances required for medical treatments, particularly by raising awareness and providing training.

Global OPIOIDS Project

The Board recognized early on that the alarming increase in overdose deaths from non-medical synthetic opioids threatened to become a global challenge. In response, the Board initiated its global Operational Partnerships to Interdict Opioids' Illicit Distribution and Sales (OPIOIDS) Project.^[23] The OPIOIDS Project is the only current international effort solely dedicated to developing partnerships with governments, international agencies and the private sector to share information and intelligence with the goal of identifying and interdicting illicit manufacturers, distributors and vendors of synthetic opioids.

The OPIOIDS Project supports national authorities and international organizations' efforts in preventing nonmedical synthetic opioids and fentanyl-related substances from reaching people, by:

• Developing international agency and industry partnerships with those who have a practical role to play in responding to the crisis;
• Increasing awareness regarding the nature and scale of synthetic opioids and fentanyl-related substances problem;
• Supporting international initiatives that enhance information-sharing and facilitate co-operation for detection and communication of trafficking;
• Promoting technical assistance and training programmes that ensure safety and security.

Project ION - International Operations on New Psychoactive Substances (NPS)

Project ION (International Operations on NPS)^[24] is the operational initiative of INCB, supporting national authorities' efforts in preventing non-scheduled new psychoactive substances (NPS) of abuse from reaching consumer markets.

Project ION activities are primarily engaged in the coordination, collection and communication of strategic and operational information related to suspicious shipments of, trafficking in, or manufacture or production of NPS. A specific focus is on synthetic NPS with little or no known medical, scientific or industrial uses and our activities are primarily engaged in the coordination, collection and communication of strategic and operational information.

Public-Private Partnerships

In recent years, voluntary public-private partnerships^[25] have come to play an increasingly important role in global precursor control. In this context, the concept aims at preventing the diversion of chemicals for illicit purposes, through cooperation between national authorities and the private sector. INCB has further expanded its public-private partnerships to include legitimate e-commerce and B2B operators, marketing and social media, online financial service providers, and express mail and courier services. These voluntary partnerships supplement the obligatory controls prescribed by the 1988 Convention against Illicit Traffic.

Lack of "quasi-judicial" powers

The INCB routinely defines itself as a "quasi-judicial" body.^[1] The position that the INCB is not a "quasi-judicial" body had been defended by governments,^[8] civil society organisations,^[9][26] and scholars^[10][11][12] for a number of years.

INCB criticism of domestic policy reforms

The Board routinely draws the attention of the international community to interesting drug control developments. However, the INCB has been criticised for their behaviour in urging sovereign states to stay in bounds of the conventions, on the grounds that it may not be within INCB's mandate to comment on matters that are the sole purview of national governments.^[26] The move to a more political role combined with a very rigid interpretation of the drug control conventions, passing judgement on states, is considered problematic.^[27]

In April 2003, former UNODC Chief of Demand Reduction Cindy Fazey penned a scathing review of the Board, accusing it of overstepping its bounds:^[28]

"Unfortunately these individuals also see their role not only as the guardians of the conventions, but also the interpreters of them as well. In their annual report they have criticised many governments, such as Canada for permitting the medicinal use of cannabis, Australia for providing injecting rooms and the United Kingdom for proposing to downgrade the classification of cannabis, which would entail less serious penalties than at present. These criticisms go far beyond their remit, and indeed it is hubris to criticise the Canadian Supreme Court."

Access and availability of controlled drugs for medical use

The INCB has published several special reports on the availability of opiates for medical needs, going back to 1989 and 1995^[39] and has repeatedly called for urgent global action to address the situation.^[40] In its 2008 report, noting that millions of people around the world are suffering from acute and chronic pain, the INCB calls on governments to support a new programme of the World Health Organization (WHO), which aims at improving access to those medicines.^[41] But a number of civil society stakeholders, such as the Senlis Council, has argued that the INCB is not taking seriously its responsibility vis-à-vis the global needs for medicines:^[42]

The INCB is responsible for ensuring adequate supplies of drugs for medical use. Currently millions of people are suffering due to a mounting global shortage of opium-based painkillers such as morphine and codeine, especially in the developing world. The methods used by the INCB to calculate the amounts needed of these medicines are flawed and need to be reconsidered.

A 2020 research found that "for fifty years, the INCB has focussed predominantly upon [...] illicit uses, with little attention to [...] therapeutic Uses. Decreasing attention is provided to the estimates of annual requirements system, under which global opioid access to opioids is documented as inadequate."^[43]

Human rights and transparency

In 2019, observers noted that in "recent years have seen the Board, through its annual report, become progressively more engaged with the issue of human rights."^[44] But issues remain open.^[45][11] In December 2021, a group of 181 non-governmental organizations wrote to the Secretary-General of the United Nations to express concerns about the need for human rights due diligence in the work of the Board related to cannabis.^[35][9]