The International Narcotics Control Board (INCB) is an independent treaty body, one of the four treaty-mandated bodies under international drug control law (alongside the Commission on Narcotic Drugs, UNODC on behalf of the Secretary-General, and the WHO).^[1]

The INCB is responsible for monitoring the control of substances pursuant to the three United Nations drug control conventions and for assisting Member States in their efforts to implement those conventions.^[2] It plays an important role in monitoring the production and trade of narcotics and psychotropics, as well as their availability for medical and scientific purposes, and in deciding which precursors should be regulated.^[3]

History

The Board has predecessors since the League of Nations. Following the 1909 Shanghai International Opium Commission, an International Opium Convention was adopted in 1925 and established the Permanent Central Opium Board (PCOB) which started its work in 1928. Later on, the 1931 Convention created the Drug Supervisory Body to gather estimates, in complement of the PCOB.^[4][5]

After the dissolution of the League of Nations in 1946, the Lake Success Protocol Amending the Agreements, Conventions and Protocols on Narcotic Drugs transferred the powers and mandate of both Permanent Central Opium Board and Drug Supervisory Board to a specially-created joint body to administer the estimate system. The functions of both bodies were merged into the current INCB with the adoption of the Single Convention on Narcotic Drugs in 1961, and those bodies were superseded when the INCB began its functions on March 2, 1968.^[6]

Initially, the composition of the INCB under the Single Convention was strongly influenced by the 1946 Protocol. It inherited mechanisms of nomination from the League of Nations and Office International d'Hygiène Publique.

The mandates and functions of the INCB were later complemented with the adoption of the Convention on Psychotropic Substances in 1971 and the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988.

Comparison of the role of the INCB with its predecessors within the organisational structure of international drug control^[7]

Organisational chart of inter-governmental drug control (as of 1935)	Organisational chart of inter-governmental drug control (as of 2022)

Treaty mandates

The drug control treaties mandates four international bodies: the Board, the World Health Organization, the Secretary-General of the United Nations (nowadays represented by the United Nations Office on Drugs and Crime), and the Commission on Narcotic Drugs. The commission has power to influence drug control policy by advising other bodies and deciding how various substances will be controlled. Enforcement power lies in the mandate of each State Party to the Conventions. The Board has mostly a monitoring and surveillance role.

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.

Lack of direct enforcement powers and "quasi-judicial" mandate

During the negotiations of the Single Convention, governments refused to give the INCB direct enforcement powers.^[4] Article 14 of the Single Convention, Article 19 of the 1971 Convention, and Article 22 of the 1988 Convention, give the Board the authority to investigate the failure of any country or region to carry out the convention's provisions. This includes countries that are not Parties to the Conventions. The Board can ask for explanations from the Government in question, propose that a study of the matter be carried out in its territory, and call upon the Government to adopt remedial measures.

If the Board finds that the Government has failed to give satisfactory explanations, or has failed to adopt remedial measures that it has been called upon to take, the Board can call the attention of the Parties, the council, and the commission to the matter. The Board can also publish a report on the matter for communication to all Parties. Under some circumstances, it can penalize a violator by reducing its export quota of opium, under the provisions of Article 21 bis.^[2] The Board can even "recommend to the Parties that they stop the export, import, or both, of particular psychotropic substances, from or to the country or region concerned, either for a designated period or until the Board shall be satisfied as to the situation in that country or region."

The Commentary to the Convention on Narcotic Drugs points out, "This is a very serious measure, and it cannot be assumed that the Board has that authority except in very grave situations".^[8] Decisions under Article 19 require a two-thirds vote of the Board.

INCB has been criticized for claiming being a "quasi-judicial" body whereas neither the three drug control Conventions nor ECOSOC resolutions provide it with such a mandate. In September 2022, Virginia Patton Prugh, Attorney Advisor at the United States Department of State, declared on the occasion of an intersessional meeting of the Commission on Narcotic Drugs:^[9]

Reviewing the many sources discussing INCB mandates, one would assume that the INCB has been designated to sit in judgement of MS in their effort to implement the treaties. If that it the case, it must be found in the treaties. But the treaties do not assign this role: it simply isn't there. The INCB is authorized to administer the system of estimates and the statistical returns, and to support the Parties in implementing the Conventions. But there is no text suggesting that the INCB is given quasi-judicial functions to interpret the treaties, or adjudicate their conformity or compliance. Read the text; look carefully at the words: we, the Parties to the Conventions, are responsible for implementing our obligations, and we are also responsible for interpreting them in good faith.

The position that the INCB is not and should not self-define as a "quasi-judicial" body had been defended by civil society organisations^[10] and scholars^[11][12][13] for a number of years.

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.^[14]

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

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Structure

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 "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.^[7]

Presidency

Board Members elect a president among them for a one-year term.

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:^[15]

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.

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".^[16] 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."^[17] 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.