Argentina and Mexico clash with the INCB

A rather uneventful event
Wednesday, March 31, 2010

The Commission on Narcotic Drugs (CND) in Vienna in March 2010 was a rather uneventful event. One of the most controversial issues were the comments of the International Narcotics Control Board (INCB) in its 2009 Annual Report on the trend to decriminalize possession for personal use in Argentina, Brazil and Mexico. Both Argentina and Mexico voiced strong objections on the INCB remarks.

Last year Mexico decriminalized possession of cannabis, heroine, cocaine, and other drugs found in small amounts. Argentina followed with a Supreme Court ruling (the Arriola ruling) in August 2009 stating the unconstitutionality of the arrest of five youths carrying a small amount of cannabis. Brazil has also introduced legislation to replace jail sentences with educational measures already in 2006.

In her opening speech on the first day, INCB president, Mrs. Sevil Atasoy, reiterated that the Board “recognizes that powers of federal states, regions or provinces are guaranteed in the constitutional framework of some States parties. However, domestic legal systems should not prevent parties from fully complying with treaties. States parties have to pursue strategies and measures that ensure full compliance with the treaties. Treaty obliga-tions must be applicable in the entire territory of each State party.” The remarks were clearly addressed at the decriminalization trend in Latin America, as well as developments in the United States, where 15 States have now decriminalized possession of cannabis for personal use in different degrees and 14 allow medical marijuana in one form or another.

The Argentinean delegation voiced a strong protest expressing “concern and aggravation” about the INCB’s disrespect over the country’s sovereignty and constitutional order. The Argentinean statement said the INCB offered “insufficient explication and substantiation” and announced an official reply later this year demanding that the INCB should “reconsider” its remarks. Unfounded value judgements will only contribute to impair the good functioning of the Board, Argentina added. Mexico also said that they were worried about the INCB criticism of their legislative reform and the INCB’s “partial and mistaken vision” that the 1988 Convention does not allow governments certain latitude to reform their laws. Costa Rica, representing the Latin-American group GRULAC, also uttered some veiled protest.

The US stated that the federal government was opposed to legalizing marijuana and that medicine should be determined by science, not popular vote. They did not, however, address the INCB interference in their internal constitutional order.

When the report was released on February 24, the Washington Office on Latin America (WOLA) and the Transnational Institute (TNI) already criticized the INCB saying the report clearly overstepped the Board’s mandate and represents “unwarranted intrusions into these countries’ sovereign decision-making.”  Not only does the INCB lack the mandate to raise such issues, the Board misreads the 1988 Convention itself, asserting an absolute obligation to criminalize drug possession when the Convention explicitly affords some flexibility on this matter. In a recent briefing, the International Drug Policy Consortium (IDPC) also called upon the Board to be more balanced and include substantiation for the positions in its Annual Reports.

Article 3, paragraph 2 of the 1988 Convention explicitly states that measures to criminalize possession for personal consumption are subject to each country’s “constitutional principles and the basic concepts of its legal system.” Therefore, the 1988 Convention only obligates a country to criminalize possession for personal use when that does not present a conflict with a nation’s constitutional and legal principles, leaving governments with certain latitude within the Conventions. This means that if the Supreme Court of Argentina decides that punishing people for possession of drugs for personal use is against its Constitution, there is no obligation to establish it as a criminal offence.

In her reply to comments by delegations, Mrs. Atasoy welcomed a proposal by ambassadors of Costa Rica, Argentina and Mexico to discuss the framework of decriminalisation measures in the countries concerned.