There are 10 human rights related treaty bodies. Each of them display comprehensive information about their regular sessions (while keeping confidential some sensitive documentation): working documents, summary meeting records, and sessional series are given their own symbol and made publicly available.3 The public can also access organizational information (rules of procedure, working methods, calendar of sessions with all documentation, conclusions, decisions, oral and substantive statements). In addition, access is usually available to sections titled “Participation in the work of the Committee” or “Information for Civil Society” with specific information for participants, special accreditation procedures for affected populations, etc.

The UN High Commissioner for Human Rights has dedicated a page for Civil Society on its website4 which references various key documents that could help inform INCB’s transparency efforts.5

Other treaty bodies include, for example, the International Union for the Protection of New Plant Varieties (UPOV), which was criticized for years for its lack of transparency.6 Its reforms in the 2010s7 made available a broad range of documentation8 and instated an observer registration system for civil society stakeholders.

Table. Comparing transparency and accountability policies among eight treaty bodies.

CannabisEmbassy-Annex_INCB_Transparency_letter_English

1. Transparent documentation

The INCB, except for specific substantial matters directly relating to the Convention (i.e., consultations and communications between INCB and Member States) is bound by all the general transparency and disclosure requirements valid for the UNODC and other UN entities.

ECOSOC Resolution 1991/489 provides for INCB’s organizational arrangements. It only states that “confidential material in documents and records of the INCB in the possession of [UNODC]” are protected from unauthorized disclosure (paragraph 10). As early as 2010, Hallam (pp. 4–5) explained that:

“the Board justifies this secrecy by reference to its ‘independent’ nature and the rules of confidentiality legally established under the treaties. Yet, the only mention of confidentiality relates specifically to actions the Board initiates under article 14 of the Single Convention, article 19 of the 1971 Convention and article 12 of the 1988 Convention, and those rules are meant to protect the countries concerned rather than the Board. The fact that the INCB has applied these rules to the entirety of its conduct is a purely procedural issue and is not related to its mandate as laid out in the conventions.”10

Even procedurally, paragraph 8 of E/RES/1991/48 suggests that these confidential communications only refer to communications undertaken “directly with Governments and other entities pursuant to the relevant provisions of the Conventions.” The fact that the INCB has applied full confidentiality to the entirety of its work, since its formation in 1968, is therefore neither mandated under the treaties, nor a direct procedural requirement. It is a choice. 

Currently, only an extremely concise agenda of INCB meetings is available publicly, as well as a vague narrative account of meetings in the annual reports. This is insufficient from our perspective. The procedures and working methods of other intergovernmental treaty bodies de facto administered by UN agencies similarly to INCB suggest that commonly disclosed documentation, which the Board should make available, includes:

• Minutes of the meetings (specific confidential sections can be redacted, when needed);
• The background documentation relied on during meetings (referenced in the agenda or minutes);
• A disclosure of the list of communications received from non-State actors;
• A list of participants, including invited speakers and guests;
• A disclosure of the declarations of conflicts of interest by participants, when relevant;
• The rules of procedure of the Board and its organizational structure.

INCB should opt-in to the harmonized online UN documentation repositories managed by the UN Office of Information and Communications Technology (e.g., documents.un.org, undocs.org) to facilitate worldwide access.

In times of distancing and “teleworking,” such a filing of INCB documentation would facilitate the quintessential work of archival and conservation of the documentation of international organizations. Researchers struggle to access INCB archives. INCB could consider establishing a time limit after which documents would be automatically filed for historical archival, perhaps to the United Nations Library in Vienna.

To coherently establish such mechanisms INCB should consider implementing internal freedom of information and other disclosure policies. This could be done jointly with UNODC and inspired by other similar international organisations (human rights treaty bodies, Secretariat of the Convention on biological diversity, UPOV, etc.).

2. Participation

In recent years, INCB has innovated by undertaking some consultation with Civil Society organizations,11 providing input to the Board’s thematic chapter published in INCB’s Annual Report. This is a positive development and the mechanism could be extended to other relevant INCB workstreams, beyond the Annual Report’s thematic chapter –for example the INCB Cannabis Control Initiative or other similar projects.

Additional open-ended and transparent protocols to collect written inputs from non-State actors (such as NGOs, the scientific community, affected populations, the private sector) should be established.

As other treaty bodies, INCB could establish an internal system of accreditation or registry of interested non-State actors to facilitate transparent participation in INCB consultations as well as observation of INCB meetings. Alternatively, INCB could rely on the already-existing list of organizations having been granted Consultative Status by the UN Economic and Social Council (ECOSOC). While parts of the meeting certainly deserve to remain closed to observers (e.g. discussions and communications with Member States’ compliance and statistical returns), not all agenda items require confidentiality. In particular, discussions on the thematic chapter of the annual report should be open to observers.

INCB Board members routinely undertake “country visits.” This mechanism should be reshaped to allow for the collection of information from a variety of stakeholders, beyond competent national authorities. Inspiration could be found in the Annual Review Mechanisms of the Human Rights Treaty Bodies where civil society engagement has proven to help “sharing assessments, raising awareness on [treaty] obligations and fostering a public debate around the recommendations issued by treaty bodies.”12

References

1. Riboulet-Zemouli, K.; Krawitz, M.A. (2021) Voluntary Contribution to INCB Guidelines on Medical Cannabis – Due Diligence, Good Faith, & Technical Concerns. Vienna: FAAAT editions. https://ssrn.com/abstract=3829901
2. Barrett, D. (2011) “Unique in international relations?” hri.global/files/2010/06/16/Barrett-UniqueinInternationalRelations.pdf
3. See: UN Documentation: Human Rights http://research.un.org/en/docs/humanrights/treaties
4. OHCHR. (2022). How to access and work with the human rights treaty bodies. https://bit.ly/3FyI4Es
5. Of relevance to the discussion are:

• Strengthening the United Nations human rights treaty body system https://bit.ly/3rv5IwI
• A handbook for Civil Society https://bit.ly/3tHzW27
• Chair of the Human Rights treaty bodies’ meeting conclusions from 2019 https://bit.ly/3nE4G02

6. Intellectual Property Watch. (2012). UPOV Council To Formalise Access To Documents; Civil Society Seeks Greater Participation. https://bit.ly/33LgoiD
7. Sanderson, J. (2013). Why UPOV is relevant, transparent and looking to the future: a conversation with Peter Button. Journal of Intellectual Property Law & Practice, 8(8), 615-623. http://doi.org/10.1093/jiplp/jpt112
8. Of relevance are:

• Organigram, Terms of Reference, resolutions and decisions framing UPOV’s activity, https://www.upov.int/about/en/organigram.html

• List of Secretariat officers, https://www.upov.int/about/en/officers.html
• Position on Key Issues, https://www.upov.int/about/en/key_issues.html
• List of Observers, https://www.upov.int/members/en/observers.html
• Information documents (equivalent to INCB’s “/W.” documents), https://www.upov.int/information_documents/en/
• Comprehensive list of upcoming events (https://www.upov.int/meetings/en/) with tentative dates up to 2 years ahead (https://www.upov.int/meetings/en/calendar.html),
• Meeting documents by type of meeting, https://www.upov.int/meetings/en/topic.jsp
• Documentation research toolbar, https://www.upov.int/meetings/en/archive.jsp

9. UN Economic and Social Council. (1991). Resolution 1991/48 [E/RES/1991/48], Annex. https://bit.ly/3fylKQX
10. Hallam, C. (2010). Advocacy Note – A Call to the New Secretary of the International Narcotics Control Board: Ongoing Challenges. International Drug Policy Consortium. https://doi.org/10.2139/ssrn.1909986
11. The consultations take the form of statements delivered by a selected number of NGO representatives chosen by a process internal to the Vienna NGO Committee on drugs (VNGOC), followed eventually by questions of Board members to the presenters. Only one consultation related to cannabis was ever held, in 2018, with 10 NGOs.
12. Swiss Agency for Development and Cooperation, Thematic Unit Conflict & Human Rights. Factsheet Human Rights monitoring bodies. https://bit.ly/3Ig3Yhz