The view of the INCB

The INCB is the main international institution responsible for the implementation of the Convention provisions. It is therefore key to thoroughly investigate its views on the issue of DCRs. In the annex to this report, a historic overview is given of the relevant parts of the INCB’s annual reports. Based on this overview, the following part will show the striking evolution in the INCB’s view as to the acceptability of DCRs. The main belief of the INCB has, for many years, been that DCRs are the contrary to the Conventions. The grounds for this view have varied somewhat over the years (see APPENDIX A):

- In the 1999 report the view expressed was that DCRs facilitate drug trafficking.

- In the report of 2000, the main reference was to DCRs breaching the principle that drugs should be used only for medical and scientific purposes.

- In 2002, there was concern about “aiding and abetting drug abuse (and possibly illicit drug trafficking)” (p. 70).

- In the 2003 report, there was a more measured appraisal, including the observation that the German DCRs “were perceived as a success by a large part of the local authorities and the local population”. However, the report went on to state that there was little evidence that DCRs ensure that users underwent treatment or it decreased drug-related deaths. Moreover, in that they allowed the abuse of illicit drugs, they were seen as contrary to the Conventions (p. 78). - The 2004 report recognised that the establishment of DCRs is a contentious issue and that some argue that there is a positive effect. However, the INCB reiterated that DCRs are against the central principle embodied in the international drug control treaties, namely that the use of drugs should be limited to medical and scientific purposes only.

- The 2005 report reiterated the INCB position that DCRs contravene “the major principle of the treaties”.

- In 2009, the Board added to its objection a comment regarding the differing legal systems and legal traditions in the various states. The Board stressed the basic principles of international law defined in the provisions of Articles 26 and 27 of the Vienna Convention as well as the international drug control treaties.

- In 2012, the INCB reiterated its position, despite “taking note of the recent decision of the supreme court and the government’s views on the drug injection room in Vancouver” (p. 10). In this landmark ruling, the Supreme Court of Canada ordered the Minister of Health to grant an exemption to Insite (North-America’s first government controlled safe injecting facility) from the prohibition of possession of controlled substances.34

- A remarkable evolution in the wordings of the INCB is found in the 2014 report whereby, following the introduction of a legal framework for the establishment of DCRs in Canada, the Board indicated to “look forward to a continuing dialogue with governments that have permitted such drug consumption rooms” while reiterating its concern that such facilities “could be inconsistent with the provisions of the international Drug Control Conventions.” - Finally, in the 2015 and 2016 reports, following the implementation of DCRs in France and

Denmark, the concept of drug consumption facilities was no longer rejected as such but replaced with an “expressed concern” that, in order for the operation of such facilities to be consistent with the international drug Conventions, “certain conditions must be fulfilled” (chief among those conditions is that the ultimate objective of these measures is to reduce the adverse consequences of drug abuse to treatment, rehabilitation and reintegration measures, without condoning or increasing drug abuse or encouraging drug trafficking). The INCB concluded in its 2016 report that “drug consumption rooms must be operated within a framework that offers treatment and rehabilitation services as well as social integration measures, either directly or by active referral for access and must not be a substitute for demand reduction programmes, in particular prevention and treatment activities” (p. 90-91).

34 _{In one of the key parts of its ruling, the Supreme Court stated: “The Minister’s failure to grant a s. 56 exemption}

to Insite engaged the claimants’ rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It thus engages the claimants’ interests and constitutes a limit on their rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA—the protection of health and public safety. It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics” (Supreme Court of Canada, Canada (Attorney General) v. PHS Community Services Society, 30.09.2011).

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In sum, it can be stated that after a long period of objecting to the concept of DCRs, as being contrary to the Conventions, the INCB has recently shifted its viewpoint towards a more flexible approach. This shift seems to be mainly inspired by the health and welfare of the users, which—as seen above—is one of the main themes running through the UN Drug Conventions. Consequently, the INCB gives a particular focus to the way in which these facilities are operated, thereby stressing an integrated approach requiring a framework offering treatment, rehabilitation and reintegration.

Box 6. The international perspective: UN and INCB

The UN Drug Conventions of 1961, 1971 and 1988, to which Belgium is a signatory, contain sufficient flexibilities for the introduction of harm reduction within a balanced approach to drug use, including DCRs. An increasing number of countries which are signatories to the Conventions have introduced DCRs, with the implication that their operation is considered Convention-compliant. The establishment of DCRs is indeed not incompatible with the international drug control system, if a clear integrated model is foreseen when the DCR is included in a wider range of health, treatment and social integrated services, either directly within the facilities or by active referral for access to these services. If those preconditions are met, this form of harm reduction can be reconciled with the general principle of medical purposes as enshrined in the Conventions. Over the years, the INCB has shifted its viewpoint towards a more flexible approach. This shift seems to be mainly inspired by the health and welfare of PWUD, which is one of the main themes running through the UN Drug Conventions.