Addressing the Global Tragedy of Needless Pain: Rethinking the United Nations Single Convention on Narcotic Drugs

Webster R. Lacey J. Quine S. , “Palliative Care: A Public Health Priority in Developing Countries,” Journal of Public Health Policy 28, no. 1 (2007): 28–39.

World Health Organization, Single Convention on Narcotic Drugs, 1961 , March 30, 1961, at Art. 21–24, available at <http://www.unodc.org/pdf/convention_196l_en.pdf> (last visited September 4, 2007).

World Health Organization, Access to Controlled Medications Programme: Briefing Note , Geneva, Switzerland, March 2007, available at <http://www.who.int/medicines/areas/quality_safety/AccessControlledMedicationsBrNote.pdf> (last visited September 4, 2007).

International Narcotics Control Board, Report of the International Narcotics Control Board for 2006 , U.N. Doc. E/INCB/2006/1, March 1, 2007, para. 67. Medical availability is also problematic in some wealthy countries, including Japan.

International Narcotics Control Board, Report of the International Narcotics Control Board for 2004 , U.N. Doc. E/INCB/2004/1, March 2, 2005, at para. 143.

See World Health Organization, supra note 2.

See Webster , supra note 1.

Foley K. M. Wagner J. L. Jorganson D. E. , “Pain Control for People with Cancer and AIDS,” in Jamison D. T. Breman J. G. Meaham A. R. , eds., Disease Control Priorities in Developing Countries, 2nd ed. (Oxford: Oxford University Press & World Bank, 2006): 981–93, at 982.

Since the 1970s, WHO has promoted equitable access to health services through the concept of essential medicines. Essential medicines are those that satisfy the priority health care needs of the population. They are selected with due regard to disease prevalence, evidence on efficacy, safety, and comparative cost-effectiveness. Essential medicines are intended to be available at all times, in adequate amounts, in the appropriate dosage forms, with assured quality, and at a price the individual and the community can afford. See World Health Organization Expert Committee, The Selection and Use of Essential Medicines: Report of the WHO Expert Committee, 2005 , WHO Technical Report Series No. 933, Geneva, Switzerland, 2006. Opioid analgesics on the WHO Model List of Essential Medicines include codeine tablet 30mg; morphine injection 10 mg+1- ml amouple; morphine oral solution 10mg/5ml and morphine table 10mg. Id., at 63.

Cole B. E. , “The Last Word: The State of Pain Management,” FDA Consumer Magazine 38, March-April 2004, at 40.

International Narcotics Control Board, “Availability of Opiates for Medical Needs,” in Report of the International Narcotics Control Board for 1995 , United Nations, 1996; World Health Organization, Achieving Balance in National Opioids Control Policy: Guidelines for Assessment, WHO/EDM/QSM/2000.4, 2000.

Editorial, “Organization of Development of Pain Clinics and Palliative Care in Developing Countries,” European Journal of Anesthesiology 21, no. 3 (2004): 169–72.

Stjernswärd J. , “Palliative Care: The Public Health Strategy,” Journal of Public Health Policy 28, no. 1 (2007): 42–55.

See Cole , supra note 11.

See World Health Organization, supra note 2.

Id.; Koshy R. C. Rhodes D. Devi S. , “Cancer Pain Management in Developing Countries: A Mosaic of Complex Issues Resulting in Inadequate Analgesia,” Support Cancer Care 6, no. 5 (1998): 430–37.

Farmer P. , Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley: University of California Press, 2005): xxiv–vii.

See Koshy , supra note 17.

See Webster , supra note 1.

De Lima L. Sweeney C. , “Potent Analgesics Are More Expensive for Patients in Developing Countries,” Journal of Pain and Palliative Care Pharmacotherapy 18, no. 1 (February 3, 2004): 59–70.

See World Health Organization, supra note 2; Koshy , supra note 17.

Editorial, “The Persistent Problem with Pain,” The Lancet 357, no. 9264 (2001): 1217.

See World Health Organization, supra note 2.

See Webster , supra note 1.

See World Health Organization, supra note 2; McQuay H. , “Opioids in Pain Management,” The Lancet 353, no. 9171 (1999): 2229–32.

See Koshy , supra note 17.

See Webster , supra note 1.

See Stjernswärd , supra note 14.

See Koshy , supra note 17.

Joranson D. E. Rajagopal M. R. Gilson A. M. , “Improving Access to Opioid Analgesics for Palliative Care in India,” Journal of Pain Symptom Management 24, no. 2 (August 2002): 152–59.

See World Health Organization, supra note 2; see also, Scholten W. Nygren-Krug H. Zucker H. A. , “The World Health Organization Paves the Way for Action to Free People from the Shackles of Pain,” Anesthesia & Analgesia 105, no. 1 (July 2007): 1–4.

Costa e Silva J. A. , “Medicines and the Drug Control Treaties: Is Buprenorphine for Opioid Addiction at Risk of Being Lost?” Human Psychopharmacology 19, no. 4 (2004): 215–24.

Office on Drugs and Crime, World Drug Report 2006, Volume 1: Analysis, United Nations Sales No. E.06.XI.10, 2006, at 7.

International Narcotics Control Board, Report of the International Narcotics Control Board for 2005, U.N. Doc. E/INCB/2005/1, March 1, 2006 at para. 50.

Interview with Pavel Pachta, Deputy Secretary of the Board and Chief Narcotics Control and Estimates Section, INCB Secretariat, United Nations Office on Drugs and Crime (September 12, 2006).

The first preambular paragraphs to the Convention provide that: “The Parties: Concerned with the health and welfare of mankind, Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes, Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind….” United Nations, Single Convention on Narcotic Drugs, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, at art. 1.

U.N. Secretary General, Commentary on the Single Convention on Narcotic Drugs, 1961, New York, 1973.

The Board consists of 13 members who are elected by the Economic and Social Council (ECOSOC). Three members with medical, pharmacological, or pharmaceutical experience are elected from a list of persons nominated by the World Health Organization (WHO), and ten members are elected from a list of persons nominated by the Members of the United Nations and by State Parties that are not Members of the United Nations, in accordance with Article 9 of the Single Convention. United Nations, Single Convention on Narcotic Drugs, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, at art. 9.

Raustiala K. , “Law, Liberalization and International Narcotics Trafficking,” New York University Journal of International Law & Politics 32 (Fall 1999): 89–145.

Office on Drugs and Crime, “Drug Abuse and Demand Reduction,” available at <http://www.unodc.org/unodc/en/drug_demand_reduction.html> (last visited October 10, 2007).

Fazey C. S. J. , “The Commission on Narcotic Drugs and the United Nations International Drug Control Programme: Politics, Policies and Prospect for Change,” The International Journal of Drug Policy 14, no. 2 (2003): 155–69; Bewley-Taylor D. R. Fazey C. S. J. , “The Mechanics and Dynamics of the U.N. System for International Drug Control,” (2003) (unpublished document copy on file with author).

See Office on Drugs and Crime, supra note 38.

Bewley-Taylor D. , Emerging Policy Contradictions Between UNODC ‘Universe’ and the Core Values and Mission of the U.N. , presentation at the First International Symposium on Global Drug Policy, Lisbon, Portugal, October 25, 2003, available at <http://www.senliscouncil.net/modules/events/lisbon/22_bewley-taylor> (last visited October 10, 2007).

International Narcotics Control Board, “Annual Report: By Year,” available at <http://www.incb.org/incb/annual_report.html> (last visited September 4, 2007).

See World Health Organization, supra note 2, at Preamble.

Id., at art. 4.

Id., at art. 9.

International Narcotics Control Board, Report of the International Narcotics Control Board for 1995: Availability of Opiates for Medical Needs, U.N. Doc. E/INCB/1995/1, 1996, at para. 65.

See Costa e Silva, supra note 37; see World Health Organization, supra note 2.

International Narcotics Control Board, “Report of the International Narcotics Control Board for 2006,” available at <http://www.incb.org/incb/en/annual_report_2006.html> (last visited September 4, 2007).

See International Narcotics Control Board, supra note 4.

Intervention of Willem Scholten, WHO Technical Officer, to the Commission on Narcotic Drugs, 2006, as referenced in supra note 56. (A copy of the intervention is on file with the author.)

See International Narcotics Control Board, supra note 4, at para. 202.

Commission on Narcotic Drugs, Report on the Fiftieth Session, U.N. Doc. E/2007/28 and E/CN.7/2007/16, March 17, 2006 and March 12–16, 2007.

See Costa e Silva, supra note 37.

World Health Organization, Guidelines for the WHO Review of Dependence-Producing Psychoactive Substances for International Control, WHO Doc. WHO/EDM/QSM/2000.5, 2000.

See World Health Organization, supra note 3, at 44.

Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, and World Health Organization Collaborating Center for Policy and Communications in Cancer Care, “Resources for Addressing Barriers to Pain Relief in the World,” available at <http://www.painpolicy.wisc.edu/inter-nat/conf_materials/Seoul/seoul_resources.pdf> (last visited September 4, 2007); Joranson D. E. , “Improving Availability in Opioid Pain Medications: Testing the Principle of Balance in Latin America,” Innovations in End of Life Care 5, no. 1 (January-February 2003), available at <http://www2.edc.org/lastacts/archives/archivesJan03/featureinn.asp> (last visited October 10, 2007).

Id. (Pain & Policy Studies Group), supra note 64.

Leroy B. , International Drug Policy: Challenges and Perspectives , presentation at the First International Symposium on Global Drug Policy, Lisbon, Portugal, October 25, 2003, available at <http://www.senliscouncil.net/modules/events/lisbon/17_leroy> (last visited October 10, 2007).

See Office on Drugs and Crime, supra note 38.

See International Narcotics Control Board, supra note 5.

U.N. General Assembly, Access to Medication in the Context of Pandemics Such as HIV/AIDS, Tuberculosis and Malaria , G.A. Res. 58/179, U.N. Doc. A/RES/58/179, March 17, 2004, available at <http://daccessdds.un.org/doc/UNDOC/GEN/N03/505/32/PDF/N0350532.pdf?OpenElement> (last visited September 4, 2007). The link between access to medicines and human rights has also been identified by the Committee on Economic, Social and Cultural Rights in General Comment No. 14 to Article 12 of the Covenant on Economic, Social and Cultural Rights, which establishes the right to health. In the Committee's view, Article 12(a) recognizes that the right to health contains a number of essential elements, including essential drugs as defined by the WHO Action Programme on Essential Drugs. As discussed above, the WHO Model List of Essential Medicines includes commonly used and critical opioid analgesics.

Id., at 4.

U.N. Commission on Human Rights, Access to Medication in the Context of Pandemics Such as HIV/AIDS, Tuberculosis and Malaria, C.H.R Res. 2003/29, U.N. Doc. E/CN.4/RES/2003/29, April 22, 2003.

Chayes A. Chayes A. H. , The New Sovereignty (Boston: Harvard University Press, 1995): 273–85; Mitchell R. B. , “Of Course International Institutions Matter: But When and How?” in Biermann F. Brohn R. Dingwerth K. , eds., Proceedings of the 2001 Berlin Conference on the Human Dimensions of Global Environmental Change: Global Environmental Change and the Nation State (Potsdam: Potsdam Institute for Climate Impact Research, 2002): 16–25; Taylor A. , “Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health,” American Journal of Law and Medicine 18, no. 4 (1992): 301–46; Keohane R. , “International Institutions: Two Approaches,” in Beck R. Arend A. C. Vander Lugt R. D. , eds., International Rules (New York: Oxford University Press, 1995): 187–205.

Birnie P. W. Boyle A. , International Law and the Environment, 2nd ed. (Oxford: Oxford University Press, 2002): at 201.

Taylor A. , “Globalization and Biotechnology: UNESCO and an International Strategy to Advance Human Rights and Public Health,” American Journal of Law and Medicine 25, no. 4 (1999): 479–541, at 514.

See World Health Organization, supra note 2, at art. 15.

See Birnie Boyle , supra note 74.

Id.; Szasz P. , ed., Administrative and Expert Monitoring of International Treaties (Yardsley, NY: Transnational Publishers, 1999): at 15.

See Patcha , supra note 40.

See Birnie Boyle , supra note 74.

See World Health Organization, supra note 2, at art. 14.

The INCB also has the authority to recommend to State Parties that they stop the import of drugs, the export of drugs, or both from or to the country concerned, if it is satisfied that such a course is necessary. This remedy, however, does not seem to be an appropriate recommendation in the context of countries that are neglecting opioid analgesics, and appears designed for cases in which failure to control illicit traffic poses an international risk.

Vienna Convention on the Law of Treaties, January 27, 1980, 1155 U.N.T.S. 331, at art. 31

Id., at art. 14.

See Chayes Chayes , supra note 73.

See Vienna Convention, supra note 84.