CND Intersessional – 29 January 2015 (Morning session)

The agenda for today has three items: 1) CND contributions to the work of ECOSOC, 2) preparations for the ‘regular segment’ of CND next March (including the proposals to schedule 13 new substances), and 3) preparations for the special segment on the UNGASS next March. The new Thai Chair, Ambassador Srisamoot, presided over the discussions. There will be another intersessional meeting on 23rd February 2015.

1. Contributions of CND to work of ECOSOC
The ECOSOC meetings in June and July will focus on their 2015 theme of managing the transition from the Millennium Development Goals [which expire in 2015] to the newly proposed Sustainable Development Goals. CND has been asked to submit a report by the end of May on their contributions to this theme, so this will be dealt with at the March CND under ‘other matters’. A similar request will also be made for ECOSOC’s 2016 theme of implementing the post-2015 development agenda – so, starting from the 59th CND in 2016, this will become a standing item on the agenda.
 
2. Preparations for the CND ‘regular segment’
 
a) Organisation of work
 
The deadline for countries to submit resolutions is the 9th February, and several resolutions are being considered. The draft CND agenda is available on the website. The 2nd Vice-Chair of CND for 2015 is the Netherlands, and the 3rd Vice Chair is Guatemala: the 1st Vice-Chair (from Eastern Europe) and the Rapporteur (from Africa) have yet to be decided.
 
b) Scheduling

CND agenda item 6b is on the scheduling of new substances – and this should be the first item tackled on Friday 13th March. Notifications have been submitted and disseminated for 13 substances not currently under control: mephedrone (from the UK), ketamine (from China), and 11 substances from WHO.
The Secretariat has issued documents on the role and history of the scheduling process: E/CN.7/2015/7 (and E/CN.7/2014/10). Voting is restricted to the 53 ‘full’ members of CND. The voting system functions as follows: the notifying parties will introduce the issue, then if there is a consensus to vote, the normal process takes place. If under the 1961 Convention, there needs to be a simple majority of 27/53. If under the 1971 Convention, there needs to be a two-thirds majority of 35/53. (This is independent of how many Member States are present at the time of the voting). If there is no consensus to vote, there could be a vote on whether to vote (with a simple majority of 27/53 needed). Votes are done by showing of hands/signs. Member States can also request a roll call – when each CND member is called out in alphabetical order to state their position (this means each individual vote is inserted into the report of the Commission).
 
Ecuador: There needs to be a deeper analysis of the political, economic and health implications of ketamine scheduling. Ketamine is used in Ecuador to produce painkillers over the counter. Putting it under control would create problems. Before the decision, a more profound understanding and analysis is required. Ecuador is not a CND member, so it cannot vote – but we call for more analysis. Putting ketamine under control is a major move.
 
Spain: We are close to Ecuador. Is what is being adopted what the WHO requested – or could a separate voting round be held to include ketamine in the conversation, but not to schedule it?
 
Chair: We are voting on 11 WHO recommendations, plus two from Member States. We will follow the recommendations of WHO unless we decide not to. Just because there are 13 substances notified, it does not mean that we will definitely vote on all 13 substances. We want every Member State to feel comfortable.
 
Netherlands: NGOs prepared a ketamine factsheet presenting an overview of the legal and health implications of scheduling. The Secretariat document posted before Christmas said that the ‘CND must decide on scheduling ketamine’. But there is no recommendation from WHO to schedule ketamine, in fact they said not to do so – why is UNODC recommending a scheduling decision? In this decision, UNODC does not have a role – only WHO does. The 1971 Convention states that medical use is “indispensable” and should not be “unduly restricted”. Schedule 1 is for drugs with no medical use – of course ketamine has medical use. The 1971 Convention does say that abuse should be prevented – but WHO say that abuse is minimal. It is legally very questionable for us to vote on this – do we want to be responsible for surgeons performing surgery without anaesthesia? That is the implication.
 
UNODC: We would like to bring a clarification, It is a matter to be decided by Member States at the CND, not by UNODC. The note prepared was done by the Secretariat of the CND. In most previous cases – WHO has made the recommendation. But the initiator can be a state party (as is happening now with ketamine and mephedrone). The role of the Secretariat is to make information available to Member States. We have not yet officially received the WHO ECDD report on ketamine and other substances, and urge for this to be made available before the next intersessional meeting. Therefore the Secretariat’s document is just transmitting information, rather than making any recommendations. A more generic paper explaining the process etc was prepared by UNODC, WHO and INCB.

Germany: Ketamine is a unique legal situation. The WHO list it as an essential medicine and explicitly said not to schedule. We have never voted against WHO like this before at the CND – there are doubts whether the vote can even legally happen. We need a clear legal opinion from UNODC and INCB on this issue. Otherwise, each Member State will be using their own legal opinion, which will be very untidy.
 
China: We have taken note of the WHO recommendation not to schedule, but we have not received the full report – just an excerpt. We also note legal questions from other Member States. In accordance with the 1971 Convention, WHO only has the right to supply recommendations (as has been clarified by the Secretariat). According to the INCB report in 2013, ketamine is the most widely abused non-controlled substance in Asia and the INCB is concerned over the increasing threat of new psychoactive substances. Illicit ketamine production and use in China has created major political and health problems. We hope that international cooperation will be strengthened in this regard. China are currently analysing the reports and WHO recommendations and are considering the options – including proposing a different schedule.
 
Peru: We are unable to find our position reflected in the Secretariat reports. The scheduling of ketamine restricts access to essential, emergency surgery options and would create serious public health dilemmas in countries which do not have alternatives and will increase costs. We want to echo Spain’s question about the possibility of voting on different options for ketamine – perhaps under a different schedule?
 
Chair: It is up to the Commission, so they can go for another schedule if they choose.
 
USA: We have an elaborate process to decide on scheduling, which includes consultation. GBL [which has been recommended for scheduling by WHO] is used in FDA approved medicines and has widespread industrial use equaling hundreds of thousands of tonnes. Limiting this would cause significant disruption and hardship to medicine consumers, and would make it very hard for countries to adhere to the schedule 1 requirements. 1.4BD [another substance recommended for scheduling by WHO] is used in industry too – millions of tonnes per year. Again, limiting this would cause major problems and make it hard to adhere to convention requirements. Ketamine is controlled in the USA (under schedule 3), but adding the substance to schedule 1 could restrict medical use.
 
Chair: Please send in written considerations. Many of us here are new to these drugs, so we need the information.
 
Netherlands: We support Germany in their request for legal opinion – but this should not just be from INCB, who have been campaigning for years to schedule ketamine. There also needs to be legal opinion from WHO and other agencies. Regarding the Secretariat’s document transmitting the information – UNODC has a responsibility to tell CND if a proposed action is about to break the law. There needs to be quality control from the Secretariat to consider legal obligations. On China’s option to use another schedule – this might seem attractive, but it is not (see morphine). Any restrictions would be bad. The way forward is not to vote, but to focus on another resolution like we did last year.
 
Japan: Regarding the use of a different schedule – please elaborate on the process for such a change.
 
Norway: We want to voice concerns about scheduling ketamine against the recommendation of WHO. This will mean that many people will not have access to essential surgical medicine. This concerns two billion or more people, living mainly in Africa and Asia.
 
Pakistan: Our comments focus on process, as our position is still being formulated. We believe that the procedure adopted by the Secretariat is within the spirit of the conventions. CND does have the independence and authority to make decisions by itself. WHO has some determinative role, but the Commission can take other factors into consideration as well before making a decision. WHO is not the only factor. What has been reported by the INCB, in particular, is also to be taken into account.
 
UNODC: Pending the legal opinion, we have produced – at the request of Canada – a briefing on the challenges and future of scheduling (E/CN.7/2014/10), and the points of the Netherlands have been reflected here. The Secretariat is not taking a position on this matter, but is just transmitting all of the information.
 
China: The Secretariat have not violated the convention. Regarding the INCB report, this is based on information from Member States. If we put the WHO recommendations above those of INCB, this is not appropriate. We will decide on the way forward as soon as possible.
 
Chair Summary:This has been a good first round of discussions on this, to feel each other out. The decisions to schedule substances remains with CND. Member States should make written submissions on this. By the next intersessional, we will have the full WHO report and also the legal opinion requested today. It is relatively new for us to have to tackle so many substances at once – we need to act efficiently and in a manner that is representative and listens to the views of other Member States.
 
c) Operational segment
 
Chair: Agenda item 3 for March concerns the working group on the finances, governance and functioning of UNODC (“FINGOV”). This group’s mandate ends in mid-2015 and they have made a series of recommendations.
 
Iran: We are proposing a resolution on this, and request Member State support.
 
Spain: We want the same level of consensus for this new draft resolution – the content has already been approved by FINGOV group.
 
Chair: Agenda items 1 and 2 are now completed. Agenda item 3 is due to be discussed in an informal session at 2pm, so we will resume discussions here at 3pm.

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