Human rights and drug policy
An accessible but comprehensive primer on why TNI believes that human rights must be at the heart of any debate on drug control.
This primer was published originally in May 2015 and last updated in June 2018, by Ernestien Jensema and Katie Sandwell.
- Why does TNI believe that human rights must be at the heart of drug control?
- How did the UN human rights system evolve?
- On what principles is the current drug control regime based?
- What is done to integrate human rights into the international drug control regime?
- What is the United Nations Office on Drugs and Crime doing to promote human rights in drug control?
- What do the human rights monitoring bodies say about the human rights violations in the name of drug control?
- What is the role of the International Narcotics Control Board (INCB)?
- What are some of the human rights violations happening in the name of drug control?
- What can be done to work towards human rights based drug control?
- What should countries do to integrate human rights into drug control?
- What is TNI doing on the issue of human rights and drug control?
Since its establishment in the 1970s, TNI has always believed in the need to find global answers to global problems, been a strong defender of multilateralism and an advocate of a well-functioning United Nations which stands as the guarantor of universal human rights. On the drugs question, our position is straightforward: drug control should respect human rights.
We defend the rights of farmers caught in the illicit economy to live a life in dignity.
We favour the decriminalisation of use, possession for personal use and minor trafficking offences. We defend harm-reduction approaches and advocate differentiation among substances on the basis of health concerns.
We also defend the principle of proportionality: a basic principle that should be obvious to all but got lost in the process of the escalation of the war on drugs: everyone involved in the illicit drugs market, farmers, traders and users alike, are fully protected by human rights.
Any drug control measure that violates their basic human rights is illegitimate and TNI will always reject measures that violate the right to live a life in dignity.
Following the Second World War the international community came together in a spirit of peace and positivism. To prevent future wars and to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”, fifty States signed the Charter of the United Nations on 26 June 1945 in San Francisco.
The Charter is built around three pillars: human rights, peace and security and development. Three years later, in 1948, the Universal Declaration on Human Rights was adopted and proclaimed “as a common standard of achievement for all peoples and all nations”. The Charter’s obligations prevail over the obligations arising from other international conventions (article 103). In article 55 and 56 the United Nations and its member States pledge to promote social development and “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Membership of the UN requires ratification of the Charter.
The 1948 adoption of the Universal Declaration of Human Rights stands as a milestone in the international human rights system. Its terms were made legally binding in two covenants adopted in 1966 – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The three documents are known as the international bill of human rights.
Nine human rights treaties now form the core of the human rights instruments, and include the above two covenants alongside treaties specific to torture, racial discrimination, children's rights, discrimination against women, migrant workers, persons with disabilities and enforced disappearances. Every UN member state has ratified at least one of these treaties, most have ratified more.
Each human rights treaty has an independent committee, or ‘treaty body’, tasked with monitoring its implementation through periodic reviews of state progress, individual or collective complaints mechanisms, and in some cases inquiry processes.
Further human rights monitoring mechanisms have been developed under the UN Charter. These include the Universal Periodic Review process at the UN Human Rights Council which involves UN member states reviewing each other’s progress on shared obligations with civil society input. The ‘Special Procedures’ of the Council are independent experts from working groups on specific themes or countries. For example, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Rights of Indigenous People, and the UN Special Rapporteur on the Right to Health.
Human rights law is binding based on the treaties adopted by each state. In addition, aspects are binding in customary law. This means that for some human rights no ratification of a treaty is required for them to be binding. Examples are freedom from slavery and freedom from torture. Since the adoption of the Charter, human rights have become a universal and binding normative framework for UN member states.
The UN drug control regime is based on three treaties: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic. The three major international drug control treaties are mutually supportive and complementary. An important purpose of the 1961 and 1971 Conventions is to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes.
At the same time they aim to prevent diversion into illicit channels and include general provisions on trafficking and drug use. The 1961 Convention specifically focuses on plant-based drugs such as opium, heroin, coca, cocaine and cannabis, scheduling them on different lists based on harmfulness, but as a result of political pressure, both cannabis and coca have – wrongly – been scheduled as particularly harmful drugs, comparable to heroin.
The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances significantly reinforced the obligation of countries to apply criminal sanctions to combat all aspects of illicit production, possession and trafficking of drugs.
All three conventions start with preambles expressing concern for the health and welfare of mankind. However, human rights appear explicitly only once in the three treaties – in article 14(2) of the 1988 Convention (see further below). Nonetheless, these treaties must be read and interpreted in line with concurrent human rights obligations. Though protecting health and welfare can be considered the core principles of the drugs conventions, judgmental values on drugs and those who produce, trade and consume them, along with punitive and war-like responses have ultimately played too large a role in their implementation.
In practice the drug control system has resulted in human rights abuses across the globe. Over the past decades, repression has been implemented as the main strategy to address drugs-related problems. Both nationally and internationally, most of the resources have been spent on combating the illicit market. As with responses to other perceived ‘threats’, such as terrorism, this has resulted in the erosion of civil liberties and innumerable human rights abuses worldwide. States have carried out military operations against small farmers of cannabis, coca or opium poppy, practiced chemical spraying of illegal drug crops, or forced people off their land.
Some countries practice the death penalty for those who break the law relating to drugs. Harm Reduction International, in the 2017 overview report on the death penalty for drug offences, had identified 33 countries and territories that retain capital punishment for drug offences in law. While several of these countries use the penalty rarely or not at all, between January 2015 and December 2017, HRI reveals that at least 1320 people have been executed for drug-related offences in at least five countries.
It is estimated that over 10 million people are currently incarcerated worldwide with a large number of these people having been convicted of drug-related crimes. In the US, the country with one of the highest incarceration rates in the world, 25% of prisoners (over 500,000 people) are in jail for drug offences. In the US the racial disparity of prison admissions is obvious: in 2003 a black man was 11.8 times more likely than a white man to enter prison for drug offenses; and a black woman was 4.8 times more likely than a white woman to enter prison for drug offenses. In England and Wales, ethnic disparities in the policing and prosecution of drug offences have also been reported.
In Latin America the percentage of people in prison for drug offenses is even higher, as the TNI/WOLA report on drug laws and prisons in Latin America shows. Consumers and low-level offenders fill the overcrowded prisons with devastating results.
In Europe and Central Asia one in four women in prison are there for non-violent drug offences.
In Southeast Asia and China hundreds of thousands of people are detained for months and sometimes years, in compulsory drug detention centres to be “treated” for their drug use. In many of these centres no medical care is available. Forced labour, physical and sexual violence are part of the “treatment” offered. The detainees do not have access to due process or judicial review.
Many national laws still impose disproportionately long prison terms for minor drug offences, and 33 countries still use the death penalty for drug-related offences. This leads to a criminal justice system where minor drug offenders sometimes receive tougher penalties than rapists, kidnappers or murderers. Long prison sentences for drug offenders causes prison overcrowding in many countries, incapacitates the criminal justice system, and puts prisoners at higher risk of being infected by HIV, hepatitis C, tuberculosis, etc. Although many people incarcerated for drug-related crimes are themselves drug users, harm-reduction (including needle exchanges), opioid substitution therapy, and other interventions are only rarely available in prison settings.
Please read further below under question 8 for an extensive overview of human rights violations in the name of drug control.
In the context of drug laws and sentencing, the drug-control conventions generally require parties to establish a wide range of drug-related activities as criminal offences under their domestic law. Nonetheless, they permit parties to respond to them proportionally, including through alternatives to conviction or punishment for offences of a minor nature.
Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice.
The prohibition of drugs places the markets of this lucrative trade in the hands of criminal organizations, and creates enormous illegal funds which stimulate armed conflicts throughout the world. For years the UN apparatus paid little attention to the controversy created by the international drug control system. Although the preamble of the 1961 Convention identifies the core goal of the UN drug control regime as the protection of the health and welfare of humankind, the negative consequences of the international attempt to control the use and production of substances are often more harmful than the drugs themselves.
The health and social side of the drug problem has received little attention. In 1987 the International Conference on Drug Abuse and Illicit Trafficking called for a ‘balanced approach’: giving the reduction of demand for illicit drugs the same importance as the reduction of supply and trafficking, but nevertheless the imbalance remained.
At the UNGASS on drugs in 1998 the international community decided on the Guiding Principles of Drug Demand Reduction. And with these principles the attention shifted slightly towards treatment and harm reduction, partly under the pressure of the HIV/Aids epidemic amongst drug users.
It was 2008 before the UN Commission on Narcotic Drugs (created in 1946) adopted a human rights resolution. Prior to this human rights-based language was frequently resisted and outright vetoed. The resolution called for the UN drug control system to work more closely with the UN human rights system.It could only be agreed after any mentions of the death penalty, the newly-adopted declaration on indigenous people’s rights, and any specific UN human rights mechanisms were stripped from the text. Nonetheless, since this resolution, human rights safeguards have appeared more often in CND resolutions.
Every year the UN General Assembly adopts a resolution on countering the ‘world drug problem’. For many years it has begun with a paragraph reaffirming the need to undertake this task in full conformity with the UN Charter and with full respect for human rights. The 2009 political declaration on drugs, agreed at the CND, reflects this requirement. Unfortunately, the body of the declaration failed to take into account this important starting point.
In March 2015 the Human Rights Council adopted a resolution requesting the High Commissioner for Human Rights "to prepare a study, in consultation with States, United Nations agencies and other relevant stakeholders, to be presented to the Human Rights Council at its thirtieth session, on the impact of the world drug problem on the enjoyment of human rights, and recommendations on respect for and the protection and promotion of human rights in the context of the world drug problem, with particular consideration for the needs of persons affected and persons in vulnerable situations ". The Office of the High Commission for Human Rights invited NGOs to provide input to this study. TNI's input can be found here.
The completed study was presented to the panel discussion on the impact of the world drug problem on the enjoyment of human rights convened at the 30th session of the Human Rights Council in September 2015.
The report identified a number of impacts on diverse human rights including the right to health, rights related to criminal justice (including the right to life), prohibition of discrimination, rights of the child, and rights of indigenous peoples (a summary of the report can be found in the textbox in section 6).
In March of 2018 a further study was requested, to be prepared by the United Nations High Commissioner for Human Rights, in consultation with States, the United Nations Office on Drugs and Crime and other United Nations agencies, civil society and other relevant stakeholders. The report will address the implementation of the UN General Assembly Special Session on Drugs (UNGASS) Outcome Document (see below) with regards to human rights. This report will be presented to the OHCHR in September 2018, and is also intended as a contribution from the OHCHR to the ongoing preparations for the review in 2019 of the current Political Declaration and Plan of Action of the Commission on Narcotic Drugs. This report is therefore positioned to potentially play an important role in shaping the international drug control regime in the years after 2019.
Furthermore, a coalition of UN Agencies including the United Nations Development Programme, the International Centre on Human Rights and Drug Policy (HRDP), the UN Office on Drugs and Crime (UNODC) and the Office of the High Commissioner on Human Rights (OHCHR), are supporting a process to develop and implement guidelines on human rights and drug control. Following on recommendations from the Global Commission on HIV and the Law in 2012, the guidelines seek to support a human-rights centered reform of drug law and policy. The Guidelines, modeled on the kind of human rights guidelines already developed on diverse issues including terrorism, HIV/AIDS and business, could help to close the gap between discourse and practice in respect to human rights and drug control.
In June 2017, UNDP and HRDP convened the first global consultation on developing international guidelines on human rights and drug control in Bogotá, Colombia. The discussion focussed on the health and human rights consequences of decriminalization, and alternatives to forced eradication and excessive incarceration. Consultations also took place in 2018.
The UN General Assembly convened a Special Session on the world drug problem from 19 – 21 April 2016, at the UN Headquarters in New York, following a joint declaration issued in 2012 by the governments or Colombia, Guatemala, and Mexico calling for the UN to “conduct deep reflection to analyze all available options, including regulatory or market measures, in order to establish a new paradigm that prevents the flow of resources to organized crime organizations.”The Session was the third in the history of the General Assembly to focus specifically on the World Drug Problem, with the previous such session held in 1998.
Given this context, many participants hoped for a far-reaching re-assessment of the “war on drugs” and the dominant strategies of international drug policy to date. Although open and frank discussions within the event showed growing opposition to the dominant approach, the results, particularly as reflected in the UNGASS Outcome Document, were much less radical than was hoped.
The pre-negotiated Outcome Document was adopted without a vote at the beginning of the Session and affirmed the unrealistic goal of “a society free of drug abuse”. The document did not acknowledge growing calls for the abolition of the death penalty for drug-related offenses, and did not explicitly mention harm reduction, or the legitimacy of decriminalization under international treaties. Nonetheless, the document did help to set the stage for further progress on some key issues: it adopted a new seven-pillar approach including “operational recommendations on cross-cutting issues: drugs and human rights, youth, children, women and communities”, welcomed the Sustainable Development Goals, referred to the concept of proportional sentencing for the first time, gave significant attention to the question of access to controlled medicines, mentioned some specific harm reduction methodologies, and called for ‘alternative or additional measures with regard to conviction or punishment’.
The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, expressed in his statement “suppressed excitement” but primarily “intense frustration” about the UNGASS outcomes. One example he mentioned was that the language regarding indigenous rights in the outcome document was “ambiguous” and that “it would have been better if it would be clearly indicated that indigenous peoples should be allowed to use drugs in their traditional or religious practices where there is historical basis for this”.
The issue could not be openly addressed because the Single Convention explicitly obliges parties to abolish such practices and the political deal required that the UNGASS “unequivocally” reaffirmed support for the treaties. A month earlier, the High Commissioner had addressed the Human Rights Council in Geneva, saying he was “disturbed by a widespread practise of what could be termed ‘human rights window-dressing’.” Referring to “the binding laws and principles of human rights”, he underscored that those obligations “should not be a ‘tick-the-box’ exercise”. The UNGASS outcomes in fact are a good example of that, even though they contain arguably the strongest human rights provision ever adopted in a UN drug control resolution. Still, they lack specific recommendations for practical measures with regard to decriminalization, abolition of death penalty, harm reduction and respect for indigenous rights, as spelled out by the relevant human rights bodies. Many countries issued formal statements after the adoption of the document during the UNGASS opening session expressing their disappointment over these issues.
A complete report on the UNGASS 2016 can be found here.
5. What is the United Nations Office on Drugs and Crime doing to promote human rights in drug control?
In 2008 the executive director of UNODC published a report called “Making drug control fit for purpose: Building on the UNGASS decade” as a contribution to the discussions around the new political declaration, strategy and action plans to be adopted at the 2009 High Level session of the CND. In this document the director acknowledged the unintended consequences of the international drug control system, including policy displacement (a focus on law enforcement and less attention to public health) and the marginalization of drug users.
The report reminds readers that “the Charter of the United Nations takes priority over all other instruments”, advocating a triple commitment over the following decade: “...reaffirming the basic principles (multilateralism and the protection of public health); improving the performance of the control system (by achieving the UNGASS objectives and doing enforcement, prevention, treatment and harm reduction simultaneously); and mitigating the unintended consequences.”
The human rights resolution adopted in 2008 provided a clear mandate for the UN Office on Drugs and Crime to properly consider and assess its human rights responsibilities. In 2010 a report on UNODC’s work and human rights was produced for the CND, and in 2012 UNODC published a guidance note for staff on the human rights implications of its work. In this note UNODC acknowledges “there is a small, but ever present, risk that UNODC activities could have a negative impact on human rights”. It suggests strategies for addressing that risk.
To date, little concrete action has been taken to implement those strategies. This requires urgent attention as it is now documented that UNODC programmes have helped to capture suspected drug traffickers who have later been extradited to death-penalty states, and in some cases executed. For this reason, Denmark, among other governments, has withdrawn donor support for the drug-control component of UNODC's Iran programme.
The 2016 World Drug Report published by UNODC responded to the UNGASS 2016 and gave particular emphasis to the importance of aligning international drug policy with the Sustainable Development Goals, and global development initiatives more broadly. The report emphasized the relationship between the world drug problem and SDGs relating to reducing inequalities, ensuring health, achieving gender equality, ending poverty, protecting nature and biodiversity, promoting peaceful and just societies, and establishing international partnerships. The report emphasized that, for drug policies to support rather than impede the realisation of the SDGs, they must be fully in line with international human rights, evidence-based, and gender-sensitive and makes special reference to the right to health of prisoners. However at the same time the report continues to place a heavy emphasis on the role of justice mechanisms.
The Thai war on drugs
In 2003, the populist Prime Minister Thaksin started an aggressive 'war on drugs' with the aim of eradicating drug use, trade and production within three months. The campaign resulted in the arbitrary inclusion of drug suspects on poorly-prepared government 'blacklists' or 'watchlists', the intimidation of human rights defenders, violence, arbitrary arrest and other breaches by Thai police, coerced or mandatory drug treatment, and scores of extra-judicial killings. The government blamed these killings largely on gangs involved in the drug trade, but human right organisations blamed them "on the endorsement of a policy of extreme violence by government officials at the highest level."
After Thaksin was overthrown by a coup in September 2006, an independent special committee, formed by the temporary military government, investigated the unlawful deaths and found that 2,819 people had been killed between February and April 2003. Many of the dead had been blacklisted by police or local authorities as suspected drug dealers. Of those deaths, 1,370 were related to drug dealing, while 878 of them were not. Another 571 people were killed without apparent reason. Police officers were suspected to have been involved in many of the attacks, particularly as many people died soon after being taken to police stations for questioning. Despite many promises to bring those responsible for the murders to justice, to date not a single high-ranking military or police official involved in the atrocities has been charged. Some lower ranking officials have been found guilty and three police were sentenced to death in July 2012 for killing a teenager during the crackdown on drugs.
Although opinion polls throughout the drug war showed support for the government's violent tactics, the outcome did not curb Thailand's illegal drug trade, use or production, but simply made it more dangerous. Most drug users continued to use heroin or methamphetamine, albeit at a higher cost and less frequently. Treatment experts also noted that many people who started drug treatment in early 2003 were not drug users at all, but were people who feared for their lives because they were suspected of using drugs.
The Philippines War on Drugs
In spite of the clear failure of Thailand’s violent crack-down on drug users, other countries continue to pursue similar strategies. Since Rodrigo Duterte’s inauguration as President of the Philippines in June 2016, the country has been waging a bloody “war on drugs” also known as Oplan Tokhang (Operation Tokhang). As of September 2017, reports indicated that over 12,000 people had been killed, with some reports claiming numbers as high as 20,000.
Victims include alleged or suspected drug users or dealers, as well as a number of bystanders, including children. Approximately 4,000 of these killings have taken place during operations carried out directly by police. The remaining killings have been carried out by “unknown assailants”. Human rights monitors and other critics believe that the vigilantes involved in these killings are acting with official sanction. The government has denied these charges and police claim to be investigating all killings. However, observers have pointed out that many of the vigilante killings bear a close resemblance to the methods of the “death squads” which operated in the city of Davao during Duterte’s term as mayor, as identified in a 2009 report by Human Rights Watch.
A report by Human Rights Watch published on 01 March 2017 investigated 32 deaths between October 2016 and January 2017 and found that eyewitness accounts regularly contradicted police claims of self-defence and that fake evidence was routinely planted by police. According to the report “Human Rights Watch’s investigations into specific incidents found the police responsible for extrajudicial executions—the deliberate killing by state security forces or their agents of a person in custody.” In October 2017, in response to outcry over killings, President Duterte temporarily removed the Philippine National Police (PNP) from anti-drug operations, which reduced but did not halt killings. In December 2017 they were placed back in charge, and violence seems to have surged again.
Elements of the national government in the Philippines are pushing for legislation to further enable the “war on drugs” including bringing back the death penalty to the Philippines, particularly for drug related offenses, and lowering the age of criminal responsibility from 15 to 9.
In March 2018 the Philippines declared its intention to withdraw from the International Criminal Court following the ICC’s announcement of a preliminary examination into a complaint filed with the court accusing Duterte and top officials of human rights abuses. A preliminary examination is an initial step, determining whether there are grounds for the ICC to continue with an investigation.
Withdrawal takes effect one year after formal notice of withdrawal from the Rome Statute (given by the Philippines on 17 March 2018) and has no effect on any ongoing proceedings. The court retains jurisdiction over crimes committed during the time in which the State was party to the Rome Statute.
Although the extent of the governments’ official involvement in killings by vigilantes remains unclear, Duterte has encouraged these killings with inflammatory rhetoric saying, for example, of drug users: “Go ahead and kill them yourself as getting their parents to do it would be too painful,” and “Please feel free to call us, the police, or do it yourself if you have the gun—you have my support,”. He has also offered bounties of up to 5 million pesos for drug lords, 'dead or alive'. In his campaign speeches he said “All of you who are into drugs, you sons of bitches, I will really kill you,” and he has claimed repeatedly to have personally killed suspects during his time as mayor of Davao. Furthermore, Duterte has publicly described users of metamphetamine, known locally as “Shabu” as less than human: “You must remember that those who are already in shabu for almost one year, they are dead. They are the living walking dead. They are of no use to society anymore”. Finally, Duterte has also suggested that the use of violence can also extend to those defending the rights of drug users, instructing police during a speech in August 2017 “if they are obstructing justice, you shoot them.”
The rhetoric of the Philippines war on drugs has been marked by a refusal to distinguish between drug addiction and drug use with the administration equivocating between users and problematic users, and citing wildly inflated figures. President Duterte has, for example, identified the number of drug addicts in the Philippines as 3 million, or as many as 3.7 million in some speeches. This would represent over 3% of the total population of the country. These numbers contradict those provided by the Office of the President’s Dangerous Drugs Board (DDB) in 2015, as reported by Reuters. This research showed that there were 1.8 million drug users in the Philippines, one third of whom had taken drugs just once in the last 13 months and only 860,000 of whom reported using Shabu.
The wave of violence in the Philippines illustrates the vulnerability of drug users to human rights abuses and demonstrates the importance of international recognition that, as reiterated by Mr. Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, “people do not lose their human rights because they use drugs”.
6. What do the human rights monitoring bodies say about the human rights violations in the name of drug control?
The former UN High Commissioner for Human Rights, Navi Pillay, urged States to reconsider drug control from a human rights perspective, speaking at a side event at the Human Rights Council in Geneva, 16 June 2014. This perspective has been echoed by a number of international commentators on human rights and drug control.
In September 2015 the Office of the High Commission for Human Rights presented a study on the impact of the world drug problem on the enjoyment of human rights at a panel discussion on the issue at the 30th session of the Human Rights Council. The study addressed concerns in five categories:
- the right to health
- rights related to criminal justice
- prohibition against discrimination
- the rights of the child and
- the rights of indigenous peoples
The panelists further raised a number of critical issues including ongoing stigmatization and exclusion of drug users, ongoing application of the death penalty for drugs offenses, the negative impacts of criminalization of drug use, the rights of predominantly poor producers of illegal crops, the barriers to drug users accessing appropriate care and health services, lack of access to drugs for medical uses and pain relief, and “the necessity to combat drugs through a comprehensive and human rights-based approach that protected victims and drug users’ rights to health, non-discrimination and access to justice”. See the full report here.
Speaking at the United Nations Special Session on the world drug problem 2016 Mr. Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights raised concerns about key omissions from the UNGASS outcome document, describing his response to the document as “a mixture of intense frustration and suppressed excitement”. He recognized the importance of new references to human rights and the proclaimed commitment to a human-rights-based approach, as well as references to health care and treatment in the document. At the same time, however, he lamented the missed opportunity to commit to fully respecting the human rights of drug users, in particular by decriminalizing personal drug use: “When drugs are decriminalised and health care, including harm reduction, is available, which is the case in a number of Member States, drug dependent persons are less likely to resort to criminal behaviour to get funds to support their drug dependence. They can obtain opioid substitution therapy where controlled substances would be applied under medical supervision. We would have liked accordingly to see a clear reference to the right to health as provided by the International Covenant on Economic, Social and Cultural Rights”.
In March 2018, at the close of its 37th Session, the UN Human Rights Council voted to adopt a Resolution reaffirming the necessity of respecting, protecting, and promoting the human rights of all people in the development and implementation of drug policy. The resolution requests the Office of the UN High Commissioner for Human Rights to prepare a report on the implementation of the UN General Assembly Special Session on Drugs (UNGASS) Outcome Document with regards to human rights, to be presented at the 39th session of the Human Rights Council in September 2018. The report will also be shared with the CND in advance of the upcoming High Level Segment in April 2019, which will lay the groundwork for the coming years of international drug policy.
Report of the High Commissioner for Human Rights: Study on the impact of the world drug problem on the enjoyment of human rights
In respect to the right to health the Commissioner’s 2016 report identifies harm reduction approaches as “essential for persons who use drugs” and gives information on approaches including opiate substitution, drug-consumption rooms, needle and syringe programmes, and other interventions, citing studies showing a link between consistent implementation of harm-reduction approaches and lower rates of HIV prevalence amongst people who injected drugs.
Criminalizing harm reduction practices such as sharing information on safe drug use and carrying syringes or drug paraphernalia is not compatible with the right to health, and potentially contravenes the International Guidelines on HIV/AIDS and Human Rights.
The right to health in the context of prisons was identified as a key issue with access to prevention, treatment, and harm-reduction services in the context of incarceration often severely compromised. The Special Rapporteur on the right to health was cited identifying many ways in which criminalizing drug use and possession impedes the achievement of the right to health, including discouraging users from seeking health care, and promoting riskier practices, and has called for decriminalization of drug use.
The report also identified the lack of access to essential medicines as a key issue relating to the right to health – lack of access to controlled medicines is often caused by unnecessarily restrictive drug control regulations and practices.
A range of issues surrounding rights related to criminal justice were also identified: people who use drugs are at risk of arbitrary detention, and may be denied access to opioid substitution therapy during detention (a practice found to constitute torture). 33 countries continue to impose the death penalty for drug related offences even though the Human Rights Committee has determined that drug-related offences do not meet the threshold of “most serious crimes”. Extrajudicial executions and the impunity for extrajudicial killings were flagged as a source of concern in operations aimed at the drug trade. Finally concerns were raised around the right to a fair trial and various human rights violations related to compulsory drug detention centres, which have been condemned by a joint statement of 12 United Nations entities.
The report raised concerns about the Prohibition of discrimination: individuals may be discriminated against following drug-related convictions. Ethnic minorities may be disproportionately targeted for drug law enforcement, and women who possess or use drugs especially are particularly vulnerable to certain forms of discrimination.
Issues were also identified relating to the rights of the child, particularly in respect to detention of children for drug offenses, and lack of access to harm-reduction services. The Rights of indigenous people are also compromised by restrictions on the crops used for traditional and religious uses, which include cannabis, opium poppy, coca, and peyote.
In conclusion, the report calls for the full protection of the human rights of all persons using drugs and encourages all states to adopt measures to promote this.
The INCB is the quasi-judicial body established in accordance with the 1961 Convention on Narcotic Drugs to monitor the implementation of the UN drug control conventions. It is the same independent committee model adopted for the human rights treaties – though specific functions differ by nature of the treaties. The INCB can make recommendations to ensure adequate availability of narcotic drugs and psychotropic substances for medical and scientific purposes, as well as call for measures to suppress the illicit market.
Over the years the INCB has developed a track record of critiquing new alternative policy approaches aimed at reducing the damage of the drug market, while simply noting measures that lead to human rights abuses without any critique. TNI and several other NGOs have drawn attention to this position, and have been recommending that the INCB starts carrying out its task in alignment with other UN bodies, with respect for human rights.
Each year the INCB publishes a report on the implementation of the UN drug control system, based on data collected during INCB missions and information provided by the Member States. In 2007 the INCB stated that lack of respect for human rights undermines implementation of the drug treaties. It would seem therefore that a focus on human rights is a practical necessity for the INCB to fulfill its mandate. But to date, the annual INCB report has not voiced any concern about human-rights abuses as a result of drug control. In fact, contrary to many other UN agencies, the INCB seems to be supporting “compulsory centres” as treatment facilities, and is taking an anti-harm reduction stance. When asked directly, the president of the INCB refused even to condemn torture. Board members and their annual reports have also remained non-committal on capital punishment for drug offences, even when member states challenged the INCB position on the matter. It took until March 2014 for the INCB to decide to start encouraging member states to consider abolishing the death penalty for drug-related offences (see: Press Release); but even then this position was not included in the 2013 annual report. The recommendation was first mentioned in the annual report for 2015.
The 2015 annual report otherwise reiterates the position that “challenges can be met by fully implementing the conventions and the principles of the political declarations.” It looks forward to the 2016 UNGASS as an opportunity to discuss implementation of the existing conventions, but forestalls discussion of re-assessing the conventions themselves. The Chapter on the health and welfare of mankind includes just two short paragraphs directly addressing human rights concerns. Although this section mentioned the previously issued recommendation to “consider abolishing capital punishment for [drug-related offenses]” the majority of the section focusses on the deleterious effects on human rights of drug abuse and corruption, emphasizing the importance of adequate drug control for the protection of human rights. The 16 recommendations to governments and the UN in the conclusion of the report include references to alternative livelihood programmes for supply-reduction, “medically appropriate and evidence-based treatment” for people affected by drug abuse, and the need for improved access to narcotic drugs and psychotropic substances for medical purposes. Recommendations regarding capital punishment are not repeated here, and there is no explicit mention of harm reduction, opioid substitution therapy, or abolishing compulsory treatment centres.
The 2016 Annual Report, however, provides clear evidence that the INCB is shifting towards a health and human rights oriented interpretation of the UN drug conventions. The report includes several clear recommendations on the proportionality of sentencing (including decriminalizing of drug use and possession for personal use) and the abolishment of capital punishment for drug related offences.
The coordinated, forced eradication of illicit crops worldwide intensified since 1998. In Colombia the supply-reduction strategy comprised of manual eradication, aerial spraying and alternative development. Colombia began an intensive campaign of massive aerial spraying in December 2000, as part of the US- supported Plan Colombia. Over the past two decades, more than 2.2 million hectares of land have been sprayed with herbicides according to the Colombian National Police Anti-narcotics Directorate. The aerial spraying with herbicides (glyphosate) of drug crops have produced very harmful and destructive results. The poison has damaged the health of the local people; it has polluted the drinking water and does not only eradicate the coca crop but also other legitimate subsistence crops.
These human rights violations eroded the legitimacy of the state, peasant support for the guerrilla increased, and the War on Drugs became intertwined with counterinsurgency objectives.
The aerial-spraying cycle added to the already substantial displacement in the country, forcing indigenous groups to migrate deeper into the rainforest and accelerating the pace of deforestation where slash-and-burn plots are planted with illicit coca or poppy crops replacing those previously sprayed.
According to a recent UNODC estimate the area under coca bush cultivation in Colombia diminished by 62% between 2000 and 2010. This decline is attributed to a combination of alternative development and law enforcement measures. Meanwhile the coca production in Bolivia and Peru increased considerably, and the global supply of cocaine remained stable.
In 2001 TNI published a book on the devastating impact of aerial spraying: Vicious Circle (see: http://www.tni.org/tnibook/vicious-circle).
The UN Committee on the Rights of the Child, the UN Committee on Economic Social and Cultural Rights, the UN Special Rapporteur on the Right to Health and the UN Special Rapporteur on Indigenous Peoples Rights have all criticised the practice.
Finally on May 10 2015 the Colombian President Santos announced he was going to ask the National Drug Council to suspend glyphosate spraying of illicit cultivations after the International Agency for Research on Cancer (the cancer research arm of the World Health Organization) published a report confirming that glyphosate is carcinogenic for humans. In April 2016, Colombia partially back-tracked on this decision, re-instating the use of glyphosate sprays for manual spraying, though the ban on aerial spraying remains in effect. In June of 2018, following official US government statements identifying an increase in cocaine use and linking this to coca production in Colombia, President Juan Manuel Santos announced the country’s decision to resume aerial spraying of glyphosate.
Unfortunately spraying with glyphosate also remains a practice in other parts of the world and especially subsistence farmers are victims of this practice.
The right to life
Article 3 of the Universal Declaration on Human rights and Article 6 of the International Covenant on Civil and Political Rights
- Tough law enforcement actions against drug users sometimes result in extra-judicial killings, as was the case in 2003 when Thailand launched its drug war which killed over 2,300 individuals, and in the Philippines which, in 2016 launched an on-going drug war which had claimed over 12,000 victims by September 2017.
- The UN Drug Conventions currently contain no explicit provisions obliging states to seek assurances regarding treatment of a prisoner being transferred to a country where they risk human rights violations, or being subject to execution.
- Capital punishment for drug related offences is still being imposed in 33 member states accounting for over 1,000 deaths annually (A/HRC/30/65) while drug related offences do not meet the threshold of “most serious crimes”.
The right to health
Constitution of the World Health Organisation, Article 12 of the International Covenant on Economic, Social and Cultural Rights, article 24 of the Convention on the Rights of the Child (and other sources)
- People who use drugs have the right to available, accessible, acceptable and sufficient quality health services
- In several countries, e.g. Thailand, Turkmenistan, Russia, Japan and some countries in Latin America, criminal laws banning syringe provision and possession create a climate of fear for drug users, driving them away from life-saving HIV prevention and other health services. This fosters risky behaviour and therefore facilitates the transmission of blood-borne diseases such as HIV and hepatitis C.
- Access to essential medicines is a recognized core-minimum requirement of the right to health. Because of legal and political restrictions on essential medicines such as morphine, tens of millions of people suffer moderate to severe pain. Access to methadone and buprenorphine as substitution treatment for dependent opioid users is hampered, or in some countries even illegal.
- In 2008 the UN Special Rapporteur on the right to health Paul Hunt argued that “[t]he right to the highest attainable standard of health requires all States to provide, as a matter of priority, national, comprehensive harm reduction services for people who use drugs.” These services are not available in many jurisdictions.
- According to the UN Special Rapporteur on the right to health, prosecutions have occurred in various jurisdictions in relation to the use of illicit drugs by pregnant women. The rapporteur has argued that such criminalization of conduct during pregnancy infringes on the right to health of pregnant women by impeding access to health-care.
- Several South East Asian countries use ‘compulsory drug detention and rehabilitation centres’ as a form of treatment for drug dependence. These centres are often run by law enforcement officials with no medical training.
Some centres are even reported to use experimental treatment without the consent of the patients (also see the right to the inherent dignity of the human person, article 10 of the International Covenant on Civil and Political Rights).
Freedom from cruel, inhuman or degrading treatment or punishment (ICCPR, CAT, CRC)
- In his report the former Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak has noted the challenges posed to criminal justice systems by punitive drug policies, both in terms of sheer numbers but also of the special needs of drug users in detention. The Special Rapporteur and his successor, Juan Mendez, have called for the scaling-up of harm-reduction interventions in places of detention.
- Many drug users in prisons and compulsory drug treatment centres have reported being subject to beatings, sexual assaults, starvation and humiliation.
- Withdrawal has been used to extort money or extract information from people who use drugs; police beatings of suspects to extract information are also common.
Freedom from forced labour
Article 8 of the International Covenant on Civil and Political Rights
- Compulsory drug treatment centres sometimes use forced labour as a ‘therapeutic’ element, making patients work for hours without remuneration.
The right to due process and a fair trial
Article 9 of the International Covenant on Civil and Political Rights
- As a result of the large number of drug-related arrests, the criminal justice system is often overloaded and suspects are sometimes kept in pre-trial detention for months.
- The drug users who are subject to compulsory centres are usually arrested and sent to the centres automatically, without having been provided a fair trial. In several South East Asian countries, all drug users, dependent or not, are sent to these compulsory centres. This means that the system does not differentiate between the users who are indeed in need of treatment, and those who are non-problematic users.
- Special courts have been put in place or used to try those suspected of drug trafficking, such as the Iranian Revolutionary Courts.
The right to be free from discrimination
1960 International Convention on the Elimination of All Forms of Racial Discrimination, 1979 Convention for the Elimination of All Forms of Discrimination Against Women 1966 International Convention of Civil and Political Rights
- Because of the high social stigma associated with drug use, drug users are discriminated against in their workplace and within their communities.
- In certain countries, drug control laws are implemented discriminating against minority ethnic groups, indigenous people and women. A particularly high stigma is attached to women and pregnant drug users.
The right to an adequate standard of living, and to progressive realization of economic social and cultural rights
1966 International Covenant on Economic, Social and Cultural Rights
- Illicit drugs are generally produced by farmers from the poorest and most vulnerable communities in the world. Crop eradication campaigns can have a devastating effect on these farmers and their families, leaving them with no alternative means of subsistence.
- Alternative development programmes that are not properly designed and sequenced can also be devastating for these communities.
The economic, social and cultural rights of indigenous people
Article 14(2) of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1989 Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries and 2007 Universal Declaration on the Rights of Indigenous Peoples (Articles 11, 12, 24, 26, 27), International Covenant on Civil and Political Rights, Article 5, Convention on the Elimination of Racial Discrimination (and other sources)
- Indigenous people are prevented from producing and consuming controlled substances that they have been using for centuries for traditional purposes. This is the case for the coca leaf in Latin America, of kratom in Thailand and Myanmar, and of opium throughout South East Asia
The rights of the child
Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
- The current drug control system is not protecting children the way we would hope, drug use among teenagers is higher than ever, and when children start using drugs no treatment and harm-reduction services are provided. In most countries drug-using children are criminalized and in many cases they have to carry this burden for the rest of their lives. At the same time, the children of drug-using parents are stigmatized and if their parents are sent to jail or detention centres the children run a high risk of committing crimes and using drugs themselves.
- Children are among those without access to essential controlled medicines for the relief of pain.
- Children have been detained with their mothers who have been convicted of drug offences, as they have nowhere else to go
- Children have been killed and orphaned in drug-related violence
- Children are often imprisoned for drug-related crimes, although Article 37 of the Convention on the Rights of the Child unambiguously states that detention or imprisonment of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time”.
- The UN Committee on the Rights of the Child has called for children who use drugs to not be criminalized; for accurate and objective information on drugs to be made available; for appropriate youth-friendly harm reduction and drug treatment services to be in place.
- The Committee has criticised aerial spraying in Colombia and the use of minors in the Mexican military for fighting the drug war. It has also criticized Viet Nam and Cambodia for holding children in drug detention centres.
The Right to privacy
Article 12 of the Universal Declaration on Human Rights and Article 17 of the International Covenant on Civil and Political Rights.
The relationship between international drug control systems and this right is an emerging area of concern. While the right to privacy is not absolute and interference with private lives can be justified with reference to public health and, in limited ways, morals, international human rights norms require that such interference not be arbitrary or unlawful. Positions from the European Court of Human Rights and the Human Rights Committee have suggested that the right to particular conduct may be protected even where this is considered physically or morally harmful, and the Special Rapporteur on Health has stated, in the context of sexual health, that “Public morality cannot serve as a justification for enactment or enforcement of laws that may result in human rights violations […] Although securing particular public health outcomes is a legitimate State aim, measures taken to achieve this must be both evidence-based and proportionate to ensure respect of human rights”.
The emerging importance of this perspective is suggested by recent decisions in Argentina (2009), Colombia(2012), Mexico (2014) and South Africa which found criminalization of possession of small quantities of certain drugs for personal use to be inconsistent with protecting peoples’ right to autonomy, privacy, or the “free development of personality”.
While the status of the rights to privacy, autonomy, and free development of personality in relation to drug use have not been explicitly addressed by an international human rights body yet, the growing discussion at the national level suggests that a nuanced discussion of the boundaries of personal freedom and autonomy should play a role in future discussions of drug control.
9. What can be done to work towards human rights based drug control?
The main aim of the UN drug conventions “to protect the health and welfare of mankind” is in no way contrary to the international human rights, but at the same time many human rights breaches happen in the name of drug law enforcement. Over the years policy innovation has shown that an effective, evidence-based approach can contribute to the protection of human rights while at the same time addressing the drug-related harm. What is needed is a shift in targets: it does not help to aim for high arrest and seizure rates; we know these do not have any impact on the drugs market. The illegal market will always be one step ahead of enforcement. Instead, we should aim to reduce the harm of drug use to the individual user and the community; setting targets for an increase in the accessibility of services; the lowering of the overdose rate and the infection rates of blood-borne diseases; and the reduction of drug-related violence.
The UN Drugs conventions must be interpreted in line with international human rights law. This will both limit any excesses justified under these treaties and increase legal support for positive elements within them, such as access to essential controlled medicines, and the freedom within the conventions to expand harm-reduction.
The UN conventions do not criminalize drug use or even possession for personal use and allow national governments to provide alternatives. The INCB and UNODC should advocate in favor of these alternatives. Indeed, given the ineffectiveness of criminalization on patterns of use and drug-related harm, it is difficult to see how criminalizing personal use or possession can be deemed a proportionate infringement of the right to privacy, or the manifestation of religions or cultures.
That said, there are areas within the drugs conventions that cannot be reconciled with human rights law, in particular the prohibition of certain traditional, cultural and indigenous practices. These conflicts must be addressed by the states party to the conventions.
All UN institutions are mandated to promote human rights by virtue of their establishment under the UN Charter.
The UNODC is providing “technical assistance” in drug control, such as legal advice, field missions and training of magistrates. Only recently, the UNODC has published a guidance note outlining how it intends to promote and protect human rights.
In its 2011 World drug report UNODC policy calls for progress in three key areas:
- to put public health back at the centre of drug control efforts, balancing the way funds are spent to ensure that demand and the adverse health and social consequences of drug use are reduced;
- to place drug control in the larger context of crime prevention; and
- to uphold human rights and human dignity.
The 2016 World Drug Report
The 2016 Annual Report of the INCB is equally clear about the need to uphold human rights in drug control. The INCB is drawing attention to the proportionality of sentencing and encourages member states that retain capital punishment for drug related offences to abolish death penalty for this category of offence. It reminds the Member States that “There is no obligation stemming from the conventions to incarcerate drug users who commit minor offences”. The Board is also calling for an immediate stop to extrajudicial acts in the name of drug control and demanding investigations and sanctions against the perpetrators.
In March 2019 the International Guidelines on Human Rights and Drug Policy were launched at the UN Commission on Narcotic Drugs in Vienna. The document serves as a resource for policy-makers, diplomats, lawyers and civil society organizations. It covers key themes including health, development and criminal justice and examines human rights obligations towards particular groups such as women, children, indigenous peoples and prisoners.
First, human rights challenges with respect to the national drug control strategy should be identified. Once this has been done the national strategy should be amended to ensure the protection of the human rights of the users, producers and traffickers of drugs as well as their (social) environment. The media have an important role to play with regards to raising awareness of the human rights situation and influencing public opinion.
An integrated, balanced approach based on the principle of harm reduction will help to include human rights in drug policy. In some regions it will require political courage to choose this approach. It is also very important that the law enforcement and justice system is in support of the new approach, to make sure penalties are proportionate and police officers are not hampering treatment and harm-reduction services.
Donor countries have to make sure their funding is not supporting maintenance and staff training at drug detention centres where people are subject to physical violence, torture or treatment for which there is no scientific evidence. Donor states should always have due diligence to ensure their aid is not facilitating human rights abuses.
The Drugs and Democracy Programme in TNI has been researching drugs, the drugs market and the impact of drug policies especially in Latin America and Southeast Asia. With the results of our work we aim to improve drug control policies nationally and internationally.
We draw attention to human rights abuses in the name of drug control and offer alternative policy recommendations. We publish a series of drug policy and legislative reform briefings which can be accessed through this website.
We are involved in formal discussions (national and international) on drug policy, and attend the annual meeting of the UN Commission on Narcotic Drugs in Vienna as an NGO observer.
We assist governments in the drafting process around resolutions calling for the protection and promotion of human rights.
In Latin America, Europe and Southeast Asia TNI facilitates Informal Drug Policy Dialogues between government officials and drug policy experts to work towards effective, evidence-based drug policy with human rights as a core element.
TNI also works to improve the representation of drug growers in international drug policy fora, and to give increased visibility to their human rights. In 2013 TNI helped to organize the first forum of growers of crops declared illicit in Southeast Asia and in 2016 producers of prohibited plants from 14 countries gathered in the Netherlands. The findings from the meeting were presented by representatives at the UNGASS 2016.
With special thanks to Damon Barrett, Director of the International Centre on Human Rights and Drug Policy and Deputy Director of Harm Reduction International, for his valuable advice.
- International Guidelines on Human Rights and Drug Policy
- Website of the Office of the High Commissioner for Human Rights
- Drug control, crime prevention and criminal justice: A Human Rights perspective. Note by the Executive Director, March 2010
- Thematic Briefings on Human Rights and Drug Policy, Harm Reduction International, October 2010
- Out of harm’s way – Injecting drug users and harm reduction, an advocacy report, International Federation of Red Cross and Red Crescent Societies, December 2010.
- Recalibrating the regime: the need for a human rights-based approach to international drug policy, Beckley Foundation Drug Policy Programme, 2008
- Thematic report of the UN Special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (6 August 2010), A/65/255
- Making drug control ‘fit for purpose’: Building on the UNGASS decade, Report by the Executive Director of the United Nations Office on Drugs and Crime as a contribution to the review of the twentieth special session of the General Assembly, UNODC, March 2008
- Website of the International Centre on Human Rights and Drug Policy
- Amnesty International movement adopts new policy positions on abortion and drug control
- Community-based drug treatment models for people who use drugs. Six experiences on creating alternatives to compulsory detention centres in Asia
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