Human rights and drug control

Narrow interpretation of international drug control conventions by some countries has resulted in a failure to provide vital health and harm reduction services. Martina Melis argues a reinterpretation of the international framework is needed to remove these 'unintended consequences'.

The International Drug Control Conventions were established by the international community with the primary objective of preventing and combating the non-medical and non-scientific production, supply and consumption of narcotic and psychotropic drugs. Essentially, their emphasis is on control and on punitive and repressive measures to address supply.

The Conventions contain some guiding principles on responses to address drug demand and treatment. However, the language on measures to be adopted with regard to these responses and the relation between provisions regulating supply vis-a-vis demand and use were left generic and often vague. These have subsequently often been translated by some national governments into reasons (or excuses) to restrict their options for public health driven responses to drug use.

This has been particularly the case with regard to harm reduction approaches and interventions, often debated and opposed by some influential UN Member States at the annual meetings of the CND, and behind its scenes. A fundamental consequence of the outcome of these debates is that interventions aimed at reducing the harms related to illicit drug use – particularly those aiming at HIV and Hep C prevention, are not being implemented in some countries.

Their alleged conflict with the Conventions is used as the justification for non endorsement/implementation of harm reduction programmes. Despite the fact that the Conventions do not require the criminalisation of drug use per se, in many countries the only response available to drug users is incarceration.

It is important to emphasise that the fundamental problem does not lay with the Treaties themselves, but rather with the way they have been interpreted.

On the one hand, there has been traditionally a stress by some international drug control agencies – such as the International Narcotic Control Board, towards a restrictive interpretation of the Conventions and the rejection of harm reduction concepts and specific interventions. This continues to happen despite the results of the 2002 UNDCP Legal Affairs Section review – commissioned by the INCB itself, which found harm reduction interventions such as needle exchange programmes, opiate substitution treatment and drug consumption rooms as being compatible with the spirit and aims of the Drug Conventions.

On the other, after years of intensive scientific scrutiny, research and evaluation, harm reduction is now endorsed and promoted by almost all agencies comprising the ‘UN family’ – WHO, UNAIDS, UNDP to name a few. Even in the face of strong opposition, harm reduction has spread to over seventy countries in the past twenty years, - clearly an indicator of its merits.

Antithetic perceptions regarding the legitimacy of some interventions and policies vis-à-vis the international obligations set by the Conventions are allowed to co-exist despite the fact that they produce confusion and permit the adoption of often ‘extreme’ policies. While the validity of harm reduction and the need to rebalance international drug control – traditionally focussed on repression, with public health priorities and strategies is now scientifically supported, such validity is recurrently being politically negated.

Clearly, it is time for some clarity and coherence. Without such clarity, a number of countries - particularly the less-resourced ones that are dependent on foreign aid, continue to be pushed by particular donors’ pressure into the implementation of abusive, ineffective and harmful policies in the name of the Conventions. An urgent imperative is thus to free the Conventions from prohibitionist sequesters and for the international drug control system to recognise and extend to all countries the same level of flexible freedom in the interpretation and application of the treaties. This freedom in fact allows many resourced countries to shape drug policies upon their own cultural, social and economic characteristics and to autonomously decide the level of regulation that fits their context, culture and society. Currently this flexibility and freedom is not being enjoyed by all Drug Control Conventions signatories.

Fortunately, there is hope for change.

The UNGASS 1998 review process is providing an opportunity for wide consultation across the world to review the past international drug control objectives and approaches and imagine a new strategy for the future. Amongst others, the ‘Beyond 2008’ process is a significant element of the review, as was this year’s meeting of the Commission on Narcotics Drugs. UNODC Executive Director, in its Report to the 2008 CND entitled ‘Making drug control ‘fit for purpose’: Building on the UNGASS decade’, in fact acknowledged the ‘unintended consequences’ of the past international drug policy. In the report, he stated that "Looking back over the last century, we can see that the control system and its application have had several unintended consequences - they may or may not have been unexpected but they were certainly unintended […] We must face the unintended consequences, contain them and then undo them".

In recent years, a number of organisations – such as Human Rights Watch, the International Harm Reduction Association and the International Drug Policy Consortium - have investigated and documented the ‘unintended consequences’ perpetrated in the name of drug control. Their report highlight, for example, that in some Asian countries, legislation and policies based on the international drug conventions criminalize drug use, and by that target people using drugs who end up incarcerated in settings that deny them access to basic healthcare, HIV prevention services and drug treatment. In Brazil, children recruited into drug trafficking gangs are considered legitimate targets for armed police and often are shot without hesitation. In Ukraine, the police intentionally use withdrawal as an investigative tool to coerce incriminating testimony from drug users, extort money by threatening to detain them and deny medical assistance to drug users going through withdrawal. Investigations in China uncovered extreme ill-treatment in the name of rehabilitation, such as the administering of electro-shock to drug users while viewing pictures of drug use.

The alleged application of the obligations set by the Conventions has allowed for the derogation of human rights protection in many countries. Emblematically, at the Commission of Narcotics Drugs 51st session held on 11-14 March 2008, one country delegate stated that "It is ridiculous to require us [meaning the CND] to work in accordance with human rights law”. Is it?

The protection of human rights is a specific obligation of all UN Members. 192 States around the world have subscribed to the Charter of the United Nations, proclaiming "We the peoples of the United Nations, united for a better world, determined […] to reaffirm faith in fundamental human rights, in the dignity and worth of the human person […] and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". Human rights have a higher standing in the UN Charter and in the UN system. When or if there is a conflict between drug control and human rights obligations, the protection of human rights prevails. Hence, the international community – and within that, countries that make human rights protection the very foundation of their nation like New Zealand, have an obligation to monitor and bring to an end human rights violations stemming from ‘extreme’ drug control policies, and hold countries accountable for such breaches. And a duty to assist countries in developing their own standards and practices that reflect and safeguard the fundamental rights of individuals and effectively protect the health of the public – without exceptions or trade-offs.

At the 2008 CND some important Resolutions were adopted. One in particular, entitled ‘Strengthening cooperation between the United Nations Office on Drugs and Crime and other United Nations bodies for the promotion of human rights in the implementation of the international drug control treaties’ is important in this context. While the version adopted is a drowned-down version of what initially proposed, its significance lies in the fact that the tensions between drug control and human rights were finally included in the CND agenda and in the priorities of the international drug control system. A significant step forward in the journey ahead.

Martina Melis has recently joined the Drug Foundation as a Senior Policy Analyst.

References

The Beckley Foundation Report 13 (2008) - Recalibrating the regime: the need for a UN system-wide coherance in drug control and human rights.
http://idpc.info/php-bin/documents/BFDPP_RP_13_Recal_Regime_EN.pdf

Human Rights Watch Report (2003) Locked doors: The human rights of people living with HIV/AIDS in China.
http://www.hrw.org/reports/2003/china0803/