December 9, 2013

III. International Legal Standards

Right to Health

The right to the highest attainable standard of health includes the principle of treatment following informed consent. The International Covenant on Economic, Social and Cultural Rights (ICESCR), which Cambodia has ratified, addresses the right to health in article 12.[101] The Committee on Economic, Social and Cultural Rights, the international expert body that provides authoritative interpretations of the ICESCR, has stated in its General Comment on the right to health that it includes “the right to be free from ... non-consensual medical treatment and experimentation.”[102] The World Health Organization (WHO) and the United Nations Office on Drugs and Crime (UNODC) also note that:

The same standards of ethical treatment should apply to the treatment of drug dependence as other health care conditions. These include the right to autonomy, and self determination on the part of the patient, and the obligation for beneficence and non maleficence [do good/do no harm] on behalf of treating staff.[103]

It is Human Rights Watch’s view that no one should be detained solely because of drug dependency. Compulsory treatment for people dependent on drugs can only be legally justified in exceptional circumstances of a crisis situation if the treatment provided is scientifically and medically appropriate and of good quality, and where such an intervention is intended to return a person to a state of autonomy over their own treatment decisions. Such interventions should be strictly time-bound, of short duration, and subject to review by an independent authority. Absent such conditions, there is no justification for compulsory treatment.

WHO and UNODC note that “neither detention nor forced labor have been recognized by science as treatment for drug use disorders.”[104]

Arbitrary Arrest and Detention

The International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party, states that, “No one shall be subjected to arbitrary arrest or detention.”[105] According to the UN Human Rights Committee, detention is considered arbitrary if it is not in accordance with law or if it presents “elements of inappropriateness, injustice, lack of predictability and due process of law.”[106] The ICCPR recognizes the right of detainees to be informed of the reasons for their arrest and of any charges against them, as well the rights to have legal assistance and to challenge the lawfulness of the detention before an appropriate judicial authority.[107]

Torture and Ill-Treatment in Custody

Cambodia has a legal obligation to investigate credible allegations of torture and cruel and inhuman treatment or punishment. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Cambodia, contains an absolute prohibition on the use of torture and other ill-treatment.[108] Rape and other forms of sexual assault in detention may amount to torture.[109]

Governments are obligated to “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed” even where a victim does not initiate the complaint.[110] Credible reports of cruel, inhuman or degrading treatment or punishment by, or at the instigation of, a public official must also be promptly and impartially investigated.[111]

WHO and UNODC state that “[i]nhumane and degrading practices and punishment should never be part of treatment of drug dependence.”[112]

Detention of Children

The Convention on the Rights of the Child (CRC), to which Cambodia is also a party, defines a child as any person under the age of 18. The CRC obligates governments to protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”[113] The CRC also states that any arrest, detention, or imprisonment of a child must conform with the law and can be done only as a “measure of last resort.”[114] The detention of children in the same facilities as adults is prohibited.[115]

Detention of Persons with Disabilities

Cambodia ratified the Convention on the Rights of Persons with Disabilities (CRPD) in December 2012.[116] The convention not only forbids arbitrary detention but also states that “the existence of a disability shall in no case justify a deprivation of liberty.”[117] It also provides that people with disabilities have the right to the enjoyment of the highest attainable standard of health, including on the basis of free and informed consent.[118]

The CRPD prohibits subjecting any person to torture or to cruel, inhuman, or degrading treatment or punishment, including non-consensual medical or scientific experimentation.[119] It also requires Cambodia to “take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities… from all forms of exploitation, violence and abuse.”[120]

Forced Labor

Cambodia has ratified International Labour Organization (ILO) Convention No. 29, which prohibits forced or compulsory labor, understood as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”[121] The ban on forced labor in international law does not cover “[a]ny work or service exacted from any person as a consequence of a conviction in a court of law” if certain preconditions are met. However, people held in drug detention centers in Cambodia have not been detained due to a conviction in a court of law.

With respect to forced labor for a commercial undertaking such as building construction, ILO Convention No. 105 prohibits forced or compulsory labor as “a method of mobilising and using labour for purposes of economic development.”[122]

[101] International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966), entered into force on January 3, 1976 and acceded to by Cambodia on May 26, 1992, art. 12.

[102] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, para. 34. 

[103] UNODC/WHO, “Principles of drug dependency treatment,” March 2008, p. 9, https://www.unodc.org/documents/drug-treatment/UNODC-WHO-Principles-of-Drug-Dependence-Treatment-March08.pdf (accessed July 31, 2013).

[104] UNODC/WHO, “Principles of drug dependence treatment,” p. 15.

[105]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Cambodia on May 26, 1992, art. 9(1).

[106] UN Human Rights Committee, Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in U.N. doc. GAOR, A/49/40 (vol. II),para. 9.8.

[107] ICCPR, arts. 9(2), 14(3), and 9(4).

[108] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, acceded to by Cambodia on October 15, 1992, arts. 1 and 16.

[109] The UN special rapporteur on torture has stated that “[r]ape and other forms of sexual assault in detention are a particularly despicable violation of the inherent dignity and right to physical integrity of every human being; and accordingly constitute an act of torture.” United Nations Special Rapporteur on Torture, Summary Record of the 21st meeting, U.N. ESCOR, Comm’n Hum. Rts, 48th Sess., para. 35, U.N. Doc. E/CN.4/1992/SR.21 (1992).

[110]Convention against Torture, art. 12.

[111] Convention against Torture, art. 16. Article 16 provides that just as with torture, each state party is required to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined by the Convention, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

[112] UNODC/WHO, “Principles of drug dependence treatment,” March 2008, p. 9.

[113] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, acceded to by Cambodia on October 15, 1992, art. 19(1).

[114]CRC, art. 37(b).

[115] ICCPR, art 10(2) and 10(3); CRC art. 37(c).

[116] Convention on the Rights of Persons with Disabilities (CRPD), adopted December 13, 2006 by G.A. Res. 61/106, Annex I, U.N.GAOR, 61st Sess., Supp. No. 49 at 65, U.N. Doc A/61/49 (2006), entered into force May 3, 2008, U.N. Doc. A/61/61, ratified by Cambodia on December 20, 2012.

[117] CRPR, art. 14(1)(b).

[118] CRPD, art. 25.

[119] CRPD, art. 15.

[120] CRPD, art. 16(1).

[121]ILO Convention No. 29 concerning Forced or Compulsory Labour (Forced Labour Convention), adopted June 28, 1930, 39 U.N.T.S. 55, entered into force May 1, 1932, ratified by Cambodia on February 24, 1969, art. 2.

[122] ILO Convention No. 105 concerning the Abolition of Forced Labour, adopted June 25, 1957, 30 U.N.T.S. 291, entered into force January 17, 1959, ratified by Cambodia on August 23, 1999, art. 1(b).