August 26, 2015
We write on behalf of Human Rights Watch to share with you our organization’s recommendations for the outcome document of the United Nations General Assembly Special Session on Drugs (UNGASS), scheduled for April 2016.
The special session is an important opportunity for UN Member States to reassess existing approaches to drug control, engage in an open and wide-ranging debate about their costs to human rights, and consider alternatives to the current approach to global drug control that are grounded in human rights.
The attached recommendations are based on Human Rights Watch’s decades of experience documenting human rights abuses related to global drug policies, as well as our analysis of these policies under international human rights law. We hope that our observations and recommendations will be useful to you as you prepare for the UNGASS, and in particular, as you provide input to the zero draft of the outcome document, which we understand is now being negotiated.
Please do not hesitate to contact us if we can provide further information. Many thanks for your attention to this matter.
Maria McFarland Sánchez-Moreno Bruno Stagno Ugarte
Co-Director Deputy Executive Director
US Program Global Advocacy
Human Rights Watch Recommendations on Drug Policy
for the “Zero Draft” of the 2016 UNGASS Outcome Document
In April 2016 the United Nations General Assembly will hold a Special Session on the issue of drugs. This special session—convened to a significant extent in response to the calls of countries like Colombia, Mexico, and Guatemala, who have questioned the effectiveness of current approaches to drug policy—is an important opportunity for UN member states to reassess existing approaches to drug control, engage in an open and wide-ranging debate about their costs to human rights, and consider alternatives to the current approach to global drug control that are grounded in human rights.
Controlled substances touch every country in the world. Nearly every country plays a part—as producer, consumer, or transit point—in the multibillion-dollar illicit drug trade that supplies more than 162 million people every year. The current drug control system was founded on the UN Narcotics Conventions and built on the notion that the best way to address harms associated with drugs is through criminalization of drug use, possession, production, and distribution. Countries have poured billions of dollars into tackling illegally produced drugs. Yet despite these vast expenditures, the global drug trade is thriving and drugs are widely available for recreational use in countries around the world. At the same time, in many countries patients with serious illnesses are unable to get access to essential medications that contain licitly produced controlled substances because of excessive regulation. These outcomes raise enormous questions about the effectiveness of the existing approach to drug policy in achieving its stated objectives of curtailing recreational drug use and supply while ensuring availability of controlled substances for medical purposes.
But beyond concerns over the ineffectiveness of existing policies, Human Rights Watch has for over two decades documented serious human rights abuses that are often inextricably linked to global drug policies that heavily emphasize criminalization of drug use, possession, production and distribution.
In the lead-up to the UNGASS, countries should do their utmost to ensure that the debate is open, comprehensive, and addresses concerns not only about how the UN Narcotics Conventions are implemented or interpreted in light of human rights law, but also to consider reform of those conventions to ensure better protection of and compliance with human rights.
In addition, and based on our extensive experience documenting the human rights consequences of drug policy, Human Rights Watch recommends that Member States press for the following action items to be included in the UNGASS outcome document, and in the “zero draft” of that outcome document that is now being negotiated:
- Ending the Criminalization of Personal Drug Use and Possession for Personal Use
The UN Narcotics Conventions do not require the criminalization of personal use and possession of drugs, yet many countries have passed laws that impose criminal punishment for illicit drug possession and use. These laws and their enforcement are not only inconsistent with human rights standards, but they have led to serious human rights harms around the world. To bring drug policy in line with human rights, countries should end the criminalization of personal use and possession of illicit drugs for personal use, and instead focus on providing voluntary treatment to those who need it.
Criminalizing personal drug use per se clashes with a person’s right to privacy and basic concepts of autonomy underpinning all rights, and in practice interferes with, and undermines the right to health.
The decision to use drugs, like the decision to consume alcohol or nicotine, is a matter of personal choice and an exercise of an aspect of the right to privacy under international law, a cornerstone of respect for personal autonomy. Limitations on autonomy and the right to privacy may be imposed, but are justified only if they meet the criteria of legitimate purpose, proportionality, necessity, and non-discrimination. The criteria of proportionality and necessity require governments to consider what means are available to achieve the same purpose that would be least restrictive or pose minimal interference with respect for and the exercise of human rights. Human Rights Watch believes that arguments for criminalization of personal drug use or possession of drugs for personal use rarely, if ever, meet these criteria.
Different purposes have been advanced to justify the criminalization of drug use. One of those purposes is that of morality: drug use is seen by many as morally dubious or reprehensible, regardless of whether someone is harmed by it. Human rights norms, however, protect an individual’s autonomy and right to privacy, which may include engaging in conduct that the majority may eschew as immoral, but where there is no harm to others. For example, human rights jurisprudence leaves no doubt today that majority public morality, if so inclined, cannot justify criminalization of private homosexual conduct by consenting adults. In essence, promoting public morality in the absence of harm to others is not a “legitimate purpose” for criminalization.
Protecting health is a legitimate purpose, as is protecting harm to others that may occur or be risked because of someone’s drug use. But criminalization of drug use to protect someone from harming his or her own health does not meet criteria of necessity or proportionality. Governments have many non-penal measures to reduce harms to someone who uses drugs, including offering substance abuse treatment and social supports. While the state has an important role in protecting health, it should not do so by punishing the person whose health it seeks to protect. As to proportionality: arrest, incarceration, and a criminal record with possibly life-long consequences are inherently disproportionate government responses to someone who has done nothing more than partake of recreational drugs. Criminalization can also disrupt the ability of individuals to secure their right to livelihood and housing, and it can separate families and parents from their children. The state can encourage people to make good choices around drugs without punishing them.
Criminal sanctions for drug possession and personal use have counterproductive health consequences. Imprisoning people who use drugs does little to protect their health, and fear of criminal sanctions can deter individuals who use drugs from accessing health services and treatment, subject them to stigma and discrimination, and increase the risk of infection (e.g., by HIV and other blood-borne infections such as hepatitis). Individuals have a right to obtain lifesaving health services without fear of punishment or discrimination.
But Human Rights Watch research in many countries—including the US, Ukraine, Russia, Thailand, Canada, Kazakhstan, Greece, and Bangladesh—has shown how criminal laws relating to drug use and possession for personal use, and related law enforcement practices, drive people away from lifesaving information and health services. In some countries, many people who inject drugs do not carry sterile syringes or other injecting equipment, even though it is legal to do so, because possession of such equipment can mark an individual as a drug user and expose him or her to punishment on other grounds. Many do not seek treatment or attend harm reduction services, again, for fear of arrest and conviction. Our research in this area is consistent with the findings and recommendations of other leading experts working on the right to health, to freedom from torture and ill-treatment, on drug treatment, and in particular in relation to the prevention, care, and treatment of HIV, who have called for a focus on harm reduction, including access to sterile syringes and effective drug treatment, instead of punishment.
For example, in a 2010 report to the UN General Assembly on the right to health and international drug control, the UN Special Rapporteur on the Right to Health specifically called for decriminalization on grounds of respect for the right to health and recommended that:
… human rights be integrated into the international response to drug control, through use of guidelines and indicators relating to drug use and possession, and that the creation of an alternative drug regulatory framework should be considered. Additionally, Member States should ensure that harm-reduction measures and drug-dependence treatment services are available to people who use drugs, especially focusing on incarcerated populations. They also should reform domestic laws to decriminalize or de-penalize possession and use of drugs, and increase access to controlled essential medicines [emphasis added].
With respect to drug use by children, states parties to the Convention on the Rights of the Child have obligations to take appropriate measures—legislative, administrative, social, and educational—to protect children from the illicit use of narcotic drugs and psychotropic substances. But, in line with international standards, criminal penalties should not be imposed on children for drug use or possession.
Drug use in some situations causes or threatens to cause serious harm to others, and states have a legitimate interest in protecting third parties from harm resulting from drug use. In such circumstances, states may impose proportionate penal sanctions on harmful behavior that takes place in conjunction with drug use. Thus, a state might choose to criminalize driving a car or flying a plane while under the influence of drugs. It might choose to arrest a person who seriously neglects or abuses a child, where drug dependence is a factor in the neglect or abuse. It might make drug use an aggravating factor in an assault. However, in such cases the conduct or offense being punished with criminal sanctions is not simply using drugs, but directly causing or risking harm to others while using drugs.
In addition to decriminalizing personal drug use and possession, it is critical that treatment programs be grounded in human rights standards. We have documented how, in Cambodia, Laos, and Vietnam, people who use drugs are held in government-run centers where they are often abused in the name of “treatment.” Even as states move away from criminalization, they should also avoid abusive administrative sanctions and ensure that patients have access to needed medications.
Accordingly, we recommend that the zero draft:
- Recommend that states decriminalize all personal drug use and possession.
- Make clear that not all persons who use drugs need treatment, and not all use of controlled substances amounts to a disorder or medical condition.
- Ground approaches to treatment and care in human rights, avoiding abusive administrative sanctions and ensuring patients have access to needed medications.
- Ensuring that States Respect the Principle of Proportionality in Punishment
Proportionality is a bedrock principle of criminal justice, and any punishment must adhere to it. Unfortunately, in many countries, the punishments imposed for drug offenses are often grossly disproportionate to the gravity of the offense and the culpability of the offender. The imposition of the death penalty in several countries (such as Indonesia, Singapore, Malaysia, Iran, and China) violates international standards that limit the death penalty’s use to the “most serious crimes” and is inherently disproportionate. In the US, lengthy sentences for drug offenses, often imposed pursuant to mandatory minimum sentencing laws, also routinely violate the principle of proportionality. In addition, the imposition of any prison sentence for the mere use or possession of drugs for personal use is inherently disproportionate.
To bring global drug policy in line with human rights standards, the zero draft should:
- Call on all states to ban the imposition of the death penalty for drug offenses.
- As noted above, recommend that all states decriminalize personal use and possession of drugs for personal use.
- Bring sentences for all drug offenses—including drug trafficking—in line with international standards on proportionality of punishment to the gravity of the offense and the culpability of the offender.
- Reducing the Human Rights Costs of Drug Control, by Allowing States to Explore Alternatives to Enforcement of Criminal Laws on Drug Production and Distribution
As described below, existing approaches to drug control have been accompanied by serious human rights abuses, in two respects: First, governments’ responses to drugs have often involved abuses and discriminatory practices. Second, the criminalization of the drug trade has enhanced the profitability of illicit drug markets, providing massive resources to criminal and armed groups that are themselves responsible for serious abuses, corruption, and damage to democracy and the rule of law.
- National and international responses to drugs have often involved large-scale abuses and discriminatory practices in the name of enforcing criminal laws or ensuring “treatment” of people who use drugs.
In countries around the world, we have documented how state enforcement of criminal drug laws has resulted, directly or indirectly, in serious and sometimes widespread and systematic human rights violations. Drug control policies, and accompanying law enforcement practices, have targeted vulnerable or disfavored minorities, reflecting and exacerbating systemic discrimination against them. Low-level drug offenders in the United States and other countries serve disproportionately long prison terms or even, in countries such as Iran and Singapore, face the death penalty. A step further, military and police forces engage in extrajudicial killings, enforced disappearances, torture and ill-treatment, and arbitrary detention. To cite only a few examples:
- The United States has the world’s largest reported incarcerated population (2.2 million people in adult prisons and jails), in significant part due to harsh sentences for drug offenses. US drug law enforcement is also marred by deep, discriminatory racial disparities, disproportionately affecting African Americans. Aside from the obvious harms associated with imprisonment, the consequences of obtaining a criminal record are considerable and can affect access to future employment, education, and even social services such as housing.
- In Greece, police in Athens subject people who use drugs (many of whom are also homeless and/or people who sell sex to support their use or for basic necessities) to arbitrary and abusive stops and searches, as well as to arbitrary detention. These practices interfere with the ability of drug users and those dependent on drugs to access health information, medical care, and other services. They also obstruct the work of service providers. People who use drugs are excluded from government and municipality-run homeless shelters, and no alternative housing is provided.
- In Mexico, the drug-related homicide rate exploded after 2007, with tens of thousands of people being killed. The US provided more than $2 billion in funding to Mexico to combat drugs during that time. Yet the Mexican security forces deployed in the country’s “war on drugs” have themselves often been involved in torture, extrajudicial killings, and enforced disappearances.
- In Canada, Kazakhstan, Bangladesh, and Ukraine, police have violently mistreated people who use drugs. In Tanzania, police and quasi-official vigilante groups have brutally beaten people who inject drugs.
- The heavy emphasis on criminalizing the drug trade has dramatically enhanced the profitability of illicit drug markets, fueling the operations of groups that commit abuses, corrupt authorities, and undermine democracy and the rule of law.
A 2011 analysis by the United Nations Office on Drugs and Crime (UNODC) found that illicit drugs constitute the largest income source for transnational crime, accounting for about half of transnational crime proceeds. Organized criminal groups from Mexico and Colombia to Afghanistan, among others, obtain vast wealth from various facets of the illicit drug trade. We have repeatedly documented how many such groups and individuals commit serious crimes, including massacres, targeted killings, rape, torture, abductions, extortion, and forced displacement. They may engage in these crimes to perpetuate their control over the drug market or to further a political agenda. The funds from the illegal drug trade often enable them, through corruption, to evade justice and even secure the complicity of state agents in their crimes.
This was the central point raised by the governments of Mexico, Colombia, and Guatemala in their October 2012 joint statement to the UN, asking for a review of the current drug control regime: “Despite the efforts of the international community over decades,” drug use “continues to increase globally, generating substantial income for criminal organizations worldwide,” said the governments, pointing out that those resources enabled criminal organizations “to penetrate and corrupt institutions of the States…. As long as the flow of resources from drugs and weapons to criminal organizations [is] not stopped, they will continue to threaten our societies and governments.” But the current heavy emphasis on criminalization, rather than stopping that flow of resources, seems to be only making the business more profitable.
Certainly, many kingpins have been killed or extradited, crops have been fumigated, and shipments have been stopped. Yet, as the Global Commission on Drug Policy has noted, “Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers.”
We are not alone in arguing that criminalization of drug production and distribution may itself be an obstacle to effectively fighting organized crime. As the US Department of Justice noted with respect to marijuana in its August 29, 2013 Guidance Regarding Marijuana Enforcement, a robust system of legalization could further the fight against organized crime by “replacing an illicit marijuana trade that funds illicit criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.”
Accordingly, we recommend that the zero draft:
- Explicitly recognize that drug law enforcement has in many cases been associated with serious human rights abuses.
- Acknowledge that the criminalization of the drug trade may be strengthening organized criminal enterprises, and that alternative models of regulation may assist in the fight against organized crime by reducing the profits available to criminal groups through the illicit drug market.
- Recommend that states explore alternatives to the current model of criminalization of drug production and distribution, to reduce the profitability of illicit drug markets, and weaken criminal organizations that often commit abuses.
D. Ensuring Access to Controlled Substances for Medical and Scientific Use
Controlled substances play a critical role in any healthcare system. At present, 12 medicines that are made of or contain controlled substances are on the World Health Organization (WHO) Model List of Essential Medicines, a list of medicines that should be available to all who need them. These medications are used in such diverse fields of medicine as analgesia, anesthesia, drug dependence, maternal health, mental health, neurology, and palliative care.
A wealth of research from countries around the world, however, suggests that controlled substance regulations often interfere with the availability and accessibility of this group of medicines, especially strong analgesics. Regulations are frequently far more restrictive than required by the UN Narcotics Conventions, complicating and deterring the use of these substances. Human Rights Watch has documented the existence of needlessly restrictive regulations in more than a dozen countries, including Armenia, Guatemala, India, Kenya, Mexico, Morocco, Russia, Senegal and Ukraine.
According to the International Narcotics Control Board (INCB)—the body responsible for monitoring the 1961 Convention— “approximately 5.5 billion people, or three quarters of the world’s population, live in countries with… inadequate access to treatment for moderate to severe pain.”
Due to limited access to essential medicines, the WHO estimates that tens of millions of people around the world, including around 5.5 million end-stage cancer patients and one million people with AIDS, suffer from moderate to severe pain each year without treatment. Human Rights Watch has documented the egregious impact on patients of these regulatory restrictions. We have found that people with untreated severe pain often describe their pain in exactly the same terms as do victims of torture—that is, as so intense that they would do anything to make it stop. The failure to provide access to palliative pain relief in those circumstances interferes with the right to the highest attainable standard of health and in some circumstances can amount to a violation of the prohibition on cruel, inhuman, and degrading treatment.
Along with other organizations working in the field of palliative care, we hope that the 2016 UNGASS will go beyond just an acknowledgement of the challenges with access to controlled medicines and prevention of their misuse and diversion.
We recommend that the zero draft:
- Set in motion a coordinated UN-wide response to address both the inadequate availability of controlled medicines and their misuse and diversion through a multifaceted approach that includes balanced regulation and control, education and training, and overall health system strengthening.
- Ensure drug control regulations strike an appropriate balance between ensuring their availability and accessibility for medical and scientific purposes and preventing their non-medical use.
- Establishing New Objectives and Metrics
The UNGASS is a critical opportunity for the international community to set in motion a process to develop a more diverse and inclusive set of objectives and measurements than the ones that have been used in the past few decades. While drug control policy aims to improve the health and welfare of populations and affects a wide range of multilateral objectives, current drug control policies are assessed primarily via indicators of the level of supply and consumption of illicit drugs. Moreover, current measurements tend to emphasize processes (for example, the amount of illicit drugs seized, or numbers of consumers or dealers arrested) over policy-relevant outcomes (such as reductions in crime or improvements to health).
Broadening the package of drug policy objectives through the inclusion of well-designed outcome indicators will better enable member states to assess the diverse impacts of drugs and drug control policies in their countries and internationally. Crucially, expanding the set of drug policy indicators to include those that measure health, development, and security outcomes at the local, national, regional, and international levels would also facilitate the implementation of more targeted and effective drug control policies and interventions.
We therefore recommend that the zero draft:
- Commit to establishing a technical expert review group to develop recommendations for a comprehensive set of drug control policy targets and relevant indicators. The Commission on Narcotic Drugs could consider the proposed targets and indicators for adoption at its 10-year review of progress in 2019. All relevant UN agencies, Member States, the scientific community, and civil society should participate in this process.
- Set in Motion a Process to Review the UN Drugs Conventions and Ensure that Human Rights Bodies Are Actively Involved in Drug Policy Discussions
As previously noted, the UN Narcotics Conventions are premised on an enforcement model that emphasizes criminalization of the drug trade. Yet, in country after country, we have documented serious human rights abuses committed in the name of enforcing this model. Moreover, alternative models that reduce the emphasis on criminalization may—as noted in the past section—assist in fighting organized criminal groups that commit abuses in the pursuit of illicit drug profits, corrupt authorities, and undermine democracy and the rule of law. To ensure their compliance with international human rights standards, countries should be given the freedom to experiment with alternative approaches to drug control that could better protect human rights. But this requires a review of the UN Narcotics Conventions.
In addition, it is critical that human rights bodies be active in drug policy discussions at the United Nations. Drug policy has, so far, primarily been treated as the domain of the UN Office on Drugs and Crime, the Commission on Narcotic Drugs, and the International Narcotics Control Board. But given the far-reaching implications of drug policy for human rights, other UN bodies, including the Office of the UN High Commissioner for Human Rights, should also be part of these discussions.
We recommend that the zero draft:
- Call on states to take steps to reduce the human rights costs of current policies on drug production and distribution, including by decreasing reliance on criminal regulation in this area, and, where appropriate, adopting new legal and regulatory frameworks and adjusting enforcement practices.
- Open a discussion among member states to consider amending the UN Narcotics Conventions to ensure that they do not prohibit or discourage states from adopting policies, in line with the above, that would enable them to fulfill their human rights obligations and reduce the human rights costs of current policies.
- Integrate human rights expertise and representation from major human rights bodies, such as the Office of the UN High Commissioner for Human Rights, into all UN discussions of drug policy, including through use of focal points, designated staff and working groups or task forces as appropriate.