This report was called for by the Human Rights Council in Resolution 28.28, and was the most comprehensive report ever drafted by the OHCHR on drugs and human rights. It was submitted as the official OHCHR contribution for the 2016 UNGASS.
Study on the impact of the world drug problem on the enjoyment of human rights (A/HRC/30/65)
5. In its resolution 69/201, the General Assembly reaffirmed that the world drug problem must be countered in full conformity with the Charter of the United Nations and with full respect for all human rights. By its resolution 51/12, the Commission on Narcotic Drugs called for the promotion of human rights in implementing international drug control treaties, and the International Narcotics Control Board has stated that human rights must be taken into account when interpreting international drug control treaties. The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has argued that when the international drug control regime and international human rights law conflict, human rights obligations should prevail (see A/65/255, para. 10).
6. The right to health is provided for in article 12 of the International Covenant on Economic Social and Cultural Rights. Under articles 2 (2) and 3 of the Covenant, States are required to implement the right to health on a non-discriminatory basis, which includes extending that right to drug users.
7. The Special Rapporteur on the right to health has underlined the distinction between drug use and drug dependence. Drug dependence is a chronic, relapsing disorder that should be medically treated using a biopsychosocial approach. Drug use is neither a medical condition nor does it necessarily lead to drug dependence. People who use drugs and people who are dependent on drugs possess the same right to health as everyone else, and those rights cannot be curtailed if the use of drugs constitutes a criminal offence (see A/65/255, para. 7). The Special Rapporteur has noted that the same standards of ethical treatment apply to the treatment of drug dependence as to other health-related conditions, including with regard to the right of a patient to make decisions about treatment and to refuse treatment.
8. The Special Rapporteur has emphasized that health-care personnel have an obligation to provide treatment on a non-discriminatory basis and not to stigmatize or violate a patient’s human rights. Nevertheless, people who use drugs may be subject to discrimination in health-care settings. People who inject drugs, for example, may have poorer access to health care in some countries, including for the treatment of HIV/AIDS. This may be due to unjustified restrictions by health-care providers on the provision of heath care for people who inject drugs. The Special Rapporteur noted that care providers may not have adequate information or training concerning harm reduction measures (see A/65/255, para. 46). The World Health Organization (WHO) has recommended training health workers on issues of stigma and non-discrimination, to achieve better health outcomes.
9. Individuals have sometimes been denied access to medical treatment on the grounds of their prior or current drug use, where evidence does not justify denial of treatment. Such denial has occurred on the rationale that a person’s drug use would make him or her unable to adhere to treatment. The Special Rapporteur notes that adherence to medical treatment is not necessarily lower among persons who use drugs, and should be assessed on an individual basis (see A/65/255, paras 23-24).
10. Outreach programmes are useful in providing information and referral health services to drug users in the community. Information and education programmes can minimize harm to individuals who use drugs and encourage drug dependent persons to seek treatment.
11. Harm reduction interventions aim to reduce the harms associated with the use of psychoactive drugs, without necessarily discouraging use. They include needle and syringe programmes, prescription of substitute medications, drug-consumption rooms, promotion of non-injecting routes for the administration of drugs, overdose prevention practices, and outreach and education programmes (see A/65/255, para. 50). Persons who inject drugs are at a heightened risk of contracting HIV, hepatitis B and C, and tuberculosis.
12. The Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child and the Special Rapporteur on the right to health have all determined that a harm reduction approach is essential for persons who use drugs. WHO, UNODC and the Joint United Nations Programme on HIV/AIDS (UNAIDS) promote harm reduction for injecting drug users. The Office of the United Nations High Commissioner for Human Rights has supported harm reduction and the Human Rights Council, in its resolution 12/27, recognized the need for harm reduction programmes.
13. Needle and syringe programmes involve the provision of sterile injection equipment to injecting drug users. WHO has endorsed the use of such programmes, noting that they reduce HIV infections substantially, in a cost-effective manner, without any major negative consequences. Needle and syringe programmes eliminate contaminated needles, which reduces the risk of transmitting HIV and other blood-borne diseases such as viral hepatitis, in particular hepatitis B and hepatitis C (see A/65/255, para. 51).
14. Opioid substitution therapy is an evidence-based approach involving the prescription of medications such as methadone or buprenorphine to treat opioid dependence. Opioid substitution therapy decreases the prevalence of injecting drug use and of sharing injecting equipment, thereby reducing the risk of contracting HIV and other blood-borne viruses, and is effective in managing withdrawal from opioids and preventing a relapse into drug use (see A/65/255, para. 52). WHO has recommended that all people from key populations who are dependent on opioids be offered and be given access to opioid substitution therapy.
15. Drug overdoses, most of which involve opioids, are the main cause of drug-related deaths. Opioid substitution therapy reduces the use of drugs by injection and thus of overdosing by almost 90 per cent. The Special Rapporteur on the right to health and WHO have highlighted that first aid training for the administration of naloxone, which counters the effects of opioid overdose, can prevent overdose-related deaths and minimize the harm associated with drug overdose (see A/65/255, para. 54).
16. Providing drug users with access to drug-consumption rooms can contribute to preventing the transmission of diseases and to reducing damage to the veins, as well as encourage users to make use of treatment and other services. Drug-consumption rooms have contributed to reducing overdose rates and increased access to medical and social services (see A/65/255, para. 54).
17. As of 2014, needle and syringe programmes had been implemented in 90 countries and opioid substitution therapy was available in 80 countries. However, needle and syringe programmes have been confirmed to be absent in 68 countries where drugs are injected. In 2014, it was reported that there were 88 drug-consumption rooms worldwide, of which only two were outside of Europe, Australia and Canada.
18. The lack of needle and syringe programmes, in particular, has a direct impact on the spread of HIV. People who inject drugs account for approximately 10 per cent of all new HIV infections and for up to 30 per cent of new HIV infections outside sub-Saharan Africa. Worldwide, an estimated 12.19 million people inject drugs, of whom 1.65 million are living with HIV. WHO has estimated, on the basis of data from 49 countries, that the average risk of HIV infection is 22 times greater among people who inject drugs than among people in the general population; in 11 of those countries, the risk is at least 50 times higher.
19. Among the benefits associated with harm reduction programmes is the increased entry into HIV/AIDS treatment programmes (see A/65/255, para. 57). UNODC, WHO and UNAIDS have recommended that a comprehensive package of harm reduction services be integrated into national AIDS programmes, both as an HIV prevention measure and to support adherence to antiretroviral therapy services and medical follow-up for people who use drugs.
20. One study compared countries that comprehensively and consistently adopted approaches based on harm reduction without punitive approaches with countries that steadfastly resisted the harm reduction programmes and focused instead on punitive approaches. It found that the prevalence of HIV among people who injected drugs in Australia, Germany, Switzerland and the United Kingdom of Great Britain and Northern Ireland was less than 5 per cent, whereas in the Russian Federation and Thailand HIV prevalence among people who injected drugs was over 35 per cent.
21. Drug use, including by injection, has been consistently documented to occur in prisons throughout the world. High rates of sharing injecting equipment leads to an elevated risk of transmitting HIV in prisons. Persons in custodial settings are entitled, without discrimination, to the same standard of health care found on the outside, including with regard to prevention, harm reduction and antiretroviral therapy. Continuity of care is critical for those entering places of detention and who have been receiving treatment such as opioid substitution and antiretroviral therapy or treatment for tuberculosis, as interrupting such treatment has serious health consequences.
22. The Special Rapporteur on the right to health has stated that if harm reduction programmes and evidence-based treatments are made available to the general public, but not to persons in detention, this contravenes the right to health. However, in 2014, while opioid substitution therapy was available in 80 countries, only 43 countries provided such therapy.He has also argued that, given the substantially higher health risks associated with incarceration, harm reduction programmes should be implemented and drug dependent persons should be treated so as to meet public health objectives, even if these services are not yet available in the community (see A/65/255, para. 60).
23. Health protection measures, including harm reduction measures, are effective in prisons and treatment programmes for people who use drugs, and are urgently needed in all prison settings. Drug dependence treatment has also been noted to be highly effective in reducing crime, as treatment and care within prisons, or as alternatives to imprisonment, reduce rates of relapse, HIV transmission and recidivism.
27. The Special Rapporteur has observed that some States opposed to harm reduction measures have criminalized the carrying of needles, syringes and other drug paraphernalia, in contravention of the International Guidelines on HIV/AIDS and Human Rights. Fear of arrest and criminal sanctions may deter individuals from participating in needle and syringe programmes and from carrying sterile equipment, which increases the likelihood of using unsterile equipment and transmitting diseases. Legislation penalizing the carrying of such equipment, including by outreach workers, is a barrier to HIV control. Promoting the use and supply of methadone, which is used in opioid substitution therapy, is a criminal offence in some countries.
29. The Special Rapporteur has identified many ways in which criminalizing drug use and possession impedes the achievement of the right to health. He has called for the decriminalization of drug use and possession as an important step towards fulfilling the right to health. He has noted that decriminalizing drug use cannot be equated with legalizing it. Decriminalization means that drug use and possession remain legally prohibited but that criminal penalties, if they are applied at all, are minor and of a non-custodial nature. Legalization, by contrast, involves no prohibition of the relevant conduct (see A/65/255, para. 62).
30. (…) The International Narcotics Control Board has indicated that the move to decriminalize drug use in Portugal was consistent with the 1988 Convention. In total, 22 States have adopted decriminalization measures of one kind or another, although not always on the grounds of promoting public health. (…) On 26 June 2015, on the occasion of the International Day against Drug Abuse and Illicit Trafficking, the Secretary-General stated that consideration should be given to alternatives to criminalization and incarceration of people who use drugs and that there should be an increased focus on public health, prevention, treatment and care, as well as on economic, social and cultural strategies. Decriminalization has been called for by a number of civil society organizations on the grounds that criminalization poses a major obstacle to public health responses to drug users and their right to health.
31. In the preamble to the 1961 Convention, it is recognized that the medical use of narcotic drugs is indispensable for the relief of pain and suffering. Nevertheless, millions of people worldwide who require essential medicines for pain, drug dependency and other health conditions find that availability is often limited or absent. The Special Rapporteur on the right to health noted that access to these medications is often excessively restricted for fear that they will be diverted from legitimate medical uses to illicit purposes (see A/65/255, para. 41).
32. Restricting access to opioids affects not only the availability of opioid substitution therapy but also three unrelated areas where access to controlled medicines is essential: (a) management of moderate to severe pain, including as part of palliative care for people with life-limiting illnesses; (b) certain emergency obstetric situations; and (c) management of epilepsy (see A/65/255, para. 42).
33. In its general comment No. 14 (2000) on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights stated that ensuring access to essential drugs, including opioids, is an essential element of the right to health and that States must comply with this obligation regardless of resource constraints. The Special Rapporteur has noted that access to controlled drugs is a critical part of the right to health and recommended that States increase access to controlled essential medicines (see A/65/255, paras. 40-47 and 76).
34. The International Narcotics Control Board has consistently found that availability of essential controlled medicines is too limited in many countries. In its 2014 annual report, the Board noted that approximately 5.5 billion people, or three quarters of the world’s population, live in countries where access to medicines containing narcotic drugs is low or non-existent and have inadequate access to treatment for moderate to severe pain. The Board also noted that 92 per cent of the world’s morphine (an opioid) is consumed by 17 per cent of the world’s population, primarily in North America, Oceania and Western Europe. The Board and WHO have both recognized that unnecessarily restrictive drug control regulations and practices are a significant barrier to accessing essential controlled medicines.
38. Article 6 of the International Covenant on Civil and Political Rights provides that, in those States which have not abolished the death penalty, the sentence of death can only be applied for the “most serious crimes”. The Human Rights Committee has determined that drug-related offences do not meet the threshold of “most serious crimes” (see CCPR/C/IDN/CO/1, para. 10, CCPR/CO/84/THA, para. 14, and CCPR/C/SDN/CO/3, para. 19). The United Nations High Commissioner for Human Rights, the Special Rapporteur on torture, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Economic and Social Council, the General Assembly and the Secretary-General support this interpretation (see A/HRC/10/44 and Corr.1, para. 66, A/HRC/4/20, paras. 51-53, and A/HRC/24/18, para. 24). The International Narcotics Control Board has encouraged States that impose the death penalty to abolish it for drug-related offences (see A/HRC/27/23, para. 31).
39. Nevertheless, it has been estimated that 33 countries or territories continue to impose the death penalty for drug-related offences, resulting in approximately 1,000 executions annually. Drug-related offences account for the majority of executions carried out in some countries and are mandatorily punished by death in a number of States (see E/2015/49 and Corr.1, para. 72).
40. Human rights organizations have expressed concern about international funding and technical assistance for drug control programmes in States that retain the death penalty for drug-related offences. UNODC, which opposes the death penalty, has stated that if “a country actively continues to apply the death penalty for drug offences, UNODC places itself in a very vulnerable position vis-à-vis its responsibility to respect human rights if it maintains support to law enforcement units, prosecutors or courts within the criminal justice system”. It noted that “at the very least, continued support in such circumstances can be perceived as legitimizing government actions. If, following requests for guarantees and high-level political intervention, executions for drug-related offences continue, UNODC may have no choice but to employ a temporary freeze or withdrawal of support”. The European Union has emphasized that actions such as legal, financial or other technical assistance to third countries should not contribute to the use of the death penalty, and specifically indicated that the death penalty should not be imposed for drug-related crimes.
41. The Special Rapporteur on extrajudicial, summary or arbitrary executions has expressed concern about extrajudicial executions against people in the war on drugs (see A/HRC/26/36/Add.1, para. 8), a concern voiced also by States and non-governmental organizations. Impunity for extrajudicial killings is also a source of concern in operations aimed at the drug trade. The Special Rapporteur on torture has criticized ineffective investigations and relative impunity for actors alleged to have committed such human rights violations, and the United Nations High Commissioner for Human Rights has stressed the need for accountability for gross violations of human rights (see A/HRC/11/2/Add.2, paras. 33 and 53, and A/HRC/26/36/Add.1, paras. 81, 111 and 117).
42. In some States, law enforcement responsibility for drug-related offences has been reportedly shared with or transferred to the military, often resulting in an excessive use of violence. It has been reported that people accused of drug-related offenses have been tried before military courts or special courts that may fall short of fair trial standards. Concerning the trial of persons in military or special courts, the Human Rights Committee has said that civilians should be tried in the ordinary courts, subject to narrowly defined exceptional circumstances, and that the protections of the International Covenant on Civil and Political Rights cannot be limited or modified because of the military or special character of the court.
46. Persons who use drugs or who are suspected of using drugs may be confined in compulsory drug detention and rehabilitation centres without trial or an evaluation of their drug dependency, often for months or years, and frequently outside the supervision of the criminal justice.
47. Compulsory drug detention and rehabilitation centres, sometimes referred to as re-education through labour centres, typically subject detainees to long hours of physically strenuous exercise, physical and verbal abuse, beatings, solitary confinement and enforced labour, according to the Special Rapporteur on torture (see A/HRC/22/53, paras. 40-42). The Special Rapporteur on the right to health noted that these practices are not evidence-based and medical professionals who are trained to manage drug dependence are often inaccessible. Moreover, treatment is often conducted en masse and disregarding the need for informed consent to be given on an individual basis (see A/65/255, paras. 31-33).
48. Non-consensual experimental treatment, torture, ill-treatment and sexual violence have also been reported at compulsory detention centres (see A/HRC/22/53, paras. 40-42). Imposition of compulsory treatment, at the expense of not having access to opioid substitution therapy and other harm reduction interventions, also increases the risk of disease, particularly through HIV infection (see A/65/255, para. 36).
49. These practices have been condemned by 12 United Nations entities in a joint statement in which they call for the closure of compulsory detention centres. Nevertheless, compulsory drug detention centres, many of which are located in East and South-East Asia, continue to detain approximately 235,000 people.
54. Discrimination may exist in women’s prisons where harm reduction, including opium substitution therapy, may not be available. The Committee on the Elimination of Discrimination against Women has recommended that States provide gender-sensitive and evidence-based drug treatment services, including harm reduction programmes for women in detention, to reduce the harmful effects of drug use (see CEDAW/C/GEO/CO/4-5, para. 31 (e)).It has been reported that women who use drugs are often the targets of violence, including sexual violence, perpetrated by their partners and law enforcement officers. Women may be forced to have sex to avoid arrest or punishment by law enforcement officers. Women who use drugs and who are also sex workers are reported to be even more vulnerable.
55. Article 33 of the Convention on the Rights of the Child provides that States parties shall take all appropriate 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.
56. In its general comment No. 3 (2003) on HIV/AIDS and the rights of the child, the Committee on the Rights of the Child noted that, in most countries, children have not benefited from HIV prevention programmes related to substance use and that, where HIV prevention programmes exist, they have largely targeted adults. It observed that injecting practices using unsterilized instruments increase the risk of HIV transmission and that programmes and policies aimed at reducing substance use and HIV transmission must recognize the particular sensitivities and lifestyles of children. In its general comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, the Committee endorsed harm reduction as an important approach to minimizing the negative health impacts of substance abuse. It called for children to benefit from harm reduction programmes in its concluding observations (see CRC/C/UKR/CO/4, para. 59, CRC/C/AUT/CO/3-4, para. 51, and CRC/C/ALB/CO/2-4, para. 63 (b))
57. The Committee has recommended that children receive accurate and objective information on drugs. It has called for children who use drugs not to be subjected to criminal proceedings and for the possession of drugs by children to be decriminalized (see CRC/C/OPAC/MEX/CO/1, para. 29, and CRC/C/UKR/CO/4, paras. 59-60). However, the Committee found that, in practice, in most States children who use drugs are subject to criminal prosecution and often have no access to harm reduction and drug treatment services. The Committee criticized the aerial fumigation of drug crops because of its effects on children (see CRC/C/COL/CO/3, para. 72). It also condemned the practice of placing children in compulsory drug detention and rehabilitation centres (see CRC/C/KHM/CO/2, paras. 55-56).
58. The 1961 Convention imposes restrictions on the cultivation of coca bush, opium poppy and cannabis plant for indigenous, traditional and religious uses, and requires that opium smoking be abolished within 15 years, that coca leaf chewing be abolished within 25 years and that cannabis use be abolished within 25 years at the latest (art. 49 (2)). The 1988 Convention requires States to criminalize the possession, purchase and cultivation of coca for personal consumption and to take measures to prevent the cultivation of and to eradicate illicit crops. In doing so, States must “take due account of traditional licit uses, where there is historic evidence of such use” (art. 14 (2)).
59. In 2009, the Permanent Forum on Indigenous Issues called for the amendment or repeal of those portions of the 1961 Convention regarding coca leaf chewing that are inconsistent with the rights of indigenous peoples to maintain their traditional health and cultural practices, as recognized in articles 11, 24 and 31 of the United Nations Declaration on the Rights of Indigenous Peoples (see E/2009/43-E/C.19/2009/14, para. 89). In 2011, the Plurinational State of Bolivia withdrew from the 1961 Convention, subsequently re-acceding to it with a reservation concerning the traditional practices associated with the coca leaf.
60. Some States have recognized exceptions to the application of the drug control treaties, including on grounds of religious belief. In the United States, the Native American Church is exempted from the prohibition on consuming peyote, a controlled substance, in religious ceremonies. In Italy, a drug conviction was reversed on appeal because a lower court had not considered the arguments made by the Rastafarian defendant based on his religious convictions. In Jamaica, the Government in 2015 changed its legislation to allow Rastafarians the right to use cannabis in their religious ceremonies. Previous jurisprudence has tended not to permit the use of controlled drugs in religious ceremonies as a manifestation of religious beliefs, although sometimes with sharply divided views.
61. The right to health should be protected by ensuring that persons who use drugs have access to health-related information and treatment on a non-discriminatory basis. Harm reduction programmes, in particular opioid substitution therapy should be available and offered to persons who are drug dependent, especially those in prisons and other custodial settings. Consideration should be given to removing obstacles to the right to health, including by decriminalizing the personal use and possession of drugs; moreover, public health programmes should be increased. The right to health requires better access to controlled essential medicines, especially in developing countries.
62. The prohibition of arbitrary arrest and detention, torture and other forms of ill-treatment and the right to a fair trial should be protected in accordance with international norms, including in respect of persons who are arrested, detained or charged for drug-related offences. Drug dependent persons in custodial settings should not be denied opioid substitution therapy as a means of eliciting confessions or other information, and opioid substitution therapy should be provided as part of a detainee’s right to health in all circumstances. Compulsory detention centres should be closed.
63. The right to life of persons convicted of drug-related offences should be protected and, in accordance with article 6 of the International Covenant on Civil and Political Rights and the jurisprudence of the Human Rights Committee, such persons should not be subject to the death penalty. The right to life should be protected by law enforcement agencies in their efforts to address drug-related crime, and only proportional force should be used, when necessary. Extrajudicial killings should be subject to prompt, independent and effective investigations to bring the alleged perpetrators to justice.
66. The rights of the child should be protected by focusing on prevention and communicating in a child-friendly and age-appropriate manner, including on the risks of transmitting HIV and other blood-borne viruses through injecting drug use. Children should not be subjected to criminal prosecution, but responses should focus on health education, treatment, including harm reduction programmes, and social re-integration.
67. Indigenous peoples have a right to follow their traditional, cultural and religious practices. Where drug use is part of these practices, the right of use for such narrowly defined purposes should in principle be protected, subject to limitations provided for in human rights law.