Open Letter by the Special Rapporteur on the right to health, Dainius Pūras, in the context of the preparations for the UNGASS 2016

Human rights must be a cross-cutting issue informing all discussions at the high-level general debate, and thematic workshops. As highlighted by the recent Study on the impact of the world drug problem on the enjoyment of human rights, presented by the UN High Commissioner for Human Rights to the Human Rights Council in September 2015, the respect for and the protection and promotion of human rights in the context of the world drug problem is essential.

It is important to have a broad understanding of what health is, and that health is a human right essential for the exercise of other human rights. Specifically, the impact of drug control on the right to health is a cross-cutting theme across the entire market chain, arising from an often violent illicit drug market, and highly punitive and repressive State responses. Importantly, the right to health includes more than access to health services; it is also the right to the underlying determinants of health, including equality and non-discrimination, protection against violence, participation, and safe and enabling environments for health and well-being.

As drug control enforcement fuels rising incarceration rates, overburdened prison systems are unable to provide acceptable standards of care and living in both pre and post conviction environments. Conditions such as overcrowding, denial of essential medical services—including harm reduction—create an environment where cruel, inhuman, and degrading treatment is more likely to occur. Likewise, when drug offenses are pursued through the administration of pre-trial detention, and disproportionate sentencing, arbitrary detention is more likely to occur.

While I welcome the attention within the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to alternatives to conviction and punishment, I would like to underline that conviction and punishment are late stages in the criminal justice process, and of no help to those in pre-trial detention. At the root of many health related problems faced by people who use drugs is criminalisation itself, which only drives issues and people underground and contributes to negative public and individual health outcomes.

People experiencing drug dependence have different and complex needs, which require a wide range of diverse options and are more effectively addressed when those concerned can participate in the design, delivery and assessment of their treatment. The views and input of people who are drug dependent into their own treatment is essential for a successful outcome.

As a step towards the fulfilment of the right to health, drug use and possession should be decriminalized and de-penalized alongside increased investment in treatment, education, and other interventions discussed further below.

Recalling the consistent findings of the UN Human Rights Committee, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on Torture and other mandate holders, I would like to reiterate that the death penalty for drug offences does not meet the threshold of ‘most serious crimes’ for the purposes of the International Covenant on Civil and Political Rights.

In this connection, the General Assembly has called for a moratorium on all executions and a reduction in the number of offences for which the death penalty may be applied. These days only a very small minority of States continue to impose the death penalty for drug offences, indicating a clear State practice against its use. I support the calls by the UN Secretary General, the International Narcotics Control Board, and many Member States for the abolition of the death penalty for drug offences.

The arbitrary deprivation of life is not limited to judicial executions and extends to summary executions by military and police, and the unnecessary use of lethal force in the context of drug enforcement. All States must adhere to international human rights law and existing standards with regard to the use of force in all anti-drug operations. I am seriously concerned that State policies can contribute to and worsen violent criminal drug markets within which homicides increase significantly, and I call on States to focus their attention during the UNGASS on the reduction of violence related to the drug enforcement.

The right to health requires that drug dependence treatment be available, accessible (physically, economically, geographically), acceptable (culturally, for women, for children and other key populations), and of sufficient quality, meaning based on the best available evidence. 4 Progressive realization of the right to health necessitates adequate budgetary allocation. It is disturbing to see that worldwide drug dependence treatment remains significantly under-resourced as compared with drug enforcement.

Moreover, acceptability of drug treatment includes informed consent and the right to refuse treatment. In this connection, I would like to join my predecessors, other UN independent experts, and UN agencies in calling for the closure of compulsory drug detention and rehabilitation centres. These centres are not only manifestly contrary to human rights law and standards but have proven ineffective in the treatment of drug dependence. The UNGASS should serve as a platform for setting targets for the closure of such centres.

The right to health includes an entitlement to health-care goods, services and facilities which are available in adequate supply; accessible geographically (including in detention facilities), financially, and on the basis of non-discrimination; culturally acceptable, including to minorities, indigenous populations and women; and of good quality.

It has been ten years since the first Special Rapporteur on the right to health called for the implementation of harm reduction programmes as part of State obligations under the right to health. Over the ensuing decade, this call has been repeated based upon the proven effectiveness of harm reduction programmes in preventing the transmission of blood borne viruses, and generally in promoting the health and dignity of people who use drugs.

However, despite the strong emphasis on the provision of harm reduction programmes, the evidence of their effectiveness in achieving positive health outcomes, and the increasing number of Members States implementing a harm reduction response, the issue continues to be unproductively politicized within UN drug control debates.

The provision of harm reduction must not be seen as merely a policy option for States. Rather, the provision of these programmes for people who use drugs, including but not limited to the core UNODC/WHO/UNAIDS interventions, constitute a legal obligation as part of State obligations to progressively realize the right to health. Given the low priority assigned to harm reduction globally, reflected by the low levels of funding and implementation of these programmes in communities and prisons, I urge States to commit the maximum available resources to scale up investment.

Coupled with a range of interventions, the underlying principle of harm reduction is human rights in practice. Reducing health harms and risks associated with drug use complements the underlying objectives of the drug control treaties. Therefore, I call for a more proactive and results oriented discussion of harm reduction at the UNGASS that includes target setting in key areas, including: the scale up of HIV-related harm reduction interventions, including in places of detention, to meet identified needs by 2030 in line with the sustainable development goals; and time bound targets for ensuring adequate coverage of naloxone access to reduce opiate overdose deaths.

It is widely accepted that prevention is an important part of addressing drug use among children. However, too often what is meant as prevention turns into practices that are neither grounded in evidence nor in human rights. The right to health requires that prevention be pursued through evidence-based interventions as well as accurate and objective educational programmes and information campaigns. International prevention standards have been developed by UNODC and endorsed by the Commission. I call on all States to agree to the timely and effective implementation of these standards.

Historically, there has been insufficient attention to the many other ways in which children and their right to health are affected by drugs, the drug trade, and punitive State models. This includes children of incarcerated parents, incarcerated children, children in streets, children experiencing drug-related violence, children involved in the drug trade, children in families coping with drug dependence, and children who already use drugs for whom services remain inadequate.

One of the arguments used in support of the “war against drugs” and zero-tolerance approaches is the protection of children. However, history and evidence have shown that the negative impact of repressive drug policies on children’s health and their healthy development often outweighs the protective element behind such policies, and children who use drugs are criminalized, do not have access to harm reduction or adequate drug treatment, and are placed in compulsory drug rehabilitation centres. The UN Convention on the Rights of the Child has now been ratified or acceded to by 196 States and should serve as an important framework for considering these and other issues of vital importance to the right to health of all children.