Recalibrating the Regime: The need for a human rights-based approach to international drug policy

This report: 1) presents a critical analysis of the UN systems of drug control and human rights, and their relative relationship within overall UN governance, and outlines the basis for the primacy of human rights; 2) highlights the multiple ways in which the enforcement of drug prohibition, the dominant approach of the UN drug control system, leads to a wide and varied range of human rights violations; and 3) sets out recommendations aimed at ‘recalibrating the regime’ to prevent the ongoing subversion of human rights protection in the name of drug control.

EXECUTIVE SUMMARY

Historically, policies aimed at prohibiting and punishing the use of certain drugs have driven the international approach to drug control and dominate the approach of most countries, guided as they are by the three UN drug control conventions and the dominant policy directions emanating from the associated international bodies. Such an approach is usually defended with moralistic portrayals that demonise and dehumanise people who use drugs as representing a ‘social evil’ menacing the health and values of the public and state. Portrayed as less than human, people who use drugs are often excluded from the sphere of human rights concern. These policies, and the accompanying enforcement practices, entrench and exacerbate systemic discrimination against people who use drugs and result in widespread, varied and serious human rights violations. As a result, in high-income and low-income countries across all regions of the world, people who use illegal drugs are often among the most marginalised and stigmatised sectors of society. They are a group that is vulnerable to a wide array of human rights violations, including abusive law enforcement practices, mass incarceration, extrajudicial executions, denial of health services, and, in some countries, execution under legislation that fails to meet international human rights standards. Local communities in drug-producing countries also face violations of their human rights as a result of campaigns to eradicate illicit crops, including environmental devastation, attacks on indigenous cultures, and damage to health from chemical spraying. At the level of the United Nations, resolving this situation through established mechanisms is complicated by the inherent contradictions faced by the UN on the question of drugs. On the one hand, the UN is tasked by the international community with promoting and expanding global human rights protections, a core purpose of the organisation since its inception. On the other, it is also the body responsible for promoting and expanding the international drug control regime, the very system that has led to the denial of human rights to people who use drugs. All too often, experience has shown that where these regimes come into conflict, drug prohibition and punishment has been allowed to trump human rights, or at least take human rights off the agenda. Directives from the UN General Assembly to carry out drug control activities in conformity with human rights have been all but ignored in the formation and execution of drug control policies and activities, even by other UN bodies involved in drug control. At the political level, the Commission on Narcotic Drugs (CND), the UN’s inter-state body tasked with directing international drug policy, has never adopted a resolution with any operational requirements regarding human rights. In relation to UN programmes, as a result of control by the main donor states, spending on drug control by the UN Office on Drugs and Crime (UNODC), the secretariat that carries out the substantive work of the UN on drug control, is heavily weighted towards simple enforcement of drug control treaties, with little, if any, operational attention to the human rights dimensions of states’ enforcement of these treaties or of their domestic drug legislation. Moreover, the International Narcotics Control Board (INCB), the monitoring body for the UN drug control conventions, has stated explicitly that it will not discuss human rights. Yet even though there is little explicit regard for human rights in the UN drug control treaties, this does not mean the international regime is free to operate without complying with human rights law. UN bodies and UN member states are all bound by their overarching obligations under the Charter of the United Nations (Articles 1, 55 and 56) to promote ‘universal respect for, and observance of, human rights and fundamental freedoms’. The Charter (Article 103) explicitly indicates that in the event of any conflict between states’ obligations under the Charter and their obligations under any other international agreement, their Charter obligations shall prevail. According to former UN Secretary-General Kofi Annan, the new Human Rights Council was created to afford human rights ‘a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations’. Both he and his successor, Ban Ki-Moon, have stressed the importance of human rights, along with security and development, as one of the three pillars of the United Nations. Despite the primacy of human rights obligations under the UN Charter, the approach of the UN system and the international community to addressing the tensions between drug control and human rights remains marked by an ambiguity that is inexcusable in the face of the egregious human rights abuses perpetrated in the course of enforcing drug prohibition. 2008 marks the 60th anniversary of the Universal Declaration of Human Rights, the bedrock of international human rights norms. Despite the actual and potential impact of the international drug conventions on human rights, the Universal Declaration is conspicuously absent from their preambles. It is past time for UN, its individual Members, and its organs, as well as civil society organizations, to ensure that the international drug control system works to respect, protect and fulfil the human rights of people who use drugs and affected communities, and to hold the international drug control entities and UN Members to account for human rights abuses committed in the name of drug control. The UN system needs to ensure coherence in its policy and programmatic approaches, a coherence that reflects the primacy and centrality of human rights to the rest of its work. In three parts, this report: • presents a critical analysis of the UN systems of drug control and human rights, and their relative relationship within overall UN governance, and outlines the basis for the primacy of human rights; • highlights the multiple ways in which the enforcement of drug prohibition, the dominant approach of the UN drug control system, leads to a wide and varied range of human rights violations; and • sets out recommendations aimed at ‘recalibrating the regime’ to prevent the ongoing subversion of human rights protection in the name of drug control.

CONCLUSION

The wide range of examples included in this report, in which human rights standards and norms are potentially or actually infringed as a result of state activities pursued in the name of drug control, demonstrate clearly the need for close attention to this issue within the UN system. It is therefore remarkable, particularly in the context of a reform process that seeks system-wide cohesion, that: • Human rights are rarely mentioned, or given serious consideration, in the policies and programmes of the UN drug control system. • Human rights abuses against people who use drugs or local farming communities are rarely mentioned, or given serious consideration, within the standard setting or inspection programmes of the UN human rights apparatus. • Despite clear strategic commitments to ensure the co-ordination of their programmes with other relevant UN agencies, the OHCHR and the UNODC have made no serious efforts towards joint strategic planning or programme development. This state of affairs should not be allowed to continue – the health, welfare and human rights of millions of people depend on the adoption, by national governments and international agencies, of drug policies that achieve an appropriate and effective balance between the need to tackle drug markets and the obligation to protect the rights of everyone affected by them. The status quo will only lead to further violations of human rights in the name of drug control.