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Responding to the harms associated with drug use and the illicit drug trade is one of the greatest social policy challenges of our time. All aspects of this challenge have human rights implications.
The drugs issue cuts across the 2030 Agenda for Sustainable Development and multiple Sustainable Development Goals, including ending poverty, reducing inequalities, and, of course, improving health, with its targets on drug use, HIV, and other communicable diseases. Goal 16 on peace, justice, and strong institutions is particularly important, requiring attention to human rights across the Sustainable Development Goals. Since the late 1990s, United Nations (UN) General Assembly resolutions
have acknowledged that ‘countering the world drug problem’ must be carried out ‘in full conformity’ with ‘all human rights and fundamental freedoms’.1 This has been reaffirmed in every major UN political declaration on drug control since, and in multiple resolutions adopted by the Commission on Narcotic Drugs.2 The reality, however, has not always lived up to this important commitment.
Sustainable, rights-based action on drug control requires shared standards from which to begin. Yet there remains a lack of clarity as to what human rights law requires of States in the context of drug control law, policy, and practice. The International Guidelines on Human Rights and Drug Policy are the result of a three-year consultative process to address this gap.
The Guidelines highlight the measures States should undertake or refrain from undertaking in order to comply with their human rights obligations, while taking into account their concurrent obligations under the international drug control conventions: the 1961 Single Convention on Narcotic Drugs (as amended); the 1971 Convention on Psychotropic Substances; and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.3 Critically, they do not invent new rights. They apply existing human rights law to the legal and policy context of drug control in order to maximise human rights protections, including in the interpretation and implementation of the drug control conventions.
The Guidelines are not a ‘toolkit’ for a model drug policy. Rather, they respect the diversity of States and their legitimate prerogative to determine their national policies in line with applicable human rights law. States always retain the freedom to apply more favourable human rights protections than those provided for under international law. The Guidelines are therefore a reference tool for those working to ensure human rights compliance at local, national, and international levels, be they parliamentarians, diplomats, judges, policy makers, civil society organisations, or affected communities.
Responding to the harms associated with drug use and the illicit drug trade is one of the greatest social policy challenges of our time. All aspects of this challenge have human rights implications. Since the late 1990s, United Nations (UN) General Assembly resolutions have acknowledged that ‘countering the world drug problem’ must be carried out ‘in full conformity’ with ‘all human rights and fundamental freedoms’. This has been reaffirmed in every major UN political declaration on drug control since, and in multiple resolutions adopted by the Commission on Narcotic Drugs. The reality, however, has not always lived up to this important commitment. There remains a lack of clarity as to what human rights law requires of States in the context of drug control law, policy, and practice. The International Guidelines on Human Rights and Drug Policy are the result of a three-year consultative process to address this gap.
The Guidelines are not legally binding. It is the sources they use that are binding or that are derived from authoritative ‘soft law’. However, over time, the more they are referenced in court cases, UN resolutions they may gain in persuasive authority. In the meantime, the extensive legal commentary provides the legal sources for each Guideline. (See Introduction and Methodology)
The Guidelines have been developed via a collaboration between academics, UN entities and civil society. The process was co-led by the International Centre on Human Rights and Drug Policy, based at the Human Rights Centre, University of Essex and the United Nations Development Programme (UNDP). The Guidelines have been developed in collaboration with, and are co-sponsored by the UNDP, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the World Health Organization.
There is no single author of the Guidelines. They are the result of a multi-year collaborative effort between academics, UN entities and civil society. (See Annex II: Methodology.)
The Guidelines are based on both ‘hard law’ and ‘soft law’ sources – those that are legally binding and those that are authoritative but not binding per se. With very few exceptions, the general descriptions of rights are drawn from binding treaty provisions. However, since very few human rights treaty provisions address drug control directly, and since the application of general rights to specific groups requires a more in-depth analysis, much of the guidance presented throughout the document is based on UN resolutions and declarations, the general comments and concluding observations of UN human rights treaty bodies, and the work of UN human rights Special Procedures. Findings of regional human rights courts and national courts are also cited. Such jurisprudence, which is binding for the relevant countries, is cited in the Guidelines as being persuasive of a particular application of a right. (See Annex II: Methodology.)
Given the differing treaty obligations of States and the need to use both hard and soft law sources, not all parts of the Guidelines have equal strength. The Guidelines aim to clarify States’ obligations and suggest human rights-compliant measures based on authoritative sources while taking care not to overstate binding international law. The word ‘should’ is therefore used throughout to reflect the authoritative sources underpinning the Guidelines, but without making claims as to binding law. In some cases, however, there is a clear legal standard that necessitates the stronger formulation of ‘shall’. In some places, a permissive norm allows States to take steps that may be more human rights compliant. In these cases, the word ‘may’ is used.
These Guidelines cannot address all areas of public international law that potentially intersect with drug policy or that relate to the illicit drug trade and State responses. States also need guidance with regard to other relevant international legal obligations, such as those deriving from civil aviation law, the law of the sea, and international humanitarian law applying to conditions of armed conflict. These, however, are beyond the scope of the Guidelines.
Section I presents general cross-cutting, or ‘foundational’, human rights principles underpinning the Guidelines, which may be seen as applicable irrespective of the issue or specific right in question.
Section II sets out universal human rights standards in the context of drug policy, taking the rights in question as its starting point. The section includes a brief overview of each human rights standard and its relation to drug policy before identifying consequent State obligations and recommended measures for human rights compliance. It should be noted that the order of this section does not imply any hierarchy of rights. It begins with the right to health to reflect the health goal of the international drug control system.
Section III addresses human rights concerns arising out of drug policy as it affects a number of specific groups: children, women, persons deprived of their liberty, and indigenous peoples. These, of course, are not the only groups with specific human rights needs or concerns of relevance to drug policy. They are emphasised as a consequence of more developed law concerning their specific human rights in relation to drug policy. Many others also experience disproportionate harm, inequities, and intersecting forms of discrimination on grounds of race, ethnicity, nationality, migration status, disability, gender identity, sexual orientation, economic status, and the nature and location of livelihood, including employment as rural workers or sex workers. The universal rights described in these Guidelines apply equally to these individuals and groups.
Sections IV and V conclude by outlining general matters related to the implementation of human rights obligations and relevant principles of treaty interpretation.
The Guidelines have been designed to place human rights at the forefront. However, many readers may approach the Guidelines with a focus on a specific drug policy topic or theme, or may be unfamiliar with specific rights. To assist with navigating the Guidelines, Annex I provides three thematic reference guides for development, criminal justice, and health. Each thematic guide brings together the most relevant guidelines for each of these issue areas.
The Guidelines recognise the potential tensions between drug control and human rights obligations. Associated commentaries, to be available on an interactive website, will also include an analysis of the relationship between relevant human rights obligations and the obligations set out in the UN drug control conventions, where applicable. In doing so, the commentaries also highlight the potential for compatibility between the promotion of human rights and the stated object and purpose of the drug control conventions, that of promoting the ‘health and welfare of mankind’.
The Guidelines have been developed based on existing international law, which includes the UN drugs conventions. However, applying international human rights law to drug policy engages obligations arising under the UN drugs conventions in various ways. Sometimes this is complementary, but in some cases there are tensions between the two. Where a guideline engages obligations under the UN drugs conventions, a dedicated section in the commentary addresses it.
The Guidelines do not attempt to set out new rights. They apply existing international human rights law to drug policy, based on treaties, UN resolutions and declarations, the general comments and concluding observations of UN human rights treaty bodies, the work of UN human rights Special Procedures and other sources. (See Introduction and Methodology)
The Guidelines are intended as a reference tool for those working to ensure human rights compliance at local, national, and international levels, including parliamentarians, diplomats, judges, lawyers, policy makers, civil society organisations and affected communities. They provide authoritative support for legal reforms and policy change, as well as specific interventions grounded in human rights law.
International Guidelines on Human Rights and Drug Policy (2019) available at www.humanrights-drugpolicy.org Specific Guidelines may be identified numerically. For example, the first Guideline on human dignity as a foundational principle should be cited as Guideline I(1) International Guidelines on Human Rights and Drug Policy (2019) available at www.humanrights-drugpolicy.org The guideline in the same section on monitoring the impact of drug laws, policies, and practices on specific groups would be cited as Guideline I(3)(i) International Guidelines on Human Rights and Drug Policy (2019) available at www.humanrights-drugpolicy.org
These Guidelines were produced with thanks to the generous support of the Global Partnership on Drug Policies and Development, implemented by GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development; the Swiss Federal Department of Foreign Affairs; and the United Nations Development Programme.