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II. Obligations arising from human rights standards

1.1 Harm reduction

The right to health as applied to drug policy includes access, on a voluntary basis, to harm reduction services, goods, facilities, and information.

In accordance with their right to health obligations, States should:

i. Ensure the availability and accessibility of harm reduction services as recommended by UN technical agencies such as the World Health Organization, UNAIDS, and the UN Office on Drugs and Crime, meaning that such services should be adequately funded, appropriate for the needs of particular vulnerable or marginalised groups, compliant with fundamental rights (such as privacy, bodily integrity, due process, and freedom from arbitrary detention), and respectful of human dignity.

ii. Consider the development of other evidence-based interventions aimed at minimising the adverse health risks and harms associated with drug use.

iii. Remove age restrictions on access to harm reduction services where they exist, and instead ensure that in every instance in which a young person seeks access to services, access is determined based on the best interests and evolving capacity of the individual in question.

iv. Exclude from the scope of criminal offences, or other punitive laws, policies, or practices, the carrying and distribution of equipment, goods, and information intended for preventing or reducing the harms associated with drug use, ensuring also that criminal conspiracy laws do not capture people using drugs together for this purpose.

v. Ensure that any law prohibiting the ‘incitement’ or ‘encouragement’ of drug use contains safeguards protecting harm reduction services, excluding from liability those who provide information, facilities, goods, or services aimed at reducing harms associated with drug use.

vi. Ensure that victims of, or witnesses to, an overdose or other injury occurring as a result of drug use are legally protected against criminal prosecution and other punishment in situations in which they have sought medical assistance for the overdose or injury.

Commentary:

Opioid agonist therapy and needle and syringe programmes are part of the core package of harm reduction interventions to prevent the transmission of HIV, viral hepatitis, and other blood-borne diseases, as developed jointly by the World Health Organization, Joint United Nations Programme on HIV/AIDS, and UN Office on Drugs and Crime[112] and endorsed by the UN General Assembly,[113] Economic and Social Council,[114] and Commission on Narcotic Drugs. In particular, the Commission on Narcotic Drugs has highlighted the importance of these interventions to meet Sustainable Development Goal targets to end the AIDS and tuberculosis epidemics and to combat hepatitis by 2030.[115] The International Narcotics Control Board has also recognised the efficacy of supervised injection facilities, or ‘drug consumption rooms’, as an intervention to reduce the adverse health and social consequences of injection drug use,[116] citing research concluding that such services succeed in attracting hard-to-reach populations, promoting safer injections, reducing the risk of overdose, and decreasing public drug injections, discarded syringes, and other drug-related litter in the community.[117] The Board has stated that in order for these facilities to be consistent with the international drug control conventions, their ultimate objective ‘should be to reduce the adverse consequences of drug abuse without condoning or encouraging drug use and trafficking’.[118] To this end, the Board has called on States to ensure that these facilities ‘provide or refer patients to treatment, rehabilitation and social reintegration services … [which] must not be a substitute for demand reduction programmes’.[119]

In addition to the above harm reduction measures, the World Health Organization has developed guidelines for the treatment of opioid dependence that recommend making the essential medicine naloxone available for the management of opioid overdose[120] and providing people likely to witness an overdose and other first responders, including people who use opioids, their peers and family members, and police and emergency services, access to naloxone and instruction on its administration and use.[121]

Guidance issued by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund recommends further that naloxone ‘be made available to people held in prison, prison staff and other people in prisons and other closed settings who might witness an opioid overdose’ and that it be provided to prisoners ‘upon release from prison to prevent post-release overdose deaths’.[122] World Health Organization guidelines on naloxone have also been endorsed by the Commission on Narcotic Drugs[123] and the UN General Assembly Special Session 2016 Outcome Document.[124] The Committee on Economic, Social and Cultural Rights has made similar recommendations calling on States to provide essential medicines as part of their core obligation under the right to health.[125]

States have a legal obligation to provide such harm reduction services to progressively realise the right to health[126] and to ensure that people who use drugs may equally benefit from scientific progress and its applications.[127] Ensuring access to harm reduction services is also critical for protecting the right to life. The Human Rights Committee has explained that the right to life ‘should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘the prevalence of life-threatening diseases, such as AIDS’.[128]

UN human rights treaty bodies have repeatedly called on States to adopt and implement culturally appropriate and gender-sensitive harm reduction services, such as opioid agonist therapy and needle and syringe programmes,[129] to ensure access to these services in prison,[130] and to consider the decriminalisation of drug use and possession for personal use[131] in order to meet their obligations to protect the right to health. The Committee on the Elimination of Discrimination against Women has raised particular concern about the significant legislative and administrative barriers that women face in accessing supervised consumption services, calling for the removal of such barriers and the establishment of transparent processes to permit supervised consumption services without risk of criminal prosecution of clients or service providers.[132] As the Committee on the Rights of the Child has repeatedly clarified, children who use drugs also have the right to harm reduction services that are targeted to and appropriate for their needs.[133]

The Committee on Economic, Social and Cultural Rights has raised concern about law enforcement agencies’ harassment of people who use drugs and of providers of harm reduction services, as well as the arbitrary detention of methadone programme participants.[134] The Committee has also raised concern about discrimination against people with drug dependence in access to health services, ‘including by being asked for informal payments’.[135] The Committee has recommended that States monitor and sanction such discrimination, increase full access to free, adequate opioid agonist therapies respecting patient dignity, and ensure that people with drug dependence and harm reduction providers not be subjected to harassment or arbitrary detention by authorities.[136]

The Committee on Economic, Social and Cultural Rights has moreover called for the repeal of legislative prohibitions on distributing or carrying drug paraphernalia, as such prohibitions impede HIV prevention services.[137] This follows the International Guidelines on HIV/AIDS and Human Rights, which recommend that States review their criminal legislation and consider the authorisation or legalisation of needle and syringe exchange programmes and the repeal of laws criminalising the possession, distribution, or dispensing of needles and syringes, as such laws impede efforts to prevent HIV and to provide HIV-related care and treatment for people who inject drugs.[138]

The Working Group on Arbitrary Detention has called for the decriminalisation of the use, possession, acquisition, and cultivation of drugs for personal use and of the possession of drug paraphernalia.[139] In this context, it has also noted that positive, evidence-based messages, shared via media and other publicly accessible resources, may help reduce stigma and promote a better understanding of health and other benefits of decriminalisation.[140]

The Special Rapporteur on the right to health has recommended that harm reduction services, including opioid agonist therapy, needle and syringe programmes, naloxone distribution, and overdose prevention sites, which are essential for the protection of the right to health of people who use drugs, be acknowledged as key services in the context of the COVID-19 pandemic and thus remain available, accessible, acceptable, and of adequate quality without discrimination.[141] The Special Rapporteur has recommended that harm reduction service providers be recognised as workers providing key services and that exceptional measures, including the adequate provision of personal protective equipment, be taken to ensure that they operate in a safe environment.[142] According to the Special Rapporteur, harm reduction services should reach people where they are, particularly in the context of heightened isolation and lockdowns; to this end, peer distribution and home delivery (to prevent further strain on national health systems) should be made available.[143] Gender-sensitive harm reduction services should remain operational and adequately equipped.[144]

The Special Rapporteur has recommended that access to adequate personal protective equipment and essential services without discrimination and fear of harassment or repercussions be ensured and that national authorities provide necessary guidance to law enforcement agencies to permit the implementation of harm reduction services.[145]

The Special Rapporteur has also called for the funding of harm reduction and related services to be safeguarded, recognising that additional funding may be needed to support exceptional measures for these services.[146]

Relationship to the UN drug control conventions

As set out above, the drug control conventions do not prohibit harm reduction interventions.[147] Indeed, such interventions are consistent with the conventions’ stated objective of protecting the health and welfare of mankind.

  • 112. ^

    World Health Organization, UN Office on Drugs and Crime, and Joint United Nations Programme on HIV/AIDS, Technical Guide for Countries to Set Targets for Universal Access to HIV Prevention, Treatment and Care for Injecting Drug Users: 2012 Revision (2012).

  • 113. ^

    UN General Assembly, Resolution 65/277: Political Declaration on HIV/AIDS: Intensifying our Efforts to Eliminate HIV/AIDS, UN Doc. A/RES/65/277 (2011), para. 59(h).

  • 114. ^

    Economic and Social Council, Resolution 2009/6: Joint United Nations Programme on HIV/AIDS (UNAIDS) (2009), para. 19.

  • 115. ^

    Commission on Narcotic Drugs, Resolution 60/8: Promoting Measures to Prevent HIV and Other Blood-Borne Diseases Associated with the Use of Drugs and Increasing Financing for the Global HIV/AIDS Response and for Drug Use Prevention and Other Drug Demand Reduction Measures (2017), paras. 1, 3; see also Sustainable Development Goal 3.5.

  • 116. ^

    International Narcotics Control Board, Annual Report 2017 (2018); International Narcotics Control Board, Annual Report 2016 (2017).

  • 117. ^

    International Narcotics Control Board, Annual Report 2017 (2018), para. 20(h).

  • 118. ^

    International Narcotics Control Board, Annual Report 2017 (2018), para. 840.

  • 119. ^

    International Narcotics Control Board, Annual Report 2017 (2018), para. 840.

  • 120. ^

    World Health Organization, Guidelines for the Psychosocially Assisted Pharmacological Treatment of Opioid Dependence (2009); World Health Organization, Community Management of Opioid Overdose (2014).

  • 121. ^

    World Health Organization (2014), Community Management of Opioid Overdose; World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017).

  • 122. ^

    UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).

  • 123. ^

    Commission on Narcotic Drugs, Resolution 55/7: Promoting Measures to Prevent Drug Overdose, in Particular Opioid Overdose (2012), para. 2, n. 2 (citing World Health Organization, Guidelines for the Psychosocially Assisted Pharmacological Treatment of Opioid Dependence, 2009).

  • 124. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(m).

  • 125. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 43(d).

  • 126. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Switzerland, UN Doc. E/C.12/CHE/CO/4, paras. 50–51; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), paras. 41, 42; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Former Yugoslav Republic of Macedonia, UN Doc. E/C.12/MKD/CO/2-4 (2016), para. 52; Human Rights Council, Report of the Working Group on the Universal Periodic Review: Thailand, UN Doc. A/HRC/33/16 (2016), para. 158.157; Committee on Economic, Social and Cultural Rights, Concluding Observations: Canada, UN Doc. E/C.12/CAN/CO/6 (2016), para. 50; Committee on Economic, Social and Cultural Rights, Concluding Observations: Thailand, UN Doc. E/C.12/THA/CO/1-2 (2015), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover: Mission to Poland, UN Doc. A/HRC/14/20/Add.3 (2010), para. 86; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 55.

  • 127. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27.

  • 128. ^

    Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), paras. 3, 26.

  • 129. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 48(a); Committee on Economic, Social and Cultural Rights, Concluding Observations: Kazakhstan, UN Doc. E/C.12/KAZ/CO/2 (2018), para. 47; Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on Economic, Social and Cultural Rights, Concluding Observations: Moldova, UN Doc. E/C.12/MDA/CO/3 (2017), para. 67; Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, UN Doc. E/C.12/POL/CO/6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/5 (2011), para. 29; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/6 (2017), para. 51; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), para. 42; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 30; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 45. On access to medication-assisted treatment in Belarus, Georgia, Indonesia, Lithuania, Russia, Ukraine, Uzbekistan, see UN Docs. E/C.12/BLR/CO/4-6 (2013); CCPR/C/GEO/CO/4 (2014); E/C.12/IDN/CO/1 (2014); E/C.12/LTU/CO/2 (2014); E/C.12/RUS/CO/5 (2011); CEDAW/C/RUS/CO/8 (2015); E/C.12/UKR/CO/6 (2014); E/C.12/UZB/CO/2 (2014).

  • 130. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 48(a); Committee on Economic, Social and Cultural Rights, Concluding Observations: Kazakhstan, UN Doc. E/C.12/KAZ/CO/2 (2018), para. 47; Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), para. 16(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 49(c); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/HRC/23/41/Add.1 (2013), para. 60; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay from 13 to 15 September 2010, UN Doc. CAT/OP/PRY/2 (2011), para. 167; Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, UN Doc. E/C.12/POL/CO/6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), para. 42; Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Kazakhstan, UN Doc. A/HRC/13/39/Add.3 (2009), para. 85(b).

  • 131. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27(f); Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/6 (2017), para. 51; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.

  • 132. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), paras. 44, 45(b).

  • 133. ^

    Committee on the Rights of the Child, General Comment No. 21: Children in Street Situations, UN Doc. CR/GC/21 (2017), para. 53; Committee on the Rights of the Child, General Comment No. 15: The Right of the Child to the Highest Attainable Standard of Health, UN Doc. CRC/C/GC/15 (2013), para. 66; Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, UN Doc. CRC/GC/2003/3 (2003), para. 39; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Ukraine, UN Doc. CRC/C/UKR/CO/3-4 (2011), para. 61; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Albania, UN Doc. CRC/C/ALB/CO/2-4 (2012), para. 63(b); Committee on the Rights of the Child, Concluding Observations: Guinea, UN Doc. CRC/C/GIN/CO/2 (2013), para. 68; Committee on the Rights of the Child, Concluding Observations: Estonia, UN Doc. CRC/C/EST/CO/2-4 (2017), para. 43(a); Committee on the Rights of the Child, Concluding Observations: Serbia, UN Doc. CRC/C/SRB/CO/2-3 (2017), para. 50(c); Committee on the Rights of the Child, Concluding Observations: Barbados, UN Doc. CRC/C/BRB/CO/2 (2017), para. 48(c); Committee on the Rights of the Child, Concluding Observations: Bulgaria, UN Doc. CRC/C/BGR/CO/3-5 (2016), para. 45(c); Committee on the Rights of the Child, Concluding Observations: Sierra Leone, UN Doc. CRC/C/SLE/CO/3-5 (2016), para. 32.

  • 134. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Kyrgyzstan, UN Doc. E/C.12/KGZ/CO/2-3 (2015), para. 23.

  • 135. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Kyrgyzstan, UN Doc. E/C.12/KGZ/CO/2-3 (2015), para. 23.

  • 136. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Kyrgyzstan, UN Doc. E/C.12/KGZ/CO/2-3 (2015), para. 23.

  • 137. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27(a).

  • 138. ^

    Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights (2006), guideline 4, para. 21(d).

  • 139. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(a).

  • 140. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(a).

  • 141. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 142. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 143. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 144. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 145. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 146. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 147. ^

    UN Office on Drugs and Crime, Flexibility of Treaty Provisions as Regards Harm Reduction Approaches, UN Doc. E/INCB/2002/W.13/SS.5 (2002).

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