Search About

II. Obligations arising from human rights standards

1. Right to the highest attainable standard of health

Everyone has the right to enjoy the highest attainable standard of physical and mental health. This right applies equally in the context of drug laws, policies, and practices.

In accordance with this right, States should:

i. Take deliberate, concrete, and targeted steps to ensure that drug-related and other health care goods, services, and facilities are available on a non-discriminatory basis in sufficient quantity; financially and geographically accessible; acceptable in the sense of being respectful of medical ethics, cultural norms, age, gender, and the communities being served; and of good quality (that is, with a solid evidence base).

ii. Address the social and economic determinants that support or hinder positive health outcomes related to drug use, including stigma and discrimination of various kinds, such as against people who use drugs.

iii. Ensure that demand reduction measures implemented to prevent drug use are based on evidence and compliant with human rights.

iv. Repeal, amend, or discontinue laws, policies, and practices that inhibit access to controlled substances for medical purposes and to health goods, services, and facilities for the prevention of harmful drug use, harm reduction among those who use drugs, and drug dependence treatment.

In addition, States may:

v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.

Commentary:

The right to the highest attainable standard of physical and mental health is recognised in numerous international instruments.[75] The UN General Assembly and Human Rights Council have consistently reaffirmed this right, and UN human rights treaty bodies have elaborated upon its content.[76] The Commission on Narcotic Drugs has repeatedly reaffirmed the importance of the right to health in the development and implementation of national and local drug policies and practices,[77] as it is closely related to the object and purpose of the UN drug conventions in furthering the ‘health and welfare of mankind’.[78] The UN General Assembly Special Session 2016 Outcome Document also highlights the importance of ensuring the right to health, dedicating a chapter on demand reduction and related measures (including harm reduction interventions) and another on ensuring access to controlled medicines.[79]

Access to health goods, services, and facilities under the right to health is measured by the ‘AAAQ framework’, a standard developed within the UN human rights system that refers to availability, accessibility (defined as non-discrimination, physical accessibility, economic accessibility, and information accessibility), acceptability (with regard to age, gender, culture, and human rights compliance—that is, services must be non-discriminatory and non-stigmatising), and quality.[80] The quality element of the right to health requires that health facilities, goods, and services be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel and scientifically approved and unexpired drugs and hospital equipment.[81] The International Narcotics Control Board, which is the body tasked with overseeing States’ implementation of the UN drug conventions, affirms that the AAAQ framework clarifies obligations relating to drug treatment and access to controlled medicines as outlined in the drug control treaties.[82]

Given its complex nature and budgetary implications, the right to health is subject to the principle of ‘progressive realisation’. That is, States must take various measures over time to achieve the full realisation of this right for all. There remain, however, core minimum obligations that must be guaranteed without delay.[83] These core obligations include, among others, providing essential medicines as defined by the World Health Organization (several of which are also internationally controlled substances)[84] and ensuring access on a non-discriminatory basis, especially for vulnerable and marginalised groups, to those health goods, services, and facilities that are available.

Underlying and social determinants of health

As the Committee on Economic, Social and Cultural Rights has stated, the right to health is an inclusive right extending not only to timely and appropriate health care but also to ‘a wide range of socio-economic factors that promote conditions in which people can lead a healthy life’.[85] In this way the right to health supports attention to the ‘social determinants of health’, which drives global health work and underpins Sustainable Development Goal 3. For example, the Committee on Economic, Social and Cultural Rights has raised concern about stigma and discrimination directed against people who use drugs, as these social factors impede access to health services protected under the right to health.[86]

The Commission on Narcotic Drugs has called on UN entities and Member States to take measures to address the negative effects that social stigma related to drug use has on the availability, access, and delivery of health care and social services for people who use drugs.[87] The UN General Assembly Special Session 2016 Outcome Document likewise calls on States to ‘prevent social marginalization and promote non-stigmatising attitudes’ towards people who use drugs in an effort to facilitate access to treatment and care.[88]

The right to health further includes the right to certain services, goods, and commodities that are outside of health care but are nonetheless essential for health. These elements, referred to as the ‘underlying determinants of health’, include ‘food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment’.[89] Each is linked to related human rights (e.g., the right to adequate housing) and is also subject to the AAAQ framework and progressive realisation.

Legal determinants: Criminalisation and health

Legal frameworks can hinder or support health outcomes, and there is therefore increasing attention to the ‘legal determinants of health’.[90] In this context, the criminalisation of drug use and possession for personal use affects the realisation of the right to health.[91] The criminalisation of drug use and possession for personal use, as well as related law enforcement practices, can lead people who use drugs to be displaced from areas served by harm reduction programmes, thereby impeding their access to sterile syringes, opioid agonist therapy, and outreach workers. Such criminalisation can also increase risky behaviours – including the sharing of needles and syringes, hurried injecting, and the use of drugs in unsafe places – that are associated with HIV, viral hepatitis, and premature death due to overdose.[92] The stigma created or reinforced through punitive enforcement and treatment regimes (including targeted abuse and violence towards people who use drugs) and policing practices that include the use of excessive force may also increase the risk of physical and mental illness for people who use drugs.[93]

In addition, once a person has a conviction for a drug-related offence, they may face considerable obstacles in obtaining employment and may lose access to government benefits, such as basic income assistance, student loans, public housing, and food assistance, or may face difficulties travelling abroad. The Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the right to health, the Working Group on Arbitrary Detention, and the Office of the UN High Commissioner for Human Rights have recommended the decriminalisation of drug use and possession for personal use as an important step towards fulfilling the right to health.[94] The UN system common position on drug control policy, adopted in November 2018, commits to ‘stepping up our joint efforts and supporting each other … [t]o promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use’.[95] Twelve UN agencies have committed to supporting States in reviewing and repealing laws criminalising drug use and the possession of drugs for personal use, on the basis that they have been proven to have negative health outcomes and that they counter public health evidence.[96] In 2014, as part of its recommendations to increase HIV prevention, testing, and treatment for people who use drugs, the World Health Organization recommended that countries work towards the decriminalisation of drug use as a strategy to reduce incarceration and support access to HIV-related services for people who use drugs.[97]

The International Narcotics Control Board has raised concern that many State policies ‘to address drug-related criminality, including personal use, have continued to be rooted primarily in punitive criminal justice responses, which include prosecution and incarceration and as part of which alternative measures such as treatment, rehabilitation and social integration remain underutilized’.[98] At the same time, many States have come to see drug use and dependence as a public health issue requiring health-centred, not punitive, responses.[99] This is consistent with States’ obligations under the drug conventions, which require them to establish certain behaviours as punishable, subject to the constitutional principles of the State and the principle of proportionality.[100] The conventions thus do not oblige States to adopt a punitive response or to incarcerate those who commit minor drug-related offences, including possession of small quantities of drugs for personal use.[101]

The UN General Assembly Special Session 2016 Outcome Document also encourages States to provide ‘alternative or additional measures with regard to conviction or punishment’, mentioning the UN Standard Minimum Rules for Non-custodial Measures (also known as the Tokyo Rules), as a relevant standard to follow.[102]

Relationship to the UN drug control conventions

Under the UN drug control conventions, States have an obligation to undertake demand reduction measures, which are measures aimed at the prevention of illicit drug use.[103] The drug control conventions do not prohibit harm reduction interventions – that is, policies, programmes, and practices aiming to minimise negative health, social, and legal impacts associated with drug use, drug policies, and drug laws.[104] Indeed, such interventions are consistent with the conventions’ stated objective of protecting the health and welfare of mankind.

The UN drug control conventions grant some flexibility with respect to how States treat the possession and use of controlled substances in law, policy, and practice. To a limited degree, and subject to important caveats, these conventions require States Parties to adopt measures to criminalise the possession of controlled substances other than for medical or scientific purposes.[105] However, the conventions also note the importance of measures to protect the health of people who use drugs, requiring governments to ‘take all practicable measures’ to provide ‘treatment, education, after-care, rehabilitation and social reintegration’ of people who use drugs.[106] States may provide measures for treatment, education, rehabilitation, after-care, and social reintegration as alternatives to conviction or punishment for the possession, purchase, or cultivation of drugs for personal use and in ‘appropriate cases of a minor nature’.[107] This flexibility is reflected in the UN General Assembly Special Session 2016 Outcome Document.[108] Therefore, even if such behaviours are considered illegal, they need not be subject to criminal or administrative punishment.

The UN drug conventions also contain sufficient flexibility to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[109] Furthermore, this obligation is subject to any ‘constitutional limitations’ of the State Party[110] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[111] States therefore have the latitude to determine whether imposing criminal liability or sanctions for possession, purchase, or cultivation for personal consumption contravenes constitutional provisions – such as the right to privacy or the right to health – or otherwise offends against the basic concepts of their legal system, including basic concepts of criminal law.

  • 75. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 12; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 12; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 25; European Social Charter (Revised), ETS No. 163 (1996), art. 11; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 10; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 16; Arab Charter on Human Rights (2004), art. 39(1); see also Arab Charter on Human Rights (2004), art. 39(g)(2) (steps necessary to fulfil obligations under the right to health include ‘[f]ight against tobacco, drugs, and psychotropic substances’); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 25.

  • 76. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016); 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); Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/4 (2003); 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); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999).

  • 77. ^

    See, e.g., Commission on Narcotic Drugs, Resolution 57/7: Providing Sufficient Health Services to Individuals Affected by Substance Use Disorders During Long-Term and Sustained Economic Downturns (2014); Commission on Narcotic Drugs, Resolution 55/5: Promoting Strategies and Measures Addressing Specific Needs of Women in the Context of Comprehensive and Integrated Drug Demand Reduction Programmes and Strategies (2012).

  • 78. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), preamble.

  • 79. ^

    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), chs. 1, 2.

  • 80. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13.

  • 81. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13(d).

  • 82. ^

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

  • 83. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 43, 44.

  • 84. ^

    World Health Organization, WHO Model List of Essential Medicines, 20th ed. (2017); World Health Organization, WHO Model List of Essential Medicines for Children, 6th ed. (2017); Schedules of the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, as of 16 May 2018.

  • 85. ^

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

  • 86. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), paras. 46, 47; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), paras. 53, 54.

  • 87. ^

    Commission on Narcotic Drugs, Resolution 61/11: Promoting Non-stigmatizing Attitudes to Ensure the Availability, Access and Delivery of Healthcare and Social Services for Drug Users (2018).

  • 88. ^

    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(j).

  • 89. ^

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

  • 90. ^

    L.O. Gostin, J. T. Monahan, J. Kaldor, et al., ‘The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development’, Lancet, vol. 393, issue 10183 (2019), pp. 1857–1910.

  • 91. ^

    Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), paras. 30, 50; see also Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018), paras. 14–16.

  • 92. ^

    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), paras. 16, 26–27.

  • 93. ^

    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. 24.

  • 94. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Benin, UN Doc. E/C.12/BEN/CO/3 (2020), para. 43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ukraine, UN Doc. E/C.12/UKR/CO/7 (2020), para. 43; 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: Senegal, UN Doc. E/C.12/SEN/CO/3 (2019), para. 40; Committee on Economic, Social and Cultural Rights, Concluding Observations: Norway, UN Doc. E/C.12/NOR/CO/6 (2020), para. 42; 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), paras. 6, 18, 49, 62; Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 61; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 122; Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 72.

  • 95. ^

    United Nations System Chief Executives Board for Coordination, Summary of Deliberations, UN Doc. CEB/2018/2 (2019), annex 1.

  • 96. ^

    Joint United Nations Programme on HIV/AIDS, United Nations High Commissioner for Refugees, UNICEF, et al., Joint United Nations Statement on Ending Discrimination in Health Care Settings (2018).

  • 97. ^

    World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017), pp. 5, 32, 38, 87; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.

  • 98. ^

    International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2; see also ibid., para. 8.

  • 99. ^

    International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 3.

  • 100. ^

    International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 6.

  • 101. ^

    International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2.

  • 102. ^

    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. 4(j); see UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990).

  • 103. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(4).

  • 104. ^

    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).

  • 105. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.

  • 106. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38(1); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 20(1).

  • 107. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(4)(c, d).

  • 108. ^

    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. 4(j).

  • 109. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).

  • 110. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(a); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(a).

  • 111. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).

Privacy Policy © 2022