By Rick Lines and Damon Barrett

This post originally appeared on the University of Essex Human Rights Centre Blog.

The April 2016 UN General Assembly Special Session (UNGASS) on the world drug problem offered a unique opportunity to re-examine the approach of punitive suppression that underpins global drug control.  As the first such meeting to be held since 1998, it was a chance to set a new course, leaving behind what the UN Office on Drugs and Crime has called the negative ‘unintended consequences’ of the ‘war on drugs’.

Part of setting a new course must mean bringing human rights into the heart of drug control.  For too long, States have approached international drug control law in isolation, as if these obligations exist separate and apart from the broader framework of international law, and may be interpreted and applied as if no overlapping treaty obligations come into play.  This approach has contributed to the growth of human rights violations linked to drug control in all regions of the world – the death penalty; torture and inhuman or degrading treatment or punishment; arbitrary detention; denial of due process rights; violations of the right to health; mass incarceration; and many more.

However, the obligations established in the drug conventions cannot be interpreted and implemented in isolation, and must take into account concomitant obligations in other legal regimes. This principle has driven efforts – sometimes successful, other times not – to forge a more humane and rights-based approach to drug control within the UN system.

UNGASS was an important opportunity to mainstream this approach, and some positive steps in that direction emerged.  Human rights was agreed by Member States as one of the cross-cutting themes to be addressed within the process, and a thematic roundtable held.  The UN Human Rights Council convened its first thematic panel on drug control last September, and the Office of the High Commissioner for Human Rights produced an authoritative report on drug issues.  However, when it came to the highly politicised process of drafting the official General Assembly resolution for UNGASS, things were not as positive.

The first draft in January was generally received with disappointment by civil society organisations.  This was magnified as subsequent drafts stripped out specific references to the right to health and to informed consent to treatment.  A request for regular reporting on human rights at the UN Commission on Narcotic Drugs also disappeared.  At the same time, provisions making the interpretation of human rights issues subject to domestic law multiplied.  Text on the abolition of the death penalty for drug offences never materialised, nor did specific language on harm reduction. When the resolution was adopted, many were left feeling it was a human rights opportunity lost.

However, the final UNGASS document in fact includes the strongest human rights provision ever adopted in a UN drug control resolution, an achievement that thus far has received little comment from Member States, UN agencies or civil society organisations. The key paragraph of the resolution (found on pages 15-16) says that Member States agree to:

Promote and implement effective criminal justice responses to drug-related crimes to bring perpetrators to justice that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings, including practical measures to uphold the prohibition of arbitrary arrest and detention and of torture and other cruel, inhuman or degrading treatment or punishment and to eliminate impunity, in accordance with relevant and applicable international law and taking into account United Nations standards and norms on crime prevention and criminal justice, and ensure timely access to legal aid and the right to a fair trial.

Why is this provision significant?

First, it calls upon States to adopt measures to bring drug enforcement activities in line with human rights obligations.  Operational language requesting States to ‘implement effective…responses’ that must include ‘practical measures to uphold’ these human rights has never been adopted before by a UN drug control body.  This operational language is linked to fulfilling specific obligations in international human rights law – the right to liberty and security, the prohibition of torture, the right to a fair trial – rights which are routinely violated in the context of drug enforcement. It requires that States take practical measures to ‘eliminate impunity’, incorporating a vital element of accountability into the mix. This makes the provision much more useful as an advocacy and accountability tool than the vague and unmeasurable mentions of ‘human rights’ found elsewhere in the resolution.

Second, caveats are included in key provisions elsewhere in the resolution either making domestic law the legal frame of reference, thereby allowing States a loophole to avoid or minimise their international legal obligations, or stating that international standards only be implemented ‘where appropriate’. Both are absent here, making this paragraph stand out from the rest of the document.  Instead, the context for interpreting the provision is specifically the ‘relevant and applicable international law…[and] United Nations standards and norms on crime prevention and criminal justice’, meaning States have therefore agreed a broad commitment to ensure human rights abuses are reduced or eliminated in the context of ‘criminal justice responses to drug-related crimes’.

Within the paragraph itself, five main areas are set out in a non-exhaustive set of examples. ‘Practical measures’ must be adopted to:

1. Uphold the prohibition of arbitrary arrest and detention
2. Uphold the prohibition of torture and other cruel, inhuman or degrading treatment or punishment
3. Ensure timely access to legal aid
4. Ensure the right to a fair trial
5. Eliminate impunity

In relation to each of these areas, international standards exist or are included in treaty form, and from them accountability frameworks for implementing this new paragraph can be developed. The potential scope of the standards engaged is very wide, which is partly why this paragraph is so remarkable. Consider, for example, the first two in the context of some core advocacy issues.

• Police stop and search practices regularly infringe upon the freedom from arbitrary arrest.

• Drug detention centres constitute a form of arbitrary detention, a position supported by the UN Working Group on Arbitrary Detention, among others . The abuses inflicted inside these centres also violates the prohibition on cruel inhuman and degrading treatment, along with other key protections.

• There is growing consensus within international human rights law that the use of the death penalty in any context constitutes torture, or cruel, inhuman or degrading treatment or punishment, a perspective that the UN Special Rapporteur on Torture describes as one that ‘is developing into a norm of customary law, if it has not already done so’.

• Prison overcrowding is widely recognised as contributing to cruel inhuman and degrading conditions.

• The denial of, or cessation of, opioid substitution therapy, HIV and hepatitis C treatment constitutes cruel inhuman and degrading treatment or punishment. The provision can therefore be used to advance the objective of a ‘harm reduction decade’, and strengthens the call for States to increase investment in harm reduction while decreasing spending on abusive drug enforcement.

The third significant element is that meeting the provision’s commitments requires ongoing and transparent monitoring of progress towards its objectives. As a General Assembly resolution adopted by consensus, the UNGASS document creates a mandate for UN Charter-based human rights bodies to continue work on drug issues.  It invites the Human Rights Council, the Special Procedures and the Universal Periodic Reporting process to engage on drug policy issues in a sustained manner. Their findings are reported back the General Assembly.

Moreover, these are also issues that States should address in their plenary statements in the Commission on Narcotic Drugs, in order to demonstrate their progress on implementing of these consensus based commitments. The door is also clearly open for a UN Office on Drugs and Crime study on the implementation of this paragraph.

For human rights, harm reduction and drug policy reform advocates, this provision therefore opens important and concrete opportunities to press for progress on key priorities, and to encourage human rights mechanisms to play a much more assertive role in drug control issues, and the UN drug control machinery to take greater and more targeted account of human rights.

Speaking at the International Harm Reduction Conference in 2008, the (then) UN Special Rapporteur on the Right to Health, Paul Hunt, stated that the UN drug control and human rights systems must ‘cease to behave as though they exist in parallel universes’.  This provision within the UNGASS resolution offers an opportunity – indeed an open invitation – for the two regimes to bridge the human rights gap identified by Professor Hunt.  However, it is an invitation that will not be taken up by UN mechanisms unless human rights, harm reduction and drug reform advocates press these bodies to act to fulfil the mandate the UNGASS resolution has created.

In that sense, it is an invitation to us as well.  Let’s take it.