CESCR General Comment on drug policy: Inputs to annotated outline

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The General Comment on the impact of drug policies on economic, cultural and social rights is a unique opportunity for the Committee on Economic, Social and Cultural Rights (CESCR) to clarify and build upon its interpretation of the Convention regarding this topic and to consolidate human rights standards developed by the UN human rights system regarding drug policies. HRI's submission provides valuable inputs to the annotated outline, delving into the gaps in the proposed structure of the document and opportunities for improvement.

General inputs

  • Member States need guidance on how to ensure new policies refrain from violating human rights and contribute to fulfilling economic, social and cultural rights.
  • A key guiding consideration is the acknowledgment that drug policies, if well designed, can promote ESCRs; and not only of people who use and engage with drugs, but of communities and societies in general.
  • The General Comment can be used to debunk non-evidence-based assumptions around drugs and drug policy which too often inform policies, and to make sure that measures taken are “addressed in full conformity with the purposes and principles of the Charter of the United Nations, international law and the Universal Declaration of Human Rights”

General Obligations of States Parties under the Covenant

Content/Substance 

  • General Comment needs to debunk the common misunderstanding that Economic, social and cultural rights are non-justiciable rights.
  • The General Comment can further clarify States’ obligations in deploying its maximum available resources for the realisation of economic, social and cultural rights relevant to drug policy, and make emphasis that availability of resources “does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction.”Among other aspects to assess about allocating maximum available resources is that spending/expenditures must be efficient and effective to the fulfilment of economic, social and cultural rights. States should divest from activities/programmes that undermine and violate human rights, health and development, as highlighted by HRI’s latest research, Aid for War on Drugs.
  • The General Comment should also provide an authoritative explanation of what the minimum core obligations of individual economic, social, and cultural rights look like in the context of drug policy.

Participation, consultation, and transparency

  • As also highlighted by the OHCHR’s report on human rights challenges in addressing and countering all aspects of the world drug problem, meaningful engagement of civil society, people who use drugs, affected communities and youth in the design, implementation, and evaluation of drug policy is imperative for its success.
    This is particularly relevant for the case of people deprived of liberty, who, due to their condition of incarceration, have more limited opportunities to engage in public affairs and voice their problems.
  • The General Comment should emphasise the need for the safety and security of these communities when/for taking part in the design, implementation and evaluation of national, regional and international drug policies. Without decriminalising drug use and possession for personal use and without addressing stigma and discrimination, it remains almost impossible for these communities to engage meaningfully – and it is particularly challenging precisely in those contexts where such participation is the most needed.
  • Additionally, it should emphasise that a “transparent and participative decision-making processes” are important elements of government efforts in taking reasonable steps to achieve the realisation of the economic, social and cultural rights.
  • General Comment could centre communities (people who use drugs, people with living experiences) more, vis-a-vis civil society. It could be useful to spell the difference among these stakeholders and reiterate the importance of both.

Non-discrimination, equality, and groups or persons requiring particular attention

  • The General Comment could also pause on the unique impact such policies have on the ESC rights of children, for example, when parents or breadwinners are arrested for drug use or small possession.
  • Another group that requires particular attention is people who use drugs living in places of economic, political or humanitarian crisis in which access to harm reduction and other health services is under immense pressure or at risk.
  • The General Comment should pay special attention to people in prison and other closed settings, who, due to conditions of incarceration, are at higher risk of contracting infectious diseases and whose access to economic, social and cultural rights, including access to health and harm reduction services is extremely limited or insufficient.
  • As for women, particular attention should also be given to pregnant women who use drugs, which in many situations are stigmatised, discriminated against, and their needs neglected, and on the disproportionate impact of criminalisation and incarceration on women.
  • Equally important is to make sure to pause more on compounding discrimination/intersectionality, and on the magnifying role drug policies play in further stigmatising and marginalising the already-oppressed group, such as women, indigenous people, black and brown people, migrants (including in the context of climate change), refugees and people living in places of economic, political and humanitarian crisis.

Respect, protect, Fulfill

  • The General Comment should acknowledge that drug use is part of bodily autonomy. Such a decision should be preceded by adequate information about drugs and their consequences, which then leads to States’ obligation to provide evidence-based, non-stigmatising information about drugs.
  • A key topic for the General Comment to delve into is the provision of quality, accessible and affordable holistic/comprehensive harm reduction services as part of countries’ obligation to fulfil the right to health.
  • Particularly relevant is to clarify States’ obligations to provide tailored harm reduction and health care services for people who use drugs in prison and other closed settings in a way that guarantees its acceptability while protecting the privacy and dignity of people deprived of liberty. Equally relevant is to address issues of discrimination and marginalisation upon release and the State’s obligation to guarantee continuation of care.

Drug Policy and ESCR

Determining the scope of drug control applicability (scheduling substances)

  • On this, it is important to highlight that no substance is inherently, exclusively “bad”, and that there is a vast range of evidence-based interventions (such as drug checking, safer smoking kits, and others) that can be effective to reduce the harms associated with a substance. Scheduling certain substances as ‘off-limit’, either for use, production, and/or research, is not effective in preventing either its use or its associated harms, and it is not proportionate when evidence-based and less restrictive responses.

Health, social and other services for people who use controlled substances.

  • For a more holistic approach to this section, it is suggested to use ‘economic, social and cultural rights’ rather than ‘health, social and other services’. The current title may give the wrong impression that people who use drugs are entitled only to ‘services’ rather than ‘rights.
  • In addition to what is already included in this section on the annotated outline, it is important to reiterate the right to health contains freedom to control one’s health and body. This bodily autonomy aspect of the right to health is crucial in addressing the issue of drug use.
  • Harm reduction needs to be understood as a comprehensive approach that aims at minimising negative health, social, and legal impacts associated with drug use, policies and laws. It looks at drug use from a non-judgemental, non-stigmatising perspective- which is key to the provision of harm reduction services. Consequently, harm reduction is not to be equated merely with services, but rather understood expansively – as housing, education, access to social security, access to reproductive healthcare, access to justice and legal aid for people who use drugs, not just for when they are arresting for drug offences, but also for other legal-related issues that they encounter due to their drug use, such as discrimination at workplace or to access education); and more.

Health and other ESC impacts of administrative and criminal sanctions related to controlled substances

  • The General Comment should also explore the impact of administrative and criminal sanctions on the economic, social and cultural rights of people who use drugs and their families, such as how the absence of the breadwinner could result in poorer health and socioeconomic conditions of the family, stigma and discrimination faced by family members of people who use drugs, and others, which in extreme cases may further expose them to engagement in the drug market.

International cooperation and assistance.

  • The General Comment could also clarify applicable standards related to transparency, extraterritorial obligations, and civil society and community participation in multilateral fora.
  • The General Comment should reaffirm that it is possible for drug policies and laws to contribute to healthier, safer societies, so long as cooperation, assistance, and resource allocation is shifted by divesting from unjust punitive drug responses – that have been proven to violate human rights, including economic, social and cultural rights, with no tangible result/’success’ to address world drug problem – and investing in harm reduction and other approaches that prioritise community, health and social justice.
    24 In line with that, the General Comment could also make recommendations that encourage transparency and funding for rights-based responses to drugs.

Implementation

  • It is suggested to use ‘Evaluation of Drug Policies’ or similar wordings rather than ‘Implementation’ as it better reflects the section.
  • In addition to recommendations to collect and disseminate appropriate and disaggregated data- by at least sex, race, ethnicity, rural/urban and socio-economic status25-, the General Comment should also recommend for such processes to be done periodically and with meaningful participation of people who use drugs, civil society and other relevant actors.

The future of drug control

  • The General Comment is an invaluable opportunity for the Committee to provide authoritative guidance on ‘emerging issues’ such as drug control and environmental justice/climate change (and in this context, protection, respect and fulfilment of economic, social and cultural rights in regulated markets; including the issues of ESCRs protection and promotion vis-a-vis for-profit markets, reparations for previously criminalised communities, etc.

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