Harm reduction is a human right. This is demonstrated by harm reduction being recognised as an important element of the right to health for people who use drugs. Denial of access to harm reduction may constitute torture and other cruel, inhuman and degrading treatment. These principles also apply to people in prison.

Apart from those rights that are limited by a judicial sentence, people in prison retain all their human rights. International standards make clear that governments have an obligation to ensure the highest standard of physical and mental health for people in prison by providing adequate, timely, available and accessible healthcare to all, without discrimination and cost.

Human rights standards are implemented and monitored through various mechanisms under the UN human rights system, which is usually divided into two: the charter-based and treaty-based systems.

CHARTER-BASED

UN Charter-based human rights mechanisms are a set of bodies and procedures established under the authority of the United Nations Charter to monitor and promote adherence to human rights standards across all UN Member States. These mechanisms are distinct from treaty-based bodies, which are created by specific human rights treaties or conventions and focus on monitoring the implementation of those legal instruments.

Human Rights Council

The UN Human Rights Council (HRC) is the primary inter-governmental body and subsidiary organ of the UN General Assembly. It is responsible for promoting and protecting human rights globally, addressing situations of human rights violations, and making recommendations thereon.

The HRC meets at least three times a year, where it receives updates from special procedures and holds the Universal Periodic Review (UPR). The HRC’s regular sessions are public, usually live-streamed, and non-governmental organisations (NGOs) with ECOSOC accreditation (or ‘consultative status’) can observe sessions in person and make written and oral statements.29 NGOs can also organise side events to highlight topics of their interest and engage directly with delegations and other relevant stakeholders. Civil society can equally engage with country delegations in Geneva and in capitals, to ensure they are aware of relevant matters being discussed at the HRC.

In the last decade, the HRC has increased its attention to the human rights implications of drug policy and has adopted key resolutions that promote evidence-based and human rights-based approaches to drug policy reform, including the 2023 HRC resolution Contribution of the Human Rights Council with regard to the human rights implications of drug policy (A/HRC/RES/52/24), which gave explicit support to harm reduction strategies. The resolution also mandated the Office of the High Commissioner for Human Rights (OHCHR) to prepare the report Human rights challenges in addressing and countering all aspects of the world drug problem (A/HRC/54/53). Other relevant resolutions, although not specific to drug policy, which mention and support harm reduction are the 2021 (A/HRC/RES/47/14) and 2024 (A/HRC/56/20) resolution on human rights in the context of HIV and AIDS.

Special procedures

Special procedures are independent mechanisms established by the HRC. Each mechanism has a specific mandate, and its ‘competency’ over a country issue is irrespective of the ratification of a treaty by a UN Member State. Special procedures are conducted by special rapporteurs, independent experts and working groups.

Those involved in a special procedure undertake country visits, act on individual cases of reported human rights violations, contribute to the development of international standards, engage in advocacy, raise public awareness and provide advice for technical cooperation.
Special procedures report their findings on a specific issue or country to the HRC annually and make recommendations on how to advance human rights. Civil society can participate in the special procedures’ annual meetings and dialogues before the HRC.

Particularly relevant for drug policy advocacy are the outputs of the Working Group on Arbitrary Detention (A/HRC/47/40), the Special Rapporteur on the Right to Health (A/HRC/56/52, A/HRC/38/36, A/HRC/32/32, A/65/255) and the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (A/HRC/55/52), to name a few.

The Universal Periodic Review

The UPR is a unique state-driven process that periodically reviews the human rights records of all UN Member States and follows up on recommendations made in previous cycles. UN agencies, national human rights institutions and civil society can provide inputs and suggest recommendations during the review process.

TREATY-BASED

UN treaty-based bodies are committees of independent experts established under legally binding international human rights treaties and their protocols. Each committee is tasked with monitoring and promoting the implementation of the human rights obligations that UN Member States have committed to under a specific convention.31 There are 10 treaty bodies, including the Committee on the Elimination of Racial Discrimination (CERD), the Committee on Economic, Social and Cultural Rights (CESCR), the Human Rights Committee (HRCtee) and the Committee Against Torture (CAT). They only have jurisdiction over matters in UN Member States that have ratified the respective international instrument, as ratification includes recognising the competence of that committee to monitor their actions in relation to that treaty. The committees monitor countries’ implementation of the treaty’s provisions through periodic reports and provides concluding observations and recommendations for improvement. Committees can also receive individual complaints, but only if the State it relates to has recognised the competence of the committee to receive such complaints and if domestic remedies have been exhausted.

Treaty bodies also adopt general comments or recommendations as a way to provide authoritative interpretations of the treaty provisions. Particularly relevant for drug policy and prisons are the HRCtee’s General Comment No. 36 on the right to life and the CESCR’s General Comment No. 14 on the right to highest attainable standards of physical and mental health. The CESCR is currently drafting a new general comment on the implication of drug policy on economic, social and cultural rights (more information can be found here).

Civil society organisations and individuals can provide inputs on a country’s reports and provide feedback and relevant information during the development of a general comment and thematic discussions.

Closing the gap between international human rights obligations and domestic policies and practices is critical to protecting the rights of people in prison. Experts, activists, people with lived experience of incarceration, community-led organisations and civil society in general have a key role to play in catalysing change. Progress can be made by, among other things, raising awareness and actively engaging with human rights mechanisms at national and international level to hold States accountable and by promoting the provision of harm reduction for people in prison.

Harm Reduction International (HRI) is developing an online database – open to everyone – which compiles existing norms, principles and recommendations made by UN human rights mechanisms and bodies that relate to drug policy and human rights, including harm reduction in prisons.

These standards define some of the specific steps and benchmarks required from UN Member States to respect, protect and fulfil the human rights of people deprived of liberty, including the right to life, the right to be free from torture or to cruel, inhuman or degrading treatment or punishment, the right to not be subjected to arbitrary arrest, to be treated with equality and non-discrimination, among others, which is particularly relevant to make the case for harm reduction in prison.

However, it is important to note that while meeting standards is often a necessary pre-condition for compliance with legal requirements, these standards serve as a minimum level of protection. Authorities should strive to provide conditions that exceed the minimum standards identified by international human rights laws.