Drugs and Democracy
Human Rights and drug policy
TNI has always believed in the need to find global answers to global problems, been a strong defender of multilateralism and an advocate of a well-functioning United Nations which stands as the guarantor of universal human rights. On the drugs question, our position is straightforward: drug control should respect human rights.
/ Sunday 13 October 2013
Social anthropologist who researches and analyses the UN drug control system, Dutch drug policy and the Drugs and Democracy Programme’s Asia project.
Since its establishment in the 1970s, TNI has always believed in the need to find global answers to global problems, been a strong defender of multilateralism and an advocate of a well-functioning United Nations which stands as the guarantor of universal human rights. On the drugs question, our position is straightforward: drug control should respect human rights.
We defend the rights of farmers caught in the illicit economy to live a life in dignity.
We favour the decriminalisation of use, possession for personal use and minor trafficking offences. We defend harm-reduction approaches and advocate differentiation among substances on the basis of health concerns.
We also defend the principle of proportionality: a basic principle that should be obvious to all but got lost in the process of the escalation of the war on drugs: everyone involved in the illicit drugs market, farmers, traders and users alike, are fully protected by human rights.
Any drug control measure that violates their basic human rights is illegitimate and TNI will always reject measures that violate the right to live a life in dignity.
Following the Second World War the international community came together in a spirit of peace and positivism. To prevent future wars and to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”, fifty States signed the Charter of the United Nations on 26 June 1945 in San Francisco.
The Charter is built around three pillars: human rights, peace and security and development. Three years later, in 1948, the Universal Declaration on Human Rights was adopted and proclaimed “as a common standard of achievement for all peoples and all nations”. The Charter’s obligations prevail over the obligations arising from other international conventions (article 103). In article 55 and 56 the United Nations and its member States pledge to promote social development and “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Membership of the UN requires ratification of the Charter.
The 1948 adoption of the Universal Declaration of Human Rights stands as a milestone in the international human rights system. Its terms were made legally binding in two covenants adopted in 1966 – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The three documents are known as the international bill of human rights.
Nine human rights treaties now form the core of the human rights instruments, and include the above two covenants alongside treaties specific to torture, racial discrimination, children’s rights, discrimination against women, migrant workers, persons with disabilities and enforced disappearances. Every UN member state has ratified at least one of these treaties, most have ratified more.
Each human rights treaty has an independent committee, or ‘treaty body’, tasked with monitoring its implementation through periodic reviews of state progress, individual or collective complaints mechanisms, and in some cases inquiry processes.
Further human rights monitoring mechanisms have been developed under the UN Charter. These include the Universal Periodic Review process at the UN Human Rights Council which involves UN member states reviewing each other’s progress on shared obligations with civil society input. The ‘Special Procedures’ of the Council are independent experts from working groups on specific themes or countries. For example, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Rights of Indigenous People, and the UN Special Rapporteur on the Right to Health.
Human rights law is binding based on the treaties adopted by each state. In addition, aspects are binding in customary law. This means that for some human rights no ratification of a treaty is required for them to be binding. Examples are freedom from slavery and freedom from torture. Since the adoption of the Charter, human rights have become a universal and binding normative framework for UN member states.
The UN drug control regime is based on three treaties: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic. The three major international drug control treaties are mutually supportive and complementary. An important purpose of the 1961 and 1971 Conventions is to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes.
At the same time they aim to prevent diversion into illicit channels and include general provisions on trafficking and drug use. The 1961 Convention specifically focuses on plant-based drugs such as opium, heroin, coca, cocaine and cannabis, scheduling them on different lists based on harmfulness, but as a result of political pressure both cannabis and coca have – wrongly – been scheduled as particularly harmful drugs, comparable to heroin.
The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances significantly reinforced the obligation of countries to apply criminal sanctions to combat all aspects of illicit production, possession and trafficking of drugs. All three start with preambles expressing concern for the health and welfare of mankind.
Human rights appear explicitly only once in the three treaties – article 14(2) of the 1988 Convention (see further below). However, these treaties must be read and interpreted in line with concurrent human rights obligations. Though protecting health and welfare can be considered the core principles of the drugs conventions, judgemental values on drugs and those who produce, trade and consume them, along with punitive and war-like responses have ultimately defined too much of the outcome.
In practice the drug control system has resulted in human rights abuses across the globe. Over the past decades, repression has been implemented as the main strategy to address drugs-related problems. Both nationally and internationally, most of the resources have been spent on combating the illicit market. As with responses to other perceived ‘threats’, such as terrorism, this has resulted in the erosion of civil liberties and innumerable human rights abuses worldwide. States have carried out military operations against small farmers of illegal plants, practiced chemical spraying of illegal drug crops, or forced people off their land.
Some countries practice the death penalty for those who break the law relating to drugs. In the 2012 overview report on the death penalty for drug offences Harm Reduction International (HRI) has identified 33 states and territories as retaining capital punishment for drug offences in law. Fewer use it – and fewer still carry out executions - but among them many hundreds are put to death. Indeed, the number of states prescribing the death penalty for drug offences increased after the adoption of the 1988 drug trafficking conventions.
It is estimated that over 10 million people are currently incarcerated worldwide; a large number of these people having been convicted of drug-related crimes. In the US, the country with the highest incarceration rate in the world, 25% (over 500,000 people) are in jail for drug offences. In the US the racial disparity of prison admissions is obvious: in 2003 a black man was 11.8 times more likely than a white man to enter prison for drug offenses; and a black woman was 4.8 times more likely than a white woman to enter prison for drug offenses. In England and Wales, ethnic disparities in the policing and prosecution of drug offences have also been reported.
In Latin America the percentage of people in prison for drug offenses is even higher, as the TNI/WOLA report on drug laws and prisons in Latin America shows, consumers and low-level offenders fill the overcrowded prisons with devastating results.
In Europe and Central Asia one in four women in prison are there for non-violent drug offences.
In Southeast Asia and China hundreds of thousands of people are detained for months and sometimes years, in compulsory drug detention centres to be “treated” for their drug use. In many of these centres no medical care is available. Forced labour, physical and sexual violence are part of the “treatment” offered. The detainees do not have access to due process or judicial review.
Please read further below for an extensive overview of human rights violations in the name of drug control.
Many national laws still impose disproportionately long prison terms for minor drug offences, and 33 countries still use the death penalty for drug-related offences. This leads to a criminal justice system where minor drug offenders sometimes receive tougher penalties than rapists, kidnappers or murderers. Long prison sentences for drug offenders causes prison overcrowding in many countries, incapacitates the criminal justice system, and puts prisoners at higher risk of being infected by HIV, hepatitis C, tuberculosis, etc.
In the context of drug laws and sentencing, the drug-control conventions generally require parties to establish a wide range of drug-related activities as criminal offences under their domestic law. Nonetheless, they permit parties to respond to them proportionally, including through alternatives to conviction or punishment for offences of a minor nature.
Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice.
The prohibition of illegal drugs places the markets of this lucrative trade in the hands of criminal organizations, and creates enormous illegal funds which stimulate armed conflicts throughout the world. For years the UN apparatus paid little attention to the controversy created by the international drug control system: the negative consequences of the international attempt to control the use and production of substances are often more harmful than the drugs themselves.
The health and social side of the drug problem has received little attention. In 1987 the International Conference on Drug Abuse and Illicit Trafficking called for a ‘balanced approach’: giving the reduction of demand for illicit drugs the same importance as the reduction of supply and trafficking, but nevertheless the imbalance remained.
At the UNGASS on drugs in 1998 the international community decided on the Guiding Principles of Drug Demand Reduction. And with these principles the attention shifted slightly towards treatment and harm reduction, partly under the pressure of the HIV/Aids epidemic amongst drug users.
It was 2008 before the UN Commission on Narcotic Drugs (created in 1946) adopted a human rights resolution. Prior to this human rights-based language was frequently resisted and outright vetoed. The resolution called for the UN drug control system to work more closely with the UN human rights system. It could only be agreed after the death penalty, the newly-adopted declaration on indigenous people’s rights, and any mention of specific UN human rights mechanisms were stripped from the text. Nonetheless, since this resolution, human rights safeguards have appeared more often in CND resolutions.
Every year the UN General Assembly adopts a resolution on countering the ‘world drug problem’. For many years it has begun with a paragraph reaffirming the need to undertake this task in full conformity with the UN Charter and with full respect for human rights. The 2009 political declaration on drugs, agreed at the CND, reflects this requirement. Unfortunately, the body of the declaration failed to take into account this important starting point.
In 2008 the executive director of UNODC published a report called “Making drug control fit for purpose: Building on the UNGASS decade” as a contribution to the discussions around the new political declaration, strategy and action plans to be adopted at the 2009 High Level session of the CND. In this document the director acknowledged the unintended consequences of the international drug control system, including policy displacement (a focus on law enforcement and less attention to public health) and the marginalization of drug users.
The report reminds readers that “the Charter of the United Nations takes priority over all other instruments”, advocating a triple commitment over the following decade: “...reaffirming the basic principles (multilateralism and the protection of public health); improving the performance of the control system (by achieving the UNGASS objectives and doing enforcement, prevention, treatment and harm reduction simultaneously); and mitigating the unintended consequences.”
The human rights resolution adopted in 2008 provided a clear mandate for the UN Office on Drugs and Crime to properly consider and assess its human rights responsibilities. In 2010 a report on UNODC’s work and human rights was produced for the CND, and in 2012 UNODC published a guidance note for staff on the human rights implications of its work.
UNODC published a guidance note for staff on the human rights implications of its work. In this note UNODC acknowledges “there is a small, but ever present, risk that UNODC activities could have a negative impact on human rights”. It suggests strategies for addressing that risk.
To date, little concrete action has been taken to implement those strategies. This requires urgent attention as it is now documented that UNODC programmes have helped to capture suspected drug traffickers who have later been extradited to death-penalty states, and in some cases executed. For this reason, Denmark was the most recent donor government to withdraw from the drug-control component of UNODC’s Iran programme.
The Thai war on drugs
In 2003, the populist Prime Minister Thaksin started an aggressive ’war on drugs’ with the aim of eradicating drug use, trade and production within three months. The campaign resulted in the arbitrary inclusion of drug suspects on poorly-prepared government ’blacklists’ or ’watchlists’, the intimidation of human rights defenders, violence, arbitrary arrest and other breaches by Thai police, coerced or mandatory drug treatment, and scores of extra-judicial killings. The government blamed these killings largely on gangs involved in the drug trade, but human right organisations blamed them "on the endorsement of a policy of extreme violence by government officials at the highest level."
After Thaksin was overthrown by a coup in September 2006, an independent special committee, formed by the temporary military government, investigated the unlawful deaths and found that 2,819 people had been killed between February and April 2003. Many of the dead had been blacklisted by police or local authorities as suspected drug dealers. Of those deaths, 1,370 were related to drug dealing, while 878 of them were not. Another 571 people were killed without apparent reason. Police officers were suspected to have been involved in many of the attacks, particularly as many people died soon after being taken to police stations for questioning. Despite many promises to bring those responsible for the murders to justice, to date not a single high-ranking military or police official involved in the atrocities has been charged. Some lower ranking officials have been found guilty and three police were sentenced to death in July 2012 for killing a teenager during the crackdown on drugs.
Although opinion polls throughout the drug war showed support for the government’s violent tactics, the outcome did not curb Thailand’s illegal drug trade, use or production, but simply made it more dangerous. Most drug users continued to use heroin or methamphetamine, albeit at a higher cost and less frequently. Treatment experts also noted that many people who started drug treatment in early 2003 were not drug users at all, but were people who feared for their lives because they were suspected of using drugs.
In past years several Charter-based and treaty based human rights mechanisms have expressed concerns about human rights violations in the name of drug control. In 2010 the UN Special Rapporteur on the Right to Health declared that he was “concerned that the current drug control approach creates more harm than the harms it seeks to prevent. Criminalisation of drug use, designed to deter drug use, possession and trafficking, has failed. Instead, it has perpetuated risky forms of drug use, while disproportionately punishing people who use drugs.”
A year earlier the UN Special Rapporteur on Torture, Manfred Nowak, had called on the UN Human Rights Council to focus on drug control as a thematic issue akin to counter-terrorism. In his final report, Nowak cited drug enforcement as one of the justifications frequently given by governments for serious human right violations.
The UN High Commissioner for Human Rights reminded the UN member states that “individuals who use drugs do not forfeit their human rights”, while the UN Committee on Economic Social and Cultural Rights and the UN Committee on the Rights of the Child have recognised harm-reduction as a component of the right to health.
In March 2012 a joint statement of several United Nations entities  called on States to close compulsory drug detention and rehabilitation centres and implement voluntary, evidence-informed and rights-based health and social services in the community in compliance with human rights.
The INCB is the quasi-judicial body established in accordance with the 1961 Convention on Narcotic Drugs to monitor the implementation of the UN drug control conventions. It is the same independent committee model adopted for the human rights treaties – though specific functions differ by nature of the treaties. The INCB can make recommendations to ensure adequate availability of narcotic drugs and psychotropic substances for medical and scientific purposes, as well as call for measures to suppress the illicit market.
Each year the INCB publishes a report on the implementation of the UN drug control system, based on data collected during INCB missions and information provided by the Member States. To date, the annual INCB report has not voiced any concern about human-rights abuses as a result of drug control.
In fact, contrary to many other UN agencies, the INCB seems to be supporting “compulsory centres” as treatment facilities, taking an anti-harm reduction stance and not opposing the death penalty for drug offences. When asked directly, the president of the INCB refused even to condemn torture .
The fact that the INCB has remained non-committal on capital punishment was highlighted in the press in March 2012 and raised some questions among member states, but even this turmoil did not lead to an open rejection of the death penalty for drug offences . The foreword by the President of the Board in the 2012 report is exemplary: not a word about human rights or the lack of availability of essential medicines, the text is one long plea for enhanced control. This is contradictory, as in 2007 the INCB had stated  that lack of respect for human rights undermines implementation of the drug treaties. It would seem therefore that a focus on human rights is a practical necessity for the INCB to fulfill its mandate.
Over the years the INCB has developed a track record of critiquing new alternative policy approaches aimed at reducing the damage of the drug market, while simply noting measures that lead to human rights abuses without any critique. TNI and several other NGOs have drawn attention to this position, and are recommending that the INCB starts carrying out its task in alignment with other UN bodies, with respect for human rights.
To date, there remains a lack of legal expertise on the INCB. When legal advice has been sought (on harm reduction under the drug treaties) it has been ignored if it did not align with pre-existing positions.
Spraying Coca in Colombia
The coordinated, forced eradication of illicit crops worldwide intensified since 1998. In Colombia the supply-reduction strategy comprised of manual eradication, aerial spraying and alternative development. Colombia began an intensive campaign of massive aerial spraying in December 2000, as part of the US- supported Plan Colombia. Over the past two decades, more than 2.2 million hectares of land have been sprayed with herbicides according to the Colombian National Police Anti-narcotics Directorate. The aerial spraying with herbicides (glyphosate) of drug crops have produced very harmful and destructive results. The poison has damaged the health of the local people; it has polluted the drinking water and does not only eradicate the coca crop but also other legitimate subsistence crops.
These human rights violations eroded the legitimacy of the state, peasant support for the guerrilla increased, and the War on Drugs became intertwined with counterinsurgency objectives.
The aerial-spraying cycle added to the already substantial displacement in the country, forcing indigenous groups to migrate deeper into the rainforest and accelerating the pace of deforestation where slash-and-burn plots are planted with illicit coca or poppy crops replacing those previously sprayed.
According to a recent UNODC estimate5 the area under coca bush cultivation in Colombia has diminished by 62% over the last decade (2000-2010). This decline is attributed to a combination of alternative development and law enforcement measures. Meanwhile the coca production in Bolivia and Peru increased considerably, and the global supply of cocaine remained stable.
In 2001 TNI published a book on the devastating impact of aerial spraying: Vicious Circle (see: http://www.tni.org/tnibook/vicious-circle). More recently in 2009 Witness for Peace published the report An Exercise in Futility: Nine Years of Fumigation in Colombia (see link: http://witnessforpeace.org/downloads/An_Exercise_in_Futility.pdf)
The UN Committee on the Rights of the Child, the UN Committee on Economic Social and Cultural Rights, the UN Special Rapporteur on the Right to Health and the UN Special Rapporteur on Indigenous Peoples Rights have all criticised the practice.
The right to life
Article 3 of the Universal Declaration on Human rights and Article 6 of the International Covenant on Civil and Political Rights
The right to health
Constitution of the World Health Organisation, Article 12 of the International Covenant on Economic, Social and Cultural Rights, article 24 of the Convention on the Rights of the Child (and other sources)
Some centres are even reported to use experimental treatment without the consent of the patients (also see the right to the inherent dignity of the human person, article 10 of the International Covenant on Civil and Political Rights).
Freedom from cruel, inhuman or degrading treatment or punishment (ICCPR, CAT, CRC)
Freedom from forced labour
Article 8 of the International Covenant on Civil and Political Rights
The right to due process and a fair trial
Article 9 of the International Covenant on Civil and Political Rights
The right to be free from discrimination
1960 International Convention on the Elimination of All Forms of Racial Discrimination, 1979 Convention for the Elimination of All Forms of Discrimination Against Women 1966 International Convention of Civil and Political Rights
The right to an adequate standard of living, and to progressive realization of economic social and cultural rights
1966 International Covenant on Economic, Social and Cultural Rights
The economic, social and cultural rights of indigenous people
Article 14(2) of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1989 Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries and 2007 Universal Declaration on the Rights of Indigenous Peoples (Articles 11, 12, 24, 26, 27), International Covenant on Civil and Political Rights, Article 5, Convention on the Elimination of Racial Discrimination (and other sources)
The rights of the child
Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
The main aim of the UN drug conventions “to protect the health and welfare of mankind” is in no way contrary to the international human rights, but at the same time many human rights breaches happen in the name of drug law enforcement. Over the years policy innovation has shown that an effective, evidence-based approach can contribute to the protection of human rights while at the same time addressing the drug-related harm. What is needed is a shift in targets: it does not help to aim for high arrest and seizure rates; we know these do not have any impact on the drugs market. The illegal market will always be one step ahead of enforcement. Instead, we should aim to reduce the harm of drug use to the individual user and the community; setting targets for an increase in the accessibility of services; the lowering of the overdose rate and the infection rates of blood-borne diseases; and the reduction of drug-related violence.
The UN Drugs conventions must be interpreted in line with international human rights law. This will both limit any excesses justified under these treaties and increase legal support for positive elements within them, such as access to essential controlled medicines, and the freedom within the conventions to expand harm-reduction.
The UN conventions do not criminalize drug use or even possession for personal use and allow national governments to provide alternatives. The INCB and UNODC should advocate in favor of these alternatives. Indeed, given the ineffectiveness of criminalization on patterns of use and drug-related harm, it is difficult to see how criminalizing personal use or possession can be deemed a proportionate infringement of the right to privacy, or the manifestation of religions or cultures.
That said, there are areas within the drugs conventions that cannot be reconciled with human rights law, in particular the prohibition of certain traditional, cultural and indigenous practices. These conflicts must be addressed by the states party to the conventions.
All UN institutions are mandated to promote human rights by virtue of their establishment under the UN Charter.
The UNODC is providing “technical assistance” in drug control, such as legal advice, field missions and training of magistrates. Only recently, the UNODC has published a guidance note outlining how it intends to promote and protect human rights. 
In its 2011 World drug report UNODC policy calls for progress in three key areas:
Now time has come for both Member States and the UNODC to put their money where their mouth is and allocate more resources towards demand- and harm-reduction programmes. Harm Reduction International has researched to what extent the donor funds channelled through UNODC intended to reduce crime and human suffering are in fact contributing to human rights violations. They come to the conclusion that funding from the United States, Australia, France, Germany, Sweden, the United Kingdom and the European Union to the UNODC is directed to countries where human right abuses including executions, arbitrary detention, physical abuse, and forced labour are weapons in the war on drugs, despite policy statements against these abuses from both donors and the UN (see link: Partners in Crime: International Funding for Drug Control and Gross Violations of Human Rights). The international community needs to carefully allocate its funding to support human rights in drug control.
First, human rights challenges with respect to the national drug control strategy should be identified. Once this has been done the national strategy should be amended to ensure the protection of the human rights of the users, producers and traffickers of drugs as well as their (social) environment. The media have an important role to play with regards to raising awareness of the human rights situation and influencing public opinion.
An integrated, balanced approach based on the principle of harm reduction will help to include human rights in drug policy. In some regions it will require political courage to choose this approach. It is also very important that the law enforcement and justice system is in support of the new approach, to make sure penalties are proportionate and police officers are not hampering treatment and harm-reduction services.
Donor countries have to make sure their funding is not supporting maintenance and staff training at drug detention centres where people are subject to physical violence, torture or treatment for which there is no scientific evidence. Donor states should always have due diligence to ensure their aid is not facilitating human rights abuses. UNODC is developing its own human rights planning tool to mitigate the risks of assistance to human rights violations.
The Drugs and Democracy Programme in TNI has been researching drugs, the drugs market and the impact of drug policies especially in Latin America and Southeast Asia. With the results of our work we aim to improve drug control policies nationally and internationally. We draw attention to human rights abuses in the name of drug control and offer alternative policy recommendations. We publish a series of drug policy and legislative reform briefings which can be accessed through this website. We are involved in formal discussions (national and international) on drug policy, and attend the annual meeting of the UN Commission on Narcotic Drugs in Vienna as an NGO observer. We assist governments in the drafting process around resolutions calling for the protection and promotion of human rights. In Latin America, Europe and Southeast Asia TNI facilitates Informal Drug Policy Dialogues between government officials and drug policy experts to work towards effective, evidence-based drug policy with human rights as a core element.
With special thanks to Damon Barrett, Director of the International Centre on Human Rights and Drug Policy and Deputy Director of Harm Reduction International, for his valuable advice.
 International Labour Organisation; Office of the High Commissioner for Human Rights; United Nations Development Programme; United Nations Educational, Scientific and Cultural Organisation; United Nations Population Fund; United Nations High Commissioner for Refugees; United Nations Children’s Fund; United Nations Office on Drugs and Crime; United Nations Entity for Gender Equality and the Empowerment of Women; World Food Programme; World Health Organisation; and Joint United Nations Programme on HIV/AIDS.
proportionality chapter which does not address capital punishment
 Over the years the INCB has developed a track record of critiquing new alternative policy approaches aimed at reducing the damage of the drug market, while simply noting measures that lead to human rights abuses without any critique. TNI and several other NGOs have drawn attention to this position, and are recommending that the INCB starts carrying out its task in alignment with other UN bodies, with respect for human rights. To date, there remains a lack of legal expertise on the INCB. When legal advice has been sought (on harm reduction under the drug treaties) it has been ignored if it did not align with pre-existing positions