Human Rights and Drug Control

The False Dichotomy

Saul Takahashi

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN:
  9781509926435
• Edition: 1
• eBook ISBN:
  9781509901135
• Topic: Law
• Subtopic: International Law
• Index: Law

It has become almost accepted knowledge within international policy circles that efforts against drug trafficking and drug abuse violate human rights, and that the entire international drug control regime needs to be changed (or even discarded altogether) to adopt a more 'rights respecting' approach. Though this view has been promoted by many prominent figures and organisations, the author of this book uses his expertise in both human rights and drug control to show that the arguments advanced in this area do not stand close scrutiny. The arguments are in fact based on selective and questionable interpretations of international human rights standards, and on a general notion – more and more clearly stated – that there is a human right to take drugs, and that any effort to combat drug abuse by definition violates this right. There is no such right in international law, and the author objects to the misuse of human rights language as a marketing tool to bring about a 'back door' legalisation of drugs. Human rights issues must be addressed, but that in no way means that the international drug control regime must be discarded, or that efforts against drugs must be stopped.

1

Introduction

UNTIL 20 YEARS or so ago, human rights was not part of the debate on drug control. Drug control was viewed as a completely separate issue from human rights; the two were rarely, if ever, discussed as connected or in any way related. Outside of circles of the drug legalisation movement in some countries, the notion that drug control violated human rights would have been viewed as extremely odd, if not downright laughable.

That is not to say that there was no debate regarding drug control issues: there was, and it has always tended to be polarised and acrimonious. The emotive nature of the debate is hardly unique to drug control, but it is arguably somewhat surprising, given that, in theory at least, the two sides would appear to share many common assumptions. Both sides agree that what are now classified as illicit drugs have the potential of causing serious health risks—an obvious fact, but something which bears repeating. This common assumption leads to the clear conclusion that persons should be discouraged from consuming these substances, a conclusion which, again, most (though not all) people on both sides would agree. Finally, both sides also generally agree that it is a desirable goal to exclude criminal elements, which have so far profited from huge wealth and power through the illicit drug trade.

There is (or at least should be), therefore, much agreement at the point of departure. It is how to tackle those questions where the disagreements start, and the acrimony begins. There is of course a wide spectrum of views on this topic, but at the core the debate is between those who believe that criminal justice has a large role to play in deterring people from abusing illicit drugs on the one hand, and, on the other hand, those who believe that the approach based on criminal justice has been a failure, and that removing drugs from the criminal justice system is the best way forward. The former camp is rife with scare stories of ‘gateway’ drugs and immediate and irrevocable addiction that have no basis in reality, and which often result in discrediting the movement itself. The opposing side, for its part, presents an overly rosy picture of the potential benefits of legalisation, and often bandies around the term ‘evidence based’ to describe the policies it proposes. In fact, the ‘evidence’ it cites is often scant, arbitrarily selected, and often not applicable to broader contexts.

The reality, it is submitted, is that the position of many people on this issue is based largely on ideology. That is not in and of itself something to be criticised—the word ‘ideology’ has a bad reputation, but using one’s ethical and political principles as a compass to guide one’s actions and beliefs is not necessarily undesirable. It is when ideology blinds people to the reality on the ground that it can become part of the problem, and this has often been the case with drug control.

It was against the backdrop of this highly polarised landscape that the language of human rights appeared, around the early 2000s, and this has changed the situation dramatically. The idea that efforts to combat illicit drugs violate human rights has gained increased momentum in mainstream policy fora, both at the international level and in several countries. This idea is propagated by some influential human rights non-governmental organisations (NGOs) and prominent academics in the field of human rights, and has appeared in the positions adopted by international agencies, some of which have made comments suggesting they also believe that drug control as such violates human rights. Important figures such as former high-ranking officials of the United Nations (UN) and even former heads of state have also joined in. At first glance, it would appear that these ideas are passing into the mainstream of international policy, and that a momentous sea change in the international approach towards illicit drugs is imminent.

The international drug control regime, consisting of the three international drug control conventions and international institutions created to promote these conventions, remains alive and well, and, though many of the actors cited in this study may hope otherwise, the prospects for immediate dismantling of this regime seem slim. Nevertheless, the injection of human rights into the debate has arguably brought about a convergence around the view that human rights obligations dictate a radical change in, if not even a complete termination of, drug control. In this way, the advent of human rights in this policy debate has brought about a significant change in perspective, and the way that drug control issues are being viewed. As an (American) Professor at Oxford once said to this author, human rights is like motherhood—it is difficult to argue outright against it. Human rights has proved an extremely effective tool, therefore, for those people who argue against drug control, and for the legalisation of drugs.

The starting point for the human rights arguments is generally the same: that the ‘war on drugs’ has been not only a miserable failure, but has resulted in a litany of human rights abuses throughout the globe. The human rights of persons abusing drugs are subject to widespread violations through overzealous enforcement, arbitrary imprisonment, use of the death penalty, and other abuses. Indeed, persons unrelated to drug abuse have also been victims—the militarisation of drug law enforcement in many countries has resulted in the excessive use of force by officials across the board, as well as violations of human rights through arbitrary monitoring and other excesses. The point is clear: the ‘war on drugs’ is synonymous with human rights violations.

The international drug control regime is said to be at the heart of these abuses. The three international drug control conventions are ‘punitive’ and ‘oppressive’, so the argument goes, and demand that governments adopt an uncompromising and unforgiving stance towards drugs and the ‘immoral’ persons who dare to use them. The international institutions responsible for monitoring application by states of these conventions are equally tyrannical, and condemn states that do not tow the line. In essence, the regime promotes, requires, and self-propagates the ‘war on drugs’, and the violations that stem from it. The human rights abuses noted above, therefore, are not unintended or accidental consequences, but a necessary result of the current international drug control regime.

Therefore, so the argument goes, there is no way the current international drug control regime can be reconciled with human rights. The only way that states can live up to their human rights obligations is to revise the drug control regime fundamentally, or discard it altogether. The expression ‘human rights approach to drug control’, often used by persons making these arguments, is in fact misleading—since to the persons using the term, human rights in fact requires doing away with drug control altogether.

One body that has had a large impact has been the Global Commission on Drug Policy (GCDP), a group of prominent individuals including Kofi Annan (former UN Secretary General), Louise Arbour (former UN High Commissioner for Human Rights), George Schultz (former US Secretary of State), four former heads of state of Latin American countries, and others. Human rights features prominently in the arguments of the GCDP that the international drug control regime must be overhauled. They argue:

Drug policies must be based on human rights and public health principles. We should end the stigmatization and marginalization of people who use certain drugs and those involved in the lower levels of cultivation, production and distribution … Of particular relevance to drug policy are the rights to life, to health, to due process and a fair trial, to be free from torture or cruel, inhuman or degrading treatment, from slavery, and from discrimination.¹

In another, paper, the GCDP asserts that:

A new and improved global drug control regime is needed that better protects the health and safety of individuals and communities around the world. Harsh measures grounded in repressive ideologies must be replaced by more humane and effective policies shaped by scientific evidence, public health principles and human rights standards … [G]lobal drug policy continues to treat all drug use as if it constitutes a grave threat to society. Drug policy remains narrowly framed in terms of ‘combating’ the ‘evil’ of drug addiction. It is from this initial, flawed, generalization of all drug use as an ‘evil’ to be tackled with repressive criminal justice-based measures, that so many irrational and ineffective policy responses have flowed, and so many dysfunctional institutions emerged. … Punitive approaches to drug policy are severely undermining human rights in every region of the world. They lead to the erosion of civil liberties and fair trial standards, the stigmatization of individuals and groups—particularly women, young people, and ethnic minorities—and the imposition of abusive and inhumane punishments.²

Though they stop short of arguing for an immediate termination of the prohibition of illicit drugs, GCDP advocates for eventual legalisation, stating that governments should:

Allow and encourage diverse experiments in legally regulating markets in currently illicit drugs, beginning with but not limited to cannabis, coca leaf and certain novel psychoactive substances. Much can be learned from successes and failures in regulating alcohol, tobacco, pharmaceutical drugs and other products and activities that pose health and other risks to individuals and societies … Ultimately the most effective way to reduce the extensive harms of the global drug prohibition regime and advance the goals of public health and safety is to get drugs under control through responsible legal regulation.³

Numerous NGOs also now use human rights language to frame arguments against drug control. There have of course always been NGOs advocating for the welfare of persons abusing drugs, but what has changed is the use by these organisations of the human rights framework in their advocacy, and the expansion of this advocacy to the international arena such as the UN, in particular the human rights bodies of that organisation. Prominent international human rights NGOs are included in this movement, in particular Human Rights Watch (HRW), which has conducted sustained research on issues related to human rights and the treatment of persons abusing drugs. Second only to Amnesty International in its international reach and influence, the work of HRW has been pivotal in promoting the relation between human rights and drug control.

Various UN human rights bodies have also expressed sentiments similar to that of the above NGOs, in particular, as shall be examined, UN Special Rapporteurs on the Right to Health and on Torture, and to a lesser extent, the High Commissioner for Human Rights have all, in some form or another, taken positions focusing on the rights of persons who abuse drugs, expressing concern about how efforts for drug control have negatively affected these rights. This is neither a coincidence, nor is it an unusual phenomenon—it is a well established pattern in human rights that NGOs lobby UN bodies to take up their concerns, since it is perceived (rightly or wrongly) that the voice of the UN is more weighty than that of a non-governmental entity. Naturally, such lobbying requires a certain level of expertise, and once again the fact that the aforementioned organisations have been able to retain such expertise—and the funding for it—has been key in pushing this forward.

Attention given to this issue within academic circles has also increased. The International Centre on Human Rights and Drug Policy (ICHRDP), which publishes a number of regular journals and runs seminars and courses, was created in 2009. The centre was first housed by the National University of Ireland Galway but later moved to the University of Essex (this author’s alma matter) where it is now located. Both Galway and Essex are traditionally two of the top universities in Europe, indeed in the world, for research into human rights issues, and the housing of this centre by such prestigious institutions lends it respectability. Besides this centre, there is also the International Centre for Science in Drug Policy (ICSDP), located in St Michael’s Hospital in Toronto, and an ongoing research project focusing on these issues at the London School of Economics.

However, the academic rigour of these research centres and projects is open to question. A cursory examination of their publications would suggest that they exist less as fora for a free exchange of ideas, but rather to promote the view that drug control cannot be reconciled with human rights obligations. Mainly they serve as platforms for likeminded persons to publish their views as to why the drug control regime violates human rights. Indeed, the mission statement of the ICHRDP states clearly that it exists to ‘[h]ighlight the obligations of all governments and international organisations to respect, protect and fulfill human rights in the context of drug policy; [and to p]romote a human rights-based approach to drug policy’.⁴ ICSDP conducts ‘campaigns’ on particular policy issues, and the LSE project starts with the foregone conclusion that the international drug control regime is flawed, its stated objective being ‘a deep strategic re-evaluation of the international drug control system’.⁵

Of course, this would hardly be the first case of purported academic institutions having an ideological slant—indeed, there is at least one journal focusing on drug policy that has been accused of highlighting only the opposing views.⁶ The point is that the mere conferring of an academic sounding title does not necessarily indicate objectivity or quality.

The same can be said of the NGOs involved in this network—there is an underlying premise to their work in this area that means their work inevitably results in the same conclusion, namely that international drug control violates human rights. For example, most NGOs argue that persons who abuse drugs are particularly ‘vulnerable to abuse’ at the hands of law enforcement officials. Though there is some justification for this claim, in most cases, practically all persons who come into contact with law enforcement in the countries they highlight are subject to similar violations. And yet, the NGOs put the spotlight only on persons who abuse drugs, as if they are the only ones who suffer. NGO condemnation of the death penalty for drug-related offenders is another good example. Though much is made of this issue by these NGOs, they are silent on the widespread executions of persons found guilty of other offences. The rights of persons who abuse drugs are, therefore, highlighted as if they were a ‘particularly vulnerable group’—a recurring theme throughout the arguments of these NGOs—when in fact that is not the case. NGO arguments that there is a ‘human right to harm reduction’ are equally spurious, and essentially have been created to promote the agenda of harm reduction and decriminalisation. These issues shall be examined more closely in this study.

The above is, of course, not to say that violations do not take place, nor that they are not worthy of condemnation by NGOs and the international community. The point is that the objectivity of these arguments is questionable. The research presented generally has a foregone conclusion, namely that the international drug control regime should be discarded. This conclusion frames and dictates the research, which in turn is conducted and presented in a manner that suits it.

The above organisations and individuals are many, but they share common goals, and are loosely connected in practice. Many of them are frequent contributors to each other’s publications, individuals move between positions in different organisations within the network, and research reports cite heavily from one another. The result is a constant circle of self-reference, with each component producing material that cites material produced by other components, increasing the critical mass of research, reports, and statements.

There is nothing necessarily untoward about this—it is natural for likeminded individuals and organisations to co-operate. Nevertheless, it is worth noting that while the bulk of the material produced by this movement may at first glance seem impressive, much of it does little more than regurgitate what has been said previously by others in the network (or by the same person in a different capacity). That does not necessarily mean that the...

Table of contents

• Cover
• Title Page
• 1. Introduction
• 2. Legal Standards and Regimes
• 3. UNGASS and Developments in Latin America
• 4. Drug Control: Violating Human Rights?
• 5. Mandated Treatment and Drug Courts
• 6. The ‘Right to Abuse Drugs’
• Afterword: Views of the Author
• Index
• Copyright Page