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Obligations Arising from the Human Rights of Particular Groups

Children have the right to protection from drugs and exploitation in the drug trade. They have the right to be heard in matters concerning them with due regard for their age and maturity, and their best interests shall be a primary consideration in drug laws, policies, and practices.

In accordance with these rights, States shall:

i. 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 relevant international treaties and to prevent the use of children in the illicit production and trafficking of such substances. ‘Appropriate measures’ are evidence based and compliant with wider human rights norms.

To facilitate the above, States should:

ii. Obtain and disseminate age-disaggregated data on drug use and related harms and on the nature of children’s involvement in the illicit drug trade.

Almost all States have ratified or acceded to the Convention on the Rights of the Child, which has 196 States Parties. It provides that children – defined as anyone under the age of 18 unless under the applicable national law the age of majority is achieved earlier[608] – shall be protected from the illicit use of narcotic drugs and psychotropic substances and from being exploited or ‘used’ in the illicit drug trade.[609] It is one of the only instruments in international human rights law to refer explicitly to drugs. The drug trade is also a subject of the International Labour Organization Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.[610]

The Convention on the Rights of the Child’s provision on protection from drugs is broadly framed, engaging a wide range of children’s rights, including the right to health.[611] Protection from drugs must therefore be understood in the light of the Convention as a whole, in conformity with its generally ‘holistic’ approach. The provision requires that ‘appropriate measures’ be undertaken. While this phrase is lacking in sufficient detail, it is a general obligation of due diligence. Moreover, the Commission on Narcotic Drugs has stated that measures to protect children must be evidence based and compliant with children’s rights.[612] This general test reflects approaches to other rights in the Convention.[613]

Children have the right to have their best interests taken into account in all matters that affect them.[614] They have the right to be heard in such matters, with ‘the views of the child being given due weight in accordance with the age and maturity of the child’.[615] These are considered two of the four ‘general principles’ of the Convention that underpin the interpretation of all other articles, including in relation to child health.[616]

The Committee on the Rights of the Child has consistently made recommendations on drug-related issues to individual States and has addressed drug-related issues across its general comments, from adolescent health to children in street situations to children’s right to health.[617]

States should collect and disseminate age-disaggregated data on drug use and involvement in the drug trade. This requirement flows from children’s right to health,[618] the right to protection from drugs,[619] and protection from discrimination.[620] This has been a consistent recommendation of the Committee on the Rights of the Child.[621] Age disaggregation for those under 18 – or legal minors by national standards – is required to capture the age group for whom child rights law and child protection standards apply. Nonetheless, data on drug use and related harms among children are generally poor in all but the highest-income countries.

Further guidance on implementing the Convention is available in the Committee on the Rights of the Child’s general comment on the ‘general measures of implementation’.[622]

Relationship to the UN drug control conventions

The Convention on the Rights of the Child refers to the protection of children from the illicit use of narcotic drugs and psychotropic substances ‘as defined in the relevant international treaties’.[623] At the time of the Convention’s drafting, the treaties in force were the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. The reference to these treaties was intended to indicate those substances from which children should be protected under this provision, not the kinds of interventions that the Convention required.[624] Similar wording appears in the International Labour Organization Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour[625] and the African Charter on the Rights and Welfare of the Child.[626]

  • 608. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 1.

  • 609. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 33.

  • 610. ^

    International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999), art. 3(c).

  • 611. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), arts. 24, 33.

  • 612. ^

    Commission on Narcotic Drugs, Resolution 58/2: Supporting the Availability, Accessibility and Diversity of Scientific Evidence-Based Treatment and Care for Children and Young People with Substance Use Disorders (2015); Commission on Narcotic Drugs, Resolution 60/7: Promoting Scientific Evidence-Based Community, Family and School Programmes and Strategies for the Purpose of Preventing Drug Use among Children and Adolescents (2017).

  • 613. ^

    See J. Tobin (ed.), A Commentary on the Convention on the Rights of the Child (Oxford: Oxford University Press, 2019).

  • 614. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.

  • 615. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.

  • 616. ^

    Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/5 (2003); Committee on the Rights of the Child, General Comment No. 12: The Right of the Child to Be Heard, UN Doc. CRC/C/GC/12 (2009), paras. 101, 102; Committee on the Rights of the Child, General Comment No. 14: The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration, UN Doc. CRC/C/GC/14 (2013), paras. 77, 78.

  • 617. ^

    See Committee on the Rights of the Child, General Comment No. 25: Children’s Rights in relation to the Digital Environment, UN Doc. CRC/C/GC/25 (2021), paras. 97, 114; Committee on the Rights of the Child, General Comment No. 21: Children in Street Situations, UN Doc. CRC/C/GC/21 (2017), para. 53; Committee on the Rights of the Child, General Comment No. 15: The Right of the Child to the Highest Attainable Standard of Health, UN Doc. CRC/C/GC/15 (2013), para. 66; Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, UN Doc. CRC/GC/2003/3 (2003), para. 39; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.

  • 618. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.

  • 619. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 33.

  • 620. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 2.

  • 621. ^

    See, e.g., Committee on the Rights of the Child, Concluding Observations: Yugoslavia, UN Doc. CRC/C/15/Add.49 (1996), para. 40; Committee on the Rights of the Child, Concluding Observations: Jordan, UN Doc. CRC/C/15/Add.125 (2000), paras. 47–48; Committee on the Rights of the Child, Concluding Observations: Uzbekistan, UN Doc. CRC/C/UZB/CO/2 (2006), paras. 50–51; Committee on the Rights of the Child, Concluding Observations: Italy, UN Doc. CRC/C/ITA/CO/3-4 (2011), para. 54; Committee on the Rights of the Child, Concluding Observations: Mexico, UN Doc. CRC/C/MEX/CO/4-5 (2015), para. 50(d); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(c); see also Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/5 (2003).

  • 622. ^

    Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/5 (2003).

  • 623. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 33.

  • 624. ^

    D. Barrett and J. Tobin, ‘Article 33: Protection from Narcotic Drugs and Psychotropic Substances’, in J. Tobin (ed.), A Commentary on the Convention on the Rights of the Child (Oxford: Oxford University Press, 2019), pp. 1273–1309.

  • 625. ^

    International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999), art. 3(c).

  • 626. ^

    African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), art. 28.

Children have the right to receive accurate and objective information about drugs and drug-related harm, the right to protection from harmful misinformation, and the right to privacy.

In accordance with this right, States should:

i. Undertake evidence-based and human rights-compliant prevention measures, including in schools.

ii. Avoid excluding children from school due to risk-taking behaviours and take measures to ensure their access to education.

iii. Avoid random drug testing, sniffer dogs, and strip searches in schools.

The Committee on the Rights of the Child has repeatedly called on States to put in place effective drug prevention measures pursuant to the Convention on the Rights of the Child, including in schools.[627] Scare tactics and misinformation are counterproductive and should not be employed,[628] which is why the Committee consistently calls for ‘accurate and objective’ information.[629] The UN General Assembly Special Session 2016 Outcome Document also requests that States take practical prevention measures for children and youth by providing ‘accurate information’.[630] The UN Office on Drugs and Crime has developed international prevention standards that incorporate key ethical considerations and a review of the evidence.[631] These have been endorsed by the Commission on Narcotic Drugs.[632]

Random school drug testing is ineffective and is therefore an unwarranted infringement of children’s right to privacy under the Convention on the Rights of the Child.[633] The UN Office on Drugs and Crime’s prevention standards recommend avoiding such testing.[634] Given the absence of evidence of effectiveness of the use of sniffer dogs, this too should be avoided on the same rights-based grounds. Strip searches, meanwhile, have been found to be an unconstitutional violation of the right to privacy in some jurisdictions.[635]

Children have the right to education under the Convention on the Rights of the Child.[636] Retention in school is an important form of protection from a range of health harms, while exclusion from school has been identified as a risk factor for the initiation or escalation of drug use.

  • 627. ^

    That is, pursuant to article 33 of the Convention on the Rights of the Child. See, e.g., Committee on the Rights of the Child, Concluding Observations: Germany, UN Doc. CRC/C/DEU/CO/3-4 (2014), para. 61; Committee on the Rights of the Child, Concluding Observations: Saint Lucia, UN Doc. CRC/C/LCA/CO/2-4 (2014), para. 49; Committee on the Rights of the Child, Concluding Observations: Bosnia and Herzegovina, UN Doc. CRC/C/BIH/CO/5-6 (2019), para. 35(b).

  • 628. ^

    Commission on Narcotic Drugs, Youth and Drugs: A Global Overview, UN Doc. E/CN.7/1999/8 (1999), para. 65(f).

  • 629. ^

    See, e.g., Committee on the Rights of the Child, Concluding Observations: Guyana, UN Doc. CRC/C/GUY/CO/2-4 (2013), para. 50(d); Committee on the Rights of the Child, Concluding Observations: Albania, UN Doc. CRC/C/ALB/CO/2-4 (2012), para. 64(b); Committee on the Rights of the Child, Concluding Observations: Romania, UN Doc. CRC/C/ROM/CO/4 (2009), para. 71; Committee on the Rights of the Child, Concluding Observations: Sweden, UN Doc. CRC/C/SWE/CO/4 (2009), para. 49(a); Committee on the Rights of the Child, Concluding Observations: Bulgaria, UN Doc. CRC/C/BGR/CO/2 (2008), para. 50; Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d).

  • 630. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(a).

  • 631. ^

    UN Office on Drugs and Crime, International Standards on Drug Use Prevention, 2nd ed. (2018).

  • 632. ^

    Commission on Narcotic Drugs, Resolution 59/6: Promoting Prevention Strategies and Policies (2016).

  • 633. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 16.

  • 634. ^

    UN Office on Drugs and Crime, International Standards on Drug Use Prevention, 2nd ed. (2018), p. 29.

  • 635. ^

    Safford Unified School District v. Redding, 557 US 364, 2009; see also Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 16.

  • 636. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 28.

Children have the rights to health, to be heard in matters related to their own health care, and to decisions based on clinical need in the best interests of the child, including decisions related to interventions for children who use drugs.

In accordance with these rights, States should:

i. Develop accessible, child-sensitive prevention, drug dependence treatment, and harm reduction services.

ii. Ensure that decisions regarding access to drug-related health services are taken in the best interests of the child, with due regard to their evolving capacities.

iii. Remove legal age restrictions on existing drug-related health services.

iv. Ensure that young people who use drugs have access to drug-related health information, and counselling without parental or guardian consent, and that treatment or harm reduction service provision without parental or guardian consent is possible when in the best interests of the individual.

Where these interventions concern drug-related criminality, States should:

v. Target efforts primarily at diversion from the criminal justice system and promote rehabilitation over punishment.

vi. Refrain from criminalising children because of their drug use or possession of drugs for personal use.

vii. Adhere to international juvenile justice standards in all efforts to address and respond to drug-related criminality among children and young people.

The Committee on the Rights of the Child has repeatedly called for ‘child-sensitive’ and ‘youth friendly’ drug treatment and harm reduction services.[637] It has consistently recommended that States Parties put in place and adequately fund such services for this age group[638] and has condemned the practice of placing children in compulsory drug detention and rehabilitation centres.[639] The Working Group on Arbitrary Detention has also recommended that drug treatment and harm reduction services be made available to children on a voluntary basis, without oversight or mandate by the judiciary, and with health care services provided by health professionals.[640] Treatment and harm reduction services should be of sufficient quality and acceptable for the needs of this age group, based on the dynamics of drug use among them. Similarly, the UN General Assembly Special Session 2016 Outcome Document promotes ‘non-discriminatory access to a broad range of interventions … giving special attention to the specific needs of … children and youth’.[641]

To facilitate access to services for those in need, legal age restrictions on existing services should be removed[642] and parental consent conditions should be amended.[643] Legal age restrictions inhibit the ability to conduct best interests assessments[644] based on clinical need[645] and in consultation with the young person.[646] While parental consent or support for access to services and health information may be desirable, it should not be a compulsory condition of access. The Committee on the Rights of the Child has been consistent on this matter with regard to adolescent health and sexual and reproductive services.[647] Alternative methods for determining children’s access to services, rooted in the best interests of the child, have been developed through case law on sexual and reproductive health services.[648] In some countries, these methods have already been adapted to drug-related services.[649]

A range of children’s rights treaties and provisions apply in the context of drug-related criminality. The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring that ‘the specific needs, including mental and physical needs, of underage drug offenders and children affected by drug-related crime are appropriately considered, including in criminal justice proceedings where required, including by providing those in need with drug treatment and related support services’.[650] In addition, international juvenile justice standards are set out in the Convention on the Rights of the Child,[651] the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (also known as the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[652] These all emphasise the need for a focus on drug use prevention and drug treatment for those involved in the juvenile justice system.[653] Beyond such provisions, however, juvenile justice standards apply in their entirety to children involved in drug-related criminality. For example, the minimum age of criminal responsibility should be suitably high, and dual ages of criminal responsibility applying a lower age for drug offences should be avoided. Moreover, the detention of children should be avoided wherever possible.[654]

Children should not be criminalised for their drug use. The Committee on the Rights of the Child has been consistent on this matter due to criminalisation’s counterproductive effects and has recommended the repeal of laws criminalising drug use among children.[655] A high court in South Africa has held that the criminalisation of the possession of cannabis for personal use, where the same conduct was not criminalised for adults, violates children’s rights to equality and – given the profound negative impact of exposure to the criminal justice system – the right to have their best interests taken into account.[656]

  • 637. ^

    Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Concluding Observations: Ghana, UN Doc. CRC/C/GHA/CO/3-5 (2015), para. 52(f); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(a); Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/5-6 (2019), para. 36(c); Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d); Concluding Observations: Cook Islands, UN Doc. CRC/C/COK/CO/2-5 (2020), para. 43(3); Concluding Observations: Belarus, UN Doc. CRC/C/BLR/CO/5-6 (2020), para. 34(a).

  • 638. ^

    Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.

  • 639. ^

    Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.

  • 640. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 71.

  • 641. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(k).

  • 642. ^

    Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc No CRC/C/MDA/CO/4–5 (2017), para 34(f).

  • 643. ^

    See Committee on the Rights of the Child, Concluding Observations: South Africa, UN Doc. CRC/C/15/Add.122 (2000), para. 31; Committee on the Rights of the Child, Concluding Observations: Turkey, UN Doc. CRC/C/15/Add.152 (2001), para. 54.

  • 644. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.

  • 645. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.

  • 646. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.

  • 647. ^

    See, e.g., Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/15/Add.139 (2000), para. 51; Committee on the Rights of the Child, Concluding Observations: Latvia, UN Doc. CRC/C/15/Add.142 (2001), para. 40.

  • 648. ^

    Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.

  • 649. ^

    See, e.g., National Institute for Healthcare and Clinical Excellence (UK), Needle and Syringe Programmes: Public Health Guideline (2014); see also World Health Organization, Technical Brief: HIV and Young People Who Inject Drugs (2015).

  • 650. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(e).

  • 651. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 40.

  • 652. ^

    UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).

  • 653. ^

    In particular, UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990), paras. 25, 35, 44, 45.

  • 654. ^

    See also Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007).

  • 655. ^

    Committee on the Rights of the Child, Concluding Observations: United Kingdom (Isle of Man), UN Doc. CRC/C/15/Add.134 (2000), para. 38; Committee on the Rights of the Child, Concluding Observations: Indonesia, UN Doc. CRC/C/15/Add.223 (2004), para. 72; Committee on the Rights of the Child, Concluding Observations: Armenia, UN Doc. CRC/C/15/Add.225 (2004), paras. 62–63; Committee on the Rights of the Child, Concluding Observations: Bolivia, UN Doc. CRC/C/15/Add.256 (2005), para. 62(c); Committee on the Rights of the Child, Concluding Observations: Norway, UN Doc. CRC/C/15/Add.263 (2005), para. 44(b); Committee on the Rights of the Child, Concluding Observations: Denmark, UN Doc. CRC/C/DNK/CO/3 (2005), para. 55(d); Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/3 (2005), para. 77(b); Committee on the Rights of the Child, Concluding Observations: Kiribati, UN Doc. CRC/C/KIR/CO/1 (2006), para. 49(c); Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/MHL/CO/2 (2007), para. 55(c); Committee on the Rights of the Child, Concluding Observations: Afghanistan, UN Doc. CRC/C/AFG/CO/1 (2011), para. 52(d); Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.

  • 656. ^

    In the Matter of the State and LM and 3 Others, Director of Public Prosecutions, Minister of Justice and Correctional Services, Minister of Social Development, Minister of Health, Minister of Basic Education, Minister of Police and Centre for Child Law (amicus curiae), High Court of South Africa, Gauteng, Local Division, Johannesburg, Case Nos. 97/18, 98/18, 99/18, and 100/18 [2020].

Every child has the right to such care and protection as is necessary for their well-being, including where the child’s parents use drugs or are drug dependent.

In accordance with this right, States shall:

i. Ensure that the best interests of the child are a primary consideration in decisions regarding their care, including in the context of parental drug dependence.

In addition, States should:

ii. Ensure that a parent’s drug use or dependency is never the sole justification for removing a child from parental care or for preventing reunification. Efforts should be directed primarily towards enabling the child to remain in or return to the care of their parents, including by assisting drug-dependent parents in carrying out their child care responsibilities.

The Convention on the Rights of the Child reaffirms the special role of the family for the optimal development of the child[657] and provides that children have the right to know and be cared for by their parents.[658] The Convention includes the obligation to assist parents in carrying out their child care responsibilities when needed.[659] As stated in the UN Guidelines for the Alternative Care of Children, ‘efforts should primarily be directed to enabling the child to remain in or return to the care of his/her parents …’.[660] The Guidelines further state that ‘States should seek to ensure appropriate and culturally sensitive measures … [t]o support family caregiving environments whose capacities are limited by factors such as … drug and alcohol misuse …’.[661] Where a child is removed, temporarily or otherwise, the State has an obligation to provide alternative care that is in line with the child’s best interests.[662]

Removal from parental custody is an extreme step and must not be done ‘except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child’.[663] Such determination may be necessary ‘in a particular case such as one involving abuse or neglect of the child …’.[664] Parental drug use or dependence should not be equated with neglect or abuse. In some countries, however, a parent’s inclusion in a drug user registry is sufficient to challenge that person’s custody rights without the need for evidence of actual neglect or abuse.

  • 657. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), preamble.

  • 658. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 7(1).

  • 659. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 18(2).

  • 660. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 3.

  • 661. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 9.

  • 662. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 5; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 20.

  • 663. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 9(1).

  • 664. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 9(1).

Children have the right to protection from exploitation, including in the illicit drug trade. States shall take appropriate measures to protect children from exploitation in the illicit drug trade through preventative and remedial measures.

In accordance with this right, States should:

i. Prioritise addressing the root causes of involvement in the drug trade, including poverty and social marginalisation.

ii. Clearly define exploitation, ensuring that children’s participation in the rural cultivation of illicit drug crops through tradition or poverty is not wrongly treated as exploitation without specific evidence of such exploitation taking place.

iii. Avoid treating as criminals children who have been exploited in the drug trade.

The protection of children from exploitation in the drug trade is addressed in the Convention on the Rights of the Child and in the International Labour Organization (ILO) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.[665] It is also addressed in the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,[666] as well as in the UN General Assembly Special Session 2016 Outcome Document.[667] Every UN Member State has treaty obligations relating to this issue, as the one State that has not ratified the Convention on the Rights of the Child has ratified the ILO Convention and the drug control convention. It should be noted, however, that because children’s involvement in the drug trade remains poorly researched and understood, there is less human rights guidance on this aspect of the protection of children from drugs. It is an area in need of considerable development.

The ILO Convention is clear on the need to impose penalties on those who exploit children, an idea that is supported by the Convention on the Rights of the Child. However, while there are many children who are exploited in the drug trade, not all forms of child involvement can or should be so categorised. States should agree on an appropriate definition of exploitation that clearly identifies vulnerable children and those who exploit them. Parents and other family members should not automatically be seen as criminals or punished for their children’s involvement in the rural cultivation of illicit drug crops. Additionally, children who are exploited in the drug trade or involved through poverty or tradition should not be treated as criminals.

The ILO Convention deals with preventative and development policy interventions to reduce children’s involvement in the worst forms of child labour.[668] The Convention’s provisions focus on root causes and reintegration. Whether children are involved in rural drug production through poverty, tradition, or their role on family land, or are involved in the drug trade due to their own drug dependence or homelessness, the protection of children from involvement in the illicit drug trade should be read alongside these provisions.

Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances refers to the protection of children as an aim of the treaty.[669] It stresses that offences involving the exploitation or ‘victimization’ of children are to be treated as ‘particularly serious’. Such provisions lend themselves to harmonious interpretation with associated concomitant obligations on the rights of the child.[670]

  • 665. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 33; International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999).

  • 666. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble, art. 3(5).

  • 667. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(f).

  • 668. ^

    International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999), art. 7.

  • 669. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble.

  • 670. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(5).

Women have the right to enjoy human rights and fundamental freedoms on a non-discriminatory basis in all fields of life on the basis of equality with men. This right applies to women who use drugs and women who are involved in the drug trade or dependent on illicit drug economies.

In accordance with these rights, States shall:

i. Take all appropriate measures, including legislative, administrative, social, and educational measures, to prevent, mitigate, and remediate any disproportionate or otherwise discriminatory impact on women as a result of drug laws, policies, and practices, particularly where aggravated effects result from intersecting forms of discrimination.

To facilitate the above, States should:

ii. Obtain and disseminate age- and sex-disaggregated data on drug use and related harms and on the nature of women’s involvement in the illicit drug trade, including involvement in the criminal justice system as a result of allegedly using drugs or being involved in drug-related crime.

International human rights law establishes a State obligation to take all necessary steps to give effect to the rights enshrined in treaties on a non-discriminatory basis, in addition to women’s rights to non-discrimination and equality as specifically set out in international and regional instruments, including the Convention on the Elimination of All Forms of Discrimination against Women, which has been ratified by 189 States.[671] For example, the obligation to ensure women’s right to health requires removing legal and other obstacles that prevent women from accessing and benefiting from health care on a basis of equality with men, including by addressing traditional, historical, religious, and cultural attitudes that affect access to determinants of health and health goods and services.[672]

International human rights law also requires States to adopt and pursue policies to address intersecting forms of discrimination and their compounded negative impacts.[673] Several UN treaty bodies have acknowledged the existence of intersecting discrimination as distinct discrimination resulting from multiple, intersecting factors of disadvantage.[674] For example, women may experience additional discrimination due to the intersection of sex with other factors, such as age, race, ethnicity, religion, economic status, sexual orientation or gender identity, engagement in sex work, and health status, including living with HIV.[675] These factors combine to produce distinct forms of discrimination, such as the denial of reproductive health services to women based on race and poverty.[676] Intersecting discrimination may also express itself as the stereotyping of subgroups of women, such as the categorisation of women who use drugs as immoral, sexually promiscuous, and unfit to be mothers, caregivers, or partners.

Women who use drugs, who are involved in the drug trade, or who are dependent on illicit drug economies face distinct forms of discriminatory treatment. The Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights have recognised that women who use drugs face intersecting forms of gender-based discrimination, including in health care, and recommend that States adopt measures to address such multiple forms of discrimination.[677] Furthermore, the Committee on the Elimination of Discrimination against Women has expressed concern about the lack of data on women who use drugs and women in need of drug dependence treatment, including in prison, and recommends that States collect such information to determine the extent of the problem and develop appropriate interventions.[678]

The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has emphasised that

States must urgently take concrete measures to meet their commitments to ensuring women’s rights in drug policies and programmes. This cannot happen if issues and concerns that are specific to women remain invisible and neglected. In keeping with the Sustainable Development Goals, in which gender equality is a stand-alone goal as well as being incorporated in all other goals and targets, tackling the impact of drug policies on women deserves proper attention and visibility. Drug policies cannot be effective without addressing the root causes of structural inequality and discrimination, which place women in a subordinate role in society, including in the family, often leading to experiences of violence, marginalisation and domination. Marginalisation of women, poverty, gender-based violence, lack of job opportunities and absence of social protection from the State, together with the need to support their family, can drive women into committing drug-related offences.[679]

  • 671. ^

    Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), arts. 2, 3; Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), preamble; Charter of Fundamental Rights of the European Union, 2012/C 326/02 (2012), art. 23; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1(1); Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), 33 I.L.M. 1534 (1994), art. 4(f); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 18(3); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, OAU Doc. CAB/LEG/66.6 (2003), art. 2; Arab Charter on Human Rights (2004), art. 3 (subject to limitations on women’s equality and protections against discrimination in Islamic Shari’a and ‘other divine laws, legislation and international instruments’).

  • 672. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, UN Doc. E/C.12/2005/4 (2005), para. 29; Human Rights Committee, General Comment No. 28: Equality of Rights between Men and Women, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000), paras. 3, 5; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 2(f).

  • 673. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (2010), para. 18.

  • 674. ^

    See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, UN Doc. E/C.12/2005/4 (2005), para. 5; Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. CERD/C/GC/32 (2009), para. 7; Committee on the Elimination of Discrimination against Women, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (2010), para. 18.

  • 675. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (2010), para. 18; Committee on the Elimination of Discrimination against Women, Concluding Observations: Sri Lanka, UN Doc. CMW/C/LKA/CO/2 (2016), paras. 26(b), 27 (c); Committee on Economic, Social and Cultural Rights, Concluding Observations: Ukraine, UN Doc. E/C.12/UKR/CO/5 (2008), paras. 28, 51.

  • 676. ^

    See Committee on the Elimination of Discrimination against Women, Communication No. 17/2008: Maria de Lourdes da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011), para. 7.7.

  • 677. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kyrgyzstan, UN Doc. CEDAW/C/KGZ/CO/4 (2015), paras. 33–34; Committee on Economic, Social and Cultural Rights, Concluding Observations: Canada, UN Doc. E/C.12/CAN/CO/6 (2016), paras. 49–50.

  • 678. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kyrgyzstan, UN Doc. CEDAW/C/KGZ/CO/4 (2015), paras. 30–31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Moldova, UN Doc. CEDAW/C/MDA/CO/3 (2006), para. 31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), paras. 30–31.

  • 679. ^

    United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.

Women who use drugs have the right to access health care, including sexual and reproductive care, on a non- discriminatory basis.

In accordance with this right, States should:

i. Take all necessary legislative, administrative, and policy measures to ensure the availability of and non-discriminatory access to good-quality gender-sensitive prevention, treatment, harm reduction, and other health care services for women who use drugs, including opioid substitution treatment for pregnant women, tailored to meet women’s specific needs.

ii. Ensure that these services take into account the needs of lone or primary caretakers of children and other family members.

iii. Ensure that a woman’s drug use or dependency is never the sole justification for removing a child from her care or preventing reunification with her child, as this may deter access to necessary drug-related health care services and prejudice the woman’s right to family life and the child’s right to remain in the care and custody of their parents.

iv. Take immediate steps to end the detention and punishment of women as a result of their drug use during pregnancy.

v. End any practice amounting to involuntary sterilisation or abortion on grounds of drug use.

vi. Take all necessary legislative, administrative, and policy measures to ensure that voluntary, informed consent is a precondition for any medical treatment or diagnostic intervention for women and that drug use or dependence alone are not grounds for detention or to deprive a woman of the right to withhold consent.

vii. Take all necessary legislative, administrative, and policy measures to prevent and redress violence against women who use drugs and to provide care for such women.

In addition, States may:

viii.Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption as an important step towards fulfilling women’s right to health.

The right to health establishes an obligation to respect, protect, and fulfil the right to sexual and reproductive health without discrimination. The Committee on the Elimination of Discrimination against Women has emphasised that this right also applies to women who use drugs, necessitating the provision of accessible, gender-sensitive drug treatment and harm reduction services in addition to other appropriate services related to sexual and reproductive health.[680] States’ maximum available resources should be committed towards ensuring universal access to appropriate, accessible, acceptable, and quality (that is, non-stigmatising and non-discriminatory) sexual and reproductive health care goods, services, and information and education, including for pregnant women who use drugs.[681] Laws, policies, and practices that impede or deny women access to essential prenatal, intrapartum, or postnatal care on any grounds violate the right to health.[682]

In some contexts, women who inject drugs are almost twice as likely as their male counterparts to be living with HIV.[683] The Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights have raised concerns about the ongoing lack of access to gender-sensitive health and harm reduction services and evidence-based drug treatment for women tailored to their specific needs, as well as the significant legislative barriers that women face in access to supervised consumption services.[684] They have called for the provision of these services in the community and in custodial settings, as well as the removal of barriers and allocation of adequate resources to them.[685]

The Committee against Torture has raised concern about the detention of women who use drugs in manual ‘labour treatment facilities’, where people are detained without access to a lawyer or appropriate medical care, and has highlighted the situation of women detainees’ lack of access to medical care, including gynaecologists.[686]

The Committee on the Elimination of Discrimination against Women has called for the establishment of a transparent process permitting the operation of supervised consumption services without risk of prosecution of clients or service providers and for measures to prevent overdose deaths, including by exempting from arrest drug users who contact emergency services for assistance when facing an overdose.[687] The Committee has also called on States to take measures to prevent and combat the use of drugs and of alcohol and to allocate sufficient resources in this regard.[688]

The Committee on Economic, Social and Cultural Rights has raised concern about the serious health risks created by the police harassment of drug users, particularly women, that forces them to undergo drug testing in the street or involuntary testing through urinary catheters. The Committee has called for an end to such forced testing practices, the investigation of such cases of abuse and harassment, and the punishment of those responsible.[689]

The Special Rapporteur on violence against women has raised concern that laws criminalising the purchase of sexual services increase the vulnerability to violence and acquisition of sexually transmitted diseases for sex workers who use drugs and work on the street. The Special Rapporteur has recommended that all women who conduct sex work be offered special protection and support; that programmes for women sex workers with ‘substance-abuse’ problems be maintained and expanded; and that these women be provided immediate access to drug dependence treatment programmes, if they choose.[690] The Special Rapporteur has also raised concern about the denial of access to shelters for women dependent on drugs who face violence and has recommended that women’s shelters be adequately funded, with particular attention paid to women with special needs, including women with substance-abuse problems.[691]

The UN Office on Drugs and Crime and the World Health Organization have developed standards to address the specific needs of women who use drugs, including pregnant women, that incorporate key ethical considerations and a review of the evidence.[692] The Commission on Narcotic Drugs has encouraged UN Member States to provide services for women who use drugs in line with those standards[693] and to mainstream a ‘gender perspective’ in the design and implementation of drug policies and programmes that takes into account the specific needs of women.[694] The UN General Assembly Special Session 2016 Outcome Document calls on States to ensure that women, including those in detention, have access to adequate health services and counselling, including in particular those needed during pregnancy, and to develop and disseminate ‘gender-sensitive’ measures that ‘take into account the specific needs and circumstances faced by women and girls with regard to the world drug problem’, referring also to the Bangkok Rules.[695]

In some jurisdictions, pregnant women who use or are suspected of using illicit drugs face criminal punishment or civil sanctions (including incarceration and civil confinement), the termination of parental rights, or charges of child abuse or neglect.[696] The Committee on Economic, Social and Cultural Rights has raised concern that women with children have unlawfully been forced to end opioid substitution therapy under threat of termination of parental rights and has recommended that such cases be investigated and those responsible be punished.[697] Pregnant women suspected of drug use are also sometimes involuntarily detained and forced to undergo medical treatment, in violation of their rights to health, equality and non-discrimination, and freedom from arbitrary detention.[698] The UN Working Group on Arbitrary Detention has criticised the involuntary detention of pregnant women who use drugs as a violation of due process, discriminatory in its reach and application, and a deterrent to seeking health care.[699] The UN Working Group on Discrimination against Women in Law and Practice considers such custodial and punitive measures for drug consumption during pregnancy to be discriminatory and an impediment to women’s right to health.[700] The Special Rapporteur on the right to health has also found that the criminalisation of illicit drug use and other conduct during pregnancy infringes the right to health of pregnant women by deterring them from seeking health care and pregnancy-related information, and therefore calls on States to abolish the application of criminal laws to such conduct.[701]

In some jurisdictions, laws, policies, and practices indicate drug use as a criterion for the loss of child custody or for forced sterilisation or abortion on the discriminatory basis that women who use drugs are necessarily unfit to bear or care for children.[702] This is part of a broader recognised global human rights problem concerning the involuntary sterilisation of women from marginalised communities[703] and poses unique disincentives for women who use drugs to access health services.[704] International and regional human rights bodies have found involuntary, coercive, and forced medical interventions (including forced or coerced sterilisation and abortion) to be a form of violence and discrimination against women,[705] violating not only the right to freedom from discrimination[706] but also the right to sexual and reproductive health,[707] the right to decide freely and responsibly on the number and spacing of one’s children,[708] the right to found a family,[709] the right to privacy,[710] and the right to freedom from torture and other cruel, inhuman, or degrading treatment.[711] States have an obligation to take effective steps to prohibit, prevent, and redress forced or coerced sterilisation and abortion, including where performed by private individuals and entities.[712] The Supreme Court of Namibia has also held that the sterilisation of women living with HIV in circumstances where defendants failed to prove that they had adequately informed the women of the nature, risks, and consequences of sterilisation or that the women had made clear, knowledgeable decisions to consent to the procedure violated informed consent required by law.[713] The European Court of Human Rights has held that the termination of parental rights of a woman in drug treatment whose children were neither neglected nor in danger violated her right to respect for her private and family life.[714]

The Committee on the Elimination of Discrimination against Women has also raised concern about the relationship between drug use and gender-based violence and has called on States to collect data on the possible correlation between the two[715] and to ensure that prevention, protection, and care strategies reach women at higher risk of violence because of their drug use or dependence, including by adopting legislative measures and targeted policies necessary to address such violence.[716] The Committee’s general recommendation on violence against women provides appropriate guidance on gender-based violence that includes specific recommendations for measures to address such violence against women who face multiple, intersecting forms of discrimination.[717]

The Committee on the Elimination of Discrimination against Women has recognised the important role that civil society organisations play in providing treatment and support services to women who use drugs and has recommended that adequate funding be provided to organisations carrying out this work.[718]

  • 680. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), paras. 30–31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), paras. 44–45; see also Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999), para. 2.

  • 681. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 18, 37, 41–42, 65(m); see also Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), para. 61.

  • 682. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 40, 49(a, b, c, f, g, h), 54, 63; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 21, 44(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 18, 41–42.

  • 683. ^

    Joint United Nations Programme on HIV/AIDS, Health, Rights and Drugs: Harm Reduction, Decriminalization and Zero Discrimination for People Who Use Drugs (2019).

  • 684. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/6 (2019), para. 39(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Norway, UN Doc. CEDAW/C/NOR/CO/9 (2017), para. 46(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 30(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Montenegro, UN Doc. CEDAW/C/MNE/CO/2 (2017), para. 44(b); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 44(d).

  • 685. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/6 (2019), para. 40(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Seychelles, UN Doc. CEDAW/C/SYC/CO/6 (2019), para. 40(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Norway, UN Doc. CEDAW/C/NOR/CO/9 (2017), para. 47; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Montenegro, UN Doc. CEDAW/C/MNE/CO/2 (2017), para. 45(c); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 45; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 45(b, d).

  • 686. ^

    Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/CO/5 (2018), paras. 23–24.

  • 687. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 45.

  • 688. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: New Zealand, UN Doc. CEDAW/C/NZL/CO/7 (2012), para. 35(c); Committee on the Elimination of Discrimination against Women, Concluding Observations: Sweden, UN Doc. CEDAW/C/SWE/CO/7 (2008), para. 35; Committee on the Elimination of Discrimination against Women, Concluding Observations: Ukraine, UN Doc. CEDAW/C/UKR/CO/8 (2017), para. 39; Committee on the Elimination of Discrimination against Women, Concluding Observations: St. Kitts and Nevis, UN Doc. A/57/38 (Supp) (2002), p. 94, para. 108; Committee on the Elimination of Discrimination against Women, Concluding Observations: Finland, UN Doc. A/56/38 (Supp) (2001), p. 32, para. 309.

  • 689. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), paras. 44(f), 45(f).

  • 690. ^

    Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to Sweden, UN Doc. A/HRC/4/34/Add.3 (2007), paras. 44, 71(a)(iv).

  • 691. ^

    Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to Sweden, UN Doc. A/HRC/4/34/Add.3 (2007), para. 62, 71(a)(iv).

  • 692. ^

    World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017); UN Office on Drugs and Crime, Guidelines on Drug Prevention and Treatment for Girls and Women (2016); UN Office on Drugs and Crime and the International Network of People Who Use Drugs, Addressing the Specific Needs of Women Who Inject Drugs: Practical Guide for Service Providers on Gender-Responsive HIV Services (2016); World Health Organization, Guidelines for the Identification and Management of Substance Use and Substance Use Disorders in Pregnancy (2014).

  • 693. ^

    Commission on Narcotic Drugs, Resolution 61/4: Promoting Measures for the Prevention of Mother-to-Child Transmission of HIV, Hepatitis B and C and Syphilis among Women Who Use Drugs (2018); Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 694. ^

    Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 695. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 4(b, g, n); see also Sustainable Development Goal 5.

  • 696. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 38–39; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 72–74; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 62–63; Report of the Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), paras. 36, 38, 39.

  • 697. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), paras. 44(e), 45(e).

  • 698. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), para. 39; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 73, 89.

  • 699. ^

    Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 73–74, 89; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 62.

  • 700. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), para. 39; Report of the Working Group on the issue of discrimination against women in law and in practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), paras. 38, 39.

  • 701. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 37–39, 41–42.

  • 702. ^

    See, e.g., European Court of Human Rights, Case of Y.I. v. Russia, Application No. 68868/14, 25 February 2020.

  • 703. ^

    Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 48.

  • 704. ^

    UN Office on Drugs and Crime and the International Network of People Who Use Drugs, Addressing the Specific Needs of Women Who Inject Drugs: Practical Guide for Service Providers on Gender-Responsive HIV Services (2016); see also Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 53.

  • 705. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 35: Gender-Based Violence against Women, Updating General Recommendation No. 19, UN Doc. CEDAW/C/GC/35 (2017), para. 18.

  • 706. ^

    Committee on the Elimination of Racial Discrimination, Concluding Observations: Slovakia, UN Doc. CERD/C/SVK/CO/9-10 (2013), para. 13.

  • 707. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 57, 59; see also Special Rapporteur on the Right to Health, Anand Grover and Special Rapporteur on Violence against Women: Communication to Russian Federation, Reference No. AL Health (2002-7) G/SO 214 (89-15) RUS 5/2013 (2013).

  • 708. ^

    Committee on the Elimination of Discrimination against Women, Communication No. 4/2004: Ms. A.S. v. Hungary, UN Doc. CEDAW/C/36/D/4/2004 (2006), para. 11.5.

  • 709. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: China, including Hong Kong, China, and Macao, China, UN Doc. E/C.12/CHN/CO/2 (2014), para. 26.

  • 710. ^

    European Court of Human Rights, K.H. and Others v. Slovakia, Application No. 32881/04, 28 April 2009, para. 58.

  • 711. ^

    Committee against Torture, Concluding Observations: Slovakia, UN Doc. CAT/C/SVK/CO/3 (2015), para. 12; Committee against Torture, Concluding Observations: Slovakia, UN Doc. CAT/C/SVK/CO/2 (2009), para. 14; Committee against Torture, Concluding Observations: Peru, UN Doc. CAT/C/PER/CO/4 (2006), para. 23; Human Rights Committee, General Comment No. 28: Equality of Rights between Men and Women, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000), para. 11; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 45; European Court of Human Rights, V.C. v. Slovakia, Application No. 18968/07, 8 November 2011; European Court of Human Rights, N.B. v. Slovakia, Application No. 29518/10, 12 September 2012; European Court of Human Rights, I.G. v. Slovakia, Application No. 15966/04, 29 April 2013.

  • 712. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 57, 59.

  • 713. ^

    Government of Namibia v. LM and Others [2014] NASC 19 (Namibia).

  • 714. ^

    See, e.g., European Court of Human Rights, Case of Y.I. v. Russia, Application No. 68868/14, 25 February 2020.

  • 715. ^

    Report of the Committee on the Elimination of Discrimination against Women, Twenty-Sixth session (14 January-1 February 2002), Twenty-Seventh Session, (3-21 June 2002), Exceptional Session, (5-23 August 2002), UN Doc. A/57/38 (2002), para. 108.

  • 716. ^

    See also Committee on Economic, Social and Cultural Rights, Concluding Observations: Spain, UN Doc. E/C.12/ESP/CO/5 (2012), para. 15; Committee on the Elimination of Discrimination against Women, Concluding Observations: Kyrgyzstan, UN Doc. CEDAW/C/KGZ/CO/4 (2015), paras. 33–34.

  • 717. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 35: Gender-Based Violence against Women, Updating General Recommendation No. 19, UN Doc. CEDAW/C/GC/35 (2017), paras. 12, 23, 28, 31 (b, d), 34(a, b, c).

  • 718. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Moldova, UN Doc. CEDAW/C/MDA/CO/6 (2020), paras. 40(b), 41(c).

Women have the equal right to an adequate standard of living, including the right to food, clothing, and housing. This applies to women involved in the drug trade and dependent on illicit drug economies.

In accordance with this right, States should:

i. Develop specific, viable, and sustainable economic alternatives for women who are particularly at risk of exploitation in the illicit drug economy, including women who use drugs, poor women (whether urban or rural), and women from indigenous and ethnic minority communities.

ii. Take all necessary legislative, administrative, and policy measures to ensure that women’s specific needs and circumstances are taken into account in efforts to address involvement in the drug trade and dependence on illicit drug economies.

iii. Adhere to international standards in all efforts to address and respond to drug-related criminality among women.

iv. Make available gender-specific interventions that aim primarily at diversion from the criminal justice system, and address the underlying factors leading to women coming into contact with the criminal justice system.

With regard to sentencing for drug-related offences, States should:

v. Legislate for and prioritise non-custodial sentences for pregnant women where possible and appropriate.

vi. Ensure that courts have the power to consider mitigating factors in light of women’s caretaking responsibilities, such as lack of criminal history and relative non-severity and nature of the criminal conduct.

vii. Ensure the earliest possible transfer of non-resident foreign-national women prisoners, following the request or informed consent of the woman concerned.

The Committee on the Elimination of Discrimination against Women has expressed concern about the significant increase in the already substantial number of women and girls imprisoned for drug-related offences[719] and in preventive detention on drug-related charges,[720] as well as the limited access to gender-specific health care for these individuals.[721] The Committee has recommended that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[722] It has also recommended that prison reform consider a gender perspective; that greater use of non-custodial sanctions and measures be made; that judicial procedures avoid the overuse of preventive measures; and that adequate health care facilities be provided for women in detention centres.[723]

The Committee on Economic, Social and Cultural Rights has raised concern that predominantly punitive approaches to drug abuse affect women in particular and have ‘contributed to the disproportionate increase in the size of the population deprived of liberty in overcrowded prisons and in poor conditions’.[724]

The Committee against Torture has likewise raised concern about the impact of drug control legislation on the size of the female prison population.[725] Indeed, the Special Rapporteur on violence against women has raised concern that ‘domestic and international anti-drug policies are a leading cause of rising rates of incarceration of women around the world’,[726] observing that women in some jurisdictions are over-represented among low-level, non-violent drug offenders; often have minimal or no previous criminal history; and are generally not principal figures in criminal organisations or activities. Despite this, they have received similar sentences as ‘high level’ drug offenders,[727] or in some cases, serve prison time while more serious offenders enter into plea bargains and avoid imprisonment.[728] The Special Rapporteur has also found that incarceration rates among ethnic minority women are much higher than those among other women.[729] The Special Rapporteur on minority issues has highlighted the large increase in the number of women incarcerated for drug-related crimes, noting in particular the impact on women of African descent, who are highly over-represented in prison populations.[730]

The Special Rapporteur on violence against women has called on States to ensure that sentencing policies reflect an understanding of women’s levels of culpability and control with respect to drug offences and to review laws holding women responsible for association with people involved in drug activities, even where they have little or no knowledge of these activities. The Special Rapporteur has also recommended that gender-sensitive drug treatment programmes be provided in women’s prisons.[731] The UN Working Group on Arbitrary Detention has raised concern that poor and otherwise marginalised women, particularly mothers and housewives, often bear the brunt of harsh anti-drug legislation, facing incarceration for minor drug crimes while those responsible for more serious offences, if caught, can use their financial resources to evade punishment[732] and that women’s lack of access to legal representation and negative stereotypes about women charged with drug-related offenses may limit opportunities to seek plea bargains or reduced sentences.[733] The Working Group also has raised concern that some women incarcerated for drug-related offences have been coerced into drug-related activities by husbands or partners, or for drugs in their home that belong to their partners, and that pregnant woman convicted of drug-related offences cannot benefit from the alternatives to incarceration available to those convicted of other crimes.[734]

The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has raised concern about the drastic rise in the number of women in prison globally and has noted that in some parts of the world, this increase can be attributed mainly to women being convicted of drug-related offences.[735] The Working Group has observed that proportionally, women are more likely than men to be incarcerated for drug-related crimes and that while they tend to be engaged at lower levels of the drug trade, they may receive harsher sentences than those responsible for more serious offences.[736] This disparity is due to the fact that they may have fewer opportunities to negotiate for lesser punishments, given their low status within criminal drug networks and because in some jurisdictions, the work that women do, such as transporting drugs, is subject to harsher punishment than offences committed by people at higher levels of these networks.[737] The Working Group also has raised concern about the disproportionate criminalisation of indigenous and racial minority women among the lower levels of drug networks.[738]

The Working Group on the Issue of Discrimination against Women in Law and in Practice has highlighted that violence is often used as a tool to coerce women to become drug couriers.[739] Women who are engaged in the drug trade or who use drugs may be reluctant to report such violence to law enforcement, for fear that doing so will subject them to further violence or discrimination.[740]

The Committee on the Elimination of Discrimination against Women recommends that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[741] The UN General Assembly Special Session 2016 Outcome Document likewise recommends that States identify and address the conditions that make women vulnerable to exploitation and participation in drug trafficking, including as couriers.[742] Several countries have already enacted legislative and policy reforms to address the harmful consequences of drug control efforts on women, taking into account their age, economic status, caretaking responsibility, and pregnancy,[743] as well as the specific circumstances of poor, foreign women imprisoned as drug couriers.[744]

The Committee on the Elimination of Discrimination against Women and the Special Rapporteur on violence against women have called on States to develop gender-specific alternatives to incarceration, in line with the Bangkok Rules.[745] These rules encourage alternative measures and sanctions that take into account the accused’s history, the circumstances of the offence, and her care responsibilities, and they recommend the use of alternatives to incarceration for non-violent offences and the adoption of gender-specific measures to address the needs of women who use drugs.[746] They also recommend the earliest possible transfer of non-resident foreign-national women prisoners to their home country with their consent, especially if the women have children there, taking advantage of relevant bilateral or multilateral agreements.[747] The Mandela Rules provide further guidance on the treatment of women prisoners.[748]

The Commission on Narcotic Drugs has also encouraged UN Member States to take into account the specific needs and circumstances of women subject to arrest, detention, prosecution, and sentencing for drug-related offences when developing crime prevention and criminal justice measures, drawing on, as appropriate, the Bangkok Rules, the Mandela Rules, and the Tokyo Rules.[749] The UN General Assembly Special Session 2016 Outcome Document likewise encourages consideration of the specific needs and circumstances of women in prison for drug offences, in line with the Bangkok Rules and also referring to the Mandela Rules and Tokyo Rules.[750]

  • 719. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: UK, UN Doc. A/54/38 (1999), para. 312.

  • 720. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.

  • 721. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.

  • 722. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.

  • 723. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.

  • 724. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.

  • 725. ^

    Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.

  • 726. ^

    Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 23.

  • 727. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 45.

  • 728. ^

    Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 26.

  • 729. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 55; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 25.

  • 730. ^

    Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.

  • 731. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), paras. 55, 115 (e, g).

  • 732. ^

    Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.

  • 733. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.

  • 734. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 45, 58; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 63.

  • 735. ^

    United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.

  • 736. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.

  • 737. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.

  • 738. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 62.

  • 739. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 69.

  • 740. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 68

  • 741. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.

  • 742. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 4(d).

  • 743. ^

    See, e.g., Argentina, Criminal Procedure Code, art. 495; Paraguay, Criminal Procedure Code, art. 238; Paraguay, Penal Code, art. 43; Colombia, Criminal Procedures Code, art. 314; Venezuela, Organic Criminal Procedures Code; Costa Rica, Law 9161 (2013).

  • 744. ^

    See UK Sentencing Council, ‘Drug Mules: Twelve Case Studies’, March 2011, https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_bulletin.pdf; UK Sentencing Council, ‘Response to Consultation’, 2012, http://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Response-web2.pdf.

  • 745. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 33: Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), paras. 48, 51; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), paras. 82–83; see also Committee on the Elimination of Discrimination against Women, Concluding Observations: Cambodia, UN Doc. CEDAW/C/KHM/CO/6 (2019), paras. 44–45.

  • 746. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rules 14, 15, 24(2), 30, 41, 57, 58, 61, 62, 64.

  • 747. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 53.

  • 748. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 28, 89, 93, 94.

  • 749. ^

    Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 750. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(n).

Women have the right to participate in and benefit from, on an equal basis with men, efforts to provide alternative livelihoods, including in rural communities dependent on illicit drug crops.

In accordance with this right, States should:

i. Take necessary legislative and policy measures to ensure women’s equal right to participate in and benefit from efforts to provide alternative livelihoods in rural communities dependent on illicit drug crops. Such measures may include adopting, amending, repealing, or modifying laws, policies, and practices to ensure women’s rights, on an equal basis with men, to agrarian reforms, to ownership, possession, and control of land, and to water and other natural resources, as well as their access to financial services, credits, loans, markets, and marketing facilities, irrespective of their civil or marital status.

ii. Take measures to ensure that women in rural areas are meaningfully involved in decision making and benefit from programmes and credit facilities on an equal basis with men.

Under the Convention on the Elimination of All Forms of Discrimination against Women, States have a positive obligation to take account of the problems faced by rural women and the significant roles that women play in their families’ economic survival. They are also obligated to take action to ensure women’s right to equal treatment in land and agrarian reforms and resettlement schemes; their equal right to access agricultural credit, loans, markets, and marketing facilities; and their equal right to enjoy adequate living conditions, particularly with regard to housing, sanitation, water supply, electricity, transport, and communications.[751] Yet as the Committee on the Elimination of Discrimination against Women has noted, women living in rural areas often face discrimination in these matters, with limited rights over land and natural resources.[752]

The Committee has pointed out that the implementation of illicit crop eradication programmes, including the banning of opium cultivation, without putting in place sustainable alternatives, has caused large-scale food shortages and migration.[753] Furthermore, in many places, drug crop substitution programmes mainly benefit men, who are traditional land titleholders and often the sole beneficiaries of agricultural extension services, training, credit, and tools.[754] These programmes further inscribe gender inequality in crop cultivation areas where women can access legal land titles only through husbands or male relatives.[755] The Committee has highlighted how laws giving preference to male heirs over female heirs, and practices that authorise only heads of household to sign official documentation such as land ownership certificates, or to receive parcels of land from the government, perpetuate discrimination against women and negatively affect their access to land. In other instances, women may not benefit from grants aimed at supporting self-employment because they hand these funds over to husbands or male relatives.[756]

The Committee recommends that States develop sustainable alternative livelihoods for women while continuing to eradicate illicit drug crops.[757] These actions should arise from ‘a comprehensive development plan for rural areas with the full involvement of rural women in its elaboration and implementation and backed by sufficient budgetary resources with the aim of fighting against poverty and promoting new economic opportunities that will replace the cultivation of opium’.[758] Such plans should also include ‘measures to ensure that rural women are the effective decision makers and beneficiaries of programmes and credit facilities’[759] and ‘efforts to address the needs of rural women and provide them with better access to health, education, clean water and sanitation services, fertile land and income-generating projects’.[760] The Committee further calls for the abolition of gender stereotypes in administrative law and practice, and for the legal recognition of women’s rights to own and inherit land.[761] Similarly, the UN General Assembly Special Session 2016 Outcome Document encourages States to develop viable economic alternatives in urban and rural areas affected by the illicit drug trade, ensuring that ‘both men and women benefit equally from them, including through job opportunities, improved infrastructure and basic public services and, as appropriate, access and legal titles to land’.[762]

Technical guidance from the UN Office on Drugs and Crime points out that addressing the unequal division of labour, access to benefits, participation in decision making, and access to and control over resources (such as land, labour, and technology) between men and women – including the gender norms and cultural expectations that influence these factors – is key to mainstreaming gender in alternative development programmes.[763] In practice, however, States’ implementation of this technical guidance has not always been adequate.[764]

  • 751. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 34: The Rights of Rural Women, UN Doc. CEDAW/C/GC/34 (2016), paras. 15, 66, 68–69, 71–72, 76, 78, 80, 85, 87; see also Sustainable Development Goal 5, target 5.A.

  • 752. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 34: The Rights of Rural Women, UN Doc. CEDAW/C/GC/34 (2016), para. 5.

  • 753. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Myanmar, UN Doc. CEDAW/C/MMR/CO/3 (2008), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CEDAW/C/LAO/CO/7 (2009), para. 44.

  • 754. ^

    UN Women, A Gender Perspective on the Impact of Drug Use, the Drug Trade, and Drug Control Regimes (2014).

  • 755. ^

    K. Grimmelmann, J. Espinoza, J. Arnold, and N. Arning, ‘The Land-Drugs Nexus: How Illicit Drug Crop Cultivation Is Related to Access to Land’, UNODC Bulletin on Narcotics 16 (2017): 75–104.

  • 756. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 38.

  • 757. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Myanmar, UN Doc. CEDAW/C/MMR/CO/3 (2008), para. 45; Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 39; Committee on the Elimination of Discrimination against Women, Concluding Observations: Lao People’s Democratic Republic, UN Doc. CEDAW/C/LAO/CO/7 (2009), para. 45.

  • 758. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 39(a); see also UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 7(j).

  • 759. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 39(c); see also UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 7(j).

  • 760. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 39(d); see also UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 7(j).

  • 761. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Sri Lanka, UN Doc. CEDAW/C/LKA/CO/7 (2011), paras. 16, 17(a, b), 22, 38, 39(d, e).

  • 762. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 7(j).

  • 763. ^

    UN Drug Control Program, Guidelines for Best Practices on Gender Mainstreaming in Alternative Development (2000).

  • 764. ^

    UN Office on Drugs and Crime, Alternative Development: A Global Thematic Evaluation, Final Synthesis Report (2005).

All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the person. This includes those held in prisons and other closed settings and places of detention for drug-related reasons. Such persons have the right to a standard of health care equivalent to that available to the general population.

In accordance with these rights, States should:

i. Adhere at all times to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

ii. Adhere at all times to international standards relating to specific groups deprived of their liberty, including women (the Bangkok Rules) and children (the Beijing Rules).

iii. Ensure that all persons deprived of their liberty have access to voluntary and evidence-based health services, including harm reduction and drug treatment services, as well as essential medicines, including HIV and hepatitis C services, at a standard that is equivalent to that in the community.

iv. Organise such drug-related and other health care services in close parallel with general public health administration, taking into account the specific nature of individuals’ detention, and design services to ensure the continuity of harm reduction, drug treatment, and access to essential medicines through transitions of entering and exiting the detention facility, as well as transfer between institutions.

v. Ensure that drug-related and other health care services for these populations are provided by qualified medical personnel able to make independent, evidence-based decisions for their patients.

vi. Ensure the provision of training for health care professionals and other staff working in prisons and other closed settings and places of detention on drug treatment, harm reduction, and palliative care and pain management, as well as other medical conditions that require the use of controlled substances for medical purposes.

The act of depriving a person of liberty imposes specific and enhanced obligations on States. Both the right to life and the prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment create obligations to refrain from inflicting harm on a detainee.[765] At the same time, States have ‘positive obligations’ to do everything reasonably possible to safeguard the lives and well-being of those being detained.[766]

The International Covenant on Civil and Political Rights imposes further positive obligations on the State to ensure minimum standards of treatment consistent with the humanity and inherent dignity of the person.[767] In the context of drug control, persons in pre-trial detention or imprisoned after conviction for drug-related offences should not be subjected to harsher treatment than other persons in detention or in places of imprisonment. This has particular relevance for the deprivation of liberty on the basis of drug offences and for the detention or imprisonment of persons who use drugs (regardless of their criminal charge or conviction), as well as for standards of health care available to such persons.

States have legal obligations to ensure that people deprived of their liberty have adequate access to good-quality health facilities, goods, services, and information equivalent to those available in the general community, which are necessary to meet State obligations under the right to health[768] and the prohibition on torture and ill-treatment.[769] This includes the obligation to provide access to voluntary, evidence-based drug treatment and harm reduction services,[770] including needle and syringe programmes and opioid substitution therapies,[771] and to provide people deprived of liberty naloxone during their detention and upon their release.[772] Guidance by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund also recommends that that naloxone be made available to people in prison, prison staff, and other people in prisons and other closed settings who might witness an opioid overdose and provided to people upon release from prison to prevent post-release overdose deaths.[773]

A number of UN human rights treaty bodies have raised concerns that the excessive use of incarceration and pre-trial detention as a drug control measure and disproportionate punishments for drug use and minor drug-related crimes have resulted in serious prison overcrowding, calling into question States’ compliance with their obligations to prevent torture and ill-treatment and to protect the right to health.[774] They urge States to consider the greater use of non-custodial measures in line with the Tokyo Rules[775] and recommend that States reconsider their penalisation of drug use as part of a health- and rights-based approach to drug use.[776] The UN Working Group on Arbitrary Detention has found that over-incarceration for drug-related offences contributes significantly to prison overcrowding, which can call into question a State’s compliance with guarantees that everyone in detention shall be treated with humanity and respect for their dignity.[777]

The Special Rapporteur on the right to health has recommended that States take measures to protect against the spread of COVID-19 in prisons and other detention centres, including by considering the early release of prisoners with drug dependence and other health vulnerabilities (such as HIV, hepatitis C, and tuberculosis) and those charged with minor and non-drug-related crimes, and to adequately plan for the health care of those released.[778] The Special Rapporteur has recommended that in the context of the COVID-19 emergency, wherever compulsory drug treatment centres operate, States ‘should take immediate measures to close such centres, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community’.[779] The Special Rapporteur has further recommended that adequately funded, effective measures be put in place to ensure that those released from prisons and other detention settings have continuity of care, as well as access to adequate housing and health care in the community. Thirteen UN entities, recalling the 2012 joint statement on compulsory drug detention centres, have likewise called on States operating compulsory drug detention centres to close them permanently without delay and to implement voluntary, evidence- and rights-based health and social services in the community as part of efforts to curb the spread of COVID-19.[780]

The UN General Assembly Special Session 2016 Outcome Document promotes the provision of drug treatment and harm reduction services both in the community and in prisons, with a special emphasis on imprisoned women who use drugs.[781] Such services must include ‘gender-sensitive and evidence-based drug treatment services to reduce harmful effects for women who use drugs, including harm reduction programmes for women in detention’.[782] The denial, removal, or discontinuation of effective drug treatment and harm reduction services in prisons and other places of detention violates the right to health and may in some circumstances contribute to conditions that meet the threshold of cruel, inhuman, or degrading treatment or punishment.[783]

Technical guidance from the World Health Organization and UN Office on Drugs and Crime recommends that health personnel in prison have complete professional independence from prison authorities and preferably be employed by a health authority. Prison health services should be integrated into national health policies and systems and be fully independent of prison administrations, yet liaise effectively with them.[784] The Committee of Ministers of the Council of Europe has likewise concluded that national health authorities should be responsible for health care provision in prisons, which would facilitate the continuity of treatment and ‘enable prisoners and staff to benefit from wider developments in treatments, in professional standards and in training’.[785] A number of countries have already transferred responsibility of prison health care to public health services because of concern about the quality of care and the role of medical staff.[786]

The UN has adopted detailed norms for the fulfilment of the above obligations. Such norms include the Mandela Rules, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, the Bangkok Rules, the Beijing Rules, the Riyadh Guidelines, the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.[787] These instruments are of general application and, for the most part, are not specifically tailored to the treatment of persons who may have drug-related issues during detention or imprisonment. However, both the Mandela Rules and the Bangkok Rules include guidance directly related to drug use, cited by the UN General Assembly Special Session 2016 Outcome Document.[788]

The Mandela Rules include three provisions of particular relevance. The first notes that the provision of health care for prisoners is a State responsibility and that people in prison should enjoy the same standard of health care as that available in the community, free of charge and without discrimination on grounds of their legal status.[789] The second states that ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[790] The third notes that ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following their admission and thereafter as necessary’ and that ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[791]

The Bangkok Rules also include numerous relevant provisions. They establish that HIV/AIDS programmes and services in penal institutions ‘shall be responsive to the specific needs of women, including prevention of mother-to-child transmission’ and that ‘[i]n this context, prison authorities shall encourage and support the development of initiatives on HIV prevention, treatment and care, such as peer-based education’.[792] Furthermore, they establish that prison health services ‘shall provide or facilitate specialized treatment programmes designed for women substance abusers, taking into account prior victimization, the special needs of pregnant women and women with children, as well as their diverse cultural backgrounds’.[793] Similar to the Mandela Rules, the Bangkok Rules provide that for women prisoners and detainees, ‘[h]ealth-care service should be organized in close relationship to the general public health administration and in a way that ensures continuity and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence’.[794] Furthermore, ‘[a] physician or other qualified health care professional … shall see, talk with and examine every prisoner as soon as possible following her admission and thereafter as necessary’, and ‘[p]articular attention should be paid to … withdrawal signs from the use of drugs … and undertaking all appropriate individualized measures or treatment’.[795] Finally, ‘[t]he provision of gender-sensitive, trauma-informed, women-only substance abuse treatment programmes in the community and women’s access to such treatment shall be improved, for crime prevention as well for diversion and alternative sentencing’.[796]

Regarding the issue of staff attending to people deprived of liberty, the Mandela Rules instruct that all prison staff, prior to entering duty, be provided with training tailored to their general and specific duties and then also provided with ongoing in-service training that includes material on the rights and duties of prison staff in the exercise of their functions, such as respecting the human dignity of all prisoners and the prohibition of certain conduct, particularly torture and other cruel, inhuman, or degrading treatment or punishment.[797] Prison staff who work with certain categories of prisoners or who are assigned other specialised functions should receive training that has a corresponding human rights focus.[798] The Bangkok Rules further require that all staff assigned to work with women prisoners receive training relating to these prisoners’ gender-specific needs and human rights.[799]

UN human rights mechanisms have called attention to the multiple and extreme forms of violence faced by LGBTI persons, which is exacerbated when they are deprived of their liberty and subjected to serious violence and to abuse, including sexual assault and rape, by fellow inmates and staff.[800] Transgender people, especially transgender women, are often housed in prisons according to their sex assigned at birth, and exposed to a high risk of rape and other violence and ill-treatment.[801] The lack of training and polices aimed at understanding the needs of LGBTI people, recognising people’s self-identified gender, and carrying out proper risk assessments compounds these problems.[802] UN human rights mechanisms have recommended that States adopt legislative, administrative, and judicial measures to address and prevent violence against LGBTI people in prison, stressing the fundamental importance of the involvement of LGBTI people in the design, implementation, and evaluation of measures to prevent torture and ill-treatment against them.[803]

Guidance issued by the UN Office on Drugs and Crime, World Health Organization, United Nations Development Programme, Joint United Nations Programme on HIV/AIDS, International Labour Organization, and UN Population Fund recommends that the comprehensive package of HIV prevention, care, and treatment interventions, which includes needle and syringe programmes, overdose prevention and management, opioid substitution therapy, and other evidence-based medical treatment, be tailored to the specific needs of women and transgender people, including with respect to sexual and reproductive health and hormone therapy (according to national guidance), and equivalent to services in the community. The guidance also notes the need for initiatives to acknowledge and address sexual and other forms of violence faced by women, men who have sex with men, and transgender people in prison and highlights the importance of ensuring that representatives of different population groups in prison – including adolescents and young people, women, men, people who inject drugs, transgender people, and people living with HIV – enjoy meaningful participation in the planning, implementing, and monitoring of prison HIV, tuberculosis, and hepatitis programmes in order to develop effective strategies that are responsive to their respective realities.[804]

  • 765. ^

    See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 6, 7.

  • 766. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 5; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 5; Arab Charter on Human Rights (2004), art. 20(1); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990), principle 1; UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), principle 1; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), principle M(7); Inter-American Commission on Human Rights, Resolution 1/08: Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), principle 1; Council of Europe, European Prison Rules (2006), rules 1, 72.

  • 767. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10.

  • 768. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), para. 60.

  • 769. ^

    Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73–74; see also Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay, UN Doc. CAT/OP/PRY/2 (2011) para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Poland Undertaken from 9 to 18 July 2018, UN Doc. CAT/OP/POL/ROSP/1 (2020), para. 109; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Ukraine, UN Doc. CAT/OP/UKR/3 (2017), para. 32.

  • 770. ^

    Human Rights Committee, Concluding Observations: The Netherlands, UN Doc. CCPR/C/NLD/CO/5 (2019), para. 41(c); Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), para. 21(c); Committee against Torture, Concluding Observations: Tajikistan, UN Doc. CAT/C/TJK/CO/3 (2018), para. 24(a); Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), para. 16(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 49(c); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the Follow-Up Visit to the Republic of Paraguay from 13 to 15 September 2010, UN Doc. CAT/OP/PRY/2 (2011), para. 167; Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, UN Doc. E/C.12/POL/CO/6 (2016), para. 54; Committee on Economic, Social and Cultural Rights, Concluding Observations: Sweden, UN Doc. E/C.12/SWE/CO/6 (2016), para. 42; Committee on Economic, Social and Cultural Rights, Concluding Observations: Lithuania, UN Doc. E/C.12/LTU/CO/2 (2014), para. 21; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Kazakhstan, UN Doc. A/HRC/13/39/Add.3 (2009), para. 85(b); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer: Mission to Ukraine, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(e, f); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover: Mission to Azerbaijan, UN Doc. A/HRC/23/41/Add.1 (2013), para. 60(g); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (2009), para. 71.

  • 771. ^

    See, e.g., Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nils Melzer, UN Doc. A/HRC/40/59/Add.3 (2019), para. 121(f); Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Visit to Portugal, UN Doc. CAT/OP/PRT/1 (2019), paras. 102–103; Smith v. Aroostook Cty. and Gillen, No. 19-1340 (1st Cir. 2019); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(j); see also European Court of Human Rights, Wenner v. Germany, Application No. 62303/1, 12 January 2016, para. 81.

  • 772. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(k).

  • 773. ^

    UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).

  • 774. ^

    Committee against Torture, Concluding Observations: Russia, UN Doc. CAT/C/RUS/6 (2018), paras. 21. 38(c); Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 13; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 53(a); Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 62; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Human Rights Committee, Concluding Observations: Portugal, UN Doc. CCPR/C/PRT/CO/4 (2012), para. 11; Report of the High Commissioner for Human Rights on Implementation of the Joint Commitment to Effectively Addressing and Countering the World Drug Problem with Regard to Human Rights, UN Doc. A/HRC/39/39 (2018).

  • 775. ^

    Committee against Torture, Concluding Observations: Philippines, UN Doc. CAT/C/PHL/CO/3 (2016), para. 14; Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 48(b).

  • 776. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Dominican Republic, UN Doc. E/C.12/DOM/CO/4 (2016), para. 63.

  • 777. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 10; see Report of the Working Group on Arbitrary Detention: Visit to Mexico, UN Doc. E/CN.4/2003/8/Add.3 (2002), para. 44; Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 64; Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’: Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/4/40 (2007), paras. 59–80.

  • 778. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797.

  • 779. ^

    United Nations, ‘Statement by the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health on the Protection of People Who Use Drugs during the COVID-19 Pandemic’, 16 April 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25797#_edn3.

  • 780. ^

    United Nations Development Programme, Office of the United Nations High Commissioner for Human Rights, World Health Organization, Joint United Nations Programme on HIV/AIDS, et al., Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19 (2020).

  • 781. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 1(k, o), 4(b, n).

  • 782. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e).

  • 783. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/65/255 (2010), paras. 29, 55; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), paras. 73, 74; see also Committee against Torture, Concluding Observations: Cape Verde, UN Doc. CAT/C/CPV/CO/1 (2017), para. 25(e).

  • 784. ^

    World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).

  • 785. ^

    World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).

  • 786. ^

    World Health Organization/Europe and UN Office on Drugs and Crime, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health (2013).

  • 787. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015); UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011); UN General Assembly, Resolution 43/173: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988); UN General Assembly, Resolution 45/111: Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990); UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).

  • 788. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(m, n).

  • 789. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(1).

  • 790. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 24(2).

  • 791. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 30.

  • 792. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 14.

  • 793. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 15.

  • 794. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 24(2).

  • 795. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 30.

  • 796. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 62.

  • 797. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 75(2).

  • 798. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rule 76(2).

  • 799. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 33(1).

  • 800. ^

    Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), paras. 62–64; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.

  • 801. ^

    Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sir Nigel Rodley, UN Doc. A/56/156 (2001), para. 23; Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 66; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.

  • 802. ^

    Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (2016), para. 51; United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.

  • 803. ^

    United Nations, ‘Targeted and Tortured: UN Experts Urge Greater Protection for LGBTI People in Detention’, 23 June 2016, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.

  • 804. ^

    UN Office on Drugs and Crime, World Health Organization, UN Development Programme, et al., HIV Prevention, Testing, Treatment, Care and Support in Prisons and Other Closed Settings: A Comprehensive Package of Interventions (2020).

Indigenous peoples have the rights to self-determination and to freely pursue their economic, social, and cultural development. They also have the right to own, use, develop, and control the lands, territories, and resources that they have traditionally owned, occupied, or otherwise acquired. Indigenous peoples have the right to conserve their lands and protect them from harm caused by drug control measures.

Indigenous peoples have the rights to self-determination and to freely pursue their economic, social, and cultural development. They also have the right to own, use, develop, and control the lands, territories, and resources that they have traditionally owned, occupied, or otherwise acquired. Indigenous peoples have the right to conserve their lands and protect them from harm caused by drug control measures.

In accordance with these rights, States should:

i. Ensure that drug control measures do not deprive indigenous peoples of their right to self-determination or their right to subsistence.

ii. Ensure that drug control measures recognise, respect, and protect the rights of indigenous peoples to own, use, develop, and control their lands, territories, and resources.

iii. Ensure that drug control measures do not negatively affect the right to conservation or productive capacity of indigenous peoples’ lands.

iv. Take effective measures to prevent and redress harms to the environment and productive capacity of indigenous territories and resources caused by drug control measures.

v. Require comprehensive environmental impact assessments to be carried out with the participation of relevant indigenous peoples in order to assess the environmental, economic, social, cultural, and spiritual impacts of drug control activities prior to their commencement and to determine the extent to which these activities can be modified.

vi. Monitor the implementation of such drug control activities and modifications.

vii. In the event of harm resulting from drug control measures, develop and implement adequate and effective remediation measures in consultation with affected populations.

The right to both political and economic self-determination, by virtue of which all peoples have the right to freely determine their political status and freely pursue their economic, social, and cultural development, is guaranteed in a number of international and regional human rights instruments.[805] The relevant provisions of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights make clear that ‘[i]n no case may a people be deprived of their means of subsistence’.[806] The United Nations Declaration on the Rights of Indigenous Peoples likewise prohibits States from depriving indigenous peoples of their means of subsistence[807] and requires States to ensure the protection of the environment and the productive capacities of indigenous peoples’ territories.[808]

The Committee on Economic, Social and Cultural Rights has acknowledged that ‘the strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and development, and this includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise acquired’.[809] The Committee advises States to respect and protect indigenous peoples’ cultural values and rights associated with their relationship with nature in order to prevent the degradation of their particular way of life (including their means of subsistence), the loss of their natural resources, and, ultimately, the loss of their cultural identity.[810] The Declaration on the Rights of Indigenous Peoples affirms the right of indigenous peoples to be secure in the enjoyment of their own means of subsistence and development and to just and fair redress where they are deprived of these means.[811]

Efforts to eradicate illicit drug crops, such as aerial fumigation, have negatively affected indigenous peoples’ rights to subsistence, health, and livelihood. Indigenous peoples and indigenous organisations report that such spraying has destroyed subsistence crops; damaged soil quality and yields; harmed fauna, flora, and water; affected indigenous communities’ economic activities and access to adequate food; and, in turn, caused their involuntary displacement.[812] UN human rights mechanisms have raised particular concerns about the adverse effects that aerial spraying of glyphosate to eradicate coca crops has on indigenous adults’ and children’s environment, economic activities, access to food, health, social life, and culture.[813] In this light, the Committee on the Rights of the Child recommends that States carry out independent, rights-based environmental and social impact assessments of aerial fumigation of illicit drug crops, ensure the prior consultation of affected indigenous communities, and take all precautions to avoid harmful impacts on the health of indigenous children in particular.[814]

Relationship to the UN drug control conventions

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires that each State Party take ‘appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory’.[815] However, in order for such prevention and eradication to be ‘appropriate’, it must respect ‘fundamental human rights’ and take ‘full account of traditional licit uses, where there is historic evidence of such use, as well as the protection of the environment’.[816] Article 14 of the 1988 Convention thus recognises the traditional use of certain plants, including the coca bush. However, it also stipulates that measures shall not be less stringent than the obligations of the 1961 Single Convention on Narcotic Drugs,[817] which require States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[818] This norm creates potential tensions with human rights requirements to protect indigenous peoples’ rights to subsistence and to own, use, develop, control, and conserve lands, territories, and resources that they have traditionally owned, occupied, or otherwise acquired.

  • 805. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 1, International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 1; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 3; see also African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 20.

  • 806. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 1(2); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 1(2).

  • 807. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.

  • 808. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 29.

  • 809. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 36; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 26(a).

  • 810. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 36; International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), arts. 13–16; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 20, 33.

  • 811. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.

  • 812. ^

    Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People: Mission to Ecuador, UN Doc. A/HRC/4/32/Add.2 (2006), para. 30.

  • 813. ^

    Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Colombia, UN Doc. E/CN.4/2005/88/Add.2 (2004), paras. 50, 52, 82; Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People: Mission to Ecuador, UN Doc. A/HRC/4/32/Add.2 (2006), paras. 28–31; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 72.

  • 814. ^

    Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 73.

  • 815. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); see also Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

  • 816. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).

  • 817. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14.

  • 818. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

Indigenous peoples have the right to be consulted and to free, prior, and informed consent regarding matters affecting them. This includes the right to be consulted on drug control measures and national and international agreements that may affect their lands, resources, cultures, and identities, as well as the right to give or withhold their consent.

In accordance with this right, States should:

i. Consult and cooperate in good faith with relevant indigenous peoples, through their representative institutions, in order to obtain their free, prior, and informed consent before adopting or implementing any drug control measure that may affect them or their territories. Ensure that consultations continue as needed throughout the period of implementation.

ii. Adopt legislative, administrative, and other measures necessary to recognise and ensure the right of indigenous peoples to be effectively consulted, in accordance with their traditions and customs, and the right to give or withhold their free, prior, and informed consent with regard to drug control measures that may affect them or their territories.

States’ obligation to consult in good faith with indigenous peoples with the objective of securing their free, prior, and informed consent on matters that affect their rights and interests has repeatedly been affirmed in international and regional instruments,[819] by UN treaty bodies,[820] and by other UN human rights mechanisms.[821] Regional human rights courts and commissions have also interpreted the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the American Declaration of the Rights and Duties of Man to recognise States’ duties and obligations to secure free, prior, and informed consent.[822] Where the rights implicated are essential to the survival of indigenous groups as distinct peoples and the foreseen impacts on the exercise of the rights are significant, indigenous consent to the impacts is an actual requirement – and not simply an objective – of consultations.[823]

The Special Rapporteur on the rights of indigenous peoples has recommended that ‘indigenous peoples that might be affected should be consulted on anti-drug policies and operations that involve the presence of national or foreign police or armed forces’ and has noted that ‘guarantees should be given that the lives, cultures, lands and natural resources of the indigenous peoples are not violated as a result of such operations. Abuses committed by drugs squad officials must be investigated and punished’.[824]

  • 819. ^

    International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), arts. 6 (1, 2), 15(2), 17(2), 22(3), 27(3), 28; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 10, 11(2), 19, 28(1), 29(2), 30(1), 32(2); American Declaration on the Rights of Indigenous Peoples, OAS Doc. AG/RES.2888 (2016), art. 29(4); Convention on Biological Diversity (1992), art. 8(j); see also International Labour Organization, Report of the Committee Set Up to Examine the Representation Alleging Non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (2001), para. 31.

  • 820. ^

    Human Rights Committee, Communication No. 1457/2006: Ángela Poma v. Peru, UN Doc. CCPR/C/95/D/1457/2006 (2009), paras. 7.2-7.6; Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, annex V (1997), art. 4(d); Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/18 (2007), paras. 15, 25; Committee on the Elimination of Racial Discrimination, Concluding Observations: Indonesia, UN Doc. CERD/C/IDN/CO/3 (2007), para. 17; Committee on the Elimination of Racial Discrimination, Concluding Observations: New Zealand, UN Doc. CERD/C/NZL/CO/17 (2006), para. 20; Committee on the Elimination of Racial Discrimination, Concluding Observations: Democratic Republic of the Congo, UN Doc. CERD/C/COD/CO/15 (2007), para. 18; Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, UN Doc. CERD/C/USA/CO/6 (2008), para. 29; Committee on the Elimination of Racial Discrimination, Concluding Observations: Ecuador, UN Doc. CERD/C/ECU/CO/19 (2008), para. 16; Committee on the Elimination of Racial Discrimination, Concluding Observations: Sweden, UN Doc. CERD/C/SWE/CO/18 (2008), para. 19; Committee on the Elimination of Racial Discrimination, Concluding Observations: Namibia, UN Doc. CERD/C/NAM/CO/12 (2008), para. 18; Human Rights Committee, Concluding Observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 19; Human Rights Committee, Concluding Observations: Costa Rica, UN Doc. CCPR/C/CRI/CO/5 (2007), para. 5; Human Rights Committee, Concluding Observations: Panama,UN Doc. CCPR/C/PAN/CO/3 (2008), para. 21; Human Rights Committee, Concluding Observations: Botswana, UN Doc. CCPR/C/BWA/CO/1 (2008), para. 24; Human Rights Committee, Concluding Observations: Nicaragua, UN Doc. CCPR/C/NIC/CO/3 (2008), para. 21.

  • 821. ^

    Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, UN Doc. A/HRC/12/34 (2009), paras. 36–57; Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, UN Doc. A/HRC/21/47 (2012), para. 65; Report of the Special Rapporteur on the Right to Food, Olivier De Schutter: Mission to Mexico, UN Doc. A/HRC/19/59/Add.2 (2012).

  • 822. ^

    African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communication No. 276/03 (2009), paras. 226, 291; African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Kenya, Application No. 006/2012 (2017); Inter-American Court of Human Rights, Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgement of 28 November 2007, Series C No. 172, paras. 127, 129, 133–134, 158; Inter-American Court of Human Rights, Saramaka People v. Suriname, Interpretation of the Judgement on Preliminary Objections, Merits, Reparations and Costs, Judgement of 12 August 2008, Series C No. 185, paras. 17–18, 29.

  • 823. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, UN Doc. A/HRC/21/47 (2012), para. 65.

  • 824. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples: Visit to Honduras, UN Doc. A/HRC/33/42/Add.2 (2016), para. 91; see also Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Colombia, UN Doc. E/CN.4/2005/88/Add.2 (2004), para. 50.

Indigenous peoples have the right to practise and revitalise their cultural traditions and customs and to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies. This includes the right to use and cultivate plants and plant-based substances that have psychoactive effects, where these are part of their cultural, spiritual, or religious practices.
Indigenous peoples have the right to maintain, control, cultivate, use, and protect and conserve medicinal and other plants and seeds that form a part of their cultural or ethnic identity or part of their spiritual or religious traditions, customs, and ceremonies. This includes plants that have psychoactive effects.

In accordance with these rights, States should:

i. Refrain from interfering with indigenous peoples’ exercise of their cultural, spiritual, and religious practices, including those involving plants that have psychoactive effects.

ii. Adopt appropriate legislative, administrative, and other measures to ensure that drug control efforts do not interfere with indigenous peoples’ rights to enjoy their culture and to practise their religion, including with members separated by international borders.

iii. Take measures to protect indigenous communities from actions by private companies and third parties that deny indigenous people their traditional sources of nutrition, medicines, livelihoods, and ceremonies, including those involving plants that have psychoactive effects.

In addition, States should:

iv. Consider exemptions within drug legislation allowing indigenous peoples to use controlled psychoactive substances for traditional, cultural, and religious purposes.

The right of everyone to take part in cultural life is enshrined in numerous international instruments.[825] The Human Rights Committee has concluded that a member of a minority shall not be denied the right to enjoy their culture and that measures whose impact amounts to a denial of this right are incompatible with obligations to ensure the right to enjoy one’s own culture.[826] Other international and regional instruments further protect the right to manifest a religion or belief,[827] specifically providing for the protection of the rights of ethnic, religious, and linguistic minorities, in community with other members of their group, to profess and practise their religion.[828] The International Labour Organization’s Indigenous and Tribal Peoples Convention similarly requires States to protect ‘the social, cultural, religious and spiritual values and practices’ of indigenous peoples and the integrity of these practices.[829] The Declaration on the Rights of Indigenous Peoples further recognises indigenous peoples’ rights to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants,[830] and the right to ‘maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders’.[831]

The Working Group on Arbitrary Detention has recommended that States ‘[p]rotect the rights of indigenous peoples to produce crops and plants that they have traditionally grown for their religious, medicinal and customary purposes and ensure that such production is not criminalized’.[832] The Working Group also recommends that States refrain from taking ‘punitive action against subsistence and small-scale farmers who produce illicit crops’ and instead ‘work with them to develop income from alternative agricultural crops and increase government services in their communities’.[833]

According to the Committee on Economic, Social and Cultural Rights, indigenous peoples ‘have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines’.[834] The Declaration on the Rights of Indigenous Peoples includes similar protections.[835] The Committee on Economic, Social and Cultural Rights has expressed general concern about the lack of adequate protection for and information on the intellectual property rights and cultural heritage rights of indigenous peoples and recommends that State legislation include clear, precise norms for the effective protection of such rights.[836] It further recommends that States take measures to prevent third parties from interfering in the exercise of these rights, including by preventing the appropriation and commodification of indigenous knowledge and traditional medicine.[837]

Prohibitions on the production of certain plants, such as coca and opium poppy, should not deprive indigenous peoples of the right to cultivate and use plants subject to international control if they are essential elements that contribute to their rights to enjoy their traditional culture and to profess and practise their religion, and therefore also to the general health and well-being of their communities.[838] The right of indigenous people to cultivate and use coca as a manifestation of their cultural identity has been recognised in national constitutions,[839] legislation,[840] and jurisprudence. For example, Colombia’s Constitutional Court has recognised the rights of indigenous peoples to cultivate and use coca for traditional practices, as required by the country’s international law commitments.[841] Notwithstanding the above, most States that have such legal protections also criminalise the possession and cultivation of coca for personal use.[842]

Even when certain substances are not under international control, indigenous people have faced criminal sanctions. For example, despite the statutory exemption from the prohibition on consuming peyote in religious ceremonies in the United States since 1994,[843] the UN Special Rapporteur on the rights of indigenous peoples in 2012 referred to allegations by the Native American Church of North America that peyote users and harvesters were facing ‘wrongful arrest, confiscation, prejudicial treatment in family custody cases, and discrimination in employment’.[844]

Relationship to the UN drug control conventions

Certain provisions of the drug control conventions may conflict with specific rights of indigenous peoples to enjoy their culture and to profess and practise their religion. For example, the 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis,[845] and establishes the general obligation to limit the permissible use of controlled substances strictly to medical and scientific purposes.[846] However, it also makes this general obligation ‘subject to the provisions of this Convention’,[847] which therefore at least permits flexibility to avoid criminalising indigenous individuals for their possession, purchase, or cultivation for personal consumption, although it also leaves other activities involving the use of substances for traditional purposes subject to criminal sanction.

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does allow for ‘traditional licit uses’. However, it also states that any measures taken by States in relation to such substances may not be ‘less stringent’ than required under the 1961 Single Convention,[848] which requires States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[849] There is, therefore, an apparent conflict between contemporary indigenous rights standards and the UN drug control conventions that requires close attention.

The United Nations Permanent Forum on Indigenous Issues has called for the amendment or repeal of those portions of the 1961 Single Convention on Narcotic Drugs regarding coca leaf chewing that are inconsistent with the rights of indigenous peoples to maintain their traditional health and cultural practices.[850] Bolivia withdrew from and then re-acceded to the treaty with a reservation protecting the country’s right to permit traditional coca leaf chewing, the consumption and use of coca leaf for cultural and medicinal purposes, and the cultivation, trade, and possession of coca to the extent necessary for these uses.[851]

  • 825. ^

    Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 27; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 27; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(b); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5(e)(vi); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 13(c); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 31(2); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158 (1990), art. 43(1)(g); Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 30(1); UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 31; International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 4; see also Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, annex V (1997), paras. 4–5.

  • 826. ^

    Human Rights Committee, Communication No. 671/1995: Jouni E. Länsman et al. v. Finland, UN Doc. CCPR/C/58/D/671/1995 (1996).

  • 827. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 18(1); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 18; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 9; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 12; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 8; Arab Charter on Human Rights (2004), arts. 25, 30.

  • 828. ^

    See, e.g., Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), para. 8.

  • 829. ^

    International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 5(a, b); see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 11–13.

  • 830. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24.

  • 831. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 36(1).

  • 832. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).

  • 833. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).

  • 834. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 37.

  • 835. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 31.

  • 836. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/5 (2011), para. 34.

  • 837. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 50; see also Right to Health and Indigenous Peoples with a Focus on Children and Youth: Study by the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/33/57 (2016), para. 33; Convention on Biological Diversity (1992), art. 8(j).

  • 838. ^

    Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.

  • 839. ^

    Constitution of Bolivia (2009), arts. 30(II)(2), 384; Constitution of Ecuador (2008), art. 57; Constitution of Peru (1993), art. 89; Constitution of Venezuela (1999), art. 121; Constitution of Argentina (1994), art. 75(17).

  • 840. ^

    Chile, Law No. 19253 (1993), art. 7.

  • 841. ^

    Sentencia T-080/2017, Corte Constitucional (Colombia), 7 February 2017; Sentencia T-357/2018, Corte Constitucional (Colombia), 31 August 2018, para. 6.

  • 842. ^

    See, e.g., Argentina, Law No. 23737 (1989), art. 15.

  • 843. ^

    See United States, American Indian Religious Freedom Act Amendments of 1994; Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 60.

  • 844. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Addendum: The Situation of Indigenous Peoples in the United States of America, UN Doc. A/HRC/21/47/Add.1 (2012), appendix II, para. 101.

  • 845. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).

  • 846. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 847. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 848. ^

    See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 4(c), 49(2).

  • 849. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

  • 850. ^

    Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.

  • 851. ^

    The reservation reads as follows: ‘The Plurinational State of Bolivia reserves the right to allow in its territory: traditional coca leaf chewing; the consumption and use of the coca leaf in its natural state for cultural and medicinal purposes, such as its use in infusions; and also, the cultivation, trade and possession of the coca leaf to the extent necessary for these licit purposes. At the same time, the Plurinational State of Bolivia will continue to take all necessary measures to control the cultivation of coca in order to prevent its abuse and the illicit production of the narcotic drugs which may be extracted from the leaf’. See United Nations Treaty Collection, ‘Declarations and Reservations: Bolivia’, https://treaties.un.org/Pages/Declarations.aspx?index=Bolivia%20(Plurinational%20State%20of)&lang=_en&chapter=6&treaty=170.

Indigenous peoples have the right to their traditional medicines and to maintain their traditional health practices, including those related to their spiritual health. This necessitates the conservation of their vital medicinal plants, some of which have psychoactive properties.

In accordance with these obligations, States should:

i. Refrain from depriving indigenous peoples of the right to cultivate and use psychoactive plants that are essential to the overall health and well-being of their communities.

ii. Repeal, amend, or discontinue laws, policies, and practices that inhibit indigenous peoples’ access to controlled psychoactive substances for the purposes of maintaining or increasing the overall health and well-being of their communities, and consider adopting appropriate legislative, administrative, and other measures to guarantee the exercise of the right to traditional medicines and health practices.

In addition, States may:

iii. Utilise the available flexibilities in the UN drug control conventions to decriminalise indigenous peoples’ possession, purchase, or cultivation of controlled psychoactive substances for personal consumption.

iv. Consider taking specific measures to protect the right of indigenous peoples to use psychoactive substances for specially defined purposes, including those related to their right to health.

The Committee on Economic, Social and Cultural Rights has recommended the protection of vital medicinal plants necessary to the full enjoyment of the right to health of indigenous people.[852] The Committee has further noted that ‘in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension’.[853] The Committee therefore also ‘considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health’.[854]

Relationship to the UN drug control conventions

The 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis.[855] It further establishes the general obligation to limit the permissible use of controlled substances strictly to medical and scientific purposes.[856] However, it also makes this general obligation ‘subject to the provisions of this Convention’,[857] which therefore at least permits flexibility to avoid criminalising indigenous individuals for their possession, purchase, or cultivation for personal consumption related to medicinal purposes, although it also leaves other activities involving the use of substances for traditional purposes subject to criminal sanction.

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does allow for ‘traditional licit uses’. However, it also states that any measures taken by States in relation to such substances may not be ‘less stringent’ than required under the 1961 Single Convention,[858] which requires States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[859] There is, therefore, an apparent conflict between contemporary indigenous rights standards and the UN drug control conventions that requires close attention.

  • 855. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).

  • 852. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24(1).

  • 853. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 1, 24(1).

  • 854. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 23, 24(1).

  • 856. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 857. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 858. ^

    See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 4(c), 49(2).

  • 859. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

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