All persons have the right to equality and freedom from discrimination. This means that all are equal before the law and are entitled to equal protection and benefit of the law, including the enjoyment of all human rights without discrimination on a range of grounds (such as health status, which includes drug dependence).
In accordance with this right, States shall:
i. Take all appropriate measures to prevent, identify, and remedy unjust discrimination in drug laws, policies, and practices on any prohibited grounds, including drug dependence.
ii. Provide equal and effective protection against such discrimination, ensuring that particularly marginalised or vulnerable groups can effectively exercise and realise their human rights.
To facilitate the above, States should:
iii. Monitor the impact of drug laws, policies, and practices on various communities – including on the basis of race, ethnicity, sexual orientation, gender identity, economic status, and involvement in sex work – and collect disaggregated data for this purpose.
International and regional human rights instruments protect the right to equality and non-discrimination.[11] International law prohibits direct and indirect discrimination on a number of grounds, including age, sex, race, ethnicity, nationality, language, religion or conviction, political or other opinion, economic position, property status, birth status, marital status, disability, sexual orientation, gender identity, and social status or ‘other status’, including health status.[12]
Under international human rights law, discrimination constitutes any distinction, exclusion, restriction, preference, or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of rights. Discrimination also includes harassment and incitement to discriminate.[13]
The World Health Organization recognises drug dependence as a chronic, relapsing medical condition – that is, a health status.[14] Consistent with this recognition, the law in some jurisdictions extends anti-discrimination protections either explicitly or as a result of judicial interpretation to include protection against discrimination based on drug dependence.[15] In such jurisdictions, if drug dependence is considered in law to fall within the definition of ‘a disability’, the Convention on the Rights of Persons with Disabilities adds further protection against discrimination on this basis.[16]
Drug dependence may intersect with other grounds upon which individuals face discrimination, such as age, sex, race, ethnicity, nationality, religion, sexual orientation, gender identity, disability, HIV or other health status, and economic status, including involvement in sex work.[17] Drug laws, policies, and practices may also unfairly discriminate against specific groups, whether directly or indirectly. International human rights law requires States to adopt and pursue policies to address intersecting forms of discrimination and their compounded negative impacts and to remove laws and policies that have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal basis with others, of human rights and fundamental freedoms.[18]
The Convention on the Rights of Persons with Disabilities defines discrimination on the basis of disability as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation’.[19]
The Committee on Economic, Social and Cultural Rights has raised particular concern about the discriminatory impact of drug control efforts on people living in poverty, ethnic minorities, and other marginalised persons and has called for all necessary measures to prevent this outcome.[20] The Committee on the Elimination of Racial Discrimination has likewise raised concern about the associated practice of racial profiling by police and its harmful impact on indigenous peoples, people of African descent, and other ethnic minorities, and about disproportionately high rates of incarceration among indigenous persons and people of African descent resulting in part from over-policing and racially biased sentencing associated with drug policies. It has called for measures to address the root causes of over-representation of these populations at all levels of the justice system, from arrest to incarceration, such as eliminating poverty, providing better social services, reexamining drug policies, preventing racially biased sentencing through the training of judges, and providing evidence-based alternatives to incarceration for non-violent people who use drugs.[21]
The Committee on Economic, Social and Cultural Rights has also raised concern that fear of stigmatisation and discrimination prevents people who use drugs from seeking lifesaving health care and treatment[22] and enjoying their right to health on an equal basis with the rest of the population.[23] The Committee has also expressed concern about the high rate of HIV among people who use drugs, noting that fear of stigma keeps many people from seeking antiretroviral treatment, event when it is provided free of charge.[24] The Committee has thus recommended that States take measures to combat such stigma and discrimination by, inter alia, training police, social workers, child protection officers, and medical professionals; sensitising the public to the right to health of people who use drugs; and making sure that these individuals receive adequate medical treatment.[25]
The Working Group of Experts on People of African Descent has raised concern about the discriminatory nature and application of laws related to drug offences on people of African descent, which in turn contributes to disproportionately high incarceration rates for this population. It has called for government action to redress this grave issue.[26] The Working Group has also noted that in many countries, racial profiling ‘has made people of African descent a targeted group in the so-called war on drugs’, and it has called for ‘an end to racism, racial discrimination, xenophobia, Afrophobia and related intolerance, including their manifestations in the adoption and implementation of international and national drug policies’.[27] The Special Rapporteur on minority issues has raised similar concern about the discriminatory application of criminal drug laws toward people of African descent, resulting in their over-representation in prison and lack of alternative options.[28] The Working Group on Arbitrary Detention has raised concern about the discriminatory targeting for arrest and detention of people of African descent, indigenous peoples, women, persons with disabilities, persons with AIDS, and lesbian, gay, bisexual, transgender, and intersex persons, and has encouraged States to take measures to prohibit these practices in their drug-control efforts.[29]
In addition, the Special Rapporteur on torture has emphasised the importance of ensuring non-discrimination and special protection for certain marginalised groups – such as people who use drugs – who face heightened vulnerability to abuse, neglect, and mistreatment. This is a critical component of the obligation to prevent torture and ill-treatment.[30]
Eliminating discrimination in practice sometimes requires States to adopt preferential measures to diminish or eliminate conditions that cause or perpetuate discrimination against groups who face discrimination on prohibited grounds.[31] As long as such action is needed to correct discrimination, it is considered prima facie legitimate.[32]
The Outcome Document of the 2016 United Nations General Assembly Special Session on the World Drug Problem (UN General Assembly Special Session 2016 Outcome Document) calls on States to ‘[e]nsure non-discriminatory access to health, care and social services in prevention, primary care and treatment programmes, including those offered to persons in prison or pretrial detention’.[33] Similarly, the Commission on Narcotic Drugs has encouraged UN Member States ‘to promote, among their relevant agencies and social service sectors, non-stigmatising attitudes in the development and implementation of scientific evidence-based policies related to the availability of, access to and delivery of health, care and social services for drug users’.[34]
See, e.g., Charter of the United Nations, 1 UNTS XVI (1945), art. 1(3); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 1, 7; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 2(1), 26; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(2); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), arts. 2, 3; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), arts. 3, 4, 5; International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 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. 1(1); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), arts. 2, 3, 19; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 14; Protocol No. 12 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177 (2000), art. 1; 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’); see also Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008); Committee on the Elimination of Racial Discrimination, General Recommendation No. 20: Non-Discriminatory Implementation of Rights and Freedoms, UN Doc. A/51/18 (1996); Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1989); Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009); Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007), principle 2; Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles (2017), additional state obligations relating to principle 2.
See, e.g., Charter of the United Nations, 1 UNTS XVI (1945), art. 1(3); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 2; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 2(1), 26; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(2); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5; Committee on the Elimination of Racial Discrimination, General Recommendation No. 20: Non-Discriminatory Implementation of Rights and Freedoms, UN Doc. A/51/18 (1996); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 1; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 2; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 14; Protocol No. 12 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177 (2000), art. 1; 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’); Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009), paras. 10, 28, 33, 35; Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1989), para. 6; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 19, 28, 33, 35; 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. 9; Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007), principle 2; Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles (2017), additional state obligations relating to principle 2.
See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009), para. 7.
World Health Organization, Neuroscience of Substance Use and Dependence (2004); see also UN Office on Drugs and Crime and World Health Organization, Principles of Drug Dependence Treatment (2008).
See, e.g., Marsden v. HREOC [2000] FCA 1619 (Australia); Australia, Social Security Act 1991, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011, table 6; Canada, Human Rights Act, R.S.C., 1985, c. H-6, sec. 25.
Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 5.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Kyrgyzstan, UN Doc. CEDAW/C/KGZ/CO/4 (2015), para. 38; see also 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; Report of the Independent Expert on Minority Issues, Gay McDougall, UN Doc. E/CN.4/2006/74 (2006), para. 28.
International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 1(1); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 1; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 2; Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1989), paras. 6, 7; Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009), paras. 7, 10; 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.
Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 2.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 54.
Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), paras. 15, 16(d).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), paras. 46.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Senegal, UN Doc. E/C.12/SEN/CO/3 (2019), para. 40.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 46; Committee on Economic, Social and Cultural Rights, Concluding Observations Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 53(b).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), para. 47; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 45(a); Committee on Economic, Social and Cultural Rights, Concluding Observations Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), para. 54(b); see also Global Commission on HIV and the Law, Risks, Rights and Health: Supplement (2018), p. 34, rec. 11.
Report of the Working Group of Experts on People of African Descent: Visit to the United States of America, UN Doc. A/HRC/33/61/Add.2 (2016), paras. 31, 62, 71, 74; Report of the Working Group of Experts on People of African Descent: Visit to the United States of America, UN Doc. A/HRC/15/18 (2010), paras. 52, 86.
United Nations, ‘UN Experts Call for Human Rights of People of African Descent to Be Central to Drug Policies’, 21 April 2016, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19852&LangID=E; see also United Nations, ‘Fight against World Drug Problem Must Address Unjust Impact on People of African Descent, Say UN Rights Experts’, 14 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24332&LangID=E.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), paras. 53–54.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 51–64.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/68/295 (2013), para. 67; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/HRC/13/39/Add.5 (2010), paras. 231, 257.
International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 2(2); 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 Racial Discrimination, UN Doc. CERD/C/GC/32 (2009), paras. 7, 11; Committee on the Elimination of Racial Discrimination, General Recommendation No. 34: Racial Discrimination against People of African Descent, UN Doc. CERD/C/GC/34 (2011), paras. 7; Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1989), para. 10; Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009), paras. 8, 9; 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), paras. 9, 18, 20, 37(d).
International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 1(4); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 4; 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 Racial Discrimination, UN Doc. CERD/C/GC/32 (2009), para. 8; Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1989), para. 10; Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20 (2009), para. 9; 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), paras. 9, 20.
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(b). For specific reference to the need for gender-sensitive service provision and related measures in accordance with standards under the Convention on the Elimination of All Forms of Discrimination against Women, see para. 4(g) of the Resolution.
Commission on Narcotic Drugs, Resolution 61/11: Promoting Non-stigmatizing attitudes to ensure the availability, access and delivery of healthcare and social services for drug users (2018).
