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IV. Implementation

2. Human rights review and budget analysis

States should:

i. Consider undertaking a transparent review of drug laws and policies to assess human rights compliance.

ii. Subject all proposed drug control legislation and policies to transparent human rights risk and impact assessments.

iii. Under take a budgetary review to ensure the progressive realisation of the right to health in relation to drug use and dependence.

iv. Carefully consider and justify any cuts in the allocation of resources for drug treatment, harm reduction, and other health services for people who use drugs where such cuts entail retrogressive measures.

Commentary:

The International Covenant on Economic, Social and Cultural Rights requires States Parties to take steps, individually and through international assistance and cooperation, to the maximum of their available resources, to progressively achieve the rights recognised in the Covenant.[877] This may require appropriate budgetary planning and the allocation of financial and economic resources for drug treatment, harm reduction, and other health and social services for people who use drugs. The Covenant also requires legislative reform in order to create a legal and policy environment conducive to the implementation of such services.[878]

There is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible. States have the burden of proving that any deliberately retrogressive measures taken have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State Party’s maximum available resources.[879] The adoption of retrogressive measures incompatible with core obligations under the right to health (e.g., the obligations to ensure the right to access health facilities, goods, and services on a non-discriminatory basis and to provide essential drugs, such as methadone and buprenorphine for drug dependence treatment and morphine for pain treatment) constitutes a violation of the right to health.[880]

The Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child have raised concerns about the negative impact of austerity measures on access to health in general and on marginalised and disadvantaged groups such as women and children.[881] The Committee on Economic, Social and Cultural Rights has noted with concern the lack of information on the impact of austerity measures on the enjoyment of economic, social, and cultural rights and has recommended that a review be undertaken regarding measures taken to respond to economic crises with a view to ensuring economic, social, and cultural rights and that human rights impact assessments be instituted in the policymaking process.[882] The Committee has also recommended that austerity measures be imposed only if they are temporary, necessary, and proportionate; are not discriminatory; and do not disproportionately affect the rights of disadvantaged and marginalised individuals and groups; further, they should ensure, at all times, the protection of the core content of economic, social, and cultural rights.[883] The Committee on the Elimination of Discrimination against Women has recommended that a study be conducted on the impact of austerity measures on women’s health[884] and adopt temporary special measures in legislation, budgetary measures, and social and health policies as a rapid response to some of the worst problems faced by women in the context of austerity measures.[885] The Committee on the Rights of the Child has recommended that the impact of financial restrictions in the area of health care be minimised and that that austerity measures in the area of health care be evaluated on the basis of a child rights impact assessment to ensure that such measures do not have a negative impact on children’s health and well-being.[886]

  • 877. ^

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

  • 878. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 33.

  • 879. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 32.

  • 880. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 48.

  • 881. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Italy, UN Doc. E/C.12/ITA/CO/5 (2015), para. 46; Committee on Economic, Social and Cultural Rights, Concluding Observations: Greece, UN Doc. E/C.12/GRC/CO/2 (2015), para. 7; Committee on Economic, Social and Cultural Rights, Concluding Observations: Portugal, UN Doc. E/C.12/PRT/CO/4 (2014), para. 6; Committee on the Elimination of Discrimination against Women, Concluding Observations: Barbados, UN Doc. CEDAW/C/BRB/5-8 (2015), para. 35; Committee on the Rights of the Child, Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/3-4 (2014), paras. 47, 57; Committee on Economic, Social and Cultural Rights, ‘Letter by the Chairperson of the Committee on Economic, Social and Cultural Rights to States Parties to the International Covenant on Economic, Social and Cultural Rights’, 16 May 2012.

  • 882. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Cyprus, UN Doc. E/C.12/CYP/CO/6 (2016), para. 12

  • 883. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Portugal, UN Doc. E/C.12/PRT/CO/4 (2014), para. 6; Committee on Economic, Social and Cultural Rights, Concluding Observations: Angola, UN Doc. E/C.12/AGO/CO/4-5 (2016), para. 8; Committee on Economic, Social and Cultural Rights, ‘Letter by the Chairperson of the Committee on Economic, Social and Cultural Rights to States Parties to the International Covenant on Economic, Social and Cultural Rights’, 16 May 2012.

  • 884. ^

    UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Austria, UN Doc. CEDAW/C/AUT/CO/7-8 (2013), para. 39

  • 885. ^

    UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Portugal, UN Doc. CEDAW/C/PRT/CO/8-9 (2015), para. 19.

  • 886. ^

    Committee on the Rights of the Child, Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/3-4 (2014), para. 48.

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