i. Nothing in the international drug control treaties may be interpreted as implying for any State, group, or person a right to engage in any activity or to perform any act aimed at or having the effect of violating any of the rights and freedoms guaranteed in international human rights instruments or limiting these rights to a greater extent than is specifically provided for in those instruments.
ii. Public health, safety, and order may be invoked as grounds for limiting certain rights, such as the freedom to manifest one’s religion or beliefs, the freedom of expression, the right to peaceful assembly, or the freedom of association, in order to deal with a serious threat to the health or safety of the population or its individual members.
iii. National security may be invoked to justify measures limiting certain rights only when such measures are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.
iv. Where a State seeks to limit a specific right in the pursuit of fulfilling a drug control obligation, such limitation must be consistent with established general interpretive principles relating to the requirements for lawful limitations on rights, which apply to only some human rights norms. These principles include the following:
a. Certain human rights protections cannot be limited at any time, for any reason. These include the right to life; the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment; freedom from slavery; the right not to be convicted of a criminal offence for acts that were not criminalised at the time they were carried out; and the right to freedom of thought, conscience, and religion.
b. Any limitation must be provided for by a national law of general application. Any such law must be clear and accessible to everyone. A limitation cannot be provided for retroactively.
c. The scope of the limitation shall not be interpreted so as to jeopardise the essence of the right concerned, and any limitation shall be interpreted strictly and in favour of the right at issue.
d. No limitation shall be applied in an arbitrary or unreasonable manner.
e. No limitation shall be discriminatory or applied in a manner that constitutes legally prohibited discrimination.
f. The limitation must meet the ‘necessity’ test established in international human rights law, which means that the measure responds to a pressing social need, pursues a legitimate aim, and is proportionate to that aim. This includes the requirement that the state use no more restrictive means than are required for achieving the purpose of the limitation.
g. The State always bears the burden of justifying a limitation on a human right that it is legally bound to respect.
h. Adequate safeguards and effective remedies shall be provided by law against the illegal or abusive imposition or application of limitations on human rights.
Not all human rights obligations enjoy the same level of protection or share the same character in law. Some rights are absolute and unrestricted in all circumstances, including times of war and public emergency, such as the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment. However, most human rights are not absolute in nature and may be legally limited or restricted by States in various ways and in various situations.913 Section V.2 of the Guidelines addresses the limitation of rights in the context of drug control and affirms the primacy of the normative legal tests that must be applied when considering whether a limitation or restriction is legal and legitimate.
Public health, safety, and order may be invoked as grounds for limiting certain rights – such as the right to liberty of movement and freedom to choose one’s residence; the freedom to manifest one’s religion or beliefs;914 freedom of expression;915 the right to peaceful assembly;916 and freedom of association917 – in order to deal with a serious threat to the health or safety of the population or its individual members.
National security may be invoked to justify measures limiting certain rights only when such measures are taken to protect the existence of the nation or its territorial integrity or political independence against force or the threat of force.918
In some cases, the legitimate limitations or restrictions on a right are codified within the treaty itself. Examples of this are found in article 19 of the International Covenant on Civil and Political Rights (freedom of expression) and article 5 of the European Convention on Human Rights (right to liberty and security). However, even in cases where the scope of legal restrictions are not specified within a treaty obligation, all limitations must meet specific tests in order to be considered justified and therefore legal. Section V(2) of the Guidelines affirms these established tests, as laid out by the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee, and the European Court of Human Rights, among other authorities.
In times of public emergency that ‘threaten the life of the nation and the existence of which is officially proclaimed’, States may take the more far-reaching measure of temporarily derogating from (suspending) certain human rights obligations. Such measures must be strictly limited to the extent required by the exigencies of the situation, non-discriminatory, and imposed only for the time required to combat the emergency.919
As with limitations, certain human rights protections cannot be derogated from. These include the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment; freedom from slavery; the right not to be convicted of a criminal offence for acts that were not criminalised at the time they were carried out; and the right to freedom of thought, conscience, and belief.
No State has ever used drug control as the basis for derogating from its international human rights obligations. It is unlikely that any situation regarding drugs could reach the level required for a State to derogate. The Guidelines in this section therefore focus on limitations.
Relationship to the UN drug control conventions
The conventions include provisions that, if implemented, necessarily require limitations on rights, including the criminalisation of personal possession (right to privacy) and the criminalisation of incitement (freedom of expression). In each case, such provisions include a clause stating that such interventions are subject to constitutional limitations, which engages national bills of rights and similar limitations tests as those provided under international human rights law.
See generally Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1984/4 (1984); see also International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 4(2); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 4; Human Rights Committee, General Comment No. 29: States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 13(b); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 28, 29.
See Guideline II.10.
See Guideline II.12.
See Guideline II.13.
See Guideline II.13.
Where such limited derogations are permissible, States must also comply with all the substantive and procedural requirements of the applicable derogation regime if provided for in the international or regional treaty in question. Not all treaties make such provision.
Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1984/4 (1984).