Universal human dignity is a fundamental principle of human rights. It is from the inherent dignity of the human person that our rights derive. No drug law, policy, or practice should have the effect of undermining or violating the dignity of any person or group of persons.
The Universal Declaration of Human Rights provides that ‘the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.[4] ‘Dignity lends real meaning to human rights, and as such is inherent in any right protected by international human rights law’. [5]
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]
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).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble, art. 3(5).
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).
International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999), art. 7.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(5).
Everyone has the right to enjoy the highest attainable standard of physical and mental health. This right applies equally in the context of drug laws, policies, and practices.
In accordance with this right, States should:
i. Take deliberate, concrete, and targeted steps to ensure that drug-related and other health care goods, services, and facilities are available on a non-discriminatory basis in sufficient quantity; financially and geographically accessible; acceptable in the sense of being respectful of medical ethics, cultural norms, age, gender, and the communities being served; and of good quality (that is, with a solid evidence base).
ii. Address the social and economic determinants that support or hinder positive health outcomes related to drug use, including stigma and discrimination of various kinds, such as against people who use drugs.
iii. Ensure that demand reduction measures implemented to prevent drug use are based on evidence and compliant with human rights.
iv. Repeal, amend, or discontinue laws, policies, and practices that inhibit access to controlled substances for medical purposes and to health goods, services, and facilities for the prevention of harmful drug use, harm reduction among those who use drugs, and drug dependence treatment.
In addition, States may:
v. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.
The right to the highest attainable standard of physical and mental health is recognised in numerous international instruments.[75] The UN General Assembly and Human Rights Council have consistently reaffirmed this right, and UN human rights treaty bodies have elaborated upon its content.[76] The Commission on Narcotic Drugs has repeatedly reaffirmed the importance of the right to health in the development and implementation of national and local drug policies and practices,[77] as it is closely related to the object and purpose of the UN drug conventions in furthering the ‘health and welfare of mankind’.[78] The UN General Assembly Special Session 2016 Outcome Document also highlights the importance of ensuring the right to health, dedicating a chapter on demand reduction and related measures (including harm reduction interventions) and another on ensuring access to controlled medicines.[79]
Access to health goods, services, and facilities under the right to health is measured by the ‘AAAQ framework’, a standard developed within the UN human rights system that refers to availability, accessibility (defined as non-discrimination, physical accessibility, economic accessibility, and information accessibility), acceptability (with regard to age, gender, culture, and human rights compliance—that is, services must be non-discriminatory and non-stigmatising), and quality.[80] The quality element of the right to health requires that health facilities, goods, and services be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel and scientifically approved and unexpired drugs and hospital equipment.[81] The International Narcotics Control Board, which is the body tasked with overseeing States’ implementation of the UN drug conventions, affirms that the AAAQ framework clarifies obligations relating to drug treatment and access to controlled medicines as outlined in the drug control treaties.[82]
Given its complex nature and budgetary implications, the right to health is subject to the principle of ‘progressive realisation’. That is, States must take various measures over time to achieve the full realisation of this right for all. There remain, however, core minimum obligations that must be guaranteed without delay.[83] These core obligations include, among others, providing essential medicines as defined by the World Health Organization (several of which are also internationally controlled substances)[84] and ensuring access on a non-discriminatory basis, especially for vulnerable and marginalised groups, to those health goods, services, and facilities that are available.
Underlying and social determinants of health
As the Committee on Economic, Social and Cultural Rights has stated, the right to health is an inclusive right extending not only to timely and appropriate health care but also to ‘a wide range of socio-economic factors that promote conditions in which people can lead a healthy life’.[85] In this way the right to health supports attention to the ‘social determinants of health’, which drives global health work and underpins Sustainable Development Goal 3. For example, the Committee on Economic, Social and Cultural Rights has raised concern about stigma and discrimination directed against people who use drugs, as these social factors impede access to health services protected under the right to health.[86]
The Commission on Narcotic Drugs has called on UN entities and Member States to take measures to address the negative effects that social stigma related to drug use has on the availability, access, and delivery of health care and social services for people who use drugs.[87] The UN General Assembly Special Session 2016 Outcome Document likewise calls on States to ‘prevent social marginalization and promote non-stigmatising attitudes’ towards people who use drugs in an effort to facilitate access to treatment and care.[88]
The right to health further includes the right to certain services, goods, and commodities that are outside of health care but are nonetheless essential for health. These elements, referred to as the ‘underlying determinants of health’, include ‘food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment’.[89] Each is linked to related human rights (e.g., the right to adequate housing) and is also subject to the AAAQ framework and progressive realisation.
Legal determinants: Criminalisation and health
Legal frameworks can hinder or support health outcomes, and there is therefore increasing attention to the ‘legal determinants of health’.[90] In this context, the criminalisation of drug use and possession for personal use affects the realisation of the right to health.[91] The criminalisation of drug use and possession for personal use, as well as related law enforcement practices, can lead people who use drugs to be displaced from areas served by harm reduction programmes, thereby impeding their access to sterile syringes, opioid agonist therapy, and outreach workers. Such criminalisation can also increase risky behaviours – including the sharing of needles and syringes, hurried injecting, and the use of drugs in unsafe places – that are associated with HIV, viral hepatitis, and premature death due to overdose.[92] The stigma created or reinforced through punitive enforcement and treatment regimes (including targeted abuse and violence towards people who use drugs) and policing practices that include the use of excessive force may also increase the risk of physical and mental illness for people who use drugs.[93]
In addition, once a person has a conviction for a drug-related offence, they may face considerable obstacles in obtaining employment and may lose access to government benefits, such as basic income assistance, student loans, public housing, and food assistance, or may face difficulties travelling abroad. The Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the right to health, the Working Group on Arbitrary Detention, and the Office of the UN High Commissioner for Human Rights have recommended the decriminalisation of drug use and possession for personal use as an important step towards fulfilling the right to health.[94] The UN system common position on drug control policy, adopted in November 2018, commits to ‘stepping up our joint efforts and supporting each other … [t]o promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use’.[95] Twelve UN agencies have committed to supporting States in reviewing and repealing laws criminalising drug use and the possession of drugs for personal use, on the basis that they have been proven to have negative health outcomes and that they counter public health evidence.[96] In 2014, as part of its recommendations to increase HIV prevention, testing, and treatment for people who use drugs, the World Health Organization recommended that countries work towards the decriminalisation of drug use as a strategy to reduce incarceration and support access to HIV-related services for people who use drugs.[97]
The International Narcotics Control Board has raised concern that many State policies ‘to address drug-related criminality, including personal use, have continued to be rooted primarily in punitive criminal justice responses, which include prosecution and incarceration and as part of which alternative measures such as treatment, rehabilitation and social integration remain underutilized’.[98] At the same time, many States have come to see drug use and dependence as a public health issue requiring health-centred, not punitive, responses.[99] This is consistent with States’ obligations under the drug conventions, which require them to establish certain behaviours as punishable, subject to the constitutional principles of the State and the principle of proportionality.[100] The conventions thus do not oblige States to adopt a punitive response or to incarcerate those who commit minor drug-related offences, including possession of small quantities of drugs for personal use.[101]
The UN General Assembly Special Session 2016 Outcome Document also encourages States to provide ‘alternative or additional measures with regard to conviction or punishment’, mentioning the UN Standard Minimum Rules for Non-custodial Measures (also known as the Tokyo Rules), as a relevant standard to follow.[102]
Relationship to the UN drug control conventions
Under the UN drug control conventions, States have an obligation to undertake demand reduction measures, which are measures aimed at the prevention of illicit drug use.[103] The drug control conventions do not prohibit harm reduction interventions – that is, policies, programmes, and practices aiming to minimise negative health, social, and legal impacts associated with drug use, drug policies, and drug laws.[104] Indeed, such interventions are consistent with the conventions’ stated objective of protecting the health and welfare of mankind.
The UN drug control conventions grant some flexibility with respect to how States treat the possession and use of controlled substances in law, policy, and practice. To a limited degree, and subject to important caveats, these conventions require States Parties to adopt measures to criminalise the possession of controlled substances other than for medical or scientific purposes.[105] However, the conventions also note the importance of measures to protect the health of people who use drugs, requiring governments to ‘take all practicable measures’ to provide ‘treatment, education, after-care, rehabilitation and social reintegration’ of people who use drugs.[106] States may provide measures for treatment, education, rehabilitation, after-care, and social reintegration as alternatives to conviction or punishment for the possession, purchase, or cultivation of drugs for personal use and in ‘appropriate cases of a minor nature’.[107] This flexibility is reflected in the UN General Assembly Special Session 2016 Outcome Document.[108] Therefore, even if such behaviours are considered illegal, they need not be subject to criminal or administrative punishment.
The UN drug conventions also contain sufficient flexibility to decriminalise possession and other activities related to the personal consumption of controlled substances, even if not for medical or scientific purposes. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires only that each State Party establish criminal liability for the intentional ‘possession, purchase or cultivation of drugs for personal consumption’ that is ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’ (e.g., for non-medical or non-scientific use).[109] Furthermore, this obligation is subject to any ‘constitutional limitations’ of the State Party[110] and to the ‘constitutional principles and basic concepts of [the State Party’s] legal system’.[111] States therefore have the latitude to determine whether imposing criminal liability or sanctions for possession, purchase, or cultivation for personal consumption contravenes constitutional provisions – such as the right to privacy or the right to health – or otherwise offends against the basic concepts of their legal system, including basic concepts of criminal law.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 12; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 12; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 25; European Social Charter (Revised), ETS No. 163 (1996), art. 11; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 10; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 16; Arab Charter on Human Rights (2004), art. 39(1); see also Arab Charter on Human Rights (2004), art. 39(g)(2) (steps necessary to fulfil obligations under the right to health include ‘[f]ight against tobacco, drugs, and psychotropic substances’); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 25.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); 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); 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); Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/4 (2003); 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); 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).
See, e.g., Commission on Narcotic Drugs, Resolution 57/7: Providing Sufficient Health Services to Individuals Affected by Substance Use Disorders During Long-Term and Sustained Economic Downturns (2014); Commission on Narcotic Drugs, Resolution 55/5: Promoting Strategies and Measures Addressing Specific Needs of Women in the Context of Comprehensive and Integrated Drug Demand Reduction Programmes and Strategies (2012).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), preamble.
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), chs. 1, 2.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 13(d).
International Narcotics Control Board, Annual Report 2017 (2018).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 43, 44.
World Health Organization, WHO Model List of Essential Medicines, 20th ed. (2017); World Health Organization, WHO Model List of Essential Medicines for Children, 6th ed. (2017); Schedules of the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, as of 16 May 2018.
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 4.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Bulgaria, UN Doc. E/C.12/BGR/CO/6 (2019), paras. 46, 47; Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/5 (2019), paras. 53, 54.
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).
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(j).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 4.
L.O. Gostin, J. T. Monahan, J. Kaldor, et al., ‘The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development’, Lancet, vol. 393, issue 10183 (2019), pp. 1857–1910.
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), paras. 30, 50; see also 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), paras. 14–16.
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. 16, 26–27.
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. 24.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Benin, UN Doc. E/C.12/BEN/CO/3 (2020), para. 43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Ukraine, UN Doc. E/C.12/UKR/CO/7 (2020), para. 43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc. E/C.12/PHL/CO/5-6 (2016), para. 54; 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: Norway, UN Doc. E/C.12/NOR/CO/6 (2020), para. 42; 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. 6, 18, 49, 62; 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. 61; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 122; Report of the Working Group on Arbitrary Detention: Visit to Bhutan, UN Doc. A/HRC/42/39/Add.1 (2019), para. 72.
United Nations System Chief Executives Board for Coordination, Summary of Deliberations, UN Doc. CEB/2018/2 (2019), annex 1.
Joint United Nations Programme on HIV/AIDS, United Nations High Commissioner for Refugees, UNICEF, et al., Joint United Nations Statement on Ending Discrimination in Health Care Settings (2018).
World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017), pp. 5, 32, 38, 87; see also Global Commission on HIV and the Law, Risks, Rights and Health (2012), rec. 3.1.4.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2; see also ibid., para. 8.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 3.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 6.
International Narcotics Control Board, State Responses to Drug-Related Criminality (2019), para. 2.
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(j); see UN General Assembly, Resolution 45/110: United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), UN Doc. A/RES/45/110 (1990).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(4).
UN Office on Drugs and Crime, Flexibility of Treaty Provisions as Regards Harm Reduction Approaches, UN Doc. E/INCB/2002/W.13/SS.5 (2002).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36; Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 38(1); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 20(1).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(b); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(b); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(4)(c, d).
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(j).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 36(1)(a); Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 22(1)(a).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).
Human rights and environmental protection are interdependent. States should ensure a safe, clean, healthy, and sustainable environment to respect, protect, and fulfil human rights, including the rights to health and to an adequate standard of living. This applies to those who live and work in and near communities where the cultivation of illicit drug crops takes place. State obligations to protect against environmental health hazards also apply extraterritorially.
In accordance with efforts to respect, protect, and fulfil human rights related to a healthy environment, States should:
i. Ensure that drug control measures do not cause deforestation, the degradation of natural habitats, the loss of biodiversity, or other environmental harm either within or outside their geographic borders.
ii. Take effective steps to prevent and redress environmental harms caused by drug control measures on illicit crop cultivation and production, including steps to limit exposure to pesticides or other chemicals used to eradicate such crops.
iii. Establish and enforce buffer zones prohibiting or regulating the application of pesticides and other chemicals used for drug crop eradication around sensitive sites, including human settlements, farms, and water sources.
iv. Prohibit the aerial spraying of pesticides, herbicides, and other chemicals as a method to prevent and eradicate illicit drug crops absent proof that such chemicals pose no risk to human life or the environment.
v. Require comprehensive environmental impact assessments to be carried out with the participation of affected populations in order to assess the expected impact of drug control measures on the environment and to determine the extent to which planned activities can be modified. These studies should be completed prior to the commencement of drug control measures.
vi. Monitor the implementation of drug control activities. In the event of environmental and related harm arising from such activities, develop and implement adequate and effective remediation measures in consultation with affected populations.
The obligation to adopt measures to protect against and remedy environmental hazards such as polluted air,[223] water, and soil is part of States’ obligations to protect people’s right to life,[224] health,[225] food,[226] and water,[227] and children’s rights to health[228] and to an adequate standard of living.[229] These obligations apply extraterritorially.[230] In keeping with human rights obligations, States should ensure that the design and implementation of remediation measures are carried out in consultation with those whose rights related to a healthy environment have been violated, and they should make concerted efforts to ensure the meaningful participation of women and minority groups in these consultations.[231]
The right to a healthy environment is recognised in regional treaties and in the constitutions and legislation of more than 150 governments.[232]
UN human rights mechanisms have raised concerns that exposure to pesticides and other chemicals used for crop eradication – in particular via aerial spraying – can have serious negative impacts on the enjoyment of the right to health of adults, children, and indigenous peoples.[233] The Committee on Economic, Social and Cultural Rights has expressed deep concern about the use of pesticides and herbicides that contain glyphosate, which the World Health Organization’s International Agency for Research on Cancer has identified as a probable carcinogen because of its serious adverse effects on human health.[234] The Committee has recommended the suspension of such aerial spraying and the provision of alternative development programmes instead, ‘including the possibility of participating in the medical cannabis market through a licensing programme for small-scale community farmers’.[235] The Committee has also recommended the adoption of a regulatory framework that includes the application of the precautionary principle regarding the use of harmful pesticides and herbicides, in particular those with glyphosate, to avoid the negative health impacts and environmental degradation that can result from their use.[236]
Based on its concerns about aerial spraying, the Special Rapporteur on the rights of indigenous peoples recommends that no aerial spraying of illicit crops take place near indigenous settlements or sources of provisions unless the relevant indigenous communities have expressly requested such spraying and are fully informed of the implications.[237] The Special Rapporteur also recommends that aerial spraying affecting a population across a national border be definitively halted and that compensation be provided for any damages caused by such spraying.[238] Meanwhile, the Special Rapporteur on the right to food has expressed concern about the detrimental consequences of the use of pesticides on the rights to food, health, and biodiversity and has called on States to create buffer zones around plantations and farms.[239] The Special Rapporteur recommends that States use the precautionary principle as the basis for their risk assessment and registration processes for pesticides, taking into account these chemicals’ hazardous effects on human health and the environment, and recommends that States consider non-chemical alternatives first, allowing the registration of chemicals only where need can be demonstrated.[240]
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires States Parties to ‘take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances’. However, these measures must ‘respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use, as well as protection of the environment’.[241] The UN General Assembly Special Session 2016 Outcome Document reiterates this obligation,[242] also recommending the use of ‘criteria related to environmental sustainability’ in measuring the effectiveness of alternative development programmes.[243]
See Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, David. R. Boyd, UN Doc. A/HRC/40/55 (2019) (right to breathe clean air as a component of right to a healthy environment).
See Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, David. R. Boyd, UN Doc. A/HRC/40/55 (2019), paras. 14, 52.
See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 4, 11, 15, 36, 37, 51.
Committee on Economic, Social and Cultural Rights, General Comment No. 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5 (1999), paras. 4, 10; Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11 (2003), paras. 6, 8 10, 12.
Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11 (2003), paras. 6, 8 10, 12.
Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 72; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/4-5 (2015), paras. 49–50.
Committee on the Rights of the Child, Concluding Observations: Cameroon, UN Doc. CRC/C/CMR/CO/2 (2010), paras. 63–64; Committee on the Rights of the Child, Concluding Observations: Democratic Republic of Congo (2009), paras. 63–64; Committee on the Rights of the Child, Concluding Observations: Brazil, UN Doc. CRC/C/BRA/CO/2-4 (2015), para. 79(b).
Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principle 13.
Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, UN Doc. E/CN.4/2005/102/Add.1 (2005), principle 32; Committee on the Elimination of Racial Discrimination, Concluding Observations: Rwanda, UN Doc. CERD/C/RWA/CO/13-17 (2011), para. 17.
African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 24; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, OAU Doc. CAB/LEG/66.6 (2003), arts. 18, 19; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 11(1) (‘everyone shall have the right to live in a healthy environment’); Arab Charter on Human Rights (2004), art. 38; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (1998), art. 1; Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox, UN Doc. A/73/188 (2018), paras. 29–36; see also See Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, David R. Boyd, UN Doc. A/HRC/40/55 (2019), para. 16; ASEAN Human Rights Declaration, 21st ASEAN Summit, Phnom Penh, 18 November 2012, para. 28(f); Inter-American Court of Human Rights, Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgement of 15 June 2005, Series C No. 124, paras. 209–218; African Commission on Human and Peoples’ Rights, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Communication No. 155/96 (2001), para. 52.
Committee on Economic, Social and Cultural Rights, Concluding Observations: South Africa, E/C.12/ZAF/CO/1, paras. 68–69 (2018); Committee on Economic, Social and Cultural Rights, Concluding Observations: Colombia, E/C.12/COL/CO/5, para. 28 (2010); Paul Hunt, oral remarks, 21 September 2007, Bogotá, Colombia; 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, 32; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 72; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, Preliminary Note on the Mission to Ecuador and Colombia, Addendum, UN Doc. A/HRC/7/11/Add.3 (2007), paras. 17, 20; Office of the UN High Commissioner for Human Rights, ‘U.N. Special Rapporteur on the Right to the Highest Attainable Standard of Health, Paul Hunt, Ends Visit to Ecuador’, 18 May 2007, https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=2304&LangID=E.
Committee on Economic, Social and Cultural Rights, Concluding Observations: South Africa, UN Doc. E/C.12/ZAF/CO/1 (2018), paras. 68; Committee on Economic, Social and Cultural Rights, Concluding Observations: Argentina, UN Doc. E/C.12/ARG/CO/4 (2018), para. 68.
Committee on Economic, Social and Cultural Rights, Concluding Observations: South Africa, UN Doc. E/C.12/ZAF/CO/1 (2018), paras. 69.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Argentina, UN Doc. E/C.12/ARG/CO/4 (2018), para. 69.
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. 106; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Mr. James Anaya: The Situation of Indigenous Peoples in Colombia; Follow-Up to the Recommendations Made by the Previous Special Rapporteur, UN Doc. A/HRC/15/37/Add.3 (2010), paras. 43, 77; see also Sentencia SU-383/2003, Corte Constitucional (Colombia), 13 May 2003.
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. 85–86; see also Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principles 13, 37–38.
Report of the Special Rapporteur on the Right to Food, Hilal Elver, UN Doc. A/HRC/34/48 (2017), para. 107(i).
Report of the Special Rapporteur on the Right to Food, Hilal Elver, UN Doc. A/HRC/34/48 (2017), para. 107(c).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).
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(i).
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(g).
Everyone has the right to social security, including social insurance. This right applies equally to all without discrimination, including people who use drugs, people dependent on illicit drug economies, people in prisons and other places of detention or closed settings, and people who have been arrested for, charged with, or convicted of drug-related offences.
In accordance with this right, States should:
i. Take steps, to the maximum of available resources, to establish and progressively expand comprehensive social security systems that equally guarantee legal entitlements – including universal access to health care, housing, education, and basic income security – to the aforementioned individuals and groups, while also ensuring that particularly marginalised or vulnerable groups can effectively exercise and realise these human rights on an equal basis with others.
ii. Prevent and remedy the denial of social assistance to persons on the basis of drug dependence, which is impermissible discrimination.
iii. If in a position to assist other States, facilitate the realisation of the right to social security and related entitlements, including through the provision of economic and technical assistance.
The right to social security, including social insurance, is enshrined in numerous international and regional treaties.[291] It includes the right not to be subject to arbitrary and unreasonable restrictions of existing social security coverage and the right to equal enjoyment of adequate protection from social risks and contingencies.[292]
Recognising the importance of social security in preventing and reducing poverty and social exclusion, the Committee on Economic, Social and Cultural Rights emphasises States’ obligations to ensure that social security systems cover everybody, but especially ‘those individuals and groups who traditionally face difficulties in exercising this right, in particular women, the unemployed … minority groups … prisoners and detainees’.[293] Numerous human rights mechanisms, including the Human Rights Council, the Committee on Economic, Social and Cultural Rights, and the Special Rapporteur on extreme poverty and human rights, recommend the establishment of social protection floors comprising a set of basic social security guarantees in cash and in kind, in line with a previous recommendation of the International Labour Organization.[294] The implementation of nationally appropriate social protection systems and measures for all, including floors, is also among the targets of the Sustainable Development Goals.[295]
In some jurisdictions, identification as a person who uses drugs or who has been in detention or holds a conviction for a drug-related offence poses considerable obstacles to obtaining social security and other government benefits.[296] However, as the Committee on Economic, Social and Cultural Rights has explained, the right to social security requires that qualifying conditions for benefits be reasonable, proportionate, and transparent and that the withdrawal, reduction, or suspension of benefits be circumscribed, based on reasonable grounds, subject to due process and provided for in national law.[297] The Committee has expressed concern that conditioning welfare benefits on drug testing is neither reasonable nor proportionate, lacks a credible evidence base, may deepen stigma, and may drive people who use drugs away from treatment.[298] The Special Rapporteur on extreme poverty and human rights has affirmed that conditioning welfare benefits on drug testing is neither reasonable nor proportionate.[299]
The Working Group of Experts on People of African Descent has raised concern about racial bias in the application of criminal justice policies enacted as part of drug control efforts, resulting in longer prison sentences and higher conviction rates, and the deep collateral damage on people of African descent. People with low-level, non-violent criminal records can be denied access to social housing, safety net programmes, and welfare assistance. Those with felony drug records are fully or partially excluded from food assistance in some jurisdictions.[300]
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 22, 25(1); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 9; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), arts. 11(1)(e), 14(2)(c); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 26; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 28; International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5(e)(iv); American Declaration of the Rights and Duties of Man (1948), art. 16; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 9; European Social Charter (Revised), ETS No. 163 (1996), arts. 12, 13, 14; Arab Charter on Human Rights (2004), art. 36; see also International Labour Conference, Report of the Committee on Social Security, Resolutions and Conclusions concerning Social Security (2001); Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008); UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007).
Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 9.
Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 31.
International Labour Organization, Social Protection Floors Recommendation, No. 202 (2012); Committee on Economic, Social and Cultural Rights, Statement on Social Protection Floors: An Essential Element of the Right to Social Security and of the Sustainable Development Goals, UN Doc. E/C.12/54/3 (2015), paras. 1, 2; Report of the Special Rapporteur on Extreme Poverty and Human Rights Philip Alston on the Implementation of the Right to Social Protection through the Adoption of Social Protection Floors, UN Doc. A/69/297 (2014); Human Rights Council, Guiding Principles on Extreme Poverty and Human Rights, UN Doc. A/HRC/21/L.20 (2012), para. 86(b); United Nations, ‘Statement by 17 Special Procedures mandate-holders of the Human Rights Council on the Post-2015 Development Agenda, grounding development priorities in human rights’, 10 December 2017, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22515&LangID=E.
Sustainable Development Goal 1.3 and indicator 1.3.1; see also UN Development Programme, Beyond Recovery: Towards 2030 (2020).
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. 50.
Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 24.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, UN Doc. C.12/AUS/CO/5 (2017), para. 43.
Communication from Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, Reference No. OL AUS 17/10/2017 (2017).
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. 33, 71, 74.
Everyone has the right to an adequate standard of living, including the right to adequate food, clothing, and housing. This right is equally shared by people who use drugs and people who are dependent on illicit drug economies.
In accordance with this right, States should:
i. Develop specific viable and sustainable economic alternatives for individuals and communities who are particularly vulnerable to exploitation in the illicit drug economy.
ii. Ensure that efforts to prevent illicit drug crop cultivation or eradicate illicitly cultivated drug crops do not have the effect of depriving people of their rights to a means of subsistence or to be free from hunger; ensure that interventions are properly sequenced so that crop eradication does not take place until small-farmer households dependent on illicit drug crop economies have adopted viable and sustainable alternative livelihoods; and undertake associated actions to promote land tenure through state-recognised land titling procedures.
iii. Review laws, policies, and practices on land and housing to ensure the existence of adequate safeguards protecting against discriminatory eviction based on actual or suspected illicit drug use and providing access to timely recourse and commensurate reparation for victims of such eviction.
International and regional human rights law guarantees the right to an adequate standard of living.[261] This right includes related rights to available, accessible, and adequate food, clothing, and housing, and the continuous improvement of living conditions.[262] It also includes the right to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses, such as drinking, sanitation, bathing, washing clothes, and cooking.[263]
In practice, without appropriate safeguards, certain drug control measures may infringe these rights, leaving people at risk of poverty, hunger, and landlessness or homelessness. Particular risks to the right to an adequate standard of living are posed by crop eradication measures, aid conditionality, and land tenure and eviction laws, policies, and practices.
Crop eradication measures
Many small-scale farmers in drug-producing countries illicitly cultivate crops because of poverty, marginalisation, and a lack of viable alternatives. UN human rights treaty bodies have raised concerns that aerial spraying to eradicate drug crops exacerbates these problems, causing displacement, food insecurity, adverse health effects, and the denial of livelihoods.[264]
Illicit crop eradication measures pose specific risks to the right to food and the right to water. According to the Committee on Economic, Social and Cultural Rights, the standard as applied to the right to water requires that water be safe, meaning that it must be free from microbes, parasites, chemical substances, and radiological hazards that constitute a threat to human health.[265] Moreover, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Special Rapporteur on the right to health, and the Special Rapporteur on the rights of indigenous peoples have all raised concerns about the adverse effects of aerial spraying to eradicate drug crops on the rights to water and to food security, particularly for indigenous peoples and other rural communities.[266] The Committee on the Rights of the Child recommends that States carry out independent, rights-based environmental and social impact assessments of such spraying, including prior consultation with affected communities (particularly indigenous ones), and take all precautions to avoid harmful impacts on the health of children.[267]
The Committee on Economic, Social and Cultural Rights has recommended that States ensure that crop substitution programmes offer ‘alternative productive activities that guarantee the peasant farmers concerned and their families an adequate standard of living, ensuring their effective participation in both the design and the conduct of those activities, as well as real opportunities to market their produce’.[268] To this end, the Committee has recommended that alternative development programmes offered include ‘the possibility of participating in the medical cannabis market through a licensing programme for small-scale community farmers’.[269]
The Committee has also raised concern about the risk of death or serious injury by anti-personnel mines or in clashes with illegal armed groups faced by peasants participating in the manual eradication of crops and government failure to take effective measures to reduce risks associated with crop eradiation. It has recommended that greater efforts be made to ensure safe working conditions, in accordance with international standards, for everyone, especially civilians, involved in manual crop eradication; that necessary measures be taken to promote the creation of jobs offering decent working conditions; and that measures be taken to provide remedies and compensation to peasant farmers and their families who have been harmed while performing this work.[270]
The UN system common position on drug control policy, adopted in November 2018, commits to ‘stepping up our joint efforts and supporting each other … [t]o promote sustainable livelihoods through adequately-sequenced, well-funded and long-term development-oriented drug policies in rural and urban areas affected by illicit drug activities, including cultivation, production and trafficking, bearing in mind environmental protection and sustainability’.[271]
UN entities with responsibilities in drug control matters, including the Commission on Narcotic Drugs, the UN Office on Drugs and Crime, and the UN General Assembly, have recognised poverty, marginalisation, and a lack of viable alternatives as root causes of illicit drug crop cultivation and have repeatedly reaffirmed their commitment to addressing them, including by tackling poverty and creating sustainable livelihood opportunities.[272]
Accordingly, the UN Guiding Principles on Alternative Development, adopted by the UN General Assembly in 2014, call on States, development agencies, donors, international financial institutions, and international and regional organisations to ‘apply their utmost efforts … [t]o ensure, when considering crop control measures, that small-farmer households have opportunities for viable and sustainable licit livelihoods’ and ‘that [such] measures may be properly sequenced in a sustainable fashion and appropriately coordinated, taking into account the circumstances of the region, country or area concerned’.[273]
In relation to the broader right to continuous improvement of living conditions associated with the right to an adequate standard of living in areas dependent on illicit drug crop cultivation, where crop eradication and alternative livelihood measures may consequently apply, the UN General Assembly Special Session 2016 Outcome Document encourages States to improve ‘infrastructure and basic public services’ in areas ‘affected by or at risk of illicit cultivation and other related activities’.[274]
Aid conditionality
The Intergovernmental Expert Working Group on International Cooperation on the Eradication of Illicit Drug Crops and on Alternative Development, convened by the Commission on Narcotic Drugs, recommends that donor countries ‘not make development assistance conditional on reductions in illicit drug crop cultivation’ and that UN Member States ‘ensure that eradication is not undertaken until small-farmer households have adopted viable and sustainable livelihoods and that interventions are properly sequenced’.[275] The UN Office on Drugs and Crime, the World Bank, and the European Union have adopted similar positions respectful of the right to an adequate standard of living.[276]
Land tenure
The UN General Assembly Special Session 2016 Outcome Document encourages ‘the development of viable economic alternatives, particularly for communities affected by or at risk of illicit cultivation of drug crops and other illicit drug-related activities in urban and rural areas … including through job opportunities’.[277] In rural contexts, this may necessitate improved ‘access and legal titles to land for farmers and local communities’,[278] while also ensuring that any related land tenure reforms give women equal rights to access, own, and control land and other forms of property,[279] in keeping with the right to an adequate standard of living, including the right to the continuous improvement of living conditions. The Sustainable Development Goals also include State commitments to ensure that all men and women have secure tenure rights to land and commitments to undertake reforms to provide women equal rights to economic resources, and to access to ownership and control over agricultural land and other forms of property, as part of their efforts to eradicate poverty and achieve gender equality.[280]
Evictions
The Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, has raised concern about laws subjecting applicants for subsidised public housing to denial, and tenants to eviction, based on ‘drug-related activity’ and has called for States to prohibit the use of criteria such as drug tests and criminal records for gaining access to public housing.[281] The Special Rapporteur has highlighted their discriminatory nature on public housing residents, their negative, fragmenting effect on families, and their negative impact on domestic violence victims, who are subject to eviction if they report abuse, as the laws do not take into account whether tenants are crime victims or perpetrators.[282]
In relation to the right to housing as part of the right to an adequate standard of living, the Committee on Economic, Social and Cultural Rights has noted that non-discrimination provisions impose an additional obligation upon governments to ensure that evictions, where they do occur, do not involve discrimination.[283] Such additional non-discrimination obligations may become relevant particularly where evictions are not based on reasons that may be considered ‘justifiable’ under the right to housing – such as ‘persistent non-payment of rent’ or ‘damage to rented property without any reasonable cause’[284] – but rather based on a tenant’s actual or suspected illicit drug use or criminal record for drug use or possession for personal use. Special attention is needed to prevent the disproportionate impact of evictions on marginalised or otherwise vulnerable individuals and groups in this regard, including ‘women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups’, recognising also that ‘[w]omen in all groups are especially vulnerable given the extent of statutory and other forms of discrimination which often apply in relation to property rights … or rights of access to property or accommodation …’.[285]
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’,[286] while also respecting ‘fundamental human rights’ and taking ‘full account of traditional licit uses, where there is historic evidence of such use, as well as the protection of the environment’.[287] In a different context, the obligation to take ‘appropriate measures’ is explained as follows: ‘i.e. [States Parties] are bound to take such measures as may be necessary, but only to the extent that they appear to be practical and can reasonably be expected of them under their special conditions’.[288] However, as established by the text of the clause itself, such ‘necessary’, ‘practical’, and ‘reasonable’ cultivation prevention and eradication measures will be ‘appropriate’ only if they also comply with ‘fundamental human rights’ standards, which would include those related to the right to an adequate standard of living.
Also under the 1988 Convention, cooperation efforts may include ‘support for integrated rural development leading to economically viable alternatives to illicit cultivation’.[289] The Commentary on the 1988 Convention explains that this proviso ‘creates no legal obligation on parties, but draws attention to the need, in some countries and regions, for programmes of integrated rural development designed, in effect, to rebuild a local economy hitherto partly or entirely based on illicit cultivation’.[290] This permissive clause provides legal latitude for States to consider alternative policy options that are consistent with human rights obligations related to the right to an adequate standard of living.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 11(1); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 25; European Social Charter (Revised), ETS No. 163 (1996), arts. 16, 30, 31; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 26; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 22; Arab Charter on Human Rights (2004), art. 38.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 11(1); Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing, UN Doc. E/1992/23 (1991); Committee on Economic, Social and Cultural Rights, General Comment No. 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5 (1999).
Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11 (2003); UN General Assembly, Resolution 64/292: The Human Right to Water and Sanitation, UN Doc. A/RES/64/292 (2010); Human Rights Council, Resolution 18/1: The Human Right to Safe Drinking Water and Sanitation, UN Doc. A/HRC/Res/18/1 (2007); Banjul Declaration of the 59th Ordinary Session of the African Commission on Human and Peoples’ Rights under the Theme ‘Women’s Rights: Our Collective Responsibility’, 21st Extraordinary Session of the African Commission on Human and Peoples’ Rights, 23 February–4 March 2017, part two (E), para. 39; see also African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), art. 14(2)(c).
Committee on Economic, Social and Cultural Rights, Concluding Observations: Colombia, UN Doc. E/C.12/COL/CO/5 (2010), para. 28; Committee on Economic, Social and Cultural Rights, Concluding Observations: Colombia, UN Doc. E/C.12/4/Add.6 (2001), para. 760.
Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11 (2003), para. 12(b).
Paul Hunt, oral remarks, 21 September 2007, Bogotá, Colombia; 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; 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. 28–30; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 72; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, Preliminary Note on the Mission to Ecuador and Colombia, Addendum, UN Doc. A/HRC/7/11/Add.3 (2007), paras. 17, 20.
Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 73.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Colombia, UN Doc. E/C.12/COL/CO/6 (2017), para. 54.
Committee on Economic, Social and Cultural Rights, Concluding Observations: South Africa, UN Doc. E/C.12/ZAF/CO/1 (2018), para. 69.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Colombia, UN Doc. E/C.12/COL/CO/6 (2017), paras. 36–37.
United Nations System Chief Executives Board for Coordination, Summary of Deliberations, UN Doc. CEB/2018/2 (2019), annex 1.
UN General Assembly, Resolution 68/196: United Nations Guiding Principles on Alternative Development, UN Doc. A/RES/68/196 (2014), paras. 10, 16, 18 (a, c, p); 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; UN Office on Drugs and Crime, World Drug Report 2015 (2015), pp. 77–81; Economic and Social Council, Resolution 2017/20: Promoting the Implementation of the United Nations Guiding Principles on Alternative Development and Related Commitments on Alternative Development and Regional, Interregional and International Cooperation on Development-Oriented, Balanced Drug Control Policy Addressing Socioeconomic Issues, UN Doc. E/RES/2017/20 (2017), paras. 4, 5, 11, 25–26, 29.
UN General Assembly, Resolution 68/196: United Nations Guiding Principles on Alternative Development, UN Doc. A/RES/68/196 (2014), para. 18(k).
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).
Results Attained by Member States in Achieving the Goals and Targets Set at the Twentieth Special Session of the General Assembly, the Limitations and Problems Encountered and the Way Forward: International Cooperation on the Eradication of Illicit Drug Crops and on Alternative Development, Note by the Secretariat, UN Doc. UNODC/CND/2008/WG.3/2 (2008), para. 23(e), (f).
UN Office on Drugs and Crime, Alternative Development: A Global Thematic Evaluation, Final Synthesis Report (2005), pp. vii, 16; World Bank, Afghanistan: State Building, Sustaining Growth, and Reducing Poverty (2005); Council of the European Union, Horizontal Working Party on Drugs, The EU Approach on Alternative Development, 9597/06 (2006), p. 4.
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(k).
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(k).
See Sustainable Development Goals 1.4 and 5.A, and indicators 1.4.2, 5.A.1.
Sustainable Development Goals 1.4 and 5.A.
The Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in This Context, Mission to the United States of America, UN Doc. A/HRC/13/20/Add.4 (2020), paras. 70–72, 104.
The Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in This Context, Mission to the United States of America, UN Doc. A/HRC/13/20/Add.4 (2020), paras. 73–74.
Committee on Economic, Social and Cultural Rights, General Comment No. 7: Forced Evictions, UN Doc. E/1998/22 (1997), para. 10.
Committee on Economic, Social and Cultural Rights, General Comment No. 7: Forced Evictions, UN Doc. E/1998/22 (1997), para. 11.
Committee on Economic, Social and Cultural Rights, General Comment No. 7: Forced Evictions, UN Doc. E/1998/22 (1997), para. 10.
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).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).
Commentary on the Protocol Amending the Single Convention on Narcotic Drugs, 1961 (1976), p. 70.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(3)(a).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 302, para. 14.18.
Everyone has the right to enjoy the benefits of scientific progress and its applications. This right applies equally in the context of drug use and dependence, as well as in development and criminal justice responses to the illicit drug trade.
In accordance with this right, States should:
i. Take legislative and other appropriate measures to ensure that scientific knowledge and technologies and their applications – including evidence-based, scientifically proven interventions to treat drug dependence, to prevent overdose, and to prevent, treat, and control HIV, hepatitis C, and other diseases – are physically available and financially accessible without discrimination.
ii. Ensure that scientific research, including that on controlled drugs, can be undertaken and communicated without censorship and free from political interference.
iii. Consider reviewing the 1961 and 1971 drug control conventions’ schedules of substances under international control in light of recent scientific evidence, and prioritise exploring the medical benefits of controlled substances in accordance with the World Health Organization’s scheduling recommendations.
The right of everyone to benefit from scientific progress and its applications is recognised in the Universal Declaration of Human Rights and guaranteed by the International Covenant on Economic, Social and Cultural Rights and regional instruments in the Americas, the Arab world, and Europe.[244] The Covenant also places obligations on States to promote the conservation, development, and diffusion of science;[245] respect the freedom necessary for scientific research;[246] and recognise the benefits to be derived from encouraging and developing international scientific cooperation.[247] The Special Rapporteur in the field of cultural rights has further noted that the normative content of the right to benefit from scientific progress includes access by everyone, without discrimination, to the benefits of science and its applications, including scientific knowledge; opportunities for all to contribute to the scientific enterprise; the related rights to participate in decision making and to information; and an enabling environment fostering the conservation, development, and diffusion of science and technology.[248]
The Committee on Economic, Social and Cultural Rights has recognised that the right to participate in and to enjoy the benefits of scientific progress is instrumental to realise the right to health and that the links between the two are ‘clear and diverse’.[249] The Committee has thus recommended that States ‘promote scientific research, through financial support or other incentives, to create new medical applications and make them accessible and affordable to everyone, especially the most vulnerable’, and in particular, to ‘prioritize the promotion of scientific progress to facilitate better and more accessible means for the prevention, control and treatment of epidemic, endemic, occupational and other diseases’.[250]
In this regard, the Committee has recognised the special relevance of the right to benefit from scientific progress and its applications for drug law and policy. The Committee has noted that ‘scientific research is impaired for some substances under the international conventions on drug control, which classify these substances as harmful for health and with no scientific or medical value. However, some of these classifications were made with insufficient scientific support to substantiate those classifications, as credible evidence exists regarding the medical uses of a number of them, such as cannabis for the treatment of certain epilepsies’.[251]
The Committee has thus recommended that States ‘harmonize the fulfilment of their obligations under the international drug control regime with their obligations to respect, protect and fulfil the right to participate in and to enjoy the benefits of scientific progress and its applications, through regular revision of their policies in relation to controlled substances’.[252] The Committee has noted that that these restrictions limit the right to benefit from scientific progress and its applications and therefore should meet the requirements for limitations of the International Covenant on Economic, Social and Cultural Rights and that, further, given the potential health benefits of these controlled substances, such restrictions should be weighed in relation to States’ Covenant obligations under the right to health.[253]
Failure to recognise and respect the right to benefit from scientific progress can have adverse health and other effects on people who use or are dependent on drugs, among others. For example, in order to implement the right to health of such persons through their equal right to benefit from scientific progress and its applications, the Committee on Economic, Social and Cultural Rights has called for the implementation of World Health Organization recommendations to improve the availability, accessibility, and quality of harm reduction services (such as needle exchange programmes and opioid substitution treatment) and for the free distribution of hepatitis C treatment, including to children, women, and people in prison.[254] The Committee has also noted the importance of ensuring that ‘medicines and medical treatments including in the field of drug dependency, are evidence-based, and that the risks involved have been properly evaluated and communicated in a clear and transparent manner, so that patients can provide properly informed consent’.[255]
The Committee has emphasised that States have an obligation to strike an adequate balance between protecting the moral and material interests of authors and protecting other human rights under the Covenant, including balancing the private interests of authors with the public interest in enjoying broad access. States should therefore ensure that their legal and other regimes for the protection of authors’ moral and material interests constitute no impediment to States’ ability to comply with their core obligations with respect to other human rights, including the rights to health, to take part in cultural life, and to enjoy the benefits of scientific progress and its applications. The Committee has stressed that ‘intellectual property is a social product and has a social function’ and that States ‘thus have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production … from undermining the rights of large segments of the population to health and food’. It has further advised that ‘States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including the rights to life, health and privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights’.[256]
The Special Rapporteur in the field of cultural rights has likewise noted that ‘the obligations of States under intellectual property treaties must not jeopardize the implementation of their obligations under human rights treaties’,[257] which, as the Committee on Economic, Social and Cultural Rights has explained, includes the right to access essential medicines. The Special Rapporteur has concluded that ‘[S]tates have a positive obligation to provide for a robust and flexible system of patent exclusions, exceptions and flexibilities based on domestic circumstances, including through the establishment of compulsory and government use licences when needed’.[258] Some domestic courts have applied the right to benefit from scientific progress as a ground for compelling State action to ensure access to affordable medicines.[259]
The UN General Assembly Special Session 2016 Outcome Document calls upon all relevant UN agencies to provide ‘advice and assistance to States that are reviewing and updating their drug policies … through, among others, the promotion of the exchange of information and best practices on scientific evidence-based policies’.[260]
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(1)(b); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 27; Charter of the Organization of American States (1948), art. 38; American Declaration on the Rights and Duties of Man (1948), art. 13; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 14; Arab Charter on Human Rights (2004), art. 42(1); see also Charter of Fundamental Rights of the European Union, 2012/C 326/02 (2012), art. 13; [European] Convention on Human Rights and Biomedicine, ETS No. 164 (1997), preamble, arts. 2, 28. The right to science is also protected in several national constitutions; see Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 13.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(2).
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(3).
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(4).
Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 25; see also Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications, July 2009, https://www.aaas.org/sites/default/files/VeniceStatement_July2009.pdf, para. 13.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 68.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/2 (2011), para. 26.
Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 71.
Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author, UN Doc. E/C.12/GC/17 (2006), para. 35.
Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/70/279 (2015), para. 89.
Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/70/279 (2015), para. 103.
See, e.g., NA et al c. Ministerio de Sanidad y Asistencia Social, Case No. 14.625, Corte Supreme de Justicia (Venezuela), 14 August 1998; Cruz del Valle Bermudez y otros c. Ministerio de Sanidad y Asistencia Social, Case No. 15.789, Judgement No. 916, Corte Supreme de Justicia (Venezuela), 15 July 1999; López y otros c. Institute Venezolano de los Seguros Sociales (IVSS), Judgement No. 487, Corte Supreme de Justicia (Venezuela), 6 April 2001.
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. 5(y).
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]
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.
Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.
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.
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.
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.
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.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.
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).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.
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.
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.
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.
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.
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.
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.
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
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.
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).
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).
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.
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.
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.
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.
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.
Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).
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]
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.
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.
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.
UN Women, A Gender Perspective on the Impact of Drug Use, the Drug Trade, and Drug Control Regimes (2014).
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 38.
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.
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).
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).
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).
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).
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).
UN Drug Control Program, Guidelines for Best Practices on Gender Mainstreaming in Alternative Development (2000).
UN Office on Drugs and Crime, Alternative Development: A Global Thematic Evaluation, Final Synthesis Report (2005).
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]
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).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble, art. 3(5).
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).
International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (1999), art. 7.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), preamble.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(5).
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]
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.
Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.
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.
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.
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.
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.
Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.
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).
Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.
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.
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.
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.
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.
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.
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.
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
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.
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).
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).
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.
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.
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.
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.
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.
Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).
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]
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.
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.
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.
UN Women, A Gender Perspective on the Impact of Drug Use, the Drug Trade, and Drug Control Regimes (2014).
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.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Afghanistan, UN Doc. CEDAW/C/AFG/CO/1-2 (2013), para. 38.
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.
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).
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).
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).
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).
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).
UN Drug Control Program, Guidelines for Best Practices on Gender Mainstreaming in Alternative Development (2000).
UN Office on Drugs and Crime, Alternative Development: A Global Thematic Evaluation, Final Synthesis Report (2005).
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.
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.
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).
UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.
UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 29.
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).
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.
UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.
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.
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.
Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 73.
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).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14.
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]
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.
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.
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).
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.
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 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]
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.
Human Rights Committee, Communication No. 671/1995: Jouni E. Länsman et al. v. Finland, UN Doc. CCPR/C/58/D/671/1995 (1996).
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.
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.
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.
UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24.
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).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).
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.
UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 31.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/5 (2011), para. 34.
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).
Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.
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).
Chile, Law No. 19253 (1993), art. 7.
Sentencia T-080/2017, Corte Constitucional (Colombia), 7 February 2017; Sentencia T-357/2018, Corte Constitucional (Colombia), 31 August 2018, para. 6.
See, e.g., Argentina, Law No. 23737 (1989), art. 15.
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.
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.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
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).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).
Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.
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.
States should:
i. Collect and disseminate appropriate information to enable the formulation and implementation of human rights-compliant drug control laws and policies. These data should be disaggregated by relevant factors, including health status (such as drug dependence), age, sex, race and ethnicity, sexual orientation and gender identity, and economic status (including involvement in sex work).
ii. Ensure that data collection for the purpose of drug law and policy formulation, implementation, or other analysis complies with relevant international standards for data protection.
International law and standards recognise that the collection and disaggregation of necessary data, including statistical and research data, is critical to help uncover patterns of discrimination with respect to drug use, drug-related harm, and drug enforcement efforts; to identify and address barriers faced by affected individuals and populations in accessing relevant drug-related and other health-related information, treatment, and care, as well as their affected rights and associated remedies; and to thereby assist States in the implementation of their human rights obligations.[860]
The Committee on the Elimination of Discrimination against Women has raised concern about the lack of data on women who use drugs, both inside and outside prison, and among different age groups,[861] including the lack of data on the availability of antiretroviral drugs for this population;[862] the need for and availability of drug dependence and other health care treatment for women who use drugs;[863] and the incidence and impact of drug and other substance dependence on women and gender relations.[864] The Committee has recommended that States collect data on drug use and drug dependence among women and take measures to address these issues, in prison and society at large, to determine the extent of the problem[865] and its incidence and effects.[866] Specifically, it has called on States to develop appropriate interventions for drug dependence and determine the number of those living with HIV in need of medical care;[867] to understand the possible correlation between drug use and violence against women;[868] to provide information on measures to prevent and reduce abuse;[869] and to provide information on the availability of counselling and rehabilitation services.[870] The Committee has also recommended ‘[c]onducting a nationwide study to establish the number of women who use drugs, including while pregnant, in order to inform strategic planning’.[871]
The Committee on the Elimination of Racial Discrimination has raised concern about the disproportionately high rate of incarceration among indigenous peoples and persons belonging to minority groups, in particular African-Canadians, due in part to the over-policing of these populations, drug policies, and racially biased sentencing and has recommended systematic data collection and public reporting on the demographic composition of the prison population and sentencing of minority offenders.[872]
The Committee against Torture has raised concern about the lack of relevant statistical data and information on the maximum duration of solitary confinement of people in compulsory drug treatment centres and has recommended the collection and regular publication of comprehensive disaggregated data on the use of solitary confinement and restraints, and of related suicide attempts and self-harm.[873] The Human Rights Committee has noted with concern the availability of the death penalty for a number of crimes, including drug-related crimes, that do not meet the threshold of most serious crimes within the meaning of article 6(2) of the International Covenant on Civil Political Rights, as well as the lack of publicly available data on the number of persons sentenced to death, executed, or on death row. It has recommended the publication of official figures on death sentences and executions, disaggregated by sex, age, ethnicity, religion, and crime.[874]
Resolutions issued by the Commission on Narcotic Drugs have highlighted the importance of tools to improve data collection and the monitoring and evaluation of international commitments and have called on States to consider committing budgetary resources for these purposes.[875] The UN General Assembly Special Session 2016 Outcome Document likewise promotes ‘reliable data collection’, requesting that States submit, on a voluntary basis, information about ‘human rights and the health, safety and welfare of all individuals, communities and society’.[876]
See, e.g., Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Former Yugoslav Republic of Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013); Committee on the Elimination of Discrimination against Women, Concluding Observations: Republic of Italy, UN Doc. CEDAW/C/ITA/CO/6 (2011); Committee on the Rights of the Child, Concluding Observations: Kuwait, UN Doc. CRC/C/KWT/CO/2 (2013); Committee on the Rights of the Child, Concluding Observations: Madagascar, UN Doc. CRC/C/MDG/CO/3-4 (2012); Committee on Economic, Social and Cultural Rights, Concluding Observations: Germany, UN Doc. E/C.12/DEU/CO/5 (2011); Committee on Economic, Social and Cultural Rights, Concluding Observations: Monaco, UN Doc. E/C.12/MCO/CO/2-3 (2014).
Committee on the Elimination of Discrimination against Women, Concluding Observations: France, UN Doc. A/58/38 (Supp) (2003), p. 121, para. 277; Committee on the Elimination of Discrimination against Women, Concluding Observations: St. Kitts and Nevis, UN Doc. A/57/38 (Supp) (2002), p. 94, para. 107; Committee on the Elimination of Discrimination against Women, Concluding Observations: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 329; Committee on the Elimination of Discrimination against Women, Concluding Observations: Netherlands, UN Doc. A/56/38 (Supp) (2001), p. 67, para. 222.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Albania, UN Doc. CEDAW/C/ALB/CO/3, para. 34 (2010).
Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/3-4 (2014), para. 30; Committee on the Elimination of Discrimination against Women, Concluding Observations: Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013), para. 33.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Guatemala, UN Doc. A/57/38 (Supp) (2002), p. 176, para. 204.
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: France, UN Doc. A/58/38 (Supp) (2003), p. 121, para. 278.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Guatemala, UN Doc. A/57/38 (Supp) (2002), p. 176, para. 204.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/3-4 (2014), para. 30; Committee on the Elimination of Discrimination against Women, Concluding Observations: Macedonia, UN Doc. CEDAW/C/MKD/CO/4-5 (2013), para. 34.
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: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 330.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Hungary, UN Doc. A/57/38 (Supp) (2002), p. 194, para. 330.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia (2014), UN Doc. CEDAW/C/GEO/CO/4-5, para. 31.
Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/21-23 (2017), paras. 15, 16(f).
Committee against Torture, Concluding Observations: China, UN Doc. CAT/C/CHN/CO/5 (2016), paras. 42–43.
Human Rights Committee, Concluding Observations: Viet Nam, UN Doc. CCPR/C/VNM/CO/3 (2019), paras. 23–24.
Commission on Narcotic Drugs, Resolution 56/10: Tools to Improve Data Collection to Monitor and Evaluate the Implementation of the Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem (2013); Commission on Narcotic Drugs, Resolution 54/9: Improving Quality and Building Monitoring Capacity for the Collection, Reporting and Analysis of Data on the World Drug Problem and Policy Responses to It (2011).
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(h).
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.
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]
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1).
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.
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.
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.
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.
Committee on Economic, Social and Cultural Rights, Concluding Observations: Cyprus, UN Doc. E/C.12/CYP/CO/6 (2016), para. 12
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.
UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Austria, UN Doc. CEDAW/C/AUT/CO/7-8 (2013), para. 39
UN Doc. Committee on the Elimination of Discrimination against Women, Concluding Observations: Portugal, UN Doc. CEDAW/C/PRT/CO/8-9 (2015), para. 19.
Committee on the Rights of the Child, Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/3-4 (2014), para. 48.
In accordance with these obligations, States in a position to assist should:
i. Consider providing resources for harm reduction, essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Consider providing resources to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Adopt clear policy guidelines incorporating human rights standards for the provision of financial and technical aid, for international judicial and law enforcement cooperation in drug-related criminal matters, and for demand reduction and related projects in recipient States.
iv. Exercise due diligence to ensure that international cooperation and assistance provided or received for drug-related enforcement and for demand reduction and related projects is carried out in full compliance with international law and human rights standards and does not contribute, directly or indirectly, to the use of the death penalty for drug-related crimes, to torture or other cruel, inhuman, or degrading treatment or punishment, or to fostering or perpetuating unlawful discrimination.
States that do not have sufficient capacity or resources to meet all of their human rights obligations should:
i. Seek assistance, including financial and technical assistance, from the international community for harm reduction services, access to essential controlled medicines, and other health and social services for people who use drugs and who need controlled drugs for pain relief.
ii. Seek assistance, including financial and technical assistance, from the international community to develop specific viable and sustainable economic alternatives for individuals and communities particularly vulnerable to exploitation in the illicit drug economy.
iii. Seek assistance, including financial and technical assistance, from the international community for criminal justice system diversion projects and other alternatives to coercive sanctions for drug offences and drug-related offences.
All UN Member States have an obligation to engage in international cooperation, including financial and technical assistance, to achieve universal respect for and observance of all human rights and fundamental freedoms for all, without distinction.[887] States’ obligations with respect to international cooperation and assistance extend to their roles as members of international and regional organisations, including technical agencies and international financial organisations.[888] UN organs and agencies involved in any aspect of development cooperation to promote human rights in the context of their development activities should ‘scrupulously avoid’ involvement in projects that contravene human rights obligations under the International Covenant on Economic, Social and Cultural Rights or that promote or reinforce the violation of Covenant rights.[889]
The Committee on the Rights of the Child has called for countries to seek international cooperation to support the assistance of children who are dependent on drugs.[890] The Committee on the Elimination of Discrimination against Women has called on States to increase efforts, including via international cooperation, to address drug- and gang-related violence responsible for internal displacement and to take urgent measures to provide comprehensive protection and assistance to women who are internally displaced for these reasons.[891]
The Special Rapporteur on extrajudicial, summary, or arbitrary executions has raised concern that international cooperation and collaboration on criminal and other matters may contribute to the imposition of the death penalty for drug-related crimes, in violation of international law and the assisting State’s international legal commitments.[892] The Special Rapporteur recommends that States amend national laws on extradition and deportation to specifically prohibit the enforced transfer of persons to States where there is a genuine risk that the death penalty may be imposed in violation of internationally recognised standards, unless adequate assurances are obtained.[893] The Special Rapporteur also urges States to develop guidelines on the provision of financial and technical aid and mutual assistance, especially with regard to drug-related offences, to ensure that such efforts do not support violations of the right to life.[894] The Working Group on Arbitrary Detention has recommended that States monitor technical and financial assistance provided to other countries for drug enforcement and other operations to ensure that such assistance does not contribute to or result in human rights violations and to reduce or cease such assistance ‘as appropriate’. The Working Group has recommended that international and regional organisations likewise monitor the provision of such assistance to ensure that it does not contribute to human rights violations.[895]
International organisations are also expected to address human rights abuses in connection with their programmes. For example, the UN Office on Drugs and Crime, as part of the UN Secretariat, has issued internal guidance on the promotion and protection of human rights in its work, including its technical assistance programmes, on the basis of the Charter of the United Nations and the UN Human Rights Due Diligence Policy.[896] This guidance includes a range of possible response actions that can be undertaken to address human rights concerns, which should be assessed on a case-by-case basis and in conjunction with the UN system. It also indicates that in situations where a country receiving technical assistance from the UN Office on Drugs and Crime continues, despite the Office’s interventions, to apply the death penalty for drug offences and where the provision of specific technical support could amount to aiding or assisting this rights violation, the Office may employ a temporary freeze or withdrawal of that specific support.
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances addresses cooperation in crop eradication efforts, including ‘integrated rural development leading to economically viable alternatives to illicit cultivation’ and ‘other appropriate measures of co-operation’.[897] The Commentary on the 1988 Convention explains that this provision ‘creates no legal obligation on parties, but draws attention to the need, in some countries and regions, for programmes of integrated rural development designed, in effect, to rebuild a local economy hitherto partly or entirely based on illicit cultivation’.[898] The 1988 Convention also includes extensive provisions relating to international cooperation, including extradition,[899] mutual legal assistance,[900] and law enforcement cooperation.[901] States’ human rights obligations apply at all times in the implementation of these provisions.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 1(3), 55, 56; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1), 11, 22, 23; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: Cameroon, UN Doc. CEDAW/C/CMR/CO/4-5 (2014), para. 48; Committee on the Elimination of Discrimination against Women, Concluding Observations: Tanzania, UN Doc. CEDAW/C/TZA/CO/6 (2008), para. 59; Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990), para. 14; see also Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011), principle 13.
Charter of the United Nations, 1 UNTS XVI (1945), arts. 55, 56; see also Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (1990); Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 2(1); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 4; Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 68.
Committee on Economic, Social and Cultural Rights, General Comment No. 2: International Technical Assistance Measures, UN Doc. E/1990/23 (1990), paras. 2, 5, 6.
Committee on the Rights of the Child, Concluding Observations: Sierra Leone, UN Doc. CRC/C/15/Add.116 (2000), para. 84.
Committee on the Elimination of Discrimination against Women, Concluding Observations: Honduras, UN Doc. CEDAW/C/HND/CO/7-8 (2016), para. 45.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), paras. 102–107.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 117.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/67/275 (2012), paras. 84, 128; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/70/304 (2015), para. 107.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(p).
UN Office on Drugs and Crime, UNODC and the Promotion and Protection of Human Rights: Position Paper (2012).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(3).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 302, para. 14.18.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 6.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 7.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 9.
