Writing in 1996, Norbert Gilmore noted that ‘little has been written about drug use and human rights. Human rights are rarely mentioned expressly in drug literature and drug use is rarely mentioned in human rights literature.’ [1] Almost twenty years later, the literature examining drug control issues through the lens of international human rights law has grown, but the total body of peer reviewed commentary and analysis in this area would barely rank the issue as a footnote in the broader human rights lexicon.

The relative dearth of legal scholarship in the area of human rights and drug control stands in sharp contrast to the many human rights issues engaged by drug control.

One need only scratch the surface of domestic and international efforts to control or suppress drugs to see the potential for human rights concern. Indeed, drug control and enforcement activities are prime areas for the abuse of human rights, not least because, as noted by Barrett and Nowak, the very indicators of ‘success’ of drug control efforts – number of criminal offences prescribed; number of people arrested and successfully prosecuted; number of people in detention; number of traffickers executed; number of people in drug treatment (whether voluntarily or involuntarily); number of hectares of crops destroyed; number of successful military operations against insurgents or criminal gangs – are also indicators of human rights risk, if not actual evidence of human rights violations. [2]

As a result, the negative human rights consequences of the fourth stage of drug control are mammoth, spanning all regions of the world, and include the execution of up to 1,000 people annually for drug offences; [3] the arbitrary detention of up to half a million people worldwide under the guise of ‘drug treatment’ [4] the denial of due process rights and on rights to consent to treatment in the context of drug cases; [5] the denial of the right to health to millions of people who use drugs by legally prohibiting access to effective HIV prevention measures. [6]

In many cases, these violations are driven by domestic and/or international attempts to meet the obligations enshrined within the three United Nations drug control conventions, [7] creating a situation where seeking to fulfil the requirements of the drug treaties encourages or justifies policies and practices that violate international human rights law. This raises questions of treaty interpretation, and the appropriate balancing of concomitant obligations within these two legal regimes. In short, how should the international law of drug control be interpreted within the context of international human rights law?

Questions of treaty interpretation, conflict of laws, and of what has come to be known as the ‘fragmentation’ of international law, [8] are of increasing interest among international legal scholars and practitioners. However, the question of international drug control law has not featured within this existing literature, nor applied in any rigorous way, to conflicts and tensions – real or potential – between human rights and drug control treaty law. The primary scholarly works written on international drug control law do not address the question of interpretation. [9] Some attempt has been made in the health and human rights literature to grapple with these questions, either through recourse to Article 103 of the Charter of the United Nations [10] or through conceptualising human rights law as a ‘“normative counterweight” to those harmful aspects of the international legal regime of drug control’. [11]

Yet despite their value in progressing this discourse, these proposals remain either unsatisfactory or underdeveloped. More recent commentary has been made in the context of wider debates on drug law reform, suggesting for example that States may simply interpret their way out of core legal obligations as they see fit. [12] However, such proposals fall more comfortably into the realm of political opinion than legal interpretation, the latter necessarily drawing its legitimacy and authority from legal principles, processes and sources. This approach also has dangerous pitfalls for human rights protections, as allowing States scope to interpret drug treaties as they see fit allows them the prerogative to interpret more abusively as well as more liberally. Indeed, if one is to accept that States can interpret drug control treaty provisions as they see fit, up to and including interpreting their way out of treaty obligations altogether, how do we credibly argue that they must uphold international law in areas such as the environment, arms control, or indeed human rights itself?

This lack of definitive guidance in negotiating the question of regime conflicts in this area, coupled with the significant evidence of human rights violations linked to drug control worldwide, demands an interpretative approach that allows for progressive legal development in the international law of drug control, while at the same time guarding against human rights regression. Formulating such an interpretive approach is critical for both domestic and international fora/bodies where these conflicts emerge and are adjudicated. Drawing upon the object and purpose of the UN drug control treaties, as identified from a review of the evolution of 100 years of treaty law in this subject area, as well as the approaches of the International Court of Justice and of various human rights bodies, a clear case can be made that a teleological approach (often described as ‘dynamic’ or ‘evolutive’ interpretation, is the most appropriate to apply in this context, and provides clear direction in resolving these conflicts. Although most closely associated with international human right law, dynamic interpretation has been used within other regimes, and is particularly appropriate in instances where drug control activities engage human rights obligations. This evolutive interpretation must be driven by human rights considerations, and at minimum be consistent with, and at best advance, core human rights principles and obligations – in effect, an interpretive approach that is both dynamic and human rights-based.

The need to bridge the conflicts and tensions between drug control and human rights is clear, and increasingly acknowledged by key bodies in both international regimes. As described in 2008 by the former Special Rapporteur on the right to the highest attainable standard of health, Professor Paul Hunt, ‘[i]t is imperative that the international drug control system…and the complex international human rights system that has evolved since 1948, cease to behave as though they exist in parallel universes’. [13] Examples of a dynamic and human rights-based interpretative approach can be identified, at both the domestic and international levels, although they are so rare as to be notable when they occur. However, such an approach is critical if the human rights violations driven by drug control efforts are to be acknowledged, addressed and ended.

References

[1] Norbert Gilmore, ‘Drug Use and Human Rights: Privacy, Vulnerability, Disability, and Human Rights Infringements’, (1996) Journal of Contemporary Health Law and Policy, vol. 12, p. 356.

[2] Damon Barrett and Manfred Nowak, ‘The United Nations and Drug Policy: Towards a Human Rights-Based Approach’ in A Constantinides and N Zaikai (eds), The Diversity of International Law: Essays in Honour of Professor Calliope K. Kpufa (Martinus Nijhoff 2009) 468.

[3] See Patrick Gallahue and Rick Lines, ‘The Death Penalty for Drug Offences: Global Overview’, International Harm Reduction Association, 2010.; Patrick Gallahue, ‘The Death Penalty for Drug Offences: Global Overview 2011’, International Harm Reduction Association, 2011.

[4] See, for example, Richard Elliott, Rick Lines and Roxanne Schleifer, ‘Treatment or torture? Applying international human rights standards to drug detention centers’ (Open Society Foundations 2011) 3.

[5] See, for example, Juhi Gupta, ‘Interpretation of Reverse Onus Clauses’ (2012) 5/1 NUJS Law Review 49.; Drug Policy Alliance, ‘Drug Courts are Not the Answer: Towards a Health Centered Approach to Drug Use’ (Drug Policy Alliance 2011).; Joanne Csete, ‘Costs and Benefits of Drug-Related Health Services’ in J Collins (ed)
Ending the Drug Wars: Report of the LSE Expert Group on the Economics of Drug Policy (LSE Ideas 2014) 75-76.

[6] See, for example, UN General Assembly, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (6 August 2010) UN Doc. No. A/65/255, paras: 50-61. paras. 50-55.

[7] Single Convention on Narcotic Drugs 1961 (as amended by the 1972 Protocol) (30 March 1961) 520 UNTS 7515.; 1971 Convention on Psychotropic Substances (21 February 1971) 1019 UNTS 14956. UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (20 December 1988) 1582 UNTS 95.

[8] International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission’ (13 April 2006) UN Doc No A/CN.4/L.682, 208, para. 414.

[9] Neil Boister, Penal Aspects of the UN Drug Conventions (Kluwer 2001).; Syamal Kumar Chatterjee, Legal Aspects of International Drug Control (Martinus Nijhoff 1981).

[10] See, for example, Damon Barrett, Rick Lines, Rebecca Schleifer, Richard Elliott, and Dave Bewley-Taylor, ‘Recalibrating the Regime: The Need for a Human Rights-Based Approach to International Drug Policy’ (Beckley Foundation Drug Policy Programme 2008) 1.; Rick Lines and Richard Elliott, ‘Injecting Drugs into Human Rights Advocacy’ (2007) 18 International Journal of Drug Policy 453, 455.

[11] Richard Elliott, Joanne Csete, Evan Wood and Thomas Kerr, ‘Harm reduction, HIV/AIDS, and the human rights challenge to global drug control policy’ (2005) 8/2 Health and Human Rights 104, 121.

[12] See, for example, Harry Shapiro, ‘Interview with John Collins’ DrugLink, May/June 2014, p 20.

[13] Paul Hunt, ‘Human Rights, Health and Harm Reduction: States’ Amnesia and Parallel Universes’ (International Harm Reduction Association 2008) 9.