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Info Service on Health Issues (Jun24/05) Penang, 26 Jun (Kanaga Raja) — A United Nations human rights expert has called on States to put an end to the “war on drugs”, and to move instead towards harm reduction in drug policies. In presenting her report (A/HRC/56/52) to the 56th regular session of the United Nations Human Rights Council currently taking place in Geneva, Tlaleng Mofokeng, the UN Special Rapporteur on the right to health, said that while punitive drug laws are often enacted and enforced in the name of medicine, public health and public order, the widespread use of criminal law, as well as the “war on drugs” and the pursuit of a “drug-free world”, has failed to deter drug use or prevent related harms. Moreover, the international drug control regime has added to harms at both the individual and the societal levels through its detrimental consequences, she added. “The enforcement of drug laws and policies compounds other forms of discrimination and disproportionately affects certain individuals, such as persons in situations of homelessness or poverty, persons with mental health issues, sex workers, women, children, LGBTIQA+ persons, Black persons, Indigenous Peoples, migrants, persons who are incarcerated or detained, persons with disabilities, persons living with HIV, tuberculosis or hepatitis, and persons living in rural areas,” said the Special Rapporteur. “International drug control conventions have negatively affected the availability, accessibility, acceptability and quality of certain drugs used as medicines,” she added. The report explores how harm reduction relates to both drug use and drug use disorders, as well as to drug laws and policies, aiming to analyse and address the related outcomes that adversely impact the enjoyment of the right to health. The report indicates that the concept of harm reduction has been primarily developed in the context of drug use and refers to policies, programmes and practices that are aimed at minimising negative health, social and legal impacts associated with drug use, drug policies and drug laws. It also stresses that States have an obligation to implement evidence-based interventions to minimise the adverse health and risks and harms associated with drug use. According to the report, drugs have been a part of human history for thousands of years, whether for medicinal healing, religious and cultural ceremonies or as commodities for pleasure. However, across populations and over time, societies have taken vastly different approaches to drugs. The harms related to drug use have been fuelled by ill-advised legal and political strategies, part of the “war on drugs” led by the global North, which, since the 1970s, has heavily criminalized and stigmatized the production, distribution and consumption of psychoactive drugs, with devastating effects across the globe and particularly in the so-called global South, said the Special Rapporteur. Regrettably, the existing international legal framework on drug control has propelled the criminalization of drug use, naming addiction to drugs as an “evil” that States must combat. In turn, it has influenced States’ drug laws and policies at the domestic level through stringent punitive measures, including imprisonment or other penalties of deprivation of liberty, as called for in the international framework. However, the Special Rapporteur said that the risk of harsh punishment has not served as a deterrent to drug use. “Moreover, drug laws and policies have resulted in the violation of various human rights, including the right to health, with a disproportionate impact on people who have been made the most vulnerable.” The commercial determinants of health, or the private sector activities that affect people’s health, directly or indirectly, positively or negatively, also drive health outcomes related to drug use and drug laws and policies, said the report. Pharmaceutical companies, driven by profit motives, have played a major role in fuelling the proliferation of prescription opioids and the opioid crisis, it added. “Private-sector activities, which prioritize corporate interests over patient interests, have shaped individuals’ access to pain management care.” The Special Rapporteur said that together, the social, political, commercial and legal determinants of health influence environments in which a person may produce, distribute or use drugs and can create and reinforce health disparities. An alternative, evidence-based and public health- and human rights-centred approach to drug use is urgently needed, she underlined. The concept of harm reduction has been primarily developed in the context of drug use and refers to policies, programmes and practices that are aimed at minimizing the negative health, social and legal impacts associated with drug use, drug policies and drug laws, said the report. It includes needle and syringe programmes, supervised injection and drug use facilities, opioid substitution therapy, overdose prevention and community outreach programmes, as well as access to legal assistance, social services, housing and adequate food. The report pointed out that the international drug control regime consists of three core treaties. It said that the first is the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, which consolidated previous international agreements, brought specific plants under international control (e.g. marijuana, coca and opium poppy), created a regulatory system for the medical and scientific uses of those plants and established the International Narcotics Control Board. It said the second is the Convention on Psychotropic Substances of 1971, which established an international control system for psychoactive drugs such as amphetamine-type stimulants, barbiturates, benzodiazepines and psychedelics. The third is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, in which it was recognized that previous international efforts had not been able to prevent the illicit drug trade and connections were drawn with organized crime to justify the increased policing of drugs worldwide. Together, these three treaties put hundreds of drugs under international control and criminalized virtually every aspect of the unauthorized production and distribution thereof. The original aim of the treaties was to protect the health and welfare of humankind. However, current drug control policies have primarily taken a punitive approach to suppress the market in illicit drugs, and many countries have adopted repressive policies, with consequent impacts on human rights, said the UN expert. She said while the treaties under the international drug control framework do not explicitly mention or consider implications for human rights, Member States and United Nations bodies have declared that international drug control must be carried out in conformity with the Charter of the United Nations and respect for human rights. States have an obligation to respect, protect and fulfil human rights. In the context of drug use, the obligation to respect requires that States not engage in any conduct that can result in drug use-related morbidity or mortality. This includes refraining from marketing unsafe drugs and from applying coercive medical treatments, except under exceptional circumstances – subject to specific and restrictive conditions – for the treatment of mental illness or the prevention and control of communicable diseases. The UN expert said the obligation to protect requires States to, among other actions, adopt legislation or take other measures ensuring equal access to health care and health-related services provided by third parties and ensuring that scientific knowledge and technologies and their applications – including evidence-based interventions to prevent and treat drug dependence, in addition to related diseases – are available and accessible without discrimination. States have an obligation to implement evidence-based interventions to minimize the adverse health and risks and harms associated with drug use, said the report. The Special Rapporteur said that this obligation also requires States to take measures to prevent third parties from interfering with the enjoyment of human rights and to ensure effective protection against rights violations linked to business activities and access to effective remedies for victims of such corporate abuses. Pointing out that the intersection of criminal law, health, and human rights is multi-faceted, she said that the failure to adopt a human-rights based approach to addressing drug use has had negative impacts on the health of both individuals and populations. “In this regard, the stigmatization and criminalization of drug use represent a barrier for people with drug use disorders to accessing services, establishing therapeutic relationships and continuing treatment regimes, leading to poorer health outcomes as, in addition to stigmatization, they may fear legal consequences or harassment and judgment.” The UN expert said the discriminatory application of criminal law must be tackled at every stage, including by reforming the drug-related laws, policies and practices with discriminatory outcomes, in line with international human rights norms and standards. She said that where people who use drugs are discriminated against in health-care facilities, they may be deterred from seeking health-care services, which in turn increases their vulnerability to other infectious diseases, such as HIV, and also affects the delivery of treatment programmes. She added that violations of privacy and confidentiality of health records dissuade people who use drugs from seeking health-care services. This is particularly so in circumstances where medical records are shared with law enforcement agencies, leading to criminalization. “While punitive drug laws are often enacted and enforced in the name of medicine, public health and public order, the widespread use of criminal law, as well as the “war on drugs” and the pursuit of a “drug-free world”, has failed to deter drug use or prevent related harms,” said the Special Rapporteur. Moreover, the international drug control regime has added to harms at both the individual and the societal levels through its detrimental consequences. States are under an obligation to respect the right to health by, among others, refraining from denying or limiting equal access for all persons, including prisoners or detainees, to curative and palliative health services, she said. “Persons who are deprived of their liberty are equally entitled to the right to health, and those who use drugs are particularly vulnerable when deprived of their liberty in facilities that have inadequate health-care services.” The Special Rapporteur stressed that an approach aimed at increasing access to evidence-based and voluntary treatment is most effective in reducing drug use and the social harm caused and is also in compliance with the international drug control conventions. Within prison settings, high rates of drug use by injection, a lack of access to harm reduction services and a lack of prevention and treatment services lead to a high prevalence of HIV, hepatitis C and tuberculosis, she noted. Many prisons fail to provide appropriate medical care, including evidence-based treatment for drug use disorders, or deny people who use drugs the opportunity to provide informed consent before being tested or treated. The UN expert also said being charged with a drug-related offence is a stigma that can last a lifetime, creating impediments to employment, education, travel, immigration, custody of children, privacy and freedom from discrimination, as well as to the enjoyment of civil and political rights such as the right to vote and the rights to participation, freedom of association and peaceful assembly and freedom of opinion, expression and information. IMPACT OF DRUG LAWS & POLICIES The report said historic and ongoing racism, discrimination and power asymmetries contribute significantly to constructing vulnerable situations. The UN expert said current drug laws and policies have had a profoundly negative impact on minorities, women and girls, LGBTIQA+ persons, sex workers, migrants and people living with HIV/AIDS, among other groups of the population. “In many cases, punitive drug regimes intersect with the other forms of criminalization and stigmatization to which certain individuals are subjected.” The circumstances of those individuals underpin their relationships with drug use and may create a barrier to receiving appropriate care in case of drug use disorders, she added. “Women who use drugs face higher levels of social stigma and discrimination, and harm reduction services are often designed without accounting for gendered differences.” Women who use drugs are also subject to rates of violence that are up to 24 times higher than those experienced by women who do not use drugs. This highlights the need to integrate harm reduction services with those for gender-based violence and sexual and reproductive health, said the Special Rapporteur. LGBTIQA+ persons who use drugs may not seek support or treatment from health-care providers because of previous or anticipated experiences of discrimination, she added. They are disproportionately affected by drug policies in many countries, and experience harms, Ms Mofokeng said. “Despite some progress in recent years, there remains heavy stigma and taboo surrounding sexualized drug use, including “chemsex” (sexual activity under the influence of drugs), which is most common among men who have sex with men.” Stigma and discrimination have contributed to persistent gaps in research, a lack of programmes to address the needs of this population, ongoing barriers to access the services that do exist and lack of action at the policy level to protect the health of LGBTIQA+ persons who use drugs, said the UN expert. She also said people who use drugs and also engage in sex work face similar and often overlapping challenges, including stigma, exposure to health risks such as violence, and the denial of health services. Law enforcement officials are often guided by harmful stereotypes of what a sex worker or person who uses drugs “looks like”; such stereotypes are grounded in racism and discrimination based on class, sex and gender that cause racial and ethnic minorities, women and LGBTIQA+ persons to be far more likely to be stopped, searched, arrested and charged if drugs or drug paraphernalia are found, the report said. The report further said about 1 in 10 new HIV infections result from drug use by injection, yet criminal laws relating to HIV and drug use impede access to HIV prevention and treatment. It said that against the recommendation of international human rights bodies, over 92 countries have criminal laws relating to HIV and other sexually transmitted infections, including laws that criminalize HIV transmission, actions that can potentially expose another person to HIV and non-disclosure of HIV status. General criminal laws can also be used to criminalize the actions of people with HIV – including breastfeeding mothers. “Thus, it is no surprise that people living with HIV and using drugs are driven away from the appropriate and evidenced-based health care that they might need,” said the Special Rapporteur. She said the requirement to prevent, treat and control diseases encompasses the establishment of prevention and education programmes for behaviour-related health concerns and the creation of a system of urgent medical care in cases of epidemics, accidents and similar health hazards. “Interventions such as educational programmes empower people who use drugs to make informed decisions relating to their health and minimize the potential harms related to drug use.” The UN expert said this can be done through outreach programmes through which people who use drugs are engaged in their own communities and provided with information, referrals for medical testing and services, and empowered to respond to overdoses through first-aid training such as in the administration of naloxone. The requirements of informed consent must be observed in administering any treatment, regardless of whether it is drug use-related, and include the right to refuse treatment. Access to information is also relevant to the right to prevention, treatment and control of epidemic, endemic and other diseases, requiring the establishment of prevention and education programmes for behaviour-related health concerns, including in relation to drug use and drug use disorders, said the UN expert. She also said the pharmaceutical industry has a decisive impact on the realization of the right to health and in relation to decision-making power over what medicines and types of diseases it researches and invests in. According to the Special Rapporteur, harmful practices of pharmaceutical companies that undermine access to medicines and the right to health, such as corporate pressure within the framework of the regulatory, oversight and judicial functions of the State, as well as economic incentives to doctors to prescribe certain medicines, are relevant to the responses to drug use. She said barriers to improving access to controlled substances for medical and scientific purposes are related to legislation, regulatory systems, health-care systems, affordability, the training of health-care professionals, education, awareness-raising, estimates, assessment and reporting, benchmarks for consumption of substances under international control, and international cooperation and coordination. Despite international commitments, statistics show that 17 per cent of the global amount of morphine used for pain relief is consumed in low- and middle-income countries. The regions with the lowest rates of consumption of narcotic drugs for medical purposes in the world are Africa, Central America and the Caribbean, South Asia, and East and South-East Asia. The failure to ensure access to essential medicines for pain relief and drug use disorders threatens the realization of the rights to health and to freedom from cruel, inhumane and degrading treatment, the UN expert stressed. HARM REDUCTION POLICIES According to the report, the criminalization, overuse of incarceration, arbitrary deprivation of life, unnecessary use of lethal force in drug enforcement and application of the death penalty as punishment in the name of public health have resulted in various human rights violations. “Human rights violations deriving from drug use criminalization have had negative effects on public health through unintended consequences. In contrast, when well designed and implemented, drug laws and policies – including in harm reduction – can protect and promote public health while contributing to the realization of human rights in a mutually reinforcing way.” The criminalization of drug use and possession of drugs for personal use can pose a threat to health and well- being, said the UN expert. Once people have 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, she noted. “The criminalization of possession and personal use of drugs often also results in disproportionate sentencing, in addition to hindering persons in need of treatment for drug use from receiving such treatment.” The criminalization of drug use also aggravates the stigmatization of and discrimination against people who use drugs, said the UN expert. She said that criminalization is but a single – and extreme – option within a regulatory spectrum. Regulatory frameworks need to be cohesively developed by States in a way that is more or less restrictive depending on scientific evidence and considering power asymmetries (e.g. major corporations’ influence on policymaking). For instance, she said regulation models may consider whether permitting and regulating access would reduce overall harms, exploring to what extent, by what means and to whom specific drugs should be restricted within a jurisdiction. “Decriminalizing drug use is the removal of criminal penalties for drug offences, including for but not limited to use or possession, and is a way of reducing the negative impacts of punitive drug policy on the right to health.” The UN expert said evidence from jurisdictions that have taken a decriminalization approach demonstrates that adopting less punitive policies does not result in an increase in drug use, drug-related harms or other crimes. Divesting from the “war on drugs” can also free up resources to reinvest in health and harm reduction services – creating a pathway for an approach grounded in public health and human rights that is also based on the best available scientific evidence, she added. Harm reduction includes a wide range of policies, programmes and practices that are aimed at minimizing the negative health, social and legal impacts associated with drug use and drug laws and policies. As harm reduction measures work best when they are available to people in their current circumstances, it is important that they are modified and tailored to the intersecting needs of the individual, said the UN expert. In this regard, she pointed to a number of practical harm reduction measures that numerous States have begun to implement: needle and syringe programmes; opioid agonist therapy involving opioid agonists such as methadone and buprenorphine; drug consumption rooms and supervised injection facilities; drug checking; overdose prevention and reversal; and housing, employment and education. At the domestic and international levels, funding for harm reduction is inadequate and shrinking, said the Special Rapporteur. Reportedly, only $131 million is currently available for harm reduction in low- and middle-income countries and less than 7 per cent of international donor funding for harm reduction is given to community-led harm reduction organizations. There is a 95 per cent funding gap for harm reduction in low- and middle-income countries, said the UN expert. In conclusion, the Special Rapporteur underlined the need for States to move from a reliance on criminal law and instead take a human rights-based, evidence-based and compassionate approach to harm reduction in relation to drug use and drug use disorders. +
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