In mid-December, it was announced that Europe endorsed a human rights approach to drug policies. Under the Czech presidency of the Council of the EU, the human rights dimension of drug policy was the key topic in their work. The document invites EU Member States to ‘further support the development and implementation of evidence-based policies and interventions that put human rights at the centre of drug responses, whilst countering crime and ensuring public safety and security, sustainable and viable livelihoods and the health of individuals, families and communities across the EU’.
The document also invites EU Member States to ‘further promote drug policies that adhere to human rights, address discrimination, and reduce the stigma on people who use drugs, in order to ensure voluntary access to services, including prevention, evidence-based life-skills programmes, risk and harm reduction, early detection and intervention, counselling, treatment, rehabilitation, social reintegration and recovery of people who use drugs, as well as treatment of drug-related comorbidities’. A human rights approach to drug policy places the protection and promotion of human rights at the centre of drug policy decisions. This approach recognizes drug use and addiction as a health and social issues rather than simply criminal acts and prioritizes measures that reduce harm and promote public health. It also recognizes the rights of people who use drugs, including the right to health, the right to be free from discrimination, and the right to privacy.
While a human rights approach to drug policy has become the latest buzzword in drug policy, much of the work surrounding the debate is highlighting human rights violations there have been few suggestions on how we adopt a human rights approach. Any subject that is approached from the perspective of human rights emphasises the interplay between the person and the authority of the State, and cannabis control is no exception. Currently, it is the responsibility of people opposed to specific cannabis laws to demonstrate why they are ineffective, such as by criminalising personal possession. In contrast, a human rights perspective puts the onus of justification and accountability for the restrictions on rights and freedoms that such laws impose on the government. Governments haven't typically done this. Yet, governments have lost when these laws have been challenged in constitutional courts on the basis of human rights, as they did with regard to cannabis possession and the right to privacy in South Africa.
When we consider human rights abuses, our minds often turn to the most heinous abuses, for drug policy that is the death penalty, which is still operating in some parts of the world today. Which has been condemned on multiple occasions by many states. Although the human rights approach to drug policy is often discussed at an EU and international level, it is often done so with a tokenistic use of human rights language and phrasing, with nothing more than political ambition as the motivating factor.
An article titled “What Does it Mean to Adopt a Human Rights-Based Approach to Drug Policy?” by Barrett et al, suggests a simplified approach. That is a commitment to placing priority on human rights over drug policy objectives. In reality, what does this mean and what can be achieved? Until recently there has been no comprehensive study to investigate what human rights law has to say on drug policy.
The International Guidelines on Human Rights and Drug Policy is the first in-depth examination of the topic. The Guidelines address a number of rights that are affected as well as particular groups, such as women, children, indigenous people, and those who are deprived of their freedom. Each of the Guidelines' sections offers concise, actionable explanations of the legal obligations of states, and each is accompanied by a detailed commentary outlining the legal sources consulted. The report begins from a human rights perspective with drug policy objectives taking second place.
Article 1 of the Universal Declaration of Human Rights places human dignity as a cornerstone of human rights. Our rights are derived from the intrinsic dignity of the human person, and the report recommends that no drug laws, policies, or practices violate or lessen the dignity of any individual or group of individuals. Upon this cornerstone, other rights can be incorporated, such as the right to the highest attainable standard of health, the right to benefit from scientific progress, equality, non-discrimination, the right to privacy, and the right to freedom of expression and association.
The report recommends a number of steps states should take to incorporate human rights into their drug policy.
States should undertake a review of drug laws and assess human rights compliance.
Subject any new laws to a human rights risk and impact assessment.
Undertake a budgetary review to ensure the progressive realisation of the right to health in relation to drug consumption.
States should interpret existing international law obligations to respect their additional human rights obligations.
Nothing in international drug control treaties should be interpreted in a way to violate human rights.
While the report suggests radical reforms in our approaches to drug policy, we often face a roadblock when discussing reform. This roadblock comes in the form of United Nation Conventions. While it is widely accepted that decriminalisation is permitted under both EU and international law, we are often told that regulation of cannabis and establishing a fully legal market is not permitted under EU and international law. While one arm of the UN remains staunchly prohibitionist another arm of the UN is promoting a human rights approach to drug policy. With no visible way to marry both.
A recent expert opinion from the Netherlands suggests that these hurdles under European and International law may be surmountable after all. Examining proposed cannabis legalisation by Germany, Prof Masha Fedorva and Prof Piet Hein Van Kempen from the Radbound University in Nijmegen suggest the traditional roadblocks are surmountable which could pave the way for a legal cannabis market in Germany and across the EU.
They suggest that legalisation can be justified if the states sincerely believe and make a convincing argument that through a national licencing system for recreational cannabis, they can more effectively implement public health and public safety through a human rights lens. They specifically looked at Art. 2 of the relevant EU Framework Decision 2004/757/JI, which requires the member states to criminalise any type of illegal drug trafficking, including cannabis. They argue a state-licensed and strictly controlled delivery system for the cultivation, distribution and sale of cannabis for recreational purposes would not run counter to the purpose of Article 2(1) of the Framework Decision. Provided several conditions were met. Germany would need to take strict precautions against cannabis tourism and prevent cross-border trafficking, an obligation under the 1985 Schengen Agreement. The licencing system must also aid in the fight against addiction and offer the essential administrative and legal safeguards to stop and prosecute international drug trafficking.
The "clear and rigorous restrictions" that the UN Drugs Convention imposes on the EU and its individual member states, according to the opinion, pose a significant challenge. In theory, neither legalisation nor decriminalisation of the cultivation, distribution, or sale of cannabis for the non-medical market, nor politically justifiable toleration of such activities, are permitted by the Narcotic Drugs Conventions, particularly the Single Convention and the Convention against the Illicit Trafficking of Narcotic Drugs. Narcotics should only be used for medicinal and scientific purposes. The UN Convention against Illegal Trade is a treaty that the EU itself has ratified.
Yet, the authors believe that the legal obstacles posed by the UN can be overcome. Specifically, in regard to human rights and the commitments that Germany is also subject to as a result of international human rights treaties. They contend that a controlled authorization for cannabis cultivation and trafficking provides "a greater opportunity to safeguard basic human rights and to fulfil its positive human rights duties, according to which this state is required to take precautions to protect these rights". A state may even be required to regulate recreational cannabis cultivation and trafficking if doing so better protects rights such as the right to privacy and the right to physical and mental integrity (the right not to be subjected to inhumane treatment to find out) than a prohibitionist drug policy as stipulated by international drug conventions.
According to Fedorova and van Kempe, joining forces with other nations is another way to get over the restrictions placed on cannabis use by international law. On the basis of Article 41 of the Vienna Convention on the Law of Treaties, like-minded governments could band together and endeavour to modify the legal environment.
For decades, academics and others have argued that the EU and International treaties constituted a major roadblock to cannabis reform and until the treaties themselves were reformed, decriminalisation is the furthest a state may go while still abiding by international and EU rules. Approaching drug policy through the lens of human rights has allowed us to view the EU and international treaties and the hurdles they create as surmountable. It will no longer be accepted that these are immovable hurdles, a fresh idea and a fresh view by Fedorova and Van Kempen has given cannabis reform a new lease of life.