What does it mean to adopt a human rights-based approach to drug policy?

By Damon Barrett, Julie Hannah, and Rick Lines, Health and Human Rights Journal

The 25th anniversary of Health and Human Rights comes at an interesting time in international drug policy. Not long ago, references to human rights could be, and were, easily vetoed from draft UN drug policy resolutions. At best, human rights were included in declaratory preambles of omnibus resolutions, and largely forgotten in any substantive sense. Drug policy NGOs, for the most part, did not tend to foreground human rights, while human rights NGOs all but ignored drugs.

The past decade, however, has seen changes. Human rights are now central to international drug policy debates and are causing considerable controversy. Drug policy NGOs have made significant progress in highlighting the human rights dimensions of the field, while human rights NGOs have more and more come to see the issue as one warranting close attention. Indeed, it has become something of a cliché to say that a ‘human rights-based approach to drug policy’ should be adopted. The fact that this is so frequently heard, from NGOs and some governments, is a major step forward. But while much of the work to date has involved identifying rights violations in drug control, we still have not unpacked what adopting a human rights-based approach might mean.

Reconceptualising drugs issues as human rights issues

Over the years we have heard a good deal of scepticism about human rights in drug policy. Usually this has to do with the political palatability of human rights language when trying to achieve a certain goal. There is merit to that worry. No sensible human rights advocate claims your best foot forward is always human rights language. But if human rights are reduced to simply a functional strategy to some other end, then they can be used or discarded at will. This does not do justice to so fundamental an idea.

A human rights approach to any issue foregrounds the relationship between the individual and State power; this is especially the case with drug control. At present the burden falls on those opposing certain drug laws, such as criminalising personal possession, to explain why they don’t work. A human rights approach reverses that burden, placing it instead on the government to justify the limitations on rights and freedoms that such laws entail, and to be accountable for their decisions. Few governments have ever done this. But when these laws have been challenged on human rights grounds in constitutional courts, Governments have lost, as they did with regard to cannabis possession and the right to privacy in South Africa.