The human rights implications of drug policy and drug use are many and varied. In the latest instalment of their exclusive series of articles for VolteFace, Kate Thompson and Petr Kudêlka explore the interface between the two, and, in particular, how drug policy impacts on the right to health.
One of the focal points of any discussion about drugs, drug policy or drug policy reform is health: how do drugs affect our health? Could they be used as medicines? Does drug policy affect people’s health? Would better drug policy have a positive effect on public health? These are some of the most important and commonly asked questions in discussions on drug policy reform and prohibitionist policies, and they are all intrinsically linked to the ‘human right to health’.
The right to health is one of the ‘economic, social and cultural’ rights and is laid down in numerous international and domestic legal documents. It doesn’t imply that all people are legally entitled to be healthy, but rather that they have a right to the highest attainable standard of health. A state shouldn’t interfere so far as to force everyone under its jurisdiction to lead perfectly healthy lives, but should ensure that nobody is less healthy because of the state’s actions or inactions. A state can’t force people to take a life-saving medication, for example, but, as far as possible, it should make sure that that medication is available to those who want and need it.
One of the most iconic images of the war on drugs is of a light aircraft soaring over Colombia, with herbicide raining down on the land below. For 14 years, aerial fumigation was used by the Colombian Government, in cooperation with the US, to try to eradicate illegal coca crops. However, trying to spray only one particular crop from the air is not an exact art. Not only do other crops, and people’s livelihoods, get destroyed when a gust of wind carries the herbicide a little way away from the target plantation, but the chemicals also make their way into human and animal food and water sources. There are many reports from sprayed regions of the devastating effects of aerial fumigation on the health of livestock and civilians alike, with the WHO reporting in May 2015 that the glyphosate used was ‘likely’ to cause cancer.
Under the right to health, a government has an obligation to protect citizens; by spraying dangerous chemicals haphazardly onto them, the Colombian government not only failed to protect its citizens, but actively contributed to the worsening of their health. They prioritised the US’s misguided vision of a ‘world without drugs’, and in doing so violated the right to health, along with numerous other rights, of farmers and their families. In mid-2015, due to these concerns, aerial fumigation in Colombia was halted. Recently though, some government officials have publicly called for the programmes to be restarted.
In fact, the question of what political and ideological agenda a state should prioritise is interesting and applies equally well to the issue of access to essential medicines, another aspect of the right to health. When deciding how to deal with drug policy, the most obvious legal standards to look to for guidance are the International Drug Conventions, which are almost universally ratified and decidedly prohibitionist. However, states have a dual obligation under these Conventions. Not only are they required to restrict use of illicit substance to (a very limited understanding of) medical and scientific use, but they must equally ensure access to essential medicines, which include anaesthetics such as morphine and ketamine. However, in line with the prohibitionist agenda, states tend to throw far more resources at ineffective penal approaches, whilst millions of people are dying and going through labour with no pain relief. Another drug on the WHO’s list of essential medicines is methadone, the drug most commonly used in opiate substitution therapy. Russia, the new leading light of the ‘war on drugs’, offers a sad example of the devastation caused by single-minded adherence to the ‘say no to drugs’ mantra. In 2014 Russia annexed Crimea, and immediately cut the region’s 800 methadone patients off from their supply of the drug – in less than a year over 10% of them had died.
Under prohibition, many substances which we know have profound effects on humans have been almost impossible to include in scientific studies – slowly, however, this is starting to change. After years and years of jumping through hoops to get licences to test illicit drugs on human subjects and to acquire said substances, the results of the first (post-prohibition) drug studies are out – and they are incredible. They suggest that these ‘illegal drugs’, which are used recreationally, and often traditionally, around the world, have considerable medical applications. Those who might benefit include people with MS, eating disorders, pain, insomnia, headaches, PTSD, substance dependency, depression, and even even fear of death. It’s exciting enough that these drugs might provide new treatment options; some more natural, some with fewer side effect. Where things become really interesting is if the treatments are more effective than those currently being used. Under the right to health, if one or more of these treatment options was considered the best or only treatment for a certain disorder, then it would be relatively straightforward to argue that a state should not stand in the way of a patient’s access to that drug. And the evidence does seem to be pointing in that direction. It is notoriously hard to give up smoking, but some of the best results have come from a pilot study with psilocybin (the active ingredient in magic mushrooms)-assisted therapy. Equally, psychedelics seem to be one of the few options which might provide real relief to terminally ill patients struggling to come to terms with death.
As mentioned above, the right to health belongs to the group of rights known as economic, social and cultural (ESC) rights, the other group being ‘civil and political rights’. For practical reasons, states are not expected to ensure access to ESC rights as immediately as to civil and political rights, as their realisation is usually more resource-intensive than that of civil and political rights. Building schools and hospitals (ESC rights) requires more financial resources than allowing people to express themselves freely (civil and political rights). This is reflected in the principle of ‘progressive realisation’, which makes the enjoyment of social and economic rights dependent on a state’s social and economic development. Nations are obliged to safeguard continual progress in the realisation of these rights. In the context of the right to health, for example, although the right, as such, is universal, the actual treatment, therapy or medicine a person is entitled to depends a lot on the country’s socio-economic development.
Whilst this principle justifies different standards of healthcare in different countries, it puts states under the specific obligation to implement therapies that are both effective and cost-effective. One such group of treatments is harm reduction, an evidence-based approach seeking to reduce disease, injury, and the likelihood of death of drug users. Through the dissemination of information on safer drug use behaviours, the establishing of supervised injection sites and drug testing facilities as well as the legal availability of substitution therapy, drug users can avoid many of the risks that traditionally go hand in hand with the illegality of drug use, such as overdose, the spread of blood-borne diseases, social stigma and homelessness. From a human rights perspective, harm reduction is not only rights-coherent, cost-effective and life-saving, it is also a legally necessary part of the drug treatment environment in every state. As harm reduction provides the average drug user with by far their best chances of remaining healthy and alive, and as most states would be hard-pressed to argue that providing clean syringes is more costly than dealing with an HIV epidemic, these initiatives become a vital part of attaining the highest attainable standard of health for a person who uses drugs.
‘Health’ was one of the major arguments for introducing prohibitionist legislation. Drugs needed to be banned for the sake of our health, and the health of our children. The traditional narrative condemned drugs as being responsible for severe societal and physiological harm, only a zero-tolerance policy being capable of preventing us from the risks of this global menace. And, in some ways, it’s true – health is indeed the principle that should guide our decision-making on drug policy; but with the scare-mongering and misinformation replaced with evidence, compassion and compliance with international human rights standards.
Kate Thompson is a researcher, working on drug policy and other human rights issues. Tweets @kthrnthmpsn
Petr Kudêlka is a legal researcher, working on policing practices, privacy, data and animal rights.