Protection From Drugs 2012 - Dontdecriminalize.org

The Protection of Childrenfrom Illicit Drugs – A MinimumHuman Rights StandardA Child-Centered vs. a User-Centered Drug PolicyStephan Dahlgren & Roxana StereFri Förlag

Fri Förlag in cooperation with World Federation Against Drugs andthe Swedish Society for Sobriety and Social UpbringingCover picture: Roxana SterePrinted in Sweden by Vitt Grafiska AB 2012Layout: Migra GrafiskaISBN 978-9189572-15-7

The Protection of Childrenfrom Illicit Drugs – A MinimumHuman Rights StandardA Child-Centered vs. a User-Centered Drug PolicyStephan Dahlgren & Roxana Stere

The AuthorsStephan Dahlgren is a Swedish lawyer who has been working for international organizationson human rights, children’s rights , and home affairs since 1994. He worked withUNICEF from 1994 to 2000 in New York, Kathmandu, and Zambia. He was the Head ofChild Protection for UNICEF Zambia, where he planned and implemented the nationalprogramme on community based responses to children who had lost their parents dueto AIDS.Roxana Stere is a Romanian PhD student in political science at the SNSPA University inBucharest. Obtained a Masters degree in political PR at the same University. She currentlyworks on the production of TV programmes for children at Fast Productions SRLin Bucharest.Spellings of words may vary because quotations are taken directly from their respectivesources. Spelling throughout the text otherwise is in the style of American English.Fri Förlag in cooperation with World Federation Against Drugs,the Swedish Society for Sobriety and Social Upbringingand the Swedish Carnegie InstituteCover illustration: Roxana StereLayout: Migra GrafiskaPrinted in Sweden by Vitt Grafiska AB 2012ISBN 978-9189572-15-72

ContentsForeword ..........................................................................................................................................4Introduction......................................................................................................................................71. The Right of Children to Protection from Narcotic Drugsand Psychotropic Substances ....................................................................................111.1. International Law..................................................................................................................111.2. Human Rights Law ...............................................................................................................141.3. Children’s Right to be Protected from Illicit Drugs, asper the Convention on the Rights of the Child (CRC)...............................................151.4. Special Protection Measures..............................................................................................211.5. The Principles of CRC ........................................................................................................261.6. A Human Rights Approach to Illicit Drugs – OperationalizingSpecial Protection at international and National Level................................................281.7. Conclusions ...........................................................................................................................312. Non Governmental Organizations and Other Relevant Actors...............332.1. NGOs and Other Relevant Actors on the Issuesof Drug Policy and Human Rights ....................................................................................332.2. Assessing Civil Society 1999–2010 ..................................................................................362.3. Other Issues ..........................................................................................................................562.4. Conclusions ...........................................................................................................................593. United Nations Entities................................................................................................613.1. United Nations Children’s Fund – UNICEF...................................................................613.2. United Nations Office on Drugs and Crime – UNODC............................................663.3. World Health Organization – WHO .............................................................................763.4. Office of the United Nations High Commissionerfor Human Rights – OHCHR............................................................................................813.5. The Joint United Nations Programme on HIV and AIDS – UNAIDS ......................843.6. Conclusions ...........................................................................................................................93Final Conclusions .....................................................................................................................95Notes.............................................................................................................................................1023

ForewordThis book is a major landmark in humanrights and international drug policy. AuthorsRoxana Stere and Stephan Dahlgren examinethe universal human rights objective of protectingchildren from drug use, production, andtrafficking as stipulated by the UN Conventionon the Rights of the Child (CRC), the only corehuman rights treaty that specifically deals withthe issue of illicit drugs. Following a detailedlegal analysis, the authors conclude that inorder to conform to the minimum standard setout in CRC Article 33, States Parties mustadopt national drug policies directly promoting“a drug-free society”, in order to create theprotective environment for children that CRCprescribes. Drug policies have to be childcenteredand focused on achieving this goal.The authors also examine how key UNagencies have failed to support CRC Article 33,documenting inadequate and disappointingresults in recent years. Several UN agencieshave departed from the goal of protectingchildren from drug use, production and trafficking.Instead of promoting the minimumstandard contained in CRC Article 33, theseUN entities have undermined it. Their policiesexplicitly support the decriminalization ofdrug use, even when it exposes children towhat the International Labour OrganizationConvention 182 calls “the worst forms of childlabour.” They reject child-centered policies thatensure that children do not get in contact withdrugs. These policies instead depict drug usersof all ages, including children, as victims whosedrug use must be protected, under the extralegalconcept of “harm reduction.”To understand the importance of this bookyou must recognize the enormity and thenewness of the threat of drug abuse in theworld today. The modern drug abuse epidemicis rooted in the cultural changes that haveswept the world beginning in the mid 1960s.Since then, for the first time, entire populations– especially children and adolescents –have been exposed to a large and still growinglist of powerful drugs of abuse. These drugs arenow commonly consumed by highly potentroutes of administration (snorting, smoking,and injecting). The global drug epidemic isfueled by changes in the world culture thathave encouraged wider latitude of individualchoices in behavior, by increased globalizationof drug trafficking, and by increased toleranceof drug use. The 200 million people in theworld now estimated to use illegal drugs eachyear are but a faint hint of the potential for theuse of these powerful drugs. The challenge ofdrug policy today is to find cost-effective strategiesthat are consistent with existing laws andvalues to limit the nonmedical use of drugs,and thus the harm that drug use causes. Thesearch for new and improved drug preventionand treatment strategies is one of the greatchallenges of the 21st century.To think clearly about choices in drug policy,we need a historical perspective on the eventsthat have shaped contemporary philosophiesabout what to do in the face of dramaticincreases in drug use. The two poles of globaldrug policy are clearly articulated in the strikinglydifferent works of American sociologistAlfred Lindesmith and Swedish psychiatristNils Bejerot.Alfred Lindesmith sought to separate the4

criminal justice system from drug policy by“medicalizing” drug use. He advocated theadoption of the then-popular “British System”for treating heroin addiction by having physicians“prescribe” heroin and other abuseddrugs to addicts. This approach was enthusiasticallyimplemented in Sweden when thecountry was hit by an unprecedented epidemicof intravenous amphetamine and heroin use.Following Lindesmith’s vision, from 1965-1967, Swedish physicians prescribed drugs toaddicts with the twin goals of graduallyweaning them off the drugs and separatingthem from traffickers who would introducethem to other drugs and who exploited theirdependence. Nils Bejerot, then working for theStockholm police, carefully observed theresults of this “harm reduction” approach todrug use: Swedish addicts did not stop usingdrugs when given to them by physicians.Rather, the addicts kept using the drugs at evenhigher doses. In addition, they spread theiraddiction by selling their prescribed drugs toothers in the community. This well-meaningapproach to drug use created an entirely newand far larger source of drugs in Stockholm,increasing the addicted population.Bejerot spent two decades overcoming thedetermined resistance to the clear, easilyunderstood reality that resulted from theBritish System advocated by Lindesmith. Basedon this experience, Bejerot championed drugfreetreatment linked to strong law enforcementagainst both drug traffickers and drugusers. He found that when drug addicts wereconfronted with prison as an alternative totreatment, most of them stopped using drugsand that the force of the criminal law wasessential to getting, and keeping, many addictsin substance abuse treatment.During this time Sweden had a vital alcoholtemperance movement, tracing its roots backto the last decades of the 19th century, a movementmany Swedes identified with that of thelabor union movement with which it waspaired. The alcohol temperance movementjoined forces with the growing number ofSwedes looking for a better drug policy. Thenew drug policy adopted in Sweden held individualsresponsible for their drug use withincreased enforcement of drug laws coupledwith modest punishments for small crimesrelated to drug use and possession. Swedish lawplaced a strong focus on increasing drug abusetreatment. As a result of this drug policy evolution,it became un-Swedish to use drugs. In theheart of Sweden, the world’s ultimate liberalwelfare state, sprang up the modern alternativeto “harm reduction.” Today Sweden has one ofthe lowest prevalence rates of drug use, includingamong youth, in the developed world.All “harm reduction” ideas, inspired byAlfred Lindesmith, are characterized by toleratingnonmedical drug use while trying to mitigatesome of the negative consequences of thatdrug use. These policies reject the role of thecriminal justice system in drug treatment andprevention. The new balanced and restrictivedrug policies that contrast with “harm reduction”are built on the foundation of keepingnonmedical drug use and sales illegal and onpromoting the drug-free standard. These newdrug policies are based on the ideas of NilsBejerot.The internationally well-respected 12-stepfellowships of Alcoholics Anonymous (AA)and Narcotics Anonymous (NA) have con -cluded based on decades of experience that“cutting down” drug use is a futile goal foraddicted people. Only sustained abstinenceprovides stability for the addict. Abstinenceincludes all nonmedical drug use includingalcohol, not just abstaining from a singleprimary drug of abuse. In other words, an alcoholicneeds to stop using marijuana and aheroin addict needs to stop drinking to be inrecovery. The new goal of treatment is “recovery”which requires abstinence from alcoholand other drug use and meaningful characterdevelopment. Recovery goes even further than5

abstinence to the fulfillment of higher goals ofhealthy participation in family and in communitylife.This groundbreaking book, The Protection ofChildren from Illicit Drugs – A MinimumHuman Rights Standard A Child-Centered vs. aUser-Centered Drug Policy, takes on this lifeand-deathdrug policy battle in the context ofthe United Nations’ conventions by focusingon children, the most vulnerable segment ofthe population at the most common age ofonset of addiction. The serious and often longtermnegative physical and mental healtheffects of participation in drug use, production,and trafficking by children are vast. Thesenegative effects extend beyond their own druguse. Children are first uniquely vulnerable tothe devastating effects of drug use by theirparents and other caregivers, including neglectand abuse. Modern brain research hasconfirmed the special vulnerability of thechild’s brain to drug use which is commonlyassociated with prolonged, often lifelong, druguse and to negative effects on learning, educationand employment. Article 33 of the CRC isa clarion call to the international communityto rally around the goal of protecting childrenfrom drugs, including keeping them drug-free,as a vital, central human right.CRC Article 33 responds to this four-decadeold drug policy battle. It has its roots in therights of the child and in the human rights thatare the heart of the United Nations. The rightsof children to be protected from drugs asexemplified in CRC Article 33 is today beinglargely ignored in the drug policy debateinspired by the call for “harm reduction”,which supports and tolerates continued druguse while seeking to mitigate one or another ofthe myriad of ill effects of drug use.Stephan Dahlgren and Roxana Stere areardent supporters of rule of law. They see thecreation and the existence of the UnitedNations as an act of enlightenment in humanhistory. They are alarmed by the failure todayof several UN agencies to meet a minimumhuman rights standard for children. Theiralarm has been the motivating factor for thisbook. Dahlgren and Stere provide clear andmuch-needed direction for the tremendouspotential effect of non-governmental organizationsin the current policy debate. The foundationof this new direction is in the nobleaspirations of the United Nations and otherinternational entities that relate to drugcontrol and human rights. They insist, basedon the law, that in any drug policy discussion,children’s rights to be protected from drug use,production, and trafficking must be the firstpriority.I am honored to play a small part in thepromotion of this book.Robert L. DuPont, M.D.President, Institute for Behavior and Health,Inc. (1978-present)Founding Director, National Institute on DrugAbuse (1973-1978)Former U.S. White House Drug Chief(1973–1978)6

IntroductionThe recreational use of narcotic drugs andpsychotropic substances is a matter on whichall of us have opinions based on our cultural,social and/or moral background. Often, illicitdrug consumption is perceived as a matter ofpersonal choice over one’s own body or life.But contrary to piercing or tattooing, whichare exclusively the subject of a person’s privacy/autonomy, illicit drug consumption causesnoteworthy harm to drug users and significantharm to those around them. Drug use generatesmedical, social, economical, and securityrelated problems, to name just a few of theconsequences of this phenomenon. It is forthese reasons that, for more than a century, theissues of production, distribution and possession/consumptionof such substances are theobjects of legal regulation at both internationaland national levels.Today, the internationally applicable controlmeasures dealing with narcotic drugs andpsychotropic substances are codified in internationallaw by three mutually supportive andcomplementary conventions: the SingleConvention on Narcotic Drugs of 1961 asamended by the 1972 Protocol, the Conventionon Psychotropic Substances of 1971, and theUnited Nations Convention against IllicitTraffic in Narcotic Drugs and PsychotropicSubstances of 1988. The international communityreached an agreement that identifieschildren as the most vulnerable group insociety in relation to the use, production andtrafficking of these substances and addressedthese concerns in Article 33 of the Conventionon the Rights of the Child, 1 the only internationalhuman rights instrument to mentionillicit drugs and psychotropic substances in thewhole human rights regime. In 1999, the InternationalLabour Organization (ILO) defined inConvention 182 “the use, procuring or offeringof a child for illicit activities, in particular forthe production and trafficking of drugs asdefined in the relevant international treaties” 2as one of the worst forms of child labour andcalled for immediate action to be takentowards the prohibition and elimination ofthese worst forms of child labour. Althoughthese instruments belong to different branchesof international law, they should be deemed asa package work ing in unity towards commongoals: to protect children from the array ofharms associated with illicit drugs and toprotect human health by preventing illicit useand drug dependence while ensuring the avail -ability of narcotic drugs and psychotropicsubstances for medical and scientific purposes.It should be noted that these five conventionshave the highest level of ratification withintheir regime and also within the whole range ofinternational law instruments. It is also noteworthythat CRC is the most widely acceptedinternational human rights instrument andthat no country has made any reservationagainst the provisions stipulated by CRCArticle 33.According to the present legal architecture,it defies logic to argue that the interest of adultsto consume drugs should prevail over the interestof children to be protected from the use ofnarcotic drugs and psychotropic substancesand to be protected from involvement in theirproduction and trafficking. Nonetheless, prioritizingdrug users’ interest and describing this7

group as the most vulnerable in society hasbecome the mainstream rhetoric of the last fewyears in the ongoing discussion concerninghuman rights and drug policy.For more than twenty years, the UnitedNations Children’s Fund (UNICEF), theworld’s most visible advocate for children rightsand needs, has ignored or even avoided anyinvolvement with CRC Article 33. Moreover, in2010 UNICEF signed a report requesting theremoval of punitive laws for drug use 3 withoutgiving any due attention to, or explanation of,how such an approach conforms to the children’srights doctrine. Nor was there any explanationof how this approach would affect theinvolvement of children in the illicit productionand trafficking of narcotic drugs andpsychotropic substances.Furthermore, several other UN entitieswhich have a direct or adjacent mandate in relationto the two spheres of international law(human rights and international drug control),including the High Commissioner for HumanRights, the United Nations Office on Drugs andCrime (UNODC), the World HealthOrganization (WHO) and the Joint UnitedNations Programme on HIV and AIDS(UNAIDS), consistently and completely ignorethe only human rights provision addressingillicit drugs in any of the international humanrights instruments. Instead, these organizationsexclusively focus on the rights of drug users.The most problematic aspect in this contextis that for more than 20 years, the Committeeon the Rights of the Child (the body of independentexperts that monitors the implementationof the Convention on the Rights of theChild by States Parties) had never discussed ina comprehensive way, the meaning and theimplications of Article 33, in order to facilitatea better understanding of content and implications.Moreover, for 20 years, the Committeehas issued nearly identical, seemingly disinterestedand brief concluding observations onstate reports’ of issues related to CRC Article 33without regard to the scope of drug use amongthe child population in any given country.It is remarkable that the Committee on theRights of the Child repeatedly emphasized thatchildren’s rights are “indivisible and interrelated,and that equal importance should beattached to each and every right recognizedtherein”, yet decided after more than 20 yearsof historical inertia in relation to CRC Article33 to physically disjoint this special protectionmeasure by splitting it in two parts, in itsgeneral reporting guidelines issued in 2010. InCRC/C/58/Rev.2, the Committee made theunprecedented decision to cancel the philosophyof a provision by reducing Article 33’svalue as a special protection measure to merelyhalf of the article, namely the part that reads:“to prevent the use of children in the illicitproduction and trafficking of such substances”,whereas the first part of Article 33 that reads:“to protect children from the illicit use ofnarcotic drugs and psychotropic substances asdefined in the relevant international treaties“ isreduced and placed under cluster 6: Disability,basic health and welfare. 4 It is difficult to identifythe logical reason for such a decision. It isclear from the Legislative History of the Conventionon the Rights of the Child that Article 33 is aspecial protection measure and that the idea ofincluding it under the health cluster was notaccepted at the time when the CRC wasdrafted. 5 For more than 20 years, Article 33belonged to cluster VIII Special protectionmeasures, subsection (c) Children in situationsof exploitation, including physical and psychologicalrecovery and social reintegration beingaccompanied by: Article 32, economic exploitation,including child labour; Article 34,sexual exploitation and sexual abuse; Article35, sale, trafficking and abduction; Article 36,other forms of exploitation, et cetera. Even thephysical position of this article in the Conventiontext suggests this basic interpretation ofthe whole Article 33 as a special protectionmeasure.8

Under CRC Article 44, States Parties assentto submit regular reports to the Committee onthe measures they have adopted to put theConvention into effect and on the progress inthe enjoyment of children’s rights in theirrespective countries. Like any other humanrights treaty body, the Committee on theRights of the Child adopts guidelines on theform and content of reports in order to assistStates Parties with the preparation of theirreports. The purpose of these guidelines is tohelp States Parties through the complex reportingprocess and to place “emphasis onconcrete implementation measures whichwould make a reality of the principles andprovisions of the Convention.” 6 However, if weconsider the post-November 2010 pattern ofStates Parties reporting and the commentssome Member States shared with us, the cleavingof Article 33 is deemed highly illogical andconfusing. Therefore during 2011–2012 thevast majority of States Parties have continuedto report on Article 33 under the specialprotection measures section, not under thehealth cluster. Moreover, it is also highly questionablethat this partition makes the provisionsstipulated by CRC Article 33 a reality.One year later, the same Committee decided touncritically and indefinably recommend“harm reduction” for children in its concludingobservations for Ukraine, adopted at its1611th meeting, held on 3 February 2011. Evenif the Committee on the Rights of the Childdecided to place these recommendationsunder the cluster of basic health and welfareand talked about a broad range of “evidencebasedmeasures in line with the Convention”, itis highly unclear if recommending undefined“harm reduction” services for children willconform with the requirements of CRC Article33, namely “to protect children from the illicituse of narcotic drugs and psychotropicsubstances”. Hence, it would be of interest toknow which so-called “harm reduction”services the Committee deems as appropriatefor children? Should these services includesterile injecting equipment and the prescriptionof opioid substitution therapy? Or shouldthey include drug consumption rooms and pilltesting? Or policy change and justice systemreform as a step towards the decriminalizationor legalization of nonmedical/recreationaldrug use?Against this background, this publicationreminds stakeholders that children have rightsand that these rights have to be respected. Italso attempts to points out that solemn declarationslike: “I solemnly declare that I willperform my duties and exercise my powers as amember of the Committee on the Rights of theChild honourably, faithfully, impartially andconscientiously”, 7 or that “mankind owes tothe Child the best that it has to give”, 8 that “therights of the child should be a priority in theUnited Nations system-wide action on humanrights” 9 must go beyond the rhetorical stageand become reality.Meanwhile, the following reports andappeals from children are just a few of themany sobering and mortifying reminders ofwhy CRC Article 33 exists and why it must berespected:“I just came out of school. I can’t take thisany more. My dad locks himself in hisroom and ignores everyone. I think he hasstarted taking drugs again. My mum is notcoping either; she is smoking more and noteating. I’m having to help Mum to lookafter my brother and sister. I am worried. Ican’t concentrate on my work. I want to dowell at school. Some of the boys are callingme names.”Child aged 12 10“My dad is smoking weed and gets angry.When I come home from school, there isno food for me. He has threatened to hitme and once he locked me in a cupboard. Iam scared to tell anyone.”Child aged 14 119

“I am at home alone now. My dad keepstouching me in my private parts and mybum. My dad is always taking drugs. If I tellanyone, he said he will kill me. I don’t go toschool. I stay all day in my room until Daddoes what he does.”Child aged 14 12“My dad is beating me and my youngerbrother. Dad injects something into hisarm and shouts at me and beats me. Mybrother and I have bruises. My teachers seethis and when they ask, I tell them I had afall.”Child aged 9 13“I want to run away from home. Both myparents use drugs and alcohol and theyfight. My mum brings men home all thetime. I really hate their way of living andwould like to get away. I did try to get awaywith my sister but my sister is partlydisabled so she couldn’t keep up and wecame back home. I am really unhappy to beleft alone in the house all night.”Child aged 14 14“I live with my mum and her boyfriend.They both take drugs. I am worried theymight die. My mum makes tea and thensmokes drugs. She shouts at me. I feed mybaby sister. I see my dad every two monthsand he takes drugs.”Child, age unknown 15“In a way, I wanted my mum to go back toprison, because she was clean [drug free]for a few weeks when she came out ofprison.“Child between 12 and 18 years 16“Yes, I take ecstasy, pills and smoke weed. Itried weed [cannabis] for the first timewhen I was 10, when I started smoking. Myfriend owed me [money]. His mother wasselling weed, pills and ecstasy, and hereturned me weed instead of money. I don’tsmoke alone, only when with friends.”Child aged 16 17“Me and my friend came to an apartment,there were boys. She started to inject, and Itried as well. Just for fun. I was allowed notto pay, he gave my money back. I just said Iwanted to.”Child aged 15 1810

1. The Right of Children to Protection fromNarcotic Drugs and Psychotropic SubstancesIn the last decade, there has been an increasedtendency to adopt the language of humanrights in the context of the international drugpolicy. While such an undertaking should bedeemed constructive, based on the premisethat every policy area, covered by internationallaw would benefit from a human rights scrutiny,it can be noted that a remarkable featureof this particular human rights discourse is theglaring absence of reflection on children’srights. The omission of the Convention on theRights of the Child (CRC) in this discourse, theonly international human rights instrument tocontain an explicit provision on illicit drugs, isnot only difficult to justify, but also under -mines the human rights credibility of themessenger.This publication primarily deals with theapparently forgotten, or possibly suppressed,minimum standard in the field of humanrights: Article 33 in the Convention on theRights of the Child. We have attempted to findan explanation as to why the discussions on theapplication of human rights to the internationaldrug control policy avoid exactly thisinstrument and how a human rights baseddrug policy in conformity with internationallaw should be configured.Article 33 is very clearly worded. It is alsospecifically set in the context of the existinginternational drug control system, to which itmakes direct reference. Therefore, from ahuman rights point of view the illicitconsumption of drugs is far from being avictimless crime or solely a matter of privacy.Protecting children from illicit drug use andfrom involvement in the production and traffickingof such substances, is a core concern ofthe most ratified of all human rights instruments.Moreover, Article 33 belongs to theCRC’s cluster of special protection measuresalongside issues such as: economic exploitationof the child; the sale of or traffic of children,recruitment of child soldiers, child sexualexploitation and sexual abuse, et cetera. Theexistence of this specific provision in this particularhuman rights instrument clearly indicatesthat an agreement was reached at theinternational level concerning children’s particularvulnerability in relation to narcotic drugsand psychotropic substances. Therefore, drugcontrol is an area where CRC and the principleof the best interest of the child have to beconsidered as start ing points in policy-making.Ergo, prevention and protection from illicitdrugs are not only imperatives for the StatesParties to the CRC, but values in themselves, aswith any other CRC child protection measure.1.1. International LawInternational law is an extremely broad andcomplex field of study that has stimulated alarge corpus of literature and “is ordinarilydefined as the body of legal rules which appliesbetween sovereign states inter se and otherentities possessing international personality.” 1It is usually divided into two branches: publicinternational law and private international law.11

The present publication deals with the areaof public international law. Public internationallaw covers a wide spectrum of matters,ranging from the right of states to go to war,disarmament, treatment of war prisoners,diplomatic and consular relations, internationaltrade and development, environment,outer space, and biological diversity, to humanrights. An extensive discussion on this topic isoutside the scope of this publication but in thefollowing sub-chapter we will summarilyclarify a few of the concepts relevant to thesubject at stake.Treaties are the primary source of internationallaw, and in the post-war era “treatieshave assumed a clear prominence as theprimary source of law-making on the internationalplane.” 2 The Statute of the InternationalCourt of Justice 3 outlines in Article 38 therecognized sources of international law to beapplied by the Court in settling legal disputessubmitted to it by states. The first to bementioned are international treaties. 4 This islogical, since preference of other sources wouldclearly give arbitrary and unforeseeable parametersto the content of international law andessentially turn law into politics. “By enteringinto written agreements (treaties) states avoiddifficulties inherent in customary internationallaw.” 5 In the treaty-based legal system,sovereign states are deemed as equal partnerscapable of negotiating and accepting the principlesand rules considered desirable andconducive to improved international cooperationin various areas of concern, or denouncinginstruments considered undesirable orobsolete. This system provides a higher level offoreseeability, as States Parties “should be ableto rely on performance of the treaties by otherparties”. 6 Treaties are legally binding only forthe states which express their consent to bebound 7 ; they do not create obligations orrights for third states without their explicitconsent, as per principle pacta tertiis nec nocentnec prosunt. 8 The existence of this rule in internationallaw was never called into question. 9Regarding this principle, the International LawCommission stated that “the justification forthe rule does not rest simply on this generalconcept of the law of contract but on the sovereigntyand independence of States.” 10 Thepacta tertiis rule is codified in the Conventionon the Law of Treaties of 1969. 11These are just few reasons why in the aftermathof World War II the number of multilateraltreaties proliferates and continues to growsteadily. 12 “Increasingly, bilateral and multi -lateral written agreements are used for the creationof new international legal standards. Forpolitical reasons, states are... less willing to relyupon customary international law for the regulationof legal matters. New technology andgrowing international exchange have establishedthe need for an ever more precise andflexible international law – a need not satisfactorymet by customary law. In many fields ofactivity, we can seriously question whether thecreation of a rule of custom is at all possible.Considering also that the number of statescapable of drafting and concluding treaties seemto be growing, it is not surprising that treatiesare concluded far more frequently than everbefore.” 13International law literature frequentlydistinguishes between hard law and “soft law”.Hard law (multilateral treaties) is always legallybinding upon States Parties, whereas “soft law”(e.g. declarations, resolutions, guidelines ofconduct, et cetera) is not. As indicated by someauthors, the instruments belonging to the “softlaw” category “are neither strictly bindingnorms of law, nor completely irrelevant politicalmaximus, and operate in a grey zonebetween law and politics.” 14 However, “softlaw” instruments can sometimes be useful,especially in areas where there are no hard lawinstruments, in those cases where “the choicewould not have been between a binding andnon-binding text, but between a non-bindingtext and no text at all.” 1512

The preeminence of treaties is hardly asurprise. Treaties are adopted after a draftingprocess that often takes several years to complete.After the adoption, the highest politicalauthority in each country may decide to ratifythe treaty. “The institution of ratificationgrants states the necessary time-frame to seekthe required approval for the treaty on thedomestic level and to enact the necessary legislationto give domestic effect to that treaty.” 16This is another process which can take severalmore years. States have the option to accept atreaty while making reservations 17 on specificprovisions which they do not want to assumeor which they consider incompatible with theirnational legislation, as long as these reservationsare not incompatible with the object andthe purpose of the instrument. 18 The contractingstates may make a reservation whensigning, ratifying, accepting, approving oracceding to a treaty. 19 It is difficult to thinkabout a more thorough procedure for assumingresponsibility towards a legal text. 20 Itwould defy comprehension to imagine how aratifying state could, at the end of this process,decide that it is not bound to it, that “the treatydoes not mean what it says”, or “is not in ournational interests to honor what we have ratified”,as this would undermine the very idea ofinternational law as law. As the ViennaConvention on the Law of the Treaties Article27 stipulates, “A party may not invoke theprovisions of its internal law as justification forits failure to perform a treaty...” 211.1.1. The 1969 Vienna Conventionon the Law of TreatiesThe interpretation of treaties is subject to aspecific instrument: the 1969 Vienna Conventionon the Law of Treaties (VCLT). 22 Theadoption of what is called the “treaty on treaties”has an undeniable importance as itsymbolizes the end result of a decades-longeffort to codify in law an international acceptedgrammar for treaty interpretation. VCLT laysthe ground rules for how treaties are to beapplied and interpreted. According to VCLTArticle 2(1) (a) treaties are defined as an:“international agreement concluded betweenStates in written form and governed by internationallaw, whether embodied in a singleinstrument or in two or more related instrumentsand whatever its particular designation”.23A fundamental principle of internationallaw is the obligation to act in good faith, whichis expressed by the principle pacta suntservanda 24 , enshrined in VCLT Article 26,which stipulates that “Every treaty in force isbinding upon the parties to it and must beperformed by them in good faith.” 25 As statedby the International Law Commission thepacta principle “is the fundamental principleof the law of treaties. Its importance is underlinedby the fact that it is enshrined in thePreamble to the Charter of the United Nations.As to the Charter itself, paragraph 2 of Article 2expressly provides that Members are to ‘fulfil ingood faith the obligations assumed by them inaccordance with the present Charter’”. 26 TheCommission specified that the obligation toperform a treaty in good faith implies, interalia, the duty parties have “to abstain from actscalculated to frustrate the object and purposeof the treaty.” 27 Another clear reference to thisprinciple is made in VCLT Article 31, whichprovides that treaties have to be interpreted ingood faith and in accordance with the ordinarymeaning to be given to the terms of the treaty.The 1969 Vienna Convention covers a largerange of topics, including: conclusion andentry into force of treaties; observance, applicationand interpretation of treaties; amendmentsand modification of treaties; invalidity,termination and suspension of the operationof treaties; consequence of the invalidity,termination and suspension of the operationof treaties; et cetera. In its Part III, whichaddresses the issue of observance, applicationand interpretation of treaties, VCLT esta-13

lishes, among other things, the rights andobligations of States Parties to successive treatiesrelating to the same subject-matter. It alsoindicates, as a rule applicable for the situationswhere there exist more than a single rule to beconsidered for a certain situation, that a newertext goes before an older text, as per principle:lex posterior derogat priori. 28 This supplementsanother rule which provides that special lawtrumps general law, according to the principle:lex specialis derogat lex generalis.Treaties require the prospective agreementamong a large number of states. Given theirdifferences in socioeconomics, history, religion,culture, et cetera, this means that theworld community, if successful, will substantiallyagree on the smallest common denominator- a minimum standard. In the tangleddrafting process, some treaty provisions mayhave had the full backing of the drafters, andtherefore have been expressed very clearly,whereas other provisions may have beencontested during the drafting process, andtherefore subjected to a muddy compromisewhere their eventual wording is unclear. Standardlegal methodology would compel theinterpretation of all treaties’ provisions as pertheir wording, as stipulated by VCLT Article 31.The same provision also underlines that thecontext for the purpose of the interpretation ofa treaty shall comprise, in addition to the text,including its preamble and annexes, anyinstrument which was made by one or moreparties in connection with the conclusion ofthe treaty and accepted by the other parties asan instrument related to the treaty. In caseswhere a provision is ambiguous or obscure, orwhen interpretation according to Article 31leads to absurd or unreasonable meaning,Article 32 VCLT indicates the need to recourseto supplementary means of interpretation.In international law, there are several branchesincluding environmental law, trade law,human rights law, et cetera. In the followingsection we will briefly discuss general humanrights law before moving on to children rights,one of the fields within human rights law.1.2. Human Rights LawThe establishment and development of theinternational human rights regime, on thefoundations of the UN Charter and of theUniversal Declaration of Human Rights(UDHR), is one of the biggest successes andinnovations of the international communityunder the auspices of the United Nationsthrough the establishment of a comprehensivebody of human rights law.At present, the United Nations HighCommissioner for Human Rights lists thefollowing treaties as the nine core humanrights instruments: 29• International Convention on theElimination of All Forms of RacialDiscrimination (ICERD), 21 Dec 1965;• International Covenant on Civil andPolitical Rights (ICCPR), 16 Dec 1966;• International Covenant on Economic,Social and Cultural Rights (ICESCR), 16Dec 1966; 30• Convention on the Elimination of AllForms of Discrimination against Women(CEDAW), 18 December 1979;• Convention against Torture and OtherCruel, Inhuman or Degrading Treatment orPunishment (CAT), 10 Dec 1984;• Convention on the Rights of the Child(CRC), 20 Nov 1989;• International Convention on the Protectionof the Rights of All Migrant Workers andMembers of Their Families, (ICRMW), 18Dec 1990;• International Convention for theProtection of All Persons from EnforcedDisappearance (CPED), 20 Dec 2006;• Convention on the Rights of Persons withDisabilities (CRPD), 13 Dec 2006.All of these instruments stipulate obligationswhich their States Parties are bound to respect.14

Human Rights = Minimum StandardsThe most important characteristic of humanrights law is that it establishes minimum standards,which must be upheld. A State Party cango further than the treaty stipulation in orderto protect people, provide social rights, etcetera, but it cannot do less than the treaty re -quires. This is said with the caveat that humanrights law sometimes considers the resourceaspect, whereby poorer countries shall implementprovisions to the maximum extent ofavailable resources.The Convention on the Rights of the Childis hard law and is the core human rights instrumentwith the highest ratification number ofall instruments (193 of 195 UN MemberStates). 31 It is also the only core human rightsinstrument which addresses narcotic drugs. 32Therefore, it seems inevitable that one muststart with the Convention on the Rights of theChild when dissecting the issue of illicit drugsand human rights. Any other approach wouldstray away from treating human rights asminimum standards, reversing law into politics.1.3. Children’s Right to be Protectedfrom Illicit Drugs, as per theConvention on the Rights of theChild (CRC)1.3.1. About Children Rights LawThe fulcrum of international children rightslaw is the Convention on the Rights of theChild (CRC). The CRC was unanimouslyadopted by the UN General Assembly on 20November 1989 and immediately became amajor success in terms of ratifications. Theinstrument already entered into force on 2September 1990. Within only six years, 33 190out of the then 192 United Nations MemberStates had ratified the CRC. Today the numberstands at 193 out of 195. 34 The only two statesthat have not ratified this treaty are Somaliaand the United States of America. This makesCRC the hard law instrument of almostuniversal reach and the most widely ratifiedinternational convention of all.Children’s rights before the adoption of theConvention on the Rights of the ChildPrior to the adoption of the Convention on theRights of the Child, children’s rights wereaddressed in several other international instruments.The history of the efforts to acquireinternational recognition of the special needsand vulnerability of children as human beingsgoes back to the Geneva Declaration of theRights of the Child adopted on 26 September1924 by the League of Nations, the predecessorof the United Nations. This document states“that mankind owes to the Child the best thatit has to give”. 35 The Universal Declaration ofHuman Rights from 1948 implicitly addresseschildren in all its provisions and specificallystipulates in Article 25 (2) that children mustbe given special assistance and care. 36 In 1959,the General Assembly adopted the UnitedNations Declaration of the Rights of the Child,a legally non-binding instrument, comprising10 principles, of which many are similar topresent provisions in the CRC.The International Covenant on Civil andPolitical Rights 37 and the InternationalCovenant on Economic, Social and CulturalRights, 38 adopted in 1966, implicitly coverchildren and address the special rights ofchildren in several of their provisions. The1979 Convention on the Elimination of AllForms of Discrimination Against Womenprovides protection for maternity, the humanrights of girls, and has few provisions referringto all children, irrespective of their gender. 39The efforts of the child rights movement toestablish a comprehensive and legally bindinginstrument which specifically addresses children’sspecial status and makes children subjectin law continued. In 1978, Poland proposed adraft text for a convention on the rights of the15

child based on the 1959 Declaration. In 1979,the UN Commission on Human Rightsinitiated the process, which after a decade ledto the adoption on the Convention on theRights of the Child. This instrument was aquantum leap for children’s rights in terms oflegal status, solidity and detail.The Convention on the Rights of the ChildThe Convention on the Rights of the Childsomewhat mirrors some of the broad humanrights instruments 40 in that it comprises asimilar general rights catalogue. CRC has atotal of 54 Articles, whereof 42 are substantialand 12 procedural. However, the purpose ofthe CRC was not to affirm that children havethe same rights as adults. The purpose was tolegislate on rights/minimum standards forchildren on the basis of their special needs, andput these rights together in one legally bindinginstrument.In Article 1, the CRC defines the child asevery human being below the age of eighteen.In practice, the CRC was divided into severalclusters: General Principles; Civil Rights andFreedoms; Family Environment and Care;Basic Health and Welfare; Education, Leisureand Cultural Activities; and, Special ProtectionMeasures. Many of these rights are worded thesame of children as for adults. The most strikingdifferences with previous human rightsConventions is the principle of the best interestof the child (Article 3), which is prima facieelevating children’s interests above humanrights interests for adults in all actions concerningchildren. Another particularity of thisinstrument is the cluster of eleven articles onspecial protection measures for children,which calls on States Parties to proactivelyensure that children shall not engage or beinvolved in high-risk activities or suffer theeffects thereof, including illicit drug use, labourexploitation, sexual exploitation, recruitmentinto armed forces, et cetera. Also, “The conventionis innovative in establishing the right ofchildren to be actors in their own developmentand to participate in decisions affecting theirown lives and their communities and societies.This constitutes a legal revolution because thechild is no longer an ‘object’, a tool in the handsof the parent, but a ‘subject’ in law.” 41At present the CRC has two optional protocols:the Optional Protocol to the Conventionon the Rights of the Child on the sale ofchildren, child prostitution and child pornography,adopted in May 2000 (which enteredinto force in January 2002), and the OptionalProtocol to the Convention on the Rights ofthe Child on the involvement of children inarmed conflict, also adopted in May 2000,(which came into force in February 2002).The CRC, as with the other eight humanrights treaties, creates legal obligations for theState Parties to implement, protect andpromote the rights of the child at the nationallevel. The accession, ratification or acceptanceof the legal instrument compels the StateParties to implement its provisions.A similar solution for monitoring adherencehas been applied to the Convention on theRights of the Child in line with other humanrights conventions: the setting up of an independentmonitoring body. In accordance witharticle 43 of the Convention, the Committeeon the Rights of the Child was set up in 1991and its members began their term of office on1 March of the same year.As for the other human rights conventions,State Parties should benefit of the treaty body’ssupport, advice and assistance in meeting theirinternational obligations. The mandate of theCommittee on the Rights of the Child is stipulatedin articles 43, 44 and 45 of the CRC.1.3.2. CRC Article 33CRC Article 33:States Parties shall take all appropriatemeasures, including legislative, administra-16

tive, and educational measures to protectchildren from the illicit use of narcoticdrugs and psychotropic substances, asdefined in relevant international treaties,and to prevent the use of children in theillicit production and trafficking of suchsubstances.1.3.3. A Closer Examinationof Article 33As previously discussed, international treatiesare minimum rules in every sense of the word:they set out the minimum obligatory standardsto which States Parties must adhere; they alsoreflect the smallest common denominatorwhich is agreed upon by 195 countries in theworld when drawing up a treaty text. Sometimesthis process can result in the lack of aprecise agreement, with no or unclear provisionsas a consequence. CRC Article 33 is notbereft of these shortcomings. It is designed fora clear purpose and written in an explicitlanguage, which refers back to definitions inalready existing treaties. Article 33 is one themost explicit of all special protection provisionsin CRC. It should also be noted that noState Party to CRC has expressly made a reservationagainst Article 33. 421.3.4. The Thrust of Article 33Article 33 sets out to protect/prevent childrenfrom three things:1. Illicit use of narcotic drugs and psychotropicsubstances (protection);2. Participation in production of illicit drugsand psychotropic substances (prevention);3. Participation in trafficking of illicit drugsand psychotropic substances (prevention).1.3.4.1. Protection from illicit use(Article 33 Part 1)The word “protect” is used in several otherArticles in the Convention on the Rights of theChild, including the special protection mea -sures. Looking at all special protection provisions,it appears that a key element of protectionis to mandatorily prevent the threat tochildren set out in the special protectionmeasures articles.There can be little doubt that the legislator(the CRC drafters) intended that, for activeprotection provisions in CRC, States Partiesmust ensure that each of the threats depictedwill be eliminated, and that the policy ambitionof States Parties must be phrasedaccor dingly.The term “illicit use” is a link to the languagein existing UN drug-related treaties. The LegislativeHistory of the Convention on the Rights ofthe Child indicates that the final wordingemerged after the draft of Article 33 wassubmitted in 1988 for technical review to theUnited Nations Narcotic Drug Division, to theWorld Health Organization (WHO), and toUNICEF. 43The UN Narcotic Drug Division suggestedthat the word “illicit” should be used instead of“illegal”, so as to conform to the internationallegal framework on narcotic drugs andpsychotropic substances. In the drug-relatedconventions, “illicit” refers to the purpose of“use”. “Use” becomes illicit as soon as it is foranything other than medical or scientificpurposes. The twin aims of the UN drugconventions are to combat non-medical use,namely illicit use, while also ensuring medicaland scientific access to controlled substances:the licit use.CRC Article 33 sets out to protect childrenfrom “use”. Looking back at the draftingprocess of the Convention on the Rights of theChild, it can be noted that the word “abuse”was used in the Article 33 draft text until 1986,when it was replaced with “use”. 44As stipulated by Article 31 of the ViennaConvention on the Law of Treaties, legal interpretationof treaty texts shall be done throughthe “ordinary meaning to be given to the termsof the treaty in their context and in the light ofits object and purpose.” Some treaties include a17

section, an Article, with legal definitions whichclarify the special meaning of certain terms. Inthis context, we should note that theConvention on the Rights of the Child does notprovide any special list of definitions relevant tothe language of Article 33; therefore, we shouldapply the rule of ordinary meaning. The terms“use” and “abuse” have different ordinarymeanings. In terms of drugs, “abuse” has amore complex meaning than “use”; as qualitativeindicators would be needed to establish“abuse”, whereas “abuse” would only apply aftersome stages of “use”. It seems that the EuropeanUnion uses somewhat complex indicatorswhen they are talking about “problematicuse”. 45 “Use” of drugs on the other hand isstraightforward, whereby one or more instancesof illicit drug consumption constitutes “use”.Therefore, Article 33, by its very wording,sets out to protect children from any use ofillicit drugs. There is consistency between thisaim and the description of drugs in thepreambles of the UN drug conventions, wheredrugs are, inter alia, described as an evil to theindividual and to mankind, and their objectiveto set out rigorous measures to restrict the useof such substances to medical and scientificpurposes.In conclusion, the meaning of Article 33Part 1, by its wording, is that States Parties haveto take all measures deemed appropriate,including legislative, administrative, social,and educational measures, to ensure thatchildren do not use any illicit drugs. TheConvention on the Rights of the Child clearlysignals an anti-drug stance. Ratifying statesshould pick up on this ambition when undertakingthe above mentioned measures. Policymakingshould be clearly articulated in favourof this protection goal. An enabling environmentfor children shall be created where theyare not put at risk of drug consumption. Byextension, it would also be of grave concern ifparents or friends were engaged with illicitdrugs.Prevention from Involvement in theProduction and Trafficking of Illicit Drugs(Article 33 Part 2)The word “prevent” is, in the special protectioncontext, to be understood as the obligation forStates Parties to ensure that children will neverbe involved with the illicit production or traffickingof drugs. This reading conforms to how“prevent” is understood in correspondingspecial protection articles in the CRC.Illicit production and trafficking of drugs areclosely tied together. The gravity of the involvementof children in such activities is not onlyreflected in Article 33 of the Convention on theRights of the Child, but also in the 1999 InternationalLabour Organization (ILO) ConventionNo.182 on the Worst Forms of Child Labour,Article 3(c). 46 ILO Convention 182 has had apace of ratification unequalled in the history ofinternational labour standards, with 100 ratificationsin 2001 and 174 ratifications to date. 47CRC Article 33 instructs States Parties totake all measures to prevent the involvement ofchildren in the illicit production and traffickingof narcotic drugs and psychotropicsubstances. ILO Convention 182, in Article 6(1) states: “Each Member shall design andimplement programmes of action to eliminateas a priority the worst forms of child labour.”Article 7 (2) calls for the following measuresfrom States Parties:“(a) prevent the engagement of children in theworst forms of child labour;(b) provide the necessary and appropriatedirect assistance for the removal of childrenfrom the worst forms of child labour and fortheir rehabilitation and social integration;(c) ensure access to free basic education, and,wherever possible and appropriate, vocationaltraining, for all children removed from theworst forms of child labour;(d) identify and reach out to children at specialrisk; and(e) take account of the special situation ofgirls.”18

In Recommendation 190, issued in 1999 bythe General Conference of the InternationalLabour Organization, States Parties are recommended,among other things, to cooperate atinternational level to ensure the eliminationand prohibition of the worst forms of childlabour as a matter of urgency by, inter alia,detecting and prosecuting those involved in theuse, procuring or offering of children for illicitactivities and registering perpetrators of suchoffences. 48 It also requests, in paragraph 12,that “Members should provide that the followingworst forms of child labour are criminaloffences:...(c) the use, procuring or offering ofa child for illicit activities, in particular for theproduction and trafficking of drugs as definedin the relevant international treaties…” 49Another international law instrument whichdeems the involvement of children in theproduction and trafficking of illicit drugs as anissue of grave concern is the United NationsConvention against Illicit Traffic in NarcoticDrugs and Psychotropic Substances of 1988.Article 3(5) includes a non-exhaustive list offactual circumstances which makes thecommission of the offences stipulated in paragraph1 of Article 3 “particularly serious”. Thislist includes on position (f) “the victimizationor use of minors”. Article 3(7) asks, inter alia,States Parties to ensure that their courts andcompetent authorities take in consideration“the serious nature” of circumstances listed inparagraph (5) when deciding on the earlyrelease or parole of the offender.These three instruments, which are the mostwidely ratified within their regime, and evenwithin the whole range of international lawinstruments, clearly indicate that the issue ofchildren and illicit drugs is of high importance.Hence, societal policy-making in ratifyingstates needs to clearly articulate the ambitionand the direction towards the elimination andprevention of the involvement of children inany activities related to illicit drugs.Other Parts of Article 33I. “Appropriate measures“CRC Article 33 provides in its introductorypart that: “States Parties shall take all appro -priate measures, including legislative, administrative,social and educational measures…”Even if the Committee on the Rights of theChild has never issued its interpretation on thecontent of Article 33 in the form of a GeneralComment, we can look at how the treaty bodyinterpreted the introductory part of the Article19 which is quite similar. 50 The Committeepublished, in April 2011, Commentary 13 on“The right of the child to freedom from all formsof violence” which elaborates on Article 19CRC. In Part IV of this Commentary, thetreaty body provides a legal analysis of Article19 indicating, among other things, that StatesParties should interpret “shall take…” and “allappropriate legislative, administrative, socialand educational measures” as follows: “‘Shalltake’ is a term which leaves no leeway for thediscretion of States parties. Accordingly, Statesparties are under strict obligation to undertake‘all appropriate measures’ to fully implementthis right for all children.” 51 Therefore, we seeno reason why this part should not have anidentical interpretation in the case of Article33. Regarding the term “all appropriatemeasures”, it is obvious that the actualmeasures to be taken by the States Parties are ofdifferent nature as they address phenomenawhich are related, (as indicated by the “UnitedNations Secretary-General’s Study on Violenceagainst Children” 52 and by the WHO Fact sheetN°150) 53 but nonetheless different. Never -theless, the Committee indicates some generaldirection on how the term “appropriate”should be interpreted. Hence, the term“appropriate” “refers to the broad range ofmeasures cutting across all sectors of Government,which must be used and be effective inorder to prevent and respond to all forms ofviolence. ‘Appropriate’ cannot be interpreted tomean acceptance of some forms of violence.” 5419

Similarly, in the context of Article 33 “appropriate”would refer to a complex and multisectoralset of meas ures which would preventand protect children from illicit drugs use andinvolvement in the production and traffickingof such substance and cannot be interpreted tomean the normalization or acceptance of thesephenomena.II. “Relevant International Treaties“The reference in CRC Article 33 to “relevantinternational treaties” concerns the internationaldrug conventions and notably the 1988Convention, as described below.The “Legislative History of the Convention onthe Rights of the Child” mentions in this contextthe Single Convention of Narcotic Drugs of1961 and the Convention of PsychotropicSubstances of 1971, as these were the only relevantinternational treaties in force during thedrafting process of Article 33. The 1988 UnitedNations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substancesentered into force in November 1990. Article41 of the Convention on the Rights of theChild stipulates that “the present Conventionshall affect any provisions which are moreconducive to the realization of the rights of thechild and which may be contained in: (a) Thelaw of a State party; or (b) International law inforce for that State.” The 1988 Convention issuch an example, as it refers to children in itspreamble and in Article 3(5) sub-paragraphs(f) and (g). It is also an international lawinstrument more conducive to the realizationof Article 33. Therefore, we have to consider allthree drug-related treaties as being the relevantlegal framework in the context of this provisionof the Convention on the Rights of theChild. Like wise, the ILO Convention 182addresses the same issue.We have noted when reading papers fromcivil society organizations on the issue of drugsand human rights, that a political argumenthas for several years been pursued to the effectthat the three international drug conventionsstand in contradiction to human rights. This isa quite remarkable conclusion, since thehuman rights hard law makes direct referenceto these conventions, and the conventionsreflect the same language and scope as CRCArticle 33. We note that this civil society argumenthas throughout the years been made in avacuum of analysis of Article 33. What hassurprised us, however, is not that a civil societyactor may want to change existing humanrights law to fit their political agenda bycircumventing existing human rights provisions.The surprise lies in the uncritical, acceptanceby the United Nations Office on Drugsand Crime (UNODC), following lobbying bythese civil society groups, of the proposed nonlegalaxiom that drug conventions stand incontradiction to human rights. 55The link between CRC Article 33 and theUnited Nations Convention against IllicitTraffic in Narcotic Drugs and PsychotropicSubstances from 1988It may be noted that CRC Article 33 closelyfollows what has been stated in the preamble ofthe United Nations Convention against IllicitTraffic in Narcotic Drugs and PsychotropicSubstances from 1988.With one year between the adoption of thesetwo instruments, the Convention on the Rightsof the Child in 1989 and the United NationsConvention against Illicit Traffic in NarcoticDrugs and Psychotropic Substances in 1988,they were drafted and finalized almost inparallel. They also both entered into force in1990, CRC on 2 September 1990 and the drugconvention on 11 November 1990. There was ahorizontal exchange between drafters of thetwo instruments. As mentioned, before finalizingArticle 33, the CRC drafters consultedwith the United Nations Narcotic Drugs Division,the predecessor of UNODC, for technicalreview. The final wording of the Article 33 textwas adopted by CRC drafters in line with20

CRC Article 33“States Parties shall take all appropriatemeasures, including legislative, administrative,and educational measures to protectchildren from the illicit use of narcoticdrugs and psychotropic substances, asdefined in relevant international treaties,and to prevent the use of children in theillicit production and trafficking of suchsubstances.”1988 UN Drug Convention, Preamble“Deeply concerned… particularly by thefact that children are used in many parts ofthe world as an illicit drug consumersmarket and for purposes of illicit production,distribution, and trade in narcoticdrugs and psychotropic substances, whichentails a danger of incalculable gravity…” 56suggestions from the UN Drugs Division, asnoted in the Legislative History of the Conventionon the Rights of the Child. 57 Hence, thesimilarities in wording and intent in the twoconventions do not come as a surprise. Thedrug conventions set out to ensure no illicit useand to combat illicit production and trafficking.The Convention on the Rights of theChild explicitly makes these three issues amandatory special protection concern forchildren by all ratifying States Parties.Legally, there is a strong link between CRCand the UN drug conventions, as directly referencedin CRC Article 33. The UN drugconventions are to be considered as a companioninstruments to CRC Article 33, in thesame way as the Riyadh Guidelines 58 and theBeijing Rules 59 shall be considered when weighingpolicy measures regarding juvenile justiceissues as per CRC Articles 37 and 40. 601.4. Special Protection MeasuresThe Committee on the Rights of the Childissues Reporting Guidelines for States Partiesto the Convention on the Rights of the Child.These guidelines aim to enable a more structured discussion between the Committee andthe State Parties, organizing the Convention’sprovisions into eight sections. Under thesesections, the articles are classified according totheir content and in a logical order. TheCommittee has repeatedly underlined that thiscategorization is not a hierarchical one, equalimportance being attached to all the rightsrecognized by the Convention.” 61 The Convention’sarticles are grouped in eight categories:I. General Measures of Implementation;II. Definition of the Child;III. General Principles;IV. Civil Rights and Freedoms;V. Family Environment and Alternative Care;VI. Basic Health and Welfare;VII. Education, Leisure and Cultural Activities;VIII. Special Protection Measures.The special protection measures clusterincludes eleven CRC articles, containing provisionsconcerning exploitative child labour,sexual exploitation and abuse of children,recruitment of child soldiers, and illicit druguse/production/trafficking, et cetera.Special protection measures focus on situationswhere children are particularly vulnerableand compels States Parties to remove thethreat to children and holistically address thechild’s well-being, including rehabilitation andreintegration.UNICEF’s 2008 Child Protection Strategyvery clearly states that the key strategy elementwith regard to special protection is prevention,indicating that “successful child protectionbegins with prevention”. 62 Legislative/enforcementefforts and efforts to raise awarenessshould be, in tandem, at the forefront of21

national child protection. The vision ofUNICEF is to create a protective environmentwhere the child’s protection rights arerespected, and “where laws, services, behavioursand practices minimize children’svulnerability.” 63 In short, international andnational policy-making must be child-centeredand focus on the substantial protection rights.Environments where illicit drug use isaccepted, or where exploitative child labour isseen as inevitable, are inconsistent with theexplicit protection standards and increasechildren’s vulnerabilities in this regard.Special protection provisions are to be seenas values in themselves, as they have beencreated to identify intolerable situations whichneed to be removed. It is not enough to resortonly to mainstream and reactive measures suchas health, education, et cetera. If mainstreamintervention was enough, there would havebeen no need for lawmakers to insert specialprotection provisions into the CRC. It is notenough for a State Party to turn a blind eye tochild prostitution and consider this solely as ahealth issue, or to limit its intervention to somekind of “harm reduction”. . The State Partymust be proactive, and create an environmentwhere such transgressions are not accepted andwhere conditions for children’s lives are suchthat the risks to children are minimized, preferablyreduced to zero. Child protection issues,including those related to illicit drugs, are not amatter of “personal choice” or “privacy” for therest of the society, nor should they be consideredas “victimless crimes”. However, itshould be noted that the child exposed to illicitdrug use and/or the child involved in theproduction and trafficking of illicit drugs hasto be considered as victim not as a transgressor,as in other special protections measures cases.As stipulated by CRC Article 39, a provisionapplicable for other special protectionmeasures, “States Parties shall take all appropriatemeasures to promote physical andpsychological recovery and social reintegrationof a child victim of: any form of neglect,exploitation, or abuse; torture or any otherform of cruel, inhuman or degrading treatmentor punishment; or armed conflicts. Suchrecovery and reintegration shall take place inan environment which fosters the health, selfrespectand dignity of the child.”The following table lists the CRC specialprotection rights. Common points amongspecial protection provisions include:• Most special protection rights are adjoinedto supporting international instruments/companion pieces (see the right handcolumn in the table on page 23) whichprovide more detail on the specific issue(lex specialis and “soft law” instruments) ;• The language is similar between the provisions(see middle column); and,• Similar formulations (forms) are used fordescribing the degree to which the StateParty must get involved in addressing theprotection issue.We conclude that the matter of illicit drugs is aprotection measure which States Parties musttake as seriously as any other special protectionmatter, including the thorough and exactimplementation of companion legislation/lex specialis. Hence, the full implementation ofthe UN drug conventions is indispensable forprevention and the creation of a protectiveenvironment against illicit drugs.22

CRC special protection rightsCRC Issue Direct protection objective; Forum/ Companion instrumentsarticle Refugee measure/objective:Art.22 children To ensure that refugee children or “refugee in accordancechildren seeking refugee status arewith applicable internaprotected in their irregulartional…law”circumstances.1951 ConventionForm/Measures: “…takeRelating to the Statusappropriate measures to … receiveof Refugees, etc.appropriate protection and humanitarianassistance in the enjoyment of applicablerights set forth in the present Conventionand in other international human rightsor humanitarian instruments…”Art.32 Exploitative Direct prevention/protection objective: “having regard to relevantchild labour To ensure that children are not being provisions of other internaeconomicallyexploited and subjected to tional instruments”hazardous work. Minimum limits for age ILO Conventions: e.g.and working conditions required. ILO Convention No. 182Form/Measures described:on the Worst Forms of Child“Take legislative, administrative, social and Labour (1999), etc.educational measures…”Art.33 Illicit Drugs Direct prevention/protection objective: “narcotic/psychotropicChildren shall not use illicit drugs or be substances as defined in theinvolved in production or trafficking thereof. relevant internationaltreaties”Form/Measures described: “…take all The three drug conventionsappropriate measures, including legislative, 1961, 1971, and 1988;administrative, social and educational ILO Convention No. 182, etc.measures, to protect children, and prevent...Art. 34 Sexual Direct prevention/protection objective: “take all multilateralexploitation Children shall not be, with or without measures”and sexual consent, involved in prostitution, ILO Convention No.182;abuse pornography, or other aspects of sexual UN (Palermo) Protocolexploitation and abuse.to Prevent, Suppress andForm/Measures described: “…take all Punish Trafficking (2000).appropriate national, bilateral andmultilateral measures to prevent…”Art. 35 Sale, trafficking Direct prevention/protection objective: See above.and abduction Children shall not be subject to abduction/ Palermo Protocol;sale/trafficking of children for any purpose UN Convention on Transorin any form.national Organized Crime,Form/Measures described: “…take all (2000), etc.appropriate national, bilateral and23

multilateral measures to prevent theabduction of, the sale of or traffic in childrenfor any purpose or in any form.”Art. 36 Other forms Direct protection objective: Protect General clause.of exploitation children from other forms of exploitationprejudicial to the child’s welfare.Form/Measures described: “…shall protectthe child against all other forms of exploitationprejudicial to any aspects of the child’s welfare…”Art. 37 Torture, Direct protection objective: Ensure that No direct reference todegrading children are not tortured, treated in a other instruments in thistreatment and degrading manner, or unlawfully orArticle.deprivation arbitrarily deprived of their liberty. Convention againstof libertyTorture and Other Cruel,Form/Measures described:Inhuman or Degradingb) “arrest, detention or imprisonment… shall Treatment or Punishment,be in conformity with the law and shall be CAT (1994);used only as a measure of last resort and for UN Guidelines on thethe shortest appropriate period of time;” Prevention of Juvenilec) “Every child deprived of liberty shall be Delinquency: the “Riyadhtreated with humanity and respect …” Guidelines” (1990), etc.Art. 38 Children in Direct protection objective: Ensure that “Ensure respect forarmed conflict children younger than 15 are not recruited internationalinto armed forces/used as combatants. humanitarian law.”Ensure humanitarian law in war situations.Form/Measures described:Internationaltake all feasible measures to ensure protection Humanitarian Lawand care of children who are affected by an including the fourarmed conflict.”Geneva Conventions.Art. 39 Rehabilitation Direct protection objective: Ensure No direct reference toof child rehabilitation of child victims and that the other international law.victims recovery and reintegration take place in anenvironment which fosters the health,self-respect and dignity of the child.Form/Measures described: “…shall take allappropriate measures to promote physical andpsychological recovery and social reintegration…”Art. 40 Juvenile Direct protection objective: Ensure that No direct reference tojustice children alleged as, accused of, or recognized other international lawas having infringed the penal law are treated instruments in this Article.by the justice system in a way that is consistentwith the child’s age, and make sure24

that rehabilitation and reintegration isconsidered from the beginning.Form/Measures described: “treated in amanner consistent with the promotion of thechild’s sense of dignity and worth.”Beijing Rules and RiyadhGuidelines explicitly referredin the preamble to CRC.Art.30 Indigenous Direct protection objective: To ensure that No direct reference to otherchildren a child belonging to an ethnic/religious/ international lawlinguistic minority is not denied right to instruments in this Article.enjoy his/her culture, religion, language etc.Measure/form described: “..shall not be ILO Convention No. 169denied theright, in community with other on Indigenous and Tribalmembers of his or her group…”Peoples in IndependentCountries (1989); InternationalLabour Convention(ILO) on the Rights of Indigenous,Tribal and Semi-Tribal Populations in IndependentCountries, No. 107(1957);United Nations Declarationon the Rights ofIndigenous Peoples (2007).25

1.5. The Principles of CRCUpon the 1991 adoption of ReportingGuidelines for States Parties, the Committeeon the Rights of the Child outlined that four ofthe CRC Articles were to be seen as crosscuttingprinciples, which should permeate theimplementation of every right of the Convention.The four principles of the Convention onthe Rights of the Child are:• Non-discrimination (Article 2): TheConvention applies to all children,whatever their gender, race, religion,language, origin, disability or any othercharacteristic. Application of the Conventionon the Rights of the Child rights mustbe non-discriminatory.• Best interests of the child (Article 3): Thebest interests of children must be a primaryconsideration in all decision-making thatmay affect them. Societal policy makingshall be child-centered insofar that the bestinterests of the child are firstly androutinely considered as regards all types ofpolicy-making. Of particular importancehere will is to ensure that all rights provisionsin CRC are seen as a societal priority.• Right to life, survival and development(Article 6): Children have the right to life,survival and development.• Participation (Article 12): When adults aremaking decisions that affect children, thechild should be consulted and have theirviews seriously taken into account. Asexplained by UNICEF, this principle doesnot give children authority over adults butgives them the right to participate in decision-makingprocesses that affect their lives,taking in consideration the level of child’smaturity.The principles of non-discrimination andright to life were enshrined in the 1966 Covenants.64 The elevation of the provisions on thebest interests of the child and chlidren’s participationto general principles of the Conventionon the Rights of the Child, alongside thosepreviously mentioned, are some of the innovationsof this instrument. The Committee onthe Rights of the Child has, from the beginningemphasized the importance of the bestinterests principle in policy-making. 6526

1.5.1. Practical Examples on how the Four CRC Principles Affect a Protection RightExample: CRC Article 32 Child Labour1. Non-discrimination: Exploited childrenmust be afforded equal protection, and care ifnecessary, regardless of their gender, ethnicity,nationality etc. Prevention measures shall likewisenot exclude any group of children;2. Best interests: Plans for new legislation orother policy measures in the area of e.g. workshall be child-centered. The first question to beasked is: What will be in the best interests ofchildren? (If it is suggested that it is “good forchildren to work” it has to be explained howthis conforms with CRC Article 32):3. Right to life: Work that is exploitative to thepoint of threatening a child’s life should receivea stricter criminal classification;4. Participation: When drawing up new legislationor policy measures on child labour children’sviews shall be taken in consideration.Meaningful participation shall be facilitated.1.5.2. The Best interests of the Child(Article 3)As mentioned above, Article 3 of theConvention on the Rights of the Child is one ofthe four guiding principles of the CRC.“Although none of the four principles is moreimportant than any of the other three, it maybe argued that the recognition of the child’sbest interest underpins all the other provisionsin the Convention.” 66 The best interests principleis also is the principle with the broadest,most far reaching and most dynamic scope ofall the four principles. It would have beenviewed as a portal paragraph to CRC, evenFor the purposes of this publication: CRCArticle 33 Children and Illicit Drugs1. Non-discrimination: All children shall beafforded equal protection against taking upillicit drug use, or being enrolled in productionand trafficking thereof (legislation, lawenforcement, education, treatment, rehabilitation);2. Best interests: National drug policy shall bechild-centered, giving primary considerationto the protection afforded by CRC Article 33(e.g. if it is suggested that so called “harmreduction” shall be the primary focus fornational drug policy then it will have to bedefined and described how it conforms withthe child protection requirements in CRCArticle 33);3. Right to life: Drugs that are mortally dangerouswill receive a stricter criminal classification;4. Participation: When drawing upprogrammes in terms of prevention or rehabilitationthe views of the children shall beheard. Meaningful participation shall befacilitated.without the formal elevation to a principle bythe Committee.The best interests principle is not a freeformexercise, but has to be oriented toward existingchild rights articles. 67Article 3 requires that the best interests ofthe child be a primary consideration in allactions concerning children. It is not limited toactions directly targeting children, but it isrelevant for all actions which may have a director indirect impact on the child. 68Practically, the imperative that child rightsshall be a primary consideration means thatstately policy-making shall be child-centred.27

As indicated by UNICEF, the best interestsprinciple is applicable in three main ways:1. It supports a child-centred approach inactions and decisions affecting children.2. Serving as a mediating principle, it can helpto resolve confusion between differentrights.3. The best interests principle provides a basisfor evaluating the laws and practices ofStates Parties with regard to the protectionprovided to children... The best interestsprinciple has been invoked to argue thatbasic services for children must beprotected at all times, including duringwars or periods of structural adjustmentand other economic reforms. 691.5.2.1. Child-Centered Drug PolicyAs noted above, the best interests principlecompels child-centered policies. Children’sinterests and concerns shall be a primaryconsideration in relation to other (e.g. adult)interests, as per the Convention on the Rightsof the Child. Hence, when developing nationaldrug policies or drug laws, the human rightsaspect is, by and large, synonymous with theCRC, as this is the only human rights instrumentwhere illicit drugs are mentioned andincludes the best interests principle. Theconcrete benchmark for human rightsorientedpolicy in this regard is CRC Article 33.Upon drafting a national drug policy, the referencepoint shall be how the policy protectschildren from illicit drug use/production/trafficking.This point shall be examined againwhen the drafting is finalized, but beforehaving been adopted. If it can be explainedhow the primary thrust of the national policyis to secure protection as per Article 33, thenthe policy document can be signed off. If not,then it should be revised.1.5.2.2. Adult User-Centered Drug PolicyAs previously noted, the best interests of thechild shall be “a primary consideration”. Theprimacy of the child’s interests, as related torelevant special protection Article 33, shall bethe assumption. It is worth noting that in thedrafting of CRC the formulation “a primaryconsideration” became the legal text after ithad replaced an earlier draft which talkedabout “the paramount consideration”; 70 hence,the final Article 3 text is less absolute than theprevious version. If a strong/emergency interestis at hand, the State Party could considergiving primacy to a different entry point;hence, a reversed perspective on the drug issuecould be to ignore the child’s interests andinstead give primacy to adult users interests.Such a state policy would go against the CRC,unless there are very compelling reasons athand. It is extremely difficult to see what argumentscan be made, as society stands to gainnothing from the recreational or addictive useof illicit drugs. A classic example of an interestthat could out -weigh the best interest of thechild is freedom of speech (for adults).However, adult recreational drug use orpossession has none of the qualities of freedomof speech.1.6. A Human Rights Approach toIllicit Drugs – OperationalizingSpecial Protection at Internationaland National LevelsIn this final sub-chapter, we will look at anexample of practical advice on special protectionmeasures using UNICEF’s ChildProtection Strategy from 2008 and define abase template for a human rights approach tobe applied by national and internationalpolicy-makers in the field of illicit drugs.By doing this, we hope to be both transparentand precise, allowing for the same consistencywhen dealing with CRC Article 33 aswith the other active child protectionmeasures.We are keenly aware that policy-makerscould ultimately opt for using another policy28

template for illicit drugs issues. If so, it is up tothem to explain what analysis has been doneand how it conforms to the relevant humanrights minimum standard. If this is not done,the policy can hardly be called human rightsbased.1.6.1. UNICEF 2008 Child ProtectionStrategyAs we could not find a position issued by theCommittee on the Rights of the Child whichdiscusses in general CRC special protectionmeasures, we examined UNICEF’s ChildProtection Strategy. This is a generic Strategyfor all child protection issues in composite. Wewill draw on the generic findings and see howthese apply to policy-making on the issue ofillicit drugs, an issue on which UNICEF hasbeen remarkably silent.It should be clarified that UNICEF is in itselfnot a maker of hard law, and that the ChildProtection Strategy is not a hard law instrument,but merely an attempt from UNICEF tooperationalize the implementation of allspecial protection provisions.UNICEF’s Board adopted its first ChildProtection Strategy in 1996, thereby shiftingfrom a needs-based to a rights-based approachfor UNICEF policy involvment in this field. 71This Strategy has thereafter been regularlyupdated. The latest update is from 5 June 2008.A document of Child Protection Strategytype can provide generic examples on methodologyfor a rights-based approach, providedthat it is in line with the laws it purports torepresent. Here follows some key assertionsfrom the Strategy, which we will later analyzein the specific context of illicit drugs, with theaim of establishing building blocks for ahuman-rights approach to illicit drugs.UNICEF Child Protection StrategyIntroductory statements:• Article 1 “UNICEF activities are guided by the existing international normative frameworkfor the rights of the child...”• Article 2 “The vision and approach of UNICEF is to create a protective environment, wheregirls and boys are free from exploitation... and where laws, services, behaviours and practicesminimize children’s vulnerability, address known risk factors, and strengthenchildren’s own resilience. This approach is human rights-based, and emphasizes preventionas well as the accountability of governments...” 72• Article 3 “Successful child protection begins with prevention.” 73Key elements for creating a “Protective Environment Framework” (CPS section II):1. Governmental commitment to fulfilling protection rights.2. Legislation and enforcement (an adequate legislative framework, its consistent implementation,accountability and a lack of impunity).3. Attitudes, traditions, customs, behaviour, and practices.4. Open discussions, including the engagement of media and civil society.5. Children’s life skills, knowledge and participation.6. Capacity of those in contact with the child.7. Basic and targeted services.8. Monitoring and oversight.29

Assessment in context of specialprotection in regard to illicit drugs:Article 1 “Guided by the normativeframe work for the rights of the child”This Child Protection Strategy guidelinecompels policy-makers to observe relevantinstruments and provisions, internalize thesubstantive protection Article (in this caseCRC Article 33), and not to lose focus of theminimum standard that is to be upheld: thatchildren shall never use illicit drugs or takepart in illicit production and trafficking ofsuch substances. The first question to be askedwhen creating an overall national drug strategymust be, “Does this conform to CRC Article33?” Such mainstreaming of protection rightsis essential for the creation of a protective environment.The Child Protection Strategy Article6 underlines this when it states “Allprogrammes and actions for the benefit ofchildren’s health, education, participation orfor addressing the impact of HIV and AIDSshould likewise be designed so as to strengthenprotection, and must never undermine it.” 74Article 2 “Creating a protectiveenvironment”A protection response must be holistic andencompass an umbrella of other Articles inCRC, ensuring that the protection minimumstandard is upheld and that the message itconveys is supportive of the child.The UNICEF-commissioned ImplementationHandbook for the Convention on the Rights ofthe Child provides a generic example of sevenarticles and one Optional Protocol, of importancewhen implementing CRC Article 33,ranging from media to health. 75 Addressingthose matters shall, in composite, assist withensuring the protection of the minimum standardin CRC Article 33. Ensuring the protection/preventionprovided for in CRC Article 33shall in return help achieve high health standardsamong children, reduce overall riskbehavior, facilitate good conditions for education,et cetera. A protective environment is,according to UNICEF’s Child Protection Strategy,facilitated by the subsequent points.Article 3 Start with preventionPrevention is a logical and multi-layered startingpoint. The first line of prevention is thedissemination of a value message, includinglegal review and enforcement, thus generallydeterring specific practices, defining the victim(the child) and the perpetrator (the adulttransgressor of special protection provisions),and empowering bystanders to take a positionagainst violations against children’s specialprotection rights. However, secondary andteritiary prevention is also called for, includingmeasures such as social improvement andtargeted services.Point 1 “Protective EnvironmentFramework”“Governmental commitment to fulfillingprotection rights”Laws on paper risk being dead letters unlessthey are backed up by a substantial governmentalcommitment for enforcement. Ageneral policy declaration or mission statementneeds to be issued by the government todemonstrate which direction they intend totake and to assume accountability. Such adeclaration must be clear. Correspondingnormative review needs to be completed andthe necessary resources allocated. For example,UNAIDS has proposed a goal of zero new HIVcases globally. While this may seem difficult toreach, or possibly even utopian in the shortterm,it is a goal that is well-suited to lead thework in this field, as it clearly indicates thedirection needed to be taken. Similarly, in thefield of drugs, on the basis of minimumhuman right standards, it would seem that themost conducive policy would be the creationof “a drug-free society”, something thatUNODC has proposed in the past. Legal revi-30

sions are needed if current laws do notconform to the new human (child-) rightsorientation of drug policy. Enforcement andrelated services must be trained, resourced, andinstructed accordingly.Point 3 “Protective EnvironmentFramework”Attitudes and behaviorOperationalising Article 33: The ethicalmessage shall be absolutely clear so as to ensurethat children know their rights and that adultsfoster a value acceptance regarding the protectionrights. The society and the child shallunderstand that the child is the prospectivevictim, whether in the role of trafficker,producer, user, or child of a parent who is usingillicit drugs. The desired attitude change objectivemust be that no one shall look the otherway if these breaches of children’s rights aretaking place in their vicinity.Point 4 “Protective EnvironmentFramework”“Media and civil society”Operationalising Article 33: There is an overallsocietal interest that media is free to report asthey please. Nonetheless, efforts are generallymade so that mass media conforms to theexisting human rights framework and paysactive interest to the same. The approach fromthe media on CRC Article 33 should be nodifferent than it is on CRC Article 32, 34, etcetera.Point 5 “Protective EnvironmentFramework”“Children’s life skills, knowledge and participation”All children shall be “as actors in their ownprotection through use of knowledge of theirprotection rights and ways of avoiding andresponding to risks.” 76 Children shall beinvolved in the process of designing preventiveand rehabilitation programmes.Point 6 “Protective EnvironmentFramework” Those in contact with childrenA cornerstone of child protection is to ensurethat people in close contact with children (e.g.caregivers and teachers) are fully prepared forassuming their responsibility of protecting thechildren’s rights as per CRC Article 33.Point 7 “Protective EnvironmentFramework”“Basic and targeted services”States Parties shall provide basic and targetedservices (e.g. health, education) as per generalchild rights provisions, both to ensure thatchildren do not become involved with illicitdrugs and to ensure that children who areinvolved with illicit drugs are provided with allpossibilities for rehabilitation and reintegration.Children who are illicit drug users fromproblematic and deprived upbringings arebeing doubly deprived of living a dignified life .Special attention must be paid to thesechildren.Point 8 “Protective EnvironmentFramework”“Monitoring and oversight”Several layers of monitoring are needed, includingmonitoring children with drug problemsand their life situation in order to provide fortargeted measures. Also of high importance isthe monitoring of the basic willingness of thesociety to reject illicit drugs through measuresincluding lifetime prevalence surveys, as this isthe thermometer for the societal conditions forestablishing an environment where drugs arenot welcome.31

1.7. ConclusionsA Human Rights Approach to IllicitDrugs is a Child Rights Approach toIllicit DrugsBearing in mind the above dissected legal standardsand UNICEF’s Child Protection Strategy,we suggest the following basic framework asminimum priorities for a human rightsapproach to policymaking regarding illicitdrugs:1. Human rights focus: CRC Article 33 is aminimum standard to be upheld at all timesand the starting point for approaching theissue of human rights and illicit drugs.2. Human rights context: A holistic approachis called for when implementing specialprotection rights. The four CRC principlesneed to be considered. However, the direction/purposeof the effort must be to facilitateimplementation of the particularspecial protection right in question.3. Child-centred policy-making: Policymakersmust constantly be reminded aboutthe primary consideration of children andtheir rights, as per CRC best interests principle(Article 3). The following questionsshould be the first to be asked by drugpolicy-makers: “Is this in the best interestsof the child – Is this in conformity withCRC Article 33?”4. Prevention key: Prevention is the startingpoint on which national and internationaldrug policy shall be anchored.5. The child is the victim: Any child/the childwho is using illicit drugs/ the child whoseparents are using illicit drugs/ the childinvolved in illicit trafficking or productionof such substances must be seen as a primafacie victim. Policy shall be clear on this.The adult illicit drug trafficker, producer,and user shall not be awarded such status.6. Clarity: The core policy message must beclear and unambiguously in support ofchildren’s rights, as per Article 33. An ambiguousmessage undermines the minimumprotection standards for children. The corepolicy message must be known among allstakeholders, including the children.7. Implement supporting obligations:Policymakers shall examine and ensure thatsupporting international legislation, theUN drug conventions and ILO Convention182 are fully implemented.8. Bad image of illicit drugs: There is noquestion as per international law that illicitdrugs shall have a bad image. Attempts toromanticize or trivialize illicit drugs shall berebutted. Mass media shall be made partnersin this pursuit.9. International equity concerns: Specialconsideration shall be given to equityconcerns regarding rich and poor countries.Whilst there is an obligation for poorcountries to curb production and trafficking,the obligation of rich countries tocurb the demand for illicit drugs is fargreater. The adult recreational drug user isthe human rights violator that is driving thewheel of the worst forms of child labour.Drug policy is an international solidaritymatter.10.General human rights applies to perpetrators:General obligations regarding policymeasures for criminalization can never beallowed to violate human rights provisionsFor example, no one may be subjected totorture or to cruel, inhuman or degradingtreatment or punishment; every person hasa right to due process, et cetera. But perpetrators’minimum rights cannot be theprimary concern for policy-making. Thevictims’ rights have to come first. In the caseof illicit drugs, the child is the explicit primafacie victim.32

2. Non-Governmental Organizations andOther Relevant ActorsOver the last decade, an assortment of nongovernmentalorganizations (NGOs) andother similar actors have been pursuing apolicy agenda involving the internationallaw/human rights/drug control nexus. Duringthe same period, this issue has been a nonpriorityfor most UN bodies. Therefore, manyof the advancements made in policy thinkingand policy articulation in this field have comefrom NGOs and similar actors. 1This chapter examines a stream of reportsand papers developed by NGOs and other relevantactors concerning international law,human rights and drug control policy in orderto establish some main lines of current policyinfluence from such actors and their validitywith regard to international law instruments.The selected reports and papers discussed inthis chapter were published between 1999 and2010, a period of time that is illustrative for thepurposes of this publication. A study from1996 determined that “little has been writtenabout drug use and human rights” 2 . Subsequently,a report from 2008 produced byseveral organizations indicated that “ten yearslater campaigning NGOs… are now finallyinvoking human rights norms in their work.” 3A prima facie assumption is that the periodafter 1999 has, among some NGOs, beenformative for the debate on international drugcon trol/international law/human rights.2.1. NGOs and Other Relevant ActorsActive on the Issues of DrugPolicy and Human RightsThe involvement of civil society, in its variousorganizational forms, in international affairs isnot a new phenomenon; its involvement has,however, varied over time in its robustness,coordination and visibility. In the last fewdecades there has been a rapid proliferation ofcivil society organizations (NGOs) and anincrease in the ability of these organizations tomake their voices heard on the global scene,partly due to the development of new informationand communication technologies. Officialestimates indicate the existence of more than250,000 NGOs operating across national stateborders in 2003, representing a 43% increasesince the 1990s. 4 But numbers are not every -thing; what counts is their acceptance as representativesof the world’s people and as an alternativesource of power, hence, their politicalrelevance. Therefore, one could reasonablystate that in the last few decades NGOs’ involvementin global affairs has become a basicfibre in the fabric of contemporary life. Manydecisions and initiatives affecting our existenceare owed to civil society initiatives, advocacy,lobbying and pressure.Joseph Nye, Jr. noted: “Many NGOs claim toact as a ‘global conscience,’ representing broadpublic interests beyond the purview of individualstates. They develop new norms bydirectly pressing governments and businesses33

to change policies, and indirectly by alteringpublic perceptions of what governments andfirms should do. NGOs do not have coercive‘hard’ power, but they often enjoy considerable‘soft’ power - the ability to get the outcomesthey want through attraction rather thancompulsion. Because they attract followers,governments must take them into accountboth as allies and adversaries.” 5 However,governments are not the sole targets of NGOactivism. It is the intention of some NGOs tochange policies, laws and cultural understandingsat the global level. Therefore they alsotarget the United Nations as it “represents theonly recognized worldwide governance bodymandated to address global issues. To thedegree that global civil society actors wish tochange world affairs, it makes sense for them totarget the UN as a main player-both as anarena where states make decisions and as asemi-autonomous secretariat carrying outoperations.” 6In general, the progressive involvement oftransnational civil society actors 7 in internationallaw and policymaking is regarded asbeneficial, not only because of its “thickening”effect, as it contributes to the diversification ofthe range of actors active in internationalaffairs, but also because it is assumed that theseactors by their nature tend to allow for moredirect citizen participation. 8 Therefore, theirinvolvement lends itself to higher accountabilityto global governance mechanisms. Sometransnational NGOs have noticeable and wellearnedpublic credibility, especially the onesassuming human rights portfolios. Some areconsidered highly impartial experts capable ofbringing to the table and advocating for vitalissues. Several such organizations are espousedby the mass media and consequently largesegments of the public trust and accept theircampaigns or opinions.It is now common knowledge that someNGOs are better resourced than many nationalstates; they can exhort governments and internationalorganizations to follow specificagendas. However, their credibility and goodwill,democratic legitimacy, representation,and accountability cannot be treated as faitsaccomplis.The issues of civil society accountability andthe democratizing potential of its involvementin global affairs have generated a large amountof literature, both critical and appreciative.This publication does not take a position onthese issues in either direction; rather, ourbasic assumption is that many NGOs carry theflag they wish. In the end they are accountableto their financial contributors, to theirmembers and to the other NGOs in theirnetwork. Their responsibility in relation tothose whose interest they claim to represent is ahypothetical one, as it is difficult to imaginethat “clients” such as children, poor farmers,people living with HIV/AIDS, et cetera, wouldrally and protest against an NGO speaking intheir names.This chapter attempts to assess the rhetoricinvolved by some of these organizations on theissues of international drug control, humanrights and international law, the agendas theytry to advance, and the relationships betweenthese organizations and the UN. One of theend aims of this publication is to eventuallyshow that the “soft” power that NGOs andsimilar actors can exercise may convincecertain UN entities to assume campaignswithout due critical resistance.The importance of NGOs’ input, experienceand cooperation is acknowledged and thereforestipulated in Article 71 Charter of theUnited Nations. 9 Subsequently, the significanceof the partnership between civil societyand the UN, especially at national and internationallevels, was demonstrated by the admittanceof NGOs’ participation at UN treatydrafting procedures and was underlined inconventions’ texts 10 , treaty bodies’ practice 11 ,resolutions 12 , reports 13 , declarations, pro -grammes, et cetera.34

The proliferation of civil society organizationsand their acceptance within the UNsystem is illustrated by the increasing numbersof NGOs with consultative status. In 1946, theEconomic and Social Council (ECOSOC)granted consultative status to 41 NGOs. By1992, more than 700 NGOs had attainedconsultative status. The number has been steadilyincreasing ever since to almost 3,400 organizationstoday. 14The UN system, with its various bodies andagencies, consistently and indisputably benefitedfrom and valued the experiences, adviceand activities of civil society in assessing andaddressing various problems, whether relatedto human rights and/or drug control issues.This type of expertise is encouraged and oftenstimulated by the UN. For example, UNODCstresses “the need to promote strong partner -ships with civil society organizations in dealingwith the complex problems of drug abuse andcrime which undermine the fabric of society.The active involvement of civil society andnon-governmental organizations (NGOs) isessential in helping UNODC carry out itsglobal mandates.” 15 Similar statements havebeen made by other UN bodies and agencies.However, the legal interpretation and thevery implementation of international treatiesby the UN should always stem from the instrumentsthemselves and must follow the legalmechanisms. External pressure, emotionalappeals, massmedia campaigns, et cetera, fromNGOs or any other actors should not justifylegal misinterpretations, alterations of instrumentsor bypassing of legal provisions. No lawis written in stone. State Parties always havelegal mechanisms to modify ill-fitting instruments.State Parties may propose amendments/modificationsto different provisionswithin a treaty; they can revise or denounce aconvention according to its specific provisions.16 There are also clear provisions fortermination and suspension of an internationaltreaty. 17 Neither civil society nor proficientindividuals can or should suggest anyalternative route to the legal one in makingchanges to the interpretation or implementationof a treaty. Any exception to the rule of lawwould have significant consequences, and mayinclude setting a precedent which would putthe entire international legal architecture atrisk.Upon analysis of the relatively recent UNexclusively drug user centered discourse, on therelationship between human rights and thedrug control regime, it appears that the newtone used when discussing this subject has notbeen initiated by an introspective process fromwithin the UN organizations. Rather, this is bydint of an increasing pressure from outside,more specifically from NGOs focused on thespecific tandem of drug control-human rights.Hence, what was once upon a time a “smallvocal minority” has lately become an agendasetter for the UN. The linguistic and logicalsimilarities are obvious. As long as the sameway of reasoning, the same methodologies, theuse of the same references, and even more perilously,the same omissions of relevant instruments,are easily identifiable in both cases, itbecomes difficult to deny or ignore the influencethat certain NGOs are exerting on UNagencies.Therefore, a review of NGOs’ positionsmight further illuminate how to understandpolicy development among UN agencies andbodies. This chapter focuses on NGOs andentities who advocate for removal of punitivelaws, policy change, and justice system reform inrelation to the international drug conventions,for the creation of enabling legal environmentsfor drug users. Some of them believe that thesociety at large and the stakeholders have to“empower and listen to those who use drugs…in all aspects of decision and policymaking,planning and implementation” 18 and considerthat “imprisoning drug users is an abuse ofhuman rights and a threat to public health” 19 .This type of rhetoric seems to be assumed by35

some UN entities literally or in varyingdegrees.Selection criteriaUsing the Google web search engine for wordcombinations such as NGO+drugs+humanrights, we got about 53,800,000 results encompassinga vast array of items from organizations’web sites, to newspaper articles, to policypapers, et cetera. Subsequently, we focused on anumber of NGOs 20 who proclaimed to have amandate related to drug control policy andinternational law/human rights, to work onthis issue and others who made episodic statementson this matter. We also looked at paperswritten on this topic by authors who are notnecessarily affiliated to a specific organization,but who are often quoted by NGOs and setinfluential starting points for drug legalization/decriminalization/de-penalizationstrategies.Particular attention has been given tothose papers/reports which were also cited inUN papers or reports.The review covers 20 organizations. Thischapter focuses on NGOs and other entitiesthat:• Clearly articulate a standpoint, preferablythrough a policy paper, on human rightsand drugs, and if possible, discusseschildren rights;• Have an international orientation, addressinginternational norms in their discourseor otherwise addressing themselves internationally;• Are influential and highly visible as humanrights defenders due to their portfolios,achievements, history, size, et cetera, andare involved in the international drugcontrol debate. Some examples on this categoryare: the International Federation ofRed Cross and Red Crescent Societies(IFRC), Human Rights Watch (HRW),Open Society Foundations (OFS), et cetera.A list of the discussed organizations isprovided in the end of this chapter. 212.2. Assessing Civil Society1999–2010This chapter dissects and comments on some ofthe arguments given by NGOs and other relevantactors, that are advanced in papers/reportson drugs/human rights/international lawpublished from 1999 to 2010. It focuses onthose that seem to be the most influential, andhence, are often quoted by the anti-prohibitionistcamp or by the UN’s papers.The selection offered here is by no meansexhaustive. Its purpose is to provide the readerwith a “taste” of the way NGOs reason in relationto drugs and human rights and to indicatesome themes later found in the UN bodies’recent discourse.We divided the authors/sources of publishedpapers supported or quoted by these NGOs,into three categories according to the area onwhich they focus their arguments, noting thatin the more recent papers/reports these categoriesoften aggregate:I. The international law group – Authors whoare examining different provisions of internationallaw and recommend States Partiesvarious escape routes from legally bindingagreements they have signed and ratified,namely the three drug conventions, 22 orpromote a rebellion against the present legalestablishment. This camp does not generallyresort to human rights instruments. Hence, nodiscussion related to children rights is to beexpected.II. The human rights group – Authors whodeploy a human rights discourse with a clearpurpose of challenging the validity of presentinternational drug control legislation, withparticular attention to its demand side. 23 Theyeither contort the existing provisions of thehuman rights conventions, giving them apartisan interpretation, or purely devisecustom-made new rights to fit a segment of36

population depicted as the primary victims ofthe present legal setting: the drug users. Theyignore existing rights, notably Article 33 of theConvention on the Rights of the Child, withthe intention of reorganizing the perception ofwhom shall be considered a victim (any adultdrug user) whilst forgetting about children’sspecial protection rights in this regard.III. The children rights group – This is anextremely small group of authors, closelyrelated to the human rights group. Theseauthors made their initial appearance morerecently on the international stage. In generaltheir strategy is the admittance of the existenceof the single human right provision addressingnarcotic drugs in any of the internationalhuman rights instruments, respectively CRCArticle 33, and its relevance for drug policy, butmake it look like something completely differentby giving it a limited interpretation or acompletely partisan one, departing from theordinary meaning of the provision.I. The international law group:As mentioned above, this category of authors,whether directly affiliated to an NGO or not,considers that the present international drugcontrol regime regulated by the three drugrelatedtreaties 24 is undoubtedly a prohibitionistone and a bitter pill to swallow for statesthat might contemplate legalization of anydrugs, or the adoption of measures to decriminalize25 or de-penalize 26 consumption of illicitdrugs, or implement the so-called “harmreduction” programmes. 27 The development ofsuch policies is considered, from a legal pointof view, to be jeopardised by the entrance intoforce of the UN Convention against IllicitTraffic in Narcotic Drugs and PsychotropicSubstances of 1988. This instrument directlyaddresses in its penal provisions the demandside of the drug problem in Article 3 paragraph2. For example, Krzystof Krajewski 28 admitsbluntly: “This provision seems absolutely clear,closing the ‘loophole’ existing from the prohibitionistpoint of view under earlier conventions,that consumption and consumers mustbe criminalised.” 29 Therefore the 1988Convention becomes the main object ofdiscontentment and repudiation in the majorityof papers belonging to this category ofauthors.None of the papers or reports belonging tothis group addresses the supply side of the drugproblem or tries to assess the consequences ofde-penalisation or decriminalization of illicitdrugs for the production, manufacture anddistribution of these substances.These authors do not deploy human rightsarguments, but instead draw escape routesfrom the international drug convention on theinternational law map by indicating how StatesParties may be able to bypass instruments theyhave ratified. Hence their tone is “secular” andpractical in this road map towards, ultimately,de facto 30 or de jure 31 legalization of drugs.Some papers follow an intricate trajectory,often starting with exploring the informalsolutions for departing from the conventionsletter while still simulating some kind ofcompliance with the spirit of international lawby exploiting the loopholes in the treaties. Asoften these paths have proved to be either deadends or just short-term palliatives, the nextroutes considered and debated are the legalones. Hence, few authors examine the formalways of amending 32 or modifying 33 treaties’provisions, treaty revision 34 , denunciation ortermination, exploring a number of issues tobe considered when discussing possiblewithdrawal from one or all of the UN drugcontrol conventions.These possibilities are provided for in thethree drug conventions. The provisions foramendments are to be found in Article 47 ofthe Single Convention of 1961, Article 30Convention on Psychotropic Substances of1971 and Article 31 United Nations Conventionagainst Illicit Traffic in Narcotic Drugs37

and Psychotropic Substances of 1988. 35 Provisionsfor denunciation and termination of thetreaties are stipulated in Article 46 of the 1961Convention, Article 29 of the 1971 Conventionand Article 30 of the 1988 Convention. 36Unlike the previous instruments, namely the1961 and 1971 Conventions, the 1988 Conventionhas no termination clause. This meansthat, as rightly pointed out by David Bewley-Taylor 37 and Fazey et al 38 , according to Article55 of the Vienna Convention on the Law ofTreaties (VCLT) 39 the 1988 Convention willremain in force even if it has only one singleState Party. This feature of the 1988 Conventionis the object of great distress in the antiprohibitionistcamp. However, the absence of atermination clause is obviously intentional.This is exactly the form in which the 1988Convention was ratified by 188 States Parties. 40The examination of the legal routes oftenamounts to just to a theoretic exercise in thesepapers and it is quickly abandoned in favor ofthe informal solutions. For example, KrzystofKrajewski states in his paper from 1999 41 thatfrom a legal point of view, “the UN conventionsimpose very serious limitations on thesignatories’ development of unique nationaldrug policies. The chances of changing thissituation, repealing or substantially amendingthese conventions are extremely slim.” 42 Heconcludes that, “Unfortunately, implementationof more rational drug policies, includingnot only legalization but also decriminalization,would probably require amending the1988 Convention, repealing Article 3 paragraph2. As mentioned before, such an amendmentwill doubtfully occur anytime in the nearfuture.” 43 David Bewley-Taylor 44 discusses ingreater details in his 2003 paper Challengingthe UN drug control conventions: problems andpossibilities the two possible alternatives, modificationand amendment 45 , and soon comes tothe conclusion that “difficulties beset theoptions available to create more room formanoeuvre within the current regime. Anyattempts to modify or amend any of theConventions would certainly run up againstopposition from the prohibition-orientedgroup who could easily work the provisions ofthe treaties to block any progress. In order tocircumvent such stasis, Parties may wish toconsider withdrawing from the treaties.” 46While debating denunciation procedures heconcludes that this option is theoretically plausiblebut practically “highly improbable thatthe denunciation route could be employed toformally terminate the treaties.” 47 According toBewley-Taylor, getting 140 countries (thenumber of Parties in 2002) to denounce theSingle Convention seems an implausiblescenario. Similar conclusions are reached byBewley-Taylor, Cindy Fazey, and Tim Boekhoutvan Solinge in their paper The Mechanicsand Dynamics of the UN System for InternationalDrug Control, published in 2003. Theyalso consider that Parties incur “enormousdifficulties” in their attempts to modify oramend the drug conventions; hence the way togo is withdrawal from the treaties. But accordingto these author’s assessment, “while theprospects for treaty termination may belimited, states may wish to use denunciation toextricate themselves from the currentsystem” 48 . This possibility is also deem ed ashighly problematic as “Open defection from thedrug prohibition regime would… have severeconsequences: it would place the defectingcountry in the category of a pariah ‘narcostate,’generate material repercussions in the form ofeconomic sanctions and aid cut offs, anddamage the country’s moral standing in theinternational community.” 49 Henceforward,States Parties are advised to “simply ignore thetreaties or certain parts of them” 50 ; “to moreactively pursue the quiet path… interpret ingthe ambiguities within the Conventions in thelight of their own needs… especially in relationto the de-penalization of possession of illicitdrugs and the use of controlled drugs for medicinalreasons”; 51 ignore the International38

Narcotics Control Board (INCB) advice; createa group of like-minded states who can rageagainst the present drug control regime and itsUN machinery, and to pressure itself andinitiate a regime change.The latitude within the drug treaties or theroom for manoeuvre within the currentregime is trawled through the three drugconventions, the general features of internationallaw and the various provisions of theVienna Convention on the Law of Treaties(VCLT). 52Some such examples are:1. The vagueness of the drug conventionsAn indicated escape route, or “loophole”exploitable in the advantage of the stateswishing to depart from the present drugcontrol regime is that the international drugconventions “are formulated in a very broad,even vague manner.” 53 For example, KrzystofKrajewski explains the vagueness of theconventions’ provisions as the result of theState Parties’ negotiations while adopting theinstruments and of the need to accommodatedifferent legal systems. But in this regard thereare no differences between the three UN drugconventions and other conventions betweenstates. The Vienna Convention on the Law ofTreaties, the instrument that codifies the rulesthat guide treaty relations between states, inArticle 2(1) (a) explains that “‘treaty’ means aninternational agreement concluded betweenStates in written form and governed by internationallaw… whatever its particular designation”.54 Hence any treaty implies a clear andvoluntary intention to establish legal relationsand is a result of negotiations and bargainingprocedures, a compromise between states. Treatiescreate legally binding rights and duties forthe contracting parties and remain the mostimportant means of regulating internationalrelations.All conventions pass through the processesof adoption; “the formal act by which the formand content of a proposed treaty text are established.As a general rule, the adoption of thetext of a treaty takes place through the expressionof the consent of the states participatingin the treaty-making process. Treaties that arenegotiated within an international organizationwill usually be adopted by a resolution of arepresentative organ of the organization whosemembership more or less corresponds to thepotential participation in the treaty in question.A treaty can also be adopted by an internationalconference which has specifically beenconvened for setting up the treaty, by a vote oftwo thirds of the states present and voting,unless, by the same majority, they have decidedto apply a different rule.” 55If we are to apply Krajewski’s logic, thewhole international system would become alegal minefield, providing no accountability orforeseeability for the States Parties.2. The non self-executing nature of theconventionsAccording to David Bewley-Taylor, “room forinterpretation” is to be found in the fact thatthe conventions are not of self-executingnature 56 and because “often vocal in its criticismof national policy, the INCB, as the bodyresponsible for overseeing the operation of thetreaties, has no formal power to enforce theimplementation of the Convention provisions,nor has the Board the formal power to punishparties for non-compliance.” 57 This gives,according to the author, States Parties freedomin formulating domestic policies against theINCB’s advice.The author appears not to have taken intoaccount the fact that none of the UN treaties isself-executing and that none of the monitoringbodies has the ability to literally punish countriesfor non-compliance. This feature of internationallaw often stimulates debates and evencontestations related to the real legal value ofinternational law as law. This is contrasted tothe assumption that at the national level the39

law is enforced. But as pointed out by MartinDixon, “It might be that the assumed certaintyof enforcement of national law masks its truebasis and, in the same way, enforcement maybe irrelevant to the binding quality of the internationallaw. For example, a better view ofnational law may be that it is ‘law’ not becauseit will be enforced, but because it is generallyaccepted as such by the community to whom itis addressed: the local population. The nationalsociety recognizes that there must be somerules governing its life, so long as these comeinto existence in the manner accepted asauthoritative… they are binding. In otherwords, the validity of ‘law’ may depend on theway it is created, that being the methodregarded as authoritative by the legal subjectsto whom it is addressed. The fact of enforcementmay be a reason why individuals obey thelaw (and that is not certain), but it is not thereason why it is actually law. In internationallaw, then, the fact that rules come into being inthe manner accepted and recognized by thestates as authoritative… is enough to ensurethat ‘law’ exists… While international law hasnever been wholly dependent on a system ofinstitutionalized enforcement, the absence of a‘police force’ or compulsory court of generalcompetence does not mean that internationallaw is impotent.” 58This is the very nature of the internationallaw and this is the place where “good faith”should apply. States are trusted to honor theagreement made by signing/ratifying theinstrument.It is absolutely clear that an internationalpolice directly enforcing these formal agreementswill not be established anytime soon,neither for the international drug control treatiesnor for the other instruments.3. Article 31 of the Vienna Convention on theLaw of TreatiesAnother escape route or way to find “someroom for interpretation at the national level” 59is found in the context of Article 31 VCLT,which compels countries “to interpret treatiesin good faith, respect the ‘object and purpose’of the Conventions and thus, within the con -text of this discussion, adhere to the standardsand norms of the global drug controlregime.” 60It is true that the principles of treaty interpretationare rather complicated matters; thisis why a good deal of texts has been devoted tothis topic. However, when discussing thesubject of treaty interpretation, VCLT Articles31 and 32 are the first places where clarificationis to be found. Therefore, we should throw aglance at VCLT Article 31 to estimate theproportions of the so-called “room for interpretation”permissible in the context of thedrug conventions.As indicated by the International LawCommission, the attempt to “isolate and codifythe comparatively few general principles whichappear to constitute general rules for the interpretationof treaties” was not an easy task butan extremely important one; “the Commissionconsidered that there were cogent reasons whyit should be attempted. First, the interpretationof treaties in good faith and according to law isessential if the pacta sunt servanda rule is tohave any real meaning. Secondly, having regardto the divergent opinions concerning methodsof interpretation, it seemed desirable that theCommission should take a clear position inregard to the role of the text in treaty interpretation.”61 The Commission further elaborated:“When a treaty is open to two interpretationsone of which does and the other does notenable the treaty to have appropriate effects,good faith and the objects and purposes of thetreaty demand that the former interpretationshould be adopted.” 62 However, “extensive” or“liberal” interpretation, in the sense of aninterpretation going beyond what is expressedor necessarily implied in the terms of thetreaty, is described by the same source as beinghighly avoidable. The Commission actually40

tried to discourage any “attempts to extend themeaning of treaties illegitimately on the basisof the so-called principle of ‘effective interpretation’.”63 The same view was expressed by theInternational Court of Justice, which emphasizedthat the adoption of “an interpretationwhich ran counter to the clear meaning of theterms would not be to interpret but to revisethe treaty.” 64The International Law Commission elaboratedin relation to VCLT Article 31 65 asfollows: “The first – interpretation in goodfaith – flows directly from the rule pacta suntservanda. The second principle is the veryessence of the textual approach: the parties areto be presumed to have that intention whichappears from the ordinary meaning of theterms used by them. The third principle is oneboth of common sense and good faith; theordinary meaning of a term is not to be determinedin the abstract but in the context of thetreaty and in the light of its object andpurpose.’’ These principles have repeatedlybeen affirmed by the Court. The present Courtin its Advisory Opinion on the Competence ofthe General Assembly for the Admission of aState to the United Nations said:‘The Court considers it necessary to say thatthe first duty of a tribunal which is calledupon to interpret and apply the provisions of atreaty, is to endeavour to give effect to them intheir natural and ordinary meaning in thecontext in which they occur. If the relevantwords in their natural and ordinary meaningmake sense in their context, that is an end ofthe matter.In addition, the Permanent Court, in anearly Advisory Opinion, stressed that thecontext is not merely the article or section ofthe treaty in which the term occurs, but thetreaty as a whole:‘In considering the question before theCourt upon the language of the Treaty, it isobvious that the Treaty must be read as awhole, and that its meaning is not to be determinedmerely upon particular phrases which,if detached from the context, may be interpretedin more than one sense.’” 66In this context, it is difficult to understandhow “room for interpretation”, in the sense ofadopting a lax policy in relation to recreationaldrug consumption, is to be found in VCLTArticle 31and how VCLT Article 31 is to sustainsuch a position.Authors like David Bewley-Taylor also overlookthe sources VCLT Art. 31 indicates asrecommendable to resort to for the purpose ofthe interpretation of a treaty. As stipulated byVCLT Article 31, “a treaty shall be interpretedin good faith in accordance with the ordinarymeaning to be given to the terms of the treatyin their context and in the light of its objectand purpose”, 67 and “the context for thepurpose of the interpretation of a treaty shallcomprise, in addition to the text, including itspreamble and annexes:(a) any agreement relating to the treatywhich was made between all the parties inconnection with the conclusion of the treaty;(b) any instrument which was made by oneor more parties in connection with the conclusionof the treaty and accepted by the otherparties as an instrument related to the treaty.” 68It should be illustrative to look at thepreambles of the drug conventions to understandtheir spirit, to cast an appropriate lighton the object and purpose of these instruments.As stated by the International LawCommission, it is a fact that “the preambleforms part of a treaty for purposes of interpretationis too well settled to requirecomment.” 69 The same source elaborated inrelation to the preamble of a treaty that “theCourt has more than once had recourse to thestatement of the object and purpose of thetreaty in the preamble in order to interpret aparticular provision.” 70The Single Convention’s Preamble states:“The Parties,41

Concerned with the health and welfare ofmankind,Recognizing that the medical use of narcoticdrugs continues to be indispensable for the reliefof pain and suffering and that adequateprovision must be made to ensure the availabilityof narcotic drugs for such purposes,Recognizing that addiction to narcotic drugsconstitutes a serious evil for the individual andis fraught with social and economic danger tomankind,Conscious of their duty to prevent and combatthis evil,Considering that effective measures againstabuse of narcotic drugs require coordinatedand universal action…” 71The 1971 Convention’s Preamble affirms:“The Parties,Being concerned with the health and welfare ofmankind,Noting with concern the public health and socialproblems resulting from the abuse of certainpsychotropic substances,Determined to prevent and combat abuse ofsuch substances and the illicit traffic, to whichit gives rise,Considering that rigorous measures are necessaryto restrict the use of such substances to legitimatepurposes,Recognizing that the use of psychotropic substancesfor medical and scientific purposes isindispensable and that their availability forsuch purposes should not be undulyrestricted,Believing that effective measures againstabuse of such substances require co-ordinationand universal action,” 72And finally, the 1988 Convention’s Preambleenunciates as follows:“Deeply concerned by the magnitude of andrising trend in the illicit production of, demandfor and traffic in narcotic drugs andpsychotropic substances, which pose a seriousthreat to the health and welfare ofhuman beings and adversely affect the economic,cultural a political foundations of society,Deeply concerned also by the steadily increasinginroads into various social groups madeby illicit traffic in narcotic drugs and psychotropicsubstances, and particularly by thefact that children are used in many parts ofthe world as an illicit drug consumers marketand for purposes of illicit production, distributionand trade in narcotic drugs and psychotropicsubstances, which entails a dangerof incalculable gravity,Recognizing the links between illicit trafficand other related organized criminal activitieswhich undermine the legitimateeconomies and threaten the stability, securityand sovereignty of States,Recognizing also that illicit traffic is an internationalcriminal activity, the suppression ofwhich demands urgent attention and thehighest priority,”Aware that illicit traffic generates large financialprofits and wealth enabling transnationalcriminal organizations to penetrate, contaminateand corrupt the structures of government,legitimate commercial and financialbusiness, and society at all its levels,Determined to deprive persons engaged inillicit traffic of the proceeds of their criminalactivities and thereby eliminate their mainincentive for so doing,Desiring to eliminate the root causes of theproblem of abuse of narcotic drugs and psychotropicsubstances, including the illicitdemand for such drugs and substances andthe enormous profits derived from illicittraffic,” 73These preambles do not leave many options inrelation to the recreational/non-medical andnon-scientific use of narcotic drugs andpsychotropic substances for the States Parties.Hence it will be difficult to consider decriminalizationor de-penalization/de facto legalisationas viable options under the present legalsetting without giving them, and especially to’88 convention Article 3(2), an interpretationwhich runs counter to the clear meaning of theterms involved.Notwithstanding all these facts, authors likeDavid Bewley-Taylor still consider that “Thissituation certainly leaves some room for interpretationat the national level and consequentlypresents signatory nations with adegree of freedom when formulating domesticpolicies. Such a situation explains the variationsthat exist within Europe today, including42

the de facto legalisation of personal cannabispossession in a number of countries.” 744. The fundamental changes of circumstances,clausula rebus sic stantibusAnother suggested solution is to push for reinterpretationor even termination of treaties onthe grounds of fundamental changes of circumstances.Bewley-Taylor suggests that, “Bear -ing in mind the dramatic changes in the natureand extent of the drug problem since the 1960s,this doctrine of rebus sic stantibus couldprobably be applied to the drug treaties.” 75 Thisis actually another dead end in relation to theprescription of the doctrine of rebus sic stantibus76 and its applicability in relation to thedrug conventions. Aside from its completeinappropriateness as per VCLT Article 62, 77even at theoretical level, this clause is extremelylimited scope in international law practice andit is of a rather controversial nature. Forexample, the International Court of Justiceruled that “the stability of treaty relationsrequires that the plea of fundamental changesof circumstances be applied only in exceptionalcases.” 78Other papers suggest that the drug conventionsare too old and they fail to acknowledgethe reality in relation to the HIV/AIDSepidemic. This argument is flawed, as the lastdrug convention was adopted in 1988, a timewhen HIV was by no means a negligiblephenomenon. We should also mention in thiscontext that all three drug conventions providefor treat ment as an alternative or in addition toconviction or punishment, aftercare, rehabilitationor social reintegration of theuser/offender. 79Finally, in relation to the prescription of thedoctrine of rebus sic stantibus and its applicabilityin relation to the drug conventions in thecontext of the HIV/AIDS epidemic, Fazey et al.in discussing Possibilities for changing thecurrent treaties – Disregarding the Treatiesadmits that: “the selective application of such aprinciple would call into question the validityof many and varied conventions. Furthermore,since the treaties fulfill an important role in thecontrol of licit pharmaceuticals anywithdrawal from the international treatysystem would certainly be problematic.” 80Although this strategy is a legal dead end, itis still pursued and promoted, not just by someNGOs, but more recently and surprisingly bysome UN agencies and bodies. One remarkableexample in this regard is UNODC. In 2008 theExecutive Director, Antonio Maria Costa,suggested that the three drug conventions areobsolete and that the changed circumstanceshave to be considered in answering any questionabout implementation of the internationaldrug control system in the 21st century.Clearly, we must humanize our drug controlregime which appears too many to be to depersonalizedand detached from their day-to-daylives.” 81However, considering the controversial,convoluted and compound nature of theHIV/AIDS argument, we have decided toaddress this issue in a separate study.II. The human rights group:The human rights political agenda could bedescribed as one of the biggest successes of thelast 60 years. From few documents with limitedlegal effect, 82 there is today a substantial arrayof international human rights instruments,bodies, institutions, tribunals and courts whichmonitor and implement this regime. Asmentioned above, an impressive number ofNGOs act as watchdogs for this regime.Progressively, the language of human rightshas become a source of power and authority.Today an allegation that a state, a leader or aregime is violating human rights is one of thegravest to be associated with. But like othersources of power, the power of the language ofhuman rights is exposed to abuses. We can alsosee inappropriate uses of human rightsdiscourse where the language of human rights43

is employed to attain political ends that arecontrary to the wording of human rights law.As previously discussed, every human rightscampaign has to be validated by existing hardlaw instruments. Ultimately, we have toacknowledge that human rights are not aboutpeople’s feelings, intentions or wishes; they arelaws codified in international legal instruments.In general, the sources 83 addressing the relationshipbetween the human rights regime andthe international drug control regime tend togroup. According to our survey, it is veryseldom that a human rights/drug control paperis issued by one author or one single organization.84 It is a guessing game as to whether apooling of intellectual expertise is the reasonfor this collaboration or if it is a strategy to gainauthority, influence and attention. For thecitizen or the politician who is not directlyconcerned with drug control policy, a list ofnames of authors or organizations will passunnoticed; however, attaching nameslike Human Rights Watch or a UN SpecialRapporteur (e.g. the Special Rapporteur ontorture and other cruel, inhuman or degradingtreatment or punishment or the SpecialRapporteur on health) guaranties better credibilityand exposure. But this is not the only strategyinvolved. These organizations’ game planseems extremely well devised; they merge anddivide according to the task and aim. Theirnumbers impromptu mushroom and theyproduce whatever thoroughbred or crossbreedis needed in a specific context, from youth organizationsand pro-marijuana parents’ grassrootsnetworks, to every entity imaginable.Many documents have been issued by theunholy trinity of Harm Reduction International/InternationalHarm Reduction Association,Open Society Institute and Human RightsWatch, but when influence is to be gained byusing a larger number of voices, they will separatelyissue reports or papers. As mentioned inthe beginning of this chapter, by using theGoogle web search engine for word combinationssuch as NGO+drugs+human rights, weobtained an impressive number of results.However, even if the number and geographicalcoverage of NGOs and entities dealing withhuman rights and drug policy appears overwhelming,in our final analysis, the argumentsand the style of these publications indicate fewinstances of pre-eminence and éminence grise,often stemming from the United Kingdom.Often these papers/reports label the internationaldrug control regime, regulated by thethree drug conventions, as “overwhelminglyprohibitionist” 85 , moralistic, demonizing anddehumanizing of people who use drugs, aggravatingdiscrimination against people who usedrugs and generating widespread serioushuman rights violations. 86 The same regime isdescribed as leading to “the denial of humanrights to people who use drugs.” 87 The currentapproach in international drug policy isequated with the “war on drugs”, even thoughnone of these papers define the concept of “waron drugs” or describes in detail what thisapproach entails. The drug control regime isdeplored for the alleged human rights abuses itprovokes and for worsening national and internationalsecurity and development. 88Some of these papers state that the internationaldrug conventions have been developed,interpreted and implemented “in a vacuumfrom human rights law.” 89 This situation isseen as possible because the human rightsmachinery mostly ignored the issue of drugcontrol. This is deemed as being at odds withthe obligation imposed to UN structures andits Member States by the Charter of the UnitedNations to promote, encourage and observeuniversal “respect for human rights and forfundamental freedoms for all withoutdistinction as to race, sex, language, or religion.”90 The next step in some of these papersis to state the existence of a conflict betweenthe two regimes (human rights and drugcontrol) and to invoke Article 103 of the UN44

Charter to assess the primacy of human rightswithin the United Nations system. 91 Forexample, the 2009 HRW, IHRA and CanadianHIV/AIDS Legal Network’s Report: Recalibratingthe Regime: The Need for a Human Rights-Based Approach to International Drug Policy,published by Beckley Foundation Drug PolicyProgramme (BFDPP), states: “While thehuman rights norms are absent from thepreambles of the three UN drug control treaties,this does not mean the UN narcoticscontrol regime is free to operate withoutcomplying with human rights law… Moreimportantly, however, the UN, its agencies andmember states are bound by their overarchingobligations under articles 1, 55 and 56 of theCharter of the United Nations to promote‘universal respect for, and observance of,human rights and fundamental freedoms’.Under article 103 of the Charter, ‘In the eventof a conflict between the obligations of theMembers of the United Nations under thepresent Charter and their obligations underany other international agreement, their obligationsunder the present Charter shall prevail.’This means that international treaties onnarcotics control must be interpreted so as tocomply with the overarching duty to respectand observe human rights.” 92However, without denying the relevance ofhuman rights for the drug control regime, asfor any other international legal sphere, wehave to admit that the issue of UN CharterArticle 103 is by no means as straightforwardas these authors 93 wish and suggest. Forexample, the Koskenniemi Report of the StudyGroup of the International Law CommissionFragmentation of International Law: DifficultiesArising from the Diversification and Expansionof International Law 94 (hereafter KoskenniemiFragmentation of International Law Report)states: “Much of the concern over the fragmentationof international law emerges from theawareness of the ‘horizontal’ nature of theinternational legal system. The rules and principlesof international law are not in a hierarchicalrelationship to each other… This is a keydifference between international and domesticlegal systems. Whereas domestic law is organizedin a strictly hierarchical way, with theconstitution regulating the operation of thesystem at the highest level, there is no suchformal constitution in international law and,consequently, no general order of precedencebetween international legal rules… There is animportant practice that gives effect to theinformal sense that some norms are moreimportant than other norms and that in casesof conflict, those important norms should begiven effect to. In the absence of a generaltheory about where to derive this sense ofimportance, practice has developed a vocabularythat gives expression to something like aninformal hierarchy in international law...namely Article 103 of the United NationsCharter, the concepts of peremptory norms(jus cogens) and obligations erga omnes.” 95 TheStudy Group of the International LawCommission elaborated in the FragmentationReport A/CN.4/L.702, 96 “International law is alegal system. Its rules and principles (i.e. itsnorms) act in relation to and should be interpretedagainst the background of other rulesand principles. As a legal system, internationallaw is not a random collection of such norms.There are meaningful relationships betweenthem. Norms may thus exist at higher andlower hierarchical levels, their formulationmay involve greater or lesser generality andspecificity and their validity may date back toearlier or later moments in time.” 97Regarding UN Charter Article 103 we haveto acknowledge that its primacy is expresslymentioned under article 30 (1) VCLT. 98However, as indicated by Koskenniemi Fragmentationof International Law Report, Article103 does not stipulate that the UN Charterprevails, but refers to obligations under theCharter, 99 more specifically, as HumphreyWaldock put it, “the very language of Article45

103 makes it clear that it presumes the priorityof the Charter, not the invalidity of treatiesconflicting with it.” 100 The Koskenniemi Fragmentationof International Law Report furtherelaborates: “A clear-cut answer to this question(priority or invalidity?) cannot be receivedfrom the text of Article 103. Yet the word‘prevail’ does not grammatically imply that thelower-ranking provision would become automaticallynull and void, or even suspended.The State is merely prohibited from fulfillingan obligation arising under that other norm.Article 103 says literally that in case of aconflict, the State in question should fulfil itsobligation under the Charter and perform itsduties under other agreements in as far ascompatible with obligations under theCharter.” 101Returning to the arguments advanced byvarious authors 102 in relation to the humanrights and international drug regimes and theirrelation to UN Charter Article 103, we shouldconsider UN Charter Articles which establishstates’ obligations under the this instrument.Article 1 deals with the Purposes of UN 103 andArticle 2 establishes the Principles membershave to apply, in pursuit of the Purposes statedin Article 1. 104 As discussed in Chapter 1, thepreamble is also a useful tool in understandingthe object and purposes of an instrument, inthis case the UN Charter. 105 Taking into considerationall these elements, we cannot reach thesame conclusion as the mentioned authors. 106The international drug control policy, even ifnot specifically named as such, falls under“international problems of an economic, socialcharacter” mentioned by Article 1(3).Moreover, both the preamble and Article 2 statethe importance of acting in good faith andrespecting “obligations arising from treaties,”issues that these authors completely ignorewhen describing three widely ratified internationalinstruments as obsolete and encouragingStates Parties to bypass them on ideologicalreasons.In this context we should remember that thetwo articles of the Charter, 107 which are mainlyinvoked in relation to human rights, alsomention the achievement of “international cooperationin solving international problems ofan economic, social, cultural, or humanitariancharacter” 108 as one of the purposes of theUnited Nation, as per Article 1. UN CharterArticle 55 stipulates that UN should promote:“(b) solutions of international economic,social, health, and related problems; and internationalcultural and educational cooperation.”109 Barrett and Nowak mention this factin their 2009 paper as follows: “during the SanFrancisco Conference it was made clear thatdrug control was a subset of ‘internationaleconomic, social, health and related problems’contained in Article 55, and for which the UNhad competence to consider. Today we refer tothis as the development pillar of the UN.” 110The international drug control policy attemptsto deal exactly with such problems. Hence itwould be difficult to consider under the UNCharter the existence of a conflict betweenthese two regimes 111 and to solve the issuethrough Article 103, as long as the UN Charteritself does not define any internal hierarchy.The limited jurisprudence related to UNCharter Article 103 fails to confirm the theorythat in the event of a conflict between the obligationsof the Members of the United Nationsunder the Charter, human rights might prevail.For example, in the 2005 Al-Jedda Case, 112where the claimant – an Iraqi/British citizen –had been detained by British forces in Iraq for10 months without being charged, the HighCourt of Justice in Britain delivered itsjudgment affirming the superiority of SecurityCouncil resolutions over Britain’s humanrights obligations: “Firstly, the Court tested thelegality of the claimant’s detention againstwhat it called ‘the context of internationalhuman rights law’... the Court added, nevertheless,that a hierarchy was also implicated: [f]orthe purposes of restoring and maintaining that46

peace and security without which there can beno human rights within Iraq, the SecurityCouncil has authorized such detention as isnecessary for imperative reasons of security inaccordance with Article 78 of Geneva IV...Secondly, the Court, discussing the relationshipbetween the Charter of the UnitedNations and all other treaty obligations,concluded that Article 103 of the Charter ofthe United Nations embraces also resolutionsof the Security Council and that actions takenin pursuance of them prevail other treaty obligations- even of human rights character.” 113However, even if no element suggests theconclusion reached by these authors 114 , weshould note that the same argument referringto UN Charter Article 103 was repeatedly usedby UNODC in their reports 115 , including theOrganization’s most comprehensive paperdiscussing human rights and drug policy. 116Another argument sustaining the conflictbetween human rights and international drugcontrol/primacy of human rights idea, accordingto some of these authors, is found in theresolutions adopted yearly by the GeneralAssembly entitled International cooperationagainst the world drug problem, which in recentyears requested that drug control “must becarried out in full conformity with thepurposes and principles of the Charter of theUnited Nations and other provisions of internationallaw, the Universal Declaration ofHuman Rights and the Vienna Declaration andProgramme of Action on human rights, and, inparticular, with full respect for the sovereigntyand territorial integrity of States, for the principleof non-intervention in the internal affairsof States and for all human rights and fundamentalfreedoms, and on the basis of the principlesof equal rights and mutual respect.” 117Still, these papers concerned with humanrights/drug control ignore the paragraphs ofthe same resolutions which state that theGeneral Assembly is gravely concerned that“the world drug problem continues to constitutea serious threat to public health and safetyand the well-being of humanity, in particularchildren and young people and their families,and to the national security and sovereignty ofStates, and that it undermines socio-economicand political stability and sustainable development.”118 Also ignored is the fact that theseresolutions welcome Member States’ efforts tocomply with the three drug conventions.Hence, the stated conflict between the tworegimes does not result from these resolutions.Moreover, as mentioned above, the sameGeneral Assembly resolutions request thatdrug control must be carried out in full conformitywith the Vienna Declaration and theProgramme of Action on Human Rights 119 ,adopted in June 1993, which specifically asksthat “the rights of the child should be a priorityin the United Nations system-wide action onhuman rights”. 120 This paragraph of theVienna Declaration is completely ignored evenby the authors who specifically quote thisinstrument. For example, Barrett and Nowakcite Vienna Declaration and Programme ofAction of 1993 to underline that Human rightsand fundamental freedoms are the birthright ofall human beings; their protection and promotionis the first responsibility of Governments 121but neglect to mention the emphasis that thisDeclaration puts on children’s rights.Another fact never discussed in relation tothese General Assembly resolutions on“International Cooperation against the WorldDrug Problem” is that the latest such document,A/RES/65/233, states the deep concernabout the need “to take all appropriatemeasures, in -cluding legislative, administrative,social and educational measures, toprotect children against the illicit use ofnarcotic drugs and psychotropic substances asdefined in the relevant treaties, and to preventthe use of children in the illicit production ofan trafficking in such substances”. 122 This paragraphreplicates the language of CRC Article33, a provision that is largely avoided and47

ignored in all papers dealing with humanrights and international drug control. Theexception is again the Barrett and Nowak 2009paper which acknowledges that this is “the onlyUN human rights treaty to deal specificallywith the issue” but discusses it in less than asentence 123 , clearly showing that the authorsbelieve that any other human rights instrumentis of greater relevance for drug controlpolicy. The authors state that “Meanwhile, inthe sixty years since the adoption of theUniversal Declaration, international humanrights law has developed to pursue the healthand ‘well being’ of everyone without discrimination”124 but propose a discriminatory selectionof human rights, excluding any focus onchildren’s rights and the interests of membersof the larger population that do not qualify asdrug users.Some of these papers begin by stating that aconflict of ideologies exists between the humanrights and drug control regimes. For example,Barrett and Nowak consider that “Unlikehuman rights law, which focuses to a largeextent on the protection of the most vulnerable,the drug conventions criminalise specificallyvulnerable groups. They criminalisepeople who use drugs…” 125 In the 2008 reportby Barrett et al. regarding the internationalhuman rights system, it is stated that “In additionto the specific protections and freedomsset out in each human rights treaty, a numberof key principles run throughout the conventionsthat are of considerable relevance tointernational drug control.” 126 These listedprinciples are: non-discrimination, protectingthe most vulnerable, and empowerment. Onthe other hand, the international drug controlregime is seen as discriminatory against peoplewho use drugs; as failing to protect the mostvulnerable groups, including local farmingcommunities and drug users; and ignoring theinvolvement of communities affected by druguse, production and trafficking in designingpolicies. 127 Still, none of the characteristicsenumerated above, such as drug use, productionor trafficking of drugs, are immutablecharacteristics that can make the case for directdiscrimination. It is rather unusual to raiseconcern over discrimination and empowermenton instruments comprising penal provisionsagainst that specific activity. It would belike complaining that the UN Conventionagainst Corruption discriminates againstcorrupt people. Moreover, it is difficult tocredit the assumption that drug users constitutethe most vulnerable group in the society.Some drug-using individuals are children,women, elderly people, and people with disabilitiesor who belong to a certain race or ethnicity128 , et cetera, but this cannot lead to theconclusion that all drug users constitute themost vulnerable group in society. Clearly mostpeople who have a lifetime prevalence of illicitdrug use do not develop a substance usedisorder (i.e. abuse or dependence). Accordingto Anand Grover, the UN Special Rapporteuron the right of everyone to the highest attainablestandard of physical and mental health,“drug use is not a medical condition and doesnot necessarily imply dependence. Indeed themajority of people who use drugs do notbecome dependent and do not require anytreatment.’’ 129 Hence it is difficult to see thereason for which the drug users’ categoryshould be described as primary victims orparticularly vulnerable?Many of the papers at hand count on theimprecise usage of terms avoiding distinctionsbetween: drug users, injecting drug users(IDU), drug dependant people, and evenpeople living with HIV/AIDS. For example, theBeckley Foundation report Recalibrating theRegime: The Need for a Human Rights-BasedApproach to International Drug Policy whilediscussing the principle of non-discrimination,explains that states are requested to avoiddiscrimination against individuals or groups onclearly described grounds and the basis of“other status”, which includes health status,48

including HIV status. The paper extends thisprovision and discusses discrimination againstdrug users. However, the two groups of peopleliving with HIV and drug users are distinct andcannot be equated. As above mentioned, in thewords of the UN Special Rapporteur on theright to health, drug use is not a medical conditionand does not require treatment. Hence, inwhich way does drug use qualify as other/health status to be discriminated against?Another eloquent example of a documentthat interchangeably uses these terms is the2010 Health Advocacy Report issued by InternationalFederation of Red Cross and RedCrescent Societies (IFRC) titled Out of harm’sway – Injecting drug users and harm reduction.The Report advocates strongly for “harmreduction” and underscores the link between“harm reduction” and human rights. Thepaper pro -claims to be human rights-based inan axiomatic way, without linking statementsto concrete human rights provisions. As stated,the intent of this report is to “remind governmentsand National Societies of the obligationto respect the human rights of injecting drugusers at risk of, or living with, HIV” 130 ; how -ever, the paper interchangeably talks about“injecting drug use”, “drug use”, and “drugusers”, advocating for decriminalization ofdrug use in all forms. In the same text IFRCgoes further and recommends that “All stakeholdersneed to empower and listen to thosewho use drugs: Their voices need to be heardand their participation – in all aspects of decisionand policymaking, planning and implementation– is absolutely critical.” 131A number of human rights papers andreports devoted to casting a light on humanrights abuses committed “in the name of drugpolicy”. 132 Some of these have undeniablemerits, indicating severe problems in thejustice or medical systems of certain countries.Without trying to minimize such concerns,one should admit that these are not generalizedpractices and that they often happen incountries with precarious records on justice,law enforcement, and human rights. 133Contrary to what some of these papers suggest,the Commentary on the United NationsConvention against Illicit Traffic in NarcoticDrugs and Psychotropic Substances, 1988 underlines,while discussing Article 3 concerningoffences and sanctions: “While it is importantto stress that the Convention seeks to establisha common minimum standard for implementation,there is nothing to prevent parties fromadopting stricter measures than thosemandated by the text should they think to do,subject always to the requirement that suchinitiatives are consistent with applicable normsof public international law, in particular normsprotecting human rights.” 134 Hence, one canagree with some of these papers that the UNbodies in charge of drug control could domuch more to condemn such abuses and toadvise States Parties in their implementation ofthe drug conventions, but they cannot logicallyconclude that the whole international drugcontrol system is complacent and compromised.None of the drug conventions prescribethe measures applied in these cases.A centrepiece of many of these papers is theright to health, referring manly to Article 12 ofthe International Covenant on Economic,Social and Cultural Rights. Often present inthese papers are statements such as: “Individualswho use drugs do not forfeit the rightto the highest attainable standard of health….the rhetoric of drug control has often beenused to undermine the right to health, particularlyin the area of the prevention of bloodbornediseases such as HIV and hepatitis Cvirus (HCV), both of which are easily transmittedby unsafe injecting drug practices suchas the sharing of syringes”. 135 The refusal ofsome countries to implement “harm reduction”interventions is often seen as a violationof the right to health.As indicated in the literature, the right tohealth stems primarily, but not exclusively 136 ,49

from Article 12 of the International Covenanton Economic, Social and Cultural Rights and isone of the most ambiguous and debatedhuman rights provisions. 137 General CommentNo. 14 issued by the UN Committee onEconomic, Social, and Cultural Rights(CESCR) in 2000 constitutes the most comprehensiveand reliable interpretation on the rightto health. This document makes reference todrugs several times. For example, paragraph 15discusses ICESCR Article 12.2(b) consideringthat this provision “also… discourages… theuse of tobacco, drugs and other harmfulsubstances”. Paragraph 51 elaborates on “violationsof the obligation to protect”, consideringthat this follows from the failure of a State to…“discourage production, marketing andconsumption of tobacco, narcotics and otherharmful substances…” 138 Paragraph 4 elaborateson “the highest attainable standard ofphysical and mental health” which cannot bepurely equated with the right to health care,but which includes “a wide range of socioeconomicfactors that promote conditions inwhich people can lead a healthy life, andextends to the underlying determinants ofhealth”. 139 Given such statements, it is difficultto understand how the philosophy of “harmreduction” can be equated with the right to thehighest attainable standard of physical andmental health, or can be considered as fullycompliant with the requirements of thishuman right especially when those definingfeatures are, according to the InternationalHarm Reduction Association (IHRA) 140 ,focused on the prevention of harm, rather thanon the prevention of drug use itself, and thefocus on people unable or unwilling to stoptheir drug use. As explained in an IFRC paper,“While many governments, organizations andindividuals would like to see a society free ofdrugs, the aim of harm reduction programminglies elsewhere.” 141 The question is howcan we reconcile the disinterest in preventionof illicit drug use or in reducing consumptionof such substances with discouragement ofdrug use/consumption recommended in theICESCR under the right to health?In many of these papers, “harm reduction”becomes the measuring stick for assessingsuccess in drug policy and compliance withhuman rights. UN bodies are judged in relationto their indulgence or promotion of suchpolicies. Such an approach is highly problematic.Except for the fundamental differencein philosophy that “harm reduction” promotesin comparison to the drug control regime andeven with regard to the right to health, theexisting disinterest in defining “harm reduction”makes it difficult to be assumed as a pieceof the drug policy or as a means of protectinghuman rights. While some papers offerexamples of “harm reduction interventions”,such as needle and syringe exchange programs,opioid substitution therapy, overdose prevention,drug consumption rooms, route transitioninterventions and outreach and peereducation, 142 others go much further toinclude policy change and justice systemreform as an integral component of “harmreduction”. 143A set of papers were devoted to theInternational Narcotics Control Board (INCB)position on “harm reduction”. INCB is “theindependent and quasi judicial control organmonitoring the implementation of UN DrugControl Conventions.” 144 During 2007–2008,several organizations published papers on thisissue. The content of these papers is verysimilar and actually often amounts to anambush over INCB in relation to its reticencein promoting “harm reduction”. These papersquote each other to prove a general state ofdiscontent with the activity of the Board. Forexample, Damon Barrett’s paper from 2008 145states that “the Board’s performance has beenwidely criticized” quoting J. Csete and D.Wolfe’s paper from 2007, Closed to Reason: TheInternational Narcotics Control Board andHIV/AIDS, and D. Bewley-Taylor and M.50

Trace’s report, The International NarcoticControl Board: Watchdog or Guardian of the UNDrug Control Conventions? 146 Using the samereferences, Barrett also states that “INCB hasbecome a dangerous entity…promoting rigidinterpretations of their (the drug conventions)many articles… adherence to outdated procedures…amajor international obstacle to theimplementation of HIV prevention and harmreduction programmes.” 147 The abovementioned paper from 2007 authored by J.Csete and D. Wolfe 148 implies, in a quiteaggressive way, that the spread of HIV/AIDS issomehow the Board’s fault, by being anobstacle to prevent HIV and drug dependence,by not responding favorably to scientific andlegal opinions, and by promoting or tolerating“law enforcement patterns that accelerate HIVtransmission and represent clear human rightsviolations.” 149 All these papers ignore thesimple fact that drug consumption preventionhas a beneficial effect in relation to HIV/AIDSand this is a clear part of the Board’s function,as stipulated by Article 9 of the Single Conventionof 1961. Recently, even UNAIDS stated inrelation to the drug problem in its latest PoliticalDeclaration on HIV/AIDS adopted by theGeneral Assembly, 10 June 2011: “Note withalarm the rise in the incidence of HIV amongpeople who inject drugs and that, despitecontinuing increased efforts by all relevantstakeholders, the drug problem continues toconstitute a serious threat to, among otherthings, public health and safety and the wellbeingof humanity, in particular children andyoung people and their families, and recognizethat much more needs to be done to effectivelycombat the world drug problem.” 150In 2008, the Transnational Institute (TNI)published the paper entitled The INCB onHarm Reduction. Catching Up, or Holding Back?in which the treaty body is admonished forbeing too cautious in relation to “harm reduction”and its recommendations to countries toensure that sterile syringe programs are carriedout in compliance with the provisions of theinternational drug control conventions.Moreover, the same source is obviously revoltedby the INCB’s lack of recommendations onneedle exchange services for drug offenders inprison, despite its call for provision of adequateservices for this group. The TNI paper deems itas odd that the treaty body calls instead “ongovernments to ensure that access to illicitdrugs in prisons is terminated” 151 , even if theINCB position in this regard is perfectly logicalin the context of the drug conventions andespecially of the Article 3 (5) (g) of the UnitedNations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substancesfrom 1988.INCB is criticized for issues such as lack oftransparency and lack of legal expertise. 152 Thetreaty body is often accused of operatingoutside its mandate. We also learned, by inculcation,that INCB is “out of step” with the restof the UN on HIV/AIDS and “harm reduction”.153 Overall, the storm against INCB looksless like a critique than a campaign to erodeadherence to INCB. As stated by Bewley-Taylor, et al., what is proposed is the “softeningthe predominantly prohibitionist interpretationof the Conventions adopted by the coretriangle of the UNDCP, CND and INCB andbring them into line with other UN bodies likeUNAIDS who do engage with harm reductionstrategies.” 154There is of course nothing wrong with criticizinga treaty monitoring body. There surelyhas to be accountability, but there is a differencebetween constructive criticism andbullying. Criticism of a court is democraticallyrelevant, while the bullying of a court risksundercutting the rule of law. We note thatmany arguments against INCB are illogical, forexample, the argument that INCB follows thelaw too strictly. Any monitoring body likeINCB or court has, as its only task, to independentlyassess that existing norms have beenfollowed, not to change the law or to make new51

law. Also, the NGOs’ arguments in relation tothe INCB are often self-contradictory. INCB isaccused of mission creep/expanding and at thesame time accused of being too rigid/reducingits reach, arguing that it does not adequatelyaddress human rights, public health 155 and, asmentioned above, does not promote “harmreduction”.In the same context, a few of the papersdevote space to the European Union, framingthis unique and hybrid type of regional organization156 as a preferential interpreter of internationallaw. The argument made is that INCBis in a difficult position since its interpretationof the drug conventions, and notably on “harmreduction” 157 , is not conforming to that ofEuropean Union (i.e. a global standard is notconforming to a regional standard). 158 In 2003,at the time one of those comments was made,the EU comprised circa 7% of the ratifyingstates to the drug conventions. 159 Hence, thesuggestion is that INCB and implicitly 93% ofratifying states shall come to heel with the EU.If the authors of these papers aspire to furtherpursue this argument, it may be better to basethis type of argument on Article 38 (c) of theStatute for the International Court of Justicewhich enumerates as one of the sources ofinternational law: “the general principles of lawrecognized by civilized nations”. 160 In the sentimentof George Orwell: all states are equal, butsome are more equal than other.III. The children rights groupWhen there is only one provision mentioning“drugs” in any UN core human rights instrument,as is the case with CRC Article 33, itshould be assumed that human rights discussionson drugs will start with this provision,and that the child protection aspect will behighlighted. Not all the documents investigatedin this chapter discuss human rights sothey cannot all be faulted. However, thosewhich do address human rights must bejudged on their comprehension of CRC Article33. The result is hardly encouraging. Tosomehow paraphrase Professor Paul Hunt’sstatement from 2008: 161 the papers examinedhave created parallel universes between humanrights and children’s rights.The children rights group as described here,greatly overlaps with the human rights groupand their contribution to the debate is ratherlimited. Therefore the discussion here revolvesaround two papers and three PowerPointpresentations on the issue of children’s rightsand illicit drugs.The Harm Reduction and Human RightsProgramme (HR2) of the International HarmReduction Association/ Harm ReductionInternational published three PowerPointpresentations on children’s rights and drugs,acknowledging the existence of CRC Art. 33,and addressing this provision: Harm Reduction,Substitution Treatment and the UNConvention on the Rights of the Child from2007, Appropriate Measures? Drugs, Childrenand Human Rights from 2008 and Drugs andthe UN Convention on the Rights of the Child:Unpacking Article 33 from 2010. 162 Given theform of these presentations and the fact thatwe could find no further elaboration, weconsider that an extensive discussion aboutthem is impossible without extensive guesswork.However, a few lines of reasoning can bedistinguished and deserve attention.In the 2007 Bucharest presentation 163 thestarting point for the discussion is neither thechild nor the minimum standards set in theConvention on the Rights of the Child, butinstead an agenda to support some form of socalled“harm reduction”. The second slide setsout the key concern of the authors: the“Unwill ingess of parents and government officialsto admit that young people use drugs”. 164The assessment is not child-centred and givesno consideration to what Article 33 actuallystates, notably that all children shall beprotected from illicit drug use and their involvementin production/trafficking shall be52

prevented. The authors show no concern forthe fact that children are taking drugs, or thatthey are used in production or traffickingthereof. Rick Lines and Damon Barrett areonly interested in that “harm reduction” can beprovided to anyone using drugs. We shall notethat no definition of “harm reduction” isprovided. However, the presentation’s conclusionis that “Denial of harm reductionprogrammes and services to children andyoung people, including subsitiution treatment,violates the Convention on the Rights ofthe Child.” 165The reductionist interpretation of CRCArticle 33 continues in the London 2008presentation. 166 Here, Damon Barrett discovereda new angle, namely to isolate “appro -priate measures” from the rest of CRC Article33. The author suggests that the core messageof CRC Article 33 is that no inappropriatemeasures can be allowed. The presentationdoes not discuss Article 33 per se, but only the“appropriate measures” in the first part,leaving out any reflection on what the childshall be protected against and what should beprevented (use of illicit drugs and their use inthe illicit production and trafficking of suchsubstances), or what means/measures areappropriate to protect/prevent these phenomena.By giving preference to form beforecontent, the presentation reduces and underminesthe scope of the minimum protectionlevel offered by CRC Article 33. The presentationis also discriminatory in that it only considerschildren who use drugs, ignoring allothers directly impacted by drug use.Only in its third attempt, the Bogota 2010presentation, 167 does the International HarmReduction Association/International Centreon Human Rights and Drug Policy manage togo beyond fully obscuring the text of CRCArticle 33. The author briefly admits that thereis a text in CRC Article 33 which calls forprevention. However, the author immediatelyturns his attention on how to limit the scope ofArticle 33 as much as possible. The first suggestionis that children’s involvement in drugproduction/trafficking would be less problematicif drugs were not criminalized. A latersection of the presentation raises the issue of“children as a justification” for a tough drugpolicy. 168 However, neither in this presentationnor in other cases where this statement ismade, the author indicates any palpableexamples of the states which use CRC Art 33 asjustification for abusive measures in drugcontrol policy.It is explained by the author that the 2010presentation “sets out the simplistic messagesthat surround article 33 of the CRC (the onlyprovision in any of the UN human rights treatiesto refer to drugs) that tend to limit thearticle to prevention and to visions of a ‘drugfree world’.” 169 One of the two examplesprovided to illustrate the simplicity of suchmessages is a slide stating that “Children have aright to a drug free world.” 170 This slide is acapture from one of the 30-second animatedvideos illustrating the rights spelled out in theConvention of the Rights of the Child in achild-friendly way, namely the cartoon dealingwith Article 33. 171 These cartoons, commissionedby UNICEF for the 20th anniversary ofthe CRC and carrying UNICEF’s logo, wereaimed at making children familiar with therights stipulated by this instrument. 172 Hence,simplicity was exactly the intention of theartists who made this video.When reading the three presentations insuccession it appears that the authors havegood knowledge of international law andhuman rights law, but they are not interested inupholding the law as it is written. The “loopholesapproach” in these papers resembles inmethodology the Krzystof Krajewski’s paperfrom 1999, 173 which was discussed at thebeginning of this chapter. The rationale for thethree PowerPoint presentations is not to affirmexisting human rights, but rather to establishflanking protection when trying to normalize53

drug use, and toset out a drug policy in theinterest of “people who do not want to stopusing drugs”. In short, these presentations are afar cry from the minimum standard in CRCArticle 33, child centered drug policies andoverall elements for child protection, as set outin the 2008 UNICEF Child Protection Strategy.As discussed in the first chapter of thispublication, protection against drug use andprevention of children involvement in drugtrafficking and production belongs to the samecluster of protections alongside those fromchild sexual abuse and exploitation; childeconomic exploitation, including child labour;sale, trafficking and abduction of children andother forms of exploitation. 174 In all theseareas, prevention shall be a primary policymeasure. As mentioned above, almost allpapers discussed failed to even mention CRCArticle 33 and when it was finally brought up,it was done so in a sketchy form. 175 In fact, it isoften reduced to “all appropriate measures... toprotect children”, which is considered by theauthor as the real qualifiers in the Article 33text, as in his opinion “protecting childrenfrom the illicit use of… and preventing theiruse in the illicit production and trafficking ofsuch substances” are far too general to be directives.If we should apply the same logic to someof the special protection measures, for exampleArticles 22, 32, 34, 35, 38 and 39, we are leftwith a lot of appropriate measures and plentyof “protection” without knowing what for andagainst what. The same provision “shall take allappropriate measures… to protect children” isto be found in a rather similar form at least 13times (+2) in CRC Articles. 176In summary, these three PowerPoint presentationson children’s rights and drugs furtherunderscore that these NGOs’ interest is nothuman rights. The issue is promoting antiprohibitionismand so-called “harm reduction”.CRC Article 33 is treated not like aminimum human rights standard but as aproblem around which one must navigate.Special attention should be given to thepaper published in 2010 by the Children RightsInformation Network (CRIN): Children anddrug use. 177 CRIN is the one of the largestnetworks of child rights organizations thatworks to improve the lives of children and to“envision a world in which every child enjoysall of the human rights promised by the UnitedNations, regional organizations, and nationalgovernments alike.” 178 The un-authored CRINpaper is just a collage of statements and quotationsfrom International Harm ReductionAssociation (IHRA), Human Rights Watch,Open Society Institute and authors associatedwith these organizations. The main purpose ofthis paper is to lobby for the de-criminalizationof illicit drugs and expansion of “harmreduction” interventions. CRC Article 33 isonce again reduced to “appropriate measures”.The only comments made on this provision ofthe Convention on the Rights of the Child aretwo citations from IHRA: “The crucial questionis: What do we mean by appropriate? TheIHRA suggest that zero tolerance, ‘just say no’campaigns, random school drug testing andschool exclusions, and the denial of harmreduction services for those under 18, are allexamples of inappropriate measures.” 179Instead of explaining what right to protectionthe child has and what it means, the paperattributes IHRA the status of a legal source andaxiomatically states what IHRA consider it notto mean.The CRIN paper concludes with the follow -ing: “Children of drug-using parents are morelikely to be involved in crime, have behaviouralproblems and display mental health difficulties.Psychosocial and environmental riskfactors associated with parental drug usefurther compound children’s vulnerability.These vulnerabilities ‘may arise as the result offetal exposure to alcohol and drugs, poor orinconsistent parenting, a chaotic environmentand/or financial challenges as a result ofparental substance use, increased risk of child54

neglect or abuse, trauma, parental separationand risks associated with early exposure toalcohol and drug use.’” 180 No comments,assessment or discussion are made on thistopic and its relation to CRC Article 33, toother articles of the CRC, or to the internationaldrug policy. The only effort made byCRIN is to link this statement to its source. 181For a global network for children’s rightswhose “inspiration is the United NationsConvention on the Rights of the Child (CRC),which we use to bring children’s rights to thetop of the international agenda”, 182 it would beexpected that a paper addressing children anddrug use would start by addressing what CRCArticle 33 actually stipulates and paying dueattention to the issue it mentions only at theend: the way children’s lives and health areaffected by drug-using parents. This is especiallyimportant because similar conclusions canbe found in the United Nations Secretary-General’s Study on Violence against Children 183and in WHO factsheet N°150 on child maltreatment,from 2010. 184The most comprehensive paper on drugsand children’s rights was published in theInternational Journal on Human Rights andDrug Policy, vol. 1, 2010 and was authored byDamon Barrett and Philip E. Veerman:Children who use Drugs: The Need for MoreClarity on State Obligations in InternationalLaw. The authors acknowledge the relationshipbetween and the relevance of the drug conventionsfor Article 33 of the Convention on theRights of the Child and the extremely limitedattention the last prevision has received. Still,the paper fails to address the relevance of CRCArticle 33 for the international drug regime.However, the main point of this paper is thatall of these instruments are obsolete in the timespan from their adoption to the present timebecause “much has changed in relation totrends and patterns of drug use and drugdependence among children and youngpeople… Many drugs now used by childrenand young people did not exist in 1988. Farfewer children and young people were usingdrugs, and drugs had not become such a visibleaspect of adolescents’ lives. Today’s world forchildren is very different in myriad ways. Whenthe Convention on the Rights of the Child wasadopted, the internet was still an experiment.Today various ‘legal highs’ may be purchasedonline. For the most part, however, the drugconventions and the Convention on the Rightsof the Child remain stuck in the past, due to alack of analysis of their meaning for childrenand young people who use drugs in the 21stCentury.” 185The authors suggest a more updated imageof childhood, where most young people are notproblematic drugs users but recreational orexperimental ones; their illicit drug use is transitionaland does not imply health harms.Hence, drug consumption is normalized; it isconsidered a fact of life. Therefore, the appro -priate answer in relation to this would bepromotion of “harm reduction”, without anyclear specification on which such measures theyconsider as appropriate in relation to children,and decriminalization of drug consumption.The authors justify such a conclusion by consideringthat the Convention on the Rights of theChild does not directly address the issue oftreatment for children who are drug dependentand the limited and unspecific references totreatment in the three drug conventions. Regardingthe first of these issues, it is surprising thatthe authors of the paper succeeded in reviewingthe entire Convention on the Rights of theChild but missed Article 39 which is closelyrelated to all special protection provisions inCRC, including Article 33, and which providesfor: “all appropriate measures to promotephysical and psychological recovery and socialreintegration of a child victim of: any form ofneglect, exploitation, or abuse; torture or anyother form of cruel, inhuman or degradingtreatment or punishment; or armed conflicts.Such recovery and reintegration shall take55

place in an en vironment which fosters thehealth, self-respect and dignity of the child.” 186In relation to the second complaint on the lackof specificity in the drug conventions’ previsionson treatment of drug dependent people,it might be considered that this feature is notthus formed in order to justify abuses butbecause it deems treatment as an evolvingconcept. Hence, if the drug conventions werevery prescriptive and descriptive on this veryissue, the instruments would become obsoleteshortly after their adoption.Moreover, accepting Barrett and Veerman’smethodology could alter or render any CRCspecial protection void. For example, one maystate, by paraphrasing the two authors and re -placing the word “drugs” with “sex”, that theConvention on the Rights is outmoded, asmuch has changed in relation to children andyoung people’s sexuality or in the way theyperceive sexuality. One or two decades ago sexhad not become such a visible aspect of adolescents’lives. As Barrett and Veerman state,“Today’s world for children is very different inmyriad ways. When the Convention on theRights of the Child was adopted, the internetwas still an experiment.” 187 Due to Internetand media exposure, children and adolescentshave today a different perception of sex andsexual experimentation. Nowadays childrenmay access or offer pornographic materialsonline. “For the most part, however, theConvention on the Rights of the Child remainsstuck in the past, due to a lack of analysis of itsmeaning for children and young people” regardingsexuality in the 21st century. Hence, usingthis logic, one might also propose a reformulation,if not a radical dismissal, of CRC Article34 on child sexual exploitation and sexualabuse. Similar claims can be made in relationto other CRC articles and the only result ofsuch an approach would be to expose millionsof children to exploitation and abuse, or at thevery best, react ex post after children becomevictims.2.3. Other IssuesIn the following chapter, we are going to indicatea number of other issues of a more generalnature, often arising in some of the NGOspapers that are relevant for this debate:1. The ideal of a drug-free societyMany papers stand out against the aspirationof a drug-free world either as expressed in theslogan of the 1998 UN General AssemblySpecial Session: “A Drug-Free World: We CanDo It.”, or as a general philosophy behind thedrug control regime. This concept is regardedas an “unrealistic proposition” 188 , “dangerousutopia”, 189 et cetera. As a Transform DrugPolicy Foundation paper from 2007 framed it:“There is a well-recognised five-stage processthat many go through in response to receivingcatastrophic news – Denial, Anger, Bargaining,Depression, and Acceptance. In this case, thecatastrophe is the realisation that a ‘drug-freeworld’ is not going to happen and, worse, thatour seemingly intractable ‘drug problem’ is to alarge extent a self-inflicted nightmare. Modernpolicy making is frozen in the opening stagesof denial and anger, creating a climate that isintensely hostile to attempts to adjust to thenew environment and reinvest in the newreality.” 190 Hence, as long as the long-term goalis considered utopian, this can justify aninformal departure of States Parties from theprohibitionist-based UN drug conventionstowards “more reasonable/pragmatic” policiesand solutions which are suggested in a more orless legalistic way.For example, the British “centre of expertiseon drugs and drugs law” 191 Release does noteven pretend to try to conform to any rules orlaws and states: “Rather than committingourselves to the fantasy of a drug-free world,something that never has existed and neverwill, we should educate and regulate to restricttheir negative effects. Whether this happensthrough a reinterpretation and reconfiguration56

of the present structure, or requires a moreradical overhauling of institutional and juridicalarrangements, remains to be seen.” 192Another example is Krajewski’s suggestion toaccept drugs as a part of everyday life because“society will never be completely drug-free” 193and to take what he calls “the middle of theroad approach”, meaning advocate for depenalisationor decriminalization of drugs andultimately legalisation. These solutions wouldallow societies to treat the demand side of thedrug problem as a purely social or medicalproblem, and in this context “harm reduction”194 can take its place, as crown jewellery ofdemand related policy.These types of approaches are presented asrealistic or pragmatic thinking to be contrastedto utopian aims. In this way, they could beconsidered sensible if things are to be judged inabsolute terms, but not if we were to apply asimilar logic to goals such as eradication ofextreme poverty and hunger, achievement ofuniversal primary education, abolishment ofhuman slavery, discrimination, corruption, etcetera. We could easily regard these goals asutopian and abandon them for more pragmaticsolutions. According to this philosophy,one can state that poverty, hunger, inequity ineducation, slavery, discrimination, et cetera,belong to a Darwinian world, and that they arepart of human nature, and that they have beenand always will exist; therefore, we should notbother about them. If we continue with thisline of thinking, the only solution to theseproblems might be to find some forms of“harm reduction” for the poor, abused, discriminatedpeople and never aspire or try to makeany fundamental changes.Nevertheless, the achievement of a “drugfreesociety” is an aspiration and the onlyreasonable one in the context of the presentinternational legal framework. As long as theUN drug conventions impose the limitation“exclusively to medical and scientific purposesthe production, manufacture, export, import,distribution of, trade in, use and possession ofdrugs” 195 ; CRC Article 33 requests StatesParties “to protect children from the illicit useof narcotic drugs and psychotropic substancesas defined in the relevant international treaties,and to prevent the use of children in the illicitproduction and trafficking of suchsubstances” 196 and International Labour OrganizationConvention 182 defines “the use,procuring or offering of a child for illicit activities,in particular for the production and traffickingof drugs as defined in the relevantinternational treaties” 197 as one of the worstforms of child labour, a “drug-free world” is theappropriate goal.2. Drug use as self-destructive behaviour,comparing drug use to suicideIllicit drug consumption is sometimes consideredas a subject of person’s privacy/autonomyand subject to protection of individualexistence. For example, Manfred Nowak considersthe prohibition or penalization of acts,that in principle, only concern the individual,such as committing suicide, using drugs orrefusing to wear safety helmets or seat belts,falls under the right to personal selfdetermination,198 and therefore accounts tointerference with a person’s autonomy. Consequently,it is sometimes argued that peoplehave a right to use drugs as long as it does notharm others or create hazards for societybecause something which does not harmothers should not be deemed criminal.The question is whether or not drugconsumption constitutes an activity that doesnot harm people around the user. Some legalinstruments, including the three drug conventions,the Convention on the Rights of theChild, and the ILO Convention 182, clearly donot view drug consumption as an activityharmful only to the drug user but rather onethat causes significant harm to others and tosociety. Different positions are articulated bycivil society actors.57

Krajewski, for example, does not deny thenegative social implications of illicit drugconsumption, but he deems it just as selfharm.Therefore, he suggests the principle that“self-destructive behavior shall not be subjectto punishment is a plausible constitutionalargument which can excuse States from imposingcriminal sanctions on drug use. Criminallaw protects certain ‘legal values’ againstencroachments by third parties, but notagainst those who have right to dispose ofthose values.” 199 He draws a parallel betweendrug consumption and suicide, consideringthat both can be regarded only as gravesocial/medical problems. Hence, in his vision areasonable drug policy may “decriminalise anactivity that endangers or destroys one’s ownhealth while deeming it a social or medicalproblem.” 200An important reality that this argumentoverlooks is the fact that suicide is not relatedto the worst forms of child labour as indicatedby ILO Convention 182; nor is it related tochild maltreatment, abuse and neglect, unlikedrug use which is a risk factor for theseproblems, among others, as indicated byWHO’s fact sheet N°150 from 2010. 201Moreover, unlike suicide, drug use does notgenerate “an estimated $320 billion annually”202 in global criminal proceeds, and is notlinked to organized crime, corruption, etcetera.However, even Krajewski concludes that thisprinciple is not always deemed as constitutional;203 therefore it might not be the optimalsolution to be used when pressing/lobbying fordrug consumption decriminalization.List of NGOs and similar entitiesconsidered:1. Human Rights Watch (HRW) – “one of theworld’s leading independent organizationsdedicated to defending and protectinghuman rights”; 2042. International AIDS Society (IAS) – “theworld’s leading independent association ofHIV professionals”. 205 The InternationalAIDS Conferences are convene by this association;2063. Drug Policy Alliance (DPA) – the US“leading organization promoting alternativesto the drug war”; 2074. Beckley Foundation (BF) – research andAdvocacy Institute, “a charitable trust thatpromotes the scientific investigation ofconsciousness and its modulation from amultidisciplinary perspective; 2085. Harm Reduction International formerlyknown as the International Harm ReductionAssociation (IHRA) – “one of theleading international non-governmentalorganizations promoting” 209 harm reductionpolicies and practices;6. International Centre for Human Rightsand Drug Policy (ICHRDP) – Organizationfor production/dissemination of articlesand reports/ the centre publishes and disseminates“original, peer-reviewed researchon drug issues as they relate to internationalhuman rights law, international humanitarianlaw, international criminal law andpublic international law”; 2107. International Drug Policy Consortium(IDPC) – “a global network of 66 NGOsand professional networks that specialize inissues related to the production and use ofcontrolled drugs”; 2118. Open Society Foundations/Institute (OSI)– international private operating and grantmakingfoundation;9. Hungarian Civil Liberties Union (HCLU)– “a non-profit human rights watchdogNGO”; 21210.Release: Drugs, The Law & Human Rights– UK Drugs Policy Campaigner/Managerof IDPC (above)/ “the national centre ofexpertise on drugs and drugs law – providingfree and confidential specialist adviceto the public and professionals” and“campaigns for changes to UK drug58

policy”. 213 The charity has hosted sinceApril 2008 International Drug PolicyConsortium 214 (above);11.Transform Drug Policy Foundation – acharitable think tank dealing with UK andinternational drug policy;12.Asian Harm Reduction Network (AHRN)– network of organizations involved inharm reduction in Asia;13.Canadian HIV/AIDS Legal Network –“advocacy organization working on thelegal and human rights issues raised byHIV/AIDS”; 21514.Eurasian Harm Reduction Network(EHRN) – regional network of organizationsinvolved in harm reduction in EasternEurope/Near Asia;15.Latin American Initiative on Drugs andDemocracy – an association of high profileindividuals from Latin America;16.Caribbean Drug Research Institute(CDARI) – “a private nonprofit researchinstitution whose mission is to provideunbiased scientific research in the field ofpublic health and medical consequences ofdrug use in order to promote evidencebased public policy formation.”; 21617.Reference Group to the United Nations onHIV and Injecting Drug Use – advisorygroup to “UNODC, WHO, UNAIDS Secretariatand relevant UNAIDS co-sponsors, aswell as other members of the InteragencyTask Team on injecting drug use, on effectiveapproaches to HIV/AIDS preventionand care among injecting drug users”; 21718.Transnational Institute (TNI) – an internationalthink tank providing “intellectualsupport to movements struggling for amore democratic, equitable and environmentallysustainable world”; 21819.Child Rights Information Network(CRIN) – global child rights network;20.International Red Cross and Red CrescentMovement – “world’s largest humanitarianorganization.” 2192.4. ConclusionsThe papers/reports reviewed in this chapterseem to agree that the three UN drug conventionsare prohibitionist in spirit and wording.In Krajewski’s words, “there shall be no doubtthat the purpose of these Conventions is tointroduce some sort of a global prohibition.” 220Almost all reviewed actors/NGOs seem toperceive this characteristic of the drug controlregime as being a hindrance to human rights.All reviewed papers adopt a martyred tonein relation to the restrictive nature of the internationaldrug control regime. Authors seemmotivated to pursue an alteration of thepresent legal situation, to milk the hypotheticallatitude within the drug treaties, loopholes, 221 orthe room for manoeuvre within the currentregime 222 , or to ignite a regime change usinginformal means. The drug conventions aredeplored for being prohibitionist, moralistic,and more recently, without a human face, andcontrary to human rights. The main point ofcontention is Article 3(2) 223 in the 1988Convention and the obligation it imposes toratifying states to criminalize possession,purchase or cultivation of narcotic drugs orpsychotropic substances for personal use.The reviewed papers indicate an organic,evolving strategy rather than a fixed one. Thehaphazard path this evolvement has takenpoints to bottom line opportunism in furtheringanti-prohibition. As soon as one actor orNGO has an ingenious idea, it becomes contagious,as others are willing to take this on or tofurther develop and promote it.The international drug laws are beingdiscarded as being incompatible with humanrights law, even if none of the human rightsconventions indicate ad litteram this path. Newrights, belonging to no treaty, are devised anddemanded, such as the right to “harm reduction”,“methadone as a human right”, 224 etcetera. The existing human rights are customizedto fit a new category which is depicted as59

the most vulnerable: the drug users. Hence, thedrug users are awarded a special status on thebasis of a preference for or habit of usingdrugs. 225 Appeals are made for the creation ofenabling legal environments for drug users,indicating that the society and the stakeholdershave to “empower and listen to those who usedrugs… in all aspects of decision and policymaking,planning and implementation” 226 .Moreover, the human rights conventionsand provisions favouring a child-centeredperspective, contrary to a user-centered focus,are neglected, ignored or reduced. Article 33 ofthe Convention on the Rights of the Child islargely left outside from the discussion onhuman rights. At the best, children’s vulnerabilityis defined exclusively in relation to theircontrolled substances user status and theirincapacity to access services for adult drugusers who are unable or unwilling to stop theirillicit drug consumption, where the focus ofsuch services is not the prevention of drug useitself, but the given precedence to people whocontinue to use drugs. 227 Hence, illicit drugconsumption becomes the exclusive criterionfor establishing children’s vulnerability.For these NGOs, international standardscan be helpful or can be in the way of drugpolicy changes. The main principle is that theend justifies the means; their political agendatrumps the law.60

3. United Nations EntitiesThe subject of the present publication is therelation between human rights and the internationaldrug control regimes, thus UnitedNations is the locus, where one must look forguidance and expertise.The legal aspects of the relation betweenthese two spheres of international law havebeen discussed in the previous chapters.Having established that the law is the first andfundamental step in policy-making, the nextstep is implementation on the ground. Ideally,implementation moves via jurisprudence frominternational monitoring bodies (in this casethe Committee on the Rights of the Child andthe International Narcotics Control Board) topolicy/programmatic advice from UnitedNations bodies, to national level implementation.However, the Committee on the Rights ofthe Child was virtually silent on this issue for 20years, save for the laconic and detached concludingobservations related to CRC Article 33 onState Parties reports. The INCB has mentionedCRC Article 33 but a few times; however, theBoard never issued a comprehensive positionon this provision, possibly because they have,misguidedly, been awaiting input from theCommittee. We therefore examine reflectionsand policy articulations in this field among UNagencies and similar bodies.Our central interest is how various UN entities,having a direct or adjacent mandate inrelation with these two spheres of internationallaw, discuss and translate into policies andprogrammes the only provision in any humanrights instrument referring to drugs, namelyArticle 33 of the Convention of the Rights ofthe Child. This chapter also examines howvarious UN entities generally relate humanrights provisions to drug control.In order to assess drug/human rights policydevelopments within the United Nations, anumber of papers and statements issued by fiveUN entities from 1998 to 2010 discussinghuman rights/drugs control policy, and relatedissues, were examined. The UN entities wereselected on the following basis:1. Their direct mandate on children’s rights:United Nations Children’s Fund (UNICEF)(covers drug usage under the sphereof children’s rights). 12. Their direct mandate on drug control andon human rights:United Nations Office on Drugs and Crime(UNODC); 2World Health Organization (WHO); 3Office of the United Nations HighCommissioner for Human Rights(OHCHR). 43. Their public rhetoric about drugs andhuman rights:Joint United Nations Programme on HIVand AIDS (UNAIDS). 53.1. United Nations Children’sFund – UNICEF3.1.1. BackgroundThe United Nations International Children’sEmergency Fund (UNICEF) was establishedon 11 December 1946 by the UN GeneralAssembly (UNGA), in accordance with Article61

55 of the Charter of the United Nations. 6 Thisfollowed the United Nations Relief and RehabilitationAdministration (UNRRA) decisionto call off its activities in the summer of thesame year. Therefore, UNRRA’s remainingassets were transferred to UNICEF, which wasgiven the task of providing relief to childrenaffected by World War II. The UN GeneralAssembly attributed to the new agency a nonpoliticalmandate, stipulating that assistanceshould be provided, without discrimination, tothe individuals most in need. UNICEF’s initialactivities were envisaged for three or four years,but in 1950 the General Assembly decided byresolution 417(V) to extend the agency’sexistence, orienting it towards long-term assistancefor children in Africa, Asia and LatinAmerica, to meet the “emergency and longrangeneeds of children and their continuingneeds particularly in under-developed countries.”7 Three years later, on 6 October 1953,the General Assembly adopted unanimouslyresolution 802 (VII) which gave the organizationa permanent character in the UN systemunder the current name: The United NationsChildren’s Fund, while maintaining its originalacronym: UNICEF.For more than 60 years UNICEF has been,and continues to be, the world’s most prominentadvocate for children’s rights and needs.Currently, it is active in 191 countries andterritories through country programmes andits 36 National Committees and has approximately11,000 staff working worldwide. TheFund’s headquarters is in New York, but mostof UNICEF’s work is done in the field. 8 Theorganization has seven regional offices 9 whichprovide technical assistance to the countryoffices. It also has a research centre, InnocentiResearch Centre in Florence, Italy, establishedin 1988 with the aim of enhancing internationalknowledge of children’s rights andpromoting the implementation of the Conventionon the Rights of the Child at national level.Innocenti Research Centre also “helps topromote a new global ethic for children basedon their fundamental human rights.” 10UNICEF also has two regional offices, one inTokyo, Japan and the other in Brussels,Belgium, which inter alia ensure the relationswith policymakers and assist with fundraising,and a Supply Division based in Copenhagen,Denmark.As a subsidiary body of the GeneralAssembly, UNICEF reports to the UN GeneralAssembly (UNGA) through the Economic andSocial Council of the United Nations. Its governingbody is the Executive Board as establishedby the General Assembly in 1946, but itspresent features were decided upon in resolution48/162 of the General Assembly,December 1993. At present, the Board has 36members elected for a three years mandate bythe UN Economic and Social Council(ECOSOC), representing the five regionalgroups of Member States at the UnitedNations. The Executive Board puts into operationpolicies developed by the GeneralAssembly and, under the coordination andguidance received from the Economic andSocial Council, supervises UNICEF activitiesand strategies and their coherence and compliancewith the overall policy guidance establishedby the General Assembly and theEconomic and Social Council; the Boardapproves the organization’s policies, countryprogrammes and budgets and recommendsnew initiatives to the Economic and SocialCouncil and, through the Council, to theGeneral Assembly as necessary. 11 The samebody elects, in consultation with the UnitedNations Secretary General, the organization’sExecutive Director. The Board receives informationfrom, and gives guidance to, theUNICEF Executive Director on the activities ofthe organization.UNICEF is financed completely by voluntaryfunds. Governments contribute twothirdsof the Fund’s resources while privategroups and approximately 6 million individual62

donors provide the rest through NationalCommittees. In 2008/2009 UNICEF’s totalbudget was around $10.3 billion USD. 123.1.2. UNICEF’s Mandate and MissionStatementAccording to the mission statement adopted bythe Fund’s Executive Board in the January1996 13 session, and acting on the mandate receivedfrom United Nations General Assembly,UNICEF advocates “for the protection ofchild ren’s rights, to help meet their basic needsand to expand their opportunities to reach theirfull potential.” 14 Under the guidance of theConvention on the Rights of the Child,UNICEF “strives to establish children’s rights asenduring ethical principles and internationalstandards of behaviour towards children” 15 andplaces a special emphasis on children’s survivaland basic needs, protection and development asinherent to human progress. The organizationcontinues to put effort into mobilizing politicalwill and material resources in aiding developingcountries to establish eligible policies anddeliver services to children and their families.Special attention is given to protect the mostvulnerable children: victims of war, extremepoverty, all forms of violence and exploitationand those with disabilities. The Fund continuesits historic mandate of involvement in emergencies“providing life-saving assistance tochildren affected by disasters, and to protectingtheir rights in any circumstances, no matterhow difficult.” 16 UNICEF also continues to followits non-discriminatory philosophy alwaysprioritizing “the most disadvantaged childrenand the countries in greatest need.” 173.1.3. UNICEF and Human RightsHuman rights constitute the foundation ofUNICEF’s work. The Fund assumed, as theultimate aim of its activities, the realization ofthe rights of children and women as stipulatedin the Convention on the Rights of the Childand the Convention on the Elimination of AllForms of Discrimination against Women. 18Whenever UNICEF discusses its vision onthe Convention on the Rights of the Child, theorganization underlines the non-optional andnon-negotiable nature of the instrument’sprovisions for the states which ratify thisconvention and the obligation to abstain fromany action which might violate or prevent theenjoyment of all these rights by all children.UNICEF has made it clear that all rights areequally important for the development of thechild and that the principle of best interest ofthe child should always be a guiding referencein all policy areas affecting children’s lives.UNICEF has repeatedly stressed that statesalone cannot ensure the realization ofchildren’s rights and that responsibilities andduties in this regard are also attributed toparents, the extended family and to the societyat large.UNICEF’s work is also informed by theVienna Declaration and Programme of Actionadopted in June 1993 which specifically stipulatesthat “the rights of the child should be apriority in the United Nations system-wideaction on human rights”. 193.1.4. UNICEF on Child ProtectionAround the world, hundreds millions of childrenare exposed to violence, exploitation andabuse including the worst forms of childlabour. 20 These issues remain highly pressingas “there is significant evidence that violence,exploitation and abuse can affect the child’sphysical and mental health in the short andlonger term, impairing their ability to learnand socialize, and impacting their transition toadulthood with adverse consequences later inlife.” 21 Unfortunately, no country hassucceeded in completely eradicating thesephenomena and all have an obligation underthe Convention of the Rights of the Child andother international instruments to focus theirefforts in this direction. At the global level,there is the expectation that UNICEF takes the63

leadership in child protection. As expected, theFund assumed it as one of its focus areas andcommitted itself to prioritizing child protectionin every part of the world.As discussed in Chapter 1, the most recentUNICEF Child Protection Strategy wasadopted by its Executive Board in June 2008.The Strategy “defines the contribution ofUNICEF to national and international effortsto fulfill children’s rights to protection and toachieve the Millennium Development Goals”. 22This document is of interest for the presentdiscussion as it illustrates the way UNICEFaddresses child protection.UNICEF’s approach and vision is to createprotective environments that are conducive tothe survival, development, and well-being ofchildren through prevention and to respond toviolence, exploitation, and abuse against child -ren by promoting laws, services, social norms,and practices which minimize children’svulnerability, address risk factors, and enhancechildren’s resilience. 23 The document placesgreat emphasis on prevention, reasoning thatthis is the starting point for successful childprotection, and on legal frameworks that putan end to impunity and give children access tojustice. It states, “Strong child protectionprovides a bulwark against the web of risks andvulnerabilities underlying many forms of harmand abuse: sexual abuse and exploitation; trafficking;hazardous labour; violence; living orworking on the streets; the impact of armedconflict, including children’s exploitation byarmed forces and groups; harmful practicessuch as female genital mutilation/cutting(FGM/C) and child marriage; lack of access tojustice; and unnecessary institutionalization,among others. A protective environment forchildren boosts development progress, andimproves the health, education and well-beingof children and their evolving capacities to beparents, citizens and productive members ofsociety. Harmful and abusive practices againstchildren, on the other hand, exacerbatepoverty, social exclusion and HIV, and increasethe likelihood that successive generations willface similar risks.” 24 As previously noted, theaim of the Strategy is to “reduce children’sexposure to harm by acce lerating actions thatstrengthen the protective environment forchildren in all settings…All programmes andactions for the benefit of children’s health,education, participation or for addressing theimpact of HIV and AIDS should likewise bedesigned so as to strengthen protection, andmust never undermine it.” 25In order to be effective, in UNICEF’s visionand according to its experience, child protectionhas to be included in all sectors and needsa large involvement and partnership at everylevel of society, including children’s participation.The UNICEF Strategy draws on the ProtectiveEnvironment Framework (PEF), establishedin the 2002 UNICEF OperationalGuidance Note, indicating eight elementswhich work independently or collectively toensure child protection. Among these elementsis governmental commitment to ensurechildren protection according to their rights;adoption of a legislative framework and itsimplementation; promotion and adoption ofsocial norms and traditions that denounceinjurious practices and support child protection;open discussions; children’s involvement,et cetera. 26In this Strategy, UNICEF departed from aproject-centered approach and adopted asystemic approach.The Strategy puts emphasis on following upthe 2006 Study on Violence against Childrenand supports the incorporation of concreterecommendations outlined in the Study.The 2010 Thematic Report on Child Protectionfrom Violence, Exploitation and Abus statesthat the UNICEF Child Protection Strategy isbased on two main pillars applicable in allcontexts, including emergencies: “1) strengtheningchild protection systems – including laws,64

policies, regulations and services across allsocial sectors, especially social welfare, education,health, security and justice; and 2)supporting the social changes that strengthenthe protection of children from violence,exploitation and abuse.” 273.1.5. UNICEF on Human Rights andDrugsUNICEF is the most visible promoter of children’srights. The Fund has more than 60 yearsof experience in advocacy on behalf of childrenand a worldwide presence. It was deeplyinvolved in the drafting process of the Conventionon the Rights of the Child and sub -sequently in promoting its ratification. Withthis background and as the organization thatcontinues to assist countries in the implementationof this instrument, UNICEF is wellplaced to take the lead and translate into practicaladvice the right of children to beprotected from narcotic drugs and psycho -tropic substances, as it already has a trackrecord on the other special protectionmeasures covered by the CRC.Looking at the papers issued by UNICEFand by the Innocenti Research Centre, we wereunable to find any dedicated involvement withCRC Article 33. The most extensive commentarywe could find is in Implementation Handbookfor the Convention on the Rights of theChild by Rachel Hodgkin and Peter Newell,which discusses every article of the Convention,including statements by the Committeeon the Rights of the Child, sections from CRCTravaux Preparatoires, and other internationalinstruments. The book also includes an implementationchecklist, lists specific issues in theimplementation of every article and placesthem in the context of the Convention’s principles,and enumerates the related articles. Thebook carries UNICEF’s logo and notes that thematerial of the book was commissioned by theFund but includes a disclaimer stating that itscontent does not necessarily reflect UNICEF’sviews or policies. Hence, it is difficult to attributethe position of the authors of this book toUNICEF and to discuss it as the Fund’s officialview on this specific issue.3.1.6. AssessmentUNICEF’s full commitment to the Conventionon the Rights of the Child is clearly articulatedin the organization’s mission statement. As theleading agency for children within the UnitedNations system, UNICEF has the expertise,geographical coverage, authority, credibilityand the financial independence to substantiallycontribute to its credo: to act “to uphold theConvention on the Rights of the Child” 28 , tobuild “a world where the rights of every childare realized” 29 and to promote child specialprotection rights including their right to beprotected from illicit use of narcotic drugs andpsychotropic substances and prevented frombeing involved in the illicit production andtrafficking of such substances.With this background, it is notable thatUNICEF has not taken any initiative to addressArticle 33 of the Convention of the Rights ofthe Child in the 20-plus years since the UNGeneral Assembly adopted this instrument. Infact, UNICEF has never issued any designatedpolicy paper on this special protection provision.According to our information, UNICEFdoes not have at its headquarters a focal pointon CRC Article 33. In its 2008 Child ProtectionStrategy the drug issue is not mentioned, eventhough in paragraph 4 of this document nearlyall the other special protection measures arelisted. As previously mentioned, UNICEF’sChild Protection Strategy is informed by the2006 Study on Violence against Children andsupports the incorporation of concrete recommendationsfrom the Study. This Study indicates,inter alia, parents’ or caregivers’substance abuse as one of the factors contributingto violence against children and furthermorestates that childhood experience ofviolence leads to drug abuse; 30 yet UNICEF65

decided to remain silent on this issue.Given the clearly limited capacity at theCommittee on the Rights of the Child on CRCArticle 33 issues, as manifested by the flatconcluding observations and the absence ofany thematic discussion on this topic, UNICEFcould assist in overcoming this major shortcoming.The unfortunate consequence ofUNICEF’s silence and avoidance of this issueresults in others setting an agenda that isneither conducive to CRC Article 33’s preventiveand protective spirit nor to the principlethat the best interests of the child shall be aprimary consideration in all areas affecting achild’s life. This is indeed regrettable, asUNICEF has already done much towardsconceptualising child protection, the results ofwhich could be applied directly to the drugissue.The number of children negatively affectedby drugs (i.e. using drugs, involved in theproduction and trafficking of these substances,and/or exposed to various forms of violencedue to substance use by their parents or caregivers),even if never properly quantified, cannotbe so insignificant that the human rightsprovision directly addressing this issue shouldcontinue to be ignored. On the contrary, it ismore likely to be expected that this would beamong the biggest of all special protectionconcerns in terms of the number of childrenaffected.Moreover, it is difficult to understand thedecision of UNICEF Executive DirectorAnthony Lake to sign the 2010 Progress reportTowards universal access: Scaling up priorityHIV/AIDS interventions in the health sector 31which requests the removal of punitive laws fordrug use, 32 advocating in ambiguous languagefor decriminalization or legalization of drugs.Such a position goes against UNICEF’s children’srights mandate, its own mission statement,and against its Child Protection Strategy,which clearly states that AIDS response cannotbe allowed to undermine child protection. 33Article 33 of the Convention of the Rights ofthe Child is a special protection issue that hasto be given due consideration and, as withother child protection articles, must remainintact until States Parties formally decideotherwise.3.2. United Nations Office onDrugs and Crime – UNODC3.2.1. BackgroundThe United Nations Office on Drugs andCrime (UNODC) was established on 1October 2002. Prior to this date, the Office wascalled United Nations Office for Drug Controland Crime Prevention and was created in 1997through the merger between the UnitedNations International Drug Control Program(UNDCP) and the Crime Prevention andCriminal Justice Division. UNDCP was establishedby the General Assembly in December1990 to coordinate and lead all United Nationsdrug control activities.UNODC defines itself as “the UN’s centrefor the fight against ‘uncivil society’”, 34 or asthe “global leader in the struggle against illicitdrugs and international crime, and the leadUnited Nations entity for delivering legal andtechnical assistance to prevent terrorism”. 35The normative instruments guidingUNODC’s work are the three drug conventions,the United Nations Convention againstTransnational Organized Crime, the UnitedNations Convention against Corruption andthe UN Convention against TransnationalOrganized Crime, the terrorism related instruments,and their respective protocols.UNODC’s work programme is based onthree pillars: “field-based technical cooperationprojects to enhance the capacity ofMember States to counteract illicit drugs,crime and terrorism; research and analyticalwork to increase knowledge and understandingof drugs and crime issues and expand the66

evidence base for policy and operational decisions;normative work to assist States in theratification and implementation of the relevantinternational treaties, the development ofdomestic legislation on drugs, crime and terrorism,and the provision of secretariat andsubstantive services to the treaty-based andgoverning bodies.” 36In 1999, UNODC became a co-sponsor ofUNAIDS. With this background, the organizationwas mandated to assist states in providingpreventive, treatment, and care services forvulnerable groups such as injecting drugusers, 37 victims of, or people vulnerable to,human trafficking and prisoners. UNODC isdeeply involved in advocacy, legislative andpolicy development, design and promotion ofinterventions and programmes endorsed bythe Commission on Narcotic Drugs, theUNAIDS Programme Coordination Board,and the Economic and Social Council andsupport of the stakeholders. The aim in thisregard is to contribute to halting and reversingthe AIDS epidemic and the realization of theMillennium Development Goals.The agency also assists the Commission onNarcotic Drugs, the International NarcoticsControl Board and the Commission on CrimePrevention and Criminal Justice in performingtheir treaty-based functions, by providingthem with secretariat and substantial services.UNODC has its headquarters in Vienna,Austria, and operates in more than 150 countriesaround the world through its network of54 field, liaison and project offices. UNODC isheaded by an Executive Director who is ap -pointed by the UN Secretary General.The organization has approximately 1500employees worldwide. 38 The total UNODCbudget for the biennium 2010-2011 amountedto US$ 468.3 million. 39 The organization ishighly dependent on voluntary contributionsin fulfilling its activities. 403.2.2. UNODC’s Mandate and MissionStatementOn its webpage, UNODC provides an extremelybroad description of its mandate: “toassist Member States in their struggle againstillicit drugs, crime and terrorism.” 41 A morecomprehensive description is found in theUnited Nations Secretary General Bulletinpublished in 2004 which addresses the organizationof the United Nations Office on Drugsand Crime. This document stipulates thatUNODC implements in an integrated mannerthe United Nations drug and crimeprogrammes, “addressing the interrelatedissued of drug control, crime prevention andinternational terrorism in the context ofsustainable development and human security.”42With regard to the drug programme,UNODC:“(a) Serves as the central drug control entitywith exclusive responsibility for coordinatingand providing effective leadership for allUnited Nations drug control activities andserves as the repository of technical expertisein international drug control for the Secretariatof the United Nations, including theregional commissions, and other UnitedNations organs, as well as Member States, andin this capacity advises them on questions ofinternational and national drug control;(b) Acts on behalf of the Secretary-General infulfilling his or her responsibilities under theterms of international treaties and resolutionsof United Nations organs relating to internationaldrug control;(c) Provides substantive services to the GeneralAssembly, the Economic and Social Counciland committees and conferences dealing withdrug control matters.” 43A further elaboration of UNODC’s mandate inrelation to drug prevention and health isprovided in the 2010 publication, UNODC67

Service & Tools. Practical Solutions to GlobalThreats to Justice, Security and Health, where itis stated that the Office’s efforts on drugprevention, rehabilitation and treatment arefocused on reducing vulnerability among riskgroups such as women, youth, prisoners,people who have been trafficked or are vulnerableto human trafficking and people livingwith HIV/AIDS. As the guardian of the StandardMinimum Rules for the Treatment ofPrisoners, UNODC assists states in providinguniversal access to health care, including HIVprevention and treatment services, for peoplein closed settings.A clearly articulated mission statement forthe whole organization proved difficult to find.The closest statement we encountered is in theUNODC’s Strategy for 2008-2011 which statedthat: “UNODC is committed to achievingsecurity and justice for all, mak ing the worldsafer from drugs, crime and terrorism.” 443.2.3. UNODC’s Policies and Discourseon Human Rights and Drugs1998–2007A significant moment for the internationalcommunity in relation to the drug controlregime was the 20th Special Session of theUN’s General Assembly on Countering theWorld Drug Problem Together (UNGASS),held in New York in June 1998, ten years afterthe adoption of the 1988 Convention. As animportant element of the international drugcontrol machinery, UNDCP, the predecessor ofUNODC, was instrumental for organizing the1998 UNGASS.Under the slogan “A drug-free world, we cando it”, the main documents and speeches ofthis Special Session stressed the destructiveeffect of drugs for all sectors of society, for thehealth, well-being and dignity of all humankind,as well as stressing its relation with crime.Commitments and declarations were made togive special consideration to the needs ofyoung people. 45 A balanced and comprehensiveapproach between demand and supplyreduction was promoted, in full conformitywith the purposes and principles of theCharter of the United Nations and internationallaw and all human rights and fundamentalfreedoms. 46 Some documents stressedthe need to provide treatment, rehabilitationand social reintegration to restore dignity andhope to children, youth, women and men whohave become drug abusers. In its closing statement,the Executive Director of the UnitedNations International Drug Control Programdescribed the drug problem as a deadly diseasewhich can be cured through the unceasinginvolvement and commitment of the internationalcommunity and stressed that the“concepts of tolerance and solidarity forhuman rights are precious and we must remainvigilant in their defence. This is particularlytrue for the victims of drug abuse”. 47For the next ten years, the references tohuman rights in the context of drug control inUNODC’s documents were almost nonexistent.We could not find any papers whichdiscussed, advised, or translated the humanrights requirements of the UNGASS Session,nor the ones stated in the General Assemblyannual resolutions on International Cooperationagainst the World Drug Problem from 1999onwards.In 1998, the General Assembly gaveUNODC the mandate to publish “comprehensiveand balanced information about the worlddrug problem.” 48 The Global Illicit Drug Trendspublished by UNODC from 1999 to 2004 was atechnical compilation of information providingmany facts and figures in relation to drugsupply and demand and the global illicit drugmarkets. In 2004, UNODC changed the titleGlobal Illicit Drug Trends to World Drug Reportand improved the analytical content of thepublication. However, none of these reportsmade any analysis or statement in relation tohuman rights.68

2007–2010UNODC published a series of papers in preparationfor the 2009 United Nations GeneralAssembly Special Session on Drugs or relatedto the 100 years celebration of the internationaldrug control. Within these documents,we found a number of references to humanrights which deserve attention.In March, 2008, UNODC Executive DirectorAntonio Maria Costa issued a Report entitledMaking drug control ‘fit for purpose’: Buildingon the UNGASS decade as a contribution to thereview of the 20th special Session of theGeneral Assembly on behalf of the Commissionon Narcotic Drugs. In this paper it isstated that a powerful characteristic of theinternational drug control system is the obligationit imposes on the States Parties to bringtheir national laws in line with the instruments’provisions. This feature narrows theroom for maneuver by individual countries,protecting the multilateral system from itsbiggest vulnerability, whereby: “a unilateralaction by a single State Party may compromisethe integrity of the entire system.” 49 TheReport 2008 states that the international drugcontrol system’s prime aim to limit the use ofthe listed psychoactive substances to medicaland scientific purposes has not been realized,but that the drug problem had been containedto less than 5% of the adult population. A keypart of the paper reveals and discusses the five“unintended consequences” of internationaldrug control policy:1. A huge criminal black market that nowthrives in order to get prohibited substancesfrom producers to consumers.2. Policy displacement. Public health, which isclearly the first principle of drug control,needs a lot of resources, yet the funds are inmany cases redirected into public securityand the law enforcement that underpins it.3. Geographical displacement. Success incontrolling the supply of illicit opium inChina in the middle of the 20th century, forexample, displaced the problem to theGolden Triangle of southeast Asia.4. Substance displacement. When the use ofone drug was controlled, suppliers andusers moved on to another drug.5. The way we perceive and deal with the usersof illicit drugs. A system appears to havebeen created in which those who fall into theweb of addiction find themselves excludedand marginalized from the social mainstream,tainted with a moral stigma, andoften unable to find treatment even whenmotivated to obtain and participate in it.In this context, in the UNODC ExecutiveDirector’s opinion, it is important to admitthat the drug control system based on the 1961Single Convention is outdated and incapableof dealing with the big changes which directlyinfluence the drug problem and the way it isexperienced, perceived or resolved, 50 concludingthat “we must humanize our drug controlregime which appears to many to be too depersonalizedand detached from their day-to-daylives.” 51 Thus, the way forward in the next tenyears should be guided by three essentialundertakings: 1) to reaffirm the basic principles;2) to improve the drug control systemperformances; and, 3) to confront and eliminatethe unintended consequences of past policies.The basic principles are enunciated: themultilateral principle and the public healthprinciple, without any explanation as to wherethese principles derive or a clear definition ofthem. As to whether there is a need to mitigatethe unintended consequences of past policies,there are three areas on which, according toExecutive Director Costa, “there is sufficientinternational consensus to go forward in refiningthe control system and making it more ‘fitfor purpose’” 52 : crime prevention, “harmreduction”, and human rights.69

The human rights section of the Report israther modest. Instead of looking at wheredrugs are referred to in human rights conventions,or displaying a vision on how humanrights would be better served by the drugcontrol regime and vice versa, the paperinvokes Article 103 of the Charter of UnitedNations to demonstrate that this instrumenttakes precedence over all other instrumentsand therefore the drug conventions “must beimplemented in line with the obligationsinscribed in the Charter. Among those obligationsare the commitments of signatories toprotect human rights and fundamental freedoms.”53 The Report also mentions theUniversal Declaration of Human Rights and itsArticle 25 as further proof that the implementationof the drug conventions must respectthe right to health and human rights ingeneral. The section concludes: “The issue ofhuman rights, the protection of which is agrowing international movement, is now alsobecoming salient in the implementation ofcertain drug control measures.” 54 The examplediscussed here is the death penalty for drugoffences, which is still an issue on which UNMember States have polarized opinions.In the 2008 World Drug Report’s Preface weare informed by the UNODC ExecutiveDirector Antonio Maria Costa that internationaldrug control is an “undeniable success”story, at least concerning its demand reductionside, especially if we are to compare the level ofusage of narcotic drugs and psychotropicsubstance to that of tobacco and alcohol andthe number of deaths caused by thesesubstances. The Report indicates that there arethree areas requiring further attention: publichealth, crime prevention, and human rights.Public health as the “first principle of drugcontrol- should be brought back to centrestage.” 55 Hence, a better equilibrium shouldexist between law enforcement and publichealth policies and more resources have to beallocated for the treatment of drug dependentpeople and prevention of drug use, as well asworking towards the reduction of the adversehealth and social consequences of drug abuse.In relation to the third area of concern, theWorld Drug Report states that protection ofpublic security and public health “should bedone in a way that upholds human rights andhuman dignity.” 56 However, surprisingly for aUN agency whose mandate includes the provisionof advice and assistance to Member Stateson the drug control instruments implementationand monitoring this process, in 2008 itsExecutive Director considered the 60th anniversaryof the Universal Declaration of HumanRights to be a salutary reminder of theexistence of the right to life and the right to afair trial, concluding that “Although drugs kill,we should not kill because of drugs. As wemove forward, human rights should be a partof drug control.” 57One year later, in the 2009 World DrugReport, UNODC appeared to be surprised bythe fact that in certain countries in the world“drug enforcement has been used as a pretextto wage war on marginalized communities,resulting in serious human rights violations.Some countries even impose the death penaltyfor drug offences, contrary to Article 3 of theUniversal Declaration of Human Rights.” 58This time the source of revelation is the reportRecalibrating the Regime: The Need for aHuman Rights-Based Approach to InternationalDrug Policy published by the Beckley Foundationin 2008.Unless Executive Director Costa and hisstaff were shielded entirely from the world, it isdifficult to believe that UNODC was unaware,right up until 2008-2009, of the human rightsviolations related to drug control in someMember States and that some countries “evenimpose the death penalty for drug offences,contrary to Article 3 of the Universal Declarationof Human Rights.” 59 Back in 1982, theHuman Rights Committee issued GeneralComment No. 06 on the right to life70

(International Covenant on Civil and PoliticalRights Article 6) stating that “While it followsfrom Article 6 (2) to (6) that States parties arenot obliged to abolish the death penalty totally,they are obliged to limit its use and, in particular,to abolish it for other than the ‘mostserious crimes’” 60 where “the expression ‘mostserious crimes’ must be read restrictively tomean that the death penalty should be a quiteexceptional measure.’” 61 The same Committeealso repeatedly pointed out that drug offencesdo not qualify as “most serious crimes” forwhich the death penalty may be imposed. 62The question is why UNODC decided toremain silent and not to voice their concernsregarding human rights violations before2009?Under the second chapter of the 2009Report, Confronting Unintended Consequences:Drug Control and the Criminal Black Market,UNODC provides an extensive discussion onthe issues of legalization and the decriminalizationof drug consumption/possession.For the March 2010 session of the UnitedNations Commission on Narcotic Drugs(CND), UNODC’s Executive Director Costapresented his 22 page note Drug control, crimeprevention and criminal justice: A human rightsperspective. UNODC confirmed that this is currentlythe most articulate document on drugcontrol and human rights and also the firstUNODC in-depth attempt to address this typeof reflection.The note’s cover summary states that “Whiledrug addiction, organized crime and terrorismundermine a host of human rights, responsesto these problems can only be effective wherethey respect and restore the rights of those whoare most vulnerable, while treating thoseaccused of criminal offences in a just, fair andhumane manner. The present note illustrateshow drug control can be better synchronizedwith the need to protect human rights.” 63 Thefirst part of this statement remains in the axiomaticstage and no explanation is given to indicatethe way in which drug addiction underminesmany human rights.The note contains four chapters and a conclusion.The first/background chapter starts by presentingthe three interlinked and mutually reinforcingpillars of the United Nations – peaceand security, development, and human rights –and underlines that respect for the rule of law iscentral to the realization of the three pillars. Itdiscusses in general the human rights obligationsof the United Nations system and of theMember States under Articles 1, 55, 56 of theCharter of UN and under the internationalhuman rights instruments, and the necessity tointegrate the promotion and protection ofhuman rights into national policies and mainstreamthem throughout the UN system accordingto the 2005 World Summit Outcome.The paper repeatedly talks about the demandingtask of adapting the criminal justice systemto human rights requirements, considering it asone of the “greatest challenges to the enjoymentof human rights” 64 and declaring that: “Toooften, law enforcement and criminal justice systemsthemselves perpetrate human rightsabuses and exclude and marginalize from societythose who most need treatment and rehabilitation.”65 It emphasizes that by placinghuman rights at the core of drug control, crimeprevention, and criminal justice, an appropriateand coherent response to these challengeswill follow. The overall ambition of the paper isnot only to indicate how policies related todrugs, crime, and terrorism should respecthuman rights, but to substantially contribute to“their positive fulfillment.” 66The second chapter is devoted to the issue ofcriminal justice and human rights. The firstsub-chapter addresses the issues of humanrights, criminal law and sentencing and itbroadly discusses the limits of criminal law inthe context of human rights. It also indicatesthe special focus placed by the internationalhuman rights law on vulnerable groups, speci-71

fying that “those accused of criminal offences,those in prison, victims of trafficking, peoplesuffering from health disorders, people whoare drug dependent and broad groups such aswomen and children, all have particularvulnerabilities that human rights law aims toprotect.” 67 In relation to drug control, itexplains that children who use drugs have to betreated as victims according to the protectivespirit of the Convention of the Rights of theChild. It states that according to the InternationalGuidelines on HIV and Human Rights, asimilar situation applies to people vulnerableto HIV/AIDS, more specifically to drug injectors,in relation to whom states should adoptneedle and syringe exchange programmes,treatment, and HIV-related care. While specifyingthat such positions should not be understoodas a human rights backing of a right toabuse drugs, the paper addresses issues such asproportionality in establishing penalties, thenecessity to use imprisonment as a last resortpenalty and the need to consider rehabilitationof the offender as the first option, the obligationto provide drug dependence treatment inprison, and the inapplicability of the deathpenalty for drug-related offences as per InternationalCovenant on Civil and PoliticalRights. It is stated that “In the case of drug lawsin particular, obligations to establish offencesunder the international drug conventions mustbe fulfilled while at the same time respecting arange of rights, including the right to health, tothe protection of the child, to private andfamily life, to non discrimination, to the rightto life, the right not to be subjected to tortureor cruel, inhuman or degrading treatment orpunishment, and the right not to be subjectedto arbitrary arrest or detention.” 68The second sub-chapter is dedicated tohuman rights and due process. The paperexplains that according to human rights law,no end could justify abusive means, a principleof high importance in relation to the criminaljustice system. Hence, this part refers to issuesincluding equality before the law, the accountabilityof the law, fairness in the application ofthe law, legal certainty, avoidance of arbitrarinessand procedural, legal transparency,human rights previsions related to the accusedperson, and practices which violate humanrights standards (e.g. extra-judicial killings,imprisonment without trial, denial of basicneeds such as food, forced labour, practicesthat amount to torture, et cetera). The paperalso underlines that UNODC’s criminal justicetechnical assistance programmes “mustdirectly support Member States to respect,protect and fulfill relevant human rights in thedevelopment of criminal laws, criminal penaltiesand criminal justice processes.” 69The third chapter mainly discusses the rightto the highest attainable standard of physicaland mental health in relation to the drugconventions and the right to development inthe context of the response to drugs, crime,and terrorism. Most of this chapter is devotedto the right to health of people who are drugdependent, of drug injectors in relation toHIV/AIDS, and of drug users deprived ofliberty. It also dedicates a paragraph to theobligation to provide essential medicines as aprovision inherent to the right to health whichintersects with the drug conventions.The last chapter lays out concrete proposalsfor the future mainstreaming of human rightsin the work of the UNODC.3.2.4. AssessmentUNODC has, under the 2008–2010 steward -ship from Executive Director Costa, distanceditself from its mandate, related to the three UNdrug conventions, and by extension to CRCArticle 33.UNODC and its predecessors were set upunder the auspices of the UN drug conventions.These conventions discuss, in theirrespective preambles, illicit drugs in thefollowing terms: “a duty to prevent and combatthis evil” 70 ; “considering that rigorous meas-72

ures are necessary to restrict the use of suchsubstances to legitimate purposes” 71 ; “deeplyconcerned by the magnitude of illicit productionof/demand for/traffic in illicitdrugs…which pose a serious threat to thehealth and welfare of human beings andadversely affect the economic, cultural, andpolitical foundations of society…concernedalso by…the fact that children are used inmany parts of the world as an illicit drugconsumers market and for purposes of illicitproduction, distribution, and trade in illicitdrugs...which entails a danger of incalculablegravity.” 72 On the basis of the spirit of thepreambles, a legally binding framework hasbeen set up in these conventions which, interalia, stipulate that every ratifying state must:• criminalize illicit production;• criminalize illicit trafficking/trade;• criminalize possession of illicit drugs forpersonal use.The three drug conventions, which make upthe historical and logical mandates forUNODC 73 , were rebutted as “old” in ExecutiveDirector Costa’s note for CND 2008 Makingdrug control ‘fit for purpose’: Building on theUNGASS decade.While appreciating UNODC’s initiative toget involved in the human rights debate, it isdifficult to understand the logic of theirapproach to this issue. The reason for theissuance in 2010 of the Executive Director’sNote Drug control, crime prevention and criminaljustice: A human rights perspective is highlyunclear. Why did UNODC wait until 2010 toclarify their position on human rights? Theonly explanation we could find in the contentof the note is in paragraph 50 where it is statedthat, “As the risk of human rights violations inthe name of action against drugs and crimeincreases, so it is ever more crucial thatUNODC promotes a holistic approach to itsfundamental obligations in the areas of security,development and human rights.” 74 Thepaper itself does not indicate how, nor in relationto what period, is there an increase inhuman right violations in the name of drugcontrol, but it makes reference to the 2009Report 75 by the Executive Director for theCND 76 , which apparently illuminates the issue.In the 2009 Report, the issue of human rights isrepresented in four paragraphs: one related tothe need to base drug and crime control onhuman rights and another stating that drugusers should not be criminalized as theyalready are at the fringes of society and that,because of their health condition, “they shouldgo to rehab, not to jail. If removed from lifesavinghealth and social services, they will hurtthemselves and society via crime and bloodbornediseases.” 77 It is specified that “drugcriminals” constitute a different categorywhich should face justice, but “extra-judicialkillings of suspected traffickers and capitalpunishment for drug offenders are not right.Although drugs and crime kill, governmentsshould not kill because of them. Yet, modernsociety is running into two different,converging trends. First, the efforts to controldrugs and the violence they sow have beenmisused to roll back civil rights gains. Second,desperate for security, citizens have relented torelinquishing a growing share of their rights:eye for an eye seems to be the refrain. It is up tostates to show restraint, finding alternativeways to address the drug and crime problems.Political and administrative incompetencecannot be mistakenly used to justify humanright violations: above all, governments mustoppose this frightening cycle.” 78 It is difficult tounderstand from this discourse the logicalconsequence to the 2010 Note. Is it clear thatgetting involved later is better than not gettinginvolved at all, yet the question remains: whydid UNODC wait until this time to discusshuman rights?Another problem we encounter in trying tosee the logic behind UNODC’s approach tohuman rights is related to its declared role asguardian of the drug and crime related treaties73

and protocols, the main promoter of legalassistance of the UN standards on crimeprevention and criminal justice and as a part ofthe UN Secretariat which has “an obligation topromote and protect human rights guaranteesin the implementation of its mandate and in itsactivities and programmes in practice.” 79 Noneof the human rights instruments, principles orstandards, including the ones referring to theadministration of the criminal justice system,is particularly new. The same applies for theprovisions of the drug convention on treatmentfor drug addiction, or for the one stipulatingthat “Parties may provide, either as analternative to conviction or punishment, or inaddition to conviction or punishment of anoffence…, measures for the treatment, education,aftercare, rehabilitation or social reintegrationof the offender.” 80 Obviously,UNODC’s post-2010 plans to prioritizehuman rights in their future work are ofinterest, but it is also important to know why itavoided such a debate in the past. During thistime, UNODC has had the mandate to provideadvice and assistance to Member States in theeffective implementation of drug conventionsand the application of relevant standards andnorms, including human rights. It is remarkablethat UNODC decided to wait untilvarious human rights instruments reachedtheir 60th anniversary to remember they exist.By applying the same procedure to theConvention on the Rights of the Child and toArticle 33, this instrument would have to waitanother 38 years until it would be taken intoconsideration that all children have a right toprotection/prevention from the illicit use/production/trafficking of illicit drugs and thatthis is a highly relevant provision for drugcontrol policy.Metaphorically speaking, in UNODC ExecutiveDirector Costa’s kitchen, the drugconventions are like fish in that they tend toexpire quickly, whereas the human rightstreaties are like wine, as they have to mature formany years in order to be taken in consideration.Probably the most important question iswhy UNODC decided to exclusively focus itshuman rights discourse on drug users?Looking at UNODC’s mandate and its“unique” position, it is definitely insufficient tomake axiomatic statements such as drug addiction“undermines a host of human rights” 81 or“illicit drug trafficking and trafficking inpersons frequently lead to serious humanrights violations” 82 without a clear intention togive more attention to, and to provide acomprehensive view on, these matters. Moreover,it is difficult to understand why in itshuman rights discourse UNODC never paidany attention to the unique human rightsprovision directly addressing drugs, namelyArticle 33 of the Convention of the Rights ofthe Child, demanding that all children shouldbe protected from the illicit use of narcoticdrugs and psychotropic substances andprevented from being involved in the illicitproduction and trafficking of such substances.The 2005 World Summit Outcome, to whichUNODC often refers when talking about itsduty on integrating human rights in its work,clearly states the commitment to create “aworld fit for future generations, which takesinto account the best interest of the child.” 83Even if it was difficult to argue that this principledoes not have a direct application andhigh relevance for drug control policy, wecould not find any reflection or prioritizationof the best interests of the child in any of theUNODC’s undertakings on human rights. Onthe contrary, the only paper that mentionsCRC Article 33 in a meager fashion is the 2010Note, Drug control, crime prevention and criminaljustice: A human rights perspective.The most striking feature of the 2010 ExecutiveDirector’s note is how it has placed itshuman rights onus: 11 out of 61 paragraphsunderscore the importance of the right tohealth for people affected by drug addiction74

and for drug abusers; ten other paragraphs talkabout the right to due process; and nine paragraphstalk about criminal procedures andsentencing. Only one single paragraph 84 inwhat is UNODC’s most complex paperdevoted to human rights, talks about children’srights. In short, rights relevant to the adult userof drugs outnumber the child’s right to protectionby 30 to 1. From a human rights point ofview, it is very problematic that the policy inUNODC’s 2010 Note is discriminatory,excluding all children who do not use drugsfrom protection. It is also reductive in that itrefrains from talking about the right to protectionfor children in production and trafficking,or at risk thereof, and deliberately misrepresentsthe scope of protection by stating thatCRC Article 33 has a “strong focus on protectionrather than punishment” 85 , pretendingthat we are talking about child offenders, caseaddressed by CRC Articles 37 and 40. None ofthe special protection provisions in CRC 86 isdirected against children when it comes tocriminalization.We could see, beginning in 2008, a cleartendency of UNODC to directly advocate forthe decriminalization of drug consumption, ormore precisely the decriminalization of drugpossession for personal use. This “solution” isoften presented as the appropriate way torespect human rights within drug controlpolicy. Still, we have not seen any due reflectionon how this approach will serve the right ofevery child to be protected from illicit use ofnarcotic drugs and psychotropic substancesand prevent the involvement of children in theproduction and trafficking of such substances.Why UNODC decided to abandon itsprevious vision and aspiration towards a drugfreeworld and adopted exclusively a drug usercenteredrhetoric is highly unclear. This is, atpresent, a guessing game. A possible indicationcan be found in the organization’s fundingpattern. For example, the Transnational Institute(TNI) mentions in its publication 10 Yearsof TNI Drugs & Democracy Programme1998–2008, the replacement of the UnitedStates by the European Union as a major donorof the UNODC, which led to the prioritizationof the issues related to HIV/AIDS and harmreduction in the international drug controlpolicy. Hence, according to TNI, “A clear paradigmshift from zero-tolerance to pragmatismhas taken place in international drugcontrol.” 87 This might be the reason why lately,on the UNODC’s web site and documents, theOffice’s mandate in relation to HIV/AIDS isclearer than its duties in relation to the drugconventions, especially to reducing drugdemand.The same can explain, but cannot justify, thestated UNODC intention to avoid “extreme”positions and occupy the centre, “proverbial‘middle ground’ – which is wide enough toaccommodate all of us and solid enough tobear our weight as we step forward into thenext decade.” 88 In this context it is of relevancehow UNODC defines the “extremes”. In the2009 opening statement of the Commission onNarcotic Drugs at its 52nd session, theUNODC Executive Director clarified theseextreme positions as: “(a) criminalization ofdrug users and (b) legalization of its use”. 89According to Article 3 (2) of the UnitedNations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substancesof 1988, “each Party shall adopt such measuresas may be necessary to establish as a criminaloffence under its domestic law, whencommitted intentionally, the possession,purchase or cultivation of narcotic drugs orpsychotropic substances for personalconsumption”, 90 specifying in paragraph 4(d)that: “Parties may provide, either as an alternativeto conviction or punishment, or in additionto conviction or punishment of an offenceestablished in accordance with paragraph 2 ofthe article, measures for the treatment, education,aftercare, rehabilitation or social reintegrationof the offender.” 91 It would be of75

interest to know how UNODC concluded thatadherence to 1988 convention Article 3(2), aprovision contained in a convention ratified by188 states and on which there were extremelyfew reservations, 92 is an extreme position andif this position would correspond to the interpretationin good faith as essential in internationallaw.In regards to this last point, it is also pertinentto note that two years earlier, in 2007, inthe UNODC’s publication Sweden’s SuccessfulDrug Policy: A Review of the Evidence, the sameExecutive Director, Mr. Costa, displayed greatenthusiasm for Swedish drug policy,concluding that “It is my firm belief that thegenerally positive situation of Sweden is aresult of the policy that has been applied toaddress the problem. The achievements ofSweden are further proof that, ultimately, eachGovernment is responsible for the size of thedrug problem in its country. Societies oftenhave the drug problem they deserve.” 93 Theremarkable fact here is that Sweden is actuallyone of the few countries where not just drugpossession but drug consumption/use per se iscriminalized. Hence, according to Mr. Costa’slogic Sweden fell from being an example ofexcellent drug policy to an extremist country,without making any substantial changes in itsnational legislation.In 2008, UNODC underlined the importanceof the multilateral principle. The 2009Political Declaration asserted “that the worlddrug problem is most effectively addressed in amultilateral setting and that the three internationaldrug control conventions and other relevantinternational instruments remain thecornerstone of the international drug controlsystem”. 94 In this context, we should askourselves how helpful is UNODC’s recent criticismof two of the three drug conventions, onefor being obsolete and the other for sustainingextreme positions?In relation to his 2008 statement that theUN drug conventions are fossilized and thatthey need to be humanized/changed, theformer UNODC Executive Director, Mr.Antonio Maria Costa said in his 2011 meetingwith the Home Affairs Sub-Committee of theHouse of Lords Select Committee on the EuropeanUnion that it is neither the UNODC norits Executive Director’s mandate or authorityto assess how old the UN drug conventions arenor to change them. To quote his own words:“Conventions are only changed by Governments,period. Nothing else. The UNODC isonly the notary, so to speak, in terms of helpingcountries to implement the conventions… butGovernments – who are the only ones responsible– have shown no appetite (to change theconventions) so the question is not on the tableas far as I can tell.” 95However, on the positive side, UNODC hasproduced a human rights and drugs paper.This is a paper which now needs fundamentalrevision to ensure standard human rightsmethodology and a child-centered focus fordrug issues. UNODC also has a new ExecutiveDirector, Mr. Yury Fedotov, who could correctthe policy missteps and the freewheeling politicizedapproach that began under the previousleadership.3.3. World Health Organization –WHO3.3.1. BackgroundThe World Health Organization (WHO) wasset up in 1948 in accordance with Article 57 ofthe United Nations Charter. It is one of theoldest UN specialized agencies and the coordinatingauthority for health issues within theUnited Nations system. It has the responsibility“for providing leadership on global healthmatters, shaping the health research agenda,setting norms and standards, articulatingevidence-based policy options, providing technicalsupport to countries and monitoring andassessing health trends.” 9676

The World Health Assembly is the supremedecision-making body for WHO and itcomprises delegates from all 193 MemberStates. This body decides the policies, supervisesthe financial issues of the organization,and appoints its Director-General on thenomination of the Executive Board. It alsoconsiders reports of the Executive Board, the34 member body which gives effect to the decisionsand policies of the Health Assembly,advises it and facilitates its work.WHO is headquartered in Geneva,Switzerland and has 147 country offices and sixregional offices working under notableautonomy. WHO has a staff of over 8,000health and other experts and support staffworking at the headquarters and in the field.The WHO is financed by contributionsfrom Member States and donors. The 2010annual budget for WHO totalled $4.5 billionUSD. 973.3.2. WHO’s Mandate and MissionStatementAs stipulated in the Article 1 of its Constitution,the objective of the World Health Organizationis the attainment by all peoples of thehighest possible level of health. Article 2 lists 22functions for the organization in order toachieve this objective. Examples include tocoordinate the international health work; toassist Governments; to provide assistance inemergencies; to stimulate and advance work toeradicate epidemic, endemic and otherdiseases; to promote, in co-operation withother specialized agencies where necessary, theimprovement of nutrition, housing, sanitation,recreation, economic or working conditionsand other aspects of environmental hygiene; topropose conventions, agreements and regulationsin health matters; to promote maternaland child health and welfare, et cetera.3.3.3. WHO and Human RightsThe relationship of the World Health Organizationto human rights is an obvious one. Inthe preamble of the organization’s Constitution,established in conformity to the Charterof the United Nations, nine principles “basic tothe happiness, harmonious relations and securityof all peoples” 98 are enumerated. One principlestates that “The enjoyment of the highestattainable standard of health is one of thefundamental rights of every human beingwithout distinction of race, religion, politicalbelief, economic or social condition.” 99Another principle asserts that “Healthy developmentof the child is of basic importance; theability to live harmoniously in a changing totalenvironment is essential to such development.”100 The connection between the protectionand promotion of health and the realizationof other human rights is undeniable;hence, starting with the 1948 Universal Declarationof Human Rights, the right to health hasbeen stipulated in several human rightsconventions. 101 As the authority on this matter,WHO pro vides expertise to the human rightsmechanism in relation to the right to health.WHO has an essential role in providing intellectual,technical and political leadership inthe field of health and human rights. In 1997,the Organization conducted an internal reviewof its activities relevant to health and humanrights and identified four departments thattreated specific human rights instruments as integralto their programmes: disabilities; reproductiveand women’s health; complexemergencies; and child and adolescenthealth. 102Since then, WHO has placed increased emphasison operationalizing human rights principlesin health development programming aswell as in humanitarian work, and each regionaloffice and each cluster at Headquarters now hasprogrammes or projects that apply a humanrights-based approach.The organization also established a focalpoint for human rights: the Health andHuman Rights Unit, which is housed in the77

Department of Ethics, Equity, Trade andHuman Rights in the Cluster of Innovation,Information, Evidence and Research(IER/ETH).In relation to human rights and health,WHO focuses on three areas:• Strengthening the capacity of WHO and itsMember States to integrate human rightsbased approaches to health;• Advancing the right to health in internationallaw and international developmentprocesses; and,• Advocating for health related humanrights. 1033.3.4. WHO’s Policies on Human Rightsand DrugsWHO is well placed to address and provideguidance on how human rights apply to drugcontrol and how different approaches in thisfield would be conducive to healthier environmentsfor children and for the population ingeneral. The Organization has a clear mandateunder the international drugs convention andhas the ability to assess the health implicationsof drug policies.Article 3 of the 1961 United Nations SingleConvention on Narcotic Drugs, as amended bythe 1972 Protocol, and Article 2 and 3 of the1971 United Nations Convention onPsychotropic Substances, specifically assignsresponsibilities to the World Health Organizationin providing technical advice onsubstances scheduling. The Organizationstudies the dependence-producing propertiesof different substances and their therapeuticproperties and makes recommendations to theCommission on Narcotic Drugs on controlmeasures.As the coordinating authority for healthwithin the United Nations system, WHO has acertain capacity to encourage and assist thedevelopment of preventive, treatment andrehabilitation programmes; to pursue relevantknowledge in the field of drug dependence; todevelop effective approaches to the treatmentof drug dependence and rehabilitationprogrammes, and to strengthen the capacity ofprimary health care to respond to drug-relatedhealth problems. In the last ten years, WHOhas published, alone or together with other UNagencies (e.g. UNODC, UNAIDS), a series ofpapers related to the management of substanceabuse. In 2010, it issued its first global reportdetailing the prevention and treatmentresources currently in use to respond to thesehealth concerns, entitled, ATLAS on Resourcesfor the Prevention and Treatment of SubstanceUse Disorders. Other publications relate toprimary prevention of substance abuse, opioiddependence treatment, management of opioiddependence and HIV/AIDS prevention, treatmentfor amphetamine-related disorders,pharmacological treatment of cocaine dependence,opioid overdose, drug injecting and HIVinfection, cannabis use and its health effects,health implications of drug use, et cetera.In our research we could not find any dedicatedand comprehensive WHO position onhuman rights and drugs, but some of theabove-mentioned publications dealing withspecific issues made reference to human rights.Several such papers are focused on the issue ofdrug dependence treatment. For example, twodiscussion papers belonging to this categorywere produced in collaboration with UNODC:Principles of Drug Dependence Treatment in2008 and From coercion to cohesion Treatingdrug dependence through health care, notpunishment in 2009. The discussion paperfrom 2008 considers drug use and drugdependence to be public health, socioeconomicdeve lopment, and security problemsaffecting all countries and stresses the importanceof drug treatment within demand reductionstrategies. It recommends abandoningsanction-oriented approaches which deemdrug dependence simply as a social problem ora “self-acquired disease”, based on individualfree choice which leads to the stigmatization78

and discrimination and instead proposes theadoption of a health-oriented approach wheredrug dependence is “considered a multi-factorialhealth disorder that often follows thecourse of a relapsing and remitting chronicdisease”. 104 The paper lists nine key principlesapplicable to drug dependence treatment. Thefourth principle directly addresses humanrights and states that “Drug dependence treatmentservices should comply with humanrights obligations and recognize the inherentdignity of all individuals. This includesresponding to the right to enjoy the highestattainable standard of health and well-being,and ensuring non-discrimination.” 105 Thepaper enumerates as components of Principle4 regarding Drug Dependence Treatment,Human Rights, and Patient Dignity: nondiscriminationof people based on their past orpresent drug use, insisting on the applicationof the same ethical standards of treatment asfor other medical conditions; access to treatmentand care services, including preventivemeasures at all stages of the disease and foreveryone including patients who do not wantto stop drug use, people relapsing into thecondition and people in prisons. It also stipulatesthat treatment should not be compulsory,except in well-defined crisis situations, but thatit should be offered as an alternative to penalsanctions as a choice and provided withoutdiscrimination: “the human rights of peoplewith drug dependence should never berestricted on the grounds of treatment andrehabilitation. Inhumane or degrading practicesand punishment should never be a part oftreatment of drug dependence.” 106The 2009 discussion paper considers theshift from a sanction-oriented approach to ahealth-oriented one in the context of the drugconventions provisions, notably Article 38 ofthe 1961 Convention and Article 14(4) of the1988 Convention, in relation to drug dependenceand drug use. Such a change of directionis deemed as perfectly legitimate under theinternational drug regime. The paper advocatesthe abandonment of imprisonment forboth categories of drug dependents and drugusers, considering that severe penalties fordrug use and related crime “resulted in largenumbers of people in prisons, compulsorytreatment centers, or labour camps withoutsignificant long term impact on drug use, drugdependence or drug-related crime in thecommunity and are in contradiction withhuman rights”. 107 These policies increase therisk of HIV, hepatitis, and tuberculosis for thepeople in closed setting and for the entirecommunity. Instead, treatment, education, andcare should be offered as an alternative tocriminal justice sanctions and treatmentshould be “provided in ways that do not violatethe rights of drug users who should be allowedto decide whether they want to be involved intreatment and to choose the form of treatmentthat they receive.” 108 Human rights arementioned also in the context of long-termtreatment without explicit consent. The paperdescribes how evidence-informed treatmentwould ideally look.Another paper touching on human rightsand drugs was published by the Western PacificRegional Office of the WHO in 2009 and isentitled, Assessment of compulsory treatment ofpeople who use drugs in Cambodia, China,Malaysia and Viet Nam: an application ofselected human rights principles. Although thispaper did not intend to discuss drug policy andhuman rights, it aimed “to use some keyhuman rights principles as a lens throughwhich to assess and document the situation inthe compulsory drug treatment centers in aconstructive way”. 109 The paper discusses thehealth risks faced by people who use drugs andspecifically injecting drugs in general and inrelation to HIV, and promotes “harm reduction”initiatives. The publication provides anopen description of this approach as follows:“Harm reduction aims to reduce the negativehealth consequences associated with risky79

ehaviours related to injecting drug use,without necessarily affecting the underlyingdrug use. Interventions related to harm reductionmay include the dissemination of informationon how to reduce risks associated withdrug use, the provision of services whichincrease the safety of PWUD [persons who usedrugs], such as needle and syringeprogrammes, condom distribution, and thetreatment of AIDS. They may also include arange of drug dependence treatment options,such as opioid substitution maintenancetherapy. Harm reduction also seeks to identifyand advocate modifications in laws, policiesand regulations in different countries.” 110 Asindicated in the title, the paper mainly refers tothe situation in countries like: Cambodia,China, Malaysia and Viet Nam and to treatmentprovided in the compulsory drug treatmentcenters and the lack of HIV services inthese settings. The framework for analysis isguided by the principles of availability, accessibility,acceptability and quality applicable tohealth services, facilities and goods identifiedby the Committee on Economic, Social andCultural Rights in its Commentary 14 from2000 on the rights to the highest attainablestandard of health as per Article 12 of theInternational Covenant on Economic, Socialand Cultural Rights. The drug conventions areregarded as obsolete and in need of revision asthe 1961 and the 1971 instruments predate theHIV/AIDS epidemic and the 1988 onepreclude the “explosive global growth of injectiondrug use.” 111The recommendations for governmentsissued in this paper suggest the need to revisethe national legal frameworks in relation todrug use and consequently to treat the issue ofillicit use exclusively in medical terms, removingthe criminal penalties related to thisconduct. It also indicates the need, in countrieslike Malaysia, Viet Nam, and Cambodia, toprovide educational campaigns “addressed tothe overall population to fight stigma anddiscrimination towards PWUD.” 1123.3.5. AssessmentThrough its mandate, WHO is well-placed toarticulate a consistent discourse on the issue ofdrug control and human rights. The organizationhas its own Constitution which allows agood basis for independence, accountabilityand sense of direction. The aim of the organization,as stipulated in this document, is theattainment by all peoples of the highestpossible level of health, where health is definedas “a state of complete physical, mental andsocial well-being and not merely the absence ofdisease or infirmity.” 113 Its Constitution placesa great emphasis on the healthy developmentof the child and in relation to this aspect it is tobe expected that WHO must strongly take intoaccount the Convention on the Rights of theChild. The Organization has dedicated andsubstantial budgets for activities such aspromotion of health and development,prevention or reducing risk factors for healthconditions associated with use of tobacco,alcohol, drugs and other psychoactivesubstances, unhealthy diets, physical inactivityand unsafe sex 114 , and addressing the underlyingsocial and economic determinants ofhealth through policies and programmes thatenhance health equity and integrate pro-poor,gender responsive, and human rights-basedapproaches. 115 Therefore, WHO can substantiallycontribute to the existing debate on drugpolicy and human rights by issuing a positionand recommendations reflecting the interestsof the society at large and taking in considerationthe best interest of the child and the child’sright to protection from illicit drugs andpsychotropic substances.Instead, we encounter a unilateral discoursefocused on the needs and rights of the drugusers and people who are drug dependent.WHO has the mandate to address the issuesrelated to the treatment of drug disorders andto advise on best practices and human rights80

equirements in this regard; however, theexclusive focus on drug users excludes/ignoresimportant categories of populations and theirright to protection from such substances.For example, WHO issued in 2010 togetherwith United Nations Children’s Fund(UNICEF), United Nations Educational,Scientific and Cultural Organization(UNESCO), United Nations Population Fund(UNFPA), United Nations DevelopmentProgramme (UNDP), Joint United NationsProgramme on HIV and AIDS (UNAIDS),World Food Programme (WFP) and the WorldBank, the fourth edition of its publicationfocused on the safety and well-being of childrenand based on the Convention on theRights of the Child and the Convention on theElimination of All Forms of Discriminationagainst Women. Facts for Life includes achapter on child protection centered on “thevulnerabilities of children and the actionsneeded to ensure that they grow up insupportive environments in the home, schooland community.” 116 Here, the publicationaddresses inter alia the right of children to beprotected from hazardous work or the worstforms of child labour such as slavery, forcedlabour, drug production, or trafficking. In relationto these labours, the paper states: “Theseare illegal. Children must be removed immediatelyfrom such situations and, if it is in theirbest interest, reintegrated into their familiesand communities.” 117 It also considers it anecessity to inform children and adolescentsabout the dangers of leaving home andbecoming involved in work that might placethem in high-risk situations such as prostitutionand drug trafficking. The publication doesnot mention the right of children to beprotected from the illicit use of narcotic drugsand psychotropic substances. As this provisionis conducive to both the safety and well beingof children, it is advisable for WHO and theother organizations to consider it in the nextedition.It is imperative that WHO develops acomprehensive position which links its visionof drug users with the human rights imperativeto protect children from involvement inthe production and trafficking of drugs.WHO Fact Sheet N°150 from August2010 118 identifies, inter alia, drug use as a characteristicof parents or caregivers which mayincrease the risk of child maltreatment. Thesame Fact Sheet indicates the creation of avicious circle where, as adults, maltreated orabused children “are at increased risk forbehavioural, physical and mental health problemssuch as” 119 , going on to list, among othersevere consequences, drug use. Similar findingsare displayed in the study published in 2006 byWorld Health Organization and InternationalSociety for Prevention of Child Abuse andNeglect entitled, Preventing child maltreatment:a guide to taking action and generatingevidence. A comprehensive position of WHOon this issue and recommendations on theappropriate ways to reduce this type of riskfactors would certainly correspond to the organization’smandate and would be of highinterest as worldwide “approximately 20% ofwomen and 5–10% of men report being sexuallyabused as children, while 25–50% of allchildren report being physically abused.” 1203.4. Office of the United NationsHigh Commissioner for HumanRights – OHCHR3.4.1. Background 121The Office of the United Nations HighCommissioner for Human Rights (OHCHR) isthe global authority on human rights beingresponsible for the protection and the promotionof human rights established under theinternational human rights instruments. TheOffice coordinates the human rights activitiesthroughout the United Nations system.OHCHR is part of the Secretariat of the United81

Nations and is headed by the High Commissionerfor Human Rights, a position created in1993 by the General Assembly, following theMember States’ decision at the 1993 WorldConference on Human Rights to create a solidand visible human rights institution.The High Commissioner for Human Rightsis “the United Nations official with principalresponsibility for United Nations human rightsactivities under the direction and authority ofthe Secretary-General.” 122 The High Commissioneris appointed by the United NationsSecretary General and is approved by the UNGeneral Assembly. At present, the post is heldby Navanethem (Navi) Pillay from SouthAfrica; who has headed the Office sinceSeptember 2008.OHCHR maintains direct contact withgovernments, national legal authorities andinstitutions, NGOs and civil society organizations,international and regional organizations,and the United Nations system assistingthem in the promotion and protection ofhuman rights in accordance with internationallaw norms.As the centerpiece of the United Nationshuman rights machinery, OHCHR supportsthe Human Rights Council and its SpecialProcedures 123 and the international humanrights treaty bodies established to monitorState Parties’ compliance with the respectiveinstruments and to assist them in the implementationof conventions on their territories.The Office also promotes the right to development,coordinates United Nations humanrights education and public information activities,and strengthens and mainstreams humanrights across the United Nations system.Aside from its headquarters in Geneva,Switzerland, OHCHR has a liaison office at theUnited Nations in New York, United States, tencountry offices 124 , two stand-alone offices, inKosovo and the occupied Palestinian territory,and 12 regional offices and centres. 125 At theend of 2009, the Office had 982 members ofstaff, of whom almost half were based in thefield; 50 % work in Geneva, and 2 % in NewYork. The Office also supports human rightsofficers in UN peace missions and humanrights advisers in UN country teams.OHCHR receives one third of its fundingfrom the United Nations regular budget; theremaining two thirds are provided throughvoluntary contributions from Member Statesand other donors such as intergovernmentalorganizations, NGOs, foundations, variouscompanies and private individuals. The estimatedtotal budget for 2010-2011 has been setat $407.4 million USD.3.4.2. OHCHR’s Mandate and MissionStatementThe Office of the United Nations High Commissionerfor Human Rights is guided in itswork by the mandate provided by the GeneralAssembly in resolution 48/141 from December1993, the Charter of the United Nations, theUniversal Declaration of Human Rights and theinternational human rights instruments, theVienna Declaration and Programme of Actionthe 1993 World Conference on Human Rights,and the 2005 World Summit OutcomeDocument. 126According to the Resolution A/RES/48/141,Article 3, United Nations High Commissionerfor Human Rights shall:a) “Function within the framework of the Charterof the United Nations, the Universal Declarationof Human Rights, other internationalinstruments of human rights and internationallaw, including the obligations, within thisframework, to respect the sovereignty, territorialintegrity and domestic jurisdiction of Statesand to promote the universal respect for andobservance of all human rights…”b) “Be guided by the recognition that allhuman rights… are universal, indivisible, interdependentand interrelated…”c) “…promoting a balanced and sustainabledevelopment for all people…”82

Article 4 stipulates the United Nations HighCommissioner for Human Rights’ responsibilities:a) To promote and protect the effective enjoymentby all of all civil, cultural, economic,political and social rights;b) Accomplish the tasks assigned by UNcompetent bodies and to make to themrecommendations for the improvement,promotion and protection of all human rights;c) Promotion and protection of the right todevelopment;d) Provide advisory services and technical andfinancial assistance in the field of humanrights;e) Coordinate the UN education and publicinformation services in the field of humanrights;f) Play an active role in removing currentobstacles for full realization of all humanrights and prevent the continuation of humanrights violations;g) Engage in dialogue with all Governments tosecure respect for all human rights;h) Stimulate international cooperation inpromotion and protection of human rights;i) Co-ordinate human rights protection andpromotion activities throughout the UNsystem;j) Modulate the UN human rights machineryto improve its efficiency and effectiveness;k) Supervise the Centre for Human Rights. 127The mission of the Office of the UnitedNations High Commissioner for HumanRights is to work for the protection of allhuman rights for all people; to help empowerpeople to realize their rights; and to assist thoseresponsible for upholding such rights in ensuringthat they are implemented.In carrying out its mission OHCHR shall:• Give priority to addressing the most pressinghuman rights violations, both acuteand chronic, particularly those that put lifein imminent peril;• Focus attention on those who are at riskand vulnerable on multiple fronts;• Pay equal attention to the realization ofcivil, cultural, economic, political, and socialrights, including the right to development;and• Measure the impact of its work through thesubstantive benefit that is accrued, throughit, to individuals around the world. 1283.4.3. OHCHR’s Policy and Discourse onHuman Rights and Drug ControlOHCHR has, as one of its essential tasks to“mainstream human rights within the UnitedNations, which means injecting a human rightsperspective into all United Nationsprogrammes.” 129 International drug control isone of the important areas of concern for theUN and one which would clearly needguidance in relation to human rights standards,yet we could not find drugs or drugcontrol listed among the circa 50 human rights“issues” 130 on the OHCHR web site homepage, nor any policy papers directly addressingthis issue. Moreover, we were informallyinformed that this area is not a priority for theOffice.Against this background, we consider relevantthe statement made by the UN HighCommissioner for Human Rights, Navi Pillay,on 10 March 2009, prior to the landmarksession of the United Nations Commission onNarcotic Drugs in 2009, which reviewed theprogress made in the decade since the SpecialSession of the United Nations GeneralAssembly (UNGASS) 1998 and the 100 yearsanniversary of international drug control. TheHigh Commissioner started her short statementby evoking the commitment made in theUNGASS 1998 Political Declaration to respecthuman rights in countering the world drugproblem and stressed that ten years later it isopportune to “again underscore what States’human rights obligations demand of drugcontrol regimes.” 131 According to Mrs. Pillay:83

“Individuals who use drugs do not forfeit theirhuman rights... Too often, drug users sufferdiscrimination, are forced to accept treatment,marginalized and often harmed by approacheswhich over-emphasize criminalization andpunishment while under-emphasizing harmreduction and respect for human rights. This isdespite the longstanding evidence that a harmreduction approach is the most effective way ofprotecting rights...” 1323.4.4. AssessmentThe Office of the United Nations HighCommissioner for Human Rights, according toits mandate, could play an essential role ininforming the international drug controlpolicy on human rights minimum standards.As noted throughout this chapter, several UNagencies indicated interest and issued variousstatements on this matter, including the yearlyUN General Assembly resolutions regardinginternational cooperation against the worlddrug problem which state a commitment tohuman rights in this area. Hence, guidance onthis topic from OHCHR would be extremelyuseful. It is therefore remarkable that this issuedoes not appear on the Office’s top-50 prioritylist, nor has it gained more attention over time.The figures from the 2007 European SchoolSurvey Project on Alcohol and Other Drugs(ESPAD) demonstrates the risk of illicit druguse, with 18% of 15–16 year-old European childrenreporting a lifetime use of illicit drugs. 133And this is just a regional estimation covering35 European countries. If we were to add to thisfigure the number of children exposed toneglect and abuse due to drug use by theirparents or caregivers and the children, mainlyin poorer countries, engaged in illicit productionand trafficking of drugs, one of “the mosthazardous forms of child labour”, as per ILOConvention 182, it is hard to understand howthe drug issue was never a priority for OHCHR.OHCHR engagement on this issue wouldcertainly match with their Mission Statementto focus on the most vulnerable in society.As previously indicated, the High Commissionerdecided in 2009 to issue a statementfocused exclusively on drug users. As no policypaper or report accompanied this statement,we have for several months sought the HighCommissioner or an officer in the HighCommissioner’s staff who can explain whathuman rights analysis underpinned this assessment.Our attempts to get a clear idea were leftunanswered. Hence, one is left with an almostunique intervention of OHCHR into the internationaldrug policy where the right of thechild to be protected from illicit drugs, inaccordance with CRC Article 33, and statedobligation to “discourage production,marketing and consumption of… narcoticsand other harmful substances…” 134 as perArticle 12 of the International Covenant onEconomic, Social and Cultural Rights(CESCR), are completely ignored. Despite itsclosing sentence which underlines that “Wemust ensure at all times that every individual’sinalienable rights are respected, protected andfulfilled” 135 , the whole statement is concentratedon the drug users.It is difficult to understand how an exclusivefocus on drug users is the total obligation of“States’ human rights obligations demand ofdrug control regimes”. 136 Such a statementimplies the awarding of “victim status” to anydrug user on the “merit” of using drugs and thedisregarding of any other category, includingchild ren. It consequently proposes usercenteredinternational and national drugcontrol policies. Moreover, the High Commissionerstates that a “harm reduction approachis the most effective way of protectingrights” 137 as it alleviates suffering and reducesincidence of HIV. As discussed in the previouschapter, equating human rights protectionwith “harm reduction” can be highly problematic,particularly when there is no interest indefining what “harm reduction” is and ageneral tendency is to extend its meaning. It is84

most likely to be confusing for states to be toldby the High Commissioner that human rightsare best served by an approach that disregardsthe prevention of drug use itself when underthe (CESCR) General Comment No. 14 on theright to the highest attainable standard ofphysical and mental health, the same states aretold that the failure to discourage drug use is aviolation of the obligation to protect. 138Left as it is, without any explanation, the2009 statement by the UN High Commissionerfor Human Rights is a “blank cheque” given tothose who advocate for decriminalization, depenalization,or legalization of illicit drugconsumption. Not surprisingly, it was intensivelyquoted by the anti-prohibitionist campand became a strong advocacy tool.3.5. The Joint United NationsProgramme on HIV and AIDS –UNAIDS3.5.1. BackgroundThe Joint United Nations Programme on HIVand AIDS (UNAIDS) was established on 26July 1994 by Resolution 1994/24 of theEconomic and Social Council “to provideglobal leadership in response to theepidemic” 139 and became operational on 1January 1996. From inception, the organizationhas been a joint UN partnership, the interagencycooperation has been considered essentialfor ensuring the mobilization of resourcesand the effective implementation of a coordinatedprogramme of activities throughout theUnited Nations system. The programme was togain from the experience of its original six cosponsors:United Nations DevelopmentProgramme, the United Nations Children’sFund, the United Nations Population Fund, theWorld Health Organization, the United NationsEducational, Scientific and Cultural Organizationand the World Bank. At present UNAIDShas ten co-sponsors. 140The work of UNAIDS is guided by aProgramme Coordinating Board (PCB) whichserves as its governing body. The PCB includesrepresentatives of 22 governments from allregions of the world, the ten UNAIDS co -sponsors, and five nongovernmental organizations(NGOs), including associations of peopleliving with HIV. UNAIDS leadership is innovativeas it is the first United Nations programmeto include NGOs in its governing body.The Executive Cabinet of UNAIDS Secretariatis a forum for high level decision makingon strategic issues facing the organization. TheExecutive Cabinet is composed of the ExecutiveDirector, the Deputy Executive Directorsof the Programme branch and the Managementand External Relations branch, and theDirector of the Executive Office. The ExecutiveDirector is appointed by the United NationsSecretary General upon the recommendationof the co-sponsors. Beginning in January 2009,Michel Sidibé from Mali has been theExecutive Director of UNAIDS.The Programme headquarter is in Geneva,Switzerland, and it has three liaison offices inBrussels, Addis Ababa and Washington D.C.The Unified Budget and Workplan for the2010–2011 biennium was $484.8 million USD.3.5.2. UNAIDS’ Mandate and MissionStatementAccording to ECOSOC Resolution 1994/24from 1994, the objectives of the Programmeare to:(a) Provide global leadership in response to theepidemic;(b) Achieve and promote global consensus onpolicy and programmatic approaches;(c) Strengthen the capacity of the UnitedNations system to monitor trends andensure that appropriate and effective policiesand strategies are implemented at thecountry level;(d) Strengthen the capacity of nationalGovernments to develop comprehensive85

national strategies and implement effectiveHIV/AIDS activities at the country level;(e) Promote broad-based political and socialmobilization to prevent and respond toHIV/AIDS within countries, ensuring thatnational responses involve a wide range ofsectors and institutions;(f) Advocate greater political commitment inresponding to the epidemic at the globaland country levels, including the mobilizationand allocation of adequate resourcesfor HIV/AIDS-related activities. 141The latest UNAIDS’ mission statementadopted by the Programme CoordinatingBoard at its 26th meeting in June 2010 is tolead and inspire the world in achievinguniversal access to HIV prevention, treatment,care and support by:• uniting the efforts of the United NationsSystem, civil society, national governments, theprivate sector, global institutions and peopleliving with and most affected by HIV;• speaking out in solidarity with the peoplemost affected by HIV in defence of humandignity, human rights and gender equality;• mobilizing political, technical, scientific andfinancial resources and holding ourselves andothers accountable for results;• empowering agents of change with strategicinformation and evidence to influence andensure that resources are targeted where theydeliver the greatest impact and bring about aprevention revolution; and,• supporting inclusive country leadership forsustainable responses that are integral to andintegrated with national health and developmentefforts. 1423.5.3. UNAIDS and Human RightsIn general, UNAIDS uses extensive humanrights rhetoric. According to the Programme’svision “Leveraging the AIDS response,UNAIDS works to build political action and topromote the rights of all people for betterresults for global health and development.” 143The apparent focal point for human rightsat UNAIDS is the Prevention, Vulnerabilityand Rights Division which has as one of itstasks the development of global policies whichshould lead to the reduction of HIV infectionsand advance and protect human rights inresponse to AIDS, address the vulnerability ofwomen, girls and sexual minorities, andincrease programme efficiency at all levelsthrough systems integration. This Division’sweb site has a sub-section on ‘human rightsand law’ 144 , which contains two documents:1) Mapping of restrictions on the entry, stayand residence of people living with HIV;2) International Guidelines on HIV/AIDSand Human Rights 2006 Consolidated Version.In the context of the present discussion, ourassessment is that the second paper is the mostrelevant and comprehensive reflection onUNAIDS’s thinking on human rights. Thepublication was issued by the Office of theUnited Nations High Commissioner forHuman Rights and the Joint United NationsProgramme on HIV/AIDS and it consolidatesthe previous versions of the guidelines. Asstated, the aim of the publication is to assiststates in translating the international humanrights norms into practical observance in thecontext of HIV, considering that an effectiveresponse to the epidemic “requires the implementationof all human rights, civil and political,economic, social and cultural, and fundamentalfreedoms of all people, in accordancewith existing international human rights standards”145 and that the full respect for humanrights reduces the number of HIV infectionsand helps people living with HIV to better copewith their situation. It also clarifies that a“rights-based, effective response to the HIVepidemic involves establishing appropriategovernmental institutional responsibilities,implementing law reform and support servicesand promoting a supportive environment forgroups vulnerable to HIV and for those living86

with HIV” 146 and that in the context of HIV,international human rights norms and pragmaticpublic health goals require states toconsider measures that may be controversial,particularly regarding the status of women andchildren, sex workers, injecting drug users andmen having sex with men.Guidelines 1–12 are general in nature andnot prescriptive of outcome. Some examples:Guideline 1 (G1) suggests that states shallestablish an effective national framework fortheir response to HIV; G3 suggests that statesshall review public health laws to conform withhuman rights standards; G4 suggests that statesshall review and reform criminal laws in orderto ensure that these are in line with humanrights standards. G7 suggests that states shalleducate people affected by HIV on their rights;G8 suggests that states shall promote asupportive and enabling environment forwomen, children and other vulnerable groups.G11 suggest that states shall ensure monitoringand enforcement mechanisms to guarantee theprotection of HIV-related human rights.Further down in the paper, in paragraph102, there is a list of 18 human rights principlesrelevant to HIV/AIDS. Paragraph 103 statesthat “Particular attention should be paid tohuman rights of children and women.” 147Two paragraphs are allocated to children’srights. The first talks, in general, about children’srights under the international instrumentsand the second paragraph states thatmany of the rights provided for children in theConvention of the Rights of the Child are relevantfor HIV prevention, care and support andgoes on to enumerate such rights. It issurprising that the right to protection fromillicit drugs as per CRC Article 33 is notdeemed at all relevant in this regard and hence,is not mentioned in this context.3.5.4. UNAIDS’s Policies on HumanRights and DrugsAs mentioned above, in the context of theInternational Guidelines on HIV/AIDS andHuman Rights 2006, even if the issue of drugcontrol is not directly addressed, the philosophyof UNAIDS permeates the text on severaloccasions. The document considers that anappropriate and human rights informedresponse to HIV/AIDS would imply legalreforms, establishment of enabling environmentsand the provision of services for vulnerablegroups which include, inter alia, druginjectors. Guideline 4 details the need for statesto review and reform their criminal laws andspecifies, among other things, that nationalpenal laws should not impede the adoption ofmeasures taken “to reduce the risk of HIVtransmission among injecting drug users andto provide HIV-related care and treatment forinjecting drug users. Criminal law should bereviewed to consider: the authorization orlegalization and promotion of needle andsyringe exchange programmes; the repeal oflaws criminalizing the possession, distributionand dispensing of needles and syringes.” 148The UNAIDS Strategy 2011–2015 Getting toZero, adopted by the Programme CommitteeBoard in December 2010, focuses on threeclear visions and goals, two of which specificallymention drug users. The first of these iszero new infections, which aims, amongstother things, to prevent all new infectionsamongst drug users. The second is zerodiscrimination, aiming, inter alia, to simultaneouslyreduce by half the number of countrieswith punitive laws and practices concernedwith HIV transmission, sex work, drug use orhomosexuality, that block effective responses.UNAIDS details its position considering that“Punitive laws, polices, practices, stigma anddiscrimination can block effective responses toHIV by driving people away from HIV services.They can reduce an individual’s ability toavoid HIV as well as impact people living withHIV.” 149 In the same way, law enforcement maydrive drug users away from HIV services.In our research we could not find any specific87

paper to illustrate the UNAIDS position onchildren, illicit drugs, and human rights.3.5.5. Positions of UNAIDS ExecutiveDirectorI. UNAIDS Executive Director Michael Sidibé’sexchange of letters with members ofInternational Drug Policy Consortium(IDPC) following a speech given at the IIIEastern Europe and Central Asia AIDSConference (EECAAC 2009), Moscow 150UNAIDS Executive Director Sidibé was afeatured speaker at the III Eastern Europe andCentral Asia AIDS Conference (EECAAC2009), Moscow, in October 2009. This speechled to a letter of reaction written on “behalf ofadvocates for harm reduction and the humanrights of people who use drugs in EasternEurope and Central Asia” 151 signed by representativesof NGOs affiliated to InternationalDrug Policy Consortium including EurasianHarm Reduction Network, Open Society Institute,Canadian HIV/AIDS Legal Network,Hungarian Civil Liberties Union, et al. 152The speechIn his Moscow speech UNAIDS ExecutiveDirector stated, among others, “Let me be clearabout the United Nations position on drug use.We are completely against drug use and legalizationof drugs. We consider that it is the dutyof each country to prevent its population fromstarting drug use and to fight illicit drug trafficking…Harm reduction has nothing to dowith the legalization of drugs. Harm reductionis a set of services for drug users that haveproven many times over to be safe and effective…I urge each country in the region todefine, within its legislation, the harm reductionpackage it needs, just like China has donewith great success.” 153NGOs Letter (rebuttal) to UNAIDS ExecutiveDirector Michael Sidibé on 5 November 2009A letter was issued in the name of “harmreduction” advocates and defenders of thehuman rights of drug users, 154 asking for clarificationon UNAIDS’ position on humanrights and drug use, indicating several problematicelements in the Moscow speech of theUNAIDS Executive Director:1. His statement that the UN is “completelyagainst drug use and legalization of drugs”;2. His urging of each country in the region to“define within its legislation the harmreduction package it needs, just like Chinahas done with great success”;3. His “repeated praise of the leadership andprogress of the Russian government in thefight against AIDS”. 155According to these advocates, these statementsare contrary to previous positions articulatedby UNAIDS and threaten to derail the effortsto remove the punitive laws related to drug use.The NGOs letter elaborates on each of theelements: On the issue of UN being “completelyagainst drugs and legalization of drugs… isto our knowledge without basis in UN policyand seems inconsistent with the philosophy ofharm reduction that you alluded to in yourspeech. Harm reduction recognizes that manypeople either cannot or will not stop usingdrugs and therefore seeks to minimize theharms related to drug use. It prioritizes protectionof the dignity and health of people whouse drugs over efforts to prohibit all drug use.By contrast, your statement comes dangerouslyclose to stigmatizing all people who use drugsas a population that the United Nations is‘against.’” 156With regard to urging countries to definewithin their legislation the harm reductionpackages needed, it states that “Unqualifieddeference to existing legislation undermines…andhinders the efforts of other UNagencies and civil society to reform these lawson the ground. In future speeches in theregion, and communications with officialsthere and elsewhere, we urge you to articulate88

the need and urgency for legal reform alignedwith HIV prevention and treatment for peoplewho use drugs.” 157Reply letter from Director Sidibé to the letterabove, 9 November 2009 158In his letter addressed to the “harm reduction”advocates and defenders of the human rightsof drug users, 159 UNAIDS Executive DirectorSidibé aimed to clarify that “My remarksclearly emphasized the unequivocal commitmentof the United Nations to the universalityof human rights and to effective harm reductionprogrammes as essential components ofthe response to HIV... It is important to make aclear distinction between ‘decriminalization’ ofdrug users and ‘legalization of illicit drug use’.In my Moscow remarks, I expressed thisdistinction clearly… I want to underline that…UNAIDS is unequivocal in our call for thedecriminalization of people who use drugs.” 160In context of the critique of his Chinaremark Director Sidibé stated, “I use thisopportunity to reaffirm the UNAIDS positionon harm reduction – the full package of harmreduction services should be implemented incountries where HIV is transmitted throughsharing of contaminated injecting equipment.Harm reduction has to be supported bynational legislation to be implemented safelyand with efficacy.” 161Concerning the issue of future opportunities,Executive Director Sidibé stated that “Theupcoming milestones of the 53rd Session ofthe Commission on Narcotic Drugs in Vienna,the Harm Reduction 2010 Conference in Liverpooland the XVIII International AIDS Conferencein Vienna present us with concrete opportunitiesto work together towards muchneeded progress.” 162UNAIDS Executive Director’s position on illicitdrug consumption decriminalization atthe International AIDS Conference 2010UNAIDS Executive Director Michel Sidibéparticipated in the XVIII International AIDSConference in Vienna 2010. The organisers ofthis Conference issued the so-called ViennaDeclaration, demanding a review of currentdrug policies and the decriminalisation of alldrug users. In an article from the publicationThe Body, there are some quotes from Mr.Sidibé’s position on criminalization, deemed asthe most important and urgent theme toaddress. In one picture, taken at the Viennameeting, Mr. Sidibé is seen holding up hishand, voting for the following statement on theboard in his background “We resolve thatharmful laws that criminalise sex work, druguse, drug possession, homosexuality and samesexrelationships, and HIV transmission mustbe repealed and must not be replaced with aregulatory system that is equally prejudicial.Not only do these laws lead to serious humanrights abuses, but they grievously hamperaccess to HIV services.” 1633.5.6. AssessmentUNAIDS is the newest of the UN bodies examinedin this chapter. The organisation hasgrown quickly in terms of visibility and seeminglyalso in funding.UNAIDS has a more focused mandate thanthe other UN entities discussed elsewhere inthis chapter, since it concerns only one disease.However, within that confinement, themandate of the Programme is quite broad andencompasses a complex range of interventions.This leaves UNAIDS freedom in devisingresponses, which basically should only becurtailed by existing UN hard law.The UNAIDS mandate does not addresshuman rights or other overall internationallaw, but it must be a basic assumption for allUN entities that they are democratically boundby hard law emanating from the UN MemberStates. Against this background, UNAIDS isfailing in its mandate in terms of human rightsand overall compliance with international lawwhen it seeks to put the interests of any drug89

user – injecting or not, addict or not – ahead ofan explicit protection provision for the mostvulnerable group of all, namely children.UNAIDS has a clear vision: “Zero new HIVinfections, zero AIDS deaths, zero discrimination.”164 UNAIDS “zero vision” is a usefulpolicy goal, regardless of whether it is 100%realistic in the short-, medium-, or even longterm.It is useful since it expresses a value thatsets the course for the ship, and from whichcoherent sub-policies can be devised. Theassumption of such an aspiration is nodifferent from a same policy goal on racism,corruption, or illicit drug use.So, turning to the issue of drugs: CouldUNAIDS be a partner in the overall UN drugpolicy goal on zero illicit drug use? No nondruguser will wake up one morning withphysiological needs indicating that “Today Ihave to smoke cannabis” (or consume anyother drug of abuse). Virtually all people willwake up at some point in their lives with sexualurgings. From this point of view, it must bemuch easier to bring drug use to zero, than it isto bring HIV infection to zero, which is primarilyspread through sexual transmission. Thatis, unless we deliberately decide to create andrecognize the value of a culture of drug use.Such a position would seem to be as absurd asthe idea of valuing the fact that we actuallyhave a number of people affected by a seriousdisease such as AIDS.Seemingly, all of the “harm reduction”organizations partnering with UNAIDS wouldfully disagree with the goal of zero drug use. Itseems clear that with regards to the approachto drug policy, the UNAIDS Executive DirectorMichel Sidibé and the organization’s humanrights chief Susan Timberlake have decided touncritically side with these NGOs instead ofclosely examining the human rights instruments,notably the Convention on the Rightsof the Child. Protecting children from any druguse is not optional; it is a human rights obligationand a minimum standard for 193 StatesParties and for the UN overall, yet UNAIDShas decided to make this provision optional.UNAIDS’s overall collaboration with antiprohibitionistNGOs, and Director Sidibé’sendorsement of the overall decriminalizationof drug use and a user-centred approach, seemto go against almost every point of UNAIDS’sown mission statement:Point 1. Addressing people most affected byAIDS: Those most affected by AIDS are poorchildren in Africa who have lost their parentsor at risk of losing them due to AIDS. Thedecriminalization of drugs seems likely to addanother burden to their lives: with oneexample being their possible recruitment inthe production or trafficking of cannabis inorder to facilitate the recreational use. Theconsequences of decriminalization are that thedrug users are protected and awarded a victimstatus whereas the risks children are exposed toincreases in drug availability and use. Theadded social burden in a society where anyadult can now possess/consume drugs withimpunity is hardly consistent with addressingthose most affected, namely children. Hence,UNAIDS’s user-centred, decriminalizationapproach goes against their own mission statementto address those most affected.Point 2. Human dignity and human rights:Many studies indicate drug use by parents orcaregivers as one of the risk factors for childmaltreatment and/or show how children inthese circumstances go to extreme lengths toprotect their drug-using parents and cover upfor them, forcing even very young children intopre-mature adulthood. This type of experiencescannot be deemed as contributing to thedignity of the child. The pivotal human rightsissue concerning drugs, CRC Article 33, hasbeen discussed in extenso above. UNAIDS haspaid no attention to this minimum standard ineither its papers or its public performances.This became particularly clear in the writtenanswer from UNAIDS Human Rights ChiefMs. Susan Timberlake to our question of how90

the organisation is approaching child rightsstandards. Mrs. Timberlake’s long answercompletely avoided addressing what the rightconcerns, namely protection from drug use,and to whom it belongs, respectively to all children,and instead discussed all drug users andchildren who use drugs. Hence, UNAIDS usercentered,decriminalization approach goesagainst their mission statements commitmentto dignity and human rights.Point 3. Mobilizing scientific resources to beaccountable for results: UNAIDS has nostudies to show that decriminalization and auser-centered approach reduce the lifetimeprevalence of drug use among children orreduce the number of children involved indrug production or trafficking. From a scientificpoint of view, the policy suggestions madeby UNAIDS seem not to conform to theaccountability criteria, but rather to have beeninduced by external agenda setters.Points 4 and 5. Empowerment to bringabout a prevention revolution and sustainableresponses: In the past, UNAIDS talked aboutthe injecting drug user; now the policy focus isany drug user, injecting or not, addict or not.The UNAIDS-led path of decriminalizationempowers recreational drug users in providingthem freedom to use drugs and giving themprotected status. This empowerment seems togo directly against the tandem of CRC’s imperativeto empower children’s rights and the UNdrug conventions imperative regarding nonon-medical drug use. This was, seemingly bymistake, admitted by Executive Director Sidibéin his Moscow speech when he stated that theUN is “completely against drug use and legalizationof drugs.” 165 But confronted by antiprohibitionistNGOs, UNAIDS ExecutiveDirector Michel Sidibé changed his positionand so this brief flicker of enlightenment wasquickly extinguished. UNAIDS has clearlymade overall prevention against drug use bychildren a non-issue and does not followUNICEF’s policy guidance that HIV/AIDSinterventions must not undermine childprotection. By working this way, UNAIDSseems to, apart from denying children the rightto protection as per CRC Article 33, also facilitateincreased acceptance of drug use. Sinceinjection drug use is one of the drivers of HIV,it seems that this is not a sustainable strategyand is not preventing either drug use or thespread of HIV.In summary, UNAIDS auditors should givethe grade “C” to the current leadership’s policychoices, in relation to the UNAIDS mandate/vision/mission statement regarding humanrights.The UNAIDS decision to devise humanrights guidelines in 2006, together withOHCHR, is a commendable initiative. But onthe issue of drugs this initiative was all formand no content. The purpose of the guidelinesis to assist states in creating a positive, rightsbasedresponse to HIV that is consistent withhuman rights and fundamental freedoms. Thedrug control issue is not mentioned in any ofthe 12 guidelines, but children are: Guideline 8calls for the creation of an enabling environmentfor children. Further down it is statedthat particular attention is to be paid to womenand children. In general the Guidelines’ statementsabout children are in line with childrights doctrine, but in reality UNAIDS seemsnot to have given these commitments a secondthought:• In what way does drug consumption anddecriminalization create an enabling environmentwhere all children are protectedagainst drug use, production, and trafficking?Would the issue of protection notrequire the reverse of this policy-making?Criminalization would likely be one of thefirst measures to be introduced in order tofacilitate protection and to send out asupporting signal that society is standingon the side of all children in this regard andwould help parents educate their childrento abstain from drug use.91

• In what way is particular attention paid tochildren when UNAIDS, throughout theirpapers and statements and even in answerto direct questions, proposes that the adultdrug user be the centre of attention for drugpolicy-making, and be seen as the primaryvictim?One would think that Executive DirectorSidibé, a former UNICEF official, could notreasonably be unaware of paragraph 6 inUNICEF’s Child Protection Strategy, whichstates “This strategy aims to reduce children’sexposure to harm by accelerating actions thatstrengthen the protective environment forchildren in all settings… All programmes andactions for the benefit of children’s health,education, participation or for addressing theimpact of HIV and AIDS should likewise bedesigned so as to strengthen protection, andmust never undermine it.” 166 In short, childprotection standards, including CRC Article33, should pre-vail when designing HIV/AIDSpolicy.UNAIDS leadership letter exchange withNGOs related to International Drug PolicyConsortium (IDPC), following ExecutiveDirector Sidibé’s Moscow speech, 2009The letter exchange between UNAIDS ExecutiveDirector Michel Sidibé and the representativesof some “harm reduction” NGOs is a clearillustration on how special interest groups aregiven a free rein to push policy through UNfigureheads.The 2009, Moscow speech by UNAIDSExecutive Director Sidibé should have comeacross as unremarkable. Mr. Sidibé was merelystating what has already been stipulated inwidely ratified UN hard law, 167 more preciselythat UN is “completely against drug use andlegalization of drugs. We consider that it is theduty of each country to prevent its populationfrom starting drug use and to fight illicit drugtrafficking.” 168 His speech was neither innovativenor passionate. The controversial elementin the Moscow speech could instead be, froman international law/human rights point ofview, the assumption that states have a legalobligation to implement “harm reduction”programmes or interventions. “Harm reduction”is not part of any international hard lawinstrument; for example, the InternationalNarcotics Control Board has been reticent inrelation to this approach because it does nothave a firm definition. 169If anyone had reason to complain about theMoscow speech, it would be the stakeholders ofexisting international law, notably states whohave adopted the present international legislation,and children who are explicitly subject toprotection by the same legislation. It is thereforesurprising that the reaction came from the“harm reduction” movement. For the lastgroup, clearly a broad endorsement of “harmreduction” was not enough.In the forceful “harm reduction” NGOsrepresentatives’ letter, which is extremelymeticulous on linguistic nuances, Mr. Sidibéwas asked to retract his comments. The letteralleged that it was wrong to say that UN wasagainst drugs use if Director Sidibé did not atthe same time say that he was for decriminalizationof this conduct. This clearly loops thelogic on why a convention is asking for criminalizationin the first place. Would a StateParty, having signed up to criminalize corruptionand making it a crime in national law, beadhering to the corruption convention if itlater issued an order to de facto decriminalizeall civil servants taking bribes? Even ProfessorKrzystof Krajewski is in his 1999 paper reacheda similar conclusion, considering that “in orderto retain the ‘spirit’ of the conventions, it isbetter to de-penalise rather than decriminalize…Although the practical effects of bothapproaches seem usually to be identical,decriminalization may be more prone tocharges of violating the 1988 convention.” 170Those writing on “behalf of advocates for92

harm reduction and the human rights ofpeople who use drugs” 171 also stressed that itwas wrong to say that the UN was against druguse, as this was “inconsistent with the philosophyof harm reduction” 172 and it was “stigmatizingall people who use drugs as a populationthat the United Nations is ‘against.’” 173 TheseNGOs make it very clear that drug users arenot only addicts, but anyone who does notwant to stop using drugs. Furthermore, it waswrong to say that countries could develop theirown “harm reduction” packages, within theirnational legislation.In short, the letter suggests that there is afixed and accepted definition of “harm reduction”which includes being neutral to drug use.Any drug user – addict or recreational – is to beconsidered as a victim. Decriminalization shallbe a mandatory policy, contrary to 1988 DrugConvention Article 3 (2), to CRC Article 33and to the ILO Convention 182 on the WorstForms of Child Labour. 174 It is nothing short ofremarkable that the Head of a UN entity, Mr.Sidibé, shall be expected to back up this positionbefore UN Member States, a positionwhich runs totally contrary to the presentinternational legal framework. 175One would expect that a UN entity chiefconcerned with his trustworthiness, theintegrity of his organisation, the fidelity to hismandate, which includes international law,and human rights as stipulated by hard lawinstruments, would be less than pleased withan extortion attempt like this.However, Executive Director Sidibé’s reactionis surprising. Firstly he clearly has madethe answering of this letter a high priority.Having just returned from Moscow, he immediatelyauthored a three page reply with a highlevel of detail and intricate discourse. Secondly,he took no issue with the above assertions ofthe NGOs, saying instead – against semanticsand logic – that in Moscow he underlined thecommitment to “harm reduction” pro -grammes, and made a clear distinctionbetween legalization and de-criminalization.Mr. Sidibé also underlined his commitment tothe “full package of harm reduction measures”,and undertakes to collaborate with the NGOson upcoming meetings, including the HarmReduction Conference in Liverpool, and theInternational AIDS Conference in Vienna.It is clear to a reader of this exchange thatthere is a 180 degree discrepancy between whatDirector Sidibé said in Moscow and what hesaid in his letter addressed to the representativesof “advocates for harm reduction and thehuman rights of people who use drugs.” 176 TheNGOs representatives’ letter, and its formulations,allows few conclusions other than that ofMr. Sidibé who considered that it was necessaryto put his credibility on the line, possiblyhoping that no one outside the NGOs wouldread this exchange, especially not a very significantUN Member State. UNAIDS ExecutiveDirector Sidibé deceived either the “friendsand colleagues“ 177 who took part at theEECAAC 2009 Conference in Moscow or theNGOs representatives’ “colleagues” 178 whoasked for explanations of his Moscow speech.However, we should note that the answer to theNGOs letter was the more recent one.It is also interesting to reflect on theanatomy of the pressure in the NGOs’ letter.Clearly these NGOs took it for granted thatthey would have the gravity to press a UNExecutive Director to recant and counter internationallaw. One is left with the impressionfrom the NGO letter and from Mr. Sidibé’sreply that the copying of this letter to theUNAIDS Reference Group on AIDS andHuman Rights might have added to this pressure.Overall, this exchange shows a remarkablestate of play where a small group of NGOs canuse a head of a UN body as their privatemouthpiece for disassembling internationallaw, including human rights law.We note that UNAIDS Executive DirectorSidibé made good on his reply letter’s promise93

of future collaboration, since he publiclybacked up the AIDS 2010 Vienna Declaration,demanding decriminalization of any druguser. 179However, it is noteworthy, on the positiveside that, as mentioned in the previous chapter,in its latest Political Declaration on HIV/AIDS adopted by the General Assembly on 10June 2011, UNAIDS seems to have returned tothe letter of the international law instrumentsstating in relation to the drug problem thefollowing: “Note with alarm the rise in the incidenceof HIV among people who inject drugsand that, despite continuing increased effortsby all relevant stakeholders, the drug problemcontinues to constitute a serious threat to,among other things, public health and safetyand the well-being of humanity, in particularchildren and young people and their families,and recognize that much more needs to bedone to effectively combat the world drugproblem.” 1803.6. ConclusionsUN Entities are lacking consideration forchildren rights when discussing drug policyOnly one of the five UN entities examined hada designated paper on human rights and drugcontrol, respectively UNODC. The 2010UNODC’s paper 181 is also the only one thatmentions Article 33 of the Convention of theRights of the Child, but it treats this humanrights provision in a extremely limited fashiondevoting it just one of its 61 paragraphs.When we approached these UN entitiesdirectly it appeared either: a) They had noknowledgeable focal point on the drugs/human rights nexus (OHCHR, UNICEF,WHO), or that b) The focal point was lackingknowledge/interest in children rights(UNODC and UNAIDS). Hence, all examinedUN agencies policy reflections are flawed withregard to the only human rights provisionconcerned with drugs, CRC Article 33, and tothe most ratified of all human rights instruments:the Convention on the Rights of theChild.While the human rights-based approach iscalling for a child-centered philosophy, UNentities are promoting a drug user centeredphilosophyThe above-noted lack of knowledge on children’srights created analytical shortcomingswhen the discussed UN agencies took positionsin drug-related matters. The positions takentended to treat all users (people affected by drugaddiction or not) as victims, and contributed tolegitimizing an activity – drug usage – that internationallaw instruments such as the Conventionon the Rights of the Child and the drugconventions have clearly cast as being illicit.At the same time, the above-mentioned UNagencies made no reflection on assessing howall children shall be protected from drug use,production, or trafficking, for example bygenerally treating drug use among adults as anillicit activity. UNODC opted to only discusschildren who are using drugs. In short, incontradiction to CRC Article 3 a user-centeredperspective was being promoted among theseUN entities, instead of a child-centeredperspective. This is comparable to a policysuggestion that the rights of an adult childpornography consumer should be consideredahead of the right of children to be protectedfrom sexual exploitation, in the context of CRCArticle 34.Overall, the UN entities fail to appreciate theimperative to treat CRC Article 33 as aminimum human rights standard. This is ofconcern not only with regard to Article 33, butto all human rights instruments. If these agencies/bodiesdo not apply a systematic rightsbasedapproach when dealing with humanrights issues, the rights will cease to beminimum standards, and will becomes insteadpolitical tools of convenience.94

Final ConclusionsLaws are not perfect instruments. The simplefact that we have certain legal provisions regulatingspecific areas of human life does notguarantee that there are not going to be flaws,problems or shortcomings. Existing laws mustbe implemented and observed, but even so,weaknesses and discrepancies might well exist.Legal systems, including the international one,are not like Moses’ Tablets of Stone; they areflexible in order to allow refinements. Laws canbe abrogated; treaties’ provisions can beamended; conventions can be revised, terminatedor suspended. New laws and treaties maybe adopted to fit new realities or problems. Forall these adaptations, there are firm legal mechanismsand this is why bypassing or ignoringlegal instruments should never be contemp -lated by States Parties as a viable optionwithout consideration of the further consequencesfor the whole international legal architecture.Moreover, we should never lose sightof the fact that the absence of law could lead tonothing but chaos. If certain legal provisionsexist, they have to be considered whendesigning policies, proposing programmes, orconstructing discourses in the areas addressedby these laws. The law should be the basis forall policy-making and human rights must betreated as minimum standards and not aspolitical expediencies.All these basic and commonsensical principles have been progressively abjured whilediscussing drug policy and human rights. It isdifficult to think of another policy area wherelegal principles are as severely under siege, evenby entities mandated to observe the existinglaws. In fact, there is no other legal/politicalsphere where prestigious professors in internationallaw/human rights and UN SpecialRapporteurs admonish the internationalcommunity to “forget about laws, be pragmatic”.1Indeed, there might not be any other areawhere human rights rhetoric is used to demonizemoral, when the very concept of rightsand implicitly the foundation of human rightsare a moral ones. As Profesor Louis Henkin, afounding father of the study of human rightslaw, put it: “Rights is a philosophical, ethical,and legal term. A right is a moral/legal claim asof right, not by grace, or love, or charity. Forour purposes, a right is a claim upon society,which has a legal, moral obligation to honorthe claim, to respect it, to ensure it, to helprealize it.” 2This publication is a search for answers. Wehave tried to understand why the present relevantlaws and provisions are avoided whenhuman rights and drug policy are discussed.We must ask why, instead of applying existinglaw, there is a larger interest in proposing newinformal settings defined as “pragmatic” or“evidence-based” (where the actual evidence isalmost never provided) which often collidewith the legal framework? At present thereexists a complex array of legal instruments,from conventions to “soft law” norms, relatedto both branches of international law (humanrights and international drug control) and totheir cohabitation. These instruments coveralmost all aspects of the matter of applicationof human rights norms to drug policy and95

allow the adoption of perfectly legal andappropriate measures.If all these instruments, or at least the fundamentaland legally binding ones, had beenconsidered when addressing human rights anddrug policy, then publications like this wouldbe unnecessary. In the present publication wehave tried to demonstrate that minimum standardsare not being observed in either in theactive sense, by considering them as startingpoints for policy-making or discussion, nor inthe passive sense, by enunciating the reasonswhy they are deemed as irrelevant and thereforeignored. In Chapters 1-3, we indicated thatthe Convention on the Rights of the ChildArticle 33, the only UN human rights conventionspecifically dealing with illicit drugs, is thevery provision that is ignored or, at best, mutilatedby various civil society organizations andeven by UN entities. Different propositionshave been advanced in relation to drug policyand human rights, many displaying a remarkablelack of concern about the legal obligationto protect children from illicit drugs or in relationto the possible consequences of suchpropositions on children’s lives. This trendruns contrary to the fact that CRC is a legallybinding international instrument. Moreover, itis the convention with the widest number ofratifications, which was established specificallyto enshrine in law the fact that children havecertain rights and that they are not just objectsof charity whose interests can be randomly deprioritizedby other interests. This is exactlywhy the “best interests” principle exists and itonly refers to children whenever it is includedin any human rights convention.Regarding international human rightsnorms and their application in the context ofthe international drug control policy, we couldidentify a whole spectrum of positions andopinions which severely depart from legality orgood sense. The legal consequences of thesepositions vary greatly. An ascending scale ofimmediate legal consequences of these positions,from the least harmful to the gravest andmost harmful position, might look like this:On the lower end of the scale we havevarious authors like Dr. Erik van Ree whodemands the addition of an Article 31, statingthat “Everyone has the right to usepsychotropic substances of one’s own choice”, 3to the Universal Declaration of Human Rights.He asserts, “Human rights concern forms ofbehaviour which we regard as positive andenriching for our lives to such a degree, that weexperience it as a violation of our personaldignity when we are forced to give them up.Drug use belongs in that category. Instead ofbeing included in the category of murder andrape, drugs should be appreciated as a culturalasset, similar to religion and art. Despite thepossibility of abuse, drugs provide its userswith access to a unique inner field of experience,that would remain closed for everwithout them.” 4 This type of assertion indicatesnot just a deep misunderstanding of thephilosophy and the context in which the Declarationof Human Rights was adopted in 1948,but also a misunderstanding of human rightslaws in general. However, this is simply theopinion of a private individual, without anyimmediate or direct legal implication. For thesake of debate, we may accept it and treat it forwhat it is: as a matter of private opinion.Ascending on this scale to the second step, itis far more troubling when renowned NGOsand humanitarian organizations, like HumanRights Watch (HRW) and InternationalFederation of Red Cross and Red CrescentSocieties (IFRC), launch abundant and persuasivecampaigns that exclusively promote drugusers’ interests by extensively using thelanguage of human rights. For example, IFRCrecommended in its 2010 Report, that “Allstakeholders need to empower and listen tothose who use drugs: Their voices need to beheard and their participation – in all aspects ofdecision and policymaking, planning andimplementation – is absolutely critical.” 596

It might be the first time in human rightshistory that NGOs, including human rights“defenders”, have deliberately worked toactively sideline a human rights provision,namely CRC Article 33. The end goal of thisundertaking is the replacement of themandated vulnerable group (all children) witha special interest group (any drug user, recreationalor addict) as victims, suggesting thatbreaking the law (e.g. possession for personaluse, penalized according to the 1988 ConventionArticle 3(2)) is the constitutive element fordefining victim status.The group of authors and NGOs discussedin Chapter 2 is far from being homogenous, yetcertain common goals or denominators can beidentified in their arguments. For example, theintention to shed or invalidate the internationaldrug control regime, to make drugconsumption seem like an accepted behaviour,normalizing this conduct and to elevate theinterests of drug users over other categories,including children. Drug users are therebyreleased of any personal or social responsibilityand the whole of society is held accountableand is deemed culpable for the inconveniencesthis group might experience in their lives.According to these positions, the drug usershave to be protected not only from the harmfulphysical and mental health risks of the illicitdrugs they decide to ingest or inject, but alsofrom the harm arising from drug control policies,a unique concept which makes the existenceof legal regulations look completely illogical.Moreover, this “obligation” to prioritizeand protect the illicit drug users has beenenvisaged in such a way that nobody intervenesin the users’ private sphere or exercises anyconstriction over their free choice to illicitlyconsume drugs. Even if there are three inter nationalconventions aimed, inter alia, atrestricting the illicit consumption of narcoticdrugs and psychotropic substances and variousnational laws and policies branching from thisinternational obligation, the unwillingness tostop drug use is deemed as a perfectly legaloption for the user.During the past decade, a complex set ofknowledge related to drug policy has beendeveloped and advanced by certain individualsand NGOs. This “knowledge kit” focuses onhow to avoid legal obligations, bypass legalprovisions, dismiss treaty body advice, effectivelyuse human rights language to advancecertain interests and values (some runningagainst human right law), and use language ingeneral to induce certain ideas. These argumentsand discourses have been refined overtime to become omnipresent and highlypersuasive today. Recently these ideas havebeen transposed into educational material andthey are handed over to the next generation atthe Summer Course (CEU), of BudapestCentral European University: “Human Rightsand Drug Policy”, organized in cooperationwith the Open Society Institute. The cadre ofteachers at this course is a who’s-who of theauthors discussed in Chapter 2 (as far as can benoted, no pro-UN drug conventionsspeakers/faculty members were invited, indicatingan ideological stance by CEU). 6At the next, the third step of seriousness, it isof more concern to have one of the largestnetworks of child rights organizations, ChildrenRights Information Network (CRIN),advocating for drug use decriminalizationwithout taking into consideration that childrenhave a legal right to protection from theillicit use of narcotic drugs and psychotropicsubstances and from getting involved in theillicit production and trafficking of suchsubstances, as stipulated by the Article 33 ofthe Convention on the Rights of the Child.On the fourth step of the scale, the perturbationincreases exponentially as we areapproaching the UN. Professor ManfredNowak, 7 during the time when he was acting asUN Special Rapporteur on torture and othercruel, inhuman or degrading treatment orpunishment, advised the international97

community to “forget about laws, be pragmatic”.8 While one should note that some aimsinvoked in this context, like that of preventingHIV and other diseases, are undeniably important,it is nevertheless astounding that aprofessor in human rights law invites us to“forget about laws”, abandon moral and be“pragmatic”. Should one conclude from thisadvice that the aim always justifies the means,even to the extent of ignoring internationallaw, or human rights provisions? ProfessorNowak’s assertion begs several questions: Whois the person with the authority to definewhich areas should be considered in suchterms, or define the borders of the so-called“pragmatism”? Is such an approach not to beconsidered a threat to the human rights regimein its entirety? Could we not comprehend thetorture that regrettably happened in GuantánamoBay and other similar places as based onan almost identical logic as the one proposedby Professor Nowak, where people forgotabout laws and morals and acted pragmaticallyin response to a “security threat”? What otherhuman rights violations could inevitablyfollow such an approach? It seems aberrantthat Professor Nowak, who issued reportscondemning the use of torture at the detentionfacilities at Guantánamo Bay, is the sameperson proposing such an approach in anotherpolicy area, which could well be seen to justifyor lead to the same effects as the ones hecondemned.It is also highly problematic to have hadAnand Grover, the Special Rapporteur on theright of everyone to the enjoyment of thehighest attainable standard of physical andmental health, issue a report which advocatedfor the decriminalization of drug use and thelegalization of illicit drugs 9 , while giving noconsideration as to how such solutions wouldaffect children and their rights, even ifaccording to his mandate he is asked to payspecial attention to the needs of children. 10Moreover, this report is informative because itclearly indicates that the ultimate goal of thistype of engagement is not the decriminalizationof drug use/possession but the overalllegalization of drugs. The report shows thatpromotion and imposition of “harm reduction”and decriminalization for drug use isclearly not the end station, but the penultimatestop on the journey towards the final destination,which is the legalization of illicit drugs;hence, the complete demolition of the internationaldrug control regime and bastardisationof children’s rights.Mr. Grover’s incursion into drug policybecomes even more obstinate if we are toconsider his more informal views on this issue.In his hour-long discussion the day after hispresentation at the UN, on 26 October 2010 atGeorge Soros’ Open Society Institute in NewYork 11 , Mr. Grover made it clear that he favorsthe legalization of drugs on ideologicalgrounds, apparently without regard for thepublic health or public safety implications ofsuch an action. According to common logic, ifthe rates of HIV/AIDS decrease any place inthe world we should consider it as positivenews. Paradoxically, these sentiments are notshared by some of the main players in the fieldof human rights, such as the UN HealthRapporteur Anand Grover. Asked in October2010 if the political space to discuss drugdecriminalization exists, Mr. Grover’sexpressed his regret that HIV incidence isdecreasing, stating “I am sorry to say that thepolitical space is dwindling, because HIV was abig space and HIV is actually, you know, theincidence of HIV is coming down in Asia, weare losing that space and that is theproblem...That is a space still open. How longit will be open? We don’t know.” 12 This statementindicates that Mr. Grover, the UN SpecialRapporteur on health, is unconcerned aboutthe 30 million people living with HIV worldwide,including 2.5 million children under 15years, and that they are considered by him justas simply pawns or a manoeuvre mass for98

achieving different agendas, including illicitdrug use decriminalization or legalization.Ascending to the fifth step on the scale ofseriousness, the whole picture becomes fundamentallydifferent when such approaches comefrom within the UN system. UN agencies andbodies embody the international legal order.Although with no lawmaking capabilities,people and governments around the world willoften perceive UN agencies’ views and actionsas manifestations of the international legalorder. What the UN does and the positions thatit articulates can influence opinion in manycountries. Therefore, from the fifth stageupwards, the consequences of these positionsbecome more relevant.It might also be the first time in humanrights history that UN bodies have beenavoiding their homework for more than twodecades (i.e. study and suggest policies tosupport CRC Article 33), but instead haveremained inert, allowing themselves to beprogressively overtaken by the “human rights”rhetoric of certain NGOs which propose anexclusive drug user-centered focus.In Chapter 3, we indicated the uncriticalacceptance of this drug user-centeredapproach and the dismissive attitude towardsthe rights of the child displayed by several UNentities, including the High Commissioner forHuman Rights, the United Nations Office onDrugs and Crime (UNODC), World HealthOrganization (WHO) and the Joint UnitedNations Programme on HIV and AIDS(UNAIDS).As the starting point of this publication, weposit the fundamental need to promote,protect and respect children’s rights. Thereforeit is appropriate that the last two stages ofseverety are reserved for the two UN entitieswhich are specifically mandated to ensure thepromotion, protection and observance ofchild ren’s rights.Therefore UNICEF, is on the sixth step onthe scale. For over 20 years, UNICEF has hadno initiative or vision in relation to the specialprotection measure of CRC Article 33, andinstead has continuously avoided it. Morerecently, in 2010, UNICEF decided to blendinto the scenery and advocate for the removalof punitive laws for drug use 13 without givingany due attention or explanation as to howsuch an approach conforms to the childrenrights doctrine or how it is going to influencethe involvement of children in the illicitproduction and trafficking of narcotic drugsand psychotropic substances. UNICEF’s 2010position is part of a recent trend that is likely tocontinue or even progress with the naming ofCraig McClure as Chief of its HIV/AIDSsection in December 2011. Although Mr.McClure has extensive expertise related toHIV/AIDS, he also has an extremely clearvision in relation to drug policy which appearsto be as far as it gets from being child-centered.In a “blistering speech, full of righteous indignation’’,at the International Harm ReductionConference in Bangkok (23 April 2009), CraigMcClure, Executive Director of the InternationalAIDS Society, 14 made the followingstatement: “My first observation is how all ofus continue to talk about people who use drugsas ‘other’. We use terms like ‘drug abuser’, ‘druguser’ and even ‘person who uses drugs’ as ifsome of us do not use drugs. But which one ofus does not use a drug that alters our mood,our consciousness of pain, our physical oremotional state? A joint, a dab of speed, a lineof coke, a tab of ecstasy, a shot of heroin. Eventhe last three Presidents of the United Statesbetween them have admitted using some ofthese. A pint of beer, a glass of wine, a shot ofwhisky. A cigarette. A cup of coffee or tea. Apain relieving medication, an anti-depressant,a valium, a sleeping pill. We are all people whouse drugs. Our refusal to acknowledge this is allabout our fear that ‘we’ might become, or beseen as, one of ‘them’.” 15While noting that Mr. McClure’s assertionhas certain common points with the Release’s99

2010 campaign Nice People Take Drugs, 16 it issuperfluous even to start detailing the legalimprecision and implications of such a statementor to mention that according to the 1988Convention Article 3(1, c, iii), “Publiclyinciting or inducing others, by any means...touse narcotic drugs or psychotropic substancesillicitly” 17 is a criminal offence. 18 However, wewould like to point out the inappropriatenessof such a philosophy for somebody who isdealing with children’s needs and rights andshould therefore make sure that “Allprogrammes and actions for the benefit ofchildren’s health, education, participation orfor addressing the impact of HIV and AIDSshould likewise be designed so as to strengthenprotection, and must never undermine it.” 19Telling children that it is just normal to have a“a joint, a dab of speed, a line of coke, a tab ofecstasy, a shot of heroin” 20 as “all of ‘us’ aredoing” and that “we” should indulge “ournormality” while increasing the number ofchildren that are recruited into drug productionand trafficking to fuel “our normality”,will be neither beneficial to children’s healthand education, nor conform with the childrights doctrine, as per the Convention on theRights of the Child.This brings us to the seventh step, thehighest and most serious breach of duty: theCommittee on the Rights of the Child, the verytreaty body for the Convention on the Rightsof the Child. The Committee has been more orless silent on the matter of children’s right to beprotected from narcotic drugs andpsychotropic substances for over 20 years, savefor the laconic and detached concluding observationsrelated to CRC Article 33 on StateParties reports and the two stupefying decisionstaken in 2010 and 2011: the mutilation ofCRC Article 33 21 and the recommendation ofindefinable “harm reduction” for childrenwithout any further elaboration on thisconcept. 22Looking at the latest developments in thisfield, we can see that a general trend hasemerged where children’s right to protectionfrom illicit drugs is treated as the lowest cast ofhuman rights, deserving neither lip service,nor any intellectual effort.At present, according to official estimations,there is an alarming figure of 210 millionpersons who use illicit drugs each year 23 out ofthe 7 billion 24 global population. However, forthe 97% of the world population who do notuse, and are not involved in the production anddistribution of drugs, 25 drug policy may not bean obvious priority. Despite the fact that drugpolicy has deeper implications that directlyaffect all of us, for example, in our access tomedicine, many people would feel unconcernedabout recent policy shifts in drug policyor by the changing rhetoric involved in thisarea. Nevertheless, if we are to accept thereplacement of present laws with lax conceptsand “pragmatism” in one area of policy, otherareas of perceived greater concern may betargeted with similar approaches. If we are totransplant this type of rhetoric, as indicated inthis publication, into another aspect of life towhich we feel much closer, we might have toaccept a solution we are not at all prepared for.Allow this trend to establish a precedent in onearea and tomorrow we might have similarcampaigns on sexual abuse, human trafficking,discrimination, corruption, et cetera, or anydomain you might care about, where laws areforgotten, morality is ridiculed, the perpetrator’s“rights” are elevated over the victims’rights, and the penalized conduct is normalizedand deemed as a matter of personalchoice.Obviously, if human rights violations occurin the field of drug control they should berevealed, addressed and remedied according tothe existing law. In this regard, any interventioncoming from the UN system or from civilsociety organizations is salutary.Laws, as imperfect as they may be, are theonly source of accountability and foresee-100

ability. Henceforth, LET US NOT FORGETABOUT LAWS. Let us apply the law and workwithin the existing legal framework to ensurethat the rights of the victims and the perpetratorsare respected.Even if international drug policy is woundedby episodic, sparse and sometimes severehuman rights violations, we should note thatthese violations are not prescribed by the legalinstruments, on the contrary. The solution isnot to amputate the whole limb but to treat thewounds. “Medicines”, or “treatment” methods,exist. We have nine core human rights treatiesand a great number of additional non-bindinginstruments adopted over time. Therefore LETUS IMPLEMENT THE LAWS.101

NotesIntroduction1 Convention on the Rights of the Child is the mostratified human rights instrument and the only one inthis regime addressing illicit drugs. Article 33 stipulatesthat “States Parties shall take all appropriate measures,including legislative, administrative, social andeducational measures, to protect children from theillicit use of narcotic drugs and psychotropic substancesas defined in the relevant international treaties, and toprevent the use of children in the illicit production andtrafficking of such substances.”2 International Labour Organization Convention 182 of1999, Article 3(c).3 WHO, UNICEF, UNAIDS, Towards universal access:Scaling up priority HIV/AIDS interventions in the healthsector, 28 September 2010, 106.4 Committee on the Rights of the Child, Treaty-specificguidelines regarding the form and content of periodicreports to be submitted by States parties under article 44,paragraph 1 (b), of the Convention on the Rights of theChild, adopted by the Committee at its fifty-fifth session(13 September-1 October 2010), (CRC/C/58/Rev.2) andAnnex to the General Guidelines Regarding the Form andContents of Periodic Reports to Be Submitted By StatesParties under Article 44, Paragraph 1 (B), of the Convention,1 October 2010.5 The idea of including the issue of illicit drug use,addressed at present by Article 33, in the Conventionon the Rights of the Child was originally proposed bythe Chinese delegation, as sub-paragraph (d) of Article12 on the right to health: “preventing and prohibitingthe child from using drugs.” In 1984 the InternationalFederation of Women in Legal Careers proposed “thata new article concerning sources of serious damage tochildren’s health other than disease and malnutrition,namely: domestic violence; use of drugs of whateverkind; harmful labour; traditional practices affectinghealth” should be included in the Convention. From1984 to 1989, when the text was adopted, the issue ofillicit drug use has been an integral part of this distinctArticle, no.18 then and no. 33 at present.Office for United Nations High Commissioner forHuman Rights, Legislative History of the CRC, Volume II,United Nations, New York and Geneva, 2007, 709-712.6 Office of the United Nations High Commissioner forHuman Rights (OHCHR), Fact Sheet No.10 (Rev.1), TheRights of the Child, 6.http://www.ohchr.org/Documents/Publications/FactSheet10Rev.1en.pdf.7 “Upon assuming his or her duties, each member of theCommittee shall make the following solemn declaration inopen Committee”. Rule 15, Committee on the Rights ofthe Child, Rules of procedure (Provisional rules ofprocedure adopted by the Committee at its 22ndmeeting (first session) and revised by the Committee atits thirty-third and fifty-fifth sessions, respectively),CRC/C/4/Rev.2, 2 December 20108 Geneva Declaration of the Rights of the Child, 1924.9 World Conference on Human Rights, ViennaDeclaration and Programme of Action, A/CONF.157/23,12 July 1993, paragraph 21.10 National Society for the Prevention of Cruelty toChildren (NSPCC), ChildLine Casenotes, A series ofreports on issues facing children today, Children talkingto ChildLine about parental alcohol and drug misusehttp://www.nspcc.org.uk/inform/publications/casenotes/clcasenoteparentalalcoholdrugabuse_wdf78112.pdf.11 National Society for the Prevention of Cruelty toChildren (NSPCC), ChildLine Casenotes, A series ofreports on issues facing children today, Children talkingto ChildLine about parental alcohol and drug misuse.http://www.nspcc.org.uk/inform/publications/casenotes/clcasenoteparentalalcoholdrugabusewdf78112.pdf.12 National Society for the Prevention of Cruelty toChildren (NSPCC), ChildLine Casenotes, A series ofreports on issues facing children today, Children talkingto ChildLine about parental alcohol and drug isuse.http://www.nspcc.org.uk/inform/publications/casenotes/clcasenoteparentalalcoholdrugabuse_wdf78112.pdf.13 National Society for the Prevention of Cruelty toChildren (NSPCC), ChildLine Casenotes, A series ofreports on issues facing children today, Children talkingto ChildLine about parental alcohol and drug misuse.http://www.nspcc.org.uk/inform/publications/casenotes/clcasenoteparentalalcoholdrugabuse_wdf78112.pdf.14 The Institute of Alcohol Studies, “More than 100children a week contact ChildLine with worries about theirparents’ drinking or drug use”, Issue No 2 2010,http://www.ias.org.uk/resources/publications/alcoholalert/alert201002/al201002_p154a.html.15 The Institute of Alcohol Studies, “More than 100children a week contact ChildLine with worries about theirparents’ drinking or drug use”, Issue No 2 2010,http://www.ias.org.uk/resources/publications/alcoholalert/alert201002/al201002_p154a.html.16 The European Monitoring Centre for Drugs and DrugAddiction (EMCDDA), Thematic papers “Children’svoices. Experiences and perceptions of European children ondrug and alcohol issues”, Lisbon, May 2010, p.14,http://www.emcdda.europa.eu/publications/thematicpapers/childrens-voices.17 The European Monitoring Centre for Drugs andDrug Addiction (EMCDDA), Thematic papers “Children’svoices. Experiences and perceptions of European children ondrug and alcohol issues”, Lisbon, May 2010, p.24,102

http://www.emcdda.europa.eu/publications/thematicpapers/childrens-voices.18 The European Monitoring Centre for Drugs andDrug Addiction (EMCDDA), Thematic papers “Children’svoices. Experiences and perceptions of European children ondrug and alcohol issues”, Lisbon, May 2010, p.22,http://www.emcdda.europa.eu/publications/thematicpapers/childrens-voices.1. The Right of Children toProtection from Narcotic Drugsand Psychotropic Substances1 Nagendra Singh, The UN and the Development ofInternational Law, in Adam Roberts, Benedict Kingsburyed., United Nations, divided world: the UN’s roles ininternational relations, second edition, OxfordUniversity Press, 2000, 384.2 For example:Australian Government, Department ofForeign Affairs and Trade (DFAT), Chris Moraitis,International Legal Division, Treaties in the GlobalEnvironment. Sources of International Law – The Place ofTreaties, November 17, 2004.“Since WWII, treaties have assumed a clear prominenceas the primary source of law-making on theinternational plane. Especially multilateral treaties…With the increased focus on relations between Statesthat comes with globalisation, there has been greaterpressure and demand to codify rules obtaining betweenthose States. This codification has been done mainlythrough treaties because they are a relatively simple,clear and quick way of crystallizing existing internationalrules and developing new ones. Indeed, it is nowcommonplace for legal scholars to classify thosetreaties which lay down universal (or even fairlygeneral) rules governing international society as ‘lawmaking’or ‘normative’ treaties… So-called ‘normativetreaties’ are:• characterised metaphorically as ‘internationallegislation’, and• extolled as necessary to accommodate the urgentdynamics that are transforming internationalrelations.”http://www.dfat.gov.au/treaties/workshops/treaties_global/moraitis.html.3 The Statute of the International Court of Justice isannexed to the United Nation Charter.4 According to Article 38(1) of the Statute of theInternational Court of Justice:“1. The Court, whose function is to decide inaccordance with international law such disputes as aresubmitted to it, shall apply:a. international conventions, whether general orparticular, establishing rules expressly recognized by thecontesting states;b. international custom, as evidence of a generalpractice accepted as law;c. the general principles of law recognized by civilizednations;d. subject to the provisions of Article 59, judicialdecisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means forthe determination of rules of law. “5 Ulf Linderfalk, On the Interpretation of Treaties. TheModern International Law as Expressed in the 1969 ViennaConvention on the Law of Treaties, Law and PhilosophyLibrary 83, Springer Publishers, 2007.(Editor’s note: parenthesis in the quote added here forclarification.)6 Malcolm D. Evans ed. “International Law”, SecondEdition, Oxford University Press, 2006, p.119.7 “In order to become a party to a multilateral treaty, aState must demonstrate, through a concrete act, itswillingness to undertake the legal rights and obligationscontained in the treaty. In other words, it must expressits consent to be bound by the treaty. A State canexpress its consent to be bound in several ways, inaccordance with the final clauses of the relevant treaty.The most common ways, as discussed below, are: (a)Definitive signature; (b) Ratification; (c) Acceptance orapproval; and (d) Accession.” UN Treaty Section of theOffice of Legal Affairs, Treaty Handbook, United Nations,2006, paragraph 3.3.1, 8.8 This rule is derived from Roman law in the form ofthe maxim pacta tertiis nec nocent nec prosuntagreementsneither impose obligations nor conferrights upon third parties.9 As explained by Malgosia Fitzmaurice, this rule “hasbeen recognised in states’ practice as fundamental, andits existence has never been questioned. For statesnon-parties to a treaty, the treaty is res inter alios acta.”Malgosia Fitzmaurice, ‘Third Parties and the Law ofTreaties’, Max Planck Yearbook of United Nations Law,Volume 6, 2002, 37.Res inter alios acta or in complete version Res inter aliosacta alteri nocere non debet is translated as: “Things donebetween strangers ought not to injure those who arenot parties to them”. Henry Campbell Black, ed., Black’sLaw Dictionary, second ed, St. Paul, West Publishing Co.,1995, 1024.10 “Draft Articles on the Law of Treaties with commentaries1966”. Text adopted by the International LawCommission at its eighteenth session, in 1966, andsubmitted to the General Assembly as a part of theCommission’s report covering the work of that session,Yearbook of the International Law Commission, 1966, Vol. II,Section 4: Treaties and third States, 226.11 This rule is expressed in the Art. 34 of the ViennaConvention on the Law of Treaties, 1969.VCLT Articles 34-38 refer to the issue of third states.12 There are over 500 major multilateral instrumentsdeposited with the Secretary-General of the United103

Nations (as of 1 January 2009).http://treaties.un.org/Pages/Overview.aspx?path=overview/overview/page1_en.xml.13 Ulf Linderfalk , On the Interpretation of Treaties. TheModern International Law as Expressed in the 1969 ViennaConvention on the Law of Treaties, Law and PhilosophyLibrary 83, Springer Publishers, 2007, 1.14 Peter Malanczuk, Akehurst’s Modern Introduction toInternational Law, 7th rev. ed., Routlege, 1997, 54.15 Malcolm D. Evans ed., International Law, second ed.,Oxford University Press, 2006, 183.16 See http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml#ratification.It is also important to distinguish between ratification atinternational level and ratification at national level.“Ratification at the international level, which indicatesto the international community a State’s commitmentto undertake the obligations under a treaty, should notbe confused with ratification at the national level, whicha State may be required to undertake in accordancewith its own constitutional provisions before itexpresses consent to be bound internationally.”UN Treaty Section of the Office of Legal Affairs, TreatyHandbook, United Nations, 2006, paragraph 3.3.2, 9.17 According to VCLT Art. 2(1,d) “‘reservation’ means aunilateral statement, however phrased or named, madeby a State, when signing, ratifying, accepting, approvingor acceding to a treaty, whereby it purports to excludeor to modify the legal effect of certain provisions of thetreaty in their application to that State.” Reservationsare different from interpretative declarations.18 Some treaties, such as The Rome Statute of theInternational Criminal Court, 1998; the Agreementrelating to the implementation of Part XI of the UnitedNations Convention on the Law of the Sea of 10December 1982, 1994, treaties specifically prohibitreservations, but this has to be stipulated by the treatyitself.However, specific rules applicable to reservations areprovided for in the Art. 19- 23 VCLT.19 Art. 19 Formulation of reservations, ViennaConvention on the Law of Treaties, 1969.20 See Anex1.21 Art. 27 Internal law and observance of treaties, ViennaConvention on the Law of Treaties, 1969.22 1969 Vienna Convention on the Law of Treatiesconcerns treaties concluded among states. It was Signedin Vienna on 23 May 1969 and entered into force on 27January 1980.23 Art 2 (1)( a), Use of terms, Vienna Convention on theLaw of Treaties, 1969.24 Latin: “agreements must be kept”. The pacta principleis considered to represent the principle of sanctity ofcontracts. As Anthony Aust put it “The pacta suntservanda rule embodies an elementary and universallyagreed principle fundamental to all legal systems(General Principles of Law). Although its good faith (bonafide) element runs through many aspects ofinternational law—and the legal effect of certainunilateral statements rests on good faith—it is of primeimportance for the stability of treaty relations (treaties).The oft-quoted Latin phrase means no more than thatagreements which are legally binding must beperformed. The third preamble to the Vienna Conventionon the Law of Treaties (1969) (‘VCLT’) notes that ‘theprinciples of free consent and of good faith and thepacta sunt servanda rule are universally recognised’.In its final report and set of draft articles withcommentary on draft Art. 23 VCLT (later Art. 26 VCLT),in para. 1 the International Law Commission (ILC) saw thephrase as representing ‘the fundamental principle of thelaw of treaties’.”Anthony Aust, Pacta Sunt Servanda, Max Planck Institutefor Comparative Public Law and International Law,Heidelberg and Oxford University Press, 2011.http://ilmc.univie.ac.at/uploads/media/pacta_sunt_servanda_aust.pdf.25 Art. 26 “Pacta sunt servanda”, Vienna Convention onthe Law of Treaties, 1969.26 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 211.27 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 211.28 Art. 30 Application of successive treaties relating to thesame subject matter, Vienna Convention on the Law ofTreaties, 1969.29 Listing of the nine core conventions, as per OHCHRwebsite, see: http://www2.ohchr.org/english/law/.30The Universal Declaration of Human Rights (UDHR),adopted by the United Nations General Assembly in1948, together with the two Covenants from 1966 andtheir Optional Protocols are the three components ofthe International Bill of Human Rights.31 Ratification numbers of the Nine Core Conventions,see: http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en.32 Article 33 of the Convention on the Rights of theChild.104

33 This pace was unprecedented. By comparison themajor 1966 Covenants on Civil and Political Rights, andEconomic, Social and Cultural Rights took ten years toeven get the minimum amount of ratifications (35) toenter into force.34 Convention on the Rights of the Child, New York, 20November 1989, status as at 2011. Signatories : 140.Parties : 193,http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.35 Geneva Declaration of the Rights of the Child, 1924.36 Article 25 (2) of the Universal Declaration of HumanRights states that: “Motherhood and childhood areentitled to special care and assistance. All children,whether born in or out of wedlock, shall enjoy thesame social protection.”37 For example International Covenant on Civil andPolitical Rights provides in Art. 24: “1. Every child shallhave, without any discrimination… the right to suchmeasures of protection as are required by his status asa minor, on the part of his family, society and the State.;2. Every child shall be registered immediately after birthand shall have a name;3. Every child has the right toacquire a nationality.”Also Art. 6(5) stipulates that “Sentence of death shallnot be imposed for crimes committed by personsbelow eighteen years of age…” Art. 10 (2) (b) providesthat “Accused juvenile persons shall be separated fromadults and brought as speedily as possible foradjudication.”38 The International Covenant on Economic, Social andCultural Rights Art.10 stipulates that: “Special measuresof protection and assistance should be taken on behalfof all children and young persons without anydiscrimination… Children and young persons should beprotected from economic and social exploitation…”;Art. 12 on the right to the highest attainable standardof physical and mental health states that the stepsStates parties have to take for the full realization of thisright shall include, inter alia, those necessary for: a)“The provision for the reduction of the stillbirth-rateand of infant mortality and for the healthy developmentof the child”.39 For example Art. 5(b) indicates the need to recognize“of the common responsibility of men and women inthe upbringing and development of their children, itbeing understood that the interest of the children is theprimordial consideration in all cases.” Art. 16 deals withthe betrothal and the marriage of a child.40 The International Covenant on Civil and PoliticalRights and the International Covenant on Economic,Social and Cultural Rights from 1966.41 Thomas G. Weiss, Sam Daws ed., The OxfordHandbook on the United Nations, Oxford UniversityPress, 2009, 513.42 Some States Parties as: Iran, Kuwait, Mauritania,Qatar, Saudi Arabia and Syria made reservations on allprovisions of the Convention on the Rights of the Childthat are incompatible with the laws of Islamic Shari’a.However, this general reservation is not affecting Article33 CRC. According to our knowledge under the Shari’alaw it is made clear that “God has permitted that soundintellect and knowledge be promoted, and forbiddenthat which corrupts or weakens it, such as alcohol anddrugs. He has also imposed preventative punishments inorder that people stay away from them, because asound intellect is the basis of the moral responsibilitythat humans were given.”http://www.bbc.co.uk/religion/religions/islam/beliefs/sharia_1.shtml.The Qur’an- 5. The Feast (Al- Ma’ida)-90 reads: “youwho believe, intoxicants...are repugnant acts- Satan’sdoing- shun them so that you may prosper. 91. Withintoxicants and gambling, Satan seeks only to inciteenmity and hatred among you, and to stop youremembering God and prayer. Will you not give themup?”43 Office for United Nations High Commissioner forHuman Rights, Legislative History of the CRC, Volume I,709–711.44 Office for United Nations High Commissioner forHuman Rights, Legislative History of the CRC, Volume I,709–711, section C point 4 ff.45 European Monitoring Centre for Drugs and DrugAddiction (EMCDDA) is using five key indicators “forproviding factual, objective, reliable and comparableinformation on drugs and drug addiction at Europeanlevel”. EMCDDA’s first indicator is based on GeneralPopulation Surveys, and includes questions aboutlifetime prevalence of drugs use (one or more times).EMCDDA’s second indicator concerns “problematicuse”. Problem drug use is defined as ‘injecting drug useor long-duration/regular use of opioids, cocaine and/oramphetamines’. By ordinary wording, in the EU context,“abuse” would pertain to problematic use, whereas“use” would pertain to anything less than that, fromlifetime use and onwards.46 Art. 3 of the ILO Convention 182, ConventionConcerning the Prohibition and Immediate Action forthe Elimination of the Worst Forms Of Child Labour,defines the term “the worst forms of child labour”.It might be worth noting the company of Article 3 (c):Article 3 (a) concerns child slavery, sale and traffickingof children, forced or compulsory labour, includingforced or compulsory recruitment of children for usein armed conflict; Article 3 (b) concerns childprostitution/pornography; Article 3 (d) is a generalclause for work of equal threat to childrens health,safety, and morals.47 http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C182.48 R190 Worst Forms of Child LabourRecommendation, 1999, paragraph 11.105

http://www.ilo.org/ilolex/cgi-lex/convde.pl?R190.49 R190 Worst Forms of Child LabourRecommendation, 1999, paragraph 12.http://www.ilo.org/ilolex/cgi-lex/convde.pl?R190.50 Article 19 paragraph 1 provides: “States Parties shalltake all appropriate legislative, administrative, social andeducational measures to protect…” Article 33 stats:“States Parties shall take all appropriate measures,including legislative, administrative, social andeducational measures, to protect…”51 General Comment No. 13 (2011) on article 19: Theright of the child to freedom from all forms of violence,CRC/C/GC/13, 17 February 2011, paragraph 37.52 Paulo Sérgio Pinheiro, Independent Expert for theUnited Nations, Secretary-General’s Study on Violenceagainst Children, World Report on Violence againstChildren, 2006. The Study indicates parents or caregiverssubstance abuse as one of the factors contributing toviolence against children, p. 66 and 68. It also indicatesthat childhood experience of violence leads to drugabuse, 64-65.53 Similar findings are indicated in the WHO Fact sheetN°150, August 2010, Child maltreatment.http://www.who.int/mediacentre/factsheets/fs150/en/index.html.54 General Comment No. 13 (2011) on article 19: Theright of the child to freedom from all forms of violence,CRC/C/GC/13, 17 February 2011, paragraph 39.55 The respective Notes from the UNODC ExecutiveDirector to the CND issued in 2008 and in 2010.56 The United Nations Convention against Illicit Trafficin Narcotic Drugs and Psychotropic Substances from1988, preamble.57 Office for United Nations High Commissioner forHuman Rights; Legislative History of the Convention on theRights of the Child, Volume I, 709-11, sections D and E,711.58 UN Guidelines on the Prevention of JuvenileDelinquency: the “Riyadh Guidelines”, 1990.59 UN Minimum Rules for the Administration of JuvenileJustice: the “Beijing Rules”‘, 1985.60 CRC Article 40 is refering to “relevant provisions ofinternational instruments“ – CRC Article 33 is referingto“illicit use of narcotic drugs and psychotropicsubstances as defined in the relevant internationaltreaties“.61 General Guidelines Regarding the Form and Contentof Initial Reports to be submitted by States Partiesunder Article 44, Paragraph 1 (a) of The Convention,CRC/C/5, 30 October 1991, paragraph 8.62 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 3.63 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 2.64 ICCPR Art. 2 (non-discrimination), and Art. 6 (rightto life).65 United Nations Blue Book Series Vol VII; “The UnitedNations and Human Rights“, p. 83.66 Michael Freeman,:A commentary on the United NationsConvention on the Rights of the Child. Article 3 – The BestInterest of the Child, Martinus Nijoff Publishers, 2007, 1.67 Michael Freeman,A commentary on the United NationsConvention on the Rights of the Child. Article 3 – The BestInterest of the Child, Martinus Nijoff Publishers, 2007, 5“The best interest principle in Article 3 (1) must beseen as both informed by and constrained by the rights,and the other principles provided for by theConvention”.68 European Training and Research Centre for HumanRights and Democracy, Understanding Human Rights,2006, 238.69 UNICEF, Human rights for children and women: HowUNICEF helps make them a reality, 1999, 9.70 Rachel Hodgkin and Peter Newell, ImplementationHandbook for the Convention on the Rights of the Child,1998, 40.71 The Policy being replaced was called “Children inEspecially Difficult Circumstances“.72 United Nations Children’s Fund, Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 2.73 United Nations Children’s Fund, Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 3.74 United Nations Children’s Fund, Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 6.75 Rachel Hodgkin and Peter Newell, ImplementationHandbook for the Convention on the Rights of the Child,UNICEF Regional Office for Europe, Geneva, 2007, 512.More specifically the following Articles are of primafacie concern in context with CRC Article 33: 17 Massmedia; 19 Protection from maltreatment by parents; 24Health; 29 Education; 32 Hazardous work; 37 JuvenileJustice; 39 Rehabilitation and the Optional Protocol tothe Convention on the Rights of the Child on the saleof children, child prostitution and child pornography .76United Nations Children’s Fund, Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008, 4,point 5.106

2. Non GovernmentalOrganizations and OtherRelevant Actors1 The term “other relevant actors/entities” is used inthe present publication to mean individuals, associationsof individuals, charitable trusts, think-tanks, caucuses,networks of NGOs, different types foundations, centreof expertise, research institutions, internationalmovements, etc, dealing with issues related to drugpolicy and human rights at transnational level.2 N. Gilmore, ‘Drug use and human rights: privacy,vulnerability, disability, and human rights infringements’,Journal of Contemporary Health Law Policy, Spring 1996;12(2):355-447 in Damon Barrett, Rick Lines Senior,Rebecca Schleifer, Richard Elliott & Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’,Report produced by The Beckley Foundation DrugPolicy Programme in partnership with the InternationalHarm Reduction Association (IHRA), Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), 2008, 11.3 Damon Barrett, Rick Lines Senior, Rebecca Schleifer ,Richard Elliott & Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, Report produced by TheBeckley Foundation Drug Policy Programme inpartnership with the International Harm ReductionAssociation (IHRA), Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN),2008.4 Thomas G Weiss and Sam Daws ed., The OxfordHandbook on the United Nations, Oxford UniversityPress, USA, January 15 2009, 256.According to UNDP, nearly one fifth of theinternational NGOs were already formed in the 1990s.United Nations Development Programme, HumanDevelopment Report 2002, 5.5 Joseph S. Nye Jr., ‘The Rising Power of NGO’s’, ProjectSyndicate, June 2004.http://www.projectsyndicate.org/commentary/nye10/English.6 Thomas G Weiss and Sam Daws ed., The OxfordHandbook on the United Nations, Oxford UniversityPress, USA, January 15 2009, 256.7 The term transnational actors is used to represent thebroad range of actors that organise and operate acrossstate borders, including non-governmental organisations(NGOs), advocacy networks, social movements, partyassociations, philanthropic foundations, andtransnational corporations (TNCs). Anders Uhlin, JonasTallberg, Magdalena Bexell. ‘Democracy in GlobalGovernance: The Promises and Pitfalls of TransnationalActors’, Global Governance, January 2010, 81.8 Magdalena Bexell, Jonas Tallberg, and Anders Uhlin,‘Democracy in Global Governance: The Promises andPitfalls of Transnational Actors’, Global Governance: AReview of Multilateralism and International Organizations:January-March 2010, Vol. 16, No. 1, 81-101.9 Charter of the United Nations, CHAPTER X: TheEconomic and Social Council, article 71 stipulates that:“The Economic and Social Council may make suitablearrangements for consultation with non-governmentalorganizations which are concerned with matters withinits competence. Such arrangements may be made withinternational organizations and, where appropriate, withnational organizations after consultation with theMember of the United Nations concerned.”10 For example: the International Convention for theProtection of All Persons from Enforced Disappearance,article 28(1).11 For example, the Committee on the Rights of theChild established a tight cooperation whit the civilsociety, it encourages NGOs and NHRIs to submitreports, documentation or other information to gainbetter knowledge on how the Convention is beingimplemented in a particular territory, to participate atthe pre-sessional working group’s private meetings, torequest consultations with the treaty body etc.12 The first landmark ECOSOC resolution governingthe formal relationship between the Council and itsassociated NGOs was Resolution 1296 (XLIV) of 1968,which set up the system through which the consultativerelationship was utilized. As NGO participation hasincreased exponentially since the consultativerelationship was established, the Council decided toreview its procedures for consultation, resulting inResolution 1996/31 of 1996, which revamped thesystem for ECOSOC-NGO consultation, setting forthboth the requirements for obtaining and maintainingconsultative status, and the privileges afforded toaffiliated NGOs. NGOs and the UN Fact Sheet.http://www.unausa.org/Document.Doc?id=89.13 For example in 2002 UN Secretary General stated inhis report to the General Assembly ‘Strengthening ofthe United Nations: an agenda for further change’ hisintention to establish a panel of eminent persons toreview the relationship between the United Nationsand civil society. As this meet the agreement of theGeneral Assembly, in February 2003 the SecretaryGeneral appointed the Panel of Eminent Persons onUnited Nations–Civil Society Relations, chaired byFernando Henrique Cardoso, the former president ofBrazil. This resulted in the so-called the Cardosoreport- officially entitled “We the peoples: civil society,the United Nations and Global Governance” -submitted in 2004. The purpose of this document wasto “review the guidelines and practices regarding civilsociety’s relations with the United Nations in order toformulate recommendations for enhancing such107

interaction.” UN document A/58.817.14 Introduction to ECOSOC Consultative Statushttp://esango.un.org/paperless/Web?page=static&content=intro15 UNODC’s web page: http://www.unodc.org/unodc/en/ngos/index.html?ref=menuside16 The issue of treaty amendments and modification oftreaties is detailed in the 1969 Vienna Convention onthe Law of Treaties (VCLT), provides in its Part IV thegeneral rules for amendments and modification oftreaties, Art. 39-41.17 These rules are established in Art. 54-59 VCLT.18 International Federation of Red Cross and RedCrescent Societies (IFRC): Out of harm’s way. Injectingdrug users and harm reduction. Advocacy Reportprepared by Getachew Gizaw, Paul Conneally, PatrickCouteau, Shannon Frame, Sadia Kaenzig, Patricia Leidland Marie-Françoise Bore, December 2010.http://www.ifrc.org/Global/Publications/Health/Harmreduction-report-EN.pdf.19 International Federation of Red Cross and RedCrescent Societies (IFRC): Out of harm’s way. Injectingdrug users and harm reduction. Advocacy Reportprepared by Getachew Gizaw, Paul Conneally, PatrickCouteau, Shannon Frame, Sadia Kaenzig, Patricia Leidland Marie-Françoise Bore, December 2010.http://www.ifrc.org/Global/Publications/Health/Harmreduction-report-EN.pdf.20 The list comprises different types of organizations:NGOs, associations ofprofesionals/researchers/politicians and public figures,caritable trusts, think-tanks, networks of NGOs,humanitarian organizations, etc.21 We should note that from the twenty organizationslisted just few have papers relevant for the presentdiscussion.22 Single Convention on Narcotic Drugs of 1961 asamended by the 1972 Protocol, Convention onPsychotropic Substances of 1971 and United NationsConvention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances of 1988.23 The term demand reduction is used in theinternational drug conventions related to the aim ofreducing consumer demand for controlled substances.It is used for policies and programmes which endeavourto reduce the desire and preparedness to obtain anduse illegal drugs. They are various methods how thedemand for drugs can be attenuated. It is a majorcomponent of drug policy together with supplyreduction. United Nations Office for Drug Control andCrime Prevention Studies o Drugs and Crime (2000) –Demand Reduction. A Glossary of Terms.24 Single Convention on Narcotic Drugs of 1961 asamended by the 1972 Protocol, Convention onPsychotropic Substances of 1971 and the Conventionagainst Illicit Traffic in Narcotic Drugs and PsychotropicSubstances of 1988.25 Broadly speaking, decriminalization means in generalterms the removal of the criminal penalties.26 Generally speaking, de-penalisation wouldcorrespond to the reduction of the penalties severity.27 We should note that to date it does not exist anyclear and generally accepted definition of “harmreduction”.28 Krzystof Krajewski is Professor in Criminology atJagiellonian University, Krakow, President of the PolishCriminological Association, member of the AdvisoryGroup to the International Harm ReductionDevelopment, a drug policy program of the OpenSociety Institute and elected member of theCriminological Scientific Council (PC-CSC), EuropeanCommittee on Crime Problems (CDPC) of the Councilof Europe, et cetera. For more details see:http://www.law.uj.edu.pl/users/kryminol/english/pracownicy2.html29 Krzysztof Krajewski. ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 333.30 In law, it often means “in practice but not necessarilyordained by law” or “in practice or actuality, but notofficially established.” A practice may exist de facto,where for example the people obey a contract asthough there were a law enforcing it, yet there is nosuch law.31 De jure is an expression that means “concerning law”,as contrasted with de facto, which means “concerningfact”. In a legal context, de jure is also translated as“concerning law”, having complied with all therequirements imposed by law.The terms de jure and de facto are used instead of “inlaw” and “in practice”, respectively, when one isdescribing political or legal situations.32 “The term ‘amendment’ refers to the formalalteration of treaty provisions affecting all the parties tothe particular agreement. Such alterations must beeffected with the same formalities that attended theoriginal formation of the treaty. Many multilateraltreaties lay down specific requirements to be satisfiedfor amendments to be adopted. In the absence of suchprovisions, amendments require the consent of all theparties.”[Art.40, Vienna Convention of the Law ofTreaties 1969].http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml#amendment33 “The term ‘modification’ refers to the variation ofcertain treaty provisions only as between particularparties of a treaty, while in their relation to the otherparties the original treaty provisions remain applicable.If the treaty is silent on modifications, they are allowedonly if the modifications do not affect the rights orobligations of the other parties to the treaty and donot contravene the object and the purpose of the108

treaty.” [Art.41, Vienna Convention on the Law ofTreaties 1969].http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml#modification34 “Revision has basically the same meaning asamendment. However, some treaties provide for arevision additional to an amendment (i.e., Article 109 ofthe Charter of the United Nations). In that case, theterm ‘revision’ refers to an overriding adoption of thetreaty to changed circumstances, whereas the term‘amendment’ refers only to a change of singularprovisions.”http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml#revision35 The amendment procedures indicated in the Art. 47of the Single Convention and Art. 30 of the ’71Convention are not exclusive. Article 62, paragraph 3 ofthe United Nations Charter stipulates anotherpossibility which is not mentioned in the text of theinstruments namely the Economic and Social Councilcan submit intended amendments to the UN GeneralAssembly for deliberation and hypothetical adoption.However, this issue is not discussed in the reviewedpapers, hence it does not make the object of thepresent study.36 According to the Commentary on the United NationsConvention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances, 1988, paragraph 30.1 “Article 30is a simplified version of the articles on denunciationcontained in articles 46 and 29 respectively of the 1961and the 1971 Conventions. Those conventions, unlikethe present one, did not permit any denunciation untiltwo years had expired from the date on which theycame into force”, 409.37 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179, p.176.38 David R. Bewley-Taylor, Cindy S. J. Fazey and TimBoekhout van Solinge: The Mechanisms and Dynamics ofthe UN System for International Drug Control, March 142003, 22.http://www.aidslex.org/site_documents/J027E.pdf.39 Vienna Convention on the Law of Treaties, 1969, Art.55 Reduction of the parties to a multilateral treaty belowthe number necessary for its entry into force:” Unless thetreaty otherwise provides, a multilateral treaty does notterminate by reason only of the fact that the number ofthe parties falls below the number necessary for itsentry into force.”40 UNTC.http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-19&chapter=6&lang=en.41 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338.42 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 329.43 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 337.44 The author is currently on the editorial boards of theInternational Journal of Drug Policy and the Human RightsJournal. He is also member of the InternationalAdvisory Committee of the International Centre onHuman Rights and Drug policy and a technical Advisorto the International Centre for Science in Drug Policy.For further details see:http://www.swan.ac.uk/staff/academic/ArtsHumanities/taylordavid/.45 He explains the two concepts as: “Modification refersto a possible alteration in the regime through the reschedulingof a drug, that is to say moving it from oneto another of the 1961 and 1971 Convention schedulesor the 1988 Convention tables, or through the deletionof a drug from a schedule/schedules or table/tablesaltogether. Amendment refers to the formal alterationof treaty provisions, namely a convention article, whichaffects all the Parties.” David R. Bewley-Taylor,‘Challenging the UN drug control conventions:problems and possibilities’, International Journal of DrugPolicy 14 (2003) 171/179, 174.46 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,176.47 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,17648 David R. Bewley-Taylor, Cindy S. J. Fazey and TimBoekhout van Solinge, ‘The Mechanisms and Dynamicsof the UN System for International Drug Control’,March 14 2003, 22.http://www.aidslex.org/site_documents/J027E.pdf.49 Peter Andreas, When Policies Collide: Market Reform,Market Prohibition, and the Narcotization of the MexicanEconomy, in H. R. Friman and P. Andreas, eds., The IllicitGlobal Economy and State Power, 127-128, Lanham,Boulder, New York and Oxford, Rowman and LittlefieldPublishers, Inc, 1999 in David R. Bewley-Taylor, Cindy S.J. Fazey and Tim Boekhout van Solinge, ‘The Mechanismsand Dynamics of the UN System for International DrugControl’, March 14 2003, 22.http://www.aidslex.org/site_documents/J027E.pdf.50 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14, 2003, 171/179, 177.David R. Bewley-Taylor, Cindy S. J. Fazey and TimBoekhout van Solinge, ‘The Mechanisms and Dynamicsof the UN System for International Drug Control’,109

March 14 2003, 24.http://www.aidslex.org/site_documents/J027E.pdf.51 David R. Bewley-Taylor, Cindy S. J. Fazey and TimBoekhout van Solinge, ‘The Mechanisms and Dynamicsof the UN System for International Drug Control’,March 14 2003, 24.http://www.aidslex.org/site_documents/J027E.pdf.52 Vienna Convention on the Law of Treaties, 1969.53 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 330.54 Vienna Convention on the Law of Treaties, 1969.55 United Nations Treaty Collection, Vienna Conventionof the Law of Treaties 1969, Art 9.56 The issue of the non self-executing nature of theinternational drug conventions is also raised byKrzysztof Krajewski, who mentions that “we mustrecognise that none of the UN drug conventions are‘self-executing’ treaties or treaties of direct applicability.They are all ‘executory’ treaties, or treaties of indirectapplicability, which means that the provisions of thetreaties are implemented only by incorporating theminto domestic law.”Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 331.57 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,173.58 Martin Dixon, Textbook on International Law, SixthEdition, Oxford University Press, USA, August, 2007, 6.59 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,173.60 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,173.61 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 219.62 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 219.63 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 219.64 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 219.65 In the ‘Draft Articles on the Law of Treaties withcommentaries 1966’, what is today VCLT Article 31was addressed at that time under Article 27.66 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 220-221.67 Vienna Convention on the Law of Treaties, 1969.PART III. OBSERVANCE, APPLICATION ANDINTERPRETATION OF TREATIES, SECTION 3.INTERPRETATION OF TREATIES, Article 31 Generalrule of interpretation, pargraph. 1: “A treaty shall beinterpreted in good faith in accordance with theordinary meaning to be given to the terms of the treatyin their context and in the light of its object andpurpose.”68 Vienna Convention on the Law of Treaties, 1969.PART III. OBSERVANCE, APPLICATION ANDINTERPRETATION OF TREATIES, SECTION 3.INTERPRETATION OF TREATIES, Article 31 Generalrule of interpretation, paragraph 2.69 International Law Commission, ‘Draft Articles on theLaw of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 221.70 International Law Commission, ‘Draft Articles on the110

Law of Treaties with commentaries 1966’, Text adoptedby the International Law Commission at its eighteenthsession, in 1966, and submitted to the GeneralAssembly as a part of the Commission’s reportcovering the work of that session (at para. 38). Thereport, which also contains commentaries on the draftarticles, appears in Yearbook of the International LawCommission, 1966, vol. II, United Nations, 2005, 221.71 Single Convention on Narcotic Drugs, 1961, asamended by the Protocol amending the SingleConvention on Narcotic Drugs, 1961.72 The Convention on psychotropic substances, Vienna,21 February 1971.73 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, Vienna,20 December 1988.74 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,173.75 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,177.76 Clausula rebus sic stantibus (Latin:“things standingthus”) is a legal doctrine in public international law,which stipulates that, where there has been afundamental change of circumstances, a party maywithdraw from or terminate the treaty in question.Hence the instrument becomes inapplicable. Thisdoctrine is provided for in Article 62 of the ViennaConvention on the Law of Treaties 1969. As explainedby ICJ in the Fisheries Jurisdiction Case (United Kingdom v.Iceland), I. C. J. Reports 1973, p. 63, para. 36: “Article 62of the Vienna Convention on the Law of Treaties, . . .mayin many respects be considered as a codification ofexisting customary law on the subject of thetermination of a treaty relationship on account ofchange of circumstances”.77 According to Article 62 VCLT: “1. A fundamentalchange of circumstances which has occurred withregard to those existing at the time of the conclusion ofa treaty, and which was not foreseen by the parties, maynot be invoked as a ground for terminating orwithdrawing from the treaty unless:(a) the existence of those circumstances constituted anessential basis of the consent of the parties to bebound by the treaty; and(b) the effect of the change is radically to transform theextent of obligations still to be performed under thetreaty.2. A fundamental change of circumstances may not beinvoked as a ground for terminating or withdrawingfrom a treaty:(a) if the treaty establishes a boundary; or(b) if the fundamental change is the result of a breachby the party invoking it either of an obligation underthe treaty or of any other international obligation owedto any other party to the treaty.3. If, under the foregoing paragraphs, a party may invokea fundamental change of circumstances as a ground forterminating or withdrawing from a treaty it may alsoinvoke the change as a ground for suspending theoperation of the treaty.”78 “A fundamental change of circumstances must havebeen unforeseen; the existence of the circumstances atthe time of the Treaty’s conclusion must haveconstituted an essential basis of the consent of theparties to be bound by the Treaty.The negative and conditional wording of Article 62 ofthe Vienna Convention on the Law of Treaties is a clearindication moreover that the stability of treaty relationsrequires that the plea of fundamental change ofcircumstances be applied only in exceptional cases”,Gabcíkovo-Nagymaros Project (Hungary/Slovakia).Judgement, ICJ Reports 1997, paragraph 104.http://www.icj-cij.org/docket/files/92/7375.pdf.See Malcolm D. Evans, ed., International Law, Secondedition, Oxford University Press, 2006, 212.79 Art. 3(4-d) of the United Nations Convention againstIllicit Traffic in Narcotic Drugs and PsychotropicSubstances, 1988.80 David R. Bewley-Taylor B. Sc (Econ), PhD & ProfessorCindy S. J. Fazey B. Sc. (Soc), PhD with Tim Boekhoutvan Solinge, ‘The Mechanics and Dynamics of the UNSystem for International Drug Control’, 14 March 2003,24.http://www.aidslex.org/site_documents/J027E.pdf.81“One of the reasons why we are unable to deal withthe unintended consequences is the cumbersomenature of any big multilateral system and the inertia itadopts over time. The three drug conventions weredeveloped over three decades, from the 1960s to the1980s. The foundation of the whole system is clearlythe 1961 Convention: it came into effect in 1964, nearlyhalf a century ago. This fact is too often forgotten. It iseasy forget such things and to ignore the truism thattimes have changed, when there is a clamour for change,but no clear view or agreement on what to change orhow to change it. There is often comfort in the statusquo; not necessarily because it is in itself desirable, butbecause there is no way of predicting what the futurestate of affairs will be.Some headway can be made by considering what haschanged in our world in the last half century – since the1961 Convention was adopted… New health crises,exemplified by the HIV/AIDS epidemic, are beingsuperimposed on top of older health problems we havenot yet solved… Each of these big changes (and the listabove is not meant to be exhaustive) has a directbearing on the drug problem and how it is experienced,perceived or resolved. These changed circumstances111

will therefore have to be considered in answering anyquestion about implementation of the internationaldrug control system in the 21st century. Clearly, wemust humanize our drug control regime which appearstoo many to be too depersonalized and detached fromtheir day-to-day lives.” “Making drug control ‘fit forpurpose’: Building on the UNGASS decade” Report bythe Executive Director of the United Nations Office onDrugs and Crime as a contribution to the review of thetwentieth special session of the General Assembly,Thematic debate on the follow-up to the twentiethspecial session of the General Assembly: generaloverview and progress achieved by Governments inmeeting the goals and targets for the years 2003 and2008 set out in the Political Declaration adopted by theAssembly at its twentieth special session, Commissionon Narcotic Drugs, Fifty-first session, Vienna, 10-14March 2008, Item 3 of the provisional agenda.82 They were very few documents preceding theCharter of United Nations, signed in San Francisco on26 June 1945, which mentioned in a form or othercould be linked to human rights but which did notprovided protection in the real sense: the Treaty ofVienna from 1815 which formally prohibited slave tradeand the General Act of Brussels; the first GenevaConvention from 1864 which protected the woundedand ill persons in time of war; the Covenant of theLeague of Nations from 1919 which stressed theprinciple of primacy of human dignity over States’interests in several areas; ad the Constitution of theInternational Labour Organization from 1919 whichdiscusses the dignity of workers and the Declaration ofPhiladelphia from 1944 which become part of the ILOConstitution. The United Nations and Human Rights1945-1995, The United Nations Blue Books Series, vol.VII, New York, 1995, 5-6.83 Sometimes the authors of some papers are notindicated; instead the policy papers represent theposition of one or several organizations.84 For example: ‘Thematic Briefings on Human Rightsand Drug Policy’ was produced by Harm ReductionInternational, Open Society Institute, Human RightsWatch and the Canadian HIV/AIDS Legal Network, 26October 2010.http://www.ihra.net/contents/804;‘Ten Reasons Why Human Rights is an Issue for theCommission on Narcotic Drugs’ issued by HarmReduction International with Human Rights Watch andOpen Society Institute.http://www.ihra.net/files/2010/06/17/2009-03_TenReasons-HumanRights_CND.pdf;‘Ten Reasons Why the Human Rights Council MustAddress Drug Policy’ issued by Harm ReductionInternational with Human Rights Watch and OpenSociety Institute.http://www.ihra.net/files/2010/06/17/2009-03_TenReasons-DrugPolicy_HumanRightsCouncil.pdf;Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, pp. 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009.International Harm Reduction Association and HumanRights Watch, ‘A Reference Guide to Human Rights andDrug Policy’, March 2009.http://www.ihra.net/files/2010/06/01/BuildingConsensus.pdf; et cetera.85 Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN).March 2008, 3.86 Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN).March 2008, 1.87 Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN).March 2008, 1.88 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009.89 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, pp. 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009.90 Charter of the United Nations Art.1 and Art. 55.91 See for example: International Drug PolicyConsortium (IDPC), ‘Drug Policy Guide’, 1 March 2010,1.2. Ensuring compliance with fundamental rights andfreedoms, 6, footnote 10 ; Damon Barrett, ‘Security,112

development and human rights: Normative, legal andpolicy challenges for the international drug controlsystem’, International Journal of Drug Policy (2010)doi:10.1016/j.drugpo.2010.01.005, Introduction, 1;Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN),March 2008, 1 and 12; Vienna NGO Committee onDrugs (VNGOC), ‘An overview of the United NationsDrug Control System’, prepared by David Bewley-Taylor of Swansea University and was peer-reviewed byseveral independent experts. The overview formed partof the background material for the RegionalConsultations organised as part of “Beyond 2008”, 8;Canadian HIV/AIDS Legal Network, RichardPearshouse – primary author, Richard Elliott and JoanneCsete – text of legal provisions and prefatory notes,and reviewed, research assistance was provided by TimFranklin, Sarom Bahk, Katie Gibson and Sara Kushner,Legislating for Health and Human Rights: Model Law onDrug Use and HIV/AIDS. Criminal law issues, 2006, Humanrights obligations, 13; etc.92 Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN),March 2008, 1 and 12.93 International Drug Policy Consortium (IDPC), ‘DrugPolicy Guide’, 1 March 2010, 1.2. Ensuring compliancewith fundamental rights and freedoms, 6, footnote 10 ;Damon Barrett, ‘Security, development and humanrights: Normative, legal and policy challenges for theinternational drug control system’, International Journalof Drug Policy (2010) doi:10.1016/j.drugpo.2010.01.005,Introduction, 1; Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), March 2008, 1 and 12; ViennaNGO Committee on Drugs (VNGOC), ‘An overview ofthe United Nations Drug Control System’, prepared byDavid Bewley-Taylor of Swansea University and waspeer-reviewed by several independent experts. Theoverview formed part of the background material forthe Regional Consultations organised as part of“Beyond 2008”, 8; Canadian HIV/AIDS Legal Network,Richard Pearshouse - primary author, Richard Elliottand Joanne Csete - text of legal provisions andprefatory notes, and reviewed, research assistance wasprovided by Tim Franklin, Sarom Bahk, Katie Gibson andSara Kushner, Legislating for Health and Human Rights:Model Law on Drug Use and HIV/AIDS. Criminal law issues,2006, Human rights obligations, 13; etc.94 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from theDiversification and Expansion of International Law,Report of the Study Group of the International LawCommission, finalized by Martti Koskenniemi,A/CN.4/L.682, 13 April 2006.95 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversificationand Expansion of International Law, Report of the StudyGroup of the International Law Commission, finalizedby Martti Koskenniemi, A/CN.4/L.682, 13 April 2006,paragraphs 324 and 324.96 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversificationand Expansion of International Law, Report of the StudyGroup of the International Law Commission’, UN DocA/CN.4/L.702, 18 July 2006. (Hereafter FragmentationReport A/CN.4/L.702).97 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversificationand Expansion of International Law, Report of the StudyGroup of the International Law Commission’, UN DocA/CN.4/L.702, 18 July 2006, paragraphs 14(1).98 VCLT Article 30 Application of successive treatiesrelating to the same subject matter, paragraph 1 stipulates:“Subject to Article 103 of the Charter of the UnitedNations, the rights and obligations of States Parties tosuccessive treaties relating to the same subject mattershall be determined in accordance with the followingparagraphs.”99 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversificationand Expansion of International Law, Report of the StudyGroup of the International Law Commission, finalizedby Martti Koskenniemi, A/CN.4/L.682, 13 April 2006,paragraph 331.100 Sir Humphrey Waldock, Third Report, Yearbook…1964 vol. II, 36. In International Law Commission,Fragmentation of International Law: Difficulties Arising fromthe Diversification and Expansion of International Law,Report of the Study Group of the International LawCommission, finalized by Martti Koskenniemi,A/CN.4/L.682, 13 April 2006, paragraph 333, andfootnote 453.101 International Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversification113

and Expansion of International Law, Report of the StudyGroup of the International Law Commission, finalizedby Martti Koskenniemi, A/CN.4/L.682, 13 April 2006,paragraph 334.102 International Drug Policy Consortium (IDPC), ‘DrugPolicy Guide’, 1 March 2010, 1.2. Ensuring compliancewith fundamental rights and freedoms, 6, footnote 10 ;Damon Barrett, ‘Security, development and humanrights: Normative, legal and policy challenges for theinternational drug control system’, International Journalof Drug Policy (2010) doi:10.1016/j.drugpo.2010.01.005,Introduction, 1; Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), March 2008, 1 and 12; ViennaNGO Committee on Drugs (VNGOC), ‘An overview ofthe United Nations Drug Control System’, prepared byDavid Bewley-Taylor of Swansea University and waspeer-reviewed by several independent experts. Theoverview formed part of the background material forthe Regional Consultations organised as part of“Beyond 2008”, 8; Canadian HIV/AIDS Legal Network,Richard Pearshouse - primary author, Richard Elliottand Joanne Csete - text of legal provisions andprefatory notes, and reviewed, research assistance wasprovided by Tim Franklin, Sarom Bahk, Katie Gibson andSara Kushner, Legislating for Health and Human Rights:Model Law on Drug Use and HIV/AIDS. Criminal law issues,2006, Human rights obligations, 13; etc.103 “1. To maintain international peace and security, andto that end: to take effective collective measures forthe prevention and removal of threats to the peace,and for the suppression of acts of aggression orother breaches of the peace, and to bring about bypeaceful means, and in conformity with theprinciples of justice and international law, adjustmentor settlement of international disputes or situationswhich might lead to a breach of the peace;2. To develop friendly relations among nations basedon respect for the principle of equal rights and selfdeterminationof peoples, and to take otherappropriate measures to strengthen universal peace;3. To achieve international co-operation in solvinginternational problems of an economic, social,cultural, or humanitarian character, and in promotingand encouraging respect for human rights and forfundamental freedoms for all without distinction asto race, sex, language, or religion; and4. To be a centre for harmonizing the actions ofnations in the attainment of these common ends.”104 “The Organization and its Members, in pursuit of thePurposes stated in Article 1, shall act in accordancewith the following Principles.1. The Organization is based on the principle of thesovereign equality of all its Members.2. All Members, in order to ensure to all of them therights and benefits resulting from membership, shallfulfill in good faith the obligations assumed by themin accordance with the present Charter.3. All Members shall settle their international disputesby peaceful means in such a manner thatinternational peace and security, and justice, are notendangered.4. All Members shall refrain in their internationalrelations from the threat or use of force against theterritorial integrity or political independence of anystate, or in any other manner inconsistent with thePurposes of the United Nations.5. All Members shall give the United Nations everyassistance in any action it takes in accordance withthe present Charter, and shall refrain from givingassistance to any state against which the UnitedNations is taking preventive or enforcement action.6. The Organization shall ensure that states which arenot Members of the United Nations act inaccordance with these Principles so far as may benecessary for the maintenance of internationalpeace and security.7. Nothing contained in the present Charter shallauthorize the United Nations to intervene inmatters which are essentially within the domesticjurisdiction of any state or shall require theMembers to submit such matters to settlementunder the present Charter; but this principle shallnot prejudice the application of enforcementmeasures under Chapter Vll.”105 PREAMBLEWE THE PEOPLES OF THE UNITED NATIONSDETERMINED• to save succeeding generations from the scourge ofwar, which twice in our lifetime has brought untoldsorrow to mankind, and• to reaffirm faith in fundamental human rights, in thedignity and worth of the human person, in the equalrights of men and women and of nations large andsmall, and• to establish conditions under which justice andrespect for the obligations arising from treaties andother sources of international law can be maintained,and to promote social progress and better standardsof life in larger freedom,AND FOR THESE ENDS• to practice tolerance and live together in peace withone another as good neighbours, and• to unite our strength to maintain international peaceand security, and• to ensure, by the acceptance of principles and the114

institution of methods, that armed force shall not beused, save in the common interest, and• to employ international machinery for thepromotion of the economic and social advancementof all peoples.106 International Drug Policy Consortium (IDPC), ‘DrugPolicy Guide’, 1 March 2010, 1.2. Ensuring compliancewith fundamental rights and freedoms, 6, footnote 10 ;Damon Barrett, ‘Security, development and humanrights: Normative, legal and policy challenges for theinternational drug control system’, International Journalof Drug Policy (2010) doi:10.1016/j.drugpo.2010.01.005,Introduction, 1; Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), March 2008, 1 and 12; ViennaNGO Committee on Drugs (VNGOC), ‘An overview ofthe United Nations Drug Control System’, prepared byDavid Bewley-Taylor of Swansea University and waspeer-reviewed by several independent experts. Theoverview formed part of the background material forthe Regional Consultations organised as part of“Beyond 2008”, 8; Canadian HIV/AIDS Legal Network,Richard Pearshouse - primary author, Richard Elliottand Joanne Csete - text of legal provisions andprefatory notes, and reviewed, research assistance wasprovided by Tim Franklin, Sarom Bahk, Katie Gibson andSara Kushner, Legislating for Health and Human Rights:Model Law on Drug Use and HIV/AIDS. Criminal law issues,2006, Human rights obligations, 13; etc.107 Actually they are three relevant articles of the UNCharter in relation to human rights: Articles 1, 55, 56.However for the present discussion we mentioned justArticle 1 and 55 as Article 56 UN Charter is related toArticle 55 and stipulates: “All Members pledgethemselves to take joint and separate action in cooperationwith the Organization for the achievement ofthe purposes set forth in Article 55.”108 Article 1 (3) of the Charter of the United Nations.109 Article 55(b) of the Charter of the United Nations.110 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, pp. 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009, 11.111 Actually Article 1 (3) of the UN Charter, whichestablishes the Purposes of the United Nations,mentions both areas under the same paragraph: “Toachieve international co-operation in solvinginternational problems of an economic, social, cultural,or humanitarian character, and in promoting andencouraging respect for human rights and forfundamental freedoms for all without distinction as torace, sex, language, or religion...”112 The Queen (on the application of Hilal Abdul-RazzaqAli Al-Jedda) v. Secretary of State for Defence, Judgmentof 12 August 2005, Case No. CO/3673/2005, [2005]EWHC 1809 (Admin).113 The Queen (on the application of Hilal Abdul-RazzaqAli Al-Jedda) v. Secretary of State for Defence, Judgmentof 12 August 2005, Case No. CO/3673/2005, [2005]EWHC 1809 (Admin), paras. 94 et seq; ibid., para. 108;and para. 112 of the judgment in The Queen (on theapplication of Hilal Abdul-Razzaq Ali Al-Jedda) v.Secretary of State for Defence, supra note 459. InInternational Law Commission, Fragmentation ofInternational Law: Difficulties Arising from the Diversificationand Expansion of International Law, Report of the StudyGroup of the International Law Commission, finalizedby Martti Koskenniemi, A/CN.4/L.682, 13 April 2006,paragraphs 336, 337 and 338.114 International Drug Policy Consortium (IDPC), ‘DrugPolicy Guide’, 1 March 2010, 1.2. Ensuring compliancewith fundamental rights and freedoms, 6, footnote 10 ;Damon Barrett, ‘Security, development and humanrights: Normative, legal and policy challenges for theinternational drug control system’, International Journalof Drug Policy (2010) doi:10.1016/j.drugpo.2010.01.005,Introduction, 1; Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), March 2008, 1 and 12; ViennaNGO Committee on Drugs (VNGOC), ‘An overview ofthe United Nations Drug Control System’, prepared byDavid Bewley-Taylor of Swansea University and waspeer-reviewed by several independent experts. Theoverview formed part of the background material forthe Regional Consultations organised as part of“Beyond 2008”, 8; Canadian HIV/AIDS Legal Network,Richard Pearshouse - primary author, Richard Elliottand Joanne Csete - text of legal provisions andprefatory notes, and reviewed, research assistance wasprovided by Tim Franklin, Sarom Bahk, Katie Gibson andSara Kushner, Legislating for Health and Human Rights:Model Law on Drug Use and HIV/AIDS. Criminal law issues,2006, Human rights obligations, 13; etc.115 See for example: UNODC, Report by the ExecutiveDirector of the United Nations Office on Drugs andCrime as a contribution to the review of the twentiethspecial session of the General Assembly, ‘Making drugcontrol ‘fit for purpose’: Building on the UNGASS115

decade’, Commission on Narcotic Drugs, Fifty-firstsession, Vienna 10-14 March 2008, 7 March 2008,19.116 UNODC, Note by the Executive Director ‘Drugcontrol, crime prevention and criminal justice: A humanrights perspective’, Commission on Narcotic Drugs,Fifty-third session, Vienna, 8-12 March 2010 andCommission on Crime Prevention and Criminal Justice,Nineteenth session, Vienna, 17–21 May April 2010,paragraph 8, endnote 11.117 Resolution adopted by the General Assembly,International cooperation against the world drugproblem, UN Doc. A/RES/65/233, April 2011, p.3-4. Thisstatement is found in previous documents, for example,UN Doc. A/RES/64/182. March 2010, para 2; UN Doc.A/RES/63/197, March 2009, paragraph 1; etc.118 Resolution adopted by the General Assembly,International cooperation against the world drugproblem, UN Doc. A/RES/65/233, April 2011, p.2. Thisstatement is found in previous documents, for example,UN Doc. A/RES/64/182. March 2010, p. 1; UN Doc.A/RES/63/197, March 2009, p.. 1; etc.119 Resolution adopted by the General Assembly,International cooperation against the world drugproblem, UN Doc. A/RES/65/233, April 2011, p.3-4. Thisstatement is found in previous documents, for example,UN Doc. A/RES/64/182. March 2010, para 2; UN Doc.A/RES/63/197, March 2009, para. 1; etc.120 World Conference on Human Rights, ViennaDeclaration and Programme of Action, A/CONF.157/23,12 July 1993, para. 21.121 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, pp. 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009, 9.122 Resolution adopted by the General Assembly,International cooperation against the world drugproblem, UN Doc. A/RES/65/233, April 2011, p.2.123 Damon Barrett and Manfred Nowak 2009 paperdiscuss in 28 pages human rights and drug control butmentions one time CRC Article 33 to establish that“Indeed, ‘appropriate measures’ is the very wordingused in article 33 of the Convention on the Rights ofthe Child, the only UN human rights treaty to dealspecifically with the issue. It is therefore useful toconsider, as examples, some of the human rights issuesoutlined above to address the question ofappropriateness.”Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human RightsBased Approach’, published in The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K.Koufa, pp. 449-477, Aristotle Constantinides and NikosZaikos, eds., Brill/Martinus Nijhoff, 2009, 14.124 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human Rights BasedApproach’, published in The Diversity of International Law:Essays in Honour of Professor Kalliopi K. Koufa, pp. 449-477, Aristotle Constantinides and Nikos Zaikos, eds.,Brill/Martinus Nijhoff, 2009, 12.125 Damon Barrett and Manfred Nowak, ‘The UnitedNations and Drug Policy: Towards a Human Rights BasedApproach’, published in The Diversity of International Law:Essays in Honour of Professor Kalliopi K. Koufa, pp. 449-477, Aristotle Constantinides and Nikos Zaikos, eds.,Brill/Martinus Nijhoff, 2009, 8.126 Damon Barrett, Rick Lines, Rebecca Schleifer,Richard Elliott and Dave Bewley-Taylor, ‘Recalibratingthe Regime: The Need for a Human Rights-BasedApproach to International Drug Policy’, a BeckleyFoundation Drug Policy Programme (BFDPP) Reportproduced in partnership with the International HarmReduction Association (IHRA),Human Rights Watch(HRW), and the Canadian HIV/AIDS Legal Network(CHALN), March 2008, 5.127 See for example Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor.‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN), March 2008.128 These are immutable characteristics.129 Anand Grover, the UN Special Rapporteur on theright of everyone to the highest attainable standard ofphysical and mental health “It is important that drug useand drug dependence are not conflated: drugdependence is considered a chronic, relapsing disorder1involving altered brain function that may requiremedical treatment, ideally utilizing a ‘biopsychosocial’approach. By contrast, drug use is not a medicalcondition and does not necessarily imply dependence.Indeed the majority of people who use drugs do notbecome dependent and do not require any treatment.”Report of the Special Rapporteur on the right ofeveryone to the enjoyment of the highest attainablestandard of physical and mental healthRight of everyone to the enjoyment of the highestattainable standard of physical and mental health,A/65/255, 6 August 2010, paragraph 7, 5.http://idpc.net/sites/default/files/library/Right%20to%20highest%20standard%20of%20health.pdf.130 International Federation of Red Cross and RedCrescent Societies (IFRC) Health Advocacy Report, Outof harm’s way – Injecting drug users and harm reduction’,December 2010.131 International Federation of Red Cross and RedCrescent Societies (IFRC) Health Advocacy Report, Outof harm’s way – Injecting drug users and harm reduction”,116

December 2010, 3.132 Human Rights Watch published for many yearsreports on human rights issues related to the justicesystem or the medical one in certain countries.http://www.hrw.org/en/publications.Other papers like Damon Barrett, Rick Lines, RebeccaSchleifer, Richard Elliott and Dave Bewley-Taylor,‘Recalibrating the Regime: The Need for a HumanRights-Based Approach to International Drug Policy’, aBeckley Foundation Drug Policy Programme (BFDPP)Report produced in partnership with the InternationalHarm Reduction Association (IHRA),Human RightsWatch (HRW), and the Canadian HIV/AIDS LegalNetwork (CHALN). March 2008 also quote such cases.133 Similar conclusions are reached by Saul Takahashi inhis paper ‘Drug Control, Human Rights, and the Right to theHighest Attainable Standard of Health: By No MeansStraightforward Issues’, Human Rights Quarterly, Volume 31,Number 3, August 2009, 754.134 Commentary on the United Nations Conventionagainst Illicit Traffic in Narcotic Drugs and PsychotropicSubstances, 1988, United Nations, New York, 1998. Para.3.3. No emphasis on the original text.135 Damon Barrett, Rick Lines, Rebecca Schleifer,Richard Elliott and Dave Bewley-Taylor, ‘Recalibratingthe Regime: The Need for a Human Rights-BasedApproach to International Drug Policy’, a BeckleyFoundation Drug Policy Programme (BFDPP) Reportproduced in partnership with the International HarmReduction Association (IHRA),Human Rights Watch (HRW),and the Canadian HIV/AIDS Legal Network (CHALN).March 2008, 32.136They are other international human rightsinstruments comprising articles referring to health, forexample: Article 25 (1), Universal Declaration of HumanRights; Article 5 (e/iv), International Convention on theElimination of All Forms of Racial Discrimination; Article24, Convention on the Rights of the Child; Article 12,Convention on the Elimination of All Forms ofDiscrimination against Women; Articles 28, 43 and 45,International Convention on the Protection of theRights of All Migrant Workers and Members of TheirFamilies; Art.25 Convention on the Rights of Personswith Disabilities etc.137 Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social andCultural Rights- General Comment No. 14 (2000) -Theright to the highest attainable standard of health (article12 of the International Covenant on Economic, Socialand Cultural Rights). Committee on Economic, Socialand Cultural Rights. Twenty-second session Geneva, 25April-12 May 2000. E/C.12/2000/4.138 Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social andCultural Rights- General Comment No. 14 (2000) –The right to the highest attainable standard of health(article 12 of the International Covenant on Economic,Social and Cultural Rights). Committee on Economic,Social and Cultural Rights. Twenty-second sessionGeneva, 25 April-12 May 2000. E/C.12/2000/4.139 Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social andCultural Rights- General Comment No. 14 (2000) -Theright to the highest attainable standard of health (article12 of the International Covenant on Economic, Socialand Cultural Rights). Committee on Economic, Socialand Cultural Rights. Twenty-second session Geneva, 25April-12 May 2000. E/C.12/2000/4.140 http://www.ihra.net/what-is-harm-reduction141 International Federation of Red Cross and RedCrescent Societies (IFRC) Health Advocacy Report, Outof harm’s way – Injecting drug users and harm reduction,December 2010, 16.142 See for example Open Society Foundations,the International Harm Reduction Association, HumanRights Watch, and the Canadian HIV/AIDS LegalNetwork, ‘Human Rights and Drug Policy. Briefings forthe UN Commission on Narcotic Drugs’, December2010.143 International Federation of Red Cross and RedCrescent Societies (IFRC) Health Advocacy Report, Outof harm’s way – Injecting drug users and harm reduction,December 2010, 3.144 International Narcotics Control Board (INCB),Mandate and Functions.http://www.incb.org/incb/mandate.html.145 Harm Reduction International’s HR2, ‘Unique inInternational Relations?: A Comparison of theInternational Narcotics Control Board and the UNHuman Rights Treaty Bodies’, February 2008.http://www.ihra.net/files/2010/06/16/Barrett-UniqueinInternationalRelations.pdf.146 Harm Reduction International’s HR2, ‘Unique inInternational Relations?: A Comparison of theInternational Narcotics Control Board and the UNHuman Rights Treaty Bodies’, February 2008, 7.http://www.ihra.net/files/2010/06/16/Barrett-UniqueinInternationalRelations.pdf.147 Harm Reduction International’s HR2, ‘Unique inInternational Relations?: A Comparison of theInternational Narcotics Control Board and the UNHuman Rights Treaty Bodies’, February 2008, 8.http://www.ihra.net/files/2010/06/16/Barrett-UniqueinInternationalRelations.pdf.148 J. Csete and D. Wolfe, ‘Closed to Reason: TheInternational Narcotics Control Board and HIV/AIDS’,Canadian HIV/AIDS Legal Network/ International HarmReduction Development, February 2007.149 J. Csete and D. Wolfe, ‘Closed to Reason: TheInternational Narcotics Control Board and HIV/AIDS’,Canadian HIV/AIDS Legal Network/ International HarmReduction Development, February 2007, 1.117

150 Political Declaration on HIV/AIDS adopted by theGeneral Assembly, 10 June 2011, paragraph 26.http://www.unaids.org/en/media/unaids/contentassets/documents/document/2011/06/20110610_UN_A-RES-65-277_en.pdf.151 Transnational Institute, Drugs and Democracy, ‘TheINCB on Harm Reduction. Catching Up, or HoldingBack?’, 2008.http://www.ungassondrugs.org/index.php?option=com_content&task=view&id=163&Itemid=83.IDPC reported on the 2010 CND that “there was afrisson of tension during the meeting with NGOs onthe issue of harm reduction, with Professor Atasoy (thePresident of the INCB at that time) responding toconcerns about the Board’s consistently reservedattitude to the approach with a complaint that therewas no clear definition of it.” International Drug PolicyConsortium, ‘The 2010 Commission on Narcotic Drugs– report of proceedings”, April 2010.http://www.idpc.net/sites/default/files/library/CND%20Procedings%202010%20final.pdf.152 See for example: J. Csete and D. Wolfe, ‘Closed toReason: The International Narcotics Control Board andHIV/AIDS’, Canadian HIV/AIDS Legal Network/International Harm Reduction Development, February2007.153 Almost every paper discussed and many otherscoming from this category of NGOs use this sintagmain relation with the INCB. For example: Joanne Csete,Executive Director, Canadian HIV/AIDS Legal Networkand Daniel Wolfe, Deputy Director, International HarmReduction Development Program, Open SocietyInstitute, ‘Dangerously Out of Step The InternationalNarcotics Control Board and HIV/AIDS’.http://www.aidslaw.ca/publications/interfaces/downloadFile.php?ref=1190;Tom Blickman, ‘INCB out of step with the UnitedNations’, Transnational Institute Drugs and DemocracyProgramme, June 3, 2008.http://www.druglawreform.info/en/weblog/item/2026-incbout-of-step-with-the-united-nations;Damon Barrett, Rick Lines, Rebecca Schleifer, RichardElliott and Dave Bewley-Taylor, ‘Recalibrating theRegime: The Need for a Human Rights-Based Approachto International Drug Policy’, a Beckley FoundationDrug Policy Programme (BFDPP) Report produced inpartnership with the International Harm ReductionAssociation (IHRA),Human Rights Watch (HRW), andthe Canadian HIV/AIDS Legal Network (CHALN).March 2008;The Canadian HIV/AIDS Legal Network, “Latest ReportFrom United Nations Drug Control Body Misses the Mark.INCB’s policy prescriptions are misguided and dangerous”,News Release, March 4, 2008.http://www.aidslaw.ca/publications/interfaces/downloadDocumentFile.php?ref=836;Damon Barrett, ‘Unique in International Relations? AComparison of the International Narcotics ControlBoard and the UN Human Rights Treaty Bodies’, HarmReduction International, February 1, 2008,http://www.ihra.net/files/2010/06/16/Barrett-UniqueinInternationalRelations.pdf, etc.154 David R. Bewley-Taylor B. Sc (Econ), PhD &Professor Cindy S. J. Fazey B. Sc. (Soc), PhD with TimBoekhout van Solinge, ‘The Mechanics and Dynamics ofthe UN System for International Drug Control’, 14March 2003.http://www.aidslex.org/site_documents/J027E.pdf.155 The issue of right to health as per Article 12 ICESCRshould be, according to the discussed NGOs,interpreted in a preferential manner according to theirreading.156 European Union is “a unique economic and politicalpartnership between 27 democratic Europeancountries.”http://europa.eu/abc/panorama/index_en.htm.157INCB position on the harm reduction issue wasstated in many reports as: “harm reduction programmescould play a part in a comprehensive drug demandreduction strategy but drawing attention to the factthat harm reduction programmes could not beconsidered substitutes for demand reductionprogrammes.” It stressed in relation to “anyprophylactic measures (like needle/syringe exchange ordistribution programmes) should not promote and/orfacilitate drug abuse.” In relation to drug injectionrooms “The Board has stated on a number ofoccasions, including its recent Annual Reports, that theoperation of such facilities remains a source of graveconcern. The Board reiterates that they violate theprovisions of the international drug controlconventions.” As the INCB made it clear that “Theimplementation of substitution and maintenancetreatments “does not constitute any breach of treatyprovisions, whatever substance may be used for suchtreatment in line with established national soundmedical practice.”http://www.incb.org/pdf/e/press/2004/press_release_2004-03-03_4.pdf.158 David R. Bewley-Taylor B. Sc (Econ), PhD &Professor Cindy S. J. Fazey B. Sc. (Soc), PhD with TimBoekhout van Solinge, ‘The Mechanics and Dynamics ofthe UN System for International Drug Control’, 14 March2003, 18-19. “a harm reduction approach has recentlyalso been acknowledged at the EU level…Makingspecific reference to reducing the harm associated withintravenous drug use the European Union Strategy onDrugs (2000-2004) states as one of its targets to‘reduce substantially over five years the incidence ofdrug related health damage (HIV, hepatitis B and C, TBCetc) and the number of drug related deaths.’ (Jelsma etal, 2003)118

Such a situation consequently makes the INCB positionupon harm reduction measures like injecting roomsproblematic.”http://www.aidslex.org/site_documents/J027E.pdf.159 Neither then nor now did EU have a unanimousposition on harm reduction.160 The Statute of the International Court of Justice,annexed to the Charter of the United Nations, ChapterIi – Competence of the Court, Article 38:1. The Court, whose function is to decide in accordance withinternational law such disputes as are submitted to it, shallapply:a. international conventions, whether general or particular,establishing rules expressly recognized by the contestingstates;b. international custom, as evidence of a general practiceaccepted as law;c. the general principles of law recognized by civilizednations;d. subject to the provisions of Article 59, judicial decisionsand the teachings of the most highly qualified publicists ofthe various nations, as subsidiary means for thedetermination of rules of law.The emphasis is added by the authors of the presentbook.161 Paul Hunt, Human Rights, Health and Harm Reduction:States’ Amnesia and Parallel Universes, speech delivered atthe 19th International Harm Reduction Conference,Barcelona, May 2008.162 It appears from the text that these presentationswere made in Bucharest, London, and Bogota.163 Rick Lines & Damon Barrett, HR2 - Harm Reduction& Human Rights Programme, International HarmReduction Association, Counting Lives 2 – SubstitutionTreatment, ‘Harm Reduction, Substitution Treatment andthe UN Convention on the Rights of the Child’, Bucharest,Romania, 4 December 2007.http://www.ihra.net/files/2010/06/21/LinesBarrett-CountingLives2.pdf.164 Rick Lines & Damon Barrett, HR2 - Harm Reduction& Human Rights Programme, International HarmReduction Association, Counting Lives 2 – SubstitutionTreatment, “Harm Reduction, Substitution Treatment andthe UN Convention on the Rights of the Child”, Bucharest,Romania, 4 December 2007, slide 4.http://www.ihra.net/files/2010/06/21/LinesBarrett-CountingLives2.pdf.165 Rick Lines & Damon Barrett, HR2 - Harm Reduction& Human Rights Programme, International HarmReduction Association, Counting Lives 2 – SubstitutionTreatment, “Harm Reduction, Substitution Treatment andthe UN Convention on the Rights of the Child, Bucharest,Romania, 4 December 2007, slide 19.http://www.ihra.net/files/2010/06/21/LinesBarrett-CountingLives2.pdf.166 Damon Barrett Human Rights Analyst, IHRA,Release Conference, ‘Appropriate Measures? Drugs,Children and Human Rights’, London, September 2008.http://www.ihra.net/files/2010/06/21/BarrettAppropriateMeasures.pdf.167 Damon Barrett, Project Director, InternationalCentre on Human Rights and Drug Policy, ‘Drugs and theUN Convention on the Rights of the Child: Unpacking Article33’, Bogota, Colombia, November 2010.http://www.humanrightsanddrugs.org/wp-content/uploads/2011/02/Colombia-dissecting-the-CRC-Nov-2010.pdf.This presentation is a part of a seminar co-sponsoredby the Universidad de los Andes, the InternationalCentre on Human Rights and Drug Policy and HumanRights Watch.168 Damon Barrett, Project Director, InternationalCentre on Human Rights and Drug Policy, ‘Drugs and theUN Convention on the Rights of the Child: Unpacking Article33’, Bogota, Colombia, November 2010, slide 16.http://www.humanrightsanddrugs.org/wp-content/uploads/2011/02/Colombia-dissecting-the-CRC-Nov-2010.pdf.169 http://www.humanrightsanddrugs.org/category/issues/children-youth/page/2/.170 Damon Barrett, Project Director, InternationalCentre on Human Rights and Drug Policy, ‘Drugs and theUN Convention on the Rights of the Child: Unpacking Article33’, Bogota, Colombia, November 2010, slide 3.http://www.humanrightsanddrugs.org/wp-content/uploads/2011/02/Colombia-dissecting-the-CRC-Nov-2010.pdf.171http://www.unicef.org/rightsite/433_articles2.php?id=6#video.172 http://www.unicef.org/rightsite/433_articles2.php?id=6#video.173 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338.174 As per articles: 34, 32, 35 and 36 of the Conventionon the Rights of the Child. The same forms ofexploitations are mentioned together with forced orcompulsory recruitment of children for use in armedconflictt as the “the worst forms of child labour” inArticle 3 of the ILO Worst Forms of Child LabourConvention, 1999 (No. 182).175 Damon Barrett, ‘Drugs and the UN Convention onthe Rights of the Child: Unpacking Article 33’,(slidesformat), presentation at the Universidad de los Andes inBogota, Colombia, 2010.http://www.humanrightsanddrugs.org/?tag=drugs176 Article 19 has an almost identical provision with art33: “shall take all appropriate legislative, administrative,social and educational measures to protect”. In art 33case the provision reads: “shall take all appropriatemeasures, including legislative, administrative, social andeducational measures, to protect…and to protect”,119

eing somehow more comprehensive as it indicatesthat other measures should be taken except thelegislative, administrative, social and educational onesand also the intention to prevent. Anyhow, article 2CRC has a similar provision:” shall take all appropriatemeasures to ensure that the child is protected against”;article 4: “shall undertake all appropriate …measuresfor…”; art 21(d): “Take all appropriate measures toensure…”; art 22(1): “shall take appropriate measuresto ensure”; art 24(3): “shall take all …appropriatemeasures …to abolishing”; art 27(3) “shall takeappropriate measures to assist” and in paragraph (4):“shall take all appropriate measures to secure”; art28(2): “shall take all appropriate measures to ensure”;art 32(2): “shall take legislative, administrative, social andeducational measures to ensure”; art 34: “States Partiesundertake to protect the child… For these purposes,States Parties shall in particular take all appropriate…measures to prevent”; art 35: “shall take all appropriate…measures to prevent” and art 39: “shall take allappropriate measures to promote”. Article 11 talksabout “shall take measures to combat” and article 26stipulates: “shall take the necessary measures”. If we areto give credit to Barrett’s theory this is the way howthe Convention on the Rights of the Child should lookat its essence.177 According to CRIN this paper was published tomark the International Day against Drug Abuse andIllicit Trafficking on 26 June 2010 by shedding a light onand examining “the impact of global and national drugpolicies on children’s rights.”http://www.crin.org/resources/infodetail.asp?id=22817.178 CRIN web page:http://www.crin.org/about/index.asp.179 CRIN, Children and drug use, 30/06/2010.http://www.crin.org/resources/infodetail.asp?id=22817.180 CRIN, Children and drug use, 30/06/2010,.http://www.crin.org/resources/infodetail.asp?id=22817.181 Children of Substance Abusers: COSA Resource List ,Compiled by: Rivka Greenberg, Ph.D., AnnabelleBonifacio, M.S.W., and Deborah Werner, M.A. andSubmitted by: JBS International, Inc., and Center forChildren and Family Futures, Inc. Submitted to:Substance Abuse and Mental Health ServicesAdministration Center for Substance Abuse Treatment,2008.http://womenandchildren.treatment.org/documents/cosa-resource-508v.pdf in CRIN, Children and drug use’,30/06/2010.http://www.crin.org/resources/infodetail.asp?id=22817.182 About CRIN, Our Mission.http://www.crin.org/about/index.asp.183 Paulo Sérgio Pinheiro, Independent Expert for theUnited Nations, Secretary-General’s Study on Violenceagainst Children, “World Report on Violence againstChildren”, 2006. The Study indicates parents orcaregivers substance abuse as one of the factorscontributing to violence against children, p. 66 and 68. Italso indicates that childhood experience of violenceleads to drug abuse, p. 64-65.184 WHO Child maltreatment, Fact sheet N°150, August2010.http://www.who.int/mediacentre/factsheets/fs150/en/index.html.185 D. Barrett & P. Veerman, ‘Children who use Drugs:The Need for More Clarity on State Obligations inInternational Law’, International Journal on Human Rightsand Drug Policy, Vol I, 2010, 65-66.http://www.humanrightsanddrugs.org/2011/04/drugsand-the-rights-of-the-child/186 Article 39, Convention on the Rights of the Child.187 D. Barrett & P. Veerman, ‘Children who use Drugs:The Need for More Clarity on State Obligations inInternational Law’, International Journal on Human Rightsand Drug Policy, Vol. I, 2010, 65-66.http://www.humanrightsanddrugs.org/2011/04/drugsand-the-rights-of-the-child/188 David R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,International Journal of Drug Policy 14 (2003) 171/179,178.189Hungarian Civil Liberties Union- A Drug FreeWorld – Could We Do It? July 23, 2008.http://drogriporter.hu/en/node/1039190 Transform Drug Policy Foundation, “After the War onDrugs. Tools for the debate”, 2007.http://www.tdpf.org.uk/Tools_For_The%20Debate.pdf191 Release’s Mission & Vision.http://www.release.org.uk/about/mission-vision.192 Release’s Mission & Vision.http://www.release.org.uk/about/mission-vision.193 Krzysztof Krajewski, “How flexible are the UnitedNations drug conventions?”, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 329.194 We should note that Krajewski provides nodefinition for “harm reduction” or what these strategiesimply. Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338.195 Single Convention on Narcotic Drugs of 1961 asamended by the 1972 Protocol, Art. 4(c).196 Convention on the Rights of the Child, 1989.197 Convention Concerning the Prohibition andImmediate Action for the Elimination of the WorstForms of Child Labour, ILO Convention 182, 1999, Art.3(c).198 Nowak, Manfred, Civil and Political Rights, in HumanRights: Concepts and Standards, ed. Symonides, Janusz,UNESCO Publishing, 2000, 88. In Merle Anouk de Vries,A Human Rights-based Approach to the International DrugPolicy, University of Vienna LL.M. International LegalStudies, Master Thesis, 01-09-2008, p. 36.120

199 Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 335.200Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 336.201 World Health Organization- Child maltreatment,Fact sheet N°150, August 2010.http://www.who.int/mediacentre/factsheets/fs150/en/index.html.202 Yury Fedotov, UNODC Director-General/ExecutiveDirector ‘Integrating Crime Prevention and CriminalJustice into the Global Security and DevelopmentAgenda’, speech at the Commission on CrimePrevention & Criminal Justice 20th Session Vienna, 11April 2011.http://www.unodc.org/unodc/en/aboutunodc/speeches/2011/April/2011-04-11-crimecommission-opening.html.Probably the figures were different back in 1999 butthis fact has no relevance.203 Krajewski also cites the German ConstitutionalTribunal ‘cannabis decision’ from 1994 and a similardecision from the Colombian Constitutional Court, alsoin 1994. Krzysztof Krajewski, ‘How flexible are theUnited Nations drug conventions?’, International Journalof Drug Policy, vol.10, No.4, (1999), str.329 – 338, 336.204 http://www.hrw.org/en/about.205 About the IAS.http://www.iasociety.org/AboutIAS.aspx206 The XVIII International AIDS Conference (AIDS2010) Vienna , July 2010; XVII International AIDSConference (AIDS 2008), Mexico City; the XVIInternational AIDS Conference (AIDS 2006), Toronto,;XV International AIDS Conference (AIDS 2004),Bangkok, 14th International AIDS Conference,Barcelona, 2002; 12th International AIDS Conference,Geneva , 1998; 13th International AIDS Conference,Durban,2000; 11th International AIDS Conference,Vancouver, 1996; 10th International AIDS Conference,Yokohama, 1994; etc. Since 2001 it has organised alsothe IAS Conference on HIV Pathogenesis andTreatment.http://www.iasociety.org/Default.aspx?pageId=79.207 http://www.drugpolicy.org/about/.208 http://www.beckleyfoundation.org/2010/10/19/about-intro/.209 http://www.ihra.net/about210 http://www.humanrightsanddrugs.org/?page_id=12211 http://www.idpc.net/about212 http://tasz.hu/en/about-us213 http://www.release.org.uk/about/mission-vision214 http://www.idpc.net/about/governance215 http://www.aidslaw.ca/EN/about_us/index.htm216 http://www.unodc.org/ngo/showSingleDetailed.do?req_org_uid=16418217 http://www.idurefgroup.org/218 http://www.tni.org/page/introduction.219 http://www.ifrc.org/who/index.asp?navid=03_01.220Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 329. Anidentical formulation can be found in David R. Bewley-Taylor, ‘Challenging the UN drug control conventions:problems and possibilities’, Department of AmericanStudies, University of Wales Swansea, Singleton Park,Swansea SA 2 8PP, UK, International Journal of Drug Policy14 (2003) 171_/179, 175.221 Krajewski mentions the latitude existing in the legalframework of the international drug control regime fordecriminalization/depenalization/legalization, expressedalso as loophole that allowdecriminalization/depenalization/legalization at least 13 thtimes. Krzysztof Krajewski, ‘How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338The same terminology appears in many other papers as:Bewley-Taylor, David R. and Fazey, Cindy S. J., ‘TheMechanics and Dynamics of the UN System forInternational Drug Control,’ 14 March 2003,http://www.aidslex.org/site_documents/J027E.pdf, inDavid R. Bewley-Taylor, ‘Challenging the UN drugcontrol conventions: problems and possibilities’,Department of American Studies, University of WalesSwansea, Singleton Park, Swansea SA 2 8PP, UK,International Journal of Drug Policy 14 (2003) 171_/179,etc.222 This syntagma is to be found in several papers: DavidR. Bewley-Taylor, “Challenging the UN drug controlconventions: problems and possibilities”, International Journalof Drug Policy 14 (2003) 171/179, Bewley-Taylor, David R.and Fazey, Cindy S. J., ‘The Mechanics and Dynamics ofthe UN System for International Drug Control’, 14March 2003, etc.223 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, 1988.224 Kathleen Kingsbury, ‘Methadone as a Human Right’,February 16, 2011,http://blog.soros.org/2011/02/methadone-as-a-humanright/,http://www.ihra.net/contents/870.225 We should differentiate “drug users” from “drugaddicts/dependents”. “Drug use” is the equivalent ofdrugs taking, in its variety of forms, “self-administrationof a psychoactive substance” according to WHO, or“drug abuse” according to the INCB. “Drug addiction”is instead the equivalent of “drug dependence” whichstands according to the WHO glossary for: “Repeateduse of a psychoactive substance or substances, to theextent that the user (referred to as an addict) isperiodically or chronically intoxicated, shows acompulsion to take the preferred substance (orsubstances), has great difficulty in voluntarily ceasing or121

modifying substance use, and exhibits determination toobtain psychoactive substances by almost any means.Typically, tolerance is prominent and a withdrawalsyndrome frequently occurs when substance use isinterrupted. The life of the addict may be dominated bysubstance use to the virtual exclusion of all otheractivities and responsibilities. The term addiction alsoconveys the sense that such substance use has adetrimental effect on society, as well as on theindividual... In the 1960s the World Health Organizationrecommended that both terms be abandoned in favourof dependence, which can exist in various degrees ofseverity. Addiction is not a diagnostic term in ICD-10,but continues to be very widely employed byprofessionals and the general public alike.” “Drugdependence” is defined by WHO as: “In DSM-IIIR,dependence is defined as “a cluster of cognitive,behavioural and physiologic symptoms that indicate aperson has impaired control of psychoactive substanceuse and continues use of the substance despite adverseconsequences”. It is roughly equivalent to thedependence syndrome of ICD-10. In the ICD-I0context, the term dependence could refer generally toany of the elements in the syndrome. The term is oftenused interchangeably with addiction and alcoholism...”http://www.who.int/substance_abuse/terminology/who_lexicon/en/.The three drug related conventions specifically take inconsideration this category of individuals who dobecome “addicts/dependants” offering a humaneresponse, with provision for treatment, rehabilitationand social reintegration.226 International Federation of Red Cross and RedCrescent Societies (IFRC), Out of harm’s way. Injectingdrug users and harm reduction’, advocacy Reportprepared by Getachew Gizaw, Paul Conneally, PatrickCouteau, Shannon Frame, Sadia Kaenzig, Patricia Leidland Marie-Françoise Bore, December 2010,http://www.ifrc.org/Global/Publications/Health/Harmreduction-report-EN.pdf.227 See the IHRA’s definition of “harm reduction” onWhat is Harm Reduction? A position statement from theInternational Harm Reduction Association.http://www.ihra.net/files/2010/08/10/Briefing_What_is_HR_English.pdf3. United Nations Entities1 “UNICEF is guided by the Convention on the Rightsof the Child and strives to establish children’s rights asenduring ethical principles and international standardsof behaviour towardschildren.”http://www.unicef.org/about/who/index_mission.html.2 “UNODC is a global leader in the fight against illicitdrugs and international crime… UNODC is mandatedto assist Member States in their struggle against illicitdrugs, crime and terrorism.”http://www.unodc.org/unodc/en/aboutunodc/index.html3 WHO provides technical expertise to the UnitedNations on the subject of drugs of abuse under theUnited Nations Single Convention on Narcotic Drugs(1961) and the United Nations Convention onPsychotropic Substances(1971).http://www.who.int/medicines/areas/quality_safety/sub_under_int_control/en/index.html.4 “OHCHR represents the world’s commitment touniversal ideals of human dignity. We have a uniquemandate from the international community to promoteand protect all human rights.”http://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx.5 Leveraging the AIDS response, UNAIDS works tobuild political action and to promote the rights of allpeople for better results for global health anddevelopment.http://www.unaids.org/en/aboutunaids/unaidsleadership/UNAIDS strategy goals by 2015 includes preventing allnew HIV infections among people who use drugs andreducing by half the number of countries with punitivelaws and practices around HIV transmission, sex work,drug use or homosexuality that block effectiveresponses.http://www.unaids.org/en/strategygoalsby2015/.6 United Nations General Assembly resolution number57(I).7http://www.unicef.org/about/history/index_milestones_46_55.html.8 According to UNICEF’s web site, approximately 88per cent of the organization’s posts are located in thefield. http://www.unicef.org/about/who/index_faq.html.9 The Americas and Caribbean Regional Office, PanamaCity, Panama; Central and Eastern Europe,Commonwealth of Independent States Regional Office,Geneva, Switzerland; East Asia and the Pacific RegionalOffice, Bangkok, Thailand; Eastern and Southern AfricaRegional Office, Nairobi, Kenya; Middle East and NorthAfrica Regional Office, Amman, Jordan; South AsiaRegional Office, Kathmandu, Nepal; and West andCentral Africa Regional Office, Dakar, Senegal.122

http://www.unicef.org/about/structure/index_regional.html.10 http://www.unicef.org/infobycountry/index_39912.html11 Office of the Secretary of the Executive Board “ TheUNICEF Executive Board An Informal Guide”, 2011.12http://www.bmz.de/en/what_we_do/approaches/multilateral_cooperation/players/UnitedNations/UNICEF/index.html.13 Executive Board decision 1996/1(E/ICEF/1996/12/Rev.1)14 UNICEF Mission Statement.http://www.unicef.org/media/media_35908.html.15 UNICEF Mission Statement.http://www.unicef.org/media/media_35908.html.16 http://www.unicef.org/emerg/index.html17 UNICEF Mission Statement.http://www.unicef.org/media/media_35908.html.18 http://www.unicef.org/rightsresults/index.html.19 World Conference on Human Rights, ViennaDeclaration and Programme of Action, A/CONF.157/23,12 July 1993, paragraph 21.20 According to the ‘United Nations Secretary-General’sStudy on Violence against Children’:“Worldwide, there is a chronic lack of data on violenceagainst children, which undermines understanding andaction. The available numbers almost certainlyunderstate the problem. For example:-Using a range of studies and 2000 population data,WHO estimates that the prevalence of forced sexualintercourse and other forms of violence involvingtouch, among boys and girls under 18, is 73 million (7per cent) and 150 million (14 per cent) respectively...– Each year, as many as 275 million children worldwideare estimated to witness domestic violence. Thisexposure has both short and long-term negativeimpacts on children’s development.– Of the estimated 218 million child labourers in 2004,126 million were engaged in hazardous work, accordingto the ILO in 2006. ILO’s latest available estimates showthat in 2000 5.7 million children were in forced orbonded labour, 1.8 million in prostitution andpornography, and an estimated 1.2 million children werevictims of trafficking. Many more children of legalworking age face violence in their workplaces fromemployers or co-workers.– Between 100 million and 140 million women and girlsworldwide have undergone female genitalmutilation/cutting, according to WHO.– WHO figures show that almost 53,000 children aged0–17 years died in 2002 as a result of homicide.”http://www.unicef.org/violencestudy/presskits/2%20Study%20findings_Press%20kit%20EN.pdfPaulo Sérgio Pinheiro Independent Expert for theUnited Nations Secretary-General’s Study on Violenceagainst Children, published by the United NationsSecretary-General’s, Geneva, Switzerland, 2006.21 UNICEF, Child protection from violence, exploitation andabuse.http://www.unicef.org/protection/57929_57972.html.22 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,Summary, 1.23 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,paragraph 2, 1.24 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008, 2.25 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008,.2-3.26 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008, 4.27 Thematic Report 2010, ‘Child Protection fromViolence, Exploitation and Abuse’.3.http://www.unicef.org/protection/CP_Thematic_Report_2010.pdf.28 UNICEF, Who we are.http://www.unicef.org/about/who/index_introduction.html.29 UNICEF, Who we are.http://www.unicef.org/about/who/index_introduction.html.30 Paulo Sérgio Pinheiro, Independent Expert for theUnited Nations, Secretary-General’s Study on Violenceagainst Children, ‘World Report on Violence againstChildren’, 2006, 66,68 and 64-65.31 The Report is a multi UN-agency collaborative effortand is signed by the Executive Directors of: WHO,UNICEF, and UNAIDS.32 WHO, UNICEF, UNAIDS ‘Towards universal access:Scaling up priority HIV/AIDS interventions in the healthsector’, 28 September 2010, 106.33 “All programmes and actions for the benefit ofchildren’s health, education, participation or foraddressing the impact of HIV and AIDS should likewisebe designed so as to strengthen protection, and mustnever undermine it.” United Nations Children’s FundChild Protection Strategy, E/ICEF/2008/5/Rev.1, Annualsession 2008, 2-3.34 UNODC STRATEGY 2008-2011, Towards security andjustice for all: making the world safer from crime, drugs andterrorism, UNITED NATIONS, New York, 2008, iii.35 http://www.unodc.org/unodc/en/aboutunodc/index.html.36 http://www.unodc.org/unodc/en/aboutunodc/index.html37 UNODC, How UNODC deals with HIV/AIDS,http://www.unodc.org/documents/afghanistan/Health_HIV-AIDS/HIV_UNODC_2pager.pdf.38 http://www.unodc.org/unodc/en/aboutunodc/employment.html?ref=menutop.39 This amount includes US$ 42.6 million from the UN123

egular budget (9.1 per cent).http://www.unodc.org/unodc/en/donors/index.html?ref=menuside.40 The voluntary contributions are granted bygovernments, UN Agencies, Inter-GovernmentalOrganizations, International Financial Institutions (IFIs)and private donors, including private sector entities andfoundations.http://www.unodc.org/unodc/en/donors/index.html?ref=menuside.41 http://www.unodc.org/unodc/en/aboutunodc/index.html.42 Secretary General’s Bulletin, Organization of theUnited Nations Office on Drugs and Crime,ST/SGB/2004/6, 15 March 2004.43 Secretary General’s Bulletin, Organization of theUnited Nations Office on Drugs and Crime,ST/SGB/2004/6, 15 March 2004.44 UNODC STRATEGY 2008-2011,.Towards security andjustice for all: making the world safer from crime, drugs andterrorism, UNITED NATIONS, New York, 2008, iii.45 The Declaration on the Guiding Principles of DrugDemand Reduction mentions in its Annex Article 33 ofthe CRC and the need to protect children from theabuse of narcotic drugs and psychotropic substances,but without further elaboration.46 See for example the Political Declaration adopted atthe 1998 Special Session.47 Closing statement to Special Session of the GeneralAssembly on countering the drug problem together,Pino Arlacchi Under-Secretary-General, ExecutiveDirector United Nations International Drug ControlProgramme on behalf of the United Nations SecretaryGeneral, 8-10 June 1998.48 http://www.unodc.org/unodc/data-andanalysis/WDR.html49 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly ‘Making drug control ‘fit for purpose’:Building on the UNGASS decade’, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 3.50 “The three drug conventions were developed overthree decades, from the 1960s to the 1980s. Thefoundation of the whole system is clearly the 1961Convention: it came into effect in 1964, nearly half acentury ago. This fact is too often forgotten. It is easy toforget such things and to ignore the truism that timeshave changed, when there is a clamour for change, butno clear view or agreement on what to change or howto change it. There is often comfort in the status quo;not necessarily because it is in itself desirable, butbecause there is no way of predicting what the futurestate of affairs will be.” Report by the ExecutiveDirector of the United Nations Office on Drugs andCrime as a contribution to the review of the twentiethspecial session of the General Assembly ‘Making drugcontrol ‘fit for purpose’: Building on the UNGASSdecade’, Commission on Narcotic Drugs, Fifty-firstsession, Vienna, 10-14 March 2008, 11.51 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly ‘Making drug control ‘fit for purpose’:Building on the UNGASS decade’, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 12.52 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly ‘Making drug control ‘fit for purpose’:Building on the UNGASS decade’, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 17.53 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly ‘Making drug control ‘fit for purpose’:Building on the UNGASS decade’, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 17.54 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly “Making drug control ‘fit for purpose’:Building on the UNGASS decade”, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 17.55 United Nations Office on Drugs and Crime WorldDrug Report 2008. United Nations Publication, 1.56 United Nations Office on Drugs and Crime WorldDrug Report 2008. United Nations Publication, 1.57 United Nations Office on Drugs and Crime WorldDrug Report 2008. United Nations Publication, 1.58 United Nations Office on Drugs and Crime WorldDrug Report 2009. United Nations Publication, 169.59 United Nations Office on Drugs and Crime WorldDrug Report 2009. United Nations Publication, 169.60 Human Rights Committee, General Comment No. 06:The right to life (art. 6 : 04/30/1982. Sixteenth session,1982, paragraph 6.61 Human Rights Committee, General Comment No. 06:The right to life (art. 6): 04/30/1982. Sixteenth session,1982, paragraph 7.62 See for example Human Rights Committee,Consideration of Reports Submitted by States Partiesunder Article 40 of the International covenant on civiland political rights, Kuwait, CCPR/CO/69/KWT, July2000, paragraph 8; Human Rights Committee,Consideration of Reports Submitted by States Partiesunder Article 40 of the International covenant on civil124

and political rights, Thailand, CCPR/CO/84/THA, Eightyfourthsession, July 2005, paragraph 14; Human RightsCommittee, Consideration of Reports Submitted byStates Parties under Article 40 of the Internationalcovenant on civil and political rights, The Sudan,CCPR/C/SDN/CO/3, Ninetieth session, July 2007,paragraph 19.63 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 1.64 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 4.65 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 1.66 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’ “, Commission on Narcotic Drugs, Fiftythirdsession, Vienna, 8-12 March 2010 andCommission on Crime Prevention and Criminal Justice,Nineteenth session, Vienna, 17-21 May April 2010, 4.67 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’ , Commission on Narcotic Drugs, Fiftythirdsession, Vienna, 8-12 March 2010 andCommission on Crime Prevention and Criminal Justice,Nineteenth session, Vienna, 17-21 May April 2010, 6.68 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’ , Commission on Narcotic Drugs, Fiftythirdsession, Vienna, 8-12 March 2010 andCommission on Crime Prevention and Criminal Justice,Nineteenth session, Vienna, 17-21 May April 2010, 8.69 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 10.70 Single Convention on Narcotic Drugs, 1961, asamended by the Protocol amending the SingleConvention on Narcotic Drugs, 1961.71 The Convention on psychotropic substances, Vienna,21 February 1971.72 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, Vienna,20 December 1988.73 Calling for no illicit use and criminalization of illicitproduction, trafficking, and possession for personal useof drugs.74 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010,paragraph 50, 12.75 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010,paragraph 50, 12.76 Report by the Executive Director of the UnitedNations Office on Drugs and Crime ’Organized Crimeand its Threat to Security. Tackling a disturbingconsequence of drug control’, 1 March 2009, UN Doc.E/CN.7/2009/CRP.4-E/CN.15/2009/CRP.4.77 Report by the Executive Director of the UnitedNations Office on Drugs and Crime ’Organized Crimeand its Threat to Security. Tackling a disturbingconsequence of drug control’”, 1 March 2009, UN Doc.E/CN.7/2009/CRP.4-E/CN.15/2009/CRP.4, 15.78 Report by the Executive Director of the UnitedNations Office on Drugs and Crime ’Organized Crimeand its Threat to Security. Tackling a disturbingconsequence of drug control’, 1 March 2009, UN Doc.E/CN.7/2009/CRP.4-E/CN.15/2009/CRP.4, 15.79 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 13.80 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, 1988.Emphasis added.81 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, Summary, 1.82 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, paragraph2, 3.83 Resolution adopted by the General Assembly, 2005World Summit Outcome, A/RES/60/1, 24 October2005, paragraph 12.84 Paragraph 17 of Note by the Executive Director125

’Drug control, crime prevention and criminal justice: Ahuman rights perspective’, Commission on NarcoticDrugs, Fifty-third session, Vienna, 8-12 March 2010 andCommission on Crime Prevention and Criminal Justice,Nineteenth session, Vienna, 17-21 May April 2010, 6.85 Note by the Executive Director ’Drug control, crimeprevention and criminal justice: A human rightsperspective’, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8-12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17-21 May April 2010, 6 .86 Art 32 on economic exploitation, including childlabour; 33 on protection from narcotic drugs andpsychotropic substance and the involvement inproduction and trafficking of such substances; 34 onsexual exploitation and sexual abuse; 35 on sale,trafficking and abduction; 36 on other forms ofexploitation; and 38 on children in armed conflict of theConvention of the Rights of the Child.87 Transnational Institute, ’10 Years TNI Drugs &Democracy Programme 1998-2008’, July 2008, 33.88 Report by the Executive Director of the UnitedNations Office on Drugs and Crime as a contributionto the review of the twentieth special session of theGeneral Assembly ’Making drug control ‘fit for purpose’:Building on the UNGASS decade’, Commission onNarcotic Drugs, Fifty-first session, Vienna, 10-14 March2008, 20.89 Political Declaration and Plan of Action onInternational Cooperation towards an Integrated andBalanced Strategy to Counter the World Drug Problem,High-level segment Commission on Narcotic Drugs,Vienna, 11-12 March 2009, Statement by the UnitedNations Under-Secretary-General and ExecutiveDirector of the United Nations Office on Drugs andCrime, Mr. Antonio Maria Costa, to the Opening of thehigh-level segment of the Commission on NarcoticDrugs at its fifty-second session, 3.90 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, 1988.91 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, 1988.Emphasis added.92 Bolivia and Switzerland reserved on Article 3paragraph 2 and three countries made declarations onthis provision.93 UNODC, ‘Sweden’s Successful Drug Policy: A Reviewof the Evidence’, February 2007, Preface, 5.94 2009 Cooperation towards an Integrated andBalanced Strategy to Counter the World Drug Problem,Political Declaration, paragraph 3.95 Unrevised transcript of evidence taken before TheSelect Committee on the European Union HomeAffairs (Sub-Committee F) Inquiry on THE EU DRUGSSTRATEGY, Evidence Session No .5. Heard in Public.Questions 155 – 177, 16 NOVEMBER 2011, Witness:Antonio Maria Costa, 18-19.http://www.parliament.uk/documents/lordscommittees/eu-sub-comf/EU%20DS/ucEUF161111ev5.pdf.96 About WHO.http://www.who.int/about/en/.97 World Health Organization, ’Unaudited InterimFinancial Report. Financial Period 2010-2011’, A64/29, 2.http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_29-en.pdf.98 Constitution of the World Health Organization, asadopted by the International Health Conference held inNew York from 19 June to 22 July 1946.99 Constitution of the World Health Organization, asadopted by the International Health Conference held inNew York from 19 June to 22 July 1946.100 Constitution of the World Health Organization, asadopted by the International Health Conference held inNew York from 19 June to 22 July 1946.101 The right to health is specifically provided for in:Article 25 (1), Universal Declaration of Human Rights;Article 12, International Covenant on Economic, Socialand Cultural Rights;Article 5 (e/iv), International Convention on theElimination of All Forms of Racial Discrimination; Article24, Convention on the Rights of the Child; Article 12,Convention on the Elimination of All Forms ofDiscrimination against Women; Articles 28, 43 and 45,International Convention on the Protection of theRights of All Migrant Workers and Members of TheirFamilies; Art.25 Convention on the Rights of Personswith Disabilities etc.102 Health and human rights activities within WHO, 12September2005.http://www.who.int/hhr/activities/Mapping%20HHRactivities%20in%20WHO%20_for%20website%2012%20Sept%202005_.pdf.103 http://www.who.int/hhr/en/.104 UNODC and WHO Discussion Paper, ’Principles ofDrug Dependence Treatment’, March 2008, 1.105 UNODC and WHO Discussion Paper, ’Principles ofDrug Dependence Treatment’, March 2008, 10.106 UNODC and WHO Discussion Paper, ’Principles ofDrug Dependence Treatment’, March 2008, 10.107 UNODC and WHO Discussion Paper, ’Fromcoercion to cohesion Treating drug dependencethrough health care, not punishment’, 9.108 UNODC and WHO Discussion Paper, ’Fromcoercion to cohesion Treating drug dependencethrough health care, not punishment’, 5.109 WHO Western Pacific Regional Office, ’Assessmentof compulsory treatment of people who use drugs inCambodia, China, Malaysia and Viet Nam: an applicationof selected human rights principles’, 2009, 1.110 WHO Western Pacific Regional Office, ’Assessmentof compulsory treatment of people who use drugs in126

Cambodia, China, Malaysia and Viet Nam: an applicationof selected human rights principles’, 2009, 3.111 WHO Western Pacific Regional Office, ’Assessmentof compulsory treatment of people who use drugs inCambodia, China, Malaysia and Viet Nam: an applicationof selected human rights principles’, 2009, 4.112 PWUD is the acronym for people who use drugs.WHO Western Pacific Regional Office, ’Assessment ofcompulsory treatment of people who use drugs inCambodia, China, Malaysia and Viet Nam: an applicationof selected human rights principles’, 2009, 35.113 Constitution of the World Health Organization, asadopted by the International Health Conference held inNew York from 19 June to 22 July 1946.114 WHO Medium-Term Strategic Plan 2008-2013Amended (Draft). The Proposed Programme Buget for2010-2011 for this strategic objective is 161.7 US$million.http://apps.who.int/gb/ebwha/pdf_files/MTSP2009/PPB3-en.pdf.115 WHO Medium-Term Strategic Plan 2008-2013Amended (Draft). The Proposed Programme Buget for2010-2011 for this strategic objective is 62.6 US$million.http://apps.who.int/gb/ebwha/pdf_files/MTSP2009/PPB3-en.pdf116 UNICEF, WHO, UNESCO, UNFPA, UNDP, UNAIDS,WFP and the World Bank, Facts for Life, 2010, iv.117 UNICEF, WHO, UNESCO, UNFPA, UNDP, UNAIDS,WFP and the World Bank, Facts for Life 2010, 156.118 http://www.who.int/mediacentre/factsheets/fs150/en/index.html.119 WHO “Child maltreatment“, Fact sheet N°150, August2010,http://www.who.int/mediacentre/factsheets/fs150/en/index.html.120 WHO “Child maltreatment“, Fact sheet N°150, August2010,http://www.who.int/mediacentre/factsheets/fs150/en/index.html.121 The information provided here was obtain from theOHCHR web page: http://www.ohchr.org.122 General Assembly Resolution A/RES/48/141, 20December 1993.123 They are independent experts who play animportant role in promoting and protecting and humanrights. They should objectively monitor and answer toallegations of human rights violations. SpecialRapporteurs are the Special Procedures mandateholders.124 In 2010, OHCHR’s10 country offices were in Bolivia,Cambodia, Colombia, Guatemala, Guinea, Mauritania,Mexico, Nepal, Togo and Uganda.http://www.ohchr.org/EN/Countries/Pages/CountryOfficesIndex.aspx.125 At the end of 2010, OHCHR had 12 regionaloffices/centres, in East Africa (Addis Ababa), SouthernAfrica (Pretoria), West Africa (Dakar), Central Africa(Yaoundé), South-East Asia (Bangkok), the Pacific (Suva),the Middle East (Beirut), Central Asia (Bishkek), Europe(Brussels), Central America (Panama City), and SouthAmerica (Santiago de Chile), and South-West Asia andthe Arab Region (Doha).http://www.ohchr.org/EN/Countries/Pages/RegionalOfficesIndex.aspx.126 Office of the United Nations High Commissionerfor Human Rights, Mandate,http://www.ohchr.org/EN/AboutUs/Pages/Mandate.aspx.127 General Assembly Resolution A/RES/48/141, 20December 1993.128 http://www.ohchr.org/EN/AboutUs/Pages/MissionStatement.aspx.129 http://www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx.130 http://www.ohchr.org/EN/Issues/Pages/ListOfIssues.aspx.131 High Commissioner calls for focus on human rightsand harm reduction in international drug policy, 10March 2009,http://www.ohchr.org/en/newsevents/pages/DisplayNews.aspx?NewsID=8554&LangID=E.132 High Commissioner calls for focus on human rightsand harm reduction in international drug policy, 10March 2009,http://www.ohchr.org/en/newsevents/pages/DisplayNews.aspx?NewsID=8554&LangID=E.133 The Swedish Council for Information on Alcohol andother Drugs (CAN), The European Monitoring Centrefor Drugs and Drug Addiction (EMCDDA), Council ofEurope, Co-operation Group to Combat Drug Abuseand Illicit Trafficking in Drugs (Pompidou Group). BjörnHibell, Ulf Guttormsson, Salme Ahlström, OlgaBalakireva, Thoroddur Bjarnason, Anna Kokkevi, LudwigKraus, The 2007 ESPAD Report Substance Use AmongStudents in 35 European Countries, Stockholm February2009,http://www.espad.org/documents/Espad/ESPAD_reports/2007/The_2007_ESPAD_Report-FULL_091006.pdf.134 Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social andCultural Rights- General Comment No. 14 (2000) -Theright to the highest attainable standard of health (article12 of the International Covenant on Economic, Socialand Cultural Rights). Committee on Economic, Socialand Cultural Rights. Twenty-second session Geneva, 25April-12 May 2000. E/C.12/2000/4.135 High Commissioner calls for focus on human rightsand harm reduction in international drug policy, 10March 2009,http://www.ohchr.org/en/newsevents/pages/DisplayNews.aspx?NewsID=8554&LangID=E.136 High Commissioner calls for focus on human rights127

and harm reduction in international drug policy, 10March 2009,http://www.ohchr.org/en/newsevents/pages/DisplayNews.aspx?NewsID=8554&LangID=E.137 High Commissioner calls for focus on human rightsand harm reduction in international drug policy, 10March 2009,http://www.ohchr.org/en/newsevents/pages/DisplayNews.aspx?NewsID=8554&LangID=E.138 Substantive Issues Arising in the Implementation ofthe International Covenant on Economic, Social andCultural Rights- General Comment No. 14 (2000) -Theright to the highest attainable standard of health (article12 of the International Covenant on Economic, Socialand Cultural Rights). Committee on Economic, Socialand Cultural Rights. Twenty-second session Geneva, 25April-12 May 2000. E/C.12/2000/4, para. 51.139ECOSOC Resolution 1994/24, 44th plenary meeting,26 July 1994.140 UNODC becalmed a cosponssor in 1999, ILO in2001, WFP in 2003 and UNHCR in 2003.141 ECOSOC Resolution 1994/24, 44th plenary meeting,26 July 1994.142http://www.unaids.org/en/aboutunaids/.143 http://www.unaids.org/en/aboutunaids/unaidsleader -ship/.144http://www.unaids.org/en/ourwork/programme -branch/evidencestrategyandresultsdepartment/preventionvulnerabilityandrightsdivision/.145 Office of the United Nations High Commissionerfor Human Rights and the Joint United NationsProgramme on HIV/AIS, “International Guidelines onHIV/AIDS and Human Rights 2006 Consolidated Version”,16.146 Office of the United Nations High Commissionerfor Human Rights and the Joint United NationsProgramme on HIV/AIS, “International Guidelines onHIV/AIDS and Human Rights 2006 Consolidated Version”,16.147 Office of the United Nations High Commissionerfor Human Rights and the Joint United NationsProgramme on HIV/AIS, “International Guidelines onHIV/AIDS and Human Rights 2006 Consolidated Version”,81.148 Office of the United Nations High Commissionerfor Human Rights and the Joint United NationsProgramme on HIV/AIS, International Guidelines onHIV/AIDS and Human Rights 2006 Consolidated Version,30.149 http://www.unaids.org/en/strategygoalsby2015/punitivelaws/.150 Michel Sidibé, Executive Director of UNAIDS,Opening Address: Universal Access: Status of the GlobalResponse and the Way Forward, III Eastern Europe andCentral Asia AIDS Conference (EECAAC 2009),Moscow, Russian Federation, 28 October2009.http://www.idpc.net/sites/default/files/library/20091028_sp_eecaac_opening_en.pdf.151 Harm reduction activists letter to ExecutiveDirector of UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.152 The letter is signed by: Dasha Ocheret and ShonaSchonning, Eurasian Harm Reduction Network; DanielWolfe, Jonathan Cohen, and Kasia Malinowska-Sempruch, Open Society Institute; Anya Sarang, AndreyRylkov Foundation; Olga Belyaeva, Ukrainian OSTPatients Association; Peter Sarosi, Hungarian CivilLiberties Union; Gregory Vergus, InternationalTreatment Preparedness Coalition in Eastern Europeand Central Asia; and Richard Elliott, CanadianHIV/AIDS Legal Network.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.153 Michel Sidibé, Executive Director of UNAIDS,Universal Access: Status of the Global Response and the WayForward, Opening Address at the Plenary Session 1, IIIEastern Europe and Central Asia AIDS Conference(EECAAC 2009), Moscow, Russian Federation, 28October 2009.http://www.idpc.net/sites/default/files/library/20091028_sp_eecaac_opening_en.pdf.154 Dasha Ocheret and Shona Schonning, Eurasian HarmReduction Network; Daniel Wolfe, Jonathan Cohen, andKasia Malinowska-Sempruch, Open Society Institute;Anya Sarang, Andrey Rylkov Foundation; Olga Belyaeva,Ukrainian OST Patients Association; Peter Sarosi,Hungarian Civil Liberties Union; Gregory Vergus,International Treatment Preparedness Coalition inEastern Europe and Central Asia; and Richard Elliott,Canadian HIV/AIDS Legal Network.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.155Harm reduction activists letter to ExecutiveDirector of UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.156 Harm reduction activists letter to ExecutiveDirector of UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.157 Harm reduction activists letter to ExecutiveDirector of UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.158 Executive Director of UNAIDS Michel Sidibé from9 November 2009.http://www.idpc.net/sites/default/files/library/EECAAC2128

009%20Reply%20from%20Sidibe.pdf.159 Dasha Ocheret and Shona Schonning, Eurasian HarmReduction Network; Daniel Wolfe, Jonathan Cohen, andKasia Malinowska-Sempruch, Open Society Institute;Anya Sarang, Andrey Rylkov Foundation; Olga Belyaeva,Ukrainian OST Patients Association; Peter Sarosi,Hungarian Civil Liberties Union; Gregory Vergus,International Treatment Preparedness Coalition inEastern Europe and Central Asia; and Richard Elliott,Canadian HIV/AIDS Legal Network.160 Executive Director of UNAIDS Michel Sidibé from9 November 2009.http://www.idpc.net/sites/default/files/library/EECAAC2009%20Reply%20from%20Sidibe.pdf.161 Executive Director of UNAIDS Michel Sidibé from9 November 2009.http://www.idpc.net/sites/default/files/library/EECAAC2009%20Reply%20from%20Sidibe.pdf.162 Executive Director of UNAIDS Michel Sidibé from9 November 2009.http://www.idpc.net/sites/default/files/library/EECAAC2009%20Reply%20from%20Sidibe.pdf.163 The Body. The Complete HIV/AIDS Resource,’Decriminalization Works, Criminalization Doesn’t’:Leadership Panel, July 23, 2010,http://www.thebody.com/content/art57750.html.164 UNAIDS 2011-2015 Strategy Getting to Zero,http://www.unaids.org/en/strategygoalsby2015/.165 Michel Sidibé, Executive Director of UNAIDS,Universal Access: Status of the Global Response and the WayForward, Opening Address at the Plenary Session 1, IIIEastern Europe and Central Asia AIDS Conference(EECAAC 2009), Moscow, Russian Federation, 28October 2009.http://www.idpc.net/sites/default/files/library/20091028_sp_eecaac_opening_en.pdf.166 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008, p.2-3.167 For example the three Drug-related treaties: SingleConvention on Narcotic Drugs of 1961 as amended bythe 1972 Protocol; Convention on PsychotropicSubstances of 1971; United Nations Convention againstIllicit Traffic in Narcotic Drugs and PsychotropicSubstances of 1988 and the Convention on the Rightsof the Child.168 Michel Sidibé, Executive Director of UNAIDS,Universal Access: Status of the Global Response and the WayForward, Opening Address at the Plenary Session 1, IIIEastern Europe and Central Asia AIDS Conference(EECAAC 2009), Moscow, Russian Federation, 28October 2009.http://www.idpc.net/sites/default/files/library/20091028_sp_eecaac_opening_en.pdf.169 As discussed in the previous chapter INCB wasoften criticized by various anti-prohibitionist NGOs forits position on “harm reduction”. For example in IDPC’The 2010 Commission on Narcotic Drugs – report ofproceedings’, April 2010 considers important tomention that during the meeting between the INCBand NGOs “It should be noted, however, that there wasa frisson of tension during the meeting with NGOs onthe issue of harm reduction, with Professor Atasoyresponding to concerns about the Board’s consistentlyreserved attitude to the approach with a complaint thatthere was no clear definition of it. The INCB remainslargely hostile...“, 8.http://www.idpc.net/sites/default/files/library/CND%20Procedings%202010%20final.pdf.170 Krzysztof Krajewski, ’How flexible are the UnitedNations drug conventions?’, International Journal of DrugPolicy, vol.10, No.4, (1999), str.329 – 338, 337.171 The signatory of the letter addressed to MichelSidibé, Executive Director of UNAIDS: Dasha Ocheretand Shona Schonning, Eurasian Harm ReductionNetwork; Daniel Wolfe, Jonathan Cohen, and KasiaMalinowska-Sempruch, Open Society Institute; AnyaSarang, Andrey Rylkov Foundation; Olga Belyaeva,Ukrainian OST Patients Association; Peter Sarosi,Hungarian Civil Liberties Union; Gregory Vergus,International Treatment Preparedness Coalition inEastern Europe and Central Asia; and Richard Elliott,Canadian HIV/AIDS Legal Network.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.172 Harm reduction activists letter to ExecutiveDirector of UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.173 Harm reduction activists letter to Executive Directorof UNAIDS Michel Sidibé from 5 November2009.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.174 Decriminalization could be a free pass for allwesterners to possess/use drugs whilst the productionand trafficking in poor countries is still criminalized –the legalization aspect. This is likely to increase demandand thereby leading more children intoproduction/trafficking. Our assessment – which mirrorsKrajewskis fact check in 1999 - is that both of thesemeasures are violating international law, notably the1988 Drug Convention. However, decriminalizationmight, from a human rights perspective, be the worse ofthe two since it is there to make drug taking easier forthe consumer, mainly in rich countries, whilst theproducer/trafficker, mainly in poor countries, is aspunishable as before. If so, why do we then at all havean international solidarity act in form of the drugconventions?175 The three Drug-related treaties: Single Conventionon Narcotic Drugs of 1961 as amended by the 1972129

Protocol; Convention on Psychotropic Substances of1971; United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances of 1988and the Convention on the Rights of the Child176 The signatory of the letter addressed to MichelSidibé, Executive Director of UNAIDS: Dasha Ocheretand Shona Schonning, Eurasian Harm ReductionNetwork; Daniel Wolfe, Jonathan Cohen, and KasiaMalinowska-Sempruch, Open Society Institute; AnyaSarang, Andrey Rylkov Foundation; Olga Belyaeva,Ukrainian OST Patients Association; Peter Sarosi,Hungarian Civil Liberties Union; Gregory Vergus,International Treatment Preparedness Coalition inEastern Europe and Central Asia; and Richard Elliott,Canadian HIV/AIDS Legal Network.http://www.idpc.net/sites/default/files/library/EECAAC%20letter%20to%20Sidibe.pdf.177 Michel Sidibé, Executive Director of UNAIDS,“Universal Access: Status of the Global Response and theWay Forward”, Opening Address at the Plenary Session1, III Eastern Europe and Central Asia AIDS Conference(EECAAC 2009), Moscow, Russian Federation, 28October 2009.http://www.idpc.net/sites/default/files/library/20091028_sp_eecaac_opening_en.pdf.178 Executive Director of UNAIDS Michel Sidibé from9 November 2009.http://www.idpc.net/sites/default/files/library/EECAAC2009%20Reply%20from%20Sidibe.pdf.179 The Body. The Complete HIV/AIDS Resource,’Decriminalization Works, Criminalization Doesn’t’:Leadership Panel, July 23, 2010.http://www.thebody.com/content/art57750.htmlandhttp://unaidstoday.org/?p=497.180 Political Declaration on HIV/AIDS adopted by theGeneral Assembly, 10 June 2011, paragraph 26.http://www.unaids.org/en/media/unaids/contentassets/documents/document/2011/06/20110610_UN_A-RES-65-277_en.pdf.181 Note by the Executive Director ,’Drug control,crime prevention and criminal justice: A human rightsperspective,, Commission on Narcotic Drugs, Fifty-thirdsession, Vienna, 8–12 March 2010 and Commission onCrime Prevention and Criminal Justice, Nineteenthsession, Vienna, 17–21 May April 2010.Final Conclusion1 Manfred Nowak- UN Special Rapporteur on torturespeaker in the panel discussion ‘What have you done forHIV/AIDS Lately? The Role of Human Rights Mechanisms inAdvancing the AIDS Response’, Special Session, XVIIIInternational AIDS Conference, July 2010,Vienna.http://pag.aids2010.org/session.aspx?s=618.Transcript provided by Kaiser Family Foundation July 20,2010, 15-16.http://globalhealth.kff.org/~/media/Files/AIDS%202010/Support%20Files/What%20Have%20you%20Done%20for%20AIDS%20Lately.pdf.2 Eric Stein; Louis Henkin; Abiodun Williams; ManuelMedina Ortega; and Gabriel M.Wilner, ‘No. 2 - TheDean Rusk Lectures at the Dean Rusk Center’, 2003.Occasional Papers Series. Paper 1, 17.http://digitalcommons.law.uga.edu/rusk_oc/1.3 Erik van Ree, ‘Drugs as a human right’, InternationalJournal of Drug Policy Vol. 10, Issue 2, April 1999 , 89-98.http://www.journals.elsevierhealth.com/periodicals/drupol/article/S0955-3959%2899%2900008-0/abstract#article-footnote-1.4 Erik van Ree,’ Drugs as a human right’, InternationalJournal of Drug Policy Vol. 10, Issue 2, April 1999 , 89-98.http://www.journals.elsevierhealth.com/periodicals/drupol/article/S0955-3959%2899%2900008-0/abstract#article-footnote-1.5 International Federation of Red Cross and RedCrescent Societies (IFRC), Out of harm’s way. Injectingdrug users and harm reduction. Advocacy Reportprepared by Getachew Gizaw, Paul Conneally, PatrickCouteau, Shannon Frame, Sadia Kaenzig, Patricia Leidland Marie-Françoise Bore, December 2010, 3.http://www.ifrc.org/Global/Publications/Health/Harmreduction-report-EN.pdf.6 For more details see: 2011 Summer Course.http://www.soros.org/initiatives/drugpolicy/news/ceusummer-course-20100120;and 2012http://www.summer.ceu.hu/drugpolicy-2012.7 Professor Manfred Nowak had a mandate as SpecialRapporteur from 2004 to October 2010.8Discussing people in prison settings, HIV, druginjecting, sex and the delivery of “harm reductions”programmes such as “clean needle and syringeexchange programs, condoms, all kinds of course, alsomethadone, et cetera” and the reticence of manyauthorities or prison directors to deliver these,Professor Nowak concludes that “from a moralisticpoint of view, you can say you should not invite them toactually inject drugs and to have sex, but this is thereality, so let us forget about laws, be pragmatic, if youwant to prevent the spread of HIV, and of course otherblood-borne diseases, it is not only HIV, it is hepatitis C,it is other diseases as well.” Special Session, ‘What haveyou done for HIV/AIDS Lately? The Role of Human Rights130

Mechanisms in Advancing the AIDS Response’, paneldiscussion, XVIII International AIDS Conference, July2010,Vienna.http://pag.aids2010.org/session.aspx?s=618.Transcript provided by Kaiser Family Foundation July 20,2010, 15-16.http://globalhealth.kff.org/~/media/Files/AIDS%202010/Support%20Files/What%20Have%20you%20Done%20for%20AIDS%20Lately.pdf.9 Report of the Special Rapporteur on the right ofeveryone to the enjoyment of the highest attainablestandard of physical and mental health, 6 August 2010,UN Doc No A/65/255.http://daccess-ddsny.un.org/doc/UNDOC/GEN/N10/477/91/PDF/N1047791.pdf?OpenElement.10 Special Rapporteur on the right of everyone to theenjoyment of the highest attainable standard of physicaland mental health, Overview of the mandate.http://www2.ohchr.org/english/issues/health/right/overview.htm.11 The recording can be found at:http://www.soros.org/initiatives/health/focus/ihrd/events/grover-20101026(Time 49:22-52:09).12 Anand Grover further explains “There is space withinHIV. HIV, according to me, is space, so therefore you cantalk about harm reduction, and we use it very effectively.HIV was the biggest space for so many issues. Nobodywanted to talk about harm reduction; they don’t want to talkabout men having sex with men and drug users, nothing.”The recording can be found at:http://www.soros.org/initiatives/health/focus/ihrd/events/grover-20101026(Time 49:22-52:09). For more detailssee the op-ed titled ‘The UN Health Rapporteur’sShocking New Clothes’, published by World FederationAgainst Drugs (WFAD) on 03 March 2011.http://www.wfad.se/latest-news/1-articles/561-the-unhealth-rapporteurs-shocking-new-clothes.13 WHO, UNICEF, UNAIDS, Towards universal access:Scaling up priority HIV/AIDS interventions in the healthsector, 28 September 2010, 106.14 Transform Drug Policy Foundation (TDPF), ‘Feardrives the global war on drugs’: AIDS leader calls forlegal regulation’, April 29, 2009.http://transform-drugs.blogspot.com/2009/04/feardrives-global-war-on-drugs-aids.html.15 Transform Drug Policy Foundation (TDPF), ‘Feardrives the global war on drugs’: AIDS leader calls forlegal regulation’, April 29, 2009.http://transform-drugs.blogspot.com/2009/04/feardrives-global-war-on-drugs-aids.html.16Release, Nice People Take Drugs.http://www.release.org.uk/nice-people-take-drugs andhttp://www.release.org.uk/nice-people-take-drugs/289-drugsplayingcards.17 United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances of 1988.18 As clarified by the Commentary on the United NationsConvention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances, 1988 this provision covers alarge spectrum of activities which glorify drug use andpromote a drug culture, in a public manner.19 United Nations Children’s Fund Child ProtectionStrategy, E/ICEF/2008/5/Rev.1, Annual session 2008, 2-3.20 Transform Drug Policy Foundation (TDPF), ‘Feardrives the global war on drugs’: AIDS leader calls for legalregulation, April 29, 2009.21 Committee on the Rights of the Child, Treaty-specificguidelines regarding the form and content of periodicreports to be submitted by States parties under article44, paragraph 1 (b), of the Convention on the Rights ofthe Child, adopted by the Committee at its fifty-fifthsession (13 September-1 October 2010),(CRC/C/58/Rev.2) and Annex to the GeneralGuidelines Regarding the Form and Contents ofPeriodic Reports to Be Submitted By States Partiesunder Article 44, Paragraph 1 (B), of the Convention, 1October 2010.22 Committee on the Rights of the Child, Considerationof reports submitted by States parties under article 44of the Convention. Concluding observations: Ukraine.CRC/C/UKR/CO/3-4, Fifty-sixth session, 17 January – 4February 2011, paragraph 61, 14-15.23UNODC, ’World Drug Report 2011’, 9.http://www.unodc.org/documents/data-andanalysis/WDR2011/World_Drug_Report_2011_ebook.pdf.24United Nations Population Fund (UNFPA), ’State ofworld population 2011. People and possibilities in aworld of 7 billion’.http://foweb.unfpa.org/SWP2011/reports/EN-SWOP2011-FINAL.pdf.25 A large segment of population have no intention toillicitly use narcotic drugs or psychotropic substancesor get involved in their production and trafficking.131

THIS BOOK IS A MAJOR LANDMARK in humanrights and international drug policy. Authors RoxanaStere and Stephan Dahlgren examine the universalhuman rights objective of protecting children from druguse, production, and trafficking as stipulated by the UNConvention on the Rights of the Child (CRC), the onlycore human rights treaty that specifically deals with theissue of illicit drugs. Following a detailed legal analysis theauthors conclude that in order to conform to theminimum standard set out in CRC Article 33, StatesParties must adopt national drug policies directlypromoting “a drug-free society”, in order to create theprotective environment for children that CRC prescribes.Drug policies have to be child-centered and focused onachieving this goal.Robert L. DuPontISBN 978-91-89572-15-7Fri Förlag in cooperation with World FederationAgainst Drugs, the Swedish Society for Sobrietyand Social Upbringing and the Swedish Carnegie Institute9 789189 572157