Human rights in drug policy: A self-assessment tool

By the Council of Europe

From consensus to implementation

In the past decade the human rights dimensions of drug policy have risen to prominence in international and European policy debates. At European and UN levels it has been agreed upon for many years that the response to drug use and the drug trade should be implemented in full conformity with human rights. Based on this commitment, the Council of Europe’s Committee on Legal Affairs and Human Rights commissioned a ‘baseline’ study on the status of human rights in relation to drug policy in the region, which identified good practices as well as areas of concern and knowledge gaps. The UN Human Rights Council has now issued resolutions calling for greater attention to the human rights consequences of efforts to control drugs. A UN Common Statement on drug policy was agreed upon in 2019 by the heads of all UN agencies. What these and other important documents highlight is that while there is a strong consensus that human rights must be fully adhered to in drug law, policy and practice, there remains much work to put this commitment into practice.

The role of human rights in drug policy

Human rights primarily mediate the relationship between individuals and the State. In some ways they direct States as to what must be done. In other ways they restrain States from doing certain things. Drug policy should aim towards improved health and welfare of individual and societies. However, the right to health is interdependent with the wider human rights framework and retains fundamental freedoms. The protection of the public’s health is certainly a legitimate aim for the purposes of limitations on certain rights, but identifying this aim is only a first step. Limitations on rights should also be subject review and to a proportionality test. The rationale limiting rights may not always be publicly stated, certain laws may have been adopted without analysis of the rights implications, or may not have been subject to review for many years. Moreover, human rights apply not only to proposed outcomes, but also at the means used to pursue those outcomes. Even if the aim is to achieve improved health, certain means may result in problems for human rights.

Aim and approach of the tool

With this new self-assessment tool, the Pompidou Group aims to address the challenge of assessing human rights in drug policy. There are challenges with how to measure progress in the absence of standardized indicators across many issues, and across countries. In addition, both human right and drug policy are very broad, and bringing them together can seem daunting. The aim of this tool is to provide a straightforward entry point for human rights assessment across key issues. This assessment is envisaged as a collaborative, reflective process, recognizing the variation in approaches and differing contexts across the region. By linking key topics to human rights standards and more specific probing questions, its aim is to provide a practical framework to investigate and assess the human rights implications of drug laws, policies and practices.

Understanding the situation on the ground: Much work has been done in recent years to clarify what human rights law may require in the context of drug policy. This is very helpful in better understanding State obligations, but in the abstract human rights are of limited use. A major step in translating commitments into practice is better understanding the situation on the ground. This tool is therefore intended for use by Council of Europe Member States for internal analysis, ideally collaborating with civil society, with a view to better understanding their own human rights situation in this policy context.

Internal, voluntary and non-comparative: The tool is not a comparative ‘scorecard’. The Pompidou Group has published the tool but will not collate or publish State information and there will be no central database against which States will be checked against each other. The tool is for self-assessment – an internal process for States to voluntarily undertake.

A view to progress and reform, rather than a ‘violations approach’: The tool is not intended to identify violations, but for an assessment of law, policy and practice with a view to making human rights progress. It does not follow up on judgments or recommendations of any specific human rights mechanisms. The aim, in other words, is not to ‘name and shame’ or to adopt an overly legalistic approach.

An invitation to explore further: The tool is envisaged as an adaptable entry point. It is not comprehensive, and it is recognized that some issues are not included. By including a selection of key recurring issues relevant to the region, across social, health and criminal justice domains, the tool is an invitation for States to work within and across ministries to explore progress, problems, and those areas where human rights issues may have been overlooked.

Practical application

The self-assessment concept relies on a set of (non-exhaustive) questions designed to enable concerned decision makers as well as managers and administrators to explore human rights compliance of different drug policy options and interventions.

Being conscious of existing reporting obligations and high workloads in this policy sphere, the concept is designed in a way that readily available sources of information should suffice to conduct the assessments, and standardized indicators are not required.

However, the tool envisages cross-ministerial/departmental communication. While the issue of drugs is sometimes held within one ministry, many of the issues involved cross policy spheres (e.g. education, health). This communication is seen as an important part of human rights assessment.

The tool may be used at any time. It can be used on its own, as an entry point for identifying issues needing further attention, or it can supplement other processes. For example, if an assessment of drugs interventions in schools was being undertaken, the section on schools in this tool can be added to ensure that important child rights aspects are taken into account.

The tool need not be used in its entirety, at one time. Selected topics may be focused upon, using the human rights standards and the questions posed as an entry point for a deeper assessment.

In using the tool, States can:

• Achieve a better understanding of how human rights apply to specific areas of drug policy, communicated across relevant ministries
• Identify knowledge gaps, areas for more in-depth assessment
• Supplement or facilitate existing reporting requirements (e.g. periodic reporting to UN human rights treaty bodies)
• Collate key information that can be reported at international political meetings where human rights and drug policy are increasing on the agenda (e.g. Pompidou Group and other Council of Europe meetings; UN Commission on Narcotic Drugs; UN Human Rights Council)