Finally, the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances promotes co-operation between states to address the international dimension of trafficking, establishing measures against drug trafficking (including criminalisation at the domestic level), provisions against money laundering, the diversion of chemical precursors, mutual legal assistance and extradition.397 Together, these conventions aim to control illicit drugs by reducing their supply, in particular through criminal sanctions. The conventions do not require criminalisation of drug use per se,398 and they allow for treatment, after-care, rehabilitation and social reintegration, as opposed to penal punishment, for persons with drug dependence who commit drug trafficking-related offences.399 The Commission on Narcotic Drugs and the International Narcotics Control Board (INCB) monitor these conventions and assist states in implementing them.400 Some of the official documents of these bodies provide useful guidance on the contemporary interpretation of the conventions (e.g. a 2002 legal opinion about the legality of harm reduction programmes according to the conventions).401 Moreover, many changes have occurred since their adoption, including the appearance of infectious diseases such as HIV, which need to be taken into consideration in order to implement the conventions today.
Commission on Narcotic Drugs calls for removing obstacles to HIV services
Reiterating the commitments made in the Single Convention on Narcotic Drugs of 1961, in the preamble to which States parties expressed concern for the health and welfare of mankind; …
Reaffirming that all countries should strive to achieve the highest attainable standard of physical and mental health for their people, as recognized in the relevant international instruments; …
Urges Member States to remove obstacles to the achievement of the goal of universal access to HIV prevention, treatment, care and related support services so that people living with HIV, or at elevated risk of contracting HIV, including drug users, may use available services.
“Achieving universal access to prevention, treatment, care and support for drug users and people living with or affected by HIV” (Commission on Narcotic Drugs Resolution, March 2010)402
In addition to the UN drug conventions, international and regional human rights treaties also provide important context for the legal environment for the control of illicit drugs.403 In particular, the right to health is directly relevant because “health is at the core of drug policy”.404 The International Covenant on Economic, Social and Cultural Rights includes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.405 Similarly the African Charter on Human and Peoples’ Rights includes the right of every individual to “enjoy the best attainable state of physical and mental health”.406 Interrelated with the right to health are the rights to life, liberty and personal security, to be free from ill treatment and discrimination, and to enjoy other human rights as embodied in treaties such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The application of drug laws in a manner that results in the spread of HIV and other communicable diseases among people who use drugs could amount to a violation of the right to health.407 This principle was recognised by a group of European and Latin American judges in the 2009 Porto Declaration, in which they explicitly prioritised the rights to human dignity, health and life over punitive policies with respect to illicit drug use.408 Similarly, the UN Special Rapporteur on the right to health has indicated that the right to health prevails in cases of conflict between the goals and approaches of the international drug control regime Chapter 7
89