Paul Hunt has said that drug control and human rights have operated in ‘parallel universes’. For the most part this is true and the vast majority of human rights advocacy and scholarship in this area goes to attempting to bridge that divide and hopefully mitigate some of the damage brought about by the ‘war on drugs’. Recently, however, I have become more and more interested in those areas where human rights and drugs have already converged, sometimes explicitly. This leads to the ECHR and to questions about whether such convergence is a good thing.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
Article 5(1)(e) of the ECHR is unique in international human rights law. The formulation is absent from the American Convention on Human Rights, the African Charter on Human and People’s Rights and the Covenant on Civil and Political Rights. A first question, then, is how this fairly odd wording arrived in the ECHR? It did not feature in the UDHR or in the draft Covenant on Human Rights drafted in 1949 and from which article 5 began. The answer, it appears, is Sweden, though there is an interesting gap in the travaux in this regard.
Reference to alcoholics, drug addicts and vagrants was absent from the initial drafts of the article. At the first expert committee meeting, however, Sweden proposed the wording that ‘This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism…’ This attention to alcohol makes sense when one considers the history and influence of the temperance movement in Sweden. It was ultimately withdrawn, however, on the condition it be put on record that the text ‘covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness …’. It is further recorded that ‘the Committee had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order’.
But it is a big step from an informal agreement as to latitude to an explicit limitation. And this is where the gap arises. The travaux only record that a drafting committee amended the article to include ‘persons of unsound mind, alcoholic or drug addicts or vagrants.’ So while we have a strong push from Sweden, it is unclear why the step was taken to include it in the treaty, how the wording was ultimately agreed, or how ‘drug addicts’ came into it.
But why does this provision matter? I have some reasons why I think it is worthy of attention.
To begin with, it has not been the subject of significant scholarship, doctrinally or otherwise. Perhaps because it has not been litigated at the Court. William Schabas’ commentary on the ECHR discusses some of the case law on alcohol(ism) that may be applicable to other drugs. But, for example, the Court has held that ‘alcoholics’ need not mean someone clinically described as such. Does the same apply to ‘drug addicts’? And by implication is somebody who uses drugs a ‘drug addict’ under the ECHR? This is plainly at odds with reality. But perhaps a teleological approach can repair the wording, which Schabas describes as ‘embarrassingly archaic’ (he was referring to vagrancy and unsound minds, but ‘drug addict’ has disappeared from international policy and technical descriptors for its inaccuracy and stigmatising tone). According to the Court the limitation is justified because all such persons are ‘socially maladjusted’, ‘occasionally dangerous for public safety’ and to their own interests. That was perhaps the view in drafting, at least the first two reasons. Teleologically, we can focus on that. But what are the wider policy and practice implications of representing the problem of drugs in terms of a threat warranting explicit rights limitations such as this (to think in terms of Carol Bacchi’s ‘what is the problem represented to be’ approach)?
In this regard, we know that the threat of drugs creates exceptional cases, a ‘good enemy’ to fight, and through which States fairly easily justify repressive measures and restrictions on rights. This concern arose, for example, in drafting the 1972 protocol amending the Single Convention on Narcotic Drugs. During negotiations on a draft provision on incitement to use drugs, freedom of expression concerns were raised by the Netherlands and Denmark. For Costa Rica, the USSR and others, that concern paled in comparison to the drugs threat. Moreover, the provision was ‘subject to constitutional limitations’ which would retain national rights protections. For Denmark, however, at issue was not merely whether States were obligated to implement such measures, but also the potential permissiveness with regard to infringements on civil liberties that such a provision might introduce. This is precisely Neil Boister’s concern about the ‘no holds barred’ ethos of the drugs conventions. The drugs threat as an exceptional situation was raised by Manfred Nowak in one of his final reports as Special Rapporteur on Torture, based on years of attending places of detention globally.
I have recently been searching through approximately 200 national constitutions to understand if and in what ways illicit drugs appear outside of ‘ordinary legislation’. Over 60 national constitutions include illicit drugs in some way. Within these I was expecting to see the influence of the UN drugs conventions or, more broadly, the ‘war on drugs’. There is some evidence of this. Beyond provisions we would expect to see, such as establishing government or institutional authority over the topic, we see prohibition set out as a fundamental value (e.g. Colombia, Peru, Turkey) and the fight against drugs as a basic aim of the State (approximately fourteen constitutions). There is also a range of limitations on rights which resonate with the ‘punitive suppression’ model of drug control enshrined in the drugs conventions. These include provisions on preventative detention without a warrant (Peru), and stripping of citizenship (Chile) or residence (Switzerland) from those convicted of drug trafficking. There are also limitations on bail for suspected drug traffickers (Mauritius, Brazil), on the extradition of nationals (Brazil, Honduras, Venezuela), on the guarantee of a civilian trial (Jordan), and on property rights in the form of asset forfeiture (Mauritius, Mexico, Venezuela).
But by far the most common appearance of drugs in national constitutions is addiction as an explicit limitation on liberty and security of the person. This appears in thirty-three constitutions and tends to be worded as follows:
Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:
in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community
This is from article 35(1)(e) of the Nigerian Constitution, and first appeared in 1960. The language demonstrates the ECHR connection. Thirty of the thirty-three are former British colonies and the provision was translated into their independence constitutions or in later amendments. In most cases copied nearly verbatim from the ECHR. There is little variation across them. (The remaining three are Armenia and Estonia, which both also use the ECHR formulation, and Singapore, which has its own.) Another reason to pay attention to it, then, is that the ECHR is not limited to the Court or to Europe. And the implications of this requires further research. For example, at a recent meeting on human rights and drug policy, a Nigerian Judge explained how the above provision is used to justify compulsory treatment of people who use drugs. It is an explicit constitutional limitation on one of the most basic of rights for a group that is recognised to have been ‘pushed to the margins of society’. Perhaps part of that push is just how easily the rights of people who use drugs can and have been limited. Many governments, globally, have a low threshold for when detention of people who use drugs can take place, including for the protection of the public, for their ‘own good’ or for the protection of the unborn child. Constitutional or human rights treaty-based support for this seems unhelpful at best.
Of course, Article 5(1)(e) may be seen as no more than grounds for detention to which the wider safeguards the Court has set out must then be applied. Those safeguards are certainly important to make clear in the context of drug use. But this needs to be done explicitly, because at this stage drugs have in fact become exceptional. Perhaps the wider application of the ECHR to drug policies is a good place to start, foregrounding positive obligations towards, as opposed to enumerating limitations on the rights of, people who use drugs.