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Barrett, D; Tobin, J --- "Article 33: Protection from Narcotic Drugs and Psychotropic Substances" [2016] UMelbLRS 7

Last Updated: 22 May 2019

ARTICLE 33: PROTECTION FROM NARCOTIC DRUGS

AND PSYCHOTROPIC SUBSTANCES

Damon Barrett & John Tobin

TABLE OF CONTENTS

I INTRODUCTION

A A Protective Agenda

The text of article 33 indicates that its inclusion in the Convention was motivated by a protective agenda. Under such a model, contrary to widely adopted approaches towards adults, children, especially younger children are to be seen more as victims whose relative immaturity leaves them vulnerable not only to using such substances but to being exploited by those involved in their production and trafficking. As such, central to the approach adopted by article 33 is that children require protection, not punishment. A degree of caution is required with regard to this broad model, however. The balance between when a child should be considered deserving of protection rather than punishment is often contested. Indeed, many states have adopted a criminal justice model when it comes to the treatment of children associated with the use and/or production and trafficking of drugs, especially older children.^[1] Conversely, there are strong calls for a public health response to inform all efforts to address the issue of drug use and dependence, irrespective of whether the person involved is a child or adult. These calls include related criminal law reform. ^[2] What is clear, however, is that the Convention has adopted an explicit focus on the protection rather than prosecution of children in this context. Moreover, it stands alone among international human rights treaties in containing a provision dealing explicitly with children and drugs.^[3]

The novel and innovative inclusion of an article concerning drug use and trafficking by children has not, however, attracted significant attention or commentary in academic^[4] or policy^[5] debates concerning the response to the problem of drugs. This is despite the fact that this problem has been described as a threat to ‘the development of young people, the world’s most valuable asset’^[6] and ‘a challenge of global dimensions which constitutes a serious threat to the health, safety and well-being of all mankind, in particular young children.’^[7] This is not to say that article 33 remains completely invisible within discussions about how to address this problem, rather, that its treatment has generally been superficial.^[8] This response is to some extent understandable, given that the Committee has yet to issue a general comment on article 33 and that the international legal and policy response to drug-related matters has traditionally adopted a law and order focus,^[9] and remained largely within the purview of bodies such as the UN Commission on Narcotic Drugs, UN Office of Drugs and Crime and the International Narcotics Control Board, rather than human rights bodies.

B The Shift to a Rights-Based Approach

This narrow gaze has, if not prevented, then at least hampered the development of an understanding of what it means to adopt a human rights-based approach to the issues of drug use and trafficking among children as an alternative to the traditional law and order model. Under a rights-based approach, article 33 is not to be considered in isolation. On the contrary, its content and implementation are to be understood in light of the other provisions under the Convention which provide the context in which it must be interpreted. Thus, central to any reading of article 33 are the general principles of the Convention (articles 2, 3, 6, 12), alongside the ‘evolving capacities of the child’ (article 5). In addition there are clear connections between article 33 and the obligations of progressive realisation and international assistance (article 4); the right to receive and impart information (article 17); the right to health (article 24); the right to education (article 28); appropriate assistance to parents (articles 5 and 18); the right to social security (article 26); protection from neglect or violence (article 19); leisure and recreation (article 31); the right to an adequate standard of living (article 27); freedom from economic exploitation (article 32); the rights of children deprived of their liberty (article 37); and juvenile justice standards (article 40).

The cumulative impact of these provisions is that any ambiguity stemming from the broad framing of article 33 can be reduced to the extent that the other provisions of the Convention provide additional normative guidance with respect to the ‘appropriate measures’ required of states to protect children from illicit use and to prevent their involvement in the drug trade. Thus, for example, research indicates that measures to protect a child from violence and neglect (as required under article 19) may help reduce initiation into drug use^[10] as may school retention, a positive, trusting school ethos and well-crafted school based programmes (articles 17, 28).^[11] A range of structural factors such as poverty and a lack of economic opportunities (article 27) are important drivers of involvement in the drug trade and addressing these may be helpful in reducing the prospects of a child being used in the illicit production and trafficking of controlled substances.^[12] Moreover, a child who uses drugs or becomes involved in production and trafficking in contravention of a state’s criminal law must be treated with dignity and respect in accordance with article 40.

C Key Interpretative Issues

Despite the contextual guidance offered by other articles under the Convention, these provisions only inform rather than resolve the interpretative issues that arise under article 33. In this respect there are at least four key issues that require closer consideration. First, from which substances must children be protected under article 33? Second, what is the scope of the obligation to protect children from the illicit use of such substances? Is it merely a preventive obligation to stop children using drugs or does it extend to a remedial obligation requiring states to provide harm reduction, treatment and rehabilitative services to children who suffer harm from their drug use? Third, what is the nature of the obligation to prevent the use of children in the illicit production and trafficking of such substances? Finally, is it possible to outline an understanding of the phrase ‘all appropriate measures’ which is capable of guiding states with respect to the practical steps required pursuant to article 33?

A consideration of these questions invites the following conclusions. First, as the text of article 33 indicates, the substances which are the subject of concern under this provision are those defined in ‘the relevant international treaties’. This phrase was intended to capture those substances controlled under the Single Convention on Narcotic Drugs^[13] (‘Narcotics Convention’^[14]) and the Convention on Psychotropic Substances (‘Psychotropic Substances Convention’).^[15] However, the list of relevant instruments under article 33 is not confined to these two treaties and extends to others which were not discussed during the drafting of the Convention. This includes the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (‘Trafficking Convention’),^[16] and may include the WHO Framework Convention on Tobacco Control (‘FCTC’),^[17] which requires states parties to prohibit sales to and by children,^[18] and the FCTC Protocol to Eliminate Illicit Trade in Tobacco Products.^[19] Thus it is arguable that the use of tobacco products is now within the protective scope of article 33, although this is not entirely clear and is discussed further below. Alcohol, one of the most commonly used substances by children, ^[20] remains outside its scope, since it is not subject to control under a relevant international instrument.^[21]

Second, the scope of the obligation to protect children from the illicit use of controlled substances should not be confined to a preventive obligation. On the contrary, if the interpretation is to take account of the Convention’s other requirements, protection should be seen to encompass an obligation to take all reasonable measures within a state’s available resources both to prevent the illicit use of scheduled substances and to provide appropriate treatment and harm reduction services where a child suffers harm from the use of such substances. In this sense, protection is best understood as an obligation that endures for as long as a child is either exposed to or actually experiences the harm associated with drug use.

Finally, the phrase ‘all appropriate measures’ provides states with a significant degree of discretion with respect to the measures they adopt to protect children from the illicit use of narcotic drugs and psychotropic substances and prevent their involvement in the illicit production and trafficking of such substances. This discretion, however, remains subject to the caveat that whatever measures are adopted they must be consistent with the Convention and international law more generally and must be effective. This means, for example, that, where appropriate, states must actively engage children in the process of developing measures, in accordance with article 12 of the Convention. As a consequence the protectionist concerns that underlie article 33 are not to be understood through a traditional welfarist lens in which children are to remain silent while adults save them from the harms of drugs. A rights-based approach still demands that adults protect children but not in ways that deny children recognition of their evolving capacities, resilience and insights into the measures to protect them from the harms associated with drug use or involvement in the drug trade.

II THE OBLIGATION TO PROTECT CHILDREN FROM THE ILLICIT USE OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

A Illicit Use

Article 33 is concerned with protecting children from the illicit use of substances ‘defined in the relevant international treaties’. This acknowledges that there are licit, or lawful, uses of certain substances controlled under the relevant international instruments, where they are used for legitimate medical and scientific purposes. Indeed, states are obliged to provide children with access to essential medicines controlled under the UN drugs conventions (such as morphine) for the purposes of ensuring their right to health under article 24 of the Convention^[22] an obligation mirrored in States obligations under the Narcotics Convention.^[23] As such, while it can be a convenient shorthand, it is not appropriate in a legal sense to refer to ‘illicit drugs’ or ‘illicit substances’, but rather illicit uses of the substances under control.

The focus on the illicit use of controlled substances means that concerns regarding children’s use of some medications prescribed by medical professionals will fall outside the scope of article 33. This should not be taken to mean, however, that the Convention is silent with respect to this issue as matters concerning the suitability and quality of drugs lawfully administered to children fall within the purview of article 24 and a child’s right to the highest attainable standard of health. ^[24]

B Narcotic Drugs and Psychotropic Substances as Defined in International Treaties

1 The Core Instruments

Article 33 is only concerned with ‘narcotic drugs’ and ‘psychotropic substances’, as defined in the ‘relevant international treaties’. The reason for this reference to international treaties was not to bind states to the measures required under such instruments, but simply to ensure that appropriate international definitions were used in determining what constitutes the relevant ‘narcotic drugs’ and ‘psychotropic substances’ for the purposes of article 33. In this regard, as the WHO noted during the technical review of article 33,^[25] the principal treaties at the time were the Narcotics Convention (as amended by its 1972 protocol) and the Psychotropic Substances Convention.

The substances which are under international control are listed in the schedules to these instruments.^[26] The Narcotics Convention primarily controls cannabis, opium poppy, coca and their many derivatives (including heroin and cocaine), but also covers a range of synthetic substances such as methadone and other opioids.^[27] The Psychotropic Substances Convention deals with pharmaceutical products and synthetic drugs such as LSD (lysergic acid diethylamide) and ecstasy (methylenedioxy-methylamphetamine or MDMA).^[28] The Trafficking Convention schedules precursor chemicals necessary for the production of certain drugs. ^[29]

The production, sale and use of controlled substances are to be confined strictly to medical and scientific purposes.^[30] The measures of control set out under the conventions, involving four schedules of varying levels of strictness, are intended to vary according to the dependence producing properties, therapeutic value and the risk of abuse associated with each substance.^[31] There are, however, considerable discrepancies, in particular with relation to the control of the coca leaf, the use of which is not harmful of itself,^[32] and cannabis, which is controlled alongside considerably more harmful substances.^[33]

2 An Expanding List

The international drug conventions empower the UN Commission on Narcotic Drugs (‘CND’) to bring new substances under international control or to remove them. This does not require a plenipotentiary conference. It is done by a vote among the fifty-three members of the CND.^[34] Over the years, the number of substances under international control has grown exponentially and no substances have, to date, ever been removed from international control. As these substances are added to the international schedules, states parties to the Convention on the Rights of the Child must also take all appropriate measures to protect children from using them, and prevent their use in production and trade of those substances. This means that the scheduling decisions of the fifty-three members of the CND affect the legal obligations of all states parties of the Convention. Thus, there is a compelling reason for states parties to the Convention to take extra care in ensuring that scheduling decisions made in Vienna are themselves ‘appropriate’.^[35]

Importantly, the list of international instruments referred to in article 33 is not exhaustive. Thus, for example, the Trafficking Convention was not discussed during the drafting of the Convention even though it had been adopted by the time of the second technical review of article 33 in 1989. Nonetheless, this instrument would likely be considered a relevant treaty under article 33 given its relationship to the other two drugs conventions and that the use of children in the illicit production and trafficking of precursor chemicals should be prevented by virtue of article 33. Indeed, the Committee has recently requested that states that have not done so ratify or accede to this treaty.^[36] As such, the list of relevant international treaties of relevance to article 33 is open to expansion (and in theory retraction).

3 The Status of Tobacco

Tobacco was not originally included within the purview of article 33. However, a question arises as to whether its status has changed as a result of the adoption of the FCTC and its protocol on the illicit tobacco trade. It flows from the inter-related nature of the three international drugs conventions that the Trafficking Convention would be considered a relevant treaty under article 33. Its focus is on precursor chemicals necessary for the production of the substances scheduled in the earlier treaties. As such, States parties have an obligation to prevent the use of children in the illicit trade in these substances.

The status of the FCTC is somewhat less clear. Two main questions arise. First, article 33 is intended to protect children from the illicit use of controlled drugs. This begs the question of what would constitute an illicit use of tobacco, which is intended for recreational use. Article 16(1) of the FCTC clearly prohibits the sale of tobacco products to children under a set age or eighteen.^[37] This implies that purchase and use beneath that age would be illicit. On the one hand this is somewhat different from the drugs controlled under the Narcotics and Psychotropic Substances Conventions whereby all uses outside of medical and scientific purposes are illicit. On the other, the only difference is the nature of the controls adopted - one framework rooted in criminal laws, the other in market regulation – but both have as an aim the protection of children from the substances in question.

The second main question is whether the FCTC’s protocol on the illicit tobacco trade could be considered a relevant international treaty for the purposes of article 33 independent of the above question or must the FCTC also be included?

The importance of this discussion extends beyond the FCTC itself to the question of the characteristics required of a new treaty for it to be considered ‘relevant’ for the purposes of article 33 and thus engage its protections. Would an alcohol treaty, if adopted, or one protecting children from solvents, or a new protocol to address novel psychoactive substances^[38] be captured? Do the nature of the controls within any such treaties have a bearing?

In any event, states are still under an obligation to protect children from the harmful effects tobacco as a component of the child’s right to the highest attainable standard of health under article 24 of the Convention. Indeed, this article is cited in the FCTC’s preamble (but not, interestingly, article 33). Children’s involvement in the tobacco trade, licit or illicit, is still addressed by article 32.

4 The Exclusion of Substances Commonly used by Children

The nexus between article 33 and international drug treaties has meant that some of the substances most commonly used by children, namely alcohol^[39] and inhalants such as gas fuels, aerosols, glues and solvents,^[40] remain excluded from the scope of the provision. This was not due to a lack of understanding as to the effects of these substances or the prevalence of their use among young people at the time of drafting. Indeed, it was proposed during drafting to extend the scope of the protection against drugs to all kinds of drugs, including alcohol but this was rejected for reasons that remain unclear.^[41] For some commentators, this ‘omission is significant in a Convention designed to address international social problems of children because alcohol is perhaps the most serious substance abuse problem facing children today’.^[42] It is important to note, however, that alongside substances that were known at the time article 33 also currently excludes novel psychoactive substances that have emerged since the Convention was drafted but are not under international control.^[43]

For its part, the Committee has routinely expressed concern at the incidence of tobacco, alcohol^[44] and inhalant^[45] use in its concluding observations on states’ reports. These concerns are often raised, quite legitimately, within the broad context of adolescent health, which is covered under article 24 of the Convention.^[46] However, with respect to those occasions where the Committee’s recommendations invoke article 33,^[47] it has no mandate for doing so with regard to alcohol and solvents, and, as discussed above, an unclear mandate with regard to tobacco.

C The Scope of the Obligation to Protect Children from the Illicit Use of Narcotic Drugs and Psychotropic Substances

1 Understanding Protection as a Preventive and Rehabilitative Obligation

The obligation to protect children from the illicit use of narcotic drugs and psychotropic substances requires appropriate measures to prevent initiation of drug use among children under the age of 18. However, an issue arises as to whether the obligation to protect is merely preventive or extends to a rehabilitative/remedial obligation that would require states to take appropriate measures to address any harm associated with a child’s drug use.

The original wording proposed by China, which focussed on ‘preventing and prohibiting’ a child from using drugs, was rejected^[48] in favour of ‘protection’. In contrast, the language of prevention was retained in relation to children’s involvement in the production and trafficking of drugs. Moreover, the use of ‘protection’ was proposed by the Ad Hoc NGO Group, and measures of a ‘remedial and curative nature’ were seen to be a component of protection.^[49] A later formulation by the China delegation also stated that ‘competent national authorities should investigate cases of drug abuse by a child and timely medical treatment should be provided for the child so that he or she may be assured prompt rehabilitation and healthy growth’ (emphasis added).^[50] Thus, such discussions indicate that there was at least an understanding among some delegates that protection should extend beyond prevention.^[51]

For its part, the Committee appears to support this position and has requested information in its guidelines for periodic reporting on ‘assistance programmes’ for children and young people who use drugs.^[52] Moreover, states parties have consistently reported on treatment and rehabilitative interventions in their periodic reports to the Committee in the context of substance use.^[53] The cumulative impact of these factors tends to support a conception of protection as both preventive and remedial. Indeed, it would be incongruous to conceive of protection as merely preventing a child from initiating drug use given the prospect that a child may often suffer harmful consequences to their health as a result of such use or potentially develop a dependency. In circumstances where these risks materialise, there is a need to protect a child from the associated harm to his or her health.

In any event, article 24 clearly imposes an obligation on states to implement sufficient quality services for children whose health is affected by drug use. This connection between articles 24 and 33 was clearly stated by the Committee in the context of injecting drug use and HIV, where it explained that:

Consistent with the rights of children under articles 33 and 24 of the Convention, States Parties are obligated to ensure the implementation of programmes which aim to reduce the factors that expose children to the use of substances, as well as those that provide treatment and support to children who are abusing substances”.^[54]

Thus, article 33 should not be read in isolation if it is to provide effective protection for children from the potential harms associated with the use of controlled substances. Instead, it provides a window or lens by which to access and harness all the provisions under the Convention when developing strategies to address drug use among children.

2 The Meaning of the Obligation to Take ‘All Appropriate Measures’ to Protect Children from the Illicit Use of Narcotic Drugs and Psychotropic substances

(a) A Tripartite Obligation

Article 33 demands that states ‘take all appropriate measures’ to protect children from the illicit use of narcotic drugs and psychotropic substances as defined by the relevant international treaties and prevent their use in the illicit production and trafficking of such substances. This is a mandatory obligation which arguably imposes a heavier burden on states relative to alternative phrases used in the Convention such as ‘undertake to ensure’ (in art 3(2)), ‘undertake to respect’ (art 8(1)) or ‘recognize’ (art 15(1)). At the same, article 33 remains subject to the overarching obligation under article 2, which demands that states ‘respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination’. The meaning of this obligation, which is discussed in the commentary to article 2, is generally accepted to impose an obligation on states to respect, protect and fulfil a child’s right.^[55] For the purposes of article 33, this translates into a requirement that states take all appropriate measures in light of available resources to:

• ensure that state actors do not encourage, expose or facilitate the illicit use of controlled substances by children and do not block or impede prevention, harm reduction and treatment interventions for children who have used such substances (the obligation to respect);
• ensure that non-State actors do not encourage, expose or facilitate the illicit use of controlled substances by children and do not block or impede effective prevention, harm reduction and treatment interventions (the obligation to protect); and
• create an effective enabling environment for the prevention of drug use by children and the reduction of any health and social harms associated with drug use (the obligation to fulfil).

(b) The Question of Resources

The fulfilment of the obligations imposed on states parties under article 33 clearly requires the allocation of adequate resources. Article 4 of the Convention provides that the implementation of an economic, social or cultural right remains subject to the availability of such resources. The status of article 33 is, however, unclear under international human rights law as it has no equivalent in the ICCPR or ICESCR that could indicate how it ought to be classified. As discussed in the commentary to article 4, the bifurcation of human rights law into these two sets of rights is conceptually incoherent, so rather than conceive of civil and political rights as imposing immediate obligations and economic and social rights as imposing progressive obligations, a more appropriate approach is to conceive of all rights as consisting of both types of obligation.

In the context of article 33, this gives rise to the question of which measures should be classified as immediate and which as progressive. The Committee’s work on article 33 is not particularly helpful in this regard and the question is not easily answered. However, as a general principle it would be reasonable to expect that legislative and administrative measures, such as establishing a national plan of action or criminalising the exploitation of children in the drug trade, would be seen as immediate, while health and educational measures would be more progressive in nature given the resources involved. That said, as outlined in the commentary to article 4, this does not mean that states are entitled to do nothing with respect to such measures. They still carry the onus of demonstrating via relevant indicators and benchmarks that progress is being made to secure progressively the full implementation of article 33.

(c) The Meaning of ‘Appropriate Measures’

Article 33 requires that states take ‘all appropriate measures, including legislative, administrative, social and educational measures’. The general meaning of this phrase, which appears elsewhere in the Convention, is discussed in detail in the commentary to article 4. In summary, states enjoy a degree of discretion with respect to the nature of the measures which they adopt to fulfil their obligations under article 33. While relatively broad, this margin is not without limits and remains subject to two caveats. First, the measures adopted must be consistent with other human rights standards. Second, they must be effective in securing the enjoyment of children’s rights under article 33.

(i) Consistency with Human Rights Law

The Danger of Unintended Consequences and the Need for Proportionality

There is a tendency for the measures adopted by states to address the illicit use and production of drugs to reflect a narrow law and order response. Not only is this response often ineffective in achieving its goals,^[56] it often contributes to the violation of human rights for both children and adults.^[57] This occurs where the objective of such measures may be legitimate (namely to prevent the illicit production and distribution of drugs) but the measures employed to achieve the aim are disproportionate or have unintended consequences that violate human rights. This is sometimes due to the actions of individuals or certain agencies, but a systemic problem exists in that indicators of success in relation to drug control regularly correlate with practices that interfere with human rights and thus are accompanied by the risk of violating such rights (e.g. investigation, arrest, successful prosecution, eradication of crops, seizure of property, extradition, control of individual behaviours and cultural or indigenous practices).^[58]

It is in this context that the Special Rapporteur on the Right to Health, in a report to the UN General Assembly in 2010, recommended that governments ‘[r]epeal or substantially reform laws and policies inhibiting the delivery of essential health services to drug users, and review law enforcement initiatives around drug control to ensure compliance with human rights obligations.’^[59] He went on to recommend the formulation of ‘guidelines that provide direction to relevant actors on taking a human rights-based approach to drug control, and devise and promulgate rights-based indicators concerning drug control and the right to health.’^[60]

In a similar vein, the Committee has requested a child rights impact assessment of aerial fumigation of coca in Colombia^[61] (a form of crop eradication/drug supply reduction) due to its contribution to adverse health consequences, human displacement, food insecurity and violence.^[62] It has also raised concerns about certain forms of drug treatment, including the arbitrary detention and abuse of children in drug detention centres^[63] and enforcement efforts, such as the use of children in military operations against drug traffickers and the application of criminal laws to children who use drugs.^[64]

Thus states are obliged to ensure that any measures to address drug use and involvement in illicit production and trade are consistent with human rights standards under both the Convention and other human rights instruments.^[65] This requires due diligence, or a human rights impact assessment, on the part of regulators to assess the human rights consequences of any initiatives adopted.^[66] This approach is a component of moving beyond what a former UN Special Rapporteur on the Right to Health to described as the ‘parallel universes’ of human rights and drug control’^[67] and an acknowledgement that, as the UN General Assembly has repeatedly stated, ‘countering the world drug problem’ must be carried out in full conformity with the Charter of the United Nations and international human rights law.^[68]

However, a human rights-based approach does not preclude all measures that interfere with rights. On the contrary, interference will be justified where it is undertaken pursuant to a valid law, pursues a legitimate aim and the measures employed to achieve the aim are proportionate.^[69] With respect to proportionality, states carry the burden of establishing a rational connection (which is usually established by reference to evidence) between the aim sought and the measure adopted. A state must also establish that there are no reasonably available alternative measures that would achieve the aim being sought with less interference with human rights (the minimal impairment principle).^[70] These considerations are critical in any assessment of the legitimacy of drug control measures that may interfere with the rights of individuals. ^[71]

Consistency within the Convention and respect for the views of children

The requirement of internal system coherence demands that article 33 be interpreted in light of the other articles under the Convention.^[72] States’ obligation under article 12 to assure that children’s views are expressed and taken into account in all matters that affect them anticipates an active and dynamic role for children in the identification and development of ‘appropriate measures’ under article 33.^[73] It is in this context that the Committee has called for the formulation of ‘a rights-based plan of action for the protection of children and adolescents from the dangers of drugs and harmful substances and involving children in its formulation and implementation’. ^[74] Moreover, as recognised by the Commission on Narcotic Drugs, there is a need to encourage ‘States and civil society to promote the participation of young people, as agents of change, in the design, development, implementation and evaluation of prevention strategies and activities targeting illicit drug use among young people.’^[75] Thus children’s ‘evolving capacities’ must be fully taken into account and due weight must be given to their age and level of maturity.^[76]

This obligation to engage actively with and respect the views of children in the development of measures to protect them from drug use challenges traditional welfarist models in which children are reduced to mere objects in need of adult protection. Assuredly, children of all ages remain vulnerable to the harms associated with drug use, as do adults. However, under a rights-based approach, children are not defined by their vulnerability. On the contrary, adults must recognise and respect their evolving capacity to provide critical insights into the types of measures that will be effective for the purposes of protecting them from the illicit use of drugs.

The other point to stress is that any measures to address the health consequences associated with drug use must be undertaken in accordance with article 24. In this respect, what is required for the provision of available, accessible, acceptable and sufficiently high quality^[77] health services, such as harm reduction and drug treatment, is far better understood in the context of the right to health than in relation to article 33.^[78] Indeed, it is often under the wider banner of adolescent health that the Committee most often addresses drug and alcohol use.^[79]

(ii) The Effectiveness Principle

The second caveat to the exercise of a state’s discretion when determining appropriate measures for the purposes of article 33 is the requirement that such measures be effective. In terms of assessing the potential effectiveness of any proposed measure, states should be informed by the evidence base, where available, for specific interventions.^[80] As such, relevant academic literature should be consulted alongside international or regional best practice standards, as well as guidance from international expert bodies such as the WHO.^[81]

Periodic evaluation of legislative, administrative, social and educational measures for effectiveness is also vital and especially so when considered in the light of progressive realisation under article 4. Indeed, the periodic reporting process to the Committee may serve as an appropriate time-bound evaluation exercise.^[82]

Guidance as to effective measures may also be found in the resolutions and declarations adopted at international forums such as the World Health Assembly and the CND. Although the content of these documents must be scrutinised for the appropriateness of their recommendations as they might relate to children, in some cases political forums have endorsed international best practice standards. For example, at the CND in 2014, the United Nations Office on Drugs and Crime (‘UNODC’) international standards on drug use prevention were endorsed in a resolution framed by article 33 of the Convention.^[83]

(d) General Measures to Protect Children from the Illicit Use of Proscribed Substances: Insights from the Committee

Beyond the general requirement that appropriate measures be both effective and consistent with human rights standards, there is a need to identify some of the actual measures required of states under article 33. Although the Committee has tended to restate the general nature of the obligation to take appropriate measures in its concluding observations,^[84] there are some recurring themes in its work that offer insights into the type of measures that can be expected of states.

(i) Collection of Adequate, Disaggregated Data and a Focus on Patterns of Vulnerability

First, the Committee has frequently recommended that states collect data and undertake research on drug use among children.^[85] Such demands are consistent with the 2009 UN Political Declaration and Plan of Action on Drugs.^[86] They are also practical, since measures to address drug use among children will only be effective where they are based on an understanding of the complex factors that contribute to these behaviours. The reality is that serious gaps exist in most states in relation to strategic information about use and drug-related harms among children and young people. For example, there is limited surveillance in many of the world’s most populous nations. The best available data relates to high-income countries, and even then, mostly relates to readily accessible children and young people who attend school.^[87]

In addition, the risk of initiating drug use and the health and social harms associated with drug use are not equally distributed. Thus, there is a need to pay special attention to the most vulnerable children in this respect.^[88] These children have been identified by the Committee to include street children,^[89] victims of child abuse,^[90] children in rural communities,^[91] child soldiers^[92] and children who do not attend school.^[93] However, a number of other groups could be added to this list due to a range of identified risk factors^[94] including children whose parents are drug dependent.^[95] Studies have further shown increased risks among those with a history of sexual abuse, those in conflict with the law, involved with gangs, and with mental health problems.^[96]

Age itself is an important factor when considering vulnerability. Children and young people differ from adults in important ways, including how they use drugs, which drugs they use, their knowledge of risks and harms and their knowledge of, and access to, services.^[97] The 2009 Political Declaration and Plan of Action on Drug Control is clear on the need for age appropriate services, a factor reaffirmed by the General Assembly in 2013.^[98] The Committee has also affirmed the need to ‘recognize the particular sensitivities and lifestyles of children, including adolescents’.^[99]

(ii) Adoption of a National Plan

A national drug plan^[100] or national policy for adolescent health^[101] which addresses drug use have also been endorsed and encouraged by the Committee as a means of coordinating a state’s response to this issue. Recently, such plans have been recommended as a core obligation of the child’s right to health under article 24.^[102] Thus it is arguable that a national drug plan should also be considered a core obligation under article 33. Importantly, such a plan must be informed by the best available data and be consistent with the Convention. It is therefore of concern that the Committee has on occasion welcomed the adoption of drug strategies without any consideration of whether these strategies are compliant with children’s rights.^[103]

National plans must be developed in wide consultation with all relevant parties, including civil society organisations, affected communities and children. This is consistent with the Guiding Principles on Drug Demand Reduction which explain that ‘[a] community-wide participatory and partnership approach is crucial to the accurate assessment of the problem, the identification of viable solutions and the formulation and implementation of appropriate policies and programmes. Collaboration among Governments, non-governmental organisations, parents, teachers, health professionals, youth and community organisations, employers’ and workers’ organisations, the private sector and children themselves, in accordance with article 12, is therefore important.^[104]

(iii) Allocation of Adequate and Appropriate Resources

To implement a national plan effectively and fulfil their obligations under article 33, states must allocate adequate human and financial resources.^[105] The principles to guide the allocation of scarce resources by states are discussed above. However, it is relevant to make some observations here with respect to the effective use of limited resources by states when responding to issues concerning illicit substance use by children. Although evidence of the cost effectiveness of various interventions has been demonstrated, some others have not been shown to produce results. For example, spending on drug law enforcement vastly outweighs drug-related health budgets in countries around the world,^[106] yet drug enforcement approaches have often failed to deliver sustainable results.^[107] This indicates that resources are arguably being invested in efforts that are, at best, of limited effect, and also suggests that where resources are constrained, questions should be asked of national budgets as to where the most effective allocation should be made.^[108]

(iv) Collaboration and International Cooperation

To ensure effective implementation of measures to protect children from the illicit use of drugs, the Committee has been clear that states should work with civil society and NGOs^[109] and seek technical assistance from international agencies such as UNICEF, WHO and the UN Office on Drugs and Crime.^[110] International co-operation is a frequent feature of UN agreements on drugs and the General Assembly has affirmed that ‘the fight against the world drug problem is a common and shared responsibility which must be addressed in a multilateral setting ... [and that it requires] ... an integrated and balanced approach.’^[111] Caution must be exercised, however, to ensure that programmes, even if successful in one state, are ‘carefully adapted to the specific social and cultural conditions’ in another.^[112]

(e) Legislative and Administrative Measures

(i) The UN Drugs Conventions and the Dominant Criminal Law Approach

There is a specific obligation under article 33 to adopt all appropriate legislative and administrative measures to protect children from the illicit use of proscribed substances. In this respect the ‘relevant international treaties’ provide some guidance as to the types of measures that may be adopted by states.^[113] The Narcotics Convention, for example, requires that states adopt measures to ensure that the cultivation, production, manufacture, extraction, preparation, possession, offering, for sale, distribution, purchase, sale, delivery, importation or exportation of drugs are punishable offences when committed intentionally (article 36(1)). A similar requirement is imposed by article 22 of the Psychotropic Substances Convention and article 3 of the Trafficking Convention. The criminalisation of cultivation and possession for personal use^[114] first arose in international law in article 3(2) of this treaty.

In recognition of the role of children play in the drug industry, as both potential consumers and suppliers, the Trafficking Convention requires that states classify certain offences as ‘particularly serious’ where inter alia they:

• involve ‘the victimization or use of minors’; or
• are committed ‘in an educational institution or social service facility or in their immediate vicinity or in other places to which children and students resort for educational, sports and social activities.’^[115]

The objective of such measures is to deter and punish those persons who might seek to sell drugs to children or involve them in their production or trafficking. Assuredly, such an objective is consistent with the objective underlying article 33.

However, there is also a need to exercise caution when developing legislative measures that criminalise involvement in the drug trade to ensure that the penalties imposed on adults are consistent with the principles of sentencing under international human rights law. The punitive tenor of these requirements is also problematic when applied to children who are involved in any of the proscribed activities. The Committee is consistent in its view that children should not be criminalised for their use of drugs. ^[116] This does not mean the criminal laws may never be employed with regard to children’s involvement with drugs or the drug trade (on children’s culpability under criminal law see chapter 40). However, even where a state does adopt criminal justice measures with respect to children’s possession, use, production or sale of drugs it must ensure that their treatment remains consistent with article 40 of the Convention, which focuses on rehabilitation rather than punishment and general deterrence. Thus the critical point to stress is that the adoption of any legislative measures by a state to protect children from use of illicit use of drugs must be consistent with international human rights law.

(ii) Looking Beyond Criminalisation

Despite the fact that most states have criminalised most activities associated with drugs, drug use, including among children, continues unabated.^[117] Moreover, many commentators argue that criminalisation has generated more harm than good in increasing prison populations, subjecting people to unnecessary criminal records and increasing the stigma and marginalisation associated with drug use and dependence.^[118] Importantly, article 33 does not demand that legislative measures must be restricted to criminal laws. Moreover, there is a degree of flexibility within the international drug treaties, which allows for alternative measures. For example, the requirement of article 3(2) of the Trafficking Convention, as with other penal provisions within the treaties, is subject to the caveat that states need not criminalise such behaviours if to do so would run contrary to ‘constitutional principles’ or the ‘basic concepts of its legal system’.^[119] In other words, states parties need not necessarily impose criminal laws if to do so would be unconstitutional. Indeed, some have now decriminalised personal possession offences on these grounds.^[120]

There is also leeway within the drugs conventions in relation to health interventions, in particular with regard to harm reduction. Heroin prescription, needle and syringe programmes and safe consumption rooms (where possession of controlled substances on site is for the purposes of public health goals via safer consumption) do not run afoul of treaty provisions^[121] though they accept some degree of ongoing drug use and adopt alternatives to criminal sanctions in response. Caution is required, however, as services designed for adult clients may not be appropriate for children and young people’s needs.

From the perspective of article 33, the overriding consideration must always be whether the legislative measures are effective in protecting children from the illicit use of controlled drugs, rather than a predetermined policy approach. Importantly, further research is required into the most effective regulatory models to protect children from the illicit use of harmful substances.^[122] However, the critical point for the purposes of this chapter is that ‘appropriate legislative measures’ under article 33 of the Convention must not be confined to criminalisation and prosecutorial models of regulation. The appropriateness of such measures, moreover, must be tested against the realisation of Convention rights.

(f) Appropriate Social and Educational Measures

(i) Prevention Measures

Article 33 imposes an obligation on states parties to undertake ‘appropriate social measures’ (emphasis added) to prevent initiation into drug use. Such measures must be evidence-based and consistent with children’s rights.^[123] The concept of prevention has been the subject of significant commentary and analysis within drug policy. For example, according to the EMCDDA:

[p]revention is evidence-based socialisation where the primary focus is individual decision making with respect to socially appropriate behaviours. Its aim is not solely to prevent substance use, but also to delay initiation, reduce its intensification or prevent escalation into problem use.^[124]

Moreover, effective prevention can be understood as consisting of four dimensions:

• environmental (working to change the factors that contribute to initiation); ^[125]
• universal (targeting the population at large, the most common approach); ^[126]
• selective (working with specific vulnerable groups); ^[127]
• indicated (working with specific individuals displaying risk factors or who have already begun using drug to help prevent such use escalating). ^[128]

Effective preventive measures must also be holistic. As the EMCDDA has explained, ‘the challenge of drug prevention lies in helping young people to adjust their behaviour, capacities, and well-being in fields of multiple influences such as social norms, interaction with peers, living conditions, and their own personality traits’.^[129] Thus, although appropriate education measures are still important and indeed required under article 33, effective prevention requires far more than simply telling young people not to use drugs or providing them with information about the dangers associated with drug use. Moreover, as will be discussed below, the evidence supporting the effectiveness of education-based measures is patchy.

Thus, when developing preventive strategies, the following findings of the UNODC are crucial:

More than a lack of knowledge about drugs and their consequences, the evidence points to the following among the most powerful risk factors: biological processes, personality traits, mental health disorders, family neglect and abuse, poor attachment to school and the community, favourable social norms and conducive environments, and, growing up in marginalized and deprived communities. Conversely, psychological and emotional well-being, personal and social competence, a strong attachment to caring and effective parents and to schools and communities that are well resourced and organized are all factors that contribute to individuals being less vulnerable (protective factors, recently also referred to as assets) to drug use and other negative behaviours.^[130]

This indicates that a complex milieu of factors will contribute to an environment in which a child will become vulnerable to drug use. However, it remains the obligation of states to take appropriate measures within the scope of their available resources to address these factors and work to reduce the prospect of a child engaging in drug use. Although this remains a challenging task, best practice standards have been developed for prevention measures over time, including detailed evidence reviews by both EMCDDA and the UNODC.^[131]

(ii) Rehabilitation and drug treatment measures

The reality is that despite bona fide prevention efforts being taken by a state, many children and young people will still experiment with drugs. Although drug use does not necessarily equate to drug abuse and/or harm, some children will experience harmful adverse reactions to the substances they take and others may even develop a dependency. The obligation to protect children under article 33 demands that States adopt appropriate rehabilitative measures to address any harm experienced by children who use drugs. Indeed, a central concern of the Committee’s concluding observations in relation to adolescent health and drug use has been the need to design and provide rehabilitation and treatment programs for children affected by drug dependence.^[132] This is consistent with article 38(1) of the Narcotics Convention, which provides that states ‘shall give special attention to take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social integration of the persons involved.’^[133] However, the Committee has provided little further guidance on what it considers to be ‘appropriate measures’ in terms of drug treatment for children and adolescents. The drugs conventions, moreover, are not prescriptive in this regard. This is appropriate as it allows for scientific evidence to develop. What was understood in 1961 or 1988 when these agreements were adopted is not the same as our understanding today.

However, while states enjoy a significant level of discretion with respect to the rehabilitative measures they adopt, there are some key principles that must guide the adoption of such measures. First, all treatment options must be consistent with the rights to which children are entitled under the Convention.^[134] Second, as with measures to facilitate the enjoyment of the right to health, any drug treatment services must be consistent with the 3AQ model, that is, they must be available, accessible, acceptable and of sufficient quality.^[135] The meaning of these concepts is fully explored in the commentary to article 24 and need not be repeated here. However, with respect to the issue of quality, it is worth noting that there are varied drug treatment options available, ranging from pharmacological treatments, such as opioid substitution therapy for those who use opiates,^[136] to behavioural therapies and family counselling.^[137] A critical point to note is that while treatment protocols have been developed in many countries, caution must always be exercised when transferring best practice from one social, economic or cultural context to another.

Third, the 2008 Principles of Drug Dependence Treatment developed by the UNODC and WHO^[138] provide states with specific guidance when framing their treatment services. Importantly, these principles conform closely with the international standards on the right to health set out above. They include respect for human rights and patient dignity, a requirement of evidence-based interventions and that such interventions be available and accessible. The Principles contain specific discussions of treatment within the criminal justice system, and promote community involvement and the active involvement of patients. Principle 5 calls for a focus on specific groups, including adolescents.^[139]

The principles also include the need for ‘informed consent from the patient before initiating interventions, and guaranteeing the option to withdraw from treatment at any time.’^[140] Although this presents a challenge with respect to younger children, article 12 demands that children have the right to express their views in relation to all matters affecting them. The issue of consent to medical treatment is dealt with more fully in the commentary on article 24.

(iii) Harm Reduction Measures
Harm reduction measures are focused on preventing the social and health harms associated with ongoing drug use without necessarily requiring cessation.[141] The aim is to minimise the harms associated with certain behaviours and prevent progression to more harmful or dangerous drugs or forms of drug use. Indeed, while working specifically with young people who already use drugs, harm reduction crosses over with prevention efforts; for example, in relation to efforts to prevent identified risk-taking behaviours from escalating (indicated prevention) and efforts to prevent transitions into more risky forms of drug use (e.g. from smoking to injecting). An example of the latter is ‘break the cycle’, a programme working with people who inject drugs to encourage efforts to discourage initiation of young people into injecting practices.[142]

Harm reduction measures include overdose prevention and reversal,^[143] advice on safer drug use (for example, in the context of parties and nightclubs) and in relation to specific substances (e.g. warning on contamination and pill testing to inform people of what they are consuming). Harm reduction principles have also been applied to solvent use to prevent serious harm or even death to children and young people.^[144] The best known harm reduction interventions relate to injecting drug use. While this is not often associated with young people, significant numbers of people who inject drugs initiate in adolescence, and in some countries a large proportion of people who inject drugs are adolescents.^[145] International evidence shows that comprehensive harm reduction measures can drastically reduce the transmission of HIV and other blood-borne viruses, such as viral hepatitis, which are related to unsafe injecting.^[146] The Committee addressed this situation in its general comment on HIV in 2003, raising its concern that ‘[i]n most countries, children have not benefited from pragmatic HIV prevention programmes related to substance use, which even when they do exist have largely targeted adults.’^[147]

The focus on harm reduction as opposed to complete cessation of drug use has meant that harm reduction measures have proven to be controversial, particularly at international level.^[148] However, in recent years the Committee has become increasingly supportive of harm reduction strategies after a long silence. So too have the UN Committee on Economic, Social and Cultural Rights^[149] (including specifically with regard to young people^[150]), and the UN Special Rapporteur on the Right to Health.^[151] For its part, the Committee has recommended in multiple concluding observations that appropriate harm reduction programmes be put in place for children who use drugs and, most significantly, in its 2013 general comment on the child’s right to health. ^[152] The Committee has not, however, gone further by outlining the key principles underpinning harm reduction from a child rights perspective, nor has it set out the specific interventions required by states. Again, this is appropriate, leaving a wide discretion to states to respond to local situations. That said, it is still possible and indeed appropriate to identify some of the core principles that should guide states in the development of drug dependence treatment and harm reduction measures.

First, as with drug treatment measures, harm reduction interventions must be consistent with children’s rights under the Convention and conform to the 3AQ standard. Importantly, the core principles of harm reduction as accepted within the sector, largely align with the accessibility, acceptability and sufficient quality requirements of the 3AQ model. They include a requirement of credible evidence; cost-effectiveness; targeting of specific risks and harms (rather than drug use per se); incremental change (recognising small positive steps in people’s lives); participation and respect (working with people who use drugs); and a commitment to human rights and social justice.^[153]

(g) Appropriate Educational Measures

In addition to the obligation to adopt appropriate legislative and social measures, states are also under an obligation to adopt appropriate educational measures. The Committee’s work on this aspect of article 33 tends to fall within four areas: general awareness raising; the education of parents and families; school based and community initiatives; and the need for accurate and objective information. Although such demands are reasonable, there has been a general reluctance of the part of the Committee to interrogate the effectiveness of educational measures. Thus, it remains critical when developing educational measures to protect children from using drugs that these measures are subject to ongoing review and evaluation to determine their effectiveness.

(i) Awareness-raising

The Committee has regularly stressed the need to raise awareness about the nature and consequences of drug use among children within the broader community.^[154] Such calls have an intuitive appeal but the evidence is less supportive of general awareness-raising measures.^[155] Mass media campaigns targeting the population at large are known to be of little or any effect,^[156] while appeals to children’s rational decision-making by simply explaining the risks have also not proven effective, leading researchers to call for broader approaches that recognise social and other drivers.^[157] Despite the lack of evidence supporting their effectiveness, mass media and general anti-drug campaigns are often the preferred response to the threat posed to children by drugs. As the EMCDDA has explained:

The common view of drug prevention, particularly in lay audiences, is that it consists of informing (generally warning) young people about the effects (most commonly the dangers) of drug use. Prevention is then often equated with (mass media) campaigns. However, there is currently no evidence to suggest that the sole provision of information on drug effects has an impact on drug use behaviour, or that mass media campaigns are cost-effective.’^[158]

Thus, greater consideration must be given about how to best allocate scarce resources to those educational measures which will be effective in preventing or reducing the use of drugs by children.

(ii) Parents and Families

The Committee has also been clear on the need to educate parents and guardians about the dangers of drug use by children but with little detail about the form or content of such measures. ^[159] As with general awareness-raising measures, parental education must not be limited to explaining the dangers associated with drugs. Family skills training, for example, is an important and developing field. Although this approach encompasses a range of techniques and programmes, the UNODC has identified four key principles for good programming. Such measures should: (i) be informed by a solid theory as to the causes of problem behaviour and how to change that behaviour; (ii) be based on an appropriate needs assessment (which should involve the participation of the family, including children consistent with article 12); (iii) match the level of risk of the families involved (for example, families within which problems are already evident require different approaches than those seeking early assistance to prevent initiation); and (iv) be matched to the age and level of development of the child (consistent with the concept of a child’s evolving capacities under the Convention).^[160]

Bearing in mind the broader notion of protection set out above, educational measures for parents should not be confined to information about how to prevent drug use and must also extend to education about how best to respond to their child’s drug use. Indeed, a recent consultation with young people who inject drugs across fourteen countries (funded by UNAIDS to inform WHO technical guidance on young people who inject drugs and HIV) illustrated clearly the desire of young people to see this level of education for parents.^[161]

(iii) Drugs Education in Schools and Community Settings

A third prominent recommendation from the Committee is the need for prevention education to be targeted at children and young people within schools^[162] and other social settings such as clubs, family centres and institutions working with children.^[163] The most prominent of such programmes, and those with the widest potential audience, are school-based. However, some prevention efforts in schools have had disappointing results due to a range of factors.^[164] ‘Just say no’ techniques, for example, have proven to be ineffective.^[165] Thus, drugs education must extend beyond simply restating the dangers of drugs to the health of children. As the UNODC has explained in its guidance on school-based prevention:

Just as drug abuse does not exist in a vacuum but is part of the young person’s whole life, education for prevention should incorporate other issues important to young people, including adolescent development, stress and coping, sexuality, collaboration between home and school and personal relationships.^[166]

Education programmes must also avoid one-off seminars or classes, given that evidence suggests the need for a series of regular structured sessions over multiple years.^[167]

Importantly, the international standards on drug use prevention developed in 2013 by UNODC outline a package of evidence-based interventions relating to school environment and culture which have been assessed for the strength of the evidence underpinning them. Interventions that have shown positive results include, among others: retention in school (absence and exclusion are risk factors for initiating drug use); a positive school ethos^[168]; policies developed with the participation of students, parents and teachers; reducing availability of drugs on school grounds; and positive reinforcement of policy compliance as opposed to punishment. ^[169]

Some school-based efforts, however, raise questions not just about effectiveness but also about child rights compliance. Random school drug testing, for example, has shown to have no deterrent effect in relation to initiation of drug use. ^[170] The intervention does, however, raise concerns about negative side-effects which include truancy (where students wish to avoid being detected), potential shifts to more dangerous substances that leave the body more quickly (again to avoid detection), and the erosion of trust between students and faculty.^[171] It also interferes with children’s right to physical and bodily integrity, which is part of their right to privacy,^[172] and in the absence of cogent and persuasive evidence that random school drug testing works, this interference would not be justified. Moreover, if such evidence were to exist, testing would still not be justified if there were alternative measure reasonably available that would minimise interference with children’s rights.^[173]

(iv) Accurate and Objective Information

The Committee has regularly recommended the need for ‘accurate and objective’ information on drugs, ^[174] as opposed to scare tactics and exaggeration, which only serve to reduce trust between children and adults and may even encourage risky behaviours.^[175] Whether it is a drugs awareness campaign, education with parents or education in schools, such programs must be based on objective information and remain relevant to children’s own personal experiences of exposure to drugs. In this respect it is worth noting that the 2004 UNODC guidelines on school-based prevention recommend against ‘[s]trategies that exaggerate and misrepresent the dangers of drug use; using graphic images that portray drug use as dangerous and exciting; and presenting frightening case studies that are too far removed from the reality of young people’.^[176] This is reaffirmed in the 2013 international prevention standards.^[177]

III THE OBLIGATION TO PREVENT THE USE OF CHILDREN IN THE PRODUCTION AND TRAFFICKING OF PROSCRIBED SUBSTANCES

A Does the Focus on Prevention Prohibit Prosecution of Children?

Article 33 is not only concerned with children’s illicit use of proscribed substances. It also requires states to take appropriate measures to prevent children’s involvement in the production and trafficking of such substances. It is complemented by ILO Convention 182 on the Worst Forms of Child Labour,^[178] which identifies ‘the use, procuring or offering of a child for illicit activities in particular for the production and trafficking of drugs as defined in the relevant international treaties’ as one on the worst forms of child labour (article 3(c)). It further requires states to take immediate and effective measures to secure its prohibition and elimination (along with the other forms of worst labour) as a matter of urgency (article 1). Such an approach reflects a protective rather than prosecutorial model with respect to children’s involvement in the drug industry. Children are presumed to be victims rather than offenders and those adults that facilitate their involvement in this industry are to be prosecuted and punished.

This conceptualisation of children as ‘innocent victims’ is motivated by an assumption that their experience in the drug industry will be the result of coercion and exploitation. However, there is the prospect that children, especially older children, may enter the drug industry for reasons that are not necessarily the result of coercion or exploitation by adults. Their decision to do so may not be genuinely voluntary in that other factors such as poverty may constrain the range of options open to them, however, in these circumstances, children will still exercise a degree of autonomy with respect to their involvement in the drug trade. Thus a question arises regarding whether article 33 requires that children must always be seen as victims or whether they could also be subject to criminal sanction.

Article 33 is concerned with preventing a child’s involvement in the drug trade. This presumes that where a child is involved in the drug trade, there is likely to have been a violation of his or her rights. However, it would be problematic to conclude that a child in such circumstances must necessarily be immune from criminal prosecution. Children’s criminal responsibility is a complex issue and the question of when a child should be held accountable under criminal law for his or her behaviour is discussed in detail in the commentary on article 40.^[179] It also arises in the context of child soldiers under article 38.^[180] In summary, there are three key points which are relevant to the current discussion. First, there is a presumption that children’s involvement in the drug trade will be exploitative and harmful to their development. States are therefore obliged to prevent such involvement. However, the Convention also recognises the evolving capacities of children. As such, it would be incongruous to recognise children’s agency and evolving capacity in some instances but assume that they must necessarily be victims of exploitation and abuse if they become involved in criminal activity. The principle of internal system coherence^[181] demands that, absent coercion or exploitation, children with the requisite mental capacity could potentially be held accountable under domestic criminal law for their involvement in the drug industry. Importantly, even where this is the case it does not allow for the adoption of an aggressive or punitive approach when dealing with a child’s behaviour. On the contrary, article 40 demands that such a child be treated with dignity and respect and that the emphasis is placed on their social reintegration. In addition, detention should be a measure of last resort.

Moreover, the question of whether children could be subject to criminal sanction is not to be confused or conflated with the important question of whether they should be, with due with regard to relative effectiveness of criminal laws versus alternative legal and administrative frameworks that may be considered to address specific phenomena.

B The Practices of Concern - Illicit Production and Trafficking

As with the use of drugs by children, article 33 is only concerned with the ‘illicit production and trafficking’ of proscribed substances. The Narcotics Convention (article 1(l)) and the Psychotropic Substances Convention (article 1(j)) both define ‘illicit traffic’ as the cultivation or trafficking in drugs contrary to the provisions of the respective Conventions (broadly, for other than medical or scientific purposes). The Trafficking Convention (article 1(m)) defines ‘illicit traffic’ as any of the offences set forth in articles 3(1) and 3(2) of the Convention. As noted above, a question arises as to whether under the Protocol to the FCTC on illicit tobacco trafficking qualifies as a ‘relevant international treaty’. If so, the activities set out in that instrument are also applicable.

Licit production, sales and transit, such as licit opium farming for the production of medicines including morphine, or licit work in transporting or storing those medicines, are not captured by article 33. Similarly, licit tobacco farming is also outside the scope of article 33. However, if children’s involvement in these licit activities is hazardous or harmful to their health, they would be prohibited under article 32 of the Convention.^[182]

C The Scope of the Obligation to Prevent

It is clear from the wording of article 33 that the provision focuses on preventing the use of children in the illicit drug trade. This does not mean that the obligation to prevent should be read to exclude from its purview children who are already involved in illicit production or trafficking. This would lead to an absurd result. An interpretation of article 33 that is consistent with the object and purpose of the Convention demands that the obligation to prevent requires all reasonable measures of a State to prevent children from their entry into or ongoing involvement in the illicit drug trade.

1 The Nature of the Obligation Imposed on States

Article 33 requires states to take ‘all appropriate legislative, administrative, social and educational measures’ to prevent the use of children in the illicit production and trafficking of those drugs. As detailed above, states have significant discretion with respect to the measures they choose to adopt to prevent children’s involvement in the drug trade, subject to two caveats. First the measures must be effective and second, they must be consistent with the remaining Convention rights and international law more generally.

The general obligation in article 2 to respect and ensure all the rights listed in the Convention also demands that states take all reasonable measures in light of available resources to:

• ensure that state actors do not encourage, expose or facilitate the use of children in the illicit production and trafficking of the substances controlled by the relevant international instruments (the obligation to respect);
• ensure that non-state actors do not encourage, expose or facilitate the use of children in the illicit production and trafficking of the substances controlled by the relevant international instruments (the obligation to protect); and
• ensure that the underlying reasons for children’s involvement in the illicit drug trade are addressed and that those children involved in the drug trade are removed and provided with appropriate measures to address any harm they may have suffered (the obligation to fulfil).

2 The Measures Required of States

(a) The Committee’s Lack of Guidance

Although the Committee has expressed concern at the widespread use of children in the production and trafficking of drugs,^[183] beyond recommending that states simply take all appropriate measures to prevent such activities, it has offered little precise guidance on how states might go about doing so.^[184] For example, in relation to Colombia, it expressed alarm ‘over the high number of children exposed to dangerous and/or degrading work such as agricultural labour in coca plantations’ and concern ‘over the manufacture and the export of drugs from Colombia, which affects children who are pickers of coca leaves (raspachines), as well as children forced or lured into trafficking drugs, including within their bodies (mulas).’ However, the Committee made no recommendations in this regard, thus shedding little light on the state party’s obligations under article 33.^[185] Indeed, the Committee’s recommendations on this aspect of article 33, where it has commented on the provision at all, rarely, if ever, have extended beyond a restatement of the article itself.^[186]

(b) Legislative and Administrative Measures

(i) Criminal Law Approaches

There are three main elements to a discussion of criminal laws in this context. First is the culpability of adults who exploit children in the drug trade. As a minimum, states must undertake legislative measures to criminalise the procurement, enticement and use of children in the illicit production and trafficking of controlled drugs.^[187] In this context it is worth noting that the Trafficking Convention actually requires that states classify drug offences as ‘particularly serious’ where they involve the ‘victimisation or use of minors’ (article 3(5)(f)). A degree of caution is required, however. This is because in the rush to protect children from those who may exploit them in this industry, there is a risk that the sanctions imposed may be disproportionate and therefore inconsistent with the principles that guide sentencing under international law.^[188] Moreover, there are circumstances in which criminal sanctions could potentially be inappropriate. For example, with so many families involved in the drug trade due to poverty,^[189] the imposition of strict criminal sanctions against parents may be inconsistent with the right of a child to have his or her best interests taken into account in all matters concerning him or her.^[190]

The second element is children’s own culpability. Aside from the many different ways children can become involved in the drug trade and the different approaches required to meet these challenges, a key debate is whether children can be subject to criminal sanctions. As noted above, in certain circumstances, children themselves could be held criminally responsible for their involvement in the drug trade. However, article 33 is aimed at preventing the use of children in the drug trade. A particularly contentious issue is the role of the juvenile justice system in achieving that aim. In theory criminal laws and law enforcement could serve as a deterrent, but there has been very little research into whether this happens in practice.^[191] As discussed further below, young people’s involvement in the drug trade is driven by a complex mix of social, economic and other considerations that criminal laws cannot address. Thus, while criminal sanctions may hold children accountable for their actions, this serves a different purpose than that of article 33.

With this in mind the third element is the debate around alternative legislative models to address children’s involvement in the drug trade. As with children’s use of drugs, the criminal law is not the only legal framework open to states. Further research is required to investigate alternative legal regulatory models in relation to preventing children’s involvement in the illicit drug trade. Questions should be asked, for example, as to whether criminal laws increase or decrease risks and harms (due to their effect on the nature of the drug trade) or whether a legally regulated market in the same commodities could offer better protection; and whether criminal laws increase or decrease opportunities for recruitment in illicit production and trafficking.^[192]

(c) Social and educational measures

(i) Adequate Data Collection and Targeted Measures

In developing a response to the use of children in the illicit drug trade, states must first develop an understanding of the nature and extent of children’s involvement. In one of its few pointed recommendations on this issue, the Committee recommended that Belarus ‘[u]ndertake a study on the issue of trafficking and trafficking-related problems, such as sexual exploitation, drug abuse and the involvement of children in the drug trade, and economic exploitation, in order to assess their scope and causes, and develop and implement effective monitoring and other measures to prevent them’ (emphasis added).^[193] This is important because there are many ways in which children can become involved in the drug trade and preventive measures must be sufficiently flexible to address these. For example, measures to address children’s involvement in the drug trade via gang membership will differ from measures to address the recruitment of child soldiers into organised criminal groups, the use of minors as couriers, or children’s involvement in rural farming of crops such as coca, opium poppy and cannabis.

(ii) Attention to Social Determinants

The requirement that states take appropriate social and educational measures implies a need to address the social determinants (that is, the complex social, cultural, political and economic factors) of children’s involvement in the drug trade. In Afghanistan and Colombia, for example, one of the most common ways in which children are involved in the drug trade is through farming illicit crops. Such practices are enabled via a complex interplay of tradition, conflict and poverty and are almost always linked to the child’s survival.^[194] Similarly, in Brazil, children’s involvement in the drug trade is often related to, among other things, a lack of alternative economic options.^[195]

For its part, the Committee has only partially addressed this complexity by recommending measures that ‘address the root causes of gang violence and crime related to drugs among adolescents, including policies for social inclusion of marginalized adolescents’.^[196] However, as poverty and economic incentives are invariably contributing factors, measures must also focus on poverty alleviation and similar drivers of involvement in the drug trade.^[197] In practice such measures are linked to the implementation of other provisions of the Convention, including the provision of adequate standard of living (article 27); the availability of free and compulsory education (article 28) and the elimination of exploitative and harmful child labour (article 32).

(iii) Facilitating Exit from the Drug Trade and Rehabilitation

Addressing the factors that contribute to children’s involvement in the drug trade will be a long-term process. In the interim, states are obliged to take measures to facilitate the exit of children involved in the drug trade. This presents various challenges depending on the type of involvement in the drug trade and the various drivers of that involvement. For example, although gang exit/disengagement and social reintegration strategies have potentially important benefits for preventing children’s use in the drug trade, results have been mixed.^[198] In other contexts, ‘alternative development’ strategies aim to help families and communities shift from illicit crop production into licit alternatives. With respect to these measures, the UN Guiding Principles on Alternative Development^[199] speak of the need for consent among farming communities, the proper sequencing of alternatives (i.e. that alternatives must be in place before illicit crops are eradicated) and the need for infrastructural support to ensure effectiveness and human rights compliance.^[200] However, these principles have been criticised on the basis that they treat ‘alternative development as “complementary” to “law enforcement and illicit crop elimination,” rather than as the primary means of creating conditions that allow for improved livelihoods and the reduction of coca and poppy crops.’^[201] Thus further consideration is required as to the most effective strategies by which to develop alternatives that would facilitate children’s disengagement from the production and trafficking of illicit substances.

IV EVALUATION: AN ALTERNATIVE LENS

Relative to adults, children are more vulnerable to harm and exploitation arising from drug use and their involvement in the drug trade. It is this relative vulnerability that provides the foundation for the inclusion of article 33 in the Convention. Whereas criminal justice approaches are generally still the preferred model for dealing with adults who use controlled drugs or are involved in the production and trafficking of such substances, article 33 prioritises the protection of children. However, this emphasis on protection is not be understood through a welfarist lens in which children are defined by their vulnerability and denied recognition of their evolving capacities and their right to express their views in any discussions about how to ensure their effective protection. Moreover, the protective obligation imposed on states under article 33 is not confined to a preventive obligation and extends to the provision of remedial measures that seek to reduce any harm caused to a child as a result of illicit drug use.

While article 33 may represent an innovative addition to the corpus of international human rights law, it is characterised by a level of textual ambiguity that is common to many of the rights under the Convention. The obligation of states to adopt ‘all appropriate measures’ to protect children is hardly action guiding and risks being dismissed as a very loose constraint on the actions (or indeed omissions) of States. States do enjoy a level of discretion in the adoption of the measures required to satisfy their obligations under article 33, but as this chapter has shown, this discretion is not without its limits. Indeed, the requirement that all measures must be both effective and consistent with other Convention rights and human rights more generally, delivers a level of rigour to an otherwise ambiguous phrase.

Thus far from being hopelessly indeterminate, this chapter has revealed that it is possible to offer considerable guidance with respect to the enduring principles that motivate, guide, inform and constrain the efforts of states to protect children from the illicit use of narcotic drugs and psychotropic substances and to prevent their involvement in the production and trafficking of such substances. Disagreements will no doubt linger as to the nature of these principles and opinions will continue to vary over the appropriateness of the measures required to achieve the twin aims of article 33. Such discussions are to be welcomed because perhaps the greatest impact this provision can have is to reorient debates about drug policy away from a narrow focus on a law and order paradigm to a broader rights based approach.

Article 33 does not exist in isolation. Indeed it provides a window by which to access the collection of rights under the Convention, which when taken seriously, have the capacity to be transformative in the development of policies to address the harm caused by use of drugs and involvement in the drug trade. Excessively punitive measures are clearly incompatible with the Convention, measures that fail to address the social determinants of drug use by children and their involvement in the drug trade are also inadequate, whereas measures that rely on assumption or speculation rather than evidence are also without justification. Traditionally, the discourses of drug control and human rights have been ‘practically detached’^[202] and existed in ‘parallel universes’.^[203] More recently however there is evidence of a greater willingness for reflection on drug policies.^[204] This shift may well provide the opportunity for the benefits of a rights based approach to be truly understood and implemented.

V SELECT BIBLIOGRAPHY

Gruskin S, Plafker K and Smith Estelle A, ‘Understanding and Responding to Youth Substance Use: The Contribution of a Health and Human Rights Framework’ (2001) 91 American Journal of Public Health:1954

Strang J and others, ‘Drug Policy and the Public Good: Evidence for Effective Interventions’ (2012) 379(9810) The Lancet 71

Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc No A/65/255 (6 August 2010)

Global Commission on Drug Policy, War on Drugs: Report of the Global Commission on Drug Policy (Global Commission on Drug Policy, 2011)

Economic and Social Council, Commission on Narcotic Drugs, Report of the Secretariat Youth and Drugs: A Global Overview, UN Doc E/CN7/1999/8 (11 January 1999)

Johnston L and others, Monitoring the Future National Survey Results on Drug Use, 1975-2012. Volume I: Secondary School Students (Institute for Social Research, The University of Michigan 2013)

Barrett D, Hunt N and Stoicescu C, Injecting Drug Use Among Under-18s: A Snapshot of Available Data (Harm Reduction International 2013)

Embleton L and others, ‘The Epidemiology of Substance Use Among Street Children in Resource-Constrained Settings: A Systematic Review and Meta-Analysis’ (2013) 108 Addiction 1722

Barrett D (ed), Children of the Drug War: Perspectives on the Impact of Drug Policies on Young People (iDebate Press 2011)

^[1] See, e.g. Damon Barrett ‘Juvenile Justice and Drug Use’ in Simona Merkinaite and Jean Paul Grund (Eds) Young People and Injecting Drug Use in Selected Countries of Central and Eastern Europe (Eurasian Harm Reduction Network 2009) (Looking at criminal justice approaches to drug use and possession among young people in nine countries)
^[2] See, e.g.,Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc No A/65/255 (6 August 2010); UNDP, HIV and the Law: Risks, Rights and Health, Report of the Global Commission on HIV and the Law (UNDP 2012); Global Commission on Drug Policy, War on Drugs: Report of the Global Commission on Drug Policy (Global Commission on Drug Policy, 2011) (the Commission includes the former Secretary-General of the United Nations, Kofi Annan, the former UN High Commissioner for Human Rights, Louise Arbour, and multiple former heads of state); Heather Haase and Coletta Youngers, ‘Latin American Leaders Bring Drug Policy Debate to the United Nations’, (Washington Office on Latin America, 30 September 2013) available at <www.wola.org/commentary/latin_american_leaders_bring_drug_policy_debate_to_the_united_nations> accessed 20 August 2014; John Collins (ed), Ending the Drug Wars: Report of the LSE Expert Group on the Economics of Drug Policy (London School of Economics 2014) (in which five Nobel prize winning economists called for reform of the system).
^[3] Art 28 of the African Charter on the Rights and Welfare of the Child closely reflects article 33, but contains an interesting alteration: ‘States Parties to the present Charter shall take all appropriate measures to protect the child from the use of narcotics and illicit use of psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the production and trafficking of such substances’. Note that the word ‘illicit’ is only used for psychotropic substances indicating some existing forms of licit use, while this is not allowed for narcotics. This is strange given important licit uses of narcotic drugs, such as morphine. African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999..
^[4] See, Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 1998) 580-587; Sofia Gruskin, Karen Plafker and Allison Smith-Estelle, ‘Understanding and Responding to Youth Substance Use: The Contribution of a Health and Human Rights Framework’ (2001) 91 American Journal of Public Health 1954; Damon Barrett and Philip Veerman, ‘Article 33: Protection from Narcotic Drugs and Psychotropic Substances’ in André Alen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child ( Martinus Nijhoff 2012).
^[5] See, e.g., United Nations Economic and Social Council, Commission on Narcotic Drugs, resolution 43/4, ‘International Cooperation for the Prevention of Drug Abuse among Children’ (2000) (‘CND Res 43/4’); resolution 53/10, ‘Measures to Protect Children and Young People from Drug Abuse’ (2010) (‘CND Res 53/10); International Narcotics Control Board, Report of the International Narcotics Control Board for 2009 (INCB 2009) ch I, ‘Primary Prevention of Drug Abuse’.
^[6] UN General Assembly Resolution S-20/2 Annex^{, ‘}Political Declaration adopted at the Special Session of the General Assembly Devoted to Countering the World Drug Problem Together’ (8-10 June 1998) (‘Special Session’), preamble.
^[7] UN General Assembly Resolution 54/132, ‘International Cooperation against the World Drug Problem’, UN Doc A/54/132 (2 February 2000), preamble, [2].
^[8] See, e.g., CND Res 43/4 (n 5); CND Res 53/10 (n 5); and International Narcotics Control Board (n 5), ch I. UN General Assembly Resolution S-2-/3, ‘Declaration on the Guiding Principles of Drug Demand Reduction’, UN Doc A/RES/S-20/3 (10 June 1998) (‘UN Drug Demand Reduction Principles’), [13] and Annex, [3] (referring to art 33 of the CRC merely as ‘supplementary reference material’, with no discussion of its content or significance); Economic and Social Council, Commission on Narcotic Drugs, Report of the Secretariat Youth and Drugs: A Global Overview, UN Doc E/CN7/1999/8 (11 January 1999) and ‘Measures to Protect Children and Young People from Drug Abuse: Report of the Executive Director’, UN Doc E/CN.7/2011/13 (11 January 2011) (neither document mentions art 33).

^[10] See, e.g., Wan-Yi Chen and others, 'Child Neglect and its Association with Subsequent Juvenile Drug and Alcohol Offense' (2011) 28 Child and Adolescent Social Work Journal 273; Yoko Nomura, Yasmin L Hurd and Daniel J Pilowsky, 'Life-Time Risk for Substance Use Among Offspring of Abusive Family Environment From the Community' (2012) 47 Substance Use and Misuse 1281; Shanta R Dube and others, 'Childhood Abuse, Neglect, and Household Dysfunction and the Risk of Illicit Drug Use: The Adverse Childhood Experiences Study' (2003) 111 Pediatrics 564.
^[11] See, e.g., Adam Fletcher, Christopher Bonell and James Hargreaves ‘School Effects on Young People's Drug Use: A Systematic Review of Intervention and Observational Studies’ (2008) 42 International Journal of Adolescent Health 3; David W Soole, Lorraine Mazerolle and Sacha Rombouts, 'School-Based Drug Prevention Programs: A Review of What Works' (2008) 41 Australian and New Zealand Journal of Criminology 259; Christopher M Seitz and others, 'Coverage of Adolescent Substance Use Prevention in State Frameworks for Health Education: 10-Year Follow-Up' (2013) 83 Journal of School Health 53; and Melodie D Fearnow-Kenney and others, 'Initial Indicators of Effectiveness for a High School Drug Prevention Program' (2003) 34 American Journal of Health Education 66.
^[12] On poverty, development and the drug production see, Philip Keefer and Norman Loayza (eds) Innocent Bystanders: Developing Countries and the War on Drugs (2010) World Bank. For discussions of a range of structural factors relating to children’s involvement in the drug trade in Brazil see,, Jailson de Souza e Silva and André Urani, Children in Drug Trafficking: A Rapid Assessment (International Labour Organization 2002) 10-11; and Luke Dowdney, Children of the Drug Trade: A Case Study of Children in Organised Armed Violence in Rio de Janeiro (7 Letras 2003) 131-2.
^[13] Single Convention on Narcotic Drugs (adopted 30 March 1961, entered into force 13 December 1964) 520 UNTS 204 (‘Narcotics Convention’); Protocol Amending the Single Convention on Narcotic Drugs (adopted 25 March 1972, entered into force 8 August 1975), 976 UNTS 3.
^[14] While this abbreviation is used here for ease of distinction between the treaties it is acknowledged that the Single Convention on Narcotic Drugs is misnamed. Many of the substances controlled by the Single Convention are not narcotics, including cocaine and cannabis.
^[15] Convention on Psychotropic Substances (adopted 21 February 1971, entered into force 16 August 1976), 1019 UNTS 175 ‘(‘Psychotropic Substances Convention’),
^[16] Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 95 (‘Trafficking Convention’).
^[17] WHO Framework Convention on Tobacco Control (adopted 23 May 2003, entered into force 27 February 2005) 2302 UNTS 166 (‘FCTC’).
^[18] FCTC art 16(1).
^[19] Protocol to Eliminate Illicit Trade in Tobacco Products (adopted on 12 November 2012, not yet in force force), adopted during the fifth session of the Conference of the Parties to the WHO Framework Convention on Tobacco Control (‘FCTC Protocol’).
^[20] Worldwide, monthly heavy episodic drinking (HED) is slightly more prevalent among young people aged 15–19 years (11.7%) than among the total population aged 15 years or older (7.5%): see, World Health Organization, Global Status Report on Alcohol and Health 2014 (WHO 2014) 36-38.
^[21] On a possible future framework convention on alcohol see Allyn Taylor & I. Dhillon, ‘An international legal strategy for alcohol control: not a framework convention—at least not yet’ (2012) Addiction 108, 450–455.
^[22] Committee on the Rights of the Child, General Comment No15: The Right of the Child to the Highest Attainable Standard of Health, UN Doc CRC/C/GC/15 (17 April 2013) (‘GC 15’), [37].
^[23] Articles 19 and 20 of the Narcotics Convention establish an estimates and statistical returns system administered by the International Narcotics Control Board to ensure availability of essential controlled medicines. The preamble notes that ‘the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs
for such purposes’.
^[24] See, e.g., CO Denmark, CRC/C/DNK/CO/4, [52] (recommending that Denmark ‘carefully monitor the prescription of psycho-stimulants to children and take initiatives to provide children diagnosed with ADHD and ADD, as well as their parents and teachers, with access to a wider range of psychological, educational and social measures and treatments’). See also CO Australia, CRC/C/15/Add.268, [49]; CO Finland, CRC/C/15/Add.272, [38]; CO Japan, CRC/C/JPN/CO/3, [60]; CO Norway, CRC/C/NOR/CO/4, [42] and [43]; CO Belgium, CRC/C/BEL/CO/3-4, [58] and [59].
^[25] United Nations Office of the High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child (United Nations 2007) (‘Legislative History’) 712.
^[26] Lists of the substances scheduled are available at the website of the International Narcotics Control Board (‘INCB’): <www.incb.org> accessed 20 August 2014. The INCB is an independent, quasi-judicial control organ for the implementation of the UN drug conventions, established by the Narcotics Convention.
^[27] See, International Narcotics Control Board, ‘List of Narcotic Drugs Under International Control: Yellow List’ <http://www.incb.org/incb/en/narcotic-drugs/Yellowlist_Forms/yellow-list.html> accessed 8 October 2014.
^[28] See International Narcotics Control Board ‘List of Psychotropic Substances Under International Control: Green List’ <http://www.incb.org/incb/en/psychotropic-substances/green-lists.html> accessed 8 October 2014.
^[29] See International Narcotics Control Board ‘List of Chemicals Under Frequently Used in the Production of Narcotic Drugs and Psychotropic Substances Under International Control: Red List’ <http://www.incb.org/incb/en/precursors/Red_Forms/red-list.html> accessed 8 October 2014.
^[30] Narcotics Convention, art 4(c): Psychotropic Substances Convention, art 5(2).
^[31] See Narcotics Convention, arts 2 and 3.
^[32] See Anthony Henman and Pien Metaal, Coca Myths’ Drugs and Conflict Debate Papers No. 17, June 2009 (Transnational Institute 2009)
^[33] For a discussion of the relative harms of drugs, including alcohol and tobacco, see David Nutt, Leslie King and Lawrence Philips , ‘Drug Harms in the UK: A Multicriteria Decision Analysis’ (2010) 376 The Lancet 1558; see also Stephen Rolles and Fiona Measham ‘Questioning the Method and Utility of Ranking Drug Harms in Drug Policy’ (2011) 22 International Journal of Drug Policy 4 (Arguing that drug harms cannot be ranked in isolation form their legal status and a range of other social and policy factors).
^[34] See Narcotics Convention, art 3; Psychotropic Substances Convention, art 2.
^[35] The treatment of ketamine is a case in point. Although it is a common party drug in some Western countries, the WHO has recommended against scheduling ketamine, as it is also ‘a widely used anesthetic and analgesic, especially in developing countries because it is easy to use and has a wide margin of safety when compared with other anesthetic agents’: see, World Health Organization, Ketamine: Expert Peer Review on Critical Review Report, 35^th Expert Committee on Drug Dependence, (Mammamet, Tunisia, 4-8 June 2012).
^[36] GC 15 (n 22) [66].
^[37] FCTC, art 16(1): ‘[e]ach Party shall adopt and implement effective legislative, executive, administrative or other measures at the appropriate government level to prohibit the sales of tobacco products to persons under the age set by domestic law, national law or eighteen.’
^[38] See Paul Dargan and David Wood (eds) Novel Psychoactive Substances: Classification, Pharmacology and Toxicology (Elsevier 2013).
^[39] Björn Hibell and others The 2011 ESPAD Report: Substance Use Among Students in 36 European Countries (European School Survey Project on Alcohol and Other Drugs, 2011) The Swedish Council for Information on Alcohol and other Drugs (CAN), The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), Council of Europe, Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs (Pompidou Group) (‘In all ESPAD countries but one, 70% or more of the students have drunk alcohol at least once during their lifetime. The ESPAD average is 87% (range: 56–98%...On average, about a third have consumed alcohol only on 1–9 occasions while, on the other hand, 24% have done so 40 times or more’, at 68)
^[40] European Monitoring Centre on Drugs and Drug Addiction, Drug Use and Related Problems Among Very Young People (Under 15 Years Old) (EMCDDA 2007); Lonnie Embleton and others l, ‘The Epidemiology of substance use among street children in resource-constrained settings: A Systematic Review and Meta-Analysis’ (2013) 108 Addiction 1722.
^[41] Legislative History (n 25) 711. The US representative proposed that the article should extend to protection against ‘other drugs, such as alcohol’, but this suggestion failed to gain approval.
^[42] Walter H Bennett, ‘A Critique of the Emerging Convention on the Rights of the Child’ (1987) 20 Cornell International Law Journal 1, 12-13.
^[43] Novel psychoactive substances are a regular concern at the UN Commission on Narcotic Drugs. See UN Economic and Social Council, Commission on Narcotic Drugs, Resolution 57/9 ‘Enhancing international cooperation in the identification and reporting of new psychoactive substances and incidents involving such substances’ (2014) (CND Res 57/9).
^[44] See, e.g., CO Guyana, CRC/C/GUY/CO/2-4, [49]-[50]; CO Malta, CRC/C/MLT/CO/2, [51]-[52]; CO Cyprus, CRC/C/CYP/CO/3-4, [40]-[41]; CO Italy, CRC/C/ITA/CO/3-4, [53]-[54]; CO Poland, CRC/C/15/Add194, [42]; CO Seychelles, CRC/C/15/Add189, [46]; CO Latvia, CRC/C/15/Add142, [39].
^[45] See, e.g., CO Lao People's Democratic Republic, CRC/C/LAO/CO/2, [52]; CO Bangladesh, CRC/C/BGD/CO/4, [65]; CO Mozambique, CRC/C/15/Add172, [70]; CO Greece, CRC/C/15/Add170, [74]; CO Dominican Republic, CRC/C/15/Add150, [37]; CO Central African Republic, CRC/C/15/Add138, [80].
^[46] See, e.g., GC 15 (n 18) [65], [38] and [59].
^[47] For example in its report on Palau it stated that ‘[i]n light of article 33 of the Convention the Committee recommends that the State party take all appropriate measures... to protect children from the illicit use of alcohol, narcotic drugs and psychotropic substances’: see, CO Palau, CRC/C/15/Add149, [57]. See also, CO Vietnam, CRC/C/VNM/CO/3-4, [62]-[63]; CO Cook Islands, CRC/C/COK/CO/1, [51]-[52]-; CO Iceland, CRC/C/ISL/CO/3-4, [44]-[45]; CO Timor Leste, CRC/C/TLS/CO/1, [80]; CO Suriname CRC/C/15/Add130 para 56; CO Georgia CRC/C/15/Add124 para 65; CO Russian Federation CRC/C/15/Add110 para 61.
^[48] Legislative History (n 25) 570.
^[49] ibid 710.
^[50] ibid.
^[51] The discussions of the draft article 33 were swift and rather perfunctory. The final stages of the debates on article 33 took place in closed informal meetings to achieve a consensus text for presentation to the Working Group which was adopted without further discussion. Relative to other articles within the Convention, the adoption of a consensus happened in a short period of time, with very little detailed debate. Cf, e.g., the lengthy discussions relating to art 31, 32 and 34; see Legislative History (n 20) 683-708 and 713-721.
^[52] Committee on the Rights of the Child, Treaty-Specific Guidelines Regarding the Form and Content of Periodic Reports to be Submitted by States Parties under Article 44, Paragraph 1 (b), of the Convention on the Rights of the Child, UN Doc CRC/C/58/Rev.2 (25 November 2010) [20].
^[53] See, e.g., (submitted reports for future sessions of the Committee at the time of writing) consolidated 3^rd and 4^th periodic reports of the Republic of Latvia, UN Doc CRC/C/LVA/3-4, (2013), [462]-[464]; 5^th periodic report of Pakistan, UN Doc CRC/C/PAK/5, (2013), [175] –[179]; 5^th periodic report of the United Kingdom of Great Britain and Northern Ireland, UN Doc CRC/C/GB/5 (2014), [30]-[ 33].
^[54] Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, UN Doc CRC/GC/2003/3 (17 March 2003) (‘GC 3’), [39]. See also (recommending treatment, counselling or reintegration relating to substance use), CO Guyana, CRC/C/GUY/CO/2-4, [50(d)]; CO Guinea, CO CRC/C/GIN/CO/2, [68]; CO Albania, CRC/C/ALB/CO/2-4, [63(b)]; CO Namibia, CRC/C/NAM/CO/2-3, 16 October 2012[58(e)]; CO Thailand, CRC/C/THA/CO/3-4, [65]; CO Saint Vincent and the Grenadines, CRC/C/15/ADD.184, [51]; CO: Papua New Guinea, CRC/C/15/ADD.229, [62]; and CO: Antigua and Barbuda, CRC/C/15/ADD.247, [63].
^[55] [Cross reference to chapter 2]
^[56] See, Alex Stevens Drugs, Crime and Public Health: The Political Economy of Drug Policy (Routledge-Cavendish 2011); Louise Degenhardt and other ‘Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys’ (2008) PLoS Med 5(7).(Showing that ‘Globally, drug use is not distributed evenly and is not simply related to drug policy, since countries with stringent user-level illegal drug policies did not have lower levels of use than countries with liberal ones’).; UN Commission on Narcotic Drugs, Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem (adopted at the High Level Segment of the UN Commission on Narcotic Drugs, 11-12 March 2009) (‘Noting UN member states’ concern about the ‘growing threat posed by the world drug problem’ [emphasis added] and the somewhat contradictory recognition that commitments made at the UN GA special session on drugs in 1998 both in relation to demand and supply reduction had been ‘attained only to a limited extent’. This language was agreed by consensus after the initial text had stated that such commitments had not been attained.)
^[57] For an overview, see UN Human Rights Council, Statement of the High Commissioner for Human Rights, Ms Navi Pillay, Side Event on the World Drug Problem and Human Rights, ,26^th sess (16 June 2014); Damon Barrett and Manfred Nowak, ‘The United Nations and Drug Policy: Towards a Human Rights Based Approach’ in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity Of International Law: Essays In Honour Of Professor Kalliopi K Koufa (Martinus Nijhoff 2009) 449; Damon Barrett and Patrick Gallahue, ‘Harm Reduction and Human Rights’ (2012) 16 Interights Bulletin 188; Transform Drug Policy Foundation, Count the Costs, 50 Years of the War on Drugs: Undermining Human Rights (Transform Drug Policy Foundation 2012). On specific issues see also, inter alia (on torture and cruel, inhuman or degrading treatment or punishment) Human Rights Watch, ”Skin on the Cable”: The Illegal Arrest, Arbitrary Detention and Torture of People Who Use Drugs in Cambodia (Human Rights Watch 2010); Human Rights Watch, Somsanga’s Secrets: Arbitrary Detention, Physical Abuse, and Suicide inside a Lao Drug Detention Center (Human Rights Watch 2011); (on the death penalty) Patrick Gallahue and others, The Death Penalty for Drug Offences: Global Overview 2012, Tipping the Scales for Abolition (Harm Reduction International 2012); Amnesty International, Addicted to Death: Execution for Drugs Offences in Iran (Amnesty International 2011); (on HIV/AIDS) Daniel Wolfe and Roxanne Saucier (eds), At What Cost? HIV and Human Rights Consequences of the Global War on Drugs (Open Society Foundations 2009).
^[58] See Damon Barrett, ‘Reflections on Human Rights and International Drug Control’ in John Collins (ed), Governing The Global Drug Wars (London School of Economics 2012); UN Office on Drugs and Crime, Making Drug Control Fit for Purpose: Building on the UNGASS Decade. A Report by the Executive Director, UN Doc No E/CN.7/2008/CRP.17 (7 May 2008) (identifying ‘unintended negative consequences’ of the international drug control regime).
^[59] Gover (n 2), [76].
^[60] ibid [77].
^[61] CO Colombia, CRC/C/COL/CO/3, [72].
^[62] See UNDP ‘Taking Narcotics Out of the Conflict: The War on Drugs’ in Human Development Report 2003 (UNDP 2003), ch 13; Witness for Peace, Fundación Minga and Institute for Policy Studies, An Exercise In Futility: Nine years of Fumigation in Colombia (Witness for Peace 2007).
^[63] E.g., CO Cambodia, CRC/C/KHM/CO/2, [55] and [56]; CO Vietnam, CRC/C/VNM/CO/3-4, [43], [44].
^[64] CO Mexico, CRC/C/OPAC/MEX/CO/1, [29]; CO Ukraine, CRC/C/UKR/CO/4, [59] and [60].
^[65] See also Trafficking Convention, art 14(2) (requiring that appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances...shall respect fundamental human rights’).
^[66] The UN Office on Drugs and Crime includes such impact assessments (referred to as a ‘planning tool’) in its internal 2012 human rights guidance document. This emerged due to concerns about UN assistance for drug enforcement in death penalty states contributing to death sentences and executions. See, UN Office on Drugs and Crime, UNODC and the Promotion and Protection of Human Rights: Positions Paper (UN Office on Drugs and Crime 2012); and Harm Reduction International, Partners in Crime: International Funding for Drug Enforcement and Gross Violations of Human Rights (Harm Reduction International 2011).
^[67] Paul Hunt, Human Rights, Health and Harm Reduction: States’ Amnesia and Parallel Universes (International Harm Reduction Association 2008). The UN human rights system has tended to overlook drug issues as a theme within its work. Notable exceptions include Grover (n 2) and Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/HRC/10/44 (10 January 2009) [49]-[74].
^[68] UN General Assembly Resolution 68/197, UN Doc A/RES/68/197 (18 December 2013), [2].
^[69] [cross reference to full discussion of this point]
^[70] [cross reference to chapter on art 2] See, however, Prince v South Africa, communication no 1474/2006 UN Doc CCPR/C/91/D/1474/2006 (31 October 2007), (involving religious uses of cannabis in which the Human Rights Committee avoided an in-depth analysis of proportionality or evidence to support the Government’s claim). Cf dissenting views of Ngcobo J of the Constitutional Court of South Africa in Prince v President of the Law Society of the Cape of Good Hope [2002] 2 SA 794 (Constitutional Court).
^[71] See, e.g., Gover (n 2)[70] (calling for ‘[f]ormulation of international guidelines concerning implementation of the international drug control treaties would address in detail the relationship between drug control efforts and human rights’); Damon Barrett and others, Recalibrating the Regime: The Need for a Human Rights Based Approach to International Drug Policy (Beckley Foundation 2008); and Barrett (n 58).
^[72] See, John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 201, 237-248 (explaining the concept of internal system coherence, which requires that ‘the interpretive process should produce a meaning for the right that is informed by and consistent with the other provisions within the treaty’).
^[73] The right to be heard ‘applies to individual health-care decisions, as well as to children’s involvement in the development of health policy and services’ Committee on the Rights of the Child, General Comment No. 12: The Right of the Child to be Heard, UN Doc CRC/C/GC/12(20 July 2009) (‘GC 12’), [98]. See also: See, e.g., Deborah Olszewski, Gregor Burkhart and Alessandra Bo, ‘Children’s Voices: Experiences and Perceptions of European Children on Drug and Alcohol Issues’ (EMCDDA 2010); Anita Krug and others, Experiences of Young People who Inject Drugs and their Challenges in Accessing Harm Reduction: Report of Youth RISE Community Consultations (Youth RISE, UNAIDS forthcoming).
^[74] CO Mexico, CRC/C/MEX/CO/3, [67a]-[67(e)]. Note that the Committee has not defined a “rights-based approach” but has generally accepted a collaborative and participatory approach: see generally, John Tobin, ‘Beyond the Supermarket Shelf: Using a Rights Based Approach to Address Children’s Health Needs’ (2006) 14 International Journal of Children's Rights 275.
^[75] UN Economic and Social Council, Commission on Narcotic Drugs, Resolution 44/5, ‘Prevention of the Recreational and Leisure Use of Drugs among Young People’ (2001) (CND Res 44/5) [7].
^[76] ‘ GC 12 (n 73) [91].
^[77] [Cross reference to article 24]
^[78] See generally, Barrett and Gallahue (n 57).
^[79] See, e.g., Committee on the Rights of the Child, General Comment No.4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc No CRC/GC/2003/4 (1 July 2003), [10], [23], [25], [26].; CO Guinea, CO CRC/C/GIN/CO/2, [67]; CO Bosnia and Herzegovina, CRC/C/BIH//CO/2-4, [58]; CO Cyprus, CRC/C/CYP/CO/3-4, [40]; CO Cambodia, CRC/C/KHM/CO/2-3, [55]; CO Belarus, CRC/C/BLR/CO/3-4, [59].
^[80] See UN Commission on Narcotic Drugs, Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem (adopted at the High Level Segment of the UN Commission on Narcotic Drugs, 11-12 March 2009); UN Commission on Narcotic Drugs, Report of the 52^nd Session, UN Doc E/2009/28 - E/CN.7/2009/12 (1-2 December 2009) (‘2009 Political Declaration’).
^[81] For the WHO online portal on drug dependence see <www.who.int/substance_abuse/publications/en/>, accessed 21 August 2014. Importantly, the WHO has a treaty-mandated function under the Narcotics Convention (art 3) and Psychotropic Substances Convention (art 2) to assess whether certain substances should be subject to international control. This function is carried out by the WHO Expert Committee on Drug Dependence (although this in fact predates the Narcotics Convention) : see <www.who.int/substance_abuse/right_committee/en/> accessed 21 August 2014.
^[82] Within the international drug control regime, progress on achieving agreed targets have been regularly assessed, most prominently with a high level review in 2009. In the Political Declaration and Plan of Action that emerged from that process, member states recognised ‘the need to increase investment in research and evaluation in order to properly implement and assess, based on evidence, effective policies and programmes for countering the world drug problem’: see, 2009 Political Declaration (n 80) [37].
^[83] United Nations Economic and Social Council, Commission on Narcotic Drugs, Resolution 57/3, ‘Promoting prevention of drug abuse based on scientific evidence as an investment in the well-being of children, adolescents, youth, families and communities’ (2014) (CND Res 57/3) [7] ‘Invites Member States, through bilateral, regional and international cooperation, where appropriate, to collaborate in the implementation of the International Standards on Drug Use Prevention, through the exchange of information and the provision of assistance, including technical assistance, upon request, with a view to enhancing their ability to implement those Standards’; UN Office on Drugs and Crime, International Standards on Drug Use Prevention (UN Office on Drugs and Crime 2013).
^[84] See, e.g., CO Cook Islands, CRC/C/COK/CO/1, [52(c)]; CO Thailand, CRC/C/THA/CO/3-4, [65]; CO Iceland, CRC/C/ISL/CO/3-4, [45]; CO Seychelles, CRC/C/SYC/CO/2-4, [57]; CO Cameroon, CRC/C/CMR/CO/2, [58(e)];CO Guinea, CRC/C/15/Add100, [33]; CO Colombia, CRC/C/15/Add137, [66].
^[85] See, e.g., CO Guinea, CO CRC/C/GIN/CO/2, [68]; CO Italy, CRC/C/ITA/CO/3-4, [54]; CO Sweden, CRC/C/SWE/CO/4, [49(c)]; CO Belize, CRC/C/15/Add.252, [55]; CO St Vincent and Grenadines, CRC/C/15/Add184, [51(a)]; CO Mozambique, CRC/C/15/Add172, [71(c)]; and CO Lithuania, CRC/C/15/Add146, [50].
^[86] ‘2009 Political Declaration (n 80) , Plan of Action Part I.A.10 ‘Data collection monitoring and evaluation’.
^[87] Catherine Cook and Adam Fletcher, ‘Youth Drug Use Research and the Missing Pieces in the Puzzle: How can Researchers Support the Next Generation of Harm Reduction Approaches?’ in Damon Barrett (ed), Children of the Drug War: Perspectives on the Impact of Drug Policies on Young People (iDebate Press 2011).
^[88] See generally, UN Drug Demand Reduction Principles (n 8) (’[d]emand reduction programmes should be designed to address the needs of the population in general as well as those of specific population groups, special attention being paid to youth’) [13]; Action Plan for the Implementation of the Declaration on the Guiding Principles of Drug Demand Reduction, UN Doc A/RES/54/132 (2 February 2000) [14] and [15]; 2009 Political Declaration (n 80) Plan of Action Part A.I.7 ‘Targeting Vulnerable Groups and Conditions’
^[89] See, e.g., CO Colombia, CRC/C/COL/CO/3, [88] and CO Mozambique CRC/C/15/Add172, [71(a)].
^[90] See, e.g., CO Romania, CRC/C/15/Add16, [9].
^[91] See, e.g., CO Greece, CRC/C/15/Add170, [74].
^[92] See, e.g., CO Sierra Leone, CRC/C/15/Add116, [83].
^[93] See, e.g., CO Djibouti, CRC/C/15/Add131, [56].
^[94] See generally American Academy of Pediatrics Committeee on Substance Abuse, ‘Tobacco Alcohol and Other Drugs: The Roles of the Pediatrician in Prevention and Management of Substance Abuse’ (1998) 101 Pediatrics 125 (providing list of 23 different risk factors).
^[95] Joseph Biederman and others, ‘Patterns of Alcohol and Drug Abuse in Adolescents can be Predicted by Parental Substance Use Disorders’ (2000) 106 Pediatrics 792.
^[96] For example: Scott Hadland and others, ‘Childhood Sexual Abuse and Risk for Initiating Injection Drug Use: A Prospective Cohort Study’ (2012)55 Preventive Medicine 500; Cindy Feng and others, ‘Homelessness Independently Predicts Injection Drug Use Initiation Among Street-Involved Youth in a Canadian Setting’ (2013) 52 Journal of Adolescent Health 499; John Fagan and others, Opiate-dependent Adolescents in Ireland: A Descriptive Study at Treatment Entry’ (2008) 25 Irish Journal of Psychological Medicine 46; Sudirman Nasir and Doreen Rosenthal, ‘The Social Context of Initiation into Injecting Drugs in The slums of Makassar’, Indonesia’ (2009) 20 International Journal of Drug Policy 237.
^[97] For a discussion see Damon Barrett, Neil Hunt and Clauda Stoicescu, Injecting Drug Use Among Under-18s: A Snapshot Of Available Data (Harm Reduction International 2013).
^[98] See 2009 Political Declaration (n 80); and GA Res 68/197 ‘International co-operation against the world drug problem’ UN Doc No. A/RES/68/197, 2013.
^[99] GC 3 (n 54) [39].
^[100] See, e.g., CO Togo, CRC/C/TGO/CO/3-4, [55]-[56]; CO El Salvador, CRC/C/SLV/CO/3-4, [60]; CO Norway, CRC/C/MNG/CO/3-4, [40]; CO Spain, CRC/C/15/Add185, [39(a)]; CO Kyrgyzstan, CRC/C/15/Add127, [58]; and CO South Africa, CRC/C/15/Add122, [38].
^[101] See, e.g.,See, e.g., CO Chile CRC/C/15/Add173 para 42(a).
^[102] GC 15 (n 22) [73(d)].
^[103] In 2005, the Committee recommended that the Philippines ‘[c]ombat drug and substance abuse among children and adolescents, for example by effectively implementing the Comprehensive Dangerous Drugs Act of 2002’ . The Act at that time still included the death penalty for drug offences: CO Philippines, CRC/C/15/Add.25921, [81], [82(a)]. More recently, in its 2013 review of the Russian Federation, the Committee welcomed the state party’s drugs strategy, which has been widely criticised on public health and human rights grounds by HIV, drug policy and human rights groups due to its repressive nature and denial of harm reduction interventions: CO Russian Federation, UN Doc No CRC/CO/RUS/4-5, [5(c)].
^[104] UN Drug Demand Reduction Principles (n 8) [11].
^[105] See, e.g. CO Togo, CRC/C/TGO/CO/3-4, [56]; Co Croatia, CRC/C/15/Add.243,[54] CO Latvia, CRC/C/15/Add142, [40]; and CO Palau, CRC/C/15/Add149, [49].
^[106] It has been estimated that it costs between €3.9 and €5.9 billion annually to keep people in prison for drug offences in the European Union: see, European Monitoring Centre on Drugs and Drug Addiction, Estimating Expenditure on Drug Law Offenders in Europe’ European Monitoring Centre on Drugs and Drug Addiction’ (EMCDDA 2014). In Australia, drug enforcement amounted to almost two thirds of the national drug policy budget in 2009-2010, vastly outweighing other components. Prevention received 9.5%. See, Alison Ritter, Ross McLeod and Marian Shanahan, Government Drug Policy Expenditure in Australia 2009/10: Drug Policy Modelling Program Monograph 24 (National Drug and Alcohol Research Centre 2013).
^[107] See above (n 56)
^[108] For discussion, see, Aoife Nolan, ‘Economic and Social Rights, Budgets and the Convention on the Rights of the Child’ (2013) 21 International Journal of Children’s Rights 248. See also: European Monitoring Centre on Drugs and Drug Addiction, European Drug Report, 2014: Trends and Developments (EMCDDA 2014) 70 (‘[m]any European countries continue to face the consequences of the recent economic downturn. The extent of fiscal consolidation or austerity measures and their impact differs between European countries. Among the 18 countries with sufficient data to make a comparison, reductions were reported in health and public order and safety — the areas of government spending where most drug-related public expenditure originates. Overall, between 2009 and 2011, greater reductions in public expenditure were observed in the health sector’ [Emphasis added]; ESC Committee CO Ukraine, E/C.12/UKR/CO/6 [24] (Raising concerns about ‘the punitive approach taken in the State party towards persons who use drugs, which results in high numbers of such persons being imprisoned” and recommending “Allocating financial resources for the proper operation of opioid substitution therapy (OST) and needle and syringe exchange (NSE) programmes and increasing their coverage, as well as ensuring better access to such programmes in prisons programmes’).
^[109] See, e.g., CO Ukraine, CRC/C/UKR/CO/3-4, [61and CO Greece, CRC/C/15/Add170, [75(b)].
^[110] See, e.g., CO Liberia, CRC/C/LBR/CO/2-4, [67(e)]; CO Togo, CRC/C/TGO/CO/3-4, [56]; CO Bahrain, CRC/C/BHR/CO/2-3, [60]; CO Slovakia, CRC/C/SVK/CO/2, [66]; CO Palau, CRC/C/15/Add149, [57]; CO Benin, CRC/C/15/Add106, [31]; and CO Colombia, CRC/C/15/Add137, [66].
^[111] This is standard wording for annual omnibus General Assembly resolutions on drugs and in resolutions negotiated in Vienna. See, e.g., UN General Assembly Resolution 67/193, ‘International Co-Operation against the World Drug Problem’, UN Doc A/RES/67/193 (23 April 2013), [2]; UN Economic and Social Council, Commission on Narcotic Drugs, resolution 51/12, ‘Strengthening Cooperation between the United Nations Office on Drugs and Crime and other United Nations Entities for the Promotion of Human Rights in the Implementation of the International Drug Control Treaties’ (March 2008),[1].
^[112] UN Office for Drug Control and Crime Prevention, World Drug Report 2000, (UNODCCP 2000) 86.
^[113] See generally Neil Boister, Penal Aspects of the UN Drug Conventions (Kluwer Law International, 2001).
^[114] The criminalisation of personal use per se is not included in any of the treaties, though clearly criminalising possession for personal use leads to very similar outcomes.
^[115] Arts 5(f) and (g).
^[116] See, e.g.,, CO Armenia, CRC/C/15/ADD.225, [63]; CO Indonesia, CRC/C/15/ADD.223, [74]; CO Norway, CRC/C/15/Add.263, [44]; CO Denmark, CRC/C/DNK/CO/3, [55]; CO Russian Federation, CRC/C/RUS/CO/3, [77]; CO Maldives, CRC/C/MDV/CO/3, [88]; CO Marshall Islands, CRC/C/MHL/CO/2, [55]; CO Afghanistan, CRC/C/AFG/CO/1, [52(d)]. See in particular CO Ukraine, CRC/C/UKR/CO/4, [62(b)]: ‘[e]nsure that criminal laws do not impede access to such services, including by amending laws that criminalise children for possession or use of drugs’
^[117] See generally Hibell and others (n 39),; Lloyd Johnston and others, Monitoring the Future: National Survey Results on Drug Use 1975-2013; (Institute for Social Research, University of Michigan 2014); UN Office on Drugs and Crime, World Drug Report 2014 (UN Office on Drugs and Crime 2014).
^[118] See, e.g., Jonathan Caulkins and Sara Chandler, ‘Long-Run Trends in Incarceration of Drug Offenders in the United States’ (2006) 52 Crime and Delinquency 619; and Polly Radcliffe and Alex Stevens, ‘Are Drug Treatment Services only for “Thieving Junkie Scumbags”? Drug Users and the Management of Stigmatised Identities’ (2008) 67 Social Science and Medicine 1065.
^[119] See, Trafficking Convention, art 3(2).
^[120] See e.g., Arriola, Sebastián and others, case no 9080 (25 August 2009), A 891 XLIV (Argentina). See generally, Ari Rosmarin and Niamh Eastwood, A Quiet Revolution: Drug Decriminalisation Policies in Practice across the Globe (Release 2013).
^[121] UN International Narcotics Control Board, Flexibility of Treaty Provisions as Regards Harm Reduction Approaches: Decision 74/10, prepared by the Legal Affairs Section, UN Doc E/INCB/2002/W.13/SS.5 (30 September 2002).
^[122] See Stephen Rolles, After the War on Drugs: Blueprint for Regulation (Transform Drug Policy Foundation 2010).
^[123] United Nations Economic and Social Council, Commission on Narcotic Drugs, resolution 57/3, ‘Promoting prevention of drug abuse based on scientific evidence as an investment in the Well-Being of Children, Adolescents, Youth, Families and Communities’ (March 2014) (stressing the importance of ‘taking into account human rights obligations in the implementation of drug prevention programmes’); Stafford Unified School District#1 v April Redding (2009) 557 US 364 (US Supreme Court) (relating to the strip search of a school student); New South Wales Ombudsman, Review of the Police Powers (Drug Detention Dogs) Act 2001, (June 2006) 146 (expressing concern at searching of young people under 18 years of age at railway stations).
^[124] European Monitoring Centre on Drugs and Drug Addiction, Prevention of Drug Use, available at <www.emcdda.europa.eu/topics/prevention>, accessed 22 August 2014.
^[125] See generally, European Monitoring Centre on Drugs and Drug Addiction, Environmental Strategies, available at <www.emcdda.europa.eu/themes/prevention/environmental-strategies>, accessed 22 August 2014.
^[126] See generally, European Monitoring Centre on Drugs and Drug Addiction, ‘Universal Prevention’, available at h<www.emcdda.europa.eu/html.cfm/index1578EN.html>, accessed 22 August 2014.
^[127] See generally, European Monitoring Centre on Drugs and Drug Addiction ‘Selective Prevention’, available at <www.emcdda.europa.eu/html.cfm/index1569EN.html>, accessed 22 August 2014.
^[128] See generally, European Monitoring Centre on Drugs and Drug Addiction, Preventing Later Substance Use Disorders in At-Risk Children and Adolescents: A Review of the Theory and Evidence Base of Indicated Prevention (EMCDDA 2009).
^[129] European Monitoring Centre on Drugs and Drug Addiction, ‘European Drug Prevention Quality Standards: A Manual for Prevention Professionals’ (EMCDDA 2011) 19.
^[130] UN Office on Drugs and Crime (n ,83) 2.
^[131] ‘European Monitoring Centre on Drugs and Drug Addiction (n 129); UN Office on Drugs and Crime (n ,83).
^[132] See, e.g., CO Guyana, CRC/C/GUY/CO/2-4, [50(d)]; CO Guinea, CO CRC/C/GIN/CO/2, [65]; CO Albania, CRC/C/ALB/CO/2-4, [63(b)]; CO Austria, CRC/C/AUT/CO/3-4, [51]; CO Vietnam, CRC/C/VNM/CO/3-4, [63(a)]; CO Benin, CRC/C/15/Add106, [31]; and CO Seychelles, CRC/C/15/Add189, [53(b)].
^[133] A similar provision appears in art 20(1) of the Psychotropic Substances Convention.
^[134] Cf Human Rights Watch, “Skin on the Cable”: The Illegal Arrest, Arbitrary Detention and Torture of People Who Use Drugs in Cambodia (Human Rights Watch 2010); CO Cambodia, CRC/C/KHM/CO/2, [55] and [56].
^[135] [insert cross-reference to full discussion in right to health chapter]
^[136] World Health Organization, Guidelines for the Psychosocially Assisted Pharmacological Treatment of Opioid Dependence (WHO 2009).
^[137] E.g., Howard Liddle, Multidimensional Family Therapy for Adolescent Drug Abuse: Clinician’s Manual (Hazelden Publishing 2009); Howard Liddle, ‘Multidimensional Family Therapy: A 12-Week Intensive Outpatient Treatment for Adolescent Cannabis Users’ (Center for Substance Abuse Treatment 2000).
^[138] UN Office on Drugs and Crime and World Health Organization, Principles of Drug Dependence Treatment: Discussion Paper (March 2008).
^[139] ibid 12.
^[140] ibid 10, principle 4.
^[141] See, Harm Reduction International, What is Harm Reduction? A Position Statement (Harm Reduction International 2010).
^[142] See Neil Hunt and others, ‘Evaluation of a Brief Intervention to Prevent Initiation into Injecting’ (1998) 5 Drugs: Education, Prevention and Policy 185; Jamie Bridge, ‘Route Transition Interventions: Potential Public Health Gains from Reducing or Preventing Injecting’ (2010) 21 International Journal of Drug Policy 125; Neil Hunt, Break the Cycle Case Study: Albania (UNICEF 2010).
^[143] See UN Office on Drugs and Crime and World Health Organization, Opioid Overdose: Preventing and Reducing Opioid Overdose Mortality (2013); UN Economic and Social Council, Commission on Narcotic Drugs resolution 55/7,‘Promoting Measures to Prevent Drug Overdose, in Particular Opioid Overdose’ (16 March 2012).
^[144] See, e.g., Peter d’Abbs and Sarah Maclean,‘Volatile Substance Misuse: A Review of Interventions’ (Commonwealth of Australia 2008), 93-97.
^[145] Barrett, Hunt and Stoicescu (n 97).
^[146] See, e.g., National Research Council, Preventing HIV Infection among Injecting Drug Users in High Risk Countries: An Assessment of the Evidence (National Academic Press 2006); Neil Hunt, A Review of the Evidence-Base for Harm Reduction Approaches to Drug Use (Forward Thinking on Drugs 2003); World Health Organization, Evidence for Action Technical Papers: Effectiveness of Sterile Needle and Syringe Programming in Reducing HIV/AIDS among Injecting Drug Users (World Health Organization 2004); World Health Organization, Evidence for Action Technical Papers: Effectiveness of Drug Dependence Treatment in HIV Prevention (World Health Organization 2004).
^[147] GC 3 (n 54), 39.
^[148] The UN Commission on Narcotic Drugs has never endorsed the term, with negotiations leading to lengthy and often heated debates. In 2009 arguments over harm reduction led to a breakdown in the traditional consensus in the Commission in Narcotic Drugs. See David Bewley-Taylor, International Drug Control: Consensus Fractured (Cambridge University Press 2012). The term “harm reduction” has received the approval of the UN General Assembly in the context of HIV: see, UN General Assembly, Political Declaration on HIV/AIDS, UN Doc A/RES/60/262 (15 June 2006) [22]. This, however, was weakened in the 2011 political declaration: cf UN Doc A/RES/65/277 (8 July 2011) [59(h)].
^[149] ESC Committee, CO Tajikistan, E/C.12/TJK/CO/1, [70]; CO Ukraine, E/C.12/UKR/CO/5, [28]; CO Poland, E/C.12/POL/CO/5, [26]; CO Kazakhstan, E/C.12/KAZ/CO/1, [34]; CO Mauritius, E/C.12/MUS/CO/4, [27]; CO Russian Federation, E/C.12/RUS/CO/5, [29]: CO Ukraine, E/C.12/UKR/CO/6, [22] and [24].
^[150] ESC Committee, CO Mauritius, E/C.12/MUS/CO/4, [27].
^[151] Paul Hunt, Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, Addendum: Mission to Sweden, UN Doc A/HRC/4/28/Add.2 (28 February 2007), [60]-[62]; Anand Grover, Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, , Addendum: Mission to Poland, UN Doc A/HRC/14/20/Add.3 (20 May 2010) [57]-[80] and (n 51) [50]-[61]. In the context of prisons and places of detention, the current and former special rapporteurs on torture have also recommended harm reduction interventions. See, Manfred Nowak, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,Mission to Kazakhstan, UN Doc A/HRC/13/39/Add.3 (16 December 2009), [85(b)]; Manfred Nowak, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, , Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including The Right To Development, UN Doc A/HRC/10/44 (14 January 2009), [57]-[65]. Juan E. Méndez, Report of the, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, , UN Doc A/HRC/ 22/53 (1 February 2013), [72]-[74].
^[152] See, CO Ukraine, CRC/C/UKR/CO/4, [59] and [60]; CO Austria, CRC/C/AUT/CO/3-4, [51]; CO Albania, CRC/C/ALB/CO/2-4, [63(b)]; CO Guinea, CRC/C/GIN/CO/2, [68]; CO Guyana, CRC/C/GUY/CO/2-4, [50(d)]; GC 3 (n 54), [39]; Committee on the Rights of the Child, GC 15 (n 22) [66].
^[153] Harm Reduction International (n 141)
^[154] See, e.g., CO Malta, CRC/C/MLT/CO/2 , [52]; CO Liberia, CRC/C/LBR/CO/2-4, [67(d)]; CO Thailand, CRC/C/THA/CO/3-4, [65]; CO Australia, CRC/C/15/Add.268, [71]; CO St Vincent and Grenadines, CRC/C/15/Add184, [51(b)]; CO Spain, CRC/C/15/Add185, [39(a)]. See also art 38(3) of the Narcotics Convention, which requires states party to promote an understanding of the problems of drug abuse among the general public if there is a risk that drug abuse will become widespread.
^[155] For an overview of the evidence for various prevention measures see, European Monitoring Centre on Drugs and Drug Addiction, EMCDDA Insights: Prevention of Substance Abuse (EMCDDA 2008).
^[156] See, e.g., European Monitoring Centre on Drugs and Drug Addiction, Perspectives on Drugs: Mass media Campaigns for The prevention of Drug Use in Young People (EMCDDA 2013).
^[157] Catherine Spooner and Wayne Hall, ‘Preventing Drug Misuse by Young People: We Need to Do More Than ‘Just Say No’’ (2002) Addiction 97, 478–81
^[158] European Monitoring Centre on Drugs and Drug Addiction (n 133), 19.
^[159] See, e.g., CO Malta, CRC/C/MLT/CO/2 , [52]; CO Liberia, CRC/C/LBR/CO/2-4, [56(d)]; CO Cook Islands, CRC/C/COK/CO/1, [52(c)]; CO Iceland, CRC/C/ISL/CO/3-4, [45], CO Central African Republic, CRC/C/15/Add138, [81].
^[160] UN Office on Drugs and Crime, Guide to Implementing Family Skills Training for Drug Abuse Prevention (UNODC 2009), 15-19.
^[161] See Krug (n 73).
^[162] See, e.g., CO Kazakhstan, CRC/C/KAZ/CO/3, [52]; CO Benin, CRC/C/15/Add106, [31]; CO Mozambique, CRC/C/15/Add172, [71(b)]; CO Switzerland, CRC/C/15/Add182, [55].; CO Lithuania, CRC/C/15/Add146, [50]; CO Monaco, CRC/C/15/Add158, [6]; CO Finland, CRC/C/15/Add132, [56]; CO South Africa, CRC/C/15/Add122, [38]; and CO Armenia, CRC/C/15/Add119, [53].
^[163] See, e.g., CO Poland, CRC/C/15/Add194 , [43]; CO Togo, CRC/C/15/Add.83 [52].
^[164] See, e.g., Pim Cuijpers ‘Effective Ingredients of School-Based Drug Prevention Programs:. A Systematic Review’ (2002) 27 Addictive Behaviours 1009.
^[165] See, e.g., Christopher Ringwalt and others, ‘An Outcome Evaluation of Project DARE (Drug Abuse Resistance Education)’ (1991) 6 Health Education Research 327; Marjorie Kanof letter to Senator Richard Durban of the United States Senate dated 15 January 2003, entitled, ‘Youth Illicit Drug Use Prevention: DARE Long-Term Evaluations and Federal Efforts to Identify Effective Programs’, (US General Accounting Office 2003), available at < www.gao.gov/new.items/d03172r.pdf>, accessed 22 August 2014.
^[166] UN Office on Drugs and Crime, School Based Education for Drug Abuse Prevention (UN Office on Drugs and Crime 2004) 16.
^[167] UN Office on Drugs and Crime (n 83) 18.
^[168] Chris Bonell and Adam Fletcher, ‘Improving School Ethos May Reduce Substance Misuse and Teenage Pregnancy’ (2007) 334 British Medical Journal 614.
^[169]ibid 24 and 25.
^[170] See Ryoko Yamaguchi, Lloyd Johnston, and Patrick O’Malley, ‘Relationship between Student Illicit Drug Use and School Drug-Testing Policies’(2003) 73 Journal of School Health 159 (large scale study in the US involving over 400 schools and 75,000 students showed no difference in rates of use between schools that employed such tests and those that did not).
^[171] Adam Fletcher ‘Drug Testing in Schools: A Case Study in Doing More Harm Than Good’ in Damon Barrett (ed) Children of the Drug War: Perspectives on the Impact of Drug Policies on Young People (iDebate Press 2011) 196-204.
^[172] [cross reference]
^[173] [cross reference]
^[174] See, e.g., CO Guyana, CRC/C/GUY/CO/2-4, [50(d)]; CO Albania, CRC/C/ALB/CO/2-4, [64(b)]; CO Romania, CRC/C/ROM/CO/4, [71]; CO Sweden, CRC/C/SWE/CO/4, [49(a)]; CO Bulgaria, CRC/C/BGR/CO/2, [50].
^[175] Report of the Secretariat Youth and Drugs: A Global Overview (n 8), [65(f)].
^[176] UN Office on Drugs and Crime (n 83), 30.
^[177] ibid 18.
^[178] Worst Forms of Child Labour Convention (adopted 17 June 1999, entered into force 19 November 2000) 38 ILM 207 (‘Worst forms of Child Labour Convention’).
^[179] [cross reference to commentary on art 40]
^{[180] [}cross reference to commentary on art 38]
^[181] Tobin (n 72) 237-248.
^[182] See, e.g., Human Rights Watch, Hellish Work: Tobacco workers in Kazakhstan (Human Rights Watch 2010); Human Rights Watch, Tobacco’s Hidden Children: Hazardous child Labor in United States Tobacco Farming (Human Rights Watch 2014).
^[183] See, e.g., CO Antigua and Barbuda, CRC/C/15/Add.247, [62]; CO Colombia, CRC/C/COL/CO/3, [88]; CO Colombia, CRC/C/15/Add137, [65]; and CO Djbouti, CRC/C/15/Add131, [55].
^[184] See, e.g., CO Djibouti, CRC/C/15/Add131, [56]; CO Colombia, CRC/C/15/Add137, [66]; and CO Russian Federation, CRC/C/15/Add110, [62].
^[185] CO Colombia, CRC/C/COL/CO/3, [82], [83], [88], and [89].
^[186] E.g.,CO Saint Lucia, CRC/C/15/Add.258, [68]; CO Netherlands (Netherlands Antilles), CRC/C/15/ADD.186, [62] and [63]; CO Seychelles, CRC/C/15/ADD.189; Costa Rica,CRC/C/15/Add.266,.
^[187] See also, Worst Forms of Child Labour Convention, art 7.
^[188] See, Jessica Leinwand, ‘Punishing Horrific Crime: Reconciling International Prosecution with National Sentencing Practices’ (2009) 40 Columbia Human Rights Law Review799. 804 (‘retributive justice calls for rational and proportionate sentences’), citing Stuart Beresford, ‘Unshackling the Paper Tiger—Sentencing Practices of the Ad Hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda’ (2001) 1 International Criminal Law Review 33, 41 (‘cardinal proportionality—which is concerned with the magnitude of the penalty—requires that punishment is not disproportional to the gravity of the conduct’).
^[189] See, UN Women, Progress of the World‘s Women, 2011-2012: In Pursuit of Justice, (UN Women 2011) 62-64 Eka Iakobishvili, Cause for Alarm: The Incarceration of Women for Drug Offences in Europe and Central Asia and the Need for Legislative and Sentencing Reform (Harm Reduction International 2012); Pien Metaal and Coletta Youngers (eds), Systems Overload: Drug Laws and Prisons in Latin America (Washington Office on Latin America, Transnational Institute 2011).
^[190] For a discussion of the principles to guide the sentencing of parents, see, John Tobin, ‘Courts and the Construction of Childhood: A New Way of Thinking’ in Michael Freeman (ed) Childhood and the Law (Oxford University Press 2012) 55.
^[191] With regard to drug use the evidence suggests no deterrent effect from criminal laws and enforcement. See Samuel R. Friedman et al ‘Drug Arrests and Injection Drug Deterrence’ 101 American Journal of Public Health 3 (2011) pp. 344-349; Louisa Degenhardt et al ‘Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys’ Plos Medicine DOI: 10.1371/journal.pmed.0050141 (Published 1 July 2008); A 2014 multi-country study by the UK Home Office concluded that ‘there is no apparent correlation between the ‘toughness’ of a country’s approach and the prevalence of adult drug use.” UK Home Office, Drugs: International Comparators, 2014, p. 51.
^[192] See Fernando Henrique Cardoso ‘Children and Drug Law Reform’ (2011) 23 International Journal of Drug Policy 1, 1-2; Stephen Rolles ‘How Legal Regulation of Production and Trade Would Better Protect Children’ in Damon Barrett (ed) Children of the Drug War: Perspectives on the Impact of Drug Policies on Young People (iDebate Press 2011) 59-71.
^[193] CO Belarus, CRC/C/15/Add.180, [51]. See also CO Guinea Bissau, CRC/C/15/Add.177, [54] and [55]; CO Pakistan, CRC/C/PAK/CO/3-4, [90] (‘conduct a survey to assess the prevalence of child labour, including bonded and forced labour, and inform the committee about the findings in its next periodic report’); and CO Romania, CRC/C/ROM/CO/4, [83(b)] (‘monitor the situation of children involved in all forms of economic exploitation’).
^[194] See Jess Hunter Bowman, ‘Real Life on the Frontlines of Colombia’s Drug War’ and Atal Ahmadzai and Christopher Konqui,‘In the Shadows of the Insurgency in Afghanistan: Child Bartering, Opium Debt and the War on Drugs’, both in Damon Barrett (ed) Children of the Drug War: Perspectives on the Impact of Drug Policies on Young People (iDebate Press 2011) 11 and 29, respectively.
^[195] Dowdney (n 12), 131 (referring to poverty and lack of access to the formal work market).
^[196] CO Maldives, CRC/C/MDV/CO/3, [89(e)].
^[197] See for example Dan Werb and others ‘Risks Surrounding Drug Trade Involvement Among Street-Involved Youth’, The American Journal of Drug and Alcohol Abuse, 34: 810–820, 2008 (Discussing crack using homeless young people’s involvement in selling drugs).
^[198] See, e.g.,, Jennifer Wong and others, Effectiveness of Street Gang Control Strategies: A Systematic Review and Meta-Analysis of Evaluation Studies (Public Safety Canada 2012); Adam Cooper and Catherine. L Ward, Prevention, Disengagement and Suppression: A Systematic Review of the Literature on Strategies for Addressing Young People’s Involvement in Gangs, report to Resources Aimed at Preventing Child Abuse and Neglect (RAPCAN) (Human Sciences Research Council 2008).
^[199] General Assembly Resolution 68/196, United Nations Guiding Principles on Alternative Development, UN Doc A/RES/68/196 (11 February 2014).
^[200]ibid [p] and [ff].
^[201] See Coletta Youngers, UN Guiding Principles on Alternative Development: Opportunity Lost, Open Society Foundations (23 November 2012), available at <www.opensocietyfoundations.org/voices/un-guiding-principles-alternative-development-opportunity-lost> accessed 25 August 2014.
^[202] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc No A/HRC/10/44, 10 January 2009, para 51.
^[203] Paul Hunt, ‘Human Rights, Health and Harm Reduction: States’ Amnesia and Parallel Universes’, Rolleston Oration, 19th International Harm Reduction conference, Barcelona, 11 May 2008.
^[204] In 2013 the UN General Assembly agreed to a special session on drugs, the first since 1998, due to concerns raised primarily by Latin American states about state security, pubic health and the human costs associated with drug enforcement: GA RES 67/193 ‘International co-operation against the world drug problem’, UN Doc No A/RES/67/193, 2013.