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DRUG USE AND HUMAN RIGHTS: PRIVACY, VULNERABILITY, DISABILITY, AND HUMAN RIGHTS INFRINGEMENTS

First published in the journal of contemporary health law and policy volume 12 1996 The Catholic University of America.

Norbert Gilmore

ABSTRACT

Drug use is a complex social phenomenon involving the drugs which are used, the people using them, the context in which they are acquired and used, and the social construction of drug use by society and by governments. It is a popular yet controversial behavior which elicits extreme public opinion. Discourse about drug use is often polarized, emotional, and divisive. This is most evident in the approaches used or proposed to control drug use and the risks and harms associated with its use and control. Despite this, there is almost no discourse about the human rights ofdrug users. This Article addresses this issue by examining the privacy rights of drug users, their vulnerability to use drugs and to be harmed by using them, and the deprivation of opportunities for drug users to exercise their rights. This Article will also analyze disabilities attributable to drug use, as well as situations in which the human rights of drug users are likely to be infringed.

I. INTRODUCTION

There is a growing appreciation of the importance of relationships between the promotion and protection of human rights and the promotion and protection of health 2 —in particular, the health of people who are disadvantaged, stigmatized, and vulnerable to ill health and to human rights abuses. This includes people who engage in illegal drug use.3 However, little has been written about drug use and human rights. Human rights are rarely mentioned expressly in drug use literature and drug use is rarely mentioned in human rights literature.4 For example, the only express reference to drug use in international human rights conventions and treaties is in the European Convention on Human Rights. Further, the subject of human rights is mentioned only once in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the international legal instrument that addresses drug control.5 Not only is there a paucity of discourse on drug use together with human rights, but in at least one instance, an international effort to address this issue was suppressed.6

It is not surprising that so little has been written regarding human rights and drug use, considering the plight of most drug users. Drug use is a highly polarized and divisive puzzle of fact and fiction. There is a wide disparity among the conceptualizations of drug use, which range from conceptualizing drug use as a moral or criminal problem on the one hand, or a disease or medical problem on the other. As the British Medical Association points out:

[A]lmost every psychoactive drug known to humanity, from alcohol to opium, has been regarded by some government and society as a dire threat to public order and moral standards, and by another government and another society as a source of harmless pleasure. Further, nations and governments sometimes change their views completely. Almost every society has at least one drug whose use is tolerated, while drugs used in other cultures are generally viewed quite differently and with deep suspicion. Mexican Indians may have disapproved of alcohol, but they used mescaline. Most Muslim cultures forbid alcohol, but they tolerate cannabis and opium.7

Drug use is also one of the most stigmatized behaviors worldwide. 8

Drug users are among the most marginalized and hidden populations in many countries.9 In addition, drug users are often made into scapegoats 10 and discriminated against.11 Drug users are frequently portrayed as criminals, and many have criminal records because the "production, manufacture, export, import, distribution of, trade in, use and possession 12 of a variety of drugs is illegal, both internationally and domestically. Moreover, the health of drug users is often imperiled by the marginalization, stigmatization, and discrimination they suffer. Perhaps nowhere is this more evident than in responses to epidemic diseases. offering a persuasive model to understand these responses to drug use.13 The panic and uncertainty that accompany epidemic disease may lead to a desperate search for explanations—often, personalized ones. Many people must have theological and moral reasons for their plight—as Albert Camus demonstrated so brilliantly in The Plague. Stigmatization seems to provide a partial (although spurious) answer to essentially unanswerable questions. The convenience of having an already despised or suspect group in the vicinity allows for quick attribution of causality and blame.l4

The dominant society is indifferent to the problems of a stigmatized group as long as they are spared these problems, including the need for research, resources, social support, and legal protection resulting from these problems. When the dominant society is affected, its responses are often to blame and punish the stigmatized group. Those who are affected, whether members of the dominant or stigmatized population, hide or deny their problem and shield themselves from stigmatization, exclusion, discriminatory blame, and punishment. "In fixing blame on individuals. [the dominant society] obscures the social and institutional dimensions so necessary to sound public health measures.''15 Helpful responses may be blunted, avoided, or rejected; those trying to solve the problem may be vulnerable to the same abuses as those who are affected; those who are affected may avoid or refuse help, fearing disclosure and vulnerability to abuse. The affected may develop a hopeless, helpless view of their plight, which becomes a self-fulfilling prophecy, perpetuating or reinforcing the dominant society's views of the affected population.

When people are viewed as being different, marginal, deserving of stigmatization, and prone to discrimination, they are exceedingly vulnerable to abuse, l6 including the abuse of their human rights.l7 There is a "vicious circularity" to this vulnerability. All too often this characteristic underlies and predisposes the use of drugs and it is amplified and reinforced when drugs are used. In this setting, drug users are unlikely to exercise their rights like everyone else in society. Many of them are deeply hidden from society and rarely will claim their rights and less often defend them.l8 This is made worse when a government jeopardizes or infringes upon one's rights in order to control drug use. A government is unlikely to listen to or respect the claims of a drug user when this would allow the drug user to continue an illegal activity which the government is trying to suppress.

It is not only the rights of drug users that may be jeopardized by drug use. There are inner-city residents in the United States who reported their willingness to give up some of their rights so that drug trafficking and drug use could be controlled more decisively by the criminal justice system.l9 Crime, violence, fear, and frustration have hardened attitudes against drug users, especially in inner-city areas where drug trafficking and use are rampant. This has promoted and strengthened criminal justice approaches to control these problems. As the use of intrusive efforts to detect, apprehend, convict, and punish drug traffickers and users increases, the rights of drug users are increasingly jeopardized. For instance:

Today, inner-city residents and minorities are not only victims of ever more dangerous drugs, introduced into their communities by callous profiteers; they are also, along with their civil liberties, the chief casualties of the war on drugs ....

[M]artial law has been declared in our inner cities, with police raids, curfews, and warrantless searches being the order of the day. At the same time, almost nothing is being done to ameliorate the grinding poverty and despair that are the causes of much of the drug abuse our government claims it wants to end.20

This situation, along with the plight of many drug users, and the paucity of discourse about drug use and human rights, points out the urgent need to examine human rights relating to drug use. Human rights principles can provide new insights and a powerful means to examine drug use and responses to it.21 Efforts aimed at promoting and protecting health and human rights are complementary, interdependent, and mutually reinforcing.22 In this regard, "the thinking that led to the Universal Declaration of Human Rights and its list of fundamental and inalienable rights may provide a more useful entry point into a thorough consideration of the 'conditions in which people can be healthy' than the approaches traditionally used in medicine and public health."23 Ensuring that responses to drug use, particularly legal and policy ones, comply with human rights standards and norms is another instance of this approach.


II. AIMS AND OBJECTIVES

This Article aims to analyze human rights as they relate to drug use. The initial presumptions of this analysis are: (1) contemporary drug use is, all too often, excessively risky and harmful, and many of these risks and harms can be lessened or avoided; (2) among the risks and harms is that drug users may be deprived of one or more of their rights, or the exercising of their rights may be jeopardized because of their drug use; (3) this situation is determined, to a large extent, by legal and policy responses aimed at controlling drug use and its risks and harms; and (4) these responses are often determined by how drug use is perceived and conceptualized which, unfortunately, is often incomplete, inaccurate, stigmatizing, and sometimes wrongfully discriminatory against drug users.24

The analysis involves examining the conceptualization of drug use, legal and policy responses aimed at controlling drug use and some of its risks and harms, and the impact of these responses on the opportunities of drug users to exercise their human rights, in particular, as this relates to their health. This last analysis involves an examination of four specific issues: (1) respect for the privacy of drug users; (2) relationships between the vulnerability to use drugs, to be harmed by using them, and the limited opportunities of drug users to exercise their human rights because of their drug use; (3) relationships between drug use and disability, including whether or not drug use can be considered a disabling condition; and (4) identification and classification of situations in which infringements of the rights of drug users are likely to occur.

These four issues have been selected for analysis for the following reasons. An analysis of privacy is salient to the analysis of drug use and human rights because government responses to drug use, in particular prohibitory ones, can conflict with, jeopardize, and intrude into the privacy of drug users and those suspected of using drugs. At one extreme, there is the question of whether or not drug use can be considered an autonomous, private behavior; at the other extreme, there are concerns such as the intrusiveness of drug testing 25 and search and seizure procedures. People who use drugs and people whose rights are infringed upon are often described as being "vulnerable," yet this term is rarely defined in a precise way. The vulnerability which underlies and predisposes one to drug use appears to be similar to that which underlies and predisposes one to abuses of human rights. The importance of addressing vulnerability is increasingly being appreciated. Reducing both the demand for drugs and the risks and harms from using drugs necessitates addressing the vulnerability of people to use drugs and to be harmed by using them, and is a central feature of harm reduction and emerging public health responses to drug use. Similarly, protecting and promoting respect for human rights involves addressing the vulnerability of people to abuses of their rights, including discrimination. One of the little studied consequences of drug use is that drug users can be disabled by their drug use. All too often, people who are disabled are unable to fully exercise their rights. When people are disabled because they are using drugs, or when people with disabilities use drugs, their opportunities to exercise their rights are limited even more. Finally, there are a variety of situations or circumstances when drug users are likely to be deprived of their rights, although there is very little documentation of such deprivations. 26 Many of these situations arise because of legal and public policy responses to drug use or because of pejorative public perceptions of drug use and drug users. Identifying and cataloging these situations and circumstances when the rights of drug users may be jeopardized or threatened provides an opportunity to raise concern and interest about them.


III. FEATURES OF CONTEMPORARY DRUG USE RELEVANT TO HUMAN RIGHTS

Many problems relating to drug use and to human rights in the context of drug use arise because of an incomplete or erroneous understanding of the actions, effects, and consequences of drugs and their benefits, risks, and harms. The following section examines four features of drug use which are pertinent to understanding the contemporary conceptualization of drug use: (1) pharmacology, (2) benefits and harms which can result from drug use, (3) economic impact of drug use, and (4) classification of drugs in law and policy.

A. Pharmacological Characteristics of Drugs

Almost any drug introduced into the body has a capacity to alter mental function. Depending upon the drug involved, impairment of mental function is often dose- or time-dependent, but sometimes idiosyncratic. The effects of drug use vary according to the manner of introduction in the body, the quantity and the purity of the drugn and the frequency with which it is used. Some drugs (often referred to as psychoactive drugs) do this directly, whereas others act indirectly through metabolic or other secondary mechanisms.27 The psychoactive actions of drugs is the primary focus of this Article.

Among the direct actions of drugs are stimulation, sedation, hallucination, and alterations in perception or sensation. These actions, in turn, can produce effects such as pleasure, euphoria, disinhibition, relaxation, intoxication, enlightenment, and heightened or dulled sensation or per ception. In general, voluntary drug use is prompted by a desire to obtain these effects. In fact, most users perceive psychoactive effects as one of the important benefits of drug use.

From these effects, at least five purposes for using psychoactive drugs can be discerned: reward,28 relief, recreation,29 reinforcement, and replenishment or avoidance of withdrawal.30 These purposes are not exhaustive31 nor are they exclusive of each other. One or more of them may predominate at a particular time, thereby characterizing the use of a drug for an individual using it at that time. Implicit in each of these pur poses is a benefit (or a perceived benefit) for the user and possibly others. However, these benefits must be measured against the risks and harms caused by using the drug and the context in which it is used, including the particulars of the drug itself, the user, and the setting in which the drug is used.32

Both the effects of a drug and the purposes for which it is used may vary over time, whether or not the drug is used occasionally, persistently, or compulsively.33 For example:

Many people are able to use addictive drugs in moderation. There are coffee drinkers who take only a cup or two a day, occasional smokers who use only a few cigarettes a day, social drinkers who consume no more than a couple of drinks a day, and marijuana users who smoke a "joint" once in a while. Some people (at least for some period of time) can restrict their use of heroin to weekends, or of cocaine to an occasional party. Others, in contrast, are vulnerable to becoming compulsive heavy users, then stopping only with great difficulty, if at all, and relapsing readily. There is no sharp separation between so called social users and addicted users, but rather a continuum of increasing levels of use and increasing levels of risk.

The compulsive quality of drug addiction presents a special danger because for most drugs there is no way to predict who is at greatest risk. People who become addicted usually believe, at the outset, that they will be able to maintain control. After the compulsion takes control, addicts persist in using high doses, often by dangerous routes of administration.34

Drugs differ in their capacity to elicit physical and psychological dependence,35 but when dependence does occur, it is often characterized by two features: a determination to continue using the drug and distressing effects from not using it.36 In other words, dependent users will experience compulsion to continue to use their drugs, as well as craving for them when not using them or withdrawal when their use is suddenly discontinued.37 Some drugs are also capable of producing tolerance to them whereby users require increasing doses of these drugs over time in order to obtain the same effects.38 Dependence and tolerance have important economic implications because they can drive users into criminal activity in order to afford or acquire their drugs.

The biological risks and harms from using drugs are often misunderstood. Many people believe that compulsive drug use is an ever-present risk of using drugs, or even an inescapable consequence. The result is that many view drugs by themselves as the source of the risks and harms from drug use.39 In this situation, drugs are often perceived to be "en slaving,"40 and other factors such as the person using them and the setting in which they are used are downplayed to the point where the person becomes little more than a "victim" of the drug.4' Even with less extreme views of this risk, the result is often the same; namely, that preventing access to drugs is necessary, but whenever access is necessary, it has to be stringently controlled. Such views, however, do not appear to appreciate that most drug users can use drugs (perhaps, with the exception of tobacco) in a relatively harmless and non compulsive manner.42 This misperception of drug use and drug users has influenced the conceptualization of drug use as being exceedingly dangerous, harmful, and in need of being controlled. It has often led, if not driven, many people to stigmatize drug use and drug users, thereby contributing to the discrimination against drug users and the infringements of their human rights.

B. Analysis of the Benefits and Harms from Drug Use

Drug use can result in both benefits and harms for the person using a particular drug, as well as for others, including the drug user's community and society in general. Determination of the benefits and harms of drug use for a particular individual is case-specific.43 The characteristics of the drug itself, the person using it, and the setting or context in which it is used must be considered.44 Nonetheless, generalizations can be made, but must be formulated and used with great caution. This caveat is illustrated on the one hand by a hospitalized person in severe postoperative pain who is being treated by self-administered injections of morphine, and on the other hand, by a group of youths in a shooting gallery who are injecting themselves with heroin and sharing the same uncleaned needle and syringe. Between these extremes, for example, are people who have shared marijuana cigarettes, become inebriated from drinking alcohol, inhaled glue or solvent fumes, or stood outside a public building during a snow storm in order to smoke their cigarettes. These examples point out the bewildering complexity of drug use and the daunting challenge to devise a coherent classification of these drugs that includes their actions, effects, and consequences.

Analyzing the benefits and harms from drug use can be a powerful tool to guide legal and public policy responses aimed at controlling drug use, but this is not without risks. First, inaccurate or incomplete information can bias this analysis. All too often, the benefits from drug use are disregarded or undervalued and the risks and harms from drug use are overvalued.45 When this occurs, intrusive, coercive, and rights-infringing legislation and policies aimed at controlling drug use can be mistakenly promoted or reinforced. Second, erroneous conclusions can result when the analysis is based only upon quantifiable benefits and harms, particularly economic ones. In this situation, cultural or other social values may be overlooked or excluded from analysis, thereby biasing the conclusions. Third, the analysis can restrict wider input into the process of formulating legal and policy responses to drug use, such as excluding consideration of human rights principles and norms.

1. Benefits from Drug Use

a. Benefits for Drug Users

The potential benefits of drug use can include reward, relief, recreation, reinforcement, and replenishment. These benefits are not absolute, but are relative to the risks and harms which drug use can produce. This, in turn, depends upon a triad of factors': the drug involved, the person using it, and the situation in which it is used. Despite the popularity of drug use, its benefits are Often undervalued and may even be condemned by society. In this situation, the use of drugs that some may consider to be useful or beneficial, may be seen as risky or harmful by others. To a great extent, this reflects an incomplete understanding of the benefits, risks, and harms of using drugs. For example, thrill-seeking drug use or experimentation with drugs may be seen to be a youthful rite of initiation, which others may view as dangerous, irresponsible, or a gateway to more harmful drug use. Pain relief may be viewed as not worth the risk of possible dependence on opiates.46 Drug use may be viewed as a source of substantial revenues by governments which can be derived from licensing, taxing, and selling drugs such as tobacco and alcohol.47 When examined in greater detail, however, drug use by most youth is a passing fad, and few patients go on to compulsive drug use from opiate analgesia.48

b. Benefits for Others, Including Society

Drug use can also benefit people who do not use drugs, including some of society's cultural and religious institutions.49 For example, the creativity of many artists appears to have been enhanced by their drug use.5" In some countries, work productivity may be improved by the use of such drugs as the coca-leaf,51 khat,52 and cannabis.53 There are also religious benefits from using drugs such as the use of altar wine and peyote.54 In addition, there are benefits from the medical use of drugs, including restoring people to economic and social productivity, research investment, and the marketing of pharmaceuticals.55 The beverage and entertainment industry also benefits by its production and sale of alcohol and tobacco. Governments can benefit from the substantial revenue generated by the licit use of drugs. Nonetheless, all of these benefits must be balanced against the risks and harms from drug use. Some of these benefits, particularly those relating to tobacco and alcohol use, may be outweighed by the harms from their persistent use.56

2. Risks and Harms from Drug Use

a. Harms to Drug Users

The risks and harms from drug use can be direct or indirect, either caused by or merely associated with drug use. Such distinctions are not always appreciated, emphasizing the complexity and diversity of these consequences. Examples of risks and harms caused directly by drug use include unwanted hallucinations, distortions of mental function, and illness or death from drug toxicity and overdosage. Indirect harms caused by drug use include withdrawal, psychosis, depression, and hallucinogen "flashbacks."57 Harms can also be associated with, as opposed to being caused by, drug use. These harms may be direct, such as disease due to drug impurities including pulmonary disease and lung cancer from tobacco smoking,58 infection due to the hepatitis or human immunodeficiency viruses ("HIV"), and injuries or accidents when drug users are impaired or intoxicated by their drug use. The indirect harms associated with drug use include exposure to or engagement in criminal activity or violence59 in order to acquire drugs.

Distinguishing between these types of harms is important because legal or public policy responses to control direct harms can exacerbate indirect ones. The social construction of drug use can create risks and harms for drug users which are not intrinsic to drug use. For instance, governments have decided that the "production, manufacture, export, import, distribution of, trade in, use and possession" of a variety of drugs is illegal unless their use is permitted as an exception to this prohibition.60 The illegality of drug use makes it inescapably harmful, regardless of whether or not any other harms ensue from the use of drugs. The harms which can result from the control of drug use include: the stigmatization of and discrimination against drug users; eliciting shame and guilt in drug users; fostering a black market in drugs; making "pure" or "clean" drugs inaccessible; increasing the price of drugs and their scarcity, thereby promoting crime and violence; forcing users to associate with a population trafficking in drugs that is prone to violence and crime; and driving drug users underground out of fear of being discovered, prosecuted, and branded as criminals.61

b. Harms to Society

People other than drug users can also be harmed by drug use. They can be harmed directly when they are exposed to trauma, crime, or violence associated with drug use.62 They can also be harmed indirectly when they must support the health care, social services, and welfare of drug users, by paying higher taxes and insurance premiums and attempting to control the supply and demand for drugs.63 The magnitude of this problem can be appreciated by reports indicating that in 1985 eighteen percent of health care costs in the United States were attributed to tobacco use.64 These harms also include drug-related absenteeism and lost productivity in the workplace.65 In addition, society may be harmed when a substantial segment of the public uses drugs, thereby disregarding or disrespecting laws controlling drug use, and when a government unjustifiably infringes upon human rights in order to control drug use.66

C. Economic Implications of Drug Use

Drug use is subject to the economic forces of supply and demand.67 At least three economic factors can influence the prevalence and incidence of drug use—the availability,68 popular demand or "fashion,"69 and price of drugs.

Drug use varies with the availability of drugs, and availability, in turn, depends upon the efficiency and success of government interdiction.71 For example, the prevalence of amphetamine use in Japan and Sweden was dramatically reduced when these governments suppressed its availability.72 In the United States, alcohol was prohibited for more than a decade with a corresponding decrease in its use.73 During the Vietnam War, the accessibility of heroin combined with the stress of combat, resulted in widespread use by many American troops. However, far fewer troops used the drug when they returned to the United States, away from the stress of battle and where heroin was less accessible.74 Further, a study of Spanish injection drug users concluded that:

The assumption that drugs have an attraction in themselves, that their mere introduction may cause an "epidemic" is a comfortable oversimplification. Availability is a necessary condition for widespread consumption but not a sufficient one .... The massive expansion in the use of a previously rare drug requires not only its introduction in sufficient quantities, but also a transformation in the meanings, values, and attitudes associated with its consumption, at least among certain groups. This seemingly self-evident fact may be disguised by the popular metaphor that sees drugs as "enemies" and agents capable of "infecting" people's lives.75

Drugs come into and out of fashion. In North America, noncompulsive use of cannabis and cocaine by students has dropped during the past decade whereas alcohol use has remained stable.76 In contrast, the use of XTC has increased explosively. In part, this has come about because the availability of XTC could not be easily suppressed until it was classified as a legally prohibited drug.77 More importantly, its widespread use came about because XTC was perceived to be a relatively "harmless" drug and fashionable to use at dance parties (or "raves").78

The use of drugs will fluctuate depending upon their price.79 While prohibiting the commerce of a drug restricts its supply and accessibility, prohibition also increases its price because the drug becomes an underground commodity.80 Tobacco consumption increased in Quebec after cigarette taxes were slashed in order to reduce black market profits from the smuggling and illegal sale of untaxed cigarettes.81 Alcohol consumption has been inversely related to its cost.82 In the United States, increased cocaine use has been associated with the availability of lower priced, volatile "crack" cocaine.83 The interdiction of marijuana in Australia decreased its availability and increased its price, resulting in a shift of drug use from smoking marijuana to injecting less costly amphetamines.84

The economic impact of drug use reaches both drug users and nonusers and depends upon the triad of the drug, the user, and the situation in which the drug is used. For drug users, this impact includes the costs of acquiring drugs and the consequences of using them. Increasing drug use, especially compulsive use, can exceed the personal resources of users, leading to criminal activity to support the drug use. Costs results from impaired health due to drug use itself or as a consequence of using drugs, such as accidents and violence; loss of employment, schooling, or other opportunities for income or benefit; forfeiture of assets; and punishment for using drugs illegally (e.g., imprisonment). The burdens attributable to drug use for nonusers can include the costs resulting from crime, violence, and accidents such as those caused by persons driving under the influence of drugs.85 There are also the burdens of absenteeism, lost productivity, and workplace injuries,86 increased insurance premiums, and costs involved in trying to control drug supply and demand.87

In the United States, the economic impact of illegal drug use, as distinguished from that attributable to tobacco and alcohol use, has been estimated in the tens of billions of dollars.88 Some of this economic harm is avoidable. On the one hand, the economic harm is a function of the scope and efficacy of efforts aimed at reducing the demand for drugs and their resulting harms. On the other hand, it reflects the impact of efforts aimed at reducing the supply of drugs,89 as well as the impact of these efforts on crime, violence, underground marketing, and the criminal justice system and its prison and treatment programs.90 There is a need for analysis of the economic impact of legal and public policy responses to drug use, including the benefits and burdens attributable to both present and alternative approaches to control drug use. Such an analysis, however, would be incomplete without the consideration of the impact of these responses on the human rights of drug users and nonusers. It is likely that, given the scarcity of information concerning many of these benefits and burdens, modeling approaches would be required for such an analysis.91

D. The Classification of Drugs

Drugs can be classified on the basis of (1) their pharmacological modes of action; (2) their effects on mental function; (3) their consequences; (4) the purposes for which they are used; and (S) the means of controlling legal access to them. In general, there are three classes of domestic control of drugs, defined by the manner in which the availability and access to a drug is controlled. Access to a drug may be "unrestricted," "restricted," or "prohibited." Unrestricted access means that the drug is freely available except for restrictions relating to consumer protection or product quality considerations, e.g., food additives, cosmetics, and over the-counter medications. Restricted access means that the drug is available only through an authorized prescription, e.g., morphine and codeine, or when a drug is supplied in compliance with licensing and marketing controls, such as tobacco and alcohol. With prohibited access, the use of a drug is banned except in circumstances, such as for research or closely controlled therapeutic purposes, as may occur with methadone and heroin. 4

The legal and public policy classification of drugs, both internationally and domestically, is incoherent and shows little, if any, fidelity to other classifications of drugs.92 To a great extent, this incoherence reflects the historical development of drug control laws and policies that are the products of varied national interests and influences,93 misconceptions about the risks and harms of many drugs, an undervaluation of the potential benefits, disregard or failure to appreciate the roots of harmful drug use (particularly the adverse social conditions facing many potential drug users). the impact of stereotyping, and the stigmatization of drug users 94

This leads to the question of what can be done to make the classification of drugs on the basis of legal and public policy responses to drug use more coherent and consistent with the classification of drugs based upon the pharmacological modes of action, physiological effects, purposes for using drugs, and the consequences of using drugs. In order to answer this question, an important distinction can be made between responses to the use of drugs by individuals (i.e., responses aimed at controlling the demand for drugs) and responses to the availability of drugs (i.e., responses aimed at controlling the supply of drugs). Responses to the former situation are primarily concerned with preventing risks, reducing harms, and maximizing the benefits of drug use. Responses to the latter situation are concerned with controlling the manufacture, production, processing, distribution, and sale of drugs. Controlling the supply of drugs is less dependent upon the consequences of drug use (which may nevertheless motivate responses to control the supply of drugs) and more dependent upon the modes of action, effects, and purposes of drug use, including the purity and marketing of drugs. In contrast, demand reducing responses are less concerned with the class of a drug than the extent to which its use is risky, harmful, or beneficial. In other words, impaired driving is much the same whether one is under the influence of alcohol, morphine, anxiolytics, or phsycedilics. Similarly, intoxication due to peyote, LSD, or PCP is less relevant than the risks, harms, and benefits that result from their use.


IV. THE EVOLUTION OF LEGAL AND PUBLIC POLICY RESPONSES TO DRUG USE

Drug use is probably as old as mankind,95 but it was only in this century that international legal instruments were first used in an attempt to control drug use. Use of these legal instruments began with attempts to control the opium trade in Asia.96 This was followed by efforts aimed at controlling the international commerce of an ever-increasing number of drugs and was accompanied by the passage of laws in many countries providing for domestic control of drug use. Various countries enacted these laws in order to comply with international drug control treaties and conventions. However, these laws often reached beyond the control of drug production and trafficking and also addressed the possession of drugs without intent to sell them.97 To a large extent, the evolution of these legal and public policy responses to control drug usage has been shaped and influenced by society's perception of drug use. As Andrew Weil noted almost twenty-five years ago:

Until the models that produce the current laws, decisions, and actions about drugs change, nothing about drugs will change, hence the uselessness of pressing for legal reforms as a means of solving the drug problem. Counter productive laws against possession and sale of drugs are not causes of problems; they are symptoms of problems at the level of conceptions, of mental images, just as physical symptoms of illness are effects of mental states.98

A. The Impact of the Conceptualization of Drug Use on Its Control

The control of drug users and their access to drugs is intrinsic to the legal and public policy responses to drug usage. However, which users and which drugs are to be controlled, as well as which means are to be employed to accomplish this control, vary from jurisdiction to jurisdiction depending upon how drug usage has been perceived and conceptualized.99 Drug control models seldom recognize fully the differences in the actions, effects, and consequences of drug use or the purposes for which drugs are used. These models often emphasize some of these characteristics to the exclusion of others. As a result, coherent, comprehensive, and realistic legal and public policy responses aimed at controlling harmful drug use are thwarted.100 This result is largely reflected in the balance struck between competing interests in law and policy. Specifically, competing concerns include privacy versus the intrusive measures invoked to control drug use, respect for the autonomy of drug users versus the paternalistic efforts to control them or their drug use, and cooperative versus coercive measures to prevent or reduce drug use and its harms.10t

There are at least two groups of models that attempt to explain why people use drugs, each of which implies a need for government intervention to benefit both drug users and society in general. The characterization of drug use by each of these models is incomplete, but each model has influenced the generation and promotion of responses to control drug use in most industrialized countries, and their persistence.

The first group of models views drug usage as caused by a moral, personal, or biological inadequacy or defect of the drug user. The drug user is perceived as having a deficiency in his or her ''integrity''l02 and therefore is prone to use drugs or to use them persistently, and often in a harmful manner because of moral, personal, or biological inadequacy or deficiency. Implicit in each of the models within this group is the belief that the uncontrolled use of most drugs will be harmful either to the user him or herself or to others, including society and its institutions and values. Consequently, government intervention is considered to be necessary in order to prevent or reduce exposure to and use of drugs.103

The second group of models view drug usage as a control issue, whereby the control of drugs is a means to an end, namely the behavioral, political, or economic control of drug users and the communities from which they originate or to which they belong. This group involves a political process, giving power or other benefits to those who control the availability and accessibility of drugs. These models may involve control by one or more of the following: (1) by the medical profession, which can strengthen itself by "monopolizing" access to drugs and providing prevention, care, and treatment services for drug users; (2) by a government agency or institution, whose control of drugs can augment its social control over a population; and (3) by the state, which can generate revenue by controlling the cost of drugs through licensing, taxation, and other economic means.

1. Models Focused on the Drug User

a. Moral lnadequacy

Perhaps the most prominent model of drug use is that of moral inadequacy. Many people view drug usage as the result of personal weakness or moral failure because users cannot, or do not, refrain from using drugs—which are considered to be "evil," offensive, or objectionable on ideological or moral grounds. In this model, a drug-free life is considered virtuous. Drug use, by contrast, is considered an autonomous'04 action— a manifestation of self-indulgence and moral inadequacy at one extreme and criminal behavior at the other extreme.

Communities that employ the moral inadequacy model respond to drug usage in a variety of ways. Some communities have religious proscriptions against using certain drugs;l05 in others, drug users are viewed as the "weak willed;''106 and the societal values of other communities disallow drug use.

While the moral inadequacy model emphasizes the harms of drug use, it undervalues the benefits because the benefits do not outweigh the transgressions of the principles or values implicit in abstaining from using drugs.'08 The influence of this model on legal and public policy responses to drug use is reflected by criminal laws prohibiting drug use.l09 In addition, this conceptualization of drug use often extends to other behavior, including sexual activity.110

b. Personal Inadequacy

The personal inadequacy model conceptualizes drug use as an adaptive response'1' to an adverse environment. This model views drug use as a means to minimize or avoid the adversity (e.g, relieving pain or distress, providing an escape from or compensating for difficult or intolerable conditions of daily life) or substitute for rewarding situations which are inaccessible to the drug user.1l2

Drug users are perceived as being inadequate or self-indulgent, rather than that their inadequacy is a reflection of their low self-esteem or the inadequacies of society which leave them deprived, disadvantaged, inferior and unrewarded.1l3 In this model, the user is seen as inadequate, needing drugs to "cope" with adversity. This is not a model, but psychological assessment—one's inadequacy results in drug use. For the drug user, the use of drugs is a means to an end, a means of coping even if such behavior is ultimately harmful to the user.1l4

Two different approaches to drug control are implicit in this model. The first approach views drugs as dangerous or enslaving.115 The second approach views drugs as dangerous, but less so than the "enslaving" context in which they are used.

The first approach perceives drug use to be an unacceptable substitute for other ways of overcoming, accommodating, or compensating for adversity or inadequacy. Thus, because drug use is viewed as compounding the plight of drug users, controlling it is seen as necessary in order to prevent or reduce further risks and harms from using drugs. In this re spect, the model is similar to the moral inadequacy model, but without its moral connotation.

The second approach perceives the situations giving rise to drug use to be the problem which needs to be addressed. Consequently, controlling drug use necessitates preventing or reducing the adversity and inadequacy rooted in the use of drugs.

The influence of the personal inadequacy model is reflected in the use of criminal laws to prohibit drug use and possession, as well as in laws authorizing interventions to improve social situations (e.g., reducing inner-city poverty, crime, and violence; providing education about drug use through counseling; and, through the treatment and support of drug users).116 Experience with interventions to have bicyclists wear safety helmets suggests that both negative content (e.g, criminal) and positive content (e.g., educational) approaches are necessary to avoid or reduce harmful drug use. As the American Medical Association Council on Scientific Affairs has stated:

In Howard County, Maryland, the observed use of bicycle helmets by persons younger than 16 years increased from 4% to 47%, after a law was passed requiring bicyclists in that age category to use helmets when riding on county roads or paths and an educational program on bicycle safety was carried out. In two adjacent counties not having such a law but having similar safety education programs, increases of 11% and 15% occurred in children's reported helmet use ....

In Beachwood, Ohio, a community that mandated the use of helmets for bicycle riders younger than 16 years and provided a variety of educational programs and some publicity, the observed use of helmets among children was 85%. This result was much better than in three nearby communities that mandated helmet use but did not arrange educational or promotional programs; in these communities, 37%, 22% and 18% of children reported that they always wore helmets.ll7

c. Biological Inadequacy

The third model, biological inadequacy, views drug use to be (1) a response to either a deficiency or insufficiency in a drug receptor or drug analogue that occurs naturally in individuals or (2) an imbalance in, or disregulation of, neural pathways responsive to a drug.1l8 This condition can be inherited or acquired and can be induced or unmasked by the use of drugs. Currently, there is little conclusive evidence for a biological basis explaining the initiation of drug use, although research on a genetic basis for alcoholism shows promising but disputed results.119 On the other hand, antisocial personality disorder, considered an inheritable trait, has been frequently associated with drug usel20 even though a corresponding molecular abnormality that would link this disorder with drug use remains to be discovered.'21

The biological inadequacy model implicitly views drug use to be a disease or medical problem122 requiring medical intervention.123 "This theoretical approach has treatment implications; for example, it supports two divergent approaches tD dealing with substance abuse: (1) the use of methadone detoxification and maintenance, and (2) the Alcoholics Anonymous (AA) chemical-free approach that stresses a need for total abstinence.''124 The influence of the biological inadequacy model is reflected in laws that subject drug users to medical treatment or provide for such treatment.l25 Its influence is likely to increase as studies continue to provide a clearer understanding of the molecular bases for drug use,126 as research leads to interventions which can thwart some of the undesirable consequences of drug use,127 and because of a growing prevalence and concern about fetal drug exposure,l28 particularly the concern over so called "crack" babies.129

2. Models Focused on the Control of Drugs

In contrast to models that view drug use as a problem originating in the drug user, there are models that view drug use as a social problem where the control of drugs is a means of controlling people. This model is based upon the premise that controlling drugs can be a source of power or political influence. An often cited example of such control is that of physicians controlling access to drugs.

In addition, the control of drugs can be a means of controlling drug users and their communities. This control may involve direct control over drug users, those suspected of using drugs, and the communities to which they belong via criminal justice measures or control of the marketing and licensing of drugs.

a. Clinical Control

The use of drugs has both medical utility and health consequences. Although at times risky, the medical use of drugs is universally viewed as beneficial,130 and the medical profession is recognized as authoritative in their use. In addition, the medical profession deals with many of the harmful health consequences of drug use. Thus, the control of drugs in this model is perceived to be more effectively dealt with by the medical profession. The profession is reinforced by controlling drugs, particularly when drug control avoids or reduces the risks and harms from drug use.'31 Thus, controlling the access to drugs can be beneficial for the medical profession, relative to control by other groups or organizations. This is illustrated by differences between the U.K. and North American responses to drug control.

In Britain, the disease concept of drug use was firmly entrenched by 1910. The reason for its success in that country can be found in the changing role and status of the medical profession in Victorian society, at a time when doctors were beginning to accumulate some of the functions of the clergy.

Physicians, the new guardians of morality, simply substituted new names for ancient evils: madness became mental illness; drunkenness became alcoholism; and the sin of Onan became masturbation. The old sins to be confronted and overcome were, by the late nineteenth century, diseases to be cured. At the same time, physicians were tightening up their ranks and establishing themselves as a remarkably prestigious and influential profession.

In North America, however, similar professional solidarity was to come somewhat later. By the time the Canadian Medical Association ("CMA") had become a viable organization, in the late 1920s, a law-enforcement response to drug control was firmly entrenched. In the absence of advocates for the disease model, the moral failure model held sway.

Across the Atlantic, British doctors were playing an important role in the formulation of drug policy. They thus retained the right to prescribe regular doses of heroin or other opiates to their dependent patients, even when there was no physical illness to justify the prescription. Unhindered by influences external to their profession, they jealously guarded their freedom to determine therapy in individual cases.

Meanwhile, North American law enforcement authorities held a trump card: they could define the boundaries of legitimate medical practice by arresting those doctors they deemed to have exceeded them. The onus was on the physician to prove that the therapy was justified.132

The clinical control model perceives drug use to be both beneficial and harmful. However, the benefits can be realized and the harms prevented or reduced more effectively when the medical profession controls access to these drugs.'33 This model is inherently paternalistic and emphasizes the regulation of drugs through prescription access. Users are controlled by controlling access to drugs.134 The increasing prominence of harm reductionl35 reinforces a medical control approach to drug use. Among the harm-reducing interventions are promotion of the use of methadone,l36 encouraging medical treatment of drug use,137 and free distribution of clean injection equipment.138 This approach is not without its critics, in particular, when harm reduction and public health interventions become instruments, allies, or agents of state intervention used to control drug use and drug users.139 The influence of this model is seen in drug laws dealing with prescription drugs140 and the medical treatment of drug dependency.l4l

b. Social Control

Drug use is an activity that is undertaken by individuals. In the aggregate, however, drug users represent populations with identifiable characteristics, such as cannabis-intoxicated students quietly watching music videos, rowdy athletes celebrating a victory with beer or champagne, elderly people chronically using codeine to relieve their arthritic pains, and party-goers high on XTC. Drug users also belong to communities or populations. The characteristics of drug users may be generalized to the entire population to which they belong, thereby labeling the population with the characteristics of the minority who use or abuse drugs.l42 This is likely when a population is already stigmatized, considered offensive, or strongly disapproved of by society as a whole.143 Efforts to control the characteristic behavior of the minority may lead to controlling the entire population involved, especially when such control would be beneficial for the controllers.l44

This model emphasizes the control of behavior associated with drug use; the means of controlling this behavior is by controlling the access to drugs. This can be accomplished through a variety of legal measures, including law enforcement. Under this model, people are often subjected to authoritarian controls, sometimes called "law and order" approaches. These controls may include prohibition of stringent restrictions on the use of drugs and severe and disproportionate penalties for using drugs, such as subjecting people to surveillance and searches.l45 The influence of this model is reflected in prohibitionist policies and criminal laws.l46

Some have openly criticized the use of criminal law to control drug use. One commentator concluded that:

Gambling, prostitution, drug use, sexual behavior between consenting adults—the entire range of "victimless crimes"—had been mistakenly subject to the criminal law, with terrible consequences for the courts, the prisons, police departments, and the very status of the law. "The criminal law is an inefficient instrument for imposing the good life on others.''l47

A recent Canadian newspaper editorial remarked about responses to control cocaine use:

If cocaine isn't inherently dangerous, if it isn't a threat to law and order, why make it a criminal offence? At best we compound a problem; at worse, we actually create one. First, we make criminals of those who have committed a victimless offence. Second, we instruct police to find and arrest offenders. Third, we ask the courts to try them and the prisons to incarcerate them. At every stage, there is a cost to society. We stigmatize people, divert resources from other law-enforcement needs [and] clog the justice system.l48

c. Economic Control

Drugs are a commodity whose value varies in relation to their scarcity and the demand for them. This is clearly seen in the revenue generated by the marketing of tobacco and alcohol.149 As commodities, they also can have impact on foreign trade and policy.l50 At a structural level, resources are allocated to control drugs, thereby providing jobs and status to those who control drugs and their use.l5l The consequences of drug use also have an economic impact on health care, social and welfare systems,l52 and workplace productivity.l53 The economic consequences of drug control primarily involve governments that are benefited and harmed by controlling drugs. For example, governments can benefit from controlling drugs through taxation, yet be harmed by the costs needed to control drugs.l54 Consequently, there is an incentive to control drug use that benefits the government. The economic model reflects these perceived benefits and harms and views drug control as an interest of the state. The influence of the economic model of drug control is reflected in licensing, taxation, and asset confiscation laws.155

3. An Emerging Paradigm: Drug Use as a Public Health Problem

Drug use is often referred to as a serious public health problem.l56 Serious national problems can be addressed from several perspectives that reflect both the ways these troubles are understood and described, as well as, the ways they are confronted. In regard to the drug problems now faced in the U.S., at least two distinct and fundamentally opposed approaches can be taken. The present and past policies of the U.S. toward drug abuse have been to regard it as a moralistic issue (couched in terms of health and social consequences), that requires a punitive response .... This approach has largely failed. An alternate policy is to approach drug abuse (of all types) as a complex public health problem. From a public health perspective, drug use must be understood as caused by multiple factors of the person, as well as, social, economic, and political conditions. Such an approach requires more than a "quick fix" and superficial intervention to the very complex and deep-rooted problems of drug abuse, that are likely to be the obvious symptoms of greater social malaise, hardship and inequity.l57

This conceptualization of drug use reflects a growing awareness that (1) many of the harms from drug use are health problems;l58 (2) drug use may be a public health crisis as shown by the spread of HIV infection through the sharing of injection equipment; (3) drug use can be responsive to public health prevention strategies;l59 (4) harm reduction and public health approaches are complementary and, at times, indistinguishable;160 and (5) promoting and protecting human rights is an essential component of the efforts to respond to public health problems, even though the promotion and protection of public health is one of the interests that may justify the restriction of human rights.l61

The public health model views drug usage as a function of preventing or reducing drug use, its risks, and harms.162 This model sees drug use as being "embedded" in society.'63 From a public health perspective, reducing the demand for drugs necessitates addressing the social context in which people live and use drugs. In other words, the reduction in drug use involves reducing poverty, ignorance, illiteracy, disempowerment, and other conditions that can deprive people of realistic opportunities to not use drugs, or at least to use them safely. This model applies to the use of all drugs, regardless of their legal status. More importantly, this model is compatible and supportive of the promotion and protection of human rights.164

Public health and harm reduction approaches to drug use often appear indistinguishable. Both recognize that using drugs in a harmless manner is necessary whenever drug use occurs. Each places great emphasis on preventing and reducing the harmful consequences of drug use. Among the means to accomplish this are education, counseling, support, treatment (including methadone maintenance), persuading drug users to switch from injecting drugs to inhaling or ingesting them, and the provision of clean injection equipment.

An essential feature of this model is its involvement with human rights issues. First, public health goals and interventions can be a basis for justifying an infringement of the righ4; of drug users.l65 One such example would be the prohibition of tobacco smoking in shops, offices, and restaurants to prevent secondhand smoke inhalation. Another example is the use of breathalyser testing, to prevent trauma from motor vehicle accidents.

Second, as the HIV pandemic demonstrates, public health efforts are limited when human rights are not respected and they are made effective or more effective when they are respected.166 Further, efforts to promote and protect human rights and health are not only complementary, but also interdependent and mutually reinforcing. What is done to promote and protect human rights will also help to promote and protect health, and vice versa.'67

B. International and National Legal and Public Policy Responses to Control Drug Use

International and domestic legal and policy responses to drug use have evolved in response to a variety of influences. Among them is the influence of how drug use is perceived and conceptualized. This includes the influence of models of drug use to affect the persistence of legal and policy responses to drug use and its adaptation to changes in drug use. The second influence is international legal instruments relating to drug use. The third influence is that of the U.S. government and its drug control policies. Finally, the fourth influence is the growing dissatisfaction with these other influences, which has led to increased appreciation for new or revised approaches to drug control.

This new-found appreciation has, in turn, led to a growing divergence between international and domestic responses to drug use. On one side, increasing emphasis is being placed on efforts to reduce both the supply of drugs and access to them; on the other side, increasing emphasis is being placed on efforts to reduce the demand for drugs, with a corresponding emphasis on harm reduction and public health approaches and a deemphasis on criminal justice approaches to control drug use and its harms.

1. Influence of Models of Drug Use on the Legal and Policy Responses to Drug Use

How drug use has been perceived and conceptualized has strongly affected the formation of international and domestic legal and public policy responses to drug use. For example, viewing drug use and drug users as immoral has strongly influenced the evolution of prohibitionary approaches to drug use, particularly in the United States. This trend is reflected in the "zero tolerance" approach to drug use, emphasis on abstinence, resistance to methadone maintenance, and legal requirements for mandatory education and treatment of drug users.168

The personal inadequacy of drug users—in particular the inequalities and deficiencies in their personal, social, and economic environments—is increasingly being seen as a serious threat to controlling drug use and its harms. This has led to efforts to improve the desperate, devastating, and often destitute and violent inner-cities where many drug users live. Responding to these problems involves the implementation of social programs such as family, educational, vocational, and employment assistance, as well as the provision of treatment and rehabilitation as alternatives to imprisonment.l69 This approach deemphasizes moral inadequacy views of drug use.l70 Among the interventions which flow from this understanding of drug use are improved access to education, counselling, and treatment programs. Among these are programs in prison,l7' outreach needle-syringe distribution programs that also offer counseling and drug treatment referral services,172 and programs that facilitate networking among drug users and the development of their communities. 173

The biological inadequacy model shifts the emphasis from viewing drug use as a purely social issue to viewing drug use as a complex health problem. As a result, there is growing acceptance of the use of medical interventions aimed at reducing harmful drug use, such as methadone maintenance. 174

The influence of the clinical control model can be seen through the approach to drug control taken by several countries. In some countries, such as the United Kingdom, opiates have been regulated by prescription access and there is strong emphasis on the clinical treatment of drug use.l75 In Italy, a recant national referendum has made it possible for physicians to treat drug users.l76

The social control model has been, and continues to be, important in the formulation and support of regulatory control of drinking and smoking. This model has also contributed to the U.S. "War on Drugs," which is reinforced by the public frustration over the growing crime and violence associated with drug use, the economic impact of drug use, and the profound disadvantage of some populations where drug use is prevalent. Under this model, drug use is sometimes misperceived as "causing" or aggravating these problems, rather than resulting from them. Thus, controlling drug use is seen as necessary, which consequently requires controlling people rather than controlling the settings which underlie drug use.l77

Growing awareness of the crime and violence associated with drug use in many countries has reinforced the influence of an economic model of drug control. This control is increasingly seen as a powerful tool to control drug use and trafficking and criminal activities associated with them. Especially appealing to governments are increased powers to confiscate assets associated with drug trafficking. One consequence of laws formulated in response to this model is that it extends to governments further power to intrude into the lives of its citizens in order to control drug use. .

2. International Legal and Policy Responses

International drug control laws and policy arose out of a desire by a small number of governments to control opiate commerce at the beginning of the twentieth century.l78 This response is characterized by control over an increasing number and broader categories of drugs and their precursors, a shift from the regulation of legal commerce in opiates and cocaine to the control of illicit cultivation, production and distribution of drugs, and a shift from governance by government delegates to intergovernmental agencies. This evolution is reflected in the chronology of the major treaties addressing the international control of drug use.'79

Surprisingly, international human rights standards and international legal and policy responses to drug use have evolved side-by-side within the United Nations family. These legal and policy responses, however, do not appear to have been subjected to scrutiny for their compliance with human rights standards. For example:

It is clear from even a cursory review that human rights issues have little or low priority at the international level in this particular context; and it is noteworthy that there appears to be no formal submission from the United Nations International Drug Control Programme ("UNDCP") to the World Conference on Human Rights, held in Vienna on 14-25 June 1993 .... Nor are there any specific references to the particular problems associated with alcohol and drug dependence in the Vienna Declaration and Programme for Action, adopted at the conclusion of the Vienna Conference....

There is no explicit reference to the categories of persons with which we are concerned [drug users] in the 1988 United Nations publication, United Nations Action in the Field of Human Rights.l80

In most industrialized countries, the legal control of drug use extends to the "production, manufacture, export, import, distribution of, trade in, use and possession''18l of the drugs involved. Efforts to control the supply of drugs include broad police powers to discover and interdict the illicit production, distribution, sale and possession of prohibited drugs, the power to seize assets relating to these illicit activities, the power to prosecute and punish offenders, and the power to require drug users to undergo medical treatment. Other powers include the regulation of prescription drugs and the marketing and taxation of restricted drugs, such as tobacco and alcohol. Governments also try to reduce the demand for drugs through education and provisions in health care, such as detoxification and access to methadone treatment programs and services (e.g., rehabilitation and reintegration into society to help users to recover from their drug use).l82 Countries differ in their balance between supply re duction and demand reduction to control drug use. In the United States, for example, 1991 federal allocations for supply and demand reduction were seventy-one percent and twenty-nine percent,'83 respectively, with similar allocations in 1995.]84 By contrast, allocation for supply and demand reduction in Canada from 1987 to 1992 were thirty percent and seventy percent, respectively.l85

3. National Legal and Policy Responses

a. United States of America

The origins of U.S. drug control legislation and policy are rooted in the late nineteenth century, with its racial control policies, economic concerns over the international marketing of opiates and cocaine, domestic control of drug marketing, and the rise of the Temperance and the Anti-Saloon movements (which viewed alcohol as a destructive influence in a progressive American society).186 The laws and interventions of the U.S. federal government shifted from consumer protection (involving the safety or quality of products and control of marketing by means of licensing, taxation, and restriction of access by prescription) to the prohibition of the production, distribution, and possession of an increasing number of drugs.l87 Among the consequences of these responses has been that:

[T]he American tradition of conceptualizing drug users as criminals has led to an approach to demand reduction which is enforcement oriented. This is particularly evident in the concept of "user accountability", which seeks to hold individual users accountable for the fact that their own drug use is part of the cause of a problem which eventually results in the death of some users, in addiction for others and in a host of drug-related problems such as crime and corruption. This is linked to another concept called "zero tolerance", which attempts to make no distinction in terms of culpability between use or possession of very small amounts of illicit drugs and use or possession of large amounts. The effort to force users to cease drug use is backed up not only by the criminal law, but by an increasing array of administrative penalties (such as denial of government housing, suspension of pensions, cancellation of licenses) for any involvement in the drug scene, no matter how insignificant.l88

Some of these responses have been relaxed, including the repeal of the prohibition of alcohol in 1933, permitting methadone maintenance, and reducing the penalties related to the possession of cannabis in some states.l89

Legal responses to control 3rug use in other industrialized countries have evolved to comply with international legal instruments. These responses vary from jurisdiction to jurisdiction, but, in general, they reflect the influence of the U.S. "War on Drugs" approach to drug control.l90 For instance, Canadian legal responses to control drug use are similar to those of the United States, perhaps due to Canada's proximity to the United States.l9l Interestingly, two attempts by the Canadian Parliament to revise its drug control laws have, so far, been unsuccessful. The proposed revisions were drafted so as to comply with federal human rights standards and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.l92 Support for a "War on Drugs" approach has faltered in some countries, particularly because of a growing concern that this approach is less effective and more harmful than alternative approaches. The result is that some of these countries are moving away from the strong prohibition stance of the United States. l 93

b. Other Countries

Since 1976, the Netherlands has experimented with the liberalization of its polices relating to the use of so-called "soft" drugs, such as cannabis. This "normalization" policy permits cannabis to be marketed under strictly regulated conditions.194 This approach has been opposed by neighboring countries.l95

The United Kingdom has steadily favored a regulatory approach to control drug use. This approach came into favor because of the prominence of the British medical profession at the beginning of this century.l96 It has resulted in the medical availability of heroin and methadone, an emphasis on medical definitions of harmful use rather than criminal justice ones, and the implementation of innovative harm reduction approaches.

This is not to say that Britain had no penal provisions in its early legislation. The first Dangerous Drugs Act (UK), passed in 1920, did contain them and the Dangerous Drugs Amendment Act of 1932 advanced Britain further along the penal policy track, with increased powers of search and longer sentences. In fact, the British legislation was not dissimilar in tone or intention to the American Harrison Narcotic Act of 1914, but in the United States the addict was criminalised, while in Britain the medical profession maintained considerable autonomy over dealing with addicts.l97

Since 1967, there has been a shift towards more stringent control, more restrictive prescription access to drugs, and greater emphasis on criminal justice involvement iri drug coritrol.l98 These changes led to passage of The Misuse of Drugs Act in 1971l99 and The Drug Trafficking Act in 1986.200

The changes which have taken place in the 1980s with respect to British drug policy have their roots in a number of developments, including changing concepts of drug abuse and its treatment, the declining influence of the medical profession in drug policy making, the "internationalization" of the drug problem and the attendant pressures (particularly from the United States) for a consistent international approach, and the role of the media as a creator and amplifier of drug images.201

In Italy, disillusionment with the prohibition/criminal justice approach to drug control led to a recent national referendum that successfully overturned parts of Italy's drug control legislation and policy. As a result, police are now discouraged from perceiving drug users as criminals (with the exception of those involved in drug trafficking). Possession of drugs for personal consumption has been decriminalized, and physicians are now permitted to treat drug users and prescribe them methadone according to their individual needs.202

Early responses to drug use in Australia appear to have been racially motivated, reflecting a social control model directed at Chinese immigrant laborers. The Australian response also reflected increased professionalism and power of physicians and pharmacists, as well as public and political indifference to drug use.203 In 1985, the Commonwealth government announced a national strategy against drug use which emphasized a comprehensive approach, demand and supply reduction, as well as strengthening existing institutional and community structures.204

South Australia and the Australian Capital Territory, however, have joined Italy and the Netherlands in reducing control over the personal possession of cannabis.205 For example:

Section 31 of the Controlled Substances Act [1984 of the State of South Australia] creates offences relating to possession of a drug of dependence or a prohibited substance, the consumption or self-administration of a drug of dependence or prohibited substance, and the possession of 6'any piece of equipment for use in connection with the smoking, consumption or administration of such a drug or substance" (see section 31(a), (b) and (c)) ....

All three offences, however, come within the definition of a "simple possession offence" which under section 35 of the Act, must be referred to a drug assessment and aid panel. Each such assessment and aid panel consists of one legal practitioner and two people with expertise in drug misuse problems or the treatment of drug problems. Unless the accused person prefers to have the matter dealt with by a court, wishes to deny the alleged offence, or for some other reason does not wish the panel to handle the case, the panel will normally proceed to deal with the matter by way of assessment and undertakings relating to treatment and rehabilitation. The alleged offence may not then be prosecuted without the authorization of the assessment panel.206 In addition, the Australian Capital Territory is pursuing intervention research that would make heroin and methadone more readily available to users of these drugs.207


V. IMPACT OF LEGAL AND PUBLIC POLICY MEASURES TO CONTROL DRUG USE ON HUMAN RIGHTS

The analysis of legal and public policy responses to drug use suggests : several conclusions:
(1) legal and policy responses are dynamic and evolving;
(2) there is increasing appreciation for the salience of harm-reducing, public health approaches to these responses;
(3) there is a scarcity of discourse about drug use and human rights and an urgent need for analysis of the intersection of drug use and human rights;
(4) human rights concepts and principles can provide useful insights into legal and policy responses to drug use; and
(5) there are at least four situations in which the present legal and public policy responses to drug use have impact on the human rights of drug users.

The first situation concerns the value of privacy in relation to drug use and infringement on privacy by government efforts to control drug use.208 The threshold issue is whether or not drug use can be considered a "private" activity and, if so, under what circumstances and what limitations might there be on government intervention aimed at controlling drug use? The second situation relates to reduced respect for the human rights of drug users. Unlike nonusers, many drug users are marginalized, often impoverished, and are often stigmatized, scapegoated, and discriminated against prior to using drugs, and they are made even more so by their drug use. It is not uncommon that people in such situations will exclude themselves from society, fail to seek respect for their rights, and forgo exercising them, even when opportunities to exercise their rights are available. The adverse influences to which they are prey become a self-fulfilling prophecy.209 The third situation relates to the impairment of the health and autonomy of drug users, particularly their mental health. This concern poses three questions. First, what protection do drug users need as a result of these impairments?210 Second, can drug users be considered disabled, and therefore eligible for the same protection afforded other disabled persons?21l Finally, under what conditions could drug use be considered a disabling condition?212 The fourth situation concerns discrimiation against drug users and violations of their human rights based on their use of drugs. While both human rights violations and discrimination against drug users appear to be common, there is a scarcity of empirical data documenting these abuses. Consequently, there is a need to identify and characterize the situations and circumstances in which such abuses can or are likely to occur.2l3

A. Drug Use as a Private Behavior

Drug use is a very widespread behavior. It can occur openly as with tobacco and alcohol use, furtively as with cannabis, LSD, or XTC use, or clandestinely as with amphetamine, cocaine, and heroin. Each of these activities is an individual behavior that has a variable impact on the user and on others. In this regard, drug use is similar to many other private behaviors. The following section argues that drug use can be considered a private behavior like many other daily activities. In doing so, it recognizes that:

There are broader and narrower conceptions of privacy. On the narrower range of conceptions, privacy relates exclusively to information of a personal sort about an individual and describes the extent to which others have access to this information. A broader conception extends beyond the informational domain and encompasses anonymity and restricted physical access….

Embracing some aspects of autonomy within the definition of privacy, it has been defined as control over the intimacies of personal identity. At the broadest end of the spectrum, privacy is thought to be the measure of the extent an individual is afforded the social and legal space to develop the emotional, cognitive, spiritual, and moral powers of an autonomous agent. An advocate of one of the narrower conceptions can agree about the value of autonomous development but think that privacy as properly defined makes an important bur t limited contribution to its achievement.

Privacy is important as a means of respecting or even socially constructing moral personality, comprising qualities like independent judgment, creativity, self-knowledge, and self-respect. It is important because of the way control over one’s thoughts and body enables one to develop trust for, or love and friendships with, one another and more generally modulate relationships with others. It is important too for the political dimensions of a society that respects individual privacy, finding privacy instrumental in protecting rights of association, individual freedom, and limitations on governmental control over thoughts and actions. Finally, it has been argued that privacy is important as a means of protecting people from overreaching social (as opposed to legal) pressures and sanctions and is thus critical if people are to enjoy a measure of social freedom.214

The classification of drug use as a private behavior depends upon showing that it is an autonomous activity and that it does not differ substantively from other private activities. This necessitates first distinguishing between innocuous, voluntary drug use and that which is compulsive and harmful. Second, the similarities between drug use and other private activities must be determined. This requires an analysis of the benefits, risks, and harms associated with drug use and with other activities.

1. Voluntary, "Innocuous" Drug Use

Many activities exist that are considered private and involve individuals acting autonomously. Society seldom interferes with such activities.215 Generally, the activities in which autonomous individuals216 are free to use their own bodies for their own purposes include those where engaging in the activity does not cause excessive harm to themselves or others.217 This includes tolerating and sometimes encouraging a wide variety of sports and leisure activities218 (e.g, adventuring,219 drinking coffe220 and alcohol, smoking , tobacco,221 the use of computer and video games, playing bingo, and casino and racetrack gambling222), despite the occurrence of tragedies, injuries, or other avoidable harms which can sometimes result from these activities. Society, by not prohibiting these activities, implicitly views the benefits of such activities as outweighing the harms that may occur from them.223 On the other hand, drug use, like smoking and the immoderate use of alcohol, is generally condemned and punished by governments.224 Nonetheless, large numbers of people use drugs illicitly, and most of them dl so without causing serious harm to themselves, other than breaking laws regarding their use.225 Moreover, apart from the indirect harms to society related to the interdiction of drugs, society is seldom harmed by this activity.

Despite a widespread perception that drug use is dangerous and harmful, there is ample data supporting a conclusion that, on the basis of all types of drug users, most drug use is transient, noncompulsive, and innocuous.226 For example, a recent study of individuals with private health insurance in New York estimated that one percent of the total insurance subscriber population studied were steadily employed, opiate-using individuals.227 "According to the U.S. Department of Labor, 77 percent of ‘serious cocaine users’ are regularly employed."228 In surveys of students in the United States, 3.1% reported that they had used cocaine and 5.6% had used LSD during 1992.229 In Canada, almost five percent of men and slightly less than two percent of women between the ages of twenty-five and thirty-four reported that they had used cocaine during 1989 and approximately four percent of adults reported using LSD, methamphetamine ("speed"), or heroin at least once.230 Even more alarming, however, was that 1.3% of Canadians reported that they had injected themselves with drugs using needles shared with someone else.231 Given such findings, it is not unreasonable to conclude that most drug use is undertaken voluntarily. Nevertheless, such activity, even if voluntary, may not always be undertaken harmlessly or under conditions of minimum risk.232 However, drugs can be used in a manner that is not seriously harmful to users or to others. This poses the question whether or not government intrusion into this behavior is justifiable and, if so, under what conditions might it be justifiable? This has obvious implications regarding the opportunities of drug users to exercise their rights viz a viz government intervention to control this behavior. Drug use can be viewed as a particular example of a more generalized principle; namely, that despite the risks, people use their bodies in a variety of ways for their own private, intimate, and voluntary purposes, including pleasure.233 Many of these activities are prevalent and popular.

Examples include alpine skiing, whitewater rafting, bungee jumping, sunbathing, racetrack betting; and social drinking.234 Some of these activities can be risky and, indeed, some people engage in them because they are both exhilarating and dangerous. Nevertheless, governments do not prohibit these activities and rarely interfere with them, other than to regulate them in order to reduce or prevent the risks and harms they present. This leads to the question of whether or not voluntary, innocuous drug use can be considered distinct from such activities with regard to their benefits, risks, and harms. If drug use differs substantively from these other activities, dissimilar treatment is justified. On the other hand, if drug use is not dissimilar, only those aspects of drug use differing from these other activities warrant different treatment. Because it is difficult to identify substantive differences in benefits, risks, and harms between voluntary, innocuous drug use and other comparable private activities, it would not be unreasonable to conclude that voluntary, innocuous drug use is a private, albeit risky, and sometimes, harmful behavior.

One consequence of a prima facie presumption that drug use is a private activity is that legal and public policy responses to drug use cannot be treated differently from responses to other private behavior.235 In other words, government responses to drug use have to be consistent with those of other comparable behaviors. Here, proportionality is concerned with "whether the legislative response to illicit drug behavior is appropriate relative to the state response to other particularly harmful behaviors .... Proportionality, like the efficient allocation of limited enforcement resources, includes comparison with other risk-producing conduct and the subsequent comparison of drug-related behaviours relative to one another."236 On the other hand, equality demands that like cases be treated alike or "that the legal definitions of offences correspond to meaningful categories of behaviour."237 This has, at least, four important human rights implications. First, considering drug use to be a private behavior would seriously question the prohibition of voluntary and innocuous (in contrast to compulsive or harmful) drug use. This, however, does not imply that people have a "right" to use drugs. As one commentator has noted:

One reason to deny that adults have a moral right to use recreational drugs is that the principle of autonomy does not apply to or protect any recreational activity. According to this school of thought, no one has a right to play baseball, ski, or participate in any nonprofessional sport. Persons are morally permitted to engage in recreational pursuits only as long as consequentialist considerations allow them to do so. But as soon as a net balance of disutility is caused by a given recreational activity, the state would have the authority to prohibit it without infringing moral rights.238

It also does not imply that governments cannot prohibit or limit the use of a drug when it would have a serious and unavoidable net harm for the user or for others.239 It would mean, however, that prohibiting or limiting the use of a drug would be the least restrictive and intrusive intervention available to prevent the risks and harms of drug use. For example, in ruling on a claim that marijuana use at home is constitutionally protected by a right to privacy, the Alaska Supreme Court held that:

The authority of the state to exert control over the individual extends only to activities of the individual as it relates to matters of public health or safety, or to provide for the general welfare. We believe this tenet to be basic to a free society. The state cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals.240

The standard applicable to state intervention aimed at preventing or reducing the risks and harms from drug use would, presumably, not differ from that which applies to state intervention into other private behavior. This would mean that an intervention to prohibit or limit drug use is (1) the least intrusive and least restrictive measure reasonably available; (2) proportional to the benefits, risks and harms involved; and (3) not disproportionate to interventions for other comparable private behaviors. Because private behaviors, including drug use, can be compared on the basis of their benefits, risks, and harms, responses to drug use can be compared to those of other behaviors. These responses should be similar to that of other behaviors insofar as their benefits, risks, and harms are similar, and differ only insofar as their benefits, risks, and harms differ. Unfortu nately, responses to drug use rarely recognize such a standard. This is illustrated by responses to the use of tobacco, alcohol, and many narcotics, as well as to prohibited drugs such as cannabis, methadone and heroin. The harms from the chronic use of tobacco and alcohol, on both a population basis and individually, exceed the harms of most, if not all, prohibited drugs, as well as the harms associated with many private activities. Despite this, tobacco and alcohol use are not prohibited in most societies except for their sale to and consumption by minors, while the use of many less harmful drugs is banned. Further, activities such as scuba diving, bungee jumping, and skydiving are rarely prohibited.

Second, considering drug use to be a private behavior would shift the emphasis of government intervention from primarily controlling the supply and use of drugs to that of preventing or reducing the risks and harms resulting from drug use. This would be consistent with other "positive content" human rights obligations of governments, such as preventing and protecting people from disease.241 Examples of such interventions include educating drug users about the risks and harms of drug use, pro- viding drug users with opportunities to avoid using drugs or to use them in a harmless manner, and helping to make available and accessible the care and treatment that drug users who use drugs in a harmful manner may need. Subject to the availability of resources, these interventions would likely entail counseling, providing clean injection equipment, and treatment such as methadone maintenance.242

Third, viewing drug use as a private behavior would avoid or reduce situations in which rights would be jeopardized or infringed. This would reduce activities aimed at the detection of individuals possessing or using drugs, such as drug testing, searches, and seizures.

Fourth, considering drug use to be a private behavior would help decrease the stigmatization and scapegoating of drug users. This, in turn, would help ensure that the benefits, risks, and harms associated with the use of drugs would be more accurately assessed. Implicit in such an assessment is the importance of preventing and reducing risks and harms. It would also counterbalance the widely held belief that drug use is a public menace or danger. When drug users are perceived to be immoral, weak, and prey to inescapably dangerous drugs, the public perceives itself as needing to be protected from drugs and, all too often, from those who use them. In such a setting, prohibition, abstinence, and mandatory treatment are perceived as being necessary. It is believed that drug users need to be controlled, isolated, or confined, either by self-isolation or social exclusion, or by imprisonment. Such beliefs can easily lead to the passage and persistence of laws that reinforce these views.

Considering drug use to be a private activity is not a novel idea.243 Although they recognize the risks and harms involved, some governments already consider the use of some drugs to be a private matter. Per-haps the most prominent example of such a response is the response of governments to tobacco and alcohol use. Almost every community force-fully prohibits individuals from driving under the influence of alcohol, yet drinking alcohol is not prohibited.244 At the same time, governments educate people about the risks and harms from drinking alcohol, label bottles containing alcohol with health promoting messages, and encourage treatment when alcohol use is compulsive. This response to alcohol use illustrates the powerful impact of stigmatization. Alcohol abuse is strongly stigmatized, yet in most cultures its moderate use is unstigmatized (as alcohol advertising demonstrates). In contrast, the illicit use of most prohibited drugs is despised and severely penalized-even when these drugs are used with great moderation and at minimal risk to the user and to others.

That some drug users may become seriously dependent upon drugs would not appear to negate a prima facie presumption that drug use is a private behavior, because while dependence is a risk, it is not an unavoidable or inescapably harmful consequence of drug use. Many drug users can and do use drugs, often over long periods of time, without necessarily becoming harmfully dependent upon them.245 Serious compulsive drug use is a harm similar to the harms that can occur from other private, voluntary activities, which may be strictly regulated but not prohibited.246 Viewing drug use to be a private behavior would help erode the false dichotomy by which alcohol and tobacco use are perceived to differ from the use of other drugs. All drugs would be viewed as potentially harmful, but able to be used in ways that can avoid or minimize these harms. It would also help to reduce stereotyping of drug use as inherently "evil," morally offensive, and unavoidably harmful, thereby helping to reduce a stigmatization, scapegoating, and discrimination against drug users and the communities to which they belong.247 Society would then view those who use drugs in a harmful manner as individuals needing help, rather than as individuals deserving punishment for engaging in a clandestine, criminal behavior. It would also provide a more coherent and rational perspective on the distinction between the personal use of drugs and drug trafficking. Finally, it would distinguish risks and harms from current legal and public policy responses aimed at controlling drug use from those related to drug use itself.248

2. Compulsive and Likely Harmful Drug Use

This autonomy- emphasizing approach to drug use must be undertaken with caution because there is no clear demarcation between when drug use is voluntary and innocuous and when it is compulsive and likely to be harmful.249 The autonomy of drug users and the voluntariness of their drug use can be eroded when their drug use is persistent and becomes compulsive.250 Most people would probably agree that sometimes state intervention aimed at preventing or minimizing this risk and its harms is needed, justifiable, and desirable,251 but there seems to be little agreement about what should be the limits on such interventions. Views of what can and should be done to control the risks and harms of drug use are often not balanced, but often usually extreme and polarized. On the one hand, proponents of prohibition claim that an absolute ban on drug use is necessary and justifiable in view of the risks and harms brought about by drug use. They support these views, seemingly without regard to the costs and other harms which can result from prohibition, including the creation of a false dichotomy between licit and illicit drug use rather than between harmless and harmful drug use.252 On the other hand, there are those who would restrict state intervention to those that regulate the availability of and accessibility to drugs only when drugs are likely to be used in a harmful manner.253 There are numerous examples of such nonprohibitionary intrusions into private life, including age restrictions, licensing, limiting the sale and consumption of alcohol to certain hours, banning the smoking of tobacco in public venues, breathalyzer testing, and severe penalties for driving or working when under the influence of drugs. There are particular scenarios that illustrate responses that minimize interference with the human rights of drug users when intervention is deemed necessary.

First, there is the situation in which drug use can be innocuous for the user, but harmful to others. For example, when a pregnant woman uses drugs, including tobacco and alcohol, it can be relatively innocuous for her yet dangerous to her fetus.254 The least intrusive and restrictive response to such a situation would be to persuade pregnant women to voluntarily forgo using drugs when pregnant. The most intrusive-restrictive response would be to coerce pregnant women to stop using drugs when they are pregnant. The former approach, which involves education, counseling, outreach, and support, avoids the counter-productive risk of driving pregnant drug users underground and discouraging them from seeking health care which they and their fetus need. 255 Only when the less intrusive-restrictive approaches are unsuccessful, should more restrictive approaches be employed to protect the fetus.256 Although neither response is incompatible with prohibiting pregnant women from using drugs, the former. noncoercive response views pregnant drug users as needing help to strengthen or reinforce their autonomy to stop using drugs and that the use of coercion is a "last resort" intervention.

Second, there are situations where the autonomy of the drug user may be impaired or undeveloped such as when children use drugs.257 The early use of drugs has been associated with subsequent, harmful drug use. Thus, users who develop dependence on or compulsive use of drugs at a younger age are more prone to develop these problems, while those who initiate drug use at a later age are less likely to have the same problem.258 The least intrusive and least restrictive response to this situation would be "positive content" ir~erventions.259 This type of intervention can increase children’s awareness of drug risks and harms, enhance their self-esteem and ability to resist using drugs, and teach them skills to abstain from drug use or to use them in a safe manner. This may involve, for example, mandatory school education about drug use, advice, accurate information, counseling, support, care, and the promotion of peer-regulation.260 Further treatment may be necessary to protect children who otherwise may be unable to avoid drug use.261 At the same time, the role of parents and guardians in determining what should be done to their children must be recognized. Even if parents or guardians refuse such interventions, these interventions are likely to remain justifiable, but the scope of the resulting intrusion would be increased.

Third, situations exist in which individuals are placed at risk of serious harm by drug users. In such situations, warning the imperiled individuals of their risk may be necessary despite the intrusion into their private life. This scenario is analogous to notifying the sexual partners of individuals with a sexually transmissible disease or people exposed to someone with a communicable disease such as tuberculosis.262 For example, it may be appropriate to warn an employer about a heavy equipment operator if that employee’s drug use is likely to endanger others when using drugs. Similarly, the friends or family of a drug user may need to be informed if the drug user were prone to abusive behavior or a mental health disorder. This would be necessary if the disorder is triggered or aggravated by using drugs and the drug user refuses to heed advice about this risk.

Fourth, there are situations in which the mandatory treatment of drug users may be necessary and justifiable in order to avoid or reduce the risks of harm to others. Generally, these situations involve compulsive drug use. However, situations may exist where mandatory treatment of noncompulsive drug use would be the only effective means to protect others from serious harm. For the most part, these situations arise when a drug user repeatedly places others at risk of serious harm from physical or sexual abuse, violence, or trauma that would be unlikely or nonexistent in the absence of drug use. While the specific behavior is not a direct result of using drugs, drug use may alter its frequency or seriousness. For example, some incarcerated alcoholics may need treatment when their drug use places other inmates or staff at risk. Even so, this treatment would be considered to be a "last resort," invoked only when other interventions, such as prohibiting alcohol use, have failed.

Regardless of the specific type of intervention, or the underlying circumstances necessitating it, privacy-intruding interventions are justifiable only when stringent conditions are met.263 These conditions require that an intervention be the least intrusive, least restrictive, and likely to be effective means reasonably available to avoid or minimize the harm that would result in the absence of the intervention. This approach is consonant with government responses to other risks inherent in daily life. Examples include requiring people to wear helmets when cycling, to use seatbelts or babyseats when riding in automobiles, to obey speed limits and parking restrictions, to avoid littering, and to submit to breathalyzer or other drug testing. In addition, individuals infected with certain communicable diseases must occasionally subject themselves to examination and treatment, or restrict their activity that places others at risk. Examples of government intervention in such situations include the treatment of syphilis or tuberculosis, the prohibition on obtaining employment as a food handler when carrying salmonella, and the exclusion of students from school when they are infectious with chickenpox or measles.

As in any situation that could give rise to state intervention, drug users need realistic opportunities to freely discuss their drug use and its attendant problems. Similarly, it is important that drug users have access to assistance without fear of self-incrimination, condemnation, or other harmful consequences from such disclosure.264 Thus, drug users must be able to openly seek advice, counsel, and care, especially when the drug user is prone to compulsive or harmful drug use. Unfortunately, the severe stigma associated with drug use, its widespread disapproval, and its illegality, can impede drug users from seeking this help. Too often, help is sought long after dependence has developed. Consequently, increasing the availability of such help and destigmatizing drug use are essential health interventions. This would include interventions aimed at stopping stereotypical responses against drug users, particularly those interventions that interfere with the access of drug users to these services, the protection of their privacy, and safeguarding the confidentiality of information about them.

3. Drug Trafficking

Trafficking in drugs presents a difficult dilemma regarding state intervention aimed at controlling drug use. Controlling drug use and sup-pressing drug trafficking can have devastating consequences for drug users when the supply of drugs is reduced without a corresponding reduction in demand. As longs as the marketing and possession of drugs are prohibited, obtaining drugs will be a clandestine activity. This situation is problematic because it exposes a drug user, who might otherwise be considered innocent, to an illegal, profit-mad, crime-prone milieu. This scenario drives people seeking drugs underground to engage in illegal activity without any assurance of the purity of the black market commodity they buy. As a result, drug users purchase impure or adulterated drugs of unknown toxicity and potency, all the while facing arrest, prosecution, and imprisonment.

Additionally, suppressing the supply of drugs raises drug prices. This, in turn, favors trafficking in drugs by drug users to pay for their drug use. Substantial profits from the illegal sale of drugs, as well as "pyramiding,"265 often entices (or drives) people, especially young people, to traffic in drugs. The profits favor market expansion, increasing the demand for drugs. The result is especially troubling when drug trafficking preys upon people, especially the young, prone to experiment with drugs though unaware of, unprepared for, or unable to prevent or minimize the risks associated with drug use. As a recent editorial in The Economist stated:

The attitudes of most electorates and governments is to deplore the problems that the illegal drug trade brings, view the whole matter with distaste and sit on the status quo-a policy of sweeping prohibition Yet the problems cannot be ignored. The crime to which some addicts resort to finance their habits, and in which the suppliers of illegal drugs habitually engage, exacts its price in victims’ lives, not just money. The illegal trade in drugs supports organized crime the world over. It pulls drug-takers into a world of filthy needles, poisoned doses and pushers bent upon selling them more addictive and dangerous fixes.266 Efforts to prevent or stop-trafficking are costly. Wider appreciation of the ineffectiveness and economic deficiencies of attempts to control drug use, primarily by suppressing the possession of and trafficking in drugs,26’ has prompted some governments to reexamine or modify their control over the use of drugs, such as tobacco,268 alcohol, and cannabis.269 In some instances, governments have substituted regulatory controls, such as taxation and licensing approaches, for criminal justice measures. For The most extreme example of alcohol control is total prohibition of alcoholic beverages, when the frequency of legal outlets is reduced to zero. There can be little doubt that during the first few years of prohibition in Canada, Finland, and the United States all indicators of alcohol consumption and alcohol problems reached the lowest level yet achieved in any period for which there are relevant data. It is also clear that in later years-say roughly 1923-1933 in the United States-as illegal trade became well established and the speakeasy and other clan-destine outlets made their appearance, consumption increased substantially.

Between the world wars, total prohibition, however, turned out not to be viable in any of the western countries where it was tried. Deeply rooted traditional drinking patterns, sizeable economic interests in the production and trade of alcoholic beverages, and the governmental need for alcohol revenue, exacerbated by the Depression, led to the demise of prohibition and a general weakening of protemperance sentiments. Nevertheless, it was these historical processes which led to present-day governmental controls on alcohol, most pronounced in northern Europe, North America and the Soviet Union.270

It is unlikely that either criminal suppression of drug possession or interventions aimed at reducing the demand for drugs, alone, could effectively control drug use and its harms. Accordingly, these two approaches must be balanced to eliminate or reduce both the highly profitable, crime-prone black market economy and the demand for drugs. Thus, there has been increased questioning and review of current legal and public policy responses to drug use to find a better balance among these alternatives. Suggestions as to the best balance among these alternatives is beyond the scope of this Article. However, in addressing this issue in the context of human rights, this Article points out the salience of human rights concepts and principles to help formulate and assess this balance.

4. Reevaluation of Legal and policy response to Drug Use

In many countries there is a growing appreciation that legal and public policy responses to drug use may be made more effective, more productive, less costly and less harmful. There is also an increasing momentum to reexamine the legal and public policy responses to drug use, particu larly those aimed at preventing or reducing the harms brought about by drug trafficking and by the prohibition of the possession and use of many drugs. There is wide disagreement as to the proper approach to prevent and reduce these harms. This debate is highly polarized with proponents of increased efforts to surpress drug use on one side and proponents of removal or relaxation of drug controls on the other side. A recent statement by former U.S. Surgeon General Jocelyn Elders illustrates this controversy. The Surgeon General’s remarks were reported in The New York Times as follows:

I do feel that we would markedly reduce our crime rate if drugs were legalized .... But I don’t know all of the ramifications of this. I do feel that we need to do some studies. And in some of the countries that have legalized drugs and made it legal, they certainly have shown that there has been a reduction in their crime rate and there has been no increase in their drug use rate.271

Her statement was "met with a resounding chorus of dissociation and condemnation,"272 including by White House officials. As a commentary, also published in The New York Times, noted:

Dr. Elder’s comments revived a perennial debate about the most effective way to handle the nation’s drug problems. In the past few years a small but growing number of former and present government officials, commentators, and academics have argued that the present policy of aggressively prosecuting drug sellers and users should be reconsidered. They have compared the current state of drug policy to the prohibition of alcohol earlier this century and have said that the abolition of drug laws would eliminate the profit motive, the gangs, and the drug dealers.273

As the controversy regarding the Surgeon General’s statements illustrate, opinions about what can and should be done to control drug use are not only polarized, but also entrenched. At one extreme are proponents of prohibition and drug interdiction who confront proponents of unfettered liberty and unrestricted access to drugs. In the middle ground are people working for incremental or gradual changes in drug control. These moderates are accelerating the momentum of harm reduction, prevention, and treatment approaches.274 Recently, an editorial in The Lancet described the debate:

In a free society prohibition of intoxicants does not work. When such a policy was applied to alcohol in the USA it failed dismally; applied to heroin the outcome has been a disaster on a national and even international scale . Why should a counter-productive measure be pursued in the face of the evidence?

Much has been invested in the war against drugs. Apart from the money, some reputations and many jobs depend on it even if the chances of getting any of this investment back are remote, the war must go on. Also, it is felt that if it were not for the effort now being expended in this battle, the whole population might succumb to drug-taking and civilisation would crumble into anarchic groups of lotus eaters.27

The editorial goes on to point out that the middle ground often tends to be disregarded or overlooked in situations such as this, where opinions are so polarized, long-standing, and robust. In this setting, neither side can give up nor compromise their position or even acknowledge that there are alternatives which may resolve the dispute. To a great extent, this occurs when the stakes in the dispute are seen as too high or reputation may be lost in acknowledging alternative responses to drug use. Meanwhile, middle ground approaches, like those of harm reduction and public health, are impeded and cannot flourish. This is illustrated by a recent Australian government study which concluded that:

The current debate over drug policy is largely over whether or not these costs are larger than those associated with heroin use itself and to what extent use would in fact increase in the absence of controls (and whether or not the pattern of use, even if more people used, would produce greater social costs in a less regulated environment). For the most part the debate in the US has not addressed these issues in depth. Those who argue for changes to the status quo list the drawbacks of prohibitionism, but usually do not advance detailed or costed (in both the financial and social senses) proposals for specific changes and only assert that the pattern of use would be less costly in changed circumstances. The defenders of current policies, on the other hand, deliberately confuse drug use costs with drug control ones, use moralistic rhetoric to attack the critics, and merely assert that things would be worse under any more liberal drug control regime. The debate on both sides is long on invective, blurring of the issues and specious use of statistics, and short on reason, open-mindedness and facts.276

In this setting, public debate-free of rhetoric, ideology, and expediency is needed. The first step in resolving this dispute is the recognition that controlling drug use and its harms can be improved. This requires examining opinions and options other than one’s own. For example, this debate could begin with proposals, such as those of Nadelmann and Wenner that are consonant with the promotion and protection of both respect for the human rights and the health of drug users and the public.

Any good nonprohibitionist policy has to contain three central ingredients. First, possession of small amounts of any drug for personal use has to be legal. Second, there have to be legal means by which adults can obtain drugs of certified quality, pu-rity and quantity. These can vary from state to state and town to town, with the Federal Drug Administration playing a supervi-sory role in controlling quality, providing information and assuring truth in advertising. And third, citizens have to be empowered in their decisions about drugs. Doctors have a role in all this, but let’s not give them all the power.

A drug policy with these ingredients would decimate the black market for drugs and take out of the hands of drug lords the $50 billion to $60 billion in profits they earn each year. The nation would gain billions of dollars in law-enforcement savings and tax revenues, which could then be used to treat America’s most serious problem: the miserable life prospects of millions of poor, undereducated Americans growing up in decaying, crime-ridden inner cities.277

Proposals such as this should not be viewed as a rejection of prohibition (which, undoubtedly, they are), but rather as an opening gambit with which to explore ways to more effectively control drug use and prevent or minimize its harms, while ensuring respect for the human rights of everyone.

5. Human Rights Implications of a Privacy-Based Approach to Drug Use

A privacy-based, autonomy-emphasizing approach to drug use can have at least two important and potentially beneficial outcomes for drug users in relation to their opportunities to exercise their human rights.

First, this approach would help to destigmatize drug use and drug users, thereby helping to decrease the exclusion of drug users and subsequent discrimination against them. Second, it would decrease human rights infringements resulting from some of the present efforts to interdict drugs by shifting emphasis from the control o drugs to the reduction of risks and the prevention of harms from drug u$e.278 There would also be additional benefits for drug users and for others. The criminal justice and prison systems would benefit by being able to focus their efforts at better controlling traffic in drugs.279 The health care system would benefit from the reduction in medical harms associated with drug use. Society would benefit by recovering otherwise lost opportunities to address the conditions underlying the vulnerability of some persons to use drugs and of drug users to be deprived of their human rights. Most importantly, drug users would benefit from the improved access to education, employment, housing, counseling, support, and care. These changes would decrease the incidence of human rights infringements by reducing the number of drug users involved with the police, courts, prisons, and health care institutions. Lastly, increased respect for the human rights of drug users would extend to the communities to which drug users belong. This "vertical" effect of human rights would involve a spectrum of institutions and businesses, as well as individuals.280

B. Vulnerability to Drug Use and to Human Rights Abuses

1. Vulnerability to Drug Use

People who use drugs are frequently described as being vulnerable281 to begin using drugs, to persist in using them, and to be harmed by using them.282 Similarly, people whose rights are abused are frequently described as being vulnerable to these abuses. Vulnerability is also used to describe people who are exposed to infections, such as the human immunodeficiency virus.283

First, vulnerability is a description of the risk (or probability) of the occurrence of harm.284 It is descriptive of risks in a variety of situations, such as those relating to drug use, human rights abuses, or infection. Second, vulnerability focuses on the person at risk and the influence on this risk of whatever forces, factors, and influences which underlie or contribute to the risk. Third, vulnerability implies a process with potentially identifiable content and outcome. Although it is often a retrospective assessment of this risk, vulnerability can be used prospectively as a predictor of harms, or retrospectively as an indicator of risk. Fourth, it is applicable both to individuals and to the groups, communities, and populations to which individuals belong.

Vulnerability is a generic term and one that is used as a general expression or global estimate of risk when there are multiple components contributing to the risk. Vulnerability’s specificity is provided by the risk it describes. It is a negative concept with its opposite being invulnerability, resilience, or resistance to the risk of the occurrence of harm. It is also an inclusive concept that reflects the various lifestyles and conditions which pertain to drug use and drug users. For example:

As a general rule, considerable effort has to be put into becoming dependent on a drug, especially one that is illegal, expensive, and scarce. Drug users who are also occupied with work or education, with nurturing personal relationships, or with recreational interests other than drug use will be hard pressed to find the time to develop a habit. But even more important are the beliefs individuals hold about the place of drug use in their lives as a whole, their self image, self-respect, and their future ambitions. Drug use decisions are quality-of-life decisions.285

Thus, vulnerability can be likened to the assessment of the forces, factors, and influences which limit the quality of life and self-reported health sta-tus.286 Indeed, the forces, factors and influences which are related to quality of life and health status are similar to those related to using drugs and being harmed by them.

At least four groups of factors may affect health status and quality of life: personal factors, social and familial factors, societal environmental factors, and health care system factors .... Personal factors include knowledge and attitudes about health, health behaviors, use of health care, and adherence to treatment regimens. Other important personal factors include close personal relationships, coping skills, social status, educational and work level, economic resources, standard of living, and leisure and recreation. Social and familial factors include social network and social support, and characteristics of those close to the individual, including their own health beliefs and behaviors, physical condition, and resources .... Societal factors include housing, neighborhood and community, environmental milieu, sanitation, opportunity/discrirnination, crime and political system. Health care system factors include availability, accessibility, and quality. While all of these factors can affect a person’s health and quality of life, they are not themselves quality of life.287

This description points the complexity inherent in the construct of vulnerability. It includes the diversity or heterogeneity288 among drug users, the drugs they use, and the context in which drugs are used, including the forces, factors, and influences which create, contribute to, or pre-dispose to risk. Some of these forces, factors, and influences are well recognized and studied, such as poverty,289 socio-economic status,290 low self-esteem, antisocial personality disorder, peer pressure to use drugs or to use them harmfully, and prior drug use.

Studies indicate that alcoholics and illicit drug users are characterized by low self-esteem, poor family relationships, low socio-economic and educational status, poor academic performance, the presence of psychiatric disturbances, and a high index of novelty- or sensation-seeking behaviour; dependence is furthered by high peer pressure and the ready availability of drugs. Genetic factors definitely play a role in some addictions, such as alcoholism.29l

Factors such as these are important determinants of the risk of using drugs and being harmed by drug use. However, each of them individually is an incomplete measure of vulnerability. This is illustrated by a recent study of tobacco and alcohol use and other health-risking behaviors among Native Americans in the United States.

The results . . . do nothing to contradict the common stereo-type of reservation life, characterized by poverty, unemployment, higher prevalence of alcohol and tobacco use, and poorer self-evaluations of health. Among the few positive findings were relatively low rates of (reported) mental health problems, adequate access to IHS [Indian Health Service] health care, and higher levels of physical activity. Adjusting for socioeconomic status did little to reduce the differences between Indians and non-Indian comparison groups, suggesting that poverty and unemployment alone can not account for differences in health and lifestyle practices. Higher levels of education and employment were associated with better health status and lower smoking rates among non-Indians, but there was no association between SES [socioeconomic status] and either health status or smoking among those on the reservation

. . .

. . . The data also confirm in a more formal way what otherstudies have concluded anecdotally, namely, that problems of poor health, smoking, and alcohol abuse can only be partly explained by the relative poverty, unemployment, and lack of education among American Indians living on reservations.292

An additional feature of vulnerability is its relationship to autonomy. Vulnerability can be considered a reciprocal measure of autonomy, where someone’s risk of using drugs is inversely related to that person’s autonomy. Because this risk is increased when autonomy is constrained or diminished, it follows that autonomy, in the context of drug use, needs to be promoted and protected. This, in turn, necessitates that people be in-formed about the risks and harms associated with drug use, be empowered, and have genuine opportunities to abstain from drug use or, at least, use them in as harmless a manner as possible.

There is a need for reliable and valid instruments that can measure vulnerability globally and the forces, factors, and influences that contribute to a global assessment of the particular risk involved.293 Among the positive and negative features contributing to an assessment of the risk of using drugs and of being harmed from using them are the following:294

(1)personal characteristics, particularly the biological and psychological characteristics of the individuals in the population involved, including conditions preceding or underlying drug use (such as an inheritable pre-disposition to use drugs or to persist in using them) and psychological or psychiatric disorders (co -morbidity or dual diagnosis);295 (2) social characteristics, such as family dynamics, schooling, social networks and sup-port, and cultural and community values and their stability;296

(3) economic characteristics; such as personal and neighborhood affluence or poverty, socio-economic status, and employment;297 and

(4) societal characteristics, which are extrinsic to drug user populations but affect them directly (e.g., marginalization, minority status, constraints on autonomy brought about by stereotyping, stigmatization and discrimination, and the inaccessibility to services such as health care, social support, education, and welfare services) because people are excluded from them or there is a failure to implement them.298

2. Vulnerability to Human Rights Abuses

Many of the factors, forces, or influences which make people vulnerable to drug use are also those which make people vulnerable to human rights abuses. Drug use is one factor which makes drug users more vulnerable than they would otherwise be to human rights abuses. By comparison, the rights of people who seldom or never use drugs are respected. People whose rights are abused, however, are marginalized, belong to minority groups, are of lower socio-economic status, are less educated, and frequently, are inner-city residents. These characteristics do not cause the abuses, but place people at risk. In addition many of these individuals will exclude themselves from exercising their rights because they are marginalized, stigmatized, and discriminated against due to their drug use. They are often shunned or excluded, to the point where they are considered to be little more than pariahs. In the words of Justice Douglas of the Supreme Court of the United States, "To be a confirmed drug addict is to be one of the walking dead."299 In September 1990, Los Angeles Police Chief Daryl Gates testified before the U.S. Congress that "all casual drug users ‘ought to be taken out and shot."’30"

As a result, drug users are often hidden from society; whatever opportunities they may have to exercise their rights are likely to be imperiled or endangered if they were known to use drugs or to have a criminal record because of their drug use. This identifies a dominant feature of vulnerability to human rights abuses, namely, the extent to which drug users are stereotyped, stigmatized, and scapegoated, and its impact on their autonomy and opportunities to exercise their rights.301 This, in turn, points out the strength of the moral inadequacy, personal inadequacy, and social control models of drug use to promote and reinforce these responses.

C. Drug Use as a Disability

One study found that over seventeen percent of disabled people worldwide have disabilities attributable to "chronic alcoholism and drug abuse."302 Despite the magnitude of this problem, there is a silence about whether drug use itself is disabling.303 This raises two concerns. The first concern is whether people using drugs can be considered disabled when their disability is attributable to their drug use,304 and if so, what specific conditions constitute such a disability.305 The second concern is whether drug use can exclude drug users from being considered disabled. This poses the question of when this might occur, and if it does, under what circumstances would it occur so that drug users would be deprived of protection that would otherwise be available to them were they not using drugs, or their disability was not attributable to their drug use. A third concern, not addressed in this Article, is that of disabling drug use by children or minors, and those in the care of parents, guardians, or the state.306

Considering drug users to be disabled when they use drugs in a manner that impairs their daily activities can be beneficial to them. First, people who are disabled receive special consideration in the law and public policy so that their rights will be respected.307 Thus, drug users will have opportunities to exercise their rights equal to those of everyone else in their society.308

Drug users are often vulnerable to abuses of their rights because of stereotyping, stigmatization, and discrimination. Being disabled com-pounds this vulnerability, so that the protection afforded disabled individuals would help individuals to secure their rights, as well as help to reduce these harms. Hopefully, it would also restore their autonomy and self-esteem, thereby decreasing their vulnerability to use drugs and having their rights jeopardized or violated.

1. Disabilities Attributable to Drug Use

There are three situations where drug users could be considered disabled. The first situation includes people who are ill and use drugs to treat their illness. For these individuals, their illness, unrelated to their drug use, impairs them to the point that the illness seriously interferes with their daily activities.309 The second situation includes drug users who develop disabling illnesses that are indirectly related to their drug use. For example, drug users can develop infections, have mental disorders unmasked, or experience toxic manifestations from their drug use.31" The third situation includes drug users who develop disabling illnesses that are directly due to their drug use. This could include, for example, dementia, seizures, or profound dependence because of compulsive drug use and the health deterioration which is associated with this compulsion. Considering drug use to be a disabling condition is supported by the following observations. First presuming that a drug user’s impairment would satisfy the criteria for being disabled, then someone with that condition would be considered disabled were he or she not a drug user. Second, many international and domestic legal instruments emphasize the importance of the treatment, rehabilitation, and social reintegration of drug users31l-interventions reminiscent of those for other disabilities.

Third, drug use is widely viewed as a chronic, relapsing but treatable condition. Methadone maintenance reinforces this view of drug use, as does the contemporary understanding of the neurological mechanisms that underlie drug use, including permanent or long-lasting neuroadaptation, withdrawal, frequent relapses, and the rapid return of dependence when abstinent individuals are reexposed to drugs.3l2 Fourth, the absence of a physical or visible impairment would not exclude drug users from being considered disabled because there are a variety of chronic diseases that are accepted as disabling. Among them, for example, are mental health disorders, 313 diabetes, 314 and HIV infection. 315

The conditions that impaired drug users would have to satisfy to be considered disabled are identical to the conditions that anyone must satisfy to be considered disabled.3l6 However, it is likely that additional criteria specific to drug use might also be necessary. These criteria might include, for instance, limiting disability status only to (1) drug users with permanent or chronic impairments, excluding persons who are merely intoxicated, transiently incompetent, or otherwise not disabled; (2) those who exhibit dependent, compulsive drug use (those who need chronic treatment such as with methadone maintenance); (3) those who are actively using drugs, thereby excluding people when they are abstinent;3l7 or (4) those with particular impairments such as persistently diminished attention, concentration, memory function, inanition, homelessness, or unemployability.

2. Drug Use as an Exclusion from Disability Protection

Opposite the question of whether or not drug use itself can be considered a disabling condition is the question of whether or not drug use can be a basis by which drug users can be deprived of disability protection that would otherwise be available to them. In the United States, for example, the Rehabilitation Act of 1973 extended protection to current drug users3l8 insofar as their drug use did not affect their job performance.3l9 Subsequently, the Americans with Disabilities Act of 1990("ADA") expressly excluded drug users from its protection.320 The ADA also amended the Rehabilitation Act of 1973 to exclude any current illegal drug user as an "individual with handicaps."32l This was done to deter illegal drug use and to punish those who currently use drugs illegally. It was an intentional result f U.S. social policy, a politically expedient response to moral forces within that country. It was not an idiosyncratic response to the drug use problem in the United States. In 1994, a bill was introduced in the Senate to strip drug users of the benefits of disabled drug users whose disability is based upon alcoholism or "drug addic-tion."322 These responses are a forceful illustration of the impact of stigmatization and scapegoating of drug users323 and the moral inadequacy model of drug use.

D. Drug Use and Human Rights Infringements

Drug use can trigger a wide variety of human rights infringements, especially when the rights of drug users are considered unworthy of respect. This occurs primarily because of prejudice and stigmatization, and it is perhaps the most frequent basis of wrongful discrimination against drug users.324 Infringements on the rights of drug users may sometimes be justifiable.325 Therefore, they will be necessary, legitimate, and proportional to the benefits, risks, and harms related to the infmmgement.326 All too often, however the justification for infringements is questionable and sometimes based upon prejudice, ignorance, stigmatization, or attempts to scapegoat drug users, rather than upon a legitimate public interest.

Governments may claim that a right has to be infringed on the basis that international and domestic law makes the production, manufacture, export, import, distribution of, trade in, use, and possession of certain drugs illegal.327 They may argue that state intervention is necessary and claim it is justifiable in order to comply with international law (i.e., that controlling drug use necessitates infringing rights).328 At other times, a government may view the harms from drug use to be "excessive," and in order to prevent or reduce these harms, may argue that controlling certain drugs and drug users is necessary and thus justifiable.329 The likelihood of this happening increases with the incidence and severity of the harms resulting from or associated with drug use and drug trafficking, particularly violence and crime. It has even been claimed that drug use is a serious threat to national security.330 One consequence of this view is that governments may jeopardize or threaten the rights of drug users in order to deter people from using drugs, thereby reducing the demand for drugs. This may happen directly where people are subjected to arbitrary searches, drug testing, detention, or seizure of their goods. It may also happen indirectly, for example, when drug users, as in the United States, are expressly excluded from federal disability protection.33l At other times, governments may claim that drug use is a public health crisis332 and that infringements are justifiable because they protect people from these health harms. The promotion and protection of public health has often been invoked as a basis to justify the infringement of rights with regard to infectious diseases, such as sexually transmissible diseases.333 While public health structures are becoming increasingly involved in responding to drug use, public health laws rarely address drug use other than to regulate smoking and drinking, and only sometimes in a health promotion context.334 The dominant legal response to drug use in many countries is through the use of the criminal law, which is often the sole instrument used.335 Consequently, legal norms pertaining to drug use are rarely found in health law.336

Surprisingly, international treaties and conventions relating to drug use do not appear to have been scrutinized formally for their compliance with international human rights standards.337 A similar trend appears in most national legislation.338 Furthermore, human rights jurisprudence relating to drug use does not appear to have been analyzed to any appreciable extent.339 In part. this may have developed as a result of the contemporary discourse regarding the control of drug use. Much of this discourse has focused on the effectiveness of let Cal and public policy measures to control drug use, rather than on whether the legal and public policy responses are justifiable and compatible with human rights standards. The majority of these discussions have concluded that the harms created by present legal regimes could be substantially reduced. Furthermore, the legal regimes have created avoidable harms for little documented benefit, despite the fact that little, if any, harm would have been present otherwise. In doing so, governments have suffered opportunity costs, including foregoing health promotion approaches that could reduce the demand for drugs.340

When laws and policies pertaining to drug use are not scrutinized sufficiently to assess their compliance with human rights standards, it is only possible to emphasize the urgent need for such analysis and to suggest issues in need of further study.341 Illustrative of the need for heightened scrutiny is the fact that most countries have already implemented control policies that have potential impact and often adverse impact on the human rights of drug users. Again, it is only possible to point to some of the situations in which such infringements might, and presumably do, occur under the current laws and policies relating to drug use.342 Among these situations are the following:

(1) detection of drug users which includes breaches of privacy; absent or diminished data protection and protection against self-incrimination; mandatory or compulsory medical examination or drug testing; and the compatibility of registers of drug users with human rights protection;

(2) integrity of persons which includes absent or diminished due process; arbitrary searches, seizure, arrest, or detention; and mandatory or compulsory treatment;

(3) criminal justice procedures which includes interference with the presumption of innocence and rules of evidence; absent or diminished protection against self-incrimination; and the use of special rules and practices relating to of-fenses committed while intoxicated;

(4) detention which includes arbitrary arrest, detention, or imprisonment; absent or reduced access to medical and social assistance when in detention; absent or diminished protection against cruel, inhuman, and degrading treatment; and arbitrary or excessive sentencing policies and practices;

(5) health care which includes absent or reduced availability to care and treatment, including methadone maintenance, rehabilitation, and social reintegration; and absent or reduced availability of and access to preventive measures, such as clean needles and syringes, methadone maintenance, counselling, and education;

(6) employment which includes arbitrary or discriminatory drug testing policies; absent or reduced work or promotion opportunities; unjustifiable dismissal; and absent or reduced accommodation of disabled or handicapped persons who use drugs;

(7) housing which includes absent or reduced housing opportunities; unjustifiable eviction; and insecure tenure;343

(8) education which includes absent or reduced opportunities for public, private, technical or professional education; (9) mobility which includes arbitrary or discriminatory exclusion from immigration and travel; and unjustifiable searches and enquiries;

(10) insurance which includes absent or reduced eligibility for life, disability, or health insurance.

Wrongful discrimination is another, more pervasive infringement of human rights affecting drug users.344 To a great extent, wrongful discrimination is directly related to the profound stigmatization of drug users.345 One impact of such discrimination is readily apparent in the Americans with Disabilities Act of 1990, which expressly excludes disabled persons presently using drugs from its protection.346


VI. CONCLUSION

Drug use is a complex social phenomenon, involving the drugs which are used, the people using them, the context in which they are used, and the social construction and governmental construction of drug use by society. Most people consider drug usage to be a voluntary and innocuous, yet illegal activity. This has important, but often overlooked privacy implications. Drug use itself, societal responses to it, and efforts to control it through legal measures, have an impact on the human rights of drug users. The impact may include infringements of the rights of drug users, vulnerability to human rights abuses, and diminished capacity to exercise these rights due to the consequences of drug use itself. Very often the occurrence of these harms can be prevented or reduced by addressing the adverse societal responses to drug use. Doing so would likely involve:

(1) considering drug use to be a risky private activity, but one that is not inherently or necessarily harmful, other than for its present illegality. Its control by governments is necessary, and may even be desirable, but this can create risks and inflict harms. These harms can be minimized or avoided by limiting control to the reduction or prevention of harms associated with drug use in situations in which these are likely to occur;

(2) preventing or reducing the vulnerability that underlies and predisposes individuals to use drugs. This would entail, among other initiatives, preventing or reducing the stereotyping, stigmatization, scapegoating and discrimination that is linked with drug use;

(3) recognizing that disabling health impairments -can result from drug use and that these impairments can interfere with opportunities to exercise human rights, and that protection of drug users in these situations is necessary and urgently needed;

(4) shifting the legal and policy approaches to drug use from those which rely upon controlling the supply of drugs, to those which emphasize reducing the demand for drug use and the harms of drug usage; and

(5) examining domestic and international legal and policy responses to drug use for their compliance with human rights standards.

Improving the health and the human rights of drug users is possible. Doing so, however, requires commitment-most of all, political commitment. As the American poet Alan Ginsberg said recently, ‘The whole drug problem has now spun out of control, and it is really not a medical problem or a police problem but a political problem."347 Responding to this problem, as an analysis of human rights and drug use shows, necessitates recognizing that "the way we conceptualize or define a problem dictates the measures we take to solve it."348