War on Drugs, HIV/AIDS and Human Rights 0972054170, 9780972054171

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War on Drugs, HIV/AIDS and Human Rights

War on Drugs, HIV/AIDS and Human Rights Edited by Kasia Malinowska-Sempruch and Sarah Gallagher

International Debate Education Association NEW YORK ✶ AMSTERDAM ✶ BRUSSELS

Published in 2004 by The International Debate Education Association 400 West 59th Street New York, NY 10019 © Copyright 2004 by International Debate Education Association All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, without permission of the publisher. ISBN 0-9720541-7-0 Library of Congress Cataloging-in-Publication Data War on drugs, HIV/AIDS, and human rights / edited by Kasia Malinowska-Sempruch and Sarah Gallagher. p. cm. — (Sourcebook on contemporary controversies series) Includes bibliographical references and index. ISBN 0-9720541-7-0 (alk. paper) 1. Drug abuse—Government policy. 2. HIV–positive persons—Drug use. 3. HIV positive persons—Civil rights. 4. AIDS (Disease)—Patients—Civil rights. I. Malinowska-Sempruch, Kasia. II. Gallagher, Sarah. III. Sourcebook on contemporary controversies. HV5801.W357 2004 362.196'9792—dc22 2004010120

Printed in the United States of America

IDEA Sourcebooks on Contemporary Controversies The International Debate Education Association (IDEA) has dedicated itself to building open and democratic societies through teaching students how to debate. The IDEA Sourcebooks on Contemporary Controversies series is a natural outgrowth of that mission. By providing students with books that show opposing sides of hot button issues of the day as well as detailed background and source materials, the IDEA Sourcebooks on Contemporary Controversies give students the opportunity to research issues that concern our society and encourage them to debate these issues with others. IDEA is an independent membership organization of national debate programs and associations and other organizations and individuals that support debate. IDEA provides assistance to national debate associations and organizes an annual international summer camp.

Table of Contents ❖ Introduction

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❖ Part 1: The War on Drugs and the Spread of HIV 19 1. Commonsense Drug Policy, by Ethan Nadelmann 23 2. Contemporary Drug Policy, by Eric A. Voth and Ambassador Melvyn Levitsky 40 3. Russian Drug Policy: Stating the Problem and Revealing the Actual Picture, by Lev Levinson 52 4. The Role and Impact of Law and Enforcement in Reducing the Harms of Injection Drug Use and HIV/AIDS, by Hans-Jörg Albrecht 60 5. HR2—Harm Reduction and Human Rights, by Robert Newman 77

❖ Part 2: Views on Public Health and Human Rights 85 6. Toward the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies, by Larry Gostin and Jonathan Mann 88 7. Understanding and Responding to Youth Substance Use: The Contribution of a Health and Human Rights Framework, by Sofia Gruskin, Karen Plafker, and Allison Smith-Estelle 112 8. Health, HIV Infection, Human Rights, and Injection Drug Use, by Alex Wodak 140 9. Alchemies of Inequality: The United Nations, Illicit Drug Policy and the Global HIV Epidemic, by Daniel Wolfe 158 ❖ Part 3: Human Rights and HIV in Context 191 10. Unintended Consequences: Drug Policies Fuel the HIV Epidemic in Russia and Ukraine, by Kasia Malinowska-Sempruch, Jeff Hoover, and Anna Alexandrova 194 11. Lethal Violations: Human Rights Abuses Faced by Injection Drug Users in the Era of HIV/AIDS, by Joanne Csete and Jonathan Cohen 212

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12. Active and Former Injection Drug Users Report of HIV Risk Behaviors During Periods of Incarceration, by Jennifer G. Clarke, Michael D. Stein, Lucy Hanna, Mindy Sobota, and Josiah D. Rich 228 13. Burma and Cambodia: Human Rights, Social Disruption and the Spread of HIV/AIDS, by Chris Beyrer 239 ❖ Part 4: Designing Programs and Policies with a Human Rights Framework 253 14. Reflections on Sonagachi: An Empowerment-Based HIV-Preventive Intervention for Female Sex Workers in West Bengal, India, by Peter A. Newman 256 15. Addiction and Methadone: One American's View, by Robert G. Newman 271 16. Drug User Community Organizing in Harm Reduction and the War on Drugs, by Matthew Curtis 284 17. Law Enforcement's Role in a Harm Reduction Regime, by Jonathan P. Caulkins 305

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Introduction

“Democracy and Public Health today are incompatible” Ms. Ludmila Stebenkova Moscow Duma, 2003 Two decades of the global HIV epidemic have resulted in over 60 million infections. In 2003 alone, an estimated 5 million people were infected with HIV.1 The Joint United Nations Program on AIDS (UNAIDS) projects that between 2000 and 2020, 68 million people in the 45 countries most affected by the disease will die prematurely as a result of AIDS.2 This impact is disproportionately felt by those most vulnerable, among them injecting drug users.3 Injecting drug use is becoming increasingly prominent as a mode of HIV transmission— UNAIDS reports that 10% of all new infections can be attributed to this route of transmission. One hundred and fourteen countries have reported HIV infection among drug injectors–—a figure that has doubled since 1992. The fast spreading HIV epidemic among drug users is a direct consequence of the global effort commonly known as drug control, which employs a zero-tolerance or law-enforcement approach to curtail drug use and trafficking, primarily by targeting users. Most countries have mandatory minimum sentences for even minor drug possession and longer prison terms for possession of certain classes of drugs. Law-enforcement resources are targeted toward communities in which drug use and activity is believed to be most widespread. The effectiveness of these policies in reducing drug use and its collateral consequences on society remains debatable. What is certain, however, is that these policies were created in isolation of public-

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health concerns. Mounting evidence shows how zero-tolerance policies, widely criticized for violating the human rights of already disenfranchised and vulnerable communities, have resulted in the spread of HIV and AIDS on a global scale. The articles complied in War on Drugs, HIV/AIDS and Human Rights explore the growing convergence of injection drug use, the HIV epidemic, and criminalization policies, and examine ways in which these policies have spread HIV among vulnerable populations by inadvertently encouraging high-risk behavior. Taken as a whole, they present compelling evidence for why zero-tolerance policies jeopardize the public health and societal well being they were intended to protect. Together, they lead us to reexamine this approach in light of public health concerns. In doing so, they present a case for why the protection of human rights through progressive harm-reduction drug policy is necessary for the safety and health of all citizens.

Current Government Approaches The bases for current drug policy are outlined in three United Nations conventions: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. None of these conventions, each created prior to the global HIV epidemic and before HIV transmission routes were fully understood, addresses the complexities of today’s drug situation. Ultimately, the conventions guided development of an international system for controlling illegal substances. They require states to work toward the complete elimination of drug use. While the conventions do not specifically define the measures states should take in controlling illicit drugs, they do set the tone for interventions that cause most nations to criminalize drug possession, along with equipment and activities associated with drug use. States opt for such draconian methods for several reasons, and these include: fear of violating convention rules; international pressure to promote a zero-tolerance policy; and lack of awareness of humane and effective alternative approaches, including harm reduction

INTRODUCTION ❖ 11 measures. Governments perceive drug users as a nuisance and, as a rule, feel little sympathy for them. Those governments favoring a zero-tolerance approach to drug policy, lead by the United States, see law and enforcement as necessary actors in defining acceptable social behavior. Supporters of this approach believe that less repressive drug policies would result in an increase in the use of currently prohibited substances. Ultimately, they feel that more people, especially young people, would be at risk for drug use and the myriad of the harms they associate with it. As Eric A.Voth and Melvyn Levitsky conclude in “Contemporary Drug Policy”: “a restrictive drug policy in which both traffickers and users are held accountable affords the greatest potential to reduce drug use and its harms to society.”4 To Voth and Levitsky, “restrictive drug policy seeks to find a balance between drug education and prevention, abstinence-based rehabilitation, law enforcement and supply reduction.”5 Yet, drug classifications and policies are arbitrarily based on moral standards. And despite centuries of prohibition, drugs continue to permeate our world. Ironically, the only real consequence of the lawenforcement or zero-tolerance approach has been the violation of human rights and the increased spread of HIV and other harms among marginalized and already vulnerable communities. For these reasons, opponents of the law-enforcement approach see the “war on drugs” as a failure. For them the ultimate goal of drug policies is not the unrealistic elimination of drugs from society, but rather the reduction of the individual and societal harms caused by drug use and faulty drug policies. As Ethan Nadelmann states in “Commonsense Drug Policy,” a policy’s success should be measured not only by a decline in drug use but also by its impact on human rights, the death rate, disease, crime, and the suffering associated with drug use.6 While drug use in the United States declined by nearly half from its peak in 1979 to 1992, by 2001 the use of illegal drugs had risen again to 16 million—up from 12 million people in 1992.7 Thus, the law enforcement approach has clearly failed to win the “war on drugs.” Additionally, the harms that the law-enforcement approach has caused to both drug users and to society do not justify its continued use.

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Criminalization and the enforcement of drug-control laws promote the spread of HIV in a number of ways. First, drug-control laws target drug users and the areas where they are known to congregate. In order to avoid arrest, drug users have turned away from smoking drugs because the paraphernalia is easy to detect. Instead, they have moved to injection drug use, increased needle sharing, and engagement in unsafe sexual activity. By pushing drug use and related activities underground, the policies, as they are being defined and implemented, have limited injectors’ options and access to information. Secondly, the law enforcement approach promotes the spread of HIV by undermining or often prohibiting harm-reduction services and prevention programs that have proved successful in stemming the spread of HIV among hard-to-reach populations. Methadone maintenance therapy, safe injection facilities, and user associations are all limited by the criminalization of drugs. Additionally, as H.-J. Albrecht points out in “The Role and Impact of Law and Enforcement in Reducing the Harms of Injection Drug Use and HIV/AIDS,” drug laws can adversely affect harm-reduction programs by criminalizing health related initiatives, such as needle exchange and education programs, that are essential in reducing HIV transmission.8 The third way in which criminalization promotes HIV transmission is through the incarceration of drug users. According to Jennifer G. Clarke, et al. in “Active and Former Injection Drug Users Report of HIV Risk Behaviors During Periods of Incarceration,” there “has been a 72% increase in the number of persons incarcerated since 1990, with approximately 23% of adult inmates incarcerated for drug offences.”9 The study shows that most injection drug users will be incarcerated at some point during their use years, and many continue to use while in prison. Thirty-one percent of injection drug users with a history of incarceration reported using illicit drugs while in prison.10 Incarceration does not stop people from using illicit drugs, rather it makes their use less safe. The sharing of needles and equipment is more common in prison than outside of prison, and only a few prison administrations throughout the world recognize this reality by offering prevention services. Also, since methadone maintenance therapy is not routinely offered to prisoners with a history of heroin use,

INTRODUCTION ❖ 13 detox can be extremely painful and dangerous. Additionally, the chance of overdose once a person does start using again, either upon release or while still in prison, is substantially increased due to diminished drug tolerance. Finally, drug users experience high levels of stigmatization by government, social service providers, and medical providers as well as from the general population. They receive very little public sympathy and are often marginalized. Frequently they are denied much needed services, such as medical care, public assistance, and housing, that are effective in deterring people from engaging in high-risk activities. Furthermore, their increased alienation makes drug users wary of service providers and authority figures and, consequently, resistant to seeking needed services or medical testing. In Russia and Ukraine, as in the United States, strict UN drugcontrol treaties undermine HIV prevention efforts by discouraging authorities from implementing effective, realistic, and compassionate public-health measures.11 By ignoring the health consequences of widespread injection-drug use, the primary route of HIV transmission in these countries, they now have the world’s fastest growing epidemic. According to Kasia Malinowska-Sempruch in a speech given at the 14th World AIDS Conference in Barcelona, For three years in a row, UNAIDS has reported that HIV is growing faster in Eastern Europe and the former Soviet Union than anywhere in the world. Today, there are almost 200,000 officially registered HIV infections in Russia . . . with 90 percent of them being injection drug users. Unlike in most other regions, HIV in Eastern Europe and Central Asia is spreading through injection drug use. Economic despair, social dislocation, and easy access to heroin and other opiates have all contributed to an explosion in drug use. Already on the margins of society, injecting drug users receive little or no sympathy from the general population. There remains an illusion that drug users are somehow separate and isolated and that illness and death among them has no impact on the fabric of society overall.12

Malinowska-Sempruch continues: “We’ve heard of reports of parents in Central Asia watching their children die of overdoses, so

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afraid of police harassment of the entire family that they will not bring them to a hospital. This type of fear and silence . . . breeds HIV and offers further proof that drug policies are intimately connected to AIDS policies.”13 Policies based on abstinence as their only goal contribute to the spread of HIV among vulnerable communities because they deny drug users their human rights. Criminalization advocates hold that individual rights must sometimes by sacrificed for the good of the general public. However, experience has shown that both the individual and the public suffer when government violates human rights and ignores public health issues.

Human Rights and HIV Experience over the last twenty years has taught us that there is a direct relationship between respect for human rights and the spread of HIV: The more discrimination people experience, the greater their chances of transmitting the disease. Time and time again, we see that developing countries and marginalized populations within industrialized countries are disproportionately affected by HIV. This interconnection between human rights and HIV prevention has gained increased attention over the past decade. Accordingly, there are several international documents and treaties that address human rights and HIV. For example, the 2001 UN General Assembly Special Session on HIV/AIDS (UNGASS) labeled human-rights violations a major factor in the spread of HIV. The special session also adopted a Declaration of Commitment that recognized the effectiveness of harm-reduction measures in controlling HIV and called for a wide range of non-discriminatory HIV prevention programs. Other treaties that speak to human rights and disease include: The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The International Covenant on Economic, Social and Cultural Rights, and The International Guidelines on HIV/AIDS Prevention. Still, there has been very little focus on the rights of drug users and the impact of drug policy on the spread of HIV.

INTRODUCTION ❖ 15 The disconnect and apparent contradiction between current drugcontrol policies as defined by the UN conventions and UN human rights declarations have lead to policies that impede global HIV prevention efforts through the violation of human rights. In fact, police abuses against drug users and other vulnerable people—including youth, sex workers, and Roma—seem inevitable under a law-enforcement approach. According to Aryeh Neier, president of the Open Society Institute, Bitter experience in all parts of the world has taught us that it is extremely difficult—perhaps impossible—to enforce criminal laws against drugs without both extensive corruption and severe abuses of human rights . . . Given the consensual character of the drug trade and the ease with which drugs can be concealed, it is not easy to imagine ways to enforce criminal laws without arbitrary searches, entrapment, racial profiling, violations of bodily integrity, and other intrusions on privacy . . . In the age of HIV/AIDS epidemics, the human rights issues associated with drugs have acquired heightened significance. Restrictions on substitution therapies and needle exchange in the name of law enforcement make the question of rights literally a matter of life and death for not only drug users but also for millions of others to whom the disease may spread.14

The articles in War on Drugs, HIV/AIDS and Human Rights draw on broad international experience to conclude that because injection drug use and the spread of HIV are so intrinsically linked, only drug policies with a human-rights perspective can stem the spread of HIV, particularly in communities that already experience extensive human-rights violations. The aim of this book is not merely to point out how drug policy has failed in eliminating drugs and spurred the spread of HIV. Rather, it seeks 1) to offer new ways of approaching policy development and analysis that ensure human rights, and 2) to present replicable examples of programs and policies that are successful in stemming HIV transmission because they respect and promote human rights and public-health goals. The readings selected for War on Drugs, HIV/AIDS and Human Rights articulate a broad range of issues that result from drug-control

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policies that infringe on human rights. In particular, they address the growing need for HIV prevention among vulnerable populations along with the challenges and contradictions that arise when attempting to take a human-rights approach to drug policy. Some of the texts are theoretical, while others offer practical tools and case studies. An international perspective is presented in order to show the global magnitude of the issue. No one nation is to blame for violating human rights in implementing drug-control policies. This is a common problem that must be addressed on local, state, and international levels. War on Drugs, HIV/AIDS and Human Rights is organized into four parts, each prefaced by a brief essay introducing the section’s main themes. The first section, “The War on Drugs and the Spread of HIV,” presents different approaches to drug policy along with analyses of their impact on public health. Most of the readings challenge the effectiveness of the traditional law-enforcement approach and criticize it for violating human rights, increasing vulnerabilities, and contributing to the spread of HIV/AIDS. The analysis presented in this section lays the foundation for understanding the relationship between drug policy, human rights, and the spread of the disease. Part 2, “Views on Public Health and Human Rights,” fleshes out the relationship between public health and rights, and provides the basis for building policies that are cognizant of the relationship between HIV/AIDS, drug policy, and human rights. Together, the articles in this section address the basic question: Is there a tradeoff between individual rights and public health when designing and implementing policies? The readings in part 3, “Human Rights and HIV in Context,” provide specific examples of how zero-tolerance drug policies infringe on human rights and promote the spread of HIV among already vulnerable populations. They show that when human rights are violated— whether on the international, state, or local levels—the health of both the individual and the public suffers. This section raises two major points: 1) repressive drug control laws generally target already vulnerable and high-risk populations, putting them at an even greater risk of transmitting HIV; and 2) the chances of an HIV epidemic are

INTRODUCTION ❖ 17 greater in places where the sociopolitical environment is one in which human-rights abuses are frequent (i.e. places or areas of civil strive). The final section, “Designing Programs and Policies with a Human Rights Framework,” provides examples of harm-reduction methods that have incorporated health and human-rights goals to create programs effective in stopping the spread of HIV. The last article of this section poses the question: Is there a constructive role for law enforcement in a harm-reduction regime? We are now entering a third decade of the global AIDS epidemic, which has claimed more lives than any other epidemic, more lives than the wars that have been fought throughout history. And there are no signs that this public health crisis will end soon. The third decade will be defined by how we address the epidemic among injecting drug users. Will China, Russia, and other countries repeat the experience of the most affected countries in Africa, where millions of lives could have been saved if governments had swiftly addressed complex risk factors and adopted rational drug policies? If international and national drug policies remain based on dogmatic, moralistic, and utopian approaches rather than sound public-health and human-rights based interventions, two decades of grief, pain, anguish, and 60 million infections will have taught us nothing. Kasia Malinowska-Sempruch and Sarah Gallagher

ENDNOTES 1. Joint United Nations Programme on HIV/AIDS, http://www.unaids.org/en/resources/epidemiology.asp. 2. Joint United Nations Programme on HIV/AIDS, “UNAIDS Fact Sheet 2002: The Impact of HIV/AIDS,” www.unaids.org. 3. Handbook for Legislators on HIV/AIDS, Law and Human Rights. (Geneva: Joint United Nations Programme on HIV/AIDS, 1999) 4. Eric Voth, and Melvyn Levitsky. “Contemporary Drug Policy.” Northwestern University Journal of International Policy 1/21/2000, http://www.estreet.com/orgs/dsi/IntPolicy/DrugPolicyLegalizationHar.html. 5. Ibid. 6. Ethan Nadelmann, “Challenging the Global Prohibition Regime,

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International Journal of Drug Policy 9 (1998): 85–93. 7. “Discussing the Issues in Substance Use,” Institute for Behavior and Health, http://www.ibhinc.org/ 8. Hans-Jörg Albrecht, “The Role and Impact of law and enforcement in reducing the harms of IDU and HIV/AIDS,” Health Canada, Proceedings Report, 2nd International Policy Dialogue on HIV/AIDS. HIV/AIDS and Injecting Drug Use–And–The Question of Complacency. Warsaw, November 12–14, 2003. 9. Jennifer Clarke, et. al. “Active and Former Injection Drug Users Report of HIV Risk Behaviors During Periods of Incarceration,” Substance Abuse 22, no.4 (2001): 210 10. Ibid., 211. 11. Kasia Malinowska-Sempruch, Jeff Hoover, and Anna Alexandrova, “Unintended Consequences: Drug Policies Fuel the HIV Epidemic in Russia and Ukraine,” in War on Drugs, HIV/AIDS and Human Rights, eds. Kasia Malinowska-Sempruch and Sarah Gallagher (New York: International Debate Education Association, 2004): TK. 12. Kasia Malinowska-Sempruch, “From Concern to Action: Harm Reduction as the Key to HIV Prevention and Treatment Efforts in Eastern Europe and the Former Soviet Union,” (speech, 14th World AIDS Conference, Barcelona. July 9, 2002). 13. Ibid. 14. Neier, Aryeh. Focus on Human Rights. Harm Reduction News. Spring 2003. Vol. 4, Issue 1.

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Part 1 The War on Drugs and the Spread of HIV

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Introduction

T

he readings in this section describe different approaches to drug policy and analyze their impact on public health, particularly the spread of HIV. Traditional drug policy criminalizes drugs and the behaviors associated with their use in an effort to eliminate them and reduce their harmful effects. This zero-tolerance approach identifies drug use as one of the primary threats to the health and safety of society and utilizes restrictive policies and rigorous law enforcement that frequently impinge on human rights. What these policies fail to consider, and what some of the authors in this section warn, is that human-rights abuses create vulnerabilities that put people at great risk of transmitting HIV, thus endangering the public’s health and safety. The approaches in this section lay the foundation for understanding the relationship between drug policy, human rights, and the spread of HIV/AIDS that is expanded in the following sections. Readers should pay close attention to the frames of analysis the authors employ, drawing from them the emerging themes running through the current policy debates. One central theme is the tradeoff or tension between individual rights and the public good. A key question posed in this section and throughout the book is whether or not these two important goals are in conflict or are even mutually exclusive. These articles challenge readers to recognize where restrictive or prohibitive drug policies violate or infringe on human rights and prompt them to consider how such policies reflect choices regarding whose rights are respected and whose are forfeited for the sake of the public good. The section begins with “Commonsense Drug Policy” by Ethan Nadelmann, who takes a critical look at the US drug policy, which is based on the law-enforcement approach. He maintains that the “war on drugs” has failed over the decades because of its preference for rhetoric over reality, and moralism over pragmatism. Rather than improve public safety and health, the campaign has made matters worse. Both crack use and drug-related HIV have reached epidemic

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 21 proportions under drug policies that are over-reliant on the criminal justice system. Nadelmann argues for a harm-reduction approach to drug policy that puts public health goals ahead of moralistic concerns. Among the harm-reduction innovations he believes effective in stemming the spread of HIV are: making sterile syringes readily available; providing methadone maintenance therapy; establishing safe injection facilities; decriminalizing possession and retail sale of cannabis (and in some cases possession of small amounts of “hard” drugs); and integrating harm-reduction policies and principles into community policy strategies. In “Contemporary Drug Policy,” Eric A. Voth and Ambassador Melvyn Levitsky defend the law-enforcement perspective, asserting that a restrictive drug policy is necessary to provide a deterrent to drug use as well as reduce drug-related costs and harms. They denounce current US policy because it “do[es] not allow for suspending civil liberties to mandate treatment for the most severe addicts.”* The next reading, “Russian Drug Policy” by Lev Levison, describes how law-enforcement policies carried out by corrupt government agencies have led to a rise in drug-related HIV in Russia. Levison concludes that humanizing drug polices and incorporating harmreduction measures would reduce the criminalization and penalization of users as well as prevent the spread of HIV and other dangerous diseases. He recommends a collaboration between humanrights and harm-reduction organizations to effect this policy change. In “The Role and Impact of Law and Enforcement in Reducing the Harms of Injection Drug Use and HIV/AIDS,” Hans-Jörg Albrecht, examines the relationship between law enforcement and the spread of HIV in several countries. Albrecht’s investigation concludes that repressive and restrictive drug policies based solely on criminal law enforcement are linked to higher rates of HIV and other problems. He recommends that countries adjust criminal law and enforcement practices to allow for harm-reduction policies that have proven to alleviate health problems related to injection drug use. The first section concludes with a commentary by Robert Newman. “HR2” offers a good transition to part 2 by explicitly stating the concomitance of harm reduction and human rights. Newman uses

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the analogy of train tracks—both headed in the same direction but neither is sufficient to reach the desired destination on its own.

*Eric Voth, and Melvyn Levitsky. “Contemporary Drug Policy.” Northwestern University Journal of International Policy 1/21/2000, http://www.estreet.com/orgs/dsi/IntPolicy/DrugPolicyLegalizationHar.html.

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Commonsense Drug Policy by Ethan A. Nadelmann*

First, Reduce Harm In 1988 Congress passed a resolution proclaiming its goal of “a drugfree America by 1995.” U.S. drug policy has failed persistently over the decades because it has preferred such rhetoric to reality, and moralism to pragmatism. Politicians confess their youthful indiscretions, then call for tougher drug laws. Drug control officials make assertions with no basis in fact or science. Police officers, generals, politicians, and guardians of public morals qualify as drug czars—but not, to date, a single doctor or public health figure. Independent commissions are appointed to evaluate drug policies, only to see their recommendations ignored as politically risky. And drug policies are designed, implemented, and enforced with virtually no input from the millions of Americans they affect most: drug users. Drug abuse is a serious problem, both for individual citizens and society at large, but the “war on drugs” has made matters worse, not better. Drug warriors often point to the 1980s as a time in which the drug war really worked. Illicit drug use by teenagers peaked around 1980, then fell more than 50 percent over the next 12 years. During the 1996 presidential campaign, Republican challenger Bob Dole made much of the recent rise in teenagers’ use of illicit drugs, contrasting it with the sharp drop during the Reagan and Bush administrations. President Clinton’s response was tepid, in part because he accepted the notion that teen drug use is the principal measure of drug policy’s success or failure; at best, he could point out that the level was still barely half what it had been in 1980. In 1980, however, no one had ever heard of the cheap, smokable form of cocaine called crack, or drug-related HIV infection or AIDS.

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By the 1990s, both had reached epidemic proportions in American cities, largely driven by prohibitionist economics and morals indifferent to the human consequences of the drug war. In 1980, the federal budget for drug control was about $1 billion, and state and local budgets were perhaps two or three times that. By 1997, the federal drug control budget had ballooned to $16 billion, two-thirds of it for law enforcement agencies, and state and local funding to at least that. On any day in 1980, approximately 50,000 people were behind bars for violating a drug law. By 1997, the number had increased eightfold, to about 400,000. These are the results of a drug policy over-reliant on criminal justice “solutions,” ideologically wedded to abstinence-only treatment, and insulated from cost-benefit analysis. Imagine instead a policy that starts by acknowledging that drugs are here to stay, and that we have no choice but to learn how to live with them so that they cause the least possible harm. Imagine a policy that focuses on reducing not illicit drug use per se but the crime and misery caused by both drug abuse and prohibitionist policies. And imagine a drug policy based not on the fear, prejudice, and ignorance that drive America’s current approach but rather on common sense, science, public health concerns, and human rights. Such a policy is possible in the United States, especially if Americans are willing to learn from the experiences of other countries where such policies are emerging.

Attitudes Abroad Americans are not averse to looking abroad for solutions to the nation’s drug problems. Unfortunately, they have been looking in the wrong places: Asia and Latin America, where much of the world’s heroin and cocaine originates. Decades of U.S. efforts to keep drugs from being produced abroad and exported to American markets have failed. Illicit drug production is bigger business than ever before. The opium poppy, source of morphine and heroin, and cannabis sativa, from which marijuana and hashish are prepared, grow readily around the world; the coca plant, from whose leaves cocaine is extracted, can be cultivated far from its native environment in the Andes. Crop

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 25 substitution programs designed to persuade Third World peasants to grow legal crops cannot compete with the profits that drug prohibition makes inevitable. Crop eradication campaigns occasionally reduce production in one country, but new suppliers pop up elsewhere. International law enforcement efforts can disrupt drug trafficking organizations and routes, but they rarely have much impact on U.S. drug markets. Even if foreign supplies could be cut off, the drug abuse problem in the United States would scarcely abate. Most of America’s drug-related problems are associated with domestically produced alcohol and tobacco. Much if not most of the marijuana, amphetamine, hallucinogens, and illicitly diverted pharmaceutical drugs consumed in the country are made in the U.S.A. The same is true of the glue, gasoline, and other solvents used by kids too young or too poor to obtain other psychoactive substances. No doubt such drugs, as well as new products, would quickly substitute for imported heroin and cocaine if the flow from abroad dried up. While looking to Latin America and Asia for supply-reduction solutions to America’s drug problems is futile, the harm-reduction approaches spreading throughout Europe and Australia and even into corners of North America show promise. These approaches start by acknowledging that supply-reduction initiatives are inherently limited, that criminal justice responses can be costly and counterproductive, and that single-minded pursuit of a “drug-free society” is dangerously quixotic. Demand-reduction efforts to prevent drug abuse among children and adults are important, but so are harmreduction efforts to lessen the damage to those unable or unwilling to stop using drugs immediately, and to those around them. Most proponents of harm reduction do not favor legalization. They recognize that prohibition has failed to curtail drug abuse, that it is responsible for much of the crime, corruption, disease, and death associated with drugs, and that its costs mount every year. But they also see legalization as politically unwise and as risking increased drug use. The challenge is thus making drug prohibition work better, but with a focus on reducing the negative consequences of both drug use and prohibitionist policies.

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Countries that have turned to harm-reduction strategies for help in alleviating their drug woes are not so different from the United States. Drugs, crime, and race problems, and other socioeconomic problems are inextricably linked. As in America, criminal justice authorities still prosecute and imprison major drug traffickers as well as petty dealers who create public nuisances. Parents worry that their children might get involved with drugs. Politicians remain fond of drug war rhetoric. But by contrast with U.S. drug policy, public health goals have priority, and public health authorities have substantial influence. Doctors have far more latitude in treating addiction and associated problems. Police view the sale and use of illicit drugs as similar to prostitution-vice activities that cannot be stamped out but can be effectively regulated. Moralists focus less on any inherent evils of drugs than on the need to deal with drug use and addiction pragmatically and humanely. And more politicians dare to speak out in favor of alternatives to punitive prohibitionist policies. Harm-reduction innovations include efforts to stem the spread of HIV by making sterile syringes readily available and collecting used syringes; allowing doctors to prescribe oral methadone for heroin addiction treatment, as well as heroin and other drugs for addicts who would otherwise buy them on the black market; establishing “safe injection rooms” so addicts do not congregate in public places or dangerous “shooting galleries”; employing drug analysis units at the large dance parties called raves to test the quality and potency of MDMA, known as Ecstasy, and other drugs that patrons buy and consume there; decriminalizing (but not legalizing) possession and retail sale of cannabis and, in some cases, possession of small amounts of “hard” drugs; and integrating harm-reduction policies and principles into community policing strategies. Some of these measures are under way or under consideration in parts of the United States, but rarely to the extent found in growing numbers of foreign countries.

Stopping HIV with Sterile Syringes The spread of HIV, the virus that causes AIDS, among people who inject drugs illegally was what prompted governments in Europe and

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 27 Australia to experiment with harm-reduction policies. During the early 1980s public health officials realized that infected users were spreading HIV by sharing needles. Having already experienced a hepatitis epidemic attributed to the same mode of transmission, the Dutch were the first to tell drug users about the risks of needle sharing and to make sterile syringes available and collect dirty needles through pharmacies, needle exchange and methadone programs, and public health services. Governments elsewhere in Europe and in Australia soon followed suit. The few countries in which a prescription was necessary to obtain a syringe dropped the requirement. Local authorities in Germany, Switzerland, and other European countries authorized needle exchange machines to ensure 24-hour access. In some European cities, addicts can exchange used syringes for clean ones at local police stations without fear of prosecution or harassment. Prisons are instituting similar policies to help discourage the spread of HIV among inmates, recognizing that illegal drug injecting cannot be eliminated even behind bars. These initiatives were not adopted without controversy. Conservative politicians argued that needle exchange programs condoned illicit and immoral behavior and that government policies should focus on punishing drug users or making them drug-free. But by the late 1980s, the consensus in most of Western Europe, Oceania, and Canada was that while drug abuse was a serious problem, AIDS was worse. Slowing the spread of a fatal disease for which no cure exists was the greater moral imperative. There was also a fiscal imperative. Needle exchange programs’ costs are minuscule compared with those of treating people who would otherwise become infected with HIV. Only in the United States has this logic not prevailed, even though AIDS was the leading killer of Americans ages 25 to 44 for most of the 1990s and is now No. 2. The Centers for Disease Control (CDC) estimates that half of new HIV infections in the country stem from injection drug use. Yet both the White House and Congress block allocation of AIDS or drug-abuse prevention funds for needle exchange, and virtually all state governments retain drug paraphernalia laws, pharmacy regulations, and other restrictions on access to sterile syringes. During the 1980s, AIDS activists engaging in civil

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disobedience set up more syringe exchange programs than state and local governments. There are now more than 100 such programs in 28 states, Washington, D.C., and Puerto Rico, but they reach only an estimated 10 percent of injection drug users. Governments at all levels in the United States refuse to fund needle exchange for political reasons, even though dozens of scientific studies, domestic and foreign, have found that needle exchange and other distribution programs reduce needle sharing, bring hard-toreach drug users into contact with health care systems, and inform addicts about treatment programs, yet do not increase illegal drug use. In 1991 the National AIDS Commission appointed by President Bush called the lack of federal support for such programs “bewildering and tragic.” In 1993 a CDC-sponsored review of research on needle exchange recommended federal funding, but top officials in the Clinton administration suppressed a favorable evaluation of the report within the Department of Health and Human Services. In July 1996 President Clinton’s Advisory Council on HIV/AIDS criticized the administration for its failure to heed the National Academy of Sciences’ recommendation that it authorize the use of federal money to support needle exchange programs. An independent panel convened by the National Institute of Health reached the same conclusion in February 1997. Last summer, the American Medical Association, the American Bar Association, and even the politicized U.S. Conference of Mayors endorsed the concept of needle exchange. In the fall, an endorsement followed from the World Bank. To date, America’s failure in this regard is conservatively estimated to have resulted in the infection of up to 10,000 people with HIV. Mounting scientific evidence and the stark reality of the continuing AIDS crisis have convinced the public, if not politicians, that needle exchange saves lives; polls consistently find that a majority of Americans support needle exchange, with approval highest among those most familiar with the notion. Prejudice and political cowardice are poor excuses for allowing more citizens to suffer from and die of AIDS, especially when effective interventions are cheap, safe, and easy.

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Methadone and Other Alternatives The United States pioneered the use of the synthetic opiate methadone to treat heroin addiction in the 1960s and 1970s, but now lags behind much of Europe and Australia in making methadone accessible and effective. Methadone is the best available treatment in terms of reducing illicit heroin use and associated crime, disease, and death. In the early 1990s the National Academy of Sciences’ Institute of Medicine stated that of all forms of drug treatment, “methadone maintenance has been the most rigorously studied modality and has yielded the most incontrovertibly positive results . . . Consumption of all illicit drugs, especially heroin, declines. Crime is reduced, fewer individuals become HIV positive, and individual functioning is improved.” However, the institute went on to declare, “Current policy . . . puts too much emphasis on protecting society from methadone, and not enough on protecting society from the epidemics of addiction, violence, and infectious diseases that methadone can help reduce.” Methadone is to street heroin what nicotine skin patches and chewing gum are to cigarettes—with the added benefit of legality. Taken orally, methadone has little of injected heroin’s effect on mood or cognition. It can be consumed for decades with few if any negative health consequences, and its purity and concentration, unlike street heroin’s, are assured. Like other opiates, it can create physical dependence if taken regularly, but the “addiction” is more like a diabetic’s “addiction” to insulin than a heroin addict’s to product bought on the street. Methadone patients can and do drive safely, hold good jobs, and care for their children. When prescribed adequate doses, they can be indistinguishable from people who have never used heroin or methadone. Popular misconceptions and prejudice, however, have all but prevented any expansion of methadone treatment in the United States. The 115,000 Americans receiving methadone today represent only a small increase over the number 20 years ago. For every ten heroin addicts, there are only one or two methadone treatment slots. Methadone is the most tightly controlled drug in the pharmacopoeia,

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subject to unique federal and state restrictions. Doctors cannot prescribe it for addiction treatment outside designated programs. Regulations dictate not only security, documentation, and staffing requirements but maximum doses, admission criteria, time spent in the program, and a host of other specifics, none of which has much to do with quality of treatment. Moreover, the regulations do not prevent poor treatment; many clinics provide insufficient doses, prematurely detoxify clients, expel clients for offensive behavior, and engage in other practices that would be regarded as unethical in any other field of medicine. Attempts to open new clinics tend to be blocked by residents who don’t want addicts in their neighborhood. In much of Europe and Australia, methadone treatment was at first even more controversial than in the United States; some countries, including Germany, France, and Greece, prohibited it well into the 1980s and 1990s. But where methadone has been accepted, doctors have substantial latitude in deciding how and when to prescribe it so as to maximize its efficacy. There are methadone treatment programs for addicts looking for rehabilitation and programs for those simply trying to reduce their heroin consumption. Doctors in regular medical practice can prescribe the drug, and patients fill their prescriptions at local pharmacies. Thousands of general practitioners throughout Europe, Australia, New Zealand, and Canada (notably in Ontario and British Columbia) are now involved in methadone maintenance. In Belgium, Germany, and Australia this is the principal means of distribution. Integrating methadone with mainstream medicine makes treatment more accessible, improves its quality, and allocates ancillary services more efficiently. It also helps reduce the stigma of methadone programs and community resistance to them. Many factors prevent American doctors from experimenting with the more flexible treatment programs of their European counterparts. The Drug Enforcement Administration contends that looser regulations would fuel the illicit market in diverted methadone. But the black market, in which virtually all buyers are heroin addicts who cannot or will not enroll in methadone programs, is primarily a product of the inadequate legal availability of methadone. Some conventional providers do not want to cede their near-monopoly over

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 31 methadone treatment and are reluctant to take on addicts who can’t or won’t commit to quitting heroin. And all efforts to make methadone more available in the United States run up against the many Americans who dismiss methadone treatment as substituting one addictive drug for another and are wary of any treatment that does not leave the patient “drug free.” Oral methadone works best for hundreds of thousands of heroin addicts, but some fare better with other opiate substitutes. In England, doctors prescribe injectable methadone for about 10 percent of recovering patients, who may like the modest “rush” upon injection or the ritual of injecting. Doctors in Austria, Switzerland, and Australia are experimenting with prescribing oral morphine to determine whether it works better than oral methadone for some users. Several treatment programs in the Netherlands have conducted trials with oral morphine and palfium. In Germany, where methadone treatment was initially shunned, thousands of addicts have been maintained on codeine, which many doctors and patients still prefer to methadone. The same is true of buprenorphine in France. In England, doctors have broad discretion to prescribe whatever drugs help addicted patients manage their lives and stay away from illegal drugs and their dealers. Beginning in the 1920s, thousands of English addicts were maintained on legal prescriptions of heroin, morphine, amphetamine, cocaine, and other pharmaceutical drugs. This tradition flourished until the 1960s, and has reemerged in response to AIDS and to growing disappointment with the Americanization of British prescribing practices during the 1970s and 1980s, when illicit heroin use in Britain increased almost tenfold. Doctors in other European countries and Australia are also trying heroin prescription. The Swiss government began a nationwide trial in 1994 to determine whether prescribing heroin, morphine, or injectable methadone could reduce crime, disease, and other drug-related ills. Some 1,000 volunteers-only heroin addicts with at least two unsuccessful experiences in methadone or other conventional treatment programs were considered—took part in the experiment. The trial quickly determined that virtually all participants preferred heroin, and doctors

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subsequently prescribed it for them. Last July the government reported the results so far: criminal offenses and the number of criminal offenders dropped 60 percent, the percentage of income from illegal and semi-legal activities fell from 69 to 10 percent, illegal heroin and cocaine use declined dramatically (although use of alcohol, cannabis, and tranquilizers like Valium remained fairly constant), stable employment increased from 14 to 32 percent, physical health improved enormously, and most participants greatly reduced their contact with the drug scene. There were no deaths from overdoses, and no prescribed drugs were diverted to the black market. More than half those who dropped out of the study switched to another form of drug treatment, including 83 who began abstinence therapy. A cost-benefit analysis of the program found a net economic benefit of $30 per patient per day, mostly because of reduced criminal justice and health care costs. The Swiss study has undermined several myths about heroin and its habitual users. The results to date demonstrate that, given relatively unlimited availability, heroin users will voluntarily stabilize or reduce their dosage and some will even choose abstinence; that longaddicted users can lead relatively normal, stable lives if provided legal access to their drug of choice; and that ordinary citizens will support such initiatives. In recent referendums in Zurich, Basel, and Zug, substantial majorities voted to continue funding local arms of the experiment. And last September, a nationwide referendum to end the government’s heroin maintenance and other harm-reduction initiatives was rejected by 71 percent of Swiss voters, including majorities in all 26 cantons. The Netherlands plans its own heroin prescription study in 1998, and similar trials are under consideration elsewhere in Europe, including Luxembourg and Spain, as well as Canada. In Germany, the federal government has opposed heroin prescription trials and other harm-reduction innovations, but the League of Cities has petitioned it for permission to undertake them; a survey early last year found that police chiefs in 10 of the country’s 12 largest cities favored letting states implement controlled heroin distribution programs. In Australia last summer, a majority of state health ministers approved a

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 33 heroin prescription trial, but Prime Minister John Howard blocked it. And in Denmark, a September 1996 poll found that 66 percent of voters supported an experiment that would provide registered addicts with free heroin to be consumed in centers set up for the purpose. Switzerland, attempting to reduce overdoses, dangerous injecting practices, and shooting up in public places, has also taken the lead in establishing “safe injection rooms” where users can inject their drugs under secure, sanitary conditions. There are now about a dozen such rooms in the country, and initial evaluations are positive. In Germany, Frankfurt has set up three, and there are also officially sanctioned facilities in Hamburg and Saarbrucken. Cities elsewhere in Europe and in Australia are expected to open safe injection rooms soon.

Reefer Sanity Cannabis, in the form of marijuana and hashish, is by far the most popular illicit drug in the United States. More than a quarter of Americans admit to having tried it. Marijuana’s popularity peaked in 1980, dropped steadily until the early 1990s, and is now on the rise again. Although it is not entirely safe, especially when consumed by children, smoked heavily, or used when driving, it is clearly among the least dangerous psychoactive drugs in common use. In 1988 the administrative law judge for the Drug Enforcement Administration, Francis Young, reviewed the evidence and concluded that “marihuana, in its natural form, is one of the safest therapeutically active substances known to man.” As with needle exchange and methadone treatment, American politicians have ignored or spurned the findings of government commissions and scientific organizations concerning marijuana policy. In 1972 the National Commission on Marihuana and Drug Abuse—created by President Nixon and chaired by a former Republican governor, Raymond Shafer—recommended that possession of up to one ounce of marijuana be decriminalized. Nixon rejected the recommendation. In 1982 a panel appointed by the National Academy of Sciences reached the same conclusion as the Shafer Commission.

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Between 1973 and 1978, with attitudes changing, 11 states approved decriminalization statutes that reclassified marijuana possession as a misdemeanor, petty offense, or civil violation punishable by no more than a $100 fine. Consumption trends in those states and in states that retained stricter sanctions were indistinguishable. A 1988 scholarly evaluation of the Moscone Act, California’s 1976 decriminalization law, estimated that the state had saved half a billion dollars in arrest costs since the law’s passage. Nonetheless, public opinion began to shift in 1978. No other states decriminalized marijuana, and some eventually recriminalized it. Between 1973 and 1989, annual arrests on marijuana charges by state and local police ranged between 360,000 and 460,000. The annual total fell to 283,700 in 1991, but has since more than doubled. In 1996, 641,642 people were arrested for marijuana, 85 percent of them for possession, not sale, of the drug. Prompted by concern over rising marijuana use among adolescents and fears of being labeled soft on drugs, the Clinton administration launched its own anti-marijuana campaign in 1995. But the administration’s claims to have identified new risks of marijuana consumption—including a purported link between marijuana and violent behavior—have not withstood scrutiny.1 Neither Congress nor the White House seems likely to put the issue of marijuana policy before a truly independent advisory commission, given the consistency with which such commissions have reached politically unacceptable conclusions. In contrast, governments in Europe and Australia, notably in the Netherlands, have reconsidered their cannabis policies. In 1976 the Baan Commission in the Netherlands recommended, and the Dutch government adopted, a policy of separating the “soft” and “hard” drug markets. Criminal penalties for and police efforts against heroin trafficking were increased, while those against cannabis were relaxed. Marijuana and hashish can now be bought in hundreds of “coffeeshops” throughout the country. Advertising, open displays, and sales to minors are prohibited. Police quickly close coffeeshops caught selling hard drugs. Almost no one is arrested or even fined for cannabis possession, and the government collects taxes on the gray market sales.

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 35 In the Netherlands today, cannabis consumption for most age groups is similar to that in the United States. Young Dutch teenagers, however, are less likely to sample marijuana than their American peers; from 1992 to 1994, only 7.2 percent of Dutch youths between the ages of 12 and 15 reported having tried marijuana, compared to 13.5 percent of Americans in that age bracket. Far fewer Dutch youths, moreover, experiment with cocaine, buttressing officials’ claims of success in separating the markets for hard and soft drugs. Most Dutch parents regard the “reefer madness” anti-marijuana campaigns of the United States as silly. Dutch coffeeshops have not been problem free. Many citizens have complained about the proliferation of coffeeshops, as well as nuisances created by foreign youth flocking to party in Dutch border cities. Organized crime involvement in the growing domestic cannabis industry is of increasing concern. The Dutch government’s efforts to address the problem by more openly and systematically regulating supplies to coffeeshops, along with some of its other drug policy initiatives, have run up against pressure from abroad, notably from Paris, Stockholm, Bonn, and Washington. In late 1995 French President Jacques Chirac began publicly berating The Hague for its drug policies, even threatening to suspend implementation of the Schengen Agreement allowing the free movement of people across borders of European Union (EU) countries. Some of Chirac’s political allies called the Netherlands a narco-state. Dutch officials responded with evidence of the relative success of their policies, while pointing out that most cannabis seized in France originates in Morocco (which Chirac has refrained from criticizing because of his government’s close relations with King Hassan). The Hague, however, did announce reductions in the number of coffeeshops and the amount of cannabis customers can buy there. But it still sanctions the coffeeshops, and a few municipalities actually operate them. Notwithstanding the attacks, in the 1990s the trend toward decriminalization of cannabis has accelerated in Europe. Across much of Western Europe, possession and even minor sales of the drug are effectively decriminalized. Spain decriminalized private use of cannabis in 1983. In Germany, the Federal Constitutional Court

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effectively sanctioned a cautious liberalization of cannabis policy in a widely publicized 1994 decision. German states vary considerably in their attitude; some, like Bavaria, persist in a highly punitive policy, but most now favor the Dutch approach. So far the Kohl administration has refused to approve state proposals to legalize and regulate cannabis sales, but it appears aware of the rising support in the country for Dutch and Swiss approaches to local drug problems. In June 1996 Luxembourg’s parliament voted to decriminalize cannabis and push for standardization of drug laws in the Benelux countries. The Belgian government is now considering a more modest decriminalization of cannabis combined with tougher measures against organized crime and heroin traffickers. In Australia, cannabis has been decriminalized in South Australia, the Australian Capital Territory (Canberra), and the Northern Territory, and other states are considering the step. Even in France, Chirac’s outburst followed recommendations of cannabis decriminalization by three distinguished national commissions. Chirac must now contend with a new prime minister, Lionel Jospin, who declared himself in favor of decriminalization before his Socialist Party won the 1997 parliamentary elections. Public opinion is clearly shifting. A recent poll found that 51 percent of Canadians favor decriminalizing marijuana.

Will It Work? Both at home and abroad, the U.S. government has attempted to block resolutions supporting harm reduction, suppress scientific studies that reached politically inconvenient conclusions, and silence critics of official drug policy. In May 1994 the State Department forced the last-minute cancellation of a World Bank conference on drug trafficking to which critics of U.S. drug policy had been invited. That December the U.S. delegation to an international meeting of the U.N. Drug Control Program refused to sign any statement incorporating the phrase “harm reduction.” In early 1995 the State Department successfully pressured the World Health Organization to scuttle the release of a report it had commissioned from a panel that included many of the world’s leading experts on cocaine because it

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 37 included the scientifically incontrovertible observations that traditional use of coca leaf in the Andes causes little harm to users and that most consumers of cocaine use the drug in moderation with few detrimental effects. Hundreds of congressional hearings have addressed multitudinous aspects of the drug problem, but few have inquired into the European harm-reduction policies described above. When former Secretary of State George Shultz, then-Surgeon General M. Joycelyn Elders, and Baltimore Mayor Kurt Schmoke pointed to the failure of current policies and called for new approaches, they were mocked, fired, and ignored, respectively—and thereafter mischaracterized as advocating the outright legalization of drugs. In Europe, in contrast, informed, public debate about drug policy is increasingly common in government, even at the EU level. In June 1995 the European Parliament issued a report acknowledging that “there will always be a demand for drugs in our societies . . . the policies followed so far have not been able to prevent the illegal drug trade from flourishing.” The EU called for serious consideration of the Frankfurt Resolution, a statement of harm-reduction principles supported by a transnational coalition of 31 cities and regions. In October 1996 Emma Bonino, the European commissioner for consumer policy, advocated decriminalizing soft drugs and initiating a broad prescription program for hard drugs. Greece’s minister for European affairs, George Papandreou, seconded her. Last February the monarch of Liechtenstein, Prince Hans Adam, spoke out in favor of controlled drug legalization. Even Raymond Kendall, secretary general of Interpol, was quoted in the August 20, 1994, Guardian as saying, “The prosecution of thousands of otherwise law-abiding citizens every year is both hypocritical and an affront to individual, civil and human rights . . . Drug use should no longer be a criminal offense. I am totally against legalization, but in favor of decriminalization for the user.” One can, of course, exaggerate the differences between attitudes in the United States and those in Europe and Australia. Many European leaders still echo Chirac’s U.S.-style antidrug pronouncements. Most capital cities endorse the Stockholm Resolution, a statement backing punitive prohibitionist policies that was drafted in response

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to the Frankfurt Resolution. And the Dutch have had to struggle against French and other efforts to standardize more punitive drug laws and policies within the EU. Conversely, support for harm-reduction approaches is growing in the United States, notably and vocally among public health professionals but also, more discreetly, among urban politicians and police officials. Some of the world’s most innovative needle exchange and other harm-reduction programs can be found in America. The 1996 victories at the polls for California’s Proposition 215, which legalizes the medicinal use of marijuana, and Arizona’s Proposition 200, which allows doctors to prescribe any drug they deem appropriate and mandates treatment rather than jail for those arrested for possession, suggest that Americans are more receptive to drug policy reform than politicians acknowledge. But Europe and Australia are generally ahead of the United States in their willingness to discuss openly and experiment pragmatically with alternative policies that might reduce the harm to both addicts and society. Public health officials in many European cities work closely with police, politicians, private physicians, and others to coordinate efforts. Community policing treats drug dealers and users as elements of the community that need not be expelled but can be made less trouble some. Such efforts, including crackdowns on open drug scenes in Zurich, Bern, and Frankfurt, are devised and implemented in tandem with initiatives to address health and housing problems. In the United States, in contrast, politicians presented with new approaches do not ask, “Will they work?” but only, “Are they tough enough?” Many legislators are reluctant to support drug treatment programs that are not punitive, coercive, and prison-based, and many criminal justice officials still view prison as a quick and easy solution for drug problems. The lessons from Europe and Australia are compelling. Drug control policies should focus on reducing drug-related crime, disease, and death, not the number of casual drug users. Stopping the spread of HIV by and among drug users by making sterile syringes and methadone readily available must be the first priority. American politicians need to explore, not ignore or automatically condemn,

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 39 promising policy options such as cannabis decriminalization, heroin prescription, and the integration of harm-reduction principles into community policing strategies. Central governments must back, or at least not hinder, the efforts of municipal officials and citizens to devise pragmatic approaches to local drug problems. Like citizens in Europe, the American public has supported such innovations when they are adequately explained and allowed to prove themselves. As the evidence comes in, what works is increasingly apparent. All that remains is mustering the political courage.

NOTE 1. Lynn Zimmer and John P. Morgan, Marijuana Myths, Marijuana Facts: A Review of the Scientific Evidence, New York: Lindesmith Center, 1997. *Ethan Nadelmann is executive director of Drug Policy Alliance (formerly the Lindesmith Center), the leading organization in the US advocating for drug policies based on common sense, science, public health, and human rights. He is the author of Cops Across Borders: The Internationalization of U.S. Criminal Law Enforcement. Reprinted by permission of FOREIGN AFFAIRS, (Jan–Feb, 1998); 77(1): pp. 111–126. Copyright 1998 by the Council on Foreign Relations, Inc.

DEBATE QUESTIONS

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1. According to Nadelmann, what should be the guiding principle in designing drug policies? 2. How is the US approach to drug policy different from that of most West European countries? Please support this with examples of services to drug users. 3. Nadelmann believes that US drug policy has contributed to the spread of AIDS? Explain.

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Contemporary Drug Policy by Eric A. Voth, M.D., FACP and Ambassador Melvyn Levitsky*

Drug Policy Options The question facing us today is whether or not United States drug policy can be effective on both the domestic and international fronts, and whether and how international counter-narcotics efforts can contribute to reducing drug abuse. International drug policy faces a critical juncture in terms of fundamental policy decisions, which could reduce drug use on one hand or conversely risk increases of drug use and its inherent harms on the other. Our careful assessment of drug policy options suggests that restrictive drug policy in which both traffickers and users are held accountable affords the greatest potential to reduce drug use and its harms to society. This policy focuses its law enforcement efforts on the drug trafficking chain, and while it does not advocate locking up every first-time user of drugs, it does hold users accountable for their actions through a range of penalties and sanctions. Dubbed “prohibitionist” policy by its detractors, restrictive drug policy seeks to find a balance between drug education and prevention, abstinence-based rehabilitation, law enforcement and supply reduction. At the other extreme of drug policy is drug legalization. This type of policy draws its support from several constituencies. The broadest group supports the notion that drug use is a personal choice and that people should have the right to whatever intoxication and self abuse they so desire. Much of the drive of that group is to allow personal gratification through drug use and even trafficking. Many legalization proponents hide under the shield of political activism to gain protection for their own illegal and destructive habits and activities. The

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 41 second group largely consists of libertarians who consider that intervention upon drug use is a violation of personal liberties. Some take a cynical view of drug use as a Darwinian phenomenon. They mistakenly consider drug use as a victimless event. The third group are those looking for a place to land who neither have studied nor understand the phenomena associated with drug use, and who consider legalization as a fashionable alternative to fighting a concerted drug war. Their claim is that legalization will reduce both crime and drug abuse. A new version of legalization policy is the drug policy option referred to as “harm reduction.” The basic orientation of harm reductionists is that more harm comes to society from the drug policy than from drug use itself. Harm reduction policy had its origins with those who were frustrated with some of the failures of modern policy, but it also has supporters from the legalization movement. Finding that society was not accepting of the broad legalization of drugs, legalization proponents have moved into a perceived middle ground. This policy shift has had the net effect of breaking permissive drug policy into component parts and then selling them piecemeal to the public. The philosophy of the harm reduction movement is well summarized by Ethan Nadelman of the Lindesmith Center (funded by billionaire George Soros) who is considered the godfather of the movement to legalize drugs “Let’s start by dropping the “zero tolerance” rhetoric and policies and the illusory goal of drug-free societies. Accept that drug use is here to stay and that we have no choice but to learn to live with drugs so that they cause the least possible harm. Recognize that many, perhaps most, “drug problems” in the Americas are the results not of drug use per se but of our prohibitionist policies....” (Learning to Live with Drugs by Ethan Nadelmann Tuesday, November 2, 1999; Page A21 The Washington Post)

It is noteworthy that those advocating legalization rarely speak or write about the details of the regime they would have see replacing zero tolerance policies. This is primarily because their theory involves making currently illegal drugs widely available and cheap in order to

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“take the crime out of drugs” and supposedly undermine criminal trafficking networks by taking away their profits.

The Drug War We believe that the use of the “drug war” metaphor is quite appropriate both in terms of domestic and foreign policies. Wars incite public opinion and action and focus attitudes on a problem. They require mobilization and the marshalling of assets and funds, and strengthen political will toward the elimination of a common threat. Some criticize the drug war mentality as exerting unnecessary violence on a medical problem. Police who face the violence of crack houses and methamphetamine labs understand that we are facing a war. DEA agents in South America and the policy makers and judges in countries like Columbia understand that we are waging a war as well.

Domestic Efforts We should first consider the successes and perceived failures of domestic drug policy. Consistently, drug culture advocates assert that drug policy has failed and is extremely costly. This is calculated strategy to demoralize the public and turn public sentiment against restrictive policy. The real question is, has restrictive policy failed? To determine cost effectiveness we can compare the costs to society of legal versus illegal drugs. Estimates from 1990 suggest that the costs to society of illegal drugs were $70 billion as compared to that of alcohol alone at $99 billion and tobacco at $72 billion. Estimates from 1992 put the costs of alcohol dependence at $148 billion and all illegal drugs (including the criminal justice system costs) at $98 billion. According to National Household Survey data from 1998 there were 13.6 million current users of illicit drugs compared to 113 million users of alcohol and 60 million tobacco smokers. There is one difference legal status of the drugs. The Monitoring the Future Survey data of high school seniors suggest that in 1995 52.5% of seniors had been drunk within the last year as compared to 34.7% who had

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 43 used marijuana. Yet, alcohol is illegal for teenagers. The difference is, again, the legal status of the two substances. One can safely make the assumption that legalized—and readily available—marijuana (even if illegal for teenagers) would be used by a far higher percentage of teenagers. Permissive drug policy has been tried both in the United States and abroad. In 1985, during the period in which Alaska legalized marijuana, the use of marijuana and cocaine among adolescents was more than twice as high as other parts of the country. In 1979, during the height of permissive drug policy in the United States, the daily use of marijuana was 11% among high school seniors. Thirty seven percent of high school seniors had used marijuana in the prior 30 days. These use rates dropped respectively to 1.9% and 11.9%, an alltime low, by 1992 after the institution of no-tolerance and no-use policy. Baltimore has long been heralded as a centerpiece for harm reduction drug policy. Interestingly, the rate of heroin found among arrestees in Baltimore was higher than any other city in the United States. Thirty-seven percent of male and 48% of female arrestees were positive as compared to 6%–23% for Washington D.C., Philadelphia, and Manhattan. Clearly, better advances need to be made at broadening drug prevention with a focus on eliminating or delaying intoxicant use. The current availability of effective programming is woefully inadequate. DARE for example, has been criticized in some arenas, yet it is almost always a highly circumscribed and limited effort existing with other fragmented efforts. Often, DARE is the only prevention effort that upholds a “No-Use” message. Treatment availability is also inadequate, and treatment is often little more than a revolving door. It is clear that abstinence-based treatment works, but it is largely unavailable to some of the most severe addicts who fail or rapidly relapse after treatment. Our system does not readily allow for suspending civil liberties to mandate treatment for the most severe addicts. Sweden, on the other hand, has developed creative means to coerce treatment. Hopefully, current efforts to enhance cooperation between the criminal justice system and the treatment community will improve treatment availability to

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those drug users involved in crime. Unfortunately, some advocates of so-called drug policy reform are willing to cave in to these limitations by handing out needles or even handing out heroin to addicts.

The International Scene Fighting the drug war on the international front is in many ways more difficult than in the domestic arena. We can influence but not control the efforts of other governments. Corruption and violence in a number of drug producing and transit countries undermine the political will of governments to tackle powerful trafficking organizations. Since drugs flow across borders without regard to sovereignty, multilateral cooperation is necessary to stem their flow, but the mechanisms and will to do so are often lacking. Finally, there is such an over production of drugs worldwide that the losses our and other countries’ efforts inflict on the drug traffickers often seem marginal. The United States made steady progress in reducing drug use through the eighties and early nineties; despite a disturbing increase in teenage drug use since 1992, overall drug use is down in this country. Unfortunately the trend is not as encouraging in some other countries. In particular, cocaine use in Europe and Russia is steadily rising as increasing U.S. resistance has turned the traffickers’ eyes to the European market traditionally a high-use heroin area. Policy shifts that have entailed higher tolerance of so-called soft drugs have resulted in huge increases in drug use. Holland has suffered an increase in marijuana use since the softening of their marijuana policy. The Dutch are also now one of the major exporters of Ecstacy (MDMA). Several countries are considering accepting marijuana for medicinal purposes despite clear evidence of problems associated with smoking for medicinal applications. Since the liberalization of the marijuana enforcement policies, Holland has found that marijuana use among 11–18 year olds has increased 142% from 1990–1995. Crime has risen steadily to the point that aggravated theft and breaking and entering occurs 3–4 times more than in the United States. Australia is also suffering widespread drug policy activism geared toward softening drug policy. As a result of such soft policy changes,

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 45 major problems are developing. This is most dramatically represented in comparison to Sweden, a country that employs a successful restrictive drug policy (see chart). Lifetime prevalence of drug use in Australia in 16–29 year olds is 52% as compared to 9% in Sweden, a country with restrictive drug policy. Sweden Lifetime prevalence of drug use in 16–29 year olds (Sweden) and 14–25 year olds (Australia)

Australia

9%

52%

Use in the previous year, as above

2%

33%

Estimated dependent heroin users per million population

500 5000–16000

Percentage of dependent users aged under 20 Methadone patients per million population Drug-related deaths per million population

1.5%

8.2%

50

940

23

48

Percentage of all deaths at age under 25

1.5%

3.7%

Drug offences per million population (Sweden - arrests; Australia – convictions)

3100

1000

Average months in prison per drug offence Property crimes per million population Violent crimes per million population Cumulative AIDS cases per million population

20

5

51000

57000

6600

1230

150

330

This difficult situation is not cause to abandon our international efforts. For one thing over the past ten years more countries have come to realize that drug trafficking and abuse are not just an American issue and that their own societies are suffering the consequences of their previous denial that they had a problem. European countries are now more vigorous in their efforts abroad both bilaterally and through UN programs, often in cooperation with the U.S. The body of international law, particularly the 1988 Anti-Trafficking convention which the United States sponsored and pressed forward, has brought a stronger anti-drug ethic to international affairs, which only outlaws and outlaw states ignore. The UN Drug Control Program has become more pervasive and effective and even formerly resistant agencies like the World Bank and the UN Development Program are beginning to understand that drugs undermine development as well as democracy.

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The Reasons for International Efforts While developments in the international drug arena present a decidedly mixed picture, there are good reasons for the United States to have a strong country–narcotics component in its foreign policy

• First and most obvious, our efforts to reduce demand for illegal drugs in the United States will be undermined if an unrestricted flow of these drugs comes across our borders. Illegal drugs will be cheaper, purer, more widely available and consequently more abused. Even if we cannot cut off the flow of narcotics, we can continue to work with other countries to contain it and make it more difficult for the drugs to get to the street. There is, in fact, good evidence of a correlation between heightened drug control efforts overseas and the price, availability, and use of drugs in the U.S. (see especially the study, Empirical Examination of Counterdrug Interdiction Program Effectiveness published by the Institute of Defense Analysis in January 1997). Without a strong supply reduction effort, prevention, and education programs will suffer • Similarly helping other countries reduce their own demand can make an important contribution to building international resistance to drug use. Virtually every country in the world has obligated itself to fighting drugs through the ratification of the 1961, 71 and 88 drug conventions. International cooperation to stem drug abuse will help make international laws and the obligations stemming from them a reality Conversely, allowing drug use to grow without counter efforts will simply provide more markets for drug traffickers and make them more powerful. • A broader reason to attack the drug trade lies in the fact that the illegal drug industry undermines our broad foreign policy goals of building democracy and responsible, effective governments worldwide in order to promote global peace and stability. Drug organizations corrupt civil institutions through bribery and intimidation, while drug use attacks the basis of democracy—an alert, enlightened and involved citizenry. Besides, the

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 47

proceeds of illegal drugs undermine economies throughout the world through devices such as money laundering, ownership and management of financial institutions and the skewing of exchange rates and financial flows. Increasingly the illegal drug trade is seen by a number of governments as a national security threat, which attacks the moral fiber of society and undermines civil institutions. This is particularly true in our hemisphere, which is at once the host to major drug trafficking organizations and the victim of their activities. A closer look at the situation in the Americas is warranted.

Western Hemisphere Several factors must be taken into account

• Our hemisphere has become a network of nodes for the illicit drug industry. • Drug production, transport, and money laundering schemes are pervasive. Every country has become enmeshed in the network. • In virtually every country the drug lords have created their own mini-networks of gangsters, hired assassins, in some cases “guerilla fighters” (especially Colombia), chemists, financial experts, and middle-men to make purchases of legal property and enterprises with illegal money. • This structure threatens the institutions of most of these countries, intensifying graft and corruption and creating dishonest public officials, judges, legislators, police and military. • The threat to democracy and effective government in the hemisphere is obvious. The Western Hemisphere presents a complex picture. As with so many segments of the drug war, successes and setbacks are prevalent throughout the area.

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• Latin America is the only producer and supplier area for cocaine in the world. Three countries—Colombia, Peru, and Bolivia—grow and produce virtually all of the coca, and refined cocaine. Some successes have been seen in the choking off cocaine production substrates from Peru and Bolivia. This has resulted in a decrease of nearly 50% in the coca crop. Unfortunately, Colombia has picked up most of the production; when coca supply dropped Colombian traffickers aided by their paid hired-hand guerillas, began to have their own coca planted locally. Colombian traffickers also increased opium poppy and heroin production as a means of diversification. • Mexico is a traditional producer of opium/heroin while Colombia has only been a producer since the early nineties, but is gaining a hold on the US eastern seaboard market. Most of the cocaine for the U.S. market comes across the Mexican boarder. Corruption and violence in Mexico is rooted in the illegal drug trade. • A number of other countries in the hemisphere play important roles in transporting the product to the U.S. The so-called transit countries—Brazil, Argentina, Guyana, Surinam, Central America and the Caribbean—are also sources for chemicals needed to produce cocaine and heroin and often provide offshore banking facilities for laundering drug money. • Canada presents another serious enigma. While being a close trade partner, efforts are underway throughout Canada to undermine drug policy. Industrial hemp has been widely accepted, and is now presenting an importation issue for U.S. Customs officials and law enforcement. In Vancouver in 1988, HIV prevalence in IV drug addicts was only 1–2%. In 1997 it was 23% after widely adopting harm reduction policies. Vancouver has the largest needle exchange in North America. Marijuana decriminalization and legalization is being widely considered. The steady increases in drug use in Canada present a considerable problem to the United States in light of the huge and virtually open border.

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 49 Here again, despite the apparently bleak situation, there is a brighter side to the picture. Peru and Bolivia have improved their counter-narcotics programs considerably. Peru’s policy of shooting down drug trafficker aircraft has severely damaged the coca airbridge from Colombia. Bolivia and Peru have finally begun to decrease coca growing areas through both repression and programs of inducement to coca farmers. While, as a consequence, coca cultivation has moved to Colombia, the U.S. Congressional pressure on the Clinton Administration to increase substantially anti-guerilla and anti-drug assistance to that country offers the hope of major inroads into the cocaine trade.

U.S. Policy Approaches We strongly believe the best U.S. approach toward the global drug program is first of all to concentrate on reducing the demand for drugs in our country, the world’s largest drug market. To continue our international leadership in the war against drugs we must keep our own house in order. This means an intensification and broadening of primary prevention, abstinence-based treatment and rigorous law enforcement. Increased drug screening in such venues as schools would improve our efforts. Exposing and combating the efforts of the legalizers, “harm-reducers” and others pressing for tolerance toward drug abuse or “responsible” drug use is absolutely critical. We must also promote a seamless drug policy in which our international law enforcement and supply reduction efforts work together with demand reduction programs in an effective, coordinated manner. Increasing our cooperation with—as well as keeping the pressure on—the drug producing and transit countries will help advance the goal of world-wide zero tolerance. We adamantly oppose the current administration’s efforts to weaken the drug certification laws and “multilateralize” the performance evaluation process. Such a development would only lower performance standards and cause slippage in the U.S. goal of strengthening the anti-drug political will in other countries. Above all the United States must adopt a stronger stance of lead-

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ership in the global war against drugs. And, at home American political leadership needs to send out a more clear and consistent message of zero-tolerance to drugs as well as to work more vigorously with the Congress, the states and localities and local communities to combat drug trafficking and abuse.

SELECT BIBLIOGRAPHY DuPont RL, Voth EA. Drug Legalization, Harm Reduction, and Drug Policy. Annals of Internal Medicine 1995;123:461–465. Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., Editors. Marijuana and Medicine Assessing the Science Base Division of Neuroscience and Behavioral Health, Institute of Medicine, NATIONAL ACADEMY PRESS. Washington, D.C. 1999 Musto DF. The American Disease Origins of Narcotic Control. New York Oxford Univ. Pr; 1987 Spanjer M., Dutch Schoolchildren’s Drug Taking Doubles The Lancet 1996, 347:534 White House Office of National Drug Control Policy, Strategic Writings. May 1999, ONDCP *Dr. Voth is a specialist in Internal Medicine and Addiction Medicine working at Stormont-Vail HealthCare in Topeka, Kansas. He serves as Chairman of the International Drug Strategy Institute, is recognized as an international authority on drug use, and lectures nationally on and drug policy-related issues, pain management, and appropriate prescribing practices. Ambassador Melvyn Levitsky is Professor of Public Administration and International Relations at Syracuse University’s Maxwell School of Citizenship and Public Affairs and Distinguished Fellow at the Global Affairs Institute. He was Ambassador to Brazil (1994–98), Assistant Secretary of State for International Narcotics Matters (1989–94), Executive Secretary of the Department of State (1987–89), and Ambassador to Bulgaria (1984–87).

Northwestern University Journal of International Policy 1/21/2000, http://www.estreet.com/orgs/dsi/IntPolicy/DrugPolicyLegalizationHar.html. Reprinted by permission.

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 51

DEBATE QUESTIONS

?

1. What arguments do Voth and Levitsky use against harm reduction? How do these arguments relate to the public health approach to HIV prevention among drug users? 2. Voth and Levitsky argue for heavy US involvement in international anti-drug efforts. What reasons do they give? Do they seem justified from the perspective of a US citizen whose taxes pay for these efforts? Do they seem justified from an international perspective? 3. How do Voth and Levitsky view US drug policy—failure or success? Explain their reasoning.

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❖

Russian Drug Policy: Stating the Problem and Revealing the Actual Picture by Lev Levinson*

Collaboration between human rights organizations and harm reduction activities for the purpose of achieving both of their goals was born out of the realization that gaps exist within each of the movements. The inclusion of human rights organizations into harm reduction activities is not only a result of harm reduction projects’ need for legal support but also as a result of civil human rights organizations need to use the powerful tool of harm reduction strategies because they are capable of influencing the liberalization of drug policy. The revision of drug policy and, in turn, the growing tolerance of the state toward users of psychotropic substances, affect the general state of human rights observance. Humanization of state policies toward drug issues translates into the reduction of criminalization and penalization of users in the first place. Consequently, we have reason to claim that harm reduction measures positively reflect not only upon the prevention of HIV and other dangerous diseases, but also upon criminal policy, the penitentiary system, and the protection of minorities. The combination of these factors explains the Human Rights Institute’s involvement in discussions on harm reduction issues, as well as the readiness of a large number of Russian civil organizations to contribute to activities in this field as well.

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Major Characteristics of Russian Drug Policy State policy concerning drug use in Russia has been shaped by the following major characteristics: 1) criminal and legal measures are used to influence the drug situation, 2) the simulative nature of the punitive policy, 3) corruption in drug crime detection bodies, 4) the heroinization (saturation with heroin) of the drug market, 5) an extremely conservative position of the state drug service, 6) the commercialization of narcology, and 7) the ideologizing of anti-drug policy. First, criminal and legal measures are generally used by the State to influence the drug situation in Russia. As such, the management of drug policy wholly relies on political bodies such as the State Committee for Control Over the Use of Drugs and Psychotropic Substances, which is a department that has been operational since July 1, 2003, and that has been granted virtual ministry status. The result of the States focus on criminalization is that priority is given to financing anti-drug law enforcement activities rather than treatment service facilities and preventive measures. Second, because punitive polices generally have a simulative nature (i.e. going under the false pretense of drug control through cutting off the supply of illegal drugs), the implementation of preventive measures against illegal drug dealing tend to be focused solely on drug users, rather than drug dealers. This approach is facilitated by the statistical priorities of the Ministry of Internal Affairs and other bodies that are responsible for crime detection. Existing legislation and the practices that follow from it promote a police and investigative strategy based on meeting arrest quotas rather than other factors, such as the quantity or price of drugs on the street. A third characteristic that shapes drug policy is the corruption that permeates drug crime detection bodies. The Militia, or police, completely dominates the drug scene in Russia. Corruption and police involvement in the drug market is so pervasive that Mr. Vladimir Doroshkov, the Judge of the Supreme Court, stated during a round-table meeting that took place on December 9, 2002 at the

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State Duma, that it is primarily the officials in charge of drug dealing detection (or the Militia) divisions that dominate the list of disclosed large drug dealers. At the same time, the actual number of large players in the drug business that appear before court is extremely small. Annually, tens of thousands of people are charged with very large-scale drug dealing, but these statistics are misleading. Small-scale salesmen and dealers, as well as drug users in possession of only one or several doses, are classified as “large scale.” Additionally, police systematically take part in planting drugs. By manipulating a huge army of drug users, police easily reach arrest quotas and at the same time secure a stable income from all links of the drug dealing chain. Given the amount of corruption, enforcement-based efforts against drug distribution often turn out to be inefficient. Fourth, the Russian drug market has undergone a sort of heroinization over the past few years. Cannabis and its derivatives are being pushed out of the drug market, which is increasingly saturated with opiates. In big cities the price for heroin is dropping. In spite of the continuing replenishment of cities with heroin, in Moscow, for instance, seizures of heroin by the militia has not increased substantially. By contrast, however, in 2002, there was a 70 percent increase of marijuana discovered in the capital than the previous year. The heroin business generates a larger and more stable income for dealers than cannabis due to the smaller expenditures and smaller deliveries. Furthermore, heroin users become more dependent than marijuana users on the “donors” and on the militia, and provide more repeat business. A fifth characteristic is the extremely conservative position of the state drug service. State narcology (drug treatment) is repressive institution routinely ignoring patients’ rights. Additionally, top Russian narcologists are generally hostile toward progressive methods of treatment and rehabilitation. For example, although the majority of state health services support harm reduction programs (excluding substitution treatment), official narcologists are still mostly negative about them. The official Russian position on substitution treatment is represented by the opinion of Dr. Eduard Babayan, the chairman of

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 55 the Permanent Committee for Drug Control. “We have consistently underscored the problems in the approach of the international community, which with the blessing of the W.H.O. has agreed to implement methadone programs,” writes Dr. Babayan. “These are equivalent to opiate rationing and, like that approach, substitute one drug for another and so cannot be considered bonafide treatment. This distinction has been recorded in the documents of the [UN’s] Commission on Narcotic Drugs, with reference to statements we made there.” Resolute rejection of replacement treatment is illustrated by the inclusion of methadone on List I of Substances Prohibited for Use in the Russian Federation (the list was approved by Resolution No. 681 of the Russian Government June 30, 1998). Furthermore, the regular public appearances of Mr. Nadezhdin, the Chief Youth Narcologist of Russia, in which he demands capital punishment for drug distribution, reflect the dominant mood of the official elite of Russian narcologists. Sixth, the commercialization of narcology restricts the availability as well as the content of drug services. In the majority of cases, freeof-charge narcological assistance is only rendered to users who are suffering from withdrawal or feeling symptoms from abstaining from use. The Federal Law on Drugs and Psychotropic Substances bans private (non-state) medical institutions from treating drug-addicted patients. Private drug clinics may be issued a license only for rendering rehabilitation services. Meanwhile, based on the available data, only 3 percent of patients are observed to have a 6-month remission after completing the treatment course at the state drug hospitals. The last characteristic to shape drug policy is the ideologizing of anti-drug policy. The fear of drugs is exploited in order to produce anti-liberal moods in the public. In turn, anti-liberal (chauvinistic, anti-capitalistic/anti-western, anti-migration) moods fuel anti-drug hysteria. The adverse social and economic situation in Russia means that approximately 30 percent of the country’s population lives below the poverty line; higher education is mostly paid by students; youth unemployment is rising and popular sports are no longer accessible. Drug users are marginalized from society, criminalized, and offer no

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alternative measures either by the state or society. As a result of this poor economic situation and marginalization, drug users lack the motivation to undertake drug addiction treatment or other preventions, which leads to an ever-more favorable environment for spreading HIV infection.

Legal Regulations on Drugs Drug policy in Russia is regulated by two major legislations, the Federal Law on Drugs and Psychotropic Substances, passed on January 8, 1998 and the Penal Code of the Russian Federation, which came into effect on January 1, 1997. According to the Law on Drugs and Psychotropic Substances, the medical use of methadone (included on List I approved by the government) and buprenorphine (included on List II) is forbidden for the treatment of drug addiction. Furthermore, Article 46 of the law stipulates that the “propaganda of drugs, psychotropic substances and their raw materials, i.e., activities of natural persons or legal entities directed towards dissemination of information on the means and methods of drug development, production and use, about locations of acquisition of drugs and psychotropic substances and their raw materials, as well as the production and dissemination of information by means of printed books, mass media, or by using computer networks, or undertaking of any other actions for the above purpose, is forbidden.” Further proclaimed is the prohibition of propaganda on “any advantages of use of any individual drugs, psychotropic substances and their analogues or raw materials,” as well as the prohibition of “propaganda on promotion of drugs and psychotropic substances suppressing the human will or negatively affecting mental or physical condition for medical purposes.” The Law of the Russian Federation on Mass Media (according to its June 20, 2000 version) reinstated these provisions. The above listed regulations directly relate to the activities carried out under harm reduction programs in that programs are extremely limited in the information they can give out and the information they can provide. For example, one harm reduction strategy is to provide IDUs with information on how to inject safely

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 57 as not to cause an abscess or transmit HIV. Under the Federal Law on Drugs and Psychotropic Substances these types of activities would be prohibited. The determination of a drugs ‘scope’ is one of the key tasks of the Russian Criminal Law. They work through the vagueness of the criteria and determine the ‘scope’ of drugs uncovered in illegal turnovers. When ascribing a ‘scope’ to illegal substances, either largescale or extra large-scale, law enforcement bodies and courts follow the Summary Table of Conclusions provided by the Permanent Committee on Drug Control. This table is a document of credence issued by the scientific-consultancy body which competence does not cover adoption of standard acts. Neither the Permanent Committee nor the Summary table are officially registered, as foreseen by in-force regulations in the Ministry of Justice of the Russian Federation. The table is not officially published anywhere. However, this table is constantly applied in the course of investigation and by the court, while trying unexceptionally all criminal cases (annually, this makes up hundreds of thousands cases). While allowing to exceptions from the criminal code for acquisition and storage of small amounts of drug substances without intent to sale, under the rates adopted in 1997, the authors of the table proposed to consider 0,1 gram of marijuana to be a large amount and 0,005 gram of heroin an extra large amount [in effect making the exemption meaningless]. Thus, if applied in practice, the same liability—from 7 to 15 years of deprivation of liberty (Article 228, the Criminal Code)—is inflicted upon for either 0,005 gram, or 100 kilograms of heroin. As a consequence of this, individuals who have bought, kept, or pushed a hundredth of a gram are massively called accountable, whereas, major providers and dealers often remain out of sight of the militia and other services, as it has been already mentioned above.

Preliminary Conclusions Effective development of harm reduction projects under existing legal and political conditions poses certain problems. For example, drug users, who already interact with militia and are not afraid of persecu-

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tion and may, and often times do, become clients of needle/syringe exchange programs. Having people acquainted with the police in and around such facilities leads to profanation of the very idea of harm reduction. Conditions necessary for the introduction of new drug policy cannot be arranged without the initiation of legal reforms (especially the liberalization of health care legislation and the reduction of punitive criminal laws). At the same time, acknowledging the need for legal revisions and discussions of associated legal problems might already be considered the beginning of drug policy renovation. Formation of a favorable climate is indispensable for promotion of new drug policy ideas, of which harm reduction constitutes a substantial element. For this purpose, it is crucial to build up an inter-group and intersectoral coordination. Collaborations need to form between harm reduction projects and non-governmental human rights’ centers, which call for imparting the problem social and political weight, well as between “the third sector” organizations (harm reduction programs and human rights’ unions) and authoritative bodies. The latter is especially essential for the situation in Russia, since it is a rather small number of decision-makers upon whom public influence on specified issues needs to be directed. This includes targeted work both with federal and regional leaders. The last is especially important, as successful promotion of joint initiatives, organized by harm reduction programs and human rights unions in the provinces, is conducive to the “critical mass” necessary for a discussion of the problem on a national level.

*Lev Levinson is a member of the Human Rights Institute, Moscow

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 59

DEBATE QUESTIONS

?

1. How does Levinson’s Russian case study relate to the two opposing arguments made by Nadelmann and Voth/ Levitsky? 2. Which approach to drug policy seems more appropriate for the Russian situation? 3. How have social, economic, and legal factors impacted harmreduction programs in Russia?

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❖

The Role and Impact of Law and Enforcement in Reducing the Harms of IDU and HIV/AIDS by Hans-Jörg Albrecht*

1. Introduction The role and impact of law and enforcement in reducing the risk of intravenous drug use and HIV respectively AIDS (and other transmittable diseases) are not easily identified. This is explained by the difficulties that are encountered when attempting to study effects of law and law enforcement. Research on impact and effects of law and law enforcement is made difficult as causal relationships between prove to be difficult to be tested. This again is a consequence of the problems in implementing experiments randomizing groups subject to different settings of law and law enforcement as well as different legal policies; moreover problems stem from the generally very complex questions that are put forward with asking for causal links between law, law enforcement and various policy goals. This is why comparative research certainly has played and still plays a major role in assessing effects of differences in law and law enforcement.

2. Assumptions on Causal Links between Law, Law Enforcement, IDU and HIV/AIDS A first step in the process of answering the question of what role and function law and law enforcement can actually play for the containment or acceleration of the spread of HIV, the development of AIDS and other problems evidently linked to intravenous drug use certainly

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 61 must be to identify the various types of policies that have been discussed in previous decades. The major difference we can see so far between countries certainly refers to the acceptance and implementation of harm reduction policies which in most countries have been an attempt to reduce threats associated with HIV and its spread. Harm reduction policies are linked with law and law enforcement policies as it is first of all the legal framework that is decisive on whether particular harm reduction policies can at all be created and implemented. Drugs laws in general have always included either criminal offence statutes which in principle can affect harm reduction policies in terms of criminalizing harm reduction related behaviour (eg. providing for or criminal offence statute that explicitly threaten criminal punishment for behaviour (eg. distribution or possession of syringes) that on the one hand can be evaluated as risk reducing (as availability of clean syringes certainly reduces the risk of transmission of HIV through used syringes or needles), but on the other hand from the viewpoint of drug use can also be labelled as risk increasing (as availability of syringes evidently provides the means for intravenous drug use). The legal framework thus provides also for important sources of conflicts which are rooted in differences between general models of behaviour control which policy and decision-making in criminal justice agencies on the one hand and in administrative agencies on the other hand. Basically, with respect to drug policies two models of control have to be reconciled. These models concern the zero-sum game underlying the criminal justice approach to control behaviour and the models based upon bargaining, discretion, persuasion etc. prevailing e.g. in the health or general administrative system. Research from other policy fields underlines the problems which must be faced when trying to integrate those competing models of control1. The main consequence of this type of policy was a hegemonial status of the criminal law element within drug policies. Criminal law serves to define the limits of other approaches to drug problems as criminal drug offence statutes at any point may be invoked in order to evaluate any action taken with respect to drugs. This is most significantly expressed in those criminal statutes which define criminal prescription of drugs through physicians or criminal distribution

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through pharmacies as well as the ‘catch all’ offence statute of facilitating or supporting use of illicit drugs. These type of offence statutes are used strategically in conflicts on the general course drug policies should take2. However, with switching the focus on harm-reduction such ‘catch-all’ statutes have been limited in their range of application significantly when at the end of the eighties and at the beginning of the nineties in many jurisdictions needle exchange programmes and drug use shelters have found a statutory basis with exempting them from the threat of criminal punishment. Another possible causal link between law enforcement and IDU as well as HIV linked problems could be established through aggressive forms of law enforcement if such aggressive styles of law enforcement are pushing drug users towards risky drug using behaviour. This has been assumed to be the case with specific law and specific offence statutes on drug use. Emphasis laid on the supply side is justified with assumptions on reducing availability of drugs, keeping the prices of drugs at a high level and discouraging potential drug traffickers to supply drugs. On the other hand, the policy addressing the drug user and the demand side of the market displays ambivalent attitudes towards drug use and addiction3. Although the German criminal justice system is bound to the principle that self-injuries or mere immoral behaviour should not be made criminal offences, i.e. consumption of illegal drugs is no punishable offence, there are some signs that drug users might be made again an explicit target of criminal law. As behaviour which must be seen to represent a prerequisite for drug consumption, e.g. possession or purchase of drugs are punishable offences, it is clear that criminal drug law is basically extended to the addict and to the drug abusing individual. But, new (punitive) concern for the drug user is expressed in voices arguing that drugs are dangerous only because there are people who are willing to use drugs. This argument suggests that black markets depend on demand and those who are active in keeping black markets running by expressing demand therefore should be made the targets of criminal law enforcement in order to reduce the supply of drugs by reducing the demand. This position was expressed in a proposal to provide for a two year detention period in case of mere illicit drug us (independent of the

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 63 type of drug consumed)4. Insofar, Sweden, France, Switzerland, the US have introduced legislation which makes use of drugs a crime and which provides criminal penalties (and enforced treatment) for drug users. Drug law enforcement then may be driven by concerns for disrupting local drug markets and with such (aggressive) law enforcement styles stress is produced which not only may prevent that drugs are purchased and used but may also contribute to increase the risks involved in patterns of drug use that emerge as response to disruptive law enforcement. The role and the impact of law and law enforcement in reducing the harms of IDU and HIV/AIDS therefore are dependent on how law and law enforcement are linked with drug use on the one hand and intravenous drug use related risks on the other hand.

3. Comparative and Longitudinal Research: The Role of Restrictive and Liberal Drug Law Enforcement Evaluation research has focussed on comparisons between countries with restrictive and countries with liberal law enforcement policies assuming that policies aimed at restricting drug use by way of tough law enforcement will go hand in hand with higher level of HIV prevalence. The basic approach used in testing this assumption refers to comparative research as outlined above. Another type of research concerns longitudinal studies that follow up HIV transmission patterns over a certain period of time while assessing changes in policies and changes in the legal framework as well as in law enforcement patterns. A third type of research can be found in (controlled) experiments with changing the legal regimes by way of allowing unrisky access to either controlled substances or to ways of administering controlled and illegal drugs in a way that minimizes or reduces risks. Comparative research seeks to identify on the one hand countries with restrictive or tough drug laws and law enforcement styles and on the other hand groups such countries around prevalence rates of HIV (with HIV transmitted through drug related behaviour). There are

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several intriguing problems with this attempt as first of all the type of law enforcement actually implemented must be established (which is certainly different from the “law in the books”)5 and second HIV (or other diseases) transmission must be ascertained to result from needle sharing or other drug related risk behaviour (e.g. prostitution). Such designs have been used in Europe where differences in drug laws and differences in law enforcement patterns allow for assessments in terms of comparative as well as longitudinal research. Although, evaluation research is always comparative most evaluation research and in particular studies that seek to summarize existing knowledge on implementation and outcomes of drug policies and drug problem related measures are traditional summaries of the state of the art6. Such studies have been carried through rather often in the attempt to come to conclusions with respect to prevention of the spread of HIV among iv drug users, the outcomes of maintenance programmes, needle exchange approaches and harm reduction policies at large7, heroin distribution8 as well as non-prosecution policies. However, this approach to summarize and systemize research, most elaborately done in theory based meta-analysis, is ultimately not taking into account the specific cultural, legal and social framework or environment within which the studies summarized have been implemented. A series of comparative studies have been carried through under the auspices of UNICRI Rome which have been published in the 70s and 80s. These studies have focused on “Investigating Drug Abuse” (1976)9, on “Combating Drug Abuse and Related Crime” (1984)10, and on “Drugs and Punishment” (1988)11. The 1976 study on drug abuse in various countries in fact is based on what is called “countries studies”. This type of approach was justified by pointing to the great variation among various countries as far as quality and quantity of data available are concerned. It was mentioned that it would not be feasible to go at the very beginning into a pre-designed effort to compare drug abuse as the differences observed in official data bases seemed to be too large. This argument obviously refers to the system boundness of important variables. Comparing these different “country studies” and drawing conclusions from such comparisons let the

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 65 authors argue that the cross-cultural perspective conveys a “shallow and distorted picture”. In fact, the study is not a comparative one, but rather presents various individual “cases” that are lined up and are then evaluated case after case. In the 1984 study the aim was to bring light into the relationship between the severity or harshness of penal sanctions and the levels of drug related crimes experienced in various countries. With the study outlined it was undoubtedly difficult if not completely impossible to compare various systems. Again, the specific problem of international comparative research is touched but no conclusions were drawn from describing the problem of comparing different systems on the basis of data bases linked to these different systems. Therefore, it was thought to reduce the dimensions which should be included into the study by focussing on the “harshness” of the systems, on the “seriousness” of addiction, as well as on a choice of criminal offences thought to represent the most important crimes (homicide, rape, robbery, fraud, bodily injury and various types of property offences). Harshness and seriousness were scaled on the basis of various items (which were drawn in the case of harshness from the penalty levels provided by penal laws). Fictious cases were used in order to obtain comparable data (responses of the system) on sentencing the drug offender. This type of study again is not comparative, although the restrictions and the choice of variables are obviously made in order to establish equivalence between the research units. But why the categories introduced should be regarded to be equivalent is not explained. The policy implications concluded from the findings pointed essentially to the following: Penal sanctions are associated with increased levels of drug related crimes. The 1988 study aimed at providing an up-to-date picture of penal provisions for drug related offences and on trends in sentencing the drug offender. Insofar, only legislation on drugs is compared in terms of contrasting the legal framework without the attempt to relate the framework to possible policy outcomes. However, information on sentencing (and that is implementation of drug laws) was received only for a selection of the countries covered by the study. Most countries that have been included in the analysis could not provide statis-

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tical information broken down by the type of offence, offenders, types of drugs etc. Results of this research therefore are restricted to an outline of trends in the development of both basic and procedural laws. From 1983 on a multi-city study on drug abuse has been implemented by the Pompidou- group. This multi-city study is based on a comparative design including various indicators on drug abuse. A first report was published in 1987 and a follow up report in 199412. The multi-city study of drug abuse is somewhat more elaborated in terms of comparative methodology as the indicators used in the study are based upon standardised instruments on the one hand and on various approaches to the concept of drug abuse on the other hand. Here, it is acknowledged, too, that it is difficult to make valid and meaningful comparisons between countries and cities13 as most of the data collected and used in the analysis are patterned along historical, administrative and other lines varying between the countries which in turn are difficult to assess and to control. The problem of historically, culturally and nationally patterned data and behaviour then is addressed as a problem of interpretation of data which was thought to be dealt best with by research staff familiar with the cities included in the comparative survey. In this way, the data collected on the basis of an uniform and standardised instrument are interpreted in a qualitative setting provided by researchers familiar with the respective city and capable to use additional—though not collected—information coming from other sources. In so far, the particular context of the data collected is accounted for by a more or less qualitative approach intertwining specific knowledge and specific information on cities with quantitative, uniform data collection procedures applied to the range of cities included in the research. Another key element in the process of comparing the data concerns explicity in data collection procedures and in the definitions used in framing basic indicators and in setting up variables. Here also the annual reports from the EMCDDA on the State of the Drugs Problem in the European Union have to be mentioned. Based on quantitative data, collected via a—as much as possible— standardized method, these reports try to give a qualitative insight into questions as the prevalence of drug use in countries of the Euro-

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 67 pean Union, the trends over time, new emerging patterns of drug use, supply and availability of different drugs14. A 1989 study on “European drug policies” summarises the existing knowledge and expert perceptions on the state of drug policies in European countries15. The focus here was on discovering trends in the development of drug policies and drug legislation (including both the basic law as well as the procedural law). Moreover, an extension was made in so far as normative trends in terms of legal debates and discourses on national drug policies have been included besides mere empirical data and information on implementation of drug laws and the magnitude of drug problems. A somewhat similar follow up was then done in a small scale overview on drug policies in Europe in 1990 that originated from Switzerland. During the nineties the pace at which European research developed increased significantly, in particular initiated through the European Drug Monitoring Center. So, eg. a study on the evolution of repressive and medical systems of control of drugs in European countries includes France, The Netherlands, Switzerland, Italy, Great Britain16. However, from the viewpoint of the comparative method the goals of this study are explicitly limited to the exchange and discussion of information. Reuband (1992) compared drug policies and their outcomes in Germany and in the Netherlands in the attempt to arrive at valid conclusions on the correlation between formation and implementation of drug policies and various indicators used in describing the magnitude of the drug problem as well as achievements of drug policy goals17. The study by Reuband is by far the most elaborated as regards the use of various indicators of prevalence and incidence of drug problems. Moreover, the study reconstructs thoroughly German and Dutch drug policies and actual implementation of drug policies establishing thus a framework within which drug problem indicators may be interpreted. Comparative research then has dealt with the drug situation in Scandinavian countries recently18. With this study policy aspects as well as drug use prevalence and incidence have been covered, although no attempt was made to evaluate the various and differing Scandinavian drug policies. The main objective obviously has been

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to describe major elements of national drug policies as well as prevalence and incidence of drug use in order to contrast descriptions of drug policies and drug problems identified in four Scandinavian countries with each other. Such descriptions then are used to elaborate similarities and differences although the approach cannot be used to test hypotheses on causal relationships between drug policy and outcome measures such as prevalence as well as incidence of drug use. However, this type of approach certainly is promising as it allows a deeper understanding of how drug policies developed in single countries and where differences come up. A similar, though wider, comparative study has been done by Reuband on the basis of prevalence figures on drug use as well as other drug related empirical information. The conclusion drawn from comparing survey data for various European countries was that “different policies might go with similar levels of prevalence and similar policies might go with different levels of prevalence”19. The very same conclusion is drawn for heroin use and the number of addicts20. An effort to compare Northamerican and European drug policies and their outcomes are documented in Reuter/Falco/MacCoun 199321. The intent of this effort was to compare drug problems and drug policies across Western Europe and North America along various dimensions and indicators. It was concluded that although in political debates in North America quite often references are made to European drug policies only very little information was actually available on the nature and outcomes of drug policies in different countries. The authors point towards the differences in the availability of drug use surveys and the problems arising out of such differences. However, they describe on the basis of available information the heroin waves that have affected both North American and Europe between the sixties and early eighties and point towards different experiences with cocaine and crack. Estimates of drug addicts and estimates of drug related deaths are obviously not correlated strongly. Finally, implementation of drug policies is considered. It is concluded that despite rather uniform wording of the law rather marked differences exists as regards implementation in terms of drug arrests, sentencing and other elements (eg. drug testing). It is concluded then

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 69 that beyond the consensus on the importance of prosecuting and punishing drug supply disagreement on goals prevails between the US and Europe. In Europe, it is argued that despite considerable differences in the rethoric on drug policies less differences exist with respect to practical policies where it is suggested that throughout Europe the highest priority is given to harm reduction22. The results are less conclusive as regards comparative issues. However, it is concluded that “far too little exchange of information . . . across the Atlantic as well as within Europe” has been taken place until now23. In 1996 a study was published that focussed on identifying policy models in the drug field across Europe24. The aim was to present various drug policy models from a comparative perspective and to develop a typology of drug policies. However, the final goal is not very clear. It is argued that with developing typologies of drug policies classification of a specific drug policy or theory would be possible and that such typologies could serve as a (empirical) point of departure for the development of drug policy “scenarios”. Moreover, such typologies should serve also as a basis for decision-making in the drug field25. It is by no means clear how these goals should be achieved as the authors state also that the comparative study does not attempt evaluation of the different drug policy models identified. However, with reducing the goals in this way not more than description actually is sought in terms of collecting information on various elements of drug policies across borders. The cities included concern Frankfurt, Göteborg, Lyon, Modena, Rotterdam as well as the canton Wallis (Switzerland). In addressing the economic, cultural and social context coming up with these cities it is argued that all of these areas were located in the same (western-european) culture and exhibited similar economic conditions. That—it was concluded—would suffice to compare the drug policies implemented in the cities covered by the study. Moreover, the mere appeal to the European culture and similar economic conditions (though not spelled out) then is said to justify classification of the study as being based on a “most similar research design”. The results, essentially based on content analysis of newspapers, interviews of key persons, review of documents and legal material, visits to project sites, leads to the presentation of three basic

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models of drug policies: the harm-reduction model, the therapy model and finally the control model26. A series of articles covered general topics such as basic control models in the field of illicit drugs27. With this obviously “ideal types” of drug control models should be traced with identifying their basic elements. The problem of this type of analysis concerns the apparent lack of empirical data. What is produced is a somewhat weak association between drug and drug problem indicators on the one hand and the existence of certain control models among a range of countries on the other hand. The WHO has carried through several comparative surveys on legislation focussing on drug and alcohol abuse treatment. The comparative methodology used is based upon an approach seeking to be sensitive towards historical backgrounds, the meaning of the wording of the law and the identification of trends in the discourse on drug policy as well as implementation of drug laws. The sources used concern the complete texts of national legislation as published by the United Nations division of narcotic drugs, complete texts of legislation and summaries of such texts published in the international digest of health legislation, personal communications from professionals in the country surveyed and the United Nations and national governments legislative document depositories. A comprehensive analysis of the comparative development of alcohol policies and their interactions with alcohol problems was published in 1981 by Mäkelä et al28. Here, a macro approach was used in getting insight into the social, economic, cultural and historical context within which alcohol policies developed in those countries included in the survey and within which alcohol indicators (with respect to production, consumption, alcohol related problems etc.) then are interpreted. The advantage of this approach in international comparative alcohol research lies in the fact that alcohol control as well as alcohol problems and alcohol related behaviour actually are historically, culturally and nationally patterned social phenomenon and that the approach used is well suited to account for such patterns. What was done was the creation of a meta-level of data analysis and interpretation of data for each country on which the alcohol

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 71 control as well as alcohol problem stories for each of the countries then could be reconstructed. These “stories” finally have been compared to each other on still another meta-level of analysis. The development of drug policies may be reconstructed very much the same way as was done with alcohol policies29. However, the results drawn from this type of research certainly seems to be limited. It has been stated that there is a main tendency which points to the non existence of a clear and consistent pattern between laws and enforcement on the one hand and drug use prevalence as well as the prevalence of HIV and IDU problems. Southern Europe eg, with long periods of liberal or non aggressive law enforcement towards the drug user have evidently rather high prevalence rates of intravenous drug use as well as of HIV. Sweden and Holland which in the eighties and nineties certainly represent the extreme poles of drug policies in Europe come up with similar rates of intravenous drug use as well as drug related HIV and AIDS figures30. Reuband came up with similar figures and concluded that the rate of drug using young people as well as the incidence of drug problems obviously are not dependent on the type of drug policy adopted in a country31. Drug use and drug problems are dependent on other variables than those usually considered in official drug policies. Research shows also that demand for drugs and drug use are not dependent on variation in criminal drug laws nor on variation in drug law enforcement32. Drug use is best explained by the strength of association with peers who use drugs. Drugs waves such as the cannabis wave in the sixties and the heroin epidemic in the seventies obviously have been driven by the emergence of youth cultures as is the case with the increase in the use of amphetamines and ecstasy in the nineties. Research has then focussed on attempts to reduce the spread of HIV and related problems in prisons where intravenous drugs use persists as a problem and lack of syringes and needles evidently leads since the eighties as a consequence of increasing numbers of drug users serving prison sentences to the fear that prisons may become breeding grounds for all sorts of problems associated with intravenous drug use. In fact prison experiences obviously are besides prostitution and the duration of intravenous drug use the best predictor of a HIV

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infection33. Insofar, law and law enforcement will play a role with sentencing patterns keeping either drug addicts out of prison or sending them in and, furthermore with the organization of the prison environment in terms of providing access to low risk intravenous drug use (or providing for a completely sealed prison environment which evidently is not feasible). Evaluation research in this area certainly is limited. However, analysis of research outcomes show that HIV prevention can be implemented through providing needle exchange and HIV related advise in prison settings34. The WHO has so far produced guidelines for policies and legal frameworks in prison settings which demand for advise, methadone maintenance and needle exchange programmes as made available for drug users outside prisons35. The effect of legal access to medically prescribed methadone or heroin on HIV/AIDS or other diseases associated with intravenous drug use has been made a target of evaluation research in methadone and heroin maintenance programmes. Research results have demonstrated that there are significant though not big changes in the health status of heroin injecting drug users provided with legal methadone or heroin36. It is obvious that HIV spread can also be slowed down in maintenance programmes. However, it is not clear— because of problems of implementing randomized experimental designs—whether such outcomes are in fact causally linked to heroin or methadone maintenance or to the programme at large which include generally a whole range of interventions aimed at lowering the risks associated with needle sharing etc.

4. Conclusions It is not easy to draw conclusions on the basis of results so far available on the role and impact of law and law enforcement on problems associated with intravenous drug use, in particular HIV related problems. Results seem in general to underline that repressive and restrictive drug policies based on criminal law enforcement further general conditions of intravenous drug use that are evidently linked to higher risks of HIV as well as other problems. Prison environments as well as

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 73 drug scenes and local drug economies where prostitution plays a significant role in generating funds to obtain drugs certainly play a significant role in the spread of HIV and drug use related problems. Insofar, law and law enforcement should be headed towards strategies which reduce such risks. In particular, intravenous drug users should be kept out of prison (on the basis of sentencing laws that allow for such diversion). It is certain that neither data on the spread of HIV nor on the prevalence and incidence of risky intravenous drug use are available as to reliably estimate the size of correlations or the relative strength of causal contributions of law and law enforcement on HIV etc. Comparative research could play a significant role here, however, comparative research designs are difficult to implement and until now generated knowledge that supports the view that in general other variables than law and law enforcement are relevant in explaining the major patterns of drug use (including intravenous drug use) as well as the major patterns of drug use related health problems. Moreover, qualitative research could contribute to the available knowledge on the effects of law and law enforcement on drug and drug problem related behaviour of drug users. What can be concluded safely on the other hand concerns that law and law enforcement should allow for experiments and preclude that criminal law adopts a hegimonial position and with that creates obstacles in implementing a drug policy based on information producing experiments and change37.

REFERENCES 1. See Albrecht, H.-J., Leppä, S. (Eds.): Criminal Law and the Environment. HEUNI: Helsinki 1992 2. See Körner, H.H.: Das Betäubungsmittelgesetz - ein gesetzgeberischer Flickenteppich. Strafverteidiger 1994, pp. 514–519, p. 519 3. Albrecht, H.-J.: Addiction, Intoxication, Criminal Law and Criminal Justice: An Introduction. In: European Addiction Research: Special Topic Section: Addiction and the Law. Guest Ed. H.-J. Albrecht. Karger, Basel u.a. 1998, 85–88. 4. Katholnigg, O.: Ist die Entkriminalisierung von Betäubungsmittelkonsumenten mit scharfen Maßnahmen zur Eindämmung der Betäubungsmittelnachfrage vereinbar? Goltdammers Archiv für

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Strafrecht 137(1990), pp.193–200. 5. See eg. Ferret, J.: L´ Autre Europe des Drogues. Politiques des Drogues Dans Cinq Pays d´Europe. Espagne, Portugal, Hongrie, Pologne et Bulgarie. La Documentation Française: Paris 2000. 6. For an overview see MacCoun, R., Reuter, P.: Interpreting Dutch Cannabis Policy: Reasoning by Analogy in the Legalization Debate. Science 278(1997), pp. 47–52. 7. Nadelmann, E., McNeely, J., Drucker, E.: International Perspectives. In: Lowinson, J.H. et al. (Eds.): Substance Abuse. A Comprehensive Textbook. 3rd Ed., Baltimore 1997, pp. 22–39. 8. Krausz, M., Uchtenhagen, A., van den Brink, W.: Medizinisch indizierte Heroinverschreibung in der Behandlung Drogenabhängiger. Klinische Versuche und Stand der Forschung in Europa. Sucht 45(1999), pp. 171–186. 9. Moore, J.J.: Investigating Drug Abuse. A Multi-National Programme of Pilot Studies into the Non-medical Use of Drugs. Rome 1976. 10. Bruno, F.: Combatting Drug Abuse and Related Crime. Comparative Research on the Effectiveness of Socio-Legal Preventive and Control Measures in Different Countries on the Interaction Between Criminal Behavior and Drug Abuse. Rome 1984. 11. Cotic, D.: Drugs and Punishment. An up-to-date interregional survey on drug-related offences. Rome 1988. 12. Pompidou-Group: Multi-city study: Drug Misuse trends in thirteen European cities. Strasbourg 1994. 13. Pompidou-Group: Opus cited, 1994, p. 3. 14. EMCDDA: opus cited, 1998, p. 10. 15. Albrecht, H.-J., van Kalmthout, A..: European Drug Policies. Freiburg 1989. 16. Cesoni, M.L.: Usage de Stupéfiants. Politiques Européennes. Genève 1996. 17. Reuband, K.-H.: Drogenkonsum und Drogenpolitik. Deutschland und die Niederlande im Vergleich. Opladen 1992. 18. Hakkarainen, P., Laursen, L., Tigerstedt, Ch.(Eds.): Discussing Drugs and Control Policy. Comparative Studies on Four Nordic Countries. NAD Publication No. 31, Helsinki 1996. 19. Reuband, K.-H.: Drug Use and Drug Policy in Western Europe. Epidemiological Findings in a Comparative Perspective. European Addiction Research 1995, pp. 32–41, p. 36. 20. Reuband, K.-H.: opus cited, 1995, p. 38. 21. Reuter, P., Falco, M., MacCoun, R.: Comparing Western European and North American Drug Policies. An International Conference Report. RAND, Santa Monica 1993. 22. Reuter, P. et al.: opus cited 1993, p. 24. 23. Reuter, P. et al.: opus cited 1993, p. 27. 24. Cattacin, S., Lucas, B., Vetter, S.: Drogenpolitische Modelle in Europa. Eine vergleichende Analyse sechs europäischer Realitäten. Zürich 1996.

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 75 25. Cattacin, S. et al.: opus cited 1996, p. 18. 26. Cattacin, S. et al.: opus cited 1996, pp. 218–219, pp. 221–224. 27. See eg. Kaiser, G.: Präventionsmodelle des Betäubungsmittelrechts im internationalen Strafrechtsvergleich. In: Institute of Comparative Law (Ed.): Law in East and West. Waseda University Press: Tokyo 1988, pp. 911–925. 28. Mäkelä, K. et al: Alcohol, Society, and the State: A Comparative Study of Alcohol Control. Toronto 1981; see also Davies, P., Walsh, D.: Alcohol Problems and Alcohol Control in Europe. London, New York 1983. 29. See eg. Eisner, M.: Determinants de la Politique Suisse en Matiere de Drogue. L´ exemple du Programme de Prescription d´ Heroine. Deviance et Societe 23(1999), pp. 189–204. 30. Waal, H.: Drug Use Policies and HIV Prevention – Unhappy Bedfellows? In: Waal, H. (Ed.): Patterns on the European drug scene. An exploratory of differences. Report based on a COST A6 project. National Institute for Alcohol and Drug Research, Oslo 1998, pp. 211–218. 31. Reuband, K.-H.: Drug Use and Drug Policy in Western Europe. European Addiction Research Journal 1(1995), pp. 32–41. 32. Reuband, K.-H.: Drug Policies and Drug Prevalence. European Journal on Criminal Policy and Research 6(1998), pp. 321–333. 33. Pant, A., Kleiber, D.: HIV und AIDS bei iv Drogenkonsumenten. In: Kreuzer, A. (Ed.): Handbuch des Betäubungsmittelstrafrechts. Beck, München 1998, pp. 489–522, p. 520. 34. Uchtenhagen, A.: HIV Prevention in Prison. In: Waal, H. (Ed.): Patterns on the European drug scene. An exploratory of differences. Report based on a COST A6 project. National Institute for Alcohol and Drug Research, Oslo 1998, pp. 219–224. 35. WHO: Global Programme on AIDS. WHO Guidelines on HIV Infection and AIDS in Prison. WHO:Geneva 1993. 36. Uchtenhagen, A. et al.: Betäubungsmittelverschreibung an Heroinabhängige. Wichtigste Resultate der Schweizerischen Kohortenstudie. Karger: Basel 2000; Krausz, M., Uchtenhagen, A., van den Brink, W.: Medizinisch indizierte Heroinverschreibung in der Behandlung Drogenabhängiger. Klinische Versuche und Stand der Forschung in Europa. Sucht 45(1999), pp. 171–186. 37. See Rehm, J., Fischer, B.: Von kontrollierten klinischen Studien zu einer Gestaltung des Behandlungssystems für Suchtkranke. Sucht 48(2002), pp. 310–311; the article describes very clearly the importance of a legal framework which allows for permanent experimentation in order to develop information led drug policies. *Hans-Jörg Albrecht is the director of the Max-Planck-Institute for Foreign and International Criminal Law, Freiburg, Germany. He is involved in comparative legal and empirical research. His main interests concern drug policies, juvenile justice, systems of criminal sanctions, and sentencing.

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Health Canada. Proceedings Report, 2nd International Policy Dialogue on HIV/AIDS. HIV/AIDS and Injecting Drug Use-And-The Question of Complacency. Warsaw, November 12–14, 2003 Reprinted by permission.

DEBATE QUESTIONS

?

1. How does the law define approaches to drug problems? 2. What are the links Albrecht finds between law enforcement and the spread of HIV among injecting drug users. 3. Does Albrecht think that a constructive interaction between law enforcement and drug-user communities is possible? Explain.

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HR2—Harm Reduction and Human Rights by Robert Newman*

Introduction In considering the individual and societal problems associated with the use of illicit drugs, harm reduction and human rights initiatives share far more than simply their first initials. Rather, one can describe their relationship as analogous to the tracks of a railroad: both are headed in the same direction, each is indispensable for progress to be made, but neither—on its own—is sufficient to reach the desired destination. To put it more forcefully and directly: If drug users are the focus of one’s efforts, it will be impossible to achieve even the most limited human rights objectives without concomitantly advancing the cause of harm reduction—and vice versa. The good news is that by conscientiously and persistently attacking the hurdles that exist, we know from experience in diverse parts of the world that major strides can be made in both causes, and the beneficiaries are not just the users and their immediate families and loved ones, but all of society.

Basic Concepts—and Misconceptions In an area as complex as addiction, it is essential at the outset to recognize—and dispel—certain fundamental misconceptions. Thus, it is commonly (but erroneously) assumed that those who use illicit drugs are motivated primarily by hedonism—i.e., the desire to experience euphoria. In fact, however, a great many users are driven not by the wish to “get high,” but by a physical “craving,” or need. This craving

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may be a result of repeated use of the substance, an inherent (i.e., inherited) predisposition for physical dependence, or—most likely— both. The admittedly vague notion of a physical “craving” may sound like a self-serving attempt to put the drug user beyond reproach by suggesting lack of control over his/her behavior, and thus rejection of the assumption of personal responsibility. While the concept of craving in the illicit opiate user may be dismissed as disingenuous rationalization, however, it is a painful, recurrent reality to countless smokers—and equally impossible to describe to those who have not experienced the overwhelming compulsion, at any time of day or night, in any weather, at any cost, to obtain cigarettes when the last pack is empty! It may also strike a more concordant note to consider the situation with regard to another addiction which is common in our society—addiction to alcohol. The very definition of alcoholism is a sobering reminder of the complexity of the problem with which we are concerned: “Alcoholism refers to a chronic disease in which the alcoholic craves and consumes ethanol without satiation. . . . [It] occurs in all socioeconomic classes and cultural groups. . . . [and] although environmental conditions influence drinking, many individuals are at risk to develop alcoholism because of genetic factors” (emphasis added).1 Whatever constellation of etiological factors are at play, it is also important to consider why alcoholics drink. It seems unlikely that they are pursuing feelings expressed in positive terms such as “euphoria” or “contentment.” And surely, no one who has seen an inebriate, unable to control voice, gait, judgment or excretory function, could imagine for a moment that these are the objectives being sought by the alcoholic! Related to the misconception that addicts are driven by hedonism is the widespread conviction that they lack motivation for treatment and can only be engaged under legal duress (i.e., under the threat of incarceration). Repeatedly over the past three and a half decades, in countries throughout the world, the motivation of addicts to seek and accept treatment on a voluntary basis has been demonstrated. Thus, in the early 1970’s, in New York City, some 50,000 opiate-dependent individuals sought and received treatment in the various drug-free

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 79 and chemotherapeutic modalities that were made available over a period of just a few years. In Hong Kong shortly thereafter, a network of over 20 methadone-dispensing clinics was established and from one year to the next almost 10,000 patients were admitted. In Australia in the late 1980’s, and in Germany and France in the 1990’s, tens of thousands of heroin addicts entered treatment once it became available. Nor is it true that addicts don’t care about their health, and that of others with whom they have contact. Even among addicts who reject treatment and/or for whom treatment is not available, harm reduction initiatives are very widely utilized. This applies to bleach, condoms, needle and syringe exchange services, safe injection facilities, HIV testing and counseling, etc. Whatever the arguments might be for withholding such harm reduction services, they definitely do not include either lack of acceptance by the target population, or ineffectiveness in lowering morbidity and mortality, and slowing the spread of the human immunodeficiency virus.

Effectiveness: Compared to What? A major hurdle in gaining acceptance of both harm reduction services and treatment for addicts is the insistence on outcomes that are unrealistic and unreasonable. Once again, alcoholism is a relevant and revealing study in contrasts. Alcoholics Anonymous (AA) has for many decades been acclaimed throughout the world, and its twelve-step program is highly respected as a way to help those afflicted stop—or at least lessen—their consumption of alcohol. A popular slogan proclaims that “alcoholism is a treatable disease,” but this concept does not extend to other forms of addiction—e.g., to opiates. It is important to understand the disparity between near-universal acceptance of the underpinnings of AA, and the equally widespread rejection of harm reduction and therapeutic approaches to other drug dependencies. The reason for the diametrically different views would appear to rest in the disparate expectations regarding outcomes associated with the care afforded the respective conditions. In the case of alco-

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holism, the standard used to measure effectiveness, as expressed so succinctly and eloquently by AA, is “one day at a time.” It is acknowledged that today’s “success” in achieving sobriety may well be followed by tomorrow’s relapse; however, when relapse occurs (and more often than not it does), it does not denigrate the value of the help that has been provided, nor lessen the zeal of service providers in encouraging drinkers to return to AA or another program of their choice. Furthermore, and equally critical, is the uncompromising conviction of AA devotees that the alcoholic can never, ever, be cured! This orientation to alcoholism, of course, mirrors precisely that which governs the treatment of the great majority of other medical conditions, both physical (diabetes, epilepsy, hypertension, arthritis, etc.), and “mental” (e.g., schizophrenia and depression). In all these examples it is recognized, expected and accepted that the disease can be treated, often with great efficacy, even though cure is unattainable. The ever-present, generally life-long, possibility of recurrence of signs and symptoms is simply a frustrating reality and a therapeutic challenge, and not justification for nihilistic abandonment of those afflicted. “Cure” is not the aim in the management of any of these innumerable medical conditions, and it most certainly is not demanded as a sine qua non of “effectiveness.”1 And yet, the pragmatism, realism and common sense evident with respect to alcohol dependence and other chronic medical conditions are inexplicably lacking when the dependence involves substances that have been defined by legislative fiat as “illegal”. The fact is that addiction—whether to alcohol, opiates or any other substance—is indeed a chronic medical condition like any other, and its treatment must be guided by similar objectives and parameters of effectiveness. Sadly, this is rarely the case. A striking illustration is “substitution treatment” (methadone in particular), whose favorable impact on both the medical and social well-being of patients has been documented with extraordinary consistency for almost 40 years in countries throughout the world. Nevertheless, its success still tends to be dismissed with the comment, “Yes, but how many can get rid of their dependence on the medication and live drug-free?” In

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 81 essence, the utility of methadone is measured by what happens after it is discontinued. Such an orientation would be unthinkably absurd if applied to anti-hypertensive or anti-epileptic agents; or to insulin for the diabetic; or Levodopa—”the single most effective agent in the treatment of Parkinson’s disease”2; or anti-inflammatory medications prescribed for chronic arthritis; etc. etc. ad infinitum. In seeking to understand the unprecedented approach to addiction and to its treatment, it is easier to exclude explanations that seem, superficially, to bring logic to an otherwise incomprehensible deviation from the norm. Specifically, the explanation can not lie in the fact that addiction is a self-inflicted condition, since this is equally true of a host of other diseases to which physicians and the public at large respond supportively. To the extent the heroin addict is to be blamed for his/her addiction, the same criticism would have to be leveled at the alcoholic; and yet, those who drink to excess, whether from need or desire, usually elicit more sympathy than approbation. Furthermore, it is not only the alcoholic who escapes the contempt and hostility of society for “culpability” in causing the disease. The majority of insulin-dependent adult-onset diabetics could live healthy and medication-free lives if they controlled their diet, exercised, stopped drinking, reduced stress, etc. The same constellation of common-sense behaviors would eliminate (often without reliance on medication) signs and symptoms of hypertension and various cardiological conditions. And then, of course, there is the chronic smoker—who generally does not face the hostility of the medical community, nor encounter barriers to treatment of emphysema, heart disease, cancer or the many other sequelae of nicotine addiction. “Harm reduction,” a concept that has evoked considerable controversy in the area of addiction, applies—and governs—the approach to virtually all medical conditions that challenge physicians and society at large. Only very rarely is there a realistic hope of eliminating harm, or the conditions that cause it. The inescapable fact is that the alternative to harm reduction is abandonment—a policy that is not only inhumane but also antithetical to the interests of the entire society.

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Human Rights—The Parallel Track Precisely the same counter-intuitive response characterizes the other “HR”—human rights! Denying drug users the rights that other members of the community enjoy has a severe negative impact on everyone! Today’s villain, today’s scapegoat, today’s victim of policies that target users of illicit drugs will surely be replaced tomorrow by another segment of society that elicits approbation, contempt, fear and anger. And the pernicious spread of practices inimical to human rights is not just a hypothetical threat, but is already in evidence in America. Thus, to make possible the persecution of those taking heroin, cocaine, amphetamines and other substances, users must first be identified. This has led to measures such as stopping and searching vehicles on the public highways, based on “profiling” of the drivers and passengers; suddenly, all African-Americans and Hispanics are targets! In addition, it has become common-place to consider people guilty until they prove their innocence by submission to toxicological analysis. Individuals are required to “pass the test” to demonstrate their worthiness to bear and raise children, to live in public housing, to play on the high school football team (or sing in the school choir!); etc. In the end, no one is immune from suspicion, and everyone becomes subject to intrusive measures designed to find and sanction the “guilty.” Of course, what is done today for the avowed purpose of preventing and curtailing the use of certain drugs that have been deemed “bad,” can as readily be applied to all other behaviors a society (or, at least, its leaders) define as odious. None of this is new: The basic concept has been immortalized by Martin Niemöller, an Evangelical pastor (and previously U-Boat captain!) who vigorously, albeit belatedly, opposed the reign of the Nazis: “In Germany they came first for the Communists and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I was a Protestant. Then they came for me—and by that time no one was left to speak up.”3

THE WAR ON DRUGS AND THE SPREAD OF HIV ❖ 83 However, the case against denial of human rights to addicts is not “merely” the threat of extension of similar infringements on the rights of all; there is a more immediate consequence. As described above, we know that a substantial proportion of drug dependent individuals are motivated to accept treatment and harm reduction services, and that they seize the opportunity to do so when it is made available. We also know that these services reduce illness, suffering, death, crime, etc. But the willingness to accept assistance has limits! Few addicts will come forward to seek help if doing so results in loss of privacy (e.g., “registration” with government agencies), loss of license to drive a motor vehicle, ineligibility for higher education tuition assistance, on-going surveillance and criminal sanctions if drug use persists or recurs, etc. In dissuading users from seeking help, these and similar policies perpetuate and exacerbate the medical, financial and human toll borne not only by the users, but by every member of society.

Conclusion What should govern the issue of care for drug users? The same considerations that apply to any other chronic medical condition, for the simple reason that addiction is a chronic medical condition. And what considerations should determine the human rights that must be accorded drug users? Precisely the same as those that are of critical importance to every single member of society. This too is hardly a surprising conclusion, because the inescapable fact is that drug users are members of the general society; they are comprised of the same diversified political, social, demographic, economic, ethnic, religious and other elements as the community at large. From the standpoint of society as a whole, denial of harm reduction services and curtailment of human rights are not only inhumane, but suicidal!

ENDNOTE * Some infectious diseases are exceptions to the rule, but even in that field of medicine the diseases that are the greatest threat to humanity—AIDS and the

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various hepatitides—illustrate the “treatable but not curable” paradigm. While others may be cured by judicious use of appropriate antibiotics, they generally can recur upon renewed exposure to the causative agent.

REFERENCES 1. Cecil Textbook of Medicine, 20th edition. JC Bennett and F Plum, eds. WB Saunders; Philadelphia, 1996, p. 47. 2. Goodman and Gilman The Pharmacological Basis of Therapeutics, 9th edition. JG Hardman and LE Limbird, eds. In chief. McGraw-Hill; New York, 1996, p. 509. 3. Niemöller M. Cited by Golden Gate University at the following website: http://internet.ggu.edu/university_library/if/Niemoller.html. *Robert Newman is director of the Baron de Rothschild Chemical Dependency Institute of Beth Israel Medical Center and a professor at Albert Einstein College of Medicine.

DEBATE QUESTIONS

?

1. What does Newman see as the relationship between harm reduction and human rights? 2. Does Newman see drug use as a moral failure or medical condition? How does he think an answer to this question should inform drug policies? 3. What does Newman see as the hurdles to acceptance of harm reduction policies? How does he suggest they be overcome?

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Part 2 Views on Public Health and Human Rights

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Introduction

T

he readings in this section outline a human-rights framework for drug policy. As the readings in part 1 demonstrated, prohibitionist drug policies that violate human rights ultimately cause more harm than good, in particular, by increasing the transmission of HIV/ AIDS. They argued that implementing harm-reduction policies that protect human rights is essential for achieving positive public-health outcomes. The articles in part 2 provide the basis for building these policies. They address the basic question: Is there a tradeoff between individual rights and public health when designing and implementing policies? We can use the tools introduced in this section to evaluate the programs and policies discussed in the other sections of the book. In “Toward the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies,” Larry Gostin and Jonathan Mann argue that all government drug policies have the potential to impinge on human rights because most are made without careful consideration of their impact on rights or public health. They propose the use of a Human Rights Impact Assessment Tool when creating and implementing government policies. This tool will allow policy makers to identify potential humanrights infringements and suggest ways to avoid them. The second article, “Understanding and Responding to Youth Substance Use,” attempts to answer the question of how pivotal a human-rights framework is in developing drug policy. Sofia Gruskin, Karen Plafker, and Allison Smith-Estelle also propose using a humanrights evaluation matrix to assess government responses to substance use. Similar to Gostin and Mann’s assessment tool, their proposed framework is meant to help us examine how government action can encourage harmful substance use and explore how government can respond once the state’s role in promoting abuse is known. In addition, the proposed framework allows us to ask what new questions a “vulnerability” model raises in identifying policy gaps and evaluating existing programs.

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 87 The last two articles in this section, “Health, HIV Infection, Human Rights, and Injection Drug Use” and “Alchemies of Inequality,” show how drug control policies that infringe on the human rights of drug users fail to control the spread of HIV. Under the guise of a traditional public-health approach, early political responses to containing HIV called for discriminatory measures (e.g. mandatory testing, compulsory state registration of drug users seeking health care) directed at these populations. Current drug policies reinforce this discrimination by alienating these groups further. Both Alex Wodek and Daniel Wolfe argue that the only way to control the spread of HIV among such vulnerable populations is to base prevention strategies on respect for human rights, thus allowing organizations to engage more effectively with high-risk populations. Wolfe explains that the problems that arise from the simultaneous pursuit of the multiple public-health, drug, and human-rights goals affect not only nations, but the international community as well. The concurrent implementation of conflicting policies at the United Nations encourages countries to take on repressive drug-control polices that infringe on human rights and have negative publichealth outcomes.

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Toward the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies by Larry Gostin, JD, LLD (hon.) and Jonathan Mann, MD, MPH*

Abstract All governmental policies in general, and health policies in particular, have the potential to burden human rights to a greater or lesser degree, whether by restricting freedoms, discriminating against individuals or population groups, or other mechanisms. While the protection of public health may in some cases outweigh concerns relating to human rights burdens, there are many instances where human rights are needlessly infringed. This article proposes a Human Rights Impact Assessment Tool that allows policy makers and human rights advocates to identify potential human rights burdens posed by public health policies and suggests strategies for ameliorating those burdens. Public health policies are sometimes formulated without careful consideration of the goals of the policy, whether the means adopted will achieve those goals, and whether intended health benefits outweigh financial and human rights burdens. In particular, public health policies are seldom crafted with attention to their impact on human rights or the norms of international human rights law.1 Implementing public health policies without seriously considering their

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 89 human rights dimension may harm the people affected and render the policy ineffective, and possibly detrimental.2 The absence of careful thought about the human rights implications of health policies is not surprising: few public health officials are familiar with human rights doctrines, and even those who are may lack the skills and knowledge to assess a policy from a human rights perspective. At the same time, the human rights community has rarely written or litigated in the area of public health.3 Even so fundamental a human rights concept as the right to health has not been operationally defined, and no organized body of jurisprudence exists to describe the parameters of that right.4 The absence of an analytic tool that public health and human rights experts can apply to assess systematically the impact of public health policies on human rights has impeded development of collaborative scholarship and action in the fields of human rights and public health. This article proposes a “human rights impact assessment” an instrument to help evaluate the effects of public health policies on human rights and dignity. The basic steps outlined in this assessment tool may help those working in the public health domain to develop effective strategies that respect human rights. The human rights impact assessment should also assist human rights organizations and community-based groups in arguing for incorporation of human rights standards into public health thinking and policies. To illustrate the human rights impact assessment, this article draws on recent experience with sexually transmitted diseases (STDs),5 human immunodeficiency virus (HIV) infection,6 and tuberculosis (TB).7

Background: Note on Fact-Finding Assessment is one of the primary functions of public health. Careful gathering of all relevant information, provided through the perspectives of various disciplines (e.g., epidemiology, virology, medicine, nursing, social services) is a fundamental prerequisite for effective public policy development. Assessments of the human rights dimensions of policy likewise require rigorous and impartial fact-finding. Institutions that seek to justify public health strategies (such as

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Ministries of Health, Environment, or Justice) may present seemingly credible arguments based on “hard evidence.” However, a set of “facts” presented by the government may be incomplete or biased. Proper fact-finding requires broad-based consultation with international agencies, non-profit organizations, public health or other professional associations, community-based or advocacy groups, and community leaders, who can provide invaluable perspective regarding how health policies affect human rights in their communities.8 Discussions with individuals affected by the policy, and their advocates, are particularly important. When consulting these sources, special efforts should be made to gather material representing all viewpoints, to ensure a balanced picture.

Human Rights Impact Assessment The assessment involves a series of questions designed to balance the public health benefits of a policy against its human rights burdens. Step I: Clarify the Public Health Purpose A clear understanding of the public health purpose to be achieved is essential. Government has a responsibility to articulate this public health purpose. Claims, for instance, that the objective is to combat tuberculosis, AIDS, or some other prevalent disease are too vague and overbroad. A precise conceptualization of purpose will more likely lead to sound, properly conceived policies. Examples of narrowly defined public health goals include: (1) prevention of HIV transmission through blood and blood products (through donor deferral, HIV screening, and heat treatment of blood products for people with hemophilia); or (2) prevention of tuberculosis transmission (by assuring compliance with treatment through directly monitored therapy). Clearly articulated goals help to identify the true purpose of the intervention; facilitate public understanding and debate around legitimate health purposes; and reveal prejudice, stereotypical attitudes, or irrational fear. Step II: Evaluate Likely Policy Effectiveness Existence of a valid even compelling public health objective does not

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 91 justify a policy. Public officials have the burden of showing that the means used are reasonably likely to achieve the stated purpose. Step II requires an honest, rigorous investigation into a policy’s potential effectiveness. This requires a careful and impartial examination of the facts and expert opinion, as well as consultation with the groups affected. It may be argued that certain public health decisions must be made in an emergency, precluding deliberative reasoning and assessment of scientific evidence. Public health necessity, however, does not absolve the actor from basing judgments on all available data. Public health emergencies, like other urgent situations, require rapid and rigorous assessment of the available data.9 Several questions may help guide further thinking about the potential effectiveness of a proposed public health policy. Following are examples that have been selected from screening programs for STDs, HIV, and mycobacterium tuberculosis. (A) Is the screening program appropriate and accurate? No screening test is 100 percent sensitive (meaning that all people with the condition have a positive test) and 100 percent specific (meaning that all people without the condition have a negative test). In addition to the inherent characteristics of testing methods, there are several important sources of potential problems: (1) human error, including improper manufacture or storage of laboratory reagents; (2) biological characteristics of the condition (i.e., for HIV infection, there is a several weeks’ long “window” between infection and appearance of detectable antibodies); and (3) epidemiological characteristics, such as the prevalence of the condition in the population to be tested. Generally, given imperfect specificity of the test itself, the lower the prevalence of the infection in the population, the smaller the probability that a positive test accurately indicates that the person has the condition of interest. Therefore, screening low prevalence populations leads to substantial potential for “false positive” tests. The technical capability of the test cannot be separated from the specific context in which it is used.

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(B) Is the intervention likely to be effective? The fact that a government establishes an aggressive program for screening, partner notification, or isolation does not necessarily mean it is “doing something” about the problem. The real issue is whether the policy leads to effective action. With regard to screening programs, it is important to determine the marginal value of any test results. That is, given what is already known about the patient or population, does the test yield new, useful information? More importantly, does the policy respond effectively to that information? If a government, for example, conducts a widespread screening program for STDs in acute care hospitals, prisons, or brothels in order to prevent transmission, the policy must be examined carefully to see whether it succeeds in achieving its objective. If the program is not also designed to provide prevention services (such as education and counselling) or if there is no follow-up with treatment, the program will have identified cases of infection, but failed to intervene effectively. Screening, then, emerges as a constructive policy only if the information is demonstrably used for public health benefit. It is sometimes misguidedly stated that gathering information about health status in a population is always beneficial. While screening can provide useful data, its validity or generalizability may be biased or flawed. A more reliable understanding of disease prevalence in a population can be obtained through epidemiological research methods. (C) Is there a better approach? The proposed policy should be compared with other alternatives. Certainly, exploration of a wide range of more humane policies brings with it a fresh perspective. Consider an example involving commercial sex workers and people who have multiple sex partners. Coercive or punitive interventions alienate these communities, even driving them away from health care providers and counsellors who can help alter their high-risk behaviors. Instead of punitive measures, health officials could attempt to empower those women who may be impoverished, in abusive relationships, and unable to refuse sexual intercourse or demand that their partners use a condom. At the same

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 93 time, public officials might work to meet employment, housing, health, and social needs of women to promote a lifestyle that respects their dignity as individuals and does not exploit them.10 Public policy development provides an avenue for improving community health. A hasty decision to pursue comprehensive programs of screening, contact tracing, or coercive measures imposes more than financial and human rights burdens: there are also opportunity costs. That is, devoting resources to one policy or service costs a government the opportunity to introduce other, potentially more effective, policies or services. The global community cannot afford to forego cost-effective measures that prevent disease and promote access to care. In sum, a thoughtful exploration of these questions can benefit both public health and human rights: Is the form of intervention appropriate and accurate? Is the intervention likely to lead to effective action? Is a particular policy as effective as other feasible options? STEP III: Determine Whether the Public Health Policy Is WellTargeted Well-conceived policies target the population in need. Ideally, public health strategies are tailored for those who will benefit from them. Thus, every policy creates a class of people to whom the policy applies and a class to whom it does not. For example, screening policies may target a specific group such as homeless persons, drug users, foreigners, commercial sex workers, or prisoners. A policy of isolating all persons with TB who do not complete the full course of treatment may primarily affect poor persons who have inadequate access to health care services. A policy that appears neutral may, in fact, disproportionately impact certain groups in society. Recognizing that all policies create classifications that may discriminate against disfavored people is crucial. This awareness sensitizes the public health community to human rights concerns and helps to ensure that classifications are strictly related to public health needs. Policies that target individuals because of their race, sex, religion, national origin, sexual orientation, economic status, disability, or homeless status often stem from invidious stereotypes. Sound public health policies must avoid both under- and over-

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inclusiveness.11 A policy is under-inclusive when it reaches some, but not all, of the persons it ought to reach. By itself, under-inclusiveness is not necessarily a problem; a government may use its limited resources to address part of a public health problem. For example, a government’s provision of disease prevention and treatment services (e.g., safe sex education, condom distribution, and health care) may be targeted to street children, but not to school children or adults. The under-inclusiveness of this policy does not necessarily reflect discrimination; it may simply indicate that particular country’s public health problems and priorities. This form of permissible under-inclusion is shown in Diagram 1. Population A represents all adolescents at risk for STDs and unwanted pregnancies who could benefit from sex education and coun-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 95 selling. Population B represents all adolescents in institutional settings, such as prisons, foster homes, and mental hospitals (including both institutionalized adolescents and those in schools and the wider community). The proposed public health policy would provide comprehensive sex education and condom distribution to Population B only; this policy is based on the assumption that parents of all other adolescents will provide them with appropriate information, and when resources become available, the health education program will be extended. While this approach is not ideal, it does not necessarily raise fundamental problems of invidious under-inclusion.12 However, certain under-inclusive policies may mask discrimination such as when a government uses coercive powers to target politically powerless and vulnerable groups, but not others that engage in similar behavior. The government is not obliged to devise policies that address the entire population with the potential to transmit disease. It may, instead, choose to address a public health problem one step at a time. However, if the sub-population targeted for coercion or punishment is chosen for reasons not directly related to public health, the under-inclusion is impermissible. Diagram 2 illustrates such impermissible under-inclusion. Population A includes all persons diagnosed with active tuberculosis. Those persons who are included in Population A, (but not B) are mostly middle- to upper-income individuals in the dominant ethnic community. Population B includes all homeless persons diagnosed with active tuberculosis, and is composed solely of people in the lowest socio-economic class, over 90 percent of whom are members of ethnic minorities. A policy of isolation during the active phase of the disease and directly observed therapy during the entire course of the treatment, if applied only to Population B, is invidious because it makes prejudicial, unsupported assumptions about persons in the two populations. Public health officials assume that persons in Population A will remain voluntarily isolated in their homes during the active phase and can be trusted to take the full course of their medication. Officials also assume that persons in Population B will not voluntarily remain isolated, will fail to complete the full course of the medication, and will knowingly remain in crowded areas exposing others

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to infection. These assumptions are based, in part, upon generalizations about populations that separate individuals by their socio-economic class and race. Even if the government policies are offering beneficial services, rather than coercion, they still may be impermissibly under-inclusive. For example, providing health care services to, or running clinical trials for, men but not women, may reflect society’s neglect of women rather than legitimate public health priorities. Over-inclusiveness occurs when a policy extends to more people than necessary to achieve its objective. Over-inclusiveness may not be cost-effective, as when counselling all persons entering acute care hospitals about HIV infection. However, over-inclusiveness with regard to a coercive power is

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 97 almost always unacceptable. Impermissively over-inclusive policies impose compulsory measures on groups assumed to be at high risk of transmitting disease; however, many individuals in the group pose no risk at all to the public. Compulsory measures that apply to all homosexuals, commercial sex workers, intravenous drug users, or foreigners from countries with high rates of HIV stem from the erroneous belief that all members of the group will engage in unprotected sex or needle-sharing. Diagram 3, based upon the quarantine of HIV-infected persons in Cuba, illustrates such over-inclusion. Population A includes all persons infected with HIV in Cuba. Population B represents HIVinfected persons who engage in high-risk behavior. The quarantine policy targets all individuals in Population A, even though only a small percentage of this population is likely to transmit infection. While the policy may be effective as a public health measure, it

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deprives many people of liberty who pose no risk to society. Policies may be both under- and over-inclusive. Such policies affect individuals who do not pose a danger to the public (over-inclusiveness), yet fail to include individuals who would pose a danger (under-inclusiveness). For example, criminal penalties against commercial sex workers but not their male agents or clients is both underand over-inclusive. The policy is suspiciously under-inclusive because it selectively punishes a vulnerable population when at least two other groups participate in the risky behavior. (It also excludes all others who have sex and fail to inform their partners of their infection.) The policy is also over-inclusive because there are some sex workers who are not infected with an STD; inform clients of the potential risks; and/or practice safer sex. Diagram 4 provides another illustration of over- and under-inclusion. Population A represents all foreigners entering the country. Population B represents all foreigners entering the country from Region X. Population C represents all foreigners entering the country from Region X who would engage in high-risk behavior. Population D represents all foreigners entering the country from outside Region X who would engage in high-risk behavior. The proposed policy of screening and excluding those who test positive for HIV infection is targeted to Population B only (foreigners from Region X). Such a policy is overbroad because, while some infected individuals in Population B may engage in high-risk behaviors, many group members are not infected, and many infected people will act responsibly. At the same time, the policy does not apply to foreigners outside of Region X, even though many of them are infected with HIV and may engage in high-risk behavior.13 Step IV: Examine Each Policy for Possible Human Rights Burdens Having considered several important dimensions of public health policy-making, it is now possible to examine the human rights impact of a proposed policy. The human rights impact assessment involves a meticulous balancing of the potential benefits to the health of the community with repercussions of the policy for human rights. Human rights burdens may outweigh even a well-designed policy. Identifying

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all potential infringements on human rights and evaluating those likely to occur will contribute to sound government action. The International Bill of Human Rights14 may be considered the source of basic human rights. These documents list and describe human rights, recognize duties of individuals to the community,15 create non-derogable rights that may not be infringed even in times of public emergency, and provide criteria for the limitation of other rights. Certain human rights are so essential to the dignity and well-being of people that they are considered absolute. These rights must never be infringed, even if the country is in a declared state of public emergency and the public health need is extraordinarily strong. Non-derogable rights include freedom from discrimination; the right to life; freedom from torture and from cruel, inhuman or degrading treat-

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ment or punishment; freedom from slavery or involuntary servitude; freedom from imprisonment for failure to fulfill contractual obligations; freedom from retroactivity for criminal offenses; the right to recognition as a person before the law; and freedom of thought, conscience, and religion.17 Thus, from this perspective, the public health benefits of policies that burden non-derogable human rights never outweigh the intrusion on human rights. In short, the fact that a policy improves public health does not justify any possible means to achieve that end. Other rights may be restricted in certain situations. Article 29 of the Universal Declaration states that limitations of these rights must be “determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” Generally speaking, restrictions on human rights must be: (i) prescribed by law in a democratic society the restriction on rights must be based upon the thoughtful consideration of the legislature; and (ii) necessary to protect a valued social goal the legislature must be promoting a compelling public interest such as safety or health. Restricting human rights is not to be taken lightly. Indeed, in most cases, coercive or punitive policies will harm, not enhance, the health of the public. Civil and political rights that may be infringed if necessary to protect a valued social goal include: the right to liberty and security of person; freedom from arbitrary arrest, detention or exile; freedom of movement; freedom from arbitrary interference with privacy, family, home and correspondence; the right to peaceful assembly and association; and freedom of opinion and expression, including the right to seek, receive and impart information. Minor infringements on human rights may be justified when the public health interest is compelling and there is no other way to achieve the objective. For example, requiring the immunization of a population by means of a safe and effective vaccine may undermine the right to security of person, but the substantial reduction in morbidity and mortality may justify the intervention. Economic, cultural, and social rights do not have the same stand-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 101 ing in international law as civil and political rights.16 Rights afforded in the International Covenant on Economic, Social and Cultural Rights (ICESCR) include the right to work (Article 6), to social security (Article 9), to an adequate standard of living including adequate food, clothing and housing (Article 11), to the enjoyment of the highest attainable standard of physical and mental health (Article 12), to education (Article 13), and to enjoyment of the benefits of scientific progress and its applications (Article 15). Economic, social, and cultural rights are not immediately enforceable and the United Nations Committee on Economic, Social, and Cultural Rights does not have power to require compliance. However, Article 2 of the ICESCR imposes an obligation on state parties to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to progressive realization of these rights. How can a human rights burden created by a public health policy be measured? Four factors may be considered: (1) the nature of the human right; (2) the invasiveness of the intervention; (3) the frequency and scope of the infringement; and (4) its duration. Policies that adversely affect fundamental rights and freedoms create significant burdens on human rights. A decision to imprison, isolate, or otherwise restrict a person’s liberty substantially impacts the person’s life. In contrast, while partner notification requirements potentially infringe on privacy, this type of invasion is usually less grave than a deprivation of liberty. The second factor involves the degree of intrusion on a particular right. Neither liberty nor privacy is an absolute right. All societies tolerate some incursions on these rights, such as limitations on individual liberty where its exercise would interfere with the fundamental rights of others, or disclosure of private information when strict confidentiality would pose an imminent danger to another person.18 However, the burdens (harms) from public health measures that intrude on either right may well outweigh their potential benefits. For example, a government’s decision to record the names of individuals with certain diseases and to grant public access to the information seriously intrudes on privacy rights of the infected

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individuals. Similarly, prohibiting all women with HIV infection from bearing children based on the risk of perinatal HIV transmission fundamentally burdens privacy in the context of reproductive decision-making. A third question asks whether the restriction of rights applies to a few people or to an entire group or population. A decision to isolate an individual with active, contagious tuberculosis is clearly justified. However, a policy that quarantines a large population of persons infected with M.Tb. substantially burdens human rights. The Cuban government, for example, has sought to reduce the transmission of HIV in its population by screening and isolating all Cubans returning from abroad. The government might plausibly argue that it would achieve a compelling public health objective, but the gravity and scope of the human rights burdens are prohibitive.19 Fourth, the duration of a human rights burden must be considered. Isolating a person infected with M.Tb. during the active stage of the disease is a necessary, short-term intervention. However, isolating a person with HIV infection is almost always inappropriate; it raises the prospect of indefinite duration since the person remains potentially infectious to others for his or her lifetime.20 Finally, legal and ethical standards strongly suggest that public health programs incorporate the principle of informed consent.21 This doctrine is most clearly applicable to biomedical research, but may also include other health programs including testing and treatment. Principle I of the Nuremberg Code22 provides the definition of consent from which subsequent international ethical guidelines are derivative:23 The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 103 Thus, the consent of the human subject to research must be legally competent, voluntary, informed, and comprehending.24 Article 7 of the International Covenant on Civil and Political Rights prohibits medical or scientific experimentation without the person’s free consent. The grounds for extending the principle of informed consent to treatment and the exercise of other public health powers is found in Article 9 of the International Covenant of Civil and Political Rights, which guarantees the right to security of person. Security of person may be taken to mean that persons have a right to determine for themselves how they will be treated. Respect for personal autonomy underlies the doctrine of informed consent. The principle of autonomy requires that every competent human being has the right to make decisions regarding her health and well-being.25 The concept of informed consent is critically important to maintaining sound public health practice. Consent should be viewed as more of a process of communication and interaction with the patient than a stark legal requirement. The process of consent provides the opportunity to counsel and educate while it preserves the integrity of health professionals and the dignity of the patient. Human rights experts and non-governmental organizations may invaluably assist those trying to evaluate a public health policy’s impact on human rights and to enforce international legal protections. Establishing networks of experts in human rights and public health can facilitate constructive discussions. This can only lead to greater respect for human rights in policy development, implementation, and enforcement. STEP V: Determine Whether the Policy Is the Least Restrictive Alternative That Can Achieve the Public Health Objective The human rights impact assessment suggests a balance between the burdens and public health benefits of a policy. In general, broad or intrusive human rights violations are seldom, if ever, warranted. At the extreme, a public health approach that uses an effective means to achieve a compelling public health objective may sometimes warrant

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a limitation of human rights. In contrast, a dubiously useful government policy deserves less weight in the balance. A vital step in the human rights impact assessment is the examination of alternative policies that burden human rights to a lesser extent, while still protecting the health of the community. The principle of the least restrictive alternative seeks the policy that is least intrusive while achieving the public health objective as well or better than the policy under consideration. The human rights community should insist that governments find alternatives that achieve the public health goal without unduly violating rights and dignity. Public health officials sometimes misunderstand the principle of the least restrictive alternative. The principle does not require governments to adopt ineffective policies or to forego effective policies. Rather, it proposes selective implementation of programs that are human rights-sensitive as well as equally or more effective in achieving a valuable public health goal. On rare occasions, less intrusive alternatives are also less effective, and the principle of the least restrictive alternative does not require their adoption. To determine the least restrictive alternative, non-coercive approaches should first be considered; if noncoercive approaches are insufficient, gradual exploration of more intrusive measures are permissible where clearly necessary. For example, if the provision of service or benefits programs (e.g., counseling, education, and treatment) do not adequately protect the public health, more restrictive policies may be warranted. Governments sometimes feel public pressure to respond to an urgent public health concern with restrictive or punitive measures. For example, public opinion may blame foreigners, drug users, homosexuals, sex workers or other disenfranchised populations for the health threat. A searching examination of a range of less restrictive alternatives can uncover policies that not only defend the rights of the individual, but also are more worthwhile for the population as a whole. Intense conflicts between public health and human rights occasionally arise, with members of the public or politicians claiming that it is necessary to “get tough” on persons who transmit disease. Actu-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 105 ally, public health and human rights are usually in harmony: promotion of human rights is most protective of health and the best health strategies are respectful of the inherent dignity of the person. An overly coercive policy may discourage persons at risk from coming forward for testing, counseling or treatment. Health care professionals then lose contact with persons likely to spread disease, ultimately causing greater harm to the public. Moreover, public health and human rights goals are usually synergistic; protecting human rights encourages cooperation and a shared vision of the need for safer behaviors and thereby promotes public health. In order to explore further the concept of the least restrictive alternative, consider the case of a large city seeking to slow the spread of multidrug-resistant tuberculosis. Public opinion may call for civil commitment or court-ordered directly observed therapy for all people with active TB. However, offering persons with tuberculosis incentives and services such as travel allowances, food, shelter, and child care may be more effective in helping them complete the full course of their medication than compulsory treatment or commitment.26 Step VI: If a Coercive Public Health Measure Is Truly the Most Effective, Least Restrictive Alternative, Base It on the “Significant Risk” Standard After analyzing a range of policies, the health authority may conclude that a coercive approach is the most effective, least restrictive alternative. In this case, it should make an individual determination that the person poses a significant risk to the public.27 The “significant risk” standard permits coercive measures only to avert likely harm to the health or safety of others. The determination of significant risk requires public health inquiry. The intent is to replace decisions based on irrational fear, speculation, stereotypes, or pernicious mythologies with reasoned, scientifically valid judgments. Significant risk must be determined on a case-by-case basis by means of fact-specific, individual inquiries. Blanket rules or generalizations about a class of persons do not suffice. For infectious diseases like HIV/AIDS or tuberculosis, the signifi-

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cant risk standard is based upon four factors: (i) nature of the risk (i.e. mode of transmission); (ii) probability of the risk (i.e., how likely is it that the transmission will occur); (iii) severity of harm (i.e., the harm to the person if the infection were transmitted); and (iv) duration of the risk (i.e., the length of time the person is infectious). As for the nature of the risk, public health interventions must be based on epidemiologically supported modes of transmission. For example, epidemiologic evidence shows that the major routes of HIV transmission involve sexual intercourse and sharing contaminated drug injection equipment. Exclusion of HIV-infected children from school, for example, based on the fear of biting, spitting, or rough play in sports activities would not meet the significant risk test. Similarly, the possibility that people infected with HIV who handle food may bleed into it, or that airline pilots might have a sudden onset of AIDS dementia, is so low that it does not justify depriving a class of individuals of their rights and livelihood. The risk to the public must be probable, not merely speculative or remote. Theoretically, for example, a person could transmit HIV by biting. But the actual risk is extremely low (approaching zero). To bring criminal charges for this behavior lacks a public health justification. The harm that results if the infection is transmitted must be substantial. However, even potential harms of great severity (e.g., HIV infection) do not justify coercion if the probability of transmission is exceedingly low. The “significant risk” requirement holds that, even though a disease can be serious or fatal, restrictions on individuals lack justification unless a reasonable probability of transmission exists. For example, some parents of school children have difficulty comprehending why officials can exclude children infested with hair lice from school, but not those infected with HIV. The “significant risk” standard is met in the former case because of the very high probability that other children will contract lice. In contrast, the risk of contracting HIV in that setting is highly remote. Finally, regarding duration of risk, the person must be currently contagious. The significant risk standard allows coercion only during the period that the person poses a risk to the public. As soon as the risk subsides, the justification for coercion similarly subsides.

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 107 STEP VII: If a Coercive Measure Is Truly Necessary to Avert a Significant Risk, Guarantee Fair Procedures to Persons Affected The fact that officials do not intend a public health intervention to be punitive would not alter the reality that it restricts personal liberty. International human rights standards require that governments provide a fair, public hearing before they deprive persons of liberty, freedom of movement, or other fundamental rights. Examples of this process are well-described in the mental health context. The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care require procedural safeguards (“due process”) prior to civil commitment.28 As in the mental health setting, public health policies that deprive people of liberty in order to protect the public must guarantee procedural justice. The natural justice principle, as construed by the European Court of Human Rights, requires a hearing by a dispassionate decision maker, who is separate from the executive branch and the parties to the case.29 Thus, an independent court or tribunal must adjudicate the dispute. The person whose liberty is threatened is entitled to advance notice of the hearing, representation, and an opportunity to present evidence. Procedural safeguards are not merely formalistic. The aim is to ensure a more accurate fact-finding process and greater equity and fairness to individuals who face a loss of liberty. Hearings give public health officials the opportunity to review their general approach to the health problem as well as the human rights impact in an individual case. A government that deprives an individual of liberty or other rights must provide a fair and public hearing. These substantive and procedural requirements of human rights help ensure that governments demonstrate the genuine necessity of compulsory measures to protect the community and preserve justice for the individual.

Conclusion Public health programs that respect human rights will encourage

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individuals and communities to trust, and cooperate with, public health authorities. Promotion of human rights, particularly among previously disenfranchised groups, increases their ability to protect their own health. Finally, the right to health is a basic human right, related to and dependent on many other human rights. The Human Rights Impact Assessment described in this article provides a tool to achieve the best possible public health outcomes while protecting the human rights of individuals and populations. The Human Rights Impact Assessment evolved from work by a group of friends and colleagues working at the Harvard School of Public Health, including Dr. Katarina Tomasevski, Ms. Zita Lazzarini, and Ms. Sofia Gruskin, in addition to the authors. The goal of the Human Rights Impact Assessment is to provide public health practitioners, human rights advocates, community workers, and others interested in health policy, with a systematic approach to exploring the human rights dimensions of public health policies, practices, resource allocation decisions, and programs. The authors warmly acknowledge the expert assistance of Jean C. Allison in the conceptualization of this article, particularly the diagrams.

REFERENCES 1. Public health policies are often crafted in the absence of clear rules of domestic law. See Institute of Medicine, The Future of Public Health, National Academy Press, Washington, DC, 1988; Gostin L, The Future of Public Health Law, American J. of Law & Med. 1987; 12:461–490. 2. There does exist an influential and growing literature that uses the disciplines of the philosophy of law and biomedical ethics for the evaluation of health policies. Influential jurisprudential analyses include those by Ronald Dworkin in his classic book, Taking Rights Seriously (Harvard University Press, Cambridge, MA, 1977), and in his more recent analysis of death and dying in The Law’s Empire (Oxford University Press), 1993. See also, John Rawls, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971. Some authors treat biomedical ethics and human rights as if they were the same subject. See, Eugene B. Brody, Biomedical Technology and Human Rights, UNESCO, Paris, 1993. However, examination of health policy from a jurisprudential or ethical perspective, while important, is not a substitute for a human rights analysis. The human rights perspective is unique because it is based upon an organized set of internationally recognized and enforceable legal standards. See Philip Alston, ed., The United Nations and Human Rights: A Critical Appraisal, Clarendon Press, Oxford, 1992.

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 109 3. Major texts on human rights barely discuss the application of international law to public health. See e.g., Frank Newman & David Weissbrodt, International Human Rights, Anderson Publishing Co., Cincinnati, 1990). However, several excellent reports on the human rights impact of HIV infection have appeared. See Paul Sieghart, AIDS and Human Rights, British Medical Foundation, London, 1989; Tomasevski K, Gruskin S, Lazzarini Z, Hendriks A, AIDS and Human Rights. In: Mann J, Tarantola DJM, Netter TW, eds. AIDS in the World 1992, Harvard University Press, Cambridge, MA, 1992, pp. 537–573; Rights and Humanity, The Rights and Humanity Declaration and Charter on HIV and AIDS, The Hague, 1992. 4. A notable exception appears in this issue, Leary V, “The Right to Health,” Health and Human Rights,1994, 1:28. See, Committee on Economic, Social and Cultural Rights, Ninth Session, 22 November–10 December 1993, Implementation of the International Covenant on Economic, Social and Cultural Rights: Day of General Discussion on the Right to Health (6 December 1993), E/C.12/1993/WP.27. 5. See e.g., Allan Brandt, No Magic Bullet: A Social History of Venereal Disease in the United States Since 1880 (Oxford University Press, New York), 1985, rev ed., 1987. 6. See e.g., Ronald Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public Health (New Brunswick, N.J., Rutgers University Press), 1991. 7. See e.g., Sheila M. Rothman, Living in the Shadow of Death: Tuberculosis and the Social Experience of Illness in American History (Basic Books, N.Y.), 1994. 8. See e.g., Human Rights Watch, World Report 1994, Human Rights Watch 1994, New York; Amnesty International, Report 1993, London, 1993; Physicians for Human Rights, Landmines: A Deadly Legacy (Human Rights Watch, N.Y.), 1993; Human Rights Watch & the American Civil Liberties Union, Human Rights Violations in the United States (New York, Human Rights Watch & the American Civil Liberties Union), 1993. 9. Elaine Scarry, Thinking in an Emergency, Harvard University Press, 1993. 10. Hauserman J, Ethical and Social Aspects of AIDS in Africa (Commonwealth Secretariat, London), 1990. 11. The concept of under- and over-breadth is frequently used in Equal Protection analysis in the United States when the government infringes a fundamental right (such as the right to travel) or sets up a class based on race or some other suspect class. See generally, Laurence Tribe, American Constitutional Law 1446–1451 (Foundation Press, Mineola, N.Y., 2d ed.), 1988. 12. Under certain circumstances, however, the policy might deprive noninstitutionalized adolescents of the right to education or the right to health. If these adolescents were at significant risk of contracting STDs and unwanted pregnancies, and the government systematically denied them the education necessary to avoid these harms, telling arguments could be made under the International Covenant of Economic, Social and Cultural Rights.

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13. Gostin L, Cleary P, Mayer K et al, “Screening and exclusion of international travelers and immigrants for public health purposes: an evaluation of United States policy”, NEJM 1990; 322:1743–1746. 14. The International Bill of Human Rights comprises the Universal Declaration of Human Rights (UDHR), the International Covenant of Civil and Political Rights (ICCPR), the International Covenant of Economic, Social and Cultural Rights (ICESCR), and the Optional Protocol to the International Covenant on Civil and Political Rights. 15. Article 29 of the Universal Declaration of Human Rights declares that “Everyone has duties to the community in which alone the free and full development of his personality is possible.” 16. Article 4(2) of the International Covenant on Civil and Political Rights permits no derogation from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16, and 18 even in cases of declared national emergencies. 17. Alston P, The Committee on Economic, Social and Cultural Rights. In: The United Nations and Human Rights: A Critical Appraisal 471–508 (Clarendon Press, Oxford), 1992 18. Ankrah EM, Gostin LO, “Ethical and Legal Considerations of the HIV Epidemic in Africa”. In: AIDS in Africa 547–558, Essex M, Mboup S, Kanki PJ, Kalengay MR, eds. (Raven Press, N.Y.), 1994. 19. Bayer R, Healton C, “Controlling AIDS in Cuba: the logic of quarantine”, NEJM 1989; 320:1022. 20. Wendy E. Parmet, “AIDS and Quarantine: The Revival of an Archaic Doctrine”, Hofstra L. Rev. 1985;14:53–90. 21. Faden RR, Beauchamp TL, A History and Theory of Informed Consent (Oxford University Press), 1986. 22. Nuremberg Code 1947, reprinted from Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, vol. 2, at 181–82 (1949). The Nuremberg Code was part of the judgment reached by the Nuremberg Court in United States v. Karl Brandt, et al, U.S. Adjutant General’s Department, Trials of War Criminals Under Control Council Law No. 10 (Oct. 1946–April 1949), vol. 2, The Medical Case, (Washington D.C., U.S. Government Printing Office), 1947. 23. See, Declaration of Helsinki IV, I Basic Principles 9, 41st World Medical Assembly (1989); Council of International Organizations of Medical Sciences, International Guidelines for Ethical Review of Epidemiological Studies (CIOMS, Geneva), 1991. 24. Robert J. Levine, Ethics and Regulation of Clinical Research 98–99 (Yale University Press, New Haven), 1988. 25. Arnold J. Rosoff, Informed Consent: A Guide for Health Care Providers Aspen Publishers, Rockville, MD), 1981. 26. Dubler NN, Bayer R, Landesman S, White A, The Tuberculosis Revival Individual Rights and Societal Obligation in a Time of AIDS (United Hospital Fund, N.Y.), 1992. 27. This is similar to the standard used in the United States under the

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 111 Americans with Disabilities Act. Gostin L, “Impact of the ADA on the Health Care System.” In: Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans 175–186, Gostin L, Beyer H, eds. (Brookes Publishing, Baltimore, Maryland), 1993. 28. United Nations, Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, G.A. Res. 119, U.N. GAOR, 46th Sess, Supp. No. 49, Annex, at 188–92, U.N. Doc. A/46/49 (1991). 29. X v. United Kingdom, European Court of Human Rights, Judgement given November 5, 1981. See Publications of the European Court of Human Rights, Series B: Pleadings, Oral Arguments and Documents, vol. 41, 1980–82, Case of X v. the United Kingdom, Council of Europe, 1985. *Lawrence Gostin is Professor of Law, Georgetown University Law Center; Professor of Heath Policy, the Johns Hopkins school of Hygiene and Puublic Health; director, the Johns Hopkins/Georgetown Program on Law and Public Health. Jonathan Mann is François-Xavier Bagnould Professor of Health and Human Rights and Professor of Epidemiology and International Health at the Harvard School of Public Health. Reprinted from Health and Human Rights, 1:1 (1994), with permission from the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health. Copyright (c) 1994, President and Fellows of Harvard College.

DEBATE QUESTIONS

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1. What are the causes and consequences of over-inclusion and under-inclusion in public health interventions? What tools can be used to avoid these occurrences? 2. How do the authors suggest measuring the human rights burden created by public health policy? 3. Are coercive measures are ever justified to achieve public health goals?

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Understanding and Responding to Youth Substance Use: the Contribution of a Health and Human Rights Framework by Sofia Gruskin JD MIA, Karen Plafker MA MSc, and Allison Smith-Estelle, MA*

Abstract This article examines the utility of a health and human rights framework for conceptualizing and responding to the causes and consequences of substance use among young people. It provides operational definitions of “youth” and “substances,” a review of current international and national efforts to address substance use among youths, and an introduction to human rights and the intersection between health and human rights. A methodology for modeling vulnerability in relation to harmful substance use is introduced and contemporary international and national responses are discussed. When governments uphold their obligations to respect, protect, and fulfill human rights, vulnerability to harmful substance use and its consequences can be reduced.(Am J Public Health. 2001; 91:1954–1963)

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 113 We believe that the global war on drugs is now causing more harm than drug abuse itself. Every decade the United Nations [UN] adopts new international conventions, focused largely on criminalization and punishment, that restrict the ability of individual nations to devise effective solutions to local drug problems. . . . In many parts of the world, drug war politics impede public health efforts to stem the spread of Hill hepatitis and other infectious diseases. Human rights are violated, environmental assaults perpetrated and prisons inundated with hundreds of thousands of drug law violators. Scarce resources better expended on health, education and economic development are squandered on ever more expensive interdiction efforts. Realistic proposals to reduce drug-related crime, disease and death are abandoned in favor of rhetorical proposals to create drug-free societies. Public Letter to UN Sec-Gen Kofi Annan1 Explicit attention to the intersection of health and human rights can help reorient thinking about major global health challenges and, while contributing to broadening human rights thinking and practice, provide a solid approach for improving the lives of individuals.2 This intersection offers a framework for optimizing the contributions of both public health and human rights to conceptualizing the determinants of health and to thinking systematically about policy and program responses that promote both health and rights. Substance use among youths is a worldwide epidemic. Young people start to use substances, singly or in combination, at early ages, and they report many different reasons for using them. Despite the harm that substances can and do cause, effective responses to substance use, and especially to harmful use among young people, remain limited. In this article we begin with brief discussions of concepts that often seem to warrant no definition: Who are “young people”? What “substances” are we talking about? What sort of substance use demands attention from public health and human rights perspectives and practitioners? This discussion is followed by an introduction to human rights, particularly those of young people, and a discussion of the intersection of health and human rights in relation to substance use. These definitions and introductions are critical to ensuring a common con-

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ceptual starting point before we present a methodology for modeling vulnerability to poor health outcomes such as harmful substance use. The model illustrates how vulnerability to harmful substance tree can be linked to the extent to which segments within the youthful population enjoy their human rights. The complement of this argument, discussed next, is that respecting, protecting, and fulfilling the rights of all young people can reduce their vulnerability to ill health, including the risk of harmful substance use. We then review current international and national efforts to address substance use by youths and, using the vulnerability model proposed, suggest that these efforts are not only insufficient to ensure the human rights of young people as they relate to substance use but in some cases contribute to the violation of their rights. We conclude by suggesting ways in which human rights can help frame and shade more effective and comprehensive responses to substance use. While it is our contention that this approach is relevant to a variety of health concerns, substance use by young people is used as the example because it highlights the complexities that application of this modal bring out and because the topic is of concern for anymore interested in the policy and program responses focused on youths more generally that exist worldwide.

The Diversity of Youths Young people are not a homogenous group. As defined by UNICEF, young people include all people aged 10 through 24 years.3 They live in both industrialized and developing countries, in urban and rural areas or somewhere in between. Some attend school, others do not; some are literate, others are not. Some are employed under appropriate conditions: others work in situations of exploitation or are unemployed or underemployed. They may live with their parents or extended families or, because of death, migration, poverty, or family violence, live on their own or with other, unrelated, young people or adults. Young people may be parents themselves. Needless to say, they also vary by sex, race/ethnicity, class, and sexuality. This is not an exhaustive list, nor does it specify how these differ-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 115 ent components of personal and social identity play out in different national and cultural contexts. However, it is crucial to recognize that it is often these factors, singly or in combination, that exacerbate or reduce young people’s vulnerability to harmful substance use. The failure of policymakers to see young people in all their diversity and the exclusion of youths until some distant, arbitrary age of majority in political and social policy processes mean that the ways in which young people’s rights are violated—including discrimination; abuse at home, at work, and on the sweet: separation from family; lack of educational opportunities or appropriate alternatives—can be underestimated or ignored. This paves the way for inadequate and inappropriate responses to preventing substance use and to reducing harm and treating use when it does occur.

Defining “Substances” of Concern The annex to the 1971 United Nations (UN) Convention on Psychotropic Substances includes a list of chemicals denominated schedule I, II, III and IV drugs Article 2 of the same convention gives more of a layperson’s description of drugs that should be controlled: substances found to have “the capacity to produce a state of dependence [and] central nervous system stimulation or depression, resulting in hallucinations or disturbance of motor function or thinking or behaviour or perception or mood.”4 Substances most often discussed in the international literature include cannabis, cocaine, opium, heroin, amphetamine-type stimulants, Ecstasy, and inhalants,5–10 Despite a vast literature on tobacco and alcohol use by youth, these substances are generally not included in global discussions on substance use.11–13 It is important to recognize how “substances” are both lumped together and distinguished from each other in seemingly arbitrary ways that obscure the actual dangers of substance use, how these dangers differ from substance to substance and from user to user, and why. A review of the documents5–8,11 reveals interesting patterns. For example, cannabis, which is known to have low acute toxicity, require less treatment, and cause fewer deaths than many other substances, is often discussed together with more toxic, physically

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addictive, and potentially deadly substances such as cocaine, heroin, and Ecstasy. Alcohol, on the other hand, is often completely ignored, although it is the drug of choice among vast numbers of young people, has been reported to cause work-related problems and injuries more often thins other substances,6 and in some countries causes more deaths and injuries among young people than any other substance.

Is all Substance Use Harmful? In many of the documents and much of the literature reviewed for this article, the overwhelming trend seems to have been to use the words “use” and “abuse” interchangeably, with little or no distinction made in the vast continuum of behaviors, states, and outcomes related to substance intake. The language used in the International Classification of Diseases, 10th Revision, is somewhat more explicit, but still insufficient: “harmful use” is defined as “a pattern of psychoactive substance use that is causing damage to health. The damage may be physical . . . or mental.” The term “harmful use” is used interchangeably with “psychoactive substance abuse.”14 The challenge of defining what, exactly, is unacceptable about substance use, in both public health and human rights terms, has not been adequately taken up by policymakers, researchers, or advocates of drug control. In one sense, virtually all use is harmful in some way. But at what point public health and human rights practitioners are called upon to prevent use, reduce harm, and treat young users will vary in response to a range of evolving social constructs, including what is considered to constitute appropriate behavior or free will, as well as economic imperatives, such as scarce resources and competing priorities. In this article, we would like to highlight 2 questions regarding harm. The first asks why young people engage in substance use, nothing that use, in fact, is a response to a range of very different issues. Although some youths, primarily in more developed countries but increasingly in less developed countries, use drugs, alcohol, and tobacco for serial reasons or for “fun” (such users are often referred to

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 117 in substance abuse literature as “socially integrated” youths11), other young people within the same environments may use these substances to work longer hours, enhance work or school performance or cope with academic pressure, alleviate hunger, reduce physical or emotional path, fend off sleep, help to induce sleep, or lose weight.11,15–18 Others may use substances as a strategy to cope with war, unemployment, neglect, violence, homelessness, or sexual abuse. The second question asks about the individual impact of substance use: How is the health and well-being of young users affected by their use? Harm could be defined in this case in a variety of ways, including dependence, overdose, HIV infection, sexual exploitation, inability to function within society, or involvement in criminal activity. These questions are important because they draw attention to the inadequacy of discussing these issues for the sake of policy and program development without paying attention to assumptions and specific differences, and because they seek to clarify the range of issues that public health and human rights practitioners should address in their efforts to respond to substance use by young people.

Defining Human Rights Human rights have a long history, but the modern human rights movement can be said to have been born with the UN, whose charter identifies the promotion of human rights as a principal purpose or the intergovernmental body.19 Human rights form part of international law, but the inspiration that underlies modern human rights—the notion that people are “born free and equal in dignity and rights”20 reflects an evolution in human thought about the relationship among human beings, particularly in relation to the state. Beyond these hopeful aspirations, human rights offers a framework for conceptualizing and responding to the causes and consequences of public health issues. With centuries of philosophical and political thought to support it, the Universal Declaration of Human Rights was adopted by the UN in 1948 as a universal, common standard of achievement for all peoples and nations. Since then, a range of human rights instruments that further elaborate the rights set out in

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the Universal Declaration have been adopted and ratified by the governments of the world.21–28 As treaties, these documents form part of international law, which confers binding legal obligations on those states that ratify them. Human rights include civil and political rights, such as the right to be free from torture and arbitrary execution, the right to information, and the right to free expression. They also include economic, social, and cultural rights, such as the right to an adequate standard of living, the right to health, and the right to education. The fight to be free from discrimination is understood to be overarching and relevant to all rights. The content of these rights—how they can be translated from legal language into action—continues to he developed in countries throughout the world. This process of turning legal language into policy and program responses useful for health at the country level began to be widely shared in the form of the final documents that emerged from a series of international conferences held during the past decade (World Conference on Human Rights, Vienna, 1993; International Conference on Population and Development, Cairo, 1994; World Summit for Social Development, Copenhagen, 1995; Fourth World Conference on Women, Beijing, 1995: UN Conference on Human Settlements, Istanbul, 1996).

Respect, Protect, Fulfill Under human rights law, governments are obliged to respect, protect, and fulfill the rights contained thereto.29,30 All rights imply all 3 levels of obligations. The obligation to respect human rights means that governments are required to refrain from directly violating rights. Respecting young people’s right to education, for example, means that the state cannot arbitrarily bar young people from attending school because they have violated the law and have been incarcerated or are receiving treatment for substance use. The obligation to protect human rights means that governments are required to prevent rights violations by nonstate actors, and, when they fail to prevent such violations, to ensure that there is a

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 119 legal means of redress that people know about and can access. Protecting young people’s right to life means, for example, that the government is required to prevent the vigilante murder of street children assumed to be substance users. Should such killings occur, the state is required to conduct a full investigation, prosecute the accused, conduct a fair trial, and punish those found guilty. The obligation to fulfill human rights means that governments are required to take positive steps, including administrative, legislative, budgetary, judicial, and other measures, to ensure the full realization of rights. Offering and ensuring access to appropriate information, outreach, and service delivery programs aimed at preventing, reducing the harm of, or treating substance use by young people is one way states can fulfill young people’s rights to health and to information. All areas of government, including health ministries, are responsible for respecting, protecting, and fulfilling human rights in the work they do. Consequently, rights must be explicitly incorporated into the work of public health. States’ compliance with their human rights obligations is formally evaluated by international monitoring bodies in periodic sessions. Increasingly, monitoring and advocacy activities are conducted by non-governmental organizations, the media, and private individuals.

Human Rights and Young People Each of the major human rights treaties—including the International Covenant on Economic. Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; and the International Convention on the Elimination of All Forms of Racial Discrimination—contains rights obligations that are applicable to young people. Moreover, in 1990, the first human rights document to focus specifically on the rights of children—the Convention on the Rights of the Child—came into being.24 The convention distinguishes itself from earlier documents in its scope and in its reconceptualization of children and their position in society, particularly in its explicit artic-

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ulation of the standing of children in terms of their rights, rather than as objects of charity or goodwill.31 The Convention on the Rights of the Child is a particularly powerful document. Adopted by the UN General Assembly and opened for signature by governments in late 1989, the convention entered into force less than a year later, more quickly than any other human rights treaty. Currently, the convention has been ratified by every government in the world except those of the United States and Somalia.24 As such, and by defining “the child” as every human being younger than 18 years, the convention offers further protection to a large proportion of those whom UNICEF identifies as “young people.”

Health, Human Rights, and Substance Use “Whether illicit drug use should be considered a crime, a disease, a social disorder or some mixture of these is debated in many countries. Often, public policy is ambivalent about the nature of addiction, with social attitudes towards drug abuse reflecting uncertainty about what causes abuse and who is ultimately responsible.” The health and human rights framework springs from the mutual and dynamic relationship that exists between health and human rights. Acknowledging this relationship offers a powerful tool for predicting and explaining the distribution of health outcomes, for evaluating existing health policies and programs, and for conceptualizing and implementing new ones to ensure that they promote public health in ways that are effective and consistent with human rights principles. Put succinctly, the violation or neglect of human rights can increase the risk of poor health outcomes. Applied to the issues of concern here, a health and human rights framework would illustrate that the violation or neglect of young people’s rights, a human rights concern in and of itself, can increase the risk of substance use, especially harmful use. Such violations would include, for example, the failure to respect, protect, and fulfill young people’s rights to information, education, recreation, and an adequate standard of living. It is important to note that, conversely, substance use by young

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 121 people may further negatively affect the extent to which their rights are respected, protected, and fulfilled. Premature-and avoidable-morbidity and mortality, along with the marginalization that stems from harmful use, are manifestations of the violation or neglect of a range of rights contained in the human rights treaties, including the right to nondiscrimination and the right to health. It is also important to note that although violation or willful neglect of rights is never permissible, there may be instances where it is legitimate for a government to restrict the rights of an individual, whether child or adult. For example, imprisonment of an individual who has been tried and found guilty of a crime is ordinarily considered a legitimate restriction on the right to freedom of movement. Such restrictions must comply with strict criteria to be considered legitimate under human rights law.32 The relationship between health and human rights is thus dynamic and mutually reinforcing. By taking steps to respect, protect, and fulfill the rights of young people, governments can reduce both the risk of substance use and the harm that it causes.

Modeling Vulnerability The concepts of risk and risk-taking behavior gained prominence in the 1980s, as it became evident that much of the morbidity and mortality among young people was connected to behavior. The literature often looked to individual behavior as the cause of the problem at the exclusion of the larger and more powerful forces that served to influence individual behavior. Although research into risk-taking behaviors began to explore the antecedents and consequences of such behaviors, it appears that these behaviors were by and large assumed to be undertaken volitionally and, in the case of adolescents, to follow a developmental trajectory.33 In addition, it was assumed that a conscious weighing of alternative courses of action was present.34 Whereas the literature acknowledged the influential role of peers, parents, family structure and function, and institutions in risk-taking behaviors, and recognized that risk-taking behaviors were found to “share similar psychological, environmental, and/or biological

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antecedents,”34 the possibility that these antecedents may in fact be consistent predictors of harmful use was not sufficiently discussed. A methodology for modeling vulnerability, developed in the context of understanding the relationship between human rights and HIV/AIDS,35–37 is adapted here to explore the relationship between human rights and substance use by young people. This model starts where traditional models of risk leave off, developing the concept of vulnerability to more fully explain the factors leading to risk and risktaking behaviors and thereby highlighting a range of necessary policy and programmatic responses. A health and human rights framework can then be used to guide the design of responses to eliminate or ameliorate sources of vulnerability and, ultimately, risk. Drawing on the definition used in the HIV/AIDS literature, vulnerability is understood as a limitation on the extent to which people are capable of making and effectuating free and informed decisions.37 Greater vulnerability is likely to lead to greater involvement in riskgenerating situations and risk-taking behaviors, both of which increase the risk of poor health outcomes. The concept of vulnerability expands the traditional risk factor approach by illuminating the context in which individual experience is embedded, thereby opening the door to thinking more broadly about the causes of poor health outcomes and about appropriate public health responses. The components of vulnerability (discussed below) are, in turn, shaped by the extent to which human rights are realized. Using the concept of vulnerability expands the range of risk factors considered relevant to a given health outcome (Figure 1). In addition to traditional risk factors, the concept goes further to include other individual, programmatic, and societal factors—such as substance use in the family or community; family violence and other forms of psychological, physical, or sexual abuse and exploitation; inadequately targeted care and support programs; education and poverty levels: employment possibilities; and homelessness—to explain harmful substance use. Individual vulnerability is characterized by personal history, knowledge, and behavior. Behavioral factors stem from personal characteristics—such as emotional and cognitive development, perception of

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 123 FIGURE 1- Model of individual, societal, and program-related vulnerability leading to risk behaviors and to individual risk for substance use.

_ _ _ _ _ _ _ _ _ _ _ 0%

100%

Risk of harmful substance use

Societal vulnerability Risk-taking behaviors /risk-generating situations

Individual vulnerability Programrelated vulnerability

Source. Adapted from Gruskin S, Tarantola D. HIV/AIDS, health and human rights. In: Lamptey P, Gayle H, Mane P, eds. HIV/AIDS Prevention and Care Programs in ResourceConstrained Settings: A Handbook for the Design and Management of Programs. Arlington, Va: Family Health International. In press.

and attitudes toward risk, family history of deprivation or abuse—and skills, including, for example, the ability to stand up to others or to oneself in refusing or limiting one’s consumption of tobacco, alcohol, and other substances. Program-related vulnerability considers the impact of health policies and programs on risk-taking behavior, risk-generating situations, and, therefore, on risk for harmful use. For example, drug use prevention programs that ignore the existence of, or variations in, young people and therefore their particular vulnerabilities to use38 can be understood to be an element of program-related vulnerability. The fragile legal status and social acceptability of some prevention and treatment initiatives themselves, such as needle exchange programs, can also be seen to exacerbate vulnerability. Societal vulnerability is determined by the social structures that have the power to influence—positively or negatively—risk-generating situations, risk-taking behavior, and, ultimately, risk. These structures include socioeconomic conditions, the social environment35 and infrastructure, political participation, and cultural norms. For example, members of a stigmatized population group, whether because of poverty, ethnic group, or geographic location, may find their risk of harmful use increased because of their societal vulnerability. Individual, program-related, and societal vulnerability interact and reinforce each other in ways that call increase the probability

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that young people will find themselves in risk-generating situations (e.g., homelessness or sexual exploitation) and engage in risk-taking behaviors (e.g., substance use), thereby increasing their risk of poor health outcomes. This model highlights, for example, the fact that ongoing marginalization of the poor may result in scarce resource allocations to certain communities, leading to inadequate educational and employment opportunities, few prevention programs for young people, ignorance or lack or prioritization of the potential dangers of substance use, and reliance for economic or social support on other young people who sell or use drugs. Precisely because each of the components of this model reinforces the others, rights-promoting interventions at any point can have a positive, multiplier effect. When interventions are consciously made at several points, the potential effect may be even greater. As a result, it is postulated that when governments respect, protect, and fulfill the range of human rights, young people’s ability to mediate these different sources of vulnerability can be increased, reducing both risk and harm. When these efforts are complemented by efforts by health professionals and others, the impact may be considerable.

International Responses The international community has not consistently integrated human rights as a central and fundamental part of its understanding of substance use or in its efforts to reduce vulnerability, directly prevent use, reduce harm, or treat young users. Thus, international and national responses have remained fragmented and, in many cases, have violated the human rights of young people. The international drug control system is governed by a series of international treaties that require governments to exercise control over production and distribution of narcotic and psychotropic substances and to take steps to combat drug abuse and illicit trafficking.4,9,10 The UN Commission on Narcotic Drugs is the main policy-making body for all matters of international “drug control.” All UN drug control activities are coordinated by the UN Drug Control Program, which was established in 1990. The UN Drug Control

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 125 Program is financed through both the regular budget of the UN and a voluntary funded budget and is supported mainly through government contributions. The system of administrative controls and penal sanctions outlined in the international drug treaties is seen largely to constitute prevention of substance use.39 The 1961 and 1971 conventions do, however, note that states parties “may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration [emphasis added].”4,9 The language and thrust of the 1988 convention with respect to abuse is similar.10 With respect to prevention, the 1961 and 1971 conventions address measures to be taken against the abuse of psychotropic substances. The language in the 2 conventions is once again parallel and reads, “The Parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall coordinate their efforts to these ends [emphasis added].”4,9,10 While it could be argued that language relating to prevention of harmful drug use is more sensitive to human rights than that dealing with punishment, what is important to note is that penal sanctions remain the primary mechanism for dealing with prevention and with people who use drugs, while all services—treatment, education, rehabilitation, after-care and social reintegration— are optional, despite the fact that human rights obligates governments to promote and protect the rights of individuals living within their borders, including the rights to health and education.40 Despite evidence that years of expensive supply reduction efforts have been of limited effectiveness, almost universally the focus remains on reducing the availability of illicit drugs through law enforcement measures, with relative neglect of demand and harm reduction approaches.41,42 Wodak writes: Over the last half century, drug policy has increasingly depended on effects to restrict illicit drug supplies. Yet global drug production has grown steadily, accompanied by a global increase in consumption (most marked recently in developing countries). These

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trends have occurred while illicit drug law enforcement has progressively intensified in almost all countries with enlarged customs bureaus and police drug squads, more severe penalties for drug offense, and substantially increased funding for all components focusing on reducing supply.42

The allocation of spending for supply and control activities vs demand reduction activities provides an indication of current global priorities. In 1996 and 1997, the UN Drug Control Program budgeted 49% of its funds for supply and control activities globally, while demand reduction activities received only 31% of the overall budget. Multisector activities, including policy planning, development of master plans, and institutional strengthening, were allocated the remaining 20% of funds.43 Such a focus implicates international drug agencies in the neglect of human rights. In many places, funding for drug efforts comes from international sources, which help establish the priorities for countries supported by these funds. It is our contention that the UN Drug Control Program and other drug agencies—by focusing on the punishment instead of treatment, of substance users, and by focusing on finding those who make and traffic in drugs instead of supporting people, especially young people, who are vulnerable to harmful substance use—inadvertently support countries in neglecting their human rights obligations. There is no doubt that the intention of the international community is to decrease substance use in the world. Yet the priorities put into place, budgetary allocations provided, and methods currently used to respond to that goal must be examined more closely for their integration of human rights principles.

National Responses National responses to harmful substance use are as diverse as the countries that have created them. While some countries have long or relatively successful histories of addressing substance use and abuse, others have relatively new or ineffective responses, includ-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 127 ing prevention and treatment as well as punishment for cultivation, possession, and trafficking of illegal substances. Tables 1 and 2 provide a global snapshot highlighting the differences in current national approaches. Table 1 provides a brief introduction to the existence and current implementation of laws and policies related to illegal substances: Table 2 presents a brief review of approaches to prevention and treatment. The countries chosen for inclusion are not meant to be representative of regions or continents, but, in providing illustrations of different approaches to substance law and policy, to raise questions concerning the apparent arbitrariness of the ways in which responses to substance use are designed and implemented. Some countries are increasingly harsh in their responses, while others are undergoing radical drug reforms. As illustrated in Table 1, in some countries the laws acknowledge differences among substances, among activities related to substance use (cultivation vs personal use vs trafficking), and among appropriate punishments for these different substances and activities; most do not. Laws and sentencing are often arbitrary. For example, in Ethiopia it was recently reported that a man found guilty of possessing 2 g of cannabis received 1 year in prison and a fine of 2000 birr (US $250), while another man, found guilty of heroin trafficking, was sentenced to 1 year in prison and a fine of 1000 birr (US $125).18 Many legal systems are sufficiently underdeveloped that people suspected of drug use or trafficking can spend long periods in detention before being charged, while those actually charged can wait years before getting a trial. Overzealous drug control bodies are not uncommon and police brutality in the context or drug use is well documented in many countries, as are bribery and other forms of corruption.5,18

Laws and Policies Regarding Prevention and Treatment Drug prevention and treatment activities are limited in many countries. The chief reason cited is a lack of resources, which often results in the creation of boards, committees, and policies without

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TABLE 1-Country-Specific Laws and Policies Relating to Substance Use and Abuse Bangladesh44

Life imprisonment or death penalty for 25 g or more cocaine or heroin, 2 kg or more cannabis or opium

Cameroon

18

Law makes no distinction between cannabis, cocaine, and heroin, defining all as illicit drugs of high risk

Ethiopia18

Law makes no distinction between categories of cultivator, dealer, and consumer, applying similar penalties to all 3 groups; police officers report delays in legal process, making it difficult to store forensic evidence, keep witnesses, and ensure that perishable exhibits can be used-all of which decrease the chance of rightful convictions It has been reported that those who cannot post bail

Ghana18

spend up to 4 years in prison before trial Malaysia

51

Broad power given to law enforcement agencies allows police and customs agents to intercept all mail, telephone, and telegraph communications and authorizes whipping of individuals convicted of possessing small amounts of illegal substances; mandatory death penalty for trafficking dangerous drugs (Malaysian courts sentence to death more than 200 drug offenders per year)

Netherlands45

Decriminalization of use of and retail trade in cannabis products

Nigeria

18

National Drug Law Enforcement Agency has authority to conduct raids and investigations, monitor and freeze personal bank accounts, impound personal property, and monitor telephone lines

Syria

46

In the absence of mitigating circumstances, capital punishment for smuggling of narcotic drugs

United States43

Five-year prison sentence given for both 500 g of powder cocaine and 5 g of crack cocaine; Black males constitute 12% of the population and 13% of drug users, but 55% of convictions for drug possession

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 129 TABLE 2—Examples of Available Drug Care and Treatment in Selected Countries Brazil47

Successful reduction of risk through needle exchange programs

Czech Republic48

Needle and syringe exchange programs in 5 urban areas; intensive drug prevention education implemented in secondary schools

Ethiopia

No medical establishments exist with facilities to treat

18

drug addiction; anyone seeking medical care for addiction to an illegal substance is subject to arrest; many doctors report feeling pressure to report people who come to them for treatment Few treatment centers that specialize in substance use

Japan49

for juveniles or adults; most treatment takes place in mental hospitals Kenya

Money confiscated from convicts is to be diverted to

18

the establishment of treatment and rehabilitation services (no monies thus far have been set aside) Needle and syringe exchange programs in 2 urban

Nepal48

areas Treatment includes investigation for physical, mental,

Nigeria18

and social “deficits”: detoxification, psychotherapy, and drug-free counseling; educational, social, and vocational rehabilitation (high treatment failure rates reported) Thailand

Drug awareness information integrated into school

39

curriculum at all levels United States

50,55

Possession, distribution, and sale of syringes remains a criminal offense in much of the country; federal government continues to prohibit use of federal funds for syringe exchange programs (HR 982, the “Keep Drug Needles Off the Streets Act,” which is still being debated, would permanently prohibit use of US federal funds for “direct or indirect” support of syringe exchange programs)

Zimbabwe

18

Plans for national drug awareness education and programs for drug treatment and rehabilitation facilities (neither plan has been implemented to date)

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funds for implementation. The National Policy on Alcohol and Drug Abuse in Zimbabwe has plans for national education on drug awareness and ambitious programs for drug treatment and rehabilitation facilities, but as of this writing neither had been implemented. Kenyan legislation states that money confiscated from convicts is to be diverted to the establishment of treatment and rehabilitation services, but while courts have accumulated fluids, no monies have thus far been set aside.18 Prevention efforts targeting youth appear to be focused primarily around schools. In Thailand, drug awareness literature has been integrated into school curriculums at all levels, while in the Czech Republic, an intensive education program has been implemented in secondary schools.51 Although these programs are extremely important, they do not serve those who do not attend school or who cannot read. The general deterioration of the public health service in many countries has also resulted in limited drug care and treatment (Table 2). Many countries, however, have initiated needle and syringe exchange programs to curb the spread of infectious diseases, including HIV/AIDS. In Brazil and elsewhere, no evidence has been found that such programs increase the frequency of drug injection or the number of injectors.52,53 Despite the importance and success of this public health intervention, some countries have banned the implementation of needle exchange programs. Other countries, the United States among them, have prohibited federal funding but allow local communities to make their own decisions about whether to implement needle exchange.54

Theory into Practice The vulnerability model provides an approach for analyzing the determinants of a range of health outcomes. As immense a problem as substance use may seem at first glance, human rights offers an approach for considering the steps policymakers, health professionals, and others can take to significantly reduce vulnerability. It enables the translation of broad aspirations, codified in legal lan-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 131 guage and obligations, into practical and actionable strategies. Explicit attention to human rights can suggest different ways of thinking about causes, and thus can suggest responses that can help reduce societal, program-related, and individual vulnerability to substance use, especially harmful use. Explicit attention to human rights serves the dual objective of respecting, protecting, and fulfilling the rights of young people and promoting and protecting their health. In addition, it points to the need to think about immediate action as well as longer-term objectives and strategies. Finally, while in the first instance human rights entails government obligations, human rights also offers standards that can orient (and, in feel already reflect) public health work by private actors, such as nongovernmental organizations and others concerned with the health and well-being of young people. Table 3 illustrates how those working in prevention, treatment, and reduction of young people’s vulnerability to substance use may think about human rights obligations vis-a-vis young people. The horizontal axis or the matrix is broken down by the range of governmental obligations—respect, protect, and fulfill—that must be satisfied to ensure that any right is fully realized. The vertical axis is broken down by the different policy and program responses required for 3 interrelated and equally important aspects of an individual’s experience with substance use. The matrix illustrates that governmental obligations to prevent harmful substance use among young people are both interrelated with and distinct from obligations to treat young people who already use or abuse substances, as well as obligations to reduce vulnerability to harmful substance use. The issues raised here are meant not to be highly detailed, but merely to serve as examples of the issues this approach brings to light. Examples provided earlier demonstrate the usefulness of such a matrix. Despite scientific evidence that needle exchange programs reduce the spread of HIV and do not lead to increased drug use, the United States has banned the use of federal funding for such programs.55 This ban could increase vulnerability to negative health outcomes and could be understood to represent a breach of the governmental obligation to respect the human right to health. The pressure that doctors in Ethiopia feel to report anyone seeking treat-

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TABLE 3—Governmental Human Rights Obligations In Relation to Harmful Substance Use

Prevention

Respect

Protect

Government not to violate rights of people in the design and implementation of drug prevention policies and programs

Government to prevent nonstate actors from violating the rights of people in the design and implementation of drug policies and prevention programs

Fulfill

Government to take administrative, legislative, judicial, and other measures to promote and protect the rights of people in the context of drug policies and prevention programs, including providing legal means of redress that people know about and Treatment Government not to Government to preGovernment to take violate rights direct- vent nonstate actors administrative, legislafrom violating rights ly in the design, tive, judicial, and other either in the design, implementation, measures, including implementation, and and evaluation of sufficient resource allodrug treatment pro- evaluation of drug cation, to ensure that treatment programs or drug treatment programs, including in ensuring that proensuring that programs are sufficiently grams are sufficient- grams are sufficiently accessible, efficient, accessible, efficient, ly accessible, affordable, and of affordable, and or efficient, affordgood quality, as well as good quality able, and of good providing legal means quality of redress that people know about and can access Reduction of Government not to Government to preGovernment to take all vent rights violations vulnerability violate the civil, possible administrative, political, economic, by nonstate actors, rec- legislative, judicial, and ognizing that neglect other measures, includsocial, and cultural or violation of rights rights of people ing the promotion of directly, recognizing has direct impact on human development that neglect or vio- vulnerability mechanisms, toward lation of rights has the promotion and direct impact on protection of human vulnerability rights, as well as providing legal means of redress that people know about and can access Source. Adapted from Tarantola and Gruskin.31

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 133 ment to the police has an impact on the government’s ability to protect human rights and ultimately may have an impact on the health of addicts, many of whom may choose not to seek treatment for fear of incarceration. Nepal, on the other hand, has taken steps to fulfill its obligations by progressively increasing the number of needle exchange programs that exist within the country. This matrix offers a critical approach for assessing the design and implementation of new and existing policies and programs and for addressing their practical implications from both public health and human rights perspectives. Ultimately, such an analysis could be extended to examine how approaches recognized as best health practice within each of these domains could contribute to advancing human rights in relation to each level of governmental obligation. Through this approach, it is hoped that responses to decreasing harmful substance use at the national and international levels could be enhanced.

Moving Forward As a first step, a human rights approach can be used by all concerned to assess government responsibility and accountability in terms of health. The proposed framework can be used, first, to explore how government action (or inaction) contributes to substance use or encourages harmful use by young people and, second, to explore how a government responds once substance use and the state’s role in encouraging it have been brought to its attention. This may be done by examining the human rights treaties the government has ratified and using the matrix described above to assess the degree to which the government is respecting, protecting, and fulfilling relevant rights. This can lead to analysis of how the extent of the government’s compliance projects itself into patterns of substance use by young people and what is done about the problem once it is identified. Second, those in both governmental and nongovernmental sectors who are working in research related to substance use among young people can ask what new questions about substance use and abuse by young people are raised by the vulnerability model and the proposed framework.

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Third, health policymakers, service providers, and others concerned with substance use among young people can use this framework to evaluate existing public health policies and programs, especially those not specifically dedicated to health but which may have a direct bearing on the frequency and distribution of substance use by young people (e.g., education, income generation, housing and infrastructure, rural development), in light of the obligations set forth above. Such an evaluation can serve as a tool for advocating, developing, and implementing new prevention policies in various sectors as well as for revising existing ones. Finally, by identifying gaps in governments’ compliance with their human rights obligations, nonstate actors—all those working in the nongovernmental sector as advocates, researchers, and service providers—can apply the human rights framework to their work and see how their work may complement state action in promoting and protecting both the health and rights of young people. It is clear that for efforts focusing on reducing harmful substance use among youth to be successful and for human rights to be promoted and protected, functioning legal systems must be in place. The lack of a legal framework in many countries undermines domestic and international efforts to control drugs and to provide prevention and treatment services to the people. If good laws are in place but are not enforced or are enforced selectively, individuals may not feel protected by them, especially when the laws address what many see as private behavior. Governments, with the help of international agencies, must not only define what is legal and illegal but must put into place clear mechanisms to safeguard the rights of individuals in relation to the exercise of these laws. This assistance may include building and strengthening institutional capabilities to ensure due process and effective remedies.

Conclusion The analysis of substance use by young people from a human rights perspective is in its infancy. Addressing substance use requires shortterm approaches, including more effective measures to control drug

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 135 supply, and long-term approaches, such as prevention education and treatment for addicts. Although short-term and long-term approaches are often seen as independent, placed in opposition to each other and forced to compete for resources, attention, and credibility, elements of both approaches are necessary parts of a comprehensive approach to the prevention of harmful substance use for present and future generations and therefore should be seen as interdependent.6 Both long-term and short-term approaches to supply and demand reduction must explicitly respect, protect, and fulfill human rights. Otherwise, they risk violating the rights of young people, both those who use substances and those who are vulnerable to use. We have sought to demonstrate that if the rights of young people are respected, protected, and fulfilled, their vulnerability to and risk for substance use, especially harmful use, can be reduced. We not only offer the theoretical basis for using human rights in analysis but, by offering practical tools for its application useful to concerned policymakers, health professionals, and others. We hope that the discussion presented here can serve as a next step in broadening the dialogue on new ways to promote and protect the health of young people that are effective, as well as—or precisely because they are— consistent with human rights principles.

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NY: United Nations Economic and Social Council: 1999. 8. United Nations Drug Control Program. Drugs and Development. UNDCP Technical Series1994/06/01. Available (in PDF format) at: http://www.odccp.org:-20/technical%26amp;#95;series%26amp;#95;1994-06 -01_1.html. Accessed October 5, 2001. 9. Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961. Available at: http://www.incb.org/e/conv/1961/. Accessed October 8, 2001. 10. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. Available at: http:/www.incb.org/e/conv/1988/. Accessed October 8, 2001. 11. Youth and Drugs: A Global Overview. Report of the Secretariat. New York, NY: United Nations Economic and Social Council: 1999. 12. Economic and Social Council begins three-day high-level discussion on international cooperation to combat illicit drugs [press release]. New York, NY: United Nations; 1996. ECOSOC/5644. 13. McCarthy M. UN adopts plans to combat worldwide illicit drug use. Lancet. 1998;351:1863. 14. International Statistical Classification of Diseases and Related Health Problems, 10th Revision. Geneva. Switzerland: World Health Organization; 1992. 15. Ozaki S. Current status of drug abuse among youth in Japan. Paper prepared for: WHO Conference on Youth and Substance Abuse in the Context of Urbanization: February 7–11. 2001; Kobe, Japan. 16. Boonmongkon P. Sanders S, Suttikasem P, Promchitta P. Sopikul K. Urbanization, youth and substance abuse in Thailand: lessons learned and new directions. Paper prepared for: WHO Conference on Youth and Substance Abuse in the Context of Urbanization; February 7–11. 2000; Kobe, Japan. 17. United Nations Drug Control Program. Bulletin on narcotics. 1994, Issue 1. Available at: http://www.undcp.org/bulletin%26amp;#95;on%26amp;#95;narcotics.html. Accessed October 5, 2001. 18. The Drug Nexus in Africa. Vienna, Austria: United Nations Office for Drug Control and Crime Prevention; March 1999. UNODCCP Studies on Drugs and Crime Monographs. 19. Charter or the United Nations. Available at: http://www.un.org/aboutun/charter/index.html. Accessed October 5, 2001. 20. Universal Declaration of Human Rights. December 10, 1948. Available at: http://www.un.org/overview/rights.html. Accessed October 5, 2001. 21. Redress—International Covenant on Civil and Political Rights. UN GA Res 2200 (XXI). Available at: http://www.redress.org/uniccpr.html. Accessed October 5, 2001. 22. International Covenant on Economic, Social and Cultural Rights. UN GA Res 2200 (XXI). Available at: http://www.unhchr.ch/html/menu3/b/a%26amp;#95;cescr.htm. Accessed

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 137 October 5, 2001. 23. Convention Against Torture and Other Cruel Inhuman ar Degrading Treatment or Punishment. UN GA Res 39/45. Available at: http://www.unhch.ch/html/menu3/b/h%26amp;#95;cat39.htm. Accessed October 5, 2001. 24. Convention on the Rights of the Child. UN GA Res 44/25. Available at: http://www.unhechr.ch/html/menu3/b/k2crc.htm. Accessed October 5, 2001. 25. Convention on the Elimination of All Forms of Racial Discrimination. UN GA Res 2106A(XX). Available at: http://www.unhchr.ch/html/menu3/b/d%26amp;#95;icerd.htm. Accessed October 5, 2001. 26. African [Banjul] Charter on Human and Peoples’ Rights. June 27, 1981. OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982). Available at: hltp://www.oau-oua.org/oau%26amp;#95;info/charter.htm.Accessed October 5, 2001. 27. Council of Europe (1950). European Convention for the Protection of Human Rights and Fundamental Freedoms and its Nine Protocols ETS No. 005. Available at: http://conventions.coe.int/Treaty/EN/ cadreprincipal.htm. Accessed October 5, 2001.

28. American Convention on Human Rights. OAS Treaty Series No. 36. Available at: http://www.oas.org/. Accessed October 5, 2001. 29. Eide A. Economic, Social and Cultural Rights as Human Rights. In: Eide A, Krouse C, Rosus A, eds. Economic, Social and Cultural Rights: A Textbook. Dordrecht, the Netherlands: M. Nijhoff; 1995:21–40. 30. Sullivan DJ. The nature and scope of human rights obligations concerning women’s right to health. Health Hum Rights. 1995;1:368–398. 31. Tarantola D, Gruskin S. Children confronting HIV/AIDS: charting the confluence of rights and health. Health Hum Rights. 1998;3:62–65. 32. Siracusa Principles on the Limitation and Derogation Provision in the International Covenant on Civil and Political Rights. New York, NY: United Nations Economic and Social Council: 1984. UN Doc. E/CN.4/1984/4. 33. Jessor R. Risk behavior in adolescence: a psychosocial framework for understanding and action. J Adolesc Health. 1991;12:597–605. 34. Igra V, Irwin C. Theories of adolescent risk-taking behavior In: DiClimente RJ. Hansen WB, Ponton LE, eds. Handbook of Adolescent Health Risk Behavior. New York: Plenum Press: 1996. 35. Tarantola D. Risk and vulnerability reduction in the HIV/AIDS pandemic. Curr Issues Public Health. 1995;1:176–179. 36. Expanding the Global Response to HIV AIDS Through Focused Action Reducing Risk and Vulnerability: Definitions. Rationale and Pathways. Geneva, Switzerland: UNAIDS; 1998. 37. Gruskin S, Tarantola D. HIV/AIDS, health and human rights. In: Lamptey P, Gayle H, Mane P, eds. HIV AIDS Prevention and Care Programs in

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Resource-Constrained Settings: A Handbook for the Design and Management of Programs. Arlington Va: Family Health International. In press. 38. Concluding Observations of the Committee on the Rights of the Child: Luxembourg. Geneva, Switzerland: Office of the United Nations High Commissioner for Human Rights: June 24, 1998: paragraph 28. CRC/C/15/Add.92. 39. Commentary on the Convention on Psychotropic Substances Cited by: Tomasevski K. Health In: Schachter O. Joyner C, eds. United Nations Legal Order. Cambridge. England: Cambridge University Press; 1995:859–906. 40. Tomasevski K. Health. In: Schachter O. Joyner C, eds. United Nations Legal Order. Cambridge, England: Cambridge University Press: 1995:859–906. 41. Drucker E. Drug prohibition and public health: 25 years of evidence. Public Health Rep. 1999;114:99–1110. 42. Wodak A. Health, HIV infection, human rights, and injecting drug use Health Hum Rights. 1998;2(4):25–41. 43. World Drug Report Fact Sheet. Vienna, Austria: United Nations Drug Control Program; 1997. 44. United Nations Office for Drug Control and Crime Prevention Bulletin on narcotics 1992. Issue 1. Available at hhtp://www.undcp.org/bulletin%26amp;#95;on%26amp;#95;narcotic.html. Accessed October 5, 2001. 45. Grieg A. The War on Drugs and a Harm Reduction Response. Participant manual. Harm Reduction Training Institute Overview Course. New York, NY: Harm Reduction Training Institute; 1998. 46. Drucker E, Hantman JA. Harm reduction drug policies and practice: international developments and domestic initiatives. Overview of a symposium. March 22, 1995. Bull N Y Acad Med. 1995;72(2):335–338. 47. Resnicow K, Drucker E. Reducing the harm of a failed drug control policy. Am Psychol. 1999:54:842–843. 48. The Lindesmith Center—Drug Policy Foundation. Focal point; needle exchange/syringe availability. 2001. Available at: http://www.lindesmith.org/library/local9.html. Accessed October 8, 2001. 49. Bangladesh Narcotics Control Act, 1990. Available at: http://www.undcp.org./legislation.html. Accessed October 8, 2001. 50. Van Vliet H. Separation of drug markets and the normalization of drug problems in the Netherlands: an example for other nations? J Drug Issues 1990;20:463–471. 51. Syrian Arab Republic Narcotic Drugs Law. April 12, 1993. Available at: http://www.undcp.org/legislation.html. Accessed October 8, 2001. 52. United Nations Drug Control Program Bulletin on narcotics. 1993. Issue 1. Available at: http://www.uncdp.org/bulletin%26amp;#95;on%26amp;#95;narcotics.html. Accessed October 5, 2001. 53. United Nations Drug Control Program Bulletin on narcotics. 1996. Issue 1. Available at:

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 139 http://www.undcp.org/bulletin%26amp;#95;on%26amp;#95;narcotics.html. Accessed October 5, 2001. 54. United Nations Drug Control Program. Bulletin on narcotics. 1989. Issue 1. Available at: http://www.undcp.org/bulletinon narcotics.html. Accessed October 5, 2001. 55. Needle exchange programs: part of a comprehensive HIV prevention strategy. US Dept of Health and Human Services [act sheet. Available at: http://www.hhs.gov/news/press/1998pres/980420b.html. Accessed October 8, 2001.

*Sofia Gruskin is with the Program on International Health and Human Rights, Franç-Xavier Bagnoid Center for Human Rights. Allison Smith-Estelle is a doctoral candidate in the Department of Population and International Health, Harvard School of Public Health, Boston, Mass. Karen Plafker is with the Public Health Program Open Society Institute, New York, NY. American Journal of Public Health December 91, no. 12 (2001): 1954–63. Reprinted by permission.

DEBATE QUESTIONS

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1. What do the authors see as the benefits of a health and human rights framework? 2. How can a human rights approach help us understand the causes of drug use among young people and assist us in identifying appropriate interventions? 3. What are the commonalities between the vulnerability model and human rights framework and how do they inform a discussion about drug use?

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Health, HIV Infection, Human Rights, and Injection Drug Use by Alex Wodak*

The epidemic of AIDS was first recognized in the 1980s. AIDS was soon shown to result from sexual or blood-to-blood transmission of the human immunodeficiency virus (HIV). In response to this epidemic, some called for draconian measures directed at populations deemed to be at highest risk arguing that this was a traditional public health approach to epidemics spread by dangerous microorganisms. Few were persuaded by this argument. An alternative approach based on the notion that only more vigorous attempts to protect human rights for all, but especially the most vulnerable members of communities, can ensure that the HIV epidemic is brought under control was also set forth. Although initially argued by some to be counterintuitive, it has since come to be widely accepted as the most reasonable strategy. In almost all countries, populations at higher risk of HIV infection, including men who have sex with men, commercial sex workers and injecting drug users, have long been subjected to discrimination. There is now a wealth of empirical evidence drawn from numerous countries to demonstrate that prevention strategies based on respect for human rights allow authorities to engage more effectively with higher risk populations, thereby reducing high risk behavior and decreasing the spread of HIV.1 Protection of human rights for all, especially marginalized populations, has become a central issue for all those concerned with protecting present and future generations from

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 141 the immense health, social and economic costs of poorly controlled HIV epidemics. This article argues that widespread denial of the basic human rights of drug users and poor control of HIV among and from injecting drug users are closely connected by an almost universal focus on reducing the availability of illicit drugs through law enforcement measures, while a harm reduction approach would ultimately be more useful.

IDU an Vulnerability to HIV Infection HIV infection has not only changed the way injecting drug use is perceived, but has also transformed injecting drug use itself. Injecting drug users (IDUs) have been among the most marginalized of populations, especially in those countries where the national drug policy relies almost entirely on efforts to restrict illicit drug supplies. Assessment of the emphasis accorded to the human rights of IDU’s is therefore important for evaluating, past, present and proposed efforts of national governments and international organizations attempting to control the spread of HIV. A decade ago, the problems of illicit drug use and the practice of drug injection seemed restricted to the wealthy industrialized countries of the world. Likewise, HIV infection among drug injectors seemed only a problem of the industrialized world. This is no longer true. For example, in 1988, HIV infection among IDUs began to spread explosively in Thailand with a monthly incidence in this population of an astonishing four percent. Subsequently, HIV epidemics fueled by the heterosexual spread of the virus affected the general community in that country. HIV epidemics extended to injecting drug users In the neighboring countries of Burma, (northeast) India, (southwest) China, Vietnam and Malaysia.2 It has become undeniable that injecting drug use is far more common than had been realized in a growing number of developing countries, and that concurrently HIV is spreading alarmingly among this population and their sexual partners. Experience in many parts of the world demonstrates that where HIV infection has spread extensively among IDUs through the shar-

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ing of unsterile injection equipment, infection also occurs through sexual contacts between IDUs and their sexual partners. Approximately one-third of the new cases of AIDS attributed to heterosexual transmission in the United States result form sexual contact between HIV-infected IDUs and their non-drug using sexual partners.3 Accordingly, respect for human rights of IDUs is a matter which transcends this population and is of concern to the entire community. Furthermore, as drug injecting populations in one country may be in close contact with their counterparts in other countries, this issue is not only of national but also international importance. Over the last half century, drug policy has increasingly depended on efforts to restrict illicit drug supplies. Yet global drug production has grown steadily, accompanied by a global increase in consumption most marked recently in developing countries.4,5 These trends have occurred while illicit drug law enforcement has progressively intensified in almost all countries with enlarged customs bureaus and police drug squads, more severe penalties for drug offenses, and substantially increased funding of all components focused on reducing supply.6 Populations of IDUs often have dreadful health outcomes with far higher morbidity and mortality than non-drug using men and women of similar age. HIV infection, now the most serious threat to the health of drug injectors, has been shown to be rampant in this population in several parts of the world, including, especially, the northern shores of the Mediterranean, the northeastern tri-state region (New York, New Jersey, and Connecticut) of the United States, the highly populated southeast region of Asia and in southeastern Brazil. Prevalence of HIV among populations of injecting drug users in these regions often exceeds 50 percent, especially in larger cities.7 It is estimated that there are now over 5 million injecting drug users in more than 120 countries.8,9

Global Drug Production and Markets The illicit drug market is both dynamic and volatile.10,11 Every few years, decreasing global production of illicit drug is reported with enthusiasm. Most often these decreases are only temporary and local,

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 143 and result from such factors as poor weather in particular growing areas.12 During the last decade, chemical-based drugs (such as amphetamine) have started to supplant or replace plant-based drugs (such as heroin or cocaine) because of their shorter supply line and consequent greater ease of concealment. There is increasing evidence that HIV infection follows drug trafficking routes. Law enforcement focused on illicit drugs tended to destabilize drug trafficking routes exposing new populations to the risk of drug injection and HIV. Regrettably, a sustained reduction in global illicit drugs through law enforcement seems unachievable. 13,14,15 During the last decade technological advances in communications and transport have been increasingly available, and a remarkable globalization of capital, labor, goods and services has occurred. Supranational trading blocks like the European Union, the North American Free Trade Association (NAFTA) and the Asia Pacific Economic Cooperation (APEC) group have been established to reduce customs barriers and other obstacles to trade. These changes have enabled the illicit drug trafficking industry to operate with ever increasing ease.16 Rapidly improving transport and infrastructure in the developing world has also helped to assist the distribution of illegal drugs in these countries. There has also been a reported growing involvement of anti-government military forces in illicit drug trafficking.17 The considerable skills these organizations have acquired transporting firearms, finances and fugitives from justice around the world when applied to drugs can also generate the income needed to fund armed rebellion.

Global Drug Consumption Until the 1980s, illicit drug cultivation and production was almost entirely confined to developing countries while consumption was virtually restricted to industrialized countries. These boundaries have become increasingly blurred. Consumption of illicit drugs has been stable or has even declined in many industrialized countries, as demand has been saturated. In contrast, consumption of illicit drugs has increased rapidly in many developing countries.

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The increase in income in some developing countries has made illicit drugs an affordable luxury for large populations for the first time. The rapid urbanization of populations in many developing countries in recent years has probably also contributed to the growing supply and demand for illicit drugs. With the increasing adoption of free market economic polices around the world, incomes and wealth have been growing more divergent within and between countries. In many countries severely disadvantaged populations without hope of gaining education, legitimate earnings or jobs have increasingly turned to illicit drug use and trafficking, partly to cope with intolerable poverty and hopelessness but also as a source of income and employment when legal alternatives have been unavailable. In recent decades, there has also been a tendency in developing countries for drug users to switch from non-injecting routes of administration to injecting. This transition to injection is encouraged by the focus of law enforcement operations. Drugs consumed by smoking, such as cannabis and opium, are far more bulky and strong smelling and therefore easier to detect than injectable drugs such as heroin, cocaine, and amphetamine. Similarly, needles and syringes for injecting are much easier to conceal than pipes for smoking. This was described 20 years ago, when enforcement pressures were intensified as the “pro-heroin effects of anti-opium policies.”18 Conversely, and for different reasons in each place, non-injecting routes of administration have started to replace injecting drug use in industrialized countries such as the United States, the Netherlands, and the United Kingdom.19 Non-injecting routes of administration such as smoking, sniffing, swallowing and snorting are associated with much lower risk of death from drug overdose and virtually no risk of blood borne viral infections (such as HIV, hepatitis B and C) provided there is no relapse to injecting.

Complications of Injecting Drug Use The complications of injecting drug use have become far more serious in recent years. For unknown reasons, drug overdose deaths have increased in many industrialized countries.20 There is minimal data

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 145 on drug overdose deaths from developing countries. Multi-drug resistant tuberculosis has also become a problem in some countries, especially where HIV infection among drug users is under very poor control. Injecting drug use is now responsible for approximately 5 to 10 percent of global HIV infections.21 Although less than the proportion of HIV infections associated with sexual transmission, public health repercussions of HIV infections associated with shared injecting equipment are generally greater than infections attributed to unsafe sex alone. IDUs are often disadvantaged members of their communities with limited capacity to adjust to the havoc of a lifethreatening illness. In countries where HIV has spread extensively among injecting drug users, rapid spread to the general population has generally occurred, especially where there has also been a large commercial sex industry close to the drug-using population.22 In the last few years, it has become better appreciated that HIV represents only a small proportion of all blood borne viral infections associated with sharing of injection equipment. Hepatitis B and C are generally far more prevalent than HIV among IDU populations.23 The prevalence and incidence of Hepatitis C (HCV) among drug injectors around the world is remarkably similar. Approximately three quarters of injecting drug users with a history of at least five years injecting are HCV antibody positive. Although a smaller proportion of HCV antibody positive individuals develop serious complications and the onset is considerably delayed compared to HIV, the burden of illness due to HCV among injecting drug users is very high in most countries, and in many, probably exceeds that due to HIV.

The Rise and Rise of Prohibition Prohibition is an attempt to eliminate or reduce cultivation, production, transport, distribution, sale, possession and administration of certain mood-altering drugs specified in national laws and international treaties. In recent decades, authorities have also attempted to curtail the movement of funds by drug traffickers within countries and across national boundaries. The international movement to prohibit illicit drugs began with

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an international meeting in Shanghai in 1909 and a subsequent meeting held under the auspices of the League of Nations in Geneva in 1925. A series of international treaties were instituted and combined into the Single Convention on Narcotic Drugs of 1961 (amended in 1972). International organizations like the United Nations International Drug Control Program (UNDCP) were established to institutionalize international cooperation to restrict drug supplies. The effect of this growing web of laws and international mechanisms concerned with illicit drug use has been to define illicit drug use almost entirely as a law enforcement problem.24 Health interventions have received minimal emphasis despite growing and compelling evidence of both effectiveness and cost-effectiveness. During the last decade, there have been some attempts to increase the emphasis on reducing the demand for drugs. A “harm reduction” approach has been explicitly endorsed by a number of countries, with even some grudging acceptance from the UNDCP. In the last few years, there has been a welcome greater acceptance of the public health effectiveness of harm reduction programs from international organizations concerned with health such as the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS).

The Effect of Prohibition on Health, Social, and Economic Outcomes Despite the increasing emphasis on efforts to reduce the supply of illicit drugs, there has been a global increase in the volume of drugs consumed, the number of people consuming these drugs, and a proliferation in the range of drugs available.25 Intensified illicit drug law enforcement may have raised profits as well as prices, attracting more drug traffickers who in turn searched for new markets. Prohibition may well have had counterproductive effects on the global drug market. The entry of Colombian “cartels” into cocaine trafficking to the United States is said to have followed stern action taken by U.S. authorities against the South American cannabis industry.26 Relatively less harmful routes of administration such as chewing coca leaf

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 147 have been largely replaced by more harmful routes of administration such as injecting cocaine or inhaling crack cocaine vapor. There is no convincing evidence that a law enforcement focus on illicit drugs has produced significant, sustained reductions in drug use or drug problems, although some regions or countries may have experienced temporary benefits.27 Public health measures introduced to reduce the spread of HIV among injecting drug users (such as methadone maintenance programs and needle exchange programs) have been obstructed or delayed in many countries because of an entrenched belief in the effectiveness of illicit drug law enforcement and the perception that support for harm reduction might undermine supply reduction. Countries which most emphasized supply reduction, such as the United States, have generally witnessed more extensive spread of HIV among IDUs.28 The health, social, and economic cost of drugs use has been exacerbated by prohibition, for not only has it failed to limit the number of persons who use drugs, but individual and societal outcomes have deteriorated. It is also difficult to deny a link between vigorous efforts to reduce the supply of drugs and corruption of the criminal justice system. Reliance on illicit drug law enforcement is often associated with high levels of property crime and large numbers of drug users entering prison, further threatening the physical and psychological health of an already vulnerable population. Attempts to reduce the cultivation, production, transport, distribution, sale, and self-administration of illicit drugs and interrupt the flow of profits generated from illicit drug trafficking have proven to be very expensive and ineffective.29 The opportunity cost of benefits foregone (e.g., investments to improve employment and education in disadvantaged populations or to improve the amenity of derelict neighborhoods) should also be considered.

Harm Reduction Some countries have responded to the threat of HIV infection among IDUs with a pragmatic approach often referred to as “harm reduc-

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tion.” Harm reduction is based on the acceptance of the fact that illicit drug use is entrenched in many (if not most) countries. Harm reduction policies regard the lessening of the health, social and economic costs of illicit drug use as their paramount task, and the reduction of drug supply as only one possible approach for achieving this end. In contrast, conventional approaches generally seek to reduce the number of people who use illicit drugs even though this may increase the overall costs to individual drug users and the general community. Although harm reduction is considered by some to be a new development, it has been implicit in numerous policy and program approaches to mood-altering drugs and other public health issues for some decades. Even the term “harm reduction” itself predates the era of HIV and appears in some WHO official publications.30 Measures used to control HIV infection among and from IDUs have generally been based on some form of a harm reduction approach. These have included explicit and realistic education for drug users designed and implemented with the involvement of the target population, community development of IDUs including government-funded user organizations, needle exchange programs and methadone maintenance. Countries which explicitly adopted harm reduction programs and implemented these measures have generally controlled HIV epidemics among their injecting drug users with little difficulty.31 Such countries include Australia, the Netherlands, New Zealand, and Switzerland. However, this achievement was only possible by contravening the spirit—if not the letter—of prohibition. For example, it was possible in countries which adopted harm reduction to convince the police of the overwhelming importance of containing HIV among IDUs for the benefit of the entire community. Accordingly, police agreed to ignore needle exchanges and methadone programs, allowing them to function effectively. Countries which have explicitly opposed harm reduction, such as the United States, Malaysia, and (initially) Thailand have generally experienced far more extensive spread of HIV among injecting drug users and subsequent spread to populations which do not use drugs.32

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Human Rights, Injecting Drug Use and Prohibition The Universal Declaration of Human Rights (1948) includes many rights which may be understood to be seriously compromised by drug prohibition policies and practices, including the rights to life, liberty, health, education, equality before the law, freedom of movement, religion, association, and information.33 The right to health is compromised by approaches which often diminish health outcomes for injecting drug users, their families and their communities. Efforts to introduce effective harm reduction/public health prevention strategies, such as needle exchange and methadone, have been thwarted in many countries because these measures were seen to conflict with the national drug policy of prohibition. By worsening control of HIV as well as damaging many other important health outcomes, prohibition can justly be understood to raise a number of human rights issues. The illicit drug users’ right to liberty is jeopardized by the very common experience of arbitrary arrest and incarceration. Even those who have never committed violent or property crimes are threatened. Most injecting drug users are involved at one time or another in buying or selling illicit drugs, because they have no legitimate sources of supply. Therefore, selling illicit drugs provides both a source of illicit drugs and an income to fund their own consumption. This inevitably draws illicit drug users into the criminal justice system where once deprived of their liberty, they are at increased chance of HIV infection or risk other damage to their physical or psychological health. Drug users have a right to information, including being informed by authorities about health problems in a dispassionate manner. In practice, this rarely happens. Information about drugs provided to the public in most countries is systematically distorted and exaggerated. Research grants proposing to investigate potential health benefits of currently illicit drugs (such as cannabis) are unlikely to receive funding, while generous grants are available for researchers interested in documenting possible toxic effects. Drug education often attempts to deter potential users by exaggerating adverse health consequences.

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Drug users are often deprived of information about realistic ways of reducing the harm from illicit drugs while continuing to use them as this is seen to condone illegal drugs. The right to equality before the law is probably the most flagrantly contravened element of human rights as it applies to IDUs. In some countries, IDUs have lost the presumption of innocence, generally considered a cornerstone of fair legal systems. In the United States, umbilical cord blood or meconium from newborns has been used to prove maternal illicit drug use during pregnancy. However, there have been no attempts to test maternal use of legal drugs, such as alcohol or tobacco, even though there is substantial evidence of significant damage to the fetus from these drugs. In the United States, there is an astonishing disparity in the penalties imposed for powder cocaine and crack cocaine (which are used differently by different racial/ethnic groups).34 The right of illicit drug users to free association was denied universally until the 1980s. At that time, health departments in some countries realized that community organizations could help control the spread of HIV. Although associations of injecting drug users have started to appear in a few countries such as the Netherlands, the United Kingdom and Australia over the last decade, this is still unthinkable in most countries which enthusiastically enforce prohibition. The ability of these associations to function effectively depends on the level of societal willingness to deal with these issues constructively. Such associations can provide an easy opportunity for law enforcement authorities to arrest drug users in countries where repressive policies prevail. Thus prohibition and the freedom of association of drug users can easily be seen as incompatible. The rights to a decent standard of living, including food and nutrition, clothing and housing, the right to necessary medical care and treatment and the right to social security, are almost always denied to drug users, even in countries generally considered to be “enlightened.” Illicit drug users often live in squalid conditions. In some countries, as an extension of law enforcement efforts to control drug use, health care workers are required by law to notify authorities of patients they believe to have health problems resulting from illicit

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 151 drug use. Controlling illicit drug availability through law enforcement and achieving control of HIV infections in this population are often mutually exclusive aims. The United Nations General Assembly has also approved a Declaration on the Rights of Disabled Persons which could conceivably include drug users.35 This Declaration notes the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged. A “disabled person” is defined as “any person unable to ensure himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.” Whether alcohol or drug dependent persons should be regarded as disabled has often been debated. In a well-known case (which reached the U.S. Supreme Court), a former serviceman, dishonorably discharged from the U.S. Army for alcoholism, sued his former employer for failure to provide educational benefits available to other discharged soldiers on the grounds that he had been discriminated against because of an illness.36 The United States government does allow some alcohol and drug dependent persons to receive social services because of their disability. Although economic and social rights can be provided progressively, inadequate progress is occurring in many countries as resources and services required to ensure these human rights are being reduced by many governments. The rhetoric employed in the drug control arena also betrays a highly discriminatory attitude. The term intravenous drug “abuser” or injecting drug “abuser” was virtually universal as recently as 10 years ago. The term is still common in many countries, but is slowly being replaced by the term injecting drug “user,” especially in countries which have accepted harm reduction. In the Netherlands, it has been widely reported that the term “Dutch citizens who use drugs” has been used in official document. When the HIV epidemic was first recognized in the early 1980s, authorities in industrialized countries were forced to reconsider their long-standing commitment to policies which marginalized drug injecting populations and kept them underground. Countries like the Netherlands and Australia recognized that optimal control of this

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epidemic was not possible while one of the most critical target populations remained ostracized. Thus began a process aimed at integrating drug users into mainstream life. Inevitably, this lead to some interesting contradictions. In Australia, for example, some government AIDS projects require that appointed educational officers are actually members of the target populations.37 Consequently, some officers appointed to projects targeting drug users have publicly stated that they were eligible for their positions because they were currently carrying out a practice deemed at the time to be illegal.

The Decline of Prohibition: Zero or Drudging Tolerance? The 1990s have seen the remarkable success of harm reduction approaches to control HIV infection among injecting drug users. Evidence of this success first began to emerge from industrialized countries but some evidence of success is now also emerging from developing countries. 38,39 This experience has led some to consider that harm reduction can only be taken to its logical conclusion if the legal environment is changed. A trial of lawful heroin provision to heroin users intractable to previous treatments was commenced in Switzerland in 1994 with encouraging preliminary results. Among the total of 1,146 patients followed for 18 months, there were no overdose deaths, only three new HIV infections, four new hepatitis B infections and five new hepatitis C infections.40 The Netherlands has also been a pioneer of this approach, having decided recently to conduct a heroin trial. Heroin trials are also under consideration in Spain and Canada. In the United States, in November 1996, 53 percent of voters participating in a referendum held simultaneously with presidential and congressional elections supported medicinal cannabis use in California (Proposition 215) and 66 percent supported more radical drug policy reform measures in Arizona (Proposition 200).41 This suggests that voters may be far more prepared to consider reform than their elected leaders. Virtually all countries are caught in a tangled web of national and

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 153 state laws and commitments to international drug control treaties. It is inevitable that the few countries embarking on reform in the next few years will proceed cautiously, carefully evaluating each state, and that their successes and failures will serve as models for future efforts.

Conclusion In recent decades, global drug consumption has increased substantially in terms of the number of countries where illicit drug use is found, the number of individuals consuming drugs, and the range of drugs available. Drug problems have become significant public health concerns in many countries in recent years with increasing numbers of overdose deaths. Entry of HIV infection into drug injecting populations dramatically worsens their health outcomes. There is a growing perception that illicit drug law enforcement has been a resounding failure. It has generally proved to be expensive, ineffective, and counterproductive. Yet criminal sanctions continue to dominate national and international responses to illicit drugs. Illicit drug law enforcement has increased the number of people exposed to the risk of HIV through drug injecting by inadvertently encouraging a shift away from less harmful routes of administration of low concentration, relatively unrefined illicit drugs. Instead, the consumption of illicit drugs in a more concentrated and refined form has led to the far more hazardous routes of administration which are now known to be associated with HIV transmission. The unswerving commitment to a policy relaying on illicit drug law enforcement has also impeded implementation of effective public health/harm reduction measures designed to reduce HIV spread such as needle exchange and methadone programs. The spread of HIV along illicit drug trafficking routes in Asia and Latin American and the instability of these routes in the face of intense law enforcement pressures are further pointers to the link between HIV spread and prohibition. Support for drug policy reform is growing in many countries as these and other problems associated with reliance on illicit drug law enforcement are increasingly recognized. Reliance on criminal sanctions as the major response to illicit drug

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use inevitably results in the denial of human rights of the IDU population as drug use remains defined as a law enforcement rather than a health problem. Poor health outcomes in this population then follow, because health promotion and health care services are more difficult to provide to a now stigmatized and underground population. Protection of human rights is an essential precondition to improving the health of individual drug users and improving the public health of the communities where they live. Experience with controlling HIV in diverse risk groups in many countries demonstrates that better outcomes are generally achieved when target populations are involved in the selection and implementation of the prevention measures which affect them. Involvement of risk groups in control of HIV is extremely difficult unless the members of these groups are recognized as full citizens with the same rights as other citizens. In order to achieve major improvements in the health and HIV control of injecting drug users, several important reforms are required. Illicit drug use will need to be accepted as primarily a health rather than a law enforcement problem. The fact that drug users hold the same rights as other citizens will need to be recognized. Policy on illicit drugs will need to be determined on the basis of evidence, rather than assuming conformity with international treaties passed decades ago. The recent trial in Switzerland suggests that medical prescription of currently illicit drugs for selected individuals may be an effective way of improving health and welfare outcomes including reducing the spread of blood borne viral infections. Improvement in the health of individual drug users and the health of the public at large requires recognition of the human rights of injecting drug users.

REFERENCES 1. D.C. Des Jarlais, P. Friedman, H. Hagan, S.R. Friedman, “The Protective Effect of AIDS-Related Behavioral Change Among Injection Drug Users: a Cross National Study,” American Journal of Public Health 86(1996):1780–1785. 2. Asian Harm Reduction Network, The Hidden Epidemic. A Situation Assessment of Drug Use in Southeast and East Asia in the Context of HIV Vulnerability, prepared for the UNAISS/Asia Pacific Inter-country Team

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 155 (Fairfield, Australia: The Macfarlane Burnet Centre for Medical Research, 1997). 3. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report 9(1) (1997): 10. 4. Bureau of International Narcotic Matters, U.S. Department of State, International Narcotics Control Strategy Report (Washington, D.C.: Government Printing Office, 1993). 5. International Narcotics Control Board, International Narcotics Control Board Report for 1993, UN Doc. E/INCB/1993/1. 6. E. Nadelmann, “Drug Prohibition in the United States: Costs, Consequences and Alternatives,” Science 245(4921) (1989):939–947. 7. S. Sttrathdee, E. van Ameijden, F. Mesquita, A. Wodak, et al., “Can Epidemics of HIV Among Injecting Drug Users Be Prevented?” AIDS (forthcoming). 8. J.M. Mann, D.J.M. Tarantola, T.W. Netter (eds.), AIDS in the World: A Global Report (Cambridge: Harvard University Press, 1992). 9. G.V. Stimson, M. Adelekan, T. Rhodes, “The Diffusion of Drug Injecting in Developing Countries,” The International Journal of Drug Policy 7(4) (1996):245–255. 10. K.J. Riley, Snow Job? The War Against International Cocaine Trafficking (New Brunswick: Transaction Publishers, 1996). 11. One of the most notable changes in the global illicit drug market in recent years has been the spread of opium cultivation to new areas. For the first time since 1990, opium has been cultivated in South America. Heroin production is steadily increasing in Colombia. Opium has also been cultivated in China in recent years for the first time since 1949 and is now being cultivated in some former USSR Central Asian republics. 12. Bureau of International Narcotic Matters, see note 4. 13. K.J. Riley, see note 10. 14. A. Wodak, R. Owens, Drug Prohibition: a Call for Change (Sydney: UNSW Press, 1995). 15. Parliamentary Joint Committee on the National Crime Authority, Drugs, Crime and Society (Canberra: Australian Government Publishing Service, 1989). 16. Center for Strategic and International Studies. The Transnational Drug Challenge and the New World Order: New Threats and New Opportunities (Washington, D.C. 1993). 17. Anonymous, Observatoire Géopolitique des Drogues: Etats des Drogues, Drogues des Etats (Paris: Hachette, 1994). 18. J. Westermeyer, “The Pro-Heroin Effects of Anti-Opium Laws in Asia,” Archives of General Psychiatry 33 (1976):1135–1139. 19. A. Wodak, N. Crofts, “Once More Unto the Breach: Controlled Hepatitis C in Injecting Drug Users” (editorial), Addiction 91(2) (1996): 181–184. 20. A. Uchtenhagen, A. Dobler-Mikola, F. Gutzwiller, “Medical Prescription of Narcotics. Background and Intermediate Results of a Swiss National

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Project,” European Addiction Research 2 (1996):201–207. 21. J.M. Mann et al., see note 8. 22. B.G. Weniger, K. Limpakarnjanarat, K. Ungchusak, et. al., “The Epidemiology of HIV Infection and AIDS in Thailand,” AIDS 5 (suppl. 2) (1991):S71–S85. 23. R.S. Garfein, D. Vlahov, N. Galai, M.C. Doherty, K.E. Nelson, “Viral Infections in Short-Term Injection Drug Users: The Prevalence of the Hepatitis C, B Human Immunodeficiency and Human T- Lymphotropic Viruses,” American Journal of Public Health 86(5) (1996):655–661. 24. International Narcotic Control Board, see note 5. 25. UN Commission on Narcotic Drugs, Economic and Social Consequences of Drug Abuse and Illicit Trafficking: an Interim Report. (Vienna: United Nations Economic and Social Council, 1995). 26. K.J. Riley, see note 10. 27. E. Nadelmann, “Thinking Seriously About Alternatives to Drug Prohibition,” Daedulus 121(3) (1992). 28. A. Wodak, P. Lurie. “A Tale of Two Countries: Attempts to Control HIV Among Injecting Drug Users in Australia and the United States,” Journal of Drug Issues 27(1) (1997):117–134. 29. C.P. Rydell, S.S. Everingham, Controlling Cocaine. Supply Versus Demand Programs (Santa Monica: Drug Policy Research Centre, RAND, 1994). 30. A. Wodak, W. Saunders, “Harm Reduction Means What I Choose It to Mean” (editorial), Drug and Alcohol Review 14 (1995):269–271; WHO Expert Committee on Drug Dependence, WHO Technical Report Series, 28th Report (Geneva: World Health Organization, 1993). 31. D.C. Des Jarlais, H. Hagan, S.R. Friedman, P. Friedmann, D. Goldberg, M. Frischer, S. Green, K. Tunving, B. Ljunberg, A. Wodak, et al., “Maintaining Low HIV Seroprevalence in Populations of Injecting Drug Users,” Journal of the American Medical Association 274(15) (1995):1226:1231. 32. P. Lurie, E. Drucker, “An Opportunity Lost: HIV Infections Associated with the Lack of a National Needle-Exchange Programme in the USA,” Lancet 349(9052) (1997):604–608. 33. Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly Resolution 217A(III) (December 10, 1948). 34. E. Nadelmann, “Commonsense Drug Policy,” Foreign Affairs 77(1) (1998): 111–126. 35. Declaration on the Rights of Disabled Persons, G.A. Res 3447 (xxx), 30 UN GAOR Supp. (No. 34) at 88, UN Doc. A/10034 (1975). 36. Traynor V. Turnage, Administrator, Veteran’s Administration, et al., no.86–622, Supreme Court of the United States, 485 U.S. 535, 1988. 37. R.G.A. Feachem, Valuing the Past . . . Investing in the Future. Evaluation of the National HIV/AIDS Strategy 1993–94 to 1995–96 (Canberra: Commonwealth Department of Human Services and Health, Australian Government Publishing Service, 1995). 38. G.V. Stimson, “Has the United Kingdom Averted an Epidemic of HIV–I

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 157 Infection Amongst Drug Injectors?” (editorial), Addiction 91(8) (1996):1085–1088. 39. A. Peak, S. Rana, S. Kari Maharjan, D. Jolley, N. Crofts, “Declining Risk for HIV Among Injecting Drug Uses in Kathmandu, Nepal: the Impact of a Harm–Reduction Programme,” AIDS 9(9) (1995):1067–1070. 40. A. Uchtenhagen et al., see note 20. 41. E. Nadelman, see note 34. *Alex Wodak, MD, is Director of Alcohol and Drug Service, St. Vincent’s Hospital Sydney Limited. Reprinted from Health and Human Rights, 2:4 (1998), with permission from the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health. Copyright (c) 1998, President and Fellows of Harvard College.

DEBATE QUESTIONS

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1. What does Wodak see as the effects of prohibition on health, economic, and social outcomes? 2. Why does Wodak advocate a harm reduction approach to drug use? 3. What human rights does Wodak think are compromised by zero-tolerance drug policy?

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Alchemies of Inequality: The United Nations, Illicit Drug Policy and the Global HIV Epidemic by Daniel Wolfe*

There are common wisdoms that people committed to HIV prevention repeat like mantras. One of these is that two decades of HIV have taught the world some clear lessons on how to successfully contain the virus. We note that effective HIV prevention includes not only the provision of tools such as condoms and clean needles to help block HIV transmission, but also mechanisms that involve the people directly affected—whether sex workers in Thailand, gay men in the United States, or women in Uganda or Brazil. We say that communities have led the way, but that a multisectoral response that includes government and the private sector is needed, as is an “enabling environment” that allows people with HIV to work without fear of discrimination and with adequate financial and political support. We emphasize that treatment and prevention are complementary, not in competition. In a trend coincident with the new dominance of corporate-based philanthropies (the Bill and Melinda Gates Foundation) and “private-public partnerships” (the Global Fund to Fight AIDS, Tuberculosis and Malaria) in setting the global AIDS agenda, we underscore the importance of “evidence-based” approaches, “proven effectiveness,” and “value added.” The hope is that appeals to science and free market principles will transcend the moralism

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 159 that has made condoms, clean needles and methadone, and the programs that provide them, the subject of so many years of conflict. All of these assertions, however correct, must be measured against other, less often discussed, truths. As with the work of Sir Isaac Newton, whose age-of-reason breakthroughs coincided with alchemical experiments he conducted in a private laboratory, HIV prevention is in some important sense a project divided: exalting scientific principles even as it leaves other less-than-rational beliefs unquestioned. Indeed, for all the talk of evidence-based approaches, there is an insidious alchemy at work—a process by which certain people with HIV, or those at risk, are transmuted into something less than human, and thus deserving of something less than human rights. AIDS stigmatization is widely condemned when expressed in its crudest incarnations, as when Gugu Dlamini was beaten and stoned to death in KwaZulu Natal after disclosing her HIV status in 1998. Less examined are the more subtle acts of violence, common in the hallways of national governments or multilateral institutions with headquarters in New York or Geneva, by which certain people are sentenced to death simply by being deemed unworthy of particular attention. With AIDS, whose rise has been irrevocably twinned with that of the increasingly globalized economy, the distance between the world’s informational—financial capitals and the people suffering most from the epidemic is instructive in understanding how human losses due to HIV—and indeed the humanity of those infected—come to be eclipsed. Given the high rates of HIV infection among AfricanAmericans fewer than twenty miles from the New York Stock Exchange, or the phenomenon that finds HIV infection skyrocketing among drug users in one St. Petersburg neighborhood at the same time as foreign investment explodes in another, this distance can be understood as economic, rather than geographic. Sociologist Manuel Castells, describing the rise of financial and informational networks linking new elites across cities and nations, has noted the parallel emergence of what he terms “black holes,” areas with no access to key nodes on the network. Subject to sharp reductions in government services as the state redirects resources in the service of new economic priorities, people in these regions—whether in certain

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neighborhoods, or in entire provinces, countries, or continents—turn instead to informal or “perverse” economies (Castells 1991): arms or drug dealing, smuggling, selling of sex, blood, children, or even body organs. As anthropologist Richard Parker (2000) has noted, where underground economies develop, HIV and STD epidemics frequently follow. Equally importantly, those engaged in perverse economic activity are frequently labeled as morally perverse, suspicious or criminal elements who are seen as a threat to—rather than a part of—the public imagined by “public health.” This paper examines one small aspect of the alchemy that transforms injection drug users into something less than human. Specifically, it focuses on United Nations policies toward illicit drugs and HIV infection caused by injection drug use (IDU), and suggests that conflicts inherent in the UN approach are likely to accelerate the global spread of HIV. Long after the scale and speed of HIV transmission through IDU has become clear, the UN continues to pursue parallel and contradictory policy recommendations regarding drug users and HIV prevention. The discordance is echoed at the level of national government, where drug control and HIV prevention entities rarely communicate, plan independently, and often pursue conflicting aims. The price of failure to clarify and coordinate policy response to injection-driven epidemics, already high, will only grow higher. While routinely viewed by law enforcement as a deviant minority, drug users in the eyes of HIV policy experts must now be more appropriately seen, in many parts of the world, as a majority in need of treatment and support. Five countries in the former Soviet Union and Asia—whose combined populations exceed one and a half billion—are already reporting established epidemics (>50,000 registered cases per country) in which the majority of cases are due to injection drug use. Like injection-driven HIV epidemics more generally, thesein Russia, China, Malaysia, Ukraine, and Vietnam—have grown at rates far higher than those associated with sexually transmitted epidemics. In Russia, where infections are increasing faster than anywhere else on the globe, there are already more people living with HIV than in all of North America (UNAIDS 2002; US-Russia

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 161 Working Group 2003). Some 90 percent of HIV cases are due to injection drug use, and virtually all infections have occurred in the past six years (CEEHRN 2002). In China, where the first HIV cases was reported in 1985, the government estimates that there are now a million infected—64% of whom were infected through IDU. Outside observers suggest that actual numbers, fueled by blood collection practices that have infected hundreds of thousands in the country’s central provinces, may in fact be much higher (Human Rights Watch 2003). Percent IDUs of registered HIV cases in countries/provinces with established epidemics (>10,000 HIV cases)

2002 1 0.8

90% 76% 69%

64%

0.6

59%

0.4 0.2 0 China

Malaysia

Russia

Ukraine

Vietnam

Sources: Global Fund to Fight AIDS, Tuberculosis and Malaria (China) Malaysian AIDS Centre, CEEHRN (Russia, Ukraine), Vietnam Ministry of Health

If current trends continue, it is likely that dozens more nations— including both those that have recorded only a handful of AIDS cases and those who have successfully reduced infections among nondrug users—will soon join the list of those facing serious, injectiondriven epidemics. IDUs are the majority of those infected in Tajikistan, Kazakhstan, Uzbekistan, Iran, Indonesia, and Nepal, all of which report rapidly growing epidemics (CEEHRN 2002; Reid and Costigan 2002; UNAIDS 2002). IDUs are the majority of new infections in Western Europe, North Africa and the Middle East. The

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number of countries reporting HIV among injecting drug users has more than doubled in the past decade, from 52 in 1992 to 114 today (Strathdee and Poundstone 2003). Outside of Africa, UNAIDS estimates (2002) suggest that as many as one of every three new infections now comes from a contaminated needle. The good news, we commonly tell ourselves, is that interventions to stem HIV and other harms among injecting drug users (IDUs)— particularly provision of sterile injection equipment and methadone maintenance treatment—have proven easy to implement and highly effective in trials from Australia to the United States, Thailand to Belarus. The bad news is that evidence of effectiveness has so far proved little match for ideology. Years after gold-standard research has shown how swiftly injecting drug use can spread HIV and how evidence-based approaches can effectively contain that explosive growth, most countries with injection-driven epidemics continue to emphasize criminal enforcement and demand for abstinence over the best practices of public health. If current epidemiological trends are any indication, the result may be one of the most tragic missed opportunities of the new millennium: the creation of an HIV crisis in Asia and the former Soviet Union that takes millions of lives, and that could have been averted.

Dis-united Nations: Competing Approaches to Drug Policy The tension elicited in most listeners by the phrase “the human rights of drug users”—and its absence in virtually all United Nations or national government plans articulating HIV policy recommendations—suggest the extent to which general statements about the rights of people with HIV have replaced specific analysis of IDUrelated issues. Historically, human rights claims have been less prominent than two other frameworks in shaping national and international responses to the growing problem of injecting drug use and related HIV infection. The first of these is a law enforcement framework that seeks to track, restrict, or eliminate illicit drugs, and those who sell or buy them, from social circulation. In this framework, pri-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 163 mary emphasis rests on supply of and demand for drugs—drug users are understood and responded to as participants in illegal patterns of exchange. Emphasizing criminalization and containment, this framework identifies police action, interruption of trafficking, and penal institutions such as prisons as pivotal to effective response. Even when drug treatment is offered, it is treatment cast in the mold of punishment: coercive, lacking in virtually all supportive services save the “service” of intense discipline and forced labor without compensation, and carrying severe penalties for relapse. Not surprisingly, relapse is the experience of the vast majority. The second approach is one that emerges from the best practices of public health—or more specifically, that brand of public health that recognizes drug users as a deserving part of the public. In accord with epidemiological principles, this approach focuses on risks rather than on the drugs themselves, considering both adverse health effects and the range of people affected. These include drug users as well as their sexual partners, their children, and their extended families or communities. Unlike the law enforcement approach, this one recognizes that all illegal drugs do not carry equal risk, identifies mediating factors that increase drug risk and related disease, and seeks to identify the tools and interventions that might best contain adverse health effects among the largest number of people. These include interventions for those drug users who are outside correctional or drug treatment systems, or those who have returned to drug use after a period of abstinence. In all countries, the majority of drug users remain outside treatment or penal systems. The criminal enforcement and public health frameworks used to shape policy responses to drug use are not equally endowed or emphasized. Rather, far greater resources flow to the enforcement approach, which in turn directly and indirectly shapes the capacity of health care workers, non-governmental organizations, and treatment programs to offer services to drug users without suspicion of undermining public order, violating moral norms, or contributing to antisocial behavior. Public health measures that do not require drug users to relinquish all claims to autonomy before receiving help, or those that recognize that abstinence is not the only desirable outcome—such as

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needle exchange, substitution treatment for opioid addiction, or overdose prevention—are frequently illegal, unfundable, or insufficiently supported at the national level. Many governments keep such efforts in a state of perpetual “pilot program,” effectively delaying for years the comprehensive approaches that can contain injection-related HIV transmission. These criminal enforcement and public health approaches often sit in uneasy relation to each other, both at the national level and within multilateral institutions. The tensions are particularly evident, and particularly important to scrutinize, in the workings of the institution spearheading the international response to both illicit drugs and HIV/AIDS: the United Nations.

UN Drug Control Conventions in Theory and Practice The unusual policy status of drug abuse is made clear by the fact that is one of the few public health issues to be governed by international agreements that direct signatories on how to regulate and respond to the problem. As described elsewhere (see Malinowska-Sempruch, Hoover, et al, this volume), three United Nations protocols known collectively as the UN drug conventions—the 1961 Single Convention on Narcotic Drugs as amended in 1972, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances—guide the global, and in many cases, national regulation of illicit drugs. Licensing for legal production of substances scheduled by the treaties, as well as monitoring of efforts to prevent their diversion to illegal markets, is the responsibility of a “quasi-judicial” body known as the International Narcotic Control Board (INCB), a 13–member group of law enforcement, psychiatrists, pharmacologists and other experts empowered by the 1961 convention (as amended in 1972) to assess how well countries were complying (INCB 2003). In theory, the language of the conventions is flexible enough to accommodate a range of public health responses to illicit drug use, and to allow countries to tailor responses to national realities (Bew-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 165 ley-Taylor 2002; Room 2003). The 1971 convention requires that parties not only act to discourage drug use, but also that they take all practicable measures “for the early identification, treatment, education, aftercare, rehabilitation, and social integration” of those who use illicit drugs (United Nations 1971). While requiring criminalization of drug possession for personal use, the 1988 convention does not specify what penalties must be attached, leading some to suggest that counseling, or issuing of citations that are not recorded in permanent police records, would fulfill the letter of the law (Krajewski 1999; Room 2003). In addition, the 1988 convention specifies the primacy of efforts to minimize human suffering related to drug use, and reiterates that treatment, education, aftercare, and rehabilitation are acceptable alternatives to punishment (United Nations 1988). In practice, however, the entities charged with interpreting the conventions have routinely emphasized stringent enforcement and protection of the status quo. The INCB, whose members are appointed to “serve the interests of the international community,” issues pointed criticisms in its annual reports of countries perceived to be doing too little to regulate drug diversion or production; quality and availability of drug treatment, by contrast, goes largely unmonitored and unmentioned (INCB 2000; INCB 2001). Western European measures to reduce criminal penalties for cannabis use, now adopted in Spain, Portugal, the Netherlands, and part of London, for example, have been criticized by the INCB as sending the wrong message and “endangering all eradication efforts, including those outside of Europe” (INCB 2000). The Board also objects strenuously to the proliferation of policies and messages “encouraging drug abuse,” which in its view include the publication of favorable research on use of cannabis in medical journals, the proliferation of popular songs about drugs and even the inclusion of hemp in food or beverages, which the Board feels erroneously suggest that the plant might be “edible or nutritious” (INCB 1997). INCB members have gone as far as to suggest that politicians who campaign for more liberal drug policy may be liable for criminal prosecution for violation of convention restrictions against inducing or inciting illicit drug use (INCB 1997). Language is a critical tool in the transmutation of the person who

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uses drugs to less-than-human status, and the INCB’s own words are carefully chosen. They refer only to drug abuse, emphasizing that any illicit drug use, by virtue of its legal status, is de facto abuse. They describe those lost to addiction as “casualties,” suggesting that active drug users are in important ways as good as dead. They condemn “normalization” of any illicit drug, thus reinforcing the idea that drug abusers must be regarded per se as abnormal (INCB 2000). Recognizing that these are contested claims, Board members preemptively challenge experts who might differ, using quotation marks around phrases such as “medical marijuana” and “harm reduction”(INCB 1997; INCB 2002). Their rhetoric links policy proposals that in context are often unconnected into a seamless, threatening whole they call harm reduction: syringe exchange is routinely paired with safer injection rooms, safer injection linked to drug decriminalization, and decriminalization to drug legalization and incitement of others to abuse drugs (INCB 1997; Schaepe 1999; INCB 2000; Room 2003). While INCB members technically represent only themselves, governments find voice through the Commission on Narcotic Drugs, the elected body responsible for guiding UN drug policy. Including European nations who practice selective non-enforcement of laws against personal drug use, debate at annual CND meetings has begun to include theoretical support for less punitive approaches. In practice, however, CND donors favoring zero-tolerance approaches, including the United States and Sweden, have ensured that the conventions are interpreted in the strictest possible light (Fazey 2003). U.S. unilateralism, or that of other countries such as Russia, is particularly potent at CND meetings, where commitment to consensus means that objections from a single member state can stall proceedings for days (Fazey 2003). The result is reinforcement of the status quo. While drugs have been added to those scheduled by the conventions, the conventions themselves have remained unchallenged and unchanged. The entity responsible for coordination of drug supply and demand reduction programs on the ground, the United Nations Office on Drugs and Crime (UNODC)1, dispatches millions of dollars annually and a wide range of scientific, military, and police

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 167 experts to assist in international counternarcotics efforts. High-profile initiatives have included help in drafting strong laws on money laundering and asset seizure, arming counternarcotics forces, establishing special courts to prosecute narcotics trafficking or consumption, training and equipping guards at railway stations and national borders, and promoting the effective use of drug sniffing dogs (Lubin, Klaits et al. 2002). UNODC also supports a range of drug demand reduction efforts, including drug education materials, training and support for community educators, as well as alternative development assistance to help farmers change from cultivation of opium poppies or coca to other crops. With the budget for supply reduction historically nearly three times that of drug demand reduction for (CND 1999), however, and more than $1 billion USD spent separately by the U.S. government for counternarcotics operations including fumigation of fields with toxic herbicides and arming of local law enforcement with high-tech weapons of detection and destruction (ONDCP 2003; TNI 2003), these in many cases have been understood as alternatives that cannot be refused. In Central Asia, the UN also supported an experimental biochemical research program to engineer a new fungus capable of destroying the opium crops in Afghanistan (Lubin, Klaits et al. 2002). Similar scientific innovation has not been brought to bear on evaluation of drug control efforts. UNODC canceled internal evaluation of programs in 1997 (Lubin, Klaits et al. 2002). Questionnaires to national governments focus on drug trends and measures undertaken to increase seizures or improve controls on money laundering, rather than on assessing whether the two have anything to do with one another (Transnational Institute 2003). UN drug control agencies themselves acknowledge that both opium and coca production have increased significantly since the adoption of the 1988 convention (UNODCCP 2002). Efforts to reduce crop production have been consistently offset by technological advances enabling greater drug yield from plants harvested (ODC 2003). Nor has evidence supported efficacy of demand reduction efforts such as the International Day Against Drugs, which the UN supports, and which countries from China to Thailand have commemorated with bonfires of seized

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drugs, mass arrests, and public executions (Nakachol 1997; AP 2001; AP 2002). Nonetheless, the political inclinations of the CND, INCB, and UNODC have successfully guided UN member states toward the conclusion that the only strong response to drug use is a strongly punitive one. In 1994, a special UN advisory group on drug policy advanced a proposal for a United Nations General Assembly Special Session (UNGASS) on Drugs, which some envisioned as an opportunity to consider alternative approaches to prevention and treatment and a review of the adequacy of definitions in the UN drug conventions (Transnational Institute 2003). When the proposal emerged from the homogenizing machinery of UN deliberations, however, suggestions for revisions had been replaced by the language of affirmation. The Secretary General reported that the special session “could reiterate the importance of the international drug control treaties...and reaffirm their relevance and accuracy” (United Nations 1996). The UNGASS was convened in 1998 under UNODC director Pino Arlacchi’s slogan “A Drug Free World—We Can Do It!,” and secured pledges from participants to eliminate or significantly reduce drug trafficking and use by 2008 (INCB 1997; UN General Assembly 1998). While specifics of how this might be achieved were left to the discretion of individual countries, observers were alarmed to note that a subsequent UNODC report cited the drug demand reduction “successes” of Maoist China and Khomeini’s Iran without mentioning that those efforts had included trials without due process, and summary executions (Trebach 2002).

The UN Drug Conventions and Reduction of Drug-Related Harm The impact of the UN drug conventions—and the widespread incarceration and resistance to innovation justified in their name— requires special review in light of the HIV epidemic. Increasingly, advocates have questioned the adequacy of conventions regulating international response to drugs that reflect no awareness whatsoever of HIV, noting that the first two conventions predate the HIV epi-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 169 demic entirely, and that the third reflects no awareness of the role injection drug use plays in driving the epidemic (Malinowska-Sempruch, Hoover et al. 2003; Rossi 2003). Legal analysts within and outside the UN system have noted that measures to reduce the spread of drug-related HIV infections, including distribution of clean syringes, can be interpreted as legal under the conventions, which call for alleviation of human suffering, exempt appropriate medical interventions from criminalization, and specify that demand reduction should aim both at prevention the use of drugs and at reducing adverse consequences of drug use (BewleyTaylor 2002; INCB 2002; Fazey 2003). These interpretations, however, have been regularly rejected by the INCB, which as early as 1993 deemed harm reduction a “tertiary strategy” for prevention for demand reduction purposes (INCB 1993), and in 2000 expressed regret that harm reduction had “diverted the attention (and in some cases, funds) of Governments from important demand reduction activities such as primary prevention or abstinence-oriented treatment” (INCB 2002). Methadone remains a schedule I drug (“especially serious risk to public health and limited, if any, therapeutic usefulness”), as it has since 1961, in spite of significant research showing its positive effect in decreasing rates of injection, HIV transmission, and precisely the kinds of criminal activity the INCB is most interested in suppressing. The INCB has also been sharply critical of medical prescription of heroin in Switzerland, and threatened to revoke Australia’s ability to cultivate opium for medical purposes upon learning of plans to implement safer injection rooms to reduce risk of HIV and hepatitis C (Fazey 2003). Denmark tabled plans for safer injection rooms following sharp criticism by the INCB. INCB Secretary Herbert Schaepe went as far as to compare injection rooms to opium dens in 1999, and to suggest that those implementing such interventions might be considered to be facilitating criminal offences including drug possession and trafficking (Schaepe 1999; Room 2003). In September of 2002, INCB asked UNODC legal experts to consider whether harm reduction measures were consonant with the conventions. The legal experts noted three important features

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of the convention that could measures such as methadone maintenance treatment, safer injection rooms, and syringe exchange. First, all of these measures could be seen as medical treatment, and permissible under the conventions. Second, the conventions urged reduction of drug use and its adverse consequences, which clearly include HIV, thus potentially justifying measures to reduce infection. Finally, the conventions prohibited intentional incitement to or encouragement of drug use, and none of the harm reduction measures could be said to be performed with the intent of incitement of greater drug use (INCB 2002). Three months later, INCB President Philip Emafo stated in an official UNODC publication that “giving out of needles” and “provision of rooms for drug abusers to inject themselves” amounted to inciting drug abuse, and was contrary to the conventions (Rahmy 2002). The inadequacy of the conventions to address drug-related HIV infection has moved UN entities and outside observers to issue resolutions of concern and urge changes in course. A 2001 UN systemwide paper meant to “harmonize” the UN’s position on HIV prevention for drug users stated clearly that syringe exchange programs and opioid substitution therapy were acceptable parts of wider package of drug prevention interventions (UN 2001), and UNODC has subsequently begun to offer limited support for both. In March 2002, the CND itself issued a resolution that expressed “alarm” about HIV, encouraged members states to consider HIV and hepatitis C, and to remember the need both for access to HIV treatment and sterile injection equipment when developing programs to reduce drug demand (CND 2002). A year later, just prior to the April 2003 CND session held to mark the halfway point between the 1998 UNGASS on Drugs and the 2008 goal of significant and measurable drug reduction, Greece used its presidency of the European Union to convene a high-level meeting on international drug policy. Including representatives of the European and Greek Parliament, NGO representatives, the European Commission, as well as researchers, scientists and UNODC staff, the conference affirmed the usefulness of the UN drug conventions, but noted that they could be improved by explicit support for harm reduction provisions and affirmation that drug users are

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 171 not criminals but people in need of help and treatment (Hellenic Presidency of the European Union 2003). None of these resolutions or small steps toward policy change, however, has the force of law. Nor apparently, have they carried sufficient force of persuasion. The April 2003 meeting of the CND was held as scheduled to review progress toward a drug-free world and to consider new strategies for progress, including proposals to affirm opioid substitution therapy and urge removal of legal obstacles to clean needle availability. Objections from the United States, as well as Russia, Ukraine, Malaysia and a number of Arab states, torpedoed or tabled all language related to harm reduction. When the final resolutions were adopted, any mention of substitution therapy or legalization of syringe exchange had been deleted (CND 2003). A separate resolution by the Commission included the plea that all UN member states show enhanced cooperation with and understanding toward the INCB (CND 2003). The INCB itself is not immune to change. In April of 2001, in a rebuke that some observers said had as much to do U.S. recalcitrance on international treaties such as the Kyoto protocol as with the war on drugs, UN members voted the U.S. representatives off both the Human Rights Commission and the International Narcotics Control Board. The U.S. subsequently increased its pledges to UNODC by 45 percent, becoming the single largest supporter of UN drug control, and successfully fielded a candidate to replace a departing INCB delegate from Peru. In the long run, however, changes in geopolitical dynamics may threaten the dominance of the zero-tolerance approach. The INCB report due to be released in March 2004 is expected to be significantly more sympathetic to syringe exchange and substitution treatment.

National Interpretation of the UN Drug Conventions Whether or not they are a cause or convenient excuse, the UN drug conventions are used by national governments to justify highly punitive legal measures and failure to implement services for IDUs.

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Russia, which sharply stiffened penalties for all drug possession shortly before the UNGASS on Drugs in 1998, has pointed to the UN conventions for explanation of its “total prohibition” (see (Malinowska-Sempruch, Hoover et al. 2003). Pharmacologist Eduouard Babayan, Russian representative to the CND for nearly 30 years and current member of the INCB (INCB 2003), is the author of the drug table used by Russian law enforcement that recognizes possession of any amount of heroin as “large” or “extra-large “ and attaches a prison sentence of up to seven years for possession less than a hundredth of a single dose (.005 gram) (Levinson 2003). Babayan has also repeatedly referenced the INCB and the CND to support the Russian government’s decision to keep methadone illegal in Russia (Levinson 2003). Similarly, A UN survey of government officials in seven Asian countries with IDU epidemics noted that among the reasons given for lack of substitution treatment for heroin addiction was the belief that methadone was prohibited by the spirit or letter of the conventions (UNAIDS/UNODCCP 2000). While some UN member governments have forged ahead with methadone maintenance, heroin prescription or safer injection rooms, all of these—including Australia, Germany, Great Britain, and the Netherlands—are members of the Western European and Other Governments (WEO) group that provides the bulk of UN financial support, and so may feel themselves less vulnerable to censure. INCB commentary, in any event, has been clear and insistent that such measures are to be discouraged in all countries. Governments have also used cooperation with UN drug control entities to suggest tacit or explicit approval of more widespread political repression. The Myanmar government, after a brutal suppression of pro-democracy movement that caused many countries to sever relations with the regime, reported with great fanfare the opening of a UN drug control office and ongoing collaboration with the UN, and has since immortalized the collaboration in a display in the massive Drug Elimination museum opened on the UN’s International Day Against Drugs (Myanmar Central Committee for Drug Abuse Control 2003). The Taliban regime in Afghanistan requested, and received promises for, aid from UN drug control,

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 173 though the events of September 11, 2001 and their aftermath moved the UN agency to delay implementation of the collaboration (Armenta and Jelsma 2001). Most recently, following a 2003 campaign that included mass arrests and what appeared to be extrajudicial execution of nearly 2,600, a visit between Thai representatives and UNODC director Antonio Maria Costa resulted in headlines in Bangkok trumpeting UN support for Thailand’s successful narcotic control efforts (Thai Press Reports 2003; Xinhua News Agency 2003). National policies in countries with established injection-driven epidemics—whether in China or Ukraine, Russia, Malaysia, or Vietnam—generally reveal remarkable consistency with the lawand-order emphasis of UN drug control. Particularly important for patterns of HIV transmission, all countries with injection-driven epidemics mandate imprisonment or forced institutionalization for purchase of even small amounts of drugs (e.g, quantities for personal use). This practice in fact serves as an engine of HIV infection, uniting infected and uninfected individuals in contexts where drug use and sex are common but tools to protect against HIV transmission—whether condoms, sterile injection equipment, or opioid substitution treatment—are not (Malinowska-Sempruch 2001; Beyrer, Jittiwutikarn et al. 2003). All countries with established injection-driven epidemics also blur lines between public health and law enforcement, leaving decisions about drug treatment in the hands of the police, requiring or encouraging physicians to collaborate with law enforcement, rounding up drug users and suspected drug users in mass arrests, imposing HIV tests without consent, and labeling drug use (and by extension, users) a social evil to be rooted out of society. Tellingly, methadone maintenance treatment is not available except through pilot programs in any country with an established injection-driven epidemic. No national government except Vietnam—whose contribution is small and offset by laws criminalizing needle possession—targets funds specifically for provision of clean syringes (Harring 1991; VCHR 2000; CEEHRN 2002; DLHPRN 2002; Human Rights Watch 2003; Kuppusamy 2003; Voice of Vietnam 2003).

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UN HIV Initiatives: Drug Policy in the Context of Public Health Even as UN drug control entities urge governments to take firm, punitive actions to deal with illicit drugs, other UN actors are assessing the problem through the lens of public health. Principal among these are the UN entities most concerned with HIV/AIDS prevention among IDUs—the World Health Organization and the Joint United National Programme on HIV/AIDS (UNAIDS). Emphasizing the risks associated with drug use, rather than its legal status per se, WHO and UNAIDS focus less on use of recreational drugs, and more on drug injection and exchange of sex for drugs implicated in transmission of HIV, hepatitis C, and other infectious diseases. Drawing on social science literature, they voice support for a range of interventions, including harm reduction interventions, for reducing the spread of disease. Emphasizing vulnerability rather than criminality, they recognize the importance of including those at risk—including active drug users —in formation and implementation of humane policy. “Experience tells us that cooperation with drug users gets better results than persecuting them” noted UNAIDS director Peter Piot in his April 2003 address to the CND (Piot 2003). In published reports and speeches delivered around the world, UNAIDS representatives—often armed with documentation from studies relevant to the region at hand—put it simply: “harm reduction works” (Cravero 2002; Hankins 2002). How committed WHO and UNAIDS are to translating these principles into practice is unclear: neither, for example, has objected to overcriminalization of drug users by UN drug control entities, or convened an expert consultative group to clarify language on harm reduction, identify perceived and actual tensions with UN drug control conventions, and suggest strategies to resolve them. More importantly, neither WHO or UNAIDS has worked with bilateral donors and recipient governments to bring a single harm reduction program to national scale.

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Inconsistencies in UN Policy Recommendations A superficial harmony has been forged at the rhetorical level throughout the UN system—all UN actors, for example, support “comprehensive” interventions for those using illicit substances, and urge “greater political commitment” to the problem. At the practical level, however, the difference in emphasis between United Nations drug control entities (e.g., INCB and CND) and health promotion entities (e.g., WHO and UNAIDS) results in sharp inconsistencies in policy recommendations. A superficial harmony has been forged at the rhetorical level throughout the UN system—all UN actors, for example, support “comprehensive” interventions for those using illicit substances, and urge “greater political commitment” to the problem. At the practical level, however, the difference in emphasis between United Nations drug control entities (e.g., INCB and CND) and health promotion entities (e.g., WHO and UNAIDS) results in sharp inconsistencies in policy recommendations. UNODC, a cosponsor of UNAIDS since 1999 and a part of the drug control apparatus, hovers uncomfortably in between. Among the most striking areas of inconsistency: • Substitution therapy. The CND and INCB regard methadone, among the most affordable and best studied of available substitution therapies, as a schedule 1 substance with high abuse potential and limited medical use. UNODC drug demand reduction efforts have historically included no support for opioid substitution therapy, though the agency has begun to offer extremely limited support in a few countries. Representatives of UN health promotion agencies, by contrast, regularly advocate for substitution therapy under appropriate medical supervision as part of an effective response to HIV. • Harm reduction. UN drug control representatives speak of it as linked to drug legalization efforts, remind governments that it is no substitute for drug demand reduction, or in UNODC’s case, avoid the term entirely. UN health promotion representatives stress that harm reduction is a scientifically tested

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approach that, while critical to helping to contain the spread of HIV, has yet to be sufficiently implemented by national governments. • Syringe Exchange. While supporting increased access to sterile injection equipment in a 2002 resolution, the CND torpedoed a resolution to remove legal obstacles to sterile syringe programs under pressure from the U.S. in 2003. UNODC was for years barred from funding needle exchange due to objections from the U.S (Fazey 2003), and today offers extremely limited support. The INCB President has suggested that giving out syringes is equivalent to encouraging illicit drug use. UNAIDS and WHO, by contrast, have expressed consistent support for programs providing sterile injection equipment to reduce HIV infections. • International Mandate. Drug control entities refer regularly to the UNGASS on Drugs, where participants agreed to significantly reduce or eliminate drug use by 2008, as proof of international consensus on drug control. Health promotion entities reference the 2001 UNGASS on HIV/AIDS, where all member governments of the UN endorsed specific efforts to reduce HIV transmission that included provision of sterile injection equipment and other harm reduction efforts.

Contradictions in Action: The Thai Example Tensions between the law enforcement and public health frameworks for responding to drug use are manifest even in countries saluted by the UN for their HIV prevention efforts. Thailand, for example, regularly cited as one of the few countries in the world to mount a successful for its response to the AIDS epidemic (UNAIDS 2001; Ainsworth, Beyrer et al. 2003; UNICEF 2003), also demonstrates how easily prevention “success” can exclude those with a history of drug use. The Thai government has been widely praised for its 100% Condom Programme, which in the early 1990s helped stem rising rates of infection by requiring quality control in the manufacture of condoms, distributing approximately sixty million condoms annually

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 177 CONTRASTING APPROACHES WITHIN THE UNITED NATIONS Drug Control

versus

A drug-free world—We can do it!

(Pino Arlacchi, Director, UN Office on Drug Control and Crime Prevention, 1998) The discussion on drug injection rooms and some other harm reduction measures has diverted the attention (and, in some cases, funds) of Governments from important demand reduction activities. (INCB Annual Report, 2000) The term use or consumption should only be applied when it refers to the use or consumption of drugs for medical or scientific purposes...Drug abusers are therefore, by definition, neither consumers nor users.

(INCB Annual Report, 2001) To promote drug use illicitly through the giving out of needles...would to me amount to inciting people to abuse drugs, which would be contrary to the provisions of the convention.

Public Health

The total and immediate elimination of drug injecting is... unlikely to be an achievable goal. (WHO, Principles for Preventing HIV Infection among Drug Users, 1997) The translation of well–accepted harm reduction theory into harm reduction reality is held back by lack of social and political will. (Catherine Hankins, Associate Director, UNAIDS, 2002) Without the involvement of drug users themselves there can be no ongoing behavioral change and effective HIV prevention among that group. It is crucial to implement HIV preventive activities on the basis of the peer support principle, involving people from the drug using community. (UNODC, Lessons Learned, 2001) When working with people who inject drugs, it is important to focus on harm reduction as well as rehabilitation...[and to] adopt a multi-pronged approach including needle and syringe exchange...and substitution pharmacotherapy (Innovative Approaches to HIV Prevention, UNAIDS Best Practice Collection, 2000) Laws and policies that prevent drug users from accessing services must be changed. Practices that instill fear and inflict punishment on people vulnerable to HIV infection must be transformed. Stigma and discrimination that drive drug users underground and undermine prevention efforts must be eliminated. (Kathleen Cravero, Deputy Director, UNAIDS, 2003)

(INCB President Philip O. Emafo, 2002) Based on the belief that the deliberate use of drugs for non-medical purposes leads to the destruction of the mind and the body, the Swedish drug control policy has as its objective a society that should be free of the evils of drug abuse...to achieve this ultimate goal, a drug free society, a variety of measures are applied...prevention, treatment, and repressive measures. (Ambassador HS Okun, Rapporteur of the INCB, 1998) The United Nations fully endorses the UNDCP has yet to adopt an official posifundamental principles of harm reduction on harm reduction. tion: reaching out to injecting drug users, providing sterile injecting equipment and disinfectant materials, and providing substitution treatment (Catherine Hankins, Associate Director, (UNDCP Legal Affairs Section, 2002) UNAIDS, 2002)

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free of charge to sex establishments, and working with all provincial governors, chiefs of police, and Chief Medical officers to ensure national commitment to the program. Supplemented by such measures as alternative career development for young women in sex work, the program helped to sharply increase condom use, sharply reduce sexual transmission of HIV and other STIs, and lower HIV prevalence by as much as five–fold (Nelson, Eiumtrakul et al. 2002). Thailand is also the first developing nation to have implemented an effective perinatal prevention initiative, delivering short-course zidovudine to more than two thirds of HIV-infected pregnant women in prenatal care, and to nearly nine in ten of their infants, to stop transmission of HIV (Amornwichet, Teeraratkul et al. 2002). Instead of strong HIV prevention programs for drug users, however, the Thai government has offered them an iron fist. In February 2003, the governing Thai Rak Thai (Thais Love Thais) party launched a “war” on the growing problem of methamphetamine use that has included arrest quotas for provincial police, and mass roundups of alleged drug dealers and addicts. By April, Thai newspapers were reporting that police—armed with government blacklists and offered a percentage of assets seized—had taken than 40,000 drug traffickers into custody. Some 290,000 Thais were reportedly forced into treatment in less than three months, with police conducting forced urine tests on nightclubs and bars (Macan-Markar 2003). Television broadcasts were soon filled not only with pictures of drugs and money seized, but with images of the large numbers of Thais—more than 2,700 at last count, most ethnic minorities—shot to death during the crackdown. Officials have accepted responsibility for fewer than sixty of these deaths, claiming that most resulted from drug dealers killing each other to prevent incriminating testimony. Thai and international human rights observers charge the murders— accomplished with the neat efficiency professional gunmen, sometimes as victims were returning from police interrogation—were systematic, extrajudicial executions (Macan-Markar 2003). While Thai authorities have declared the war on drugs a “beautiful success”(Agence France Presse 2003), its effect on programs serving drug users—including HIV prevention and research efforts—has

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 179 been immediate and negative. A study led by researchers at Chiang Mai University found that 37% of drug users visiting rehabilitation clinics stopped attending following the start of the government crackdown, and were likely to have returned to injection and risk of HIV infection (Razak, Jittiwutikarn et al. 2003). Programs providing risk reduction information to drug users in the south report that many clients were too afraid of being identified by police to risk participation (Suwannawong and Kaplan 2003). Fear of blacklisting and indiscriminate arrests have also swelled the ranks of rehabilitation centers with non-drug users, including parents who have incarcerated themselves to clear their family name, and those swept up without cause. In the context of HIV prevention for IDUs in Thailand, the war on drugs may be the latest in a long series of missteps. A pilot needle exchange program in the North has been discontinued. Long-term methadone treatment, in spite of a trial demonstrating efficacy more than a decade ago (Vanichseni, Wongsuwan et al. 1991), remains against the law and unavailable in most places except Bangkok. The 100% condom programme has not been implemented in prisons, whose population grew sharply due to a five–fold increase in drugrelated incarcerations between 1992–1999, and where studies show both high rates of HIV-infection and significant numbers of seroconversions behind bars (Beyrer, Jittiwutikarn et al. 2003). The amount of methamphetamine required for criminal charges of possession was revised downward three times between 1999–2001. Until mid–2003, the Thai policy on implementation of antiretroviral therapy (ARV) explicitly forbade injection drug users from receiving therapy. While the government has agreed change the policy, IDUs continue to face severe discrimination in health care settings, or to avoid them for fear of being reported to the police (Kaplan 2003). Rates of HIV infection among drug users, meanwhile, show no sign of decline. While HIV incidence among soldiers, pregnant women, and STD clinic patients has fallen sharply since 1995, no decrease has been noted among Thai IDUs. In 1995, 32% of IDUs were believed to be HIV-infected. By 2001, this had risen to 50% (Reid and Costigan 2002). A study of military recruits in the north

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found that the percent of HIV-infected with a history of IDU rose from 1% in 1991 to more than 25% in 1998 (Nelson, Eiumtrakul et al. 2002). While Prime Minister Thaksin publicly announced the end of the drug war in celebration of the King’s Birthday in early December 2003, arrests and forced drug testing reportedly continue. Whether through execution or HIV infection while incarcerated, the price paid by drug users may include their lives.

HIV Treatment, Drug Users, and the United Nations WHO’s declaration of a “treatment state of emergency” in a special session of the United Nations General Assembly in September 2003, and the announcement of a plan to provide HIV treatment to 3 million people worldwide by 2005, sealed the increasingly irrelevant debate about whether international HIV efforts should prioritize HIV prevention or HIV treatment. With consensus supporting the notion that HIV prevention and treatment can and must complement each other, the question remains how to deliver the triple-combination antiretroviral therapy (ARV) considered standard of care to countries that can ill afford it. The creation of the Global Fund to Fight AIDS, TB, and Malaria, price reductions for brand-name combination therapy through the UN’s Expanded Access program, the manufacture of generic and marketing therapy for as little as $300 a year, and increases in contributions by donor nations for scaled-up treatment efforts have all provided momentum for ARV in resource-poor settings than might have seemed imaginable a decade ago. In countries with injection-driven epidemics, transformation of the mechanisms to address the question of how to allocate HIV treatment to those in need is also urgently needed. Specific policy guidance on the question of how best to treat HIVpositive IDUs is particularly important for countries with injectiondriven epidemics, whose ambivalence about drug use appears to be influencing national commitment to HIV treatment more generally. While HIV treatment to date has been too limited to draw clear con-

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 181 clusions—of the more than 3.5 million people estimated to be HIVinfected in these countries, fewer than 1,500 are on triple combination therapy—preliminary evidence suggests that a history of injection is used explicitly or in practice to exclude IDUs from ARV. In Russia, where IDUs accounted for more than 90% of cumulative HIV cases in 2002, AIDS service programs in St. Petersburg and Moscow reported that none of those on triple combination therapy were IDUs (CEEHRN 2002). In the leading HIV clinic in Kuala Lumpur, former IDUs—75% of all HIV cases in the country—are only 20% of those receiving ARV, and none are current drug users (Kamarulzaman 2003). In China, the government provided 3,000 residents with two-drug combination therapy in 2003, and even this substandard regimen was available only in Hennan, where infections were related to blood collection rather than drug use. In Yunnan, the epicenter of the Chinese IDU epidemic, 300 patients are receiving triple-combination ARV—through a U.S.-funded research project— and treatment of opportunistic infections is also sharply limited: AIDS clinics are padlocked shut and beds empty (Human Rights Watch 2003). In Ukraine, where IDUs were 69% of registered HIV cases in 2002, they were only 20% of those receiving triple-combination ARV, with AIDS enters reportedly placing drug users after all others in line for medication (CEEHRN 2002). Vietnam announced plans to offer medication at a reduced price in 2003: a two-drug, locally manufactured combination that is more expensive than triplecombination therapy in nearby Thailand (Saigon Times 2003). UN drug control entities have remained silent on these apparent disparities in treatment, as well as on the question of whether HIV treatment is part of the treatment or after-care envisioned for drug users by the UN conventions. This stance is consistent with their more general silence about the quality of drug treatment to be offered under the conventions. UN health entities have been clear about the efficacy of HIV treatment for injection drug users and their right to receive it, if vague on efforts to ascertain whether this is actually being done. WHO’s draft guidelines for ARV treatment, for example, state unequivocally that treatment should be available for all, including users of injection drugs (WHO 2002). At the same time, UN sur-

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veys of treatment availability have not made any systematic effort to identify how route of HIV transmission has impacted access to ARV. Ethical and economic analysis of ARV provision has frequently focused on questions of socioeconomic status as determinant of treatment access, but rarely addressed specific questions raised by social attitudes toward IDUs or assumptions about their worth (UNAIDS/World Bank 1998). Given the large and rising share of infections attributed to IDU, this omission is a serious one. Exploration by international policymakers of how the needs of IDUs might require reconceptualization of what HIV treatment is and how it is delivered has been similarly limited. Brazil’s success in providing free ARV to IDUS along with the rest of its citizens has drawn worldwide acclaim, yet few UN guidelines exist about what mechanisms worked best to increase adherence to HIV regimens among IDUs and how applicable those mechanisms might be in other settings. Methadone maintenance has been shown to reduce injection and associated risk of pathogens like hepatitis C, which speed progression of HIV to AIDS, and to reduce HIV risk behaviors (Wong, Lee et al. 2003). The World Health Organization has yet to add methadone, buprenorphine, LAAM, or any opioid substitution treatment to their list of essential medications (WHO 1998), and information about manufacture and price of substitution therapies has been unavailable in recent surveys on sources and prices of HIV drugs they conduct with UNICEF, UNAIDS, WHO, and Médecins san Frontières (UNICEF, UNAIDS et al. 2002). At a minimum, reconceptualization of substitution therapies as HIV treatment and their inclusion on the Essential Medicines list would force welcome reexamination of the paradox that finds WHO supportive of substitution treatment but as yet unmotivated to initiate methadone’s removal from the list of schedule I drugs enumerated by the UN drug conventions. Until this reclassification occurs, it will be too easy for countries unwilling to take positive action on IDU-related issues to attribute their reluctance to compliance with UN mandates. It is unclear whether donor nations—many of which have not articulated effective policies to ensure access to treatment for their own IDUs—will prioritize these issues sufficiently to tie funding to

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 183 resolution of these basic questions of equity. Even analyses of HIV treatment emerging from working groups focused on countries or regions with injection-driven epidemics—whether by governmental or non-governmental organizations—have tended to obscure IDUspecific treatment issues behind more general calls for ARV (Human Rights Watch 2003; US-Russia Working Group 2003). Groups based in the U.S. are also working in a country that bans funding for needle exchange, and has a medical education system that continues to demonstrate pervasive health provider prejudice against IDUs with or without HIV (Elovich and Wolfe 2003). Nonetheless, it is essential that the biases of the donors not be repeated in countries whose treatment efforts they support. The sheer numbers of IDUs infected in Asia and the former Soviet Union will soon force the question of both HIV prevention and treatment for drug users. Answers may come from countries like Brazil, which has overcome initial resistance to needle exchange to offer federal support in counties across the country, and which has included IDUS among those meriting free access to treatment from the start. The needed funds, however, are more likely to come from Western Europe and the U.S. Millions of people with HIV can only hope that the ambivalence of donor nations toward injection drug users will not be expressed through a turning away from the difficult issues raised by countries with injection-driven epidemics of unprecedented scale. The United Nations system, similarly, should not delay in replacing its current, contradictory illicit drug and HIV policies with a genuinely coordinated effort to support the full range of HIV prevention measures. An amendment to the UN drug conventions asserting that harm reduction was compatible with drug control would be an important, if costly and time-consuming, step. In the interim, a declaration by the UN’s Human Rights Commission supporting drug users’ rights to HIV prevention, and clear statements by the CND supporting the removal of legal obstacles to syringe exchange and substitution treatment would be of enormous use. Rescheduling of methadone to a less restricted category and its addition to WHO’s list of essential drugs, requiring INCB to provide legal proof of its anti-harm-reduction

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assertions, and expansion of INCB monitoring to include analysis of drug treatment as well as illicit drug diversion are important. So too is evaluation of access to HIV treatment by route of HIV transmission. Until these steps are taken, the UN’s harmonized approach exists on paper alone. Much of what IDUs need to effectively protect themselves against HIV must take place at the country level. A common wisdom of HIV prevention, however, and an essential one, says that international, national and local entities must work together to address the explosion of HIV in resource-poor settings. Without concerted attention and ethical guidelines, it is conceivable that international donors and national governments will constitute an AIDS service structure in many countries that denies care to the majority of those infected with HIV, and fails to implement some of the most rigorously studied and urgently needed tools of HIV prevention.

ENDNOTE 1. The UN Office on Drugs and Crime (UNODC) was formerly named the UN Office for Drug Control and Crime Prevention (UNODCCP) and incorporates the activities of the United Nations Drug Control Programme (UNDCP) under its umbrella. For clarity, this document uses UNODC throughout except when quoting from previously published documents.

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INCB (2000). Current membership of the International Narcotics Control Board. Vienna, International Narcotics Control Board. INCB (2000). E/INCB/2000/1. Report of the INCB for 2000. Vienna, International Narcotics Control Board. INCB (2002). E/INCB/2002/W.13.SS.5. Flexibility of Treaty Provisions as Regards Harm Reduction Approaches. Vienna, International Narcotics Control Board. INCB (2002). E/INCB/2002/1 Report of the INCB for 2002. Vienna, International Narcotics Control Board. INCB (2003). Role of the INCB, International Narcotics Control Board. www.incb.org. Accessed September 27, 2003. Kamarulzaman, A. (2003). Personal communication. June 2003. Kuala Lumpur. Kaplan, K. (2003). Personal Communication. August 2003. Krajewski, K. (1999). “How flexible are the United Nations drug conventions?” International Journal of Drug Policy 10: 329–338. Kuppusamy, B. (2003). Malaysia’s war on social ills draws skepticism. South China Morning Post. Hong Kong: 8. Levinson, L. (2003). Russian Drug Policy: Need for a Change. Stating the Problem and Revealing the Actual Picture. Mobilizing Allies in Fight For Human Rights & Harm Reduction (Conference), Budapest, Hungary. June 1, 2003. Lubin, N., A. Klaits, et al. (2002). Narcotics Interdiction in Afghanistan and Central Asia: Challenges for International Assistance. New York, Open Society Institute. Macan-Markar, M. (2003). Thailand: ‘Victory’ in Anti-Drug War Comes With High Cost. Inter Press Service. Bangkok. Malinowska-Sempruch, K. (2001). “Harm Reduction Policies Needed to Stem the Spread of HIV in Prisons in Eastern Europe and the former Soviet Union.” IHRD News (Winter 2001). Malinowska-Sempruch, K., J. Hoover, et al. (2003). Unintended Consequences: Drug Policies Fuel the HIV Epidemic in Russia and Ukraine. New York, Open Society Institute. Myanmar Central Committee for Drug Abuse Control (2003). The war on drugs: Myanmar’s efforts for the eradication of narcotic drugs, Myanmar Central Committee for Drug Abuse Control, http://myanmarnarcotic.net/heroin/Drug_Museum/Museum.html. Accessed September 27, 2003. Nakachol, K. (1997). Drug Bonfire Marks International Day Against Drugs. Bangkok Post. Bangkok: 1. Nelson, K. E., S. Eiumtrakul, et al. (2002). “HIV infection in young men in northern Thailand, 1991–1998: increasing role of injection drug use.” J Acquir Immune Defic Syndr 29(1): 62–8. ONDCP, U. (2003). 2003 National Drug Control Strategy. Washington, DC, United States Office of National Drug Control Program. Piot, P. (2003). Speech to the Commission on Narcotic Drugs. Commission on

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 187 Narcotic Drugs, Vienna. Rahmy, C. (2002). “Interview with Dr. Philip O. Emafo.” United Nations Office on Drugs and Crime UPDATE 2: 6–7. Razak, M., J. Jittiwutikarn, et al. (2003). “HIV Prevalence and Risks Among Injection and Noninjection Drug Users in Northern Thailand: Need for Comprehensive HIV Prevention Programs.” J Acquir Immune Defic Syndr 33: 259–266. Reid, G. and G. Costigan (2002). Revisiting ‘The Hidden Epidemic’: A Situation Assessment of Drug Use in Asia in the context of HIV/AIDS. Fairfield, Australia, The Centre for Harm Reduction at The Burnet Institute. Room, R. (2003). Impact and implications of the international drug contrltreaties onIDU and HIV/AIDS prevention and policy. Toronto, Health Canada. Room, R. (2003). Impact and implications of the international drug control treaties onIDU and HIV/AIDS prevention and policy. Reducing the risk, harms and costs of HIV/AIDS and injection drug use (IDU): A synthesis of the evidence base for development of policies and programs. J. Rehm, B. Fischer and H. Emma. Toronto, Health Canada. Rossi, C. (2003). A Critical Reading of the Reports of the International Narcotics Control Board and of the US Bureau for International Narcotics and Law Enforcement Affairs. World Drugs Report. New York, International Antiprohibitionist League. Saigon Times (2003). Local HIV/AIDS Drug Maker to Reduce Price. Saigon Times. Saigon: 1. Schaepe, H. (1999). INCB position on shooting galleries. L. t. F. J. M. George. New South Wales. 2003. Schaepe, H. (1999). INCB position on shooting galleries: Letter to Father John M. George. www.endeavourforum.org.au/march2001–08a.htm. New South Wales. Accessed July 20, 2003. Strathdee, S. and K. Poundstone (2003). The International Epidemiology and Burden of Disease of INjection Drug Use and HIV/AIDS. Reducing the risks, harms and costs of HIV/AIDS and injection drug use (IDU): A synthesis of the evidence base for development of policies and programs. J. Rehm, B. Fischer and H. Emma. Toronto, Health Canada. Suwannawong, P. and K. Kaplan (2003). Personal communication. August 2003. Thai Press Reports (2003). UNODC Praises Thailand’s Success in Narcotics Suppression. Global News Wire-Financial Times. Bangkok. May 14. TNI (2003). “An Agenda for Vienna Change of Course.” Transnational Institute Briefing Series (2003/3). Trebach, A. (2002). “World Drug Report 2002 (book review).” International Journal of Drug Policy(13): 233–238. UNAIDS (2001). AIDS Epidemic Update—December 2001. Geneva, The Joint United Nations Programme on AIDS.

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UNAIDS (2002). Report on the Global HIV/AIDS Epidemic. Geneva, The Joint United Nations Programme on AIDS. UNAIDS/UNODCCP (2000). Drug Use and HIV Vulnerability. Geneva/Vienna, United Nations Joint Programme on HIV/AIDS/ United Nations Office for Drug Control and Crime Prevention. UNAIDS/World Bank (1998). Background materials and outputs from an online conference. Antiretroviral Treatment in Developing Countries: Questions of Economics, Equity and Ethics, (www.worldbank.org/aidsecon/arv/index.htm). UNICEF (2003). Former Prime Minister of Thailand leads the fight against HIV/AIDS (Press Release). New York, UNICEF. UNICEF, UNAIDS, et al. (2002). Sources and prices of selected drugs and diagnostics for people living with HIV/AIDS. Copenhagen/Geneva/Paris, A joint project of UNICEF, UNAIDS, WHO, MSF. United Nations (1971). Convention on Psychotropic Substances, 1971. Geneva, United Nations. United Nations (1988). United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, International Narcotics Control Board. 2003. United Nations (1996). Preparations for and possible outcome of a special session of the General Assembly on international drug control, Report of the Secretary General: A/51/469. UNODC (2003). Global Illicit Drug Trends. Vienna, United Nations Office on Drugs and Crime. UNODCCP (2002). Global Illicit Drug Trends. New York, United Nations Office for Drug Control and Crime Prevention. US-Russia Working Group (2003). On the Frontline of an Epidemic. New York/Moscow, Transatlanic Partners Against AIDS/East-West Institute. Vanichseni, S., B. Wongsuwan, et al. (1991). “A controlled trial of methadone maintenance in a population of intravenous drug users in Bangkok: implications for prevention of HIV.” Int J Addict 26(12): 1313–20. VCHR (2000). Notes on Criminal Penalties for Drug Users in Vietnam. Boissy Saint Leger, Vietnam Committee on Human Rights. Vichai, P. and A. Aramrattana (2003). Results of Rapid Assessment of Drug Users Entering Thai Treatment Facilities. Bangkok, ONCB Thailand. Voice of Vietnam (2003). HCM City maximizes drug control effort. Voice of Vietnam. www.vov.org. July 20, 2003. Accessed September 20, 2003. WHO (1998). Tenth WHO Model List of Essential Drugs. Geneva, World Health Organization. WHO (2002). Scaling up retroviral therapy in resource-limited settings: Guidelines for a public health approach. Geneva, World Health Organization: 1–58. Wong, K. H., S. S. Lee, et al. (2003). “Adherence to methadone is associated with a lower level of HIV-related risk behaviors in drug users.” J Subst Abuse Treat 24(3): 233–9.

VIEWS ON PUBLIC HEALTH AND HUMAN RIGHTS ❖ 189 Xinhua News Agency (2003). UNODC praises Thailand’s success in narcotic suppression. Xinhua News Agency. Bangkok.

*Daniel Wolfe is a Community Scholar at Columbia University’s Center for History and Ethics of Public Health and the former Director of Communications at GMHC, the oldest and largest AIDS service organization in the U.S.

QUESTIONS FOR DEBATE

?

1. What is Wolfe’s “alchemy of inequality”?

2. What UN agencies address drug use issues? Can the UN effort be qualified as a coordinated one? Please offer examples cited by Wolfe. 3. What countries does Wolfe list as having HIV epidemics driven by injecting drug use? What are the common characteristics of these countries?

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Part 3 Human Rights and HIV in Context

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Introduction

T

he readings in this section attempt to provide specific examples of how law-enforcement, or zero-tolerance, drug policies infringe on human rights and promote the spread of HIV among already vulnerable populations. They show that when human rights are violated—whether on the international, state, or local levels—the health of both the individual and the public suffers. This section raises two major points regarding human rights and the spread of HIV. The first is that repressive drug-control laws generally target already vulnerable and high-risk populations—i.e. drug users, sex workers, or incarcerated persons—putting them at an even greater risk of transmitting HIV. The second is that the spread of HIV is greater in sociopolitical environments where human rights abuses are frequent (i.e. areas of civil strive). The first three articles address the former point, while the last article address the latter. Readers should consider how the specific situations presented in the articles might be evaluated and improved using one of the human rights impact assessment frameworks presented in the previous section. The failure of zero-tolerance policy outlined in this section may encourage readers to seek alternatives, examples of which will be presented in the final section. The first reading, “Unintended Consequences” by Kasia Malinowska-Sempruch, Jeff Hoover, and Anna Alexandrova, explores the impact that UN drug treaties have had on policies adopted by member nations. Looking at the examples of Russia and Ukraine, the authors find that in their attempt to comply with the UN treaties these nations have implemented prohibitive anti-drug polices that have led to human rights violations and exacerbated the HIV epidemic in these regions. The authors call for the United Nations to adopt drug policies that emphasize a global health perspective and offer guidance and support to individual nations in designing and implementing humane drug programs that comply with UN human rights declarations. The second reading, “Lethal Violations” by Joanne Csete and

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 193 Jonathan Cohen, documents how human rights abuses by police heighten the vulnerability of drug users to HIV and impede any sustained effort to bring the HIV epidemic under control. Injecting drug users commonly experience violations of due process, illegal search and seizures, racial and ethnic profiling, and social disdain. The authors maintain that these actions not only impinge on human rights but also drive drug users away from life-saving HIV prevention and other health services by increasing drug users’ fear of police harassment. Their report identifies a direct connection between drug policies that violate human rights and the public health sector’s inability to pursue HIV prevention efforts. Next, Jennifer Clarke, et. al. investigate drug-related HIV risk behaviors among incarcerated persons. As the authors note, due to the focus on law enforcement in the “war on drugs,” the majority of injecting drug users in the United States experience incarceration. They argue that, while incarcerating drug users may get them off the streets, the policy fails to stop their drug use. Because of easy access to drugs and the common practice of sharing needles, the prevalence of HIV within the penal system is 10.8 times higher than in the general population. The last article in this section, “Burma and Cambodia: Human Rights, Social Disruption and the Spread of HIV/AIDS,” looks at the broader sociopolitical context of drug use and the AIDS epidemic. Chris Beyrer maintains that without social stability and general respect for human rights, targeted interventions are ineffective. He suggests that the social disruptions that arose from civil strive in Cambodia and Burma may make them particularly vulnerable to the spread of HIV. Civil conflict in Burma has led to the disintegration of families and the widespread recruitment of young women as sex workers. Years of war in Cambodia has resulted in a lack of health professionals (due to their widespread murder by the Khmer Rouge) and the increasing necessity of blood transfusions for medical emergencies resulting from landmines. Beyrer’s arguments lead us to conclude that HIV prevention programs must consider and improve the prevailing human-rights situation in order to make an effective impact on public health.

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Unintended Consequences: Drug Policies Fuel the HIV Epidemic in Russia and Ukraine by Kasia Malinowska-Sempruch, Jeff Hoover, and Anna Alexandrova*

The United Nations has traditionally played a leading role in identifying and promoting human rights throughout the world. Several of its agencies’ work on behalf of disadvantaged, powerless, and oppressed people has been praised—justifiably, in most cases—for helping encourage governments to initiate human rights protections and to safeguard existing rights that are in jeopardy. Positive developments often go hand in hand with negative ones, however, and the UN is no exception. Even as its member states sign treaties that commit them to guarantee human rights, many of them also seek to comply with other international agreements by taking measures that violate rights. In most situations, such contradictory results are unintended. Regardless, the effect is the same: marginalized and vulnerable individuals suffer greatly and are further alienated from society. National governments that implement these policies do so with impunity, claiming that the UN sanctions their actions. One of the most blatant examples of UN-inspired human rights violations concerns drug users and others living with or at great risk for contracting HIV in Central and Eastern Europe and the former Soviet Union. By promoting strict compliance with UN drug control treaties, the UN Commission on Narcotic Drugs (CND) and other UN agencies are severely and unconscionably exacerbating the HIV epidemic in these regions. This linkage has become clear over the past five years as the number of people infected with HIV has

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 195 increased by more than 500 percent in Russia and Ukraine, the hardest hit countries. The drug control treaties aim to reduce both the supply and demand of illegal drugs, a high-profile priority of many of the UN’s most influential members. Although largely silent on suggested methods to achieve drug “control”, or how a society should cope with the myriad complexities surrounding drug use and addiction, the agreements are unambiguous in their staunch opposition to anything that may be perceived as sanctioning drug use. The governments of Russia and Ukraine—as well as others in the region—have tried to comply with the tough UN treaties by implementing repressive antidrug policies. Not only do many of these policies violate basic human rights principles, but they also have catastrophic public health consequences in nations where the HIV epidemic is driven primarily by injecting drug use. Russia and Ukraine, the region’s most populous states, share the dubious distinction of having two of the fastest-growing drug use and HIV infection rates in the world.1 As many as 1.5 million Russians2 and 400,000 Ukrainians3 are estimated to be living with HIV-and at least 80 percent of the officially registered infections in those countries are attributable to injecting drug use.4 Such an explosive HIV epidemic could easily occur in other countries with rising rates of injecting drug use, such as Pakistan, Iran, and countries in Central Asia. By adhering to UN drug conventions that focus on reducing demand, governments in Russia and Ukraine have allocated most of their resources to law enforcement institutions, including the police. This limited focus has inhibited public health authorities—both financially and legally—from pursuing effective HIV prevention and treatment policies, thus reducing opportunities for drug users to access information and resources to safeguard their health. Drug users are also more likely than ever to contract HIV and other bloodborne diseases from needle-sharing and other risky behaviors. Furthermore, they continue to be marginalized by society, subject to widespread discrimination and stigma, and frequently denied basic health care and other social services. Because of such narrow policies and their

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consequences, national governments are unlikely to meet target goals for effective HIV policies as agreed to at the 2001 UN General Assembly Special Session on HIV/AIDS. That possible outcome provides a perfect example of how UN agencies and their member governments can operate at cross purposes.

Background The influence of the three UN conventions that form the basis for international drug control coordination cannot be overstated: Countries that have ratified and signed the conventions (including all of the countries in Central and Eastern Europe and the former Soviet Union) are expected to incorporate their provisions into domestic law. It was surely never the intention of UN policymakers and national government officials that these treaties would hinder efforts to adequately confront health epidemics. Yet, that has been the unforeseen consequence in the age of HIV and AIDS—especially in countries where injecting drug use plays a significant role in HIV transmission. Much of the blame for skyrocketing HIV rates in the region lies in the fact that current drug control conventions and the way governments seek to comply with them are outdated and inflexible. The first treaty, enacted in 1961, was the Single Convention on Narcotic Drugs. It focused on limiting access to what it defined as “dangerous” narcotic drugs and stipulated that those in Schedule 1, the most restrictive category, can only be used for “medical and scientific purposes.” Among the drugs in Schedule 1 are cocaine and opiates, including morphine, heroin, and methadone. Ten years later, the 1971 Convention on Psychotropic Substances expanded the UN’s definition of “drugs of abuse” to include, for example, methamphetamines. The third major international drug treaty, the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, is considered the strictest of all three treaties. It referred back to the previous conventions and urged each signatory country to “adopt such measures as may be necessary to establish [the possession of illicit drugs] as criminal offences under its domestic law, when committed intentionally.”5 Because the language in the phrase “adopt

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 197 such measures as may be necessary” is vague, it can be interpreted in a variety of ways by national governments that are drawing up domestic legislation. As a result, many governments have shown a readiness to take the easier road, which in most cases involves blunt, repressive antidrug policies that are potentially harmful to all individuals—not just drug users. The governments claim they are forced to adopt such measures to comply with the conventions and related resolutions from the 1998 UN General Assembly Special Session on the World Drug Problem (UNGASS). At that meeting, participating countries reaffirmed the three conventions’ classifications and agreed to work toward achieving “significant and measurable results” in reducing illegal drug consumption by 2008 (with a 50 percent reduction considered the formal target). That deadline has been criticized as unrealistic by most independent observers, and unrealistic goals inevitably lead to draconian strategies that are destined to fail. There are significant discrepancies in how the conventions are interpreted and how policies are formulated. For example, although the conventions seem to allow very few exemptions for Schedule 1 drugs, methadone is widely available for substitution treatment in many signatory countries as a key means of helping treat heroin addiction. In other nations, methadone is illegal under all circumstances, including substitution therapy—and policymakers justify these bans on the conventions’ provisions. Inconsistencies are most pronounced when policies regarding methadone are compared with those regulating morphine. Morphine is also a Schedule 1 drug, yet nearly all countries of the world allow its use as a pain medication. Even though methadone, like morphine, has been shown to have a “legitimate” medical application,6 it cannot be prescribed at all in certain countries. This discrepancy is discriminatory toward drug users. The UN treaties and the UNGASS political declaration do contain some language that can be construed as compassionate to drug users. Even the CND seems to recognize the potential for human rights abuses during aggressive drug control efforts: In March 2002, it adopted a resolution on HIV and drug use that “encourages Member

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States to implement and strengthen efforts to raise awareness about the links between drug use and the spread of HIV, hepatitis C and other bloodborne viruses” and “further encourages [them] to consider the potential impact on the spread [of these diseases] when developing, implementing and evaluating policies and programs for the reduction of illicit drug demand and supply. . . . “7 Resolutions and political declarations are not binding under international law, however, and such explicit language does not appear in the actual treaties. Therefore, the treaties themselves remain outdated. The first two were conceived and enacted before HIV was even identified. The third treaty came into force in the age of AIDS, but was enacted before the explosive growth of injecting drug use in many parts of the world. To date, neither the CND nor the UNODC (formerly known as the UN Office for Drug Control and Crime Prevention, or UNDCCP) has proposed revising any of the conventions to better reflect the myriad economic, cultural, social, and public health issues that are likely to prevent most countries from meeting the user-reduction goals. In the absence of revisions, the legally binding conventions remain hostile to drug users.

Focus on Demand Reduction Governments have few easy options when seeking to reduce demand for drugs and meet the goals specified by the UN drug conventions. In the absence of targeted guidance, suggestions, or assistance from the UN drug agencies, many governments therefore take a blunt approach. The most superficially attractive approach is to crack down on drug users directly and attempt to deny them the ability to “demand” drugs. Over the past couple of decades, several signatory countries have passed laws and implemented so-called zero tolerance policies intended to severely punish drug users and serve as a deterrent to others. Authorities are often charged with more aggressively rounding up drug users to meet quotas, and they sometimes restrict (or terminate) the activities of organizations that help drug users but do not require them to stop using. Such policies are often backed by the general public, which in

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 199 most societies views drug users as nuisances at best, dangerous criminals at worst. However, there is little evidence that harsh policies help eliminate demand for drugs; nor do they do anything to address any of the economic, social, or health factors associated with the use of illicit drugs. Locking people up in prisons is not a solution—especially when those incarcerated have even greater access to drugs than they do outside prison walls. (In Russia, for instance, about 8 percent of inmates surveyed in 2000 by Médecins Sans Frontières acknowledged injecting drugs in prison.8 That percentage is thought to be significantly higher now.) Drug users who avoid arrest are driven further underground and are less likely to access medical and social services, including those that would help the motivated to stop using, because of fear of harassment or incarceration. These trends do not bode well for efforts to reduce HIV transmission or improve public health in general. Instead, drug users face increased discrimination and have little or no incentive to take measures to protect their own health or the health of those around them. It is in such circumstances—when hope for a better future and compassion from society are both limited—that drug use and HIV spread most rapidly.

Current Drug Policies in Russia and the Ukraine Contribute to Human Rights Abuses and a Rise in Drug Use Russia and Ukraine are already reeling from a deadly drug use/HIV combination. In both countries, the number of drug users and HIV infections has surged in tandem since the mid–1990s, twin epidemics that are inextricably linked. At the same time, each nation has also revised its antidrug laws and policies as part of an effort to suppress drug use and make headway toward meeting the UN conventions’ drug-eradication goals. Such revisions are considered necessary because both the Russian and Ukrainian constitutions recognize the priority of international agreements. In an unusually candid comment, Russian Minister of Interior Affairs Boris Gryzlov, in a speech

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to the Russian Parliament (Duma) in October 2001, said that “total prohibition” of illicit drug use was “not the [government’s] own initiative . . . but rather a responsibility to implement the UN drug conventions of 1961, 1971, and 1988.”9 Although there are some notable differences in penalties and how the laws are ultimately applied, the contemporary Russian and Ukrainian criminal codes have much in common because they share the legacy of Soviet legislation. Some of the relevant laws and related criminal justice procedures are noted below:

• The production, sale, possession, storage, and transportation of illicit drugs are prohibited in both countries. Russian antidrug laws, which were overhauled in 1998, are somewhat harsher toward offenders: Criminal liability extends to smaller amounts of a drug than in Ukraine, and offenders can be sentenced to longer prison terms. • In both countries, an individual charged with possession of illegal drugs may escape criminal responsibility if he voluntarily surrenders the drugs and “actively participates in the investigation of drug-related offences.” • Individuals charged with violating drug-trafficking laws are subject to “administrative surveillance” after they have completed their prison terms. • Pretrial detention of those charged with drug-related offenses remains accepted and common in certain circumstances. Policymakers in both countries are trying, with varying degrees of success, to reduce the number of detainees through the implementation of new concepts such as bail. Recently in Russia, decision-making responsibility regarding detention was transferred from the prosecutor’s office to the court, which has been instructed to use pretrial detention in exceptional cases only. These laws and policies are often interpreted broadly by law enforcement authorities (especially the police) as a license to harass, arrest, and maintain administrative pressure on those suspected of using drugs. As a result, the number of injecting drug users (IDUs) in

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 201 prison has increased over the past few years—not only because there are more drug users in general but also because they are more likely to be incarcerated. The notoriously horrendous conditions in Russia’s overcrowded prisons continue to deteriorate, posing additional health risks for imprisoned drug users. Few of them have access to even the most rudimentary health care, let alone harm reduction services such as condom and clean needle distribution. As a result, HIV and tuberculosis (TB) are rampant in some prisons. Official government figures indicate that more than 36,000 Russian prisoners are currently infected with HIV,10 a number that likely is much higher in reality. Some 10 percent of the one million inmates in Russian prisons are thought to have TB, a third of whom have a multidrug-resistant strain.11 A prison sentence is increasingly a death sentence for many IDUs. For those IDUs who manage to avoid being incarcerated, Russian and Ukrainian policies concerning their health needs are mixed at best. On the positive side, in both countries it is legal to buy and possess needles and syringes—the Ukrainian Law on HIV/AIDS Prevention actually guarantees access to sterile injecting paraphernalia12—and they are sold in most pharmacies. More comprehensive harm reduction services are often available at needle exchange projects operated by local nongovernmental organizations (NGOs) and some government agencies, usually with support from international NGOs and foreign aid agencies. These projects are limited in number, however, and their scope and reach are often further hampered by resistance from local authorities and the police (who believe needle exchange promotes heroin use) as well as neighborhood and business groups that fear rising crime. As a result, potential clients frequently stay away. Those who seek treatment find that weaning themselves off addictive opiates is made more difficult by the fact that methadone is classified as an illicit drug by the UN conventions—a classification that requires member states to significantly limit use of the drug. Under a rigid interpretation of the treaties, this precludes the establishment of substitution therapy programs that have shown great success in Western Europe, Australia, and other places where methadone is an accepted treatment for heroin addiction. (In many of those countries,

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methadone treatment started as pilot projects and clinical trials 20 years ago.) Besides this clear-cut denial of their right to health, IDUs in Russia and Ukraine face additional violations of their human rights under existing laws or widely accepted practices. For example, although compulsory testing for HIV is against the law in both countries, IDUs and sex workers in Ukraine are still often tested without their consent when entering treatment facilities or pretrial detention centers. Also, existing Russian and Ukrainian policies require drugtreatment clinics to officially register IDUs who seek assistance (although some facilities decline to do so); similarly, a person who visits an AIDS center for treatment is automatically registered with the public health authorities. Such practices violate an individual’s right to autonomy and privacy. Both countries also have controversial laws that hold all HIV-positive people, including IDUs, criminally liable if they knowingly endanger or infect another person with the virus. Such laws may seem logical on paper, but they are difficult to apply consistently or fairly because of the stigma attached to HIV/AIDS and the most vulnerable populations. Another human rights concern is that IDUs are more likely than most people to be subjected to unwarranted harassment and abuse from law enforcement authorities, including arbitrary searches, entrapment, racial profiling, and assorted other rights violations. Victims rarely report abusive incidents because to do so could draw attention to themselves and make them targets for additional abuse. So far, government policies have failed to stem the surge in drug use in either Russia or Ukraine. Several factors are behind this epidemic, most of which relate to ongoing post-Soviet transitions to democratic, capitalist societies. The transitions have been wrenching for much of the population as living standards have fallen, social inequality has worsened, and public health and other social support systems have deteriorated. Both countries are located on the main heroin trans-shipment routes from Afghanistan, where most of the world’s opium is grown, to Western Europe. The flow of drugs has increased substantially in recent years and law enforcement authorities have had little luck

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 203 combating organized crime groups that control most drug trafficking in the region. Authorities’ efforts to curb trafficking are hindered by corruption, lack of adequate funding, and their inability to confront the sheer magnitude and economic power of the drug trade. According to James Wolfensohn, the president of the World Bank, opium production in Afghanistan reached record levels in 2002, making opium-related revenues in that country higher than the combined foreign aid currently provided.13 Three–quarters of Afghani opium is shipped to Europe, usually through Russia and Ukraine. As a result, drugs are relatively plentiful and cheaper than ever, especially in major cities along trafficking routes. Regional disparities mean that drug use rates are as much as four times higher than national averages in urban areas such as Samara, Russia, and Odessa, Ukraine. It is estimated that there may be as many as four million active drug users in Russia14 and perhaps one million in Ukraine,15 higher percentages of the population than almost anywhere else in the world. Efforts throughout the region to crack down on drug trafficking may have the unintended effect of increasing the proportion of those users who inject drugs. When supplies are low and prices are rising, users often switch from smoking to injecting because the latter method is more cost-effective. This shift is a dangerous trend: It increases HIV risk as well as drug overdoses, with the latter often ending in death because people are afraid to seek medical attention from potentially censorious health and law enforcement officials. Furthermore, once users start injecting, they often do not revert back to using by other, less harmful means, even if the price goes down and the purity increases. Stigma against drug users is fairly constant throughout the region, especially since national governments and the media strongly disapprove of such behavior regardless of the circumstances. They focus on destructive elements—drug-related crime, overdose, disengagement from society at large—and adopt “blame the victim” mentalities that remain punitive. Few organizations or policymakers have identified or explored the link between addiction to illegal drugs and similar high-profile addictions to legal substances (nicotine and alcohol, for instance) that are approached from a health perspective and are gen-

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erally free of moral condemnation. Like those trying to fight alcohol addiction, drug users cannot be expected to take action to safeguard their own health or the health of those around them without support and assistance from public health officials and the public at large. In Russia and Ukraine, as in many other countries, the lack of such empathy and understanding is a major reason that the drug use epidemic continues unchecked. Continued discrimination against drug users and others at greatest risk for HIV also threatens to create a large group of people who are permanently disadvantaged socially. Their concerns will rarely be considered by policymakers; subsequently, they will have few opportunities to improve their lives or communities. The consequences of a large and growing underclass could be dire not only for the disadvantaged. Frustration and alienation often lead to social unrest that affects societies at all levels, thus creating additional burdens on governments striving to maintain order and deliver services needed by all citizens.

Looming Catastrophe: HIV and the Destruction of a Nation The warning signs of massive dual drug use and HIV epidemics in Russia and Ukraine have been apparent since the late 1990s. Few observers, though, ever thought that HIV would reach catastrophic levels so quickly. Although the absolute number of people infected remains below that in many sub-Saharan African countries, UNAIDS reported at the end of 2002 that the “unfortunate distinction of having the world’s fastest-growing HIV/AIDS epidemic still belongs to Eastern Europe and Central Asia.”16 As of July 2003, the total number of Russians officially registered as having HIV stood at more than 240,000, nearly triple the number recorded in 2000.17 Even government officials, however, concede that this number is far too low; both the Russian Federal AIDS Center and UNAIDS believe that at least 1.5 million people in the country of 144 million are currently infected with HIV.18 According to a U.S. National Intelligence Council Report released in 2002, Russia could

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 205 have as many as eight million infections in the next decade, which would equal about 10 percent of the workforce and an HIV prevalence rate of 11 percent.19 The situation and the trajectory are similar in Ukraine, where the national HIV prevalence rate is already higher than 1 percent of the total population of 49 million.20 In a report released in February 2003, Oleksander Yaramenko, the head of the Ukrainian Institute for Social Studies, said recent data indicate that “about 1.44 million people will be infected with HIV/AIDS by 2010” in Ukraine.21 Treatment options that have prolonged the lives of people with HIV in wealthier countries are severely limited in both countries. The current epidemic in Russia and Ukraine is unique in that the majority of infections continue to be linked to injecting drug use. It is already apparent, however, that an increasing number of infections will occur through other transmission modes, thus affecting the general population more directly. According to a study in the Lancet, published in March 2003, the number of reported cases in the region of HIV transmission through heterosexual sex has risen recently.22 Among those most at risk from this development are IDUs’ sex partners, sex workers, women, and prisoners. Like IDUs, members of these groups are more likely than most to be marginalized by society, harassed by authorities, and frustrated in efforts to obtain health services. Government prevention efforts have been nonexistent or ineffective, largely because they have not targeted at-risk groups that could conceivably benefit the most from comprehensive and realistic outreach and education programs. The increasing death rate will not only accelerate population declines, but could also have serious economic and national security consequences. According to a recent projection, a “mild” HIV epidemic alone would keep the Russian economy from growing at all through 2025; a more serious “intermediate” epidemic would prompt a 40 percent decline in economic growth over that period.23 Russia, the region’s military and political heavyweight, may find it increasingly difficult to maintain the current size of its armed forces as the number of healthy conscripts declines due in part to rising HIV infection levels among young people. This development would likely

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make Russia’s leaders feel far more vulnerable in an already chaotic part of the world and prompt them to favor, in the name of national security, tighter controls and restrictions at the expense of human rights concerns.

A New Approach to Drug Policy In countries such as Russia and Ukraine that have barely begun to consider how to tackle the HIV epidemic, the sheer magnitude of the problem may be so daunting that the political will to take action remains muted. This inaction may be politically feasible while the epidemic primarily affects powerless, uninfluential communities such as drug users. Once HIV has spread further into the general population, however, the public will demand action and accountability from their government. By then it may be too late to prevent an epidemic similar to those ravaging certain sub-Saharan African countries. Taking action now to reduce HIV transmission rates and treat those already infected is critical. Russia and Ukraine cannot achieve these goals on their own, however. The international community must take measures to prod and assist them in their efforts to develop realistic strategies that are built on a human rights cornerstone. By insisting that member countries comply with rigorous antidrug standards and goals under a one-size-fits-all rubric, UN drug agencies are limiting the ability of nations to implement appropriate, epidemicspecific HIV policies that can save lives. It is also apparent that the UN drug conventions—and the way certain countries interpret their provisions—conflict with the priorities and recommendations outlined in the Declaration of Commitment on HIV/AIDS, which was signed by all participants (including Russia and Ukraine) at the UN General Assembly Special Session on HIV/AIDS in June 2001.24 Countries that emphasize rigid adherence to the conventions’ goals—a strategy condoned by the CND— will find it nearly impossible to develop effective HIV programs that meet the declaration’s standards. They will undoubtedly fall short of crucial targets, in particular those related to HIV and human rights, vulnerability, and access to care and treatment.

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 207 Anachronistic concepts, discredited by experience, cannot be applied when lives hang in the balance. The CND’s inadequate consideration of the global HIV epidemic indicates that it considers drug use to be an isolated problem that can be eliminated in a vacuum primarily through law enforcement measures. This is a false and misguided assumption. Drug use is a complicated social issue that is rarely influenced solely by laws and oppression. Inevitably, some people will continue to seek out and use drugs regardless of the penalties involved or the risks to their personal health. Categorically demonizing their behavior and choices only casts them further out of society and denies them the services they need to protect themselves and others from harm. It also restricts their ability to take measures to change the very behavior that is being attacked. The CND and other UN drug agencies claim that they have the moral high ground because they seek to prevent people from the destruction wrought by drug use. Their intentions may be honorable: there are indisputably negative repercussions from drug use, from personal tragedies such as overdose to money laundering related to trafficking in illegal drugs. However, the agencies’ approach is flawed because it fails to recognize the consequences of the eradication crusade as it is currently interpreted and implemented. The drug conventions place unrealistic expectations on national governments. Their leaders often feel that they have little choice but to adopt repressive policies in an effort to eliminate demand for drugs, regardless of the human costs involved not only for drug users but also for society in general. Antidrug policies that increase HIV transmission are antithetical to core public health precepts and adversely affect countries such as Russia and Ukraine that are already ill-equipped to deal with surging HIV infection. International agencies and national governments must summon the political will to devise and implement humane policies that start with revising the UN drug conventions and reforming national drug and HIV laws. With the goal of avoiding adverse effects on social welfare, public health and human rights, the Russian and Ukrainian governments should reconsider how they interpret international treaties. Policy changes should be made in the following areas:

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• Drug control policies. Drug users and their advocates should be involved at all levels of decision-making when national and international drug use policies are developed. In a related step, the UN drug conventions and national laws should include provisions that explicitly legalize needle exchange and the use of methadone for treatment purposes. The conventions should explicitly encourage national governments to view drug use primarily as a matter of public health, not law and order. Government policies should be constructed to reflect this reality. • Discrimination and legislation. Antidiscrimination and equal-protection laws in all countries should be amended to guarantee the civil liberties and human rights of people living with HIV and marginalized risk groups such as drug users. Laws that are directly targeted at or used to implement policies that violate the human rights of people with HIV and at-risk groups should be repealed or restructured to better reflect public health concerns and guarantee the human rights of all people. Public health and law enforcement authorities should take the lead in eliminating both official and de facto discrimination. They must no longer condone or ignore harassing and abusive behavior, including physical attacks, arrest quotas, arbitrary searches, detainment without charges, and other violations of due process. HIV-positive people, including IDUs, should be included in all policy discussions related to them in the public health and legal spheres. • Harm reduction. The governments should play an active role in establishing and supporting a large, strategically located network of harm reduction programs that provide services for IDUs, including needle exchange, HIV transmission education, condom distribution, and access to viable treatment programs such as methadone substitution. Similar services should be available in all prisons. • Education. Simple, direct, and clear information about HIV transmission should be made available to all citizens—especially those most at risk. Similarly, society at large should be educated about the realities of drug use and addiction as part of an effort to reduce stigma.

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 209 Rejecting long-accepted policies regarding drug use will undoubtedly be difficult for those who have staked their careers on fighting drugs worldwide and have always promoted the kind of language and strategies contained in existing international documents and national action plans. It is clear, however, that these strategies have serious flaws that harm the people they are meant to protect. It would be a sign of strength, not weakness, to revisit UN conventions and revise them appropriately from a global public health perspective, in recognition of the deadly realities of one of the world’s greatest epidemics.

ENDNOTES 1. UNAIDS, AIDS Epidemic Update, December 2002. The report notes, “In recent years, the Russian Federation has experienced an exceptionally steep rise in reported HIV infections. In less than eight years, HIV/AIDS epidemics have been discovered in more than 30 cities and 86 of the country’s 89 regions.” 2. CanWest News Service as reported in the Edmonton Journal, “HIV/AIDS Spreads Rapidly in Russia,” April 19, 2003. 3. Oleksander Yaramenko, the director of the Ukrainian Institute for Social Research, quoted this figure in November 2002 in a speech at a conference in Crimea. The estimate is based on research his organization carried out for the British Council. Also quoted in “Every 10th Ukrainian Lives with HIV,” November 11, 2002: NEWSru.com, online in Russian. 4. UNAIDS, AIDS Epidemic Update, December 2002. 5. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (December 20, 1988), Article 3, E/CONF.82/15. 6. According to “Harm Reduction Approaches to Injecting Drug Use” on the World Health Organization’s website, “Whilst the primary goal of drug substitution treatment is abstinence from illicit drug use, many patients are unable to achieve complete abstinence, despite improvements in their health and well being. However, there is clear evidence that methadone maintenance significantly reduces unsafe injection practices of those who are in treatment, and hence the risk of HIV infection.” Online: http://www.who.int/hiv/topics/harm/reduction/en/ 7. CND 1223rd Meeting, Res.45/1, “Human immunodeficiency virus/acquired immunodeficiency syndrome in the context of drug abuse,” March 15, 2002. 8. Mark Schoofs, “Jailed Drug Users Are at the Epicenter of Russia’s Growing AIDS Scourge,” Wall Street Journal, June 25, 2002. 9. Excerpted from remarks made by Russian Minister of Interior Affairs Boris Gryzlov at the State Duma, October 17, 2001. Online in Russian at the Russian Ministry of the Interior:

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http://www.mvdinform.ru/index.php?section=reaction_t 10. Council of the Baltic Sea States’ Task Force on Communicable Disease Control in the Baltic Sea Region. Additional information can be found online at http://www.baltichealth.org/cparticle65128–7717a.html. 11. Nina Schwalbe, “TB is the Largest Killer of Those with HIV,” letter to the Wall Street Journal, July 18, 2002. 12. Law “On Prevention of AIDS and Social Protection of the Population” (1992), N11, Article 4. 13. Faisal Islam, “World Bank Chief Issues Opium Alert,” The Observer, March 16, 2003. 14. Mark Schoofs, “Jailed Drug Users Are at the Epicenter of Russia’s Growing AIDS Scourge,” Wall Street Journal, June 25, 2002. 15. Radio Svoboda, “News of the Day,” June 26, 2001. The estimate was provided by the Ukrainian Ministry of Health. 16. UNAIDS, AIDS Epidemic Update, December 2002, supra note 9. 17. AIDS Foundation East-West, based on data from the Russian Federal AIDS Center, July 2003. 18. CanWest News Service as reported in the Edmonton Journal, “HIV/AIDS Spreads Rapidly in Russia,” April 19, 2003. 19. “The Next Wave of HIV/AIDS: Nigeria, Ethiopia, Russia, India, and China,” U.S. National Intelligence Council Report, September 2002. 20. UNAIDS, Ukraine Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections, 2002 update. Online: http://www.unaids.org/hivaidsinfo/statistics/fact_sheets/pdfs/Ukraine_en.pdf 21. Olena Horodetska, “AIDS Epidemic May Break Ukraine’s Health System,” Reuters Foundation AlertNet, February 19, 2003. 22. Francoise Hamers and Angela Downs, “HIV Rising in the East,” Lancet, March 22, 2003. 23. Nicolas Eberstadt, “The Future of AIDS,” Foreign Affairs, November 2002—December 2002. 24. See in particular points 58, 62 and 96 in the Declaration of Commitment on HIV/AIDS agreed to at the conclusion of the UN General Assembly Special Session on HIV/AIDS, June 2001. *Kasia Malinowska-Sempruch directs the International Harm Reduction Program at the Open Society Institute. Jeff Hoover is a New York City-based editor and writer who also serves as a Web officer in the Open Society Institute’s Communications Department. Anna Alexandrova (LL.M.) is a Russian scholar in law and policy who has been working in the field of HIV/AIDS prevention in the CEE/NIS region since 1997.

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DEBATE QUESTIONS

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1. Using Russia and Ukraine as examples, explain the unintended consequences of UN drug policy. 2. What health consequences do drug users in Russian and Ukrainian prisons experience? 3. How do the three UN conventions support incarceration policies implemented by the two countries?

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Lethal Violations: Human Rights Abuses Faced by Injection Drug Users in the Era of HIV/AIDS by Joanne Csete and Jonathan Cohen*

Introduction The HIV/AIDS epidemic has attained proportions far beyond the scale that was ever imagined when the virus that drives it was discovered. By some estimates, hundreds of millions of persons may die before the disease is brought under control. Those most affected by HIV/AIDS in most parts of the world-sex trade workers, men who have sex with men, injection drug users, prisoners and migrant workers, for example—are persons who faced social marginalization and discrimination long before there was AIDS. It has been clear from the beginning of the epidemic that discrimination and other abuses faced by those at highest risk of HIV impede government and private-sector efforts to bring the disease under control. For injection drug users, stigma and discrimination often take the form of profound criminalization and demonization. In many countries of the world, this deep social disdain is abetted by laws on narcotic drugs that are impossible to enforce without violating the human rights of injection drug users. Countries that recognize narcotics drug addiction as an illness and treat it with humane health measures rather than punitively are, unfortunately, a minority. This chapter focuses on human rights abuse faced by injection drug users, with a focus on the particular violations of international human

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 213 rights law that are involved in this abuse and on actions that could reduce this abuse.

Background A significant percentage of new HIV infections around the world every year is linked to injection drug use; in some regions, the percentage is very high. In the former Soviet Union (FSU) and Eastern Europe alone, there are an estimated 4 million injection drug users, and in many countries of the region more than 70 percent of persons living with HIV/AIDS are injection drug users.1 It is not surprising that this region is home to the world’s fastest-growing AIDS epidemic; HIV can be spread extremely fast among injection drug users. In Russia, as late as two years ago, it was reported that 90 percent of people living with HIV/AIDS were injection drug users.2 A September 2003 report indicates that the proportion of new cases of HIV in Russia among drug users was 36 percent, an alarming indication that the epidemic has spread to the general population.3 In the United States in 2002, about 28 percent of new cases of HIV were linked directly or indirectly to injection drug use.4 In China, injection drug use is estimated to be the most important mode of HIV transmission.5 The proven and affordable services that reduce the harm, including HIV transmission, of injection drug use, are well known. Syringe exchange programs and substitution therapy with methadone or buprenorphine are central elements of HIV prevention programs in the countries of western Europe and a few others that have a record of humane treatment of drug users. Among public health experts, there is strong consensus that these programs are very effective and cost-effective in preventing HIV and other drug-related harm. Even in the United States, where there is a ban on federal funding of syringe exchange services, there are eight federally funded studies that demonstrate the effectiveness of syringe exchange in reducing drug-related harm without in any way encouraging drug use. Nonetheless, access to these services for drug users worldwide remains very limited. The Global HIV Prevention Working Group in

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its widely cited report of May 2003 estimated that only 11 percent of injection drug users in the FSU and eastern Europe have access to harm reduction programs such as syringe exchange.6 A twenty–seven–country survey by the Central and Eastern Europe Harm Reduction Network in 2002 noted that of eleven countries in eastern Europe and the FSU where over two thirds of the persons with AIDS are drug users, seven do not permit substitution therapy. It is logical to wonder whether human rights abuses faced by drug users contribute to the underutilization of these life-saving services where they exist and whether stigmatization of users contributes to the complete absence of these services in some countries.

Human Rights Abuse of Injection Drug Users Wide range of abuses executed with impunity Drug users are susceptible to a wide range of human rights abuses, some linked to laws that are not friendly to their rights, some linked to the social disdain in which they are held, and some linked to both these factors. In many countries, drug users by law can be arrested for possession or use of very small quantities of narcotics. Once they are in custody, their addiction can be used as a tool to coerce them into false confessions, sometimes in ways that constitute torture. Drug users are easy targets on which to pin false charges. Many elements of due process, including access to legal counsel, may be denied them more often than they are denied to other detainees. In Kazakhstan in 2002, Human Rights Watch gathered first-hand accounts from many heroin users of instances of all of these abuses. Abdelkasim Begzhanov, then forty–one, told us in Shymkent that he was beaten by police while in detention, but he decided not to complain about it when the police gave him heroin. [They beat me] with a wooden club. They spread me legs wide apart like this. I had bruises, and I wanted to lodge a complaint with the prosecutor, but they told me, “You won’t get anywhere anyway.” And they began to bring me heroin so that I wouldn’t

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 215 complain, so that I wouldn’t have pain, so that I wouldn’t go cold turkey. I shut up.7

Several users in Kazakhstan described having robbery or other charges pinned on them. A former user, Nurali Amanzholov, now president of an organization that supports people with AIDS in Kazakhstan, told Human Rights Watch: If the drug user is beaten and confesses, he is offered a certain charge. If he accepts the charge, for example, if he already committed a robbery and did a sentence, he is told “Accept this [other] crime too.” At trial, he’ll be prepared to accept more because he will have been beaten solid for two days. One year more or less [in prison] is not going to make much difference to him.8

Entrenched corruption in police forces and prisons involved in the “drug war” makes reform of law enforcement practices a distant dream in many countries. Aryeh Neier, president of the Open Society Institute, notes the near inevitability of corruption in the ranks of persons meant to enforce repressive drug laws in many countries: Bitter experience in all parts of the world has taught us that it is extremely difficult—and perhaps impossible—to enforce criminal laws against drugs without both extensive corruption and severe abuses of human rights. The corruption is directly tied to efforts to enforce the law. Because of the risks posed by law enforcement, drug traffickers demand high prices for their goods, ensuring that the money in the trade provides temptations for bribery and extortion. There are also links between human rights abuses and corruption. Law enforcement officials intent on personal gain are especially ready to engage in abuses.9

Human Rights Watch’s work in Kazakhstan, Bangladesh and other locations bears out this observation. In Kazakhstan, numerous injection drug users reported that police assume that drug users have access to large sums of cash and offer reductions in sentences or other inducements for bribes.10 In Bangladesh, the combination of a poorly paid police force that acts with relative impunity and general social

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disdain for drug users provided a perfect setting for extortion by police. Numerous drug users said police would threaten them with violence or with long periods of detention if they didn’t pay bribes.11 Police corruption and involvement in the drug trade obviously make the goal of less punitive and repressive drug laws that much less attainable. There are even more extreme cases of human rights violations of drug users, often in the guise of crackdowns against drug dealers. In February 2003, the prime minister of Thailand announced a new “war on drugs” that eventually led to the extrajudicial killing of over 2200 alleged drug dealers,12 many of whom were probably users but not dealers. Thai Interior Minister Wan Muhamad Nor Matha did not disguise the government’s intentions. Referring to drug dealers, he was quoted as saying: “They will be put behind bars or even vanish without a trace. Who cares? They are destroying our country.”13 According to local human rights activists, the central government reportedly put extreme pressure on local officials to draw up lists of drug criminals and gave them short deadlines to “take care of” those on the list. The United Nations continues to praise Thailand as a success story in the fight against AIDS and supports Thailand’s hosting of the 2004 International AIDS Conference in Bangkok.14 Human Rights Watch also recently documented atrocious mistreatment of injection drug users in China, where forced labor and “social re-education” are the inhumane response of the state to the disease of drug addiction in the midst an AIDS epidemic shrouded in secrecy.15 One obvious consequence of draconian drug laws and police harassment and extortion of drug users is that in many countries a very high percentage of drug users spend time in state detention, and in some countries a high percentage of prison inmates and persons in pre-trial detention are drug users. Access to HIV prevention services Even if abuses of injection drug users are not as extreme as those in Thailand or China, it is clear that human rights violations can constitute an important impediment to HIV prevention services for drug users. Where drug users face deep social stigma, they may be reluctant

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 217 to use any government or even private services such as syringe exchanges. In some countries, needle exchange workers have themselves faced human rights abuses, especially from the police, and, as noted above, harm reduction services such as syringe exchange and substitution therapy remain illegal in many jurisdictions. Human Rights Watch has documented instances where, without shutting down needle exchange and other services, police harassment or the threat of harassment has effectively kept injection drug users from life-saving services. In Canada, a country with a generally positive record on support for harm reduction programs, police crackdowns and chronic abuse of drug users in an impoverished neighborhood of Vancouver has at times driven injection drug users away from needle exchange services.16 In Bangladesh, the periodic arrests of needle exchange outreach workers in recent years has disrupted the few such services available to drug users in the country.17 One drug user told us that these arrests frighten users into staying away from the syringe exchanges, leaving them with little choice but to share needles. Harm reduction services are becoming more available in some of the countries of the former Soviet Union, but obstacles remain. In Kazakshtan, needle exchange service providers told Human Rights Watch that even if the police did not target needle exchange points as a place to accost drug users, fear of police raids to fill arrest quotas at various times causes utilization of these services to plummet. In addition, service providers themselves have been harassed and in one case in Almaty in 2002, a needle exchange volunteer was detained when police found that he was carrying a booklet on safe injection practices.18 In Russia, the situation is similarly dire. The 1998 Federal Law on Drugs and Psychotropic Substances is used by law enforcement officials to harass and detain drug users in a wide variety of situations. Many injection drug users reportedly avoid syringe exchange services or drug counseling centers for fear of police harassment or arrest.19 In the United States, in spite of the government’s own evidence of the effectiveness of syringe exchange, these services are relatively few, unsupported by the federal government and in many states forbidden

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by law. In addition, even where needle exchange is legal, drug paraphernalia laws that exist throughout the country criminalize possession of syringes by individuals, an enormous impediment to the fearless use of these services by injection drug users. In 2003, Human Rights Watch conducted research in California, where the state has allowed counties to decide the legality of syringe exchange, resulting in a confusing range of laws and regulations governing this life-saving service, including outright prohibition in a number of counties. Even in places where syringe exchange is legal, drug users described to us being caught in a Catch–22 where they too often have to choose between arrest and the protection from HIV that access to clean needles affords. As one man said: A lot of people [are] too scared to come down here. And that’s sad, giving them the excuse to say, “Hey, damn the needle exchange,” that’s taking their mind away from staying in the program. . . .all because they don’t want to come down here and get hassled. They keep using the same ones [syringes] over and over.20

Like five other U.S. states, California also forbids nonprescription pharmacy sale of syringes, a measure that has improved syringe access for drug users in other parts of the U.S. In short, the rights of injection drug users are regularly abused in the name of the war on drugs, often with apparent popular support and with impunity. Draconian drug laws and stigmatization of drug users are incompatible with containing the global HIV/AIDS epidemic and with the realization of the right of drug users to protect themselves and those around them from a deadly disease.

International Human Rights Law and the Abuse of Injection Drug Users As with people living with HIV/AIDS, there are no provisions of international human rights law that name injection drug users as persons needing particular protection of their human rights or mention them in any other way. However, the range of human rights abuses that injection drug users face in virtually all parts of the world repre-

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 219 sent violations of existing human rights law that applies to all persons. All persons are protected from arbitrary arrest or detention under the International Covenant on Civil and Political Rights (ICCPR) of 1966, a widely ratified treaty. Article 9 of the ICCPR also ensures that anyone arrested or detained under the law be informed of the charges against him or her and ensured of prompt judicial proceedings. Article 10 covers humane treatment of persons in detention, noting, for instance, that juvenile detainees should be separated from adults and persons already convicted should be separated from those in pre-trial circumstances. Human rights standards for treatment of persons in detention are further elaborated in the Standard Minimum Rules for the Treatment of Prisoners of 1957, which outlines standards of sleeping accommodations, access to light, water, exercise and sanitation facilities, diet, and medical care. Article 22, for example, requires that prisoners who are ill and need specialized care be transferred to the institutions that provide such care and that all prisoners have regular access to qualified medical personnel, including psychiatric professionals. All of these basic standards are frequently violated for drug users. Harassment by police may constitute a violation of the guarantee of security of person in ICCPR article 9. Some of the police abuse of injection drug users documented by Human Rights Watch and other organizations constitutes torture, which is prohibited by article 7 of the ICCPR and by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987, another widely ratified instrument. The Convention against Torture enjoins all states to prohibit all acts of torture in their codes of criminal law (article 4) and to ensure that law enforcement officers at all levels are trained in all forms of torture (article 10). Article 11 requires states to “keep under systematic review interrogation rules and . . . arrangements for custody and treatment of persons subjected to any form of arrest, detention or imprisonment . . . with a view to preventing any cases of torture.” The right to the “highest attainable standard of physical and mental health” is guaranteed by the International Covenant of Economic, Social and Cultural Rights (ICESCR) of 1966. Denial of the right to

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health is a common human rights violation faced by injection drug users. Their right to health is often impeded by policies and practices that limit their access both to harm reduction services and to humane treatment for their addiction. The right to health includes the right to obtain health services without fear of punishment, an aspect that is impossible to achieve under the drug law regime in many countries. As the U.N. Committee on Economic, Social and Cultural Rights has stated, policies that “are likely to result in . . . unnecessarily morbidity and preventable mortality” are breaches of governments’ obligation to respect the right to health. Policies that impede access to clean syringes and methadone fit the committee’s description. In addition, prohibiting access to clean syringes or substitution therapy discriminates against drug users as a class of persons with a well defined disorder or disability. If the law denied syringes or medicines to insulin-dependent diabetics, the same kind of discrimination would occur, and no one would find it acceptable. The right to health is inherently guaranteed in a non-discriminatory way, and all persons have the right to be free from discrimination on the basis of disability or physical disorders [ref]. The rights of drug users to adequate housing (ICESCR, article 11), freedom from discrimination in the workplace (ICESCR article 7 and anti-discrimination provisions in many instruments), nondiscriminatory access to educational institutions (ICESCR, article 13), and from social security and social insurance systems (ICESCR, article 9) are also regularly violated in many countries. The stigma and discrimination so rampant against drug users in many parts of the world are clear violations of many human rights norms. Influence of U.N. drug control treaties The case of the rights of drug users in international law is complicated by the existence of the U.N. treaties on international control of narcotics drugs, which have the force of international law and which in many ways undermine the protection of the rights of drug users. Much of the policy thinking that justifies criminalization of drug users rather than prioritizing humane health services for them is enshrined

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 221 in these three United Nations conventions. The conventions, ratified in 1961 (the Single Convention on Narcotic Drugs), 1971 (Convention on Psychotropic Substances) and 1988 (Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances), form the basis for international coordination of policies to control of narcotics drugs. These treaties are widely ratified, including by all of the countries of Central and Eastern Europe and the Soviet Union as well as the United States. Two of these conventions predate the HIV/AIDS epidemic, and the third predates the explosive growth of injection drug use in the world. It was surely never the intention of the framers of these treaties that they would impede the fight against a lethal pandemic but, tragically, this is part of their legacy. The Open Society Institute, which has pioneered harm reduction services in much of Eastern Europe and the FSU, has concluded that the skyrocketing HIV rates in that region are in significant part due to the way in which governments seek to comply with the outdated and inflexible provisions of the U.N. treaties.21 For example, in the 1961 convention, methadone is classified as a “schedule 1” drug to which access should be strictly limited. Some countries use this provision to justify the illegality of methadone in all circumstances, thus denying injecting heroin users one of the most effective means to reduce the harm of their drug use and making illegal one of the most effective tools against AIDS in a drug use-driven epidemic. The 1988 convention urges countries that are party to it to “adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally,” the possession of illicit drugs. Because this language is so vague, national governments have used it to justify a wide range of repressive antidrug policies that contribute to the marginalization of drug users from lifesaving health and harm reduction services.22 At the 1998 U.N. General Assembly Special Session on illicit drugs, members states reaffirmed the three conventions and agreed to work toward achieving “significant and measurable results” in reducing illegal drug consumption by 2008 (with a 50 percent reduction considered the formal target). That deadline has been criticized as unrealistic by many independent observers. Chasing this goal is likely to lead some countries

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to adopt draconian measures destined to fail in both reduction of illicit drug use and control of HIV/AIDS. The U.N. Commission on Narcotic Drugs and the U.N. Office on Drugs and Crime have not tried to promote the idea of revising the conventions to ensure better reflection of the realities of the era of HIV/AIDS as well as the well established track record of harm reduction measures. Subsequent United Nations documents and statements have contained some language that can be construed as compassionate to drug users. The June 2001 declaration from the U.N. General Assembly Special Session on HIV/AIDS calls for “harm reduction efforts related to drug use,” though some member states, notably the U.S., objected to earlier language naming injection drug users as a population particularly in need of services and care. The U.N. International Guidelines on HIV/AIDS and Human Rights of 1998 call on countries to review their laws with an eye toward legalizing and promoting syringe exchange and modifying laws that criminalize the possession and distribution of syringes, but the guidelines do not have the force of international law.

Recommendations for Action The challenge of improving human rights protections for injection drug users is no small one. That social disdain for drug users is so deep that it would be allowed to impede their right to protect themselves from HIV is shocking, particularly given the excellent track record of harm reduction programs in countries where they have been allowed to operate. Drug users are clearly caught up in a terrible politics of moral judgmentalism, typified by the attitude that they “deserve what they get” if they can’t exercise self-control, which underlies abstinence and law enforcement approaches to drug use in many countries. The political power of religious fundamentalists in many countries, including the United States, strengthens support for these approaches, which are clearly discredited by science. Drug users’ human rights are also a casualty of a political of denial about HIV/AIDS in many parts of the world. Making the case for the urgency of protecting drug users’ rights and working respectfully with

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 223 them to fight HIV/AIDS if a government is in denial about HIV/AIDS or about the extent of the epidemic within its borders. The governments of China and numerous countries of the former Soviet Union, for example, have not allowed epidemiological surveys to go forward to establish the real extent of HIV prevalence in their populations. Some countries, notably many in the Middle East, prefer to deny that significant levels of injection drug use exist in their populations. As with all human rights challenges, political courage is urgently needed. Among the actions that must be taken to redress entrenched and widespread abuses of the rights of injection drug users are the following: Spread the word on the link between human rights abuses and harm reduction: The track record of harm reduction services has been widely studied but remains underappreciated by many policymakers. The link between human rights abuses and effectiveness and success of harm reduction services is much less well understood. Harm reduction services are a fortuitous combination of programs that are effective and cost-effective in public health terms and interventions that are human rights-friendly. Accounts, including economic analyses, of the ways in which harm reduction services have helped to contain AIDS and reduced other drug-related harm while respecting the rights of users are needed in terms that policy-makers and the general public can understand. High-level leadership: In the history of HIV/AIDS, many important victories have been led by civil society organizations, including organizations of people living with AIDS. But in country after country, experience has shown that frank recognition of all facets of the HIV/AIDS epidemic, including its link to injection drug use, has been invaluable for creating an environment in which programs can be effective and wide-reaching. It is not surprising that many politicians shy away from being associated with drug users, prisoners, sex workers, and other persons on the frontlines of the epidemic. But in the face of an AIDS catastrophe, politicians must transcend that cowardice and

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recognize publicly that injection drug users can be part of the solution to AIDS if public officials work respectfully with them. International treaties and statements from U.N. bodies: It is a shame that the United Nations system has been so silent on the rights of drug users, especially their right to protect themselves and those around them from HIV/AIDS and other life-threatening conditions. It is more than a shame that U.N. treaties actively promote approaches that ignore the need for protection of the rights of drug users. It is high time that the U.N. recognize and address the unintended negative consequences of the three drug control treaties as HIV/AIDS cuts a swath through the world. The General Assembly should mandate that the treaties be revisited with an eye toward eventual agreement on an international drug control strategy that puts reduction of drug-related harm at the top of the policy agenda. The United Nations agencies that are co-sponsors of the Joint U.N. Programme on HIV/AIDS (UNAIDS), including the U.N. Office on Drugs and Crime in Vienna, should take a lead in bringing these anachronistic conventions into the twenty–first century. They should speak publicly about the lethal consequences of failing to support harm reduction measures and should put resources into mobilizing member states to follow through with words and actions in support of these life-saving services. The United Nations needs to bring all its resources to bearing in leading the global community away from repressive and ineffective “wars” on drugs.

Conclusion HIV/AIDS has had a special link to human rights and human rights violations from the first. Any disease that started out with the name “gay-related immune deficiency” would be likely to have some human rights challenges built in. The history of HIV/AIDS around the world has been shaped to a large degree by the fact that the persons first and most affected by the disease—sex workers, injection drug users, prisoners and migrant workers in addition to gay and bisexual men, for example—did not generally enjoy political popular-

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 225 ity and in many cases were without strong organizations or solidarity networks. The human rights challenges of galvanizing popular support or high-level political energy for a fight against a disease affecting these populations were clear from the beginning. Remarkably, there is great rhetorical commitment to the idea that protecting the human rights of people affected by HIV/AIDS is an important part of fighting the epidemic. But it is shocking and saddening that in the third decade of the AIDS epidemic’s horrific destruction, that commitment remains a rhetorical one, perhaps especially with regard to the rights of injection drug users. The challenge for human rights and harm reduction advocates alike is to bridge the gap between the rhetoric and the reality of AIDS and human rights. If this could be achieved by non-governmental advocates alone, the gap would already be bridged. Those who see everyday the life-saving impact of harm reduction services and the transforming effect of working respectfully with drug users do not need to be convinced further. But government action will be required, and some measure of political courage will be essential. One can only hope that enough political leaders, before it’s too late, will realize that trampling on the rights of drug users only gives HIV/AIDS the upper hand.

ENDNOTES 1. Central and Eastern European Harm Reduction Network, Injecting Drug Users, HIV/AIDS Treatment and Primary Care in Central and Eastern Europe and the Former Soviet Union (Vilnius: CEE-HRN, 2002), p.6. 2. Ibid. 3. Transatlantic Partners Against AIDS and EastWest Institute, “On the Frontline of an Epidemic: The Need to Urgency in Russia’s Fight Against AIDS,” New York, September 2003, p. 4. 4. U.S. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report: U.S. HIV and AIDS cases reported through December 2001 (vol. 13, no.2), tables 5, 6, 9, 10. 5. See summary of evidence in Human Rights Watch, Locked doors: The human rights of people living with HIV/AIDS in China (New York, September 2003), p.x. 6. Global HIV Prevention Working Group, “Global HIV Prevention: Closing the Gap,” May 2003, p. x. Available online at http://www.unaids.org/publications/Prevention130503_en.pdf (retrieved

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September 23, 2003). 7. Human Rights Watch interview, Southern Kazakhstan Regional Drug Center, Shymkent, Kazakhstan, August 23, 2002. 8. Human Rights Watch interview, Temirtau, Kazakhstan, August 18, 2002. 9. Aryeh Neier, “Focus on human rights,” Harm Reduction News, vol. 4, no. 1, Spring 2003 p.1. 10. Human Rights Watch, Fanning the flames: How human rights abuses are fueling the AIDS epidemic in Kazakhstan (New York: Human Rights Watch, 2003), pp. 22–24. 11. Human Rights Watch, Ravaging the vulnerable: Abuses against persons at high risk of HIV infection in Bangladesh (New York, August 2003), pp. 44–45. 12. Brad Adams, “Thailand’s crackdown: Drug ‘war’ kills democracy too,” International Herald Tribune, April 24, 2003, p.8. See also Aryeh Neier, “The world’s other tyrants still at work,” New York Times (op-ed), April 7, 2003; Guy Dinmore and Amy Kazmin, “US protests to Thailand over drug war killings,” Financial Times, May 8, 2003. 13. Adams, ibid. 14. Ushani Agalawatta, “UN fetes Thai AIDS fight but group protests latest policy,” Inter Press Service, September 20, 2003. Available online at http://www.ipsnews.net/interna.asp?idnews=20193. Retrieved September 23, 2003. 15. Human Rights Watch, Locked doors: The human rights of people living with AIDS in China (New York, September 2003). 16. Frances Bula, “Vancouver police thwart attempt to help addicts: Closing a sidewalk needle exchange shakes coalition of civic agencies,” Vancouver Sun, June 6, 2002; Human Rights Watch, Abusing the user: Police misconduct, harm reduction and HIV/AIDS in Vancouver (New York, May 2003). 17. Ravaging the vulnerable, p.46. 18. Fanning the flames, pp.32–33. 19. Transatlantic Partners Against AIDS, p. 14. 20. Human Rights Watch, Injecting reason: Human rights and HIV prevention for injection drug users—California, a case study (New York, September 2003), p. 24. 21. K. Malinowska-Sempruch, J. Hoover and A. Alexandrova. Unintended consequences: Drug policies fuel the HIV epidemic in Russia and Ukraine (New York: Open Society Institute, 2003). 22. Ibid.

*Joanne Csete is director of the HIV/AIDS Program at Human Rights Watch. She worked on public health programs in Africa for over ten years and was previously chief of policy and program planning in the regional office of UNICEF.

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 227 Jonathan Cohen is a researcher in the HIV/AIDS Program at Human Rights Watch. He previously served as clerk in the Supreme Court of Canada and has documented a range of human rights issues related to HIV/AIDS.

DEBATE QUESTIONS

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1. According to Human Rights Watch, what human rights violations do drug users encounter? 2. How have UN drug-control treaties contributed to human rights violations? 3. What international human-rights instruments can be used to protect the rights of drug users?

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Active and Former Injection Drug Users Report of HIV Risk Behaviors During Periods of Incarceration by Jennifer G. Clarke, MD,* Michael D. Stein, MD,* ** Lucy Hanna, MS,* Mindy Sobota, MPhil,* and Josiah D. Rich, MD, MPH*

American prisons have increasing numbers of inmates incarcerated for drug offenses. This population is at high risk for HIV-infection and may continue HIV transmission risk behaviors while incarcerated. We find that 31% of injection drug users with a history of imprisonment had used illicit drugs in prison, and nearly half of these persons had injected drugs while incarcerated. Male gender and number of times incarcerated were associated with drug use in prison. Interventions for drug-using prisoners that are advocated in some European prisons, such as needle exchange programs and methadone maintenance, need attention in the United States.

Introduction Needle sharing among injection drug users (IDUs) is associated with acquiring HIV infection and is the major risk factor for HIV infection among incarcerated adults1–3. The majority of IDUs will be incarcerated at some point during their drug use years and many IDUs continue to use illicit drugs while they are incarcerated4–9. Seroconversion studies have demonstrated that jails and prisons are sites of HIV transmission through needle sharing and/or unsafe sexual behavior6–10. High levels of needle sharing occur among those

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 229 using illicit drugs while incarcerated5,6,11,12. New HIV infections occur during incarceration and a history of incarceration has been shown to be an independent risk factor for HIV infection among IDUs. The prevalence of HIV infection within the penal system is 10.8 times higher than it is in the general population13–15. National data reveals that U.S. prison populations are increasing and that at any given time approximately 2.4% of the U.S. population is under the custody of the criminal justice system, either incarcerated (awaiting trial or sentenced) or on parole16. There has been a 72% increase in the number of persons incarcerated since 1990, with approximately 23% of adult inmates incarcerated for drug offenses (possession, trafficking and so forth)13,17. A history of injection drug use (IDU) among incarcerated populations has a prevalence ranging from 0.6 to 43.1% in different correctional facilities throughout the United States13. Despite the variety of HIV risk practices known to occur in prisons, particularly among persons with a history of IDU, there are no recent American studies on the behaviors of IDUs while in prison. In this study we describe the HIV risk behaviors during periods of incarceration, both sexual risks and those related to illicit drug and needle use, among a cohort of drug injectors.

Methods Between July 1997 and March 1998 we recruited persons from the Providence, Rhode Island Needle Exchange Program (NEP) and from Codac, Inc., Rhode Island’s largest methadone maintenance treatment program (MMTP) for a study of health service utilization among injection drug users (ProMethIUS). The study is described in detail elsewhere18. Inclusion criteria limited participants to those who spoke English, were not pregnant, were 18 years of age or more, and had a history of IDU. Individuals recruited from the NEP included anyone who had exchanged needles at least once in the last 6 months. Individuals recruited from Codac had received methadone maintenance continuously for at least 6 months prior to study recruitment. The Rhode Island Hospital IRB

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approved the study and informed consent was obtained from all participants. Because of the anonymous nature of needle exchange, we recruited NEP clients to a separate research site. At the study visit, all NEP subjects presented their study card (received from the NEP coordinator), received urine toxicological testing (to confirm heroin or cocaine use), underwent HIV testing using Orasure, saliva-based testing, and received a 45-min, face-to-face interview with study staff19. Persons recruited from MMTP were interviewed at Codac and underwent the same interview with study staff as well as HIV testing using Orasure. The questionnaire included sections on demographics, health service use, HIV risk behaviors, and incarceration. Persons completing the research assessment received $40. Information was collected in private rooms by four experienced female interviewers. In the analysis, continuous variables were summarized as means and categorical variables as proportions. Univariate analyses were conducted using chi-square tests and Mests as appropriate. Multiple logistic regression analyses were performed to determine the independent associations of HIV risk behaviors with demographic and incarceration variables.

Results Of the 472 individuals recruited, 383 (81%) reported that they had been incarcerated one or more times (Table I). Those never incarcerated were similar to those with a history of incarceration with respect to recruitment site, ethnicity, and education. Those with a history of incarceration had a longer duration of drug use (mean years of drug use 17.9 vs.12.8), were older (38 years vs. 35 years), and were more likely to be male (65 vs. 35 %) than persons without a history of incarceration. Those with a history of incarceration also had a higher rate of HIV infection (12 vs. 6%; p = 0.09). The demographics and HIV risk behaviors of those with a history of incarceration were analyzed by gender (Table II). The population was predominately male (65%). There were no significant gender differences by recruitment site, education, HIV status, mean age, or

HUMAN RIGHTS AND HIV IN CONTEXT ❖ 231 mean years of drug use. Women were significantly more likely to have been incarcerated only once (32 vs. 16%; p < 0.001). There were also significant gender differences in HIV risk behaviors. Overall, 31% of the cohort had used drugs while in prison, with 38% of men and 19% of women reporting drug use while incarcerated (Table II). When asked specifically about IDU while incarcerated, 15% responded affirmatively (49% of those using illicit drugs while incarcerated), with 20% of men and 6% of women reporting injecting while in prison. Tattooing and sexual behavior in prison were much less common, reported by 11 and 3 % overall respectively (Table II). Tattooing was much more frequently reported among men than women (15 vs. 4%; p < 0.001) while there was no difference in sexual activity reported by women and men (5 vs. 2%; p = 0.41). The data was then stratified by number of incarcerations (Table III). A significantly higher proportion of women had been incarceratTable I. Demographics of Cohort Never incarcerated (n=89)

History of incarceration (n=383)

P-value

Odds ratio (95% CI)

Years of drug use 12.8 17.9