Harm Reduction, HIV/AIDS, and the Human Rights Challenge to Global Drug Control Policy

Chapter 37

Harm Reduction, HIV/AIDS, and the Human Rights Challenge to Global Drug Control Policy

Richard Elliott, Joanne Csete, Evan Wood and Thomas Kerr

The global HIV/AIDS pandemic has added to the list of harms associated with unsafe drug use and provided yet further evidence that the dominant, prohibitionist approach to illicit drugs is not only ineffective but also counter-productive. Embodying this approach, international drug control treaties cast a chill over—or in some cases, may prohibit, de jure or de facto—implementation of measures proven effective in reducing the spread of HIV. Furthermore, a prohibitionist paradigm engenders policies and practices that inhibit drug users’ access to care, treatment, and support, be it for HIV disease, addiction, overdose, or other health concerns.

Consequently, the HIV/AIDS pandemic has intensified debate over the norms and institutions of the global drug control regime. In part because of the increasingly apparent devastation of injection drug use and associated spread of HIV, pressure is mounting for drug policy reform at the international as well as domestic level. AIDS has upped the ante; the sheer magnitude of the epidemic driven by unsafe drug use has meant greater pressure to confront issues that governments would often rather ignore. It is increasingly evident that a commitment to harm reduction—defined broadly as “policies and programs which attempt primarily to reduce the adverse health, social and economic consequences of mood altering substances to individual drug users, their families and their communities”—must entail some degree of reform of the dominant prohibitionist approach.^{1, 2}

Simultaneously, the emergence of HIV/AIDS has catalyzed a movement of researchers and activists articulating the multidimensional, multi-directional relationship between health and human rights. Given that unsafe drug use, particularly by injection, is now one of the major factors fueling the global epidemic, it is only natural that the legal regime that affects drug use(rs) comes under human rights scrutiny.

A commitment to the human rights of drug users has marked the thinking and advocacy of many people concerned with harm reduction from the outset, and the principles, objectives, and initiatives that fall under the broad rubric of “harm reduction” can be characterized as reflecting or advancing human rights. Harm reductionists, therefore, in effect, are human rights advocates, contributing to a larger effort aimed at securing universal respect for, and observance of, fundamental human rights. Yet it is only in recent years that the language of human rights has begun to inform discussions about drug policy reform in international and intergovernmental fora beyond the circles of harm reduction proponents and/or human rights experts.³

There may be strategic reasons, in any given instance, to focus on either the “public health” rationale or a “human rights” argument for a specific reform in order to sway decision-makers in a particular direction. Combining the two approaches, however, may strengthen such a case: public health evidence can support principled legal arguments with a sound evidentiary basis, and the principles of human rights law strengthen statistical or other data with the normative claim that states have an ethical and legal obligation to act upon that evidence. We suggest that joining human rights law with public health evidence can help shift global drug control policy away from the current, failed emphasis on prohibition to a more rational, health-promoting framework that is both pragmatic and principled. As a contribution to this collective endeavor of “regime change,” this chapter:⁴

• reviews briefly the global extent of injection drug use and the linked HIV/AIDS epidemic and the impact of prohibition and harm reduction on health and human rights, focusing on HIV/AIDS-related effects;
  
• outlines the basic elements of the international legal regime of illicit drug control;
  
• considers some of the conceptual and programmatic links between harm reduction and human rights as recognized in international law; and
  
• discusses strategies for reforming global drug control policy to reflect a more human rights-based approach that facilitates harm reduction.

Injection Drug Use and HIV/AIDS: Global Health Challenges

Recent estimates suggest that there are over 13 million people who inject illicit drugs in the world today, the majority of whom are from developing countries.⁵

Injection drug use was first documented in North America, Australia, and Western Europe well before HIV/AIDS was first discovered, but evidence of the emergence and rapid diffusion of injection drug use has recently been documented in Eastern Europe, the former Soviet Union, South East Asia, China, India, the Middle East, and West Africa.⁶ HIV prevalence higher than 20% among persons who inject drugs has been reported for at least 1 site in 25 countries and territories, from several different regions of the world.⁷

Injection drug use is a key risk factor for HIV infection, given the high-risk behavior of sharing injection equipment.⁸ Of the 136 countries that reported injection drug use in 2003, 93 also reported HIV infection among users.⁹ In Eastern Europe and the former Soviet Union, regions with two of the fastest growing HIV epidemics, injection drug use accounts for the majority of new infections.¹⁰ In other countries, such as Thailand, high HIV incidence persists in this population.¹¹ Currently, injection drug use is estimated to account for 10% of HIV infections globally, although this proportion is likely increasing in light of the dual epidemics of injection drug use and HIV in Eastern Europe, the former Soviet Union, and Asia.¹² Experience demonstrates that HIV can spread rapidly once established within communities of drug users.¹³ Other health-related harms among persons who inject drugs include high rates of hepatitis C infection, bacterial infections, multi-drug-resistant tuberculosis, fatal and non-fatal overdoses, and high violence and suicide rates.¹⁴

Overall, the evidence suggests that while drug users generally do not enjoy adequate access to highly active antiretroviral therapy (HAART), the challenges of access and adherence to treatment regimens can be overcome with appropriate support, including the provision of drug treatment and various harm reduction services such as methadone maintenance therapy (MMT).15, 16 International reviews also indicate that HIV epidemics driven by injection drug use can be prevented or reversed by instituting prevention measures while seroprevalence is still relatively low, including such measures as syringe exchange programs and outreach services.¹⁷ Unfortunately, HIV prevention efforts remain inadequate in many countries with high rates of HIV incidence among drug users. For example, the Global HIV Prevention Working Group reported in 2003 that only 11% of injection drug users (IDUs) in the countries of the former Soviet Union and Eastern Europe have access to syringe exchange programs.¹⁸

The Damage of Drug Prohibition

The dominant approach, in both national and international responses to drug use, remains the attempt to reduce or prevent the supply and use of controlled substances by means of legal prohibitions on their cultivation, production, transport, distribution, and possession. Yet the available evidence suggests that drug law enforcement has not produced the purported benefits. Street-level drug policing has been shown to have little, if any, sustained effect on the price of illicit drugs, their availability, or the frequency of use.¹⁹ Nor have law enforcement efforts produced greater use of addiction treatment by drug users.²⁰ Public order gains are generally time-limited and often simply result in displacement of drug markets and drug users into other areas, frequently away from HIV prevention services.²¹ Such ineffective use of policing budgets also carries the opportunity cost of lost investments in other, more beneficial police work (for example, community policing).²² Consider, for example, that the US federal government spends billions of dollars each year to fund the “war on drugs” yet spends nothing on syringe exchange programs, despite hundreds of thousands of documented cases of HIV infection among people who inject drugs.²³

In some cases, prohibition actually fuels risky injection and drug storage practices, increasing the risk of overdose, viral and bacterial disease transmission, and other harms.²⁴ Policies of prohibition have prompted some drug users to switch to drug injection from other practices: drugs consumed by smoking (for example, opium and cannabis) can be harder to conceal than drugs regularly consumed by injection (for example, heroin), and injection may be a more efficient way to consume when the drug supply or time for consumption is limited. Evidence also indicates that law enforcement initiatives can displace drug users into less safe environments (for example, “shooting galleries”) and disrupt relationships within illicit drug markets, leading to increased violence among users and dealers.²⁵ Similarly, policing practices can undermine users’ access to health services, including harm reduction programs. Deterring drug users from visiting syringe exchanges encourages them to share syringes and dispose of syringes and related litter improperly rather than risk being found in possession of such items by police.²⁶ Harassment and arrest of syringe exchange workers, including for possession of material explaining safer injection practices, obviously undermines efforts to protect drug users against HIV and other risks of unsafe use.²⁷ Other reports indicate that fear of prosecution deters many drug users from seeking medical assistance during or following an overdose.²⁸

Harm Reduction is Health Promotion

Harm reduction does not preclude abstinence as a worthy goal, but rather it accepts that illicit drug use has been, and will continue to be, a feature of cultures throughout the world and that efforts should made to reduce harms (including HIV infection) among individuals who continue illicit drug use. In practice, interventions aimed at promoting the health of drug users by reducing harms from unsafe drug use and/or facilitating access to care and support include:

A large body of evidence indicates that harm reduction measures can have a positive impact in preventing HIV infection among people who use illicit drugs and their sexual and drug-sharing partners; can improve their access to health and other services; and are more respectful of their dignity and rights than other measures.²⁹

Globally, we observe that countries that have adopted comprehensive harm reduction measures have succeeded in preventing or stabilizing HIV epidemics among IDUs; while countries that have been slow to implement such measures and have focused instead on enforcing prohibition have suffered greater spread of HIV among IDUs and subsequent spread to non-drug using populations.³⁰

Outreach programs have been demonstrated to reach marginalized populations, including out-of-treatment IDUs who may be at highest risk for HIV infection, creating an important link to testing, prevention, and treatment services. Peer-driven interventions have been an important means of providing social networks of drug users, through “indigenous leaders,” with HIV- and overdose-prevention measures.³¹

Drug user-groups connect active users with health services but also play a more critical role in the self-empowerment of users by educating the public about issues facing drug users and effecting policy change through activism.^{32, 33}

Syringe exchange programs, which have been found to reduce risk behavior and the incidence of HIV and hepatitis C, have not led to increases in drug use and have been associated with substantial savings in health care expenditures.^{34, 35} These programs are widely regarded as the single most important factor in preventing HIV epidemics among IDUs.³⁶ An international investigation found that in cities with syringe exchange or distribution programs HIV seroprevalence decreased by 5.8% per year, while HIV prevalence increased by 5.9% per year in cities without such programs.³⁷ A more recent analysis has suggested an even greater impact on HIV prevalence of the presence or absence of syringe exchange programs.³⁸ Opioid substitution therapy (for example, metha-done) has been shown to lead to reduction in, and even elimination of, illicit opiate use, as well as reductions in criminal activity, unemployment, and mortality rates.³⁹ It has also been associated with reduced risk behaviors (for example, needle sharing) and reduced rates of transmission of HIV and viral hepatitis.⁴⁰

Safer injection facilities where IDUs can inject pre-obtained illicit drugs under medical supervision have been implemented in the Netherlands, Germany, Switzerland, Spain, Australia, and Canada.⁴¹ Among other health benefits, they have been associated with reduced HIV-risk behavior and overdose deaths, although further evaluation is warranted.⁴²

Despite evidence supporting the above measures, they often remain unpopular among many politicians; and instead of implementing such programs with proven or reasonably predictable health benefits, many governments have opted to rely on expensive, ineffective, and harmful enforcement policies and practices. In the next section, we consider whether such approaches are required by international drug control treaties and the extent to which governments may pursue more health-friendly alternatives.

The current global system for illicit drug control rests upon three international conventions: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illegal Traffic in Narcotic Drugs and Psychotropic Substances (“Vienna Convention”).^43–45 The treaties require signatory states to take various measures to criminalize drug-related activities such as cultivation, production, manufacture, export, import, distribution, trading, and possession of controlled substances except for “medical and scientific purposes.”⁴⁶ The 1998 Convention (Article 3:2) specifically requires the criminalization of possession for personal consumption, casting drug users as criminals.⁴⁷ Three international bodies administer the treaties:

• The UN Commission on Narcotic Drugs (CND) consists of 53 UN member states and is the central policy-making body within the UN system in relation to drug control, with the authority to bring forward amendments to existing treaties or propose new treaties. At the insistence of the United States, the CND currently operates by consensus, meaning that any single country can block a resolution or other initiative.⁴⁸
  
• The UN Office on Drugs and Crime (UNODC) “assist[s] UN member states in their struggle against illicit drugs, crime and terrorism.” UNODC is a cosponsor of the Joint UN Programme on HIV/AIDS (UNAIDS) and had begun to show some support for harm reduction measures, at least insofar as it relates to preventing HIV among drug users.⁴⁹ However, recent statements by the senior management have manifested overt hostility toward proven harm reduction measures, even as some parts of the agency support more harm reduction-friendly interpretations. Resolving the consequent internal tension, and contradictions with other “core values” of the UN, is necessary if the UNODC is to be a credible interlocutor in the response to the global AIDS pandemic.⁵⁰
  
• The International Narcotics Control Board (INCB) is “the independent and quasi-judicial control organ for the implementation of the United Nations drug conventions,” with the “responsibility to promote government compliance with the provisions of the drug control treaties.”⁵¹ Established by the 1961 Single Convention, the INCB consists of 13 individual experts and has manifested a general hostility toward harm reduction. Although the UN conventions enjoin states to ensure drug treatment programs in addition to law enforcement systems, a review of the Board’s annual reports demonstrates that its monitoring activities have focused virtually exclusively on the latter. The INCB has lamented that harm reduction has “diverted the attention (and in some cases, funds) of Governments from important demand reduction activities such as primary prevention or abstinence-oriented treatment.”⁵² Although INCB interpretations of the conventions are not legally binding, they help shape the political climate in which decision-makers determine national drug policies.

The INCB and prohibitionist states have emphasized the provisions in the conventions requiring criminalization and penalties for drug-related activities. However, the treaties also contain important qualifications that can make some space for harm reduction initiatives, even if this “room for manoeuver” is limited.⁵³ Indeed, the legal advisory branch of UNODC has advised the INCB that most harm reduction measures are compatible with the UN drug control conventions, which can be interpreted to permit opioid substitution therapy, syringe distribution, and safer injection facilities.⁵⁴ As for treaty articles that may be at odds with harm reduction initiatives, the UNODC memorandum stated: “It could even be argued that the drug control treaties, as they stand, have been rendered out of synch with reality.”⁵⁵

So what flexibility currently exists within the drug control regime? The 1961 and 1971 treaties allow for the production, distribution, or possession of controlled substances for “medical and scientific purposes.”⁵⁶ It is up to States parties to determine how they will interpret such provisions in their domestic legislation. The treaties also allow states to provide measures of treatment, rehabilitation, and social reintegration as alternatives, or in addition, to criminal penalties, meaning that states enjoy discretion in deciding whether or not to impose criminal penalties for the personal (non-medical) possession and consumption of drugs controlled by the treaties.^{57, 58} In addition, the 1961 and 1971 conventions actually mandate states to “take all practicable measures” for the “treatment, … rehabilitation and social reintegration” of drug users.⁵⁹

It is true that the 1988 Convention expressly requires each state to criminalize possession of a controlled substance even for personal consumption. Some have suggested that the provision means that personal consumption is contrary to the 1961 and 1971 Conventions, thereby retrospectively interpreting those earlier treaties.⁶⁰ However, this interpretation is incorrect and should be rejected as it leads to the improper (and often draconian) application of criminal sanctions under domestic legislation that is not strictly required by the treaty. The 1988 Convention merely says that countries must criminalize possession for personal consumption if such consumption is contrary to the provisions of the two earlier treaties; the flexibility found in the earlier conventions is preserved, meaning that possession for personal consumption authorized by domestic law, in accord with the 1961 and 1971 Conventions, is permissible. Importantly, the 1988 Convention also acknowledges that the obligation to criminalize personal consumption is “subject to the constitutional principles and the basic concepts of its legal system.”⁶¹ Given this qualification, the provision is open to creative interpretation, affording some possible leeway for States parties willing to temper prohibition with some ethical concern for the welfare and human rights of drug users in their legal and policy approaches to drug use.

As this brief overview indicates, current international law on drug control is not entirely hostile toward harm reduction. It is, however, hardly satisfactory that any such measures rely upon exceptions, caveats, or particular interpretations of treaties whose overriding purpose is prohibition. In many instances, it is a matter of securing the political will to adopt such interpretations and act upon them in the face of great pressure to maintain a strict prohibitionist facade. We return to this in the last section of this chapter.

Harm Reduction and Human Rights: Conceptual and Normative Links

As suggested by this definition, there is an obvious affinity between harm reduction and human rights. Yet there has been relatively little explicit discussion of the conceptual and normative links between harm reduction and the international law of human rights in academic journals devoted to either of the two fields.⁶³ This has begun to change, particularly as the harm reduction movement—or at least that part of it that articulates the need to change punitive drug laws—has intensified its efforts to reform global drug control policy and grapples with questions of international law.

How are human rights relevant to harm reduction? We suggest that there are a number of inter-connected ways in which harm reduction and human rights are, or can be, linked.

First, the harm reduction movement inherently entails a commitment to the human rights of drug users. Most obviously, as a movement aimed at reducing harms that are sometimes associated with the use of drugs, harm reduction’s raison d’être is the fulfillment of the human right to enjoy the highest attainable standard of physical and mental health. In addition, harm reductionists are necessarily concerned not only with the direct adverse health consequences of drug use and laws related to drugs but also with the range of other harms experienced by drug users—including the denial or violation of other human rights. To put it at its most basic, “drug users are people too.”⁶⁴ Although trite, the proposition is regularly disregarded in the ongoing dehumanization of drug users and the tragic daily violation of users’ human rights by both states and non-state actors—from torture to the blatant denial of health care, from harsh sentences of imprisonment to extrajudicial execution. Sadly, therefore, it is a point that must still be made.

Second, from a purely pragmatic perspective, securing human rights is necessary for the success of harm reduction. In an earlier article, Alex Wodak explored how prohibitionist drug policy leads to infringements of various human rights, thereby contributing to the harms suffered by drug users:

Judit Fridli, chair of the Hungarian Civil Liberties Union, points out, similarly, that human rights are necessary preconditions to health improvements for drug users and their communities, suggesting that the political viability of harm reduction practice itself is human rights-dependent:

Third, as suggested above, human rights norms point toward harm reduction, rather than prohibition, in policy responses to drug use. At the very least, states are required to remove obstacles to the implementation of such measures by others.⁶⁷ We expand on the human rights-based case for harm reduction—and hence for reform of the international drug control regime—in the next section.

In light of these connections, we suggest that harm reduction advocates can and should deploy human rights norms in making the case for international drug policy reform. But in order to make a human rights case for harm reduction, we first need to clarify what we mean by human rights and what role its principles, norms, and instruments can and should play in a harm reduction analysis.

Andrew Hathaway argues the harm reduction movement has adopted too strictly empirical a focus and has claimed to occupy the “middle-ground” on drug issues, articulating its principles as emerging from a “scientific public health model” but “unduly overlooking the deeper morality of the movement with its basis in concern for human rights.”⁶⁸ In his call for a “morally invested drug reform strategy” (clearly characterizing drug reform as an essential aspect of harm reduction), he criticizes this strategic shortcoming:

Sam Friedman and others have pointed out that the harm reduction movement was formed during a period marked by a “political economy of scapegoating” that targeted drug users, among others, as responsible for social ills; they suggest that “this climate shaped and limited the perspectives, strategies, and tactics of harm reductionists almost everywhere.”⁷⁰